Lawrence Halprin Quoted in Bloomberg Law Article on OSHA’s General Duty Clause

Keller and Heckman Partner Lawrence Halprin was quoted in the Bloomberg Law article, “Safety Agency Eyes New Limits on Catch-All Enforcement Clause.” The article indicates that OSHA plans to limit the application of the General Duty Clause of the OSH Act to the inherently dangerous professional activities of employees, primarily in the sports and entertainment sectors but also hazard-based media and journalism activities (think Up Close & Personal with Michelle Pfeiffer and Robert Redford, or possibly being a member of the current White House Press Corps). This is part of the Trump Administration’s deregulatory push. If a final rule is adopted, it would be an interpretive rule rather than a binding substantive rule.

OSHA estimated there are approximately 115,000 employees in the Standard Occupation Classifications that would be affected by the rule and, of those, approximately 1% or 1,100 employees would be directly affected. According to AI, that number clearly appears understated because each of the 32 NFL teams has 53 players (totaling 1696 players), each of the 32 NHL teams has 23 players (736 players), there are at least 300 professional race car drivers and 100 motocross drivers. That figure does not include circus and stunt performers, and it is unclear whether other professional athletes (e.g., soccer, basketball, lacrosse, horse racing jockeys, minor league professionals) would fall within the covered group. Nor does OSHA’s estimate include any of the Division I college players who might be considered employees under the OSH Act, given the Third Circuit holding in Johnson v. NCAA that college athletes may be employees under the Fair Labor Standards Act. Some of these numbers also could be zeros because, after being on the job for over 50 years, OSHA still has not determined (and apparently does not want to determine) whether, for example, NFL players are employees or independent contractors.

“Right now it’s a matter of trying to come up with some rational criteria that’ll make sense for everybody,” said Lawrence. OSHA is looking to adopt an interpretation that would provide more guidance to inspectors in certain areas to know whether an inspection is warranted in the first place, he added.

To read the full Bloomberg Law article, please click here. Click here for a more detailed Keller and Heckman piece on this issue.