FEDERAL OSHA'S TRUMP CARD - THE GENERAL DUTY CLAUSE

It’s the preamble to all OSHA regulations and is called the backbone for all OSHA standards.

Federal OSHA’s General Duty Clause (GDC) is arguably the most overlooked, least appreciated, surreptitious, and yet potent section of the OSHA Act of 1970. There’s nothing else quite like it.

When Congress passed the OSHA Act of 1970, the bill’s founding authors had incisively recognized that the agency could not possibly have a standard for every conceivable workplace hazard in the entire United States. So Congress gave to OSHA the GDC to cite hazards when there were no standards to rely upon. The GDC remains alive and thriving some 40 years later.

To truly value the simplicity and yet contemporaneous disconcerting consequences of the GDC, peruse the broadly written Section 5 (a) (1) of the OSHA Act of 1970 directly below;

Section 5 (a) Each employer – (1) shall furnish to each of his employees employment and a place of employment that are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees; 

This catch-all proviso of the law simply directs employers to provide their workers with a workplace environment that is free from recognizable hazards. However, what makes this directive so exclusive is that it’s enforceable even if the hazard is not recognized under current OSHA regulations. It remains OSHA’s cunning - trump-card-gotcha - standard. Thus a company’s potential liability under the GDC is and remains - open-ended.

On 3/26/2009 OSHA updated its Field Operations Manual (FOM). In short, the FOM is OSHA’s general enforcement policy/procedure guidebook that is used by the agency when OSHA officers conduct inspections, issue citations and/or propose penalties. It’s the living bible and guiding light for OSHA compliance officers.

A significant part of OSHA’s amended FOM is the clarification it provides on what makes a hazard recognizable; which is directly germane to the GDC. The amended FOM instructs OSHA officers to consider several categories of evidence that demonstrates recognition prior to citing a GDC citation.

• First, there must be a hazard and it must be shown that the employer failed to prevent or remove the hazard - A GDC citation is probable if there is no standard and there have been injuries clearly related to the hazard.
• Second, the hazard must be a recognized hazard - The employer knew or should have known about the hazard.
• Third, it must be shown that the hazard could or is likely to cause serious harm or death - The harm would include any potential impairment, temporary or permanent, which affects one on or off the job.
• Fourth, the hazard must be correctable - There is a known feasible way the employer could correct, eliminate, or at least significantly lessen the hazard through such means as administrative controls or safety training.

As one can well envisage there’s been a fair amount of dialectic litigation in the courts the last 40 years picking, piercing, and poking at the GDC 5 (a) (1) section.

Nevertheless, one sagacious paradigm of the GDC was when OSHA identified more than 300 cases of cumulative trauma disorders involving carpal tunnel syndrome and rotator cuff injuries at a poultry establishment. Because OSHA doesn't have a standard on ergonomics, OSHA cited the plant for violating the GDC. The company eventually paid out $200,000 to settle the charges.

OSHA continues to expand the range of the GDC by issuing citations ranging from ergonomics, heat & cold stress, to workplace violence. By constantly trolling and reviewing OSHA’s proposed rulemaking in the Federal Register, one can reasonably predict other workplace hazards that might result with a GDC citation.

Dr. David Michaels who heads federal OSHA has expressed his penchant to expand the use of the GDC; "OSHA doesn’t need a new standard if a hazard is serious and there are recognized measures to mitigate the hazard." 

3/23/2011 Meatingplace.com