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Machine Guarding Citations and OSHA’s Burden Of Proof

By: Carl Habekost, Esq.

chabekost@bugbeelawyers.com

The Occupational Health and Safety Review Commission (OSHRC) rendered 2 decisions recently on the issue of machine guarding under 29 C.F.R. 1910.212(a)(1). The OSHRC decisions in Aerospace Testing Alliance and Wayne Farms vacated OSHA’s machine guarding citations finding that OSHA failed to meet its burden of proof.

On September 21, 2020 in Aerospace Testing Alliance, the OSHRC voted unanimously to vacate the citation finding that OSHA failed to establish that the guards on the machine in question were non-compliant. The pertinent facts reveal that Aerospace operated a sheet metal shop at Arnold Air Force Base in Tennessee. An experienced employee was cutting a small piece of metal. He took off a glove, which was required PPE for the job, so he could circumvent the guard surrounding the danger zone. With his glove off, he could slide his finger underneath the guard and hold down the piece he was cutting. Unfortunately, the employee inadvertently pressed the foot pedal and activated the machine which crushed the tip of one of his fingers. Soon thereafter, he underwent surgery to amputate the tip of his finger. Upon investigation, an OSHA Compliance Officer determined that the machine was not properly guarded and therefore issued a citation under 29 C.F.R. 1910.212(a)(1). The OSHRC found that OSHA failed to establish that the guards on the machine were non-compliant given “the manner in which the machine functions and how it is operated by the employees.” In a very insightful and important footnote, the OSHRC stated that “workplace safety is a shared responsibility and therefore 1910.212(a)(1) only requires a guard to protect against reasonably predictable exposure to the hazards present.”

On September 22, 2020 in Wayne Farms, LLC, the OSHRC voted unanimously to vacate the machine guarding citation finding that OSHA failed to establish a hazard such that Wayne Farms was required to guard the machine under 1910.212(a)(1). The pertinent facts reveal that Wayne Farms operates a poultry processing facility equipped with an AccuFeeder breading machine used to bread chicken wings.  Employees pour bags of flour through a metal grate which covers the AccuFeeder’s hopper. The metal grate is equipped with a hinge on one side and a latch on the other which allows it to be lifted up as needed. Testimony before the Administrative Law Judge indicates that the machine operator fills the AccuFeeder with 4 or 5 50-pound bags of flour every 10 to 15 minutes. On the day of the accident, while the machine was running, an employee lifted the hopper’s metal grate and reached inside to clean flour out of the hopper. The paddles at the bottom of the hopper activated and pulled his arm and hand into the mechanism.  The employee suffered serious injuries to his hand and arm and also suffered an amputation of 2 fingers. Upon investigation, an OSHA Compliance Officer found that Wayne Farms violated the machine guarding regulation by exposing employees to the unguarded sprocket and chain system in the AccuFeeder machine. The OSHRC found that OSHA failed to establish non-compliance in guarding the machine and vacated the citation. The OSHRC stated that “…the occurrence of the operator’s injury here does not, by itself, establish that Wayne Farms failed to comply with 1910.212(a)(1). Indeed, non-compliance in this case hinges on whether the operator’s actions were reasonably predictable given the machine’s normal operation.”

The four (4) elements which OSHA must prove to establish violation of Section 1910.212(a)(1) are:

  • The cited standard applies;
  • The employer failed to comply with the standard;
  • Employees were exposed or had access to the violative or hazardous condition; and
  • The employer knew or could have known of the condition with the exercise of reasonable diligence.

Although these two (2) cases are different in factual background, the analysis of the facts and the application of the law are similar. In each case, the OSHRC determined that Section 1910.212(a)(1) is a “performance standard” meaning the employer can determine the manner and means of compliance rather than being told which specific guard must be used. Performance standards require an employer to identify the hazards and take the necessary steps to abate the hazards. Exposure to a hazard is not based on mere “physical possibility”. Rather, as the OSHRC stated, exposure must be “reasonably predictable” either by operational necessity or otherwise (including inadvertence) that employees have been, are, or will be in the zone of danger. Further, the occurrence of an injury does not, by itself, establish non-compliance with the machine guarding standard.  In other words, a compliant guard does not need to prevent intentional exposure to the hazard. In both cases, the OSHRC found that the injured employees intentionally exposed themselves to a hazard and such exposure was not reasonably predictable behavior. Therefore, OSHA failed to establish its prima facie case because it failed to establish the element of “non-compliance” with the cited standard.

These two (2) decisions by the OSHRC are encouraging in the sense that OSHA was held to its burden of establishing all four (4) of the elements of the alleged violations of the machine guarding standard.  Please contact a member of our Labor and Employment Section with further questions or concerns.

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