The NFL and OSHA

The NFL and OSHA

The obligation of an employer to provide its employees with a safe workplace free from recognized hazards is well established.  In the absence of specific standards for an industry, an employer is required under OSHA's general duty clause to provide its employees with a workplace free from recognized hazards which cause or are likely to cause death or serious physical harm.  The elements which are necessary to establish a violation of the general duty clause are: the failure to keep the workplace free of a hazard to which the employees are exposed; the hazard was recognized; the hazard was causing or likely to cause death or serious physical harm; and there was a feasible and useful method to correct the hazard.

It is difficult to imagine a more violent workplace than the NFL.  Among the injuries resulting from play are concussions.  As the result of studies of high school and NFL players, the risks of neurodegenerative disease and the effects of concussions are now well documented.  The NFL introduced a new rule  concerning running backs and the use/position of their heads.  Clearly, the risk/likelihood of concussions is recognized by the league and teams.

So, is it up to the league and the teams to address the concussion issue on their own or could OSHA become involved?  In reviewing the elements of a general duty clause violation, the one element that seemed elusive is the feasible and useful method to correct the hazard, i.e. prevent and treat concussions.  That may now have changed as the result of the new guidelines issued this week by the American Academy of Neurology.  Athletes suspected of having a concussion are to be removed from play and not returned until after an assessment  by a licensed health care professional trained in concussion.  The new mantra is "when in doubt, sit it out."  The new guidelines were developed by reviewing all the available evidence from 1955 through 2012 and are endorsed by a broad range of experts and groups including the NFL Players Association.

The treatment of players who have suffered or are suspected of suffering concussions going forward may no longer be a matter for just the league and teams.  In the proper circumstances, OSHA may become involved if a player complains.  If the NFL can ignore its obligations under the general duty clause, why can't other employers?  No one wants concussions to become the black lung of football.

For additional Labor and Employment law insights from John Holmquist, visit the Michigan Employment Law Connection.

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