In a vigorously contested and closely watched case that attracted national attention, the Occupational Safety and Health Review Commission has vacated an Occupational Safety and Health Administration citation issued to a roofing contractor under OSHA's general duty clause for allegedly exposing employees to excessive heat. In a long-awaited 2-to-1 decision issued Feb. 28 in the case Secretary of Labor v. A.H. Sturgill Roofing, Inc., the Occupational Safety and Health Review Commission ruled OSHA failed to prove the conditions at the job site demonstrated the existence of an excessive heat hazard.
Facts of the case
The case originated Aug. 1, 2012, when NRCA member A.H. Sturgill Roofing, a commercial roofing contractor in Dayton, Ohio, was working on a reroofing project at a PNC bank branch in Miamisburg, Ohio, removing the existing EPDM membrane and STYROFOAM™ insulation. A.H. Sturgill Roofing was using an 11-person crew, including three temporary employees from a staffing agency. One of the temporary employees, referred to in the case as "MR," was a 60-year-old man with various pre-existing medical conditions, including hepatitis C and congestive heart failure. Although MR had experience with construction and roofing work, his most recent assignment had been working the night shift in an air-conditioned printing facility.
Roofing work on the PNC project began between 6 and 6:30 a.m. A.H. Sturgill Roofing's foreman was Leonard Brown, who had 18 years of roofing experience at the time. Brown was responsible for training temporary employees assigned to his crew. On MR's first day working for A.H. Sturgill Roofing, Brown took MR, who was wearing all black clothing, to the roof and showed him the safety warning lines. He told MR it was going to get hot and showed him the water coolers on the roof and told him if he needed to take a break to let him know.
Because it was MR's first day on the job and he "was a much older guy," Brown assigned MR to the least strenuous work on the roof and positioned MR at the edge of the roof. Other A.H. Sturgill Roofing employees would bring him a cart full of cut-up pieces of roofing debris that MR discarded over a 39-inch parapet wall into a dump truck below.
When work began that August morning, the temperature was about 72 F with 84 percent relative humidity. At around 11:40 a.m., other employees expressed concern about MR to Brown. Brown saw MR walking clumsily; then, MR collapsed and began shaking. The temperature at that time was about 82 F with 51 percent relative humidity. Emergency medical personnel were called, and they transported MR to the hospital where his core body temperature measured 105.4 F.
MR was diagnosed with heat stroke and died three weeks later. The coroner said MR's death was caused by complications from heat stroke.
After taking statements from A.H. Sturgill Roofing's foreman and crew and collecting weather data, OSHA issued two serious citations to A.H. Sturgill Roofing on Jan. 16, 2013. The first citation alleged a violation of the general duty clause of the Occupational Safety and Health Act for exposing full-time and temporary employees "to the hazard of excessive heat from working on a commercial roof in the direct sun." OSHA alleged A.H. Sturgill Roofing "failed to develop and implement a heat-related illness prevention program which adequately addressed appropriate clothing for working conditions, a formalized work/rest schedule, worksite monitoring, guidelines for removing employees from hazardous conditions, and acclimatization for new or returning employees."
The OSHA citation went on to list "feasible and acceptable methods" to abate the heat hazard, including:
OSHA also cited A.H. Sturgill Roofing for a training violation, alleging A.H. Sturgill Roofing did not instruct each employee how to recognize and avoid unsafe conditions and risk factors related to the development of heat-related illnesses such as heat stroke, heat exhaustion, heat cramps and heat rash. The citation alleged A.H. Sturgill Roofing did not provide temporary employees with detailed information related to heat hazards and permanent employees had not received effective heat-related illness training. OSHA said this was demonstrated by MR wearing dark clothing on a white, reflective work surface in direct sun conditions; a lack of a formalized work and rest regimen; and no acclimatization program with reduced time in elevated heat conditions.
OSHA proposed penalties of $4,410 for each of the two cited items. Rather than pay the proposed $8,820 penalty, A.H. Sturgill Roofing contested the charges.
General duty clause
Because there is no specific OSHA standard governing heat-related hazards, OSHA relies upon the general duty clause of the Occupational Safety and Health Act when citing employers for heat-related hazards. The general duty clause requires employers to furnish to each employee a workplace free from recognized hazards that cause or are likely to cause death or serious physical harm.
To prove a violation of the general duty clause, the secretary of labor must establish the following:
As with all OSHA violations, OSHA also was required to prove the employer "knew, or with the exercise of reasonable diligence could have known, of the violative conditions."
