Section 5(a)(1) of the OSH Act (the so called “General Duty Clause”) requires employers to keep the workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.” One of the most significant parts of OSHA’s newly revised Field Operations Manual (FOM) is the clarification it provides on what makes a hazard “recognized.” The FOM instructs OSHA inspectors to look for three categories of evidence demonstrating recognition.

Category 1: Employer Recognition

The first form of recognition is an employer’s actual knowledge of a hazard’s existence. “Evidence of employer recognition,” according to the FOM, “may consist of written or oral statements made by the employer or other management or supervisory personnel during or before the OSHA inspection.”

The FOM also tells inspectors to check for references to the hazard in company memos, work rules, operations manuals, standard operating procedures and collective bargaining agreements. The bottom line: If you specifically identify and address a hazard, you recognize it and must eliminate it even if it’s not covered by a specific OSHA standard.

Other evidence of employer recognition listed in the FOM:

• Prior inspections or citations for the hazard;
• Employee complaints or grievances—as long those complaints weren’t simply “infrequent, off-hand comments”;
• Safety committee reports that address the hazard; and
• Corrective actions employers took to remedy the hazard if those actions weren’t effective or adequately maintained.

Category 2: Industry Recognition

An employer is also deemed to be aware of any hazards recognized by its industry—but not of hazards recognized by other industries to which the employer doesn’t belong. The FOM instructs OSHA Area Directors and Regional Administrators to consult on which industries recognize which hazards. In other words, the determination of what hazards are recognized by a particular industry isn’t supposed to be made on an ad hoc basis by inspectors in the field.

The FOM lists places to look for indications that an industry recognizes a hazard, including:

• Statements of health and safety experts that work in the industry or are familiar with working conditions within it;
• Initiation of abatement methods by members of the industry;
• Manufacturers’ warnings on equipment or in literature “that are relevant to the hazard”;
• Industry studies demonstrating awareness of the hazard and studies conducted by unions or employee representatives that the industry has been made aware of;
• Government and insurance studies that the industry is aware of and recognizes as valid;
• State and local laws which are currently enforced against companies in the industry—however, the FOM recommends “corroborating evidence of recognition” in these cases; and
• National consensus standards published by organizations like ANSI and NFPA, provided that the industry participated in the committee that drafted them. Standards addressing the hazard that the industry didn’t help draft are just corroboration of recognition, the FOM adds.

Category 3: Common Sense

A hazard that an employer or its industry doesn’t actually recognize can still be deemed “recognized” under Sec. 5(a)(1) if it’s “so obvious that any reasonable person would have recognized it.” At first blush, this sounds alarming. What’s to stop an OSHA inspector from concluding that anything and everything is a common sense hazard? Luckily, the FOM includes a restriction to curb abuse. Inspectors should resort to common sense recognition, the FOM cautions, only in “flagrant or obvious cases.” Phheeeww!

Conclusion

The general duty to guard against recognized hazards has always been the fly in the ointment of OSHA compliance because it means that you can still be liable even if you do everything the OSHA standards require. The good news is that the new FOM defines the scope of the general duty with unprecedented clarity. The bad news is that the clarification extends the scope of recognized hazard about as far as it can reasonably go.

Source: If you want to check out the new OSHA Field Operations Manual, see,
http://www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-148.pdf

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