Controversial Provisions Added to OSHA’s Proposed Modernization Updates

Change to lockout/tagout rule might merit separate rulemaking

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The Occupational Safety and Health Administration (OSHA) has proposed 18 updates to modernize its standards, but the agency may have gone too far by adding some controversial provisions.

The tentative revisions represent the fourth phase of a standards improvement project, explained Tressi Cordaro, an attorney with Jackson Lewis in Washington, D.C. "The goal of the project is to do away with inconsistent, duplicative and outdated provisions."

The updates are supposed to be noncontroversial, but some of the proposed changes may warrant a separate discussion and rulemaking, particularly the changes to the lockout/tagout standard, she added.

Lockout/Tagout

The lockout/tagout rule sets out the standards to protect workers from hazardous energy sources while servicing certain equipment, said Melissa Bailey, an attorney with Ogletree Deakins in Washington, D.C.

"A company may need to lock out employees to prevent them from working on certain equipment while it's being repaired," she said.

The lockout/tagout rule requires machines to be disconnected from their power source when the "unexpected energization" of the equipment could result in injury.

If there are horns that sound or lights that go on before the equipment is energized, then it wouldn't be unexpected, Bailey noted.

 [SHRM members-only how-to guide: How to Determine Regulatory Requirements for Safety]

20-Year Precedent

In a court case 20 years ago, OSHA argued that the lockout/tagout rule applies if an injury could occur from the "unintended" startup of a machine, even if there was a warning.

The 6th Circuit U.S. Court of Appeals disagreed. It ruled that the word "unexpected" means that there's an element of surprise. There's no surprise if a machine is designed not to start without alerting workers.

OSHA is now proposing to remove the term "unexpected" from the rule, which the agency said would reflect its original intent and eliminate confusion about when the rule applies.

"OSHA has basically said it is looking to overturn the 6th Circuit's decision," Bailey said. "From a policy perspective, that's troubling. This shouldn't be lumped in with standards improvement rulemaking."

She noted that the standards improvement project is supposed to be aimed at making updates with insignificant costs or even cost savings.

If a company has equipment that's designed not to start unexpectedly, taking that term out of the lockout/tagout rule could have a significant effect on operations, she added.

Opportunity to Comment

There are 18 subjects in the proposed rulemaking that would apply to OSHA's record-keeping, general industry, maritime and construction standards.

Employers need to look at all of the proposed changes to see how they may impact their business, said Thomas Benjamin Huggett, an attorney with Littler in Philadelphia. "Some may apply and some may not, depending on the business."

He noted that some of the changes are positive and make the standards easier for employers to understand and account for anticipated changes in technology.

For example, the updates would permit the storage of X-rays in digital formats, whereas the existing rule requires X-rays to be stored on film.

If employers aren't happy with any of the proposed revisions, they have until Dec. 5 to submit a comment.

"Employers need to decide if they want to make a comment to the proposed rulemaking directly under their own name or through a trade association," Huggett said. "That's their opportunity to affect the rulemaking process." 

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