Last week, in Part 1 of this series, I described the difference and interplay between OSHA rules and voluntary standards of nongovernmental associations such as ANSI and CSA. I noted that while ANSI standards often cover the same ground as OSHA rules, such as fall protection, lockout and electrical safety, they're not part of the law. However, ANSI standards do have legal effects. This installment of the series will explain those effects.

Terminology Reminder

Remember that, for simplicity's sake, we're using American terminology to describe principles that also apply in Canada. Thus, unless otherwise noted, "ANSI standards" is used generically to refer to CSA and other voluntary standards. "OSHA" refers to occupational safety and health laws and regulations, either U.S. or Canadian.

The 4 Principles

A good way to come to grips with the legal effects of ANSI standards is to remember these four principles:

1. An ANSI Standard Isn't a Law

OSHA laws are mandatory; ANSI standards are voluntary. Organizations like ANSI are typically private groups made up of industry representatives, technical experts and policy makers. They get together in committees and try to reach a consensus on safety matters. They're not governmental organizations and they have no power to force employers follow their standards. All they can do is make recommendations.

2. ANSI Standards Can Become Part of the Law

Although ANSI standards are voluntary, they may become mandatory through a process called incorporation by reference. "Incorporation by reference" is a fancy term for a simple process. It happens when an OSHA standard cites an ANSI standard and says that you have to follow it. In effect, the ANSI standard becomes part of the law. So if you don't follow it, you face prosecution and fines.

Example: A supervisor lets an inexperienced worker use a crane to lift a steel cover and place it over a propane tank at a Yukon mine site. Because the worker doesn't know what he's doing, the cable stretches and parts causing the crane ball to fall and narrowly miss a worker standing nearby.

Section 3(1)(c) of the Yukon Occupational Health and Safety Act requires employers to provide workers adequate training and supervision to perform tasks based on the worker's abilities. Section 56(1) of the General Safety Regulation says CSA Code Z150, "Safety Code for Mobile Cranes," is incorporated by reference. CSA Code Z150 says, among other things, that only trained, experienced and qualified operators can operate cranes. The employer is thus found guilty of letting an inexperienced worker operate a crane in violation of the OHS law [R. v. Northland Fleet Services (Yukon) Ltd., [1993] Y.J. No. 32, 1993].

Some OSHA standards incorporate ANSI standards by reference. But the practice is more common on the other side of the border. All Canadian provinces incorporate at least some CSA standards by reference into their OHS laws. Some, such as Alberta, incorporate dozens. The most common way to incorporate a CSA standard by reference is to adopt the entire standard. But there are other approaches. Sometimes a province will incorporate a series of standards and let the employer decide which one to follow.

Example: Section 8.22 of the BC Occupational Health & Safety Regulation says protective footwear is okay as long as it meets one of four standards: CSA Standard Z195-M92; ANSI Standard Z41-1991; British Safety Institution Standard BS EN 345: 1993; or British Safety Institution Standard BS EN 346:1993.

OSHA or a province might incorporate only a part of a standard.

Example: Section 199(1) of the Yukon General Safety Regulation says installed oil heating equipment must meet the CSA Standard for Oil Burning Equipment, CSA B139-1971, "with the exception of clause 12.3 of the" Standard.

OSHA or a province might also adopt the standard but change a specific part of it.

Example: Section 167 of the Ontario Mines and Mining Plants Regulation provides that "Clause 36-204 of the CSA Standard, C22.1-1982 (on electrical safety) is modified to the extent that a single pole disconnecting fuse of adequate interrupting capacity may be used to protect a transformer whose capacity is 100 kilovoltamperes per phase or less when operating at a voltage less than 7,500 volts."

Conclusion

Next week, in Part 3, we'll look at how a voluntary standard might become mandatory to follow even if it's not specifically incorporated by reference into an OSHA rule or OHS law or regulation.

OSHA & ANSI


One Member's Experience

OSHA incorporates voluntary standards by reference in a sneaky way, e.g., the fall protection standard, by insisting we adhere to the manufacturer's standard, which always refers back to the ANSI or ASTM. I have actually had sites cited under ANSI standards. We appealed, got it reduced, but still had to pay the fine and waste a lot of time.

What is truly galling is the attitude at OSHA that even though they are writing violations on the ANSI standards, they have no duty to provide us the standards. We're expected to spend $125 per standard per site. There are something like 100 standards that apply to our sites. This is total BS.

Plus, the ANSI standards were obviously written by lawyers. Any possibility of any risk goes to the user. If even ONE thread is dislodged, we are expected to throw away an $800 harness. Even I, as a good safety cop, have big issues with that level of insanity.

Here's the true down side. Nobody takes the standards seriously and the good parts get thrown out with the rest. And it makes the safety guy's job even harder.

Name not provided

TELL US YOUR VIEW


Should Voluntary Standards Be Part of the Law?

Do you agree with this perspective? Do you think that OSHA and OHS officials should incorporate voluntary standards into their regulations and cite companies for failing to adhere to them? Send your response to glennd@bongarde.com. I understand that this is a sensitive topic and I promise not to print your name or your company's name unless you specifically say you want me to.

LAWYER-TO-ENGLISH DICTONARY

'Joint & Several Liability'

HOW IT COMES UP
Joint and several liability comes up when a violation occurs and it's clear that the violation was the result of an act or omission committed by a group of persons but it's not clear which person or combination of persons in the group committed the actual act or omission.

WHAT IT MEANS
Joint and several liability is one of the methods that may be used to assign liability for the violation among the members of the group. It means that any one or combination of group members can be held responsible for 100% of the damages.

EXAMPLE 1
There's a famous case from England that all law students have to read in their first year torts class. It involves three men who were out hunting quail. There was a rustle in the brush and two of the men fired their shotguns at the same time. The third hunter was struck a glancing blow to the head. But it was unclear which of the two fired the shot that wounded him. Consequently, the two hunters denied liability for the incident. The court said it was unfair to penalize the victim for not being able to identify who shot him. So it found both hunters negligent and held them jointly and severally liable for the victim's damages. In other words, the victim could collect his full damages from either one of the two hunters.

EXAMPLE 2
Company A owns a factory from 1970 to 1980. Company B buys the factory in 1980 and operates it for 10 years before selling it to Company C. In 2000, the government conducts tests, determines the land is contaminated and orders a cleanup. Under typical environmental laws, Companies A, B and C would be jointly and severally liable for the costs of the cleanup.

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