1.1 The OSH Act of 1970 & General Duty Clause

The OSH Act of 1970 & General Duty Clause

The Williams-Steiger Occupational Safety and Health Act of 1970 (commonly referred to as the OSH Act) was signed into law on December 29, 1970, and became effective on April 28, 1971. The primary purpose of the OSH Act, as declared by Congress, is "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources." This landmark legislation transformed the regulatory landscape of American workplaces, shifting the primary responsibility for safety directly onto employers and establishing a federal system of enforcement, research, and independent review.

Jurisdictional Scope of the OSH Act

The OSH Act applies to most private-sector employers and their employees in the United States, the District of Columbia, and all U.S. territories. However, it is critical to understand the specific exemptions and limitations of OSHA's jurisdiction, which are frequently tested on the OSHA 510 exam:

• Covered Entities: All private-sector employers with one or more employees, including agricultural operations, manufacturing, construction, and service industries.
• Excluded Entities:
  • Self-employed individuals.
  • Family farms that employ only immediate family members.
  • Workplaces already regulated by other federal agencies under different statutory authority (e.g., the Mine Safety and Health Administration (MSHA) for mining operations, the Federal Railroad Administration (FRA) for railway safety, and the U.S. Coast Guard for maritime operations). This is known as federal preemption under Section 4(b)(1) of the OSH Act.
  • State and local government employees, unless they work in a state that operates an OSHA-approved State Plan.

Federal vs. State Plans

Section 18 of the OSH Act encourages states to develop and operate their own job safety and health programs. These are known as State Plans.

• State Plans must be "at least as effective as" the federal OSHA program.
• State Plans must cover state and local government employees (who are otherwise excluded from federal OSHA).
• Currently, 22 states and territories operate complete State Plans covering both private sector and state/local government employees, while 7 states operate plans covering only state and local government workers.

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The "Three-Legged Stool" of Safety Regulation

To carry out the mandate of the OSH Act, Congress established three separate, distinct federal agencies, each serving a unique function. This division of power ensures checks and balances between enforcement, research, and adjudication.

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Employer and Employee Duties: Section 5

Section 5 of the OSH Act establishes the core duties of employers and employees.

Section 5(a)(1) — The General Duty Clause

The General Duty Clause is one of the most critical and frequently cited provisions of the OSH Act. It states:

"Each employer 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."

OSHA utilizes the General Duty Clause to issue citations when a serious hazard is present in the workplace, but no specific standard exists (e.g., heat stress hazards, ergonomic hazards, or novel technological risks).

To legally sustain a Section 5(a)(1) citation, OSHA must prove four distinct elements:

1. A hazard existed in the workplace: A physical condition or activity that presents a risk to workers.
2. The hazard was recognized: Recognition can be established in three ways:
   • Employer recognition: The employer had actual knowledge of the hazard (e.g., through internal safety memos or previous complaints).
   • Industry recognition: The hazard is recognized within the employer's specific industry (e.g., listed in consensus standards like ANSI, NFPA, or trade publications).
   • Common sense recognition: The hazard is so obvious that any reasonable person would recognize it.
3. The hazard was causing or likely to cause death or serious physical harm: The potential consequence of the hazard is severe injury or death.
4. There was a feasible and useful method to correct or abate the hazard: A realistic, practical method exists to eliminate or significantly reduce the hazard.

Section 5(a)(2) — Specific Compliance Duty

Section 5(a)(2) requires employers to comply with occupational safety and health standards promulgated under the Act. In construction, this means complying with the regulations found in 29 CFR Part 1926.

Section 5(b) — Employee Duties

Section 5(b) states:

"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."

Crucial Exam Trap: While the Act places duties on employees, OSHA has no statutory authority to cite or fine employees for safety violations. The employer is solely held responsible for enforcing safety rules, conducting disciplinary actions, and ensuring compliance on the worksite. If an employee refuses to wear PPE, OSHA will cite the employer for failing to enforce PPE use.

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Whistleblower Protection & The Right to Refuse Work

Section 11(c) Whistleblower Protections

Section 11(c) of the OSH Act prohibits employers from discharging, retaliating against, or discriminating against any employee because they have:

• Filed a safety complaint with OSHA or the employer.
• Participated in an OSHA inspection or walked around with a compliance officer.
• Testified in any proceeding related to the OSH Act.
• Exercised any right afforded by the Act.

Timeline: An employee who believes they have been retaliated against must file a complaint with OSHA within 30 days of the alleged violation. OSHA investigates these complaints, and if retaliation is found, OSHA can take the employer to federal court to seek reinstatement, back pay, and other remedies.

29 CFR 1977.12 — The Right to Refuse Dangerous Work

Employees have a limited legal right to refuse to perform a task if they reasonably believe they would be exposed to an imminent danger of death or serious injury. Under 29 CFR 1977.12, all of the following conditions must be met for a work refusal to be protected:

1. Good Faith Belief: The employee must honestly and reasonably believe that the work poses an imminent danger of death or serious physical harm.
2. Employer Refusal to Correct: The employee must have asked the employer to eliminate the danger, and the employer failed or refused to do so.
3. No Reasonable Alternative: The urgency of the situation must be such that there is no time to eliminate the hazard through regular regulatory channels (e.g., filing an OSHA complaint).
4. No Reasonable Alternative Assignment: The employee must remain at the worksite and be willing to perform alternative safe duties if assigned.