PIT operators must be evaluated on their performance at least every three years with refresher trainings, or, more frequently if an operator is observed to have operated the PIT in an unsafe manner, was involved in an accident or a near-miss incident. PITs must not be used to lift loads beyond the equipment’s capacity, and operators must ensure the load’s stability to prevent circumstances that could compromise balance, such as in instances of improper stacking or overloading. Other workplace-related topics include pedestrian traffic in areas where the vehicle will be operated and the use of ramps or other sloped surfaces that could affect the vehicle’s stability. 

Employers must certify that each operator has received the necessary training and evaluation with records noting the names of the operator, the dates of training, the dates of evaluation and the identity of the individual performing the training or evaluation. Operators must also perform daily inspections to identify any issues that could affect safety, and if so, they are not to be placed in service.

Moreover, special precautions must be taken when operating a PIT near open flames, sparks or electric arcs in battery charging areas, a prominent issue in light of recent high-profile fires that have led to deaths and serious injuries caused from the charging of lithium-ion batteries. Although, currently, there are no specific OSHA standards for lithium-ion batteries, OSHA has general industry standards, including for PITs that could apply, such as requirements that facilities shall be provided “for flushing and neutralizing spilled electrolyte, for fire protection and for protecting the charging apparatus from damage…and for adequate ventilation…”

Construction companies must follow these requirements for the use and maintenance of PITs to provide a safe work environment and reduce the risks of accidents and injuries at the worksite. The decision in Secretary of Labor v. Gander and White Shipping, Inc. (“Gander”) exemplifies the need for proper training when operating PITs. The matter was initiated by an anonymous complaint to OSHA on Jan.  21, 2021 where it was alleged that an employee working out of Gander’s facility in Miami, FL was working on an elevated scissor lift and checking a box on a shelf when he fell out of the lift and fell approximately nine feet to ground, fracturing his left elbow. OSHA’s Compliance Officer Anthony Campos was assigned the matter and conducted an investigation. Officer Campos learned that Gander’s employee had fallen on Jan. 18, 2021 and that employees were operating the forklift in a warehouse without the requisite training and certification for handling PITs. Consequently, he issued multiple citations to Gander asserting among items that it violated the applicable safety standards by not ensuring “that each powered industrial truck operator is competent to operate a powered industrial truck safely, as demonstrated by the successful completion of the training and evaluation….”

Gander’s Operations Manager Eugene Layton conceded that they utilized PITs such as scissor lifts and battery-powered forklifts at the worksite and, in fact, admitted their employees were not trained at the time of the accident. Mr. Layton testified in subsequent proceedings that Gander in fact trained their employees in the use of the PITs after the accident and after OSHA’s investigation. Moreover, Gander’s own foreman, Joel Hernandez admitted to the Compliance Officer Campos that neither he nor his subordinate who operated the forklifts had ever been trained it their operations, while these trucks were frequently used. The admission by Mr. Hernandez, a foreman with supervisory capacity, that a subordinate employee operated a PIT without having requisite training was sufficient to impute liability on Gander under a “serious” classification, which applies when an employer knows about and fails to prevent a “substantial probability” that either death or serious injury could result from a work-place condition. A “serious” classification mandates higher monetary penalties as well. The Administrative Law Judge affirmed OSHA’s citation against Gander.

About the author: Costas Cyprus, Esq., practices construction law and commercial litigation with Welby, Brady & Greenblatt, LLP, in White Plains, NY. He can be reached at 914-428-2100 and at [email protected]. The articles in this series do not constitute legal advice and are intended for general guidance only.

Published: April 17, 2025.