OSHA General Duty Clause Expert Witness and Consulting Expert Services

The OSHA General Duty Clause is one of the most misunderstood provisions in occupational safety and health law. Some view it as a catch-all regulation that OSHA can use whenever a workplace accident occurs. In reality, OSHA’s ability to issue a General Duty Clause citation is subject to significant legal and procedural limitations.

Curtis Chambers, MS-OSH, CSP provides expert witness and consulting expert services involving OSHA’s General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act. With more than 40 years of occupational safety and health experience, Mr. Chambers assists attorneys, employers, insurance companies, and governmental entities in evaluating OSHA citations, workplace accidents, recognized hazards, and OSHA enforcement actions.

A proper General Duty Clause analysis often requires a detailed understanding of OSHA regulations, OSHA enforcement directives, OSHA’s Field Operations Manual (FOM), Review Commission decisions, court rulings, consensus standards, and accepted industry practices.

If you would like to discuss a case, request a curriculum vitae (CV), or obtain a fee schedule, please click the button below. 

What Is the OSHA General Duty Clause?

Section 5(a)(1) of the Occupational Safety and Health Act states that employers must furnish employment and a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.

The General Duty Clause is often used when OSHA believes a serious workplace hazard exists, no specific OSHA standard directly addresses the condition, and the hazard exposes the cited employer’s own employees to the recognized danger.

Examples may include:

• Hazards not specifically covered by existing OSHA standards
• Cols & heat stress hazards
• Certain ergonomic hazards
• Emerging technologies
• Specialized industrial processes
• Workplace violence hazards
• Equipment & machinery manufacturer’s warning and instructions

OSHA Burden of Proof for a (5)(a)(1) Violation

Unlike a specific OSHA standard, General Duty Clause citations typically require OSHA to establish several separate elements.

In general, OSHA must demonstrate:

• A hazard existed
• The hazard was recognized
• The hazard was causing or likely to cause death or serious physical harm
• A feasible means existed to materially reduce or eliminate the hazard

Failure to establish any required element may affect the validity of the citation.

What the General Duty Clause Does NOT Mean

A common misconception is that OSHA can automatically issue a General Duty Clause citation whenever an accident occurs.

That is not how the law works.

The General Duty Clause is not:

• A substitute for accident prevention hindsight
• A guarantee against all workplace injuries
• A blanket authority to cite any undesirable condition
• A replacement for specific OSHA standards
• A mechanism to impose unlimited employer liability

In many cases, OSHA’s own enforcement policies limit when and how the clause may be used.

Important Limitations on OSHA’s Use of the General Duty Clause

OSHA’s Field Operations Manual places significant restrictions on the use of Section 5(a)(1).

Among the most important limitations:

Existing OSHA Standards Generally Take Precedence

When a specific OSHA standard applies to a hazard, OSHA ordinarily should cite the specific standard rather than the General Duty Clause.

A key issue in many cases is determining whether an existing OSHA standard already addresses the condition in question.

The General Duty Clause Generally Applies Only to the Employer of the Exposed Employee

One of the lesser-known limitations found within OSHA’s enforcement guidance is that General Duty Clause citations are generally limited to the employer whose own employees are exposed to the hazard.

Unlike OSHA’s Multi-Employer Citation Policy, which may allow OSHA to cite creating, exposing, correcting, and controlling employers under certain circumstances, OSHA’s Field Operations Manual recognizes that Section 5(a)(1) is generally directed toward protecting an employer’s own employees. Therefore, the General Duty Clause is only cited for the “Exposing Employer” under the Multi-Employer Worksite Citation Policy.

As a result, important questions often arise regarding:

• Which employees were actually exposed to the hazard
• Which employer controlled those employees
• Whether the cited employer’s own employees were exposed
• Whether OSHA properly applied the General Duty Clause
• Whether OSHA should have relied upon a specific OSHA standard instead

These issues can become particularly significant on construction projects, industrial shutdowns, maintenance activities, refinery operations, and other multi-employer worksites where multiple contractors and subcontractors may be present.

In some cases, determining whether the cited employer actually had exposed employees may be a critical factor in evaluating the validity of a General Duty Clause citation.

