OSHA Standards?

General Duty Clause

General Duty Clause General Duty Clause -Elements: Sec. 5(a)(1): 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;

“General Duty Clause”

General Duty Clause General Duty Clause -Elements: Sec. 5(a)(1): 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; 1) Hazard (Source + Exposure + Injury) 2) Standard (Regulatory or Voluntary) 3) Recognized (i.e. “Knowledge”) 4) Causing or Likely to Cause (i.e. “Exposure”) 5) Serious Physical Harm (i.e. “Injury”) 6) Employees (i.e. “Employment Relationship”) Why is “General Duty Clause” used?

General Duty Clause -Elements: Sec. 5(a)(1): 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; 1) Hazard to which employees were exposed; 2) Hazard was recognized; 3) Hazard was causing or likely to cause death or serious physical harm; 4) Feasible and useful methods available to correct;

General Duty Clause -Elements: Step #1: Identify that there is a hazard;

 “Potential source of harm”

 “Possible source of danger”

 “Adverse conditions that can cause a risk to

become a loss”

Condition/Source + Exposure + Injury

General Duty Clause General Duty Clause -Elements: Step #2: Identify there is no regulatory standard; Can only be used when there is not standard that applies to the particular hazard and/or conditions that create or contribute to the hazard.

 May not be used when a standard applies;  May not be used to impost stricter requirement;  May not be used to require additional abatement;

“Section 5(a)(1)” is now the standard

General Duty Clause General Duty Clause -Elements: Step #3: Establish that the hazard is recognized; Can be established on the basis of “employer”, “industry”, or “common sense” recognition;  Employer: Evidence of actual knowledge (e.g. records, communication, work-rules, prior accidents/injuries, remedial efforts);  Industry: Evidence of impugned knowledge (e.g. industry experts, practices, warnings, studies, publications, consensus standards);  Common Sense: So obvious that any reasonable person would have recognized it; Limited to special circumstances;

General Duty Clause -Elements: Step #4: Establish that the hazard is foreseeable;

 All of the factors that could cause a hazard need not be present in the same place or at the same time in order to prove foreseeability;

Step #5: Establish that the hazard is likely to cause death or serious physical harm;  An actual death or serious injury resulted from the hazard, or would likely result in death or serious physical harm if occurred; May require expert testimony if not obvious;

General Duty Clause -Elements: Step #6: Establish that the hazard affects employees;

 All of the factors that could cause a hazard need not be present in the same place or at the same time in order to prove foreseeability;

Step #7: Establish that the affected employees are direct employees of the employer;  An employer who may have created, contributed to, controlled, or could have corrected normally shall not be cited;

General Duty Clause -Elements: Step #8: Hazard may be corrected by a feasible and useful method;  Identify measures that are feasible, available, and likely to correct the hazard;  Eliminate or significantly reduce the hazard;  Not merely an alternative abatement method;