The principal issues in the A.H. Sturgill Roofing case were whether weather conditions at the PNC bank branch where A.H. Sturgill Roofing was working Aug. 1, 2012, presented an excessive heat hazard and whether abatement measures were in place to reduce a heat hazard. The discussion of whether there was an excessive heat hazard to invoke the general duty clause focused on the National Oceanographic and Atmospheric Administration's National Weather Service heat advisory chart.
The National Weather Service chart calculates a heat index and the likelihood of heat disorders with prolonged exposure or strenuous activity based on temperature and relative humidity. It measures "how hot it really feels when relative humidity is factored in with the actual air temperature." The heat index chart identifies four warning levels: caution, extreme caution, danger and extreme danger based on ambient temperature and relative humidity. The heat index includes an annotation stating "exposure to full sunshine can increase heat index values by up to 15 [degrees Fahrenheit]."
For adjudication of the citation issued to A.H. Sturgill Roofing, NOAA temperature and humidity readings taken Aug. 1, 2012, at Dayton-Wright Brothers Airport, located 2 miles from the work site, were used. NOAA temperature readings were 72 F at 6:53 a.m., 76 F at 7:53 a.m., 79 F at 8:53 a.m., 82 F at 9:53 a.m., and 83 F at 10:53 a.m. and 11:53 a.m.; combining temperature and humidity, heat index values were 84 F at 9:53 a.m. and 11:53 a.m. and 85 F at 10:53 a.m. The National Weather Service heat index chart starts at 80 F as the beginning of the caution zone, 86 F for the extreme caution zone and 103 F for the danger zone.
A three-day hearing was held in Dayton, Ohio, from March 25-27, 2014, before Occupational Safety and Health Review Commission Administrative Law Judge Carol A. Baumerich. She issued a 29-page decision and order 11 months later on Feb. 23, 2015, affirming both citations. Baumerich found A.H. Sturgill Roofing's employees were exposed to heat-related illness hazards based on the heat index chart, medical evidence regarding MR's death and testimony of OSHA's occupational health expert. She concurred with OSHA's contention that A.H. Sturgill Roofing failed to provide training and develop and implement a heat-related illness prevention program that adequately addressed appropriate clothing for working conditions, a formalized work-rest schedule, work-site monitoring, guidelines for removing employees from hazardous conditions, and acclimatization for new or returning employees.
In finding a heat hazard existed, Baumerich stated in her decision that at 10:53 a.m. the temperature was 83 F with 55 percent relative humidity, yielding a heat index of 85 F, which was in the caution zone of the National Weather Service heat index chart. She went on to reference a provision in the National Weather Service publication stating the heat index was devised for "shady, lightweight conditions" and "exposure to full sunshine can increase the heat index values up to 15 [degrees Fahrenheit]."
Because there were only occasional scattered clouds and no overhead shade, she said adding 15 degrees for working in direct sunlight moved the heat index zone from caution to danger. She also pointed to a recorded statement made by Brown to the OSHA compliance officer in September 2012 during which Brown said he believed it was about 10 degrees hotter on the roof than on the ground. Baumerich considered the roofing work to be "physically demanding and strenuous."
Ruling that a heat-related illness hazard existed, the judge then considered the steps A.H. Sturgill Roofing took to abate the heat hazard, which consisted primarily of presenting toolbox talks about heat-related issues, providing drinking water on the roof and encouraging employees to take breaks in addition to scheduled breaks. She considered these measures to be inadequate. She ruled A.H. Sturgill Roofing could have feasibly abated and materially reduced the heat-related hazard at the work site but failed to do so.
First, she stated A.H. Sturgill Roofing did not have an acclimatization plan. Second, she said the company could have required its employees to wear suitable clothing and failed to communicate clothing requirements to the temporary staffing agency. Next, she said A.H. Sturgill Roofing could have implemented a formalized work and rest regimen. She went on to state A.H. Sturgill Roofing could have implemented a specific, formalized hydration policy and developed a practice of monitoring employees for signs and symptoms of heat-related illness.
Baumerich also relied on the testimony of Theodore Yee, an OSHA medical officer and board-certified physician in occupational medicine, who was qualified as an expert in the field of occupational medicine and injuries. Yee testified there was a "heat-related exposure risk" at the work site on the date in question that ranged from "heat exhaustion for a younger person up to heat stroke for an older person."
The second element OSHA must prove to establish a violation of the general duty clause is the employer or its industry recognized the hazard. Baumerich found A.H. Sturgill Roofing and the roofing industry recognized heat as a hazard for employees engaged in roofing work. In support of her finding the roofing industry recognized heat as a hazard, she referred to NRCA toolbox talks about heat hazards and the NRCA Pocket Guide to Safety, which includes a section about heat-related illnesses and precautions to avoid heat exhaustion or heat stroke. She went on to quote from the NRCA Pocket Guide to Safety and its warning that too much heat can lead to heat exhaustion or heat stroke and both conditions can be dangerous.
