Q: We don’t provide self-rescue equipment for lone workers, but we recently heard that OSHA is requiring self-rescue equipment as part of the General Duty Clause. Are you familiar with this?
A: This is a complex question, part of which might border on legal arguments. Incident Prevention relates legal opinions to our readers from case outcomes that we are familiar with, but in practice avoids rendering advice or opinions that may border on legal terms.
The rescue requirements in the OSHA rules do not address self-rescue. Many employers address self-rescue in part based on their interpretation of the training requirements found in OSHA 29 CFR 1910.269(a)(2)(i)(B) because of the language that states, “… including applicable emergency procedures (such as pole-top and manhole rescue), that are not specifically addressed by this section but that are related to his or her work and are necessary for his or her safety.” However, the OSHA rules regarding rescue are crew-based rescue requirements and similar to those found in most provincial Canadian health and safety standards. OSHA has several rules regarding lone workers, but those references lack any requirements for self-rescue. It certainly could be that such language would be hard to address considering the numerous instances and types of work in which workers are alone across all industries.
There is, of course, the ethical question: If there is a practical way to provide self-rescue, shouldn’t I provide it? The ethical issue alone might be a good basis for action, but that still doesn’t get us to the employer’s duty. Your question mentions the General Duty Clause, and we have not heard of any actions on self-rescue in those terms, but let’s look at how the clause may or may not apply.
The General Duty Clause is pre-OSHA language that comes from the Williams-Steiger Occupational Safety and Health Act of 1970 that created OSHA. Taken from the “Duties” section of the act, the General Duty Clause – in inspections and enforcement – covers employer responsibilities for the workplace that are not specifically addressed by the rules contained in the OSHA standards. As written, the General Duty Clause addresses the safety of the work environment (Section (5)(a)(1)) and employer compliance with the regulations (Section (5)(a)(2)). The perspective of the General Duty Clause seems to be a leading perspective based on analysis and prevention of workplace hazards. Its language refers to a workplace free of hazards, which carries through the OSHA regulations. Rescue is a post-incident consideration as opposed to the contemporaneous “workplace free of hazards” issue. So, by definition, the application of the General Duty Clause is still not a prerequisite to rescue. Even a reading of Section (5)(a)(2) can’t be interpreted as requiring rescue as part of a safety program since there is no particular OSHA rule that requires a safety program. As long as the view of the General Duty Clause is keeping the workplace free of hazards, using it to cover conditions not covered by the OSHA rules seems to preclude using the clause to drive rescue requirements.
Currently, and according to Chapter 4, Part III of OSHA’s Field Operations Manual (CPL 02-00-163), among other elements, in order to issue a General Duty Clause citation, OSHA must prove that the employer failed to keep the workplace free of a hazard to which its employees were exposed; the hazard was recognized; the hazard was causing or likely to cause death or serious physical harm; and a feasible and useful method to correct the hazard was available.
So, it seems that the language of the Field Operations Manual, like the General Duty Clause, does not lend itself to self-rescue charges. In addition, we are not aware of any OSHA actions against employers for lack of emergency response training based on the General Duty Clause.
However, if you are a safety professional, you probably shouldn’t bet against a future OSHA action regarding self-rescue based on the General Duty Clause. OSHA’s use of the clause is ever evolving through test cases, and citations against employers have increased some 400% since 1979, with a portion of those actions based on the General Duty Clause. The agency develops regulations based on exposure, practicality and burden. As self-rescue equipment becomes more practical and economical, it would not be a surprise for OSHA to pick some cases, if they occur, about which to make a point regarding the efficacy of self-rescue. Still, present or future, we are all better off if our safety policies and procedures prevent the need for rescue rather than drive an industry to provide for it.
Q: We heard a consultant say that OSHA requires tailboards but does not require tailboard documentation. Every other trainer/consultant says we do have to keep tailboard documents. If we don’t have to keep documentation, why are we doing it, and what would happen if we didn’t?
A: Your consultant is right, but let’s look at the whys and why-nots. First, there is a difference between documenting tailboards and keeping documentation of tailboards. Let’s also clarify here that we are not addressing the tailboard forms themselves as most of Incident Prevention’s consultants agree that there is a definite link between tailboards, the form used to document tailboards and its value to crew safety. That’s another whole article. Let’s confine this answer to why we should document tailboards and what to do with the documents after they’re complete.
