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.

A good way to understand the differences between federal and state OSHA is to look at how California has adapted and changed their version of the lockout/ tagout regulation. Cal-OSHA Title 8 Section 3314 (Cal-OSHA reference to lockout/tagout) differs from the federal standard in these ways:

•Cal-OSHA clearly states that employers must have written, machinespecific lockout/tagout procedures. (Reference Title 8 Section 3314(g).)The stated intent is to disallow “generic or boiler-plate” programs and procedures. The federal regulation 1910.147 doesn’t mention machine-specific procedures (although it’s the intent), so some companies have been led to believe that they are not required. Federal OSHA released a directive in February 2008 that addresses machine-specific as the minimum requirement and allows federal OSHA agents to more easily issue citations when machine-specific procedures are not present or adequate.

• Cal-OSHA clarifies that you cannot use interlocks as lockout. The federal standard doesn’t allow interlocks as equivalent lockout protection either, but isn’t as clear, which leads to some companies trying to utilized a “softlock” or PLC lockout for convenience. This is not in compliance with federal OSHA or any state-run OSHA.

• Cal-OSHA more clearly defines the exception for use of lockout/tagout when performing “minor, routine and repetitive maintenance” in parts T8 S3314 3-(f). The federal standard offers vague definitions of what is minor, routine and repetitive, which some say does not give employers enough guidance, causing them to inadvertently break the law.

Cal-OSHA allows for personally identifiable locks to be used alone, rather than with a lock and a tag. The federal standard allows for this through letters of interpretation, but this isn’t as clearly defined and can lead to confusion during a federal OSHA audit.

The Best Option

State plan regulations regarding lockout/ tagout programs contain more clearly defined rules, which have been developed through adaptation to workplace needs and years of interpretation of the federal standard. Despite all of the minor differences, the basic foundation for what is required to comply with lockout/tagout remains very similar.

Here’s a simple rundown of how to comply with both the federal lockout/ tagout regulation CFR 1910.147 and any equivalent state-run programs:

Corporate policy – Define your authorized, affected and “all others” staff. Define your audit frequency (at least annually) and scope. Use this policy as the brains of the lockout/tagout program to convey how the company wants authorized and affected employees to utilize and enforce lockout/tagout.

Machine-specific procedures – Don’t even think of trying to find a loophole out of this one. Too many companies waste time and energy trying to get away with the bare minimum when it would have been easier and less costly to do what OSHA requires. Create a machine-specific procedure for every piece of equipment in your facility and post that procedure at the point of use. This not only will ensure compliance, but also encourages the authorized employees to follow it when they are locking out the equipment.

Training – Provide training to both authorized and affected employees. The training should be tailored to each group and your company’s specific needs. Authorized employees are those who are applying the locks and affected employees are those in the area during a lockout, such as operators.

Locks and devices – Purchase locks and devices that are specific for lockout/tagout to discourage employees from using them for other purposes, like locking their toolbox (which can lead to an OSHA citation). If your facility is large, use multiple device stations to ensure the authorized employees always have the necessary devices conveniently located nearby.

Annual audits – Don’t wait for the year-end deadline to audit your entire program. Perform quarterly audits, where 25 percent of the procedures and a random sampling of authorized employees are reviewed. This will ensure the authorized employees stay alert and continually apply lockout/tagout properly throughout the year. Be sure to keep all of the data collected during the audit as proof that you are compliant should you be audited.

The five elements for lockout/tagout compliance may be too much for some companies to properly implement and maintain with in-house resources, which may be one reason lockout/tagout remains the No. 1 mostcited regulation for the manufacturing industry and costs U.S. companies nearly $8 million every year in fines.

Depending on the size and needs of your company, it may be beneficial to consider outsourcing all or part of your program to an engineering firm that specializes in lockout/tagout compliance. Using a third-party service also will ensure non-biased reviews are conducted during the audits. Properly executed audits will ensure your program improves over time, ensure your company avoids OSHA lockout/tagout fines and, most importantly, prevent accidents and injuries.

Jimi Michalscheck is vice president, project management, for ESC Services Inc.