Unexpected Confusion: OSHA’s Proposed Lockout/Tagout Standard Changes
by Phil N. Molé, MPH
In an attempt to modernize certain standards that may be, according to the agency, “confusing, outdated or unnecessary,” OSHA recently proposed 18 changes to its recordkeeping, general industry, maritime and construction regulations through its Standards Improvement Project. One proposed change involves removing the word “unexpected” from the term “unexpected energization” in the Lockout/Tagout (LOTO) Standard for the stated reason of eliminating confusion surrounding the standard’s applicability.
Inadvertently, OSHA has raised concerns about whether the proposed change actually represents more than just a clarification, but a broadening of the standard’s applicability. Below, we look at the LOTO Standard, along with OSHA’s reasoning for the change and steps employers can take to maintain LOTO compliance.
About the Lockout/Tagout Standard
OSHA first issued the LOTO Standard in 1989 to protect workers from injury in the event of “unexpected energization” of equipment they are servicing, which can release hazardous energy, including electricity from energization or mechanical energy from movement. The standard requires that machines or equipment be de-energized and locked or tagged-out by the worker performing the maintenance before the work is performed to prevent unplanned energization.
OSHA currently maintains the standard’s original intent was to protect workers from the release of hazardous energy from any startup during servicing, unexpected or not, and that employers would be liable for injuries under the standard in either case. In the proposed rule, OSHA presents legal case decisions to support the current interpretation, but the precedent isn’t clear because the decisions didn’t hinge upon how the word “unexpected” affects applicability. But, some decisions have clearly rejected the argument that the standard applies in cases where alternatives to LOTO, such as automated machine controls, were used to eliminate potential for unexpected energization. In one case (Reich v. General Motors Corp., Delco Chassis), both OSHRC and the US Court of Appeals for the Sixth Circuit rejected OSHA's broader interpretation of the LOTO Standard, saying it did not apply where startup procedures, such as time-delays, audible/visual warnings or multi-step activation processes, alerted workers servicing equipment to energization because startup was not “unexpected.”
OSHA’s proposed change
In its proposed revision of the LOTO Standard, OSHA states its belief that the GMC Delco decision misconstrued the term “unexpected” by allowing employers to use warning and delay systems as alternatives to LOTO procedures. OSHA also maintains these alternatives place a burden on exposed employees to recognize the warning and escape injury instead of removing the risk altogether by isolating machines from their energy sources during servicing.
As a result, the agency has proposed removing the term “unexpected,” amending the standard to what it claims to be the original and intended interpretation, making it applicable to all equipment servicing activities where there are energization, startup or stored energy hazards. According to OSHA, this change will improve protection of workers by taking the burden off of employees to avoid hazards by identifying alarms or stages in a multistep startup process.
Furthermore, the agency states that the GMC Delco decision necessitates case-by-case assessments of various warning schemes to determine the applicability of the LOTO Standard. While it has provided its compliance officers with 11 different factors to evaluate and determine whether particular warning devices are adequate and reliable enough to allow employees to escape all types of hazardous energy in any circumstance, the situation still creates a degree of uncertainty about the standard’s applicability.
It is currently unclear when or even if the proposed rule will be finalized, as it has been criticized for extending beyond the reach of a typical standards improvement measure. Critics argue that the proposed change constitutes a significant new rulemaking since it expands the interpretation of the LOTO standard, is contrary to relevant legal precedent and would greatly increase the cost to industry. They also argue that this expansion overlooks the reasoning and effort behind implementation of alarm systems and other mechanisms to prevent employee exposure to hazards during startup. OSHA is allowed to broaden the scope of its LOTO standard, they conclude, but only by following proper notice and comment requirements under rulemaking procedures within the Administrative Procedures Act, thus recognizing the significant change in applicability this interpretation represents.
What employers can do
Even if the future of the proposed rule is uncertain, it does show that OSHA is placing increased emphasis on the importance of LOTO procedures. Now would be a good time to review current written LOTO procedures and make sure they outline critical safety steps to identify and isolate all forms of hazardous energy an employee may be exposed to during startup, including electrical, mechanical, thermal, hydraulic and pneumatic. It’s also a good time to confirm LOTO procedures are in place for any and all servicing and repair activities. Keep in mind that LOTO procedures must be specific to the job, rather than to the machine itself, and must address all hazards, even those that might occur if the worker only locks out part of the equipment. Perhaps most importantly, employees must be trained on these procedures, and training must be documented. While the fate of the proposed rule remains to be seen, a focus on better LOTO procedures will greatly enhance employee safety and help reinforce a proactive EHS culture rooted in injury prevention.