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Presented by:

Ana-Mari Ellington Business & Legal Resources

OSHA Increases Use of General Duty Clause: How to Avoid

Enforcement and Costly Penalties Amid the Agency’s New Norm

Wednesday, September 2, 2015 2:00–3:00 p.m. Eastern 1:00–2:00 p.m. Central

11:00–12:00 p.m. Pacific

OSHA Increases Use of General Duty Clause: How to Avoid Enforcement and Costly

Penalties Amid the Agency’s New Norm Presented by:

Ana-Mari Ellington Business & Legal Resources

September 2, 2015

Session Objectives

• Understand the General Duty Clause (GDC) and employer duty

• OSHA citations, violations, and penalties

• Hazard recognition

• GDC citations and trends

• Best practices for avoiding

• Defending against a GDC citation

General Duty Clause– Section 5(a)(1) of OSH ACT

– Requires employers to provide a workplace free of hazards

– OSHA Standards are built on GDC

– GDC used:• If there are no specific standards

• Hazards remain after compliance with a standard

“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.”

• Evaluating for hazards

• Eliminating or reducing hazards

• Training employees

Employer Duties

Citations and Penalties

• Willful: $5,000 to $70,000

• Serious: Up to $7,000

• Repeat: Up to $70,000

• Failure to correct: Up to $7,000/day

• Other: Up to $7,000

All GDC citations are “serious”in gravity, and can be classifiedas “willful” or “repeat” but GDC willful violationscannot be basis for criminal prosecution

GDC Citations

Hazardous situations where employers were cited:• Not providing required PPE

• Frequent twisting of body while carrying load

• Pipe-threading machine with no automatic shut-off

• Standing for long periods of time without adequate support

• Improper storage of highly reactive chemicals

• Employee exposure to styrene beyond the industry standard

• Failure to implement crowd management principles

• Workers doing roadwork without reflective clothing

• Forklift did not have a seatbelt

• Improper shoring practices used to stabilize part of building

Industry Standard GDC Citation

• Recognized hazards—struck-by

• One feasible means to correct—clearly mark area

• Industry standard ANSI/ITSDF B56.5-2012

• https://www.osha.gov/pls/imis/establishment.violation_detail?id=993525.015&citation_id=01001

Elements of GDC

There are four elements required to issue GDC violations:1. The employer failed to keep the workplace free of a

hazard to which employees were exposed;

2. The hazard was recognized;

3. The hazard was causing or likely to cause death or serious physical injury; and

4. There was a feasible and useful method to correct the hazard.

A GDC citation must involve both the presence of a serious hazard and exposure of the cited employer’s ownemployees.

Hazard Recognition

– Industry recognition

– Employer recognition

– “Common sense” recognition—limited to special circumstances

© Business & Legal Reports, Inc. 1003

Industry Recognition

• Evidence others implemented methods of abatement to deal with hazard

• Manufacturer’s warnings

• Statistical studies by employer industry demonstrating awareness of the hazard

• National consensus standards– American National Standards Institute,

National Fire Protection Association (NFPA), and other private standards-setting organizations

Other Evidence

Evidence to demonstrate industry recognition include:

• NIOSH documents

• EPA publications

• National Cancer Institute and other agencies

• OSHA hazard alerts

Employer Recognition

• Company memoranda, safety rules, policies…

• Employee grievances or complaints to management about the hazard, and

• Previous OSHA inspection history

Common Sense

• “Reasonable person”

• Flagrant situations

• Anyone would recognize the hazard

Common GDC Citations

OSHA will make greater use of the GDC for:

• Ergonomic hazards

• Workplace violence

• Heat-related illness

• Combustible dust

• Chemical exposures for which there are no PELs

• Infectious disease control in workplace (Ebola, influenza) not covered by BBP standard

Killer Whale and Crowd Control Violations

• SeaWorld trainer killed by whale.– Cited for three violations

– Appealed; judge upheld two times

• Wal-Mart crowd stamped kills worker– One serious violation

– Appealed; upheld

Where Standard Exists

• In 2013, OSHA cited Fiberdome under GDC for exposure to styrene below the codified PEL but above industry recognized “best practices”

• “Employers have responsibility to limit exposure to chemicals that can harm workers even if the exposure level is below the OSHA PEL.”

https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=26466

GDC Trends

Workplace violence

Texting and driving

Protect Against Violations

• Review manufacturers manuals

• Review industry standards

• Identify safety recommendations

• Employee training

• Keep records

Safety Measures

• Safety committee

• Job hazard analyses

• Correct hazards

• Talk with employees

• Report “near-misses”

• Review accident and injury records

• Investigate every accident/injury

• Training records

Employer Defenses

1. Prima Facie Case

2. Greater hazard

3. Fair notice and due process

4. Economically and technically feasible

5. Multiemployer worksite—not our worker or equipment

6. Unforeseeable employee misconduct

Defense #1: Prima Facie Case

Present evidence at hearing on each as not sufficient

1. Inapplicable

2. Hazard never existed

3. No employee exposure

4. No knowledge of hazard

Defense #2: Greater Hazard

• The hazards of compliance are greater than the hazards of noncompliance.

• Alternative means of protecting employees are unavailable.

• A variance application would be inappropriate.

Defense #3: Fair Notice and Due Process

• Best handled by an attorney

• Fails to receive notice of required conduct

• Citing without notice violates due process

Defense #4: Infeasibility

• Technically and economically infeasible; or

• Required work would be infeasible; and either;

• Alternative method used; or

• No feasible alternative

Defense #5: Multiemployer Worksite

• Did not cause hazard

• Did not control conditions

• Took reasonable steps to have hazard corrected

• Reasonable steps to keep employees away

• OSHA’s multiemployer citation policy– Only exposing employers can be cited for a

GDC violation.

Defense #6: Unforeseen Employee Misconduct

• An isolated event

• Thorough safety program

• Communicate to employees

• Enforce safety program

• No reasonable opportunity to become aware and correct

Questions

Disclaimers

*This webinar is designed to provide accurate and authoritative information about the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. *This webinar provides general information only and does not constitute legal advice. No attorney-client relationship has been created. If legal advice or other expert assistance is required, the services of a competent professional should be sought. We recommend that you consult with qualified local counsel familiar with your specific situation before taking any action.

Ana-Mari Ellington is a Legal Editor for BLR’s safety publications and has been with BLR since 2002. She writes federal and state regulatory summaries, develops compliance and educational

materials for safety programs, and writes white papers and news articles about workplace safety. Ms. Ellington has also written numerous publications on workplace safety and health, including OSHA’s most frequently violated standards; hazard communication and GHS; personal protective equipment; and effective workplace training. In addition, Ms. Ellington, who is bilingual, manages the development of all Spanish-language materials at BLR, ensuring translation accuracy and consistency. She received her bachelor of arts in English and Spanish philology (linguistics) from the Universidad Autónoma de Madrid. Ana is a member of the American Society of Safety Engineers and the American Translators Association.

Ana-Mari Ellington