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UNifED STATES OF AMERICA

OCCUPATIONAJL SAFETY AND HEALTH REVIEW

COMMISSION

PETITION FOR RE WFROM DECISION AND ORDER

of Admin.istratiie Law Judge Carol A. Baumerich

Febniaiy 23, 2015

OSC Docket No. 3-0224

Secretary of Labor, Unitei States Departnent of Labor, Complainant,

A.H. Sturgill Roofing, Inc.,’ Respondent.

AMICUS CURIAE BRIEF OF

NATIONAL ROOflNG

CONTRACTORS ASSØCIATTON

Sterhen M, Philhips Esq.

rin Petit Lis, Eq.

HENDRICK PHLLWS SALZMAN & Sm.GEL, P.C.

230 I’eachtree Street, N.W.

Suite 2500

Atihota, Georgia 3c303

T1: (404) 522-140

Fix: (404) 522-9545

couthelfor Amicus Curiae

National Rofing Contractot Association

National Roofing Contractors Association

10255 Wi Higgins Road, Suite 600

Rosewnt, IL 60018-5607

Tel: (847) 299-9070

F x: (847) 299-1183
la::I5O5—l42O1S I I

TABLE OF CONTENTS

JNTRODUCTION

STATEMENT OF INTEREST

STATEMENT OF ISSUES ON REVIEW 2

STATEMENT OF THE CASE 3

ARGUMENT 3

AN EXCESSIVE HEAT HAZARD DID NOT EXIST AT THE STLTRGILL

JOBSITE ON AUGUST 1, 2012 3

a.. Prior excessive-heat hazard cases show that the conditions at the Shirgilljobsite

had never before been recognized by the Commission or courts as creating an

“excessive-heat hazard. 3

b The Secretaiy’s description of the hazard in Sturgill. in terms of a “heal:-related

iUness” fai.l.s to meet the criteria, of section 5(a)(1), which requires that a hazard

must be defined in a way that apprises the employer of its obligations, and

identifies conditions or practices over which the employer can reasonably be

expected to exercise control 5

c In the Aidridge Electric case, which should be followed here, no “excessive-heat

hazard” was found to exist at worksite where employees were exposed to

essentially identical environmental temperatures over an essentially identical

amount oftime as on thc Sturgillobsite 7

d. An employee’s health and age are not “recognized” as hazardous workplace

conditions in the roofing industry, nor are they conditions which safety experts

familiar with tile roofing industry would take into account in prescribing

workplace safety programs and policies 9

e. The hazard alleged in Sturgill is unconstitutionally vague as it is not defined in

terms which would have given Sturgiill fair notice of the violative conditions it

was supposed to rid the workplace of Ii

H. AN EMPLOYER CANNOT BE FOUND TO HAVE “KNOWLEDGE” OF A

HAZARD CAUSED BY AN INDIVIDUAL EMPLOYEE’S UNDERLYING

HEALTH CONDITIONS OR AGE 15

HI. AN EMPLOYER CANNOT CONDUCT A MEDICAL INQUIRY

PROT-IIBIThD BY THE AMERICANS WITH DISABILITiES ACT AS

AMENDED ON THE BASIS THAT IT TS NEEDED FOR AN EMPLOYER TO

COMPLY WITH THE OSH ACT’S GENERAL DUTY CLAUSE 17

IV. THE GENERAL DUTY CLAUSE DOES NOT REQUIRE AN EMPLOYER TO

CUSTOM-TAILOR HEAT-ILLNESS PREVENTION MEASURES FOR EACH

EMPLOYEE BASED ON THEIR AGE AND HEALTH AS SUCH

MEASURES ARE NOT A FEASIBLE OR EFFECTIVE MEANS OF

REDUCING THE HAZARD OF EXCESSIVE-HEAT 21
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V. THE GENERAL DUTY:CLAUSE SHOULD NOT BE EXPANDED TO

REQUIRE EMPLOYERS TO PERFORM ENDVIDUALIZED EMPLOYEE

ASSESSMENTS ON EVERY JOB EVERY DAY 26

VL CONCLUSION 29

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[ LE OF AUTHORITIES

Cases

Arcadian Corp., 1.7 .BNA OSFL4 1345, 1348 (No. 93-3270 1995) .10 Babcock & Wilcox Co. v. OSHRC. 6221 .2d I 160, 1164 (3d Cir. 1980) 22 Belk v. Southwestern Bell Tel Co., 194 3d 946. 95 1 (8th Cir. 1999) 19 Brand Scaffold Builders. Inc., 19 BNA OSHC 1366 (No. 00-1331, 2000) 1.6

Brennan v. OSHRC (Hendrix dlb/a Abed Lumber Co.), 511 F.2d 1139, 1144 (9th Cr. 1975) 28 Cape Vineyard Division ofNew Bedford Gas & Edison Light Co. v. OSHRC, 512 F.2d 1148, 1150 (1st

Cir. 1975) 13

(‘erro Metal .Proá. Div., Marmon Group,) Inc., 12 SNA OSHC 1821., 1.822, 1986-87 CC.H OSHD ¶ 27,579 (No. 78-5159. 1986) 23 Christopher v. SmithKlineBeecham Cork., 567 U.S. 142. 156 & n.15 (2012) 13

Conroy NY Stare Dep’r ofC’orr. Serosi. 333 F.3d 88, 97—98 (2d Cir. 2003) 19.24

crpe v. City ofSan Jose, 261 F.3d 877, 90 (9th Cir, 2001) 19

(‘rowley Am. Transp., Inc., 18 O.S.H. Cab. (BNA) ¶ i882 (O.S.H.R.C.A.LJ. July 29, 1999) 14

Diamond Roofing Co., Inc. v occupatioAat Sqfery & health Review (‘omm ‘ii. 528 F.2d 645. 649 (5th Cir.

1976) 13

Donovan v. Royal Logging no., 645 F.2dj 822, 831(9th Cr. 1981) 12

Owiron Co. v. Sec’y ofLabor: US. Occilpahonal Safety & Health Review Comm’n. 750 F.2d 28 (6th Cit.

