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A federal advisory committee recommended April 1, 2015, that the Occupational Safety and Health Administration (OSHA) advance its proposed rulemaking revising the requirements for the certification and qualification of crane operators in the agency’s cranes standard.
The Advisory Committee on Construction Safety and Health approved OSHA’s draft proposal leaving operators’ certification requirements mostly unchanged, except for removing the capacity requirement from certification and inserting an employer duty to qualify operators.
The addition of an employer duty to qualify operators led to disagreement over what employers’ qualification evaluation responsibilities would be, and over new language about responsibilities on multi-employer worksites.
“I believe [the draft proposal] language on employer evaluations was much more extensive than what the industry had expected when they asked OSHA to add a qualification component to the rule,” said Tressi Cordaro, a shareholder in the Washington, D.C, office of Jackson Lewis.
Cordaro explained that “industry just wanted OSHA to leave it up to employers to ensure operators are qualified to work safely,” a position put forward in recommended changes to the draft submitted by the Coalition for Crane Operator Safety.
“I think industry was surprised by the evaluation requirements being so prescriptive since most, I believe were expecting OSHA to stick to their longstanding approach to qualified individuals by simply stating that the operation, or task, must be conducted by a qualified person,” said Kevin Cannon, director of safety and health services at the Associated General Contractors of America and an employer representative on the advisory committee. “I think most employers want to have the flexibility to determine the method by which they go about the evaluation and qualification of operators,” he added.
Cannon was encouraged by OSHA’s “verbal commitment to conduct further outreach to industry stakeholders to discuss how to best resolve the issues raised during the meeting.”
Chris Williams, director of safety at Associated Builders and Contractors (ABC) also described the meeting as positive. “We hope OSHA takes into account the advisory committee’s feedback,” he said.
Assistant Secretary of Labor for Occupational Safety and Health David Michaels said the rule could be finalized by January 2017. “We really think we’re going to be able to come to an important conclusion to this discussion within this term of the Obama administration because we know how important it is,” Michaels said.
How We Got Here
A final rule on cranes and derricks in construction was issued by OSHA in August 2010.
The rule replaced the employer’s duty to ensure that crane operators are competent to operate a crane safely with a certification requirement requiring employers ensure that their crane operators are certified prior to operating a crane. Many in the construction industry balked at the certification requirements, asserting that certification was insufficient to guarantee operators’ safety. Many also took issue with the requirement that operators be certified by capacity, saying it was infeasible. “Certification by capacity was a complex issue, and most operators had certifications that did not specify the capacity of crane they were certified to operate,” said Paul Bolon, director of construction standards and guidance for OSHA.
OSHA extended certification compliance deadlines until November 2017, allowing the agency time to revisit and address these issues.
Since then, OSHA conducted more than 40 site visits and interviews with construction employers, crane rental companies, crane manufacturers, crane insurers, testing organizations, accrediting organizations, and trade groups to learn more about how employers currently train and qualify their operators.
The agency learned that no employer would permit an operator to run a crane simply for being certified; training of new operators included formal classroom training, an initial skills evaluation and on-the-job experience and learning; operators are typically considered qualified after 1-3 years; evaluations of experienced operators are based on interviews, tests, certification, experience and references. “Most employers OSHA spoke with value third-party certification because it verified basic skills,” Bolon said. Some employers also reported that the value of the certification’s practical test was limited, because it doesn’t include actually lifting loads.
Proposed Regulatory Text
OSHA issued draft proposed amendments to its cranes standard Feb. 24, 2015.
The draft rule would require that operators be certified by a third-party testing entity, a government licensing entity, or an employer-audited program, and then qualified through evaluation by employers before operating a crane. Workers who have not been certified and evaluated may run cranes while under continuous supervision.
Certification includes a written and practical exam, but only by type of crane—not by capacity, a change most industry stakeholders had sought. The advisory committee asked for a change in the language that requires only certification by type, to also allow—but not require—certification by type and lifting capacity, so testing organizations that certify by capacity won’t have to revise their testing programs.
The training requirements remained the same as in the existing rule, except that OSHA is clarifying that all operators must be trained and that all operators are considered to be operators-in-training until certified for a type of crane and evaluated on the equipment that will be used. Training must be documented. The requirements for trainer qualifications came under questioning from the panel, and Bolon said OSHA will clarify the language in the proposed rule. The text currently reads that a trainer must be an employee or agent of the trainee’s employer and must be a qualified operator.
OSHA also agreed to revisit the evaluation provisions for employers which state that operators have to be evaluated on the equipment they operate. Some employers qualify operators on many types of cranes and with various configurations. If an employer had to evaluate operators on each and every possible configuration, it would be burdensome, the panel said.
“This was not OSHA’s intent,” Bolon said. “Employers are not expected to qualify operators on every possible configuration.”
The committee proposed language saying employers must ensure that crane operators meet the definition of a qualified person to operate the equipment. If operators are not yet qualified, they must be trained, the committee said.
Operators must be re-evaluated when they operate the equipment in an unsafe manner or after some period of time out of the seat. The draft had called for a re-evaluation when operators have not operated the crane within six months, but OSHA agreed to revisit this limit and lengthen it, “perhaps depending on type of crane,” Bolon said. Cordaro agreed with OSHA rewriting this provision, saying six months is not a significant amount of time to pass in which an operator would not be deemed qualified to operate a crane safely.
The committee recommended that OSHA eliminate the requirement for employers to re-evaluate operators annually and consider re-evaluations that correspond with the five-year recertification requirement. The agency reacted positively to this suggestion. “There’s no reason why you should have a five-year recertification and an annual requalification,” Cordaro said.
In a new provision regulating “controlling entities,” OSHA would require the controlling contractor to check the operator’s documentation as a qualified operator, or evaluate the operator. Bolon explained that the controlling contractor on a multi-employer site is the entity that hires the crane. After much discussion about the potential problems with this requirement—specifically that not all controlling entities will have the competency to evaluate crane operators—OSHA agreed to either clarify or delete the provision.
“It seems like this is an approach to expand the multi-employer policy doctrine,” said Cordaro. “Based on the documents given to [the committee] it appears that the basis for this requirement was to have communication between controlling entities and employers with cranes/operators onsite. However, if that is the intended purpose the language can be written in such a way as to place the burden for ensuring that the controlling entity knows the operator is certified and evaluated by having the employer of the operator provide the controlling entity the required documentation,” she said.
Roy Maurer is an online editor/manager for SHRM.
Follow him @SHRMRoy
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