Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The Occupational Safety and Health Administration (OSHA) has finalized its long-awaited approach to crane operator qualification and certification.1 The rule, which has followed a tortuous road to completion, ends the Agency’s multi-year effort to conclude its update of safety requirements related to crane and derrick use in construction.
The rule establishes a three-pronged approach to ensuring that crane operators can safely operate cranes: (1) operator training for employees not yet certified to operate cranes; (2) operator certification via four different permissible options; and (3) employer evaluation of certified operators. Construction employers with employees who operate cranes should assess their training, certification, and evaluation programs now to ensure they are fully compliant with the new rule.
Background: OSHA’s 2010 Final Rule
In 2010, OSHA finalized a major construction standard overhauling the safety and health requirements for operating cranes and derricks in construction.2 One of the more controversial requirements in the final rule related to operator qualification and certification (Section 1926.1427). The negotiated rulemaking committee that formulated the proposed rule (“C-DAC”) “concluded that a verified testing process [was] essential for ensuring that crane operators have the requisite knowledge and skills and that requiring crane operators to successfully complete such a process would be an effective and efficient way to reduce crane-related accidents.” Thus, OSHA proposed—and ultimately finalized—a rule that required more than training and evaluation of crane operators. The rule established a complicated system of qualification and certification involving training organizations accredited by certain third parties.
In the original final rule published in 2010, employers had essentially four options for ensuring that their operators were competent to operate cranes:
- If the employers operated in a state or locality that had specific crane operator licensing laws, then they were required to follow those laws (assuming the laws met certain criteria);
- Operators could be certified by passing an examination administered by an accredited testing organization;
- Operators could be qualified through the employer’s in-house, but independently audited, testing program; or
- Operators could be qualified by the United States military.
The second option—certification by passing an examination administered by an accredited testing organization—was the option that OSHA believed most employers would utilize. In addition, because this option was considered the “gold standard” with respect to operator qualification and certification, OSHA determined that this certification was portable, in that an employer could rely on this certification for operators, provided the certification had not expired.
OSHA also required that operators be certified both by type of crane and by capacity. The requirement was “designed to ensure that a certified operator ha[d] the knowledge and skill needed to safely operate equipment of the type and capacity the employee will actually be operating while avoiding the need for employees to know how to operate more complex equipment.”
Because of information submitted in the rulemaking record regarding the availability of accredited testing organizations to satisfy the demand for operators that needed qualification and certification, OSHA gave employers four years to come into compliance with the certification requirement. During this four-year period, OSHA adopted interim protective measures to ensure that operators continued to be qualified to operate cranes safely.
OSHA intended that the interim protective measures would only be temporary, as once the intensive qualification and certification requirements of the rule were fully in effect, there would be no need for them to continue.
Post-Promulgation Extension and Reconsideration
After the Agency published the original final rule, stakeholders continued to raise concerns regarding the qualification and certification requirements. On September 26, 2014, OSHA published a final rule extending its four-year deadline for employers to ensure that crane operators are certified and similarly extended the interim protections for the same period of time.3 OSHA stated:
OSHA is publishing this final rule to extend for three years the employer duty to ensure crane operator competency for construction work, from November 10, 2014, to November 10, 2017. OSHA also is extending the enforcement date for crane operator certification for three years from November 10, 2014, to November 10, 2017. After publishing the final rule for cranes and derricks in construction, several entities informed OSHA that crane operator certification was insufficient for determining whether an operator could operate their equipment safely on a construction site. After hosting several public meetings addressing this issue, OSHA decided the extension is necessary in order to allow the Agency to examine and determine how to address this issue systematically.
In May 2018, OSHA issued a new proposed rule related to the operator qualification and certification requirements. Based upon additional stakeholder input, OSHA proposed to (1) permanently extend and clarify each employer’s duty to ensure the competency of crane operators through required training, certification or licensing, and evaluation; (2) establish minimum requirements for operator competency; and (3) revise the previous requirement that certification must be based on type and rated capacity, instead just requiring that certification be based on type of crane.4
The Final Rule
On November 9, 2018, OSHA issued the final rule. In large measure, OSHA simply finalized its proposed approach to the issue set forth above. Notably, OSHA retained the “gold standard” of operator qualification and certification initially established in 2010 that requires crane operators to be certified through one of the four options allowed in the original rule. However, OSHA revised the rule to require certification by “type” of crane only, not “type” and “capacity.”
The rule also establishes specific operator training requirements for those operators that have not yet been certified per the rule. The new, final operator qualification and certification provisions require the employer to provide each operator-in-training (i.e., an operator that has not been certified and evaluated) with sufficient training, through a combination of formal and practical instruction, to ensure that the operator-in-training develops the skills, knowledge, and ability to recognize and avert risk necessary to operate equipment safely. The operator-in-training must be “continuously monitored” by the “operator’s trainer.” The operator’s trainer must be someone who has the knowledge, training, and experience necessary to direct the operator-in-training on the equipment in use.
Finally, employers must also ensure that each operator is “qualified” by a demonstration of the skills and knowledge, as well as the ability to recognize and avert risk, necessary to operate the equipment safely, including those “specific to the safety devices, operational aids, software, and the size and configuration of the equipment.” The evaluation must be conducted by an individual “who has the knowledge, training, and experience necessary to assess equipment operators.”
The three-pronged qualification requirements are intensive, but they appear to be here to stay. Employers that operate cranes should take stock of their programs now and ensure that they fit within the parameters of OSHA’s scheme. Littler attorneys are available to assist employers to help ensure compliance.
1 OSHA, Cranes and Derricks in Construction: Operator Qualification, 83 Fed. Reg. 56198 (Nov. 9, 2018).
2 75 Fed. Reg. 47906 (Aug. 9, 2010).
3 79 Fed. Reg. 57785 (Sep. 26, 2014).
4 83 Fed. Reg. 23534 (May 21, 2018).