1984) 4

Duriron Co., Inc., Respondent, & United jSteelworkers ofAm Local Union 3320. Authorized Employee

Represenlative, 11 O.S.H. Cas. (BNA)1 ]405 (O.S.H.R.C. Apr. 27, 1983) 4

EEOC v Mw-ray, Inc., 175 T.Supp.2d 10$3, 1062 (M.D.Tenn.2001) 20

Empire-Detroit Steel, 579 F.2d at 384 . 22

Ge fey Oil Co. v. Occupational Safety & thaith Review Comm’n, 530 F.2d 1143, 1145 (5th Cir. 1976)... 16

Graynedv. City ofRockford, 408 U.S. iou, 108(1972) 12

India. Glass, Respondent, Glass, Molder4 Plastic, Pottery & Allied Workers, Local 208, Authorized

Employee Represemative, is O.S.H. Câs. (BNA) ¶ 1594 (O.S.H.R.C. Apr. 21, 1992) 4, 5

Industrial Union Dep’% AFL-CIO v. Ame4can Petroleum Institute, 448 U.S. 607 (1.980) 28

Jewel! Palming, Inc. Respondent, 16 O.S.k. Cas. (BNk) 2110 (O.S.H.R.C.A.L.J. Sept. 12, 1994) 23

Kelly Springfield Tire Co., 10 DNA OSH& 1970 (No. 784555, 1982). afid 729 F.2d 317(5th dr. 1984)

j 14

Miller v. Whirlpool Corp., 807 F. Supp. 2 684, 688—89 (ND. Ohio 2011) 20,21,26,30

National Realty & Consi. Co., Inc. v. Occ&panonal Safety and Health Review Commission, 489 F.2d

1257, 1265. n. 32., O.S.H. Cas. (DNA) 1422 (D.C. Cr. 1973) 10. 14, 22,23,28

Nelson Tree Sen’s., Inc. v. Occupational fety & Health Review Comm’n, 60 F.3d 1.207, 1.209(6th Cr.

1995) 6,9,14

Otis Elevator Co., 2007 OSHRC LEXIS j7, ‘6. 2005 OSHO CCH P32, 920 (No. 03-1344) 22

Papachristou v. City ofJacksonville, 405 U.s. 156, 162, (1972) 12

Peiron Corp., 12 BNAOSHC 1833. 1836 1986-87 CCHOSHDf 27,605 (No. 82-388, 1986) 23

Post Buckley Schuh & .Jernigan. Inc., Resondent, 24 O.S.H. Cas. (DNA) ¶ 1155 (O.S.H.R.C. Mar. 15,

2012) [ 4

Pride Oil Wells Service, 15 DNA 051-IC Ibo9, 1814 (No, 87-692, 1992) 16

Roberts Sand so., LLLP Sec ‘y ofLabor 568 F. App’x 758, 759(11th Cr. 2014) 22

II
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Rohr v Sail River Project Aria Imp. and Power Dit. 555 F.3d 850 (9th Cir.2009) .20. 21. 30 Secretaiy ofLabor v. United Slates Postal Sen/ce. OSi-IRC Docket No. 13-0217 (September 24,2014) .3

Secretary ofLabor, Complainant v. Aidridge Flee., Inc., Respondent, 26 O.S.H. Cas. (BNA) ¶J1449 (O.S.H.R.C.A.L.J. Dec. 2,2016) 5. 6, 7,8. 15. 16

flee v. CentreArea Transp. Auth. 247 F.3d 506,515 (3d Cir. 2001) 19,25

Titanium Metals C’orp. qfAm. 1’. Uety, 579 F.2d 536, 543—44 (9th Cir. 1978) 28 Whirlpool Corp. v. Occupational Safely & Health Review Comm’n, 645 F.2d 1096, 1098 (D.C Cir. 1981.)

13.14

Statutes

29C.F.R1630.14(a) 24 29C.F.R. § 1639.2(r) 25

29C.F.R.1630.10(a) 18

29C.F.R.i630.14(b) 18

29 U.S.C. § 654(a)(i) 20,21

29U.S.C.666Ø) 16

42 u.s.c. § 121 12(bX5)(A) 29

Other Authorities

House Judiciary Report at 45 25

House Report Labor Report at 56—57 25

EEOC Interpretive Guidance to 29 C.F.R. § 1630.14(h) 18

EEOC Interpretive Guidance to C.P.R. § 1630.2(h) 25

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mTRODUCTION

The National Roofing Contractors Association (“NRCA”) respectftlly submits

this brief as amicus curiae in support ofrespondent A.H. Snirgill Roofing, Tnc (“Sturgill”).

NRCA represents the nation’s roofing industry. NRCA urges the Review Commission to

vacate the administrative law judge’s (“AU”) decision and order against Sturgill on the

issue of Sturgill’s alleged failure to implement an adequate heat illness prevention program

in violation of section 5(aX 1) of the Occupational Safety and Health Act of 1970 (“OSH

Act”), otherwise known as the OSH Act’s “general duty clause.’1 The AU abused her

discretion in finding that Sturgill violated the general duty by failin.g to implement an

adequate individualized heat-illness prevention program on a day where the recorded heat

index is below 91°F on the grounds that a “heat-related illness hazard” existed for a singl.e

employee due to his medical conditions and age. In Secretary of Labor v. AM. Siw’gili

Roofing, Inc., OSHRC Docket No. 13-0224, (Februaiy 23, 2015) (“&urgifl3, the AU

found a heat hazard to exist in conditions which ha.d never before been recognized by the

Commission or courts as creating an “excessive-heat hazard.” If not vacated by the Review

Commission, this decision stands to establish an unconstitutional expansion of OSHA’s

prosecutorial authority under thc general duty clause, vastly expands employers’

obligations, and presents employers with the dilemma of trying to comply with the

Secretary’s interpretation of the general duw clause without running afoul the strictures of

the Americans with Disabilities Act as Amcnded (“ADAAA”).

STATEMENT OF INTEREST

The National Roofing Contractors Association has a substantial interest in this

matter NRCA is one ofthe nation’s oldest construction indusuy trade associations in. the

United States. Founded in 1 886, NRCA is a nonprofit association composed of all

‘29 U.S.CZA. 654(a)
I 1e:55:1O—14—2O1I I I I

segments of the roofing industry, including contractors, manufacturers, distributors,

architects, engineers, roof and safety consultants, building oers, and county, city and

state government agencies. NRCA’s mission is to inform and assist the roofing industry

act as its principal advocate, and help members in serving their customers. NRCA

represents the voice ofroofing professionals nationwide and is the leading authority in the

roofing industry for infonnation, education, technology, advocacy, and business safety

practices.

NRCA has more than 3,500 members from all 50 states and 53 counties and is

affiliated with 105 local, state, regional and. international roofing contractor associations.

NRCA contractor members range in size from companies with less than $1 million in

annual sales volumes that constitute 50 percent of the current membership, to large,

commercial contractors with annual sales volumes of more than $20 million, More than

half of NRCA’s contractor members perform both residential and commercial roofing

work, and more than one-third have been, in business for over a quarter of a century. NRCA

seeks to elevate the entire roofing industry, and pail ofthat is to help it be a safer profession.

STATEMENT OF ISSUES ON REVIEW

1. Given the conditions, whether the Sturgill jobsite on August 1, 2012 was a

hazardous workplace with excessive heat?

2. Can an employer have constructive knowledge of an excessive-heat hazard

defined in part by the physiology of one particular employee?

3. Does an cmployer have the right to require employee disclosure of all personal

health conditions which may affect their ability to regulate heat?

4. Does the general duty clause obligate employers to make individualized risk

assessments of each employee on every job on every’ day as to whether that

employee, based on his physical condition, may face a hazard to him or her in the

work place?

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STATEMENT OF THE CASE

NRCA respectfully adopts the statement ofthe case as stated in Respondent A.H.

