Preparing for new MEWP requirements

QUESTION: I know that new rules will be going into effect this year pertaining to aerial equipment. I’m hearing that major lawsuits already are being prepared against equipment sellers and lessors, and that the Occupational Safety and Health Administration (OSHA) is going to be levying big fines. What are the new rules, when do they go into effect and what should I do to make sure I don’t get fined or sued?

Answer: New standards related to aerial equipment, now referred to as mobile elevating work platforms (MEWPs), were scheduled to go into effect in December 2019, but that date is now delayed due to successful appeals of the standard as written. The new rules were first published by the American National Standards Institute (ANSI) in December 2018 in order to give industry participants a reasonable opportunity to review them and take the necessary steps to ensure compliance by the effective date, address a number of issues, including design (ANSI 92.20), safe use (ANSI 92.22) and training (ANSI 92.24) requirements.

However, successful appeals by ARA and another appellant that found the standards to be in violation of ANSI’s commercial terms have delayed implementation until at least March 1, 2020, and perhaps beyond that date because additional appeals still are possible.

When they become effective, these new standards will replace the current ANSI A92.3, 92.5, 92.6 and 92.8 standards and will effectively change everything from equipment classifications to how, when, where and by whom they can be used.

New classifications. Under the new standards, MEWPs will be classified as follows:

By “Group” as:

Vertical — technically, one that does not allow the main platform to extend beyond the MEWP’s tipping line, such as a scissor or mast lift.

Boom — technically, one that does allow the main platform to extend beyond the machine’s tipping line, such as an articulating boom lift. Personal fall protection equipment (PFPE) must be used on MEWPs in this group.

By “Type” based on mobility:

Type 1: Static. Travel is permitted only when the MEWP is in its stowed position.

Type 2: Mobile. Travel is permitted when elevated by using controls on the chassis.

Type 3: Mobile. Travel is permitted when elevated by using controls on the platform.

For manufacturers and component suppliers, the new rules require a number of important modifications to designs and manufacturing processes, not to mention manuals, in order to accommodate the changes. These include new or updated wind-force, stability, load-sensing and dynamic terrain-sensing requirements as well as the elimination of flexible and chain gates, new rail height requirements and new toe board requirements for all entry and exit points.

The new rules require a number of important modifications …

For dealers and rental operators, the new safe-use and training requirements will be particularly important for at least three reasons:

  • They will have substantial impacts on customer safety.
  • Proper training and safe or unsafe use materially affects the number and severity of incidents of equipment damage and destruction.
  • The impact on the potential for lawsuits based on allegations that the dealer or rental company “failed to fully and properly train, familiarize and/or warn customers” may be profound.

The new standards also make broad changes to training and safety procedures and their administration, including:

  • Site- and task-specific safe use requirements as well as risk and hazard assessment, and mitigation or elimination of such hazards where possible.
  • Selection and use of proper MEWPs and other equipment.
  • Safe work procedures, including movement, stability monitoring, electrical hazard avoidance and fall protection requirements.
  • Provision and review of manufacturers’ manuals, instructions and warnings.
  • Maintenance, inspection and repair requirements, which must be satisfied by properly trained personnel.
  • On-demand familiarization requirements when requested by the user — a change from the old requirements, which automatically required the provision of familiarization upon delivery.
  • Training requirements for MEWP users, those who use or direct the use of MEWPs; operators, those controlling the MEWPs; occupants, all persons occupying MEWPs; and supervisors, those assigned by the user to monitor operator performance and supervise their work.
  • Regular performance monitoring, supervision and evaluation.
  • Supervisor training.
  • Prevention of unauthorized use.
  • Safety of others.
  • Emergency and rescue education and planning.
  • Records retention.

The requirements now are organized by task, rather than by responsible party, meaning that a given user/operator must review its responsibilities with respect to each such task, rather than referring to a single combined statement of that party’s responsibilities.

Legal effects for dealers and lessors. Although the standards themselves are not “laws” per se, they almost certainly will become the effective equivalents as a result of the tendency of such standards to be incorporated into OSHA regulations — which are laws, see OSHA 1910 and 1926 — and the continued expansion of products liability lawsuits, which, for equipment providers, tend to start with allegations that they failed to provide proper training, familiarization, instructions and/or warnings to their customers.

