On April 8, 2013, the Occupational Safety and Health Review Commission (“OSHRC” or the “Review Commission”) reversed an administrative law judge’s (“ALJ’s”) decision vacating a lockout/tagout (“LOTO”) citation issued to Otis Elevator Company (“Otis”). See Secretary of Labor v. Otis Elevator Company, OSHRC No. 09-1278 (Apr. 8, 2013). Beyond the specifics of the LOTO standard provision at issue, the decision is instructive regarding the defenses of infeasibility and de minimis classification.
On June 16, 2009, an Otis service mechanic injured his hand while unjamming the gate of a freight elevator at Boston Store, a department store in Wisconsin. OSHA issued a serious citation to Otis, alleging a violation of 29 C.F.R. § 1910.147(f)(2)(i), which requires an “outside employer” and an “on-site” employer to inform each other of their respective LOTO procedures. Administrative Law Judge Dennis Phillips vacated the citation, finding that the LOTO standard was inapplicable. The Review Commission reversed, concluding that Otis failed to comply with the LOTO provision because (1) Otis’s work on the elevator was covered by the LOTO standard; (2) Boston Store and Otis were “on site” and “outside employers,” respectively; and (3) Otis admitted that it did not inform Boston Store of its LOTO procedures.
A Short Elevator Ride for the Infeasibility Defense
To establish the affirmative defense of infeasibility, Otis needed to prove by a preponderance of the evidence that: (1) literal compliance with the terms of the cited standard was infeasible under the existing circumstances; and (2) an alternative protective measure was used or there was no feasible alternative measure.
According to Otis, it cannot establish in advance what specific LOTO procedure will be applicable to a particular job as to properly inform the “on site” employer of its LOTO procedures. Otis is unable to ascertain applicable procedures until accessing an elevator in need of repair and assessing the issues involved. Moreover, Otis explained that it might be difficult to find “on site” personnel to inform them of the LOTO procedures when making repairs. This could further thwart Otis’s ability to respond in emergency situations, such as when customers of a client are trapped in an elevator.
The Review Commission disagreed. Based on the specific facts of the underlying citation, the Commission noted that the mechanic understood which energy control procedures applied because he knew the elevator was jammed. The Commission found this to be a “straightforward” determination of applying Otis’s LOTO procedure to prevent unexpected gate movement. Turning to the “lack of on site personnel” argument, Otis’s mechanic talked to Boston Store personnel when he arrived to fix the freight elevator. Accordingly, no evidence existed to suggest that it would be infeasible to share Otis’s LOTO procedures with the “on site” employer. The Commission also rejected Otis’s concern about finding personnel in emergencies. Here, no such emergency existed in the administrative record.
The practical lesson learned from OSHRC’s analysis of the infeasibility defense is the Review Commission’s focus on feasibility in the existing circumstances, rather than infeasibility in hypothetical ones.
De Minimis Classification? The Commission Finds it to be “Out of Service”
Otis also argued before the ALJ that the violation should have been classified as “de minimis” rather than “serious.” A violation is de minimis when “a deviation from the standard has no direct or immediate relationship to employment safety.” By contrast, a serious violation can result in an accident with “a substantial probability that death or serious physical harm could result.” The Review Commission explained that the accident to the Otis mechanic’s hand could have been even more serious as a result of Otis’s failure to have complied with the LOTO standard, affirming the serious classification. Specifically, by failing to inform Boston Store personnel of the Otis LOTO procedure, a Boston Store employee might have inadvertently removed part of the locking device or otherwise pulled on the gate being serviced by Otis. The Commission explained that it looks for the potential for death or serious physical harm, not the likelihood of the accident itself, to determine whether there is a serious violation.
However, in determining the dollar amount of the penalty, the Commission does look to the likelihood of an accident occurring. In this case, the likelihood of an accident was quite low because a number of precautions had been taken, such as placement of an “out of order” sign, conducting the job while the business was closed, and allowing only the Otis employee to service the elevator. Based on these precautions and the limited number of employees exposed to the hazard of releasing stored energy, the Review Commission reduced the $5,000 penalty to $500.