In 2010, a trainer at SeaWorld was grabbed and drowned by an orca during a live show. Following an investigation, the federal Occupational Safety and Health Administration issued citations to the employer under the General Duty Clause (GDC). Under OSHA’s enabling legislation, the agency can cite employers for unreasonable dangers to employees even if the hazard is not covered by a specific safety standard. SeaWorld appealed the citation, which was eventually upheld by a federal appellate court in 2014. The dissenting judge in that case stated that the GDC does not permit OSHA to cite employers for hazards that are intrinsic to the work.
Citing that dissent, earlier this month OSHA released a proposal that would prohibit the agency from issuing GDC citations for injuries associated with hazardous activities that are intrinsic to the work performed. The ban would apply to professional, athletic, and entertainment work that involves clear risks of injury known in advance to employees who agree to participate.
If finalized, the rule would not apply to ordinary manufacturing, service, or other jobs where employees do not assume the risk of potential injury based on the nature of that work. However, in some circumstances, employers that disclose such inherent risks could avoid regulatory liability if such injuries occur. OSHA is accepting comments on the proposal through September 2, 2025.
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