OSHA's General Duty Clause is one of the most important but misunderstood parts of OSHA compliance. What is it? What does it mean? And what does the General Duty Clause require employers to do?
When Congress passed the Occupational Safety and Health Act of 1970, it bound private employers to comply with "occupational safety and health standards promulgated under this act."
Of course, OSHA's specific regulations (i.e., standards) didn't exist yet – they'd publish their first set the following year and continue posting hazard-specific rules throughout the years as they became aware of new workplace dangers.
In the meantime, there were significant loopholes for dangerous conditions that weren't explicitly banned yet. So Congress included a clause in the OSH Act that closed the gap.
Section 5a1 of the OSH Act (sometimes erroneously called Section 5a1 of the OSHA Act) says:
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 5a1 of the OSH Act is known as the General Duty Clause.
The General Duty Clause, by definition, means that employers must protect employees from any serious hazard once they're aware of it – whether OSHA's rules specifically address it or not.
That sounds pretty simple, but like everything about regulations and enforcement, it's a bit more complicated in practice.
Well, it's nowhere near the top ten. It accounts for just 1.5% of all OSHA citations by some estimates. But since OSHA issues tens of thousands of citations annually, that still puts General Duty citations in the hundreds.
The main reason for this is that OSHA's specific standards cover a lot of known hazards. They also incorporate many outside safety and health standards by reference – effectively making them enforceable. At this point, most workplace hazards are covered by a specific standard somehow.
The other reason General Duty citations are relatively rare is that OSHA must prove that a situation passes a 4-part test.
To cite Section 5a1, OSHA must prove that:
The first condition has to do with who has responsibility. A traditional single-employer workplace may be straightforward, but other cases can be more complicated.
For example, if the employees are technically classified as contractors, OSHA must determine the employer-employee relationship. Real independent contractors are exempt from OSHA standards because they bear responsibility for their safety, but OSHA doesn't just pay attention to how the employer is classifying the workers. They'll look at how much discretion the "contractor" has over when and how the work is performed to define the relationship.
Multiple employer sites present another complication. OSHA can only cite the employer whose employees have been exposed. So if, for example, Employer A creates a hazard that threatens the lives of Employer B's employees, OSHA can only issue a citation to Employer B. They'll ask who supervises the exposed workers (and who those workers understand to be their supervisor), who assigns work, and where people get their paychecks.
The second condition involves proving the employer's knowledge of the danger and its cause. They may use methods like the employer's injury and illness logs, formal employee complaints to management, company memos, rules or policies that identify the hazard, near-miss reports, OSHA inspection reports, and any (insufficient) corrective actions the employer put in place.
The second condition usually has to be met with hard evidence. Still, it's also possible to cite "common-sense recognition" in cases where a problem is so obvious that any reasonable person should have recognized it.
The third condition requires proving the hazard's consequences include death or "serious physical harm." OSHA's enforcement guidelines spell out several examples of severe physical harm, including concussions, cuts or punctures requiring sutures, hearing impairment, and more.
The fourth condition involves determining whether the employer could've reasonably taken additional steps to improve their employees' hazard exposure significantly. In this case, "reasonable" consider whether an abatement measure is technically and financially feasible. In other words, OSHA can't use the General Duty Clause to require a potential abatement measure that would cost five times an employer's annual profit margin to implement.
It can be used in cases where the employer has taken steps but hasn't put the best safety measures in place. However, OSHA has to prove that the other abatement measure will cause a significant safety improvement. If the proposed action is only a little better, that's not a reason to issue a General Duty Clause citation.
In addition to the four-part test, there are situations where OSHA can't apply the General Duty Clause.
OSHA can't cite Section 5a1 if there's already a specific standard that applies to the violation, and they can't use the General Duty Clause to impose a stricter requirement or additional abatement methods than the existing standard.
Sometimes, specific standards will exempt certain situations from enforcement, and OSHA also can't use the General Duty Clause to get around these exemptions.
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