SHA routinely uses the General Duty Clause (GDC) to cite employers. In 2007, the agency used the GDC a total of 1,336 times and issued penalties totaling $3,913,322. Since that time, OSHA has utilized the clause with increased frequency in penalty and enforcement actions. As such, it’s become critical for employers to understand what their “general duty” is with regard to safety.
What is it?
Section 5(a)(1) of the Occupational Safety and Health Act, known as the GDC, requires each employer to “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.”
This means employers are obligated to protect employees from recognized hazards in the workplace even if there isn’t an OSHA standard that applies to the situation or hazards still exist after compliance with a standard if the well-being of employees is in jeopardy. The GDC essentially extends OSHA’s authority beyond the specific requirements of the OSHA standards. Only nine other sections of the OSHA standards are cited more frequently than Section 5(a)(1).
When is it used?
When a standard does not exist to address specific hazards, OSHA uses the GDC to cite employers. For example, there is no ergonomic standard. However, OSHA has widely applied the GDC to cite employers for not addressing ergonomic hazards in the workplace while reviewing accident and injury records during inspections. OSHA has also issued GDC citations for lack of training, failure to provide extra safety equipment and failure to protect employees from combustible dust hazards, among others.
What about situations where a safety standard currently exists on a particular subject? Are you doing enough if you are in compliance with OSHA’s safety standard? The answer is maybe not. OSHA has cited employers who knew an OSHA standard was inadequate to protect their employees from harm. Thus, the GDC is making it increasingly difficult for companies to fully comply with OSHA’s requirements. In light of this, employers who believe they are meeting the “letter of the law” should step back and critically assess whether a process might still be unsafe.
How is it used?
In general, the following elements are necessary to prove a violation of the GDC:
1. The employer failed to keep the workplace free of a hazard. It must involve a serious hazard and employee exposure. The hazard must be reasonably foreseeable. All the factors that could cause a hazard do not need to be present in the same place at the same time in order to prove foreseeability.
2. The hazard was recognized by industry, the employer (evidence of such recognition may consist of written or oral statements made by the employer or supervisory personnel, or instances where employees have clearly called the hazard to the employer’s attention), or is common sense (OSHA only uses this in flagrant cases).
3. The hazard caused or was likely to cause death or serious physical harm.
4. There was a feasible and useful method to correct the hazard. This refers to the prevention of a recognized hazard, rather than a particular accident.
Your duty
One effective action to help avoid GDC citations is to implement a comprehensive safety and health management system. Other ways include:
- Evaluating industry/ANSI standards for situations that impact your operations but where there is no specific OSHA standard (e.g., conveyor safety, eyewashes and showers).
- Following manufacturer’s instructions for equipment. OSHA routinely holds employers responsible for this (e.g., storage rack installation, forklift inspection and scissor/aerial lift training).
- Acting on employee complaints and injury reports. OSHA can hold employers responsible for investigating such reports and not taking appropriate action (e.g., workplace violence).
- Reviewing OSHA’s database of GDC citations to understand what the agency expects (www.osha.gov/pls/imis/generalsearch.html).
For more information, contact Jennifer Stroschein at (800) 558-5011 or visit www.jjkeller.com.
