Train the Trainer 101: Why You Need More than 1910 and 1926
OSHA, like MSHA, publishes regulations for the employer to follow to promote safety in the workplace. The methodology of the regulations is to establish performance goals. Regulations do not establish procedures according to OSHA, even though they may occasionally require certain actions. One example is requiring barricades and equipotential mats at grounded equipment to protect workers from voltage gradients.
When I teach about OSHA, I like to demonstrate the difference between rule and procedure using rule 29 CFR 1910.23(e)(3)(v) regarding guardrails. Where guardrails are required, they must be a nominal 42 inches high and able to withstand 200 pounds of pressure. How do you build this guardrail? They are usually built of wood, but you can build your guardrail of vermicelli and rubber bands as long as it’s a nominal 42 inches and can withstand 200 pounds. You can also make the guardrails from wood or steel pipe. If you do, the standard does say to use 2-inch-by-4-inch stock or 1.5-inch pipe – but you can use vermicelli.
The point is that the OSHA rules themselves are not sufficient for an effective safety program. You need more, and OSHA gives us plenty of guidance about where to find compliance information and how to use it. The three most valuable resources are consensus standards, CPLs and preambles.
Consensus Standards
Safety professionals have two customers: the employee and the employer. The safety professional’s responsibility to the employee is obvious; the responsibility to the employer is less so. Our obligation to the employer is to provide policy, procedures and guidance that help to ensure a safe workplace and protect the employer from fines and adversarial action for violation of regulatory standards. Both responsibilities can be accomplished simultaneously with the right resources, one of which is consensus standards.
Consensus standards are established by recognized authorities that are experts in their fields. They are privately written, are the property of the authoring body and you have to pay for them. Most consensus standards are now in digital form and can be purchased online. Most cost approximately $40 to $60. Some, like the ANSI sign standard and the NFPA Life Safety Code, cost much more. I frequently hear people say that their reasons for not purchasing the standards are because they are too expensive and because OSHA cannot cite an employer for a consensus standard violation. That is almost true. Consensus standards are not regulatory and citations for safety standard violations will not be based on a consensus standard rule. However, OSHA will use consensus standards as evidence of a violation of an employer’s responsibility under the General Duty Clause. Before I further discuss this issue, let’s take a look at this introduction to 29 CFR 1910.6: “The standards of agencies of the U.S. Government, and organizations which are not agencies of the U.S. Government which are incorporated by reference in this part, have the same force and effect as other standards in this part. Only the mandatory provisions (i.e., provisions containing the word ‘shall’ or other mandatory language) of standards incorporated by reference are adopted as standards under the Occupational Safety and Health Act.”
This means that OSHA can use consensus rules designated “shall” as regulatory. For example, ANSI Z87.1 is one of the consensus standards incorporated by reference. If you issue safety glasses marked ANSI Z87.1, and then you stick on a plastic side shield that is not marked Z87.1, you are not meeting the requirements of the OSHA standard because paragraph 2.3.4 of ANSI Z87.1 states, “Components bearing the marking Z87 shall not be used with non-complying components.” The word “shall” used in the otherwise nonmandatory standard now has, according to 1910.6, the same force and effect as OSHA regulatory text.
This is why a safety professional needs to know more than the OSHA standards. The value of knowledge of the consensus standards is that they assist the employer in providing a safe workplace by providing guidance toward ensuring the employer meets the expectations of the regulatory text. This is a very simplistic example, but violations of other consensus standards, such as NFPA 101: Life Safety Code, become much more serious both in risk and cost of noncompliance.
CPLs: Guidance for Compliance Safety Officers
I count OSHA as one of the most transparent federal agencies because of both the quality and availability of information they make accessible. OSHA’s intent is the safety of workers, not catching violators, although if an employer is a violator, OSHA will marshal all of their resources to stop them.
OSHA understands that information for both employers and employees is a key component to worker safety. This is where CPLs can be one of the most valuable tools for the employer. CPLs are compliance guidance written by OSHA for compliance safety and health officers (CSHO). They are topic specific and provide CSHOs with explanations of the rules, typical compliance procedures and issues, and also provide them with information about how to cite violations of the particular rules associated with the CPL.
One of the most important CPLs is 02-00-150, “OSHA’s Field Operations Manual (FOM).” Every safety professional should have a copy of this document and read it thoroughly. The 380-page FOM is the most comprehensive single document available that covers every aspect of OSHA administration and CSHO responsibility, from assistance programs through inspection and criteria for writing violations. With this information readily accessible, no employer should find themselves in trouble on the day OSHA finally shows up at their door.
Now, about those consensus standards mentioned earlier: On page 4-19 of the FOM, you can find out exactly how compliance standards – even those without the mandatory “shall” – can be part of a General Duty Clause citation. A General Duty Clause citation requires that the employer have knowledge that a hazard exists, that employees were at risk and that a course of abatement was possible. Page 4-19 of the FOM lists those modes of recognition, including the following statement: “If the relevant industry participated in the committees drafting national consensus standards such as the American National Standards Institute (ANSI), the National Fire Protection Association (NFPA), and other private standard-setting organizations, this can constitute industry recognition. Otherwise, such private standards normally shall be used only as corroborating evidence of recognition. Preambles to these standards that discuss the hazards involved may show hazard recognition as much as, or more than, the actual standards. However, these private standards cannot be enforced as OSHA standards, but they may be used to provide evidence of industry recognition, seriousness of the hazard or feasibility of abatement methods.”
The provisions of Chapter 4 of the FOM tell us something else. A consensus standard does not have to be listed in 29 CFR 1910.1 to be used by OSHA. Any consensus standard created by a recognized authority relevant to your workplace can be either your tool toward safety and compliance or OSHA’s evidence in a citation. The choice is yours.
Preambles
Just like most consensus standards, many of the major OSHA regulations have preambles; 29 CFR 1910.269 is a good example. The preamble documents why the standard exists and how it was promulgated. Even more importantly, the preamble records the pertinent discussions of the individual rule within a set of standards that arose during the development of the individual rule. The preamble contains the record of why the rule was developed, what it is supposed to accomplish, what challenges to the rule were levied by the industry and why OSHA decided to write the rule the way they did. Just like consensus standards, OSHA will not cite based on the preamble language. However, they will use it to corroborate hazard recognition, and that is a basis for citation.
When I am asked for guidance on writing policies, consensus standards, CPLs and preambles are my first recommendations. They are three valuable resources available to every safety professional. With a little reading and research, and then comparing these resource materials to your particular work environment, you can provide a work environment that both enhances safety for your employees and reduces risks to the employer.
It’s worth repeating: When it comes to consensus standards, CPLs and preambles, they can be either your tool toward safety and compliance or OSHA’s evidence in a citation. The choice is yours.
About the Author: After 25 years as a transmission distribution lineman and foreman, Jim Vaughn has devoted the last 15 years to safety and training. A noted author, trainer and lecturer, he is director of safety for Atkinson Power. He can be reached at jim.vaughn@atkn.com.
Editor’s Note: “Train the Trainer 101” is a regular feature designed to assist trainers by making complex technical issues deliverable in a nontechnical format. If you have comments about this article or a topic idea for a future issue, please contact Kate Wade at kate@incident-prevention.com.
