Controlling OSHA’s Application of the General Duty Clause to Inherently Risky Professional Activities

The Trump administration issued an executive order directing a review of substantive rules and enforcement practices of the Federal regulatory agencies, including the Occupational Safety and Health Administration (OSHA), to determine whether they were consistent with the policies of the Trump administration or should be amended or revised. That review identified the 2010 OSHA enforcement action brought against SeaWorld under the General Duty Clause (GDC) of the OSH Act as problematic and resulted in the publication of a proposed interpretive rule titled “Application of the General Duty Clause to Inherently Risky Professional Activities.” [1] The enforcement action was initiated in response to the tragic fatal incident in which a killer whale pulled a SeaWorld trainer underwater during a public performance at SeaWorld’s marine animal theme park in Orlando, Florida and drowned her.

No OSHA safety and health standard applied to the situation. In the absence of an OSHA standard, OSHA has the option of issuing citations under the GDC to regulate employee exposures in situations where: (1) there is a workplace hazard, (2) the hazard is recognized by the employer or the employer’s industry, (3) the hazard is likely to cause death or serious physical harm, and (4) there are feasible means of eliminating or significantly reducing the risk of exposure to the hazard. For ease of convenience, a condition or practice that meets the first three criteria is referred to as a Recognized Serious Hazard.

At the time of the incident, the show featured physical interaction and physical contact between the trainers and the whales. There was no established or ad hoc practice of using a physical barrier or maintaining a meaningful separation between the whale and the trainer. Based on the history of adverse incidents between trainers and killer whales in SeaWorld theme parks, OSHA issued a citation alleging a willful violation of the GDC. In the citation, OSHA asserted that SeaWorld failed to eliminate the hazard (abate the alleged violation) by utilizing physical barriers or reliable separation measures that would place the trainer at a location where the whale could not swim right up to the trainer and readily pull or push the trainer underwater. The OSHA citation was upheld as a serious violation rather than a willful violation of the GDC [2].

According to the dissenting opinion of Judge (now Justice) Brett Kavanaugh, the changes required by OSHA “effectively ban[] SeaWorld from continuing a longstanding and popular (albeit by definition somewhat dangerous) show in which SeaWorld trainers play with and interact with whales.” While the show was modified in 2016 [3], that statement does not appear accurate today when one views the YouTube video titled “Orca Encounter (Full Show) - SeaWorld Orlando - December 30, 2024.” [4] During that show, the Orcas partially or completely beach themselves on a slightly submerged pool platform or on the side deck of the pool where the trainers gently scrub them down and give them a full two arm hug, resting the sides of their heads on the body of the Orca [5]. In other words, the personal contact and playful interaction between the whales and trainers is maintained but under an apparently safer set of conditions. This seems to suggest either that there was some confusion as to what new measures OSHA had required of SeaWorld in 2010 or that OSHA later changed its position on what measures were required [6]. In any event, in hindsight, it appears the SeaWorld enforcement action was substantially in line with the pending proposal.

After the incident, according to the opinion of the administrative law judge presiding over the citation contest (ALJ), SeaWorld adopted physical barrier and separation measures of the type recommended by OSHA. During the hearing on the contested citations, SeaWorld essentially asserted there was no recognized hazard and no feasible means of abatement beyond what was already being done at the time of the incident. First, SeaWorld asserted that a hazard inherent and fundamental to the character of this type of (legally permissible under state law) activity could not be a “recognized hazard.”  Second, SeaWorld argued that, in enacting the OSH Act, Congress did not authorize OSHA to regulate the hazards of the professional sports and entertainment industries, at least to the extent those hazards were inherent and fundamental to the character of those legally permissible activities. Third, SeaWorld argued, in practical effect, that the abatement measures that OSHA recommended and it had voluntarily implemented were not feasible for purposes of the OSH Act because they would fundamentally change the character of the SeaWorld’s business and/or the trainer’s occupation—in effect, constructively terminating and reconstituting the business in another form or revising the essential functions of the job. All of those arguments were considered and rejected by the ALJ and the U.S. Court of Appeals for the D.C. Circuit in upholding the citation as a serious but not willful violation of the GDC [7].

The proposed interpretive rule [8] on the GDC issued by the Trump Administration maintains OSHA’s position on the first two issues and attempts to clarify the issue of when technically and economically feasible abatement measures would, nevertheless, not be feasible or required because they would fundamentally change the character of the affected activity or business and/or occupation of the affected employee(s). The proposed criteria are:

1. the activity is integral to the essential function of a professional or performance-based occupation; AND
2. the hazard cannot be eliminated without fundamentally altering or prohibiting the activity; AND
3. the employer has made reasonable efforts that do not alter the nature of the activity to control the hazard (e.g., through engineering controls, administrative controls, personal protective equipment).

