We recently came across the following letter of interpretation and thought some of you might find it interesting. You can find the original posting here.

April 30, 2010

Letter # 20090824-9245

Re: Interpretation of “unattended” in 29 CFR 1926.35l(d)(l) with regard to electrode holders.
Question: If a welder momentarily steps six feet away from his electrode, electrode holder and cord, would the electrode and holder be considered “unattended, ” such that the electrode must be removed?

Answer:

Section 1926.351(d)(l) states:

When electrode holders are to be left unattended, the electrodes shall be removed and the holders shall be so placed or protected that they cannot make electrical contact with employees or conducting objects.

While, as you point out, there is no definition for “unattended” in 29 CFR 1926 Subpart J (Welding and Cutting), OSHA interprets that term for purposes of 1926.351(d)(l) to mean that the electrode holder is out of the welder’s immediate control.

The concern with unattended welding equipment is that a worker not knowledgeable and not authorized to use that equipment could contact, or bring a conductive object in contact with, the electrode holder. Such contact can result in flash burns, unintended arcing, and shock. Therefore, OSHA will consider an electrode holder to be in the welder’s immediate control as long as he or she is in a position to prevent an unauthorized employee from contacting the equipment. OSHA will consider a number of factors in making this determination, including the welder’s distance from the holder, the number of employees in the work area, whether the welder can see the equipment from his or her location, and relevant environmental conditions, e.g., noise levels that might make it difficult for the welder to verbally warn an approaching employee to stay away from the electrode holder. In a busy work area with many employees, the electrode holder will usually be deemed out of the welder’s immediate control as soon as the welder steps away from the equipment. On the other hand, if a welder is working alone at a bench in a tightly controlled work area, he or she could retain immediate control of the holder even if he or she steps several feet away from the equipment, as long as the equipment remains in his or her view and environmental conditions permit him or her to warn an approaching employee to avoid the holder.¹

In your letter, you ask about a specific scenario in which an experienced welder steps six feet away from his electrode holder in order to pick up a slag hammer or level from his welder’s bucket. Whether the holder is “unattended” in this scenario depends on whether the welder retains immediate control of the equipment, taking into account the factors described above. If the welder is in a controlled environment, there are no other employees in the work area, and the equipment remains in his or her view at all times, he or she may step six feet away from the holder without the holder being considered unattended. However, if the welder is in an active, noisy work area surrounded by other workers and he steps six feet away from the holder, OSHA would consider the holder to be unattended and the standard would require removal of the electrode.

If you need further clarification on this subject, please contact us by fax at: 202-693-1689. U.S. Department of Labor, Directorate of Construction, Office of Construction Standards and Guidance. You can also contact us by mail at the above office, Room N3468, 200 Constitution Avenue, N.W., Washington, D.C. 20210, although there will be a delay in our receiving correspondence by mail.

Sincerely,

Bill Parsons, Acting Director
Directorate of Construction

¹ In other contexts, OSHA has taken the position that an operator is deemed to be attending to equipment if he or she is within twenty five (25) feet of the equipment and the equipment remains in his or her view. For example, 29 C.F.R. 1910.178(m)(5), a General Industry provision for industrial trucks, provides: “(ii) A powered industrial truck is unattended when the operator is 25 ft or more away the vehicle which remains in his view, or whenever the operator leaves the vehicle and it is not in his view.” And in a May 11, 2005 letter to Peter Kuchinsky, OSHA took the position that for purposes of 29 CFR 1926.302(e)(6) (Powder-Actuated Tools), which prohibits loaded tools from being left unattended, a “tool is considered to be attended when the . . . worker, while in view of the tool, is less than 25 feet away.” (This letter is available on OSHA’s website at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONSp_id=25O67 ). OSHA believes that there are fundamental differences between the hazards at issue in those situations and the hazards addressed by 1926.35l(d) that justify adopting a different interpretation of “unattended” for purposes of welding equipment. The electrical hazards addressed by 1926.351(d)(l) are more immediate than the hazards associated with the unauthorized operation of powered industrial trucks or powder-actuated tools. Whereas an unauthorized employee could be injured immediately upon contact with an electrode holder, powered industrial trucks and powder-actuated tools don’t pose such immediate contact hazards; in both of those scenarios, the unauthorized employee would need to do something with or to the equipment before an injury would occur. Welders simply do not have as much time to react to prevent injury to an approaching employee. For this reason, OSHA is adopting a stricter interpretation of “unattended” in the context of 1926.35l(d). [back to text]

