OSHA just proposed a new rule that would restrict its own ability to regulate inherently risky work, signaling a major shift in how the agency would apply the broad “General Duty Clause” in the sports, entertainment, and other industries. If the July 1 proposal is finalized, it could shield entire industries (also including motorsports, animal handling, hazard-based journalism, and more) from enforcement actions that threaten their core business models. What do employers need to know about this development?
General Duty Clause, in a Nutshell
The General Duty Clause is a provision of the Occupational Safety and Health Act (OSH Act) that requires employers to provide a workplace free from recognized hazards that are likely to cause death or serious harm, even if no specific OSHA standard applies.
In the past, the decision whether to cite an employer for a General Duty Clause violation boiled down to whether it merely complied with industry consensus standards – which OSHA has never adopted. But courts have held employers to task for not abating known or recognized hazards which expose their own employees to significant hazards. Examples of classic General Duty Clause hazards include combustible dust, ergonomics, workplace violence, and heat-related illness – areas that OSHA has focused on with national emphasis programs or even considered rulemaking, but never with specific rules.
Controversy Over Hazardous Work
But sometimes General Duty Clause enforcement has ventured into occupational hazards which are inherent and intertwined with the nature of an industry, such as sports and entertainment industries.
- In 2010, OSHA cited an amusement park employer under the General Duty Clause for a tragic and deadly interaction between a highly trained animal trainer and a killer whale during a show.
- The performance was part of the employer’s overarching mission of educating the public about marine animals.
- The D.C. Circuit upheld a citation under the General Duty Clause.
- But a dissent written by then-Judge (now Supreme Court Justice) Brett Kavanaugh set the table for last week’s action from OSHA. He rejected the idea that Congress intended OSHA to regulate (and potentially eliminate) dangerous sports and entertainment activities like NASCAR, professional football, or the show in question at the amusement park – at least without engaging in the give and take of rulemaking. See SeaWorld of Florida, Inc. v. Perez, 748 F.3d 1202, 1217 (D.C. Cir. 2014) (Kavanaugh, J., dissenting).
What Just Happened?
Now, 11 years later, OSHA published a Notice of Proposed Rulemaking to codify Justice Kavanaugh’s dissent. On July 1, OSHA gave notice to the public that it intends to pass a rule preventing itself from enforcing the General Duty Clause from regulating “professional activities that are inherently risky and central to entire sectors of the economy,” and where employers have taken “reasonable measures” to address the hazards that do not alter the nature of the activity. OSHA gave a non-exhaustive list of some affected industries:
- Live entertainment and 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 proposed rule would not necessarily be limited to those areas, as OSHA called the list “non-exhaustive.” However, the agency is soliciting public comments on whether to limit the rule to those listed sectors. After considering public comments, OSHA will decide how to move forward with a final rule – a process that can take some time.
What Does it Mean?
But the proposed rulemaking signals a push by the new administration to refrain from using its power to alter longstanding employment practices that are inherently risky, and for which the hazard can be addressed “without fundamentally altering” the activity. Unless OSHA limits the rulemaking to the sports and entertainment sectors, the rule could have farther reaching implications for a wide variety of sectors with inherently dangerous work.
Enforcement under the General Duty Clause has long required at least one feasible means of abating the recognized hazard, so it is unclear whether the proposed rule would simply enhance that protection with rulemaking for certain high-risk activities, or whether the rule will signal that OSHA cannot use the General Duty Clause to stop whole industries in their tracks and fundamentally change the nature of a business. The logic of the rule seems to be that OSHA should not have the authority to stop an established but risky practice central to an entire industry by using the elusive General Duty Clause. It seems clear however, that this administration desires their policy choice here to outlast them, as a regulation will require the same rulemaking process to be changed. Only time will tell how expansive any eventual final rule appears, and how it is seen by courts (and successive administrations).
What Should Employers Do?
Stay tuned to these developments. Employers in affected industries should also submit comments to OSHA on this rule, particularly in support of not limiting the rule to just the industries listed, because it will push OSHA in the future to engage in specific rulemaking before issuing significant penalties and abatement obligations against unique businesses. Employers in the sports, entertainment, and amusement park industries should also submit comments supporting how critical this rule will be to protect their core business models from being impacted by an adventurous enforcement action from an OSHA regional office.
