Could There Be Lockout-Tagout Changes on the Horizon?

OSHA may be planning to explore alternative methods of ensuring workers are protected from sources of hazardous energy (chemical, electrical, hydraulic, mechanical, pneumatic, thermal, and others). OSHA announced plans in the Department of Labor’s (DOL) most recent agenda of regulatory and deregulatory actions to issue a pre-rule request for information (RFI) on alternatives to its existing lockout-tagout standard.

There are computer-based controls now available that may be effective in protecting workers but that don’t meet the requirements of the existing OSHA lockout-tagout standard. The agency plans to publish an RFI on the strengths and limitations of this new technology and any potential hazards.

Equipment manufacturers have increasingly incorporated computer-based controls into their designs. There also are industry consensus and international standards that recognize and accept the adoption of such technology for safeguarding workers.

Yet the OSHA standard has not kept pace with technological advancements.

“Old School” Lockout/Tagout

The traditional control measures to prevent the unexpected startup of machinery being serviced have been physical locks and tags (lockout/tagout) that can only be removed by “authorized employees” who have received special training.

The lockout/tagout standard (29 CFR 1910.147) was the fifth most frequently cited OSHA standard in fiscal year (FY) 2018. It usually is among the top ten most cited standards and typically in the top five.

OSHA’s lockout/tagout standard was issued in 1989 and is based primarily on an existing industry standard. The American National Standards Institute (ANSI)/American Society of Safety Engineers (ASSE) Z244.1 Lockout Standard was published in 1982. The ANSI/ASSE standard has been updated every five years since to reflect technological advances in controlling machinery and hazardous energy, while OSHA’s lockout/tagout standard has mostly remained static since 1989.

Existing Standard Becoming an Issue

While the technology for protecting workers from machinery shut down for service or hazardous energy has advanced, OSHA’s standard has not kept up with these changes. In its latest regulatory agenda notice, the agency acknowledged that it has recently seen an increase in requests for variances from the lockout-tagout standard for these alternative controls.

While OSHA has not updated the lockout-tagout standard to include approval for computer-based safety devices, regulators in other nations have.

The existing standard creates problems for manufacturers who want to incorporate sensors in equipment and machinery for sale in the United States, as well as, elsewhere. The standard also limits the choices available to U.S. employers who wish to take advantage of the latest technology.

No, No, No

The regulated community has looked to OSHA both for guidance and flexibility. For instance, on November 11, 2011, a safety consultant wrote the agency asking whether light-emitting-diode sensors confirming equipment deenergization would satisfy the lockout-tagout standard. In its response, the agency told the safety consultant that LED sensors could not be used to satisfy a number of requirements such as:

• Verifying that the isolation and deenergization of a machine or piece of equipment have been accomplished;
• The requirement for a “qualified person” to test equipment and verify deenergization;
• As an alternative method of verifying deenergization.

To each of the consultant’s requests for flexibility, the agency answered “no” in its standard interpretation letter.

The agency so far has not revised the lockout-tagout standard to reflect updates to ANSI Z244.1 or incorporated the revised consensus standard by reference. OSHA previously has claimed that parts of the revised industry standard do not provide protections to workers as effective as those in the federal standard.

If OSHA were to revisit this position through revisions to the lockout/tagout standard, it could give employers a greater variety of options for protecting their workers.

“Unexpected” Change

On the other hand, some lawyers and consultants interpret OSHA’s plans for the lockout/tagout standard differently. Blog posts on their websites include headlines like:

• “Deleting a single word in OSHA standard could upend lockout/tagout;”
• “What the new lockout/tagout revision could mean for you;” and
• “Why Did OSHA Propose to Remove the Principle of ‘Unexpected Energization’ from its Lockout/Tagout Standard?”

What is this supposedly monumental lockout-tagout rulemaking? It was a push by the previous administration to deal with what it thought was a misinterpretation of the original standard. It sought to reverse a defeat suffered 20 years earlier during the Clinton Administration.

Late Obama Administration Move

On October 4, 2016, OSHA proposed removing a single word—unexpected—from the lockout-tagout standard.

