OSHA Machine Guarding Standards Face Key Test at Fifth Circuit

Poultry processor Mar-Jac MS LLC’s attempt to overturn OSHA citations stemming from the death of a worker caught in a machine that cuts chicken will hinge on whether safety guards should be designed based on how workers use them.

A key issue in the case that will be before a Fifth Circuit panel Tuesday is whether the machine should have been guarded based on the daily common practice of workers rather than based on their training, said Manesh K. Rath, a partner at Keller & Heckman.

The US Occupational Safety and Health Administration determined the company failed to have barriers to prevent workers from reaching into an eviscerator machine, and failed to post warning signs about the machine’s dangers.

“In part, this case is important because it forces the court to deal with the question of whether training, by itself, is sufficient to achieve a safe operation of a hazardous machinery,” Rath said. “Particularly if there is strong evidence that workers were not perfectly following the procedures that they were trained to follow.”

Mar-Jac says the Occupational Safety and Health Review Commission shouldn’t have rejected the pull cord as an accepted industry standard guard.

Notably, there weren’t any eyewitnesses to the accident, and Mar-Jac managers testified workers were prohibited from putting their hands into operating machines.

Mar-Jac’s appeal to the US Court of Appeals for the Fifth Circuit stems from an administrative law judge’s ruling to uphold an OSHA citation. The citation alleged the company violated the Machine Guarding Standard and Safety Instruction Signs Standard.

OSHA has a difficult case to make, said Aaron Gelb, chair of Conn Maciel Carey LLP’s Mid-West OSHA practice. The agency is essentially relying on the fatality alone as evidence of exposure to a hazard, he said.

Gelb added that the appeals judges will likely be inclined to hone in on Mar-Jac’s argument as it pertains to the nature of the standards, rather than the credibility of a witness or sufficiency of the evidence in the case.

Safety Standards

The employee died at Mar-Jac’s plant in Hattiesburg, Miss. in May 2021. They were responsible for cleaning the area around the eviscerator while the machine gutted chickens, but the worker didn’t perform deep sanitation—which would’ve required the machine to be deactivated.

A specification standard states safety requirements more explicitly, like a guardrail must be a certain height. In contrast, a performance standard doesn’t specify how a company should comply.

OSHA is arguing that the machine guarding standard “is a specification standard with performance-oriented elements,” which doesn’t require the federal agency to refer to industry customs to establish noncompliance.

“The standard is partly performance-oriented because the employer has some discretion to select the type of guard it will use,” OSHA said. But that doesn’t mean the company has “unfettered discretion,” since the guarding device is required to prevent the operator from having any body part in the danger zone during operation.

Mar-Jac argues the general guarding standard doesn’t specify the form or style of guarding required, therefore “the machine was effectively guarded by location, pull-stops, and emergency stop buttons.”

“When you look at these particular issues, you have to give the company some sort of ability to determine how to comply with the standard,” said James L. Stine, of counsel for Mar-Jac who will be arguing before the appeals court Tuesday.

The standard doesn’t tell you how, “so OSHA just doesn’t have the ability to come and say however they want them to do it without having given some notice to the company,” Stine said.

A court ruling that clarifies how a machine should be guarded would likely mean more attention to details during OSHA inspections, Gelb noted.

“A case that very clearly states that would be significant,” Gelb said. “It’s going to impose a greater burden on OSHA to establish that the company should’ve foreseen that this accident may happen.”

The same Mar-Jac plant also experienced another death in July 2023 of a 16-year-old boy who was assigned to evening sanitation duties.

Judges James L. Dennis, Leslie H. Southwick, and Kurt D. Engelhardt will comprise the panel.

Wimberly Lawson Steckel Schneider & Stine PC represent Mar-Jac.

The case is Mar-Jac Poultry MS LLC v. Su, 5th Cir., No. 24-60026 oral argument, 10/8/24.