The General Duty Clause, found in the Occupational Safety and Health Act of 1970, has become increasingly important to employers in the last few years as OSHA has begun to utilize the clause in more and more of its penalty and enforcement actions. The following information describes the General Duty Clause and how it is being used by OSHA to ensure a safe work environment.
Section 5(a)(1) of the Occupational Safety and Health Act of 1970 requires that every working man and woman must be provided with a safe and healthful workplace. The section, more commonly known as the General Duty Clause, specifically states:
"Each employer shall furnish to each of his employees employment and a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."
In simple terms, this statement means that you, as an employer, may be obligated to protect your employees from recognized hazards in the workplace even if there is not an OSHA standard which applies to the situation or if hazards still exist after compliance with a standard. In effect, the General Duty Clause obligates employers to take additional steps toward safety if the well-being of employees is in jeopardy.
The General Duty Clause extends OSHA's authority beyond the specific requirements of the OSHA standards when a recognized workplace hazard exists or potentially exists. Between 10/00 - 9/01, the General Duty Clause was used as the basis for 1,116 OSHA citations. Over $881,000 in penalties was collected as a result of these citations. The General Duty Clause is often used by OSHA when there is no specific standard which applies to a recognized hazard in the workplace. OSHA may also use the General Duty Clause when a standard exists, but it is clear that the hazards involved warrant additional precautions beyond what the current safety standards require.
OSHA’s action on ergonomic hazards in the workplace is a good example of the application of the General Duty Clause in situations where a standard does not currently exist. There are no standards governing job or work station design to reduce or prevent cumulative trauma disorders or other injuries. However, OSHA has widely applied the General Duty Clause to address ergonomic hazards in the workplace. Typically in these situations, OSHA will discover ergonomic-related problems while reviewing a company’s accident and injury records. The highly publicized citations issued to several meatpacking plants for cumulative trauma disorders are an example of the use of the General Duty Clause to correct ergonomic hazards. The action in this area eventually led to the issuance of ergonomic guidelines for the meatpacking industry and consideration of a standard for the general industry.
OSHA has also issued General Duty Clause citations on other issues where no apparent safety standard exists. Citations have been issued for lack of training, failure to have additional safety or alarm equipment to detect or warn of chemical leaks, and failure to provide safe locations or safe access to valves or other instruments necessary to an employee’s job.
What about situations where a safety standard currently exists on a particular subject? Are you doing enough if you are in compliance with OSHA’s safety standard? The answer, unfortunately, is maybe not. OSHA has also used the General Duty Clause to cite employers who knew that an OSHA standard was inadequate to protect their employees from harm.
At least one Circuit Court decision (International Union UAW v. General Dynamics, 815 F.2d 1570, D.C. Cir. 1987) has validated OSHA’s use of the General Duty Clause in this manner. In this situation, after several injuries and eventually a death involving the use of freon in confined spaces, OSHA cited General Dynamics under the General Duty Clause for not having a confined space procedure in situations where an employee could be asphyxiated or chemically poisoned by the cleaning compound (freon) being used. General Dynamics appealed the citation to the Occupational Safety and Health Review Commission which ruled in favor of the company noting that since there was a specific OSHA exposure standard for freon (eight-hour time-weighted average), OSHA could not cite the company under the General Duty Clause. The Commission’s decision was then reviewed by the Circuit Court of the District of Columbia which decided in favor of OSHA. The court stated that:
...if (as alleged in this case) an employer knows a particular safety standard is inadequate to pro- . . . tect his workers against the specific hazard it is intended to address, or that the conditions in his place of employment are such that the safety standards will not adequately deal with the hazards to which his employees are exposed, he has a duty under Section 5(a)(1) to take whatever measures may be required by the Act, over and above those mandated by the safety standard, to safeguard his workers.
Section 5(a)(1) of the Occupational Safety and Health Act of 1970 places additional responsibilities on the employer and the safety manager to ensure that a safe work environment is provided to all employees. The General Duty Clause is being increasingly applied to a wide variety of situations, many of which have not been addressed by a specific OSHA standard. What may be even more disconcerting, however, is that general duty citations can also be issued if OSHA feels that additional safety equipment or procedures are necessary beyond what is required in an OSHA standard. Thus, the General Duty Clause is making it increasingly difficult for companies to fully comply with OSHA’s requirements.
One way to deal with the increasing threat of general duty violations is to make good faith efforts to correct existing workplace hazards and to identify and address new hazards as they appear. Some steps you can take to accomplish this goal include:
Regularly review your accident and injury records to identify injury patterns or areas for concern;
Investigate every accident or injury in the workplace to determine the specific cause and to determine whether any action needs to be taken to prevent the accident or injury from recurring;
Conduct job hazard analyses on a regular basis in order to identify the specific hazards associated with every job and to identify new job hazards;
Document your training efforts and conduct periodic retraining as necessary;
Consider establishing an employee safety committee in the workplace; and
When you have met the “letter of the law,” step back, and critically assess whether the process might still be unsafe