Enforcement and Inspection

Know Your ‘Recognized Hazards’—Don’t Get Caught Off Guard!

Every employer knows the importance of complying with the Occupational Safety and Health Administration’s (OSHA) regulations that apply to conditions specific to their workplace. Of course, you, as the employer, would like to think that your efforts and expenses in complying will help you avoid a fine for violating an OSHA rule.

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However, the Agency requires more of employers than just compliance with the specific standards that apply to your facility. Although such compliance is necessary, it may not be enough. You’ve probably heard of OSHA’s General Duty Clause (GDC). Well, this little section of the Occupational Safety and Health Act (OSH Act) of 1970 imposes additional obligations on you.

In this article, we’ll discuss some interesting cases that resulted in a GDC citation, and also recent trends in the Agency’s use of the GDC.

Found at Section 5(a)(1) of the OSH Act, the GDC 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.”

Since the GDC doesn’t identify specific hazards, OSHA can use it in many ways. It probably sounds a bit intimidating because the clause itself is vague, but OSHA cannot just indiscriminately use it for any hazard it finds.

In order to cite you:

  1. The Agency must prove that a hazard that poses a threat to the health and safety of employees exists.
  2. It must prove the hazard is recognized by you or your industry.
  3. OSHA must prove the hazard is causing or is likely to cause death or serious physical harm; something in the workplace that’s merely unpleasant, distasteful, or annoying doesn’t qualify as an OSHA hazard.
  4. Finally, OSHA must prove there was a feasible and useful method to correct the hazard. The hazard must be correctable. To cite you for failing to address a hazard, OSHA must be able to show that there was something you could have reasonably done about the hazard to correct it.

GDC Citations

Let’s take a look at some of OSHA’s GDC citations.

A fiberglass manufacturer was cited for a GDC violation for exposing workers to excessive levels of styrene. The employer had not exceeded the existing permissible exposure limit (PEL) for styrene, but the levels were above the National Institute for Occupational Safety & Health (NIOSH) recommended exposure limit (REL).

OSHA has done an end-run around formal rulemaking—in part by claiming that its alliance with the employer’s industry and its recognition of the NIOSH RELs made the manufacturer fair game for heightened enforcement even while being technically compliant with the OSHA rule. OSHA has justified its action by responding that workers were getting sick from styrene exposure at the legal limits. And if the “employer knows” the standard is inadequate, it has a responsibility to protect workers.

Many in industry wonder if this means it will be open season for enforcement of RELS  over OSHA’s 40-year-old PELs. Stay tuned!

In another case, a tree trimming company was cited under the GDC following the death of a worker who was struck by a train while walking on the tracks to the worksite.

According to reports, the worker was caught on a trestle and couldn’t get off the tracks before the train struck and killed him.

There are no specific rules for walking across railroad tracks, so the company received a serious violation of the GDC for not furnishing a place of employment free of a recognized hazard. According to OSHA, the hazard in this case was the possibility of being struck by a train to access the work area.

The Agency went further and said that a feasible method to eliminate this recognized hazard is for the tree trimming company to coordinate permission with the railroad authorities to be on railroad property.

The owners of a gas station and convenience store with a history of theft, armed robberies, and fights was cited with a serious violation of the GDC after the shooting death of a clerk at the store.

According to OSHA, the history of violence created a “recognized hazard” that the employer had the obligation to eliminate or reduce. The Agency considered the employer’s failure to protect workers from exposure to violence to be willful.

The Agency stated that even though the owners were “well aware” of the location’s violent history, they did nothing to implement safety measures.

Workplace Violence

This last case—workplace violence—is a growing hazard in U.S. workplaces. You can anticipate some hazards that might result in a violation of the GDC by looking at emerging issues such as workplace violence.

About 18 percent of violent crimes are committed in the workplace, and about 10 percent of the 4,836 workplace fatalities that occurred in the workplace in 2015 were homicides, according to data from the Bureau of Labor Statistics.

OSHA has focused on enforcement in two industry sectors because of the high risk of workplace violence: retail and health care. Employers can also expect states with prevention program requirements to use those as a basis for potential citations for failing to adequately address workplace violence risks.

Ergonomics

Since Congress overruled OSHA’s ergonomic hazards rule, the Agency has been using the GDC to cite employers that expose their workers to ergonomic hazards, which leaves many employers confused as to how OSHA applies this broadly-worded rule for ergonomic hazards.

Workers in many different industries and occupations can be exposed to ergonomic hazards. Risk factors at work include lifting heavy items, bending, reaching overhead, pushing and pulling heavy loads, working in awkward body postures, and performing the same or similar tasks repetitively. Exposure to these known risk factors for musculoskeletal disorders increases a worker’s risk of injury and an employer’s risk of citation.

Since OSHA has made it clear that it will use the GDC, all employers—but specifically those in high-risk industries, such as construction, food processing, firefighting, office jobs, health care, transportation and warehousing—should consider implementing an ergonomic program.

Distracted Driving

Another area OSHA has expanded its use of the GDC is distracted driving. Employers are in violation of the GDC if, by policy or practice, they require texting while driving or create incentives that encourage it or they structure work so that texting is a practical necessity for workers to carry out their jobs.

You can most effectively protect yourself from this enforcement effort by implementing and enforcing strong policies against the practice of texting while driving. Employees should be required to sign a policy explicitly stating they agree not to text while driving during work time, either as part of an employee handbook or when they receive any company-issued cell phone or texting device.

Avoid an OSHA Citation

In order to avoid an OSHA citation (and more importantly, an employee injury), you must be vigilant. You should consider the following recommendations:

  • Review the manufacturer’s manuals to identify specific safety or hazard warnings and incorporate them into employee safety policies and procedures.
  • Review industry consensus safety standards applicable to your industry, and identify safety recommendations to be incorporated into your safety policies and procedures.
  • Once the policies and procedures are developed, conduct employee training, with documentation, and enforce compliance with discipline up to and including termination, again with documentation.

The GDC takes your responsibilities beyond compliance with OSHA standards. It is important that you be attentive to obvious and recognized hazards in your workplace that can be abated. Don’t be off guard during an OSHA visit.

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