By: Carl Habekost, Esq.
The Occupational Safety and Health Act requires all employers to “…furnish to each of his employees employment and a 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…” (Section 5(A)(1)). The COVID-19 Pandemic is a “recognized hazard” in the workplace. Therefore, employers must address this hazard and follow recommended guidelines issued by the Occupational Safety and Health Administration (OSHA) and the Center for Disease Control (CDC) and various state and local health departments to protect as much as possible their employees. However, if an employer fails to take the necessary steps to minimize or abate the recognized hazard presented by COVID-19, it may incur liability with OSHA for violating the “General Duty Clause”.
The General Duty Clause is sometimes called “The Catch All Provision” because it is used by OSHA when no specific regulation addresses a workplace hazard. For example, OSHA historically has utilized the General Duty Clause in workplace violence situations. Currently, there is no specific OSHA regulation which addresses the COVID-19 Pandemic. Therefore, OSHA has advised its Compliance Officers to use the General Duty Clause in citations involving COVID-19 workplace hazards when appropriate. There are specific legal requirements or elements which OSHA must prove for issuance of a General Duty Clause violation. They are:
- The workplace hazard was recognized;
- The employer failed to keep the workplace free of a hazard to which its employees were exposed;
- There was a feasible and useful method to correct the hazard;
- The hazard was causing or was likely to cause death or serious physical harm.
The courts have defined “recognized hazard” to mean public statements made by safety or health experts, OSHA Hazard Alerts, and government or insurance industry studies among others. Obviously, the COVID-19 Pandemic constitutes a “recognized hazard” in the workplace and it would be futile for employers to argue otherwise. Further, the COVID-19 hazard causes serious physical harm and even death. Therefore, employers should take appropriate action as recommended by OSHA and other agencies to correct or abate the COVID-19 hazard in order to protect their employees from exposure as much as possible and reduce liability for an OSHA General Duty Clause citation. Please refer to the OSHA Guidance publication and the Center for Disease Control publication for further guidance. Our Labor & Employment Section attorneys are also well versed in COVID-19 issues and are available for consultation. For more information on General Duty Clause, check out our free video