Sturgill Roofing Inc.’s Petition, for Discretionary Review. Opening Brief on Review, and

Reply Brief to the brief for the Secretary of Labor, as well as all other statements of fact

and. evidence referenced therein.

ARGUMENT

I. AN EXCESSIVE HEAT HAZARD DW NOT EXIST AT THE

STURGILL JOBSITE ON AUGUST 1,2012.

& Prior excessive-heat hazard cases show that the conditions at the SturiTl

jchsiw had never before been, recognized by the Commission or courts as

creatjnu an. “excessive-heat hazard.”

In Sturgill, the AU found a heal hazard to exist in conditions which have never

before been recognized by the Commission or other courts as creating an “cxcessve-heat

hazari”In the September24, 201.4 decision of AU Peggy S. Ball in. United Slates Postal

Service, issued five months beCore the Sturgill decision was published, a postal worker’s

exposure to heat indices of 105°F and 104°F on two consecutive days was found to pose

an “excessive heat” hazard to both acclimated and unacclimated employees alike7 In the

2012 case of Post Buckley Schuh & .Jernigan, Inc., AU Patrick W Augustine found. a

“hazard of excessive levels of heat” to exist where employees digging 3-foot deep holes in

the desert were exposed to temperatures which reached a high of 99°F with 29% humidity.3

In the Review Commission’s 1983 decision in Durion Co., Inc., affirmed by the Sixth.

Circuit in 1984. a majority of the Commissioners found a “heat stress hazard” to exist as a

Secretary ofLabor v. United States Postal Service, OSNRC Docket No. 13-0217 (September 24. 2014). Post Buckley Sc/tub & Jernigan, The., Respondent, 24 0.5.11. Cas. (I3NA) ¶ 1155 (O.S.H.RC. Mar, t. 2012).

3
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result of “extreme heat” where the average temperature at the worksite was 95°F and

temperatures reached as high as 1.15°F.”

The 1992 case of lnductrial Glass.5 the only case on record where the inspection

and issuance of an excessive-heat hazard citation were not preceded by a death or serious

injury, the Review Commission found that the Secretary failed to prove that an “excessive

heat stress” hazard existed where the wet bulb globe temperature readings taken. by OSHA

inside a glass plant rangcd between 83.4°F to 101.2°F and the thy bulb readings ranged

from 91°F to 1. 15°F. The experts in Indusirlid Glass all agreed that to determine whether

conditions constitute a heat-stress hazard involves “a combination of environmental or

ambient heat conditions (the heat in the air, the humidity, and the air velocity) and. the

internal or metabolic heat produccd by the activity being performed (“the workload”), less

the cooling effects of evaporation,”

A notable 5 of the 12 pages of the Industrial Glass decision were dedicated to a

discussion of testimony provided by three heat-stress experts who assessed the total heat

load experienced by a worker operatin.g molten glass machines at the Industrial Glass plant.

Citing favorably to the methods used by Industrial Glass’s experts as more representative

ofthe actual conditions experienced by employees, the Review Commission found that the

employees were not exposed to an excessive-heat stress hazard likely to cause death or

serious harm to employees, as worker’s metabolic workload, combined with the

environmental heat load, did not create a total heat load great enough to cause heat stress.6

By way of comparison, the Secretary in Surgill failed. to present any expert

testimony or calculations from a heat-stress expert to prove the total heat load created by

Thefron Co., Inc.. Respondent, & United Steelworkers ofAm.. Local Union 332(A Authorized Employee Representduve. 11 O.S.H.Cas.(BNA) 1405 (O,sH.R.C. Apr. 27. 1983 ). affmdDurlron Co v. &cyof

Labor: US. Occupational Sqfèi & Ueqich Review Comm’n, 750 F.2d 28(6th Cit. 1984).

‘Indus, Glass. Respondent, Glass. Molders. Plastic, Pottery & Allied Workers, Local 208, Authorized Employee Represeniaave, 15 O.S..H. Cas. (BNA) ¶ 1594 (0.S.H.RC. Apr. 21, 1992).

4
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the jobsite conditions at the PNC rooftop on August 1, 2012. The only expert testimony

offered by the Secretary in Sturgill was that of a medical doctor, Dr. ‘‘ee, who concluded

that “[b]ecause in the end [MR.] had 1.05-degree temperature, and based upon my review

of the medical records, there is nothing that would gct him to 105 degrees [except] for

exposure to heat in. the workplace.”

In contrast to the experts in Industrial Glass who calculated the worker’s actual

minute-by-minute activities over an 8-hour period., which they broke down into their

various motions to determine the worker’s actual Kcal ener’ expenditures and the

metabolic heat generated by the activities. Dr. Yee admitted that he did not factor in how

many breaks MR. had or did not have, nor did b.c mention any consideral:ion ofthe type

or nature of physical tasks M.R. performe& The only factors taken into account by Dr.

Yee in concluding that MR. was exposed to excessive-heat at the worksite were M.R.’s

105°F body temperature, the recorded. weather temperature, the relative humidity, and the

amount ofsunlight observed by EMS upon their ardval.S

b. The Secretary’s description of the hazard in Swrgjll in terms of a “heat

related illness” fails to meet the criteria of section 5(aYfl. which, requires

that a hazard must be defined in a way that aDprises the empi over of its

obligations, and idcntifies conditions or practices over which the employer

can reasonably be expected to exercise control.

To establish a general duty clause violation, the Secretary i.s required to “define a

recognized hazard in a way that gives the cmployer a broad view of its obligations and

identifies practices over which it can reasonably be expected to exercise control.9

In Secretwy of Labor, Complainant v. Aldridge Electric, Inc., a section 5(aXl)

excessive-heat hazard ease issued one year after the Sturgill decision was published, Chief

Administrative Law Judge Covefte Rooney specifically rejected the Secretary’s attempt to

7Tr. 89 In. 14-18

Tr 104 In. 2-6

9iVelsnn Tree Sen.t.c.. Inc. v. OeeupationalSa/kty & Health Review Comm’n, 60 F.3d 1207. 1209(6th (Dir. 1995).

5
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prosecute an employer for violation of the general duty clause for failing to “free” the

workplace from an excessive heat-hazard created in. part by the physiology of an employee

a condition which an employer has no ability to control.’°

At issue in Aidridge was a thirty-six year old employee who died from heat stroke

with a contribLiting factor ofobesity. On June 24, 2013, his first day on thejob, the decedent

was part of a crew working in a 3-foot wide shoulder-height trench which ran down the

middle of a highway. From 10 am to 12 pm, together with a partner, the decedent

repeatedly lifted 2 pieces of four-inch diameter PVC pipe (weighing 42 pounds each) at a

time from a pile 20 feet away, and carried them over to the french. In the afternoon, he

worked for about 1. hour gluing and hammering the ends of the pipe together. When the

decedent began work that morning, the temperature was 73°F with 71% humidity.

