Key Takeaways:
- OSHA proposes to limit scope of General Duty Clause in specific, entertainment-related industries
- Limitation draws upon rationale expressed by then-Judge Kavanaugh in 2014 dissent
- Change is consistent with Trump Administration’s deregulation campaign and portends further deregulation efforts in the OSHA sphere
In a July 2025 Notice of Proposed Rule Making, the Occupational Safety and Health Administration (OSHA) unveiled its plans to narrow its interpretation of numerous safety regulations. One of the most significant changes would be to the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act (“OSH Act”), by eliminating from enforcement known hazards that are “inherent and inseparable” from the core nature of a professional activity or performance. OSHA reexamined its authority under Section 5(a)(1) in light of recent developments in administrative and constitutional law. The change would narrow OSHA’s catch-all enforcement mechanism in these industries and perhaps presages the Trump Administration’s intent to similarly narrow the General Duty Clause in other industries.
The OSH Act’s General Duty Clause (the “Clause”) requires that a workplace be “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 29 U.S.C. 654(a)(1). OSHA has broadly interpreted this provision to assert its regulatory authority to issue citations to employers for inherent job-related hazards when no specific OSHA standard applied. Against a scathing dissent by now-Justice Kavanaugh in SeaWorld of Florida, LLC v. Perez, the D.C. Circuit upheld in 2014 OSHA’s interpretation of the Clause’s terms to encompass an implicit grant of authority to regulate sports, entertainment, and performance professions that are risky by design yet central to entire sectors of the economy. OSHA’s proposed clarification draws heavily from then-Judge Kavanaugh’s dissent to narrow the agency’s implicit power to regulate workplace hazards in those professions.
The proposed rule would have two key impacts to performance, athletic, and entertainment occupations. First, the proposed rule explicitly indicates that citations are not authorized under the General Duty Clause for hazards arising from inherently risky employment activities where: the activity is integral to the essential function of a professional or performance-based occupation; and the hazard cannot be eliminated without fundamentally altering or prohibiting the activity. Second, it makes clear employers are not required to remove hazards arising from inherently risky employment activities under the same conditions.
Proponents of the proposed rule believe that the scaled-back interpretation more accurately aligns with Congress’s textual extension of agency authority in the OSH Act, eliminates arbitrary distinctions between some inherently risky occupations and others, and perhaps most importantly, supports worker autonomy. Fundamentally, the narrowed interpretation conveys that individuals should have the freedom to engage in dangerous activities, even as a career choice, despite the risks, and that regulators shouldn’t interfere with this choice to the detriment of employers. Critics, however, denounce the policy as demonstrating a disregard for worker safety by suggesting that employees in inherently dangerous jobs should willingly accept the risks involved. OSHA published the Notice of Proposed Rulemaking July 1, 2025, seeking specific feedback from the public during the notice and comment period. Should the rule move forward as planned, the effective date will not likely be until 2026 or later.
Most importantly, by deregulating activities like these—where employees are aware of the inherent dangers yet still choose to take part—OSHA signals a potential plan to fulfill President Trump’s campaign promise of government regulation reduction. It’s not hard to see what could easily come next: if inherently risky employment activities in the sports or entertainment industries can no longer be cited under the General Duty Clause, OSHA could similarly determine that inherently dangerous work in other highly hazardous industries is outside the scope of OSHA’s catch-all enforcement mechanism. While Trump’s first Administration generally left OSHA untouched despite a similar deregulation campaign, this change signals that it could be a whole new ballgame this go around.
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