A.H. Sturgill Roofing appealed the judge's decision to the three-member Occupational Safety and Health Review Commission, whose members are appointed by the president. The commission invited amicus legal briefs from numerous organizations, including NRCA, Postal Service, Chamber of Commerce, North America's Building Trade Unions and National Association of Home Builders. Oral arguments before the commission were conducted June 7, 2018, in Washington, D.C. A decision was issued Feb. 28 in a 22-page opinion signed by the commission chairman and one other commissioner. There was a 29-page dissent by the third commissioner.
In reaching their decision to reverse the administrative law judge's decision and vacate the citations, two commission members concluded OSHA failed to carry its burden of proof for two of the four elements to establish a violation of the general duty clause: The existence of a hazard and feasible and effective means of abatement existed to eliminate or materially reduce the hazard that were not implemented by the employer.
To prove a condition presents a hazard under the general duty clause, OSHA is required to show the employer exposed employees to a "significant risk" of harm and the hazard at the work site was "causing or likely to cause death or serious physical harm." A.H. Sturgill Roofing argued the alleged hazard did not exist on Aug. 1, 2012, because excessive heat was not present, claiming the judge miscalculated the heat index, should not have given dispositive weight to Yee and erred in finding the heat conditions at the site were hazardous. Upon weighing the evidence, the commission concluded OSHA did not prove the conditions at the PNC job site on Aug. 1, 2012, established the existence of a hazard likely to cause death or serious physical harm.
In explaining its conclusion that OSHA failed to establish the existence of an excessive heat hazard, the commission said it was not enough for OSHA to show there was some degree of risk to employees; rather, OSHA must prove, at a minimum, employees are exposed to a significant risk of harm. In this case, the commission majority found the National Weather Service heat index chart did not establish the work-site conditions posed a hazard likely to cause death or serious physical harm for several reasons.
At the time of MR's collapse, the heat index value was 84 F based on temperatures of 82 F to 83 F and humidity of 51 to 58 percent, which falls within the caution zone on the National Weather Service heat index chart. At most, the majority wrote, the weight of the evidence showed the National Weather Service heat index was in the caution range for two hours. Two hours of exposure in the caution range did not prove there was a significant risk of harm.
"In the context of the chart's other warning levels—extreme caution, danger and extreme danger—'caution' simply does not connote a significant risk of harm," the commission wrote in its decision.
In addition, the commission majority emphasized the heat index shows the "likelihood of heat disorders with prolonged exposure or strenuous activity" and the administrative hearing record did not establish either of these prerequisites. Because there was no evidence in the record to demonstrate the work was strenuous or workers were exposed to heat index values within any of the warning levels for a "prolonged" period of time, the commission said OSHA had not shown that any of the warnings applied to the conditions at the job site.
Unlike the administrative law judge, the commission was unwilling to increase the heat index value by 15 degrees Fahrenheit based on the employees being exposed to direct sunlight. The majority said the judge miscalculated the heat index by automatically adding 15 degrees to the temperature, pointing out the chart states exposure to full sunshine can increase heat index values by up to 15 degrees Fahrenheit. Because of the absence of any evidence in the record addressing the factors that are to be considered when determining how much of an increase to apply, the commission said there was no basis to make any addition to the heat index based on full sunshine.
Finding the evidence showed the heat index values were, at most, in the caution range for two of the five hours the crew worked on the day in question, the commission concluded: "The ... chart did not establish that the worksite conditions posed a hazard likely to cause death or serious physical harm; on the contrary, it stands as evidence that the alleged heat hazard was not present at the worksite."
The commission majority expressed concern regarding providing employers with notice of violative conditions. With regard to a general duty clause violation, the commissioners wrote: "The Secretary (OSHA) must define the cited hazard in a manner that gives the employer fair notice of its obligations under the Act by specifying conditions or practices over which the employer can reasonably be expected to exercise control." They pointed to the absence of an OSHA standard addressing an excessive heat hazard while noting California's Division of Occupational Safety and Health has had a heat illness prevention regulation in existence since 2006.
Employees' medical conditions
The commission was sympathetic to the quandary faced by employers with regard to asking prospective employees about their medical conditions. In this case, MR's pre-existing medical condition undoubtedly was a factor leading to his death. The commission's decision noted A.H. Sturgill Roofing had neither actual nor constructive knowledge of whatever aspects of MR's physical condition might have made him susceptible to becoming ill that day.
A.H. Sturgill Roofing was precluded from seeking personal information regarding MR's age and pre-existing conditions by the Age Discrimination in Employment Act and the Americans with Disabilities Act. Health-related inquiries are permissible under the ADA if job-related and consistent with business necessity, but guidance issued by the Equal Employment Opportunity Commission makes clear such inquiries are only allowed when an employer "has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition."
