Last week, the Occupational Safety and Health Administration (OSHA) issued a Notice of Proposed Rulemaking (Proposed Rule) to clarify the application of the General Duty Clause of the Occupational Safety and Health Act to certain inherently risky professional or performance-based occupations. The Proposed Rule seeks to codify OSHA’s position that employers are not required to eliminate hazards that are inseparable from the core nature of specific professional activities — such as those in entertainment, sports and animal handling — where addressing the hazard would fundamentally alter the activity itself.
Background
The General Duty Clause requires employers to provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Historically, OSHA has used this provision to address work-related hazards not otherwise covered by specific workplace safety and health standards. However, in light of recent U.S. Supreme Court decisions emphasizing the “major questions doctrine” — which limits agency authority absent clear congressional authorization — OSHA is reassessing the scope of its enforcement authority under the General Duty Clause.
Key Provisions
• The Proposed Rule would amend the Occupational Safety and Health Act's corresponding regulations to specify that the General Duty Clause does not require employers to remove hazards arising from inherently risky activities that are:
◦ Integral to the essential function of a professional or performance-based occupation.
◦ Unable to be eliminated without fundamentally altering or prohibiting the activity.
• Employers would still be required to make reasonable efforts to control such hazards through means that do not alter the nature of the activity (e.g., engineering controls, administrative controls, personal protective equipment).
• The Proposed Rule identifies, but does not limit application to, sectors such as live entertainment and performing arts, animal handling and performance, professional and extreme sports, motorsports and high-risk recreation, tactical and defense training, and hazard-based media and journalism activities. Employers operating within these industries, however, would remain subject to specific workplace safety and health standards applicable to their workplaces.
Next Steps
Comments on the Proposed Rule must be submitted by Sept. 2. If the Proposed Rule goes into effect, states with an OSHA-approved state plan may decide to adopt a similar interpretation of the General Duty Clause. However, they are under no obligation to do so. Although state plans are required to be "at least as effective" as the federal OSHA program, such plans are not prohibited from subjecting employers to more demanding workplace safety requirements.
