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SeaWorld of Florida, LLC v. Perez

ELR Citation: 44 ELR 20086
Nos. 12-1375, (D.C. Cir., 04/11/2014)

The D.C. Circuit upheld the Occupational Safety and Health Review Commission's finding that SeaWorld violated the OSH Act by exposing trainers to recognized hazards when working in close contact with killer whales during performances. The Commission's finding came after the death of one of SeaWorld's trainers while working in close contact with a killer whale during a performance. The Commission concluded that SeaWorld violated OSH Act §5(a)(1), the Act's general duty clause, which requires employers to "furnish to each of his employees . . . a place of employment . . . free from recognized hazards that are causing or are likely to cause death or serious physical harm." The evidence supports the finding that a recognized hazard existed, even beyond the impact of SeaWorld’s safety protocols. The nature of SeaWorld’s workplace and the unusual nature of the hazard to its employees performing in close physical contact with killer whales do not remove SeaWorld from its obligation under the general duty clause to protect its employees from recognized hazards. The potential harm to SeaWorld’s trainers exists in their workplace and involves conditions over which SeaWorld has control. In addition, evidence supports the finding that it was feasible for SeaWorld to abate the hazard to its employees by using barriers or minimum distance between trainers and killer whales, most notably because SeaWorld has implemented many of these measures on its own. And the court rejected claims that the general duty clause is unconstitutionally vague.