In cases in which a particular hazard isn’t addressed by any OSHA standard, the General Duty Clause, Section 5(a)(1), may be cited.
The GDC says:
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.
How does OSHA define “recognized hazards”? In its Field Operations Manual (FOM) for inspectors, OSHA lists three ways in which a hazard qualifies as recognized:
- Employer recognition: This can be established by evidence of actual employer knowledge of a hazardous condition.
- Industry recognition: A hazard is recognized if the employer’s industry is aware of its existence.
- Common sense recognition: The FOM states, “Hazard recognition can still be established if a hazardous condition is so obvious that any reasonable person would have recognized it.”
OSHA has said it will use the GDC in several areas in which it doesn’t have a standard, including:
One specific example: OSHA used the GDC against Wal-Mart in 2009 after one of its employees was trampled to death by uncontrolled holiday crowds. There is no OSHA regulation for controlling crowds at retail establishments.
Some other cases in which OSHA has used the GDC:
- trainers killed or injured by animals
- a worker struck by a train, and
- employees in a hospital psychiatric ward injured by violent patients.
For one serious violation of the GDC, OSHA can issue a maximum $7,000 fine. A willful violation of the GDC carries a maximum $70,000 fine.
GDC fines can add up. GDC citations are in the top 10 highest assessed penalties OSHA levies.
In 2012, an administrative law judge upheld a GDC citation against SeaWorld Orlando for the death of a trainer pulled under water by a killer whale.
OSHA administrator David Michaels said the SeaWorld decision validated the agency’s right to use the GDC.
“This is one more example that OSHA can use the General Duty Clause in most situations where we don’t have a standard,” Michaels said. “There are many hazards we don’t have standards for.”