D.C. Circuit Upholds OSHA Enforcement Using General Duty Clause in SeaWorld Case; Dissent Warns of Far-Reaching Consequences
On Friday, the D.C. Circuit upheld OSHA’s finding that SeaWorld violated the Occupational Safety and Health Act’s “general duty” clause by willfully exposing trainers to recognized hazards when working in close contact with killer whales during performances following the death of a trainer. The 2-1 majority opinion explains why the record supports the ALJ determination upholding the general duty clause violation, but the dissent thoughtfully raises a larger issue: is OSHA regulation, premised on the general duty clause, expanding the scope of OSHA regulation beyond what Congress contemplated?
OSHA’s general duty clause provides, “Each employer [] 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.” 29 U.S.C. § 654(a)(1). Congress inserted the general duty clause to protect employees working under unique circumstances where no other standards apply, but courts have explained that the unqualified and absolute textual imperative that the workplace be “free” did not impose strict liability. Instead, the duty was to be an achievable one that all preventable forms and instances of hazardous conduct be excluded from the workplace. Accordingly, to establish a violation of this clause, the Secretary of Labor must establish that: (1) an activity or condition in the employer’s workplace presented a hazard to an employee, (2) either the employer or the industry recognized the condition or activity as a hazard, (3) the hazard was likely to or actually caused death or serious physical harm, and (4) a feasible means to eliminate or materially reduce the hazard existed.
In his dissenting opinion, U.S. Circuit Judge Brett Kavanaugh cautions that OSHA’s use of the general duty clause to regulate entertainment shows at SeaWorld opens the door to regulation of many sports and entertainment activities not previously regulated by OSHA, especially where participants in those activities fully understand the known risks of serious injury yet want to take part in them nonetheless: “But the Department of Labor, acting with a fair degree of prudence and wisdom, has not traditionally tried to stretch its general authority under the Act to regulate participants taking part in the normal activities of sports events or entertainment shows. In this case, however, the Department departed from tradition and stormed headlong into a new regulatory arena.” Judge Kavanaugh contends that the Department’s “unprecedented assertion of authority” in the SeaWorld case is “triply flawed” because: 1) it ignores longstanding administrative precedent governing the Department’s authority; 2) the Department’s contention that the trainers and whales in SeaWorld shows are distinguishable from the players in the NFL or speeding in NASCAR races that the Department proclaims exempt from regulation is irrational and arbitrary; and 3) it “green-lights” the Department to regulate areas that Congress could not have conceivably intended in 1970 when enacting the general duty clause to ensure safer workplaces.
According to Judge Kavanaugh, regulation of sports and entertainment activities should remain the purview of Congress, state regulators, or courts applying state tort law, but not the U.S. Department of Labor. Unless and until the U.S. Supreme Court takes up this case on appeal, any company involved in any industry not specifically regulated by safety standards should be on notice of OSHA’s new-found boost to its authority under the general duty clause.