Approximately five hours later, the decedent collapsed. Temperatures had reached 849’

with 57% humidity, with scattered cloud.s and 13mph winds)’

OSHA issued a section 5(aXl) citation to Aidridge Electric alleging that

employees were exposed to tile hazard of “excessive heat during the performance of the

workers’ duties.” Because the record established that the decedent’s death was caused by

heat stroke with a contributing factor of obesity, the AU found that the alleged hazard

could be characterized a.s a “heat balance equation” consisting of four components: (1)

environmental heat; (2) metabolic heat; (3) dissipation of heat, and (4) an individual level

of excessive heat.

The AU found that the Secretary failed to establish that an excessive-heat hazard

existed at the AldHdge jobsite du.e to a lack of evidence proving that the environmental

heat (weather) plus metabolic heat (generated by the decedents activities) minus dissipation

‘° Secretaty of Labor. Compkinant v. Aidridge Eke.. Inc. Respvndcnt 26 0.8.14. Cas. (BNA) ¶ 1440

(O,S.H.R.C.A.L.J. Dec. 2.2016)

“U.

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of heat (from sweating and breaks) created a hazard above the “lowest” caution zone (for

temperatures 91°F orbelow) of the 05114 guidance heat-index precaution. chart)2

As to the fourth component of the alleged heat hazard, the Aldridge AU

considered the fact that the decedent’s death was caused by heat stroke with a contributing

factor of obesity’. Obesity. the record showed, was a physical condition affecting a

worker’s generation of heat and capacity’ to dissipate heat. The AU found that because the

Secretary attempted to establish, the existence of a hazard with components over which an

employer has no power to control — Le. — an employee’s physiology — that the Secretary’s

description of the hazard failed to meet the criteria of section 5(aXI), which requires that

a hazard be defined, in a way that identifies conditions or practices over which the employer

can reasonably be expected to control. This attempt to define an “excessive heat hazard”

in pafl by an individual employee’s physiological condition, the Alt/ridge AU held, was

against Commission precedent.

c, In the Aldricfre Electric case. which should be followed here, no

“excessive-heat hazard” was found to exist at worksite where

employees were exposed. to essentially identical environmental

temperatures over an essentially identical amount of time as on the

Sturgill jobsite.

The Aidridge decision shows that the AU abused her discretion in. finding that the

Secretary provcd that a hazard existed. at the Sturgil.1 jobsite on August 1, 2012, where

employees wcre exposed to cssentially identical environmental temperatures over an

The ALl first considered whether the evidence warranted increasing the heat indec of 85°F above the

“caution” zone on OSHA’s heat indec caution chart, and found that it shou.]d not as the Secretaty had failed t

provide evidence of the amount or duration of direct sunlight, wind, or shade present at the decedent’s actual

worksite during the tune that he was actual/v working.’2 The AU next considered whether the Secretary proved

that the metabolic heat created by the decedent’s physical exertion, minus the decedent’s dissipation of heat through sweating and resting, could have resulted in “excessive-heat” for the decedent when combined with

the 55°F best index. Noting that one expert Found the level of exertion was “medium.” one expc’I found it was

“moderate to heavy.” worka testimony ranged from “it was all east to me” 1:0 it was “eight hours of aerohicie,” and 081-IA guidance did not provide an objective means for calculating how much physical exertion it would

take to hump up the heat-index caution level chart from one level to the next, the ALl found insufficient

evidence to establish the decedent’s level of metaboiic hcat was “excessive.”

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essentially identical amount of time as employees in Alt/ridge.13 Just as in Air/ridge, the

heat hazard alleged by the Secretary in Siurgill was also defined in part by components

over which Sturgill had no power to control — Mt’s age and health condition. This fact is

evident by the AU’s description of the three factors considered by her in f.nding that a

hazard existed at the Sturgilljobsite:

Eowmon Brown confirmed that ii gcinilyha4let

(CX-13, pc). Because it was white mel. be believed it was about ten degrees hotter. lIlt had

been a dark mot it would “itallyhe hot.” (CX-13. p. 9). Futaher, the work on the mafvots

i*Y*Iflv &...Lik ad til.......,, - tearing off mofing maletinla, n.tting them down, mid then

tossirm theta over a parapet well, into a dump truck on the gromid. Additionally, the Sccmtary’s

expert. Dr. Theodore Yet, confinned that the conditions on the roof that day wctt hazaidnut.

Dr. Yee stated thatd th .ifl&fr4áfl.d. dthtthIk*ahe heat-related

exposure risk ranged 1mm that of bent nhauttion for a yamgcr person tip to heat atroke For an

older pence. (Tr. 155. 157-59: CX-4. p. 3). 1 find that the wo*in conditions on the PNC’

roofing pmiect. on August t. 2012. &d1nicntsheqs1dgtslami*v*eat.7.

As demonstrated in pages 13-21 of the Respondent’s Opening Brief on Review,

the Secretary in Sturgill failed to provide sufficient objective evidence proving that M.R.

was exposed. to an excessively high level of environmental. or metabolic heat. Although

the conditions in Sturgill had never before been recognized by the Commission as creating

an “excessive-heat hazard,” the AU iionetheless found that a hazard existed due 1:0 the

physical condition of a single employee. Because the Sturgill hazard was not defined by

“conditions or practices over which the employer can reasonably be expected. to exercise

control.”14 the AU abused her discretion in finding that it could be used to sustain a general

duty clause violation.

2 Compare Aidridge eotdftions described. supra at roomote 10 to the fact that when MR. began working the

temperature wa5 72°F with S4% humidity. Approximately Pour(S) hours later, MR. became iLl and collapsed

on the roo:rat 11:51 am. At the time that he coiiapsed, the temperature was 83°F with 51% humidity and the

heat index was 84°F. ‘

Nelson Tree Servs., Inc v, Occupational Sqfety & healTh Review Commn. 60 F.3d 1207, 1209 (6th Cir.

1995).

8
16:55:15 05—14—2018 15

d. An employee’s health and ae are not “recognized” as hazardous workplace conditions in the roofing industry, nor are they conditions which safety expefls familiar with the mofing industry would, take into account in prescribinworkylace safety prozrams and policies.

Liability under the general duty clause is limited to dangers actually or

constructively “recognized” at the time of the violation. “Establishing that a hazard was

recognized requires proof that the employer had actual knowledge that the condition was

hazardous or proof that the condition is generally known to be hazardous in the

industry,.. Whether or not a hazard was recognized constitutes a matter of objective

determination.”5 The standard of “recognition” centers on “the common knowledge of

safety experts who are familiar with the circumstances of the industry or activity in

question.”T6 A “recognized hazard” is a practice or process by which a job is being

performed. and over which the employer has control as opposed to a freakish accident or

utterly implausible occurrence of circumstances.17

As showii above, the hazard alleged to have existed at 1:be Sturgill jobsite was a

“heat-related illness hazard” defined in part by the physical condition and age of the

affected worker. However, in analyzing the second prong of the Secretary’s case, the AU

incorrectly applied an oversimplified. version of the hazard, finding that Sturgill and the

roofing industry recognized “heat as a hazard” rather than the “heat-related illness hazard”

actually alleged. By evaluating whether there was “recognition” ofthe wrong hazard, what

the AU failed to consider and what the Secretan’ failed to establish is whether the actual

conditions present at the Sturgi.ll.jobsite (environmenta.I heat, physical exertion, and. M.R.’s

individual physical condition) were known to be hazardous, and therefore “recognized.”

