OSHA may be considering a major change to its lockout/tagout (“LOTO”) rule, which dictates how companies across industries design and service equipment. By deleting a single word, OSHA may force significant changes and increase enforcement and company liability.

Currently, the general industry LOTO rule requires equipment and procedures to prevent the “unexpected” movement of equipment or release of hazardous energy. That energy could be electrical, hydraulic, pneumatic, mechanical, chemical, or thermal.

For example, a conveyor belt shut down for maintenance must be locked out and tagged out so it does not unexpectedly turn on while a mechanic is working on it. Because his lock is on the equipment, only that mechanic can unlock the switch to turn the conveyor back on. According to OSHA, the term “unexpected” refers to energization that was unexpected or unintended by the servicing worker.

Now, OSHA may be poised to dramatically expand the rule by removing the critical word “unexpected.” On August 28, 2018, OSHA submitted its “Standard Improvement Project, Phase IV” (SIP), to the Office of Information and Regulatory Affairs (OIRA) for review. LOTO is one of many diverse topics targeted by the filing. The exact language of the rules submitted to OMB are not public. Unless the LOTO proposal has been changed by the Trump Administration, the Obama-originated proposed rule change would remove the word “unexpected,” thus significantly expanding lockout/tagout to apply even to situations where the release of energy is expected or intentional (when the release is expected, workers can be prepared and avoid hazardous parts).

This one-word rule “edit” could adversely impact manufacturing and other general industry sites by reducing options for LOTO rule compliance (e.g., alerting workers that equipment is about to move with pre-startup alarms would not suffice). The change would also increase LOTO liability risks, justifying company and counsel review of policy, documents, and site practices.

Changing the rule to overturn court decision

Removing “unexpected” is something OSHA has wanted to do for some time to effectively overturn a court decision. In the 1995 GMC Delco decision, the Occupational Safety and Health Review Commission (OSHRC) recognized that equipment with warning systems (to warn before machine start-up, for example) cannot result in “unexpected” energization because the worker is forewarned of any activation of the equipment. Based on the evidence related to the extensive warning system at issue, the OSHRC decision rejected OSHA’s interpretation of the LOTO provision.

​In the GMC Delco case, the equipment had an extensive warning system including an interlocked gate that surrounded the machine area, an emergency stop button, and a series of 8-12 steps that occurred prior to the activation of the equipment. The restart procedures included alarms and visible motions to warn the worker of energization. As a result, the OSHRC ruled that the plain language of the standard rendered the LOTO rule inapplicable where the worker was alerted or warned that the machine being serviced was about to activate. The U.S. Court of Appeals for the 6th Circuit affirmed the OSHRC’s decision. Reich v. General Motors Corp. et al. (“We conclude that the plain language of the lockout standard unambiguously renders the rule inapplicable where an employee is alerted or warned that the machine being serviced is about to activate.”)

OSHA subsequently took the position that the OSHRC’s ruling misconstrued OSHA’s standard and jeopardized workers. As a result, in 2016, OSHA proposed to revise the rule to remove the word “unexpected” from the LOTO standard. Industry associations urged OSHA not to make the change.

OSHA plans still not clear 

Although it was an Obama administration initiative to change the standard, the Trump administration’s Spring 2018 Unified Agenda for Regulatory Actions still noted plans to revise the lockout/tagout rule.

The question about whether LOTO applies to expected equipment start-up has become more pressing as technology advances, with more engineering controls and warning systems to alert workers on current machinery and equipment. OSHA reportedly has received requests for variances for equipment and machinery that employ computer-based controls over hazardous energy.

As a result, industry associations urged OSHA to abandon its proposed revision based on the plain language of the standard, legislative history, and information establishing that other controls can be more protective than LOTO.

When national OSHA policy is under review, enforcement risks can increase and create related liability risks. These risks increase further when the topic is an OSHA “emphasis” program, like machinery amputation and fatal accident protection, which drive up OSHA use of “willful” enforcement actions. As OSHA’s rulemaking efforts progress, companies should consider conducting internal, privileged company review of policy and implementation clarity, variance consideration, consistency, and effectiveness for liability risk reduction.