OSHA’S USE AND MISUSE OF THE GENERAL DUTY CLAUSE
Transcript of OSHA’S USE AND MISUSE OF THE GENERAL DUTY CLAUSE
2019 WORKPLACE SAFETY SYMPOSIUM
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OSHA’S USE AND MISUSE OF THE
GENERAL DUTY CLAUSE
HOW TO AVOID AND COMBAT CITATIONS
John F. Martin (Moderator) – Ogletree Deakins (Washington, D.C.)
Melissa A. Bailey – Ogletree Deakins (Washington, D.C.)
Michael D. McKnight – Ogletree Deakins (Raleigh)
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The OSH Act imposes two duties on employers. Employers must comply with the
occupational safety and health standards promulgated pursuant to the OSH Act, sometimes
referred to as the special duty clause.1 Employers also have a general duty to materially reduce or
minimize, to the extent feasible, recognized hazards that are likely to cause death or serious
physical harm to employees. This duty is imposed by the General Duty Clause, Section 5(a)(1)
of the OSH Act, and states: “Each employer shall 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.”2
OSHA may use the General Duty Clause to cover serious hazards to which no specific
standard applies. While OSHA’s authority under the General Duty Clause is broad, it is not
without limitation. At times, OSHA has tested the boundaries of these limitations. During the
Obama administration, we witnessed an increase in citations issued under the General Duty
Clause as OSHA sought to look for new and creative ways to expand its use. Many voiced
concern that OSHA was using the General Duty Clause to extend into areas that were not
appropriate such as crowd trampling during Black Friday or training whales at SeaWorld.
During the Trump administration, OSHA has continued its use of the General Duty Clause;
however, the Occupational Safety and Health Review Commission has curbed its use in some
instances. But regardless of the administration in Washington or in individual states
administering OSHA, the General Duty Clause will continue to serve as a powerful enforcement
tool for OSHA.
I. Preemption of the General Duty Clause
Perhaps one of the most misunderstood concepts regarding the General Duty Clause is its
limitation as it relates to standards. Historically, the General Duty Clause has been preempted
when a standard applies.3 If a standard only provides partial protection, OSHA cannot cite an
employer under the General Duty Clause to require additional abatement measures. Allowing
OSHA to require further precautions under the General Duty Clause because a standard does not
provide sufficient protection would circumvent the rulemaking process and is impermissible.4
However, one court held that an employer may violate the General Duty Clause even if it
complies with the applicable standard.5 In General Dynamics, OSHA issued a General Duty
Clause citation to an employer for failing to ensure that a confined space was free of the
hazardous solvent, Freon. Prior to the issuance of this citation, the employer had multiple
incidents where employees became ill after being exposed to Freon levels below the permissible
exposure limit. The employer argued that they did not exceed the permissible exposure limit for
Freon in the applicable standard and, therefore, the General Duty Clause did not apply. In
affirming the citation, the court held that if “an employer knows a particular safety standard is
inadequate to protect his workers against the specific hazard it is intended to address, or that the
conditions in his place of employment are such that the safety standard will not adequately deal
with the hazards to which his employees are exposed, he has a duty under Section 5(a)(1) to take
whatever measures may be required by the Act, over and above those mandated by the safety
standard, to safeguard his workers.”6 The Review Commission and other courts have not adopted
the ruling in General Dynamic.
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While General Dynamic greatly expanded OSHA’s power under the General Duty
Clause, the agency has not widely employed the decision to cite employers that are in
compliance with specific standards under the General Duty Clause. Indeed, OSHA’s Field
Operations Manual (FOM) states that the General Duty Clause will normally not be used to
impose a stricter requirement than that imposed by the OSHA standards. To issue a General Duty
Clause in these types of cases, OSHA has stated that all elements of a General Duty Clause
violation must be met “AND there must be actual employer knowledge that the standard was
inadequate to protect employees from death or serious physical harm.”7 OSHA further states that
the General Duty Clause will normally not be used to require additional abatement methods not
set forth under an existing standard. OSHA provides the following example: “If a toxic substance
standard covers engineering control requirements but not requirements for medical surveillance,
Section 5(a)(1) shall not be cited to additionally require medical surveillance.” Similarly, in
2003, OSHA issued a memorandum that states “[i]f there is an established OSHA PEL which
applies to a given workplace air contaminant, Section 5(a)(1) cannot normally be used to impose
a stricter requirement than that required by the standard. An exception to this rule may apply if it
can be documented that, ‘an employer knows a particular safety or health standard is inadequate
to protect his workers against the specific hazard it is intended to address.’”8
Therefore, if you know that compliance with a standard does not provide sufficient
protection, you may need to take additional precautions to avoid liability under the General Duty
Clause.
