“Unexpected Energization” Still Essential to Require Lockout/Tagout Despite Controversial OSHA Rulemaking

By Dan C. Deacon and Eric J. Conn

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  The Project was intended to allow OSHA to efficiently make non-controversial changes to confusing, outdated, or duplicative elements of OSHA standards and to to align standards across industries and make it easier for employers to understand and comply with safety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

Unlock the Mysteries of OSHA’s Lockout/Tagout Rule (PART 2 of 2 – Five Common LOTO Mistakes)

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) (LOTO) 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 lays out:

  • [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:

  1. Amputation Injuries Create Special Reporting Obligations
  2. LOTO Citations are Low Hanging Fruit for OSHA
  3. OSHA is Actively Pursuing LOTO Violations with a National Emphasis Program
  4. LOTO Violations Qualify for the Severe Violator Enforcement Program
  5. 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

OSHA’s old “Standards Improvement Project” and Trump’s new Efforts to Slash Regulations [Webinar Recording]

On March 28, 2017, Eric J. Conn and Dan C. Deacon of Conn Maciel Carey’s national OSHA Practice Group presented a webinar regarding OSHA’s old “Standards Improvement Project” and Pres. Trump’s new Executive Orders to Slash Regulations.

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”

Here is a link to a recording of the webinarContinue reading