Last month, the Occupational Safety and Health Review Commission provided some needed clarification for construction and manufacturing employers that should make it easier to defend machine guarding cases in the future, particularly where the employee intentionally circumvents the guard. In the case of Secretary of Labor v. Aerospace Testing Alliance, OSHRC Docket No. 16-1167, the Commission held that the Secretary failed to establish that the machine guards were inadequate given the manner in which the machine functions and how it was operated by the employees.
Machine guards are governed by 29 C.F.R. § 1910.212. This regulation is a performance standard promulgated by the Occupational Safety and Health Administration which means that it states the result required, rather than specifying that a particular type of guard that must be used. Performance standards require an employer to identify the hazards particular to its own workplace and determine the steps necessary to abate them.
In this case, the employer, Aerospace Testing Alliance (“ATA”) had been issued a citation for violating § 1910.212 after one of its employees had intentionally circumvented the guard on the machine he was operating, resulting in the inadvertent crushing of his fingertip. The administrative law judge deciding the contest brought on behalf of ATA by Darren Harrington and I, upheld the citation on the grounds that the employee’s action in intentionally circumventing the guard were reasonably predictable given the machine’s normal operation.
On appeal, the Commission reversed the administrative law judge on the grounds that she failed to consider the testimony of three other machine operators who all testified that normal operation of the machine does not require an operator’s hands to approach the piston guards, let alone demand that he or she place fingers underneath a guard. The Commission further found that it was not the practice of the employer’s machine operators to put fingers under the guard during the normal operation of the machine and, therefore, the Secretary failed to show that it was reasonably predictable that employees would intentionally circumvent the machine guards and expose themselves to a crushing hazard.
The Commission’s ruling brings clarification for employers in determining whether their machine guards are OSHA compliant. Employers can rightly focus on whether their machine guards protect employees from their fingers inadvertently slipping under the guards versus the need to protect for possible employee misconduct of intentionally circumventing the guard. As the Commission made clear, absent evidence that it is reasonably predictable that employees will circumvent the machine guards in the normal operation of the machine, there can be no violation of the applicable regulation.
The KRCL Construction Team has significant experience guiding employers in the construction industry through OSHA training, compliance, investigations and administrative proceedings. To learn more about KRCL’s experience and capabilities in this area, please visit the OSHA Defense page on our firm website.