Can OSHA Issue Citations for General-Duty Violations?

By John Ho April 26, 2019
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Can OSHA Issue Citations for General-Duty Violations?

The Occupational Safety and Health Administration (OSHA) may need to give employers more-specific guidance for keeping their workplaces free from hazards that may cause death or serious physical harm, according to commissioners in two recent administrative rulings.

The so-called general-duty standard to keep workplaces free from such hazards may sound laudable, employers say, but it's too vague.

In one decision, the Occupational Safety and Health Review Commission, which reviews administrative law judges' decisions in OSHA-citation challenges, agreed that OSHA too often uses the standard to hold employers liable without more-specific guidance. The general-duty clause amounts, as this opinion said, to a "gotcha" against employers.

In the other opinion, the commission held an employer liable under the clause, but some concurring commissioners again said it's not specific enough and used too much.

Background

Employers can be cited for violating the Occupational Safety and Health Act's general-duty clause if they fail to take reasonable steps to prevent or fix a serious hazard in their workplace.

To prove a general-duty clause violation, the U.S. Secretary of Labor must establish the following:

  • A condition or activity in the workplace presented a hazard.
  • The employer or its industry recognized the hazard.
  • The hazard caused or was likely to cause death or serious physical harm.
  • There was a feasible and effective way to eliminate or reduce the hazard.

The general-duty clause applies only when there is no specific standard from OSHA that applies to the particular hazard. For example, OSHA has historically issued citations under the general-duty clause for hazards associated with workplace violence, ergonomics, heat and cold stress, and crowd control in retail stores (particularly on busy shopping days, such as Black Friday).

Limiting Use

Secretary of Labor v. A.H. Sturgill Roofing, Inc. involved a general-duty citation against an employer for exposing employees "to the hazard of excessive heat from working on a commercial roof in the direct sun," which resulted in the death of a 60-year-old man who suffered heatstroke.

In vacating the general-duty citation, the Occupational Safety and Health Review Commission held that the secretary of labor failed to prove that a hazard existed. Commissioner Cynthia Attwood dissented and said she would have affirmed the citation.

Although the majority of commissioners didn't explicitly state that heat-stress conditions could never give rise to a general-duty citation, they were skeptical about OSHA's historically broad use of the general-duty clause. In a footnote, the commission said that the clause was originally intended to serve only as a "stopgap measure to protect employees until standards could be adopted," and that once a hazard was identified through the general-duty clause, OSHA would develop a specific standard for the hazard.

Although the commission acknowledged that "practical considerations" may have led OSHA to rely on the general-duty clause rather than specific standards, it found that OSHA had increasingly used it over time as a "gotcha" and "catchall" against employers.

The commission also noted that California's Division of Occupational Safety and Health (Cal/OSHA) implemented a specific heat-illness-prevention regulation.

Knowledge of Hazard

A week later, in Secretary of Labor v. Integra Health Management, Inc., the commission unanimously affirmed a general-duty citation for workplace violence.

Integra Health provided in-home services to clients with mental-health issues. OSHA issued a general-duty citation after one of its employees was stabbed to death by a schizophrenic client during a home visit.

Commissioner Attwood, who wrote the majority opinion, rejected Integra Health's claim that it didn't know about the hazard. She pointed out that the company's work rules and training materials, among other things, addressed the possibility of client violence. Attwood also rejected the employer's suggestion that violence by a third party is "inherently resistant to prediction" and could never be classified as a recognized hazard.  

Commissioner James Sullivan joined in the majority opinion but wrote a concurring opinion expressing concern that the general-duty clause is too vague and open to interpretation and thus does not provide clear notice of an employer's obligation. Similarly, commissioner Heather MacDougal (who is no longer on the commission) wrote a separate concurring opinion expressing concern about the expansion of the general-duty clause to situations the employer can't control and the secretary of labor's attempt to expand the scope of it over the years.

Because the majority opinion and concurrences make it clear that Integra Health was decided on very specific facts, the administrative law judges who provide the first review in citation disputes are unlikely to interpret the commission's decision as broadening OSHA's authority to cite under the general-duty clause in workplace violence cases or otherwise.

John Ho is an attorney with Cozen O'Connor in New York.

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