KENTON, Ohio - The U.S. Department of Labor’s Occupational Safety and Health Administration has cited Kenton Iron Products LLC with $214,500 in proposed penalties for 29 alleged serious, willful, and repeat safety and health violations for unsafe working conditions at the company’s iron casting facility in Kenton.

As a result of a January 2010 inspection, OSHA has issued three alleged willful citations with proposed penalties of $156,000 for failing to ensure that some equipment was de-energized and shut down properly, and lockout/tagout procedures were in place before workers conducted maintenance on the equipment to prevent accidental start-up of machinery. A willful violation is one committed with intentional, knowing or voluntary disregard for the law’s requirement, or plain indifference to employee safety and health.

Twenty-two serious citations with proposed penalties of $50,700 also have been issued. These include excess amounts of flammable liquids stored in a fire area; lack of or improper capacity labeling on equipment; malfunctioning back up alarms and hydraulic leaks on equipment; failure to have and enforce electrical lockout/tagout procedures; lack of employee fall protections; lack of proper personal protective gear for workers, and unlabeled containers of hazardous chemicals. An OSHA violation is serious if death or serious physical harm can result from a hazard an employer knew or should have known exists.

Additionally, OSHA has issued $7,800 in proposed fines for three repeat violations, including failing to provide proper grounding and bonding of flammable liquids, failing to provide safety latches on material handling hooks, and using compressed air over the 30 pounds per square inch limit. OSHA issues repeat violations if that employer previously was cited for the same or similar violation of any standard, regulation, rule or order at any other facility in federal enforcement states within the last three years.

The company also has received one other-than-serious citation for using damaged electrical testing equipment. Other-than-serious citations are given when the violation would not directly cause a death or serious physical harm, but would affect the safety and health of employees.

“There is no excuse for a company to disregard the safety and welfare of its workers by not following OSHA safety standards,” said OSHA Area Director Jule Hovi in Toledo, Ohio. “Those who ignore safe practices and OSHA regulations are inviting tragedy into the lives of their workers.”

Kenton Iron Products manufactures iron castings at its two foundries located in Kenton and has more than 80 employees. The company has been inspected by OSHA 10 times since 1981 and has received 49 previous citations.

The company has 15 business days from receipt of its citations and penalties to comply, request an informal conference with OSHA’s area director or contest the findings before the independent Occupational Safety and Health Review Commission. To report workplace accidents, fatalities or situations posing imminent danger to workers, call OSHA’s toll-free hotline at 800-321-6742.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to assure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

MILWAUKEE - The U.S. Department of Labor’s Occupational Safety and Health Administration has cited Rexnord Industries LLC with $130,500 in proposed penalties for violating federal workplace safety standards after a mechanical power press operator, removing parts from a parts dumper, had her arm amputated when the machine unexpectedly began to operate.

As a result of a January 2010 inspection, OSHA has issued Rexnord one willful, six serious and one repeat citation. The willful citation, with a proposed penalty of $70,000, is for failing to provide proper guarding on the mechanical power presses to prevent an amputation. A willful violation is one committed with intentional, knowing or voluntary disregard for the law’s requirement, or plain indifference to employee safety and health.

Some of the six serious citations, with proposed penalties of $25,500, include failing to provide proper machine guarding and to conduct regular, periodic and weekly inspections of mechanical power presses and electrical hazards. An OSHA violation is serious if death or serious physical harm can result from a hazard an employer knew or should have known exists.

