Author Topic: OSHA's Burden of Proof for Enforcement of the General Duty Clause  (Read 92 times)


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OSHA's Burden of Proof for Enforcement of the General Duty Clause
« on: September 08, 2017, 10:08:58 AM »
      After writing my last blog, entitled Do Informed Consent & Release From Liability Forms Protect Employers & Employees (which can be found here:, someone asked me:

      Jason, how does OSHA go about enforcing something like that? If employers aren't required to know a hazard exists, I mean, how are we supposed to know every standard out there?  Surely, everyone is missing something.  What protects us?

      A good question, and one that gets into the established burden of proof the Secretary of Labor (Secretary) must provide the courts in order to enforce the General Duty Clause (Section 5(a)(1) of the Occupational Safety and Health Act, also known as The Act).  But, before I get into that, why don't I share with you Section 5 of The Act, first:

      SEC. 5. Duties

      (a) Each employer --

      (1) 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) shall comply with occupational safety and health standards promulgated under this Act.

      Firstly, the General Duty Clause is no applicable "if a standard specifically addresses the hazard cited."  (Active Oil Service, Inc., 21 OSH Cas. (BNA) 1184, 1185 (OSHRC 2005))  As it was put in the legislative history of this Clause:

      The general duty clause in this bill would not be a general substitute for reliance on standards, but would simply enable the Secretary to insure the protection of employees who are working under special circumstances for which no standard has yet been adopted."
      (S. Rep. No. 91-1282, at 10 (1970)

      So, what about when there are such standards (e.g., ASHRAE, IICRC and NADCA) out there?

      Through the judicial system and the Occupational Safety and Health Review Commission (OSHRC) there has been laid out the Secretary's burden of proof under this Clause.  These include but are not necessarily limited to:

      (1) a workplace condition presented a hazard
      (2) the employer or its industry recognized the hazard
      (3) the hazard was likely to cause serious harm to one's health and/or safety
      (4) there was a feasible and useful means of abatement that would eliminate or materially reduce the hazard (Only one of the proposed abatement measures need ultimately be proven to be feasible.)

      Although I'll reference Active Oil Service, Inc., 21 OSH Cas. (BNA) at 1186, the criteria were originally set down in the 1973 case involving the workplace death of an employee riding on a the running board of a loader, known as the National Realty case (National Realty, 489 F.2d at 1265).  In the National Realty case the D.C. Circuit reversed a decision by OSHRC stating the company had committed a "serious violation" of the Clause.  The court ruled that Congress, in passing the General Duty Clause, did not intend for it to impose strict liability on employers; instead, the employer is obligated only to protect employees from "preventable hazards".  The court found that a specific equipment riding does not qualified as "recognized" or "preventable" under the Clause.
      If you've kept up with my blogs in the past, you've probably noticed I've mentioned workplace behaviors.  This is something every business has to organize and provide for, so they may mitigate the negative behaviors that lead to workplace incidents, illnesses, etc.  Employees, as you can read above, are not exempt from responsibility, though.  In fact, Section 105(b), 29 U.S.C. 654(b) places a duty upon the employees to: "comply with occupational safety and health standards and all rules, regulations and orders issued in pursuant of this Act which are applicable to his own actions and conduct."

      All of that said, in demonstrating a violation of the Clause, "the Secretary must define the alleged recognized hazard in a manner that gives the employer fair notice of its obligations under the Act by specifying conditions or practices which are within the employer's control."  (Beverly Enterprises, Inc., 19 OSH Cas. (BNA) 1161, 1168 (OSHRC 2000))

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      Jason Yost, BS Occupational Safety & Health
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      OSHA's Burden of Proof for Enforcement of the General Duty Clause
      « on: September 08, 2017, 10:08:58 AM »