an employer as “anyone who is engaged in business and has employees.” So, if you own a business and have em- ployees, you might refer to yourself as “self-employed,” but in legal terms you are an employer. This means that both you and your employees are covered by the OSH Act and are subject to the feder- al and state jurisdiction of OSHA. HOW DOES ANSI APPLY? ANSI is a private, nonprofit organiza- tion that oversees standards and con- formity assessment activites in the U.S. ANSI’s Z133 Safety Standard was developed for the arboriculture indus- try and provides criteria for work that involves general safety and procedures, electrical hazard, use of vehicles and mobile equipment, portable tools and ladders, and climbing. The best way to understand how ANSI standards fit into the picture is to expand your understanding of the general duty clause. This clause is unambiguous in its requirement for employers to provide a workplace free of “recognized hazards.” What does ANSI Z133 do? It helps to identify and recognize hazards as well as control measures to mitigate those hazards. Of course, so do other indus- try-recognized training publications, best practices, and manufacturers in- structions. ANSI Standards are known as “voluntary consensus standards.” These standards are not in-of-them- selves “the law.” They can be thought of as best practices that are agreed upon by industry experts. As such, they clear- ly establish certain hazards as known and can be referred to in a legal case involving death or physical harm. In certain cases, OSHA may refer to ANSI standards directly and require that they be followed. In writing specif- ic standards, OSHA may use consensus standards, such as Z133, as a refer- ence. In other words, ANSI Standards may end up carrying the force of law. In the case of the tree care industry, although OSHA recognizes the exis-
WHAT ABOUT SHOULDS AND SHALLS?
SHOULDs and SHALLs refer to how ANSI uses these words in its standards. It’s important to remember that ANSI standards are voluntary consensus standards and are not in themselves “the law.” Therefore, it logically follows that all SHOULDs are voluntary and all SHALLs are also voluntary. However, all SHOULDs and SHALLs identify recognized hazards. In situa- tions where there is no OSHA standard, employers may be cited under the gen- eral duty clause. Given the wording of the general duty clause, it logically fol- lows that OSHA may or may not consid- er the distinction between a SHOULD or a SHALL. To be cited under the general duty clause, the following conditions must be met: •The employer failed to keep the work- place free of a hazard to which employ- ees of that employer were exposed •The hazard was recognized •The hazard was causing or was likely to cause death or serious physical harm •There was a feasible and useful method to correct the hazard What this boils down to is a duty of care where the employer should have reasonably known of the hazard and should have reasonably done some- thing to correct it. In other words, as an employer, you are not insulated from legal exposure because no OSHA stan- dard exists, or because of the “volun- tary” nature of consensus standards, or because something was identified as a SHOULD or a SHALL. SUMMARY The legal and regulatory environment provides that employers may be cited for failure to follow an existing law or regulation or for failure to exercise their responsibility under the OSHA general duty clause.
ANSI’s Z133 Safety Standard was developed for the arboriculture industry.
tence and value of Z133, it does not, in fact, agree with all industry practices and the consensus standards that ad- dress them. For example, as per the Tree Care Operations Standard Small Business Advocacy Review Panel-Small Enti- ty Representative Issues Document March 2020, OSHA finds the hoisting of personnel in cranes as contrary to existing standards and likely incon- sistent with manufacturer’s recom- mendations. This implies that strict adherence to Z133 does not guaran- tee that you are in compliance with either OSHA standards or the general duty clause. For those concerned with compli- ance, this reality can feel a little like a “damned if you do and damned if you don’t” scenario. In reality, what this illustrates is the inherent complexity of our industry (and many industries) and the real-life challenges that exist in recognizing hazards, creating stan- dards, and applying them in the realis- tic world of work. What this further illustrates is the importance of developing understand- ing within the industry’s full body of knowledge and the inescapable neces- sity of exercising sound judgment in all situations.
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