Sponsored Content from Zywave. This article originally ran in the October 2018 print issue of Connections, “The Innovation Issue.”

Even when no specific standard applies to a workplace hazard, OSHA can still penalize employers for safety violations through a provision that’s commonly known as the general duty clause. And, since this provision can be used as a catch-all mechanism, employers in all industries need to keep it in mind to avoid costly OSHA penalties.

Over the past five years, OSHA has issued an average of 1,330 general duty violation citations per year. This is a trend that, as of July, seems consistent for 2018. These citations can account for a variety of workplace hazards, including:

• Requiring workers to stand for long periods of time without adequate support
• Exposing workers to cold after a slip, trip, fall or other injury
• Failing to implement hazard communication standards

General Duty Requirements

Although the general duty clause covers a variety of issues, OSHA still must follow established guidelines to enforce the provision. In general, OSHA and the courts have established that employers violate the general duty clause if all of these conditions are met:

1. Employers recognized a hazard
2. The hazard caused or was likely to cause death or serious physical harm
3. There was a practical and useful method to correct the hazard
4. Employers failed to address the hazard, regardless of the above points

Hazard Recognition

Common workplace hazards can be established by individual employers, industry-specific practices or through good sense and sound judgment.

Employer Recognition

To establish employer recognition, there must be evidence that an employer knows or is aware of hazardous conditions or practices. Hazards documented or specifically identified in any of the following may be used as evidence of employer recognition:

• Written or verbal statements made by management or supervisors (including internal memos)
• Operation manuals, safety work rules and standard operating procedures
• Prior incidents, accidents and “near miss” reports
• Injury and illness reports and workers’ compensation data
• Prior OSHA inspections
• Grievances or safety committee reports
• Frequent employee complaints (complaints cannot be offhand comments)
• Employer-initiated corrective actions (regardless of whether the employer adequately continued or maintained the corrective action or whether the corrective action provided adequate protection to the employees)

Industry Recognition

For an industry to recognize a hazard, evidence needs to show that the employer’s industry is commonly aware of the hazard in question. Recognition by another industry isn’t sufficient to establish recognition.

OSHA may consider the following as evidence that an industry has recognized a hazard:

• The opinion or publication of safety or health experts who are familiar with the conditions relevant to the hazard in question (regardless of whether they work in the employer’s industry)
• Methods and best practices implemented throughout the industry to reduce or eliminate the hazard
• Warnings published by machine and equipment manufacturers
• Statistical or empirical studies conducted by the industry
• Government and insurance industry studies (the employer or the industry must be familiar with the studies and recognize their validity)
• State or local laws
• Industry participation in drafting national consensus standards

Common Sense Recognition

Common sense recognition can be established only if employer and industry recognition isn’t applicable — and even then only in flagrant or obvious cases.

Also, a hazard must be obvious enough for a reasonable person to recognize it.

General Duty Enforcement

OSHA can only enforce the general duty provision when no hazard-specific standard applies. This may include situations that are inherently dangerous, such as fire brigades, emergency rescue operations and confined space entry.

However, OSHA can’t use the general duty clause to overrule another existing OSHA standard. In addition, citations under the clause are limited to incidents that can be classified as “willful” or “repeated” violations if these incidents would otherwise qualify as “serious” violations. OSHA doesn’t use the general duty clause to issue other-than-serious citations.

Identifying Latent Hazards

To avoid general duty clause citations, employers must first examine latent or unspecified safety hazards. Some commonly used methods for discovering these hazards include reports from safety committees, near-miss incidents, training records and conversations with employees. Additional information may also be uncovered while investigating incident reports or correcting other hazards.

Possible Defenses

If you receive a general duty clause citation, remember you have the option to challenge the citation. Successful defenses in these situations often prove that:

• The hazard is identified in a specified OSHA standard and that it does not rise to the risk level identified in the hazard;
• Implementing safeguards against the hazard is economically or technically not feasible; or
• The hazard was caused by unforeseeable employee misconduct.

Employers should consider involving a licensed legal professional in these cases. By taking the time to address and reduce unspecified safety hazards, your organization can avoid OSHA citations and protect your bottom line.