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Commission to Test OSHA’s Use of Its General Duty Clause for Enforcement

  • November 11, 2015

The quasi-judicial body overseeing enforcement actions by the Occupational Safety and Health Administration has handed OSHA another challenge to the agency’s nascent use of guidance documents as the basis for issuing citations, rather than relying on legally promulgated standards.

In a rare move, the Occupational Safety and Health Review Commission (OSHRC) issued a briefing notice on September 18 asking interested parties to comment on OSHA’s use of its general duty clause to enforce policy on prevention of workplace violence. The move comes in response to an appeal to OSHRC by a health care employer of an alleged violation of the general duty clause of the Occupational Safety and Health Act (OSH Act) for failing to provide a workplace free of recognized hazards. The employer was cited following the December 2012 fatal stabbing of an employee by a company client who was mentally ill and allegedly had a history of violent behavior. The victim was a health service coordinator responsible for mental and physical health assessments on behalf of insurers and for coordinating services. A judge had previously upheld OSHA’s enforcement action (see our article, OSHA Moves to Enforce Workplace Violence in Healthcare).

In the absence of enforceable standards, OSHA increasingly has used the statutory general duty provision, designated as section 5(a)(1), to enforce policies issued through guidance documents relating to alleged workplace violence, ergonomics hazards, and other concerns.

OSHA’s use of guidance documents for enforcement purpose has caught the attention of Congress. The issue was raised at Senate hearings in September and in the House of Representatives in November (see our articles, Lawmakers Pledge Action to Curb Agency Guidance Documents and House Lawmakers Grill OSHA Administrator on Enforcement Issues). Congressional concern has arisen in part due to OSHA’s reliance on guidance documents released this summer to enforce provisions of its process safety management standard.

In OSHRC’s healthcare case, the commissioners gave parties and other interested stakeholders until the end of October to submit briefs on three specific issues, according to Inside OSHA Online. First, does the general duty clause apply to the alleged workplace violence hazard of a physical assault on the employee by a client with an alleged history of violent behavior? If so, has OSHA established not only that the employer or its industry recognized the hazard, but also that they recognized a feasible and effective means of abatement existed to materially reduce the hazard? Finally, OSHRC afforded respondents an opportunity to address the effect, if any, of OSHA’s recent Guidance for Preventing Workplace Violence in Healthcare and Social Service Workers.

OSHA released the guidance document this spring, along with advice encouraging employers to use the guidelines to develop, with employee input, appropriate workplace violence prevention programs. Industry, however, was put off by the guidelines, particularly by the suggestion that they could bolster general duty citations. The current case is believed to be the first high-profile test of the legal arguments on both sides.

Given OSHA’s liberal use of the general duty clause as an enforcement tool in recent years, the regulated community is watching this litigation closely — a decision may make potential general duty-based citations more predictable. OSHRC has not committed to a specific timetable for rendering its decision.

In contrast to OSHA’s lack of a workplace violence standard, California’s safety agency, Cal/OSHA, may release a draft standard for public review by November or December to address the risks of violence in health care settings, Inside OSHA Online reported.

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