NFPA 70E: a complicated set of rules. OSHA standards: a complicated set of regulations. Although both have some things in common, the relationship between these two documents is often confusing, leaving many electrical professionals to ponder what role each exactly plays. Can OSHA cite you for failure to comply with NFPA 70E? If so, how?
Is NFPA 70E the Legal Standard?
The relationship between OSHA and NFPA 70E is an interesting one. Originally created at OSHA’s request, NFPA 70E is considered the “how to” standard. Paired with the National Electrical Code (known as the NEC or NFPA 70) and the installation and maintenance standard (NFPA 70B), NFPA 70E highlights the recommended electrical practices that are in line with established regulatory requirements. Is NFPA 70E the regulatory standard? No. But is NFPA 70E compliance required by OSHA? Yes and no.
Legally, NFPA 70E is considered an industry consensus standard, used to assist OSHA in preparing electrical safety standards. This means that it is not directly incorporated into the Code of Federal Regulations (CFR). But that doesn’t tell the whole truth. Even though NFPA 70E is not codified in the OSHA standards, OSHA can cite you for failing to comply with the standards. Sounds confusing, right? Let’s discuss.
The Relationship Between OSHA and NFPA
First, it’s important to look at some of the caveats. For example, OSHA mandates that all electrical work on or near electrical equipment be done in a de-energized state and that hot/live work may only be completed in specific circumstances. NFPA 70E, in turn, defines those circumstances for justified energized electrical work by providing guidance for limiting voltage exposures, setting limited and restricted boundary requirements for qualified and unqualified personnel, and guidance on the required personal protective equipment (PPE). In this, OSHA will leverage NFPA 70E if needed.
The General Duty Clause
One of the biggest ways OSHA can leverage NFPA 70E to cite an employer is through the General Duty Clause. Section 5(a)(1) of the Occupational Safety and Health Act states:
1. Each employer:
• shall 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;
• shall comply with occupational safety and health standards promulgated under this Act.
2. Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct.
Using the General Duty Clause
This clause was interpreted and clarified in a letter from OSHA, titled “Relevance of NFPA 70E industry consensus standard to OSHA requirements; whether OSHA requirements apply to owners.” In this letter, acting Director Russell B. Swanson explained that compliance officers can evaluate an employer using a two-step process.
First, an employer must fit one or more of the following four role categories:
• Exposing — an employer whose own employees are exposed to the hazard;
• Creating — an employer who creates a hazard to which a different employer’s employees are exposed;
• Correcting — an employer that has been brought in specifically to correct hazards; and
• Controlling — an employer with general supervisory authority over the work site and the power to have safety and health violations corrected.
If an employer fits one or more of these categories, the compliance officer must go to step two: determining if the employer took sufficient steps to meet its obligations. A citation may be issued only if insufficient measures were taken. If an employer was determined to play a role in exposing employees to a hazard, citations based on a failure to meet a General Duty Clause requirement can be issued.
How Industry Consensus Standards Fit into the General Duty Clause
Since NFPA 70E is an industry consensus standard — generally accepted standards documented by an expert body — an OSHA compliance officer may cite you for exposing a worker to a recognized hazard.
As documented in the clarification letter, “with respect to the General Duty Clause, industry consensus standards may be evidence that a hazard is ‘recognized’ and that there is a feasible means of correcting such a hazard.”
Therefore, there are scenarios in which you can be cited for failing to follow NFPA 70E.
Reasonable Steps
In addition to the General Duty Clause, OSHA requires an employer take reasonable steps to protect employees. A 2006 letter documented this, noting that “Where there is no §1910.335(a)(2)(ii) safeguard that would fully protect against the hazards, an employer is still obligated under the Occupational Safety and Health Act of 1970 to take reasonable steps that will protect the employee to the degree possible.”
In defining reasonable steps, NFPA 70E would be used by the employer to prove an affirmative defense of impossibility. In this, an employer who can show that compliance with the terms of a standard is impossible under the circumstances must also show that it used alternative measures to protect employees, or that there were no such control measures.
Does following a process that starts with a method in which controls range from “immune to human error” to “mitigating risk” sound familiar? It was a big part of the most recent NFPA 70E document — the Hierarchy of Controls.
Required PPE
In addition to the General Duty Clause, OSHA also requires (under 1910.132) that employers protect their employees from hazards that require the use of PPE. Where is the best place to find what PPE is required for a job based on the hazards and incident energy calculations? And what defines the four PPE categories? NFPA 70E.
The Required Electrical Safety Program
Company-wide, all-encompassing written guidelines are the foundation of an electrical safety program. NFPA 70E, Sec. 110.1 requires a written document that directs activity appropriate for the risk associated with electrical hazards.
In the latest edition of NFPA 70E (2018), an electrical safety program is defined as “a documented system consisting of electrical safety principles, policies, procedures, and processes that directs activities appropriate for the risk associated with electrical hazards.”
This presents another area in which employers should defer to NFPA 70E to become compliant with OSHA — developing an electrical safety program.
Enright is president and CEO of Enespro PPE, Oak Brook, Ill. For more information, visit www.enesproppe.com.
