Earlier this week, OSHA dumped dozens of deregulatory proposals into the Federal Register — most dealing with respirator issues, as well as other alleged “problems” that we will discuss later.
One of the most puzzling of these “deregulatory” actions was a proposed new OSHA regulation that would forbid the agency from using the General Duty Clause in any sports or entertainment workplaces to cite employers where workers are exposed to certain “inherently risky employment activities.”
This is clearly a response to the all-too-common media reports of jack-booted, masked OSHA inspectors driving black vans dragging movie directors off the streets for endangering actors, OSHA gestapo shattering children’s lives by shutting down amusement parks and OSHA bureaucrats assessing huge fines against baseball teams for pitching fastballs and football teams for tackling too roughly. The horror!!!
Of course, none of this is actually happening — except possibly in the fevered alcohol-infused nightmares of some unelected MAGAcrats and a certain beer-loving Supreme Court Justice.
So why has the Trump administration proposed this new regulation? Where did it come from and where is it going?
And what does it have to do with killer whales?
Read on.
Background: Sea World Rises Again
To understand exactly what’s happening, travel back with me to February 24, 2010, a sunny morning in Orlando, Florida where an excited audience settled into a much-anticipated Orca show at Sea World. But instead of fun and frolic with happy sea animals, hundreds of children and their parents were forced to witness a killer whale dismember and drown 30-year-old whale trainer Dawn Brancheau.
This was no “freak accident.” The whale that killed Brancheau had been implicated in three previous human deaths. Brancheau’s death was foreseeable — and preventable.
Sea World is not just an entertainment venue; it’s also a workplace. In response to Brancheau’s death, OSHA investigated and issued a $70,000 willful General Duty Clause Citation against Sea World and ordered the company to reduce the hazard by physically separating trainers from the whales. OSHA showed that Sea World and its employees knew from previous incidents and close calls that all of its killer whales were dangerous, and that Tilikum, the whale that killed Brancheau, was particularly dangerous.
For those of you just tuning in, the General Duty Clause is Paragraph 5(a)(1) of the Occupational Safety and Health Act. It simply requires employers to provide a safe and healthful workplace. To sustain a General Duty Clause violation, employees must be exposed to a serious, recognized hazard and there must be a “feasible means of abatement.” In other words, there must be a feasible way to eliminate or reduce the hazard, and whale experts had described a feasible means of protecting employees — actions that Sea World had, in fact, implemented soon after Brancheau’s death.
Sea World contested the citation and the Occupational Safety and Health Review Commission upheld OSHA’s citation (although reducing it from a willful to a serious violation). Sea World then appealed to the U.S. Court of Appeals and on April 11, 2014, the D.C. Circuit court decided 2-1 in favor of OSHA.
The Court found that “There was substantial record evidence that Sea World recognized its precautions were inadequate to prevent serious bodily harm or even death to its trainers and that the residual hazard was preventable,” and further that there was substantial evidence that there were feasible means to protect employees without impacting the business of entertaining the public. Circuit Judge Judith Rogers and supported by OSHA was Chief Judge Merrick Garland.
But the story doesn’t end there. The lone dissenting judge on the panel, who opposed OSHA’s citation of Sea World, was Circuit Judge Brett Kavanaugh. Four years after that decision, President Donald J. Trump nominated Kavanaugh to fill the Supreme Court seat previously occupied by the recently departed Justice Antonin Scalia.
Kavanaugh for the Whales
In his dissent, Kavanaugh labeled OSHA’s action “arbitrary and capricious” because, according to his reasoning, regulating the safety of killer whale shows is no different than regulating the safety of tackling in football, or speeding in sports car racing, or punching in boxing.
And just as you’d have no football if you didn’t have tackling, or no sports car racing if you didn’t have speeding, according to Kavanaugh there would be no Sea World whale shows if there was no close human contact with killer whales. Because, according to the future Supreme Court justice, the potential hazard that whale trainers face is inherent to the entertainment that Sea World provides.
What Kavanaugh was missing in facts or legal reasoning, he made up for with his flowery rhetoric extolling the virtues of death-defying feats of entertainment work.
To be fearless, courageous, tough – to perform a sport or activity at the highest levels of human capacity, even in the face of known physical risk – is among the greatest forms of personal achievement for many who take part in these activities. American spectators enjoy watching these amazing feats of competition and daring, and they pay a lot to do so.
But the court, in its decision, stating that no one — except Kavanaugh — claims that whale shows are a “sport” where you are there to see who “wins.”
