Question: Can you be cited for not following voluntary standards even though they're not part of the OSHA law or regulations?

Answer: Yes. It can and does happen. A leading example is the National Fire Protection Association Standard for Electrical Safety in the Workplace (NFPA 70E). I'll discuss how you can be cited for not following a voluntary standard and explain how this applies to NFPA 70E. There's also a model briefing about NFPA 70E in the Tools section of SafetyXChange.

[Editor's Note: The briefing is in the Tools section. You can access it if you're a SafetyXChange member.]

How Not Following Voluntary Standards Can Lead to Citations

OSHA standards typically establish the general standards employers must meet without specifying how. OSHA gives the employer discretion to decide how best to achieve the standard's goals.

But OSHA--and the courts--do say how they expect employers to use the discretion provided by the standard. Among other things, employers are expected to consider any existing consensus standards, that is, non-legislative standards adopted by industry and other non-governmental organizations. Even though these standards aren't legally required, they represent a consensus on what experts consider safe. So OSHA might regard an employer's failure to adopt a voluntary standard relating to an OSHA requirement as evidence that it didn't take reasonable steps to comply with the standard.

NFPA 70E & the OSHA PPE Standard

Now let's look at how this plays out with NFPA 70E. The OSHA Personal Protective Equipment (PPE) Standard says employers must assess the workplace for hazards to determine the need for PPE. But it doesn't specify a method, Sec. 1910.132(d)(1). The standard also requires use of PPE to guard workers against electrical hazards, but doesn't specify which equipment to use, Sec. 1910.335(a)(1)(i).

NFPA 70E is a national consensus safety standard published by NFPA to help OSHA prepare electrical safety standards. Unlike the OSHA PPE Standard, NFPA 70E does get into the specifics of site assessment and PPE selection. But it's a voluntary standard and not part of the OSHA PPE standard. (Note: however, NFPA 70E may be mandatory in states whose workplace safety standards are more restrictive than OSHA).

On the other hand, NFPA 70E explains "how to comply" with the OSHA regulations. As such, following NFPA 70E can ensure compliance with the PPE standard. Conversely, failure to follow the standard could be evidence of failure to comply with the PPE standard.

Employer Cited for Not Following NFPA 70E

This isn't just speculation. In September 1999, a major U.S. corporation experienced an electrical accident that resulted in serious burn injuries to an electrical apprentice employee. OSHA investigated the accident and issued a number of citations including violation of the PPE standard. OSHA cited the corporation for not requiring its electricians to wear appropriate PPE including flame-resistant or retardant personal protection, specifically, flame-resistant coveralls and insulated gloves and face protection. Such PPE wasn't specifically required by the OSHA standard but was required under NFPA 70E.

The corporation appealed the citations to the Occupational Safety and Health Review Commission before settling the charges. As part of the settlement, the company agreed to develop hazard analyses in accordance with the personal protective equipment provisions contained in NFPA 70E.

NFPA 70E & the General Duty Clause

The PPE standard isn't the only legal basis for citing an employer's failure to follow NFPA 70E. Not following consensus standards like NFPA 70E can also be considered a violation of the OSHA "general duty" clause which requires employers to keep the workplace "free from recognized hazards."

If OSHA determines that compliance with NFPA 70E would have prevented or lessened the severity of an injury, OSHA may cite the employer's failure to follow the standard as a violation of the general duty clause. OSHA specifically confirmed in a 2003 "Standards Interpretation" letter that it might consider compliance with NFPA 70E evidence of whether an employer acted reasonably [ OSHA Interpretation Letter , July 25, 2003].

The Canadian Perspective

John's article is relevant to Canadians on two levels:

1. Voluntary Standards & Due Diligence

In Canada, the standard for compliance is due diligence. Employers are expected to take all reasonable precautions in the circumstances to protect workers against foreseeable hazards. Adoption or failure to adopt a voluntary consensus standard of a non-governmental organization, such as the Canadian Standards Association, is a factor OHS investigators, prosecutors and judges may consider to determine if an employer acted reasonably. So like their American counterparts, Canadian employers can incur liability for failing to adopt voluntary standards.

2. The Influence of NFPA 70E

The question then becomes whether NFPA 70E is as influential in Canada as it is with OSHA officials. It's hard to judge:

• On the one hand, NFPA is a primarily American organization based in Massachusetts. But it has members from over 100 countries including Canada.
• On the one hand, NFPA 70E was specifically created for use by OSHA. But the NFPA has a global reputation for being technically sound and procedurally fair.

Bottom Line: An employer that fails to implement NFPA 70E could have a hard time proving that it exercised due diligence after an electrical accident if adherence to NFPA 70E standards would have prevented the accident.

Glenn Demby
Editor-in-Chief
SafetyXChange

WHAT'S MY LINE?

Match the following people with their jobs:

People John Henshaw Elaine Chao Paul Martin Jonathan Snare Jobs Secretary of Labor Prime Minister of Canada Current OSHA Secretary Former OSHA Secretary

ANSWERS: Henshaw, Former OSHA Secretary Chao, Secretary of Labor Martin, Prime Minister of Canada Snare, Former OSHA Secretary

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