The OSHA Lockout Standard, 29 C.F.R. § 1910.147, is OSHA’s fourth-most cited standard. The standard, which was adopted in 1989, has not kept up with technological developments, however. It was based largely on a consensus standard adopted in 1982, which in turn reflected the technology of the mid-1970s. The standard also has provisions, such as the minor servicing exception and the ban on control circuitry, that make no sense today, and likely never made sense.
In May 2019, OSHA published in the Federal Register a “request for information” on how the standard might be improved. That development and others described below show that changes lie on the horizon. To understand them fully, however, one must know the case law that has developed involving the standard.
When Does the Lockout Standard Apply? The GM-Delco Decision
The Lockout Standard in paragraph (a)(1)(i) states that the standard applies only to “unexpected” startups of machinery. In the General Motors-Delco case, the Occupational Safety and Health Review Commission in 1995 and the United States Court of Appeals for the Sixth Circuit in 1996 held that the word “unexpected” must be literally applied. They held that the Lockout Standard would not apply if, for example, startup were preceded by an audible alarm or a long start-up sequence, thus making any start-up expected rather than unexpected.
An important consequence of the decision is that if the control circuitry used to trigger the alarm or govern the start-up sequence is reliable enough to prevent unexpected startup, the Standard does not apply in the first place—even though the Lockout Standard, when it does apply, generally forbids reliance on “control circuit type devices.”
OSHA greatly dislikes the GM-Delco decision. After OSHA lost before the Sixth Circuit, it wrote a compliance directive that construes the decision so narrowly as to almost never apply. It has not trained its inspectors to apply the decision and, as a practical matter, they ignore it. OSHA also believes that some later Commission decisions have subtly undermined GM-Delco.
Nevertheless, Commission judges continue to take the word “unexpected” seriously and to apply it. For example, in the 2015 Alro Steel case, Judge Baumerich vacated a citation because reliable control circuitry would have prevented startup. Similarly, in the 2018 Swisslog Logistics decision, Judge Calhoun vacated a citation because startups would be expected rather than unexpected. The lesson is: If you’re cited, don’t be afraid to rely on the word “unexpected.”
The Ban on Control Circuitry
Suppose the GM-Delco decision does not apply because an unexpected startup could occur. That means that the Lockout Standard’s general ban on control circuitry would generally apply. The ban is in the definition of “energy isolating device,” which states in part that, “Push buttons, selector switches and other control circuit type devices are not energy isolating devices.” (emphasis added) (Note that the ban does not apply if the minor servicing exception applies; that exception is discussed below.)
The reason for the ban, OSHA stated when it proposed the standard in 1988, was that devices using control circuitry “are not adequate in themselves to be considered energy isolating devices.” OSHA never explained in the preamble to either the proposed or final standard why control circuity is never “adequate.”
In 2008, OSHA in an interpretation letter implied (but did not outright state) that a kind of control circuitry called a programmable logic controller (PLC) “is presumed to be ineffective” as a lockout device because of “component failure, program errors, magnetic field interference, electrical surges, and improper use or maintenance.” But again OSHA failed to explain why it thought that these problems pertain to all control circuitry.
In fact, OSHA could never have explained it. Its general ban on control circuitry was always too broad. That the ban came to be unusually problem-ridden should, therefore, not have come as a surprise to OSHA.
We know that the ban was always too broad because the private standard that OSHA used as a drafting model for §1910.147 was to the contrary. The 1982 version of the ANSI lockout standard expressly permitted during “normal production operations, [the use] … of specially designed control circuits, control equipment, and operating procedures, that provide proven effective protection for the affected personnel.” OSHA’s version of the standard lacked that provision—without explanation.
The standard’s failure to distinguish reliable from unreliable control circuitry made for great waste and either did nothing for safety or detracted from it. For example:
• The ban reversed the usual hierarchy of controls. With the ban, the Lockout Standard prefers lockout (an administrative control, dependent on correct employee behavior) over control circuitry (an engineering control).
• The ban forced employers and employees to use lockout even when their real-world experience taught them it was unnecessary. This caused widespread resentment of the resulting regulatory overkill. The ban put employers to the choice of either being in violation or threatening their employees with discipline if they were to follow their common-sense experience and prefer control circuitry over lockout.
• The ban meant that machinery was unnecessarily being completely shut down and restarted, often repeatedly, resulting in greater wear. Worn-out machinery makes for more, not fewer, accidents.
Ironically, the GM-Delco decision, which OSHA so dislikes, pointed to a way out of the problem, as it sometimes permitted employers to use reliable control circuitry to entirely avoid the Lockout Standard—if employers could stomach the thought of being cited and paying lawyers to fight OSHA over whether the standard applies in the first place.
The 2016 Rulemaking Proposal to Delete “Unexpected”
In 2016, OSHA proposed to eliminate the word “unexpected” from the Lockout Standard. The proposal attracted an avalanche of adverse comments. In 2019, OSHA announced that it was neither withdrawing nor implementing the proposal. It stated:
[T]he GM-Delco decisions misconstrued … “unexpected”…. OSHA… acknowledges the overwhelming opposition to this change and agrees with the many comments that cited complications … due to technological advancements. Further, the AFL-CIO [proposed] … a path OSHA could follow to uphold the rigor of the proposed rule. … OSHA is not in a position at this time to make a final decision …. As a result, the agency will not finalize its proposal to remove the word “unexpected” … but will further consider this issue in light of the overall standard.
What is this “path” that the AFL-CIO proposed and why did it so impress OSHA? The “path” impressed OSHA because it was OSHA’s own idea. The AFL-CIO had taken its “path” verbatim from OSHA’s own compliance directive.
