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NFPA 1710 Staffing and Legal Mandates

Today’s burning question: Are there any Federal laws or requirements that mandate that fire departments comply with or meet NFPA 1710 staffing levels or response times?

Answer: There are no laws that I am aware of on a Federal or state level that directly mandate that  fire departments comply with NFPA 1710.  There are a few jurisdictions that have adopted 1710 on a local level through ordinances.

However, there are two back-door ways that non-compliance with NFPA 1710 can potentially become a legal problem for a fire department.

The first involves OSHA (which in the case of public entities means state OSHA), and the general duty requirement. OSHA places two important responsibilities on employers (with fire departments being employers). The first responsibility is to comply with all OSHA standards. The second is to provide a workplace that is free from “recognized hazards”. This second requirement is known as the general duty requirement.

An employer’s responsibility to meet the general duty requirement is in many ways more complicated than merely complying with OSHA standards. It requires an employer to look at its injury data and take steps to prevent the reoccurrence of preventable accidents. It also requires employers to be aware of industry-wide safety standards that are based on hazards that are recognized in the industry. If a given industry has recognized that certain practices create a hazard to employees, and have adopted safety standards to address those hazards, then violating those standards can be the basis for a general duty clause violation. As such, understaffing fire apparatus in violation of NFPA 1710 could be the basis for an OSHA general duty clause citation.

The second way that non-compliance with NFPA 1710 could become a legal problem has to do with negligence, and the standard of care. NFPA standards such as NFPA 1710 can be used as evidence of the applicable standard of care in a negligence suit. Of course, the reasonableness of the staffing and response times required by NFPA 1710 could be rebutted by expert witnesses, but just as easily they can be supported by expert witnesses as well. On balance, NFPA 1710 does provide an important objective measure of the standard of care that the reasonably prudent fire department would take.

Comments - Add Yours

  • http://firehousezen.com Mick Mayers

    The kicker is the part in which a fire chief presents the recommendations to the authority having jurisdiction (the council, commission, or whomever) and says, “Hey, we can’t meet these recommendations.” Then the reply is, “Well we can’t afford to.” Our answer might be, “We can’t afford not to”.

    But when reality sets in, we need to understand our responsibility not to lean on 1710 so much as to prove to our “leaders” why we need to adopt these standards for safety reasons and for reasons of effective practice. If I were to say, “We have to do this because 1710 says so”, that argument holds no water. If I say, “We need one person to drive the ambulance and one to pump on the chest and another to manage the airway and the other to shock, start lines, etc. etc,”, that is based on observable, measurable outcomes, and will probably be better received.

    • http://firelawblog.com Curt Varone

      Mick

      Well said. I could not agree with you more.

  • Jesse Altizer

    Hey Curt or Mick,

    Do you guys have any links or cases in the courts that NFPA was used to either overturn a case or where it was used to convict or award settlement. I also would like to know of some resources for how being an OSHA state, like washington state, can benefit from being an OSHA state and having that be supported to further enforce the NFPA 1710 standard. Also, how can having the GIS study by the IAFF beneffit a department in regards to complying to NFPA 1710? Does it help? Lastly, if a city has an ordinance stating what the city min. firefighter staffing should be like for example, “1 firefighter per 800 people”, and the union contract for that city fire department doesnt have a mininum staffing clause in their contract, can the city be held to that ordinance when it comes to layoffs and they fall below the 1 firefighter per 800 residents ordinance?

    • http://firelawblog.com Curt Varone

      Jesse

      NFPA standards are used in court every day throughout the country to help establish the applicable standard of care in law suits. They are not used to “overturn” anything – they are standards – evidence of what the reasonably prudent person, FD, business, manufacturer, etc. would have done.

      I am not sure I fully understand your next question. How can a state benefit from being an OSHA state?

      The IAFF GIS studies are one way of looking at response times. Of course it’s better to use actual/historical times – but often FDs do not capture that info. In such cases GIS studies are the next best option. It provides theoretical response times.

      Your last question – I believe – is asking can a city violate its own ordinance. Usually a city has to abide by its own ordinances – but most jurisdictions would find it to be a relatively simple matter to change the ordinance to say what ever they want it to say. If it is not in the CBA, the union could argue it is an established past practice. And even they lost that argument the union would still have an argument that it impacts working conditions… There are states that would rule either way.

  • Jesse Altizer

    Thanks so much for the timely reply, I am so sorry for the confusion in regards to my second question pertaining to OSHA. And Im not really sure if I knew exactly what I was talking about and still don’t. I was trying to find out how being an OSHA state, which sets forth federally mandated rules for various safety or work related issues that is passed down to state and city level, be a benefit, if there is any, in supporting NFPA standards in our state or specifically NFPA 1710? Maybe there is no correlation between the two. I was thinking since we were an OSHA state, that NFPA standards were considered by our state as the actual “Industry Standard”. Does our state in the event an NFPA standard is not followed by a fire district or city FD , like NFPA 1710, and someone is killed or injured as a result does the courts typically agree with a OSHA state or a NON-OSHA state? Does being an OSHA state support any of this?

    My second follow up is with the city ordinance thing. A city in Washington State has a city code/ordinance that states:

    3.08.020 Number of employees – Minimum.
    The department shall consist of a chief and such other officers as the city commission may deem necessary for the effective operation of the department, provided that the fully paid membership of the department shall consist of not less than one paid fireman for every 800 population. (Ord. 1494 Art. 1 § 2, 1956)

    My question to that specific ordinance is the CBA for that City Fire Department has no minimum staffing article or clause in the contract and they have been below the 1 fireman per 800 for quite along time (2years). The fire dept. normally has had up till about 2 years ago 32 firefighters but 3 retired and 1 was fired and they havent filled those positions. The City has 32,000 people in roughly 8 sq. mi.. Now the city is wanting to lay 8 more firefighters off bringing there current staffing of 28 firefighters down to 20 and running 5 firefighters split between 1 engine and 1 Quint/ladder per shift on a 4 platoon system (1 battalion and 4 firefighters). That is the dynamics and the conundrum. Is it past practice that the city has had 32 guys on up till about 2 years ago? I think so. Past pratices are every bit of a grey area. Is 32 firefighters a ratio of 1 firefighter per 800 residents, no, its 1:1000. If the city had 40 firefighters that would be 1:800 so like I said its a grey area unfortunately. I noted a peculiar finding that I am not sure would stand for a good argument or not but NFPA 1710 basically states that a 4 man engine is most efficient (a 5 man engine was not much faster and in some regards retardeds efficasy). It also proved that a 5 man ladder was best as well. So in conclusion to my theory, that for 32,000 residents at 1 firefighter per 800 residents that would make 40 total firefighters. On a 4 platoon shift thats 10 guys per shift, 1 battalion and 9 firefighters on each shift to staff an engine with 4 firefighters and a ladder with 5 firefighters, so in essence the City with its ordinance for min. staffing has kind of in a round about way inadvertently adopted NFPA 1710.

  • Jesse Altizer

    I think the City can do whatever it wants and change the ordinance but at a mininum it would be a ULP for change in working conditions because they clearly violate the mininum staffing set forth by the ordinance. I personnaly don’t think they have a leg to stand on. The union in my opinion would have to jump on this issue before the council voted to remove or change the staffing ordinance. The NFPA 1710 compliance thing would be more for litigation if a firefighter was killed and the city has been modelling NFPA 1710 and failed to follow it after it has accepted the standard inadvertently.