OSHA Proposes Removing Application of General Duty Clause to Inherently Risky Professional Activities

What Is the General Duty Clause?
The General Duty Clause is found in Section 5(a)(1) of the Occupational Safety and Health Act, which requires employers to provide employees with “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 …. ” OSHA can cite employers for violation of the General Duty Clause if there is a recognized serious hazard in the workplace and the employer fails to take reasonable steps to prevent or abate the hazard. Below are the elements to prove a violation of the General Duty Clause:

• 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 serious physical harm; and
• There was a feasible and useful method to correct the hazard.

[See December 18, 2003, OSHA Standard Interpretation Letter.]

Notably, the General Duty Clause is “used only where there is no standard that applies to the particular hazard.” In other words, the General Duty Clause is often used as a catch-all or fallback for when there is no applicable specific OSHA standard. For example, workplace violence incidents could be cited under the General Duty Clause because there is currently no OSHA standard for workplace violence.

Reasoning Behind Proposed Rule
The proposed rulemaking would be the first codified limitation of the General Duty Clause, based on then-Judge Brett Kavanaugh’s dissent in a 2014 D.C. Circuit case. In that case, OSHA cited SeaWorld for a General Duty Clause violation following the death of an animal trainer during a killer whale performance. [SeaWorld of Florida, LLC v. Perez, 748 F.3d 1202 (D.C. Cir. 2014).] The citation alleged SeaWorld exposed employees to the recognized hazard of close contact with orca whales during live performances. The D.C. Circuit upheld the citation, holding SeaWorld was required to abate the hazard via a barrier or minimum distance between trainers and orcas. Judge Kavanaugh dissented, arguing the General Duty Clause does not authorize OSHA to regulate hazards arising from normal activities that are intrinsic to professional, athletic or entertainment occupations.

Judge Kavanaugh’s dissent noted Congress did not grant OSHA the authority “to regulate and re-make some undefined swath of America's sports and entertainment behemoth,” which includes “familiar sports and entertainment practices, such as punt returns in the NFL, speeding in NASCAR, or the whale show at SeaWorld.” This reasoning forms the basis for what is called “the major questions doctrine,” which requires Congress speak clearly when authorizing an agency to decide issues of significant national consequence. Accordingly, the proposed rule would prevent OSHA from using the General Duty Clause to regulate inherently risky professional activities “central to entire sectors of the economy (e.g., professional sports, marine shows, stunt performance).”

Proposed Regulatory Text
If finalized, the rule would add the following regulatory text to 29 C.F.R. Part 1975:

(a) The General Duty Clause does not require employers to remove hazards arising from inherently risky employment activities, where:

(1) the activity is integral to the essential function of a professional or performance-based occupation; and

(2) the hazard cannot be eliminated without fundamentally altering or prohibiting the activity; and

(3) the employer has made reasonable efforts that do not alter the nature of the activity to control the hazard (e.g., through engineering controls, administrative controls, personal protective equipment).

(b) Such sectors may include, but are not limited to:

(1) Live entertainment and performing arts;

(2) Animal handling and performance;

(3) Professional and extreme sports;

(4) Motorsports and high-risk recreation;

(5) Tactical, defense, and combat simulation training; and

(6) Hazard-based media and journalism activities.

In effect, the sectors listed under the proposed subsection (b) would not be subject to General Duty Clause violations.

Conclusion
Given the “may include, but are not limited to” language in the proposed subsection (b), and OSHA’s characterization of the list of included sectors as “non-exhaustive,” certain industries not currently listed will likely submit comments and request to be included. Because the proposed rule is limited to professional and performance-based occupations involving inherently risky activities that are integral to the essential function of the occupation, it is not an invitation for all industries to be excluded from enforcement of the General Duty Clause. However, OSHA is also seeking comment on defining “the key terms in the regulatory text.” If broadened, those key terms could expand the scope of covered industries. The public comment period ends on September 2, 2025.

Contact your regular Pillsbury contact or the authors of this alert for recommendations on how to address the above concerns to the extent practicable.