OSHA and OHS laws describe specific hazards that employers are supposed to manage. But just because a hazard isn’t listed in the statutes or regulations doesn’t mean you don’t have to guard against it. OSHA/OHS statutes include what’s known as a “general duty” clause requiring employers to control recognized hazards not listed in the law.

QUESTION

And this raises an interesting question: Can a worker with a reputation for disobeying safety rules and working unsafely be considered a recognized hazard covered by the general duty clause?

ANSWER

100% yes, provided that there’s evidence that the employer actually recognized or should have recognized that the worker was an accident waiting to happen. A long track record of disciplinary actions against the worker for safety violations or critical comments by supervisors about the worker’s carelessness in his performance review could furnish such evidence.

At that point, the inquiry would shift to whether the employer took reasonable measures to deal with the hazard posed by the dangerous worker. If it turns out that the worker was allowed to perform operations that endangered co-workers without precautions, e.g., warning co-workers that the guy was dangerous or assigning a supervisor to keep an eye on him, OSHA could justifiably cite the employer for violating the General Duty clause.
For those of you from Canada, the same principles would likely result in liability under OHS laws. Due diligence (and Canadian OHS general duty clauses) require employers to take reasonable measures to prevent foreseeable risks. If the hazard posed by the worker was foreseeable or, worse for the employer, actually foreseen, the same question would arise: Did the employer do enough to counteract the danger? If the answer is no, the employer won’t be able to prove due diligence, i.e., demonstrate that it took all reasonable measures to comply with the OHS laws and prevent violations and incidents.

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