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General Duty Clause (THE OSH ACT 5a(1))
The General Duty Clause, found in the Occupational Safety and Health Act of 1970, has become increasingly important to employers
in the last few years as OSHA has begun to utilize the clause in more and more of its penalty and enforcement actions. The
discussion below describes the General Duty Clause and how it is being used by OSHA to ensure a safe work environment.
Section 5(a)(1) of the Occupational Safety and Health Act of 1970 requires that every workingman and woman must be provided with
a safe and healthful workplace. The section, more commonly known as the General Duty Clause, specifically states:
"Each employer shall furnish to each of his employees employment and a place of employment which is free from recognized
hazards that are causing or are likely to cause death or serious physical harm to his employees."
In simple terms, this statement means that you, as an employer, may be obligated to protect your employees from recognized
hazards in the workplace even if there is not an OSHA standard, which applies to the situation, or if hazards still exist after
compliance with a standard. In effect, the General Duty Clause obligates employers to take additional steps toward safety if the well
being of employees is in jeopardy.
How Does OSHA Use the General Duty Clause?
The General Duty Clause extends OSHA's authority beyond the specific requirements of the OSHA standards when a recognized
workplace hazard exists or potentially exists. In 1990-1991 alone, the General Duty Clause was used as the basis for over 2,232
OSHA citations. Over $500,000 in penalties were collected as a result of these citations. Only nine other sections of the OSHA
standards (Parts 1910 and 1926) are cited more frequently as the basis for OSHA violations than Section 5(a)(1). The General Duty
Clause is often used by OSHA when there is no specific standard that applies to a recognized hazard in the workplace. OSHA may
also use the General Duty Clause when a standard exists, but it is clear that the hazards involved warrant additional precautions
beyond what the current safety standards require.
OSHA's recent action on ergonomic hazards in the workplace is a good example of the application of the General Duty Clause in
situations where a standard does not currently exist. There are no standards governing job or workstation design to reduce or
prevent cumulative trauma disorders or other injuries. However, OSHA has widely applied the General Duty Clause to address
ergonomic hazards in the workplace. Typically in these situations, OSHA will discover ergonomic-related problems while reviewing a
company's accident and injury records. The highly publicized citations issued to several meat-packing plants for cumulative trauma
disorders are an example of the use of the General Duty Clause to correct ergonomic hazards. The action in this area eventually led
to the issuance of ergonomic guidelines for the meat-packing industry and consideration of a standard for the general industry.
OSHA has also issued General Duty Clause citations on other issues where no apparent safety standard exists. Citations have
been issued for lack of training, failure to have additional safety or alarm equipment to detect or warn of chemical leaks, and failure to
provide safe locations or safe access to valves or other instruments necessary to an employee's job.
What about situations where a safety standard currently exists on a particular subject? Are you doing enough if you are in compliance
with OSHA's safety standard? The answer, unfortunately, is maybe not. OSHA has also used the General Duty Clause to cite
employers who knew that an OSHA standard was inadequate to protect their employees from harm.
At least one Circuit Court decision (International Union UAW v. General Dynamics, 815 F.2d 1570, D.C. Cir. 1987) has validated
OSHA's use of the General Duty Clause in this manner. In this situation, after several injuries and eventually a death involving the
use of freon in confined spaces, OSHA cited General Dynamics under the General Duty Clause for not having a confined space
procedure in situations where an employee could be asphyxiated or chemically poisoned by the cleaning compound (freon) being
used. General Dynamics appealed the citation to the Occupational Safety and Health Review Commission that ruled in favor of the
company noting that since there was a specific OSHA exposure standard for freon (eight-hour time-weighted average), OSHA could
not cite the company under the General Duty Clause. The Commission's decision was then reviewed by the Circuit Court of the
District of Columbia that decided in favor of OSHA.
The court stated 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 standards 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.
Conclusion:
Section 5(a)(1) of the Occupational Safety and Health Act of 1970 places additional responsibilities on the employer and the safety
manager to ensure that a safe work environment is provided to all employees. The General Duty Clause is being increasingly
applied to a wide variety of situations, many of which have not been addressed by a specific OSHA standard. What may be even
more disconcerting, however, is that general duty citations can also be issued if OSHA feels that additional safety equipment or
procedures are necessary beyond what is required in an OSHA standard. Thus, the General Duty Clause is making it increasingly
difficult for companies to fully comply with OSHA's requirements.
One way to deal with the increasing threat of general duty violations is to make good faith efforts to correct existing workplace
hazards and to identify and address new hazards as they appear. Some steps you can take to accomplish this goal include:
Regularly review your accident and injury records to identify injury patterns or areas for concern;
• Investigate every accident or injury in the workplace to determine the specific cause and to determine whether any
action needs to be taken to prevent the accident or injury from recurring;
• Conduct job hazard analyses on a regular basis in order to identify the specific hazards associated with every job and
to identify new job hazards;
• Document your training efforts and conduct periodic retraining as necessary;
• Consider establishing an employee safety committee in the workplace; and
• When you have met the "letter of the law," step back, and critically assess whether the process might still be unsafe.