II. Employees Protected
An employer’s duty under the General Duty Clause only extends to its own employees.
To issue a citation under the General Duty Clause, the exposed employees must be those of the
cited employer.9 Therefore, on a multi-employer worksite, OSHA must evaluate the employment
relationship between the employer to be cited and the exposed employees. Whether or not
exposed workers are employees of an employer depends on several factors, including whether
the employer has control over their assigned work.
III. Elements of a General Duty Clause Violation
To issue a General Duty Clause citation, OSHA must be able to show: (1) the employer
failed to keep the workplace free of a hazard to which employee of the employer were exposed;
(2) the employer or its industry recognized the hazard; (3) the hazard was causing or was likely
to cause death or serious physical harm; and (4) there was a feasible and useful method to correct
the hazard.10
A. Existence of a Hazard
OSHA must clearly identify the condition or practice in a way that apprises the employer
of its obligations and identifies those conditions or practices over which the employer can be
reasonably expected to exercise control.11 Therefore, an industrial activity that is by its nature
hazardous is not necessarily a “hazard” under the General Duty Clause.12 A “hazard” is a
workplace condition or practice to which employees are exposed. It is not the absence of a
particular abatement method.13
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At one time, the Review Commission held that a condition is not a “hazard” unless it
poses a “significant risk” of harm.14 However, the Review Commission has since held that
whether a cited condition creates a significant risk of harm is irrelevant. Instead, the question is
whether the condition could create a “hazardous incident” and if the “hazard incident” occurs
under “other than freakish or utterly implausible concurrence of circumstances,” a significant
risk of harm be present.15
B. Hazard Recognition
A “recognized” hazard is a condition or practice in the workplace that is known to be
hazardous by either the employer’s industry in general or by the cited employer in particular.16
For employer recognition, OSHA has traditionally relied on evidence such as the knowledge and
expertise of the employer’s safety personnel or management; the employer’s safety rules and
procedures; manufacturers’ warnings; employee complaints; or past accidents or injuries.
Industry recognition is often established based on safety standards in the relevant industry.
Over the years, OSHA has attempted to ease its burden of establishing the recognition of
a hazard in several ways. Here are some examples:
By asserting that the employer’s “industry” be broadly construed (e.g., imputing
knowledge of construction industry practices to an employer in the roofing
industry).
By asserting that the voluntary safety standards not specific to any one industry
(e.g., NFPA explosion venting code) can be used to show that a “hazard” is
recognized.17
By asserting that safety experts familiar with the industry recognized the hazard.18
By issuing guidance on workplace violence in healthcare, and then asserting
industry recognition based on this guidance.19
By asserting that an OSHA standard shows recognition of the hazard.20
In addition to employer or industry recognition, OSHA may attempt to establish
recognition based on common sense. The FOM states that if industry or employer recognition
of a hazard cannot be established, “hazard recognition can still be established if a hazardous
condition is so obvious that any reasonable person would have recognized it. This form of
recognition should only be used in flagrant or obvious cases.” 21
As a result, the bar for establishing that a hazard is recognized has been lowered
significantly.
C. Causing or Likely to Cause Death or Serious Physical Harm
To establish a general duty clause violation, OSHA must also show that the hazard is
serious. Specifically, OSHA must show that the hazard is “causing” or is “likely to cause”
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“death or serious physical harm.” Nonserious hazards are not covered under the General
Duty Clause. OSHA does not have to establish the probability of harm. Instead, OSHA must
establish that if an accident were to occur, death or serious harm would be the likely result. In
evaluating the likelihood of an occupational illness caused by a substance in the workplace,
OSHA must prove that death or serious harm is likely if an employee contracts the illness.22
In the FOM, OSHA states that this element is “virtually” the same as the substantial
probability element for a serious violation of a specific standard. According to OSHA, this
element may be established by showing that:
An actual death or serious injury resulted from the recognized hazard, whether
immediately prior to the inspection or at other times and places; or
If an accident/incident occurred, the likely result would be death or serious
physical harm.23
D. Feasible Means of Abatement
Finally, OSHA must specify the steps the employer should have taken to avoid the
citation, and demonstrate the feasibility and likely usefulness of those steps. A proposed
abatement may meet the usefulness test if it materially reduces or eliminates the hazard.24 To
meet this burden, OSHA may rely on the employer or industry practices. In response, an
employer may use evidence of its own abatement efforts or standard industry abatement methods
in demonstrating that it took all necessary precautions to prevent the occurrence of the violation.
