Avoiding Liability for Lockout/Tagout Violations

By Mark A. Lies II, Seyfarth Shaw, LLP


Editor’s Note – Mark A. Lies II is a labor and employment lawyer and partner with the Chicago, IL, law firm of Seyfarth Shaw, LLP. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.

As all employers should know, employees must be protected against the hazards of “unexpected energization” of equipment when the employees are performing certain functions on or around such equipment. Despite the fact that the Occupational Safety and Health Administration (OSHA) regulation, Control of Hazardous Energy, 29 Code of Federal Regulations (CFR) 1910.147 (so-called lockout/tagout), has been in effect for many years, employers continue to receive frequent and, in many cases, significant monetary citations for non-compliance.

More importantly, failure to initially implement or to comply with an employer’s lockout/tagout procedures has led to numerous fatalities and serious injuries due to equipment energization during servicing or maintenance. This article is a brief overview that highlights certain recent high profile aspects of the regulation and potential liability.

Application
Lockout/tagout (LOTO) applies to the control of all energy (e.g., electrical, hydraulic, pneumatic, gravity, etc.) that may be encountered during servicing or maintenance of machines in the general industry sector. It does not apply to construction or other sectors. The regulation can be confusing to employers because it does not cover “normal production operations,” thus, servicing and maintenance that occurs during normal production operations is only covered if it requires an employee to remove a guard or safety device, or place part of their body into a point of operation area or a danger zone during a machine operating cycle.

There is a further exception – the performance of minor tool changes and adjustments and other minor servicing activities that take place during the normal production activities if they are “routine, repetitive, and integral to the use of the equipment for production.” If an employer relies upon this exception, however, it must develop and utilize alternative measures that will provide effective protection.

Finally, there is one additional, limited exception where the sole source of energy is electrical and the equipment utilizes a “plug and cord” connection that can be unplugged to completely deenergize the equipment and the employee maintains control over the plug and cord.

Process and Enforcement
In order to develop an effective LOTO program, the employer must initially determine whether and when LOTO applies and develop specific written procedures for each piece of equipment that identifies each and every energy source, as well as the specific means and methods for deenergizing the equipment, including the various energy control switches or devices for utilizing locks that are individually issued to “authorized” employees. Authorized employees are those who have been trained and authorized by the employer to perform LOTO using the written procedure.

Other employees, identified as “affected” or “other,” must generally be trained to be aware and recognize that there are LOTO procedures and that they are not to in any way attempt to start or reenergize machines that have been locked out or to tamper or remove LOTO devices while LOTO is being performed by the authorized employee(s).

After initial training, refresher train-ing must be conducted again whenever there is a change in job assignments, the actual LOTO procedures, or a change in the machines or processes that may create or present a new hazard.

Once an employer has developed a LOTO program and trained its employees, the program must be enforced with ongoing observation by supervisors and discipline for violations, up to and including termination. If the employer fails to develop a LOTO program, train employees, and utilize aggressive enforcement, the employer cannot avail itself of the “unavoidable employee misconduct” defense that can be an absolute legal defense to liability for an apparent violation.

Periodic Inspections
A recent developing area of significant liability involves the duty of an employer to conduct a periodic inspection under 29 CFR 1910.147©(6) of each energy control procedure at least annually to verify that the procedure is still effective for the equipment and that the authorized employees are competent to perform the procedure (that is, their training is still effective). Basically, the employer must observe an authorized employee perform the procedure at least annually. The employer must then certify in writing under 29 CFR 1910.147©(6)(ii) that the periodic inspections have been performed by:

Unfortunately, many employers are completely unaware of the obligation to conduct the periodic inspection and to prepare the certification or they allow the annual periodic inspection requirement to lapse beyond a year. Recently, OSHA has begun to issue willful citations, which can carry penalties up to $70,000 per violation, or to separately cite each machine or piece of equipment for which a periodic inspection was not conducted, resulting in significant monetary penalties.

If the periodic inspection reveals that the LOTO procedure itself is no longer effective because of equipment or process changes, it must be rewritten and employees retrained. If the authorized employee is unable to perform the procedure properly, the employee must be retrained. In all cases, the training must be documented.

It should also be noted that if an employer prepares a certification for an inspection that is false, there are potential criminal penalties against the employer and the individual employee who prepares a false certification.

Conclusion
As the regulatory climate changes within OSHA to that of much more aggressive enforcement, there is no question that LOTO compliance will be more closely evaluated by the agency, with increasing citation liability.

In any regulatory inspection involving an employer in general industry where the employer utilizes any type of equipment or machinery, OSHA will request to inspect the LOTO program, procedures, training, periodic inspection certifications, and records of disciplinary action taken for violations. An employer who develops and administers an effective program will reduce the potential for employee injury as well as regulatory liability.


Labor and the Law – December 2008 RENDER | back