The Occupational Safety and Health Administration (OSHA) issues regulations and standards, but those cannot possibly address all workplace health and safety conditions. As a result, OSHA does two things: one is to incorporate by reference certain industry standards, and the other is to use Section 5(a)(1), also known as the General Duty Clause, to cite employers for violations of industry standards, whether incorporated by reference or not.

Quick Hits

• OSHA may look to the National Fire Protection Association’s new electrical equipment maintenance standard for interpretation of agency standards and requirements.
• The standard, NFPA 70B, requires development of a safety program addressing maintenance, inspections, servicing, and testing of electrical equipment.
• Employers can expect OSHA to begin relying on NFPA 70B as an industry standard.

One industry organization whose standards OSHA frequently adopts is the National Fire Protection Association (NFPA). For example, the recent notice of proposed rulemaking (NPRM) that would revamp the Fire Brigades Standard incorporates by reference several dozen NFPA standards. Like OSHA, states and municipalities also regularly adopt NFPA standards rendering them de facto industry standards. To that end, employers may want to keep abreast of updates to applicable NFPA standards relevant to their industry. One such important standard is NFPA 70B.

“NFPA 70B: Recommended Practice for Electrical Equipment Maintenance” was reissued as “NFPA 70B: Standard for Electrical Equipment Maintenance” in January 2023. What is the impact of the change from recommended practice to standard? NFPA 1 defines a recommended practice as, “A document that is similar in content and structure to a code or standard but that contains only nonmandatory provisions using the word “should” to indicate recommendations in the body of the text.” NFPA 1 continues and states: “An NFPA Standard, the main text of which contains only mandatory provisions using the word “shall” to indicate requirements and that is in a form generally suitable for mandatory reference by another standard or code or for adoption into law. Nonmandatory provisions are not to be considered a part of the requirements of a standard and shall be located in an appendix, annex, footnote, informational note, or other means as permitted in the NFPA Manuals of Style.”

As a result, NFPA 70B is no longer a recommendation and, instead, is now a requirement that could turn into industry standard. How quickly it will be before OSHA routinely issues citations for violations of NFPA 70B is not clear, but the standard alters considerably expectations of owners of covered electrical equipment. While OSHA never incorporated by reference NFPA 70E (Standard for Electrical Safety in the Workplace), it routinely looks to it to interpret its own standards and consistently relies on it as an industry standard. Likewise, OSHA also enforces NFPA standards when equipment manufacturers incorporate those recommendations into their installation, service, and maintenance requirements. Once the manufacturer does this, OSHA typically views the failure to comply with those requirements as a failure to engage in industry standard conduct.

At a high level, the critical elements of NFPA 70B include the following:

• Development of a safety program that includes:
  • A maintenance plan for equipment
  • Identification of personnel responsible for implementing each element of the program
• A plan of inspections, servicing, and suitable tests, including yearly infrared scans
• Electrical equipment maintenance and testing, including:
  • Equipment condition assessments to establish intervals of service and priority of equipment servicing
  • Tracking of maintenance activities and action items
  • Establishing a process to track progress and document results
• Incident investigations
• Incident energy analysis
• Personnel training
• A maintenance, equipment, and personnel documentation and records-retention policy

While many employers are compliant with NFPA 70E and already do many of these activities, there are many that do not follow NFPA 70B and it will only be a matter of time before OSHA begins holding them accountable for compliance with it.