Incorporated By Reference: Understanding OSHA and National Consensus Standards

The General Duty Clause of the Occupational Safety and Health Act [OSH Act §5(a)(1)] requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” Many people are familiar with this clause, which requires employers to independently identify hazardous conditions that aren’t specifically enumerated in the OSH Act, but there is another way OSHA protects against additional hazardous conditions:

“The standards 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.”

This sentence appears in multiple OSHA standards—OSHA 1910.6, OSHA 1926.6, OSHA 1915.5, and OSHA 1917.3—and refers to standards and materials created and published by organizations other than OSHA. But what exactly does “incorporated by reference” mean? Incorporation by reference (IBR) is the process of adopting national consensus standards created by industry experts into the Occupational Safety and Health Act, which gives them the same legal authority as the Act itself.

The General Duty Clause protects workers from hazards that are not addressed by any OSHA standard, and incorporation by reference does the same thing. Industry standards often address hazards beyond the scope of OSHA regulations, so through IBR, OSHA can address specific hazards that otherwise would fall under the General Duty Clause. When standards are IBR, violations of industry standards carry the same weight as violations of OSHA standards.

Why Incorporate by Reference?

IBR means that privately developed standards become a part of OSHA code and can be enforced equally with OSHA standards. There are a few reasons OSHA uses IBR. One reason is the sheer size of the Code of Federal Regulations. IBR standards add an extensive amount of information and safety requirements to the Code that lay out more far-reaching and industry-specific guidelines. If printed, the IBR standards would be several feet thick.

IBR also allows OSHA to hold employers accountable to industry standards created by industry experts with federal authority. This accountability is important for two reasons. First, Congress accepts the effectiveness of privately developed standards because they are created and reviewed by experts who are familiar with their industries. Those experts have the knowledge and understanding to develop the most thorough and effective standards, so IBR ensures OSHA also uses the most effective standards to protect workers.

Second, standards can be issued sooner with IBR than they can be created by OSHA. When the Occupational Safety and Health Act was signed into law in 1970, standards were adopted from institutes, such as ANSI, NFPA, CGA, AWS, and others. By codifying existing standards as law, OSHA issued safety standards immediately to provide protection for American workers as soon as the law was enacted.

Problems with IBR

There are a few drawbacks to IBR in OSHA standards. One is the matter of obtaining the incorporated standards, which are often available only through purchase from the publishing organization. Although the standards can also be accessed at the OSHA headquarters in Washington D.C., or at an OSHA regional office, many users may not have practical access to an OSHA office because of location. This fact can make IBR standards more difficult to review than OSHA-created standards, which are publicly available online.

Another drawback is that private standards are updated regularly, but OSHA cannot incorporate them to update automatically. So, if OSHA incorporates a standard from 1970 and that standard is updated, the law continues to use the 1970 version. Even though compliance with the standard may be different after an update, OSHA must take specific action to update the law to the new standard.

The Importance of IBR

Standards that are incorporated by reference play an important role in eliminating hazards as thoroughly as possible. Privately developed standards are created by industry experts. Industry experts generally have more insight into specific industries than OSHA officials, who need to understand safety standards across the full range of the OSH Act’s provisions, so they are the best-equipped to create thorough, comprehensive standards.

Incorporation by reference allows those industry experts to lend their specific expertise to the establishment of a fully comprehensive federal safety program. Safety managers should identify and become familiar with all IBR standards that are relevant to their operations. Standards that are incorporated by reference provide employers with additional training, inspections, and other measures through OSHA to make a workplace as safe as possible.

Sources:

• Wahoff, William J. “The General Duty Clause: How Does OSHA Prove Its Case and What Role Do Industry Standards Play?” https://www.americanbar.org/content/dam/aba/events/labor_law/2018/papers/general-duty-clause.authcheckdam.PDF