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If the U.S. Occupational Safety and Health Administration wants to promulgate specific standards to cover heat-stress hazards or mitigate the risk of workplace violence in health care and social services, it need look no further than the state of California.
The Occupational Safety and Health Review Commission recently noted the most populous state’s leadership in adopting regulations covering both exposures and that such rule-making processes allow all interested parties to comment while enabling regulators to give clear notice about what is required of employers.
A footnote in Secretary of Labor v. A.H. Sturgill Roofing Inc. references the fact that California’s Division of Occupational Safety and Health has had a heat illness prevention regulation in existence since 2006. Similarly, in Secretary of Labor v. Integra Health Management Inc., the commissioners note the California Division of Occupational Safety and Health promulgated a workplace violence prevention in health care standard that went into effect in April 2017.
“I don’t think the commissioners are passing any judgment on whether such standards are good or bad — it’s just legally that’s the best way to give everybody an opportunity to comment on it,” said John Ho, New York-based chair of Cozen O’Connor’s OSHA practice. “(T)heir point is ‘Look, if you want to do it, you can do it this way, and California in fact has done it that way.’”
In the Integra opinion, Commissioner Cynthia Attwood noted that Commissioner Heather MacDougal’s concurrence asserted that the Occupational Safety and Health Act’s general duty clause should be viewed as a placeholder until rule-making can be initiated to address hazards, but the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, has previously indicated it would be “unreasonable” to expect promulgation of specific safety standards for every hazard and that Ms. MacDougal dismissed the difficulties in modern rule-making.
The Integra decision highlighted why addressing such hazards via rule-making “may not be practical,” Mr. Ho said. “I don’t think that necessarily means (rulemaking) is not the best approach, even though it may take longer than some people would like.”
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.