Introduction

The General Duty Clause in Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970 requires employers to provide all employees with a workplace that is free from recognized hazards that cause—or are likely to cause—death or serious physical harm to employees.

If a company was to audit one of its facilities for compliance with this requirement, it would likely have several follow-up questions: What is a “recognized hazard?” What does “serious physical harm” mean? And most importantly: How do I comply with this requirement? Given the seemingly all-encompassing nature of the clause, one way to answer these questions is to look at past enforcement actions, compliance directives and letters of interpretation to see how the U.S. Occupational Safety and Health Administration (OSHA) has enforced and interpreted the clause in the past.

Historically, OSHA and its regional offices have used the General Duty Clause to enforce the following topic areas:

  • Occupational heat exposure
  • Cold stress
  • Workplace violence
  • Ergonomic hazards
  • Respiratory hazards that are not covered by permissible exposure limits (PELs)

The above topic areas are not covered in OSHA’s regulations or in the OSH Act. This is where the General Duty Clause comes into play. OSHA typically uses the General Duty Clause to enforce standards that are not expressly stated in its laws or regulations but could result in worker injury or death. This means that an employer’s health and safety compliance obligations do not end with the black and white letter of the law, but extend to other workplace hazards as well.

To help better define an employer’s compliance obligations, below is an overview of the topic areas OSHA has historically enforced under the General Duty Clause.

Occupational Heat Exposure

Recently, OSHA has used the General Duty Clause to enforce several cases where employees were exposed to excessive heat. In February of 2019, OSHA cited a landscaping company in Florida after an employee suffered a fatal heat-related injury. The fatal injury occurred on a day when the heat index reached between 97 and 100 degrees Fahrenheit; OSHA stated that it could have been prevented if the employer took precautions, such as ensuring access to water, rest and shade.

To prevent heat-related injury or death, OSHA has several standards on its Occupational Heat Exposure page that employers can implement to prevent heat-related violations of the General Duty Clause. This includes, for example, the Criteria for a Recommended Standard—Occupational Exposure to Heat and Hot Environments from the National Institute for Occupational Safety and Health (NIOSH) and the Evaluation of Occupational Exposure Limits for Heat Stress in Outdoor Workers—United States from the Centers for Disease Control and Prevention (CDC).

...OSHA also enforces cold stress or exposure to cold temperatures under the General Duty Clause.

OSHA also points employers to several letters of interpretation for further guidance on topics, such as choosing appropriate personal protective equipment (PPE) to protect workers from electrical hazards when heat stress is a factor and acceptable methods to reduce heat stress hazards in the workplace.

Cold Stress

In contrast to occupational exposure to heat, OSHA also enforces cold stress or exposure to cold temperatures under the General Duty Clause. While there are no recent examples of enforcement actions related to cold stress, OSHA identifies cold stress as a “recognized hazard” for exposed workers in industries such as transit, landscaping services, support activities for oil and gas operations and other outdoor activities. For employers with workers who are exposed to cold conditions, OSHA recommends that employers train workers on:

  • How to recognize the environmental and workplace conditions that can lead to cold stress
  • The symptoms of cold stress, how to prevent cold stress and what to do to help those who are affected
  • How to select proper clothing for cold, wet and windy conditions.

OSHA also recommends that employers do the following if their employees are exposed to cold temperatures:

  • Monitor each worker’s physical condition
  • Schedule frequent, short breaks in warm, dry areas to allow the body to warm up
  • Schedule work during the warmest part of the day
  • Use the buddy system or work in pairs
  • Provide warm, sweet beverages to workers and avoid drinks with alcohol
  • Provide engineering controls, such as radiant heaters

For more information on how to protect workers exposed to cold temperatures, see the Cold Stress Guide on OSHA’s website.

Workplace Violence

OSHA identifies workplace violence as a “recognized hazard” if an employer recognizes the existence of a potential workplace violence hazard that is either specific to the workplace or prevalent throughout the industry. For example, OSHA recently cited a behavioral and mental health facility in Pennsylvania for failing to adequately address its employees’ repeated exposure to physical assault—such as punching, kicking and biting—that resulted in concussions and laceration\s.

