Managing OSHA

Critical but practical advice for when OSHA comes knocking.

Managing OSHA

Key Questions for Employers to Ask When Defending a Machine Guarding Citation

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Key Questions for Employers to Ask When Defending a Machine Guarding Citation

Last year, the machine guarding standard – 29 C.F.R. § 1910.212 – was among OSHA’s top 10 most frequently cited standards, moving up one spot from where it was the previous year. In fact, it earned a place in OSHA’s top 4 highest penalties assessed for 2012. In light of its increasing regularity and formidable penalties, employers should be prepared to consider 3 primary questions when facing the prospect of a machine guarding citation:

  1. Have the moving part hazards been designed out of the machine at issue?
  2. Is there employee exposure to any hazard associated with the moving parts?
  3. Have any administrative controls been implemented to limit exposure?

These questions will provide a meaningful starting point for employers to evaluate their defenses if OSHA ever shows up at the door.

In order to sustain a machine guarding violation, OSHA must show that the machine at issue posed a moving part hazard, employees were exposed to that hazard, the machine guarding standard applies to the cited condition, and the employer had actual or constructive knowledge of the violation. Keep in mind, employee exposure is measured by “the manner in which the machine functions and how it is operated by the employees.” Fabricated Metal Products, Inc., 18 O.S.H. Cas. (BNA) ¶ 1072 (O.S.H.R.C. Nov. 7, 1997) (quoting Rockwell Int’l Corp., 9 O.S.H. Cas. (BNA) ¶ 1092 (O.S.H.R.C. Nov. 28, 1980)).

The first two issues are often key to a machine guarding case. This was the case in Arent Fox’s latest victory in Secretary of Labor, Commonwealth of Kentucky v. Dow Corning, Corp., KOSHRC # 4888-12, where the Kentucky Occupational Safety and Health Review Commission dismissed a machine guarding citation involving the employer’s sealant pumps.

The case stemmed from an employee injury that occurred when the employee went to repair a broken sealant pump without first locking it out, as required by the employer’s safety rules. Just as the employee reached into and grasped the pump’s exposed shaft, another employee, unaware of the injured employee’s activity, re-energized the pump. As a result, the employee was injured.

At trial, the citation turned on two issues: (1) whether the pumps possessed a moving part hazard via its exposed pump shaft and, (2) whether employee operators were exposed to it. Based on the evidence and the arguments submitted at trial, the KOSHRC Hearing Officer ruled in favor of the employer on both issues.

With regard to the first issue, the Hearing Officer determined no hazard was proven because:

  1. The pump’s shaft operated very slowly;
  2. There were large clearance spaces between the exposed shaft and the pump’s fixed components to preclude the possibility of a pinch point;
  3. The shaft was finely threaded and its components were smooth so they would not snag on any foreign object;
  4. There was no rotation creating an in-running nip point; and
  5. There were no prior injuries associated with the pumps. See Loren Cook Co., 21BNA OSHC ¶ 1705 (O.S.H.R.C. June 19, 2006) (“The occurrence or absence of injuries caused by a machine is probative evidence of whether the machine presents a hazard”).

With regard to the second issue, Arent Fox successfully demonstrated employees were not exposed to any hazard based on the manner the pump was operated because:

  1. The pumps were not located near trafficked areas;
  2. No employees were stationed at the pumps;
  3. The pumps were computer-operated from a distance;
  4. The only employees who had any reason to approach the pumps were those who cleaned and maintained the machines; and
  5. Those employees were well trained on how to lock-out/tag-out the pumps when they entered the area for cleaning and maintenance.

With these findings in mind, we return to the 3 questions posed at the beginning of this post. The following should serve as a useful outline when considering the employer’s potential liability exposure under 1910.212:

  1. Have the moving part hazards been designed out of the machine at issue?
    • Are there any sharp or rough edges?
    • Does the machine operate slowly?
    • Do the moving parts create any nip points, pinch points, etc.? I.e., are there sufficient clearances at the point of the alleged pinch point hazard to reduce the chance of injury?
    • Are there any prior injuries?
  2. Is there employee exposure to any hazard associated with the moving parts?
    • Is there any operational necessity that would bring an employee to the alleged hazard? I.e., does the employee have any required duties that would bring him or her sufficiently close to the alleged hazard?
    • Is the machine operated remotely, from a distance?
    • Is the machine located in an area with low employee traffic?
    • Do employees use work tools to reduce exposure to the machine?
  3. Have any administrative controls been implemented to limit exposure?
    • Is there an effective lock-out/tag-out procedure in place to preclude employee exposure?
    • What personal protective equipment (PPE) is required to operate the machine?
    • Are there established work rules in effect?
    • Has additional employee training been provided?

Answers to these questions should reveal where an employer’s strengths are as well as areas for improvement to prevent employee injury.

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