An appeals court decision upholding OSHA’s application of the general duty clause in the death of a SeaWorld trainer may embolden the agency to apply it more broadly, an industry lawyer says.
Dawn Brancheau died when a killer whale grabbed her during a live performance in Orlando in February 2010. OSHA issued three citations to the entertainment company, one under the general duty clause of the Occupational Safety and Health (OSH) Act. A judge upheld the citation. SeaWorld appealed to the D. C. Circuit, but a three-judge panel sided with OSHA.
SeaWorld unsuccessfully argued OSHA had failed to prove that the company recognized trainers’ interaction with killer whales was hazardous and that a feasible means existed to reduce the hazard.
Jackson Lewis attorney Tressi Cordaro said she sees OSHA’s SeaWorld enforcement action as part of a broader trend by OSHA of reaching into industries the agency has traditionally left alone.
“I don’t see how, if OSHA’s got the green light in the entertainment industry, they can’t move into sports,” she told Bloomberg BNA. Cordaro cited a hypothetical example of OSHA intervening after an NFL quarterback dies on the field from heat stress.
The general duty clause was never meant to substitute for OSHA’s developing regulatory standards, “but that’s what you’re seeing,” Cordaro said.
OSHA, though, denies it plans a more expansive role. Agency chief David Michaels told Bloomberg BNA in January he has no plans to broaden use of the general duty clause. His comment was made in the context of the agency’s application of the provision in a case involving alleged overexposure to styrene, even though the level was below the OSHA legal limit.
A similar remark was made around the same time by an OSHA spokesman, who asserted the clause is reserved for extreme cases, mainly because the agency must overcome a high legal bar to prove them.