The “path” blazed by OSHA’s compliance directive was to use a verbal gimmick—to redefine “unexpected” into meaninglessness. It would redefine “unexpected” as, “Any energization or start-up that is not sanctioned (through the removal of personal LOTO devices) by each authorized employee engaged in the servicing and maintenance activity.”
How would this re-define “unexpected” so as to be meaningless? It would presume (contrary to fact) that lockout devices had been applied in the first place and that there had been a need for them—regardless of whether there had in fact been a need for them. To illustrate:
Suppose that a machine had been shut down using reliable control circuitry, or would give employees enough advance warning to avoid injury by, before any re-start, reliably sounding alarms or requiring a multi-step startup sequence (as in the GM-Delco case). Under those circumstances, lockout would not be required and locks would not have been applied in the first place. The suggested re-definition would ignore these facts and require locks anyway. It is disappointing that the Trump Administration allowed OSHA to publicly mention this sleight-of-hand favorably.
Employers should insist that the word “unexpected” be retained. It provides an easily-understood dividing line, grounded in the real world, between when lockout is and is not needed. It also provides employers an easily-understood and practical dividing line between the Lockout Standard and the machine-guarding standards. It is unfortunate that OSHA places more importance on making it easier to issue citations than providing rules that employers can respect and practically follow.
If a Democrat is elected to the White House in 2020, one can expect OSHA to revive its push to revoke or neuter the word “unexpected.” One can also expect that, no matter what happens in the election, any proposal on the word “unexpected” will be considered together with the next rulemaking development.
The 2019 Request for Information about Control Circuitry
On May 20, 2019, OSHA issued a request for information (RFI) on how the Lockout Standard could be “modernized” with respect to control circuit-type devices and robotics. OSHA stated: “[T]echnological advances since … 1989 suggest that, at least in some circumstances, control circuit type devices may be at least as safe as [energy isolating devices]. … Accordingly, OSHA is revisiting the … standard to consider whether to allow the use of control circuit type devices … for some tasks or under certain conditions.”
The irony of any future proposal permitting broader use of control circuitry would be great. It would mean that OSHA would, in effect, have at least partially acceded to GM-Delco without saying so.
OSHA’s RFI suggests, however, that any such proposal might well pose a severe problem for employers, i.e., excessive paperwork requirements to justify the use of control circuitry. The RFI noted that the ANSI standard’s 2016 edition requires lockout unless the employer “complete[s] a practicability/justification analysis, a risk assessment, and other applicable evaluations.” The 2016 ANSI standard uses ten pages to describe these analyses, assessments and evaluations. The RFI at Question 21 asks whether employers should be required to follow them before control circuitry may be used.
Although such paperwork requirements will provide full employment for safety managers and consultants, they will create a compliance nightmare for medium and small employers, and will provide a convenient citation mill for OSHA inspectors.
There is a more important problem with any such requirement, however: It would shift the burden of thought away from OSHA rulemakers and onto employers. Why should OSHA’s rulemaking staff do the hard work of figuring out criteria for the reliability of control circuitry if employers can be forced to do so instead?
The business community should demand that OSHA abandon its always-overbroad ban on control circuitry, and adopt a new rule, supported by evidence, stating criteria by which employers could determine whether control circuitry is too unreliable for use under the Lockout Standard. If OSHA fails to do so, and tries to foist upon employers the burden of determining criteria for the reliability of control circuitry, a complaint to the Office of Information and Regulatory Affairs, which is responsible to the White House, would be in order.
A Forthcoming Rulemaking Development: Revision of the Minor Servicing Exception? Or Its Elimination?
One of the most badly written and misunderstood provisions of the Lockout Standard is the so-called minor servicing exception. It states:
Minor tool changes and adjustments, and other minor servicing activities, … during normal production operations, are not covered by this standard if they are routine, repetitive and integral to the use of the equipment for production, provided that the work is performed using alternative measures which provide effective protection (See Subpart O of this Part).
One problem is that many employers overlook that the last part of the exception requires that employees be somehow protected from machine hazards during minor servicing. But that is not our present focus.
As I discussed in my previous EHS Today article, “The Need for a Critical Eye: The OSH Review Commission and the Lockout Standard’s Minor Servicing Exception” (May 2017), some OSHA inspectors and the Commission have misunderstood the phrase “normal production operations” in the first part of the exception.
Some inspectors think that, if a machine is turned off for a tool change, it is no longer engaged in “operation” or “production,” let alone “normal production.” And the Commission in the 1993 Westvaco decision seemed to agree. It found that adjusting shaft heads on a machine between customer orders is considered “setting up” and thus does not meet the exception.
That is absurd. That means that the only way to meet the exception would be, for example, to replace a tool bit while a chuck is still turning. Moreover, there is in the real world no clear distinction between tool changes and minor machine setup. So the exception could never practically apply to either.
Unfortunately, Commission judges had relied on Westvaco to find the minor servicing exception inapplicable. By June 2016, even OSHA realized this made no sense, so in a settlement, it agreed that “merely shutting off a machine (for example, to change a tool bit or blade) does not make the minor servicing exception inapplicable.”
What does this portend for the future of the minor servicing exception? Importantly, the latest version of ANZI Z244.1 eliminated the minor servicing exception entirely. Look for OSHA to propose something similar in a forthcoming rulemaking proposal, perhaps coupled with a proposal to expand the use of control circuitry.
Art Sapper is senior counsel to the Workplace Safety and Health Group of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (www.ogletree.com). He wrote the briefs in the GM-Delco case and achieved the settlement mentioned above. He is also 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 [email protected].