OSHA rarely uses the General Duty Clause (less then 2% of all citations) since they lose most of them in court. Not a slam dunk in my opinion.
Zack
S.Z. Mansdorf, PhD, CIH, CSP, QEP
Consultant in EHS and Sustainability
7184 Via Palomar
Boca Raton, FL 33433
561-212-7288
From: ACS Division of Chemical Health and Safety <DCHAS-L**At_Symbol_Here**Princeton.EDU> On Behalf Of Info
Sent: Thursday, November 4, 2021 10:17 AM
To: DCHAS-L**At_Symbol_Here**Princeton.EDU
Subject: Re: [DCHAS-L] OSHA issues emergency temporary standard to protect workers from coronavirus
Insurance carriers and attorneys will take up any slack, no doubt.
It will be interesting to see if anyone ultimate pursues class actions based on the OHSA General Duty Clause, particularly from early in the pandemic in places like meat processing facilities. See, for example, https://www.cbsnews.com/news/covid-19-meat-workers-59k/ I would expect that any defendant would try to argue that not enough was known at the time to take proper measures, but that the discovery process will ultimately show otherwise.
Employers can be cited for 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 General Duty Clause is used only where there is no standard that applies to the particular hazard. The following elements are necessary to prove a violation of the General Duty Clause:
- The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;
- The hazard was recognized;
- The hazard was causing or was likely to cause death or serious physical harm; and
- There was a feasible and useful method to correct the hazard.
Slam dunk case in my mind.
I wonder if OSHA has an enforcement strategy for this that reflects its resource levels?
- Ralph
https://content.govdelivery.com/accounts/USDOL/bulletins/2fab063
News Release from OSHA
U.S. Department of Labor | November 4, 2021
US Department of Labor issues emergency temporary standard to protect workers from coronavirus
Increases protections for 84M private sector workers
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