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.

8 thoughts on “The General Duty Clause, Understanding Section 5a1

  1. Where can I find the formula for lifting? I am looking for a common sence way to regulate lifting. How much is too much.

    • Thank you for visiting my site. Im sorry for the late response

      In an ergonomics class we practiced using the NIOSH lifting equation when evaluating the the use of portable ladders by chemical plant employees. The formula is complicated but I will explain it to the best of my abilities.

      LC x HM x VM x DM x AM x FM x CM = RWL 

      Is the formula where:

      LC is the Load Constant: The weight of the object to be lifted.

      HM, the Horizontal Multiplier factor: Horizontal distance (H, in cm) from the midpoint between the ankles to the hands while holding the object.

      VM, the Vertical Multiplier factor: The vertical distance (V, in cm) of the hands from the ground at the start of the lift.

      DM, the Distance Multiplier: The vertical distance (D, in cm) that the load travels.

      FM, the Frequency Multiplier factor: The frequency of lifts in minutes over a workshift.

      AM, the Asymmetric Multiplier factor: The twisting angle (A) of the body while lifting, measured in degrees.

      CM, the Coupling Multiplier factor: The quality of grasp (or coupling) classified as good, fair or poor and depends on the body position 

      RWL, the Recommended Weight Limit.

      Source:
      http://www.ccohs.ca/oshanswers/ergonomics/niosh/calculating_rwl.html

  2. In the fast food industry such as Mac Donald or Wendy’s and the employee is instructed to wear gloves, is the employer required to provide non-Latex gloves if the employee is sensitive to latex and his doctor stated that he should not wear Latex?

    • In general, restaurants already choose to use non-latex gloves because of growing education and knowledge of latex allergies. Customers’ can be extremely sensitivity to the material so much that being in the same room can trigger an allergic reaction. OSHA’s general industry standard on hand protection, 1910.138(b), states

      “Selection. Employers shall base the selection of the appropriate hand protection on an evaluation of the performance characteristics of the hand protection relative to the task(s) to be performed, conditions present, duration of use, and the hazards and potential hazards identified.”

      An employer who is made aware of an latex allergy, has the duty to select gloves which protect there employee from this hazard. I addition, if they expect an employee to use the gloves they it is there responsibility to make accommodations.

      For more information on see OSHA Safety and Health Topics on Latex Allergies

  3. Our employer sends us out to investigate alarms at school sites as first responders, at night, unarmed. They tell us don’t confront, but when we unexpectedly surprise someone involved in criminal activity, we have been confronted and assaulted by them. Do these dangerous job duties fall under the general duty clause 5a1? We are state employees working under a union that will not respond to our safety concerns. Our union contract titles us as “Property Monitors” not “Security.”

    • Thank you for your comment.When there are hazards in an industry which are not specifically covered by a standard, then the hazards may fall under the General Duty Clause (GDC).

      It is your employers duty to furnish a place of employment which is free of recognized hazards which are causing or likely to cause death or serious physical harm. If employees have already been injured due to confronting the wrong people then this hazard is already a recognized hazard of being a property monitor.

      Calling the police should be the first step to responding to these alarms. This could be a feasible way to correct the hazard. Your company should understand WHY the alarms are going off and offer suggestions to the schools. Your employer should also provide proper conflict response training.

      With a great relationship with your local dispatch, respondents can have a law enforcement officer ready and keep them updated on the status of the alarms.

      Hope this helps.

      • Thank you for your response. I have been jumped and beaten with a tire iron by someone who had broken into a classroom to steal computers. The police were dispatched, but arrived long after the incident was over. Recently, I was called to an alarm that I was told was set off by two kids swimming in a high school pool. The police were dispatched before I was even called to go there. I opened the door to tell the “two kids” they couldn’t be there only to be confronted by fifteen Norteno gang members. The police never showed up and I was lucky to get away with my life. I told my employer I would no longer be going out on calls like that because of the danger and I was “fired for cause” for insubordination. What recourse do I have?

        • It’s unfortunate that you were assaulted in the line of duty. Everything on 5a1safety.com, including my comments, represents my opinion and not solid legal advice.

          Your comment is in line with my next topic I will write about, OSHA Whistleblower laws and employee discipline. What you are describing sounds like it would be covered under OSHA’ s Whistleblower Protection Program. Section 11c of the OSH Act. Basically, when you report unsafe conditions to your employer or OSHA, your employer can not retaliate eg. termination, demotion, harassing.

          Discuss this case with your union representative. Below are some links for you to educate yourself further on the whistleblower laws so you can make a more informed decision on how next to proceed.

          http://www.whistleblowers.gov/

          https://www.osha.gov/OshDoc/data_General_Facts/whistleblower_rights.pdf

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