By Gary Cross, Dunaway & Cross, Counsel to the ITA
No group has promoted forklift operator safety training more than the Industrial Truck Association. Consider: ITA successfully petitioned the US Occupational Safety and Health Administration to adopt a detailed operator-training regulation some 15 years ago; ITA’s creation of National Forklift Safety Day, which was inaugurated on June 10 last year and will take place on June 9 this year, is devoted to the importance of operator training; and ITA has been presenting seminars to OSHA inspectors on safe forklift operation since 2006. With this history, it might seem odd that ITA recently opposed a forklift operator training and licensing requirement that was adopted by the Massachusetts Department of Public Safety in late 2013. But more regulation doesn’t always mean more safety, sometimes it just means more confusion.
At the heart of ITA’s concern with Massachusetts’ regulation was the legal doctrine of “preemption,” which deals with whether a state or the federal government has paramount authority in an area. When it comes to occupational safety and health, the preemption requirement in the law is clear: If the federal government deals with a particular workplace safety issue in an OSHA regulation, then no state can regulate that same issue without first getting OSHA’s approval and OSHA can’t give its approval unless the state law provides at least as much safety as the OSHA regulation. The basic idea is to avoid having a jumble of different state laws covering the same issue unless it’s justified by an increase in safety.
There’s already an OSHA regulation requiring the training of forklift operators, and it’s proven very effective in reducing accidents. Unfortunately, Massachusetts ignored this OSHA regulation and the doctrine of preemption in its “Hoisting Machinery” regulation, thereby sweeping forklifts into a law that required operators either to obtain a state-issued Hoisting License or to undergo state-mandated company training. Massachusetts never sought OSHA’s approval for these state requirements, which included medical examinations, license fees, passing a written examination, and a renewal requirement (and another fee) every two years. To ITA, the violation of preemption was clear, with no benefit to safety.
The most immediate problem for ITA and MHEDA was Massachusetts’s insistence that forklift service technicians employed by dealerships had to be considered “operators” and had to meet all of the licensing and training requirements. The state’s long backlog in processing license applications, along with confusion about the requirements and the threat of enforcement, was disrupting the operations of forklift dealers and the hundreds of Massachusetts companies who employ forklift operators. These problems were exactly what can happen when preemption is ignored.
ITA worked with MHEDA, MHEDA’s Massachusetts members, and a Massachusetts industry group to push back. Letters, meetings, conference calls and a detailed legal memorandum finally convinced Massachusetts to “reinterpret” its regulation in a way that satisfied ITA’s and MHEDA’s concerns. There are two main takeaways. First, forklift service technicians do not have to obtain the state hoisting license or go through the state-imposed training, they only need to have some documentation that they’re authorized to work on the equipment. Second, forklift operators do not have to obtain the state hoisting license or go through the state-imposed training, unless they are operating in areas that are generally accessible to the public, such as retail establishments. (Details are available at the Massachusetts Department of Public Safety’s web site under Frequently Asked Questions for the new Hoisting Machinery regulation: http://www.mass.gov/eopss/consumer-prot-and-bus-lic/license-type/hoisting/hoisting-operators-faqs.html#Q74.)
ITA continues to support greater compliance with the OSHA forklift operator training regulation as the best way to prevent more accidents–more regulation doesn’t necessarily mean more safety.