Let's review what we covered in Parts 1 and 2:

• 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 current 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 gotten 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 of the members of SafetyXChange come from the U.S. and Canada. Although we occasionally hear from members of one country that we?re paying too much attention to the other, for the most part the two contingents have had little problems sharing SafetyXChange. But we were thinking: How much do Americans (and members from other countries) know about Canada? 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 capitol of Canada is:

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

3. The Prime Minister of Canada is:

1. Jean Chretien
2. Stephen Harper
3. Paul Martin
4. Brian Mulroney

4. The basic unit of Canadian currency is the:

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

5. Which of the following is NOT a province:

1. Alberta
2. Saskatchewan
3. Prince Edward Island
4. Edmonton
5. Manitoba

6. Which of the following comedians is NOT Canadian:

1. Dana Carvey
2. Michael J. Fox
3. Martin Short
4. John Candy

7. The name of the trophy awarded to the champion of the Canadian Football League is:

1. The Stanley Cup
2. The Hart Trophy
3. The Grey Cup
4. The Rider Cup

8. What does RCMP stand for?

9. The population of Canada is:

1. Under 20 million
2. Approximately 32 million
3. Just under 80 million
4. 100 million

10. What people in the U.S. call “Canadian bacon” is referred to in Canada as:

1. American bacon
2. Back bacon
3. Scrapple
4. Salt pork

Extra Credit: Name the two wars in which Canadian defenders beat back American invasions and thus maintained independence from their neighbors to the south.

ANSWERS

1: b; 2: c; 3: b; 4: a; 5: d. 6: a. 7: c. 8: Royal Canadian Mounted Police; 9: b. 10: b. Extra Credit: The American Revolutionary War and the War of 1812.

Story Tools:  E-mail this to a friend  Print This Post Top