OSHA’s Proposed General Duty Clause Modifications: Much Ado About Nothing?

Quick Hits

• OSHA has proposed changes to the General Duty Clause to limit its application in inherently risky professional activities. The proposal would clarify that the GDC does not require employers to eliminate hazards that are integral to certain professional activities if doing so would fundamentally alter or prohibit the activities.
• The proposed rule emphasizes that OSHA will focus on employers’ “reasonable efforts” and measures to reduce risks without changing the nature of the work. Such measures include engineering and administrative controls, specialized training, emergency procedures, equipment maintenance, and the use of appropriate personal protective equipment (PPE).
• While the proposal aims to provide clarity and consistency, there are concerns that narrowing the GDC’s scope could weaken deterrence and lead to uneven protections. The proposal, however, does not affect GDC enforcement for recognized hazards outside inherently risky professional activities and maintains the traditional four-element GDC test for general industry, construction, maritime, and agriculture.

Section 5(a)(1) of the Occupational Safety and Health Act obligates employers to furnish workplaces “free from recognized hazards that are causing or likely to cause death or serious physical harm.” In practice, GDC citations are appropriate only if no specific OSHA standard covers the hazard and OSHA can establish employee exposure, hazard recognition, the likelihood of serious harm, and feasible, useful abatement measures. The GDC applies to an employer’s own employees and is not a vehicle to impose more stringent requirements where a specific standard already governs.

Over the last decade, high‑profile cases, largely arising from the entertainment sector, have fueled debate over the extent to which OSHA may use the GDC to reshape the core practices of inherently risky industries without sector‑specific rulemaking. The proposed rule addresses such concerns by setting clearer limits on when OSHA could invoke the GDC.

OSHA would codify the expectation that the GDC does not require an employer to remove hazards that are inherent and integral to “the essential function of a professional or performance-based occupation” if eliminating those hazards would fundamentally alter or effectively prohibit the activity. The agency’s focus would shift to “reasonable efforts” by employers and measures that reduce risk without changing the nature of the work: engineering and administrative controls, specialized training, emergency procedures, equipment maintenance, and appropriate PPE.

The proposal lists examples of industries that may be impacted by the proposal, including live entertainment and the performing arts; animal handling and performance; professional and extreme sports; motorsports and high-risk recreation; tactical, defense, and combat-simulation training; and hazard-based media and journalism activities. The list is illustrative, but a critical component of the proposal that may be overlooked is that the activity must be “integral to the essential function of a professional or performance-based occupation.” This proposal would not apply to all workplaces across the country, but rather to a small subset of the workplaces.

Key terms—“inherently risky,” “integral,” “essential function,” and “fundamentally altering”—will be the battleground for interpretation. In close cases, the parties may disagree over whether a hazard is intrinsic to the essential function (e.g., the degree of contact in a sport or proximity protocols in training or performance) or merely incidental and therefore controllable. Regional variations in enforcement judgments are plausible, particularly during the early stages of implementation.

The proposed rule’s non‑exhaustive sector list invited public comment on scope. Industries adjacent to the enumerated examples may seek similar treatment, while worker advocates may push for narrower definitions. Traditional complexities around multi‑employer worksites and the GDC’s focus on an employer’s own employees will persist, influencing enforcement strategy and defense posture.

On one hand, the proposal promotes clarity, fairness, and consistency by signaling that OSHA will not use the GDC to reengineer this limited number of industries through ad hoc enforcement. As a result, the impacted industries can concentrate compliance energy on the best available controls that do not compromise the core activity, potentially yielding more durable, industry‑owned safety improvements.

On the other hand, a narrowing of the GDC’s scope could weaken deterrence at the margins. If “reasonable efforts” are interpreted narrowly or implemented perfunctorily, residual risk could rise for performers, athletes, handlers, and support crews—especially for temporary workers, minors, or lower‑status crew members who may have less bargaining power. Variability in regional interpretation could produce uneven protections. Ultimately, safety outcomes will hinge on how credibly employers and insurers institutionalize reasonable measures and how consistently OSHA applies the new boundaries.

The proposed limitation would not curtail OSHA’s GDC enforcement as to recognized hazards outside inherently risky professional activities and would not extend to industry as a whole. Expect continued and robust GDC use by OSHA, particularly in areas where no specific standard applies, including heat illness, workplace violence, ergonomics, and indoor environmental quality. In general industry, construction, maritime, and agriculture, the traditional four‑element GDC test would remain intact wherever hazards were not intrinsic to the work and not otherwise regulated.

The proposal reflects a jurisprudential trend that disfavors expansive policy shifts via catch‑all provisions without notice‑and‑comment rulemaking. It signals OSHA’s intention to narrow its GDC enforcement to avoid effectively remaking industries, absent sector‑specific standards. In doing so, the agency likely aims to bolster the legal defensibility of GDC citations by anchoring them within a clear, administrable boundary.

Key Takeaways

OSHA’s proposal represents a targeted recalibration of GDC enforcement. It preserves the clause’s central role for recognized, unregulated hazards across the economy while drawing a principled boundary around inherently risky professional activities. For affected industries, the change reduces enforcement pressure to eliminate core risks that define their work, but it does not absolve employers of the duty to implement reasonable, activity‑preserving protections. Safety outcomes will depend on the rigor with which “reasonable efforts” and measures are defined, documented, and audited—and on whether private standards and market incentives fill any gaps left by narrowed federal enforcement.

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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