TI (emphasis added, internal citations omitted) KeY’.’ Springfield Tire co. v. Dono’an, 729 F.2d 317. 321 (5th

Cr. 1984.) citing Georgia Electric Co. v. Marshall, 595 F.2d at 321. ‘ Holland Realty & Co,st. Co., inc v, Occupational Safety and ffeahh Review CommissIon, 489 F.2d 1257,

1265, n 32,, 0.S.H. Cas. (BNA) 1422 (D.C. Cir. 1973).

“Arcadthn Corp.. 17 BNA OSHA 1345. 1348 (No. 93-3270 1995).

9
I6:55:15O—14—2OI3 16

While the ALl correctly interprets NRCA’s toolbox talks and pocket safety guide

on heat-illness prevention as showing that th.e roofing industry recognized heat a.s a

potential hazard, she abused her discretion in intimating that the NRCA safety guidance

materials demonstrated industiy recognition of the specific hazard alleged in Sun-gill.

NRCA safety publications are written, to provide general guidance to increase workplace

safety. In developing safety guidelines for the industry, it is impossible to account for

physical paiticularities of individual employees. By finding th..e second prong of the

Secretary’s case was established, the AU miseharacterized the cited NRCA materials as

recognizing that even when the heat index is in the lowest “caution” level on the heat index

chart cited in OSHA guidance, that a heat hazard may nonetheless exist because of an

employee’s poor health or age. It further mischaracterizes NRCA’s materials as

establishing that th.e roofing industry recognizes that temperatures in the 70’s and 80’s pose

a heat-hazard to workers. To the contrary, the evidence here shows that NRCA’s toolbox

talk on Weather-Personal [njuly’8 recommends that only when temperatures “hover in the

90’s and the 1.00’s,” that measures to prevent heat-illness be implemented..

A hazard may also be found to be “recognized” if the Secretary’ can show that the

employer has actual knowledge that a condition is hazardous,19 Nonetheless, even if a

roofing confractor such as Sftrgill had known that a 60 year old employee had a congenital

heart defect or hyperthyroidism like MR..2° it does not automatically establish knowledge

that these conditions created a sufficiently serious heat-related illness hazard likely to cause

death or serious injuiy Disabilities are not one-size-fits-all with regards to the types and

degree of timitations they impose. Not all persons with congenital heart defects are equally

sensitive to heat and physical exertion. Nor are all persons over the age of 60 equally

Sec C)(-Ifl ‘

St Joc Minerals Corp. v. Occupational Sarety and Fleakh Revjcw Con,’n, 647 F.2d 840, 845 n.7. 9 aST-{.

Cas. (BNA) 1646, 1981 0,8.1± Dec. (CCH) P25376 (8th dr. 1981). 20 Tr. 97-99

10
16:55:15 05—14--2018 17

sensitive to heat and physical exertion. Such generalizations are exactly the types of

assumptions that the Americans with Disabilities Act specifically prohibits an employer

froni using as the basis of any type of employment dccision.21 Absent a showing that an

employer has actual knowledge that a certain employee is hypersensitive to heat,

“recognition” of a heat-related. illness hazard defined in part the individual employee’s

physiology cannot be established to have existed at the Sturgilljobsite on August 1,2012.

e. Th.e hazard alleged in..5turill is unconstitutionally vague as it is not defined in terms which would have given Sturgill fair notice of the

violative conditions it was supposed to rid the worllace of.

OSHA’s authority to prosecute employers under the general duty clause i.s

mitigated by the constitutional constraints built into the Secretary’s threshold burden of

establishing each element of his prima fade case by a. preponderance of the evidence.

Proof of employer “recognition” and “knowledge” of the violative condition alleged in a

general duty citation are not oniy stand alone elements that the Secretary must establish,

but are also repeatedly factored into each element ofthe Secretary’s initial burden of proof

so as to ensure employers’ constitutional rights to fair notice and freedom from ex-post

facto prosecution of laws are protected.22 Prior courts which have rejected the assertion.

that the OSH Act’s general duty clause is unconstitutionally vague rely on the fact that to

prove a violation, the Secretary must establish that a reasonably prudent employer in the

industry was on notice “that the proposed method of abatement was required under the job

conditions where the citation was issued.” Fair notice requires that the challenged statute

2] See 42 U.S.C. § 12112(a) and 29 C.F.R, §1630.4(a)(lXii). (iv). (vii), The ADAAA mandates that’liflo covered entity shall discriminate againsL a qualified individual with a disability because ofthe disahil4 of such individual in rcard to hiring, upgrading. demotion. transfer, job assignnlents job classifications.

organintional stwcturcs, posil.ion descriptions, liccs of progression. seniority lists, job training, and other

tenus, conditions and privi.Icges of employment. Id. 22 United States Constitution, Article 9, clause 3.

“Donovan tt Revel ioggin,gCo.. 645 F.2d 822. 831 (9th Cir. 1981)

11
I 1e:5:1O—14—2O1I I II I

or agency action “give the person of ordinary intelligence a reasonable opportunity to know

what is prohibited, so that he may act accordingly.”24

The Supreme Court has held that in penalty cases, an agency’s interpretation of an

ambiguous rule should not be given substantial deference by the court if the rule did not

place the alleged violator on notice that the conduct at issue constituted a violation of a

rule.25 As a result of the inconsistent way in which an “excessive-heat” hazard has been

defined in guidance and geTleral duty citations previously issued by OSHA, as well as by

the Secretary and ALJs in prior excessive-heat hazard cases, a mofi.n.g connctor such as

Sturgill cannot be foun.d to have had fair notice of its obligations to free the workplace

from an alleged “excessive-heat hazard” or “heat-related illness hazard” which is defined

in part by an individual employee’s medical conditions and age.

Moreover, significant confusion arises from the fact that the citation issued to

Sturgill, like prior heat-hazard cases, initially identified the hazard as “excessive-heat,”

while the hazard applied in the AU’s decision identified the hazard a.s a “heat-related

illness hazard.” This distinction is an important one, as the former defines the hazard in

terms of objective conditions (weather and activity level), while the latter defines the

hazard in terms of the accident (illness or death) and uses the occurrence of the injury to

establish that a hazard must have therefore existed. However, it is exactly this type of ex

post facto prosecution that the general duly clause’s “notice” provision was designed to

protect.26 Due to the absence of specific standards which place an employer on notice of

24 Qrrqyncdv. City ofRocigbrd, 405 U.S. 104. 108 (1972). see also Papachristou v, City of.faclcvorzville. 405

US 156. 162, (1972). 2 Christopher v SrnithKline Beechm Corp., 567 U.S. 142, 156 & n.l5 (2012) (citing favorably to the Fifth

Circuit’s Pair warning teqctircmcnt from Diamond Roofing Co.. Inc. v. Occupational Safely & 1’IeaJth Review

Commit. 528 F.Zd 645,649(5th Cir. 1976) (where a monelan’ penalfr may be assessed against a py who

violates a statute or regulation, a regulated pany must be giveil fair warning ofthe conduct that the nile prohibits

or requires.).

