Fifteen years ago, a little-known federal judge named Brett Kavanaugh argued that the country’s top workplace regulator overstepped when it cited an aquatic theme park for a gruesome worker death because viewers enjoy seeing “these amazing feats of competition and daring.”
Now Kavanaugh is a US Supreme Court justice, and the workplace-safety agency wants to codify his argument into law. The move would strip basic workplace safety protections from potentially hundreds of thousands of employees.
In July, the Occupational Safety and Health Administration (OSHA) announced a proposal to exclude “inherently risky professions,” including those in sports and entertainment, from the agency’s General Duty Clause. The agency explicitly references Kavanaugh’s dissent in the proposal, saying it “preliminarily concurs with the dissent’s concerns.”
The proposed rollback came amid dozens of agency proposals to curtail worker protections. These include proposals to rescind requirements for adequate lighting on construction sites, eliminating medical evaluations for employees using respirators, and reducing coordinated enforcement for migrant farmworkers, among others.
President Donald Trump, meanwhile, has issued a “Regulatory Freeze Pending Review,” effectively pausing several other pending regulations — including prior rulemaking that would have strengthened workers’ heat injury protections and illness prevention.
As the Lever has documented, helming OSHA is David Keeling, a former safety executive at UPS and Amazon. Under his leadership, the two companies were fined a collective $2 million for more than three hundred workplace safety violations.
The General Duty Clause serves as a catch-all provision under the 1970 OSH Act, which first established a federal workplace safety program.
It requires employers to provide a safe and healthy workplace for their employees when no specific standard is in place. To enforce a violation of the clause, the agency must show that workers face a serious, recognized hazard, and that employers have a feasible way to eliminate or reduce it.
Past enforcement actions under the clause include a citation against a Broadway studio after employees were injured performing aerial routines and, more recently, a citation against Rust Movie Productions after actor Alec Baldwin accidentally shot and killed a crew member on a movie set with a loaded prop gun.
But now, the agency wouldn’t issue such citations, since it deems such professions “inherently risky.” According to Jordan Barab, former deputy assistant secretary for the agency, the affected sections would include performing arts, motorsports, combat simulation training, and “hazard-based media and journalism activities,” among others.
Industry groups representing other high-risk sectors like construction and steel manufacturing are also pushing to be covered by the rollback.
“They’re kneecapping themselves on what they can do under the general duty clause,” Katie Tracy, senior regulatory policy advocate at Public Citizen, told the Lever.
This carve-out would mean that when a worker in these industries experiences an injury or accident not already covered by a specific regulatory standard, they’d be left without any agency protections.
By the agency’s own estimates, the new interpretation could immediately affect more than 115,000 athletes, musicians, and other entertainment workers.
This interpretation of the General Duty Clause can be traced back to a 2014 case involving the death of Dawn Brancheau, a Sea World whale trainer who was drowned and dismembered in 2010 by a killer whale.
In response to Brancheau’s death, the Occupational Safety and Health Administration issued a $70,000 citation against Sea World and ordered the company to physically separate trainers and whales. They argued that because of the whale’s history of dangerous interactions with trainers, a General Duty citation was justified.
Sea World contested the citation, and the dispute eventually reached an appeals court, which ruled in favor of the agency in a two-to-one ruling, rejecting Sea World’s argument that workers in dangerous occupations should be exempt from the General Duty Clause.
The lone dissenting opinion came from then appeals judge Brett Kavanaugh, who argued that the agency was overreaching and that the decision to enforce the rule was “paternalistic.”
“To be fearless, courageous, tough — to perform a sport or activity at the highest levels of human capacity, even in the face of known physical risk — is among the greatest forms of personal achievement for many who take part in these activities,” Kavanaugh wrote in his dissent. “American spectators enjoy watching these amazing feats of competition and daring, and they pay a lot to do so.”
Opponents of OSHA’s proposed General Duty Clause rollback have criticized the agency’s reference to Kavanaugh’s dissent.
“OSHA suggests that then-Judge Kavanaugh’s dissent stands for the proposition 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,’” according to a comment on the regulatory change from the United Automobile, Aerospace and Agricultural Implement Workers of America. “But this argument is illogical and is not based in the text of the Act.”
The appeals court’s majority ruling against Sea World echoed a similar sentiment. “Many traditional industries can be extremely dangerous to their employees: construction, metalpouring, logging,” the judges wrote in 2013. “Yet these industries have been regulated pursuant to the Occupational Safety and Health Act, notwithstanding that employers could claim . . . that the employees were taking part in ‘the ‘normal activities’ intrinsic to the industry.’”
Now the agency wants to codify Kavanaugh’s dissenting position into law. And some labor experts say the move can be traced back to the so-called Department of Government Efficiency (DOGE), Trump and Elon Musk’s initiative to target federal agencies and spending.
The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), the largest federation of unions in the United States, alleged in a press release that the proposal, along with the proposal to remove requirements for construction illumination, which could increase trips and falls on the jobsite, came from the department.
“From what we have heard, [the decision to limit the General Duty Clause] was a DOGE pick, and the construction illumination deregulatory action was a DOGE pick,” a policy expert at the labor federation who requested anonymity to protect their sources’ identities told the Lever. “These were both ideological proposals versus DOGE telling the staff, ‘Go find things to deregulate.’”
Though the proposal indicates that it’s written to apply specifically to workers like athletes, actors, and dancers, it also notes that the outlined industries are a “non-exhaustive list of sectors where this limitation may apply.”
The proposal also solicits recommendations from other industries where the new interpretation could apply. Numerous industry groups and trade associations have commented with their own requests for other rules they’d like removed or how they’d like to see the General Duty Clause further limited.
The American Road and Transportation Builders Association, the Associated General Contractors of America, and the National Asphalt Pavement Association, for example, issued a joint statement to the agency arguing that workers exposed to moving traffic during highway construction should not be protected under the General Duty Clause.
“In highway construction, exposure to moving traffic is an inherent hazard that cannot be fully eliminated without closing down large portions of critical roadways,” the group commented. Though transportation-related incidents are a leading cause of fatal injuries in construction, the group argues that “the overwhelming majority of these incidents involve impaired, distracted, or reckless drivers — behaviors entirely outside the employer’s control.”
Some groups argued that the new interpretation still doesn’t relax the standards enough. The Steel Manufacturers Association made a comment urging the agency to “more comprehensively prevent the misuse and misapplication of the General Duty Clause that we observed under previous administrations.”
Multiple labor organizations representing construction workers have decried the proposal.
“For the workers in the construction and manufacturing industries that we represent, the General Duty Clause is essential,” noted a comment by the International Union of Painters and Allied Trades. “Weakening the requirement for workers in inherently dangerous industries is, we believe, contrary to the initial intent as well as subsequent interpretations of the OSH Act.”
Labor groups have also sounded the alarm about the new rule’s potential to be expanded to other industries.
“Although the preamble to [the proposal] suggests that the sports and entertainment industries are the intended targets of this rulemaking effort, the text of the proposed rule sets forth a non-exhaustive list of industries that may be subject to the proposed carveout,” noted a comment from North America’s Building Trades Union, a labor organization representing construction workers.
And at the same time the agency seeks to limit the scope of the General Duty Clause, it’s using the clause as a justification for weakening other workplace safety laws.
That includes its efforts to roll back construction illumination requirements, arguing that the General Duty Clause renders the rule unnecessary.
“A specific standard for illumination is not necessary because a lack of illumination is a prototypical “recognized hazard . . . likely to cause serious death or serious physical injury” under the General Duty Clause,” the agency argued.
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