On August 17, 2022, Aaron R. Gelb and special guest, Tabitha Thompson, presented a webinar regarding A Deep Dive Into Periodic Lockout/Tagout Inspections.
Year in and year out, OSHA’s Lockout/Tagout (Energy Control) standard is one of the most frequently cited standards. With the National Emphasis Program on Amputations continuing in 2022, employers are subject to inspections focusing on their LOTO programs and practices even if there are no serious injuries or complaints made about them. With increased scrutiny comes a greater risk of citations—particularly repeat violations—which can lead to employers being placed in OSHA’s Severe Violator Enforcement Program. Despite being such an important standard, OSHA’s LOTO rule continues to be one of the least understood. This webinar took a deep dive into arguably one of the most confusing (not to mention, one of the most frequently cited) aspects of the LOTO rule – periodic inspections.
Earlier this year, in April, OSHA launched a Local Emphasis Program (LEP) in Wisconsin focused on food manufacturers. This LEP reflects the agency’s ongoing efforts to ramp up targeted enforcement efforts and follows Regional Emphasis Programs (REP) initiated in Region V last year focusing on exposure to noise hazards (June 2021) and transportation tank cleaning operations (August 2021), as well as the National Emphasis Program (NEP) on outdoor and indoor heat-related hazards which started in April 2022. General industry employers in Region 5 still have to contend with the 2018 Powered Industrial Truck (PIT) Local Emphasis Program as well. Meanwhile, we have been told to expect a similar LEP targeting Illinois food manufacturers, with the primary difference being the NAICS Codes on which that LEP will focus. While we have not yet seen the Illinois LEP targeting food processing establishments, we expect both programs will involve an inspection and review of production operations and working conditions; injury and illness records; safety and health programs; and hazardous energy control methods to identify and correct workplace hazards at all applicable inspection sites.
Why Is OSHA Targeting the Food Manufacturing Industry?
After examining data from the Bureau of Labor Statistics (BLS) for Wisconsin employers with a primary North American Industry Classification (NAICS) code in the 311xxx range, OSHA determined that food manufacturing industry injuries occurred at higher rates than found in other sectors. In OSHA’s view, the data demonstrates higher rates of total reportable cases; cases involving days away from work, job restriction or transfers, fractures, amputations, cuts, lacerations, punctures, heat burns, chemical burns, and corrosions. As such, OSHA’s stated goal in launching this LEP is to encourage employers to identify, reduce, and eliminate hazards associated with exposure to machine hazards during production activities and off-shift sanitation, service, and maintenance tasks.
Year in and year out, OSHA’s Lockout/Tagout (Energy Control) standard is one of the most frequently cited standards. With the National Emphasis Program on Amputations continuing in 2022, employers are subject to inspections focusing on their LOTO programs and practices even if there are no serious injuries or complaints made about them. With increased scrutiny comes a greater risk of citations—particularly repeat violations—which can lead to employers being placed in OSHA’s Severe Violator Enforcement Program. Despite being such an important standard, OSHA’s LOTO rule continues to be one of the least understood. This webinar will take a deep dive into arguably one of the most confusing (not to mention, one of the most frequently cited) aspects of the LOTO rule – periodic inspections.
ANNOUNCING CONN MACIEL CAREY’S
2022 OSHA WEBINAR SERIES
A full year into the Biden Administration, the senior leadership team at federal OSHA is set, the agency’s new regulatory agenda has been revealed, and the enforcement landscape has begun to take shape, revealing a dramatic shift in priorities, including stronger enforcement, higher budgets and more robust policies protecting workers, and a renewed focus on new rulemaking. Following an Administration that never installed an Assistant Secretary of Labor for OSHA, relied almost exclusively on the General Duty Clause to enforce COVID-19 safety measures, drastically curtailed rulemaking, and declined to issue an emergency COVID-19 standard, the pendulum swing at OSHA has already been more pronounced than during past transitions. Accordingly, it is more important now than ever before for employers to stay attuned to developments at OSHA.
Conn Maciel Carey LLP’s complimentary 2022 OSHA Webinar Series, which includes monthly programs (sometimes more often, if events warrant) put on by the OSHA-focused attorneys in the firm’s national OSHA Practice Group, is designed to give employers insight into developments at OSHA during this period of unpredictability and significant change.
To register for an individual webinar in the series, click on the link in the program description below, or to register for the entire 2022 series, click here to send us an email request so we can get you registered. If you missed any of our programs over the past seven years of our annual OSHA Webinar Series, here is a link to a library of webinar recordings. If your organization or association would benefit from an exclusive program presented by our team on any of the subjects in this year’s webinar series or any other important OSHA-related topic, please do not hesitate to contact us.
