As the United States remains in the grip of the COVID-19 pandemic, significant attention has been placed on the Occupational Safety and Health Administration (“OSHA” or the “Agency”) and the efforts taken by the Agency to help in the federal response. OSHA has stated that it may utilize the “General Duty Clause” – Section 5(a)(1) of the Occupational Safety and Health Act of 1970 (“OSH Act”) to take enforcement action against employers who do not sufficiently address COVID-19 hazards in the workplace. This article explores the General Duty Clause and what OSHA must prove to sustain a violation.

The General Duty Clause 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 the Legislative History of the OSH Act, the General Duty Clause was one of the more controversial provisions. While there was general agreement within Congress that OSHA could not be expected to issue specific standards related to each and every hazard at all worksites across the country and that a general provision requiring safe employment was needed to be included in the Act, agreement on the exact parameters of the General Duty Clause was complicated.

The concept of the General Duty Clause was initially urged by the National Safety Council, which stated in testimony:

“If national policy finally declares that all employees are entitled to safe and healthful working conditions, then all employers would be obligated to provide a safe and healthful workplace rather than only complying with a set of promulgated standards. The absence of such a general obligation provision would mean the absence of authority to cope with a hazardous condition which is obvious and admitted by all concerned for which no standard has been promulgated.”

S. Rep. No. 91-1282, at 10 (1970), reprinted in Legislative History of the Occupational Safety and Health Act of 1970, at 150 (1971).

Given the concerns about the General Duty Clause, Congress intended the provision to be narrowly construed so as to ensure employers were not faced with civil penalties for hazards which were not obvious and compliance expectations clear and achievable.

Proving a General Duty Clause violation is more difficult than proving a violation of an OSHA standard. OSHA must prove the following elements to sustain a General Duty Clause violation:

• That a hazard exists;
   
• That the hazard was recognized by the employer or the employer’s industry;
   
• That exposure to the hazard would result in serious harm; and
   
• That feasible means of abatement exist that would eliminate or materially reduce the hazard.

Proving the existence of a hazard is often straightforward, but it is not as easy to prove the “recognition” of the hazard. OSHA must prove that the employer specifically recognized the hazard or the hazard is recognized by the employer’s industry. 

“Employer Recognition” can be proven by policies, procedures, safety committee meetings, audits, training, and injuries and illnesses. “Industry Recognition,” alternatively, can be shown by industry standards, best practice documents, industry guidance material and knowledge of actions taken by similarly-situated employers.

One of the more challenging aspects of proving a General Duty Clause violation relates to “abatement” of a hazard. OSHA must show the proposed abatement method is feasible and would materially reduce the hazard. The standard under the “feasible abatement” prong is not that something else could have been done by an employer. It is that there are feasible abatement measures available that could have been implemented, and would eliminate or materially reduce the hazard.

Historically, OSHA has pursued enforcement actions related to ergonomics, heat illness and workplace violence pursuant to the General Duty Clause. Now, however, a primary focus will be how OSHA pursues enforcement actions for COVID-19 under the General Duty Clause. Employers should “stay-tuned” and follow OSHA guidance to ensure that they understand OSHA’s compliance expectations during these uncertain times.

The ASA Safety Committee sponsored a webinar on the General Duty Clause presented by Bradford Hammock during the month of July. A recording of Brad’s presentation can be accessed by going to the ASA website at www.asa.net/Safety/Safety-Webinars. If your company is an ASA member and you would like to receive ongoing information from the ASA Safety Committee please contact Jim Kendzel at jkendzel@asa.net and he will include you in the distribution list.