What is the General Duty Clause, how is it related to an employer’s responsibility for occupational safety and health, and how might an OSHA inspector cite an employer for violating the clause? Here’s a step-by-step breakdown.
Section 5 of the Occupational Safety and Health Act lists responsibilities or duties of employers and employees for occupational safety and health.
Section 5(a) covers the duties of the employer, while Section 5(b) covers the duties of the employee.
In 5(a), the Act lists two responsibilities for the employer. According to 5(a), the 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.
It’s 5(a)(1) that’s often referred to as the “General Duty Clause,” and that’s typically interpreted to mean that if an occupational hazard isn’t covered in a specific occupational health and safety standard–as explained in 5(a)(2)–then the employer still has a general duty to “furnish…each…employee 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…”
During an OSHA inspection, the inspector will walk-around the work area and look for hazards.
If the hazard violates a specific OSHA standard (like, for example, there are hazardous chemicals that are not labeled as required by the Hazard Communication standard), the inspector will cite the employer for violating that standard.
However, if there’s a hazard that’s not specifically covered by a standard, the inspector can cite the employer for violating 5(a)(1), the General Duty Clause.
According to this OSHA Letter of Interpretation (LI), general duty provisions are used in inspections:
…only where there are no specific standards applicable to the particular hazard involved; 29 CFR 1910.5(f) expressly provides that an employer who is in compliance with a specific standard shall be deemed to be in compliance with the general duty clause insofar as it applies to hazards covered by the specific standard.
Any recognized hazard created in part by a condition not covered by a standard may be cited under the general duty clause. A hazard is recognized if it is a condition that is (a) of a common knowledge or general recognition in the particular industry in which it occurred, and (b) detectable (1) by means of the senses (sight, smell, touch, and hearing), or (2) is such wide, general recognition as a hazard in the industry that even if it is not detectable by means of the senses, there are generally known and accepted tests for its existence which should are generally known to the employer. In addition, “Voluntary Standards” also meet the preceding criteria for identifying a hazard.
Because of the virtually equivalent language used in Sections 17(k) and 5(a)(1) of the Act, in describing serious and general duty clause violations, respectively, a nonserious citation is not issued for violations based on the general duty clause. Citations based on the general duty clause are limited to alleged serious violations (including willful and/or repeated violations which would otherwise qualify as serious violations, except for their willful or repeated nature).
For further clarification, this OSHA Letter of Interpretation says the following elements are necessary to prove a violation of the General Duty Clause:
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