36Scction 658 of the 05K Act which provides that an cmployer charged under the general duty clause must be

given notice in the form of a cil:ation w.[i ich “shall be in writing and sha.l.[ describe with particularity the nature

of the violation ,..(and) shall fix a reasonable time rot the abatement of the violation See e.g.. Whirlpool

Corp. v. Occupasional Safrty & Health Review Comm’n. 645 F,2d 1096. 1098 (D.C. Cir. 1981.). See also Cape

Vineyard Division qfN&w Bedford Ga.c & Edison Light Co. OSKRC. 512 F.2d 1148. 1150(1st Cit. 1975).

12
I 1e:n:15o—14—zo1s I 1’ I

xvhat conditions it is supposed to rid the workplace of. it is paramount to the

constitutionality of the general duty clause that the alleged hazard be defined cjn a way that

gives the employer a broad view of its obligations and identifies practices over which ii:

can reasonably be expected to exercise control,”” so that an employer has the opportunity

to prevent the accident in the first place. That is why courts have held that the general duly

clause only imposes a duty upon employers to eliminate “preventable hazards.

Unpreventahic hazards. - were not intended to be recognized. under the elause.’2

“it is well-established that it is the hazard, not the specific incident that resulted. in

injuiw that is the relevant consideration in determining the existence of a recognized

hazard.”29 in the watershed gcneral duty clause case of National Really and Construction,

the D.C. Circuit Court of Appeals held that:

“To establish a violation of the general duly clause, hazardous conduct

need not actually have occnrred, for a safely program’s feasibly

curable inadequacies may sometimes be demonstrated before

employees have acted dangerously. At the same time, however, actual

occurrence of hazardous conduct is not, by itself, sufficient evidence of a

violation, even when the conduct has led to injury.”30

The purpose ofthe OSH Act is to prevent occupational injuries and illnesses before

they occur. However, an employer can only prevent hazards which it “recognizes” and has

prior notice about, and which are within its ability to prevent. An employee’s internal.

physiology does not qualtft as the type of hazard contemplated by the general duty clause.

It is evident that in Sturgill that OSHA incorrectly used. the incident as the basis for alleging

a hazard must have therefore existed. Consider this: had an OSHA inspector arrived at the

2TNeLcon Tree .Yervs, Inc. v. Occupational Safe’ & Health Review Comn?n, 60 F.3d 1207, 1209 (6th Cit.

1995).

Vauonal Realty, supra. at t265—6. Accord, Whirlpool Corp. v. Occupational Safety and Wealth Review

Commission, C.A.D.C.l981, 645 F.2d 1096, 207 cs. App. D.C. 171. (general duty clause does not impose

strict liabilil on employers but instead limits their liability to preventable hazards).

(intcm& citations omitted) Crowley Am. Thansp,, Inc., IS 0.5K. Cas.(BNAfl 1ssa(O.S.fl.RC,A,L.J.

July 29. 1999) cIting Kelly Springfield lire Co., 10 RNA OSFIC 1970 (Mo. 78-4555. 1982), affd 729 F.2d

317 (5th Cit. 1984% ‘° (emphasis added) Nat’l Real& & Con.ct. Ca v, Occupational Safèo’ & Wealth Review Comnr’n. 489 rid

1257. 1267 (D.C. Cir. 1973).

13
i5:55:505420S I 20 I

jobsite at 10:53 &m. on August 1., 201.2 to conduct a. general inspection, less than an hour

before M.R. collapsed, would he or she have issued Sturgill a citation for exposing

employees to excessive heat i.n violation of the general du’ clause? No NOAA. heatadvisory had been issued for that day. The OSHA inspector, like evesyorie else, would

experience that the wet-bulb globe 1:emperature was 71°F. There were gallons of ice water

on the roof and rooftop AC units providing jets of cool air. The inspector may have even

seen a few workers taking a break in the shaded outdoor picnic area or in the airconditioned break room inside. At that time, an OSHA inspector would have seen that M.R

was sweating but otherwise looked line, and. M.R. would have confirmed the same if

asked.3’ Under these circumstances, would the OSHA inspector have issued Sturgill a

section 5 (a)(j) citation for exposing employees to the hazard of excessive-heat? If the

answer is “no.” then the citation against Sturgill must be vacated.

“ Tr. 524-Z25

14
16:55:15 05—14—2018 21

II. AN EMPLOYER CANNOT BE FOUND TO HAV} “KNOWLEDGE” OF A HAZARI) CAUSED BY AN INDWfflUAL EMPLOYEE’S UNDERLYING HEALTH CONDITIONS OR AGE.

To sustain a general duty violation, the Secretaiy must prove that the employer had

actual or constructive knowledge that the allegedly hazardous condition existed at its

workplace?2 Constructive knowledge may be found if. through the exercise of reasonable

diligencc the employer should have known of a likelihood of the violative condition.

“Reasonable diligence involves several, factors, including an employer’s obligation lo

inspect the work area, to anticipatc hazards to which employees may be exposed, and to

take measures to prevent the occun-ence.”34

The conditions at the Sturgill jobsite on the morning of August 1, 2012 were not

such to put a. reasonably prudent employer on notice that an “excessive-heat hazard.”

existed. First. there is no evidence which established that Sturgill had “actual knowledge”

that MR. was exposed to excessive-heat hazard. In Aldridge?5 the AU rejected the

Secretary’s argument that the decedent’s sweating should havc signaled Aldridge that lie

was suffering from heat stroke when sweating is also normal sign that the body is

dissipating heat as it should, and that even first responders could reasonably interpret heat

illness signs differently. When the decedent stumbled, the Aldridge foreman told him to

take a break, and when he said he “couldn’t bend anymore,” Aldrid.ge began first aid

measures. Likewise, other than sweating,36 tvt.R. did not exhibit any symptoms of heatillness which would have put Sturgill on notice that an actual hazard existed, until he began

3229 U.S.C. 666(j).

Geity Oil Co. v. Occupational Sfeiy & Ifraith Review Comrn’n. 530 F.2d 1.143, 1145(5th Cir. 1976) (An

employer “cannot ho found guilty of a ‘serious’ violation untess it did not and could not ‘with the exercise of reasonable diligence,’ know ofthe prescncc of the violation.”). 34 Pride Oil Wells Senice, 15 RNA OSHC 1809. ix 14 (No. 87-692. I 992) Brand Scaffold Builders. Tho.. 19

BNA OSHC 1366 (No. OO-T331. 2000).

