While it didn’t cite Wal-Mart for a violation of a specific standard, OSHA has used its General Duty Clause to fine the retailer in the trampling death of a worker last November.
Wal-Mart has 15 business days to decide whether to pay the $7,000 fine or appeal it.
OSHA issued Wal-Mart one serious citation under its General Duty Clause for inadequate crowd management following the Nov. 28, 2008, death of its employee, Jdimytai Damour, at its Valley Stream, NY, store.
Damour died of asphyxiation after he was knocked to the ground and trampled by a crowd of about 2,000 shoppers who surged into the store for its annual day-after-Thanksgiving sale.
OSHA says employees were exposed to being crushed by the crowd due to the store’s failure to implement reasonable and effective crowd management techniques.
OSHA’s acting director for the Long Island, NY, area, Anthony Ciuffo, said this was not an unforeseen situation. Ciuffo says Wal-Mart should have recognized the hazards based on previous Friday-after-Thanksgiving crowds.
Wise use of General Duty Clause?
The agency cites the General Duty Clause when there’s no specific regulation that covers an incident resulting in serious injury or death.
OSHA’s General Duty Clause states, “Each employer shall furnish to each of his employees employment and 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 recently revised 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.”
So, here’s the question: Do you think trampling by a crowd was a recognized hazard in this Wal-Mart case? Also, what do you think about OSHA’s increased use of the General Duty Clause overall? Let us know in the Comments Box below.
