ockout/tagout standard partner halprin@khlaw 10 26 rath... · mr. rath currently serves on the...

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www.khlaw.com Presented by: Lawrence P. Halprin Partner [email protected] Manesh Rath Partner [email protected] PROPOSED RULE TO REVISE THE LOCKOUT/TAGOUT STANDARD Copyright © 2016 1001 G Street NW, Ste. 500W, Washington, D.C. (202) 434-4182 October 26, 2016

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Page 1: OCKOUT/TAGOUT STANDARD Partner halprin@khlaw 10 26 Rath... · Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business

www.khlaw.com

Presented by:

Lawrence P. HalprinPartner

[email protected]

Manesh RathPartner

[email protected]

PROPOSED RULE TO REVISE THE

LOCKOUT/TAGOUT STANDARD

Copyright © 2016

1001 G Street NW, Ste. 500W, Washington, D.C.(202) 434-4182

October 26, 2016

Page 2: OCKOUT/TAGOUT STANDARD Partner halprin@khlaw 10 26 Rath... · Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business

www.khlaw.com

Please Don’t Forget to Dial-In:Conferencing Number: (800) 768-2983

Access Code: 434 4318(View the slides via webinar, and the sound via phone, above)

An audio recording and slide deck will be provided post-webinar onwww.khlaw.com/osha3030

Copyright © 2016

Page 3: OCKOUT/TAGOUT STANDARD Partner halprin@khlaw 10 26 Rath... · Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business

3Copyright © 2015

Lawrence Halprin is a partner in Keller and Heckman’s workplacesafety and health, chemical regulation and litigation practice groups.He is nationally recognized for his work in workplace safety andchemical regulation. His workplace safety and health practice coversall aspects of legal advocacy, including: representing clients in OSHAand MSHA investigations and enforcement actions; providingcompliance counseling and training; conducting incident investigations,compliance audits and program reviews; participation in federal(OSHA, MSHA and NIOSH) and state rulemakings and stakeholdersprocesses; bringing and intervening in pre-enforcement challenges tofinal agency rules; advising on legislative reform and oversight; andparticipation in the development of national consensus standardsunder the ANSI process, and TLVs under the ACGIH process.

LAWRENCE P. HALPRIN

Mr. Halprin's engineering and financial background and extensive knowledge of OSHArulemakings have greatly enhanced his ability to provide compliance counseling and representclients in enforcement actions, and evaluate and critique rulemaking proposals and suggestalternative approaches. On behalf of one or more clients, Mr. Halprin has participated in almostevery major OSHA rulemaking over the past 25 years as well as numerous Cal-OSHA rulemakings.

Lawrence Halprin

Partner

[email protected]

202-434-4177

Page 4: OCKOUT/TAGOUT STANDARD Partner halprin@khlaw 10 26 Rath... · Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business

4Copyright © 2015

Manesh Rath is a partner in Keller and Heckman’s litigation and OSHApractice groups. He has been the lead amicus counsel on several casesbefore the U.S. Supreme Court including Staub v. Proctor Hospital andVance v. Ball State University.

Mr. Rath is a co-author of three books in the fields of wage/hour law, laborand employment law, and OSHA law. On developing legal issues, he hasbeen quoted or interviewed in The Wall Street Journal, Bloomberg, SmartMoney magazine, Entrepreneur magazine, on "PBS's Nightly BusinessReport," WAVY-TV and C-SPAN. He was listed in Smart CEO Magazine'sReaders' Choice List of Legal Elite and voted by his peers to Best Lawyersin America for the past two years.

Mr. Rath has extensive experience representing industry in OSHArulemakings. He has successfully represented employers—including some ofthe largest in the country—in OSHA citations and investigations beforefederal OSHA in regions across the country and in state plan states.

MANESH K. RATH

Mr. Rath currently serves on the Board of Advisors for the National Federation of IndependentBusiness (NFIB) Small Business Legal Center. He served on the Society For Human Resources (SHRM)Special Expertise Panel for Safety and Health law for several years.He is the editor and co-author of the OSHA chapter of the Employment and Labor Law Audit (9th and10th Editions) and a co-author of the book Occupational Safety and Health Law Handbook (2001).

