State Coalition Opposes Proposed Reinterpretation of General Duty Clause

The Pennsylvania Department of Labor and Industry (DLI) is leading a coalition of states in opposition to a proposed rule that would restrict OSHA enforcement related to hazards considered to be inherent to activities such as live entertainment, performing arts, animal handling, and professional sports. The proposed rule was one of 25 published in the Federal Register on July 1 as part of what the Department of Labor described as “aggressive deregulatory efforts.”

According to a DLI press release, the thirteen states joining Pennsylvania in opposing the rule are Arizona, California, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New York, Oregon, and Vermont. The coalition contends that the proposed rule contradicts the language and congressional intent of the OSH Act and calls on OSHA to withdraw it.

The General Duty Clause requires employers to provide all employees with a workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” The proposed reinterpretation would “exclude from enforcement known hazards that are inherent and inseparable from the core nature of a professional activity or performance.”

In support of its proposed rule, OSHA cites a dissent from a 2014 ruling of the District of Columbia Circuit Court in SeaWorld of Florida, LLC v. Perez. The case stemmed from a 2010 incident during a SeaWorld show in which a killer whale drowned and dismembered a trainer. The court upheld OSHA’s use of the General Duty Clause to prohibit SeaWorld from exposing trainers to close contact with killer whales. The dissent by then-judge Brett Kavanaugh, who now sits on the U.S. Supreme Court, argued that the General Duty Clause did not give OSHA the authority to regulate inherently risky activities that are intrinsic to professional, athletic, or entertainment occupations.

The comment period for the proposed rule closed Sept. 2. For more information, read the notice in the Federal Register and the press release from DLI.