Quick Hits

• On July 1, 2025, OSHA proposed a rule to exclude inherently risky activities integral to certain professional and performance-based occupations from General Duty Clause enforcement.
• The proposed rule aims to prevent OSHA from citing employers for hazards that are inseparable from the core nature of activities in sectors like live entertainment, professional sports, and high-risk recreation.
• OSHA is seeking public comments on the proposed rule, which is expected to save approximately $514,000 annually by reducing General Duty Clause citations and will not impose new costs or significant economic impacts.

The General Duty Clause requires employers to provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Historically, OSHA has used this provision to address hazards not covered by specific standards. The United States Court of Appeals for the D.C. Circuit upheld a citation in one case where it was applied to this sort of activity. Then a member of the D.C. Circuit, Judge Brett Kavanaugh dissented, arguing that the General Duty Clause should not extend to hazards inherent in professional, athletic, or entertainment activities.

In light of the Kavanaugh dissent and subsequent Supreme Court of the United States decisions emphasizing the “major questions doctrine”—which requires clear congressional authorization for agency action on issues of significant economic and political consequence—OSHA has reconsidered its enforcement approach. The agency now preliminarily concurs that the General Duty Clause should not be interpreted to require the elimination of hazards intrinsic to the essential function of certain occupations.

Key Provisions of the Proposed Rule

• The proposed rule would codify that the General Duty Clause does not authorize OSHA to cite employers for hazards arising from inherently risky activities that are integral to the essential function of a professional or performance-based occupation, where the hazard cannot be eliminated without fundamentally altering the activity.
• Sectors potentially affected include live entertainment and performing arts, animal handling and performance, professional and extreme sports, motorsports and high-risk recreation, tactical and combat simulation training, and hazard-based media and journalism activities.
• Employers would still be required to make reasonable efforts to control such hazards through means that do not alter the nature of the activity (e.g., engineering controls, administrative controls, personal protective equipment).

OSHA is seeking public comment on the scope, definitions, and application of the proposed rule, including examples of inherently risky activities, affected industries, and the adequacy of the proposed regulatory text.

OSHA estimates that the proposed rule would affect a small subset of employees and employers in the arts, entertainment, sports, animal care, recreation, and related sectors. The agency preliminarily concludes that the rule would impose no new costs and may result in annual cost savings of approximately $514,000, primarily by reducing the potential for General Duty Clause citations in these contexts. The rule is not expected to have a significant economic impact on a substantial number of small entities, and it would not impose new information or recordkeeping requirements.

The proposed rule has been reviewed under various executive orders and statutes, including the Regulatory Flexibility Act, Paperwork Reduction Act, and executive orders on federalism, civil justice reform, and unfunded mandates. OSHA has determined that the rule does not have significant federalism implications, would not impose unfunded mandates, and would not require changes to OSHA-approved state plans.

OSHA is soliciting public comments on the proposed rule, including its scope, definitions, and economic analysis. Comments must be received no later than September 2, 2025. The agency is particularly interested in data and examples regarding inherently risky activities, affected industries, and the potential impact of the rule.

The proposed rule, if finalized, would provide greater clarity and limit OSHA’s enforcement authority under the General Duty Clause in these contexts.