The General Duty Clause, found in the Occupational Safety and Health Act of 1970, has become increasingly important to employers
in the last few years as OSHA has begun to utilize the clause in more and more of its penalty and enforcement actions. The
discussion below describes the General Duty Clause and how it is being used by OSHA to ensure a safe work environment.
Section 5(a)(1) of the Occupational Safety and Health Act of 1970 requires that every workingman and woman must be provided with
a safe and healthful workplace. The section, more commonly known as the General Duty Clause, specifically states:
"Each employer shall furnish to each of his employees employment and a place of employment which is free from recognized
hazards that are causing or are likely to cause death or serious physical harm to his employees."
In simple terms, this statement means that you, as an employer, may be obligated to protect your employees from recognized
hazards in the workplace even if there is not an OSHA standard, which applies to the situation, or if hazards still exist after
compliance with a standard. In effect, the General Duty Clause obligates employers to take additional steps toward safety if the well
being of employees is in jeopardy.
How Does OSHA Use the General Duty Clause?
The General Duty Clause extends OSHA's authority beyond the specific requirements of the OSHA standards when a recognized
workplace hazard exists or potentially exists. In 1990-1991 alone, the General Duty Clause was used as the basis for over 2,232
OSHA citations. Over $500,000 in penalties were collected as a result of these citations. Only nine other sections of the OSHA
standards (Parts 1910 and 1926) are cited more frequently as the basis for OSHA violations than Section 5(a)(1). The General Duty
Clause is often used by OSHA when there is no specific standard that applies to a recognized hazard in the workplace. OSHA may
also use the General Duty Clause when a standard exists, but it is clear that the hazards involved warrant additional precautions
beyond what the current safety standards require.
OSHA's recent action on ergonomic hazards in the workplace is a good example of the application of the General Duty Clause in
situations where a standard does not currently exist. There are no standards governing job or workstation design to reduce or
prevent cumulative trauma disorders or other injuries. However, OSHA has widely applied the General Duty Clause to address
ergonomic hazards in the workplace. Typically in these situations, OSHA will discover ergonomic-related problems while reviewing a
company's accident and injury records. The highly publicized citations issued to several meat-packing plants for cumulative trauma
disorders are an example of the use of the General Duty Clause to correct ergonomic hazards. The action in this area eventually led
to the issuance of ergonomic guidelines for the meat-packing industry and consideration of a standard for the general industry.
OSHA has also issued General Duty Clause citations on other issues where no apparent safety standard exists. Citations have
been issued for lack of training, failure to have additional safety or alarm equipment to detect or warn of chemical leaks, and failure to
provide safe locations or safe access to valves or other instruments necessary to an employee's job.
What about situations where a safety standard currently exists on a particular subject? Are you doing enough if you are in compliance
with OSHA's safety standard? The answer, unfortunately, is maybe not. OSHA has also used the General Duty Clause to cite
employers who knew that an OSHA standard was inadequate to protect their employees from harm.
At least one Circuit Court decision (International Union UAW v. General Dynamics, 815 F.2d 1570, D.C. Cir. 1987) has validated
OSHA's use of the General Duty Clause in this manner. In this situation, after several injuries and eventually a death involving the
use of freon in confined spaces, OSHA cited General Dynamics under the General Duty Clause for not having a confined space
procedure in situations where an employee could be asphyxiated or chemically poisoned by the cleaning compound (freon) being
used. General Dynamics appealed the citation to the Occupational Safety and Health Review Commission that ruled in favor of the
company noting that since there was a specific OSHA exposure standard for freon (eight-hour time-weighted average), OSHA could
not cite the company under the General Duty Clause. The Commission's decision was then reviewed by the Circuit Court of the
District of Columbia that decided in favor of OSHA.
The court stated 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 standards 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.
Conclusion:
Section 5(a)(1) of the Occupational Safety and Health Act of 1970 places additional responsibilities on the employer and the safety
manager to ensure that a safe work environment is provided to all employees. The General Duty Clause is being increasingly
applied to a wide variety of situations, many of which have not been addressed by a specific OSHA standard. What may be even
more disconcerting, however, is that general duty citations can also be issued if OSHA feels that additional safety equipment or
procedures are necessary beyond what is required in an OSHA standard. Thus, the General Duty Clause is making it increasingly
difficult for companies to fully comply with OSHA's requirements.
One way to deal with the increasing threat of general duty violations is to make good faith efforts to correct existing workplace
hazards and to identify and address new hazards as they appear. Some steps you can take to accomplish this goal include:
Regularly review your accident and injury records to identify injury patterns or areas for concern;
• Investigate every accident or injury in the workplace to determine the specific cause and to determine whether any
action needs to be taken to prevent the accident or injury from recurring;
• Conduct job hazard analyses on a regular basis in order to identify the specific hazards associated with every job and
to identify new job hazards;
• Document your training efforts and conduct periodic retraining as necessary;
• Consider establishing an employee safety committee in the workplace; and
• When you have met the "letter of the law," step back, and critically assess whether the process might still be unsafe.
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| This page was last updated: March 30, 2009 |