Your Business, OSHA General Duty Clause, And Emergency Planning

An emergency can occur at any location, at any time, under the right conditions. For a small business, an incident which damages an office, stops a factory, or endangers the workforce can create a financial crisis or worse. To direct companies to consider those factors, the Occupational Safety and Health Act created the General Duty Clause (GDC) 29 U.S.C. § 654.

The GDC States:

  1. 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."
  2. Each employer shall comply with occupational safety and health standards promulgated under this act.
  3. 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 key phrase used within this document is “recognized hazard that are causing or are likely to cause death or serious harm.” The spectrum of hazards which can fall within this statement is wide but in understanding your physical environment, business, and employees, an organization can develop an Emergency Action Plan (EAP) which will meet and exceed the expectations of the GDC.

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To accomplish this, first take time to look at your physical environment. What man-made and natural hazards could represent a “recognized hazard” to the business? If the business is located near a major body of water, flooding may be a concern; maybe the business is in a heavily wooded area where wildfires would present a danger; or possibly the business sits near a nuclear power plant. All these potential hazards must be considered and planned for in the organization’s EAP.

The type of business can also lead to hazards such as the handling of various chemicals and substances that can create danger. As with the exterior factors, being informed, planning, and mitigating the threat will keep the organization prepared for the emergency. Finally, the employees of an organization are its greatest asset but can also play a role in an action being considered a ‘recognized hazard’. Certain factors which can affect the “recognized hazards” are repeated actions on the part of employees that cause safety related problems, such as pranks and sabotage. Having an open line of communication with employees, understanding their concerns, and addressing them, both in the EAP and in person, will meet and exceed the requirements of the GDC.

We are often asked whether organizations are legally required to provide Active Shooter training to their employees.  This is currently a gray area and involves the GDC in its answer.  While training is technically not yet mandatory, the GDC has been successfully used following an active shooting event to argue that Active Shooter is now a recognized hazard and the employer did not do enough to provide employees the best chance at a workplace free from this risk (i.e. did not provide training to prevent or respond to an attack).  One such case that has set a precedent for this ruling occurred in Minneapolis, MN in 2013 with the ruling stating in part, “…Failing to include language in their policies along with training for their employees that mitigates workplace violence and trains employees how to survive a critical incident.”  It will be very important for organizations to stay informed as these laws and cases evolve, as it seems likely that the GDC will eventually be modified to more clearly state that Active Shooter is definitively included as a recognized hazard.

The GDC is the standard by which companies are held to ensure the safety of their employees. Following an emergency event, it is used in courts to determine if liability is on the part of the employer or the employee. The development of a comprehensive EAP that meets these criteria is the baseline from which a business is properly prepared to respond to and recover from an emergency and is essential to cover an organization from liability following the event.

Have questions? Learn more about Emergency Action Plan development by visiting HERE.

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