Let's review what we've discussed in the first two parts of this series:

• OSHA considers the risk of terrorist attack a workplace hazard but
  an untraditional one;
• There's no OSHA Standard on terrorism and no plans to create one
• OSHA's policy is to offer assistance to employers and encourage rather
  than force them to guard workers from terrorism;
• OSHA chooses not to interpret existing OSHA Standards as applying
  to the risk of terrorist activities;
• If hazardous conditions are present, the usual OSHA protections are
  necessary, even if it was a terrorist incident that caused the hazard.

A final question remains: Does the OSHA General Duty Clause require employers
to rid the workplace of terrorism-related hazards?

The General Duty Clause

The Occupational Safety & Health Act of 1970 is the law that founded
OSHA and the federal workplace safety regulatory system we know today. Section
5(a)(1) of that law establishes a duty on the part of employers to "furnish
a place of employment [that is] free from recognized hazards that are causing
or are likely to cause death or serious physical harm to employees."

This is known as the General Duty Clause. Its function is to enable OSHA to
crack down on workplace hazards not covered by a specific OSHA Standard.

Example: OSHA inspectors identified more than 300 cases of
cumulative trauma disorders such as carpal tunnel syndrome and rotator cuff
injuries at a poultry plant. OSHA doesn't have a standard on ergonomics. So
it cited the plant for violating the General Duty Clause. The plant eventually
paid $200,000 to settle the charges [Secretary of Labor v. Hudson Foods,
Inc.].

Terrorism and the Clause

In theory, OSHA could use the General Duty Clause to cite an employer for not
protecting workers against terrorist hazards the way it did for not preventing
ergonomics risks. So far, it hasn't done this. And, it's unlikely to do so in
the future.

Explanation: The General Duty Clause doesn't require employers
to ensure against all hazards that cause death or serious bodily harm - only
"recognized" ones. Is terrorism a "recognized" hazard?

The term "recognized" isn't defined in the OSHA statute. Some federal
courts have interpreted it to mean dangerous conditions that can be detected
by the senses that are generally known to be hazardous. See Pratt &
Whitney Aircraft v. Secretary of Labor, 649 F.2d 96 (2d Cir. 1981). Terrorism
would clearly be considered a recognized hazard under this interpretation.

But other courts have held that a hazard must be foreseeable to be considered
recognized. See Kelly Springfield Tire Co., Inc. v. Donovan, 729 F.2d
317 (5th Cir. 1984). It would be tough to make the case that terrorist attack
is foreseeable. As we discussed last week, OSHA has issued two interpretation
letters stating that it doesn't consider terrorism to be a foreseeable
risk for purposes of applying the HAZWOPER or Emergency Action Plans Standards.
Presumably, the same interpretation would apply to application of the General
Duty Clause.

More importantly, the use of the General Duty Clause to cite an employer for
not doing enough to protect workers against terrorism would be completely inconsistent
with the current OSHA policy of treating terrorism as a non-traditional hazard.
It would also deviate from the OSHA approach of using the carrot rather than
the stick to get employers to combat terrorist risks in the workplace.

Conclusion

Structurally, there's nothing in the regulatory scheme to prevent
OSHA from treating terrorism like any other workplace hazard. OSHA has the authority
to develop a standard covering terrorism. It can also use existing standards
and statutory obligations to force employers to protect workers against terrorist
threats in the workplace.

But that's not the way the current OSHA administration wants to go. OSHA is
prepared to encourage but not compel employers to deal with terrorism. Some
may consider this a bad policy; others may applaud it. All that's clear is that
it's not likely to change before the next presidential election in 2008.

The Canadian Perspective

This article is both relevant and irrelevant to Canadians:

The Relevant Part: The Canadian OHS regulatory structure is
similar to the OSHA scheme, albeit on a provincial level. Most of the Canadian
provincial and territorial governments recognize that terrorism poses a hazard
to workers. But none of them have adopted a standard or set of regulations dealing
specifically with terrorism. However, as does OSHA, Canadian OHS regulators
have at their disposal existing regulations and laws that they can apply to
terrorism. This includes emergency preparedness planning requirements. In addition,
each of the OHS laws includes a General Duty Clause. So the potential exists
to make employers adopt measures to protect against terrorism.

The Irrelevant Part: The fact that the current OSHA leaders
in the U.S. don't choose to apply these rules to terrorism doesn't affect Canadians
not living under their jurisdiction. Your regulators might feel differently.
It's all a question of policy. Policy, in turn, is based on the existing climate
and the people running the various Ministries of Labour or other regulatory
agencies in charge of OHS matters.

Although I don't want to engage in speculation, I will note that the difference
between workplace safety regulatory climates on each side of the border is like
night and day. In a reversal of historic trends, Canadian regulators have become
much more aggressive on the enforcement front than their U.S. counterparts.
Charges and citations are up in just about every province; in the U.S., they're
just chugging along at the same basic rate.

CANADA QUIZ

Most Americans probably didn't realize that August 1 was a major civic holiday
in Canada. In fact, there's a lot about our neighbors to the North that most
of us Americans don't know. Here's a little quiz to test your knowledge of things
Canadian. If you're from Canada, you'll find these questions absurdly easy.
But if you're American, they might be tough. Next week, in the interest of equal
time, we'll do a U.S. Quiz for our Canadian members.

1. The province in Canada with the most people is:

1. Quebec
2. Ontario
3. British Columbia
4. Nova Scotia

2. The capital of Canada is:

1. Toronto
2. Montreal
3. Ottawa
4. Vancouver

3. The Prime Minister of Canada is:

1. Jean Chretien
2. Paul Martin
3. Rene Levesque
4. Brian Mulroney

4. The basic unit of Canadian currency is the:

1. Dollar
2. Franc
3. Euro
4. Pound

5. Here's a list of places in Canada. List a "P" if it's
a province or a "C" if it's a city:

1. Alberta
2. Saskatchewan
3. Calgary
4. Edmonton

6. Which of the following beers is NOT Canadian:

1. Molson
2. Labatt's
3. Amstel
4. Moosehead

7. Which of the following teams won the Grey Cup (the Canadian equivalent to
the Super Bowl) last year:

1. Toronto Argonauts
2. Montreal Alouettes
3. Saskatchewan Roughriders
4. BC Lions

ANSWERS

1: b; 2: c; 3: b; 4: a; 5: Alberta-P; Saskatchewan-P; Calgary-C; Edmonton-C; 6: c. 7: a

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