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Exactly HOW does OSHA address things that aren’t in their standards?
Well – first– they’ll bend over backwards to find a standard that fits. Why? In Administrative Law, the presumption in court is that once the violation is issued, it is valid unless or until the defendant proves it is NOT valid. Huh? Thats backwards, you are thinking! How can the government do that? In the criminal law, the GOVERNMENT has the burden of proving a defendant is guilty of a crime, NOT the other way around …. thats Communist … or worse, its like High School!
It may very well be that way, that that IS the way the system works. Why? Because OSHA can’t enforce criminal PUNISHMENTS, they can only enforce Administrative RULES. Under the “rules”, there can be no jail time (loss of liberty), only ‘penalties’, which are monetary in nature. Yes, I know that some of those ‘penalties’ that Administrative Agencies dole out can be worse than the ‘punishments’ that criminal courts dole out … but that IS the way it is.
Which brings us to the OSHA General Duty Clause, a/k/a “5(A)(1) of the OSH Act. This is a catch-all — when OSHA has no standard. However, OSHA has a much, much, much more difficult burden of proof here. In fact, there are 4 elements OSHA must prove, and they are laid out very nicely in an OSHA Letter of Interpretation, which can be found here: https://www.osha.gov/pls/oshaweb/owadisp.show_docu…
Note element b: “recognized”. OSHA must prove that. How do they do it? They use Owners Manuals, Association Guidelines … almost anything. And further note element D: the OSHA definition of ‘feasible” doesn’t take into account cost.
With that in mind … can you come up with a citation where OSHA might have to resort to the General Duty Clause? Discuss with the 4 elements in mind.
