National Roofing Legal Resource Center

OSHRC Issues Ruling in Heat Stress Case

In a long-awaited and vigorously contested case, the Occupational Safety and Health Review Commission—in a 2-to-1 decision issued Feb. 28—vacated an Occupational Safety and Health Administration citation issued to a roofing contractor for allegedly exposing employees "to the hazard of excessive heat from working on a commercial roof in the direct sun."

OSHA cited the roofing contractor, Dayton, Ohio-based A. H. Sturgill Roofing Inc., under the general duty clause of the Occupational Safety and Health Act after a 60-year-old temporary employee with various pre-existing medical conditions collapsed his first day on the job. The employee was assigned to push carts containing roofing debris at the edge of the roof into a dumpster below and collapsed on the roof in the late morning. The employee was rushed to a hospital, diagnosed with heatstroke and passed away three weeks later. The coroner reported the employee's death was caused by "complications" from heatstroke.

Following a lengthy hearing before an administrative law judge, the citation initially was upheld. The judge concurred with OSHA's contention that the roofing contractor had failed to provide training, as well as develop and implement a heat-related illness prevention program that 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.

Because there are no specific OSHA standards governing heat-related hazards, OSHA relies on the general duty clause of the OSH Act when citing contractors for heat-related hazards. The general duty clause requires employers to provide each employee with a place of employment free from recognized hazards likely to cause death or serious physical harm to employees. To prove a violation of the general duty clause, the Secretary of Labor must establish a condition or activity in the workplace presented a hazard; the employer or its industry recognized the hazard; the hazard was causing or likely to cause death or serious physical harm; and a feasible and effective means existed to eliminate or materially reduce the hazard.

The principal issues in the A. H. Sturgill Roofing case were weather conditions Aug. 1, 2012, at the PNC Bank branch job site and whether the conditions presented an excessive heat hazard, as well as the measures taken to reduce the hazard. An 11-person crew, including three temporary employees, started work at 6:30 a.m., removing an existing EPDM roof system and Styrofoam insulation. The temperature was about 72 F with 84 percent relative humidity. Around 11:40 a.m., the temporary employee who was pushing the debris cart over the edge of the roof began shaking and collapsed. The ambient temperature at the time was about 82 F with 51 percent relative humidity. At the hospital, the employee's core body temperature was 105.4 F.

At the initial administrative hearing, the judge ruled in OSHA's favor and found Sturgill Roofing's employees were exposed to heat-related illness hazards based on the National Weather Service heat index chart, medical evidence and testimony of OSHA's occupational health expert. The NWS heat index chart rates the likelihood of heat disorders with prolonged exposure or strenuous activity based on temperature and relative humidity. The risk is classified into four warning levels, which include caution, extreme caution, danger and extreme danger. Based on testimony from the foreman, it was about 10 degrees hotter on the roof than the ground. OSHA argued the heat index established an excessive heat hazard. The judge considered the limited steps Sturgill Roofing took to abate the heat hazard, which consisted primarily of presenting toolbox talks regarding heat-related issues, providing drinking water on the roof and encouraging employees to take breaks in addition to scheduled breaks; the judge decided the steps taken were inadequate and upheld the citation.

Sturgill Roofing appealed the judge's decision to the three-member OSHRC, appointed by the president. The OSHRC invited amicus legal briefs from numerous organizations, including NRCA. An oral argument was conducted in June 2018.

In reaching its decision to reverse the judge's decision and vacate the citation, the two OSHRC members who formed the majority concluded OSHA failed to carry its burden of proving the existence of a hazard and a feasible means of abatement. In its 22-page decision, the OSHRC said the conditions at the job site were not such that OSHA had proven the existence of a hazard likely to cause death or serious physical harm.

Examining the NWS heat advisory chart, which indicates the "likelihood of heat disorders with prolonged exposure or strenuous activity," the majority said OSHA had not shown any of the chart's warnings applied to the conditions present Aug. 1, 2012, because OSHA had not shown "prolonged exposure" to heat index values that fell within the chart or that the work involved "strenuous activity." According to the OSHRC decision, the evidence showed the heat index values were in the "caution" range for two of the five hours the crew worked. Quoting a 1980 U.S. Supreme Court decision, the OSHRC emphasized that to prove the existence of a hazard within the meaning of the general duty clause, OSHA "must show, at a minimum, that employees are exposed to a significant risk of harm."

One OSHRC commissioner issued a 29-page dissenting opinion. The dissenting commissioner felt 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 heatstroke was reliable and persuasive evidence a heat hazard existed at the worksite. She chided the majority for not considering the transcribed statement the foreman had given the OSHA compliance officer stating it was about 10 degrees hotter on the roof than 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 NWS heat index chart.

The two commissioners in the majority for the OSHRC decision were appointed by President Trump. The dissenting commissioner was appointed by President Obama. The Secretary of Labor has 60 days to appeal the OSHRC's decision to the federal circuit court of appeals.

With summer weather approaching, commercial and residential roofing contractors 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.

-Stephen M. Phillips



3/28/2019



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