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Judge Rejects 5 OSHA Heat Danger Cases Against Postal Service

July 20, 2020, 8:29 PM

Federal safety regulators could face new barriers to protecting workers from heat stress if recent court decisions go unchallenged.

In five similar cases, an administrative law judge vacated Occupational Safety and Health Administration citations against the U.S. Postal Service alleging postal officials hadn’t adequately protected letter carriers from high heat dangers.

The rejection of the citations also canceled proposed fines totaling $511,413.

In each case, Judge Sharon Calhoun in Washington said OSHA failed to prove the cited work conditions presented a hazard of excessive heat exposure.

Postal Service spokesman David Partenheimer said the service was reviewing the decisions and didn’t have a comment, yet.

OSHA didn’t respond to requests to discuss the decisions or if it would appeal the cases to full Occupational Safety and Health Review Commission.

The agency doesn’t have a specific rule for protecting workers from hot-weather hazards. Instead, OSHA depends on the general duty clause of the Occupational Safety and Health Act, which sets a requirement for workplaces to be free of known hazards that could lead to a death or serious injury and can be feasibly prevented with abatements recommended by OSHA.

What’s Extreme Danger?

The judge didn’t question the validity of National Weather Service heat index levels used by OSHA, but did find OSHA hadn’t proven a link between the heat index levels and the likelihood of a worker suffering a heat disorder.

Calhoun wrote in one case that, “no evidence was presented to establish the scientific basis” for the risk categories of the National Weather Service heat index. The index categorized heat levels into four groups—caution, extreme caution, danger, and extreme danger.

The judge also found that OSHA hadn’t proven that its recommended methods of protecting workers would have reduced the alleged heat hazards or proven the “economic feasibility” of the abatements related to acclimatization programs, additional paid breaks, and work/recovery cycles.

In much the same way a federal district court decision can be referred to a federal appeals court, OSHA could ask the Occupational Safety and Health Review Commission to review the ALJ’s decisions.

In 2019, the review commission by a 2-1 vote overturned a general duty clause heat stress citation in the case Sec’y of Labor v. A.H. Sturgill Roofing Inc., saying OSHA didn’t prove the roofing contractor’s protective efforts were inadequate or that the heat conditions were hazardous.

The five cases Calhoun ruled on involved OSHA citations issued in 2016 and 2017. After settlement talks between OSHA and the Postal Service didn’t resolve the case, Calhoun heard the cases and issued all five decisions on July 15.

A proposal in the House (H.R. 3668), introduced in July by Rep. Judy Chu (D-Calif.), would require OSHA to enact a heat-stress prevention rule for outdoor and indoor workers within 3½ years of the bill becoming law. As of July 20, the bill had 74 co-sponsors—all Democrats—but hadn’t been voted on.

The Postal Service was represented by attorneys from Ogletree Deakins P.C. and the Postal Service.

Attorneys from the Department of Labor’s Office of the Solicitor represented OSHA.

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com