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In a 2-1 decision on February 28, 2019, the full Occupational Safety and Health Review Commission (“OSHRC”) vacated the U.S. Secretary of Labor’s Occupational Safety and Health Administration’s (“OSHA”) citation charging a roofing contractor with a “general duty clause” violation for exposing employees “to the hazard of excessive heat from working on a commercial roof in the direct sun” and separately vacated a citation for failure to train employees regarding heat-related risks. Sec’y of Labor v. A.H. Sturgill Roofing, Inc., OSHRC Docket No. 13-0224. OSHA had issued the citations following the physical collapse and subsequent death of a temporary worker on the first day of his work for the roofing company.
Different from a violation based on an OSHA regulation, a general duty clause violation alleges that the employer has violated the federal Occupational Safety and Health Act’s provision stating: “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.” 29 U.S.C. § 654(a)(1).
In Sturgill, OSHRC ruled that two of the requirements of a general duty clause violation—the existence of a hazard and a feasible means of abatement—had not been proven by the Secretary of Labor. Specifically, OSHRC ruled that, “upon weighing the evidence …, the Secretary has not established the existence of a hazard likely to cause death or serious physical harm.” (Op. at 4.) OSHRC’s majority rejected OSHA’s reliance on a National Weather Service heat index chart; the Secretary’s expert’s testimony, by a physician who formerly had served as OSHA’s medical officer, that worksite conditions were hazardous; and testimony of the coroner that the employee’s death was due to complications from heat stroke. With respect to whether the circumstances of an individual employee’s death can be evidence of the existence of a hazard, the majority noted that the employer here did not have actual or constructive knowledge of the employee’s pre-existing conditions that would have made the new temporary employee susceptible to illness. OSHRC found that given “the constraints that the [Americans with Disabilities Act] and the [Age Discrimination in Employment Act] impose” on employers’ hiring inquiries, the employer here could not have asked more to inquire about the new employee’s physical condition. (Op. at 13.) Moreover, OSHRC’s majority found that proof of the “realistic possibility” of an injury cannot be based on whether an employer had knowledge of the “hidden characteristics of an ‘eggshell employee.’” (Op. at 12, fn. 14.) Thus, OSHRC ruled that the Secretary had not proven that an excessive heat hazard was present.
Although not necessary to do so after having found no hazard at the worksite, the OSHRC majority also considered whether OSHA had demonstrated the feasibility and effectiveness of an abatement measure that would have materially reduced the incidence of a hazard (Op. 15-19; 34-48), which is another legal element for a valid general duty clause claim. The dissenting Commissioner Attwood found that the Secretary needed only to prove that the employer had not established an effective heat illness prevention program. The OSHRC majority disagreed and found that here, based on the Secretary’s litigation position, the employer had five alternative methods to secure abatement and because the employer proved that it had adequately implemented three of those measures, the Secretary could not prove that the employer had not abated any heat illness hazard. Thus, based on failure to prove two elements of a general duty clause violation—hazard existence and failure to abate—the OSHA citation was vacated.
Because there was no hazard present, and because the Secretary did not show that “a reasonably prudent employer” would have given training different than what Sturgill had provided, the failure to train violation, which was based on an OSHA regulation, also was vacated. (Op. at 19-22.) In doing so, OSHRC rejected the argument that the employer’s training must have been insufficient because the supervisor was not aware of the employee’s distress until he collapsed. (Op. at 22, fn. 22.)
Perhaps more important than this decision based on the Sturgill evidence are the OSHRC majority’s statements in footnotes and Chairman MacDougall’s separate concurrence regarding the general duty clause and its use by OSHA. Chairman MacDougall and Commissioner Sullivan, both Trump Administration appointees, questioned the use of the general duty clause as an enforcement mechanism. These two Commissioners footnoted that:
While practical considerations may have lead [sic] OSHA over the years, to rely on the general duty clause in lieu of setting standards, the provisions seems to have increasingly become more of a “gotcha” and “catch all” for the agency to utilize, which as a practical matter often leaves employers confused as to what is required of them.
(Op. at 8, fn. 9.) The majority noted with apparent approval that California, unlike federal OSHA, had adopted a heat illness prevention regulation in 2006. In her separate concurrence, Chairman MacDougall stated that the OSHA citation in the Sturgill case “construe[d] 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.” (Op. at 23, MacDougall concurring.) The Chairman then cited to two other of her recent decisions questioning the use of the clause, as well as an OSHRC decision from 1986. Other discussions in the majority’s footnotes and concurrences, including comments on their colleague’s dissent, give an indication of the OSHRC’s future rulings on general duty clause violations, especially once Commissioner Attwood’s term expires in April 2019 and likely a third Trump-appointed Commissioner will join OSHRC.
In sum, the Sturgill case is a warning that over the next several years OSHA likely will find it more difficult to use a general duty clause violation as an enforcement tool given OSHRC’s strong message of disapproval for its use for anything other than as a “stopgap measure to protect employees until standards could be adopted.” (Op. at 8, fn. 9, citations omitted.) Employers who are issued a citation based on a general duty clause violation may find several bases for challenging such a citation based on a close study of OSHRC’s Sturgill decision.