Manesh RathPartner

[email protected]

Page 5: OCKOUT/TAGOUT STANDARD Partner halprin@khlaw 10 26 Rath... · Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business

5Copyright © 2015

Overview of the OSHA Lockout/Tagoutstandard’s unexpected energization exception

Review of the landmark decision andcompliance directive statement on unexpectedenergization

Outline other elements to OSHA’s StandardsImprovement Project affecting recordkeeping,construction and other elements of OSHAstandards

What employers should do in light of theseproposed changes

TOPICS TO BE DISCUSSED

Page 6: OCKOUT/TAGOUT STANDARD Partner halprin@khlaw 10 26 Rath... · Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business

6Copyright © 2015

Standards Improvement Project

Remove or revise outdated requirements

18 proposed revisions

Recordkeeping

General industry

Maritime

Construction

OVERVIEW OF PROPOSED RULE

Page 7: OCKOUT/TAGOUT STANDARD Partner halprin@khlaw 10 26 Rath... · Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business

7Copyright © 2015

Applies to servicing and maintenanceoperations

Where the unexpected:

Energization or startup of machine, or

Release of stored energy

…could cause injury to employee

OSHA proposes to remove the word“unexpected” because OSHA believes it hasbeen misinterpreted to mean not expected

LOCKOUT/TAGOUT

Page 8: OCKOUT/TAGOUT STANDARD Partner halprin@khlaw 10 26 Rath... · Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business

8Copyright © 2015

6th Circuit: Where start up was lengthy process withaudible warnings, visual warnings, time delays, itwas not “unexpected.” Thus, the process stood inlieu of LOTO

OSHA: “Unexpected” means any energization thatis unintended or unplanned by the servicingemployee

OSHA: LOTO has been violated when an employeeis exposed to hazardous energy, even if he knowsthat it has not been controlled and continues to bea hazard

“UNEXPECTED”

Page 9: OCKOUT/TAGOUT STANDARD Partner halprin@khlaw 10 26 Rath... · Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business

9Copyright © 2015

Warning systems subvert the intent of LOTO

Warning systems require a case-by-caseassessment of various warning schemes

As a result, OSHA proposes removing“unexpected” from standard

Shipyard LOTO standard omits“unexpected”

OSHA

Page 10: OCKOUT/TAGOUT STANDARD Partner halprin@khlaw 10 26 Rath... · Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business

10Copyright © 2015

• Warning systems tend to allow for resumption ofoperations more efficiently

• Internal controls for eliminating unexpectedenergization do not eliminate need to alsolockout

• Automated lockout systems, interlocks, controlcircuitry also require verification of efficacy byinspectors

• OSHA’s complaint underlying these revisionsimpacts automated lockout as well.

IMPACT ON EMPLOYERS

Page 11: OCKOUT/TAGOUT STANDARD Partner halprin@khlaw 10 26 Rath... · Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business

11Copyright © 2015

1. Comments Due December 5, 2016

2. Work with industry groups

3. Collect data if you are using warningsystems

4. Evaluate existing warning systems forpossibility of, or infeasibility of replacingwith lockout systems

WHAT EMPLOYERS SHOULD DO

Page 12: OCKOUT/TAGOUT STANDARD Partner halprin@khlaw 10 26 Rath... · Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business

12Copyright © 2015

Next OSHA 30/30Please join us

at 1:00 PM Eastern U.S.Wednesday, November 16, 2016

www.khlaw.com/osha3030

Page 13: OCKOUT/TAGOUT STANDARD Partner halprin@khlaw 10 26 Rath... · Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business

13Copyright © 2015

Catch our group on LinkedIn:Keller and Heckman Workplace Safetyand Health

The OSHA 30/30 is now availableas a Podcast!Find it at:• Khlaw.com/osha3030• Or on any podcast streaming

service (iTunes, PodcastAddict)

MORE FROM THE OSHA 30/30:

Page 14: OCKOUT/TAGOUT STANDARD Partner halprin@khlaw 10 26 Rath... · Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business

14Copyright © 2015

Lawrence Halprin

Partner

[email protected]

202-434-4177

Manesh RathPartner

[email protected]

Thank you!

