ANSI standards are voluntary. But as I explained in the previous installment, an ANSI standard can become mandatory through a process known as incorporation by reference. In essence, the ANSI standard becomes a part of the OSHA rule. Now I'll explain how an ANSI standard can have the effect of law even if it's not incorporated into an OSHA rule. This is the third of the four principles of the legal effects of ANSI standards.

Terminology Reminder

We're following the same terminology rules as last time. Unless otherwise noted, "ANSI standards" refers to voluntary standards in general. "OSHA" refers to occupational safety and health laws and regulations in the U.S. or Canada.

3. You Might Have to Follow Voluntary Standards Not Incorporated By Reference

Not all ANSI standards get incorporated by reference into OSHA rules. For example, NFPA Standard for Electrical Safety in the Workplace (NFPA 70E), isn't incorporated into any OSHA law or regulation. But OSHA may still cite you for not following the standard. This seems unfair and illogical. But it's true.

Explanation: OSHA rules 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 there are certain unwritten rules governing how employers are expected to use this discretion.

Among other things, employers are expected to consider any 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.

Example: NFPA 70E

The OSHA 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 the 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.

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 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.

4. Voluntary Standards & the General Duty Clause

There's another legal basis OSHA can use for citing an employer's failure to follow a voluntary consensus standard. Not following such standards may 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 the voluntary standard 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. For example, 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].

Conclusion

Next week, in the final installment of this series, I'll set out a strategy you can use to guard against liability for the failure to adopt a voluntary standard.

THE CANADIAN PERSPECTIVE

The principles described above also apply in Canada. But the analysis is slightly different.

3. Voluntary CSA Standards Affect Due Diligence

Canadians are expected to use due diligence to follow OHS laws and prevent accidents. "Due diligence" is a rule created by the Canadian Supreme Court which essentially requires the taking of reasonable steps in the circumstances to guard against foreseeable risks. To decide on a due diligence defence, a court has to compare what an employer in your position, knowing what you knew at the time should have done to prevent an accident against what you actually did do. Stated differently, the court must judge your actions against a standard of reasonable safety.

Where do judges get such standards? How on earth does a judge sitting in a courtroom know what specific steps a reasonable employer should have taken to prevent an accident?

One possibility is to look at the safety standards adopted by prestigious and credible organizations like the CSA. Although they may not be the law, these standards represent a consensus among industry and policy makers about the kinds of safety precautions that are reasonable and appropriate, a sort of "best practices." As such, they're bound to influence on judges trying to decide if an employer showed due diligence.

Employer Who Didn't Follow Voluntary Standard Is Liable

There has been at least one case in Canada where an employer was held liable for not meeting voluntary CSA Standards. The case took place in Ontario after a worker lost three fingers after getting his hand caught in the moving part of a "trim line #1" machine used to manufacture wafer boards. The company used a device called a dump table to block worker access to the in-running nip hazard of the machine where the injury occurred. But the dump table was only 34-inches-tall and workers testified that they had little trouble climbing over it to get at the machine. This is what the victim did when he got hurt.

Section 25 of the Ontario OHS Regulations for Industrial Establishments, says that an in-running nip hazard on any part of a machine must be guarded by a device "that prevents access to the pinch point." The regulation doesn't say anything specific about which device to use. But the CSA Standard for Machine Guarding, Z432-94, says that height should be considered in determining if a physical barrier provides enough guarding protection. According to the Standard, a barrier of less than 39-inches (1,000 millimetres) is too short since it's so easy to climb over. The CSA Standard is voluntary; the Ontario regulation doesn't incorporate it by reference. Even so, the court cited the standard in ruling that the company didn't show due diligence to guard the machine [R. v. Grant Forest Products Inc., [2002] O.J. No. 3374 (2001)].

