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Two members of the Occupational Safety and Health Review Commission have expressed concern about OSHA’s use of the general duty clause to cite employers when no specific standards exist for certain workplace hazards, even though the commission upheld a citation in one recent case.
Employer representatives generally welcomed the review commission’s decision on Thursday to reject the U.S. Occupational Safety and Health Administration’s attempted use of the clause to cite an employer for heat-related hazards in Secretary of Labor v. A.H. Sturgill Roofing Inc., but some experts noted the decision turned on a very specific set of facts and the commission did not state that the clause could never be used to cite employers for such hazards.
Meanwhile, the commission affirmed a citation on Monday against a social services employer whose employee was fatally assaulted in a test of OSHA’s use of the clause to cite employers in the health care and social services industry for failing to protect their employees from workplace violence, according to the decision in Secretary of Labor v. Integra Health Management Inc.
In the Sturgill case, OSHA inspected the workplace in August 2012 following the death of a 61-year-old temporary employee with various pre-existing medical conditions on his first day of work, according to commission documents. When he began work at 6:30 a.m., the temperature was about 72 degrees with 84% humidity, but around 11:40 a.m., when the temperature point reached about 82 degrees with 51% humidity, he collapsed and began shaking. Emergency medical personnel took him to the hospital and he died three weeks later from complications of heat stroke, according to the coroner.
Sturgill contended that the secretary failed to prove any of the required elements of a general duty clause violation, and two of the three commissioners — Heather MacDougall and James Sullivan — agreed that the secretary failed to prove both the existence of a hazard and a feasible means of abatement.
“I think it bodes very well for employers because the general duty clause has been applied to these heat stress cases … and the application just isn’t a good fit,” said Robert Dunlevey, Dayton, Ohio-based senior counsel at Taft Stettinius & Hollister LLP and the attorney for Sturgill.
But Gabrielle Sigel, Chicago-based co-chair of Jenner & Block LLP’s environmental and workplace health and safety law practice, said that a takeaway from the Sturgill case — confirmed by the Integra ruling — is that it was not a decision in which the review commission said there can be no general duty clause citations.
“I would suggest that it doesn’t even stand for the proposition that heat illness cannot be a basis for a general duty clause,” she said. “However, the majority in the Sturgill case … are clearly concerned about OSHA’s use of the general duty clause as an enforcement mechanism.”
In the Integra case, the commission was asked for the first time to decide whether workplace violence is a recognized hazard that the employer must remove from its workplace, according to the decision.
A 25-year-old recent college graduate with no prior experience in social work or working with the mentally ill was hired by the Owings Mills, Maryland-based company and assigned to a client with schizophrenia. The client had a prior criminal record and attacked the employee with a knife, stabbing her nine times and killing her.
“If you look at the Integra case, they did not reject the application in a workplace violence setting, which I think is important,” said John Ho, New York-based chair of Cozen O’Connor’s OSHA practice.
Despite acknowledging that workplace violence in health care and social services is a serious employee safety concern, Ms. MacDougall expressed concern in the Integra decision about the commission establishing a precedent that the alleged hazard is covered by the general duty clause, invoking the adage that “bad facts make bad law.” She also cited “troubling issues” in the way the commission was asked to construe the use of the clause in the Sturgill case.
“Chairman MacDougal is pretty consistent in her view that the way this is supposed to work is that the general duty clause identifies (a hazard) and then you go to rule-making — that way all interested parties can comment … and you pass a specific standard,” Mr. Ho said.
In the Integra case, Mr. Sullivan stated that “I believe that Congress did not contemplate that the Secretary would apply the general duty clause to workplace violence hazards,” but still concurred with the decision because the specific facts gave rise to a general duty clause violation.
A footnote in the Sturgill decision noted that while practical considerations may have led OSHA over the years to rely on the general duty clause in lieu of setting standards, the provision seems to have increasingly become more of a “gotcha” and “catch all” for the agency to utilize, which as a practical matter often leaves employers confused as to what is required of them.
“There’s no question that excessive heat is potentially a safety hazard, but as the majority decision indicated in the Sturgill case, the conditions at that particular jobsite were not such they would put a reasonable employer on notice that ‘Wow, we have a serious heat problem here,’” said Stephen Phillips, Atlanta-based senior partner with Hendrick Phillips Salzman & Siegel P.C., who filed an amicus brief on behalf of the National Roofing Contractors Association. “If the conditions that day constituted a serious heat hazard, we wouldn’t be able to do any work outside in the months of probably April through August in half the country.”
Experts warned that the workplace safety industry may not have seen the last of either the Sturgill or the Integra litigation. OSHA declined to comment on both decisions, and Integra and its attorney did not return requests for comment.
“I would not be surprised if OSHA attempts to appeal (Sturgill) to a circuit court or will look for another case to try to do this again,” Mr. Phillips said. “I don’t think this is the end of it in terms of the agency seeking to use the general duty clause to cover heat or other hazards where the agency does not have a specific standard.”
The 10th U.S. Circuit Court of Appeals affirmed a general duty clause citation and $7,000 penalty against a commercial and industrial painting contractor in relation to a fatal accident.