The General Duty Clause, Understanding Section 5a1

Section 5a1 of the Occupational Safety and Health Act of 1970 states.

“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.”

Simply put, the general duty clause of the Occupational Safety and Health Act gives employers the responsibility to provide a workplace free of recognized hazards that are likely to cause or causing injury or death. The clause can be  used as a catch all for OSHA enforcement when no other standards exist for a particular hazard. They have the ability to cite employers for its violation; when four other conditions are met.

1.Employees must be exposed to a hazard.
2.The hazard must be recognized by the employer
3.The hazard must be likely to cause serious physical harm or death.
4.There must be a feasible way to correct the hazard.

Employees must be exposed to a hazard

The employees exposed to the hazard must be the employees of the cited employer. An employer who may have created, contributed to, and/or controlled the hazard normally shall not be cited for a Section 5(a)(1) violation if his own employees are not exposed to the hazard, according to an OSHA Field Manual.

The hazard must be recognized by the employer

“Recognition of a hazard can be established on the basis of employer recognition, industry recognition, or “common-sense” recognition. The use of common sense as the basis for establishing recognition shall be limited to special circumstances.” – OSHA Field Manual

An interpretation letter from OSHA puts it another way, “Any recognized hazard created in part by a condition not covered by a standard may be cited under the general duty clause. A hazard is recognized if it is a condition that is (a) of a common knowledge or general recognition in the particular industry in which it occurred, and (b) detectable (1) by means of the senses (sight, smell, touch, and hearing), or (2) is such wide, general recognition as a hazard in the industry that even if it is not detectable by means of the senses, there are generally known and accepted tests for its existence which should are generally known to the employer.”

The hazard must be likely to cause serious physical harm or death.

The OSHA Field Manual defines serious physical harm as “ Impairment of the body in which part of the body is made functionally useless or is substantially reduced in efficiency on or off the job. Such impairment may be permanent or temporary, chronic or acute. Injuries involving such impairment would usually require treatment by a medical doctor or other licensed health care professional.” This element of the clause is established when an employee has died or was recently injured because of the hazard, or if an incident was to occurred and the likely result would be death or serious physical harm.

In cases where serious physical harm would only occur after time has passed, as is the case for chronic illnesses, enforcement may rely on expert testimony. The must prove regular and continuing exposure to a toxic substance at the measured levels could occur, and illness reasonably could result from such regular and continuing employee exposure and the illness is likely to cause death or serious physical harm.

There must be a feasible way to correct the hazard

A feasible, and available way to correct the hazard must exist before the employer can be site under the general duty clause. If a proposed abatement method would eliminate or significantly reduce the hazard beyond whatever measures the employer may be taking a citation may be issued.
A citation will not be issued merely because the agency is aware of an abatement method different from that of the employer, if the proposed method would not reduce the hazard significantly more than the employer’s method

Limitations

Though the general duty clause is a blanket regulation, it can not be used in every situation. According to the OSHA Field Manual the general duty clause is limited in the following situations.

1.When a standard on a particular hazard exist.
2.The clause shall not normally be used to impose a stricter requirement than that required by the standard.
3.Shall not be used to enforce additional abatement methods not set in a existing standard.

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