OSHA cites a DC Circuit Court dissent (non-majority opinion) in SeaWorld vs. Perez (2014) as justification to define certain performance or professional activities as “inherently risky” and outside the scope of the general duty clause that states that employers are required to furnish a workplace “free from recognized hazards”. As written, this proposed rule change only applies to a small number of performers in the arts and athletics, which calls into question whether this is a necessary regulatory change rather than an internal agency policy on enforcement.
However, the proposal asks the public for other examples of inherently risky workplace conditions [II.1] and “welcomes comment” on defining key terms in the proposed rule (presumably including “inherently risky”) [II.6], so it is possible this will be applied to other industries in the future. It is worth mentioning that what the general duty clause requires is use of the best available processes and technology to mitigate hazards, not the elimination of entire categories of activity or key industries (rules with these kinds of effects are already prohibited).
Public comments remain open on this proposal until November 1st, 2025: https://bit.ly/4ppq47z
