Even without a permanent leader in place, Obama’s OSHA has moved forward with an aggressive enforcement strategy. On March 26, OSHA published a revised version of the Field Operations Manual (FOM), an internal set of instructions telling OSHA officials how to conduct inspections and set fines. The new-look FOM, which hadn’t been revised since 1994, heralds an era of more vigorous OSHA enforcement. The most important part of the FOM may just be the clarification it provides on the scope of the so-called “General Duty” clause.

What Is the General Duty Clause

OSHA standards require employers to take measures to control the dangers of specific hazards or operations such as electricity and confined space work. But the people who wrote the OSHA laws understood that it would be impossible to foresee and create a standard for every hazard in the workplace. So they added a section to the law requiring employers to protect against other foreseeable hazards not covered by a specific OSHA standard. This backstop is called the “General Duty” clause.

According to Section 5 of the OSH Act, employers must furnish a workplace “free from recognized hazards that are causing or are likely to death or serious physical harm to employees” (emphasis added).

New Guidance on What Makes a Hazard ‘Recognized’

For a hazard to be covered by the general duty clause it must be “recognized.” Over the years, OSHA has issued interpretation letters indicating specific hazards that could be considered “recognized,” including most notably ergonomic risks, heat and cold stress and workplace violence. By contrast, OSHA has said that it wouldn’t generally consider the risk of terrorist attack to be a recognized workplace hazard covered by the clause.

As before, OSHA will determine whether a particular hazard is recognized on a case-by-case basis. But the new FOM clarifies the criteria OSHA will use to evaluate recognition of hazards. More significantly, the criteria themselves are extremely broad and will make it much easier for OSHA to find that a hazard was recognized.

Explanation: The FOM criteria are based on an objective and not a subjective standard. In other words, the question of whether a hazard is recognized is determined by looking not simply at what the employer actually recognized but what it should have recognized. Thus, to find evidence of recognition, OSHA inspectors will be considering not just the documents in the employer’s files but industry standards and “common sense.”

In sum, according to the FOM, evidence that a hazard is recognized can come from one of three sources:

1. Actual recognition of the hazard by the employer;
2. Recognition of the hazard by the employer’s industry; and
3. Common sense.

Conclusion

The new FOM actually tells OSHA inspectors what to look for to determine if a hazard was recognized. We’ll get into the specific kinds of evidence of recognition next week.

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