What’s the Difference? Part 1 of 4

Many people in the industry get confused about the effect of standards published by organizations such as the American National Standards Institute (ANSI) and the Canadian Standards Association (CSA). Are these standards really voluntary? And what's the difference between an ANSI standard on, say, fall protection and an OSHA rule that addresses the same topic?

This series will explain the legal effect of ANSI standards and their impact on the liability of you and your company. After reading the story, you'll have a better idea of how to factor the various ANSI standards into your compliance strategy.

Clarifying Our Terms

The principles in this article apply equally in the U.S. and Canada. For simplicity's sake, we'll use U.S. terminology. So, unless otherwise noted, "ANSI standards" refers to standards of ANSI, CSA and other such organizations. "OSHA" refers to U.S. OSHA and Canadian OHS laws and regulations.

The Similarities

If you're a safety director in the US or Canada, you might have a hard time figuring out what to do about ANSI Standards:

Is an ANSI standard a law?
Do you have to follow it?
What can happen to you if you don't?
This confusion is understandable. After all, ANSI standards look a lot like regulations. They're detailed, technical instructions for addressing hazards. Many of the ANSI standards cover exactly the same issues addressed in OSHA standards.

Example: The 2005 CSA Lockout Standard, CSA Z460, sets out procedures and measures for controlling machine energization risks. Canadian provinces do the same thing in their OHS laws (and OSHA does it in its Lockout Tagout Standard).

The Differences

But there are also important differences between OSHA and ANSI. One difference has to do with technical scope. OSHA laws typically set out only a general framework, procedure and/or set of standards to guard against a hazard. An ANSI standard is usually consistent with the law but goes into much greater depth. It provides the technical, nuts-and-bolts details that the statutes and even the regulations leave out. ANSI Standards also typically go much further than the laws in protecting workers.

The Interplay

Here's a hypothetical example to help you understand the interplay among statutes, regulations and ANSI standards:

The OSHA statute says that employers must maintain the physical premises of the workplace in safe condition.
The OSHA standard might flesh out this requirement by mandating adequate lighting.
The ANSI standard might then set out precise illumination standards, specify which bulbs to use and say how often they must be changed.
Conclusion

Next week, in Part 2 of this series, we'll explain the four principles underlying the legal effect of ANSI standards.

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.

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.

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:

1. Technically, an ANSI standard is voluntary and not legally binding.
2. An OSHA standard may incorporate all or part of an ANSI standard by reference.
3. 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).
4. 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 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:

• 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.