A 2-1 decision by the OSH Review Commission recently reversed an Administrative Law Judge decision that had affirmed an OSHA citation alleging a violation of the General Duty Clause (“GDC”), based on employee exposure to working on a commercial roof in direct sunlight. The citation followed the death, due to heat stroke, of a 60-year-old temporary worker, supplied by a staffing agency, who had multiple pre-existing conditions. The case, while obviously a sad one, is instructive on several levels. One is that the OSH Review Commission (in reversing the ALJ decision) rightly cautioned against reasoning backward, from an unfortunate outcome, to conclude that there must have existed a hazard “likely” to cause death or serious physical injury.
A second lesson from Secretary v. A. H. Sturgill Roofing, Inc., is that the ALJs and the OSH Review Commission do not “rubber stamp” citations. In Sturgill Roofing, in addition to the initial ALJ decision, each of the three commissioners took the trouble to write a separate opinion on the appeal, and while there were conflicting viewpoints, all of the opinions (55 single-spaced pages in all) reflect solid legal scholarship, and an obvious determination to apply the OSH Act correctly. The facts in your particular case may be hopeless, or the economics of litigating your citation may be unfavorable. You should not, however, base a decision to forego contesting a doubtful citation on a perception that, as an employer, you will not receive a fair hearing.
The Sturgill Roofing case is also cautionary, in that while common sense might call into question whether 60-year-olds with multiple health conditions should be working on roofs in direct sunlight, care must be taken to observe the mandates of the Age Discrimination in Employment Act (ADEA) and the Americans with Disability Act (ADA).
The employer in Sturgill Roofing had an 11-member crew removing a rubber membrane and Styrofoam roof of a bank building on an August day in Ohio. Three crew members performing this work, including “M.R.,” had been supplied by a temporary staffing agency. It was M.R.’s first day on the job, and he was 60 years of age, with health issues, including congestive heart failure and Hepatitis C.
The temperature when the workday began at 6:30 A.M. was 72 degrees Fahrenheit, with 84% relative humidity. M.R., who had been questioned within the limitations imposed by the ADEA and ADA (essentially, “can you do the job?”) was given the task of standing near the edge of the roof, and pushing off the edge, into a dumpster below, cut-up pieces of roofing material brought to him in carts by other workers. It was undisputed that the workers were all encouraged to utilize access to ice, water, rest, and shade.
At about 11:40 A.M., by which time the temperature and humidity had risen to 82 F. and 51%, M.R. was seen to “walk clumsy,” and collapsed. He was taken to hospital, where his core temperature was found to be 105.4 F. He died of complications from heat stroke three weeks later.
Following an inspection, OSHA cited the employer for a violation of the GDC (and a related, failure-to-train item). Both citation items were contested, and affirmed following a trial before an Administrative Law Judge.
The elements of a violation of the GDC are (1) a hazardous condition or activity in the workplace; (2) that the hazard be one recognized by the employer, or in the industry; (3) that the hazard was causing or likely to cause death, or serious physical harm; and (4) the existence of a feasible and effective means to eliminate, or materially reduce, the hazard. As with any violation, the Secretary must also prove that the employer knew, or with the exercise of reasonable diligence could have known, of the violative condition.
On review, a 2-1 majority of the Commission voted to vacate both citation items, finding (with respect to the GDC violation) that the Secretary had failed to prove at least two elements (the existence of a hazard, and a feasible means of abatement).
The majority found fault with the ALJ’s reliance on a National Weather Service Heat Advisory chart. The chart indicates levels of caution when temperatures are accompanied by “prolonged exposure” or “strenuous activity” (but fails to define these terms, which were not otherwise established at the trial). In addition, conditions on the day of M.R.’s collapse were generally only in the “caution” range for perhaps two hours, but (without sufficient grounds in the record) the government’s expert opined that 7.5 degrees should be added to the heat index, to reflect likely conditions on the roof. The ALJ, going even further, added 15 degrees (because the work was being done in direct sunlight). The Commission found the expert’s testimony deserving of little weight, and that the ALJ had set forth no basis to add 15 degrees for full-sun conditions. The Commission concluded that, since absolute safety surpasses the OSH Act’s requirements, conditions in the “caution” range, for part of the morning, did not rise to the level of a hazard, within the meaning of the GDC.
The ALJ also improperly “reasoned backward,” the Commission majority found, in essentially concluding that, since a 60-year old man with multiple health issues was hospitalized and ultimately died from heat stroke, the hazard was established.
In her separate, concurring opinion, Commission Chairman MacDougall proposed that “excessive heat” is a risk inherent in the performance of outdoor work, and one that only presents a possibility for harm. Whereas, to qualify as a “significant risk” in violation of the GDC, the hazard must be more likely than not to cause death or serious harm.
Chairman MacDougall disapproved, also, of the vague, “sliding scale” of how much heat on the roof might qualify as “excessive,” the Secretary’s expert witness at trial having spoken of a heat-related risk that could “lead to heat exhaustion for a younger person up to heat stroke for an older person,” and the ALJ having tacked 15 degrees onto the ambient temperature. The alleged hazard, the chairman observed, was a poorly-defined “moving target,” far too attenuated and broad to establish a breach of the GDC.
The majority stressed also that the employer had lacked both actual and constructive knowledge of those aspects of M.R.’s physical condition that might have made him especially vulnerable to heat stroke. Sturgill Roofing did not know M.R.’s age or his health status and was, indeed, forbidden by the ADEA and the ADA from seeking that information (although limited health-related inquiries are allowed, if job-related, and consistent with business necessity). At least one federal Court of Appeals case has held that compliance with the General Duty Clause “cannot be used as justification for conducting medical inquiries that screen out an individual because of a disability,” the standard for proving the “business necessity” defense under the ADA being “quite high.”
Finally, Chairman MacDougall observed in her concurring opinion, an employer’s obligation under the GDC extends not “to any employee,” but to his own employees only, and analyzing personal risk factors (such as a single employee’s age, or underlying health conditions) magnifies the concept of a recognized hazard for all employees to mandate recognition and provision for employee-specific hazards.
M.R.’s case stirs pity, as his ailments seem to have been results of long-term alcohol and drug abuse and he could only have been on that roof out of dire economic necessity. Even so, however, the employer was given a fair hearing and, ultimately, a decision that fairly interpreted the governing law. If your company is cited under the OSH Act following a fatality, you should not assume that the citation will necessarily be upheld, merely because an employee died. It is exposing employees to hazards covered by the OSH Act, not the severity of any injury as may result, that governs. Even where there has been a death or serious injury, with competent legal advice you may be able to successfully contest all or some of the citation items, or negotiate for fewer/less serious citation items, and a reduction in the monetary penalties assessed.