Safety Culture / Psychology / Training/Incentives / Best Practices

A Growing Obligation to Prevent Harm

Understand the meaning of “standard of care”

July 7, 2011
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Should a New York Wal-Mart store have had a crowd control plan in 2008 that may have prevented an employee being trampled to death by shoppers during the store’s annual “Blitz Friday?” OSHA cited the store for this fatality, and although there is no specific OSHA regulation for crowd control plans, the agency held that it was Wal-Mart’s “general duty” to have exercised such a plan. Earlier this year an administrative law judge ruled in OSHA’s favor.

In the absence of specific requirements, authorities may rule that “standard of care” was not exercised by a responsible party to prevent harm.

Standard of care describes actions, or general duty, that a reasonably prudent person should take to avoid harm to other people. Evidence for standards of care may be found in regulations, guidelines, voluntary standards, industry practices, conduct expected by a person in the practice of his/her trade or profession or even “common sense.” The challenge for EHS pros is this: How do we keep up with standards of care? And are some more important than others?

General duty & recognized hazards

Section 5(a)(1) of the OSH Act, known as the General Duty Clause (GDC), states that each employer shall furnish “… employment and a place of employment which are free from recognized hazards …” OSHA’s November 2009 Field Operations Manual (FOM) is the current evidence for standard of care with OSHA’s GDC. To prove a violation of the GDC, OSHA must establish each of the following elements:

1) The employer failed to keep the workplace free of a hazard to which employees were exposed;

2) The hazard was recognized or reasonably foreseeable;

3) The hazard was causing or was likely to cause death or serious physical harm; and,

4) There was a feasible and useful method to correct the hazard.

Recognized hazards within OSHA’s FOM include: statements by safety or health experts; employee complaints; manufacturers’ warnings on equipment or in literature; statistical or empirical studies; government and insurance studies; national consensus standards; and state and local codes or regulations not addressed by OSHA standards.

For example, do employees use a company provided cell phone? Check the phone’s safety manual. All manufacturers of cell phones now provide warnings for the use of their device. Some states and local communities have laws that prohibit texting from a mobile phone while operating a motor vehicle or even while walking. Have you addressed these hazards?

Beyond OSHA

EHS pros should realize that GDCs exist in other federal EHS laws. For example, see Guidance for theImplementation of the General Duty Clause Clean AirAct Section 112(r)(1), EPA 550-B00-002, May 2000, at www.epa.gov/ceppo/. Consider that “extremely hazardous substances” are not limited to the list of regulated substances listed under Section 112(r) of the CAA. Is your facility subject to the CAA GDC? Someone at your facility has a standard of care to know.

Individual standard of care

Standard of care considers what we may do/don’t do as an individual. Consider the plight of Mr. Abich and his mother. The Abichs wanted to remodel their home in California. To save money, Mr. Abich, who is not an EHS pro, elected to manage the project himself and hired contractors. Mr. Cortez, who was hired to install new roofing, fell and was seriously injured. Mr. Cortez sued seeking damages for his injuries. The California

Supreme Court ruled this year that Mr. Abich must comply with Cal-OSHA regulations for the safety of people working on his home remodeling project.

Risk management

The guidance in ISO 31000 risk management should be followed to effectively address standard of care issues for an employer, EHS pro and even an individual. The full principles of risk management are necessary to appreciate the big picture. For example, the big picture of risk management helps explain why Wal-Mart spent more than $2 million dollars in legal fees to contest a $7,000 OSHA penalty even though Wal-Mart has since installed crowd control programs at all stores. The Abich’s nightmare could have been avoided if full risk management principles were considered.

Prioritize

Since it may be impractical to control all recognized hazards at once, a formal method for which hazards to address first or emphasize should be developed. For example, did your facility emphasize an arc flash control program to conform to NFPA 70E because the hazard was proven to be ripe for OSHA enforcement under the GDC, or did you just follow the crowd? The likelihood of OSHA GDC violations may be determined by conducting a search at http://osha.gov/pls/imis/generalsearch.html. Particularly, check out which GDC violations are cited most often within your industry’s SIC.

The growth of codes of conduct (i.e. ethics) over the past few years, which you may be subject to by your employer or organizations to which you belong, also warrants special attention. These codes may be used as evidence in negligence claims that someone may have violated a standard of care for their job or practice of their trade or profession. Don’t glaze over codes of conduct.

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Recent Articles by Dan Markiewicz, MS, CIH, CSP, CHMM

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