The Occupational Safety and Health Act (Act) was enacted to regulate workplace safety and health. The Act is administered by the Occupational Safety and Health Administration (OSHA).
The Act and its accompanying regulations identify a significant number of recognized hazards and establish safety and health standards to address them. OSHA standards are classified into four different groups, known as the agriculture, construction, maritime and shipyard, and general industries.
However, even when no standard specific to a recognized hazard applies, the Act imposes certain safety and health responsibilities on employers through a provision that is commonly known as the OSHA “general duty clause.”
OSHA’s general duty clause requires covered employers to provide a safe work environment, free from recognized hazards, to their employees, if those hazards are causing or are likely to cause death or serious physical harm.
The general duty clause requires employers to provide each employee with a work environment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” In general, OSHA and courts across the United States have established that employers violate the general duty clause if:
All four of the conditions described above must be present before OSHA can issue a citation under the general duty clause. A “hazard” is a workplace condition or practice to which employees are exposed that creates the potential for employee death or serious physical harm.
Hazards may be recognized by employers, the industry in which an employer operates or through common sense. To establish employer recognition, there must be evidence that the employer knows or is aware of hazardous conditions or practices. To establish industry recognition of a hazard, evidence needs to show that the employer’s relevant industry is aware of the hazard in question. Recognition by an industry other than the employer’s relevant industry is not sufficient to establish recognition. Common sense recognition can only be used if employer recognition and industry recognition cannot be established and only in flagrant or obvious cases. To establish common sense recognition, the hazard must be sufficiently obvious so that a reasonable person would recognize it.
OSHA can enforce the general duty clause only when no hazard-specific standard applies and in situations where a recognized hazard is created in whole or in part by workplace conditions or practices that are not covered by a standard. The general duty clause may also apply in employment situations that are inherently dangerous, such as fire brigades, emergency rescue operations and confined space entry.
OSHA limits general duty citations to incidents that can be classified as willful or repeated violations that would otherwise qualify as serious violations. OSHA does not use the general duty clause to issue other-than-serious citations.
Finally, while the general duty clause cannot be used to impose stricter requirements that the ones already imposed by OSHA’s standards, employers may violate their general duty when existing standards are inadequate to protect worker safety and health. Citations under these circumstances are possible only if all the conditions mentioned before are met, and the employer knows that the standard was inadequate to protect employees from death or serious physical harm.