OSHA's general duty clause flagged

The Occupational Safety and Health Review Commission has sent clear signals that federal workplace safety regulators should adopt standards to address heat stress risks and workplace violence in the health care and social services sector rather than relying on the general duty clause to cite employers, but it did not broadly strike down the agency’s ability to use the clause in two recent decisions, experts say.

Experts warned the rulings may not be the last word, as both cases could be ripe for appeal and the makeup of the review commission is in limbo with one commissioner announcing her resignation and another commissioner’s term set to expire in April.

In Secretary of Labor v. A.H. Sturgill Roofing Inc., the U.S. Occupational Safety and Health Administration issued a general duty clause citation 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. Sturgill contended that the Secretary of Labor failed to prove any of the required elements of an Occupational Safety and Health Act general duty clause violation.

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 and vacated the citation. Commissioner Cynthia Attwood dissented, finding that the secretary established all the required elements of the clause, according to the decision.

“I really looked at it as the commission, in its present makeup, saying to the agency, ‘You’d better be sure that this is a situation where a reasonable employer is clearly on notice that there is a serious risk of physical harm or death based on a hazard,’ because the OSH Act is not a strict liability statute,” 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.

Meanwhile, the commission affirmed a citation 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 employees from workplace violence, according to the decision in Secretary of Labor v. Integra Health Management Inc.

A consistent theme in both the Sturgill and Integra cases was the discussion among the commissioners about OSHA’s use of the clause to cite employers when there is no specific standard. 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 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.

“I think she’s tipping people off on her view that the general duty clause should be used sparingly,” 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 the review commission did not rule in either case that 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” citation, 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.” 

A footnote in the Sturgill decision noted that while practical considerations may have led OSHA to rely on the clause in lieu of setting standards, the provision seems to have increasingly become more of a “gotcha” and “catch all,” which often leaves employers confused as to what is required of them.

In the Integra case, Mr. Sullivan stated, “I believe that Congress did not contemplate that the Secretary would apply the general duty clause to workplace violence hazards.” 

“These two decisions have heavily indicated, at least for the current makeup of the review commission, where they would like to see the Secretary of Labor and OSHA move the ball on these issues, because the commissioners certainly have a lot of problems with” OSHA’s use of the clause, said Raymond Perez, of counsel and a labor and employment attorney in the Atlanta office of Jackson Lewis P.C.

The workplace safety industry may not have seen the last of either the Sturgill or the Integra litigation, experts say. OSHA declined to comment on both decisions, and Integra and its attorney did not return requests for comment.

“I think that’s a very realistic prediction,” said John Ho, New York-based chair of Cozen O’Connor’s OSHA practice. “I think that these issues are ripe for a circuit court.” 

Meanwhile, the makeup of the review commission could look very different, as Ms. MacDougall announced she would be stepping down by the end of March, and Ms. Attwood’s term expires on April 27, creating concerns that another potential staffing shortage at the review commission could complicate or stall decisions in difficult cases such as Sturgill or Integra — both of which trace back to 2012 fatalities.

“If it’s going to be down to one member or even just two, they are not going to be able to hear cases or make decisions that are going to be binding,” Mr. Perez said.