b'illness. Both of the judges in the majority who voted to vacateissued a directive to employers on distracted driving that it the citation noted that they did not feel that OSHA had met(OSHA) will cite employers under the General Duty Clause its burden to prove the existence of a hazard and a feasibleif the employer does not prohibit texting while driving.It is means of abatement. Both of these are criteria that must bea virtual certainty that if an employee is seriously injured as proven to affirm a General Duty Clause violation. The ALJsa result of either scenario (workplace violence or distracted decision was a reflection of the mentality that the employerdriving), OSHA will issue a citation to the employer under the must have failed to provide a safe workplace because an injury/ General Duty Clause.But the circumstances of every case will fatality occurred.The Review Commission has long rejecteddiffer, and employers will still be in the dark as to what specific that argument, and did so again here. steps they need to take to prevent such injuries. This lack of As I discuss below, I feel that the OSHRC is using the Sturgillspecificity (guidance) by OSHA, which could be overcome by decision to put OSHA on notice of the Review Commissionsstandard setting, appears to be a driver in the Sturgill decision.concerns with OSHAs overuse (and perhaps improper use)So, where does that leave employers in the area of heat of the General Duty Clause as an enforcement tool in manyillness protection? First, OSHA has not published an Advanced different situations, including but not limited to, heat illnessNotice of Proposed Rule Making (ANPRM) indicating an prevention. intention to promulgate a rule on heat illness protection. I can My take is that the Review Commission used this case totell you that if and when OSHA does issue an ANPRM on heat send a message to OSHA, that OSHA is overusing the Generalillness protecting we will advise you of it and we will advocate Duty Clause instead of promulgating specific OSHA standards. Ifor you, as your trade association, as the rulemaking proceeds.have been advising and defending employers for forty-plus yearsSecond, OSHA can and will continue to cite employers in OSHA matters. I have dealt with quite a few General Dutyunder the General Duty Clause for failing to protect employees Clause cases and reviewed many more.When the Occupationalfrom heat related illnesses. Sturgill has not changed this.What Safety and Health Act (the Act) was adopted into law, I believeshould you be doing as an employer to provide heat illness Congress expected the General Duty Clause to be used byprotection for your employees? Whether you are concerned with OSHA to protect employees until a specific standard could beprotecting your employees, avoiding a citation, or both, heat promulgated. My belief has been buttressed by the languageillness has been identified as a recognized hazard to employees, used by the Review Commission in footnote 9 in the Sturgillespecially in construction. I suggest that you establish a heat decision in which it stated:illness prevention program. Further I suggest you strive to have We note that when reviewing the history of cases in whichyour program follow the five components of the NIOSH criteria the Commission has addressed the general duty clause , thefor heat illness protection listed above. Your program should Commission has from time to time changed its view as to thebe in writing and it should be the responsibility of supervisors scope of the provision and what the Secretary must proveand management to ensure compliance at each site.for eachof its elements The general expectation was thatIn spite of the Sturgill decision, I feel OSHA will still be once a hazard was identified through the general duty clause,able to inquire as to the steps you are taking to protect your OSHA would then engage in rulemaking to ensure the hazardemployees from heat illness during an inspection as long as they was addressed by a standard. While practical considerationshave a reasonable concern for the health of your employees. The may have lead OSHA, over the years, to rely on the generalone thing the Sturgill case did for employers is to require OSHA duty clause in lieu of setting standards, the provision seems toto specifically identify the heat illness hazard on any jobsite, have increasingly become more of a gotcha and catch all forto demonstrate that the employers heat illness prevention the agency to utilize, which as a practical matter often leavesprogram is not effective to prevent heat illness, and to prove employers confused as to what is required of them. that alternative and more effective steps are feasible for the I have always taken the position that OSHA standards areemployer. One additional step you might consider to enable intended to put industry on notice of what is expected of it toyou to demonstrate that you have an effective heat illness protect employees. I believe that one of the reasons it takesprevention program will be to have your program reviewed OSHA so long to promulgate a new standard is the painstakingby your company doctor and to work with him/her to fine process which is required to get a proposed standard into atune your program to make it an effective tool to protect your final rule. This process is intended to provide all stakeholdersemployees.an opportunity to be involved in the process to ensure that notThe preceding is just the tip of the iceberg, but it gives you only are all safety and health concerns addressed, but that theya start. We at your trade association will continue to monitor are addressed in such a way as to require feasible remedialOSHA rulemaking and we will take steps on your behalf, if measures to protect employees.necessary, to respond to any efforts by OSHA to set standards I feel that the Sturgill decision is broader than the heatin heat illness prevention, workplace violence and distracted illness question alone. From its decision, the Review Commissiondriving, the three areas currently being enforced by OSHA appears to be chastising OSHA to some extent for overusing theusing the General Duty Clause.General Duty Clause in place of specific rulemaking in general. As you are probably aware, OSHA has used the General Duty Clause to cite employers on workplace violence issues.It has www.mrca.orgMidwest Roofer 9'