The General Duty Clause: OSH Act Section 5(a)(1) Explained

Not every serious hazard has its own OSHA standard. The General Duty Clause is part of the OSH Act itself. It requires you to give your employees work and a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm (Section 5(a)(1)).

What the law says

Section 5 of the Occupational Safety and Health Act of 1970 (29 USC 654) says 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 are likely to cause death or serious physical harm to his employees;

(2) shall comply with occupational safety and health standards promulgated under this Act.

Section 5(b) covers employees:

(b) Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct.

Paragraph (a)(1) is the General Duty Clause. Paragraph (a)(2) is the separate duty to follow OSHA's standards.

Which sources are law and which are policy

Section 5 of the OSH Act is a statute. It is law.

Most of the detail below comes from OSHA's Field Operations Manual (FOM), which is OSHA's internal enforcement policy. It is not a regulation. OSHA calls it "a reference document" for its offices, and the manual says: "No duties, rights, or benefits, substantive or procedural, are created or implied by this manual." It shows how OSHA tells its own staff to apply the clause.

Citations that start with "FOM" give the heading within FOM Chapter 4, Section III, "General Duty Requirements."

When OSHA uses it

The FOM tells OSHA staff that the clause "shall be used only where there is no standard that applies to the particular hazard and in situations where a recognized hazard is created in whole or in part by workplace conditions or practices that are not covered by a standard" (FOM, "Use of the General Duty Clause").

An OSHA regulation makes a related point. An employer who is in compliance with any standard in Part 1910 is deemed to be in compliance with Section 5(a)(1), "but only to the extent of the condition, practice, means, method, operation, or process covered by the standard" (1910.5(f)).

OSHA's own topic pages refer to the clause for heat-related hazards, workplace violence, and ergonomic hazards.

What OSHA must show

The FOM lists four elements as "necessary to prove a violation of the general duty clause" (FOM, "Evaluation of General Duty Requirements"):

1. "The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;"
2. "The hazard was recognized;"
3. "The hazard was causing or was likely to cause death or serious physical harm; and"
4. "There was a feasible and useful method to correct the hazard."

A hazard your own employees are exposed to

The FOM defines a hazard as "a workplace condition or practice to which employees are exposed, creating the potential for death or serious physical harm to employees." It must be one that "can reasonably be abated by the employer" (FOM, "Definition of a Hazard").

The hazard "must be reasonably foreseeable" (FOM, "The Hazard Must be Reasonably Foreseeable"). The exposed employees "must be the employees of the cited employer" (FOM, "The Hazard Must Affect the Cited Employer's Employees").

Recognized

The FOM describes three ways recognition can be established (FOM, "The Hazard Must Be Recognized"):

• Employer recognition. Evidence of "actual employer knowledge of a hazardous condition or practice." The FOM's examples include safety work rules that specifically identify a hazard, prior accidents/incidents, and injury and illness reports.
• Industry recognition. A hazard is recognized "if the employer's relevant industry is aware of its existence." The FOM's examples include manufacturers' warnings and abatement methods used by other members of the industry.
• Common sense recognition. If employer or industry recognition cannot be established, the FOM says recognition can still be established where a hazardous condition is "so obvious that any reasonable person would have recognized it." The FOM says this form "should be used only in flagrant or obvious cases."

Likely to cause death or serious physical harm

The FOM says this element can be established by showing that an actual death or serious injury resulted from the recognized hazard, or that if an accident/incident occurred, "the likely result would be death or serious physical harm" (FOM, "The Hazard Was Causing or Likely to Cause Death or Serious Physical Harm").

The FOM also says "Other-than-serious citations shall not be issued for general duty clause violations" (FOM, "Classification of Violations Cited under the General Duty Clause").

A feasible and useful fix

The FOM says OSHA "must also identify the existence of a measure(s) that is feasible, available, and likely to correct the hazard" (FOM, "The Hazard May be Corrected by a Feasible and Useful Method").

What it means for an employer

OSHA's manual treats the clause as setting a result, not a method. The FOM says Section 5(a)(1) "does not mandate a particular abatement measure but only requires an employer to render the workplace free of recognized hazards by any feasible and effective means the employer wishes to use" (FOM, "Do Not Cite the Lack of a Particular Abatement Method").

Easy-to-miss points

• An accident alone does not prove a violation. The FOM says the occurrence of an accident/incident "does not necessarily mean that the employer has violated Section 5(a)(1), although the accident/incident may be evidence of a hazard" (FOM, "The Hazard is Not a Particular Accident/Incident").
• Consensus standards can count as evidence. The FOM says private standards (it names ANSI and NFPA) "cannot be enforced as OSHA standards, but they can be used to provide evidence of industry recognition, seriousness of the hazard, or feasibility of abatement methods" (FOM, "The Hazard Must Be Recognized," under "Industry Recognition").
• A fix you started and dropped can show recognition. The FOM says an employer's own corrective actions "may serve as the basis for establishing employer recognition of the hazard, if the employer did not adequately continue or maintain the corrective action or if the corrective action did not afford effective protection to the employees" (FOM, "The Hazard Must Be Recognized," under "Employer Recognition").

Related guides

• What happens in an OSHA inspection
• PPE hazard assessment

Source

This guide is based on the text of Section 5 of the OSH Act and 29 CFR 1910.5(f) as published on osha.gov. It also draws on OSHA's Field Operations Manual, Chapter 4, which is OSHA's enforcement policy and not a regulation. The statute itself always controls. States that run their own OSHA-approved State Plans may have additional or stricter rules.