OSHA’s General Duty Clause
October 14, 2013 - Kestrel Management
Under Section 5(a)(1) of the Occupational Safety & Health Act, employers are required to provide “a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.”
The “Catch-All” Clause
This “catch-all” section of the Act is commonly known as OSHA’s General Duty Clause. It covers all recognized industry hazards for which OSHA has not yet developed standards. In essence, General Duty functions to fill the gaps in OSHA law for recognized unregulated hazards.
While the General Duty Clause may be considered a “catch-all,” it doesn’t cover everything. There are several conditions that must be met for OSHA to issue a General Duty Clause violation:
- The hazard must be recognized (either by the employer or within the industry).
- Employees must be exposed to the hazard.
- A feasible means of abating the hazard must be available.
- The hazard causes or is likely to cause death or serious injury.
General Duty Clause violations are issued for the hazard when these conditions are met, not for a particular incident. Likewise, if a standard for the hazard exists, OSHA cannot invoke a stricter General Duty Clause violation.
Enforcing General Duty
Because there are only guidelines associated with the General Duty Clause, bringing a General Duty Clause violation against a company is difficult. As such, General Duty Clause violations make up only about 1.5 percent of total violations issued by OSHA.
A recent ruling in a case against BP demonstrates just how hard enforcing the General Duty Clause can be. In September 2009, OSHA issued three citations and penalties totaling over $3 million to BP Products. In an August 12, 2013 decision, an administrative law judge vacated most of the citations and downgraded those remaining. The judge criticized OSHA for imposing “a requirement on employers not found in the cited standards” and “attempting to enforce as mandatory the recommended practices.”
Most of the violations were thrown out around recognized and generally accepted good engineering practices (RAGAGEP). The Secretary of Labor is quoted as saying that OSHA needs to “enforce PSM in the way that best protects employees from catastrophes”—but the administrative judge says you can’t enforce as mandatory recommended practices (such as those found in the American Petroleum Institute’s guidance document). The Secretary of Labor has filed a petition for discretionary review of this case. (Read more at http://www.bna.com/commission-agrees-review-n17179877159/)
Despite the issues with enforceability, OSHA has increased its issuance of General Duty Clause violations in recent years, reinforcing employers’ obligation to provide workplaces free of recognized hazards. This increased use may eventually lead to the promulgation of more specific—and more enforceable—standards for certain recognized hazards.
Do you know what recognized hazards exist at your facility? Are you adequately protecting your employees against these hazards—and protecting your facility from General Duty Clause violations?
Did you know? The USEPA also has its own General Duty Clause under the Clean Air Act Amendments. Stay tuned for a future blog more on what is covered under CAA Section 112(r)(1).
Submitted by: Sarah Burton