OSHA Proposes to Narrow Use of General Duty Clause 

The Occupational Safety and Health Administration is proposing a rule to limit how it applies the General Duty Clause.

Currently, the rule is used as a broad catch-all and is interpreted to grant OSHA the authority to cite employers for hazards not specifically covered by existing standards.  

The proposed rule comes in response to recent U.S. Supreme Court decisions that emphasize stricter limits on federal regulatory authority.

Particularly, in response to a dissenting opinion by Supreme Court Justice Brett Kavanaugh which outlines that in his opinion Congress did not intend to impose such broad economic impact in the hands of OSHA when it enacted the OSH Act in 1970.  

“In light of the Supreme Court’s recent jurisprudence, we believe it’s necessary to reassess and appropriately narrow our interpretation of the General Duty Clause to remain within lawful bounds,” the agency said in its Notice of Proposed Rulemaking.

What May Actually Change? 

For years, the agency has used the General Duty Clause to address workplace hazards not covered by a specific regulation.

Under the proposed change, that authority would be narrowed—particularly when a hazard is considered unavoidable due to the nature of the work.  

Notably, the proposed rule would clarify that employers would not be required to eliminate hazards that are: 

• Inherent to the essential function of a performance-based or professional occupation, and 
• Unavoidable without fundamentally changing or prohibiting the activity itself.  

Under the proposed change, that authority would be narrowed—particularly when a hazard is considered unavoidable due to the nature of the work.  

This could significantly impact sectors like emergency response, law enforcement, and professional sports, where certain risks cannot be fully eliminated without impairing the core function of the job.

For example, speeding while in the middle of a NASCAR race. We know driving at the rate in which NASCAR drivers drive is inherently dangerous but without speeding, there would be no NASCAR—or at least, it would be quite boring! 

How Does this Impact Budgets? 

According to the agency’s preliminary analysis, the rule would not impose new requirements or costs. That’s good news for employers!  

“This proposal would impose no new burden on employers,” the agency said. “There may even be cost savings associated with clarifying the limits of enforcement.” 

What’s Next? 

The proposed rule is now open for public comment.

If finalized, it would mark a major shift in how the agency applies the General Duty Clause.

The new rule moves toward a narrower interpretation in line with recent court rulings and, perhaps, more in line with how many employers would prefer to see the rule interpreted.  

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For more information, contact CBIA’s Delmarina López (860.244.1982).