The company also received a $35,000 proposed fine for a repeat violation because it failed to provide proper protection to its employees working on metal cutting band saws and lathes. A repeat violation is issued when an employer previously was cited for the same or similar violation of any standard, regulation, rule or order at any other facilities in federal enforcement states within the last three years.

“There is no excuse for a company to disregard the safety and welfare of its workers by not following OSHA safety standards,” said OSHA Area Director George Yoksas in Milwaukee. “Those who ignore safe practices and OSHA regulations are inviting tragedy into the lives of their workers.”

The company, which manufactures transmissions and conveying equipment, employs more than 5,300 workers at 22 facilities in the United States.

Rexnord has 15 business days from receipt of its citations and penalties to comply, request an informal conference with OSHA’s area director or contest the findings before the independent Occupational Safety and Health Review Commission. To report workplace accidents, fatalities or situations posing imminent danger to workers, call OSHA’s toll-free hotline at 800-321-6742.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to assure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

ST. LOUIS - The U.S. Department of Labor’s Occupational Safety and Health Administration has cited Clint Horn, doing business as Sturgis Tuckpointing, in St. Louis with alleged safety violations for repeatedly exposing workers to fall hazards while working on scaffolding structures. Proposed penalties total $221,600.

“Falls remain the number one killer of workers in the construction industry,” said Charles E. Adkins, OSHA’s regional administrator in Kansas City, Mo. “OSHA will not tolerate employers who repeatedly fail to provide and ensure the use of fall protection, continuing to place their workers’ lives at needless risk.”

OSHA’s inspection, which began in February 2010, resulted in Sturgis Tuckpointing receiving two alleged serious and five alleged repeat citations. The serious violations address hazards associated with the misuse of portable ladders. OSHA issues a serious citation when death or serious physical harm is likely to result from a hazard that an employer knew or should have known about.

The repeat violations address hazards associated with a lack of worksite inspections, no protection from overhead hazards, unsafe scaffold access, lack of fall protection on a scaffold and a lack of or deficient scaffold training. OSHA issues repeat violations when an employer previously was cited for the same or a similar violation of any standard, regulation, rule or order at any other facilities in federal enforcement states within the last three years.

Detailed information on scaffold hazards and safe work practices, including an interactive e-Tool, is available online at http://www.osha.gov/SLTC/scaffolding/index.html.

Sturgis Tuckpointing has 15 business days from receipt of the citations to comply, request an informal conference with OSHA’s area director in St. Louis or contest the findings before the independent Occupational Safety and Health Review Commission. To report workplace accidents, fatalities or situations posing imminent danger to workers, call OSHA’s toll-free hotline at 800-321-6742.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to assure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov

DALLAS - The U.S. Department of Labor’s Occupational Safety and Health Administration has cited Krestmark Industries LP with one alleged willful and 10 alleged serious violations following a safety and health inspection at the company’s worksite in Dallas. Penalties total $129,500.

“This employer clearly knew that workers at this facility were exposed to hazardous levels of noise,” said Stephen Boyd, OSHA’s area director in Dallas. “The company ignored its responsibility under the Occupational Safety and Health Act and continued to jeopardize the health and safety of its workers.”

OSHA’s Dallas Area Office began its inspection in January at Krestmark’s Bastille Road facility after receiving a complaint alleging employees were being exposed to safety hazards. A willful violation has been issued for the company’s failure to institute an effective hearing conservation program when workers were exposed to noise levels at or above 85 decibels. A willful violation is one committed with intentional, knowing or voluntary disregard for the law’s requirements, or with plain indifference to employee safety and health.

The company also has been cited with 10 serious violations for failing to protect workers from being struck by flying objects, the unexpected release of energy while servicing and maintaining equipment, exposure to blood and hazardous chemicals and failing to train workers on the safe operation of forklift trucks. A serious violation is one in which there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.