While the employer in this example should have recognized a specific workplace violence hazard at the facility, other workplaces may be subject to violations of the General Duty Clause if workplace violence is prevalent throughout its industry. For example, late-night retail workers, taxi drivers, corrections officers and the healthcare industry have high rates of workplace violence. Therefore, employers in these industry sectors may be on notice of the risk of workplace violence and should implement a workplace violence prevention program combined with engineering controls, administrative controls and training as recommended by OSHA to prevent violations of the General Duty Clause.

For more information on how OSHA will issue citations for workplace violence under the General Duty Clause, see its directive entitled Enforcement Procedures and Scheduling for Occupational Exposure to Workplace Violence.

Ergonomic Hazards

Ergonomic hazards are enforced under the General Duty Clause as a “recognized hazard.” While there are no recent enforcement actions related to ergonomics hazards, OSHA provides guidance on how it will enforce these types of issues. For industries where ergonomic hazards are common, OSHA has developed industry-specific guidelines for employers to minimize potential injuries. For example, OSHA has guidelines for the following industries or activities, among others:

  • Foundries
  • Manual material handling
  • Retail grocery stores
  • Whole-body and hand-arm vibration
  • Computer workstations
  • Construction work
  • Manufacturing
  • Healthcare industry
  • Warehousing

Even if OSHA has not developed guidelines for a particular industry, it will still use the General Duty Clause to enforce any ergonomic hazards.

When using the General Duty Clause to enforce ergonomic hazards, OSHA has stated that it will not focus on employers who are making good-faith efforts to reduce ergonomic hazards at each of their worksites. Employers who follow OSHA’s industry-specific guidelines are more likely to be seen by OSHA as making good-faith efforts. Notably, however, OSHA has issued citations to companies that make a corporate commitment to reducing ergonomic hazards but fail to effectively implement protective measures at its sites. This is because the General Duty Clause applies to specific worksites and not company-wide commitments or intentions.

Rather than issuing citations for ergonomic hazards, OSHA has a policy of issuing hazard alert letters to employers in certain circumstances.

Rather than issuing citations for ergonomic hazards, OSHA has a policy of issuing hazard alert letters to employers in certain circumstances. In the hazard alert letters, OSHA details steps the employer can take to reduce the ergonomic hazards and provides employers with resources to assist in the process. OSHA will then follow up with some companies who receive these letters to determine what actions employers have taken to address the ergonomic hazards.

Respiratory Hazards

The final topic area that OSHA has historically enforced under the General Duty Clause is respiratory hazards that are not covered by permissible exposure limits (PELs). PELs are legal limits for employee exposure to a chemical substance or physical agent. PELs are usually issued as a time-weighted average or the average exposure over a specified period. For example, OSHA sets PELs for chemicals such as beryllium, methylene chloride and cadmium.

In November of 2018, OSHA issued its new enforcement policy for respiratory hazards that are not covered by PELs. Because this is a new policy, there are no examples of enforcement actions under the policy yet. However, the policy does detail how employers can expect OSHA to enforce respiratory hazards not covered by PELs in the future.

Under the newly issued enforcement guidance, OSHA clarified that it should not issue General Duty Clause citations based solely on evidence that a measured exposure exceeded a recommended occupational exposure limit (OEL), such as a Threshold Limit Value (TLV), or based solely on a documented exposure to a recognized carcinogen. An OEL is an upper limit on the acceptable concentration of a hazardous substance in workplace air for a particular material or class of materials. A TLV is the chemical exposure level to which a worker can be exposed day after day for a working lifetime without adverse effects. Additionally, the policy declared that OSHA should issue hazard alert letters to employers before issuing a citation to help employers meet requirements and take remedial actions.

With this new policy, OSHA signaled its intent to expand enforcement beyond the established PELs. Therefore, employers now have a greater responsibility to reduce respiratory hazards beyond the established PELs. For more information, the full text of OSHA’s Enforcement Policy for Respiratory Hazards Not Covered by OSHA Permissible Exposure Limits is available online.

Conclusion

Although this list of topics is not exhaustive and is constantly changing, looking at what OSHA has historically enforced under the General Duty Clause can provide guidance for companies on how to better comply with OSHA’s most mysterious and nebulous requirement.

 

Note on Occupational Health and Safety Enforcement in the United States

The enforcement actions and policies discussed in this article only apply in states where there is a federally administered occupational health and safety program. In states with program approval and a state-run program, the state agencies may have different enforcement policies.