Killer Whale shows are not supposed to be modern gladiatorial contests where the audience attends to see who “wins” — the trainers who successfully keep their limbs attached, or the whales who dismember and drown the trainers.
In other words, people go to boxing matches to see which boxer “wins” by punching his opponent into unconsciousness. Fans watch football games to see one team physically stop the other from scoring. But tourists — including small children — go to Sea World to watch attractive trainers lovingly interact with adorable sea creatures. Killer whale shows are not supposed to be modern gladiatorial contests where the audience attends to see who “wins” — the trainers who successfully keep their limbs attached, or the whales who dismember and drown the trainers.
Kavenaugh pointed out that the workers themselves willingly volunteer to risk their lives, asking
When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves – that the risk of significant physical injury is simply too great even for eager and willing participants? And most importantly for this case, who decides that the risk to participants is too high?
Who decides? Not “the bureaucracy at the U.S. Department of Labor,” according to Kavanaugh.
Exactly, the Court responded. The bureaucrats don’t decide: “This is a question to be answered by Congress, not this court. And Congress has done so.”
Finally, Kavanaugh criticized OSHA because the agency had allegedly “departed from tradition and stormed headlong into a new regulatory arena” involving entertainment shows. Kavanaugh repeated this assertion when, during his nomination hearing, Senator Diane Feinstein (D-CA) asked him “Where in the text of the law does Congress exempt employers of animal trainers?”
Kavanaugh didn’t answer her question, instead claiming that “The issue, Senator, was precedent. I follow, as a judge, I follow precedent. The precedent of the Labor Department, as I read it, was that the Labor Department under the statute would not regulate what it called the intrinsic qualities of a sports or entertainment show.” [emphasis added]
But again, Kavanaugh was wrong. As the court pointed out, there had been previous OSHA citations in the entertainment industry as far back as 1995 when OSHA cited a carnival and 2005 when OSHA cited Disney World.
Federal OSHA, as well as Nevada and Oregon OSHAs, used the General Duty Clause to cite Cirque du Soleil several times over the past decade after its performers were injured.
In 2011, OSHA used the General Duty Clause to cite 8 Legged Productions, the producer of the Broadway musical, “Spider-Man: Turn Off The Dark” after several employees were injured performing aerial routines. Yet somehow the show went on and to this day, the lights of Broadway continue to shine. (Although after numerous problems and cost overruns, the production closed at a massive financial loss, unrelated to the OSHA citation.)
And most recently, New Mexico OSHA issued a $131,871 willful General Duty Clause citation to Rust Movie Productions after actor Alec Baldwin shot and killed crew member Halyna Hutchins with a prop gun loaded with live ammunition. The movie, Rust, was nevertheless released earlier this year.
What OSHA has not done — and will likely never do — is to cite a baseball team for pitching too fast, cite a football team for tackling too hard, or cite a racing team for driving too fast. And as you can see from the cases cited above, all of the injuries and deaths were preventable, and none of the citations mandated changes that affected the inherent nature of the entertainment.
Also, despite the OSHA citation, Sea World somehow remans in business, although they no longer offer shows with trainers in the water with the whales. Instead of theatrical killer whale shows, they now offer educational “Orca Encounter” shows which still apparently delight spectators old and young — but without the added attraction of severed limbs and drowned workers.
(I have written much more about Kavanaugh’s involvement in the Sea World case here.)
The Proposal
The new proposal sounds eerily similar to Kavanaugh’s dissent in the Sea World case. Where standards exist (e.g. fall protection), OSHA would, theoretically, still be able to cite. But where there are no specific standards (e.g. covering workers performing with whales), this proposal would forbid OSHA from using the General Duty Clause to cite employers in the sports or entertainment industry for
“hazards arising from inherently risky employment activities, where:
(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).”
The affected sectors include, but are not limited to:
(1) Live entertainment and performing arts;
(2) Animal handling and performance;
(3) Professional and extreme sports;
(4) Motorsports and high-risk recreation;
(5) Tactical, defense, and combat simulation training; and
(6) Hazard-based media and journalism activities.
But based on the Sea World case, described above, the language of the proposed regulation does not stand up to legal or logical scrutiny.
(1) Close contact between whale and human is not an activity that is integral to the essential function of whale shows; As the court decision stated
SeaWorld does not assert…that a public perception of danger to its trainers is essential to its business. Nor has SeaWorld ever argued that limiting interactions in the way that the remedy requires would have a detrimental economic impact on its profits. The whale show continued after Brancheau’s death, with measures to protect the trainers.
(2) the hazard can be — and was — eliminated without fundamentally altering or prohibiting killer whale shows.
