America’s businesses are accustomed to and dependent on having a finite set of rules and regulations. For example, when we drive there is a posted speed limit. You can drive faster, but that is the exact point where the risks from speeding come into play.

  Suppose that instead of a speed limit sign there was one which read: “Don’t Drive at Excessive Speeds.” Does that open the door? Does it close it? Or do you find yourself, to borrow from a tennis expression, in “No Man’s Land.”

  That is exactly how the federal government writes regulations. Take the Affordable Care Act. The problem is not just trying to digest 17,000 new regulations. It is trying to digest 17,000 regulations that lack specificity. It is the same with Dodd-Frank. And it is the same with OSHA.

  Here is an example of a regulation taken from the Formaldehyde Standard (1910.1048 H 1 iii). “Where a face shield is worn, chemical safety goggles are also required if there is a danger of formaldehyde reaching the area of the eye.” It does not specify who makes the determination on when you cross the line from safe to danger. Is it the employer, the employee, or an OSHA inspector that makes this determination? Is there room for making a “reasoned assessment?” It does not say. On particulars, the regulation screams silence.

  Anytime a regulation requires a judgment, it invites argument. It introduces doubt. And the call invariably favors the party that is most intimate with the regulation? Imagine an OSHA inspector that is observing an arterial injection. After several minutes, the inspector, with notebook in hand, asks the embalmer, “Why aren’t you wearing splash proof goggles?” The embalmer, ignorant of the regulation, gives an honest answer. “I didn’t know…I have them the cabinet. I’ll put some on now.”

  Now imagine an embalmer who knows the regulation and his or her rights. The inspector poses the same question, “Why aren’t you wearing splash proof goggles?” The embalmer says, “Why would I wear splash proof goggles? There is no danger of a splash to my face right now. They are not required. Anyway, if I wore them, they would soon fog up and I’d be blind. I’m going to use this trocar in a few minutes, and being blind, I might just stick you with it.”

  Be assured that in both cases, the inspector got the message. In the first example, it showed the inspector could write a citation and it would not be challenged. In the second, he learned he could not write a citation. It is the embalmer who is the expert here. It is the embalmer, not the inspector, who is able to weigh dangers in various parts of the embalming procedure. I can almost guarantee you that the inspector has not viewed over five embalming procedures, and that is probably stretching it.

  The point I’m trying to make is that employees and employers do their best work when there is a finite set of rules with established and easily discernible boundaries. OSHA is anything but that. As a result, there are more funeral homes that over and under comply than get it right.