In the SeaWorld situation, by the time of the hearing on the citation contest, the ALJ found that SeaWorld had implemented the changes OSHA recommended, the show had gone on, and there was no evidence that the changes had a negative effect on SeaWorld’s profits. In other words, the changes were technically and economically feasible. In a situation in which the affected business does not implement abatement measures prior to the hearing contest, the economic impact of the changes recommended by OSHA would be unknown and likely the subject of a dispute between experts to be resolved by the ALJ.

Lacking in the SeaWorld decisions was a detailed (documented) side-by-side review and analysis of the SeaWorld Shamu show at the time of the tragic incident and after the abatement measures were implemented. This has resulted in continuing uncertainty as to the nature and magnitude of the changes that could be imposed by OSHA on what it considers the “inherently risky professional activities” under the GDC before reaching the feasibility threshold, apparently defined as “fundamentally altering the nature of the business activity or job.” 

In the industrial and construction context, courts have stated the GDC requires that “[a]ll preventable forms and instances of hazardous conduct must be entirely excluded from the workplace.” Nat'l Realty & Constr. Co. v. OSHRC, 489 F.2d 1257, 1265-1266 (D.C.Cir.1973). In the context of Section 6(b)(5) OSHA health standards regulating toxic materials and harmful physical agents, the Supreme Court has held that a standard is feasible unless it would threaten the economic viability of an industry or a significant segment of an industry. Benzene; Cotton Dust. Using these cases as guidance, a change that fundamentally alters the nature of a continuing business would be one that constructively terminates the business and reconstitutes it as a new business.

In his dissent in SeaWorld, then Judge (now Justice) Kavanaugh asserted that Congress did not grant OSHA the authority to apply the GDC to the professional sports and entertainment industries because, had it done so, OSHA would have no choice but to apply the GDC in a way that eliminated all recognized hazards, which would result in the elimination of those industries. To support that conclusion, despite the absence of an express exemption or any language in the OSH Act creating an implied exemption, Justice Kavanaugh:

1. Noted that OSHA had previously refrained from issuing citations to those industries [9];
2. Asserted that OSHA’s implicit decision to distinguish the close contact between trainers and whales at SeaWorld from the physical contact in NFL football and potential collisions on the NASCAR circuit was arbitrary and capricious;
3. Suggested there was substantial self-policing within these industries; and
4. Asserted the states and tort law would intervene if intervention was needed.   

Again, the dissenting opinion in SeaWorld appears to be based on the premise that the majority decision “effectively ban[ned] SeaWorld from [presenting a] … show in which SeaWorld trainers play with and interact with whales,” and a recent show indicated that is not the case.

The OSHA Notice of Proposed Rulemaking [NPRM] states:

[OSHA] now preliminarily concurs with the dissent’s concerns. This [NPRM] … responds to those concerns and codifies the principle that the General Duty Clause does not authorize OSHA to prohibit, restrict, or penalize inherently risky activities that are intrinsic to professional, athletic, or entertainment occupations.

Given the context, the implication of the proposal is that the Trump Administration (OSHA) apparently believes the majority in SeaWorld reached the wrong conclusion because:

1. the activity (physical interaction and contact between the killer whale and the trainer in a public show) was integral to the essential function of a professional or performance-based occupation (killer whale trainer); and
2. the hazard (that the killer whale would harm the trainer) could not be eliminated without fundamentally altering or prohibiting the activity (because the required measures would eliminate the physical contact and play between the Orcas and the trainers during the public shoes – which appears to be an erroneous premise based on the YouTube video “Orca Encounter (Full Show) - SeaWorld Orlando - December 30, 2024”; and
3. the employer made reasonable efforts (through specialized training of the trainers designed to avoid hazardous events) that do not alter the nature of the activity to control the hazard (e.g., through engineering controls, administrative controls, personal protective equipment).

In hindsight, assuming the referenced December 30, 2024, Orca Encounter show reflects what is permitted under OSHA’s current enforcement position, it appears the majority in SeaWorld reached the correct legal conclusion, but the underlying factual foundation for that holding remains unclear.

Looking at the big picture, there appear to be three options available to OSHA for applying the GDC to inherently risky professional activities of the type presented by the professional sports and entertainment industries:

1) Option A: The Employer Must Take All Feasible Measures To Eliminate Or Significantly Reduce Recognized Serious Hazards Where “Feasible” Means Technically And Economically Feasible Without Fundamentally Altering Or Prohibiting The Activity

Under this approach, how do OSHA, the Review Commission, and the Courts determine when an abatement measure would be deemed infeasible because it would fundamentally alter the activity? 

