ockout/tagout standard partner halprin@khlaw 10 26 rath... · mr. rath currently serves on the...
TRANSCRIPT
www.khlaw.com
Presented by:
Lawrence P. HalprinPartner
Manesh RathPartner
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
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
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
202-434-4177
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
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
6Copyright © 2015
Standards Improvement Project
Remove or revise outdated requirements
18 proposed revisions
Recordkeeping
General industry
Maritime
Construction
OVERVIEW OF PROPOSED RULE
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
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”
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
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
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
12Copyright © 2015
Next OSHA 30/30Please join us
at 1:00 PM Eastern U.S.Wednesday, November 16, 2016
www.khlaw.com/osha3030
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:
14Copyright © 2015
Lawrence Halprin
Partner
202-434-4177
Manesh RathPartner
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.
www.khlaw.com
Presented by:
Lawrence P. HalprinPartner
Manesh RathPartner
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
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
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
202-434-4177
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
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
6Copyright © 2015
Standards Improvement Project
Remove or revise outdated requirements
18 proposed revisions
Recordkeeping
General industry
Maritime
Construction
OVERVIEW OF PROPOSED RULE
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
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”
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
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
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
12Copyright © 2015
Next OSHA 30/30Please join us
at 1:00 PM Eastern U.S.Wednesday, November 16, 2016
www.khlaw.com/osha3030
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:
14Copyright © 2015
Lawrence Halprin
Partner
202-434-4177
Manesh RathPartner
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.