Employer Who Follows Voluntary Standard Is Not Liable

Conversely, an Alberta court has used compliance with voluntary standards to hold that an employer was not liable. A metals worker was killed after his clothes became ensnared in the metal roller of a conveyor. The roller was guarded on one side only, the side facing the worker when he was sitting at his work station. But the worker had apparently crawled under the conveyor and became ensnared on the other side on something called a return belt idler.

Section 52(1)(a) of the Alberta OHS Act requires employers to install "effective safeguards" on machines but doesn't define the term. Nor do the regulations. So the court looked at voluntary standards of the American Society of Mechanical Engineers (ASME). Section 6.6.2(a) of the ASME Standard requires guarding against "inadvertent contact." The court noted that the contact in this case probably wasn't inadvertent since the victim had crawled under the conveyor. Moreover, Section 6.7.1 of the Standard specifies that "a return belt idler does not require guarding." Since the employer's decision to guard only the one side of the roller conformed to ASME Standards, the court ruled that it wasn't guilty of violating the Alberta machine guarding law [R. v. Maple Leaf Metal Industries Ltd., [2000] A.B.P.C. 95 (2000)].

The General Duty Clause

A final note: Like the U.S. OSHA statute, Canadian OHS laws include a general duty clause. And, as in the U.S., a court could construe the failure to follow a CSA standard as a breach of the general duty clause.

MEMBER VIEWS


Should Voluntary Standards Be Mandatory?

EDITOR'S NOTE: Normally, we don't like to withhold the names of members who write in with views. But this issue is a sensitive one and we can't be sure who's listening. So we're going to keep all the notes anonymous to protect the submitters.

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Voluntary Standards Cost Money

I do not mind if the ANSI standards are incorporated into the OSHA standards as long as they are available to everyone for free. If OSHA expects us to be aware of the ANSI Standards they should be available online similar to the OSHA regs.

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Let OSHA Foot the Bill

If OSHA is going to incorporate ANSI they should make the ANSI standard freely available on the OSHA website!!!

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Make the Standard Public

Publish the standard completely. This will cost the standards bodies some $$$. OSHA and or CSA could pick up the tab for the lost revenue. Pay them for services rendered in developing the standard.

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If It's Not Part of the Law It Won't Get Followed

I do believe they [voluntary standards] should be citable. I can't speak for Canada, but it takes an incredible amount of time and effort to change a law in the U.S. The ANSI standards can be updated to reflect new technology and research. I have seen people in our company decide not to make a wise safety decision in order to save money "because OSHA doesn't require it."

Please do not use my name or company name.

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Make the Standards Free

I have no issue with 'voluntary' standards being a part of the regulations. However, having said this, I also feel that if they are going to make these as part of the regulations, then they also need to make the standards available to the public without having to pay the exorbitant fees that these standards organizations charge for their work. If it is required, it should be accessible on the internet without charge, or for a reasonable fee to cover printing and shipping.

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Voluntary Standards Are Useful But Shouldn't Be Citable

The term "voluntary standards" sounds contradictory. While you cannot legislate common sense, you can regulate practices and as such laws need an expanding framework of regulations to cover important contingencies.

Voluntary standards might prove to be useful models for regulations. However, I don't believe that persons and companies should be punished for not complying with voluntary standards. Normally laws and regulations have penalties spelled out and case law exists to guide the application of these laws and regulations to court cases.

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Standards Help Officials Interpret the Law

In Ontario, our provincial Occupational Health and Safety Act has a "due diligence" clause 25 (2)(h) requires employers to "take every precaution reasonable in the circumstances for the protection of a worker."

Ontario Ministry of Labour inspectors, when investigating an accident, will refer to the CSA Machine Safety Standards, and if a section in the standard was not followed, thus resulting in the injury, the employer will be charged for not taking every precaution reasonable in the circumstances for the protection of a worker. So while the CSA standards are not law, they are used as if they were.

Our company reviews machinery for safety, and often machinery coming from the U.S., Europe and the Far East will not meet the CSA requirements. There are often ANSI equivalent standards to the CSA standards, but it seems that many U.S. based manufacturers meet neither ANSI nor CSA standards.

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