State vs. Federal OSHA – What’s the Difference When It Comes to Lockout/Tagout?

Lockout/tagout refers to the practice of properly shutting down equipment and applying locks in such a way to prevent unexpected re-energization while employees are servicing it. Over the last 5 years, the number of lockout/ tagout citations issued has increased, as has the average fine for a violation. The total lockout/tagout fine amount for all states and federal OSHA combined is $7.9 million ($4.4 million are federal OSHA citations and $3.5 million are state-issued citations). With such high fines, many companies are taking steps to ensure they’re in compliance with federal and state laws. Many of these employers are finding that compliance is much more complicated than they originally thought.

When companies struggle with OSHA lockout/tagout compliance, they often are confused with the differences between state and federal OSHA. Currently, 22 states and jurisdictions operate complete state plans and five cover only public employees. This has led to confusion for multi-state companies who are trying to create a one-size-fits-all lockout/tagout program. The good news is that it is possible to create such a program, but it’s important to understand the differences between state and federal OSHA.

California’s state plan is an example of how individual states can vary from federal standards. California is known for its high quantity of citations, significantly higher-than-average citation amounts and standards that require more than those issued by federal OSHA. The average lockout/tagout citation for both state and federal OSHA hovers around $1,250 per citation. California issues the most lockout/tagout citations (followed by Michigan, then Minnesota) and accumulates the highest amount of lockout/tagout fine amounts – nearly $1.8 million – roughly 30 percent of the national lockout /tagout fine amount. In 2009, California’s average lockout /tagout fine amount is more than double the national average – over $3,700 per citation.

Three Areas of Concern

The three most common areas of concern we hear about from companies working to comply with federal and state lockout/tagout regulations include:

• What is the need for a state OSHA if they are basing their regulations on the federal requirements?

• If you are an employer in one of the 22 states or territories that has its own state-run program, are you obligated by both federal and state OSHA or does one agency supersede the other?

•What are some differences between state and federal OSHA?

To answer these concerns, I had a conversation with several state and federal OSHA officers. Here is what they told me:

•State OSHA exists when a state decides that its workplaces require additional clarification and regulation to ensure employee safety. Federal OSHA encourages states to run their own programs, but only about 50 percent of the states choose to do so.

•Employers are required only to comply with the state-run program. If they are in a state that falls under federal OSHA’s jurisdiction, then they must comply with all federal regulations.

•State-run programs are required to at least meet minimum federal requirements. When a state implements its own program, it usually adopts the majority of the federal requirements verbatim. A state can adopt more stringent regulations than those required by federal OSHA if desired.

On Sept. 28, OSHA released a report that focuses on each state or territory’s ability to meet the minimum federal OSHA requirements. Both Nevada and Hawaii were said to have significant deficiencies in their programs. Hawaii OSHA’s response pointed blame at state budget cutbacks leaving that agency ill-equipped to meet the minimum requirements. As a protective measure, federal OSHA sent staff to help shore up the state programs temporarily and try to get them back on track. They also issued a warning to meet the needs of their states or federal OSHA would take over their programs.

Cal-OSHA versus Federal OSHA

Other states, like California, have managed their programs very well. Cal- OSHA has spent years developing lockout/tagout regulations and applied changes to their state program requiring elements that only are mentioned in letters of interpretation and federal directives, not the federal regulation itself. The most recent changes to California’s lockout/tagout regulation came Jan. 6, 2005, when Cal-OSHA simplified its ability to issue citations and instituted changes that helped employers fully understand the requirements.