We've seen that supposedly voluntary standards published by organizations such as ANSI and CSA might become mandatory, either directly by incorporation into a regulation or indirectly by being used as a benchmark to interpret a regulation. This final installment will attempt to answer the obvious question this raises in the minds of safety directors: What do I have to do to ensure compliance? Stated differently, is following each and every voluntary standard the only way to avoid liability?
A Quick Review
Before answering this question, let's briefly review the four principles we discussed in the previous installments:
- Technically, an ANSI standard is voluntary and not legally binding.
- An OSHA standard may incorporate all or part of an ANSI standard by reference.
- An ANSI standard not incorporated by reference might still have legal effect to the extent that a court or OSHA official uses it to interpret whether a company did enough to meet its legal obligations under an existing standard (or in Canada, to determine if the company showed due diligence).
- A court or OSHA might also interpret the general duty clause of the OSHA statute (or, in Canada, the provincial OHS statute) as requiring the company to adopt the standard.
What It All Means
The first part is the easy part: If an OSHA standard incorporates the ANSI standard by reference, the standard is no longer voluntary. You must comply with it.
It gets trickier when we talk about the vast majority of ANSI standards that are not incorporated by reference. The fact that these standards might nevertheless have legal effect seems to suggest that you must comply with them. This isn't true. If it were, OSHA would simply incorporate every single voluntary standard by reference into its standards and have done with it.
In fact, OSHA has not done this. Understanding why it hasn't is the key to recognizing your legal responsibilities vis-à-vis ANSI standards.
The Essence of Voluntary Standards
Start by thinking about how laws and voluntary standards are made and who makes them. The people who write the workplace safety laws are trying to strike a balance between workers' safety and employer costs. The measures they require must, in other words, not only protect workers but be something that all companies can implement. The ANSI standards that get incorporated by reference into OSHA presumably meet these criteria; the ANSI standards that don't get incorporated presumably do not.
Although the authors of ANSI standards also consider costs, their principal motivation is safety. So, in many cases, the committees that adopt the standards are willing to impose more rigorous and expensive standards. In a sense, then, the ANSI standard is more apt to represent a "gold standard" for safety.
The implication is that employers don't have to adopt ANSI standards if they can't afford them. The employer's obligation is to provide not necessarily the highest degree of safety possible but the highest degree of safety it can reasonably afford given its resources, the risks involved and other factors.
In other words, you don't have to buy a Rolls-Royce if a Chrysler is almost as safe. But if an accident happens in the Chrysler that wouldn't have happened in a Rolls, you'd better be prepared to defend your decision from second-guessers. To do that you'll need documentation of your reasons for thinking the Chrysler offered adequate protection.
Hopefully, this analysis has helped you grasp what ANSI standards are all about and how to address them in your safety plan. Here are some practical steps you can take:
- Identify which ANSI standards OSHA incorporates by reference;
- Keep track of important new standards and changes from the major organizations that affect your industry;
- If your health and safety committee, an OSHA official or a consultant recommends that you implement a voluntary ANSI standard, especially if the recommendation is in writing, take the recommendation seriously and either accept it or give a good reason for rejecting it; and
- Keep records documenting your consideration of the recommendation to adopt the ANSI standard and why you decided for or against it.
YOU MAKE THE CALL
|The late Justice Harry Blackmun: Wrote the opinion in Johnson Controls|
Fetal Hazard Protection Policies
Today is the 15th anniversary of an important workplace health decision of the U.S. Supreme Court. We'll give you the facts. See if you can figure out who won and why.
In 1982, a company that manufactures automobile batteries adopts a policy banning women of child-bearing age from holding jobs where they might be exposed to high levels of lead. The only exception: Women who have medical proof of their infertility. The union sues claiming the policy is illegal. The company claims it's necessary to protect female workers' reproductive health.
The Court rules 9 to 0 that fetal protection policies that exclude fertile women from holding "dangerous jobs" violates Title VII of the Civil Rights Act (the law banning gender-based discrimination), because it doesn't force men to make a similar choice regarding their reproductive health in a hazardous workplace.
Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187 (1991).