Additional Thoughts on SHOULD vs. SHALL
About a month ago I wrote about the conflicting meanings of Should vs. Shall in the regulatory world. For those of you that missed this see my previous post.
REVIEW OF MY SHOULD VS. SHALL NOTES
My concern starts with the fact that the underpinning of the OSHA code is the General Duties Clause. In a nutshell, the GDC states that the company/employer is obligated to provide the worker with a safe working environment. Further, to qualify as a GDC infraction, the issue in question must be a “known hazard.”
“Should” items are defined as suggestions while “Shall” instructions are considered absolute legal requirements. My concern is that although a “Should” is not required, it is by definition a “known hazard,” by virtue of the fact that it was written up in the regulatory document. Because the “Should” was written up and a recommended action suggested, is it not therefore a de facto “Shall?”
NEW INPUT ON THE TOPIC
The reason I’m writing about this again so soon is that last week I attended an Arizona State University OSHA class and posed this question to the instructor.
Here’s a summary of his response; First, he said it’s important to determine if I’m asking the question before or after the accident. If before the accident, I cannot get an OSHA infraction for not conforming to a “Should.” It’s suggested and not required.
BUT, if the question is posed after an accident, he would be free to issue a citation under the requirements of GDC (General Duty Clause, OSHA 5a1). Put another way, before the accident OSHA makes “Should” a voluntary. After the accident, you have now transcended the voluntary “Should” to having responsibility for incurring an injury for a known hazard and therefore are in violation of the General Duty Clause, OSHA 1910.5a1.
Second, he said, I shouldn’t confuse legal issues with regulatory issues. Failure to follow a “Should” is likely to have different outcome when evaluated from a regulatory viewpoint as opposed to a legal viewpoint. The lawyer only has to find a sympathetic jury where the regulator has to provide “chapter and verse” documentation.
WHAT’S YOUR TOLERANCE FOR RISK?
Bottom-line, it gets down to how much risk you are willing to assume. It appears that barring an injury, you can choose to ignore the “Should” instructions. You are only required to conform to the “Shalls.” Unfortunately if the odds are not running your way, you may well find yourself in the crosshair’s of both the OSHA man (regulatory issue) as well as a Plaintiff lawyer (legal issue) and on the losing side. The regulatory issue may cost tens of thousands but the legal issue is liable to cost in the millions.
OTHER INDUSTRIES VIEW OF SHOULD VS. SHALL
I was recently discussing this issue with a plant owner that sat on several ASTM committee’s. His said the ASTM is working to either eliminate the “Shoulds” or to change them to “Shalls.”
MY PERSONAL ACTION LIST
As a result of these conversations, I’m going to raise this issue with both the ASME/ANSI B30.2 Overhead and Gantry Cranes Committee and CMAA Spec 70 for Overhead and Traveling Cranes Group at our next meetings. I have a hunch this is going to make for a hell of a bruhaha, BUT THIS NEEDS TO BE ADDRESSED!
DUMPING THE LAS VEGAS STRATEGY
My goal in these articles is to help both employers and crane inspectors with specific and easy to follow directions rather than forcing them into being Las Vegas gamblers. Unfortunately, the regs as they currently stand encourage the Las Vegas business model.
NOTE TO READER:
I am not a lawyer nor a regulator. My writings are provided as “food for thought” for practicing crane professionals working in the EOT Overhead Bridge Crane industry and I always welcome and encourage both agreement as well as differing points of view. Please submit your opinions via email and I will be glad to post them here. My email address is Larry@OverheadCraneConsulting.com.