April 23, 2012 – ANSI, NFPA and other voluntary organization standards (which I’ll refer to as “ANSI standards unless the context requires otherwise) look a lot like laws. They even cover the same issues OSHA standards. Clearly, though, there are significant differences between an OSHA and an ANSI rule.
4 Things to Keep in Mind about ANSI Standards
OSHA laws typically set out only a general framework, procedure or set of standards to guard against a hazard; ANSI standards typically go into greater depth. They provide the technical, nuts-and-bolts details that OSHA leaves out. And while OSHA standards are minimum requirements, ANSI standards are more stringent. A good way to come to grips with the interplay between OSHA and ANSI standards is to remember these 4 principles:
1. ANSI Standard Aren’t Laws
OSHA standards are mandatory; ANSI standards are voluntary. Organizations like ANSI are typically private groups made up of industry representatives, technical experts and policy makers that 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 Mandatory
However, ANSI standards may become mandatory through a process called “incorporation by reference,” a fancy term for a simple process whereby a cited standard is specifically made a part of the OSHA rule (under Sec. 1910.6 of the General Industry standard). Thus, for example, the OSHA standard for head protection says that head protection must comply with 1 of 3 ANSI standards industrial workers’ head protection standards “incorporated by reference.”
Not following a standard incorporated by reference is an OSHA violation. For example, in January (2012), OSHA issued a metal finishing plant a serious citation for storing flammable liquids in a room whose construction didn’t meet voluntary NFPA fire-resistance ratings, which are incorporated by reference in the Flammable and Combustible Liquids standard (Sec. 1910.106(d)(4)(i)) [Anthony River Inc., No. 12-012-NEW/BOS 2012-011, Reg. 2, Jan. 27, 2012].
OSHA standards might incorporate the entire ANSI standard or just a part of it. OSHA might also adopt the standard but change a specific part of it. For example, the OSHA Fire Brigades standard says “performance, construction and testing of fire-resistive coats and protective trousers shall be at least equivalent to the requirements of NFPA No. 1971-1975,” but then lists a couple of “permissible variations” [Section 1910.156(e)(3)(ii)(A) and (B)].
3. You Can Be Cited for Not Following Voluntary Standards
Where things get tricky is when OSHA issues citations for failure to follow voluntary standards that are not incorporated by reference into OSHA standards. There are 2 ways this can happen:
ANSI Standards as Measures Required to Implement OSHA Requirements: OSHA standards typically establish general safety objectives while giving employers discretion how to achieve them. In exercising this discretion, OSHA—and the courts—expect employers to at least consider existing consensus standards adopted by industry and non-governmental organizations. Failure to do so can be the basis for a citation.
Example: The OSHA PPE Standard requires use of PPE to protect workers against electrical hazards without specifying which equipment [Sec. 1910.335(a)(1)(i)]. In September 1999, OSHA cited a major U.S. corporation for not requiring its electricians to wear flame-resistant coveralls and insulated gloves and face protection, equipment not mentioned in the OSHA but specifically required by the voluntary electrical safety standard, NFPA 70E.
ANSI Standards as Duties under General Duty Clause: OSHA may also consider the failure to follow a voluntary standard a violation of the “general duty clause” (GDC), Sec. 5(a)(1) of the Occupational Safety and Health Act, which requires employers to keep the workplace safe from “known hazards” likely to cause death or serious physical harm. Thus, for example, in August 2011, OSHA issued about $30,000 worth of fines to an Omaha cattle operation for failing to follow ANSI and NFPA standards in violation of the GDC.
4. You Must Consider But Don’t Have to Adopt Voluntary Standards
The fact that voluntary ANSI standards represent a credible and accepted standard of safety 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. Understanding why they don’t do this is key to coming to grips with the significance of ANSI standards.
Keep in mind that the people who write OSHA regulations and ANSI standards have different agendas. Lawmakers must consider both workers’ safety and employer costs and strike a balance between them. Although the authors of ANSI Standards also consider costs, they’re technical people whose principal motivation is safety. Accordingly, they’re 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.
That’s why only a few ANSI standards ever achieve the status of law. The vast majority of standards that don’t get incorporated by reference truly are voluntary that employers don’t have to adopt if they can’t afford to as long as they can provide a reasonably safe alternative. In other words, 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. 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.
What Should You Do About ANSI Standards?
Here are some practical steps to take: