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