After Brancheau’s death, Sea World carried on with its killer whale shows, but with precautions similar to those that OSHA ordered.
(3) prior to Brancheau’s death, the employer had not made reasonable efforts that do not alter the nature of the activity to control the hazard.
The court noted that there was abundant evidence that Sea World had recognized the hazard that close contact with the whales presented but had not done anything to abate that hazard.
The irony is that employers often love the General Duty Clause if it’s an alternative to a issuing a standard, as we’ve seen recently in the hearings on OSHA’s heat standard. Employers have testified that OSHA does not need a standard because they can just continue to use the General Duty Clause).
If this proposal is adopted, it will stop OSHA from using the General Duty Clause to protect entertainment industry workers from heat-related illness and death. And it gets pretty hot down in Orlando.
But, of course, they hate the General Duty Clause — and often sue OSHA — when the agency actually uses it.
And a further irony: If this proposal is adopted, it will stop OSHA from using the General Duty Clause to protect entertainment industry workers from heat-related illness and death. And it gets pretty hot down in Orlando.
Why This? Why Now?
But why? Where is this coming from? Is Kavanaugh still burning with rage over his legal defeat 11 years ago? Does he still fantasize about how maybe he could have bravely performed a sport at the highest levels of human capacity — even in the face of known physical risk — if he had he not liked beer so much? Does he have someone’s ear over at the Department of Labor? Or maybe some White House lacky or DOGE Bro is hoping to earn favor from Kavanaugh, possibly hoping for a judicial appointment?
Or more ominously, is this the proverbial camels nose under the tent: possibly just a first step in weakening OSHA’s General Duty Clause?
It’s a mystery.
The only thing we do know is this is a solution in search of a problem.
Last February, President Trump issued an Executive Order 4219, “Directing the Repeal of Unlawful Regulations” that orders agency heads to identify and begin plans to repeal “unconstitutional regulations and regulations that raise serious constitutional difficulties, such as exceeding the scope of the power vested in the Federal Government by the Constitution,” as well as “regulations that are based on unlawful delegations of legislative power.”
Even though OSHA’s current ability to use of the General Duty Clause to cite employers in the entertainment industry is not in a regulation that can be repealed as envisioned in the Executive Order, Kavenaugh’s assertion in his dissent nevertheless seems to fit right in with the Trump administration’s hunt for “unlawful delegations of power.”
In the real world, it is simply not plausible to assert that Congress, when passing the Occupational Safety and Health Act, silently intended to authorize the Department of Labor to eliminate familiar sports and entertainment practices, such as punt returns in the NFL, speeding in NASCAR, or the whale show at SeaWorld.
And by “real world,” he means “Kavanaugh’s world.”
This Proposal is Illegal
Of course, this whole thing may be illegal (to the extent that even matters anymore) and OSHA may not have the legal authority to eliminate General Duty Clause coverage of entertainment or sports hazards.
Why?
A little background: Generally, OSHA can only use the General Duty Clause when there is no OSHA standard that applies. In other words, OSHA can use the General Duty Clause to cite workplace violence or heat hazards because OSHA has not issued a workplace violence or heat standard. But OSHA can generally not use the General Duty Clause to cite hazards for which a standard exists, even if the standard may be deficient. For example, if a worker is killed in a 4-foot deep trench collapse, OSHA would not be able to cite the employer under the General Duty Clause because there is already a trenching standard that says trench walls need to be supported at 5 feet.
But there is one major exception to this rule: In 1987, the DC Circuit Court ruled in the General Dynamics case that “if an employer knows that a specific standard will not protect his workers against a particular hazard, his duty under section 5(a)(1) will not be discharged no matter how faithfully he observes that standard.”
So, if an employer knows that a standard will not protect a worker, they still have a general duty to provide a safe workplace and can be cited by OSHA. The key is whether the employer has knowledge that the work is unsafe, even if a standard exists.
Furthermore, according to the court, there is nothing in the OSHA law or regulations that “allows OSHA to promulgate standards that displace the general duty imposed by section 5(a)(1).”
So it looks like OSHA cannot legally change what is covered by the General Duty Clause. Of course, this may be the point. They could be looking forward to winning a lawsuit over this issue, hoping that a Trumpy Supreme Court (that includes Brett Kavanaugh) will overrule the General Dynamics decision and make it easier for OSHA to “legally” weaken the General Duty Clause.
