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 as a benchmark used 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? 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:

What It All Means

The first part is easy: 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 regulations 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 by whom. 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 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.

Conclusion

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:

YOU MAKE THE CALL

Use of Force by OHS Inspectors

By Glenn Demby

Like other government officials, OSHA and OHS inspectors may use a limited degree of force to enforce the laws. A fascinating case from Ontario illustrates where courts draw the line on the use of force by inspectors. Although the case involved an environmental inspector, the equivalent principles apply to OHS and OSHA inspectors.

WHAT HAPPENED

There was bad blood between an environmental inspector and the owner of a winery in the Niagara Falls wine growing region of Ontario. The inspector had personally inspected the winery three times and twice issued citations. So when he visited the winery to serve a summons on the owner, his dander was up. After a loud and heated exchange, the inspector shoved the summons in the owner's face. The owner's head snapped back causing whiplash and cuts to the mouth. The inspector was arrested and charged with assault. The inspector pleaded not guilty, claiming that he was using force to carry out his duties.

WHO WON?

The inspector was convicted of assault.

EXPLANATION

An environmental official can use limited force to prevent a person from evading summons. But that's not what this inspector had done, according to the court. Although the owner started the argument, the inspector "lost his composure" and "allowed himself to be goaded into an inappropriate response." The inspector had acted more like a participant in a barroom brawl than a government official carrying out his official duties, the court concluded.

CITE

R. v. Jenkins, [2007] O.J. No. 3124, Aug. 17, 2007

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