OSHA’s General Duty Clause Goes Too Far

The authors views below are entirely his/her own and may not reflect the views of Atlantic Training LLC.

The ‘General Duty Clause’ states that:

“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.”

Here’s what ‘recognized hazards’ means: If someone is killed, even if the probability of occurring is as low as 1 in 100 million, it qualifies as a ‘known hazard’ and all employers in that industry are required to eliminate that hazard across its entire workforce. There are literally millions of obscure and extremely improbable ways that someone can die at work. It is virtually impossible for a business to eliminate all recognized hazards.

Ridiculous Examples of The General Duty Clause

• A $7,000 fine was issued to Wal-Mart in 2008 based on the General Duty Clause after one of its employees was trampled to death by uncontrolled holiday crowds.

How could Walmart have possibly anticipated that the customers would break the doors off their hinges and trample over a lone employee? This was the first time in the history of all 37,000+ department stores across the U.S where an employee had died on black Friday. (6) Should Walmart have invested in reinforced doors in all of its thousands of stores in anticipation of this hazard?

• OSHA fines an employer under GDC after a criminal came into a convenience store, doused the attendant with gasoline, and set her on fire.

OSHA claims that the employer should have implemented ‘appropriate control measures’ in order to prevent the incident, which I’m assuming means bullet proof glass.  There are 148,000 convenience stores in the U.S (3) and the vast majority of these stores do not utilize bullet proof glass. Why isn’t OSHA applying the general duty clause to those stores?

• OSHA has fined Adventure Island in Tampa, FL, $7,000 for one serious General Duty Clause violation following the death of an employee who was killed by lightning.

The chances of an average person dying by lightning in a year are 1 in 10 million. Admittedly, working at a water park would increase those chances, but they are still astronomically low. This incident is the first time a water park employee had been killed by lightning.

Not Every Hazard Is Worth Preventing

The problem with the general duty clause is that keeping a workplace completely free of hazards is virtually impossible. There are an infinite number of ways that someone can suffer a fatal injury. You can not expect an employer to invest in prevention efforts for every single possibility regardless of its statistical significance.

We live in a world of limited resources and we all accept a certain amount of risk with even the most mundane and trivial activities, like taking a nap, taking a bath, and of course the leading non-disease killer in the U.S: driving a car. Going to work is no different, there will always be some risk. Expecting the employer to eliminate all risk of any kind is unreasonable and impossible.

Safety is about managing risk intelligently, not eliminating it. When I get into my car, I’m taking an enormous risk when compared to my other day-to-day activities. I accept that risk in exchange for the convenience that auto transport provides and so do 203+ million other drivers in the U.S. That convenience costs over 32,000 American lives each year.

Businesses do not have an unlimited amount of resources and can not protect employees from every possible hazard. Bullet proof vests might make walmarts 1.4 million employees a tiny bit safer, but it would cost hundreds of millions of dollars. In its current form, the General Duty Clause is far too broad and should be narrowed considerably with the understanding that hazards will always exist in some form.

Do you think OSHA is going too far with the General Duty Clause? Let me know in the comments below.