The Occupational Safety and Health Review Commission overturned by a 2-1 vote OSHA citations against an Ohio roofing company for the heat-related death of a worker in 2012.
The Feb. 28 decision could serve as a warning that the commission in future cases will reject the Occupational Safety and Health Administration’s broad use of the general duty clause to cite employers when a specific rule doesn’t cover a hazard.
The general duty clause, part of the Occupational Safety and Health Act, requires employers to provide workplaces free from known hazards that can be feasibly abated.
Ways That ‘Congress Never Intended’
MacDougall’s opinion addressed OSHA’s use of the clause.
“The Commission has been asked in this case to construe the general duty clause to cover work situations in ways that Congress never intended and to unreasonably stretch longstanding Commission precedent by applying the provision to broadly-defined risks inherent in the work being performed,” MacDougall wrote.
‘Settled Law Upside Down’
Peg Seminario, director of occupational safety and health at the AFL-CIO, told Bloomberg Law there are ongoing discussions among labor groups on whether to ask a federal appeals court to review the decision.
“If this decision stands, it will certainly constrain OSHA’s ability to protect workers from hazards that pose a serious risk to workers,” Seminario said.
Obama-era OSHA administrator David Michaels, now professor at The George Washington University’s school of public health, said the decision diminishes OSHA.
“Heather MacDougall and James Sullivan are implementing President Trump’s deregulatory agenda,” Michaels told Bloomberg Law. “MacDougall and Sullivan are turning settled law upside down, weakening OSHA’s ability to use the general duty clause to protect workers from deadly exposures.”
OSHA didn’t respond to a Bloomberg Law request to discuss the OSHRC decision.
Death Doesn’t Mean Hazard
OSHA alleged Sturgill failed to adequately protect workers from high temperatures by not providing heat-related training, not making sure workers drank adequate amounts of water, and not checking the background of the 60-year-old worker who died to ensure that he was physically fit enough to do the job.
The commission majority said OSHA didn’t prove there was excessive heat at the work site or that the labor was strenuous. Also, Sturgill encouraged all employees to take advantage of the immediate access to ice, water, rest, and shade, without fear of reprisal, the majority said.
Dissenting Commissioner Cynthia Attwood said the worker’s death and opinions from doctors treating the worker was proof of a heat hazard.
The “diagnosis of heat stroke—a diagnosis supported by all of the credible medical evidence—shows that conditions at the worksite presented a heat hazard,” Attwood said.
Another issue was whether Sturgill should have been aware of the worker’s pre-existing medical conditions, including congestive heart failure. It was the temporary worker’s first day on the job.
The majority supported Sturgill’s contention that medical privacy laws would have prevented Sturgill from asking the worker about his medical history.
“Sturgill had no basis to believe [the worker] may have had medical conditions that could endanger his health if he performed the assigned work; so, it was precluded from inquiring further,” the majority said.
Representing Sturgill was Robert Dunlevey of Taft Stettinius & Hollister LLP in Dayton.
Representing OSHA were Scott Glabman and Charles James of the Department of Labor’s Office of the Solicitor in Washington.
The case is A.H. Sturgill Roofing Inc. v. Sec’y of Labor, OSHRC, No. 13-0224, 2/28/19.