Safety Agency Eyes New Limits on Catch-All Enforcement Clause

The US Occupational Safety and Health Administration plans to narrow the use of its general duty clause when enforcing workplace safety regulations as part of the Trump administration’s broad deregulatory efforts.

The provision enables the agency to cite employers for recognized workplace hazards not addressed by a specific standard. It requires employers to provide a workplace free from recognized hazards that are likely to kill or seriously harm workers.

In its latest interpretation of the clause, the agency wants to exclude hazards that are “inherent and inseparable from the core nature” of a job. OSHA cited recent developments in administrative law and a 2014 dissent from now-Supreme Court Justice Brett Kavanaugh as the basis for the change.

“The general principle of restricting use of the general duty clause is a bad thing for worker safety,” said Jordan Barab, the former deputy assistant secretary for OSHA during the Obama administration.

Employers want to have it both ways because they often sue OSHA over its use of the general duty clause, but would prefer to restrict the provision’s application in light of a potential federal heat standard the Trump administration has signaled it will pursue, Barab noted.

Post-Chevron Impact

The cascading effects of last June’s Supreme Court decision ending court deference to agency interpretations of ambiguous laws have made their way to the general duty clause. Although the Chevron doctrine wasn’t explicitly mentioned, the agency’s decision indicates that it wants to limit the clause’s application, attorneys said.

The agency referenced Kavanaugh’s dissent in SeaWorld of Florida, LLC v. Perez, where the justice argued the general duty clause doesn’t authorize OSHA to regulate hazards from activities intrinsic to an occupation, such as professional sports or entertainment purposes.

This change could have major implications for sectors such as emergency response as well—another category of work where certain risks can’t be completely eliminated without altering the core function of the job.

“Right now it’s a matter of trying to come up with some rational criteria that’ll make sense for everybody,” said Lawrence P. Halprin, a partner at Keller & Heckman who represents companies and trade associations. OSHA is looking to adopt an interpretation that would provide more guidance to inspectors in certain areas to know whether an inspection is warranted in the first place, he added.

OSHA seeks to alter the application of the general duty clause so that employers’ aren’t required to remove hazards from inherently risky activities that are integral to the essential function of the work. And while the agency calls out specific sectors such as extreme sports and animal handling—it doesn’t limit the application of the amendment to just those sectors or professions.

Worker advocates said this could be harmful to OSHA’s ability to hold employers accountable for addressing hazards such as heat or ergonomics—both recognized hazards the agency doesn’t have an applicable standard to address.

A decision to limit the application of the general duty clause will result in more protection for employers, according to Michael Felsen, a retired Department of Labor Boston regional solicitor.

“The general duty clause is a very high bar already, it’s not easy to win general duty clause cases—they’re much more labor intensive,” he said. “It’s the only fail safe for hazards that are not actually regulated by a standard.”

Construction Input Overhaul

The Trump administration’s deregulatory push also included a final rule that revoked a requirement for the OSHA assistant secretary to consult with the Advisory Committee on Construction Safety and Health.

OSHA has four advisory committees for construction, general, maritime industries, and federal government—all of which have a membership balance between worker and employer representatives, safety professionals, and members of the public.

Unlike the other committees, ACCSH has some authority under the Occupational Safety and Health Act that allows its voice to be heard when rulemaking pertains to construction work. Worker advocates said the move is indicative of the administration’s continued lackluster desire for stakeholder input, while employers await how the proposal’s change will play out for them.

“This is a sudden change, and ABC intends to monitor this to see how it will be applied going forward,” said Greg Sizemore, ABC’s vice president of health, safety, environment and workforce development. The DOL appointed Sizemore to serve as an employer representative to an OSHA advisory committee at least three times, according to the group. His most recent term expired in May.

Barab said the administration’s latest move demonstrates that it wants to minimize any possible opposition from stakeholders over any changes OSHA may decide to make in construction.

The Trump Administration asserts the general duty clause unnecessarily limits the DOL from moving forward expeditiously with its deregulatory agenda.

“They’re basically trying to get rid of all the features OSHA has added to their existing requirements to dial back the impact and balance of ACCSH,” said Barab.

The agency hasn’t published any notices about filling the 15 member advisory board.

OSHA didn’t respond with comment.