b'Garys CornerupdateGary Auman, MRCA Legal CounselUpdate of Heat Stress and OSHA to prevent heat illnesses. ItappearsthatthemandateforemployersintheTheNIOSHCriteriaDocumentreferencedbyJudge construction industry to provide heat illness protection toAugustine listed six steps an employer can take to prevent their employees is, if anything, more confusing than it hadheat illnesses and fatalities. The six steps include:been after the decision of the Occupational Safety and Health1.Develop procedures to acclimatize new employees and Review Commission (OSHRC) in the Sturgill Roofing case.employees who have been away from the workforce to a Some individuals claim that the Sturgill decision will effectivelyhigh heat index environment.prevent OSHA from enforcing heat illness prevention under the2.Develop work-rest regimens on each job site with a high General Duty Clause, while others claim that OSHA is readyheat index.to propose or issue a new standard on heat illness prevention. Both are merely rumors, and I think I can safely say that neither3.Provide cool water and encourage employees to drink five is accurate.But I hope the following comments will put bothto seven ounces of fluid every fifteen to twenty minutes.rumors to rest, and clear up any misunderstanding about4.Provide a cool rest area in close proximity to the worksite.what the Sturgill decision did (and, importantly, did NOT) say. 5.Provide training to employees regarding the health effects First, a brief reminder about the General Duty Clause. Thisassociated with heat stress, the symptoms of heat induced language is found in Section 5(a)(1) of the Occupational Safetyillnesses and methods of prevention.and Health Act of 1970. The General Duty Clause requires allThe sixth part of the NIOSH criteria document was to employers to provide a place of employment for its employeesrequire the employer to determine the health of its employees free of recognized hazards that are causing or likely to causeand use that information to determine whether they could work death or serious physical harm. This is unlike standards thatin a high heat index environment. Judge Augustine correctly are promulgated under the authority of Section 5(a)(2) of thepointed out that there are other federal laws such as the ADA act that require employers to take certain specific actions withwhich prevent an employer from obtaining that information. regards to its activities. The General Duty Clause addressesTherefore, this item on the list could not be enforced.recognized hazards that are not regulated by any of the specific standards found in 5(a)(2). OSHA continued enforcing heat illness prevention under On March 15, 2012 Judge Augustine, an OSHRC Judge outthe General Duty Clause following Judge Augustines decision. of the Denver office, issued a decision in a case titled SecretaryThen, in 2012, OSHA cited Sturgill Roofing under the General of Labor v. Post Buckley Schuh & Jernigan, Inc., finding that theDuty Clause for not having a heat illness prevention program hazard of heat illness is covered by the General Duty Clause.following the death of a temporary employee working for Without going into the facts of that case, Judge AugustineSturgill.The matter was heard by an Occupational Safety concluded that heat illness was a recognized hazard that wasand Health Review Commission Administrative Law Judge causing or likely to cause death or serious physical harm. He(ALJ) who affirmed the OSHA citation. Among other things, also found that the NIOSH criteria document lists five feasiblethe judge concluded that Sturgill should have ensured that steps an employer can take, and that Post Buckley Schuh &all employees consumed certain amounts of water on an Jernigan could have taken, to prevent the fatality that occurredappropriate schedule. The Review Commission (OSHRC) agreed in that case. From that point forward, OSHA has been enforcingto review the decision. Finally, on February 28, 2019 the Review heat illness prevention against employers in the constructionCommission published its decision. The three commissioners industry under the General Duty Clause. voted 2-1 to overturn the ALJs decision affirming the citation. Following Judge Augustines decision, OSHA issued aThe decision of the OSHRC has provoked quite a bit of memo dated July 19, 2012 in which it stated that it had issuedcomment. One attorney who was interviewed felt that the a directive to expedite heat related illness inspections and toReview Commission decision essentially precludes OSHA issue citations. Its stated goal was to obtain swift abatement andfrom using the General Duty Clause to enforce heat illness reduce heat related illnesses and deaths. The memo referencedprotection. Other attorneys who practice in this area have the National Oceanic and Atmospheric Administration (NOAA)taken a more studied approach. One commentator felt that Heat Index Chart. OSHA has also developed an app for smartthe decision of the Review Commission was fact-specific. She phones, which can be used as a guide by employers to identifyfeels (and I agree) that OSHA has not been precluded from a situation in which remedial action is necessary by employersusing the General Duty Clause to protect employees from heat 8 www.mrca.orgMidwest Roofer'