Employers and employees with questions regarding workplace safety and health standards can call OSHA’s Dallas Area Office at 214-320-2400 or OSHA’s toll-free hotline at 800-321-6742 to report workplace accidents, fatalities or situations posing imminent danger to workers.

Krestmark Industries has 15 business days from receipt of citations to comply, request an informal conference with the OSHA area director in Dallas, or contest the citations and penalties before the independent Occupational Safety and Health Review Commission.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to assure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

MENTOR, Ohio - The U.S. Department of Labor’s Occupational Safety and Health Administration has cited Mentor-based RKI Inc., which operates the Roll-Kraft steel manufacturing facility, with 12 alleged safety violations carrying proposed penalties of $69,650. The company has been cited for failing to properly protect workers against electrical and machine hazards, and for not providing required safety training.

OSHA has cited the company with one willful and seven serious safety violations following an inspection in January. Some of these violations include the company’s failure to provide adequate guarding on lathes, grinding and other dangerous machines; to develop and implement training on locking a machine’s energy source, and alerting others about the state of that power source; and to provide proper fire response training.

A willful violation is one committed with intentional, knowing or voluntary disregard for the law’s requirement, or plain indifference to employee safety and health. An OSHA violation is serious if death or serious physical harm can result from a hazard an employer knew or should have known exists.

The company also has received four other-than-serious violations for failing to properly record past workplace injuries.

“It is the responsibility of employers to ensure workers are provided with proper safety protection against electrical and machine hazards, and that they receive proper emergency training,” said OSHA Area Director Rob Medlock in Cleveland, Ohio. “Those who ignore these safety and health regulations are inviting tragedy into the lives of their workers.”

The company has 15 business days from receipt of its citations and penalties to comply, request an informal conference with OSHA’s area director or contest the findings before the independent Occupational Safety and Health Review Commission. To report workplace accidents, fatalities or situations posing imminent danger to workers, call OSHA’s toll-free hotline at 800-321-OSHA (6742).

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to assure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

WASHINGTON - The U.S. Department of Labor’s Occupational Safety and Health Administration today announced it has resolved litigation with Imperial Sugar Co. stemming from the February 2008 explosion at its Port Wentworth, Ga., plant and subsequently discovered safety and health violations at the company’s Gramercy, La., facility.

“The 2008 explosion took the lives of 14 people and seriously injured dozens of others. Clearly, health and safety must become this company’s top priority,” said Secretary of Labor Hilda L. Solis. “This agreement requires Imperial Sugar to make extensive changes to its safety practices, and it underscores the importance of proactively addressing workplace safety and health hazards.”

In the agreement, submitted to Judge Covette Rooney of the Occupational Safety and Health Review Commission, Imperial Sugar will pay $4,050,000 in penalties for the 124 violations found at its Port Wentworth plant after the explosion, plus an additional $2 million for the 97 violations found in March 2008 after an inspection of its only other facility, located in Gramercy. The citations alleged, among other safety and health hazards, that the company failed to properly address combustible dust hazards.

As part of the settlement, Imperial Sugar agrees that it has corrected all deficiencies at both of its plants or will correct those deficiencies according to a set schedule. Preventative maintenance and housekeeping programs have been established, and Imperial Sugar will identify and map locations where combustible dust may be present at its plants. The company also will conduct regular internal safety inspections and employee training, and hire an independent expert at each plant to ensure that there are adequate avenues of communication on worker safety and health issues within the company.

Furthermore, Imperial Sugar has hired and agrees to continue to employ a full-time certified safety professional for the Georgia plant. The company will retain outside consultants to conduct safety audits for a three-year period and evaluate Imperial’s programs relating to managing combustible dust hazards, such as housekeeping, preventative maintenance and protective equipment for workers. OSHA will approve all safety, health and organizational experts retained by the company.