First, from a factual standpoint, whether the abatement measures fundamentally alter the activity depends on the subjective eye of the beholder. Who is/are the relevant beholders -- the legally relevant perspective(s) from which the determination must be made? These could be determined based on the consensus of the athletes/performers/coaches, the consensus of the fans/audiences, the official position of the team/performing company (ownership, marketing department), the official position of the sports league, the consensus of experts who might identify effects that would be overlooked by the average fan, etc. 

Second, if multiple perspectives are to be considered and may differ, what relative weights are to be given to the relevant perspectives?

Third, what are the relevant factors in making the determination?

Neither the SeaWorld decisions nor the NPRM provide any meaningful guidance on the criteria to be applied in determining whether the changes recommended by OSHA would fundamentally alter the activity. Instead, they seem to rely on an “I know it when I see it” approach. For example, virtually everyone would quickly recognize a fundamental difference between touch football and tackle football. Less obvious would a situation in which OSHA determined a particular type of play (e.g., kickoff, punt return) or a particular playing technique (e.g., tackling technique, blocking technique, fighting in hockey) should be modified or eliminated because it presented a Recognized Serious Hazard and eliminating or modifying the play or playing technique would not fundamentally alter the activity. The fact that physical contact is essential to the game of football or ice hockey, or an inherent hazard in auto racing, may not prevent OSHA from prohibiting or requiring modification of discrete aspects of those activities if proven to pose a significantly elevated risk.

2) Option B: OSHA Was Not Authorized By Congress To Use The General Duty Clause To Regulate Hazards Inherent To The Professional Sports And Entertainment Industries.

Although the economic success of professional football and hockey would be expected to continue despite any prudent limited changes OSHA might require, the economic impact of the changes would not be ones that could be readily measured (as if they were simply the cost of additional engineering or administrative controls in a manufacturing environment) and the impacts may change over time. Justice Kavanaugh and many others would argue that Congress never intended for OSHA to get involved in micromanaging those industries and determining which of the Recognized Serious Hazards inherent to those industries would be permitted to continue and which would be banned or permitted to continue with modifications. 

The most logical conclusion is that in 1970, when the OSH Act was adopted, Congress was focused on hazards in the industrial and construction sectors, and to a lesser extent, the agricultural sector, and did not consider the application of the OSH Act to professional sports or the entertainment industry. However, this situation is readily distinguishable from the litigation that successfully challenged OSHA’s authority to issue the COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), which was applicable to all places of employment rather than limited to those workplaces presenting a significantly heightened risk. That ETS was stayed and effectively vacated by the Supreme Court in NFIB v. OSHA, 142 S. Ct. 661 (2022) on the ground that OSHA had attempted to regulate conditions faced by the public at large rather than those unique to the workplace. The exposures in question involving professional athletes and entertainers are unique to the workplace. Furthermore, a general principle of statutory construction is to give the words of a remedial statute broad effect in the absence of an explicit exception. The OSH Act includes a number of explicit exceptions, but none for professional sports, the entertainment industry, or any comparable industry with inherent hazards.

Practical considerations and prosecutorial discretion have resulted in OSHA initiating very few enforcement actions in this arena and relying on informal persuasion. After being on the job for over 50 years, OSHA still has not determined whether NFL and MLB players are employees or independent contractors [10]. A high-ranking OSHA official advised me that OSHA had contacted an NBA franchise about the problem of NBA players running into courtside photographers and their equipment, resulting in injuries to players and photographers. One article suggests this was a long-running problem that the NBA had been slow to address. Winneker, J.D. et al., Lights, Camera, … Injury! The NBA Needs to Ban Courtside Cameramen, 23 Jeffrey S. Moorad Sports L.J. 437 (2016). Available here or here.

Some have expressed the view that the NFL took too long to address the hazards of brain injury from repeated head trauma. Brenson, K., Head to Head: The NFL Concussion Scandal and an Argument for OSHA Regulation, University of Chicago Legal Forum, Volume 2017, Article 23 (2018).

These events suggest there is value in having OSHA’s virtually unused GDC authority available to address the hopefully extremely rare situations in which the responsible employer or industry does not adequately police itself and requires government intervention. For a view that OSHA has and should exercise its authority in this area, see Finkel, A., How a Government Partnership Could Make the NFL Safer, Global Sport Matters (June 21, 2022).

3) Option C: OSHA Should Apply the GDC and Other Applicable OSHA Standards to Those Aspects of Professional Sports and Entertainment Activities That Would Be Encompassed By OSHA’s More Traditional Regulatory and Enforcement Activity. 

Because risk is inherent to professional sports and entertainment activities, OSHA deviates from its normal view that there is no assumption of risk by employees. Furthermore, OSHA also considers the fact that those employees are generally unionized, and, in the case of professional athletes, which probably is not applicable to SeaWorld trainers, highly compensated. The substantial financial investment in professional athletes creates a strong incentive for sports clubs to take measures to protect the athletes from harm. 

