Back in 1998 OSHA finally promulgated a standard for training the operators of powered industrial trucks. It was followed by an enforcement directive (CPL 2-1.28) that:
• Explained in detail how to comply with the standard, 29 CFR 1910.178 Powered Industrial Truck Operator Training (PITOT). • Mandated that operators be trained in the use of seat belts for lift trucks if specified in the operator’s manual. “Employers not providing training in the operating instructions, warnings or precautions listed in the manufacturer’s operator’s manual related to seat belt use may be cited under 1910.178(1)(3)(i)(M))” was the way the directive read.
All in all, OSHA had a good standard that would prevent injuries and save lives. Now OSHA proposes to chop up the seat belt part of the directive. The guy with the hatchet is Richard E. Fairfax, director of the Directorate of Enforcement Programs of the Occupational Safety and Health Administration (OSHA).
The proposal from Fairfax is briefly described in a memo that’s full of holes. First, Fairfax ignores the 1998 Powered Industrial Truck Operator Training (PITOT) standard and points to a 1996 memo that calls for enforcing seat belts through the 5(a)(l) keep-a-safe-workplace clause.
But 5(a)(1) is mushy; the newer PITOT is precise. Nevertheless, Fairfax says that his proposal “continues the enforcement policy” stated in that 1996 memorandum -- thus skipping over the 1998 PITOT altogether. Fairfax pulls the rug out from under seat belt enforcement by saying, “Because the issuance of a citation under 5(a)(1) is appropriate only when a condition or practice in the workplace presents a hazard to employees,” then lists a bunch of factors that could, in the estimation of an OSHA inspector, indicate that a tipover of the lift truck would be possible.
By skipping over PITOT, Fairfax can ignore its advice that the operator must be trained in “any other operating instructions, warnings, or precautions listed in the operator’s manual for the types of vehicle that the employee is being trained to operate.” That training must include both formal instruction and practical training.
Also, OSHA Directive CPL 2-28 says things like “Powered industrial truck operator training programs must cover equipment manufacturers’ recommendations as to the use of seat belts under 1910.178 (1)(3)(i)…”
A question about operator restraint systems in the directive is answered with “Therefore, operators must be trained in the use of operator restraint systems addressed in the operating instructions.”
So Fairfax has his work cut out for him, not only with CPL 2-2.28A but also with PITOT itself.
This tinkering with the compliance directive deals only with OSHA citations. No matter how many ifs and buts your employer inserts, he’s still leaving a paper trail for litigators should one of your employees or a contractor have an accident that involves a lift truck equipped with a seat belt. Do you think that a lawyer suing your company wouldn’t bring up the fact that you eliminated seat belts and training because OSHA has changed its enforcement rules?
You can comment on the OSHA proposal by writing to: U.S. Department of Labor, Occupational Safety and Health Administration, Directorate of Enforcement Programs, Attention: Patrick Kapust, Room N-3603, 200 Constitution Ave. N.W., Washington, D.C. 90210. Deadline for comments is December 1.
Keep in mind the lawyer’s advice I quoted in September 1999: “The focal point of the legal disputes arising from lift truck accidents will become whether the employer has properly trained the operator.”
Bernie Knill, contributing editor
