Failure to Enforce Lock-Out/Tag-Out Rules Leads to Serious Injury Due to the Unexpected

Lock-out/tag-out (LOTO) procedures constitute critical safety requirements in the construction industry. Whether working with conveyors on a site, cranes, mixers, compactors, or other energized equipment, the risk is the same: unexpected start-up or release of stored energy can maim or kill workers.  

The recent decision of Secretary of Labor vs.  Packers Sanitation Services, Inc. offers important lessons that translate directly to construction workplaces, where energized equipment is common and the hazards are equally severe.

Packers Sanitation Services, Inc. (PSSI), a large sanitation contractor, was cited after a worker suffered a fractured arm at Illinois food processing facility on April 20, 2023, when his arm was caught in a running conveyor. Following the incident, OSHA investigated PSSI’s operations and cited PSSI for violation of the federal safety rules pertaining to lock out/tagout procedures that govern the established procedures of energy controls and hazardous energy.  The conditions in this case can easily mirror conditions at construction sites and jobsites where employees have to clean, maintain, and/or troubleshoot heavy equipment.

PSSI did have various written policies regarding safety at this facility from their employee handbook that referenced certain LOTO procedures including the following:

• Maintaining a safe distance when working near running equipment.

• Requiring equipment to be locked out if a worker had to remove any type of machine guarding or to have secondary guarding in place if they had to work near an operation pinch point (where any part of the body can be caught between the moving parts).

• Mandatory lockout/tagout any time a worker crossed the plane of operation of a machine (by exposing a body party to the operating mechanics of equipment by reaching, stepping, leaning, crawling).  

PSSI also had equipment specific de-energization procedures as well as mandatory safety training on LOTO, pre-shift safety meetings, weekly safety meetings and LOTO refresher training all overseen and enforced by PSSI management.  They professed a zero-tolerance policy for violation of lifesaving rules like LOTO. 

However, at this facility, workers would routinely clean conveyor belts without locking them out.  Instead, they used air hoses and relied on foot pedals to intermittently move the belt.  Here, the injured employee wedged the foot pedal, so the conveyor ran continuously while he worked underneath when his sleeve was pulled into the sprockets, causing serious injury.  

Construction projects rely on powered equipment such as pumps, elevators, rebar benders, compressors, and excavation machinery that must be serviced, maintained, or cleaned. Just as in PSSI’s facility, workers are often tempted to bypass lock-out/tag-out procedures  to “get the job done faster.” Supervisors may even tacitly allow it, especially when project schedules are tight.

The Administrative Law Judge (ALJ) affirmed OSHA’s citation and rejected the company’s defenses.  The ALJ found that the cited safety standard applied because the conveyor could inadvertently start or continue running without warning.  Although PSSI had multiple procedures and a robust safety and audit program, the ALJ also found that written rules were contradicted by training, which therefore constituted ineffective communication of the work rules leaving them not properly protected.   

PSSI’s employees were routinely permitted in the zone of danger,  which was not considered as an isolated act of misconduct but as an accepted practice. Given that supervisors were continuously present on the floor, they knew or should have known of the widespread unsafe practice (wedging the foot pedal). Supervisors failed to enforce rules, and discipline was inconsistent.  The violation was affirmed as a “serious” with the imposition of a $15,625 penalty.  

This decision made it clear that any time a worker crosses the plane of operation or works within reach of moving parts, the equipment must be de-energized and locked out. The worker’s awareness that a machine is “running” does not excuse the employer from compliance because the safety regulations protect against inadvertent or unexpected energization, not just surprise start-up.

Moreover, this decision translates into several critical lessons for employers.  

Consistency between Training and Safety Rules. Workers cannot be told one thing in a manual and another in the field. Contradictory instructions such as “arm’s length” in writing versus “six inches” in practice can create confusion. Clear, consistent messaging ensures workers know exactly when LOTO is required.

Supervisors Must Enforce, Not Overlook. On a jobsite, supervisors are often just feet away from unsafe practices. Turning a blind eye because “everyone does it” is not a defense. OSHA will impute knowledge to the employer when hazards are in plain sight.

Avoid Shortcuts with Safety.  Using tools, hoses, or makeshift controls does not eliminate the need for lock-out. Just as the PSSI worker was injured despite using an air hose, construction workers are at equal risk when they rely on “workarounds” instead of true de-energization.

Machine-Specific Procedures Are Essential. Construction companies must have step-by-step LOTO procedures for each piece of equipment such as saws, mixers, conveyors, pumps, (etc.) and not just general “safety handbooks.” Group procedures are allowed, but only if they fully address the hazards of each machine type.

Enforcement of Safety Rules is Required.  If a company claims “zero tolerance,” it must mean exactly that. Selective or inconsistent enforcement undermines the rule and exposes the employer to liability even if they have a strict policy on paper. 

If employees are near energized equipment, they are in danger unless LOTO is strictly followed.

About the author: Costas Cyprus, Esq. practices construction law and commercial litigation with Welby, Brady & Greenblatt, LLP, in White Plains, NY. He can be reached at 914-428-2100 and at ccyprus@wbgllp.com. The articles in this series do not constitute legal advice and are intended for general guidance only.

If you would like more information regarding this topic please contact Costas Cyprus at ccyprus@wbgllp.com or call (914) 607-6445