OSHA’s proposed amendments to its Cranes and Derricks in Construction: Operator Qualification standard (May 21, 2018, Federal Register (FR)) contains what some employers seem to be interpreting as two contradictory positions. The proposal adds a requirement that employers must conduct evaluations to ensure that the equipment operator possesses “the skills, knowledge, and judgment necessary to operate the equipment safely.” The proposal goes on to list the required components of the evaluation, plus other requirements applicable to the evaluator, documentation of the evaluation, and when reevaluation is required. What has perplexed some who have commented on the proposal rule is that OSHA has decided to dictate the specific contents of the evaluation based on its observations of what employers are already doing and have been doing for some time.
“This proposed rule is based on extensive feedback received from the construction industry, which can be found in the docket, who informed OSHA that merely ensuring crane operators are certified does not verify that certified operators have sufficient crane knowledge and operating skills to safely perform crane operations at construction sites,” stated OSHA. “OSHA heard testimony and collected other evidence that indicates an employer’s evaluation of a crane operator’s experience and competency is essential to ensuring the safe operation of cranes on construction sites.”
General Duty Not Enough
According to OSHA, a recommendation made by its Advisory Committee for Construction Safety and Health (ACCSH) contained language on evaluations, which OSHA decided lacked “sufficient specifics.”
Likewise, OSHA believes that the Occupational Safety and Health Act’s (OSH Act) General Duty Clause does not provide employers with the criteria an operator must meet to be considered competent. “Nor does it explicitly require the employer to take any specific step to ‘qualify’ operators (i.e., it can be argued that under the existing standard an evaluation is only triggered if the employer determines retraining to be required),” said OSHA.
Employers Now Meeting Their Obligations
The evaluation requirements prompted a mixed response from the Specialized Carriers and Rigging Association (SC&RA). The association says it represents 1,300 members worldwide, who “are involved in specialized transportation, machinery moving and erecting, industrial maintenance, millwrighting and crane and rigging operations, manufacturing and rental.”
In its comment letter, the SC&RA states that it supports most of OSHA’s proposed revisions, including the requirementthat employersevaluate the competency of operators and operators in training. But specifying how that requirement must be conducted and what it must comprise is another matter.
“SC&RA does not support a prescriptive list by which employers must evaluate their operators nor do we support the requirement for independent third-party evaluations,” said the SC&RA. “It has always been, and will continue to be, an employer’s ongoing duty, responsibility, and obligation to train and qualify their employees. There is no supporting evidence indicating employers are not fulfilling their obligations to train and evaluate their operators for the cranes to which they are assigned. As such, there is no need for further clarification, requirements or language.”
The SC&RA also noted the work completed by the ACCSH.
“SC&RA strongly encourages OSHA to reconsider ACCSH’s unanimous recommendation to the Agency during their March 31, 2015 meeting ‘that OSHA use the text submitted by William Smith as a substitute for the draft language on evaluation in the proposed text.’ The text submitted was based on the Cranes and Derricks in Construction Standard which was promulgated in 2010:
“The employer must ensure that operators of equipment covered by this standard meet the definition of a qualified* person to operate the equipment safely. *Changed ‘competent’ to ‘qualified’.”
“It’s important to recognize these changes were developed by the Coalition for Crane Operator Safety, a group of national labor, construction management, equipment manufacturers and distributors, insurance underwriters, and accredited certification organizations,” states the SC&RA.