So, why do it? The reason is very simple. OSHA 1910.269(c)(1)(ii) requires the following: “The employer shall ensure that the employee in charge conducts a job briefing that meets paragraphs (c)(2), (c)(3), and (c)(4) of this section with the employees involved before they start each job.” That’s a very simple and clear rule. How the employer ensures that the job briefing was conducted is up to them. Some employers satisfy the rule by making a supervisor, responsible to the employer, ensure that it is done. It sounds simple, and a supervisor under oath stating that they conducted a job briefing does satisfy the rule. Again, that’s because nowhere in the standard is there a requirement that the job briefing be documented.
In most cases, employers use a form of some type that the person in charge completes to document that the job briefing took place. As many would say, if it isn’t written down, it didn’t happen. That, too, is reasonable. The problem is that the form you use to show you completed the job briefing may also be the form OSHA uses to show you didn’t comply with the rules when you did the job briefing. In simple terms, the documents you keep can hurt you as well as protect you, so simply collecting forms has risks.
Here is a not-all-inclusive list of how forms can help you. First, know the minimum requirements for job briefings and make sure the form documents that those requirements have been met. Second, make the form a tool to direct and enhance the hazard analysis process. Third, be sure that you train your supervisors on the use and proper completion of both the job briefing and the job briefing record.
Now you have to decide what to do with the forms when they are returned to the employer. The first thing we can confirm for you is that in every incident that results in an injury, OSHA will ask for your job briefing document. If a civil case results from the incident, the plaintiff’s counsel will request it, too. If you don’t have any documents for OSHA, that typically is the end of it since there is no requirement to document the job briefing. The compliance officer will conduct interviews, and one of the issues to be resolved in those interviews is whether a job briefing was conducted and whether it met the requirements of the standard. They will still conduct interviews even if you have job briefing documents, and they will still confirm job briefing quality and content.
The problem with job briefing documentation occurs when there are illegible, vague or missing elements of the job briefing criteria, and if it lacks a discussion of the causal conditions related to the injury incident. It makes sense, then, that poor documentation can be used against you. So, what do you do? There are a couple things to decide. One is auditing by managers. If you are turning in job briefing forms, someone in authority should be reading them and ensuring they have been competently completed. The next thing to decide is how long to keep the forms. Here is a thought: If you keep them long enough to be expeditiously audited, there will always be a week’s worth or so in the office for review. If they are competently executed and complete, that’s good news. If there are only four or five job briefing documents for the incident crew, you will only have to defend those. If you have hundreds of them that have been poorly executed and are incomplete, you will have to defend your compliance against those hundreds of documents. Your poor tailboards are evidence that the employer did not ensure that job briefings meeting the requirements of the standard occurred.
The bottom line is, don’t blow off your responsibility for job briefings. And if you document job briefings, have a robust auditing process, and make sure those records demonstrate your compliance with the standard as well as a culture of safety.
Q: An employee who certified other employees as forklift operators recently retired, so I am wondering what is needed so that new employees can be properly certified. Can you help?
A: The employer can appoint any competent person to conduct certification of forklift operators. There is nothing in the OSHA rules that requires any outside assistance unless you want to use it for convenience. In any case, using a third party doesn’t excuse the employer from assuring an operator is qualified.
When OSHA is asked what constitutes a trainer, the answer is as follows: A trainer must have the knowledge, training and experience to train others on how to safely operate the powered industrial truck (PIT) in the employer's workplace. In general, the trainer will only have sufficient experience if he has the practical skills and judgment to be able to safely operate the equipment under the prevailing conditions of the employer's workplace. For example, if the employer uses certain truck attachments and the trainer has never operated a truck with those attachments, the trainer does not have the experience necessary to adequately train and evaluate others on the safe use of those attachments. However, the standard does not require that trainers operate a PIT regularly (i.e., outside of their operator training duties) as part of their job function or responsibility.
The requirements for training and testing are found right in the OSHA standard. If you send a worker to a third party, they are going to use the exact same material but charge you several hundred dollars per person.
Visit www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.178 to see the requirements. Training starts at 1910.178(l), “Operator training.” For PIT stability information to be used in training, visit www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.178AppA. Again, all of this data is from OSHA, so you are free to copy and use any of it in your training.
Q: Do we have to use a cluster bar to make equipotential on a structure? Different experts tell us widely differing answers. Does iP have an answer we can rely on?
A: We do have an answer you can rely on. The answer is that yes, you do need a cluster, and no, you don’t need a cluster. And yes, we are trying to be funny, but also, the answer really is yes and no depending on two different perspectives.
