- THE MAGAZINE
Q: I have read that as a restorer we may need to consider the General Duty Clause, but I am not clear on how that applies to performing remediation services especially when most of our work is accomplished with subcontractors, and while we are working on the some worksites with other firms that are independent of our firm.
A: I assume that you are referring to the Occupational Safety and Health Act (OSH Act) General Duty Clause. That being the case, let’s look at what the General Duty Clause says.
Section 5(a)(1) of the OSH Act, often referred to as the General Duty Clause, says employers “shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
Section 5(a)(2) says employers “shall comply with occupational safety and health standards promulgated under this Act.”
Section 5(b) says, “each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct.”
The General Duty Clause can be applied to worksites where your employees work, and to some extent to multi-employee worksites. There are OSHA regulations that address specific hazards. A workplace hazard could exist that OSHA does not address by a specific rule or standard. In this case the employer is expected to apply the General Duty Clause, and as a result has an obligation to protect workers from serious and recognized workplace hazards. Before OSHA would issue a 5(a)(1) citation, several conditions must be met, including:
- A recognized hazard must exist.
- The hazard causes or is likely to cause serious harm or death.
- The hazard must be correctable.
A recognized hazard means that the employer knew, or should have known, about the hazard and that the hazard is obvious, or it is generally recognized as a hazard. Industry consensus standards may be evidence that a hazard is “recognized” and that there is a feasible means of correcting such a hazard.
There has to be a probability that serious physical harm could result if the employer does not eliminate the hazard. Serious harm can include any potential physical impairment that affects an employee’s ability to function on or off the job. Said physical impairment would usually require treatment by a medical doctor.
The hazard must be correctable or manageable. This means there is a recognized and feasible means for the employer to correct, eliminate, or reduce the exposure to the hazard through training, engineering controls and/or personal protective equipment.
As far as multi-employer worksites, it is important that you understand how OSHA defines the relationships between employers at that worksite. In the OSHA compliance letters, there are four employer role categories:
- “exposing” - an employer whose own employees are exposed to the hazard.
- “creating” - an employer that creates a hazard to which a different employer’s employees are exposed.
- “correcting” - an employer that has been brought in specifically to correct hazards.
- “controlling” - an employer with general supervisory authority over the worksite with the power to have safety and health violations corrected.
If an employer fits one or more of these categories, the compliance officer must go to step two: determining if the employer took sufficient steps to meet its obligations. Only if insufficient measures were taken may a citation be issued. The directive emphasizes that the multi-employer citation policy is not one of strict liability. It also states that a lesser degree of care is required of a controlling employer than of the other categories to prevent/discover hazards.
However, as stated in the multi-employer citation policy compliance directive, only “exposing” employers can be cited for General Duty Clause violations. Therefore, citations based on a failure to meet a General Duty Clause requirement can only be issued to an “exposing” employer – an employer whose own employees were exposed to the hazard. So, for example, an employer cannot be cited in its role as a “controlling employer” for exposure of subcontractor employees to a General Duty Clause violation.
There are currently no specific OSHA Standards or Directives for molds and fungi. However, Indoor Air Quality (IAQ) hazards are addressed in specific standards for general and construction industries. The Web page www.osha.gov/SLTC/molds/standards.html highlights OSHA standards, federal registers (rules, proposed rules, and notices), and national consensus standards related to the molds and fungi.
As mentioned earlier, industry consensus standards may be evidence that a hazard is “recognized” and that there is a feasible means of correcting such a hazard. The Institute of Inspection, Cleaning and Restoration Certification has developed the S500 Standard and Reference Guide for Professional Water Damage Restoration and the S520 Standard and Reference Guide for Professional Mold Remediation. OSHA can consider these to be “industry standards” that are the basis for a recognized hazard that can be corrected by implementing those standards. In addition, IICRC is now an Accredited Standards Developer of the American National Standards Institute (ANSI).
You may want to look at www.osha.gov/SLTC/molds/recognition.html for references that aid in recognizing workplace hazards and health effects associated with mold and fungi hazards. I was also able to locate a published legal opinion that states in part that, “In multiple employer workplaces, the employer who creates or controls a hazard may be liable for hazards affecting employees of the other employers in that workplace. . . In addition, the employer controlling the workplace may be liable for hazards to other employer’s employees, even if the controlling employer did not create the hazard.1”
1Crystal E. Barnes, Milan R. Kosanovich; American Criminal Law Review, Vol. 42, 2005