The Occupational Safety and Health Administration (OSHA) oversees workplace safety by enforcing regulations applicable to various industries, such as maritime, construction and general industry. Roofing contractors likely are most familiar with the rules that apply to construction job sites found in 29 CFR §1926, Safety and Health Regulations for Construction, and the hazard communication and respiratory protection rules found in 29 CFR §1910 for General Industry.
Despite common misinterpretations, regulatory provisions provide an employer with some direction for implementing controls in hazardous workplace conditions. Typically, OSHA enforcement activity references specific regulatory language to apprise a contractor of the deficiency the agency alleges with respect to a hazardous situation.
However, violations may be cited without reference to specific regulatory provisions under the General Duty Clause found in the Williams-Steiger Occupational Safety and Health Act (OSH Act) of 1970—legislation that serves as the basis for occupational safety and health rules.
General Duty Clause
Section 5(a)(1) of the OSH Act states an employer must furnish a place of employment "free from recognized hazards that are causing or are likely to cause death or serious physical harm ... " to workers. This language forms the basis for an OSHA inspector to cite an employer for a General Duty Clause violation.
According to the National Roofing Legal Resource Center's OSHA Citation Defense Manual, such citations usually are challenging for OSHA to successfully prosecute because the agency must prove all the following:
As these elements indicate, a General Duty Clause violation only may be brought by OSHA as a serious citation—one that could cause a severe injury or fatality. OSHA citations generally are categorized as de minimis, other-than-serious, serious and willful with increasing penalty amounts as the severity of the injury or the egregious nature of the employer's conduct increases.
The specifics of a regulation provide the elements for what OSHA must prove to support a citation. OSHA has an easier burden of proof for violations of specific regulations, which only require showing a regulation applied to a workplace; the employer failed to comply with that regulation; workers had access to the allegedly violative condition in the workplace; and the employer knew or could have known of the condition.
According to OSHA's website, www.osha.gov, the agency issued 149 citations to companies classified under the construction category of the North American Industry Classification System for alleged General Duty Clause violations, cited specifically as Section 5(a)(1), and assessed more than $700,000 in penalties during October 2016 to September 2017. This reflects General Duty Clause enforcement activity only eclipsed by a manufacturing industry segment in which companies were issued 185 citations resulting in nearly $1 million in fines.
A General Duty Clause allegation against a company is classified as a serious OSHA violation with a possible maximum penalty of $12,934. Often the result of an obscure condition in a workplace, General Duty Clause citations can result in significant financial consequences for a company.
Under OSHA's General Duty Clause, roofing contractors are responsible for implementing feasible controls for "recognized hazards" likely to cause death or serious injury. Of the four elements OSHA must prove, recognizing a hazard probably is the most challenging for the agency in many cases.
Defining recognition is difficult. When citing General Duty Clause violations, OSHA may rely on industry resources or policies and training resources of a particular contractor in an attempt to meet OSHA's burden of proof as to the recognition element. The Occupational Safety and Health Review Commission (OSHRC), the federal agency that provides administrative trial and appellate review of OSHA enforcement actions, has stated proof a hazardous incident can occur under "a freakish or utterly implausible concurrence of circumstances" is insufficient to establish a hazard.
In addition, OSHRC has ruled OSHA must "define a recognized hazard in a way that gives the employer a broad view of its obligations and identifies practices over which it can reasonably be expected to exercise control."
Manufacturers' operating instructions for tools or equipment, training or educational materials from industry trade unions or associations, and the cited roofing company's policies and procedures are all sources that may be relied upon, at least in part, by OSHA as authority that a hazard is recognized.
Practical applications
In OSHA's most recent annual report of citations issued to roofing companies, OSHA lists 11 citations issued under the General Duty Clause with $23,113 in associated penalties (of the 149 construction industry General Duty Clause violations, 11 were issued to roofing contractors.) NRCA has been informed of several instances of enforcement activities during roofing operations that were based on (or initially were sought to be based on) the General Duty Clause. In some enforcement instances, occupational heat illness was the alleged hazard.
Federal OSHA does not have a specific regulation addressing the assessment and control of heat-related exposures in the workplace as do the state plan rules of California and Washington, for example. With respect to heat-related illnesses, there is a fair amount of industry information to assist victims of heat cramps, heat exhaustion and heat stroke by spotting symptoms and delivering first aid.
NRCA's Toolbox Talks addresses heat-related illnesses, and NRCA Pocket Guide to Safety serves as a resource for workers. Other industry publications also offer information regarding heat illness as a health hazard, so one might conclude recognition of heat as a hazard in roofing is a given in an enforcement action to uphold a heat illness-related citation.
However, a distinction must be made between broad recognition of a general hazard versus an actual excessive heat hazard present at a particular job site was the cause or could be the cause of a worker's injury. Without topically specific regulatory provisions that have been developed, scrutinized and revised under the normal rulemaking process government agencies must follow, defining an excessive heat hazard can become "a moving target" at best.
OSHA's website has a variety of information regarding heat-illness prevention, signs and symptoms of different heat illnesses, and other educational and training resources. However, in terms of clarifying more precisely when an excessive heat hazard may exist and present a hazard to the workers at a job site, the website addresses general conditions such as "high temperature and humidity, direct sun exposure, no breeze or wind," but it does not provide specifics such as temperature, humidity or other benchmarks.
A better source for roofing contractors to use to assess excessive heat hazards and implement measures to reduce or eliminate worker exposures is the California Division of Occupational Safety and Health (CalOSHA) standard (Title 8 §3395). California's regulation details when shade must be provided on a job site (when temperatures exceed 80 F); the minimum cool-down time periods in a shaded area according to heat readings (5 or 10 minutes); the quantity of water per worker that must be available on a job site (1 quart per hour for the entire shift); high-heat procedures when temperatures equal or exceed 95 F; and how workers must be acclimated (gradually getting the body to adapt) to work in heat.
The California rule also sets out emergency response procedures an employer must implement, a training curriculum and a requirement for a written heat-illness prevention plan. CalOSHA's regulation content can be a valuable tool for roofing contractors wanting to ensure workers are safe when temperatures climb.
Be mindful
As a result of the absence of specific regulatory provisions, the General Duty Clause often may be used by OSHA, including in heat-illness related actions, with inconsistent results that may not produce enhanced worker safety and health. Federal heat-illness enforcement actions using the General Duty Clause are difficult for OSHA to successfully prosecute. Such actions that come before OSHRC typically reflect an arbitrary application of protocols or procedures combined with an after-the-fact analysis of a worker's personal health history or status to arrive at a decision.
You must be wary of attempts to apply the General Duty Clause to a variety of workplace conditions. You also should be aware, particularly in the case of heat-related enforcement and compliance challenges, resources such as CalOSHA's more comprehensive regulation may prove helpful for keeping workers safe.
If you have questions about OSHA's General Duty Clause, please contact me at (847) 493-7502 or hdietz@nrca.net.
Harry Dietz is an NRCA director of enterprise risk management.
To learn more about heat-related illness and other safety issues discussed in NRCA's Toolbox Talks and NRCA Pocket Guide to Safety, visit www.nrca.net/store.
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