Editor’s Note – Mark Lies II is a labor and employment law attorney and partner with the Chicago, IL, law firm of Seyfarth Shaw. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.
As is unfortunately the case, there have been numerous accidents involving powered industrial trucks. The Occupational Safety and Health Administration (OSHA) recognized the potential for serious injury to powered industrial truck drivers when it amended 29 CFR 1910.178 in 1998 to require extensive new compliance obligations for employers.
As part of the amendments, OSHA incorporated the American National Standards Institute (ANSI) B56.1-1969 Safety Standard for Powered Industrial Trucks. Because ANSI B56.1-1969 does not require seat belts to be worn by operators, there is a potential compliance gap regarding employees being thrown or ejected from powered industrial trucks in a rollover accident. Because the data indicates that many powered industrial truck injuries might have been prevented or reduced in severity through the use of seat belts, the issue has arisen concerning employer liability for failure to:
• Require employees to utilize seat belts on powered industrial trucks when the trucks are equipped with operator restraint devices or seat belts; and/or
• Install and require the use of an operator restraint system or seat belt supplied by the manufacturer as a retrofit program.
General Duty Clause Liability
OSHA has been requested by numerous employers to clarify whether employees have any liability for OSHA citations when the regulation is itself silent on the requirement for such devices.
The agency has issued several standard interpretations in which it has indicated that, on a case-by-case basis, it may utilize Section 5(a)(1) of the act (the General Duty Clause) to issue citations to employers who did not require the use of operator restraint devices or seat belts. In addition, the agency may also use the General Duty Clause to cite employers who fail to take advantage of a manufacturer’s retrofit operator restraint system or seat belt program. In fact, the agency has issued such citations to employers in the recent past. In 2002, an employer was issued a serious citation and penalty for failure to provide two Clark-powered industrial trucks with seat belts. As part of the citation, the agency stated that the hazard could be abated by installing seat belt retrofit kits from the manufacturer. In 2001, OSHA issued a serious citation and penalty for an employer’s failure to retrofit a Caterpillar lift with a retrofit seat belt that was offered by the manufacturer.
Multi-Employer Workplace Liability
The employer can face additional liability issues at the workplace by failing to require the use of available seat belts. If the employer makes its equipment available for use by employees of other employers who are on the worksite, there is potential additional OSHA liability under the multi-employer workplace liability doctrine if the employer providing the powered industrial truck can be considered to be “controlling, creating, exposing, or responsible for correcting the hazard” (i.e., lack of an available seat belt or restraint device) on the powered industrial truck.
Third-Party Negligence Liability
Finally, in the event that the employer fails to require the use of seat belts, or fails to install a retrofit seat belt, and the employee is injured in a powered industrial truck accident, the employer may face third-party negligence liability. If the injured employee brings a negligent design or manufacture lawsuit against the manufacturer, the employer will likely face a third-party action by the manufacturer seeking indemnity or contribution from the employer for failure to require the use of the available seat belt or to install the retrofit package.
Since many powered industrial truck accidents involve serious injury, the employer should take all reasonable action to require the use of available seat belts and to install and utilize retrofit kit devices in order to reduce its potential liability.
Labor and the Law - August 2003 Render