PAST ISSUES OF THE CONSTRUCTION SITE PERSONAL INJURY NEWSLETTER

THE OSHA GENERAL DUTY CLAUSE

    OSHA has adopted specific regulations for most aspects of the construction industry. However, there will always be occasions when a dangerous condition or recognized hazardous situation may exist which does not directly violate any specific OSHA regulation. For example, failing to provide fall protection to ironworkers performing steel erection work less than 25-feet above the ground is not a violation of the current OSHA Subpart R, the steel erection Standard. Nevertheless, working at 20 or 22-feet without fall protection is clearly a recognized hazard for ironworkers. Indeed, one-third of all ironworker injuries related to falls occur at heights of less than 25-feet. The drafters of OSHA knew that every conceivable hazard could not be regulated by a specific Standard so the General Duty Clause was written to cover those recognized hazards not specifically included in other regulations.

    The General Duty Clause is found at Section 5(a) of the OSH Act. It provides in pertinent part as follows:

Sec. 5(a) - Each employer -

1. shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing, or likely to cause, death or serious physical harm to his employees.

    This "catch all" provision allows OSHA inspectors to issue citations to contractors for unsafe conditions and recognized hazards for which there is no specific identifiable OSHA Standard. It also may be evidence of a breach of duty of the contractor in a civil suit brought by an injured workman.

    The General Duty Clause is an important tool in the pursuit of construction safety. It has been liberally used to protect workers in many situations, including the following:

• Failing to provide fall protection to ironworkers at less than 25-feet.  Secretary of Labor v. Monadnock Erectors, Inc., 15 OSHC 1800 (1992)

• Morton Buildings, Inc., 70 OSHC 1702 (1979)

• Allowing hazardous atmospheres and confined spaces.  Secretary of Labor v. CNG Transmission Corp., 16 OSHC 1737 (1994)

• Faulty brake problems on motorized equipment.  Secretary of Labor v. Wheeling-Pittsburgh Steel Corp., 16 OSHC 1218 (1993)

• Failure to adequately warn workers of specific hazards involved in employment.  Secretary of Labor v. Maskell v. Robbins, Inc., 16 OSHC 1457 (1993)

• Allowing workmen to stand under a stack of flatbed trailers.  Secretary of Labor v. Cornell and Co., 15 OSHC 1494 (1991)

• Failure to use a blow-out preventer in an oil well.  Secretary of Labor v. Well Solutions, Inc., 17 OSHC 1211 (1995)

• Failure to follow ANSI Standards where they were applicable.  Secretary of Labor v. Fluor Constructors International, Inc., 17 OSHC 1947 (1997)

• Descent into an un-ventilated grain elevator. Donovan v. Odessa MFA Exchange, 10 OSHC 1460 (1982)

    These are just some of the numerous situations in which the General Duty Clause has been used to improve construction site safety for the construction worker. The General Duty Clause is available in all aspects of the construction industry to prevent recognized hazards from causing injury or death.