Year after year, EHS management has moved up on the priority list of most organizations. However, while safety and health in the workplace are more important than ever, it’s still not uncommon for safety professionals to receive pushback from management and employees when applying best practices to work activities.
One of the most common arguments heard across industries is, “That’s not an OSHA regulation.” The most straightforward response to this statement is that company policies can, and often do, go above the minimum safety and health requirements set by OSHA. Just because there is no OSHA regulation doesn’t mean they don’t have to work within company safety and health parameters, as well as industry best practices.
In addition, the above statement demonstrates ignorance of the General Duty Clause enforced by the Occupational Safety and Health Administration (OSHA). This clause is OSHA’s ace up its sleeve, providing it with a universal basis for issuing a citation for a violation even in the absence of a specific regulation.
What Is the OSHA General Duty Clause Under the Occupational Safety and Health Act?
“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.”
– OSHA’s General Duty Clause, found in section 5(a)(1) of the Occupational Safety and Health Act of 1970 (OSH Act)
The Act doesn’t stop there. Section 5(a)(2) further states that employers shall comply with occupational safety and health standards promulgated under the Act, while Section 5(b) requires that each employee comply with the rules, regulations, and orders issued pursuant to this Act which apply to his own actions and conduct on the job.
Due to the uniqueness and ever-changing landscape of industry, OSHA recognized that it is virtually impossible to draft safety and health regulations addressing specific hazards for every situation a company or employee may encounter in their day-to-day work lives. In response, Arizona Governor Howard Pyle identified that a catch-all regulation was needed to fill the gaps left by the written regulations and pushed for adding the General Duty Clause.
Unfortunately, many employers and their representatives are unaware of OSHA’s General Duty Clause and falsely operate under the assumption that if something isn’t in the Federal Code of Regulations, they are not responsible for it. As a result, these organizations may be putting their employees and their company at risk because they are not fulfilling their responsibility to provide a safe workplace free of recognized hazards.
When Does OSHA Use the General Duty Clause?
The General Duty Clause can only be applied when there is no existing standard or specific OSHA standard covering the hazard, with some of the most common examples being extreme heat and cold, severe weather, workplace violence, ergonomics, and certain hazardous chemicals not otherwise addressed under general industry rules. It’s cited often in sectors like the healthcare industry, where workplace violence and ergonomic strain are well documented but aren’t always hazards covered by a dedicated standard.
While it may seem vague, an OSHA inspector must establish the following elements before a general duty clause violation can be cited. Let’s use the example of an employee losing consciousness while working on a roof during extreme heat conditions and work through those four criteria.
- Was an employee exposed to a hazard that their employer failed to remove?
Yes, the worker was exposed to extreme heat conditions while at work.
- Did the employer recognize the specific hazard?
OSHA wants to establish if there is evidence that the employer was, or should have been, aware of the hazard and if a reasonable person could identify extreme heat as a risk to workers. Many would consider this a yes, as extreme heat is commonly known as a threat to health.
- Did the hazard cause or was likely to cause death or serious harm?
Yes, the worker lost consciousness which could have resulted in death or severe harm.
- Was there a feasible and useful method available to eliminate the hazard?
Yes, many well-established methods exist to reduce the threat of extreme heat outdoors. These include shading the work area, providing cold water and electrolyte drinks, fans, and scheduled breaks. The employer could also move the work to a time of day when temperatures were less extreme.
Employer Responsibilities and Tools for General Duty Clause Compliance
While OSHA doesn’t issue citations based on the General Duty Clause that often, companies must understand their responsibility to provide workers with a hazard-free workplace under this broad requirement. Employers that might have thought they were doing everything possible to protect their employees in the eyes of the law may be incorrect. Bottom line: just because something isn’t in the regulations doesn’t mean that your company is not responsible for protecting employees, and OSHA’s overarching goal remains the same regardless: protect workers from recognized hazards, standard or no standard.
The best way to comply with OSHA’s General Duty Clause and the rest of its workplace safety and health standards is to take reasonable steps using the tried-and-true methods to create a safer, more compliant workplace. This begins with a thorough understanding of the specific safety and health standards and unique regulatory obligations for each of your facilities, typically referred to as regulatory registers. You should also have a mechanism for keeping up with changing regulatory requirements and understanding how operational changes impact obligations. With a full understanding of these requirements, your auditing, inspections, incidents, observation, and training programs can be more focused as you look for potential hazards.
Audits, Inspections, and Observations
The more eyes you have identifying workplace hazards and instances of non-compliance, the better. Employee participation in audits, inspections, and safety observations is crucial. Collecting as much information as possible and then compiling it in a digital format can provide organizations with valuable insight into their operations and a clear picture of the hazards confronting their workforce.
Audits and inspections also demonstrate to OSHA inspectors and other regulators that your organization is actively looking for workplace hazards to fulfill your obligation of delivering a hazard-free workplace. However, identifying the threat isn’t good enough; companies must eliminate the risk. That’s where action item tracking becomes a vital component. Unfortunately, many companies that do a great job at hazard identification have poor follow-through regarding fixing those hazards.
Companies may assign an action item to an individual, but have no system to guarantee the completion of those actions. As a result, hazards remain in the workplace, waiting to expose workers, and the organizations are not fulfilling their obligations even though they think they are. Action tracking software is an excellent solution for this common problem. It ensures that no action items fall through the cracks, and it can help demonstrate abatement by an assigned abatement date if OSHA, or an OSHA Area Director following up on a citation, ever comes asking.
How Software Can Help Avoid General Duty Clause Violations
Unfortunately, even when aware of OSHA’s General Duty Clause, many companies struggle to fulfill their obligation to provide a work environment free of recognized hazards. Thankfully compliance is often simply a matter of applying many of the tried-and-true tools used within EHS management for decades, and the goal throughout is to encourage employers to catch and correct hazards before they ever reach an inspector’s checklist.
While these tools are well-established, modern EHS management software takes them to another level. Digital safety inspections and audits help your organization identify risks and increase employee awareness of the hazards present in their workplace. Action item tracking helps companies develop a consistent game plan to address those risks so that they don’t remain uncorrected and expose workers. Finally, based on compliance obligations, management systems, and recognized hazards, employers must conduct and track employee training to ensure employees are knowledgeable of what actions they must take.
Dakota Software’s easy-to-use software solutions verify regulatory compliance and identify safety trends to create corrective action plans that make a real difference. Check out the product tour library to learn how Dakota can help you create a safer and more compliant workplace.