OSHA must also show that the proposed measure of abatement is not cost prohibitive.
Specifically, OSHA must show that the abatement method would not threaten an employer’s
long-term profitability and competitiveness. While economic feasibility is a consideration, the
bar for establishing economic feasibility is relatively low. In fact, OSHA does not mention
economic feasibility in the FOM.
IV. OSHA’s Use (and Misuse) of the General Duty Clause
An assessment of liability under the General Duty Clause should include a review of your
incident history and employee complaints to identify serious hazards that do not appear to be
covered by a standard. Employers should also pay close attention to current OSHA initiatives,
emphasis programs, and proposed rules. For example, OSHA has issued a directive on workplace
violence in the healthcare industry, which it intends to enforce under the General Duty Clause. 25
In its March 2019 decision in Integra Health, the Review Commission upheld a citation
to an employer under the General Duty Clause after a community health worker was stabbed to
death by a client with a history of convictions for assault and battery during a visit to the client’s
home.26 In affirming the citation, the Review Commission found that intentionally violent acts
by third parties are not beyond the scope of the General Duty Clause and that workplace violence
is a “recognized hazard” where employees are working with individuals with known violent
behavior.27
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In Integra Health, the Review Commission determined that the employer recognized this
hazard because it adopted work rules addressing employee safety when dealing with dangerous
clients and due to threatening incidents that had previously been reported by employees when
dealing with clients. The Review Commission specifically found a “direct nexus between the
work being performed by Integra’s employees and the alleged risk of workplace violence.”
The Review Commission also found that OSHA need not prove with certainty how much
proposed abatement measures would materially reduce the incidence of a hazard so long as such
a reduction does occur. Included among the potential abatement measures in the citation that the
Review Commission did not disturb:
“Creat[ing] a stand-alone written Workplace Violence Prevention Program for all
the service programs” and a policy “that workplace violence will not be tolerated
and every incident will be investigated,” “[t]raining and education of all staff[,]”
[i]ncident reporting and investigation[,]” and “[a] system for reporting safety
concerns internally.”
“Determin[ing] the behavioral history of new/transferred [clients]” and
identifying clients “with assaultive behavior problems” and communicating that
information “to all potentially exposed employees,” and implementing a “system
for holding [clients] accountable for violent behavior through consequences or
interventions.”
“Put[ting] procedures in place that would communicate any incident of workplace
violence to all staff who could potentially be exposed to the member(s) involved
in the violent incident in a timely manner.”
“Training all employees on effective methods for responding during a workplace
violence incident,” including “recognizing aggressive behavior exhibited by
members or others,” and training on “techniques for timely de-escalating the
behavior.”
“Implement[ing] and maintain[ing] a buddy system as appropriate based on a
complete hazard assessment which includes procedures for all staff to request and
obtain double coverage when necessary, including but not limited to situations
where an employee communicates that he or she feels unsafe being alone with a
particular member.”
“Provid[ing] all staff with a reliable way to summon assistance when needed,”
including when an employee was with a client.
“Establish a liaison with law enforcement representatives.”
Although these proposed abatement measures were specific to the circumstances in Integra
Health, they provide some useful items for employers whose employees may be exposed to
violent customers or clientele to consider to avoid the potential for a citation.