Before we go any further, here is a disclaimer regarding the rest of this answer: Incident Prevention is offering information regarding differing perspectives on bonding into equipotential for the protection of the worker. None of the discussions or perspectives herein should be considered as recommendations, methodologies or guidance offered by Incident Prevention.
With the disclaimer out of the way, let’s consider the first perspective. Does OSHA require a cluster? They don’t in the rules for grounding, but they do in Appendix C to 1910.269, “Protection From Hazardous Differences in Electric Potential.” Unlike many appendices to the OSHA standards, this appendix lacks the opening statement found in most appendices that says the appendix information is not mandatory. Then, in Part III, “Protecting Workers From Hazardous Differences in Electrical Potential,” you can read (D)(2), titled “Acceptable methods of grounding for employers that do not perform an engineering determination.” OSHA claims that 1910.269(n)(3), “Equipotential zone,” requires the employer to calculate the exposure to employees via this language: “Temporary protective grounds shall be placed at such locations and arranged in such a manner that the employer can demonstrate will prevent each employee from being exposed to hazardous differences in electric potential.” Then there is a note following (n)(3) that states, “Appendix C to this section contains guidelines for establishing the equipotential zone required by this paragraph. The Occupational Safety and Health Administration will deem grounding practices meeting these guidelines as complying with paragraph (n)(3) of this section.”
A direct reading of the above seems to indicate that calculations are the only way an employer can demonstrate that the methods in use protect employees. This argument has been made in OSHA citations and in litigation as well, although not always successfully. The reason might be the note, which refers to a method of creating equipotential by using the cluster bracket referenced in Appendix C. Further, this reference also appears in the appendix: “Section III.D.2 of this appendix describes grounding methods that the employer can use in lieu of an engineering analysis to make the demonstration required by § 1910.269(n)(3). The Occupational Safety and Health Administration will consider employers that comply with the criteria in this appendix as meeting § 1910.269(n)(3).”
Here is the problem: OSHA holds the employer responsible for workplace safety. In this rule, OSHA says employers must perform an engineering analysis or follow OSHA’s procedure to ensure the protection of the worker. But it is our understanding that OSHA did not perform an engineering analysis on their own requirement to use a cluster to ensure their recommendation would protect workers. OSHA relied on information provided by others, including manufacturers. To further confuse the supposed value of the cluster, OSHA includes additional steps to make the cluster work by adding penetrating connections between the cluster and internal, more conductive areas within the pole. But that’s not all. The last contradiction to the seemingly mandatory use of the cluster bar is found in Figure 5 in that same section of Appendix C. Figure 5 labels a graphic of a cluster bar as “Cluster Bar or Equivalent Device …” For these reasons and with respect to the numerous tests performed across the industry, there is unsurprising rejection by many of the cluster bar described by OSHA in Appendix C to 1910.269 as the method to use for employers who don’t perform an engineering analysis.
So, as to the bottom line, there are two things to keep in mind. One, OSHA seems to require a cluster bar unless the employer performs an engineering analysis of the methods that they intend to use for bringing the pole or structure to equipotential. And two, many test results available across the industry indicate that structure-to-conductor equipotential can be achieved through numerous methods other than a cluster bar. Whatever you choose to do, the employer needs to understand the consequences of their actions; they must be able to justify their decision to the satisfaction of OSHA, should the need arise.
Q: As the industry finds more inverters being used on solar and DC transmission, are we going to see a change in grounding requirements?
A: We don’t think so. That’s because even though there is a difference between (1) transformers that convert AC voltages from transmission or distribution voltages to consumer AC voltages and (2) inverters that convert DC generation to AC for end users, the grounding and bonding for the worker are the same.
When we de-energize, if we ground, the purpose of grounding is to trip the circuit that inadvertently becomes energized. That grounding also should protect us from connected AC systems that are customer solar based. Tripping is the purpose of grounding. When we equipotential bond, we are equalizing voltage within the work area. Tripping and bonding are the same no matter the source of generation. The grounding must be sufficient to carry the maximum available current for the time required to trip the system protection. The benefit to crews is that the inverter systems tend to be smaller, so they generate less fault current in those standalone systems. But if they are collected on a common bus, then engineering should look at those individual systems to see that they won’t or can’t back-feed into a switched-out system and then ensure they will trip if being fed back into the system inadvertently.
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