The occupational safety and health industry and civil authorities require that employers provide training to employees. In the U.S., OSHA mandates safety training related to tasks assigned to employees. The agency often also requires the employer to certify that the training has been completed. In fact, if you have an incident requiring OSHA notification, the first question that will be asked is, “Was the employee trained for the task?” The second inquiry will be a request for documentation of the training, usually followed by an enforceable subpoena for those training records.
Training and certification of training are important for two reasons. The first is that training has clearly been demonstrated to reduce incidents and injuries to workers. Second, OSHA will hold employers accountable for the training they conduct. The penalties for willful violation of training requirements are rarely discussed, and I hesitate to do it here, but the record shows that if an employer does not train, and OSHA can show the employer knew training was required, the penalties are based on willful violation. Penalties for willful violations that result in fatalities can include jail time for the employer. In addition, if OSHA wins a willful violation case, the employer can expect charges of negligence under both civil and criminal liability standards. Don’t take this training responsibility lightly. I, like OSHA, would prefer employers be compliant for the welfare of the workforce because they are ethical and care about their employees. But if the threat of prosecution works, we still accomplish the desired outcome: a safer workplace.
What is Certification?
As a work methods consultant, I am asked almost weekly if the organization I work for provides “certified” training. My answer is always yes, and the client is happy. The issue is that the question – though valid – is open-ended, and the answer is, too. To be fair, I always explain to those clients that I provide an agenda and the topics to be covered in the training, and I sign the contract certifying I am providing that training. That’s essentially what certification is, a record that something occurred. The problem is defining what that “something” was, if it was appropriate, and if it complied with the requirements of the OSHA standard for training and qualification.
Certification is only as good as the standard to which you are being certified. If there is no standard, then the certification protocol is left up to the employer or training developer, who must determine what should be included in the training that the trainer will certify as delivered. Many OSHA standards state, “The employer shall certify …” followed by, “The certification record shall be prepared at the completion of the training” and “The certification record shall be kept readily available for review by the Assistant Secretary of Labor.” That language appears so frequently that I don’t have the space to list all of the references here. It’s up to the employer’s safety representative to determine what training is required, and it is up to the employer to assure it occurs and is documented in accordance with the related training standard. The good news is that for the dozens of topics in the OSHA standards that require training, the employer only has to train on those topics that are related to the individual workplace. To help in navigating the training maze, OSHA has produced “Training Requirements in OSHA Standards,” a downloadable guide available at www.osha.gov/Publications/osha2254.pdf.
Licensing and Portability
The next issue is how to effectively implement required training. At present, the only OSHA standard that mandates third-party training is 29 CFR 1926 Subpart CC, “Cranes & Derricks in Construction.” Paragraph 1926.1427 has several certification schemes depending on who employs the crane operator, but only government employers can train their own operators. A government entity – meaning a military, state or municipal jurisdiction – can train and certify their own operators if the training meets the topical and demonstration requirements of 1926.1427. That license is only good within the jurisdiction of the government body; it is not portable, and it is only valid for five years, after which re-examination and relicensing are required.
“Not portable” in this sense means that if an operator leaves his government job, the license received from his government employer is no longer valid. In fact, a strict reading of the phrase “within that entity’s jurisdiction” found at 1926.1427(c)(1) means that a licensed operator for a municipal, working a mutual aid effort in a different jurisdiction, cannot legally operate a crane in that different jurisdiction. That may be open for debate. The question is whether the municipal employees in another jurisdiction are considered a portable jurisdiction during a mutual aid operation. That question has not been addressed by OSHA as far as I am aware. If you are employed by the military, you are licensed wherever the military operates. If you are licensed through the state, the jurisdiction is within that state. The same goes for county or municipal licensing – the jurisdiction is within that county or municipality. Portability also means that if an operator leaves his government employment, his operator’s license is no longer valid. If that government operator moves into nongovernmental work, they must be trained, certified and licensed by an employer in the nongovernment or private sector.
Private employers are required to facilitate training and operator licensing through an accredited third party. For the employer, however, third-party certification and licensing do not meet all of the requirements to qualify an operator. Language was added to the new final rule (see www.govinfo.gov/content/pkg/FR-2018-11-09/pdf/2018-24481.pdf), effective December 10, 2018. The new requirements for evaluation and documentation became effective February 7, 2019. Those requirements specifically clarify and permanently extend the employer’s duty to evaluate potential operators for their ability to safely operate equipment covered by Subpart CC. For those operators who were not yet third-party certified prior to the final date requiring all operators to be certified by a third party, the employer was obligated to ensure operators were qualified to the requirements of 1926.1427. That requirement was permanently extended, which means employees with third-party crane operator certification still must be evaluated by the employer for safe operation and that evaluation must be documented.