Hazard Recognition Must Be Established

OSHA generally must establish that the hazard was recognized by:

• The employer
• The employer’s industry
• Industry consensus standards
• Common industry practice

The existence of a hazard alone may not be sufficient.

Feasible Abatement Must Exist

OSHA generally must identify a feasible means of materially reducing or eliminating the hazard.

The mere existence of a hazard does not automatically establish a General Duty Clause violation.

Serious Harm Threshold

The hazard must be capable of causing death or serious physical harm.

Minor hazards generally do not satisfy the requirements for a Section 5(a)(1) citation.

Section 5(b): Employee Responsibilities Typically Overlooked

Many discussions of the General Duty Clause focus exclusively on employer obligations while overlooking Section 5(b) of the Occupational Safety and Health Act.

Section 5(b) states that employees shall comply with occupational safety and health standards and all rules, regulations, and orders applicable to their own actions and conduct.

While OSHA primarily regulates employers, employee conduct can become an important factor when evaluating:

• Unpreventable employee misconduct defenses
• Safety rule enforcement
• Training effectiveness
• Supervision issues
• Accident causation
• Employer responsibility

In many workplace injury cases, a complete analysis requires consideration of both employer duties under Section 5(a)(1) and employee responsibilities under Section 5(b).

OSHA Guidance, Directives, and Interpretations

Proper evaluation of a General Duty Clause case often requires examination of:

• OSHA Field Operations Manual (FOM)
• OSHA Letters of Interpretation
• OSHA Compliance Directives
• Occupational Safety and Health Review Commission decisions
• Federal court decisions
• ANSI standards
• NFPA standards
• Industry consensus standards

These materials frequently play a significant role in determining whether OSHA’s enforcement position is supported by law, policy, and accepted industry practice.

Common General Duty Clause Litigation Topics

Cases frequently involve:

• Heat illness prevention
• Workplace violence
• Ergonomic hazards
• Industrial processes
• Material handling operations
• Machine-related hazards
• Chemical exposure issues
• Emerging workplace technologies
• Contractor management
• Safety program deficiencies

Many disputes center on whether a hazard was truly recognized and whether practical abatement measures were available.

Qualifications and Experience of OSHA Compliance Expert Curtis Chambers

Curtis Chambers, MS-OSH, CSP possesses more than four decades of occupational safety and health experience.

Professional experience includes:

• Owner of OSHA training and consulting companies
• Corporate Safety Director for a Fortune 500 company
• Safety Officer for a State OSHA Consultation Program
• Vice President of Operations for a structural steel fabrication and construction company
• Employee Safety Coordinator for a major municipality

Education and Credentials

• Master of Science in Occupational Safety and Health (MS-OSH)
• Certified Safety Professional (CSP) since 1993
• OSHA Authorized Outreach Trainer

The Certified Safety Professional (CSP) designation is the most widely recognized credential in the occupational safety and health profession and reflects substantial education, professional experience, examination, and continuing professional development requirements.

Expert Witness and Consulting Services

Services may include:

• OSHA citation reviews
• General Duty Clause evaluations
• Hazard recognition analysis
• Feasible abatement evaluations
• Accident causation analysis
• OSHA compliance reviews
• Expert reports
• Deposition testimony
• Trial testimony
• Consulting expert services

Request a CV or Fee Schedule

If you are seeking an OSHA expert witness or consulting expert involving OSHA’s General Duty Clause, Section 5(a)(1), recognized hazards, OSHA enforcement actions, or workplace safety litigation, please contact Curtis Chambers, MS-OSH, CSP.

Need OSHA Guidance Without Retaining an Expert Witness?

Not every OSHA issue requires formal expert witness services.

For attorneys, employers, safety professionals, and organizations seeking practical OSHA compliance guidance, Curtis Chambers, MS-OSH, CSP offers professional OSHA consulting and advice by Zoom (or telephone).

Whether you have questions regarding OSHA citations, workplace safety programs, accident investigations, employee training requirements, or other compliance concerns, expert assistance is available in convenient scheduled sessions.

Click Here to Learn More About Our OSHA Compliance Consulting & Advice by Zoom Services.