OSHA Criticized for “Going Rogue” with General Duty Clause

An interesting op-ed piece in the WashingtonExaminer this past week calls into question whether or not the Administration, specifically OSHA under current management, is going rogue with the General Duty Clause (the piece is provided below or linked here).

The General Duty Clause in the OSH Act (Section 5(a)(1)) basically states that employers are required to provide its employees with workplace free of recognized hazards. In other words, it’s a catch-all provision which allows the agency to issue penalties for not addressing a hazard even if there is no Federal regulation which addresses that hazard. Typically, concensus standards (ie: industry and other types of standards such as NFPA, ANSI, etc) are applied in such a manner.

The issue is this: OSHA not only promulgates standards which become enforced with the “rule of law” so to speak, it also publishes Guidance documents to provide employers and workers with information about emerging safety and health issues. These guidance documents are not, by definition, required mandates to the employer. These can be thought of as ‘best practices’ or ‘should does’.

For example, in the Preventing Workplace Violence Directive mentioned in this op-ed, there is a disclaimer in the very opening of the guidance publication it references. It reads: “These guidelines are not a new standard or regulation.

They are advisory in nature, informational in content and intended to help employers establish effective workplace violence prevention programs adapted to their specific worksites. The guidelines do not address issues related to patient care. They are performance-oriented, and how employers implement them will vary based on the site’s hazard analysis.”

So, in theory, guidance documents cannot be used as justification for an OSHA general duty violation under 5a1. I am not aware of any instances where they are used for enforcement actions. That said, if the guidance material references consensus standards, etc, OSHA can still utilize those embedded consensus standards as justification for a violation.

This happens all the time through RAGAGEP (Recognized And Generally Accepted Good Engineering Practices) in the Process Safety Management standard 1910.119 enforcement cases. It can get a little confusing, I agree. But generally speaking, this is an area where employers may have greater footing than they otherwise might think they have if contesting a violation it feels is over-reaching.

Although I agree that the Agency might get a little over zealous in some isolated cases with this particular directive, I would be a little hard pressed to see it become a rampant issue. For one, the the enforcement directive cites other guidance materials — not industry or other consensus standards on dealing with the issue.

Therefore, the Agency (presumably) will be leaning pretty heavily on the guidance document to make its case. That won’t be easy to do. Getting 5a1 violations to stick pretty hard is difficult enough a task as it is. Sure, OSHA can still try with this type of scenario in the op-ed…. But….

**** Op-Ed from WashingtonExaminer.com ****

OSHA is another Obama agency gone rogue

By:Michael Billok | 10/20/11 8:05 PM Op-Ed Contributor

Picture this scenario:

One day, in a large hospital with thousands of patient visits per year, the unthinkable occurs — while a doctor explains unfortunate news to a patient’s family, a relative pulls a gun and mortally wounds the doctor.That hypothetical scenario would be terrible enough. But now imagine that, in the midst of the hospital trying to recover from this tragedy, a federal Occupational Safety and Health Administration (OSHA) investigator arrives to conduct an inspection.

After months of interviewing employees, reviewing documents, and taking videotaped tours of the hospital, OSHA issues the hospital a citation and fine (!) on the basis that the violence was foreseeable and the hospital did not do enough to prevent it.As you may have guessed, the above inspection is not so hypothetical. On Sept. 8, OSHA issued a directive to its investigators regarding how to inspect — and cite — employers for instances of workplace violence.

If you’re wondering where to look up the federal law or regulation that tells employers how to avoid a citation for workplace violence, don’t bother. OSHA has issued this directive under the assumption that a vague clause of the Occupational Safety and Health Act gives OSHA the power to cite employers for something as specific and unpredictable as workplace violence.

Known as the “General Duty Clause,” this provision requires employers to keep their workplaces “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees.

Congress intended for this clause to be used only as a temporary measure, until OSHA could draft rules regarding specific hazards that had the agency had not yet addressed. It was not intended to be used as a means for OSHA to issue citations for anything under the sun.

Yet in the past several years, OSHA has used the General Duty Clause to cite companies for issues as varied as crowd control, heat stress, and even the use of killer whales in SeaWorld shows.

Now, OSHA seeks to take the General Duty Clause one step further, and to use it to hold employers liable for actions taken by people who are not their employees. This is troublesome for two reasons.

First, it is incredible to hold companies liable for the actions of the general public. By that standard, every time an unruly bar patron takes a swing at a bouncer, or every time a criminal holds up a convenience store, it’s the employer’s fault for placing employees in that situation.

Indeed, employees in the security industry by definition place themselves at risk of assault by the general public. What is to become of them?

Second, the directive provides employers no clue about what to do to avoid a citation. Will a grocery store or bank be liable if employees are shot during a robbery? OSHA’s answer to this question is an emphatic “maybe,” and depends in part on what measures a security expert may recommend to the employer. But employers should not have to hire an expert to find out what the law requires.

The General Duty Clause was intended to be caulk — to fill in the gaps where regulations did not apply to ensure that employers kept the workplace free of “recognized hazards.” OSHA, however, has shaped and cured the caulk into a cudgel, using it to cite employers for a multitude of conditions, including those beyond the employers’ control.

Congress should ensure that OSHA limits its use of the General Duty Clause to the original design of the Occupational Safety and Health Act (OSH Act) and does not punish employers for acts beyond their control.

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Prometrix Consulting, with a staff of former OSHA officials, offers expert consulting and training services to help clients ensure compliance with complex workplace safety and health requirements.