WHAT THE OSHA GENERAL DUTY CLAUSE MEANS TO ME.

The OSHA General Duty Clause, “Section 5(a)(1) of the Occupational Safety and Health Act, requires that each employer furnish to each of its employees a workplace that is free from recognized hazards that are causing or likely to cause death or serious physical harm.”

Over many years I have wondered about OSHAs General Duty Clause (GDC) or as I like to call it, “If we cannot get you any other way we will do it using the GDC!” That is sort of the way OSHA has always used the GDC. Yesterday I found hundreds of OSHA citations on the OSHA.gov website as examples of how OSHA uses the GDC. Some of these fines were very substantial. In my Midwestern Farm-Boy frame of mind I have always wondered about two questions I have in regards to OSHA’s GDC:

“Why even have all the Standards and Incorporations by Reference that make up practically an entire library? Why not just always use the GDC?”

I would suspect OSHA would say their job is to provide guidance and direction on how to keep employees safe. I guess my questions come from years of a perceived bias against OSHA on my part. Trying to be compliant with all OSHA’s rules and regulations has always felt like a constant hassle and struggle. Then there is the immense fear of a visit by a Compliance Health and Safety Officer (CHSO) and the hassle afterwards. Twice I can say I had CHSO visits and had NO resulting citations. However, I cannot say that for every visit. 

As an OSHA Outreach Instructor I always found it sort of funny that one of the required courses for an OSHA 10-Hour and 30-Hour Card is, “Introduction to OSHA!” This is the one course in the OSHA Outreach Program that requires the use of their OSHA Training Module. Every time it has been a long and painful two hours to train for me. A good share of it discusses how employees are to contact OSHA with problems and concerns. I have always stretched what OSHA probably desires by ASKING that the employee at least give us a chance to address their concerns before calling OSHA. I am always very careful to say immediately after that in a non-threatening manner, “You are NOT required to tell us before calling OSHA but we would appreciate a chance to address your concerns first.”  I always found it very ironic that I was required to show people how to call OSHA while at the same time praying they would not.  I would always conclude this course by saying something like, “Please give us a chance but should you feel you are not getting your Health and Safety Concerns addressed call OSHA!” However, to myself and not out loud, I would say to myself, “But please don’t!”

In the new OSHA Outreach Training Program, revised January 1, 2018 and effective April 1, 2018, the requirement of two hours of training for “Introduction to OSHA” has been reduced to one hour. I applaud OSHA for this revision. I have not reviewed the new training module yet, but relish not having to keep people awake for two hours!  I cannot imagine it being invigorating training even now.    

I retired 4 months ago and have been able to reflect upon my life long career in Manufacturing, Human Resources, and Safety. I never really had the time to reflect like this, as it seemed like I was always fighting fires or problems. I worked hours and hours on OSHA Compliance. A good share of my time was spent ensuring we were complying with all that OSHA requires including making sure people were trained adequately. I also spent untold time on making safety proactive, making it fun, developing self-directed safety teams, instilling employee engagement, facilitating Behavioral Based Safety (BBS), and all the other stuff we Safety Professionals do.  I have had to deal with several serious injuries. We all have our own horror stories. My three worst were friends of mine. The first an Electrician allowed himself to become the conduit of 12,000 volts to go to ground. He was in a burn unit for several months. The second serious injury was a fellow supervisor burned severely over most of his body. He jumped to the floor from a molten iron delivery cab (monorail). Flames were engulfing the cap and he panicked and jumped 10’ into molten iron on the floor. He managed to roll out, and survive but then spent over a year in a burn unit. He died several years later due to a stroke. There was a suspicion the accident was a contributor to his death but never proven. The third was a man that got 6’ of a 12’ X 5/8” hex steel bar driven though his lower abdomen. It missed his femoral artery buy 1 cm. He was in the hospital two weeks and off work for three months and then returned to work. 

All three could have easily been instant fatalities. So I cannot brag much about a career of no fatalities. All three were so very close and I believe the Lord was smiling on all three injured employees and the entire facility. I do know that their survival was not based on anything I did. There have been amputations and other serious injuries too, and after each one I took it personally and felt I failed!  However, I believe I was able to prevent an unknown number of injuries. I can never know how many people I prevented from serious injuries. I do know I tried every day to keep my friends and teammates safe. For that happening I am immensely grateful to the Safety God!   Upon further reflection I am also grateful to OSHA. They have indeed made me a better manager and given me direction and assistance to keep people safe. Have I been frustrated with OSHA rules and requirements? You bet I have!  But the fact remains I did keep people safe with their direction and assistance. I often times used OSHA as a major reference in justification to my superiors in order to obtain major safety items, like new expensive guarding.       

So, should anyone be afraid of the GDC? I do not know if afraid is the right word, perhaps a better word would be concerned. OSHA uses the law when there is no exact standard, for instance Ergonomics. Ergonomics has been a proposed standard since the Clinton Administration but never fully adopted by OSHA (I believe in California it is a Cal/OSHA standard). So, an OSHA CHSO sees an Ergonomic hazard, can they cite you? They can and do in a heartbeat! They simply use the GDC and have done so hundreds of times! So, if OSHA can just use the GDC how are you supposed to know what is and is not safe and then adequately administer your Safety Program? First, it is your job to do just that. Second, I like to use a paraphrase of President George H. Bush’s famous saying, “If it looks unsafe, smells unsafe, sounds unsafe, feels unsafe, and/or has been unsafe, IT IS UNSAFE!” This means you have a legal responsibility to fix it, even it is not covered in a specific OSHA standard or reference.  It sounds simple but is admittedly difficult at times. Third, another way to put it is something we all know.  There is a >95% chance if someone gets hurt something failed, usually either someone did not do something they were supposed to do, or someone did something they were not supposed to do! Very rarely do accidents just happen because of chance, for all practical purposes it just does not happen! In 40 years in Safety, and many more accidents than I can or care to remember, not one single accident, just happened! The GDC to a great extent addresses that!   

As a 22-year old supervisor in a very dangerous work environment (iron foundry) it was pounded in to me that my employees’ safety always came first above all else! Most importantly I was constantly told, “If an employee gets hurt, it might not be your fault but it is dam_ sure your responsibility (to make sure it does not happen again)!” I am thankful to those that taught me that! In the final analysis the GDC has always been in the back of my mind, in my own words, “As a manager I must keep my people safe! That is my primary job, and nothing is more important!” I think when it comes right down to it this is the real purpose of the OSHA’s General Duty Clause and I am most grateful and thankful for it!  I look myself in the mirror every night now and then sleep all night!

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