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Catherine Treadwell Perry, Director of Government Relations
Last week ASA Advocacy attended a webinar pertaining to the employer obligations under the OSHA General Duty Clause. This webinar was intended to help employers better understand their obligations and rights under the clause, which is usually considered vague and confusing.
Under the OSH Act statute, employers have two obligations to comply. The first is to comply with OSHA standards set out in section 5(a)(2) of the statute. The second is compliance with the General Duty Clause under 5(a)(1) of the statute. The General Duty Clause is that part that causes the most confusion to employers due to how vague the statute reads. 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.” The law itself doesn't actually define any hazards or set any specific safety standards. Instead, it gives OSHA, acting on behalf of the U.S. secretary of labor, the authority to formulate national standards and enter them into the Code of Federal Regulations. Essentially, OSHA regulations exist to provide guidance to employers in meeting the requirements of the General Duty Clause.
The best way to fully understand this statute is to understand why Congress implemented it. In the legislative history of the OSH Act, the General Duty Clause was actually on of the most controversial provisions. While there was general agreement within Congress that OSHA could not be expected to issue specific standards related to each and every hazard at all worksites across the country and that a general provision requiring safe employment was needed to be included in the Act, agreement on the exact parameters of the General Duty Clause was complicated. The actual concept of the General Duty Clause was urged by the National Safety Council, which stated in testimony, “if national policy finally declared that all employees are entitled to safe and healthful working conditions, then all employers would be obligated to pride a safe and healthful workplace rather than only complying with a set of promulgated standards. The absence of such a general obligation provision would mean the absence of authority to cope with hazardous condition which is obvious and admitted by all concerned for which no standard has been promulgated.”
The emphasis on “obvious” caused concern. The critics were afraid that it would impose too vague and sweeping of a duty on employers and could ultimately prove unenforceable. This caused Congress to add the terms limiting application to “recognized,” serious,” and “hazards.” Congress intended the provision to be narrowly construed so as to ensure that employers were not faced with civil penalties for hazards which were not obvious and that compliance expectations were clear and achievable. Unfortunately, too often, employers struggle with compliance because of the vagueness of the statute. To give an obviously absurd example, imagine that you owned a warehouse and that your janitors swabbed down the floors with vegetable oil every morning, leaving them extremely slick. There's no OSHA regulation that specifically identifies this practice as dangerous. But you could still wind up fined for maintaining an unsafe workplace because a floor coated in oil is an obvious hazard.
Under the General Duty Clause, the burden of proof is much higher than a normal OSHA violation standard. Under the Genera Duty Clause, the Secretary must prove the following: a hazard exists, the hazard was recognized by either the employer or the industry, the exposure to the hazard would result in serious harm, and the feasible means of abatement exist that would eliminate or materially reduce the hazard. The easiest burden to prove is that a hazard did exists. This is usually due to the fact that it often stems from an actual workplace accident or incident. However, OSHA must still define a cited hazard that gives employer a fair notice and obligations to understand. An example of this would be heat illness. At what point does heat become a hazard? OSHA would have to define it and then give notice to employers with enough time to make adjustments to avoid violations.
The second burden, OSHA must prove that hazard was recognized by the employer or the industry. Employer recognition can be proved by policies, procedures, safety committee meetings, audits, training, or injuries and illness. Industry recognition can be proved by industry standards, best practice documents, industry guidance materials, and knowledge of action taken by similarly situated employers. However, OSHA guidance alone does not prove this element.
The third element that OSHA must prove is that the exposure to the hazard would result in serious harm. This means something in the workplace that's merely unpleasant, distasteful or annoying doesn't qualify as an OSHA hazard. It actually has to result or could result in serious harm.
The final element is that feasible means of abatement exist that would eliminate or materially reduce the hazard. This means that the hazard must be correctable. To cite you for failing to address a hazard, OSHA has to be able to show that there was something you could have reasonably done about it in the first place.
According to "Safety + Health" magazine, a publication of the National Safety Council, General Duty violations make up only a small percentage of all OSHA citations. At the same time, repeated General Duty violations often help the agency identify areas where new standards are needed. This is why it is important to fully understand the elements of the General Duty Clause.
If you could like to find out more on OSHA’s General Duty Clause, please contact Catherine Treadwell Perry, Director of Government Relations at firstname.lastname@example.org.
- Former Attorney General Jeff Sessions plans to announce his candidacy today for his old Senate seat representing Alabama, according to a Republican official. Incumbent Democrat Doug Jones is one of the country's most vulnerable senators next year, and several Republicans, including the well-funded Rep. Bradley Byrne, are already in the race. (The New York Times)
- Eighteen-term Rep. Peter J. Visclosky (D-Ind.) said he will not run for re-election next year, creating an open race for a solidly Democratic district that Trump lost by 13 percentage points in 2016. Visclosky, who was first elected in 1984, is chairman of House Appropriations Committee's defense subcommittee. (Roll Call)
- Rep. John Shimkus (R-Ill.) confirmed he will retire from Congress as previously announced, after briefly reconsidering his decision following the recent retirement announcement from House Energy and Commerce ranking member Greg Walden (R-Ore.).