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In addition to workplace violence, the following are examples of other hazards OSHA
often seeks to cite under the General Duty Clause:
Failing to wear a seat belt while operating a forklift
Excessive heat/heat stress
Combustible dust
Hazards from ergonomics
Rollover hazards while operating off-the-road motorized equipment (e.g., ATVs,
mowers)
Damaged racking systems
Exposure to air contaminants not covered by a standard
In recent years, OSHA has relied on the General Duty Clause to cite retail stores for
failing to take adequate measures to protect employees from “crowd surge” or “crowd
trampling” during events such as “Black Friday” sales. In April 2014, the D.C. Circuit upheld a
General Duty Clause citation issued to SeaWorld following the death of a whale trainer who was
pulled into the pool by a killer whale and ultimately drowned. One judge dissented, citing the
obvious dangers of many sporting events and entertainment shows. The majority opinion
addressed his argument, by stating, “No one has described SeaWorld’s killer whale performance
as a ‘sport,’ and a legal argument that the ‘sports industry’ should not be regulated by OSHA can
be raised when and if OSHA attempts to do so.”28
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ENDNOTES
1 29 U.S.C. 654(a)(2) 2 29 U.S.C. 654(a)(1). 3 See, e.g., Usery v. Marquette Cement Mfg. Co., 586 F.2d 902 (2d Cr. 1977); Daniel Int’l, Inc., 10 BNA OSHC
1556 (No. 78–4279, 1982). 4 Id. 5 UAW v. General Dynamics Land Sys. Div’n, 815 F.2d 1570 (D.C. Cir. 1987), cert. denied, 484 U.S 976 (1987). 6 Id. at 1577. 7 See FOM, CPL-02-00-160, 4-16 to 4-17. The FOM is a directive that describes OSHA’s policies and procedures
for conducting inspections and issuing citations. 8 OSHA Memorandum dated January 24, 2003, Enforcement Policy for Respiratory Hazards Not Covered by OSHA
Permissible Exposure Limits (citing General Dynamics). 9 Anthony Crane Rental, Inc. v. Reich, 70 F.3d 1298, 1305 (D.C. Cir. 1995); Simpson, Gumpertz & Heger, Inc., 15
BNA OSHC 1851, 1866 n.14 (No. 89–1300 1992), aff'd, 3 F.3d 1 (1st Cir. 1993); Frye's Tank Serv., Inc., 4 BNA
OSHC 1515, 1517 (Nos. 4447 & 4648, 1976), aff'd sub nom. Marshall v. Cities Serv. Oil Co., 577 F.2d 126 (10th
Cir. 1979); FOM at 4-11 to 4-12. ("The employees exposed to the Section 5(a)(1) hazard must be the employees of
the cited employer."). 10 See National Realty & Constr. Co., 489 2d 1257 (D.C. Cir. 1973). 11 Arcadian Corp., 20 BNA OSHC 2001, 2007 (No. 93-0628, 2004). 12 Pelron Corp., 12 BNA OSHC 1833, 1835 (No. NO. 82–388, 1986). 13 See e.g., Morrison-Knudsen Co./Yonkers Contracting Co., 16 BNA OSHC 1105, 1121-1122 (No. 88-572, 1993)
(“[t]he absence of protective clothing was not the hazard”). 14 See Kastalon, Inc., 12 BNA OSHC 1928, 1931 (Nos. 79–5543 & 79–3561, 1986). 15 Waldon Health Care Center, 16 BNA OSHC 1052, 1060 (No. 89–2804, 1993). See also Peacock Eng. Inc, 26
BNA OSHC 1588 (No. 11-2780, 2017) (citing Waldon). 16 See, e.g., Industrial Glass, 15 BNA OSHC 1594, 1597 (1992). 17 E.g., Titanium Metals Corp. v. Usery, 579 F.3d 536, 541 (9th Cir. 1978). 18 E.g., Kelly Springfield Tire Co. v. Donovan, 729 F.2d 317 (5th Cir. 1984), reh’g denied, 738 F.2d 437 (1984)
(finding industry recognition based on expert testimony); Acme Energy Svcs. dba Big Dog Drilling, 23 BNA OSHC
2121 (No. 08-0888, 2012), aff’d by, 542 Fed.Appx. 356 (5th Cir. 2013) (finding industry recognition based on oil
industry expert testimony). 19 See, e.g., OSHA’s Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers,
OSHA 3148-06R 2016. 20 Ed Taylor Constr. Co. v. OSHRC, 938 F.2d 1265, 1272 (11th Cir. 1991) (construction standard gave construction
industry notice of confined space hazard). 21 FOM at 4-14. 22 See, e.g., Beverly Enterprises, Inc., 19 BNA OSHC 1161 (Nos. 91-3144, 92-238, 92-819, 92-1257, 93-724, 2000). 23 FOM at 4-14. 24 See FMC Corp., 12 BNA OSHC 2008, 2009 (Nos. 83–488 and 83–489, 1986); Pelron, 12 BNA OSHC at
1936. 25 OSHA Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers, OSHA 3148-
06R 2016. 26 Integra Health Management, Inc., 2019 WL 1142920 (O.S.H.R.C. 2019). 27 Id. 28 SeaWorld of Florida, LLC v. Perez, 748 F.3d 1202, 1212 (D.C. Cir. 2014).
