GWO Memo for US - DBR October 2018

S AFETY AND H EALTH A DMINISTRATION , S AFETY AND H EALTH T OPICS : C OMBUSTIBLE D UST , available at To be successful in making out a prima facie case for a General Duty Clause citation, OSHA must prove that: (1) a condition or activity in the workplace presents a hazard; (2) the condition or activity is a “recognized” hazard; (3) the hazard is causing, or is likely to cause, death or serious physical harm to employees; and (4) a “feasible means” exists to materially reduce or eliminate the hazard. See I NDUSTRY S TANDARDS ( citing Fabi Constr. Co. v. Sec'y of Labor, 508 F.3d 1077, 1081 (D.C. Cir. 2007)). It is not necessary for the employer to have actual knowledge of the hazard for the hazard to be considered “recognized.” See I NDUSTRY S TANDARDS . “Knowledge may be imputed to the employer based on knowledge of the hazard in the employer’s industry.” I NDUSTRY S TANDARDS ( citing L.R. Willson & Sons, Inc. v. Occupational Safety & Health Review Comm'n, 698 F.2d 507, 513 (D.C. Cir. 1983)). There are two ways that OSHA can use industry consensus standards to create legally enforceable job safety requirements. The first way is to incorporate (by reference) an industry consensus standard into one of OSHA’s own Standards. The second way is to use an industry consensus standard as evidence, under the General Duty Clause, of “industry recognition” of a hazard and of a “feasible means of abatement” of the hazard. See I NDUSTRY S TANDARDS . If OSHA incorporates (by reference) an industry consensus standard into one of its own Standards, the mandatory provisions of such industry consensus standard ( i.e ., provisions that contain the words “shall,” “must,” or “will,” or other mandatory language) will “have the same force and effect as [other OSHA standards].” I NDUSTRY S TANDARDS ( quoting 29 C.F.R. §1910.6(a)(1)). Accordingly, if OSHA is able to show that an employer violated a mandatory industry consensus standard that was properly incorporated (by reference) into an OSHA Standard, OSHA can establish a per se violation and there is no need to make use of the General Duty Clause. See I NDUSTRY S TANDARDS . If an industry consensus standard has not been incorporated by reference into an OSHA Standard, OSHA may nevertheless use the industry consensus standard as evidence of a General Duty Clause citation. In such instances, OSHA relies upon industry consensus standards to prove both the “industry recognition” and “feasible means of abatement” elements of its prima facie case. See I NDUSTRY S TANDARDS . V. LEGAL LIABILITY FOR DEFICIENT SAFETY TRAINING OSHA Enforcement : If an employer fails to provide his/her employees with adequate safety training that is required by applicable OSHA Standards, OSHA can issue citations and monetary penalty assessments against the employer. Here, the issue is “black and white” for OSHA: Did the employer fulfill the requirements of adequate safety training or not? It matters not whether the employer made some sort of efforts to provide adequate training by vetting its own company trainers or by retaining the services of credentialed third-party instructors. Instead, only the outcome matters: Did the employer fully satisfy its obligation to provide adequate safety


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