Often referred to as the general duty clause, Section 5(a)(1) of the Occupational Safety and Health Act, requires that employers provide “a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm…” It’s only used where there is no standard for a particular hazard and citations must be serious and/or willful violations. The citation is for the hazard, not for a particular incident or lack of a particular abatement method.
A 2003 OSHA Letter of Interpretation clarified the elements necessary to prove a violation of the General Duty Clause:
- The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed
- The hazard was recognized (a recognized hazard exists if the hazard is recognized either by the employer or by the employer’s industry)
- The hazard was causing or was likely to cause death or serious physical harm (Establishing whether a hazard is serious is similar to how OSHA classifies a serious violation for its standards, the Field Operations Manual states)
- There was a feasible and useful method to correct the hazard
While this criteria can make it difficult for OSHA to prove a violation, OSHA’s use of the clause has expanded over the years and many are concerned about its use as an enforcement mechanism and the confusion it creates for employers. Increasingly it’s been applied to ergonomic, heat-related, and workplace violence hazards. Two recent cases have tested the use of the clause:
Secretary of Labor v. A.H. Sturgill Roofing Inc., was a closely watched case in which serious citations were issued against the company for not adequately implementing a heat illness prevention program and not providing adequate training to employees on heat related hazards. A temporary employee who had various pre-existing medical conditions experienced heat stroke and died three weeks later from complications.
His responsibility was to stand near the edge of the roof where other employees brought him a cart full of cut-up pieces of roofing material that he then pushed off the roof into a dumpster. The foreman encouraged all employees to utilize the access to ice, water, rest and shade, without fear of reprisal. By late morning, the temperature rose to about 82°F with 51% relative humidity.
The citations had a negative effect on the employer’s bidding opportunities and it appealed the decision. An administrative law judge affirmed the citations, but the Occupational Safety and Health Review Commission (OSHRC) vacated the citations against the commercial roofing company. In so doing, it noted that the citations did not meet two of the required elements – the existence of a hazard and a feasible means of abatement. OSHA had defined the hazard as “excessive heat” but, according to the commission, to constitute a cognizable hazard under the clause, a worksite condition must pose more than the mere possibility of harm. The conditions at the jobsite were not such that they would put a reasonable employer on notice.
While employer representatives welcomed the decision, experts caution that the decision turned on a very specific set of facts and the commission did not state that the clause could never be used to cite employers for such hazards. The possibility of an OSHA appeal exists.
In Secretary of Labor v. Integra Health Management Inc., a 25-year-old recent college graduate with no prior experience in social work or working with the mentally ill was hired by Integra, a Maryland-based company, and assigned to a client with schizophrenia. Integra employs service coordinators to help its clients, who are identified by health insurers as not receiving appropriate care for chronic medical conditions including mental illness. It provides training in various manners, but employees are not clinically trained.
Unbeknownst to Integra and the referring health insurer, the client had a prior criminal record, including aggravated battery and assault. He attacked the employee with a knife, stabbing her nine times and killing her. In the Integra case, the commission was asked for the first time to decide whether workplace violence is a recognized hazard that the employer must remove from its workplace, according to the decision.
The administrative law judge affirmed an OSHA citation issued to Integra alleging a violation of the general duty clause for exposing employees “to the hazard of being physically assaulted by members with a history of violent behavior.” The OSHRC affirmed, noting a direct nexus between the work being performed by Integra’s employees and the alleged risk of workplace violence and feasible measures to abate the hazard as recommended by OSHA.
While affirming the citation, the Commission expressed concern about OSHA’s use of the general duty clause to address workplace violence risks. Chairwoman Heather MacDougall, who recently resigned, noted, “My hope is that this precedent will be revisited in a future decision and, even better, that OSHA will continue in its effort to promulgate a standard that addresses workplace violence.”
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