OSHA will receive current and accurate injury logs whenever requested, and OSHA will be allowed to enter the facility and conduct inspections based on those logs without objection from the company. OSHA will regularly monitor progress and compliance with the agreement and continue to conduct regular inspections of the facility.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to assure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

SAN JUAN, Puerto Rico - Recurring safety hazards at the Puerto Nuevo Port Area marine terminal in San Juan have led the U.S. Department of Labor’s Occupational Safety and Health Administration to propose $72,500 in fines against Horizon Lines of Puerto Rico Inc. OSHA cited the company for alleged repeat and serious violations of safety standards following an inspection opened June 7 in response to a complaint from employees.

“Workers performing stevedoring operations at the terminal were exposed to potential crushing, fall, electrical and struck-by hazards while operating loaders, trucks and cranes with safety deficiencies,” said José A. Carpena, OSHA’s area director for Puerto Rico. “We are concerned that several of these conditions are similar to hazards cited during an earlier OSHA inspection. For the safety of its workers, this employer must correct these hazards and ensure they do not happen again.”

OSHA found several instances where top loaders and trucks were operated with defects, including inaudible or inoperable back-up alarms and inoperable or missing headlights, brake lights, horns and wipers. Employees were also exposed to live electrical parts while working in the operator’s cabin of a crane and lacked eye and hand protection. OSHA cited Horizon Lines of Puerto Rico Inc. in October 2006 for similar hazards at this same location. As a result, three repeat citations, with $57,500 in proposed fines, have been issued to the company for these recurring conditions.

The latest inspection also found workers exposed to possible tip over of trucks and top loaders due to holes and unleveled terrain at the marine terminal as well as unsafe access to the crane’s operator cabin, an obstructed operator’s view from the crane’s cabin and disconnected brake lines on trucks. These conditions resulted in four serious citations, with $15,000 in proposed fines. OSHA issues serious citations when death or serious physical harm is likely to result from hazards about which the employer knew or should have known.

“One means of preventing recurring hazards is for employers to establish an effective comprehensive workplace safety and health program in which their workers take a continuous and active role in evaluating, identifying and eliminating hazards,” said Robert Kulick, OSHA’s regional administrator in New York.

Horizon Lines of Puerto Rico Inc. has 15 business days from receipt of its citations and proposed penalties to comply, meet with OSHA’s area director or contest the findings before the independent Occupational Safety and Health Review Commission. The inspection was conducted by OSHA’s Puerto Rico Area Office; telephone 787-277-1560. To report workplace accidents, fatalities or situations posing imminent danger to workers, call OSHA’s toll-free hotline at 800-321-6742.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to assure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

Earlier this month the Occupational Safety and Health Administration has announced in a notice of proposed rulemaking (NPRM) published in the Federal Register its plans to require improved worker protection from tripping, slipping and falling hazards on walking and working surfaces currently in subparts D and I of 29 CFR 1910. A public hearing on the revised changes will be held after the public comment period is over.

The NPRM describes revisions to the Walking-Working Surfaces and Personal Protective Equipment standards to help prevent an estimated annual 20 workplace fatalities and more than 3,500 injuries serious enough to cause people to miss work.  A leading cause of worker-related injury and death comes from employees slipping, tripping, or falling from work surfaces such as floors, platforms, portable and fixed ladders, stairs, and ramps. Employees may be exposed and unprotected from these hazards or may have a protection system in place but are using that system incorrectly.

According to OSHA the current walking-working surfaces regulations allow employers to provide outdated and dangerous fall protection equipment such as lanyards and body belts that can result in workers suffering greater injury from falls. Construction and maritime workers already receive safer, more effective fall protection devices such as self-retracting lanyards and ladder safety and rope descent systems, which these proposed revisions would also require for general industry workers.

The current walking-working surfaces standards also do not allow OSHA to fine employers who let workers climb certain ladders without fall protection. Under the revised standards, this restriction would be lifted in virtually all industries, allowing OSHA inspectors to fine employers who jeopardize their workers’ safety and lives by climbing these ladders without proper fall protection.

