The General Duty Clause

Combustible dust, diacetyl and – more recently – gas blows all are recognized industry hazards, yet federal OSHA does not have standards regulating them. However, the agency does have a way to protect workers from unregulated hazards, and employers could be seeing it more often: the General Duty Clause.

Officially called Section 5(a)(1) of the Occupational Safety and Health Act, the General Duty Clause is not an official standard; instead, it operates to fill gaps in OSHA law for recognized unregulated hazards.

“My view of the congressional purpose behind the General Duty Clause was as a catch-all obligation for employers aside from what OSHA says on an issue,” said Brad Hammock, an attorney in the Washington office of Jackson Lewis and a former OSHA lawyer. “Employers can’t be limited to [OSHA standards] in terms of their overall approach to safety and health.”

In a Jan. 5 webchat on OSHA’s regulatory agenda, agency representatives said OSHA was addressing unregulated hazards by issuing new standards and using the General Duty Clause.

“We are also increasing our use of the General Duty Clause because the OSH Act makes it very clear that it is the obligation of employers to provide workplaces free of recognized hazards, whether or not there is an OSHA standard,” OSHA representatives said.

During a three-year period, OSHA’s issuance of General Duty Clause violations has increased more than 15 percent: In FY 2010, the agency issued roughly 1,600 violations, up from about 1,350 in FY 2008. Although that pales in comparison with the more than 9,000 FY 2010 violations issued for the scaffolding standard – the No. 1 most cited violation that year – employers should understand the General Duty Clause and how OSHA uses it to cite businesses.

General requirements

“A common misconception is that OSHA can use the General Duty Clause to cite any condition that the compliance officer believes is unsafe,” OSHA spokesperson Kimberly Tucker said during an interview with Safety+Health magazine.

Several conditions must be met for OSHA to issue a General Duty Clause violation:

• The hazard was recognized.
• The employer failed to keep the workplace free of a hazard to which his or her employees were exposed.
• A feasible and useful method was available to correct the hazard.
• The hazard was causing or likely to cause death or serious injury.

Recognition of a hazard  can be established if the employer knew about the hazard. This can be ascertained through the employer’s previous inspection history. For instance, a compliance officer suggesting a particular situation may constitute a hazard could, given the right conditions, cite the employer on a second inspection for the hazard under the General Duty Clause.

OSHA also can use employee complaints or the employer’s own statements to determine if the hazard was recognized. In addition, the hazard can be recognized by the employer’s industry.

“OSHA does not necessarily need to show that a cited employer recognized the hazard,” Tucker said. “For purposes of the General Duty Clause, a recognized hazard exists if the hazard is recognized either by the employer or by the employer’s industry.” The existence of consensus standards or industry practices also can provide evidence that the hazard was recognizable, Tucker added.

Employees must be exposed to the hazard, and they must be the employees of the cited employer. An employer who creates, contributes to or controls a hazard that would otherwise be a General Duty Clause violation cannot be cited as such if his or her own employees are not exposed to the hazard, according to OSHA’s Field Operations Manual, an agency reference document that identifies inspection duty responsibilities.

Situations such as a multi-employer worksite can be more complicated. OSHA would have to establish that the workers exposed to the hazard were employed by the employer.

A feasible means of abating the hazard also is necessary, and that requirement places a burden on OSHA, Hammock said. In the rulemaking of a typical standard, OSHA has to demonstrate a feasible means of abatement. When a violation of a standard is issued and the employer contests, the burden falls to the employer to provide evidence as to why the abatement methods outlined in the standard are not feasible.

However, with the General Duty Clause, that burden shifts to OSHA, according to Hammock. Similar to establishing hazard recognition, OSHA said it can rely on consensus standards to show how a hazard cited under the General Duty Clause may be abated.

When OSHA issues a General Duty Clause violation, it is for the hazard, not for a particular incident or lack of a particular abatement method.

The hazard must be serious, meaning it could cause death or substantial 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. A serious hazard presents a “substantial probability” of death or serious physical harm.

As an example, the Field Operations Manual offers an employee standing at the edge of an unguarded floor 25 feet high. A fall likely would result in death or serious injury.

Limitations

If conditions of a serious injury or death are not met, OSHA cannot issue a General Duty Clause violation. Hammock called this one of the clause’s biggest limitations, another being that a General Duty Clause violation cannot be issued when a standard exists.

According to the Field Operations Manual, the General Duty Clause cannot be used to force a stricter requirement than what the standard requires. For example, if a standard requires a certain permissible exposure limit, the General Duty Clause cannot be evoked to require adherence to a stricter PEL, even if the standard’s PEL is determined to present a recognized hazard. However, the Field Operations Manual adds that exceptions to this rule can be made when an employer is aware a standard does not adequately protect his or her employees.

Along the same lines, inspectors cannot use the General Duty Clause to require further abatement methods not laid out in an existing standard. Additionally, given the situation, the Field Operations Manual instructs compliance officers to consider citing other specific standards in lieu of the General Duty Clause, such as the personal protective equipment, air contaminants or sanitation standards.

Real-world application

“There is no doubt bringing a General Duty Clause [violation] is much harder for OSHA than bringing a case under its promulgated standards,” Hammock said. “OSHA really needs to commit to bringing General Duty Clause cases if they’re going to use it just because of the resource issue involved.”

Given some of the obstacles OSHA must meet to establish a General Duty Clause violation, it may not come as a surprise that the agency uses it infrequently. Federal OSHA issued 87,491 violations in FY 2009 and 87,418 in FY 2008, according to the AFL-CIO’s annual “Death on the Job” report. As such, General Duty Clause violations only make up about 1.5 percent of total violations issued by the agency. An informal survey of National Safety Council members found 86 percent of respondents had never been cited under the General Duty Clause.

A General Duty Clause violation can cause confusion for employers, according to Hammock, because they may not be aware of the process OSHA goes through and what the agency has to rely on, such as consensus standards.

“I find that typically, the General Duty Clause is used to deal with complex hazards that have a lot of … industry or consensus standard guidance … but OSHA simply hasn’t developed its own rules yet,” he said.

In the early days of OSHA, the General Duty Clause was used to cite hazards that now are addressed by specific standards. To an extent, the agency’s use of the clause may indicate a need to develop a standard today, according to Hammock.

One example is combustible dust in the general industry. As the agency grapples with how to proceed with that rulemaking, OSHA launched a National Emphasis Program on the hazard, and compliance officers were instructed on when they could use the General Duty Clause to issue a violation.

However, the OSHA spokesperson was quick to point out the General Duty Clause is only one tool at its disposal for hazards with no dedicated standards. For instance, the combustible dust NEP also outlines when other pre-existing standards could be used to cite an employer for the hazard. And Hammock stressed that if a General Duty Clause violation is issued for a hazard, it does not necessarily mean there must be a standard for it.