Review may pare back OSHA’s powers

Employers and their representatives often accused the U.S. Occupational Safety and Health Administration of being overly aggressive in taking enforcement actions against employers under the Obama administration — but an independent agency that reviews federal workplace safety citations and proposed fines may be ready to restrain OSHA in at least one key area.

Several legal experts reading the tea leaves say the Occupational Safety and Health Review Commission could issue an employer-friendly ruling and curb OSHA’s perceived overuse of the Occupational Safety and Health Act’s general duty clause.

But one former commissioner is expecting a more limited ruling in a case related to OSHA’s reliance on the clause to cite an employer for a heat stress-related fatality.

The OSH Act’s 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.” To use the clause, OSHA must prove the existence of a hazard, that the hazard is recognized and causing or likely to cause death or serious physical harm, and that a feasible abatement method exists.

OSHA’s use of the clause to cite employers for heat-related hazards prompted the review commission to issue an atypical invitation for outside parties to file friend of the court briefs that were due May 14.

Then the review commission scheduled rare oral arguments in two cases involving the use of the general duty clause for June 7 — a heat stress case and one involving the use of the clause to issue citations against a health care facility for a fatal workplace violence incident.

OSHA under the Obama administration was “definitely one of the more aggressive users” of the general duty clause for citations for workplace violence, ergonomics and heat stress hazards, said Raymond Perez, of counsel in the Atlanta office of Jackson Lewis P.C. Given that a new head of OSHA has not been confirmed, OSHA staffers are essentially continuing the policies from the prior administration, including “reinvigorated use of the general duty clause,” he said.

In <em>Secretary of Labor v. A.H. Sturgill Roofing Inc.</em>, the review commission will consider arguments over an administrative law judge’s affirmation of a serious citation issued against the company for not adequately implementing a heat illness prevention program in violation of the general duty clause. OSHA inspected the workplace in August 2012 following the death of a temporary employee, according to commission documents.

“I think (OSHA has) got a real problem winning that” because of the specific reference in the OSH Act to a company’s own employees, said Jim Stanley, president of safety consulting firm FDRsafety L.L.C. in Franklin, Tennessee, and a former deputy assistant secretary of labor for OSHA. “The language is clear.”

“It appears obvious to me that it’s an overreach,” said Robert Dunlevey, Dayton, Ohio-based senior counsel at Taft Stettinius & Hollister L.L.P. and the lawyer for Sturgill. “And that’s not an unusual situation when you have a (general) duty clause violation, because OSHA is basically hoping to create de facto regulations with stringent requirements for employers. It’s what they’d like to see without promulgating a standard.”

“It has broader implications for the general duty clause, especially at this moment in the history of the review commission and this moment in the Trump administration,” he added.

But Gary Visscher, of counsel with Law Office of Adele L. Abrams P.C. based in Beltsville, Maryland, and a former review commissioner, is not expecting a broad finding about OSHA’s use of the clause to cite employers, although he noted that it was an “unusual case” in that it directly pertains to a host employer’s obligation to protect temporary employees.

“I think it will be more specific to the use of the general duty clause and how it will apply in the context of heat stress injuries,” he said.

In <em>Secretary of Labor v. Integra Health Management Inc.</em>, the review commission will examine OSHA’s reliance on the clause in citing the health care facility following a fatality-related safety and health inspection for a workplace violence incident.

In December 2012, a mentally ill client fatally stabbed an Integra service coordinator.

“I believe that the agency is right” in using the general duty clause in relation to violence against health care workers, Mr. Stanley said. “I think the employer has an obligation to provide some type of protection for their workers.”

The commission’s current makeup may play into its current attention to and examination of OSHA’s use of the clause, experts say. Two out of the three current commissioners — Chair Heather MacDougall and Commissioner James Sullivan — had lengthy careers representing employers in labor, employment and occupational safety and health law. The third commissioner, Cynthia Attwood, previously served in multiple positions at the U.S. Department of Labor.

“There’s a little more employer-friendly commissioner now on the commission,” Mr. Perez said, referring to Mr. Sullivan. “It could be possible that they’re going to use this as a test case for a broader statement — not just on heat stress cases, but on the application of the general duty clause to employers and what the secretary’s burden is to establish that it is a recognized hazard and whether or not there are feasible means of abatement to correct a specific hazard that’s been identified.”