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March 25, 2019
OSHA uses General Duty Clause as ‘gotcha,’ ‘catchall,’ safety board says

OSHA uses the General Duty Clause of the Occupational Safety and Health Act (OSH Act) as a “gotcha” or “catchall” for hazards with no established standards, the members of a federal review board recently said.

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In a fatal workplace injury case, Occupational Safety and Health Review Commission (OSHRC) Chairman Heather MacDougall and Commissioner James Sullivan Jr. overruled a commission administrative law judge (ALJ) and vacated OSHA’s citations.

Path to compliance unclear

Employers are left in confusion about their responsibilities when OSHA fails to set specific standards, the commissioners said. The General Duty Clause of the OSH Act reads:
“Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

Congress intended for the agency to set specific workplace safety and health standards once a hazard was identified under the General Duty Clause, MacDougall and Sullivan said in their decision. However, OSHA relies on the General Duty Clause instead of setting standards, they said.

Worker collapse, death

OSHA charged A.H. Sturgill Roofing, Inc., with a violation of the General Duty Clause after an employee collapsed while working on a roofing project and later died. The agency alleged that Sturgill exposed the employee to “excessive heat while working on a commercial roof in the direct sun.”

OSHA also cited Sturgill for a safety training violation for failing to train employees in how to recognize and avoid heat-illness hazards.

The temporary employee, a 60-year old man with preexisting conditions—congestive heart failure and hepatitis C—collapsed and began shaking while on the job. The man was diagnosed at a hospital with heatstroke and died 3 weeks later.

Heat hazard not proven

OSHA and the ALJ both erred when they concluded that an excessive heat hazard existed at the time of the worker’s collapse, the review board found. When work began, the temperature was approximately 72°F with 84 percent relative humidity. When the worker collapsed, the temperature was approximately 82°F with 51 percent relative humidity.

The commissioners also concluded that that day’s tasks were not strenuous:

  • Cutting the existing roof’s membrane and Styrofoam® sheets into small pieces;
  • Putting the pieces into a four-wheel handcart; and
  • Pulling the cart to the edge of the roof to discard the materials in a Dumpster below.

Given the weather conditions and the moderate level of exertion involved, the commissioners disagreed with OSHA’s conclusion that an excessive heat hazard existed.

The review board members also noted that the company’s foreman encouraged workers to take advantage of available ice, water, rest, and shade, without fear of reprisal.

Difficulties of no standards

The commissioners pointed out the difficulty for employers to address hazards like excessive heat when there are no established federal standards. The notice and comment in rulemaking proceedings give employers and other interested parties the opportunity to be heard in agency decision-making. The rulemaking process also gives employers proper notice of their obligations in the workplace.

The commissioners noted that while there is no federal heat-illness standard, California has had once since 2006.

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