SC&RA NEWS: Clarifying the evaluation requirements

On November 9 (2018), OSHA issued its Final Rule for Operator Qualification. Employers were required to ensure that their operators are certified for the type of crane they will be operating as of November 10 (2018). All new provisions of the 2018 rule went into effect on December 10 (2018), except for the new evaluation and documentation requirements, which take effect February 7 of this year.

In the final rule, OSHA revises crane operator certification requirements from Subpart CC – Cranes and Derricks. First, this final rule removes the requirement that crane operator certifications include the crane’s rated lifting capacity. The two testing organizations that have certified the majority of operators have issued certifications by “type” but not “capacity.” These certifications, therefore, would not have been valid without a change to the rule – which provides revised language: “by type or by type and capacity.”

Second, OSHA is making permanent the employer duty to ensure that operators are competent to operate the equipment safely. While certification ensures an objective baseline of general knowledge of crane operation, it does not ensure that operators know how to operate a particular crane for a specific task. For this reason, OSHA is revising the crane standard to preserve a requirement that employers assess the ability of their operators to run the cranes they will be using for the tasks to which they are assigned.

Core issues

The evaluation component must be done by a person who has the knowledge, training and experience necessary to assess operators. Once an operator has passed an evaluation on one piece of equipment, the employer may allow that operator to operate different equipment without further evaluation if the employer can demonstrate that operating the equipment would not require substantially different skills, knowledge or ability to recognize and avert risk.

To that end, the evaluation must be documented and provide the operator’s name, the evaluator’s name and signature, the date of the evaluation and the make, model and configuration of equipment used in the evaluation. The employer must be able to make the documentation of the evaluation available on the worksite for as long as the operator is employed by the employer (electronic availability at the worksite is one way to satisfy the requirement). For operators employed prior to December 10 (2018), the employer may rely on its previous assessments of the operator in lieu of conducting a new evaluation of that operator’s existing knowledge and skills.

Additionally, while an employer may acquire operator certification through an accredited third-party organization, the employer may also develop its own “employer-audited” program to certify the “operators it employs.” The employer-audited programs must meet strict OSHA criteria as noted in the rule.

“So far, I’ve heard positive feedback based upon what OSHA had originally proposed,” indicated Thom Sicklesteel, General Manager at Leavitt Cranes USA. “I think they hit the core two issues: addressing the concerns of being able to have applications for multiple models, and then not having expiration dates on evaluations.”

Sicklesteel feels one of the biggest concerns focuses on the actual form – having it available on sight, but he sees additional challenges. “Secondarily, what if you have a temporary hiring situation – where you ramp up really quick for a short period of time? How do you actively do that? Though I think employers are starting to work through that.”

Ultimately, he sees the new rule as a benefit. “As an industry, we’ve been required to evaluate operators for a long time, and how that’s done has not been consistent, which has led to regulations and standards to clarify that,” he noted. “I think when OSHA is clear, it makes things safer. I really believe in the ‘trust but verify’ standard – and when companies do that, they’re just better. From an economic standpoint, having a consistent evaluation across the industry is a good standard, because now we all know what that means.”

Jeffery Hammons, president, JHam Group Consulting, echoes Sicklesteel’s optimism. “With my clients and myself, there’s no real problem with it,” he said. “This is what we’ve looked forward to for a long time. The diligence was done. A well-orchestrated procedure was put together, and we were ready for this.”

While Hammons appreciates that some companies will have to adjust and make changes compared to the historical way of certifying and evaluating operators, he believes these changes were needed.

“The technology has advanced so far; the equipment is not a hundred percent mechanical anymore,” he explained. “Now it’s also all the electrical sensors and resistors and everything that powers the operational aides and the safety devices and the elements per manufacturers to determine efficiencies, and oil/engine efficiencies, emission requirements. It’s all needed, but it’s gotten complicated as a result. Once all these things are implemented, operating a crane has become a little easier – so that part is a good experience for the operator, historically. The change is going to be the diligence required for compliance – but again, once we get into doing that, it’ll settle in very nicely. This is a good thing.”

Change for the better

“Where the challenges might emerge is when we’re really busy,” said Jennifer Gabel, owner of JK Crane, “and we hire operators directly through the union hall. In a lot of situations, the hall would indicate that this person can run a crawler, and if the crawler is already on the jobsite, we would send them straight to the jobsite. But now, my understanding is that they would have to first come to us to be evaluated on that crane – which is tricky if that crane is on the jobsite. It means I will now have to send someone (additional) to the jobsite to evaluate this person – prior to them being able to start the work.”

Gabel admits this is something she will have to manage and work through. “And maybe in those situations, it’s about trying to juggle people within our own company to jobs like that – and hiring a union hall operator for a job where they could come to us first for evaluation and then we send them out. But then, overtime pay could also become a question, and that’s, again, where this gets a little tricky.”

Peter Juhren, vice president of operations at Morrow Equipment, appreciates the new rule for its ability to weed out bad actors now that compliance is mandatory. “The majority of the industry that wants to do it right have already certified their operators,” he emphasized. “The laggards will now have to play catch up, and this will prove to be a challenge.”

In regards to confusion that has potentially emerged as a result of the old rule versus the new rule, Juhren added, “The original rule was amended by OSHA after CDAC convened, and this is what caused a majority of the delays and confusion. The committee never intended for the industry to test on type and capacity, or to consider certification equaling qualification. The evaluation portion has always been around, even before the 1990s, when the CDAC was proposed. Now it must be in written form and is relatively specific in its requirements. While there are still some gray areas, I feel the new rule is acceptable and compliance should not be overly burdensome.”

Inevitably, Juhren feels that mandatory certification will change the industry and promote a safer environment down the road. “I don’t expect immediate results, but once the effect of mandatory certification takes over in a few years, I feel the industry will be changed for the better.”