Is the recent court decision regarding OSHA’s citations against SeaWorld in the death of a killer whale trainer so specific that it doesn’t impact other types of businesses? Or could it point to OSHA’s ability to fine companies in cases of human workplace violence?
A post on a law blog raises the question.
Recently, the U.S. Court of Appeals for the District of Columbia ruled that SeaWorld violated OSHA’s General Duty Clause (GDC) by failing to protect its employees from recognized hazards of working in close proximity to killer whales.
OSHA uses the GDC when it doesn’t have a specific regulation covering an industry or particular workplace incident. The cover-all reg requires employers to “furnish 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.”
Among the requirements for OSHA to use the GDC: Either the employer or the industry must recognize the condition or activity as a hazard.
SeaWorld argued working with killer whales wasn’t a recognized hazard.
The theme park said all whales behave differently and its safety program controlled the risk.
SeaWorld made its argument using a previous ruling regarding workplace violence. In that case, non-employees were the violent individuals. A judge stated “the problem with predicting workplace violence is the unpredictability of human behavior.”
In the initial court ruling for the SeaWorld case, an administrative law judge (ALJ) of the Occupational Safety and Health Review Commission stated:
“The killer whales are in the continual custody of the employer. By their nature as aquatic animals the killer whales are confined to the pools, an environment over which SeaWorld can control access.”
In a post on the law blog environmentalsafetyupdate.com, Meagan Newman and Kerry Mohan of the Seyfarth Shaw law firm note in the SeaWorld court decisions, both the ALJ and the federal appeals court “emphasize the prior instances of threats or violent acts” committed previously by the captive killer whales. “These prior acts are then used to reach the ultimate conclusion that all whales — or at least killer whales — pose a recognized hazard to employees,” Newman and Mohan write.
So which industries might be affected by these rulings, and in what way? The blog post concludes:
- Healthcare facilities should take note. This reasoning could be extended to how patients receiving mental health services or other treatment pose a potential workplace violence threat to healthcare employees. There are plenty of prior cases of workplace violence suffered by healthcare workers at the hands of patients to show this is a recognized hazard.
- The authors state, “All employers should consider the risk of violence posed in their workplaces.”
- “For employers whose operations include the use, handling or training of animals, the SeaWorld decision is not just a cautionary tale. Close contact with animals may be deemed a recognized hazard,” and
- What about other entertainment industries? Will OSHA determine that the risks faced, for example, by professional football players and NASCAR drivers are recognized and not properly controlled by owners? Newman and Mohan note that the appeals court addresses this issue in its opinion and rejects the notion.
What should OSHA’s role be in cases of workplace violence? And does it matter if that violence is created by humans or captive animals? Let us know what you think in the comments.