A.H. Sturgill Roofing made inquiries within the constraints of the ADA asking whether MR had prior roofing experience and whether he was all right once he started work. A.H. Sturgill Roofing had no basis to believe MR may have had medical conditions that could endanger his health if he performed the assigned work; hence, A.H. Sturgill Roofing was precluded from inquiring further. If the company asked MR about his age or underlying health conditions and taken action on that basis, A.H. Sturgill Roofing could have faced an ADA or Age Discrimination in Employment Act claim.
The ADA states an employer "shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity."
Use of NRCA materials
At the administrative hearing, OSHA introduced NRCA toolbox talks titled Weather—Personal Injury and Heat Stress and the NRCA Pocket Guide to Safety that addresses heat-related illnesses. OSHA sought to use NRCA materials to show the roofing industry recognized the hazard to which A.H. Sturgill Roofing allegedly exposed its employees. OSHA gave great weight to NRCA publications discussing heat illnesses, signs, symptoms and precautions and argued NRCA's publications showed the roofing industry recognized a hazard was present.
Because the commission determined OSHA had failed to establish the existence of a hazard to trigger the general duty clause, the commission said it did not need to reach the issue of whether A.H. Sturgill Roofing or the roofing industry recognized the alleged hazard but nevertheless commented about this topic. The commission recognized NRCA's materials referenced the potential for heat to pose a hazard "but these documents do not specify at what point or under what conditions that occurs; so they do not show that the industry would have recognized that the climatological conditions at A.H. Sturgill Roofing's worksite on August 1, 2012, were hazardous."
The commission went on to say NRCA's materials did not stand for the conclusion that NRCA and its members "recognize essentially any remotely elevated temperature as a recognized heat hazard for employees performing roofing work. Rather, these materials provide information to member companies and to their employees on ways to protect themselves from working in certain hot environments."
In her 29-page dissenting opinion, Commissioner Cynthia Attwood said OSHA had established all the prerequisites for a general duty clause violation, stating she agreed with the judge's finding that the deceased employee's heat stroke was reliable and persuasive evidence a heat hazard existed at the work site. She believed OSHA had established all four elements to establish a general duty clause violation and A.H. Sturgill Roofing knew or with the exercise of reasonable diligence could have known of the hazardous conditions. She chided the majority for not taking into account the transcribed statement from the A.H. Sturgill Roofing foreman that had been given to the OSHA compliance officer that it was about 10 degrees hotter on the roof than on the ground. Based on the foreman's statement, she pointed out the heat index on the roof would have been in the "extreme caution" zone of the heat index chart.
The commissioners whose opinion constituted the majority were Chairman Heather L. MacDougall, who had 20 years of experience representing employers in labor, employment and occupational safety and health law, and Commissioner James J. Sullivan Jr., who also had been an attorney in private practice representing management before being appointed to the commission. Attwood had been a Department of Labor administrative appeals judge and a DOL associate solicitor for occupational safety and health and for mine safety and health. MacDougall and Sullivan were appointed by President Trump. Attwood, a former commission chairman, was appointed by President Obama.
The secretary of labor has 60 days to appeal the decision to the federal circuit court of appeals.
Prepare a plan
With summer weather approaching, you should provide training to temporary and permanent employees regarding heat-related hazards and develop and implement a heat-hazard prevention and safety plan. The heat-hazard training and plan to abate an excessive heat hazard should include loosely worn reflective clothing; a work-rest regimen; providing water and shade; monitoring employees; and an acclimatization protocol. An acclimatization plan allows employees to gradually increase time spent in hot conditions and build up tolerance to working in the heat.
General duty clause
The general duty clause requires employers to "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." OSHA's reliance on the general duty clause to cite an employer in the absence of a pertinent OSHA standard has been the subject of much discussion.
As noted in the A.H. Sturgill Roofing case, some commentators have written the general duty clause originally was intended and included in the 1970 Occupational Safety and Health Act to serve only as a "stopgap measure to protect employees until standards could be adopted." They have said the general expectation was that once a hazard was identified through the general duty clause, OSHA would then engage in rulemaking to ensure the hazard was addressed by a standard.
Upon reviewing the history of cases in which the commission has addressed the general duty clause, the review commission majority wrote in a footnote in the A.H. Sturgill Roofing, Inc. case: "While practical considerations may have lead OSHA, over the years, to rely on the general duty clause in lieu of setting standards, the provision seems to have increasingly become more of a 'gotcha' and 'catch all' for the agency to utilize, which as a practical matter leaves employers confused as to what is required of them."