By James L. Curtis, Meagan Newman, and Kerry Mohan

“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?” This is the question posed by Judge Kavanaugh in his dissent to the Court’s opinion in SeaWorld of Florida, LLC (“SeaWorld”) v. Thomas Perez, (No. 12-1375), issued this morning.

The U.S. Court of Appeals for the District of Columbia Circuit panel held that SeaWorld violated its duty to protect employees from “recognized hazards” when working with killer whales. “Statements by SeaWorld managers do not indicate that SeaWorld’s safety protocols and training made the killer whales safe; rather, they demonstrate SeaWorld’s recognition that the killer whales interacting with trainers are dangerous,” Judge Judith Rogers wrote on behalf of the court.

This ruling resulted from a citation issued by the U.S. Occupational Safety and Health Administration (OSHA) after trainer Dawn Brancheau died in February 2010. Ms. Brancheau drowned after being pulled underwater by a bull orca known as Tilikum at the SeaWorld site in Orlando, Florida. The original citations alleged three violations of the Occupational Safety and Health Act. Among them was a “willful” citation of the Act’s general duty clause for exposing employees to struck-by and drowning hazards when interacting with killer whales. After a hearing before an Administrative Law Judge, the “willful” citation was reduced to “serious” and affirmed.  See Secretary of Labor v. SeaWorld of Florida LLC, OSHRC, No. 10-1705. The ALJ found that close contact with killer whales, including Tilikum, posed a recognized hazard to SeaWorld’s employees.

The SeaWorld OSHA citation was noteworthy for a number of reasons. The incident and litigation that followed have resulted in significant media attention, including a popular documentary on CNN and much public debate about animal welfare and the cultural, moral and ethical issues surrounding the use of animals for entertainment. From a workplace safety/OSHA law perspective the case is no less riveting.

Because OSHA does not have a regulatory standard concerning work with killer whales, or even work with animals, the agency had to rely on the portion of the OSH Act known as the general duty clause.  The general duty clause, § 5(a)(1) of the Act, provides: “Each employer [ ] shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1). In order to prove a violation of the general duty clause, the Secretary of Labor must establish that: (1) an activity or condition in the employer’s workplace presented a hazard to an employee; (2) either the employer or the industry recognized the condition or activity as a hazard; (3) the hazard was likely to or actually caused death or serious physical harm; and (4) a feasible means to eliminate or materially reduce the hazard existed.” Fabi Constr. Co. v. Sec’y of Labor, 508 F.3d 1077, 1081 (D.C. Cir.2007) (citation omitted).

In the SeaWorld case, it was the second and fourth prongs that were at issue. SeaWorld argued that working with killer whales did not pose a recognized hazard as intended by the Act and that a feasible means to materially reduce the hazard did not exist. SeaWorld argued that close contact with these whales was not a recognized hazard because, essentially, all whales behave differently and its training and safety program adequately controlled the risk. SeaWorld also suggested that because trainers “formally accepted and controlled their own exposure to . . . risks,” the hazard of close contact with killer whales cannot be recognized. These arguments were rejected by the majority opinion in today’s ruling. The Court held that Congress intended for the OSH Act to put the duty to ensure a safe workplace on the employer—not the employee. Moreover, the Court found abundant evidence to support the ALJ’s finding that close contact with killer whales posed a recognized hazard. With respect to the feasibility prong, the Court noted that SeaWorld’s own measures taken following Ms. Brancheau’s death proved the feasibility of abatement. Further, in response to the dissenting opinion’s references to the potential of end of football and NASCAR, the court noted that SeaWorld did not argue in this case that close contact with the whales was intrinsic to the work and that it would suffer substantial economic losses if that contact were prohibited. Football and NASCAR could make those arguments, the majority alludes.

Perhaps most interesting issue posed by this case is the notion of predictability as it is applied to find a recognized hazard of workplace violence. In the underlying administrative proceeding, SeaWorld argued that animal behavior, like human behavior, cannot always be controlled. SeaWorld contended that the Secretary should be held to a higher standard of proof for a recognized hazard under these circumstances. They cited, and the ALJ considered, an unpublished ALJ decision in another case concerning workplace violence, Megawest Financial Inc., 17 BNA OSHC 1337 (No. 93-2879, 1995).

In Megawest, the ALJ stated: “In the past, employers have been required to reduce hazards they could anticipate and reduce or eliminate. The problem with predicting workplace violence is the unpredictability of human behavior. In this case, the Secretary is asking Megawest to predict the criminal behavior of non-employees. Additionally, the anger and frustration that drives a resident to become violent may be fueled by a variety of factors.”

The ALJ in the SeaWorld case disagreed: “Unlike the apartment tenants in Megawest, the killer whales are in the continual custody of the employer. By their nature as aquatic animals the killer whales are confined to the pools, an environment over which SeaWorld can control access. Unlike the employees in Megawest who were subject to irate tenants showing up unannounced and with undetermined intentions, SeaWorld knew in advance when its employees were scheduled to interact with the killer whales. The trainers always initiated contact with the killer whales, and could anticipate that each time there would be a risk of injury or death.”

So what are we to make of circumstances in which humans pose a potential (an arguably quantifiable potential) of violence to employees AND whether those potentially violent humans are under the control of a particular employer? Both the ALJ’s and D.C. Circuit Court’s opinions emphasize the prior instances of threats or violent acts committed by Tilikum and other whales. These prior acts are then used to reach the ultimate conclusion that all whales—or at least killer whales—pose a recognized hazard to employees. But, how are employers to apply such an analysis to humans? What are the criteria that a healthcare employer should use to determine that all patients receiving mental health services or other treatment pose a recognized hazard? What criteria should be used by prison officials? How do employers decide when all close contact with any person meeting some set of criteria must be prevented?

There is no doubt that the intention of the OSH Act is to prevent employers from knowingly placing employees in danger. The questions that remain following this decision are (1) whether the Act prohibits any form of employment, even voluntary, where there is a known and intrinsic risk of injury and (2) whether the logic applied to OSHA’s whale behavioral analysis in support of its violation can be applied to human behavior. The general duty clause is already being used in instances of threats posed by humans. OSHA has issued a number of citations for workplace violence in the healthcare industry recently and this issue of predictability is paramount in those cases.

For now, it is clear that despite the absence of a federal regulatory requirement to do so, all employers should consider the risk of violence posed in their workplaces—whether that risk is posed by animals or people. All employers should have policies that address those risks and take steps to ensure that the risk, to the extent feasible, is minimized. For employers whose operations include the use, handling or training of animals, the SeaWorld decision is not just a cautionary tale. Close contact with the animals may be deemed a recognized hazard and, therefore, protocols and policies regarding contact with the animals should be carefully evaluated in light of the Court’s ruling.