The tragic death of an orca (commonly called killer whales) trainer at Sea World of Florida in 2010 has stimulated much debate on whether direct contact between wild animals and humans should be permitted in entertainment contexts, and whether the U.S. Occupational Safety and Health Administration should regulate this activity. Federal OSHA responded to the Sea World accident by issuing citations alleging willful violations of its General Duty Clause, which can be applied when no standard addresses a hazard. OSHA has invested significant resources to pursue the case, which is now pending before the District of Columbia Circuit Court of Appeals.

In contrast, Nevada’s Occupational Safety and Health Review Board, the state agency that decides contested workplace safety and health citations, dismissed citations arising from an incident in which a lion on display in a well-known exhibit inside a Las Vegas casino bit one of its trainers. The state agency has suggested that safety regulators have no business becoming involved in issues related to human-animal contact in the workplace without clear direction from Congress. The two cases present fascinating and divergent approaches to whether, and how, the issue of human contact with wild animals should be regulated by safety and health enforcement agencies.

The Sea World Case

According to the “General Duty Clause” citation that federal OSHA issued to Sea World, the employer exposed trainers to “struck by” and drowning hazards when working with killer whales during performances. An administrative law judge of the federal Occupational Safety and Health Review Commission (Review Commission) affirmed the citation. The Review Commission, then consisting of only two Commissioners (the third seat was vacant), declined to grant Sea World’s request for discretionary review of the ALJ decision. Sea World appealed the decision to the District of Columbia Circuit Court of Appeals. The case, Sea World of Florida v. Perez, No. 12-1375, was still pending as of March 2014.

Incidentally, after the case was appealed, a documentary titled “Blackfish,” which is critical of the theme-park operator’s treatment of killer whales, was shown on national television. Sea World has since filed a complaint with the U.S. Department of Labor, asserting that the OSHA Compliance Officer who investigated the accident improperly provided confidential information to one of the movie’s producers.

The Lion Habitat in Las Vegas

For many years, a major hotel and casino on the Strip in Las Vegas, housed a public exhibit, known as the “Lion Habitat,” where two adult lions were displayed in an enclosure, working with their trainers. The owner of the Habitat sought to show that hand and voice controls are the best technique to control lions. As such, the trainers did not control the lions with artificial or physical means such as chairs, whips, chains or drugs. The lions could be seen engaging in activities such as eating raw meat out of their trainers’ hands, lying down with the trainers, sleeping, walking around their enclosure and simply coexisting in apparent calm with their trainers. The owner of the exhibit contended that the lions responded to him and the trainers as they did because he raised every cat from the time they were cubs and used a special method to permit himself to safely deal with the large cats in a controlled environment.

On Sept. 1, 2010, however, one of the lions attacked and bit one of the handlers. The episode ended quickly, the handler recovered from his injuries and he eventually returned to work with the lions.

Nevada OSHA Issued Citations

Nevada operates a state plan for OSHA enforcement. Following its investigation, Nevada’s Occupational Safety and Health Administration issued two citations to the Cat House, the company that operated the lion exhibit:

The first citation was brought under the Nevada equivalent of the federal General Duty Clause, alleging that the employer failed to furnish employment free from recognized hazards by requiring employees to work in direct contact with lions located in an enclosed environment.

According to the second citation, under the Nevada equivalent of an OSHA standard on personal protective equipment, 29 C.F.R. 1910.132(d)(1), the Cat House failed to ensure that a hazard assessment was performed to determine if personal protective equipment—that would aid the trainers in avoiding incidents that could cause death or serious injury—was needed when working directly with the lions.

Both citations were characterized as “serious,” not willful.

The Nevada Review Board Decision

In Nevada, trials of contested NVOSHA citations are conducted before the Nevada Occupational Safety and Health Review Board, which composed of five non-lawyers who are appointed by the Governor. The Board is advised by outside counsel.

The Cat House contested the NVOSHA citations and the owner of the Cat House tried the case without counsel. NVOSHA asserted that the trainers should have been equipped with pepper spray or air horns, but the owner of the Cat House said that such devices would not be effective. He also pointed out that Las Vegas has other attractions involving human contact with animals, which would be threatened if NVOSHA decided to prohibit human contact with lions. For example, large rodeo performances involving human contact with wild animals are presented routinely in Las Vegas, attracting tourists to the city and generating considerable revenue. He also argued that if NVOSHA prevented human contact with lions, other entertainment-related enterprises involving human contact with animals, including movies, would also be threatened both in Las Vegas and elsewhere.

The Review Board examined the required elements of proof in a General Duty case, focusing on whether NVOSHA satisfied its burden of proving that there was a feasible means of protecting the handlers other than the training techniques developed by the Cat House. An expert in “big cat” behavior, presented by NVOSHA, expressed the view that there was no way to protect employees from what NVOSHA described as “a wild unpredictable animal” other than “absolute avoidance of proximity or direct human contact.”

The Review Board unanimously vacated the citations, however, finding that there was no evidence of a feasible means of protecting employees other than the training methods that the Cat House had developed. The Board also noted that the trainers had elected to work in the high risk environment, noting that the injured trainer had voluntarily returned to work.

Finally, the Review Board declined to ban the exhibit, which has been discontinued for reasons reportedly unrelated to this incident. The Review Board’s rationale goes to the heart of the question of whether human contact with wild animals is an activity that OSHA should attempt to regulate:

Congress has not promulgated or codified specific standards to control the wide-based entertainment industry for direct contact work with wild animal acts, shows or performances. The Nevada Occupational Safety and Health Review Board is without authority or jurisdiction to create new law or legislate an industry that is surely well known to the nation’s lawmakers.

The Cat House, Inc., No. 12-1512 (May 20, 2013).

Should OSHA Regulate Human Contact with Wild Animals in Entertainment Venues?

The Nevada Occupational Safety and Health Review Board has pinpointed a fundamental issue raised by the Sea World and Cat House cases. Given that the Cat House decision has not attracted much attention outside Las Vegas, it has not become part of the larger Sea World debate—either in the OSHA litigation or popular press.

While the accidents in both cases are tragic, it can hardly be disputed that the issue of contact between humans and animals was not high on OSHA’s agenda before the sensational, well-publicized Sea World accident. It is not a subject on which federal or Nevada OSHA have expertise—far from it. OSHA turned to outside experts to support its case. NVOSHA did likewise, but its suggestions that lion trainers use pepper spray or air horns seemed, to many critics, to be nearly frivolous.

Considering the competing demands that federal OSHA faces—to issue new standards and better focus its enforcement efforts— is regulation of human-animal contact a wise allocation of safety agencies’ time and energy in their efforts to protect the American workforce? Or, as the Nevada Review Board suggests, is this the kind of workplace issue that, while fascinating, is peripheral to the core of OSHA’s mission, and one from which the agency should forbear absent clear direction from Congress? Perhaps the D.C. Circuit’s decision will shed light on this issue, or we may have to wait for the next animal-related workplace episode before the issue is explored further.

Stephen C. Yohay is an attorney for Ogletree, Deakins, Nash, Smoak & Stewart in Atlanta, a labor and employment law firm that represents management. This column was reprinted with permission. This information should not be relied upon as legal advice.