SHOULD vs. SHALL

The Great Debate

This morning I woke up to a headline on my iPhone stating the two Boeing 737Max planes that crashed (Spring of 2019) were purchased without an optional safety device. An optional device that Boeing charges extra for. The article said the safety device was not required by law and most of the “low cost” carriers choose not to purchase the inexpensive accessory.

The headline reminded me of the “all too frequent” debate in the crane safety world about, “Should” vs. “Shall.” It also reminds me of the section of OSHA called the General Duty Clause. For me, I have a love/hate relationship with the General Duty Clause.

““Section 5(a)(1) of the Occupational Safety and Health Act, requires that each employer furnish to each of its employees a workplace that is free from recognized hazards that are causing or likely to cause death or serious physical harm.””

Although I applaud the intent, my concern is with the practical implementation. OSHA requires four elements to be present in order to incur a GDC violation;

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

  2. The hazard was recognized;

  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.

The one that I find especially concerning is #2.

By definition, if an item is listed in a spec as a “Should” (that is an option) then isn’t it therefore a “recognized” hazard by virtue of it “Should” designation? And, if an injury incurs and the owner didn’t choose to perform the optional “Should,” are they not then guilty of a GDC violation?

In other words, did the GDC de facto convert all “Shoulds” to “Shalls”? Does the GDC in effect red flag all “Shoulds”?

For example, I sit on the ASME/ANSI B30.2 Overhead and Gantry Cranes committee. We are currently discussing the possibility of requiring overload protection on a hoist. In other words, moving it from a “Should” to a “Shall.” My question is, if the requirement of a hoist overload protection device is only a “Should” and in the process of lifting an unsafe load an operator is killed, isn’t that a case of a “recognized hazard” and therefore isn’t the owner guilty of a GDC violation?

If this logic is true, didn’t we just promote all “Shoulds” to “Shalls”?

Lastly, maybe this OSHA debate of Should vs Shall a pointless exercise. There are really two authorities we need to be concern with. The obvious one is OSHA and they seem to be the only one we talk about. But the real concern is a jury of our peers!

Remember, in the event of serious injury or wrongful death, you will be tried by a jury of your peers. Twelve people who think OSHA is a small town in Wisconsin and could care less about the nuanced difference between Should vs. Shall. All they will see is a paragraph in a government document that says you “Should” have done something, an opposing lawyer will show you didn’t do it, and a 30-year-old widow with three children and a golden retriever that will be sitting sadly in the corner.

Regardless of whether it was a Should or a Shall, I don’t like your odds!

Larry Dunville