Unlock the Mysteries of OSHA’s Lockout/Tagout Rule (PART 1 of 2 – Five Reasons to Get LOTO Right)

By Eric J. Conn and Aaron R. Gelb

For a host of reasons, it is vital for employers to get compliance with OSHA’s standard for the “control of hazardous energy (Lockout/Tagout)” (29 C.F.R. 1910.147) right, but it also happens to be one of the least understood and most often botched set of regulatory requirements in OSHA’s portfolio of standards.

This two-part article will lay out:

  • [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 Civil and Criminal Penalties on the Rise – [Feed & Grain Magazine]

The June/July 2016 issue of Feed & Grain Magazine featured an article by Eric J. Conn and Dan C. Deacon, of Conn Maciel Carey’s national OSHA Practice Group, regarding OSHA’s Feed Grain Imageupcoming increase in maximum civil penalties and renewed focus on criminal investigations and prosecutions.  The article discusses the impact of these two new OSHA enforcement issues on the grain industry in particular, but the background and lessons reviewed apply to virtually every employer in the United States.

Here is a link to the full article in Feed & Grain Magazine.

New DOJ and DOL Reliance on Environmental Laws Lowers Bar for Workplace-Safety Criminal Prosecutions

On April 1st, the Washington Legal Foundation (WLF) published a Legal Backgrounder prepared by Eric J. Conn entitled: “New DOJ and DOL Reliance on Environmental Laws Lowers Bar for Workplace-Safety Criminal Prosecutions.”

The Legal Backgrounder reviewed the history of OSH Act criminal cases and a new Department of Justice and Department of Labor joint initiative designed to increase the frequency of both criminal prosecutions for workplace safety WLF Article Imageviolations generally, and to pursue more criminal charges against individual managers rather than just corporate defendants. The article explains:

“A key change in DOJ’s strategy for ‘upping the ante’ in workplace-safety criminal enforcement is the decision to transfer responsibility for prosecuting worker-safety violations from the Justice Department Criminal Division’s Fraud Section to the Environmental Crimes Section (ECS) of the Environment and Natural Resources Division.”

The article concluded that:

“the new Department of Justice worker-endangerment initiative will result in a renewed and more concerted effort to pursue criminal charges under environmental statutes where workers’ health and safety is allegedly being threatened. Based on this rekindled commitment by DOL and DOJ, employers should expect government officials investigating workplace-safety violations to probe for possible criminal violations—not only under the OSH Act where there has been a fatality, but under the myriad of environmental statutes and Title 18’s federal criminal code.”

Here is a link to the full article.

OSHA Criminal Cases on the Rise

By: Eric J. Conn and Kate M. McMahon

In the forty plus years since Congress enacted the OSH Act, there have been more than 400,000 workplace fatalities, yet fewer than eighty total OSH Act criminal cases have been prosecuted – fewer than two per year – and only approximately a dozen have resulted in criminal convictions. Historically, the prosecutions typically have targeted cases in which the employers were alleged to have falsified documents and lied to OSHA in conjunction with underlying regulatory violations relating to an employee fatality. In other words, the “cover-up,” so to speak, was worse than the crime. Chronic violators and employers who demonstrated a systematic rejection of worker safety laws also were more likely to face charges.

One primary reason that historically so few criminal cases have been pursued under the Occupational Safety and Health Act (“OSH Act”)OSH Criminal 3 is that it is challenging to prove a criminal violation under the Act. Combine that with the fact that, even with a conviction, the consequences are less significant than the consequences for many other white collar crimes and you end of with a situation where the criminal provision of the OSH Act is rarely employed.

Here is how it works. Section 17(e) states:

“Any employer who willfully violates any standard, rule, or order promulgated pursuant to Section 6 of this Act, or of any regulations proscribed pursuant to this Act, and that violation caused death to any employee, shall, upon conviction, be punished by a fine of not more than $10,000 or by imprisonment for not more than six months, or by both.”

Pursuant to the Sentencing Reform Act of 1984, 18 USC § 3551 et seq., which standardized penalties and sentences for federal offenses, the criminal penalty for willful violations of the OSH Act causing loss of human life was amended to be punishable by fines up to $250,000 for individuals (18 U.S.C. Sec. 3574(b)(4)), and $500,000 for organizations (id. at Sec. 574(c)(4)).

Accordingly, if an employer’s willful violation of an OSHA standard causes the death of an employee, Continue reading