Most of your company’s workplace hazards will fall under specific OSHA standards, defined by OSHA in documents such as the General Industry Standards (29 CFR 1910) and the Construction Industry Standard (29 CFR 1926).
However, no set of regulations can anticipate every possible workplace hazard. OSHA recognizes this, and to address imminent threats to worker health and safety that may not fall under specific OSHA standards, OSHA may cite employers using the General Duty Clause.
Mitigating the risks and hazards at your workplace is not just limited to what is cited in specific OSHA guidelines — the overall health and safety of your workers must be taken into account whether you can point to a specific standard or not.
What is the General Duty Clause?
The General Duty Clause is found in Section 5(a)(1) of the Occupational Safety and Health Act of 1970 and states:
“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.”
In 2018, OSHA issued 900 General Duty Clause citations, representing about 1.5% of the nearly 62,000 total violations. Examples of workplace hazards where OSHA has based citations on the General Duty Clause include COVID-19, workplace violence and heat-related illnesses.
How Can OSHA Use the General Duty Clause?
OSHA is limited in its use of the General Duty Clause by a four-part test. This test is the result of legal precedents that stem from Occupational Safety and Health Review Commission decisions and other court rulings.
To issue a General Duty Clause citation, OSHA must prove:
- The employer failed to keep the workplace free of a hazard to which its employees were exposed.
- The hazard was recognized.
- The hazard was causing or was likely to cause death or serious physical harm.
- A feasible and useful method to correct the hazard was available.
To clear each of these hurdles for enforcement, OSHA must demonstrate:
- Employees of the particular organization in question were affected. This can obviously prove more difficult on multi-employer worksites. To make this determination, an OSHA compliance officer can examine who assigns the work, who workers regard as their supervisor and from whom workers get their paychecks.
- There is evidence that an employer knew about a hazard, such as entries in injury and illness logs or documented employee complaints to management. OSHA could also prove an employer’s knowledge of a hazard using a number of other methods, including company memos, safety work rules that identify the hazard, near miss reports, federal or state OSHA inspection reports or the employer’s own corrective actions. OSHA can also include in a General Duty Clause citation that a hazard was recognized by an employer’s industry. For example, industry organizations or associations may publish consensus standards which employers in a particular industry can voluntarily adopt. While OSHA cannot cite employers for not complying with such standards, they can be used as evidence of industry hazard recognition and that there is a feasible means of abatement. Finally, OSHA can consider hazards under the General Duty Clause when they are considered so obvious that any reasonable person could recognize it.
- Potential consequences obviously put the worker at serious risk. For example, a worker who is standing at the edge of an unguarded floor 25 feet off the ground would be an obvious serious risk.
- A feasible and useful method to correct the hazard was available and likely to correct the hazard. This includes technical and economic considerations such as whether the employer could have reasonably assumed the cost of possible hazard controls.
Another reason not all hazards can be regulated by a specific OSHA standard, is because the rulemaking process can take decades to complete. For example, rulemaking on OSHA’s updated standard on walking/working surfaces began in 1990 and was only completed in 2016. A regulatory flowchart from the United States Government Accountability Office gives a timeline of between 1 ½ and 17 1/2 years for rulemaking, so the General Duty Clause enables OSHA to cite violations for standards that are still being ruled on.
What the General Duty Clause Means for Employers
The General Duty Clause means employers have an obligation to control all hazards in the workplace even if they are not specifically obligated to do so under a specific OSHA standard. Hazards that meet the tests used by OSHA, in addition to being a risk to worker safety and health, present a regulatory compliance risk and should be mitigated before you receive a General Duty Clause citation.
To learn more about protecting the safety of your workers and complying with OSHA standards, contact Tetra Tech’s Health and Safety team at [email protected]. Our Certified Safety Professional can support you in developing a program to keep your employees safe and comply with OSHA standards.
