September 2014 newsletter

General Duty citations from OSHA may not hold up
Tim Sirofchuck joins FDRsafety

General Duty citations from OSHA may not hold up

By Jim Stanley
President, FDRsafety

If there is an OSHA citation most likely to be overturned on appeal to the Occupational Safety and Health Review Commission it would be one issued under the General Duty clause.

The General Duty clause is a catchall in the Occupational Safety and Health Act and it is frequently misunderstood, even by OSHA inspectors themselves.

The first thing to know is that the General Duty clause is not an OSHA regulation. Rather it is a provision under the Occupational Safety and Health Act that says that an employer has a general duty to furnish to each of its employees a workplace that is free from recognized hazards that are causing or likely to cause death or serious physical harm.

These general duty provisions can be used by OSHA to issue a violation, but only where there is no OSHA regulation that applies to the particular hazard and the employer has its own employees exposed to the alleged hazard.

To sustain a general duty clause violation, OSHA must prove all of the following, according to rulings by the Occupational Safety and Health Review Commission and the federal courts:

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

One error frequently made by OSHA is to cite an employer for failure to use a particular method to abate a hazard. All a General Duty citation can do is to address the failure to prevent or remove a hazard, not the failure to implement specific precautions or corrective measures.

OSHA gives the following example to illustrate the difference:

“Employees are conducting sanding operations that create sparks in the proximity of magnesium dust (workplace condition or practice) exposing them to the serious injury of burns from a fire (potential for physical harm). One proposed method of abatement may be engineering controls such as adequate ventilation. The ‘hazard’ is sanding that creates sparks in the presence of magnesium that may result in a fire capable of seriously injuring employees, not the lack of adequate ventilation.”

Because these requirements are not well understood, the success rate for employers appealing General Duty clause violations is higher than for other violations.

If your company has been cited for a General Duty violation by OSHA, you may want to seek outside help to determine if the citation is valid.

Jim Stanley is a former Deputy Assistant Secretary of Labor for OSHA. Contact him at jstanley@fdrsafety.com or 513-317-5644.

Tim Sirofchuck joins FDRsafety

Tim Sirofchuck, a veteran safety leader in the construction industry, has joined FDRsafety as Vice President of Operations.

Tim’s previous roles include:

Vice President and Corporate Safety Director for Clark Construction Group, a general contractor, where he oversaw a staff of 95 safety professionals.
Vice President of Safety and Loss Control at Turner Construction, where he oversaw a staff of 145 safety and health professionals.
Safety manager at AK Steel in Middletown, Ohio.

Need safety professionals?

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We offer temporary on-site safety professionals for a wide variety of work environments around the country and around the world, including construction, pipeline, heavy manufacturing, oil and gas, steel and other heavy industry. We also provide temporary professionals for occupational health/ industrial hygiene.

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We save you time and money. Candidates we present you are well qualified – not just names an agency gathered from an internet ad. FDRsafety pre-screens all candidates through performing interviews and reference checks. This allows us to expedite the process of hiring a permanent safety professional, from your initial request to the fulfillment of the position. FDRsafety is an economical solution to filling your organization’s open safety positions.
We guarantee our work. If you hire one of our candidates and you are not completely satisfied within the first six months, we will recruit a replacement at no additional charge.

For more information, contact FDRsafety at info@fdrsafety.com or (888) 755-8010

From our blog

OSHA appears ready to expand into HR enforcement
For the last few years, OSHA has been seeking to expand its powers as the enforcer of safety regulations. Now it appears interested in becoming a human resources enforcer as well. In an excellent article, attorneys Rod Smith, Pat Miller and Matt Morrison of Sherman & Howard explained the implications of a recent OSHA announcement.

Lack of machine guarding doesn’t always mean a hazard exists
FDRsafety is continuing to see OSHA cite employers for alleged violations of machine guarding in situations where employees would have to intentionally reach into a hazard zone to be injured. Not all these citations are valid, especially in light of a 1997 case decided by the Occupational Safety and Health Review Commission.

Enforcement

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