Legend Safety Solutions, inc.

Urban legends—Compliance pitfalls

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Courtesy of Legend Safety Solutions, inc.

Maintaining update knowledge of OSHA requirements and keeping company safety policies current is a daunting task. There are many sources to turn to in order to obtain information about OSHA standards. There is the OSHA web site, seminars, consultants, professional organizations, colleagues, and countless other sources. As if the regulatory jungle isn’t difficult enough to navigate, the accuracy of the information provided by the many “resources” out there varies widely.

While most of the familiar sources of information provide their advice in good faith and believe it to be accurate there is quite a bit of urban legend out there. Often this urban legend becomes so pervasive that even those looked upon as experts begin to believe and spread it. One of the most common occurrences giving rise to the spread of urban legend in the area of OSHA compliance is the update of a consensus standard. It seems that many of those knowledgeable about the update standard are all too ready to tout it as the law as soon as it is released. The fact of the matter is, first consensus standards are not in and of themselves law and are not enforceable unless adopted by a government agency through their rule making process, second most OSHA standards do reference consensus standards but generally they reference a specific version of a consensus standard, and third when an OSHA standard references a specific version of a consensus standard that is the only version OSHA can enforce until it updates its own standard through the rule making process.

Does this mean it is not a good idea to update a safety program to meet the requirements of a revised consensus standard? Certainly not, but is one thing to do so under the specter of compliance and quite another to do it as a voluntary effort to be best in class. We owe it to our employers and clients to provide accurate information regarding matters of compliance; this is simply good business and ethical practice of our profession. So how do we recognize the urban legend? It takes some effort but really isn’t all that difficult.

The first step in debunking an urban legend is to remember that if OSHA has an existing standard addressing a particular hazard they must use that standard. The General Duty Clause is intended to be used to cite hazards for which OSHA does not have a standard not to get around the rule making process. Read the existing standard, does it cite a consensus standard, if not; the standard does not give any consensus standard the force of law. If it does, is the consensus standard cited merely as guidance or is it incorporated into the standard in some manner? In the former case, the consensus is merely that guidance, an example of what might be done to comply with the standard. In the latter the consensus standard is the law. In this case, however, if a specific version of a consensus standard is referenced it is that version of the standard that is law, not the new version, until the OSHA standard is changed through the rule making process. In this case, check the Federal Register and OSHA web site and press releases to see what the status of any related rule making activity is. Ok this all sounds good, but OSHA was just in my facility and cited me based on urban legend, now what? It is time to get the lawyers involved and use the contest process in the OSH Act to protect your rights and help to compel the errant agency to comply with the law regarding law making.

If it is a good idea to work towards conformance with the latest consensus standards and industry practices why worry about all this? Read back a bit, we owe it to our employers and clients to provide accurate advice. It is one thing to revise company specifications for new purchases of equipment, for future overhauls of existing equipment, for new or future revisions of work processes with an idea to work systematically toward conformance and quite another to slam on the brakes and immediately change everything. While our cause is truly a noble one at the end of the day the reality is our recommendations must reflect good business judgment.

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