b'Garys Cornerrepeating itself. He spoke about the March 7thuse of the General Duty Clause to address heat announcement that OSHA would focus its effortsillness prevention plans, as demonstrated in the Sturgill Roofing case.theincreaseinScott Ketchum, head of OSHAs Directorate of Construction, also spoke on the second day of enforcement willthe conference. He stated that the importance of most likely meansafety in construction has been increased in light of the Presidents infrastructure bill. He indicated an increase in the numberthat enforcement would address falls, struck-by of compliance officers hazards, electrocutions, and caught in between hazards. In light of these comments, I suggest that all employers in the construction industry review and resources addressing hospitals and nursingtheir safety programs to be sure that they include care facilities that treat COVID-19 patients. Whiletraining in the four areas above. this is the current enforcement plan, it appearsIalsofounditinterestingthattherewas that OSHA is moving forward to develop, as Mr.discussion on a recent case in the Fifth Circuit Parker stated, an infectious disease standard. I feelCourt of Appeals. In this case, the court upheld that this may indicate that this new standard maythe dismissal of an employers notice of contest be broader than the withdrawn ETS (Emergencyas not being timely filed. The court analyzed the Temporary Standard) for COVID-19.service of the citations on a small employer, and Another speaker was Kimberly Stille, Directorit considered the question under multiple factors, of the Directorate of Enforcement of OSHA, asincluding the danger of prejudice to the employer, well as Dionne Williams, the Deputy Director ofthe length of the delay in filing the notice of contest, Enforcement of OSHA. They spoke about OSHAgood faith, and the reason for the delay. Edmund enforcement initiatives for 2022. They indicatedBaird, Associate Solicitor for the Occupational that OSHA would continue to use the General DutySafety and Health Division of the U.S. Department Clause to cite employers for COVID-19 hazards.of Labor, stated the onus in such a situation is on They also indicated that they intend to focus onthe employer to have processes in place to process heat-related hazards. Although we know that OSHAand sort mail, including OSHA citations. is developing a heat illness protection standard,This brought to mind a case in which a client OSHA is still in the information gathering phase ofof mine, here in the Sixth Circuit. That company the standards development. Heat illness preventionapparently received OSHA citations when the office was discussed on the second day of the conferenceemployee charged with accepting certified mail and the discussion did not offer any predictions onwas at lunch. In this case the fill-in person at the when a rule will be proposed. The speakers on thereception desk signed for the certified package, second day did state that when a rule is proposedlooked at it, and decided to put it in the mailbox of the that it will address heat illness in both constructioncompanys off-site consultant, who handled workers and general industry.compensation matters. After it was delivered from Apparently at this time, OSHA is consideringmy clients office to the consultants office, it was eitheraprescriptivestandard(onethatwouldagain not seen by the person who normally signs have specific triggers, or thresholds, with requiredfor certified letters. At the consultants office it actions) or a performance-based standard (whichwent to the bottom of a stack of mail and was not would require policies and would most likely affordreviewed by the consultant until she returned from employers greater flexibility to fit policies to specifica long business trip. By the time my client became workplaces). While all this is going on, it is apparentaware of the citations they were ten days past the that OSHA will continue to enforce heat illnessnotice of contest date. I was able to correct the requirements under the General Duty Clause. Isituation by working with the solicitor assigned to believe that the Occupational Safety and Healththe case. After reviewing the Fifth Circuit decision Review Commission has set some parameters forand Mr. Bairds comments, I believe that the result Continued on page 26www.mrca.orgMidwest Roofer 25'