Caught by Catch-Alls: Avoiding OSHA GDC Citations
The federal Occupational Safety and Health Administration establishes and enforces standards to protect workers from workplace fatalities, injuries, and illnesses.
OSHA’s regulatory standards, promulgated under the Occupational Safety and Health Act, are divided into four groups: general industry, construction, maritime, and agriculture.
While the construction, maritime, and agriculture group standards apply to hazards specific to those respective sectors, the general industry standards (29 CFR Part 1910) apply to all industries.
The general industry standards include protections against dozens of hazards like ladder and fall safety, as well as for hazardous chemicals, with specific rules for hexavalent chromium, cadmium asbestos, vinyl chloride, and more.
The general industry standards also set forth OSHA’s Hazard Communication Standard, which requires employers to identify all hazardous chemicals in the workplace and relay information about them to workers.
But what about hazards for which there are no specific OSHA standards? Are manufacturers and other employers responsible for establishing protections against, or notifying employers of, dangers in the workplace that are not specifically addressed in OSHA’s regulations?
The short answer is yes.
General Duty Clause
First, all employers, regardless of the sector in which they operate, must comply with the act’s General Duty Clause, 29 USC § 654(a)(1).
The GDC requires that each employer provides, to each of its employees, a workplace free from recognized hazards that are likely to cause death or serious physical harm.
When a recognized serious hazard exists in the workplace and an employer does not take reasonable steps to prevent or abate the hazard, the employer may be found to have violated the GDC.
The GDC serves as a “catch-all” for those situations where a directly applicable standard does not address a workplace hazard.
Although not one of the top 10 most cited standards in OSHA’s 2022 data, it is frequently used.
Examples of OSHA’s published recent (spring/summer 2023) GDC citations for failure to protect employees against serious physical harm from recognized hazards include:
- Rupturing PVC pipes used to transport compressed air to a paint booth;
- Inadequately maintained rack systems without floor anchor bolts;
- Amputation hazards while operating a press break to produce and manufacture parts from steel sheet metal;
- A malfunctioning alarm on a rubber mill that would summon assistance in the event of a “bite” incident; and
- Combustible dust with a hazard explosion risk while manufacturing filo dough.
‘Hazards Not Otherwise Classified’
Most manufacturers are familiar with OSHA’s HazCom standard (29 CFR § 1910.1200) that imposes obligations to provide safety data sheets, properly label containers and train employees about chemical hazards in the workplace.
In addition to employers being subject to the GDC, the HazCom standard includes its own nuanced catch-all that requires communication about standard hazards and “hazards not otherwise classified.”
An HNOC is an adverse physical or health effect identified through the evaluation of scientific evidence during the classification process that does not meet the specified criteria for the physical and health hazard classes addressed in the general industry standards.
OSHA’s regulations contain a list of recognized hazardous materials; however, be aware that a chemical not named in the OSHA standards might nevertheless be subject to the HNOC catch-all if it is intrinsically hazardous in its normal use or in foreseeable emergencies.
Based on OSHA guidance, while the rest of the HazCom standard requires specific language on chemical labels and SDSs, the HNOC “need not be addressed” on a HazCom label.
OSHA suggests that the HNOC may be appropriately listed in a chemical’s SDS under “Hazard Identification,” which requires a description of any hazards not otherwise classified.
HNOCs do not necessarily need to be communicated with as much detail as required for conventional HazCom hazards, but manufacturers still need to communicate the hazard to their employees.
A failure to inform workers of an HNOC could be determined to be a violation of the GDC.
With respect to the emerging contaminant class of chemicals known as per- and polyfluoroalkyl substances, as the hazards become better understood, they could soon constitute HNOCs, and employers should start paying attention to workplace exposures to PFAS.
PFAS are linked to a variety of serious and long-lasting health issues, including liver problems, kidney disease, and increased risk of certain cancers.
PFAS have been widely used in manufacturing and can be found in hundreds of commercial and consumer products and goods, including food packaging, non-stick cookware, carpet, cosmetics, and household cleaning products, to name a few.
Manufacturers are now facing much uncertainty as states across the country are passing or proposing laws and regulations that ban the use of PFAS in certain products.
Although OSHA has not (yet) proposed a PFAS standard, the U.S. Environmental Protection Agency is expected to designate two PFAS compounds as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act.
OSHA may ultimately pay focus on chemicals like PFAS that could warrant their own OSHA standard, or at the very least, become subject to the HazCom standard’s HNOC provision.
Manufacturers should be aware of OSHA’s GDC and HNOC “catch alls” and ensure their workplaces are free from recognized hazards that could cause death or serious physical harm.
Undertaking an independent health and safety compliance audit, with the assistance of counsel and a consultant, can help identify potential compliance gaps and provide an opportunity to institute corrective actions before an employee incident and/or an OSHA visit results in citations and sanctions.
For more information about Shipman’s manufacturing practice, please contact Alfredo Fernández (860.251.5353).
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