Respiratory Hazards & The General Duty Clause
On Nov. 2, OSHA issued an enforcement memorandum to all regional administrators regarding General Duty Clause (GDC) citations for respiratory hazards.
The GDC requires that employers furnish each employee with “employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm.”
Recent: OSHA Proposes Revisions to Beryllium Standard
Currently, there is an open debate as to whether employers are in violation of the GDC … either OSHA has not set a regulatory exposure limit for the chemical in question, or the exposure is below OSHA’s permissible exposure limit (PEL) yet above another organization’s recommended occupational exposure limit (OEL).
These organizations could include industry groups such as the EPA or the National Institute for Occupational Safety and Health.
What Prompted the Update?
Kim Stille, acting director of OSHA’s Directorate of Enforcement Programs, issued the November memo. Stille wrote that area offices cannot base a GDC citation on only a “measure exposure” that is above an occupational exposure limit or a documented exposure to a “recognize carcinogen.”
Instead, the new enforcement policy states that any GDC violation for airborne chemical exposures must meet a 4-element standard of proof.
The Enforcement Policy
The aforementioned enforcement policy states that a GDC violation for airborne chemical exposures cannot be alleged unless OSHA can meet this 4-element standard of proof imposed by the courts for any GDC violation:
- The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed.
- The hazard was recognized.
- The hazard was causing or was likely to cause death or physical harm.
- A feasible and useful method to correct the hazard was available.
All four of the above GDC standards of proof must be met before a citation is made. However, if all four elements cannot be proven, OSHA can still issue a Hazard Alert Letter (HA) if the exposure is above an OEL.
According to Stille the GDC is most commonly used to cite respiratory exposure to an air contaminant that does not have a permissible exposure limit covered by OSHA.
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Related: How Mobile Medical Testing Limits Risk, Cuts Costs For Employers
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