General Duty Clause Violations

When I was writing about pending federal heat stress standards recently, I reviewed OSHA’s enforcement summary for 2018 and was struck by how many 5(a)(1) — General Duty Clause (GDC) — inspections there were last year specifically for heat (130). While inspections are down a little bit overall, they are certainly on the rise in this area. Workplace violence GDC violations are up too. OSHA is using the GDC enough in these areas so that heat and violence have their own GDC “category” in the agency’s reporting. This concerns me.

From my many years of interacting with employers, OSHA officials, and other attorneys, I know there is considerable confusion out there about the GDC and the role it plays in rulemaking. What do employers and other stakeholders need to know about it?

Here are my thoughts:

What is the clause? Section 5(a)(1) of the OSH Act requires employers to maintain a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.”

Unlike specific standards promulgated under Section 5(a)(2), the GDC empowers OSHA to regulate in areas where there are no standards — just hazards “recognized” by “the industry” or “by the employer” that are “likely to cause death or serious physical harm.”

When is the clause used? Evoking the standard means that OSHA believes that the hazard is likely to cause serious harm or death, the hazard was foreseeable to the employer, and that a feasible and realistic way to correct the hazard exists.

What’s the problem? The GDC was never intended to be a catchall for hazards with no established standards, and there is growing concern that the agency is overusing the GDC — specifically when the problem involves workplace violence or heat stress.

Employers are understandably confused when rules aren’t clear. They are pushing back and telling regulators that they need a standard where everybody knows what compliance means. One employer I work with recently told me that he needed to know that “if I do A, B, and C — that will be compliance.”

It doesn’t seem like too much to ask.

Judges are pushing back, too, and saying that OSHA is applying the law too broadly, and relying on the General Duty Clause instead of setting standards. Just a few months ago OSHA released five decisions on whether employers violated the GDC.

Only two of them stuck. The other three were rejected after judicial review.

Feel free to contact me if you have any questions about General Duty Clause violations and how they affect your industry and workplace.

About the Author: James Laboe

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