Why Voluntary Standards Aren’t So Voluntary

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Standards from organizations like CSA, ISO, ANSI and NFPA (which we’ll lump together and refer to as “CSA”) are purely voluntary and you don’t have to comply with them unless you want to.

And the moon is made of green cheese.

How Voluntary Standards Can Become Legal Obligations

Technically, CSA standards are not laws. But you can still get into trouble if you don’t adhere to them.

First, voluntary standards may become mandatory through a process called incorporation by reference. This happens when an OHS regulation cites a CSA standard. Take a look at the section of your province’s OHS regulations and you’ll see that most items of PPE must conform to the appropriate CSA standard for the item. In effect, the CSA standard becomes part of the law. So if you don’t follow it, you face prosecution and fines.

Example: 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 Z150, “Safety Code for Mobile Cranes,” is incorporated by reference. CSA Z150 says, among other things, that only trained, experienced and qualified operators can operate cranes. An 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].

How Voluntary Standards Affect Due Diligence

CSA standards may become mandatory even when they’re not incorporated by reference. This can happen when a court uses the standard as a benchmark to determine if an employer did enough to establish a due diligence defence.

Again, it’s a simple concept.  To prove due diligence, the employer must persuade the judge that it took all reasonable steps to comply with the law and prevent the violation. How in the world, you might fairly ask, does your average judge who can’t tell the difference between a socket wrench and a pocket trench determine the specific safety measures an employer should have taken (assuming, of course, the law doesn’t spell it out)?

The answer is that the judge looks for help. And one of the first places he turns is to the standards adopted by people who do know the complexities of the issue involved. In this way, CSA standards become a reference point used to measure compliance. The implication: Not obeying a CSA standard enhances the risk of liability.

Example: Section 25 of the Ontario OHS Regulations for Industrial Establishments says that an in-running nip hazard on any part of a machine must be guarded by a device “that prevents access to the pinch point” but doesn’t specify which device to use. CSA Z432-94, says that height should be considered in determining if a physical barrier provides enough guarding protection. According to the Standard, a barrier of less than 39-inches (1,000 millimetres) is too short since it’s so easy to climb over. The Ontario regulation doesn’t incorporate the CSA standard by reference.  Even so, the court cites the company’s failure to follow it in ruling that the company didn’t show due diligence to guard the machine [R. v. Grant Forest Products Inc., [2002] O.J. No. 3374 (2001)].

On the flipside, companies that do comply with CSA standards stand a better chance of winning on due diligence.

Example: Section 52(1)(a) of the Alberta OHS Act requires employers to install “effective safeguards” on machines but doesn’t define the term. So the court looked at voluntary standards of the American Society of Mechanical Engineers (ASME). Section 6.6.2(a) of the ASME Standard requires guarding against “inadvertent contact.” The court noted that the contact in this case probably wasn’t inadvertent since the victim had crawled under the conveyor. Moreover, Section 6.7.1 of the Standard specifies that “a return belt idler does not require guarding.” Since the employer’s decision to guard only the one side of the roller conformed to ASME Standards, the court ruled that it wasn’t guilty of violating the Alberta machine guarding law [R. v. Maple Leaf Metal Industries Ltd., [2000] A.B.P.C. 95 (2000)].

Conclusion

The notion that voluntary standards are purely voluntary is a myth. Although you don’t have to do what the standard says—unless, of course, it’s incorporated by reference into the regulation—you need to understand that failure to comply with a CSA standard can bite you in the behind when you try to prove due diligence.

But I’m not suggesting that you must go the CSA route to prove due diligence; what I am suggesting is that you must at least:

  • Be aware of the standard;
  • Specifically consider whether it’s appropriate for your organization;
  • Either adopt the standard or an alternative measure; and
  • Be prepared to explain why you concluded that the alternative (or no measure) was a reasonable way to achieve the standard’s safety purpose.