Five things you need to know about federal OSHA's General Duty Clause

Often referred to as the General Duty Clause (GDC), Section 5(a)(1) of the Occupational Safety and Health Act, requires that employers provide "a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." It's used when a recognized serious hazard exists in the workplace and the employer does not take reasonable steps to prevent or abate the hazard.

It's received increased attention lately because OSHA is relying on it as well as existing standards to cite employers for COVID-19 related violations.

1. Four elements necessary for a violation of the GDC

   All four of the following elements must exist to prove a violation of the GDC:

   • The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed
   • The hazard was recognized (either by the employer, by the employer's industry, common sense)
   • The hazard was causing or was likely to cause death or serious physical harm
   • There was a feasible and useful method to correct the hazard

   The citation must address the hazard that exists, not a particular incident or lack of a particular abatement method, and the workers exposed to the hazard must be employees of the employer. Near misses, inspection history, safety reports, injury and illness records, employee complaints, verbal or written communications from management are some examples of "reasonably foreseeable" hazards. The industry standards that apply generally have to be from the industry to which the employer belongs.

2. Guidance documents have been used to demonstrate hazard recognition

   In addition to employer records and industry standards, OSHA has used its own guidance documents to prove hazard recognition and failure to abate. This is particularly important in light of the number of guidance documents OSHA has published regarding COVID-19. For example, OSHA has recommended that employers encourage workers to wear face coverings and its FAQs indicate that employers may choose to ensure that cloth face coverings are worn "as a feasible means of abatement in a control plan" designed to address hazards from COVID-19. This suggests that a lack of workplace face coverings could be the basis for a citation under the GDC.

3. Citations must be serious, willful, or repeat

   Potential citations under the GDC fall under the "serious violation" category and carry penalties up to $13,494 per violation. Willful or repeat citations can also apply and penalties can be as high as $134,937 per violation.

4. How it's used

   According to the Conn Maciel Carey law firm, enforcement activity has focused on five areas:

   • Workplace Violence, particularly the healthcare industry
   • Heat Stress/Illness - California has a standard, but none exists on federal level
   • Combustible Dust
   • Ergonomics
   • Respiratory hazards from an air contaminant that is not covered by an OSHA PEL

   It remains to be seen how much it will be used for COVID-19. When there are cases in the workplace, the first three of the four elements required for a citation are likely to exist. The variable is the fourth, a feasible means to eliminate/reduce the hazard. In the citation, OSHA must show that there is a feasible way to eliminate or significantly reduce the hazard.

   An employer's best defense is to demonstrate that all OSHA and CDC, as well as industry guidance, has been followed to reduce the hazard of COVID-19. It's important to remember, if an employer can disprove one of the four elements, a citation cannot be issued.

5. Limitations

   Employers can't be cited under the GDC when an existing OSHA standard covers the hazard in question, nor can citations be issued to impose stricter requirements or additional abatement methods than what's outlined by a hazard's standard. Further, a criminal OSH Act charge may not be based on a GDC violation.