During our Spring Workshop presentation on ergonomic changes, we had a number of questions regarding the feasibility of manufacturing your own devices or modifying current devices to suit your purposes. The questions ranged from increased liability to OSHA treatment to legal implications. With these questions in mind, we have contacted OSHA and legal counsel to clarify and provide direction when manufacturing or modifying tools.
MN OSHA Consultation indicated that manufacturing or modifying tools can be acceptable; however it would depend on each specific instance. When discussing this issue with OSHA, they indicated that you would need to be certain that the modified/manufactured tool or device meets the capacity that it is intended to perform. A general rule of thumb would be that if you would not allow someone else to use it due to safety concerns, do not use it.
When considering manufacturing or modifying devices or tools you should ask the following questions:
· What is the worst case scenario if the device/tool failed?
· How much pressure or force can the tool/device withstand?
· What are the qualifications of the person making the modifications or fabricating the tool/device? (i.e. welders)
· Does the modification alter the tool/device beyond the manufacturer specifications?
When looking at hoists or lifts, you would want an engineer to review the device to give a rating capacity based on the nature of these devices. Also, keep in mind that any modified attachments, tools, or devices should be used in the manner for with they were intended.
An example of a modified device would be using floor jacks to change wear blades on plow trucks. When discussing with OSHA, they indicated that since the floor jack is originally intended to be used to lift objects there would be no issue with that specific use.
Legal Counsel Opinion
There is some increased risk of liability when a city creates its own tools or devices.
If a city purchases a tool and it is defective, and an employee or third party is injured, the city may have a claim against the manufacturer, i.e., it can transfer liability to a third party.
If the city creates the tool there is no way to transfer liability. That doesn’t mean a city should not create its own tools but if it does, it should be very careful.
If an employee were injured, he or she would have a workers’ compensation claim which would likely preclude the employee from bringing a negligence action against the city.
If a third party was injured, that third party would likely be able to bring a negligence claim against the city.
Ultimately, the city needs to assess the risk of injury (and likely seriousness of an injury) versus the problem that is being solved. That assessment would include the city’s expertise to craft the tool, the cost, and whether a similar tool is available for purchase.
All things being equal, it would be better that the city buys the tool or device if it can be purchased rather than have the city create its own tool.
When looking at the options for purchasing, modifying, or manufacturing tools and devices, you should look closely at what you would like the item to do and what the implications of each option would be. This being said, you need to look at the cost of each option both upfront and potential costs due to the increased liability.
If you look at these costs and you are not certain which option would work best, you can contact OSHA Consultation 651-284-5060 to ask these questions and get their advice for your specific situation. Another option would be to contact your LMCIT Loss Control Consultant to discuss your options.
The bottom line is that your answer is going to be on a case by case basis and there is no right answer for all situations.
By Tara Bursey