- Michael Bloomberg filed to enter the Democratic presidential primary in Alabama, as he weighs entering the 2020 race. The billionaire businessman and former New York City mayor initially declined to run earlier this year, but he is now expected to change his mind amid concerns over the strength of former Vice President Joe Biden's candidacy.
- House Intelligence Committee Chairman Adam Schiff (D-Calif.) announced the committee will hold the first public hearings in the impeachment inquiry into President Donald Trump next week. The public hearings are set to feature William Taylor, the acting U.S. ambassador to Ukraine, and Deputy Assistant Secretary of State George Kent on Wednesday, and Marie Yovanovitch, former U.S. ambassador to Ukraine, Friday. (USA Today)
- Rep. Mark Veasey (D-TX-33) introduced H.R. 4933, to amend the Women in Apprenticeship and Nontraditional Occupations Act to provide for reimbursement of certain expenses and to establish new requirements for selection of grantees, and for other purposes.
- The United States and China have agreed, in theory, to roll back tariffs simultaneously in phases if trade negotiations continue, according to China's Commerce Ministry. The two sides have had "ernest and constructive" talks, according to ministry spokesperson Gao Feng, although he didn't say if a deal had already been reached, and no updated timetable was provided. (The Washington Post)
- A U.S.-China trade deal signing could be delayed until December, according to a senior official in the Trump administration. A deal is still more likely than not, the official said. (Reuters)
- A bipartisan group of lawmakers led by Sens. Marco Rubio (R-Fla.) and Jeanne Shaheen (D-N.H.) introduced a bill that would ban Chinese stocks in the Federal Retirement Thrift Investment Board, which oversees the federal government retirement plan. The board previously decided that by next year, one of its funds would be moved to an index that includes Chinese firms, although that could be delayed. (Bloomberg)
- The Internal Revenue Service is expected to release documents in at least two stages by the end of the year related to the 45Q tax credit for carbon capture, storage and utilization, after an almost two-year wait since the credit was extended Feb. 9, 2018. The initial IRS document is expected to include information that companies require for the current tax year. (Morning Consult)
- The Organization of the Petroleum Exporting Countries projected its total production to drop to 32.8 million barrels per day by 2024, from 35 million bpd this year. OPEC's 2019 World Oil Outlook said the group would supply a reduced proportion of global oil demand due to a number of factors, including the U.S. shale boom, U.S. sanctions on two OPEC members and the continuation of voluntary production cuts. (Reuters)
- Secretary of State Mike Pompeo said the Trump administration formally launched a year-long withdrawal process from the Paris climate agreement, though any departure would not take effect before the 2020 election. The move places the responsibility of climate diplomacy on the European Union, but major emitter China has resisted efforts encouraging the country to accelerate its initial emissions reduction targets. (The New York Times)
- Kentucky Attorney General Andy Beshear (D) said during a speech in which he projected himself the winner of the state's gubernatorial race that his administration would rescind Medicaid work requirements during his first week in office and make good on a campaign promise that became a flashpoint in his race against Gov. Matt Bevin (R). The Trump administration approved the waiver last year, but pending litigation surrounding the work rules has prevented implementation so far. (The Hill)
- A senior White House official said that the drug pricing bill from House Speaker Nancy Pelosi (D-Calif.) is a nonstarter for the administration, and President Donald Trump will instead back the Senate Finance Committee's plan. Though Trump has previously expressed support for Pelosi's proposed Medicare negotiation fix to skyrocketing drug prices, bicameral Republicans remain staunchly opposed as Congress and the White House continue working to deliver a bipartisan win on drug pricing. (The Associated Press)
- A majority of Medicare beneficiaries with significant health challenges have financial hardships as a result of their medical bills, according to a new study, primarily because of drug costs. Fifty-three percent of very ill patients said paying their bills was a major challenge, with more than 1 in 3 saying they had to use all or most of their savings, a surprise to the researchers considering that Medicare coverage is generally viewed as affordable. (The Associated Press)
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A meeting between U.S. President Donald Trump and Chinese President Xi Jinping to sign a long-awaited interim trade deal could be delayed until December as discussions continue over terms and venue, a senior official of the Trump administration recently told Reuters. The official, who spoke on condition of anonymity, said it was still possible the “phase one” agreement aimed at ending a damaging trade war would not be reached, but a deal was more likely than not.
"Our Nation’s robust economy continues to flourish, creating new opportunities for Americans and securing our continued dominance of global markets. As President, I have reduced tax burdens and eliminated unnecessary regulations, producing the lowest unemployment rate in 50 years and more job openings than there are job seekers for 19 months in a row."
U.S. Supreme Court justices across the political spectrum appeared to be searching for a compromise on Wednesday as they considered an important environmental case from Hawaii that could limit the scope of a landmark federal law aimed at curbing water pollution. The case focuses on whether a wastewater treatment plant in Maui County, Hawaii, should be subject to anti-pollution provisions in the 1972 Clean Water Act.
The Wall Street Journal
The U.S. collected a record $7 billion in import tariffs in September, fresh figures show, as new duties kicked in on apparel, tools, electronics and other consumer goods from China. Tariff revenue jumped 9% from August and was up more than 59% from August 2018. The revenue is a bounty for the U.S. Treasury, but is an increasing burden on the American businesses that import Chinese products — and their customers.
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