Many other uncertainties about the exception plague its application in the real world. What about quickly re-programming a computer-driven machine so that it can make a different part for a different customer or product line? Isn't that a “minor … adjustment?” Would interrupting production to do that for 30 seconds take one out of “normal production operations.” What about five minutes of programming time? And what does the amount of down time have to do with safety anyway? Who cares what the delay is? The exception is so badly written that the gap between its words and real-world rationality creates an unbridgeable compliance nightmare.

And what does the exception mean by “alternative measures” that provide “effective” protection? Some OSHA inspectors think that because the parenthetical statement “(See Subpart O of this Part)” immediately follows the phrase “effective protection,” alternative measures are not “effective” unless they meet Subpart O's machine guarding requirements. That is not true.

The preamble to the final version of the Lockout Standard states that the requirement for effective alternative protection will only “generally” involve compliance with those machine guarding requirements. Moreover, the exception used the equivocal statement that the employer should “see” Subpart O, not “comply” with Subpart O. It seems obvious that OSHA must have written the exception and its preamble this way because minor servicing often requires an employee to reach around or move a barrier guard out of the way. For example, one cannot replace a drill bit in a chuck of a drill press with a barrier guard in place.

This leaves the employers to find guidance from only the word “effective,” which is so subjective that it could mean anything. Suppose the operator is the only employee near the machine while the drill bit or die block is being replaced? Would his immediate watchful presence be “effective?” Wouldn't it prevent an “unexpected” restart? Would turning off the power and hanging a “Do Not Start” tag on the switch be “effective?” What about die blocks between rams of mechanical power presses? Suppose they have “Do Not Remove” tags on them? What about relying on a machine interlock? A light curtain? The standard leaves employers at sea on all these common questions.

And this raises another issue: Interlocks and light curtains often rely on control circuitry. OSHA inspectors are taught that to be “effective,” the control circuitry of interlocks and light curtains must be “dual channel.” That redundancy requirement appears nowhere in the Lockout Standard or in Subpart O's machine guarding standards. Not even OSHA's most sophisticated machine guarding standard, §1910.217 on mechanical power presses, requires it. Moreover, although OSHA's drafting model for its Lockout Standard, ANSI Z244.1-1982, mentioned “specially designed control circuits” in ANSI's version of the minor servicing exception, OSHA omitted that language from the Lockout Standard. By what right does OSHA read it back in?

Dodging Vagueness

As discussed above, crucial terms in the Minor Servicing Exception are quite amorphous, including “minor” and “effective.” Are they so amorphous as to violate the constitutional ban on vagueness?

In Dayton Tire, 23 BNA OSHC 1247, 1250 (OSHRC 2010), the employer made just that argument. Although the review commission rejected it, nothing in its opinion came to grips with the real-world problem rightly raised there; that the Lockout Standard gives employers no notice of what is “minor” or “effective.”

The commission started its discussion with an irrelevancy – that the words “minor” and “effective” are “necessarily broad enough to cover the myriad servicing activities to which” they might apply. Yes, that is true, but it is irrelevant if those words fail to give fair notice of what they mean.

The commission then wrote that “a reasonable employer in the tire manufacturing industry could determine what constitutes ‘effective' alternative protection, given that the [Standard's] stated purpose … is to prevent injury” from unexpected startup. So, we are told, “effective” is not vague because it is unequivocal: It commands one to prevent injury, period.

That sounds good until you think about it. The commission's reasoning boils down to an assertion that the exception is not vague because it requires perfection. But that ignores holdings by the Supreme Court that OSH Act standards may not require protection at all costs and regardless of risk. Alternative measures must be permissible even if they are less than perfect, and it is OSHA's job to give employers fair notice of what those permissible alternatives are or how to determine what they are.

The last piece of reasoning used by the commission in rejecting the employer's vagueness argument was that to state the “alternative” measures it requires, the exception cross-references the machine guarding standards in Subpart O. That would be a logical point if the exception expressly required that alternative measures “comply with” Subpart O. But as discussed above, that is not what the exception says. It instead used the equivocal statement that the employer should “see” Subpart O.

The commission also seemed unaware that the standard's preamble said that alternative measures would only “generally” be Subpart O-compliant guarding. The commission seemed to lack a real-world appreciation of why OSHA likely equivocated on this point; that minor tool changes often require employees to reach around or move barrier guards.

The Occupational Safety and Health Review Commission has a difficult job to do, and it usually does it as well as can be reasonably expected. In the case of the Lockout Standard and its Minor Servicing Exception, however, the commission should re-examine its past pronouncements with a critical eye. EHS

Art Sapper is senior counsel to the Workplace Safety and Health Group of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Sapper is the former deputy general counsel of the Occupational Safety and Health Review Commission and a former professor of OSHA law at Georgetown University Law Center. He can be reached at art.sapper@ogletreedeakins.com and at 202-263-0270.