Labor & Employment Law Daily Wrap Up, FEDERAL REGULATIONS—OSHA proposes to amend general duty clause to exclude certain hazards from enforcement, (Jul 10, 2025)

By Patricia K. Ruiz, J.D.

The proposal comes in response to the dissent in a case questioning the scope of OSHA’s authority under the OSH Act.

The Occupational Safety and Health Administration (OSHA) has proposed to clarify its interpretation of general duty clause at 29 U.S.C. §654(a)(1) to exclude from enforcement known hazards that are inherent and inseparable from the core nature of a professional activity or performance. Interested parties must submit comments by September 2, 2025.

General duty clause. Section 5(a)(1) of the Occupational Safety and Health Act (OSH Act), the general duty clause, requires employers to furnish a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” The provision historically functioned as an enforcement mechanism when no specific OSHA standard applies to a particular hazard. OSHA is proposing to clarify its interpretation of the general duty clause following a dissent in SeaWorld of Florida, LLC, v. Perez (D.C. Cir. 2014) arguing that the general duty clause does not authorize OSHA to regulate hazards arising from normal activities that are intrinsic to professional, athletic, or entertainment occupations. Then-Judge Brett Kavanaugh argued that OSHA’s attempt to regulate the inherent risks of SeaWorld’s animal performances raised serious questions about the scope of the agency’s delegated authority under the OSH Act, as the general duty clause contains no specific delegation or language suggesting Congress intended OSHA to prohibit the core design of performances or sprots through a general phrase like “recognized hazards.”

Proposed rule, public comment. OSHA stated that it preliminarily concurs with the concerns raised by the dissent, recognizing that regulating such activities under Section 5(a)(1) could constitute an unlawful extension of authority absent a clear congressional directive. The proposed rule 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.

OSHA seeks public comment regarding the professional and performance-based occupations that perform inherently risky activities that are integral to the essential function of the occupation, as well as the workplace conditions and activities involved. OSHA also asked whether it should consider limiting the application of the proposed rule to only the industries identified in the regulatory test or whether it should expand the list to reflect that it is exclusive rather than illustrative. Comments must be received on or before September 2, 2025.

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