The existing standard starts off by defining its scope:
“This standard covers the servicing and maintenance of machines and equipment in which the unexpected energization or start up of the machines or equipment, or release of stored energy, could harm employees” (29 CFR 1910.147(a)(1)(i)).

The agency proposed removing the word “unexpected” from sub-paragraph (a)(1)(i) and elsewhere in the standard as part of its Standards Improvement Project (SIP).

The agency wanted to remove “unexpected” from the standard because it felt the language had been misinterpreted in a number of legal decisions.

GMC Delco

In the most famous case, involving General Motors Corporation and its Delco Chassis Division, the Occupational Safety and Health Review Commission (OSHRC) ruled against OSHA’s citing of GMC Delco for violations of the lockout/tagout standard.

In this incident, workers were servicing machines that required following an eight-to-twelve-step startup procedure. Startup of the machinery was signaled by audible and visual warnings.

The review commission ruled that, because the machinery was equipped with warning signals before starting up, that startup could not be considered “unexpected.”

The Clinton administration appealed the OSHRC’s decision, and Labor Secretary Robert Reich lost his case in the U.S. 6th Circuit Court of Appeals. The appeals judges sided with the OSHRC, dismissing Reich’s challenge.

Obama DOL Move

In the waning days of the Obama administration, the Department of Labor tucked the proposed change to the lockout-tagout standard into a SIP rulemaking. It would be part of the fourth SIP rulemaking.

The SIP rulemakings usually are reserved for easing the regulatory burdens on employers. These rulemakings most often incorporate industry consensus standards by reference or adjust existing standards to more closely conform to industry consensus or international standards.

The proposed lockout-tagout change was unlike any other SIP proposal and was met almost immediately with objections from employers and employers’ representatives.

The U.S. Chamber of Commerce filed a comment, objecting that removing the word “unexpected” would change employers’ duties under the standard. It also said the legislative history of the Occupational Safety and Health Act did not support such a change.

The SIP Phase IV rulemaking was listed on the Labor Department’s latest list of planned regulatory and deregulatory actions in the Final Rule phase. However, it is unknown whether the lockout/tagout revisions are still included.

Although the SIP Phase IV agenda notice still contains references to changes to General Industry standards (29 CFR 1910), which could include the lockout/tagout standard, the notice states that most of the revisions impact construction regulations.

The rulemaking is described as addressing:

• Removing unnecessary provisions, reducing burdens of paperwork;
• Removing requirements that employers include an employee’s social security number on exposure monitoring, medical surveillance, and other records; and
• Reducing the number of necessary employee x-rays and elimination of posting requirements for residential construction employers.

Status of the “Unexpected” Rulemaking

Is the rulemaking to remove “unexpected” from the wording of the lockout-tagout standard still planned for 2019? It’s possible, though not certain.

It would be surprising if a Trump administration Department of Labor chose to burden employers with onerous new lockout-tagout requirements. It also is unlikely regulators could sneak such a change into the Code of Federal Regulations, eluding the watchful eye of the White House Office of Information and Regulatory Affairs.

However, OSHA has not taken the step back from enforcement that many expected under the current administration. Without a permanent Trump-appointed OSHA head in place, the administration has not shifted agency priorities in the same way it has elsewhere.

A Modern-Day Lockout/Tagout Standard

What is less controversial, though still likely to be several years away, is a lockout/tagout standard that recognizes the technological advances of the past 30 years.

There has been rapid advancement in sensor technology. For example, Amazon is reportedly testing sensor vests to prevent robots from striking or colliding with human workers. Lockout-tagout and other standards need to accommodate such advances in safety technology.

In the meantime, employers should ensure their current lockout-tagout procedures and programs are fully compliant with the existing standard.

Employers should:

• Develop and implement a written program for controlling hazardous energy, including lockout-tagout procedures, employee training, and inspections;
• Provide training on methods of energy isolation and control to production workers, as well as maintenance workers;
• Ensure that workers receive training in their primary language;
• Clearly label isolation devices, such as breaker panels and control valves; and
• Provide workers with a sufficient number of lockouts, tagouts, and any other necessary hardware.