Eleventh Circuit Limits General Duty Clause’s Applicability When a Specific Safety Standard Exists for a Particular Hazard

On May 30, 2023, the U.S. Court of Appeals for the Eleventh Circuit issued a significant decision addressing the Occupational Safety and Health Administration’s (OSHA) use of the “General Duty Clause.” The decision limits OSHA’s ability to address a safety hazard with the General Duty Clause when a safety standard exists that “specifically addresses” the cited hazard (though the standard may not eliminate or set forth every conceivable way to address the safety hazard). The decision will, at least for employers in Alabama, Florida, and Georgia, limit the General Duty Clause’s application in a number of circumstances.

Quick Hits

• The Eleventh Circuit issued a ruling that limits OSHA’s ability to address a safety hazard with the General Duty Clause when a safety standard exists that addresses the hazard.
• The court stated that OSHA’s method would allow the agency to “avoid preemption of any standard by distinguishing between the hazards the standard addresses and the hazards that occur when the standard fails.”
• The decision, which is binding on federal courts in the Eleventh Circuit, has significant implications for employers in Alabama, Florida, and Georgia.

Section 5(a)(1) of the Occupational Safety and Health (OSH) Act creates a duty for all employers to maintain a safe and healthful workplace free from recognized hazards. This is the so-called “General Duty Clause.”

While OSHA has a plethora of standards applicable to specific workplace hazards, there are instances in which a safety hazard exists that does not correspond to any OSHA standard. To address such circumstances, the U.S. Congress created the General Duty Clause as part of the OSH Act. The General Duty Clause is a catchall used by OSHA when a specific OSHA standard to address an issue does not exist, but some form of industry standard does.

To prove a violation of the General Duty Clause, OSHA must demonstrate that: (1) the employer failed to maintain its workplace free from a hazard to which employees were exposed; (2) the hazard was recognized; (3) the hazard was likely to cause death or serious physical harm; and (4) there was a feasible and economically viable way to correct the hazard. Unlike with specific OSHA standards, OSHA must demonstrate the employer knew of the hazard and failed to implement any feasible corrective action in order to cite the employer under the General Duty Clause. OSHA has used the General Duty Clause when citing employers for common hazards including COVID-19, heat stress, indoor air quality, and workplace violence.

When citing an employer, OSHA cannot “double dip” and cite the employer under both the General Duty Clause and a specific standard for the same hazard. OSHA must also ensure no specific OSHA standard applies to the hazard prior to citing the employer under the General Duty Clause. For example, 29 C.F.R. § 1910.147 specifically applies to lockout/tagout requirements, and, because the specific standard exists, OSHA cannot cite an employer for a lockout/tagout safety hazard under the General Duty Clause.

The Eleventh Circuit’s decision concerns a General Duty Clause citation that OSHA issued to an employer in 2019 after an “under-ride” forklift accident. An under-ride occurs when the back part of a forklift is short enough to pass under the first shelf rack in a warehouse without hitting the rack. When this occurs, operators can be injured if caught between the forklift and the rack. The employer contested the citation, arguing that a citation under the General Duty Clause was inappropriate because it had complied with OSHA’s powered industrial trucks standard (29 C.F.R. § 1910.178), which addresses under-ride hazards. An administrative law judge with the Occupational Safety and Health Review Commission affirmed the citation, finding that “even adhering to section 1910.178, the under-ride hazard would still exist in the workplace due to inattention and inadvertence.”

In rejecting the administrative law judge’s finding, the Eleventh Circuit held that drawing a distinction between a standard that prevents under-ride hazards and a standard that addresses the hazards that arise in the event of an under-ride “would upend the regulatory scheme.” OSHA would essentially be able to avoid preemption by distinguishing between the hazards a standard addresses and the hazards that occur when a standard fails. The court found this contrary to OSHA’s responsibility to modify “inadequate” safety standards through public notice and comment, using the required procedural safeguards.

29 C.F.R. § 1910.5(f) states:

An employer who is in compliance with any standard in this part shall be deemed to be in compliance with the requirement of section 5(a)(1) of the Act, but only to the extent of the condition, practice, means, method, operation, or process covered by the standard.

The Eleventh Circuit’s decision includes a quote from Simmons v. Block, an opinion it issued in 1986, which reads as follows: “The failure of an agency to comply with its own regulations constitutes arbitrary and capricious conduct.”

The court’s May 2023 opinion focuses heavily on the question of whether, for a standard to preempt issuance of a General Duty Clause citation, the standard has to address all conceivable ways of reducing the hazard or eliminate the hazard as a whole:

The administrative law judge’s interpretation of section 1910.5(f) is also unreasonable because it requires that compliance with the specific standard eliminate the hazard for preemption to occur. Section 1910.5(f) nowhere requires that compliance with the standard “eliminate” a hazardous condition. Nor does Commission precedent require that the standard eliminate the hazard.

This decision is welcome news for employers in Alabama, Florida, and Georgia. If companies in these states comply with safety standards specifically addressed to certain hazards, OSHA cannot cite them under the General Duty Clause for failing to protect their employees from those very same hazards. At least, as relates to the states in the Eleventh Circuit (Alabama, Florida, and Georgia), the General Duty Clause citation issued where there is no violation of a written standard may have reached the end of its time.

Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments and will provide updates on the Workplace Safety and Health blog as additional information becomes available.

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