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OSHA's General Duty Clause: Don't Overlook the Little Things

by The Human Equation, Inc. on 2/17/2010
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Don’t lose sight of the little things. When it comes to workplace safety, many organizations commit significant time and resources to reduce the risk of injuries among their workforce. Safety boards and managers, meetings and seminars, procedures and SOPs often make up the arsenal used to combat workplace hazards. While these processes serve their purpose, a recent case before the Occupational Safety and Health Review Commission reminds us that it is the little things, like a seatbelt, that often make the difference.


The case involves a worker who was killed when the tractor and lawn mower he was operating rolled over and ejected him from the vehicle. During the investigation, an Occupational Safety and Health Administration (OSHA) compliance officer discovered that the tractor’s seatbelt had been inoperable at the time of the accident and for some time before. As a result, OSHA issued the employer a citation alleging a serious violation of the Occupational Safety and Health Act’s “general duty clause.”


Unlike industry- or situation-specific regulations and standards, the Act’s general duty clause serves as a catchall provision intended to provide a standard of general applicability to protect employees against recognized hazards which are not covered by the Act’s specific standards. Specifically, the general duty clause provides that a covered employer shall furnish “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 serious violation of the general duty clause, the Secretary of Labor must show that: (1) there was an activity or condition in the employer’s workplace that constituted a hazard to employees; (2) either the employer or its industry recognized that the condition or activity was hazardous; (3) the hazard was causing or likely to cause death or serious physical harm; (4) there were feasible means to eliminate the hazard or materially reduce it; and (5) the employer knew or should have known with the exercise of reasonable diligence of the presence of the violating condition.


Having found that all of these elements were satisfied in this case, the employer sought to avoid liability by establishing the affirmative defense of “unpreventable employee misconduct.” In short, the employer argued that it had done everything it could to prevent the accident, and that the fatality was the result of the employee’s own misconduct.


To establish this affirmative defense, the employer had to prove that (1) it had established work rules designed to prevent the violation; (2) it has adequately communicated those rules to its employees; (3) it has taken steps to discover violations; and (4) it has effectively enforced the rules when violations have been discovered.


In determining the applicability of the affirmative defense, the Commission detailed the employer’s safety program. Under this program, the employee’s foreman was required to perform daily inspections of the tractor’s seatbelt to assess its operability. The foreman was also required to submit weekly safety inspection reports to the employer’s safety department, which were then supposed to be reviewed by the safety department. Additionally, the safety department was required to perform its own routine field audits, which included monitoring the operability of the seat belts.


Despite all of these safety protocols, the Commission found that the foreman failed to inspect the seatbelt for almost six months up to and including the day of the accident. The foreman also admitted that his weekly reports incorrectly stated that the seatbelt was inspected and operational. Moreover, the Commission found that the employer’s safety department failed to monitor the foreman in the performance of his daily inspection requirements or otherwise monitor the operability of the seatbelt despite its obligation to perform routine field audits. Based on these findings, the Commission affirmed the $7,000 civil penalty, which is maximum civil penalty available for such a violation.


While this case provides a clear example of how not to go about handling safety procedures, the decision contains two very important lessons that all employers should learn.


First, in rejecting the employer’s argument that the deceased employee should have known that there was an unsafe situation because the seatbelt was broken, the Commission reiterated that an employer cannot shift responsibility to comply with the general duty clause to its employees by relying on them to, in effect, determine whether the conditions under which they are working are unsafe. An employer cannot fulfill its duty of rendering its workplace free of hazard solely by relying on its employees to report that equipment is inoperable.


Second, the Commission’s decision underscores the requirement that employers must do more than merely create safety procedures, they must actually utilize them. In this case, the employer had multiple, and comprehensive, safety protocols which gave the appearance of a conscientious employer placing employee safety above all else. Nevertheless, the employer’s failure to abide by its own safety rules resulted in the death of an employee. And as the Commission noted, an unsubstantiated checklist inspection or safety procedure shows a lack of reasonable diligence on the part of the employer.


The Act’s general duty clause prevents employers from taking comfort in the fact that an industry-specific standard may not necessarily apply to them. In addition to merely providing the illusion of safety, employers must actually act appropriately when it comes to ensuring the safety of their employees. Otherwise, an employer may end up playing a starring role in the cautionary tale about the consequences of overlooking the little things.


If you would like to learn more about implementing your own safety procedures, click here.


7/7/2016 11:42:43 AM #

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