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John F. Martin, Moderator (Washington, D.C.)
Melissa A. Bailey (Washington, D.C.)
Michael D. McKnight (Raleigh)
OSHA’s Use and Misuse of the General Duty Clause: How to Avoid and Combat Citations
Workplace Safety Symposium December 4-6, 2019JW Marriott New Orleans
General Duty v. Special Duty Clause
• General Duty Clause: “[F]urnish 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”
• Special Duty Clause: “[C]omply with occupational safety and health standards and all rules, regulations, and orders issued” under the OSH Act that apply to the employer
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Workplace Safety Symposium December 4-6, 2019JW Marriott New Orleans
Elements of a GDC Violation
• Employee Exposure
• To a Hazard
• That is Recognized by the employer or its industry
• The hazard is “Causing or Likely to Cause”
• “Death or Serious Physical Harm”
• There is a Feasible and Useful (or Effective) Method of Correcting (Abating) the hazard
Workplace Safety Symposium December 4-6, 2019JW Marriott New Orleans
Uphill Battle for OSHA?
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Workplace Safety Symposium December 4-6, 2019JW Marriott New Orleans
Employee Exposure
• Liability under the General Duty Clause extends only to your own employees
• On a multi-employer work site, an employer may only be cited as an exposing employer
Workplace Safety Symposium December 4-6, 2019JW Marriott New Orleans
What is a Hazard?
• Not defined in OSH Act but FOM defines as: “A workplace condition or practice to which employees are exposed, creating the potential for death or serious physical harm to employees.”
• What does this really mean?
• Not defined by failure to implement certain precautions, corrective actions, or other abatement measures
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Workplace Safety Symposium December 4-6, 2019JW Marriott New Orleans
Hazard Recognition
• Employer recognizes the hazard; or
– Employer adopts work rules/provides training on the hazard
• Employer’s industry recognizes the hazard; or
– Industry/consensus standards, studies, manufacturer’s literature, expert statements
• “Common Sense Recognition”
• State and local laws and regulations?
Workplace Safety Symposium December 4-6, 2019JW Marriott New Orleans
What does “causing or likely to cause death or serious physical harm” mean?
• “If an accident/incident occurred, the likely result would be death or serious physical harm”
– The actual probability of an accident occurring is irrelevant
• Causation can be established by showing that “an actual death or serious injury resulted . . . immediately prior to the inspection or at other times and places.”
• What if there is no record of an accident or serious injury?
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Workplace Safety Symposium December 4-6, 2019JW Marriott New Orleans
Useful/Feasible Means of Abatement
• OSHA’s proposed method of abatement must be both “useful” and “feasible” – Is it capable of being put into effect?
– Will it eliminate or materially reduce the hazard?
• Is economic feasibility for individual employers a consideration? How much?
Workplace Safety Symposium December 4-6, 2019JW Marriott New Orleans
Use (and Misuse) of the GDC
• A majority of the OSHRC found that OSHA misused the GDC in a pair of February 2019 decisions involving a Waffle House franchisee and a roofing contractor
• In Mid South Waffles, the OSHRC “chunked” a GDC citation following a grease fire because OSHA failed to identify specific additional abatement steps employer should have taken
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Workplace Safety Symposium December 4-6, 2019JW Marriott New Orleans
Scattered and Smothered by the GDC?
• Employer had a work rule requiring grease pan to be cleaned once per shift
• Rule was followed but fire broke out on shift before pan was cleaned
• Work rule exceeded requirements of operator’s manual and industry standard
• Employer still cited under GDC
Workplace Safety Symposium December 4-6, 2019JW Marriott New Orleans
Heat Stress as a GDC Violation
• In Sturgill Roofing, a 60-year-old temporary employee with preexisting conditions, including congestive heart failure, died after his first day on a roofing job
• The temperature ranged from 72 to 82 degrees with relative humidity from 51 to 84 percent and a heat index of 85 shortly before the employee collapsed
• At hospital, core body temperature was 105.4 degrees
• Employee died three weeks later; coroner determined cause of death to be “complications” from heat stroke
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Workplace Safety Symposium December 4-6, 2019JW Marriott New Orleans
Heat Stress as a GDC Violation
• In a February 2019 decision, federal OSHA Review Commission vacated a GDC citation against the employer.
• No “hazard” because employee was not exposed to “excessive heat”– NWS Heat Index of “caution” not “significant risk of harm”
– Employer cited had no knowledge of employee’s pre-existing conditions
Workplace Safety Symposium December 4-6, 2019JW Marriott New Orleans
Heat Stress as a GDC Violation
• OSHA failed to prove a “feasible” means of abatement because the employer used an “acclimatization plan” that included “assigning new employees to the lightest, easiest jobs, and providing a flexible work schedule that allowed new employees to take as many informal breaks as they desired.”
• OSHA also did not show “what specific, additional steps—beyond those already implemented—Sturgill should have taken to acclimate employees.”
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Workplace Safety Symposium December 4-6, 2019JW Marriott New Orleans
Heat Stress as a GDC Violation
• Alternative abatement measures suggested by OSHA:– Requiring loose and reflective clothing
– A formal work/rest regimen
– Monitoring for signs of heat-related illness
– Guidelines for removal of symptomatic employees
Workplace Safety Symposium December 4-6, 2019JW Marriott New Orleans
GDC = “Gotcha”-Due to-“Catch All”?
• OSHRC: The GDC has “increasingly become more of a ‘gotcha’ and ‘catch all’ for the agency to utilize, which as a practical matter often leaves employers confused as to what is required of them.”
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Workplace Safety Symposium December 4-6, 2019JW Marriott New Orleans
• In Integra Health, a community health worker was stabbed to death by a client with a history of convictions for assault and battery during a visit to the client’s home.
• OSHA issued a GDC citation to the employer for exposing employees “to the hazard of being physically assaulted by [clients] with a history of violent assaults.”
Workplace Violence and the GDC
Workplace Safety Symposium December 4-6, 2019JW Marriott New Orleans
Workplace Violence and the GDC
• In a March 2019 decision affirming the citation, the OSHRC found:– Intentionally violent acts by third parties are not beyond the
scope of the GDC
– Workplace violence is a “recognized hazard” where employees are working with individuals with known violent behavior
– OSHA need not prove with certainty how much proposed abatement measures would materially reduce the incidence of a hazard
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Workplace Safety Symposium December 4-6, 2019JW Marriott New Orleans
So a key question is…
Workplace Safety Symposium December 4-6, 2019JW Marriott New Orleans
GDC Avoidance Tips
• Identify serious hazards not covered by specific standards– Review incidents/near misses that could result in
serious injury/illness
– Keep up with OSHA initiatives, emphasis areas, PELs, and industry trends and practices
– Investigate and communicate with employees about safety issues/complaints
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Workplace Safety Symposium December 4-6, 2019JW Marriott New Orleans
GDC Avoidance Tips
• But also need to identify serious hazards that may cause injury/illness even where specific standards do apply
• A DC appellate court has found that “if an employer knows that a specific standard will not protect his workers against a particular hazard, his duty under [the GDC] will not be discharged no matter how faithfully he observes that standard.”
Workplace Safety Symposium December 4-6, 2019JW Marriott New Orleans
GDC Avoidance Tips
• After identifying the hazard:– Review relevant manufacturer instructions
– Review relevant industry standards but do not ignore because “everyone does it this way”
– Consider other OSHA standards and applicable agency standards
– Do not conclude hazard is impossible to abate based on economic factors alone
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Workplace Safety Symposium December 4-6, 2019JW Marriott New Orleans
GDC Avoidance Tips
• Given the broad sweep of the GDC (and its likely future expansion), if management knows of a potential workplace hazard, consider whether there are feasible additional steps to address it even if:
– There is another law or regulation on point
– There are manufacturer/industry standards in place
– The hazard has not been addressed/cited by OSHA in the past
Workplace Safety Symposium December 4-6, 2019JW Marriott New Orleans
Combatting GDC Citations
• Consider pre-emption arguments– Other standards
– Other regulatory schemes
• Raise lack of “fair notice”/due process– Explain how the way the GDC has been
construed, no employer could be expected to know that its conduct violated it
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Workplace Safety Symposium December 4-6, 2019JW Marriott New Orleans
Combatting GDC Citations
• In cases involving multi-employer worksites, push back on citations where evidence of your employees being exposed to a hazard is weak
• Attack citations based on absence of particular abatement method masquerading as a “hazard”
• Rebut proposed method of abatement by showing existing safety procedures are as effective as abatement proposed by OSHA
Workplace Safety Symposium December 4-6, 2019JW Marriott New Orleans
Combatting GDC Citations
• Leverage the perception among OSHA’s lawyers that proving a GDC violation is a lot of work
• Exploit lack of solid evidence of employer or industry recognition of the hazard
• Ensure employer knowledge is demonstrated– No “eggshell” employees
– No “Rube Goldberg”-style theories of exposure
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John F. Martin, Moderator (Washington, D.C.)