Secretary ofLabor, Compl&nantv. Aidridge Elec., Inc.. Respondent, 26 0.S.H. Cas. (RNAfl 1449

(O.S.RR.C,A.L.J. Dec. 2,2016). 36 Cx-13. p. 5

Is
16:55:15 05—14—2018 22

walking clumsily, at which time the Sturgill foreman made him take a break and guided

him. to the shade.3’

As for “constructive knowledge,” in Air/ridge, the AU held that even if the

Secretary had proven that an excessive-heat hazard existed, thai: the employers lack of

“constructive knowledge” of a hazard defined by an employee’s physical condition would

nonetheless defeat the Secretary’s ease. Specifically, the Air/ridge AU held that the

Secretary did not establish that Aldridge knew or should have known that environmental

and ambient temperature conditions in the lowest “caution” tone — when no heat advisory

had been issued — would nonetheless caLise excessive heat to the decedent. Likewise, ii]

Siurgill, no NOAA heat-advisory had been issued for August 1, 2012 and the weather was

in the lowest “caution” zone of the heat index chart used by OSHA in its heai:-iliness

prevention guidance ,38

n finding no constructive knowledge in Ak/ridge, the ALl also cited to the fact

that Aidridge had water, allowed for extra breaks, and checked on the decedent alter he

stumbled (i.e. - monitored him as the “new guy”) — to show that there was no reason that

.Aldridge should have known tha.t the decedent was at higher risk for heat illness that

exceeded its heat plan. Similarly, SmrgilI also had measures in place to prevent the

occurrence of heat-illness, which were communicated to MR.,39 including water, shaded

rest areas, and both scheduled aM discretionary breaks.4° Sturgill also implemented a de

facto acclimatization plan by assigning MR., as the newest worker on his first day, the

least strenuous job on the roof” and foreman Brown and other employees checked on him

P. 505, 513-14: CX-12, p.6 CX-5 at pg. 6 and 10

Tv. 498-499

Tv. 9.208-210.408,470, 4R0. 497.499, 505-509, 51 I5l2 dl Tv. 497-500. see a/so Tv. 520. (Question to Foreman Brown: And you did not 1080w how long it takes a

worker to acclimatize to the heat at that time? Answer by Forcma,n Brown: Vcl[, I did not know but at the Lime

I said Mr. -- I gave Mr. MR the easiest job on the roof. So basically what you’re saying, I already acc]imatized

--you know. I gave him -‘ I put him in a position where it was easy. Put him in a position where he had light

work to do. So that’s also ecplaining acclimatization.).

16
I6:55:15O—14—2Ol3 23

throughout the day.42 Accordingly, there is no reason that Sturgifi should have known that

Mit was at a higher risk for heat illness that exceeded the heat plan measures it had in

place, which were appropriate and in compliance with OSHA guidelines on a day when

temperatures were below 91 OF and the work was light. Moreover, the legal restrictions to

obtaining knowledge about an employee’s health risks which are imposed on employers

by the ADAAA is relevant to the Secretaiy’s burden in proving a general duty violation in

a case where the violative conditions which create the “hazard” include the physical

condition and age of an employee.

IlL AN EMPLOYER CANNOT CONDUCT A MEDICAL INQUIRY PROHIBITED BY THE AMERICANS WITH DISABILITIES ACT AS

AMENDED ON THE BASIS THAT IT IS NEEDED FOR AN

EMPLOYER TO COMPLY WITH THE OSH ACT’S GENERAL

DUTY CLAUSE.

The Americans with Disabilities Act of 1990 as Amended in 2008 (LCADAA.A)

prohibits employers from usin.g qualification standards, employment tests or other

selection criteria that screen out or tend to screen out an individual with a disabiliflc43 After

a conditional offer of employment is given to a prospective employee, an. em.. ployer is

allowed to require that employees undergo medical screening, so long as they’ require it for

all candidates.” If following a disability-related question or medical examination an

employer rejects a candidate, “the court will closely scrutinize whether the rejection was

based on the results ofthat question or examination. If the question or examination screens

out an individual because of a disability, the employer must demonstrate that the reason

for the rejection is job-retawd and consisfent with business necessity.”45 Importantly.

tTr. 504 ,ce, also Tr. 5)6

29 C.F.R. § 1630,10(a))

29 C.F.R. §1630.14(b) and EEOC Interpretive Guidance EO 29 C.F.R. § 1630,14(b).

ADA Enforcemefit Guidance: Preempl.oyment Disability-Kejated Questions and Medic xamination

October. 1995 (Also available in PDF fonnat)

17
16:55:1505—14—2018 24

however, an employer cannot conduct a medical inquity on the basis that it is needed for

an employer to comply with the OSH Act’s general duty clause46

Although the ADAAA does not completely bar employers from inquiring about a.n

employee’s health, it creates substantial legal roadblocks to obtaining such knowledge.

While the ADAAA’s rule on which medical inquiries are permissible is clear—it must be

job-related and consistent with business necessity — the rule is complicated to apply.47

Whether it is permissible for an employer to ask an employee certain questions about his

or her medical condition is a fact-specific inquiiy and depends on the particular

circumstances ofthe job.45

Moreover, a reasonably prudent roofing contractor would not know, without

consulting with an attorney. that in certain limited circumstances it is legally permissible

to ask an employee about his age or disability. To the extent that the ADAAA may permit

medical exams or disability inquiries in certain circumstances, it is nonetheless unfair to

hold an employer liable under the general duty’ clause for not making individualized risk

assessments of each employee on eveiy day as to whether that employee, based on his

physiological condition, may face a hazard to him in the workplace. An employer who

em on the side of caution by not probing further after asking an employee if he has

performed roofing work before, to which he responds “yes,” cannot be fou.n.d to have been

‘5See discussion of iWiller i Whirlpool Corp.. 807 F. Supp. 2d 684 (ND. Ohio 2011). infra.

‘ If a disability-related question or medical examination screens out an individual because of a disability, the

employer must demonstrate that the reason Uor the rejection is job-related and consistent with business

nccessity.” 4124 Enforcement Guidance: PreJJTpThyment Disgiity’Related Qurijions and Medicci

Examinations (October, 1995). Workplace safety is a. well-recognized job-related business necessity; however,

the standard ofshowing required to pmvc that a perso&s disability poses a threat to workplace safety is “quite

hi2h.” CrEpe v. Ci ofSan Josa 261 F.3d 877, 890 (9th Cr. 2001). Employers may only conduct a medical

exam or disability-related inquiry’ that is “no broader or more intrusive than necessary” and which is a

“reasonably effective method” of achieving a business necessity. Conrov v N.Y State Dept QJCOJr. Sen’s..

333 E.3d 88. 97—98 (2d Cii. 2003).

In order to comply with the ADAAA, medical examinations of existing and prospective employees must be

“linlitcd to an evaluation of the employee’s condition only to thc cxtent ncccssmy under the circumstances to

establish the employee’s fitness for the work at issue.” flee v. Centre Area Transp. AuM.. 247 F,3d 506. 515

(3d Cir. 2001). Pan of this showing requires the employer 1:0 demonstrate that the safety-based quaLification

standard is necessary and related to “the specific skills and physical requirements ofthc sought-after posWonY

Belkv. Southwestern Bell Tel. Co.. 194 P.3d 946, 951 (8th Cir. 1999).