Keller and Heckman LLP1001 G Street NW

Suite 500 WestWashington, DC 20001

(202) [email protected]

Please take a moment to fillout the survey on your screen.

Page 15: OCKOUT/TAGOUT STANDARD Partner halprin@khlaw 10 26 Rath... · Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business

www.khlaw.com

Presented by:

Lawrence P. HalprinPartner

[email protected]

Manesh RathPartner

[email protected]

PROPOSED RULE TO REVISE THE

LOCKOUT/TAGOUT STANDARD

Copyright © 2016

1001 G Street NW, Ste. 500W, Washington, D.C.(202) 434-4182

October 26, 2016

Page 16: OCKOUT/TAGOUT STANDARD Partner halprin@khlaw 10 26 Rath... · Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business

www.khlaw.com

Please Don’t Forget to Dial-In:Conferencing Number: (800) 768-2983

Access Code: 434 4318(View the slides via webinar, and the sound via phone, above)

An audio recording and slide deck will be provided post-webinar onwww.khlaw.com/osha3030

Copyright © 2016

Page 17: OCKOUT/TAGOUT STANDARD Partner halprin@khlaw 10 26 Rath... · Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business

3Copyright © 2015

Lawrence Halprin is a partner in Keller and Heckman’s workplacesafety and health, chemical regulation and litigation practice groups.He is nationally recognized for his work in workplace safety andchemical regulation. His workplace safety and health practice coversall aspects of legal advocacy, including: representing clients in OSHAand MSHA investigations and enforcement actions; providingcompliance counseling and training; conducting incident investigations,compliance audits and program reviews; participation in federal(OSHA, MSHA and NIOSH) and state rulemakings and stakeholdersprocesses; bringing and intervening in pre-enforcement challenges tofinal agency rules; advising on legislative reform and oversight; andparticipation in the development of national consensus standardsunder the ANSI process, and TLVs under the ACGIH process.

LAWRENCE P. HALPRIN

Mr. Halprin's engineering and financial background and extensive knowledge of OSHArulemakings have greatly enhanced his ability to provide compliance counseling and representclients in enforcement actions, and evaluate and critique rulemaking proposals and suggestalternative approaches. On behalf of one or more clients, Mr. Halprin has participated in almostevery major OSHA rulemaking over the past 25 years as well as numerous Cal-OSHA rulemakings.

Lawrence Halprin

Partner

[email protected]

202-434-4177

Page 18: OCKOUT/TAGOUT STANDARD Partner halprin@khlaw 10 26 Rath... · Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business

4Copyright © 2015

Manesh Rath is a partner in Keller and Heckman’s litigation and OSHApractice groups. He has been the lead amicus counsel on several casesbefore the U.S. Supreme Court including Staub v. Proctor Hospital andVance v. Ball State University.

Mr. Rath is a co-author of three books in the fields of wage/hour law, laborand employment law, and OSHA law. On developing legal issues, he hasbeen quoted or interviewed in The Wall Street Journal, Bloomberg, SmartMoney magazine, Entrepreneur magazine, on "PBS's Nightly BusinessReport," WAVY-TV and C-SPAN. He was listed in Smart CEO Magazine'sReaders' Choice List of Legal Elite and voted by his peers to Best Lawyersin America for the past two years.

Mr. Rath has extensive experience representing industry in OSHArulemakings. He has successfully represented employers—including some ofthe largest in the country—in OSHA citations and investigations beforefederal OSHA in regions across the country and in state plan states.

MANESH K. RATH

Mr. Rath currently serves on the Board of Advisors for the National Federation of IndependentBusiness (NFIB) Small Business Legal Center. He served on the Society For Human Resources (SHRM)Special Expertise Panel for Safety and Health law for several years.He is the editor and co-author of the OSHA chapter of the Employment and Labor Law Audit (9th and10th Editions) and a co-author of the book Occupational Safety and Health Law Handbook (2001).

