b'THE OFFICIAL NFBA MAGAZINEcontinued from page: 23LEGALLY SPEAKINGeither a prescriptive standard (one that wouldAppeals. In this case, the court upheld the dismissal have specific triggers, or thresholds, with requiredof an employers notice of contest as not being actions) or a performance-based standard (whichtimely filed. The court analyzed the service of the would require policies and would most likelycitations on a small employer, and it considered afford employers greater flexibility to fit policiesthe question under multiple factors, including the to specific workplaces). While all this is going on,danger of prejudice to the employer, the length it is apparent that OSHA will continue to enforceof the delay in filing the notice of contest, good heat illness requirements under the Generalfaith, and the reason for the delay. Edmund Baird, Duty Clause. I believe that the OccupationalAssociate Solicitor for the Occupational Safety Safety and Health Review Commission has setand Health Division of the U.S. Department of some parameters for use of the General DutyLabor, stated the onus in such a situation is on Clause to address heat illness prevention plans,the employer to have processes in place to process as demonstrated in the Sturgill Roofing case. and sort mail, including OSHA citations. Scott Ketchum, head of OSHAs Directorate ofThis brought to mind a case in which a client of Construction, also spoke on the second day ofmine, here in the Sixth Circuit. That company the conference. He stated that the importance ofapparently received OSHA citations when the safety in construction has been increased in lightoffice employee charged with accepting certified of the Presidents infrastructure bill. He indicatedmail was at lunch. In this case the fill-in person that enforcement would address falls, struck-byat the reception desk signed for the certified hazards, electrocutions, and caught in betweenpackage, looked at it, and decided to put it in the hazards. In light of these comments, I suggestmailbox of the companys off-site consultant, who that all employers in the construction industryhandled workers compensation matters. After review their safety programs to be sure that theyit was delivered from my clients office to the include training in the four areas above.consultants office, it was again not seen by the I also found it interesting that there was discussionperson who normally signs for certified letters. on a recent case in the Fifth Circuit Court ofAt the consultants office it went to the bottom of a stack of mail and was not reviewed by the 24 / FRAME BUILDER - MAY2022'