One other legal issue. Most OSHA enforcement policy is contained in the agency’s Field Operations Manual (FOM) — a policy directive that OSHA frequently and relatively easily updates as needed. The FOM has a couple of paragraphs detailing how inspectors should use the General Duty Clause to enforce “inherently dangerous employment.” But instead of just doing the easy thing and modifying the FOM, OSHA is carving its new policy into a regulation.
What’s the problem with that? It’s much harder to change or rescind a regulation — once the MAGA pestilence is uprooted — than it is to just make a change to a policy directive.
Costs and Benefits: Workers’ Lives Are Worthless
Finally, buried deep within this proposal is the thing that pisses me off most: the boring economic analysis and what it means for how little this administration values workers.
Most of the economic analysis in this piece of shit work is indecipherable and would probably be laughed out of OMB by any administration with a shred of integrity. So I won’t go into it, except to note one critical missing piece.
Executive Order 12866, issued under the Clinton Administration, requires agencies to conduct a cost-benefit analysis of new rules to determine if benefits exceed costs.
Obviously, this is not an easy task. It is relatively easy to determine what costs employers will bear when required to comply with a new standard. But calculating the benefits — to workers, employers and society — is much more difficult.
When OSHA is developing a standard that enhances worker protections, the benefits are mostly calculated by estimating the monetary value of the lives saved and injuries prevented by the new standard. OSHA’s heat proposal, for example, estimates that the benefits of preventing a single human death is $13.77 million, and the benefit of preventing an injury is $116,558.OSHA estimates that the total benefit from its proposed heat standard would be $9.2 billion, and total costs $7.8 billion. If you think that putting a monetary value on a worker’s life seems cold and callous, you’re right. But that’s how the sausage is made.
So turning this on its head for a “deregulatory” regulation like this, one would think that any lives lost or injuries incurred as a result of OSHA no longer being able to use the General Duty Clause in certain situations would be a “cost” — to workers and their families, but also a cost to employers, the economy and society.
So, congratulations Dawn Brancheau: Workers’ lives are cheap, and your life was worth nothing to OSHA.
As far as I can tell from the convoluted economic analysis, OSHA estimates that the “burden reduction” resulting from this regulation will be between $499,500 and $1.46 million annually. That’s for the entire country, per year.
So, using that analysis, even one single death (priced at $13.77 million) in a year, resulting from OSHA’s future inability to use the General Duty Clause, would be between 9 and 28 times the annual nationwide one-year “burden reduction” of this regulation.
Or to put it another way, one single death resulting from this regulation would equal almost ten years of “burden reduction” for affected employers.
Yet nowhere in the economic analysis does OSHA estimate how many workers — like Dawn Brancheau — will die or suffer injuries by OSHA’s inability to use the General Duty Clause to enforce unsafe conditions in the entertainment or sports industries.
So, congratulations Dawn Brancheau: Workers’ lives are cheap, and your life was worth nothing to OSHA!
And that’s the message we can all take from this ill-begotten proposal.
Wonderful column!! Nailed it all.
Hi, Jordan, what is the status of the NFL citations and appeals?
California does not use the General Duty Clause per se. But Cal/OSHA has 3 possible alternatives: Issue an Order to Take Special Action(P&P C-6); Issue a Special Order(P&P C-3), or issue a citation under the Injury and Illness Prevention Plan regulation. The first two options (see Cal/OSHA Policy and Procedures Manual) carry no penalties but require employer actions to abate hazards and that might be quite expensive. A example applying these options to the entertainment world was the play, Billy Elliot, in which a juvenile actor is spun through the air suspended by ropes. This rigging as used on Broadway was unsafe, so before the play was allowed to open in San Francisco, Cal/OSHA required a rigging redesign. If memory serves, a Special Order specifying the rigging design was issued. Violation of a Special Order leads to citation and fines.
great coverage of the issues
I have always thought of the General Duty Standard as genious by the writers of the OSH act because they had no idea, back in 1970, of the future developments that would come around in workplaces. The OSHA standards are glacial in their updates. The General Duty Standard allows regulation of workplace activities that would otherwise be missed. Look at combustible dusts for example. It also seems that those who argue that the General Duty Standard should not be used in sports and entertainment are comparing apples to oranges. Sports are inherently chancy, which is also society’s inherent facination with them. They are uncontrolled contests that often include high risk. Why else do we suppose they developed all of the PPE and engineering controls for sports? In contrast, entertainment productions are SCRIPTED and planned to be able to reproduce the same thing – over and over for the next audience who attends. They have the ability to plan for the safety and health of those participating. Hazards in entertainment are predictable and preventable.
This is great!
I will direct staff to read this when I get questions.
Great analysis Jordan! Crazy times, and a crazy SCOTUS judge…