Most employers are aware that the Occupational Health and Safety Administration establishes specific (and often detailed) health and safety regulations. Employers know that they must become familiar with specific OSHA regulations that apply to conditions, operations and processes relevant to their particular workplace and trade. (e.g. – excavation, masonry, steel erection, etc.) Employers, no doubt, would like to think that their trouble and expense in complying scrupulously with the myriad details of these industry-specific regulations will avoid citations for OSHA violations.
However, as the below cases illustrate, OSHA compliance requires two things of the employer. One of them is to comply with OSHA’s specific standards that apply to conditions, operations, and processes, etc. as found within the employer’s business. Such compliance, although necessary, is not of itself sufficient. OSHA’s “General Duty Clause” codifies a further duty imposed on employers: to use their common sense to furnish employees with a workplace free from recognized hazards that are likely to cause death or serious physical harm.
The case of Secretary of Labor v. R. G. Bigelow Electrical Co., Inc. is illustrative. Ruggles, an electrician, was assigned to tighten a neutral connection while using an aerial lift 20-25 feet above the ground. Ruggles had not been trained on the lift, and he was not provided with personal protective equipment. It was not practicable to de-energize the circuit, and Ruggles went aloft wearing jeans and a polyester t-shirt. He suffered severe burns as he performed work on the circuit, using a conductive allen wrench. Ruggles’ t-shirt melted onto his body, and he had to lower himself down in the lift, because the key to the lift’s ground-level controls was missing. The employer’s defense to the citation for a violation of the General Duty Clause was that protective equipment was available in the employer’s office, but no one had asked that it be delivered to the work site.
The General Duty Clause provides as follows:
Each employer — (1) 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[.]
To establish a violation of the General Duty Clause, the Secretary of Labor must prove that: (1) the employer failed to render its workplace free of an obvious and recognized hazard; (2) the hazard was causing or likely to cause death or serious physical harm, and (3) there was a feasible method by which the employer could have abated the hazard.
At the hearing, the administrative law judge agreed with the employer that Ruggles could not have completed his assigned task with the circuit box in the off position. He also found, however, that working with a circuit box of 480 volts requires insulated gloves, safety glasses and a face shield, fire retardant clothing, insulated tools, and an insulated blanket. The administrative law judge found that using a conductive tool in close proximity to a live electrical circuit in excess of 50 volts posed a hazard of burns or electrocution. The Secretary’s expert witness testified, without rebuttal, that this was a recognized hazard in the industry. It was clear that the hazards are likely to result in death or serious physical harm, and that feasible means — such as the use of proper clothing and insulated tools — exist to eliminate or materially reduce the hazard. The General Duty Clause citation was affirmed as a “serious” violation.
Construction industry employers should be aware of the interplay between OSHA’s specific standards, and the General Duty Clause. First, the applicability of a specific standard pre-empts the application of the General Duty Clause. 29 C.F.R. § 1910.5(f) provides:
An employer who is in compliance with any standard in this part shall be deemed to be in compliance with the requirements of [the General Duty Clause], but only to the extent of the condition, practice, means, method, operation, or process covered by the standard.
Thus, if an accident has resulted from a condition, operation, process etc. permissible under a specific OSHA standard, OSHA investigators ordinarily cannot seize upon the General Duty Clause, to make the permitted condition an OSHA violation anyway. The exception to this, however — and it is an important one — is that for the employer to be protected, the condition associated with the injury must (1) have been authorized under the specific standard; and (2) must not have presented an obvious or recognized hazard. The employer has the burden to identify and to establish the applicability of the specific standard, and that the exception just described does not apply.
Employers should be aware, also, of some of the primary defenses to OSHA citations for violations of the General Duty Clause. Not surprisingly, work rules that are adequately communicated to employees, monitored for compliance and effectively enforced, can save the day. In Secretary of Labor v. Performance Site Management, a utility crew was excavating and installing sewer pipes at a job site. Two workers, Roberts and Lintz, were inside trench boxes, installing pipe, while a third worker operated a track hoe with an excavator bucket attached to one of its arms. A fourth worker acted as a “spotter” for the track hoe, and a fifth operated a front-end loader, used to backfill each area of the trench after pipe had been installed. As the track hoe operator was swinging the track hoe around, the bucket disengaged from the track hoe, and fell into the trench. The bucket landed on Roberts, causing his death, and injured Lintz, as the impact threw him from the trench box. Among the OSHA citations that were issued was an alleged violation of the General Duty Clause.
At the hearing, the Secretary of Labor argued that the protocol and safe operating procedures of the Construction Industry Manufacturers Association (“CIMA”) constituted a feasible means of abating the hazard and that, by not adopting it, the employer had failed to take a necessary measure to eliminate or reduce the recognized hazard. However, the administrative law judge, found that the employer’s rules, which forbade working under the track hoe at any time, were the equivalent of the CIMA protocol.
The administrative law judge also found that prior incidents were energetically investigated and measures taken to avoid a recurrence, the employer had a comprehensive maintenance program for its equipment, and an injury rate better than the industry in general. The employer convened meetings, contacted manufacturers and dealers of its equipment to address concerns, and even worked with competitors on safety issues. Importantly, the administrative law judge found that rules were adequately communicated to employees. New hires were given a written safety manual, safety matters were addressed during a five-hour orientation, and workers received specialized classes and weekly “toolbox talks,” in which the rule against working under loads, including the track hoe, were reiterated. Every morning before starting work, a “10/10” meeting was held, at which safety issues were discussed. Energetic programs to monitor compliance with company safety rules, and to discipline offenders, were also in place.
The administrative law judge concluded that the employer had an effective, comprehensive safety program, designed to render its workplace free of recognized hazards including working under loads, which negated the General Duty Clause violation. The citation was dismissed.
In a prior article, we discussed Secretary of Labor v. Thomann Asphalt Paving Corp., which involved a fatal rollover accident involving a Bomag roller. In that case, the fatality occurred as a roller, being operated partially on a paved roadway and partially on the grassy area next to the road, slid off the side of an embankment, pinning the operator underneath.
The critical issue in Thomann Asphalt Paving Corp. became whether the operator’s use of a roller not equipped with a rollover protective system (“ROPS”) violated the General Duty Clause. Testimony at the hearing showed that the industry disfavors requiring ROPS on rollers as a matter of course because, under most conditions, ROPS (which requires that the operator wear a seatbelt) inhibits the operator who needs to be able to stand up in his seat, and obstructs the operator’s vision.
Although the administrative law judge found an “obvious and recognized hazard” and risk of death or serious physical harm, it recast slightly the third inquiry — whether or not there was a feasible means to abate the hazard — to describe that inquiry as whether knowledgeable persons, familiar with the industry, would consider ROPS to be a necessary and valuable element of a sound safety program in the specific circumstances existing at the work site. In answering that question in the negative, the administrative law judge found persuasive one of the complainant’s own expert’s view that, at a jobsite at which the job to be performed did not call for the compaction of sloped areas, the rollover hazard was best addressed with the use of well-trained, knowledgeable operators.
OSHA’s General Duty Clause should not be misread as mere boilerplate, nor as a meaningless preface to clause (2) of 29 U.S.C. § 653(a) (i.e., the duty co comply with the specific standards promulgated by the Secretary of Labor). Rather, the General Duty Clause takes every employer’s responsibility beyond compliance with specific standards, and demands that the workplace be free of obvious and recognized hazards that can feasibly be abated. It is important for employers, therefore, to be attentive to this responsibility, as well as to the best defenses to General Duty Clause violations.
Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements.