a. Use of the General Duty Clause. The general duty provisions
shall be used only where there is no standard that applies to the
particular hazard involved, as outlined in 29 CFR 1910.5(f).
(1) The general duty clause may be applied in situations where a
recognized hazard is created in whole or in part by conditions
not covered by a standard. An example of a hazard covered only
partially by a standard would be an ingoing nip point created by
two rollers turning inward on a printing press. The ink was
being cleaned off the rollers by an employee with a cloth
wrapped around his hand. The latter condition could legitimately
be cited under the general duty clause with the former cited
under the appropriate standard.
(2) The general duty clause may be applicable to some types of
employment which are inherently dangerous (fire brigades, emergency
rescue operations, etc.). Employers involved in such occupations
must take the necessary steps to eliminate or minimize employee
exposure to all recognized hazards which are likely to cause
death or serious physical harm. These steps include anticipation
of hazards which may be encountered, provision of appropriate
protective equipment, and prior provision of training,
instruction, and necessary equipment. An employer who has failed
to take appropriate steps on any of these or similar items and
has allowed the hazard to continue to exist may be cited under
the general duty clause (if not covered under a standard).
b. Limitations on Use of the General Duty Clause. Section
5-104(a) is to be used only within the guidelines given above.
(1) Section 5-104(a) Shall Not be Used When a Standard Applies to
a Hazard. Both 29 CFR 1910.5(f) and legal precedent
establish that Section 5-104(a) may not be used if a MOSH standard
applies to the hazardous working condition.
(a) Prior to issuing a Section 5-104(a) citation, the standards
must be reviewed carefully to determine whether a standard
applies to the hazard. If a standard applies, the standard
shall be cited rather than Section 5-104(a). Prior to the
issuance of a Section 5-104(a) citation, a notation shall be
made in the file to indicate that the standards were reviewed
and no standard applies. (b) If there is a question as to whether a standard applies, the
MOSH Supervisor shall consult with the Assistant
Commissioner/Authorized Representative. If necessary, the
Office of the Attorney General will assist the Assistant
Commissioner/Authorized Representative in determining the
applicability of the standard. (c) Section 5-104(a) shall be cited in the alternative when a
standard is also cited to cover a situation where there is
doubt as to whether the standard applies to the hazard.
1 If the issue of the applicability of a
specific standard is raised in a subsequent informal conference or
notice of contest proceeding, the MOSH Supervisor shall consult
with the Assistant Commissioner/Authorized Representative who
shall refer the matter to the Office of the Attorney General for
appropriate legal advice.
2 If, on the other hand, the issue of the
preemption of the general duty clause by a standard is raised in a
subsequent informal conference or notice of contest proceeding,
the MOSH Supervisor shall consult with the Assistant
Commissioner/Authorized Representative who shall refer the matter
to the Office of the Attorney General for appropriate legal
advice.
(2) Section 5-104(a) Shall Not Normally be Used to Impose a
Stricter Requirement Than That Required by the Standard. For
example, if the standard provides for a TLV of 5 ppm, even if data
establishes that a 3 ppm level is a recognized hazard, Section
5-104(a) shall not be cited to require that the 3 ppm level be
achieved. If the standard has only a time-weighted average
permissible exposure level and the hazard involves exposure above
a recognized ceiling level, the MOSH Supervisor shall consult with
the Assistant Commissioner/Authorized Representative who shall
discuss any proposed citation with the Office of the Attorney
General.
NOTE: An exception to this rule may apply if it
can be documented that an employer knows a particular safety or
health standard is inadequate to protect his workers against the
specific hazard it is intended to address. Such cases shall be
subject to pre-citation review.
(3) Section 5-104(a) Shall Normally Not be Used to Require an
Abatement Method Not Set Forth in a Specific Standard. A
specific standard is one that refers to a particular toxic
substance or deals with a specific operation, such as welding. If
a toxic substance standard covers engineering control requirements
but not requirements for medical surveillance, Section 5-104(a)
shall not be cited to require medical surveillance. 4. Section 5-104(a) Shall Not be Used to Enforce
"Should" Standards. If a standard uses the word
"should", neither the standard nor Section 5-104(a)
shall ordinarily be cited with respect to the hazard addressed by
the "should" portion of the standard. 5. Section 5-104(a) Shall Not Normally be Used to Cover
Categories of Hazards Exempted by a Standard.
(a) Although no hard and fast general rule can be stated
concerning the use of Section 5-104(a) to cover specific
categories of hazards, types of machines, operations, or
industries exempted from coverage by a standard, Section
5-104(a) shall normally not be cited if the reason for
the exemption is the lack of a hazard.
(b) MOSH Supervisors shall evaluate the
circumstances of special situations in accord with guidelines
stated herein and consult with the Assistant
Commissioner/Authorized Representative to determine whether a
Section 5-104(a) citation can be issued in those special cases.
(6) Alternative Standards. There are a number of general
standards which shall be considered for citation rather than
Section 5-104(a) in certain situations which initially may not
appear to be governed by a standard.
(a) If a hazard not covered by a specific standard can be
substantially corrected by compliance with a personal
protective equipment (PPE) standard, the PPE standard
shall be cited. In general industry, 29 CFR 1910.132(a)
may be appropriate where exposure to a hazard may be
prevented by the wearing of PPE. In construction, 29 CFR
1926.28(a) and/or 1926.95(a) may
be appropriate under similar circumstances.
(b) For health hazards, the particular toxic substance
standards, such as asbestos and coke oven emissions,
shall be cited where appropriate. If those particular
standards do not apply, however, other standards may be
applicable (e.g., the air contaminant levels contained
in 29 CFR 1910.1000 may apply in general industry and
those contained in 29 CFR 1926.55 may apply in
construction).
(c) Another standard which may possibly be cited is 29 CFR
1910.134(a) which deals with the hazards of breathing
harmful air contaminants not covered under 29 CFR
1910.1000 or another specific standard and requires the
use of respirators where engineering controls are not
feasible.
(d) In addition, 29 CFR 1910.141(g)(2) may be cited when
employees are allowed to consume food or beverages in an area
exposed to a toxic material, and 29 CFR 1910.132(a) may be
cited when toxic materials are absorbed through the skin.
(e) The foregoing standards as well as others which may be
applicable shall be considered carefully before issuing a
Section 5-104(a) citation for a health hazard.
e. Classification of Violations Cited Under the General Duty Clause.
Only those hazards alleging serious violations may be cited under
the general duty clause (including willful and/or repeated
violations which would otherwise qualify as serious violations,
except for their willful or repeated nature.) Other-than-serious
citations shall not be issued for violations based on the general
duty clause.
f. Procedures for Implementation of Section 5-104(a) Enforcement.
To ensure that all citations of the general duty clause are fully
justified, the following procedures shall be carefully adhered to.
(1) Gathering Evidence and Preparing the File. The evidence
necessary to establish each element of a Section 5-104(a)
violation shall be documented in the file. This includes all
photographs, videotapes, sampling data, witness statements and
other documentary and physical evidence necessary to establish the
violation. Additional documentation includes why it was common
knowledge, why it was detectable, why it was recognized practice
and supporting statements or referenced materials.
(a) If copies of documents relied on to establish the various
Section 5-104(a) elements cannot be obtained before issuing
the citation, these documents shall be accurately quoted and
identified in the file so they can be obtained later if
necessary.
(b) If experts are needed to establish any of the elements of
the violation, the experts shall be consulted before the
citation is issued and their opinions noted in the file. The
file shall also contain their addresses and telephone numbers.
(c) The file shall contain a statement that a search has been
made of the standards and that no standard applies to the
cited condition.
(2) Pre-Closing Review. Each MOSH Supervisor shall inform the
Assistant Commissioner/Authorized Representative of all Section
5-104(a) citations which may be considered for issuance.
(a) The Assistant Commissioner/Authorized Representative shall
be consulted prior to the recommendation of all Section
5-104(a) citations where such consultation is required by the
procedures given in the preceding paragraphs or where complex
issues or exceptions to those procedures are involved. The
Assistant Commissioner/Authorized Representative shall ensure
that such citations are issued only in appropriate
circumstances.
(b) If a standard does not apply and all criteria for issuing a
Section 5-104(a) citation are not met but the MOSH Supervisor
feels that the hazard warrants notification to the employer
and employee representative, a letter shall be drafted,
describing the hazard and suggesting corrective action. The
draft shall be forwarded to the Assistant
Commissioner/Authorized Representative for signature.
g. Reporting Hazards Not Covered by a Standard. The MOSH
Supervisor shall evaluate all alleged general duty clause violations
to determine whether they should be referred to the Commissioner for
the development of new or revised standards. Those violations
considered to be candidates for development or revision of a
standard shall include appropriate comments, recommendations and
supporting documentation and shall be forwarded by the MOSH
Supervisor to the Assistant
Commissioner/Authorized Representative for review and further
action.
3.
Employee Exposure. A hazardous condition
which apparently violates a MOSH standard or the general duty clause
shall be cited only when employee exposure can be documented and
substantiated. Exposure must have occurred within the six months
immediately preceding the issuance of the citation in order to serve
as a basis for the violation.
a. Definition of Employee. Whether or not exposed persons are
employees of an employer depends on several factors, the most
important of which is who controls the manner in which the employees
perform their assigned work. The question of who pays these
employees may not be the determining factor. Determining the
employer of an exposed person may be a very complex question, in
which case the MOSH Supervisor shall seek the advice of the Office
of the Attorney General through the Assistant
Commissioner/Authorized Representative.
b. Observed Exposure. Employee exposure is established if the CO/IH witnesses, observes, or monitors exposure of an employee to
the hazardous or suspected hazardous condition. Although the use of
adequate personal protective equipment does not alter the external
conditions of employee exposure, such exposure may be cited only
where the standard requires engineering, administrative (including
work practice) controls.
c. Unobserved Exposure. Where employee exposure is not
observed, witnessed, or monitored by the CO/IH, employee exposure is
established if it is determined through witness statements or other
evidence that exposure to a hazardous condition has occurred or
continues to occur.
(1) Past Exposure. In investigations, employee exposure can
be established if the CO/IH determines, through written
statements or other evidence, that exposure to a hazardous
condition occurred. In other circumstances where the CO/IH
determines that exposure to hazardous conditions has occurred in
the past, such exposure may serve as the basis for a violation
when:
(a) The hazardous condition continues to exist, or it is
reasonably predictable that the same or similar condition
could recur.
(b) It is reasonably predictable that employee exposure to a
hazardous condition could recur when:
1 Employee exposure has occurred in the
previous six months;
2 The hazardous condition is an integral
part of an employer's recurring operations; and
3 The employer has not established a policy
or program to ensure that exposure to the hazardous condition will
not recur.
(2) Potential Exposure. Under certain stringent circumstances,
the possibility that an employee could be exposed to a hazardous
condition may be cited when the employee can be shown to have
access to the hazard. MOSH Supervisors shall carefully review, on
a case-by-case basis, potential employee exposure including one or
more of the following:
(a) When a hazard has existed and could recur because of
work patterns, circumstances, or anticipated work
requirements and it is reasonably predictable that
employee exposure could occur.
(b) When a safety or health hazard would pose a danger to
employees simply by employee presence in the area and it
is reasonably predictable that an employee could come
into the area during the course of the work, to rest or
to eat at the jobsite, or to enter or to exit from the
assigned workplace.
(c) When a safety or health hazard is associated with the
use of unsafe machinery or equipment or arises from the
presence of hazardous materials and it is reasonably
predictable that an employee could use the equipment or
be exposed to the hazardous materials in the course of
work.
(d) If the investigation reveals an adequately enforced
employer policy or program which would prevent employee
exposure (including accidental exposure) to the
hazardous condition, the CO/IH would not ordinarily find
it reasonably predictable that employee exposure could
occur and would, therefore, not recommend issuing a
citation in relation to the particular condition.
d. Documenting Employee Exposure. The CO/IH shall fully
document exposure for every apparent violation. This includes such
items as:
(1) Comments by the exposed employees, the employer
(particularly the immediate supervisor of the exposed
employee), other witnesses (especially other employees or
members of the exposed employee's family);
(2) Signed statements;
(3) Photographs and/or videotapes; and
(4) Documents (e.g., autopsy reports, police reports, job
specifications, etc.).
4.
Regulatory Requirements. Violations of the
MOSH Law and Regulations when the employer does not comply with the
posting requirements, the recordkeeping requirements, and the
reporting requirements of the regulations shall be documented and
cited.
NOTE: If MOSH becomes aware of an incident required to be reported
under Section 5-702 of the Act through some means other than an employer's
report prior to the elapse of the 8-hour reporting period and an
inspection of the incident is made within the 8-hour period, a violation
for failure to report does not exist.
Continued
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