The Occupational Safety and Health Review Commission (OSHRC) is reviewing OSHA’s use of the general duty clause to issue citations against employers for heat-related hazards that are likely to cause death or serious bodily harm to employees. OSHRC accepted for review the case of Secretary of Labor, Department of Labor vs. A.H. Sturgill Roofing, Inc. which upheld a general duty citation against an employer for not adequately implementing a heat illness prevention program and a violation of 29 C.F.R. § 1926.21(b)(2) for failing to provide adequate training to its employees for heat-related hazards.  The employer was issued these citations after an employee died following a heat stroke on his first day on the job.

The ALJ held that the company’s employees were exposed to heat-related illness hazards during the roofing project and that all of the working conditions taken together established the existence of a heat-related illness hazard. The ALJ noted that it was not reasonable for a roofing employer to rely solely on a generic heat index to determine if a heat hazard exists at its worksite and to only implement a heat-related safety plan at the “danger” level.

The employer appealed the case to the Review Commission contending that other unknown factors such as pre-existing medical conditions may have led to the employee’s heat illness. The employer also argued that the reported heat index on the day of the incident was only at the “caution” level and that the company provided basic heat safety and planning that would have been required at that level per OSHA guidance.  In addition, the employer argued that there is no set standard of what constitutes a violative condition since there is no specific standard that identifies the temperature level and working conditions that would have triggered a specific response.

On review, OSHRC has taken the unusual step of requesting amici briefs from interested parties on the issue of workplace heat stress violations under the OSHA’s general duty clause. Specifically, OSHRC is looking for more information on the following issues:

• Whether an employer’s knowledge or lack of knowledge of its employees’ underlying health conditions or ages, and any legal restrictions upon the employer in obtaining such information, are relevant to the Secretary’s burden to establish a violation of the general duty clause in this case; and

• Whether the judge miscalculated the heat index on the day in question and, if so, whether the Secretary established the existence of a hazard even if the heat index remained in the lowest “caution” quadrant.

OSHRC originally requested briefs addressing these issues to be submitted by April 30, 2018 but has extended the deadline two weeks to May 14, 2018.

As we await a decision from OSHRC and as the temperature rises during the summer months, employers are advised to carefully evaluate the need and appropriateness of a heat-related illness safety program for employees that may be occupationally exposed to heat stress hazards in the workplace.