Melissa A. Bailey (Washington, D.C.)
Michael D. McKnight (Raleigh)
OSHA’s Use and Misuse of the General Duty Clause: How to Avoid and Combat Citations
John F. MartinShareholder || Washington D.C.
John Martin focuses his practice on occupational safe� and health
compliance and litigation. He serves as national OSHA counsel for three
publicly-traded companies, and has over �� years of experience in
defending employers in federal court and before the Occupational Safe�
and Health Review Commission (OSHRC). John has defended clients in
�� states and counsels clients on developing safe� programs to
eliminate and reduce workplace injuries.
John also consults employers and industry groups on federal and state
safe� regulations and ongoing rulemaking and legislation. He has
represented clients in federal and state courts all across the country, up
to the Supreme Court of the United States.
John represents a wide varie� of employers from small family-owned
businesses to Fortune ��� companies, and in a wide range of industries,
including construction, oil and gas exploration, drilling, well servicing,
restaurants, door and window manufacturing, auto manufacturing,
health care, transportation, and retail.
Melissa A. BaileyShareholder || Washington D.C.
Melissa Bailey focuses her practice on occupational safe� and health
issues, and also serves on the Firm’s Board of Directors. She litigates
OSHA cases before federal and state agencies and courts, and also
represents employers during government inspections and
investigations. Her practice also includes providing compliance advice
and conducting privileged audits on complex workplace safe� issues.
Melissa represents employers in a wide range of industries, including
electric utilities, chemical manufacturing/refining, retail, food
processing, construction, and drug manufacturing. Melissa also
regularly represents clients before OSHA in connection with
rulemaking and policy formation. She has testified before Congress
regarding OSHA issues, and has advocated for management interests
with regard to OSHA enforcement and compliance policies.
Melissa has practiced occupational safe� and health law for over ��
years and, as a result, she understands the legal issues as well as the
practical issues confronting employers. She routinely assesses both the
current and future liabili� that may result from significant OSHA
citations, and identifies the most e�ective approach – whether that is a
strategic se�lement or litigation – in each case.
Melissa also represents clients in whistleblower ma�ers under a broad
range of statutes, including the Occupational Safe� and Health Act, the
Surface Transportation Assistance Act, the Toxic Substances Control
Act and the Clean Air Act. Her experience ranges from conducting
investigations and developing position statements to litigating
whistleblower cases before Administrative Law Judges and in court.
Melissa is an active speaker on OSHA and whistleblower issues. She
speaks to trade association members and clients regarding a varie� of
OSHA issues, including strategies to use during an OSHA inspection to
minimize liabili�, conducting privileged audits and accident
investigations, and the impact of OSHA’s regulatory and enforcement
agenda on particular industries. Melissa is also the Employer Co-
Chairperson of the American Bar Association Occupational Safe� and
Health Commi�ee.
Michael D. McKnightShareholder || Raleigh
Michael McKnight provides counsel to and represents employers in all
�pes of labor and employment ma�ers. In addition to representing
employers in courts and arbitration proceedings, Michael has extensive
experience as an advocate for employers in administrative agency
proceedings, investigations, and audits before state and federal Equal
Employment Opportuni�, Occupational Safe� and Health, and Wage
and Hour enforcement agencies. He routinely advises employers in
investigating and responding to workplace accidents, injuries, and
fatalities.
Michael regularly works with employers in the agriculture, automotive,
construction, healthcare, hospitali�, manufacturing, retail, technology,
transportation, and utilities industries. He also represents and advises
non-profit organizations, schools, and governmental agencies and
o�cials on ma�ers involving civil rights and campaign finance laws and
state and federal constitutional requirements.
Michael enjoys working with clients to find innovative, practical, and
cost-e�ective solutions to litigation and workplace issues and
partnering with clients to take proactive steps to avoid costly and time-
consuming legal problems.