A rule that the U.S. Occupational Safety and Health Administration proposed last year to soften its enforcement of workplace protections shouldn’t be taken as a green light for facilities managers to weaken their policies, a safety specialist says.
Under the rule that OSHA proposed in July for injured workers whose job is inherently dangerous, the agency will no longer initiate enforcement action against employers for failing to implement safety measures if the agency doesn’t have its own standards in place.
The agency says it wants to change the way it’s interpreting what’s known as the general duty clause in the Occupational Safety and Health Act that created OSHA in 1970.
“The General Duty Clause … contains no specific delegation or language suggesting that Congress intended OSHA to prohibit the core design of [dangerous jobs],” OSHA says in the preamble to its proposed regulation. “OSHA acknowledges that regulating such activities … could constitute an unlawful extension of authority.”
Gray area of law
Over the years, the clause has been interpreted to mean employers have a duty, even in the absence of OSHA standards, to implement safety measures if there are recognized hazards to the job. But, OSHA says, recent court decisions suggest that interpretation is too broad.
Under current rules, OSHA enforces the general duty clause when liability falls into a gray area, says Philip Jacklin, continuing education program manager at Diversified Fall Protection.
If OSHA has standards in place, employers have a clear requirement to meet the standards. But employers face a gray area when there are no OSHA standards but industry groups either have their own standards or there are generally recognized best practices that employers should follow — like the dropped object ANSI/ISEA standard released in 2018, Jacklin said.
The dropped object industry standard mandated the use of tethers and other equipment to stop an object that’s dropped from above from falling on workers.
“The idea is, if you have a person hammering something on a roof, the hammer would be attached to their wrist so if they were to let go of the hammer, it would prevent it” from endangering someone below, Jacklin said in an interview.
“It’s not required by OSHA, but now here’s a standard in place,” said Jacklin, who also addressed this topic in a webcast last year. “OSHA could say, ‘Hey, we’re going to pull the general duty clause because there are industry consensus standards available that other people are using to prevent this from happening.’”
In the preamble to its proposed rule, OSHA points to a dissent in a 2014 D.C. appellate court case by now-Supreme Court Justice Brett Kavanaugh, in which he argues it was never Congress’ intent for OSHA to impose employer liability when the job comes with recognized hazards. The case, SeaWorld vs. Perez, involved a trainer who was killed in 2010 while interacting with an orca in front of the public. Because the job comes with a recognized hazard, saying the employer has a general duty to put in safety measures raises questions about the scope of the duty, Kavanaugh argued.
“It is simply not plausible to assert that Congress, when passing the Occupational Safety and Health Act, silently intended to authorize the Department of Labor to eliminate familiar sports and entertainment practices, such as punt returns in the NFL, speeding in NASCAR, or the whale show at SeaWorld,” Kavanaugh wrote at the time.
The court found in favor of OSHA and allowed a $75,000 citation that OSHA issued to SeaWorld for safety violations to stay in place.
Even though the ruling went against Kavanaugh’s position, OSHA in its proposed rule says it’s appropriate to codify Kavanaugh's dissent into regulation.
“In light of the issues raised in that dissent and subsequent developments in administrative and constitutional law, OSHA has reexamined its authority [and] now preliminarily concurs with the dissent's concerns,” it said.
In its notice seeking comment to the rule, OSHA says it’s considering applying its new interpretation only to types of jobs that it would specify in the regulation as being inherently dangerous, like those involving athletes, actors, dancers, musicians and singers, among others in the entertainment and sports fields. It says it’s looking for input on what other jobs would be considered inherently dangerous.
Even if OSHA reserved its new interpretation only for jobs named in the regulation, the gray area about liability would persist, Jacklin believes. “This will only make gray areas a little more gray,” he said.
In the case of a performing arts center, for example, if an electrician was injured while working above the stage, there would be ambiguity over whether the employer would be exempt from a citation, he said.
“They’re not working on a crew,” he said. “They’re not working on a production. They’re [repairing] wires, doing this act of general work. At what point could [the employer] say they were exempt from providing protection? But let’s say the electrician’s union says, ‘Hey, this guy’s on a truss. He’s on a catwalk. There were places for anchors, guardrails. There are industry standards to protect this worker doing this act [and there shouldn’t be an exemption] just because they’re classified in a performing arts center.”
Whatever the final rule says, there’s no reason for employers that take safety seriously to reduce protections for inherently dangerous jobs, Jacklin said. Simply from an employee-recruiting and retention standpoint, any employer will want to follow best practices.
“If you have a good safety program — and most companies do — then this isn’t going to have much of an effect because your goal is to keep workers safe, not just remain compliant with a vague standard,” he said.
OSHA closed public comments on the proposed rule in November. A spokesperson said in an email the agency hasn’t determined when the final rule will be issued.