On the other hand, to the extent that professional athletes and entertainment industry personnel are employees, OSHA is understandably reluctant to issue a free pass from OSHA regulation. For example, if a high wire act was performed by employees without a safety net, OSHA might reasonably decide to issue a letter of interpretation advising that, in the future, it would issue a citation or even post an imminent danger notice if such a situation occurred. OSHA is not likely to be persuaded that performing a high wire act without a safety net is better because it will force the performer to be more careful, and because safety nets may not always be effective [11]. The issue raised by the pending proposal is whether the character of the activity is fundamentally altered with the presence of a safety net because the audience wants to see the performer risking death or serious injury. If there was evidence that use of a certain type of PPE would significantly reduce the risk of serious injuries (e.g., helmets, mouth guards, elbow pads, knee pads) without significantly affecting the nature of a sports contest, OSHA might reasonably decide to issue a letter of interpretation advising that, in the future, it would issue a citation for failure to supply and require employees to use that PPE.

If live bullets somehow found their way into a prop gun, which discharged on a set but did not hit anyone, the police might investigate to determine whether harm was intended and drop the matter after concluding it was an accident. In that scenario, it might be appropriate for OSHA to investigate and take enforcement action to address the inadequate practices that led to the incident.

Of particular interest is OSHA’s inclusion, without any explanation, of “hazard-based media and journalism activities” in the sectors of “inherently risky professional activities.” Perhaps it is contemplating the hazards faced by the White House press corps?

To date, it appears that the “I know it when I see it” standard has been used to draw the fine line between legitimate enforcement and social engineering.

[1] Interpretation of the General Duty Clause: Limitation for Inherently Risky Professional Activities, 90 Fed. Reg. 28370 (July 1, 2025).
[2] SeaWorld of Florida, LLC v. Perez, 748 F.3d 1202 (D.C. Cir. 2014).
[3] In 2016, SeaWorld changed its “Shamu” show to “Orca Encounter.”
[4] https://www.youtube.com/watch?v=LTIvP15L1TE
[5] https://www.youtube.com/watch?v=LTIvP15L1TE
[6] According to the opinion in Seaworld, OSHA’s appellate counsel stated, “in response to SeaWorld's counsel's hypothetical, that physical contact between players is “intrinsic” to professional football in a way that it is not to a killer whale show. See Resp't Br. at 52.”
[7] SeaWorld of Florida, LLC v. Perez, 748 F.3d 1202 (D.C. Cir. 2014).
[8] The proposed rule is a non-binding interpretive rule rather than a substantive rule. It is designed to interpret the GDC, which is a statutory provision of the OSH Act that OSHA can only interpret. OSHA cannot amend the GDC. Furthermore, under the Loper Bright Enterprises v. Raimondo decision of the U.S. Supreme Court, overturning Chevron, the interpretation of the OSH Act is a judicial function and OSHA’s interpretation is no longer entitled to deference by the Review Commission or the Courts. As a practical matter, it will constrain OSHA enforcement actions for as long as it is on the books. Given that state plan states have the option of adopting more protective rules than Federal OSHA, it does not appear that OSHA could require state plan states to adopt whatever final rule comes out of this proceeding.
[9] Actually, Justice Kavanaugh stated: 

But the Department of Labor, acting with a fair degree of prudence and wisdom, has not traditionally tried to stretch its general authority under the Act to regulate participants taking part in the normal activities of sports events or entertainment shows.

The products of the professional sports and entertainment industries are viewed as an essential aspect of life for much of the general public. The players and entertainers are glorified by much of the general public. They are in professions composed of talented individuals who are generally perceived as being highly compensated for both their unique talents and their decisions to voluntarily take the risks inherent in the activities. When an NFL player or a NASCAR driver gets hurt, the last thing almost any fan is thinking is that OSHA should have done something more to protect the player or the driver. OSHA’s restrained approach in this area reflects the political realities and consequences of a regulatory agency that recognizes the need to avoid being perceived as over-zealous in addressing hazards in these industries.

The enormous blowback from OSHA’s brief foray into regulating home offices to ensure compliant stairways, handrails, electrical wiring, etc., has sensitized OSHA to the consequences of inappropriate enforcement initiatives widely affecting the general public. See https://workforce.com/news/oshas-letter-on-working-at-home; https://www.wlf.org/2000/03/31/communicating/wlf-demands-that-osha-formalize-and-extend-its-home-office-exemption/

[10] https://www.osha.gov/laws-regs/standardinterpretations/2003-06-23-1; https://www.osha.gov/laws-regs/standardinterpretations/2008-09-12
[11] See https://www.city-journal.org/article/bring-back-risk; https://www.lpm.org/news/2017-08-22/fairly-curious-why-dont-the-flying-wallendas-use-a-safety-net