Federal agencies

OSHA’s General Duty Clause

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“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.”

– Section 5(a)(1) of the Occupational Safety and Health Act of 1970

Commonly known as the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act of 1970 is intended to give OSHA a means to address hazards for which no standard is on the books. Current examples include heat-related illnesses and workplace violence in health care and social services.

The inclusion of the clause into the act can be credited in part to former Arizona governor and National Safety Council President Howard Pyle, according to a 1983 paper written by Donald Morgan and Mark Duvall and published in the Industrial Relations Law Journal.

Testifying before the House and Senate Select Subcommittees on Labor in 1969, Pyle “complained of the absence of a general duty clause in the (occupational safety and health) bills then being considered. This testimony apparently influenced both subcommittees, since it appears in both the House and Senate Reports which accompanied the respective committee bills reported in 1970.”

A conference committee reached a compromise between the two chambers’ versions of the clause, and the amended clause was included in the OSH Act.

Citing data published by OSHA, Morgan and Duvall note that enforcement of the clause waxed and waned in the agency’s early days. The agency issued 3,816 General Duty Clause citations in fiscal year 1979 under President Jimmy Carter’s administration and 533 in FY 1982 during President Ronald Reagan’s first term.

According to Morgan’s and Duvall’s statistics, which cover 1972 to 1982, the highest percentage of General Duty Clause violations in relation to the overall fiscal year violations was 2.7 in 1979.

In FY 2010, the agency issued roughly 1,600 General Duty Clause citations, Safety+Health reported in May 2011. OSHA’s own statistics for FY 2018 show that around 900 such citations were issued, representing about 1.5% of the nearly 62,000 total violations. By contrast, violations of OSHA’s Fall Protection Standard – General Requirements, which led the agency’s Top 10 most frequently cited workplace safety violations this past fiscal year, accounted for about 11.6% of the agency’s total violations in FY 2018, perhaps dispelling any notion that the General Duty Clause is used frequently.

Put it to the test

One reason why General Duty Clause violations make up so little of the overall citations issued by OSHA each year is because of hurdles that stand in the way of its enforcement – namely a four-part test that stems from Occupational Safety and Health Review Commission decisions and other court precedents, according to the agency’s Field Operations Manual and a November 2018 memo from Kim Stille, former acting director of OSHA’s Directorate of Enforcement Programs and current Region VII director.

To issue a General Duty Clause citation, OSHA must prove:

  1. The employer failed to keep the workplace free of a hazard to which its employees were exposed.
  2. The hazard was recognized.
  3. The hazard was causing or was likely to cause death or serious physical harm.
  4. A feasible and useful method to correct the hazard was available.

Checking the boxes

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

OSHA has to prove that employees of the particular organization in question were affected. That, obviously, can prove more difficult on multi-employer worksites.

Richard Fairfax, former director of OSHA’s Directorate of Enforcement Programs and former deputy assistant secretary of labor, said the agency looks at aspects such as who supervises employees, who assigns work, who the employees regard as their supervisor and from whom they get their paychecks.

“There’s a whole series of questions that a compliance officer will go through trying to establish exposure: Who controls it? Who has responsibility for fixing it?” Fairfax said.

The hazard was recognized.

Evidence that an employer knew about a hazard can include injury and illness logs as well as employee complaints to management, Stille writes in the memo. All complaints must be formal and not offhand comments, the Field Operations Manual states.

According to the manual, the agency also can prove an employer’s knowledge of a hazard via a number of other methods, including company memos, safety work rules that identify the hazard, near miss reports, federal or state OSHA inspection reports, and the employer’s own corrective actions “if the employer did not adequately continue or maintain the corrective action or if the corrective action did not afford effective protection to the employees.”

OSHA can include in a General Duty Clause citation that a hazard was recognized by an employer’s industry, but it can’t enforce an industry or a consensus standard, an agency spokesperson wrote in an email to S+H. It can, however, use those standards to show industry recognition of “a hazard and a feasible means of abatement,” but the other two parts of the test must be met as well.

Stille’s memo also states that industry recognition can come from a trade association guidance document, but Fairfax cautioned that OSHA would likely have to show that the employer was part of that particular association.

Additionally, the Field Operations Manual accepts “common-sense recognition,” meaning a hazard was “so obvious that any reasonable person would have recognized it.”

