Even though the general duty clause is a long-standing part of the Occupational Safety and Health Act, its proper use is frequently misunderstood, sometimes even by OSHA itself. As a result employers can be surprised by a general duty citation.
Here’s what you need to know:
The general duty clause, Section 5(a)(1) of the Occupational Safety and Health Act, requires that each employer furnish to each of its employees a workplace that is free from recognized hazards that are causing or likely to cause death or serious physical harm.
The general duty provisions can be used by OSHA only where there is no standard that applies to the particular hazard and the employer has its own employees exposed to the alleged hazard.
All the following elements are necessary for OSHA to prove a general duty clause violation:
1) The employer fails 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) There was a feasible and useful method to correct the hazard.
OSHA sometimes gets it wrong
In many situations, OSHA’s 5(a)(1) citations have incorrectly alleged that a violation was the failure to implement certain precautions, corrective measures or other abatement steps rather than the failure to prevent or remove a particular hazard.
The occurrence of an accident does not necessarily mean that an employer has violated Section 5(a)(1), although the accident may be evidence of a hazard. OSHA has instructed its compliance officers that accident facts may be relevant and must be gathered, but a 5(a)(1) citation must address the hazard in the workplace, not the particular facts of an accident.
Any hazard for which a Section 5(a)(1) violation is issued must be reasonably foreseeable.
Recognition of hazard must be established
OSHA must establish that a hazard is recognized in order to issue a general duty clause violation. Recognition of a hazard can be established by OSHA on the basis of industry recognition, employer recognition or “common-sense” recognition.
1) OSHA can establish industry recognition if the hazard is recognized in the employer’s industry. Recognition by an industry other than the industry to which the employer belongs is generally insufficient to prove a Section 5(a)(1) violation.
2) A recognized hazard can be established by evidence of actual employer knowledge.
3) If industry or employer recognition of the hazard cannot be established, recognition can still be established if OSHA concludes that any reasonable person would have recognized the hazard.
Finally, to establish a general duty clause violation, OSHA must identify a method which is feasible, available and likely to correct the hazard. General duty clause violations may not be issued by OSHA merely because OSHA knows of an abatement method different than that of the employer if OSHA’s method would not reduce the hazard significantly more than the employer’s methods.
OSHA has set certain limitations on the use of the general duty clause.
1) Section 5(a)(1) violations cannot be grouped together, but may be grouped with a related violation of a specific standard.
2) Section 5(a)(1) cannot be used to impose a stricter requirement than that required by a standard.
3) Section 5(a)(1) cannot be used to require an abatement method not set forth in a specific standard.
4) Section 5(a)(1) cannot be used to enforce “should” standards.
5) Section 5(a)(1) cannot be used to cover categories of hazards exempted by a standard.
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