What is the general service clause?
The general service clause is located in Section 5 (a) (1) of the Act on Occupational Occupational Safety and Health, according to which employers “employment and a place of employment that are free of recognized dangers that are correct that cause or probably cause death or cause serious physical damage.” Below you will find the elements to prove a violation of the general service clause:
- The employer could not keep the workplace free of a danger that employees of this employer were exposed to.
- The danger was recognized;
- Caused the danger or probably to death or serious physical damage; And
- There was a practical and useful method to correct the danger.
[See December 18, 2003, OSHA Standard Interpretation Letter.]
In particular, the general service clause is “only used if there is no standard that applies to the respective danger.” In other words, the general service clause is often used as a all-cat-all or fallback if there is no specific OSHA standard. For example, violence could be cited as part of the general service clause at the workplace, since there is currently no OSHA standard for violence at the workplace.
Argument behind the proposed rule
The proposed regulation would be the first codified limitation of the general service clause, which is based on the then judge board Kavanaugh's Dissens in a DC Circuit case from 2014. In this case, Osha Seaworld quoted for a violation of the general service clause after the death of an animal trainer during a killer. [SeaWorld of Florida, LLC v. Perez, 748 F.3d 1202 (D.C. Cir. 2014).] The quote claimed that Seaworld had suspended employees of the recognized danger of close contact with Orca whales during the live appearances. The DC switching group confirmed the quote and kept Seaworld to reduce the risk of a barrier or a minimum distance between trainers and orcas. Judge Kavanaugh spoke and argued that the general service clause did not empower the OSHA to regulate dangers that result from normal activities that migrate for professional, sporty or entertainment professions.
The Dissens of Judge Kavanaugh did not grant the authority “to regulate and make an undefined Schwad of the American sports and entertainment good”, which contains “familiar sports and entertainment practices such as Punt Returns in the NFL, accelerates in Nascar or the Whale Show in Sea World”. This argument forms the basis for the so -called “main questions -doctrine”, according to which the congress must speak clearly if it authorizes an agency to decide considerable national consequences. Accordingly, the proposed rule would prevent Osha from the general service clause to regulate inherently risky professional activities “central for the entire economic sectors (central” (inherently risky professional activitiesfor exampleProfessional sport, marine shows, stunt performance). “
Proposed regulatory text
When completed, the rule 29 CFR part in 1975 would add the following regulatory text:
(a) In the general submission clause, employers do not have to eliminate any dangers that result from naturally risky employment activities, whereby:
(1) The activity is an essential part of a professional or performance -related profession. And
(2) The danger cannot be eliminated without fundamentally changing or forbidding the activity. And
(3) The employer has made appropriate efforts that do not change the type of activity to control the danger (for examplethrough technical controls, administrative controls, personal protective equipment).
(b) Such sectors can include, but are not limited to:
(1) Live entertainment and performing arts;
(2) Handling and performance of animals;
(3) Professional and extreme sports;
(4) motorsport and high-risk recovery;
(5) Tactical, defense and combat simulation training; And
(6) Hazard-based media and journalism activities.
In fact, the sectors listed in the proposed sub -section (B) would not be subject to violations of the general service clause.
Diploma
In view of the language “May contain May, but not limited” in the proposed sub -section (B) and the characterization of the list of enclosed sectors by the OSHA as a “non -exexhustative”, certain industries that are currently not listed will probably submit comments and submit the inquiry to request. Since the proposed rule is limited to professional and performance -related professions that contain risky activities that are clear for the essential function of the profession, it is not an invitation that all industries are excluded from the enforcement of the general service clause. However, Osha is also looking for comments to define the key terms in the regulatory text. If they are expanded, these important terms could expand the scope of the covered industries. The public commentary period ends on September 2, 2025.
Contact your regular Pillsbury contact or the authors of this warning to clear up recommendations to combat the concerns mentioned above to a practical extent.