Riggers and Signal Persons
While we are on the topic of operator certification, it may be timely for employers to understand that the standard does not require third-party operator qualification for riggers and signal persons. For a signal person, the employer may use an accredited third-party trainer under 1926.1428(a)(1); that certification is portable and can be recognized by all employers. The employer also may train and certify their own signal person under the provisions of 1926.1428(a)(2). That training must be conducted by a competent person, and the certification is only good for that employer, meaning it is not portable. Even if the employer chooses the third-party training and certification, the assumption from the standard is that the employer must assure the signal person is competent and document that assessment (see 1926.1428(b)). For riggers, the standard only requires that they be qualified by 1926.1404(r)(1). The qualification for crane riggers is no different than the qualification for any rigging task under any of the OSHA standards. The rigger must have the appropriate skills and know the safety requirements of the rigging task. The employer must ensure riggers are appropriately qualified to perform their tasks and be able to defend the training and qualification of the riggers. Since there is no specific requirement for third-party credentialed training like those requirements for the crane operator, the employer can create and administer in-house training within the rigger competency requirements of the OSHA standard.
Back to Certification
There are only two operator licensing requirements in the OSHA standard. The word “license” appears in the materials for crane operators and is synonymous with “certification.” “License” also appears in standards that require specialty training that is regulated by medical personnel and certain engineers. In any case, the employer simply needs to read the standard to determine what is required, whether it is called certification, documentation, qualification or licensing. The first required operator license we discussed is for crane operators. The second is for powered industrial trucks, also referred to as PITs or forklifts. What is unique about these two operator qualifications is that they are the only ones that have a list of topics and competencies spelled out in the OSHA standard for operator training. The PIT requirements permit the employer to provide the training and certification of PIT operators.
Where an OSHA standard requires training, it does not usually specifically describe the requirements for assuring competency or qualification or who delivers it for the employer. With the exception of crane operators, where OSHA does specify certain credentials for trainers and certification, it is up to the employer to decide how they will meet the requirements to assure employees are properly trained. Where the employer delivers training, the employer must assign the training or certification responsibility to an employee competent to determine whether the trainee is competent and/or qualified. Trainer competency means a trainer has the knowledge, training and experience to train and evaluate a trainee’s competence. In addition, where employers provide training and certification, the employer must be able to defend the content, quality and effectiveness of the training program. Employers also must be familiar with the requirements for ongoing evaluation of employee competence and any retraining requirements mandated by the related standards.
Third Parties and Assurances
As noted earlier, the employer only has to provide training specific to the work environment and skills or activities of their employees. Often, employers resent hiring out training where the topics are canned, expensive and don’t apply to an employer’s specific workplace. Custom training development specific to the workplace can be created by the employer or third-party developers. Engaging a third party to perform training does not excuse the employer of the responsibility to ensure competency. When selecting a third party, the employer’s due diligence is to know the requirements for training and ensure the third party can meet those expectations. Again, the employer must be able to defend the methods of training and evaluation whether they use a third party or perform training in-house. And as always, when you hear the word “certification,” you should ask, certification to what standard? Consensus standards essentially are best practices for specific industries. OSHA either adopts or references consensus standards. When adopted, the portions of the adopted standard using “shall” are enforceable by OSHA. Where a consensus standard is referenced, that referenced material is useful for employers in complying with an OSHA standard, but OSHA does not mandate or enforce it. Referenced consensus standards are enforceable if OSHA can show an employer had knowledge of a referenced consensus standard and if the provisions of the referenced standard are recognized by the employer’s industry and could have prevented the hazardous condition. That employer can be cited under the General Duty Clause because they knew there was a hazard and a means to mitigate it. Where there is an adopted consensus standard related to operation or qualification, certification should comport to that consensus standard. If a consensus standard has a certification curriculum, the training should comport to that curriculum.
Training and certification of the workforce is well-documented as valuable and important to workforce safety. OSHA has made their expectations pretty clear for both training and documentation of training. The agency also has made it pretty clear by their actions against employers that failure to train and assure employee safety is inexcusable. If you are a safety professional or an employer who has overlooked or fallen behind in your workforce training, take the time to audit your training programs against the OSHA standards. Get started today with bringing employee safety training into compliance. Remember, when it comes to OSHA and the safety of your employees, it hurts to be wrong.