Section 5(a)(1) of the Occupational Safety and Health Act of 1970 is commonly known as the General Duty Clause. The General Duty Clause is intended to give the Occupational Safety and Health Administration (OSHA) authority to address workplace hazards for which no occupational safety standard currently exists. Examples include heat-related illness, workplace violence, and most recently, airborne transmissible disease (COVID-19).
The General Duty Clause requires that “Every employer shall furnish to each of his employees employment and 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.” Certainly, recent events of the coronavirus pandemic have introduced new recognized hazards across many workplaces and employers are moving into new areas for safety programs and measures to effectively protect workers in this new environment of business re-opening and recovery.
To allege a General Duty Clause violation, OSHA must satisfy each part of a four-part test stemming from enforcement policy and court precedent. To issue a citation under the General Duty Clause, OSHA must prove the following:
- A hazard that poses a threat to the safety and well-being of employees exists in the workplace
- The alleged hazard is recognized by the employer or its industry
- The alleged hazard has the potential to cause injury or death
- The employer had the ability or was capable of addressing the hazard
One emerging outcome of pandemic recovery and return to work has been increasing OSHA action relating to employee complaints about serious health and safety concerns in the workplace linked to COVID-19.
Employers, when called upon to respond to employee complaints and OSHA investigations, must be prepared to communicate and support policies, procedures, protocols, and practices that exhibit an effective strategy to observe current public health guidelines and protect workers from illness.
Responding to an OSHA investigation for General Duty Clause (or State Plan COVID-19 Standard) violation will require formal and official documentation supporting compliance efforts.
Each operation and COVID-19 response strategy will be unique, but some consistent features of infectious disease control and response programs will apply. Read about these features by clicking below:
Please be advised that any and all information, comments, analysis, and/or recommendations set forth above relative to the possible impact of COVID-19 on potential insurance coverage or other policy implications are intended solely for informational purposes and should not be relied upon as legal or medical advice. As an insurance broker, we have no authority to make coverage decisions as that ability rests solely with the issuing carrier. Therefore, all claims should be submitted to the carrier for evaluation. The positions expressed herein are opinions only and are not to be construed as any form of guarantee or warranty. Finally, given the extremely dynamic and rapidly evolving COVID-19 situation, comments above do not take into account any applicable pending or future legislation introduced with the intent to override, alter or amend current policy language.
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