After years awaiting the fate of OSHA’s controversial proposed change to write the term “unexpected energization” out of its Lockout/Tagout (“LOTO”) standard, OSHA just announced its new Final Rule of Phase IV of the Standards Improvement Project (“SIP”). The SIP process was designed to allow OSHA a simplified rulemaking path to make non-controversial changes to fix minor issues with existing standards. The SIP IV proposal included numerous minor adjustments to a variety of existing OSHA standards, but one seemingly major change to the LOTO standard. Specifically, the Obama Administration’s OSHA slipped into SIP IV a controversial proposal to revise the scope provision of the LOTO standard to remove the term “unexpected energization” as a prerequisite for the requirements of the LOTO standard to kick-in. After an outcry by the regulated community, this proposed change to the LOTO standard was removed from the Final Rule. However, OSHA signaled it will likely re-visit the issue again in a separate LOTO rulemaking.
History of Standards Improvement Project
OSHA initiated the “Standards Improvement Project” (SIP) during the Clinton Administration, and and there have been a series of four SIP rulemakings since. The Project was intended to allow OSHA to efficiently make non-controversial changes to confusing, outdated, or duplicative elements of OSHA standards and to to align standards across industries and make it easier for employers to understand and comply with safety and health regulations. Continue reading →
[Part 1]: 5 reasons it is critical for employers to ensure compliance with OSHA’s LOTO Standard; and
[Part 2]: 5 common mistakes employers make implementing LOTO requirements.
Part 1 Summary: Five Reasons it is Critical to Get LOTO Right
As we discussed in Part 1 of this two-part article, there are five important OSHA enforcement reasons why it is vital for employers to truly grasp OSHA’s regulatory requirements for lockout/tagout (LOTO) and implement them.
Those 5 reasons are:
Amputation Injuries Create Special Reporting Obligations
LOTO Citations are Low Hanging Fruit for OSHA
OSHA is Actively Pursuing LOTO Violations with a National Emphasis Program
LOTO Violations Qualify for the Severe Violator Enforcement Program
LOTO Violations are Among the Most Used for OSH Act Criminal Prosecutions
For a detailed discussion about those reasons, check out Part 1 of this two-part article.
Part 2: Five Common LOTO Mistakes
This part details the five most common mistakes and misunderstandings associated with OSHA’s regulatory requirements for LOTO.
1. Confusion about When the LOTO Standard Applies
Normal production operations are not covered by the LOTO standard. Rather, the requirements of OSHA’s LOTO standard kick in during servicing and/or maintenance, or any production activity that requires an employee to remove or bypass a guard or other safety device, or if an employee is required to place any part of his or her body into an area on a machine or piece of equipment where work is performed upon the material being processed. Otherwise, the employer is expected to install and maintain appropriate guards that protect employees as required by 1910.212, OSHA’s machine guarding standard.
While the LOTO and machine guarding standards tend to complement each other—one protects employees during normal production operations (guarding), while the other protects employees during servicing or maintenance (LOTO). Technically, OSHA may not cite the Continue reading →
[Part 1]: Five reasons it is critical for employers to ensure compliance with OSHA’s LOTO Standard; and
[Part 2]: Five common mistakes employers make when implementing the LOTO requirements.
Part 1: Why it is Critical for Employers to Get LOTO Right
The list could be much longer, but we have identified five enforcement-related reasons why it is particularly important for employers to fully grasp OSHA’s LOTO requirements and to implement them effectively.
Before we get to the enforcement reasons for strict LOTO compliance, let’s first note that the associated hazards that LOTO was designed to protect against are serious and frequently realized. Workers performing service or maintenance on machinery face the risk of serious injuries and even death, if hazardous energy is not properly controlled. The most common types of injuries from unexpected energization during maintenance are amputations or lacerations to body parts, as well as electrocutions, burns, and crushing/struck-by.
OSHA reports that “craft workers, electricians, machine operators, and laborers are among the 3 million workers who service equipment routinely and face the greatest risk of injury. Workers injured on the job from exposure to hazardous energy lose an average of 24 workdays for recuperation.” OSHA also explains that the failure to control hazardous energy accounts for 10% of the serious accidents in most industries.
While employers should never lose focus from that important safety reason to focus on LOTO, the purpose of this article is to address the numerous regulatory enforcement reasons that getting LOTO right is uniquely important.
