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Federal Register / Vol. 86, No. 116 / Monday, June 21, 2021 / Rules and Regulations See Natl Grain & Feed Assn v.
Occupational Safety & Health Admin., 866 F.2d 717, 721 5th Cir. 1988 noting Secretarys difficulty in proving explosion hazards of grain handling under General Duty Clause. Although OSHA had attempted to address fire and explosion hazards in the grain handling industry under the General Duty Clause, employers generally were successful in arguing that OSHA had not proved that the specific condition cited could cause a fire or explosion. Id. at 721 & n.6
citing cases holding that OSHA failed to establish a fire or explosion hazard under the General Duty Clause. In other words, the General Duty Clause was not an effective tool because OSHA could not prove that existing conditions at the cited workplace were hazardous. The Grain Handling Standard, in contrast, established specific limits on accumulations of grain dust based on its combustible and explosive nature, and the standard allowed OSHA to cite employers for exceeding those limits without the need to prove at the enforcement stage that each cited accumulation was likely to cause a fire or explosion. See id. at 72526. The same logic applies to COVID19
hazards. Given OSHAs burden under the General Duty Clause to prove that conditions at the cited workplace are hazardous, it is difficult for OSHA to ensure necessary abatement before employee lives and health are unnecessarily endangered by exposure to COVID19. The ETS, on the other hand, allows OSHA to cite employers for each protective requirement they fail to implement without the need to prove in an enforcement proceeding that the particular cited workplace was hazardous at the time of citation without that particular measure in place.
An additional limitation of the General Duty Clause is that it requires OSHA to show that there was a feasible and effective means of abating the hazard. To satisfy this element, OSHA is required to prove that there are abatement measures that will be effective in materially reducing the hazard. See Integra Health Management, 2019 WL 1142920, at 12. Proving the existence of feasible abatement measures that will be effective in materially reducing the hazard usually requires testimony from an expert witness, which limits OSHAs ability to prosecute these cases as broadly as needed to protect more workers. See, e.g., id. at 13 requiring expert witness to prove proposed abatement measures would materially reduce hazard. In contrast, where an OSHA standard
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specifies the means of compliance, the agency has already made the necessary technical determinations in the rulemaking and therefore does not need to establish feasibility of compliance as part of its prima facie case in an enforcement proceeding; instead, the employer bears the burden of proving infeasibility as an affirmative defense.
See, e.g., A.J. McNulty & Co. v. Secy of Labor, 283 F.3d 328, 334 D.C. Cir.
2002; S. Colorado Prestress Co. v.
Occupational Safety & Health Rev.
Commn, 586 F.2d 1342, 1351 10th Cir.
1978. Protecting as many workers as quickly as possible is especially critical in the context of COVID19 because, as explained in Section IV.A, Grave Danger, it can spread so easily in the workplaces covered by this ETS.
The General Duty Clause Is Ill-Suited to Requiring Employers To Adopt a Comprehensive Set of Complementary Abatement Measures, Like Those Required by the ETS
As explained in Section V. Need for the Specific Provisions of the ETS, effective infection control programs use a suite of overlapping controls in a layered approach to ensure that no inherent weakness in any one approach results in an infection incident. Each of the practices required by the ETS
provides some protection from COVID
19 on its own, but the practices must be used together to ensure adequate worker protection. However, General Duty Clause enforcement poses key obstacles that prevent OSHA from requiring the types of overlapping controls necessary to address COVID19 hazards. Because the General Duty Clause requires OSHA
to establish the existence and feasibility of abatement measures that can materially reduce a hazard, it can be difficult for OSHA to use 5a1 to require a full suite of overlapping or complementary control measures, or, in other words, to require additional abatement measures in situations where an employer is doing something, but not everything the ETS will require, to address COVID19 hazards.
In many cases over the past year where OSHA investigated COVID19related complaints, the agency discovered that employers were following some minimal mitigation strategy while ignoring other crucial components of employee protection. In such instances, because the employer had taken some steps to protect workers, successfully proving a General Duty Clause citation would have required OSHA to show that additional missing measures would have further materially reduced the COVID19 hazard.
Although OSHA believes each measure
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required by this ETS materially reduces the COVID19 hazard, there are key challenges inherent in trying to make such a showing in an individual case, such as the difficulty of pinpointing exactly when and how employees could become infected with COVID19 and establishing the magnitude of the effect particular abatement measures would have on reducing infection in the specific conditions present in the employers workplace. See, e.g., Pepperidge Farm, Inc., 17 OSH Cas.
BNA 1993, 1997 WL 212599, at 51
OSHRC No. 89265, Apr. 26, 1997
finding that additional feasible abatement measure established by the Secretary to address ergonomic hazard did not materially reduce the hazard in light of the other steps the employer had taken. The ETS cures this problem by imposing separate requirements for, and establishing the general effectiveness of, each necessary mitigation measure, thereby ensuring employers have an enforceable obligation to provide the full suite of workplace protections recommended by the CDC and other expert bodies.
Consider a hospital setting where patients with suspected or confirmed COVID19 receive treatment. The employer requires respirators for employees providing direct care to those patients but little else to protect those employees or other workers in those settings who are not directly involved in patient care. Under the ETS, OSHA can cite the employer for violating the specific requirements necessary to protect all workers in those settings, such as facemasks for workers who are not directly caring for patients, physical distancing or barriers between administrative employees and patients who have not yet been screened for suspected or confirmed COVID19, work practice controls for employees performing aerosol-generating procedures on people with suspected or confirmed COVID19, patient screening and management, paid leave for vaccination, and medical removal protection.
Without the ETS, however, OSHA
would have to cite the employer under the General Duty Clause for the much broader violation of failing to eliminate the recognized workplace hazard of COVID19 infection. This would require OSHA to prove: 1 That the hazard of COVID19 infection was present and recognized for employees at this particular healthcare workplace, and 2
that additional abatement methods would materially reduce the hazard, over and above the reduction achieved by the use of respirators as already required under 29 CFR 1910.134 for
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