Is Your Construction Contracting Business to In Violation of OSHA’s General Duty Clause?


admin - February 13, 2020 -

There are a lot of things to keep up within your business and near the top of the list is ensuring you are compliant with OHSA regulations.

The last thing you need or want is an accident or someone reporting you to OSHA for not complying with safety standards.

What does it take to be out of compliance with OSHA’s General Duty Clause and what are some of the consequences if you are found not to be in compliance?

What is the General Duty Clause?

OSHA’s General Duty Clause is a catch-all regulation that is part of the OSH Act of 1970… meaning, it deals with everything not specifically regulated by OSHA. Specifically, it states:

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;
  • shall comply with occupational safety and health standards promulgated under this Act.

Because of its lack of specificity, it is hard for OSHA to enforce.

There is also a four-part test that OSHA must prove in order to issue a citation:

  1. The employer failed to keep the workplace free of a hazard to which its employees were exposed.
  2. The hazard was recognized.
  3. The hazard was causing or was likely to cause death or serious physical harm.
  4. A feasible and useful method to correct the hazard was available.

Why is the General Clause is Hard to Enforce?

The four-part test can be hard to prove on multi-employer worksites.

For example, there are other questions that must be asked such as who supervises employees, who assigns work, who do the employees regard as their supervisor and who pays their checks?

Plus, they have to establish who controls the worksite and has the responsibility for fixing the violations?

In a letter to Safety and Health Magazine by OSHA, an agency spokesperson said OSHA cannot enforce industry standards. However, it can use those standards to show the industry recognizes common problems of “a hazard and a feasible means of abatement.” However, the other two parts of the test must still be met.

One thing to keep in mind is that “a feasible and useful method to correct the hazard was available” test is vitally important.

Why?

Consider, if your business only has $100,000 in annual profit, it can’t afford a $500,000 fix. It isn’t “feasible.”

Challenges

General Duty Clause citations are among the most challenged because of the regulation’s complex and general nature.

When a hazard is specifically defined, it makes it hard to establish a safety issue.

For example, is a safety hazard to lift something at 40 pounds? Is it another at 75 pounds? What about lifting 20 pounds 10 times? At what point is there a safety hazard that falls within the four-point test?

One of the challenges for OSHA and the reason they love the General Duty Clause is because it can years, a decade, or more before specific regulations are created.

That’s the reason the General Duty Clause is important to OSHA.

Just know that the burden of proof on OSHA is high.

The best thing you can do is ensure that if there is a safety issue, address it as quickly as possible so that you stay within compliance.

 

 

Related posts