In 1970 Congress established the Occupational Safety and Health Act and an accompanying Administration with the mission to assure safe and healthy working conditions for the American people. Under Section 5(a)(1) of the Act, employers are required to provide their employees with a place of employment that “is free from recognizable hazards that are causing or likely to cause death or serious harm to employees.” This provision of the Act is typically referred to as the general duty clause, and goes on to require that employers comply with the standards promulgated under the entirety of the Act.

The Occupational Safety and Health Administration (OSHA) has without question made the U.S. workforce safer in the 40-plus years since its inception. However, injuries due to workplace hazards are still some of the most common cases we see in our practice. Often these injuries are caused by hazards created by the premises where one is working, such as trip-and-fall accidents or falls from ladders or stairs. However, the most serious on-the-job injuries we see typically involve hazards caused by defective machinery, equipment or tools on the job site.

Industrial machines, often due to the very nature of the machines, create hazards that cannot be completely eliminated. To completely do away with these functions would eliminate the hazard, but also the utility of the machine. In such cases, guards are often the best means to retain both the function of the machine and protect the employee against the hazard. The OSHA Act specifically speaks to the necessity to guard against hazards caused by machinery. Section 1910.212, often referred to as the general guarding provision, requires “one or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks.”

Hazards generally occur in three locations: the point of operation, or the location where the machine cuts, bends, or presses a material; a power take-off or power transmission device; or any other moving parts such as gears or chains. For employees that work around machinery, it is imperative that these hazardous areas are adequately guarded. There are many different types of guards that are commonly used to protect the user from the hazards associated with these locations. Fixed barrier guards, interlocking devices, light curtains, and sensors are all common methods to protect the user from hazards.

Other forms of guarding include two-hand tripping devices, or other means by which to keep the operators’ hands away from the moving parts. An appropriate guarding method largely depends on the type of hazard. Effecting machine design requires that the engineer perform a hazard risk analysis. In the analysis, the engineer must identify all hazards and undertake to either eliminate the hazard through design or guarding.

The most effective guards are those that do not hinder the function or utility of the machine while safely eliminating the hazard posed to the user. OSHA further requires that the guard be fastened to the machine, difficult to remove, and not create additional or different hazards.

Even if the manufacturer takes appropriate steps to design and implement guards on machinery, the guards must remain in place and in good working order to be effective. In Alabama, if an employer removes a safety device incorporated by the designers of the machine, the injured may sue their employer outside of workers’ compensation. Under Ala. Code § 25-5-11(c)(2), an injured employee may bring an action in tort if a safety device is intentionally removed from a machine. These cases are very common and are easily overlooked unless a detailed investigation is conducted.

All too often machines are unguarded, inadequately guarded, or the wrong type of guard is used. In many instances productivity and ease of use is given more weight in machine design than user safety. Failure to adequately guard against hazards can cause any number of injuries including amputations, lacerations, and even death. Every on-the-job injury involving a machine must be examined on a case-by-case basis. Just because guards are incorporated into a particular machine does not necessarily mean that the user or operator was adequately protected. OSHA regulations are a great starting point in building a machine guarding case.

If you need more information on this subject, contact Evan Allen, another of our lawyers in our Personal Injury & Products Liability Section, who handles premises liability claims, at 800-898-2034 or by email at Evan.Allen@beasleyallen.com.



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