Such claims can yield enormous recoveries for injured plaintiffs — in the worst cases, beyond the limits of the equipment providers’ liability insurance policies.

The new standards can significantly impact the liability picture for equipment providers. For example, the current familiarization burden will be reduced to offering as opposed to providing type-specific familiarization, meaning equipment providers effectively can offload the burden to third-party providers.

That, however, is going to prove to be both a blessing and a curse. It will motivate some equipment providers to ignore and/or forego familiarization to one degree or another. This, coupled with recency issues, even if an operator was previously familiarized because memories tend to be short, likely will yield a general reduction in operator familiarity.

Reduced familiarity inevitably yields increases in both the frequency and the severity of accidents. Given the legal landscape, particularly with respect to negligence and products liability — failure-to-instruct and failure-to-warn claims — I continue to strongly encourage dealers and lessors to provide familiarization and, in any event, to document the fact that it, along with training and safety equipment, has been offered to customers in an effort to limit the failure-to-instruct and failure-to-warn lawsuits inevitably filed against them after accidents. This is a multi-million-dollar liability issue.

What to do. For dealers and lessors, providing manufacturers’ manuals, instructions and warnings, offering and, where possible, providing familiarization and training, making fall protection equipment available on reasonable terms, and documenting the fact that they’ve done so, is imperative.

  • Review and update your rental contract. If you’re renting aerial work platforms (AWPs), now referred to as MEWPs, and your rental contract doesn’t specifically address these issues, you need to update your contract while you have the opportunity before the new standards become effective
  • Use an AWP/MEWP addendum. Create and distribute to all AWP/MEWP customers a new AWP/MEWP addendum emphasizing the new training, supervision, maintenance, repair and safety requirements. The addendum also should include provisions requiring your customers to, among other things, use and make certain all others use fall protection equipment; carefully inspect all MEWPs before each use; and indemnify or pay you for claims arising from any failure to provide and/or adhere to the relevant safety and training requirements. No jury wants to turn away a grieving widow and six orphans. If you’re the defendant in one of these lawsuits, you better have your documents in order. Jurors will not want to see that separate signature on your MEWP addendum, but they won’t be able to ignore it or the fact that it releases you from liability.
  • Post signs and use decals. Use of safety signs inside rental stores has become popular, as has adding safety decals to equipment. Doing so not only provides valuable safety information to customers, it also can be tremendously helpful in limiting the rental operator’s liability, but only if properly written. These are cost-effective safety enhancements, but never use these as substitutes for signed documents.
  • Check your insurance. Make certain you have adequate liability and products-completed-operations coverage. If you’re selling damage waivers or rental equipment protection plans, or similar offers, make certain your insurance coverage doesn’t except or exclude equipment on which you sell such plans. As claim amounts and jury awards continue to rise, plaintiffs’ recoveries beyond policy limits become an even greater threat to equipment providers. A single multi-million-dollar award in a products liability lawsuit can have devastating consequences if you haven’t updated your coverage. If you are renting AWPs/MEWPs, make doing so a priority.
  • Tampering. Never tamper with or disable safety devices, such as load and tilt sensors, and carefully inspect your equipment after each rental. You never know when a customer might decide doing so is necessary in order to facilitate completion of a job. If you find that any safety component has been tampered with and/or impaired, immediately discontinue use of, isolate and tag the machine for repairs/maintenance.
  • Review the relevant laws and standards. Depending on your location, these may include OSHA 1910 and 1926, ANSI A92, CSA C225 and B354, ISO 16368 and/or European EN280. Also, if you find yourself reluctant to review lengthy regulations and standards, excellent summaries, discussions and more appear on a number of association and manufacturer websites. See, for example, ANSI (ansi.org), CSA (csagroup.org), the Scaffold & Access Industry Association (saiaonline.org) and ARA (ARArental.org). In addition, visit RentalManagementMag.com and search “ANSI” to find several articles related to the new standards.

AWPs/MEWPs are, without question, the safest means of working at height in the vast majority of situations. Nonetheless, working at height can yield significant and sometimes unavoidable risks. These had been largely dealt with from a legal perspective through an array of contract provisions, manuals and technical guidance provided by various industry organizations, but the laws are changing now. There has been an opportunity for industry participants to prepare. Some have; some haven’t. For those who haven’t, it now is imperative that you get your documents in order.