OSHA Rules vs ANSI/CSA Standards

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OSHA RULES vs. ANSI/CSA STANDARDS

Part 2 of 3, The Legal Effect of Voluntary Standards

By Glenn Demby, Esq.

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, they’re not part of the law. However, ANSI standards do have legal effects. This article will explain those effects.

Terminology Reminder

Remember that, for simplicity’s sake, we’re using U.S. 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. The term “OSHA” refers to occupational safety and health laws and regulations, either U.S. or Canadian.

The Four 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 have no power to force employers to 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)© 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 of the 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 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 also 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 even if it’s not specifically incorporated by reference into an OSHA rule or OHS law or regulation.

CLARIFICATION

OSHA Liability & the 'Unpreventable Employee Misconduct' Defense

We got a lot of mail on last week's "You Make the Call" account of the Alabama construction company found not liable for the electrocution of an employee who wasn't wearing PPE despite being warned to do so. Some of you expressed concern that the case would send the wrong impression and suggest that merely warning employees about dangers is enough to avoid liability. We thus felt that a clarification was in order.

A Warning Isn't Enough

Employers aren't liable for accidents caused by certain acts of misconduct committed by their employees. The "unpreventable employee misconduct defense" is a complex subject that SafetyXChange will cover in a future issue. For now, suffice it to say that to use the defense an employer must prove that:

It established work rules to prevent the violation; It adequately communicated those rules to employees; It took steps to detect violations; and It enforced the rules when it discovered violations.

Canadian Perspective: Canadian provinces don't have a formal employee misconduct defense but the same principles apply. That's because employee misconduct is directly relevant to due diligence: it affects whether the violation was foreseeable and whether the employer's prevention efforts were adequate. In either case, proving unpreventable employee misconduct is a heavy burden. It takes a lot more than just warning employees about dangers and reminding them to take precautions.

THIS DATE IN HISTORY

March 6, 1834

Lyon MacKenzie: Toronto's first mayor..

A new Canadian city of approximately 10,000 people is founded on the shores of Lake Ontario. It's called Toronto. Lyon MacKenzie is the first mayor.

Postscript: MacKenzie serves just one term. In 1837, he leads an unsuccessful armed revolt. MacKenzie flees to the U.S. but remains a thorn in the side of the Canadian government as a leader of a movement called the Liberation of Upper Canadians. In 1849, he receives a pardon, returns to Canada and serves in the assembly until 1857.

Author Biography - Glenn Demby, Esq.

I'm a lawyer. I spent three years practicing corporate law at a Wall Street law firm. I worked like a dog, made lots of money but had no time to spend it. So I quit and went into publishing where I specialized in writing and developing newsletters that explain complicated legal issues to business professionals in plain English. My philosophy on legal writing: Don't teach people the law; tell them how it affects their jobs and what to do about it. I spent 14 years practicing this credo with a New York City company called Brownstone Publishers. I joined Bongarde Media in July 2004 where my duties include acting as Editor-in-Chief of SafetyXChange. As you can see from the attached photo, I didn't have to give up a career in modeling to pursue a career in publishing.

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