Motivated by a dissent that Justice Kavanaugh authored while on the U.S. Court of Appeals for the D.C. Circuit, the Occupational and Safety Health Administration (OSHA) issued a proposed rule seeking to “reassess and appropriately narrow” its interpretation of the General Duty Clause. In particular, OSHA proposes to renounce authority to issue citations for hazards “arising from inherently risky activities that are integral to the essential function of a professional or performance-based occupation” and that “cannot be eliminated without fundamentally altering the activity.”
In response, Policy Integrity offered the following comments:
- OSHA has broad authority to regulate remediable hazards in dangerous employment activities. The general duty clause’s text and history indicate broad authorization regardless of industry, and this has been affirmed by caselaw. Both the majority and dissent in SeaWorld of Florida, LLC v. Perez agree on the broad scope of OSHA’s authority, disagreeing only on the margins. Insofar as the SeaWorld majority conflicts with the dissent, OSHA should follow the majority, which confirms OSHA’s broad authority under the GDC to regulate remediable hazards in dangerous employment activities.
- The Proposed Rule’s exception is unclear and could be read as much broader than the exception contemplated by SeaWorld. By focusing on “activities” instead of “products,” the Proposed Rule potentially creates an exception much broader than that contemplated by the SeaWorld dissent and could extend to an indefinite range of industries and professions. Moreover, by setting the threshold at risk “elimination” rather than “material reduction,” the Proposed Rule risks excusing employers from addressing hazards that could be feasibly mitigated. In addition, the new “reasonable efforts” prong risks exempting employers who have taken some risk-mitigation efforts but have not taken other feasible means of risk reduction. Finally, because the Proposed Rule is confusing and overbroad, it risks underdeterrence.
- The Proposed Rule is likely unnecessary given that OSHA has previously disclaimed its authority to regulate against the types of activities the Proposed Rule is purportedly intended to cover. In the rare instances where OSHA has enforced the general duty clause in professional sports and entertainment, the main industries contemplated by the Proposed Rule, it has done so against peripheral hazards outside the Proposed Rule’s contemplated exception.
- The Proposed Rule’s economic analysis is confusing and inadequate. OSHA does not explain why it expects employers to save costs, raising many crucial questions about the scope and purpose of the rule. If the correct interpretation of the Proposed Rule is that it narrows the scope of the GDC, OSHA must consider the corresponding safety costs due to reduced mitigation of workplace hazards. One method for including these costs is a breakeven analysis.