OSHA’s General Duty Clause: What Every Employer Needs to Know

And What It Means to Be a “Hazardology” Student

"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."—29 U.S.C. § 654, 5(a)

Imagine OSHA’s standards as a toolbox full of tools meant to address workplace hazards. It’s a large collection with specialized tools to work with such well-known issues as scaffolding, safety signs and labels, arc flash, and hazardous materials—the equivalent of OSHA’s socket wrenches, screwdrivers, saws, and drill bits. But as every handyman knows, a set of pliers is the most versatile tool in the box.

OSHA’s set of pliers is the General Duty Clause (29 U.S.C. § 654). And just like a set of pliers, the General Duty Clause (GDC) can be used to do the job where other tools don’t quite fit. For the GDC to be invoked in a citation, the following must all be true:

• There must be a hazard.
• The hazard must be recognized.
• The hazard causes or is likely to cause serious harm or death.
• The hazard must be correctable.

Those criteria cover almost every hazard you can think of, although most hazards are already covered by specific OSHA standards. In OSHA’s reasoning, if there’s a correctable, recognized hazard and only if there’s not a specific code addressing the hazard, then it’s time to get the pliers.

Recognition Is Key

The phrase that most industry-watchers pay attention to in the General Duty Clause is “recognized hazard.” What is a recognized hazard, and what is not?

First, let’s look at what’s notrecognized. OSHA considers terrorist attacks non-recognizable. A large sinkhole that suddently enveloped part or all of a building without any warning might be considered non-recognizable. Hazards that are commonly recognized in one industry (e.g., the chemical manufacturing industry), that are unheard of in another (e.g., a retail clothing store) might be considered not recognized at the clothing store.

Your Hazards Are All Recognizable

… for practical purposes, anyway. OSHA’s communication over the past few years has stressed hazard awareness, and the agency has published information aimed at helping employers predict or recognize hazards, such as combustible dust or increased exposure levels certain chemicals.

According to OSHA, the following are indicators that your company has recognition of a hazard:

• Written or oral statements made by management or employees during or before an OSHA inspection
• Any written documentation acknowledging the existence of a specific hazard
• Prior inspections or citations related to the hazard
• Employee complaints about the hazard
• Actions taken to address the hazard, if those actions failed to adequately abate the hazard

In addition, OSHA considers recognizable any hazard that has been recognized within the employer’s industry, or governed by that industry’s standards. In essence, OSHA is saying that if others in your industry know about the hazard, then it’s your job to know about it, too.

Some indicators of industry recognition include:

• Studies about the hazard published by industry, union, insurance, or government groups
• Published standards within the industry pertaining to the hazard

Dumping Bricks off the Roof? Really?

In addition, OSHA applies a “common sense” metric to whether or not a hazard is recognizable under the GDC. The agency’s revised Field Operator’s Manual (2009) specifies this form of recognition only in “flagrant or obvious cases,” such as using an unenclosed chute to dump bricks 26 feet down to an alleyway where unwarned employees are working. 

Sounds good, right? It is. The more hazards can be recognized and measures taken to reduce them, the fewer the workplace injuries.

The Flipside of Hazard Recognition

Since practically any hazard your employees face is considered “recognized,” it should be apparent that you need to be a student of “hazardology”—the study of all the hazards possible within your industry and your facility. Otherwise you may be endangering your employees with hazards that run afoul of the General Duty Clause.

Become a Hazardology Expert

Here are some ways to bone up on your hazardology: 

• Get a tutor: Try bringing in a safety consultant or industrial hygienist to do a safety inspection. By asking questions and addressing the findings, you will increase your expertise substantially. Your workers’ comp insurer may be able to send one of their own experts.
• Talk to the professor: OSHA’s Consultation Program—completely separate from its enforcement program, will send an OSHA-approved consultant to your business for a safety consultation, no citations issued. Geared toward businesses of 250 employees or fewer at a single site, or less than 500 company-wide, the program offers no-cost safety consultation with the main stipulation being that you must address the hazards. You can also qualify for the coveted Safety and Health Achievement Recognition Program (SHARP).
• Do your homework: Subscribing to (and actually reading!) industry publications will shed light on what other businesses in your industry are dealing with.
• Research the codes: Not just OSHA codes, but NFPA, ASME, ANSI, and others as they relate to your business.
• Listen to your employees: Your “boots on the ground” workers often know better than anyone the hazards they face. Do everything possible to ensure open lines of communication, never allowing an employee to suffer negative consequences when reporting a hazard—even a big one that would be costly to remedy.

Originally published here: http://www.duralabel.com/duranews/2013/apr/oshas-general-duty-clause-what-every-employer-needs-know