1. Amputation Injuries Create Special Reporting Obligations
Amputations, which is one of the primary hazards intended to be addressed by effective LOTO, is one of the only specific injury types for which there is a special duty for employers to proactively to report to OSHA. Continue reading →
OSHA’s Lockout/Tagout (Energy Control) Standard is always one of OSHA’s most frequently cited standards, and now, with the “Amputations National Emphasis Program” raging on into 2018, as well as LOTO violations continuing to be considered “high emphasis hazards” to qualify employers into the dreaded Severe Violator Enforcement Program, it is critical for employers to get Lockout/Tagout right. While LOTO continues to be an important standard, it also continues to be one of the least understood standards. This webinar will highlight the Top 10 most misunderstand and frequently cited aspects of the LOTO rule, and forecast some potential changes to the rule and OSHA’s enforcement of it.
President Trump was carried to the White House on promises (or threats) of rolling back government regulations. At the CPAC conference this year, Pres. Trump’s Sr. Policy Advisor, Steve Bannon, framed Pres. Trump’s agenda with the phrase: “deconstruction of the administrative state,” meaning the system of regulations the President believes have stymied economic growth. OSHA regulations are apparently at the heart of this deconstruction. Now, only half a year into the Trump Administration, we have seen significant changes to the OSHA regulatory landscape, from the Congressional Review Act repeal of Obama-era midnight rules, to a budget proposal that could shrink OSHA’s enforcement efforts and prioritize compliance assistance, to a series of Executive Orders that shift OSHA to a business friendly regulatory philosophy.
And now, the Trump Administration has issued its first “Unified Agenda of Regulatory and Deregulatory Actions,” and the path to “deconstruction of the administrative state” is clearer. The spring Unified Regulatory Agenda explains what agencies like OSHA and EPA will undertake on the rulemaking front, and the shift in the Dept. of Labor’s regulatory agenda for rules and standards affecting workplace safety is more pronounced than ever. The new Regulatory Agenda places a bevy of Obama-era regulatory priorities out in the cold. Among them, new standards to address infectious diseases in healthcare, various chemical exposures, and other broad-based initiatives have been canceled or placed on the regulatory back burner.
Here’s a breakdown of what Pres. Trump’s first Regulatory Agenda reveals about OSHA’s future plans:
Controversial Rules Off the Table
To the relief of industry advocates who spent years wringing their hands over OSHA’s aggressive rulemaking agenda during the Obama Administration, the new Administration put many of the Agency’s previous plans on ice. This set of rules will not see further action for years.
For example, a comprehensive rule addressing combustible dust, which has been in the works for nearly a decade, is off the table. This rulemaking was spurred by a recommendation from the U.S. Chemical Safety & Hazard Investigation Board, and was pursued by top officials in the Obama-era OSHA. The Trump Administration has removed it from the Regulatory Agenda.
Here are some of the higher profile OSHA rulemaking efforts that are now effectively dead in the water: Continue reading →
OSHA initiated a “Standards Improvement Project” (SIP) under the Clinton Admin. to make non-controversial changes to confusing, outdated or duplicative OSHA standards. There have been a series of SIP rulemakings since, culminating in SIP Phase IV, published by Obama’s OSHA late in 2016, which proposes numerous revisions to existing standards, including a change to OSHA’s Lockout/Tagout (LOTO) standard that is hardly non-controversial. Specifically, OSHA is attempting to use SIP to undo a judicial interpretation of “unexpected energization” that OSHA does not support; reading “unexpected” right out of the standard.
What Trump’s OSHA does with the LOTO proposal specifically is a mystery, but what is more important is Trump’s recent actions to address the “regulatory state,” which appear to put SIP on steroids. Trump has long stated that over-regulation is hampering America’s economic growth, and plans for decreasing regulations have been a high priority in his 100-day action plan. Trump and Congressional Republicans have made heavy use of the obscure “Congressional Review Act” to permanently repeal numerous Obama-era regulations. The President has also signed a “2-for-1” Executive Order that requires federal agencies to cut two existing regulations for every new regulation they implement, and another Executive Order directing federal agencies to create “regulatory reform” Task Forces to evaluate federal rules and recommend whether to keep, repeal or change them. Trump intends for these task forces to reduce what it deems expensive or unnecessary rules. OSHA rules may be on the chopping block.
Participants in this webinar learned about:
The origins and intent of the Standards Improvement Project
A controversial proposal to remove “unexpected energization” from OSHA’s LOTO Standard
Use of the Congressional Review Act to repeal numerous Obama-era regulations
Pres. Trump’s executive orders designed to slash regulations
Other steps by the Trump Admin. to “Dismantle the Regulatory State”