The player lockout is not the only issue that the NFL must deal with this week.  Last week, 75 former NFL players sued  the organization claiming that the NFL intentionally concealed and  failed to warn the players about potential brain injuries resulting from game-related concussions.  The players are suing for fraud, negligence, and failure to warn. The players claim that the NFL knew about the link between game-playing and brain injuries since 1920′s but concealed this knowledge until June 2010.

This story leads me to ask, if a football field poses such a dangerous workplace, as suggested by this lawsuit, then why hasn’t OSHA issued a citation?  In 2006, OSHA
answered that question by stating that injuries to professional players are not disproportionately high.

While an OSHA violation is not essential to proving the players’ proposition, it would help establish that the league breached its duty to warn about the dangerous work environment.

Of course, reader, you are asking does OSHA protect professional football players? Yes, assuming that the agency views the player as an employee as opposed to an independent contractor.

The Occupational Safety and Health Administration was created by congress in 1979 to help employers reduce workplace injuries, illness, and death.  The
OSH Act covers private employers and their employees either directly through federal OSHA or through an OSHA-approved state program. State programs must meet or exceed federal OSHA standards for workplace safety and health.  OSHA does not regulate the self-employed.

Employers who do not comply with the OSH Act are subject to civil and criminal penalties until they cure the dangerous condition.  OSHA may impose civil penalties of up to $70,000.00. An employer who is convicted in a criminal proceedings of a willful violation may face up to six months imprisonment and fines up to $250,000.00 (or $500,000.00 if the employer is a corporation). (See 29 U.S.C. § 666.)  An OSHA citation does not create a private right to sue or bring a cause of action against the employer. (See Elliott v. S.D. Warren Co., 134 F.3d 1, 4 (1st Cir. 1998)).

Even though OSHA does not authorize an employee to sue an employer for violations, an employee can sue an employer for failure to warn about occupational hazards. In Pennsylvania, the Supreme Court in 1998, ruled that an employer has a duty to communicate the dangers of the job duties to its employees, if such dangers had been known by employer and generally within the industry. (See Phillips v. A-Best Products, Co., 542 Pa. 124 (1998)). And generally Pennsylvania does not recognize the defense of a sophisticated user.  Under this defense, an employer could claim that the employee is a sophisticated user and thus is aware of the dangers involved in the assignment.  However, Pennsylvania courts have prohibited the application of that defense.

What can you, as a business owner, learn from this case? If you have employees, then you have a duty to warn your employees about potentially dangerous jobs or work conditions.  Under OSHA, you also have a duty to mitigate such dangers.  The good news is that OSHA helps employers identify these risks and develop methods to mitigate these risks.  For help, visit OSHA’s website for  more information. OSHA offers free on-site consultations to small businesses.

Do you have a question about your legal obligations as an employer? Then ask a lawyer.  Call McKee Law Office for a free consultation at 215-242-5260.

Sharmil McKee

Business Attorney

Philadelphia, Pa

blog@mckeeoffice.com