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Federal Register / Vol. 86, No. 116 / Monday, June 21, 2021 / Rules and Regulations
b. The General Duty Clause Is Inadequate To Meet the Current Crisis Section 5a1 of the OSH Act, or the General Duty Clause, provides the general mandate that each employer furnish to each of 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. 29 U.S.C. 654a1. While OSHA has attempted to use the General Duty Clause to protect employees from COVID19-related hazards, OSHA has found that there are significant challenges associated with this approach and therefore this ETS is necessary to protect the workers covered by this standard from the grave danger posed by COVID19. While the General Duty Clause can be used in many contexts, in OSHAs experience over the past year, the clause falls short of the agencys mandate to protect employees from the hazards of COVID19 in the settings covered by the standard. As explained more fully below, OSHA
finds the ETS will more efficiently and effectively address those hazards. Cf.
Bloodborne Pathogens, 56 FR 64004, 64007, 64038 Dec. 6, 1991 bloodborne pathogens standard will more efficiently reduce the risk of the hazard than can enforcement under the general duty clause.
As an initial matter, the General Duty Clause does not provide employers with specific requirements to follow or a roadmap for implementing appropriate abatement measures. The ETS, however, provides a clear statement of what OSHA expects employers to do to protect workers, thus facilitating better compliance. The General Duty Clause is so named because it imposes a general duty to keep the workplace free of recognized serious hazards; the ETS, in contrast, lays out clear requirements for COVID19 plans, facemasks, distancing, barriers, cleaning, personal protective equipment, and training, among other things, and identifies the settings in which they are required. Conveying obligations as clearly and specifically as possible provides employers with enhanced notice of how to comply with their OSH Act obligations to protect workers from COVID19 hazards. See, e.g., Integra Health Mgmt., Inc., 2019
WL 1142920, at 7 n.10 OSHRC No.
131124, 2019 noting that standards give clear notice of what is required of the regulated community; 56 FR
64007 because the standard is much more specific than the current requirements general standards and the general duty clause, employers and employees are given more guidance in
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carrying out the goal of reducing the risks of occupational exposure to bloodborne pathogens.
Moreover, several characteristics of General Duty Clause enforcement actions limit how effectively OSHA can use the clause to address hazards associated with COVID19. Most important, the General Duty Clause is not a good tool for requiring employers to adopt specific, overlapping, and complementary abatement measures, like those required by the ETS, and some important worker-protective elements of the ETS such as payment for medical removal would be virtually impossible for OSHA to require and enforce under the General Duty Clause.
Second, OSHAs burden of proof for establishing a General Duty Clause violation is heavier than for standards violations.
Third, the ETS will enable OSHA to issue more meaningful penalties for willful or egregious violations, thus facilitating better enforcement and more effective deterrence against employers who intentionally disregard their obligations under the Act or demonstrate plain indifference to employee safety. Fourth, the General Duty Clause does not provide complete protection to employees at multiemployer worksites, which are common situations in hospitals, where more than one employer controls hazards at the workplace. The ETS will permit more thorough enforcement in these situations. Each of these is discussed in more detail below.
General Duty Clause Citations Impose a Heavy Litigation Burden on OSHA
For contested General Duty Clause citations to be upheld, OSHA must demonstrate elements of proof that are supplementary to, and can be more difficult to show than, the elements of proof required for violations of specific standards, where a hazard is presumed.
Specifically, to prove a violation of the General Duty Clause, OSHA needs to establishin each individual case that: 1 An activity or condition in the employers workplace presented a hazard to an employee; 2 the hazard was recognized; 3 the hazard was causing or was likely to cause death or serious physical harm; and 4 feasible means to eliminate or materially reduce the hazard existed. BHC Nw. Psychiatric Hosp., LLC v. Secy of Labor, 951 F.3d 558, 563 D.C. Cir. 2020.
For the first element of a General Duty Clause case, OSHA must prove that there is a hazard, i.e., a workplace condition or practice to which employees are exposed, creating the potential for death or serious physical
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harm to employees. See SeaWorld of Florida LLC v. Perez, 748 F.3d 1202, 1207 D.C. Cir. 2014; Integra Health Management, 2019 WL 1142920, at 5.
In the case of COVID19, this means showing not just that the virus is a hazard as a general mattera fairly indisputable pointbut also that the specific conditions in the cited workplace, such as performing administrative tasks in a waiting room setting where patients are seeking treatment for suspected or confirmed COVID19, create a hazard. In contrast, an OSHA standard that requires or prohibits specific conditions or practices establishes the existence of a hazard. See Harry C. Crooker & Sons, Inc. v. Occupational Safety & Health Rev. Commn, 537 F.3d 79, 85 1st Cir.
2008; Bunge Corp. v. Secy of Labor, 638 F.2d 831, 834 5th Cir. 1981. Thus, in enforcement proceedings under OSHA standards, as opposed to the General Duty Clause, the Secretary need not prove that the violative conditions are actually hazardous.
Modern Drop Forge Co. v. Secy of Labor, 683 F.2d 1105, 1114 7th Cir.
1982. With OSHAs finding that the hazard of exposure to COVID19 can exist in the workplaces covered by this standard see Grave Danger, above, the ETS will eliminate the burden to repeatedly prove the existence of a COVID19 hazard in each individual case under the General Duty Clause.
One of the most significant advantages to standards like the ETS
that establish the existence of the hazard at the rulemaking stage is that the Secretary can require specific abatement measures without having to prove that the cited workplace is hazardous.16 In contrast, under the General Duty Clause, the Secretary cannot require abatement before proving in the enforcement proceeding that an existing condition at the workplace is hazardous. For example, in a facial challenge to OSHAs Grain Handling Standard, which was promulgated in part to protect employees from the risk of fire and explosion from accumulations of grain dust, the Fifth Circuit acknowledged OSHAs inability to effectively protect employees from these hazards under the General Duty Clause in upholding, in large part, the standard.
16 The Act does not wait for an employee to die or become injured. It authorizes the promulgation of health and safety standards and the issuance of citations in the hope that these will act to prevent deaths and injuries from ever occurring. Whirlpool Corp, v. Marshall, 445 U.S. 1, 12 1980; see also Arkansas-Best Freight Sys., Inc. v. Occupational Safety & Health Rev. Commn, 529 F.2d 649, 653
8th Cir. 1976 noting that the OSH Act is intended to prevent the first injury.

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