Manesh RathPartner

[email protected]

Page 19: OCKOUT/TAGOUT STANDARD Partner halprin@khlaw 10 26 Rath... · Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business

5Copyright © 2015

Overview of the OSHA Lockout/Tagoutstandard’s unexpected energization exception

Review of the landmark decision andcompliance directive statement on unexpectedenergization

Outline other elements to OSHA’s StandardsImprovement Project affecting recordkeeping,construction and other elements of OSHAstandards

What employers should do in light of theseproposed changes

TOPICS TO BE DISCUSSED

Page 20: OCKOUT/TAGOUT STANDARD Partner halprin@khlaw 10 26 Rath... · Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business

6Copyright © 2015

Standards Improvement Project

Remove or revise outdated requirements

18 proposed revisions

Recordkeeping

General industry

Maritime

Construction

OVERVIEW OF PROPOSED RULE

Page 21: OCKOUT/TAGOUT STANDARD Partner halprin@khlaw 10 26 Rath... · Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business

7Copyright © 2015

Applies to servicing and maintenanceoperations

Where the unexpected:

Energization or startup of machine, or

Release of stored energy

…could cause injury to employee

OSHA proposes to remove the word“unexpected” because OSHA believes it hasbeen misinterpreted to mean not expected

LOCKOUT/TAGOUT

Page 22: OCKOUT/TAGOUT STANDARD Partner halprin@khlaw 10 26 Rath... · Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business

8Copyright © 2015

6th Circuit: Where start up was lengthy process withaudible warnings, visual warnings, time delays, itwas not “unexpected.” Thus, the process stood inlieu of LOTO

OSHA: “Unexpected” means any energization thatis unintended or unplanned by the servicingemployee

OSHA: LOTO has been violated when an employeeis exposed to hazardous energy, even if he knowsthat it has not been controlled and continues to bea hazard

“UNEXPECTED”

Page 23: OCKOUT/TAGOUT STANDARD Partner halprin@khlaw 10 26 Rath... · Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business

9Copyright © 2015

Warning systems subvert the intent of LOTO

Warning systems require a case-by-caseassessment of various warning schemes

As a result, OSHA proposes removing“unexpected” from standard

Shipyard LOTO standard omits“unexpected”

OSHA

Page 24: OCKOUT/TAGOUT STANDARD Partner halprin@khlaw 10 26 Rath... · Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business

10Copyright © 2015

• Warning systems tend to allow for resumption ofoperations more efficiently

• Internal controls for eliminating unexpectedenergization do not eliminate need to alsolockout

• Automated lockout systems, interlocks, controlcircuitry also require verification of efficacy byinspectors

• OSHA’s complaint underlying these revisionsimpacts automated lockout as well.

IMPACT ON EMPLOYERS

Page 25: OCKOUT/TAGOUT STANDARD Partner halprin@khlaw 10 26 Rath... · Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business

11Copyright © 2015

1. Comments Due December 5, 2016

2. Work with industry groups

3. Collect data if you are using warningsystems

4. Evaluate existing warning systems forpossibility of, or infeasibility of replacingwith lockout systems

WHAT EMPLOYERS SHOULD DO

Page 26: OCKOUT/TAGOUT STANDARD Partner halprin@khlaw 10 26 Rath... · Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business

12Copyright © 2015

Next OSHA 30/30Please join us

at 1:00 PM Eastern U.S.Wednesday, November 16, 2016

www.khlaw.com/osha3030

Page 27: OCKOUT/TAGOUT STANDARD Partner halprin@khlaw 10 26 Rath... · Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business

13Copyright © 2015

Catch our group on LinkedIn:Keller and Heckman Workplace Safetyand Health

The OSHA 30/30 is now availableas a Podcast!Find it at:• Khlaw.com/osha3030• Or on any podcast streaming

service (iTunes, PodcastAddict)

MORE FROM THE OSHA 30/30:

Page 28: OCKOUT/TAGOUT STANDARD Partner halprin@khlaw 10 26 Rath... · Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business

14Copyright © 2015

Lawrence Halprin

Partner

[email protected]

202-434-4177

Manesh RathPartner

[email protected]

Thank you!

Keller and Heckman LLP1001 G Street NW

Suite 500 WestWashington, DC 20001

(202) [email protected]

Please take a moment to fillout the survey on your screen.