By Eric J. Conn, Head of the OSHA Group at Epstein Becker & Green
OSHA is signaling a major departure from its position on acceptable exceptions to the Lockout/Tagout requirements in the agency’s electrical safety standards. Historically, employers have been permitted to conduct electrical maintenance near energized parts in data centers that host critical business operations (i.e., operations which must stay live 24/7), under an “infeasibility” exception to the general rule that electrical equipment must be deenergized and locked out before maintenance is permitted. A series of recent enforcement actions suggests this exception may no longer be available to data center operators.
OSHA’s electrical safety standards at 29 CFR 1910.333 generally require employers to deenergize and lockout electrical supply to a circuit before work can be performed nearby. However, the OSHA standard includes an exception to deenergization if doing so is “infeasible due to equipment design or operational limitations.” OSHA’s infeasibility exception is derived from the National Fire Protection Association’s industry guidance document 70E (“Work Involving Electrical Hazards”), which includes an identical infeasibility exception. Under the infeasibility exception, employers are permitted to perform work on or near energized equipment provided the employees performing the work use other safety-related work practices, such as approved electrical personal protective equipment (e.g., insulated gloves and sleeves), appropriately rated tools, and take other appropriate measures to guard against electric shock and arc flash hazards (e.g., installing barriers or rubber insulation blankets).
Data center operators have long relied on this exception to perform work inside live electrical panels, because shutting down the entire panel will take down all equipment powered from that source, often including critical hardware hosting critical business operations. The OSHA Practice Group at Epstein Becker & Green has become aware, however, of several OSHA enforcement actions in the Northeast, in which OSHA cited employers who operate 24/7 data centers for violations of OSHA’s electrical safety standards, because they performed electrical maintenance on or near energized equipment, under the auspices of the infeasibility exception. An OSHA representative involved in two such cases indicated that OSHA intends for this enforcement initiative to apply nationwide.
Accordingly, what OSHA is now requiring from data center operators, is that no electrical work may be done in power cabinets/centers in which any portion of the cabinet is energized. This new policy creates significant operational problems and costs. Businesses and customers place a high premium on avoiding data center outages, and this new OSHA requirement necessarily has that result. We are not aware of any employer challenging OSHA’s new data center policy to the point of an ALJ or OSH Review Commission judgment, and such a challenge may be worthwhile if the costs of complying with this new policy are too prohibitive.