How OSHA uses the “General Duty” clause

OSHA has issued a flurry of citations against employers over the past month related to COVID-19. As businesses reopen and workers return to their workplaces, OSHA’s enforcement activity should serve as a cautionary reminder to employers of their responsibilities under the OSH Act’s “General Duty” Clause and record-keeping requirements as they relate to the threat of COVID-19, according to JD Supra, a website that monitors legal developments.

On September 10 and 11, OSHA cited two meat-packing plants, Smithfield Packaged Meats Corp. in South Dakota and JBS Foods Inc. in Colorado, respectively, for failing to protect their workers from exposure to the coronavirus. Smithfield was in the news earlier this year, along with other meat processing plants, for high rates of COVID infection among employees. In Smithfield’s case, 1,300 of its 3,700 workers tested positive for the coronavirus, 43 workers were hospitalized, and four workers died. The JBS Foods citation stemmed from a COVID-19 outbreak at the plant resulting in positive tests for 290 workers and six deaths. Both plants were cited by OSHA for “serious” violations of the Act’s “General Duty” Clause, which requires employers to provide workplaces free from recognized hazards that can cause death or serious harm, and fined the maximum amount allowed by law.

OSHA also issued citations to four health care providers in September – two for violating respiratory protection and other standards, and two for failure to protect workers from exposure. Prior to September, OSHA had only issued two citations, in May and July, to nursing home facilities – one for failing to report hospitalizations of workers due to COVID-19, and one for failing to develop a comprehensive written respiratory protection program, among other issues.

Under the Act, the “General Duty” Clause requires an employer to furnish to its 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.” Employers can be cited for a violation of the General Duty clause if a recognized, serious hazard exists in their workplace and the employer “does not take reasonable steps to prevent or abate the hazard.”

The following elements are necessary to prove a violation of the General Duty Clause:

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

OSHA’s recent citations to Smithfield and JBS Foods reflect that a failure to implement safety standards, like social distancing and proper hygiene, that are designed to prevent the exposure and spread of COVID-19 – a known hazard likely to cause serious harm or death – in the workplace can constitute a serious violation of the Act under the General Duty Clause.

To ensure compliance with the OSH Act’s General Duty Clause with respect to the coronavirus, employers must establish and implement sound safety and health procedures consistent with recommendations from the CDC as well as state and local authorities. Further, an employer must be vigilant to ensure that managers, supervisors, and employees at all levels of the organization understand and follow these procedures. When an employee does report a confirmed case of COVID-19, the employer must conduct a reasonable investigation into whether the illness was contracted at work. If the evidence indicates that the illness is work-related, the employer must record it on the OSHA log and take appropriate steps to prevent further spread in the workplace.

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