The hazard was causing or was likely to cause death or serious physical harm.

The Field Operations Manual uses the example of an employee standing at the edge of an unguarded floor 25 feet off the ground. It’s not always so clear cut, however, as a February decision from the Occupational Safety and Health Review Commission demonstrates.

The commission, an independent federal agency that rules on disputes over OSHA citations and penalties, overturned a General Duty Clause citation that stemmed from a 60-year-old roofing worker’s death resulting from complications from heat stroke in August 2012.

OSHRC ruled that the heat index on that day did not reach the “caution” level on the National Weather Service’s heat advisory chart. It concluded that OSHA “failed to demonstrate that the work was strenuous or that the workers were exposed to heat index values within any of the NWS warning levels for a ‘prolonged’ period of time.”

A feasible and useful method to correct the hazard was available.

OSHA must identify the existence of a measure(s) that is feasible, available and likely to correct the hazard. This includes technical and economic concerns.

An example of the latter, Fairfax said, is an establishment with a $50,000 annual profit having to use an abatement method that costs $500,000.

“OSHA’s not going to be able to say, ‘You’ve got an overexposure to a hazardous chemical and we’re going to make you put in this huge ventilation system because that’s the only way to fix it,’” Fairfax said.

Because of the complex nature of General Duty Clause citations, OSHA occasionally has to issue reminders or clarifications to its personnel.

“One of the jobs of the enforcement programs is making sure that there’s overall consistency,” Fairfax said. “Periodically, the office would send a memo out just basically reminding everyone that there’s certain things you have to do.

“I put memos out a number of times reminding people that they can’t cite a [threshold limit value] or they can’t cite an industry guideline.”

If OSHA can’t satisfy all four parts of the test but still believes onsite hazards exist, Fairfax said the agency can send a letter outlining different potential remedies, suggest bringing in a third-party expert or recommend using OSHA’s free consultation service.

Challenges

Perhaps not surprisingly, because of their complex and somewhat murky nature, General Duty Clause citations are often among the most challenged, attorneys Eric Conn and Brad Hammock said.

Hammock, co-chair of Littler Mendelson’s Workplace Safety and Health Practice Group and former lead counsel for safety standards at OSHA, said the agency has difficulty using the General Duty Clause when a hazard isn’t easily defined. He used an example of the hazard threshold for lifting activities, which could bring a General Duty Clause citation for ergonomics.

“Is it one lift at 40 pounds? Is it another lift at 70 pounds? Ten lifts at 20 pounds? At what level is the activity a hazard?” Hammock asked. “And then second, how will the abatement methods materially reduce the hazard? If you are lifting 50-pound boxes, can you start lifting boxes that are 45 pounds?

“When OSHA has difficulty articulating those two things, that’s when they have difficulty winning General Duty Clause violation cases.”

From his experience, Conn – founding partner of the Conn Maciel Carey law firm in Washington, and chair of its national OSHA Workplace Safety Practice Group – said General Duty Clause challenges are successfully defended more often than challenges regarding specification standards.

“I would say we see enough,” he said. “Those are the kinds of violations most likely to land on a defense attorney’s desk. More likely than your run-of-the-mill ‘guy was not wearing a hard hat’ citation.

“So we do encounter them quite often, and they are unique challenges.”

Conn takes issue with OSHA’s use of the General Duty Clause because, he said, it’s intended to be a stopgap until the agency can finish the rulemaking process. He contends that the clause is sometimes used in place of rulemaking, and points to heat-related illness citations as an example.The Department of Labor’s latest semiannual regulatory agenda, issued Nov. 20, lists no potential regulations aimed at addressing that hazard.

Fairfax countered that OSHA regulations sometimes take decades to complete. For example, rulemaking on the agency’s updated standard on walking/working surfaces began in 1990 and was completed in 2016. A regulatory flowchart on OSHA’s website gives a timeline of between five and 12½ years for rulemaking.

That’s why the General Duty Clause remains a very important tool for OSHA, Fairfax said.

“I don’t think it is possible to have a standard or regulation that will cover any and all hazards existing now or in the future, hence the General Duty Clause,” he said. “The burden of proof is high and there is a lot of supporting documentation required for OSHA to cite under it. That is a good thing, as it requires a lot of thought, review and supporting information for OSHA to cite under it, which means the agency has done its homework and the General Duty Clause is being used as it was intended to be used.”

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