Many employers have a false notion that OSHA cannot issue a citation if there is no specific standard violated.
The reality is, however, that OSHA has a catchall/gap filler provision that allows it to cite an employer even if no specific standard was violated: the “General Duty Clause,” Section 5(a)(1) of the Occupational Safety and Health Act. OSHA can cite employers for violation of the General Duty Clause if a recognized serious hazard exists in their workplace and the employer does not take reasonable steps to prevent or abate the hazard. The General Duty Clause is used only where there is no standard that applies to the particular hazard.
Basics of a General Duty Clause Case
Here are elements of a violation of the General Duty Clause:
- The employer failed to keep the workplace free of a hazard to which employees were exposed;
- The hazard was recognized;
- The hazard was causing or was likely to cause death or serious physical harm; and
- There was a feasible and useful method to correct the hazard.
So what constitutes a “recognized hazard”? According to the OSHA Field Operations Manual, “A hazard is recognized if the employer’s relevant industry is aware of its existence. Recognition by an industry other than the industry to which the employer belongs is generally insufficient to prove this element of a Section 5(a)(1) violation. Although evidence of recognition by an employer’s similar operations within an industry is preferred, evidence that the employer’s overall industry recognizes the hazard may be sufficient.” OSHA will appeal to the following sources to establish industry recognition of a hazard (see OSHA Field Operations Manual, Ch. 4, §III.6.B.):
- Statements by safety or health experts who are familiar with the relevant conditions;
- Evidence of implementation of abatement methods to deal with the particular hazard by other members of the employer’s industry;
- Manufacturers’ warnings on equipment or in literature that are relevant to the hazard;
- Statistical or empirical studies conducted by the employer’s industry that demonstrate awareness of the hazard;
- Government and insurance industry studies, if the employer or the employer’s industry is familiar with the studies and recognizes their validity;
- State and local laws or regulations that apply in the jurisdiction where the violation is alleged to have occurred and which currently are enforced against the industry in question; and/or
- If the relevant industry participated in the committees drafting national consensus standards such as the American National Standards Institute (ANSI), the National Fire Protection Association (NFPA), and other private standard-setting organizations, this can constitute industry recognition.
Takeaway
The lesson here is stay up to date and implement safety precautions recommended in your industry regardless of whether OSHA has a standard for the particular recognized hazard.