Here is a little background:

• Subpart D contains standards for walking-working surfaces and was adopted in April of 1971 in accordance with Section 6(a) of the OSH Act. The primary sources for subpart D were several pre-1971 editions of American National Standards Institute (ANSI) consensus standards. There has been little change to the standard in subpart D since its initial adoption.
• Some early OSHA walking-working surfaces standards were developed with little consideration given to the consistency among the requirements applicable to general industry, shipyards, and construction. As a result, there are different requirements for similar, and sometimes identical, hazards in different industries.
• Existing subpart D is organized such that its sections are often redundant and difficult to use. Reducing redundancy makes subpart D clearer and easier to read, facilitating workers’ and employers’ understanding and application of the rule.
• In 1973, OSHA published a proposed revision of subpart D that was withdrawn in 1976 because, in the Agency’s view, it had become outdated and did not reflect then-current information. In 1990, OSHA published another proposed rule to reorganize, update, and clarify the subpart and add personal fall protection requirements to subpart I, which regulates personal protective equipment. In 2003, the rulemaking record was reopened and several issues were raised. Comments to the record indicated that the 1990 proposed rule was outdated and did not give adequate consideration to newer technology. In 2005, the decision was made to completely redraft the proposed rule. The 1990 proposal was not withdrawn, and therefore is still on record today as a proposed rule
• Subpart I contains standards for personal protective equipment, but it does not currently address personal fall protection systems.

Overview of Proposed Subparts D and I:

• OSHA estimates the proposed rule would prevent 20 workplace fatalities per year, and over 3,700 injuries per year that are serious enough to result in days away from work.
• Subpart D would be reorganized in a clear, logical manner, thereby facilitating compliance and enhancing employee protection.
• The proposed rule would eliminate duplication and extensive specification of requirements, while emphasizing performance-based criteria; for example, the proposal would incorporate the construction scaffolding standards, which would eliminate the need for most scaffold specifications in general industry.
• A new section would be added to subpart I that provides criteria for fall protection equipment. This new section would make the general industry standards consistent with existing construction and maritime standards regulating fall protection, as well as current industry practice, and give clear standards on fall protection PPE to employers.
• Compliance flexibility would be provided for the mitigation of fall hazards; for example, proposed subpart D would require fall protection, but would provide options for compliance such as travel restraint systems and designated areas for fall protection when appropriate. Subpart I would provide criteria on the proper use of personal fall protection systems when used by the employer.

Click here to view video comments by Dr. Michaels
 

Work Performed at Home Can Cause Headaches for Employers.

Scenario:  An employee works at home part of each work week, primarily performing data entry tasks.  One day the employee was carrying a large file folder of forms from his car into his house and was going to his home office to work. However, he stumbled on one of his child’s toys lying on the driveway and fell.  He sprained his right hand and was unable to perform any work either at home or the workplace office for seven work days. The employee feels that the incident is work-related, but the employer is not sure. 

Question:  Should the incident and days missed from work be considered work-related and recorded?

Answer:  1904.5(b)(7) of the OSHA Standard states:

How do I decide if a case is work-related when the employee is working at home? Injuries and illnesses that occur while an employee is working at home, including work in a home office, will be considered work-related if the injury or illness occurs while the employee is performing work for pay or compensation in the home, and the injury or illness is directly related to the performance of work rather than to the general home environment or setting. For example, if an employee drops a box of work documents and injures his or her foot, the case is considered work-related. If an employee’s fingernail is punctured by a needle from a sewing machine used to perform garment work at home, becomes infected and requires medical treatment, the injury is considered work-related. If an employee is injured because he or she trips on the family dog while rushing to answer a work phone call, the case is not considered work-related. If an employee working at home is electrocuted because of faulty home wiring, the injury is not considered work-related.