1$
16:55:1505—14—2013 25

unsatisfactorily diligent in its efforts to uncover a hazardous condition at its jobsite.

Therefore, absent a showing that a supen’isoly employee had actual knowledge about

MR’s underlying conditions, there can be no finding that Sturgill had “constructive”

knowledge ofthe hazard created by Mit’s underlying health conditions and age.

Due to the fact that the broad statutory text ofthe OSII Acts general duty clause49

does not specifically require an employer to conduct employee medical screenings or

inquire about disabilities, federal courts have held that compliance with the OSH Act’s

general duty clause cannot be used as justification for conducting medical inquiries which

screen out an individual because of a disability.50 This nile was best articulated in the 2011

case of Miller v. Whirlpool, an ADA disability discrimination action brought in federal

district court for the Northern District of Ohio.51

In Whirlpool, a former employee challenged the legality of a medical certification.

policy implemented by WhirLpool following a seriou.s workplace accident and resulting

OSHA citation.52 The accident involved a powered industriaL vehicle that employees drove

throughout the Whirlpool facility.5 As part of Whirlpool’s new medical, certification

policy, employees who drove these vehicles were required to complete a 34-question

medical form which asked them to list all prior illnesses, injuries or past accidcni:s.54 The

court rejected Whirlpool’s argument that its disability-questionnaire was necessitated by

its compliance obligations under the OSH Act’s general duty clause.55 Even though

Whirlpool had presented evidence that OSHA had. approved, ofthe questionnaire, the court

did not allow the employer to proceed with the inquiry, pointing out that OSHA’s approval

29 U.S.C. * 654(a)() ° See e.g. ,Willerv. Whtrlpo& Corp.. 807 F. Supp. 2d 684. 688—89 (ND. Ohio 2011); Rohr v. Sqlt River

Project Agnc. Imp. and Power Disj, 555 F.3d 850(9th Cir.2009); EEOCE Murray. Inc.. 173 F.Supp.2d

1053. 102 (M.D.Tenn.2001).

Miller v Wh&Ipool Corp.. 807 P. Supp, 28 684 (ND. Ohio 2011). ‘2 Id. at 685 52 Jd Sd Id,

M at 688-89.

19
I t:55:15 O5—14l1I I I

of the disability-inquiiy was not the same as requiring it. Finding that the text of the

general duly clause57 did not expressly require disability-related inquiries in order to

provide a place of employment free from hazards, the court rejected the use of an

employer’s general duty clause compliance obligations under the OSH Act as a

defense to conducting a medical inquiry that violates the ADAAA?

Accordingly, due 1:0 ADAAA limitations on an employer’s ability to obtain and

use information about their employees’ disabilities, coupled with imprecise legal duties

placed upon on employers by the OST-T Act’s vague general duty clause, the Secretary

cannot hold an employer liable for falling to discover the existence of a hazard where the

definition varies on a person-by-person basis, and therefore, constructive knowledge

cannot be established.

561d at 689. ‘ 29 USC. § 654(aXI)

iuilier t Whirlpool Corp.. 807 F. Supp 2d 684, 688—59 (ND. Ohio 201 1); Rohr v, Sail River Project

Agric. Imp, ond Power hist,, 555 F.3d 850 (9th Cir.2009),

20
I6:55:15O—14—2Ol3 27

IV. TUE GENERAL DUTY CLAUSE DOES NOT REQUERE AN EMPLOYER TO CUSTOM-TAILOR HEAT-ILLNESS PREVENTION MEASURES FOR EACH EMPLOYEE BASED ON THEm AGE AND

HEALTH AS SUCH MEASURES ARE NOT A FEASIELE OR EFFECTWE MEANS OF REDUCING THE HAZARD OF EXCESSiVE-NEAT.

To prove that an employer failed to render its workplace “free” of a recognized

hazard in violation of tile genera.l duty clause, the Secretary is required. to “specify the

particular steps a cited employer should have taken to avoid citation, and to demonstrate

the feasibility an.d likely utility ofthose measures.”9 This requires the Secretary to identify

“conditions or practices over which the employer can reasonably be expected to exercise

control in terms of a preventable consequence ofthe work operation, not the absence of an

abatement method.”60 To be feasible, the proposed method must be recognized by

“knowledgeable persons fanjiliar with the industry as necessary and valuable steps for a

sound safety program in the particular circumstances existing at the worksite.áT A safety

measure is “necessary and valuable” if it will “materially reduce” the likelihood of the

accident or incident occurring’2 or eliminate the hazard altogether.65 Ifthe Secretary alleges

thai: an employer’s existing safety measures were inadequate, the Secretary must “specify

the additional steps a cited employer should have taken” to avoid a general duty clause

citati.onM and provid.e “evidence that persons familiar with the employer’s industry would

have prescribed such [additional] steps under similar circumstances.”65

According to th.e AU, in order to have adcquately addressed the alleged. “heatrelated illness hazard” which existed at the Sturgill jobsite on August 1, 2012, Sturgill

(emphasis added) National Realty, Supra, at 1268. See also Babcock & Wilcox Co. t QSHRC, 622 F.2d

1160, 1164 (3d Cit. I 980): Empire -Dawn it Sleet, 579 F.2d al 384.

(internal citing referances omirted Otis Clevator Co.. 2007 OSHRC LEXIS 77. %. 2005 051-ID CCI-! P32.

920 (No. 03-1344)

National Realty. supra, at 1266. h2 Id at 1267.

“Roberts Sand Co.. LLLP v. Sec ‘y ofLabor, 568 F. App’x 758, 759 (I. Ith Cir. 2014) (internaT citations onittcd) Jewel! Painting ma Rcspondent 16 O.S.H. Cas. (BNA) ¶ 2110

(O.S.H.R.C.A,L.3. Sept. 12. 1994) citing Mitt. Realty and Consir, Co. Inc.. 489 F.2d 1257. 1268

(D.C.Cir. 1973). Accord Petron Corp.. 12 BNA OSF{C 1833. 1836. 1986-87 CCW 051-0 ¶ 27.605 (No. 82-

21
16:55:15 05—14—2018 28

should have, among other things, implemented a formalized work-rest regimen based on

the hourl.y weather and “other factors such as age and acclimatization”6 and. an

acclimatization program which, based on the individual employee’s recent work

experience, provides a plan for allowing the employee to build-up a physical tolerance to

working in the heatP’

To implement these additional abatement measures, which the AU found were

necessary under the circumstances at the Sturgill jöbsite, would mean that contractors

would have to have all employees undergo a pre-employment medical screening, and then,

develop an individual, heat-illness prevention program for each employee — before they

ever begin working — which based on their height, weight, age, and medical conditions,

includes a detcrmination of what their threshold tolerance is for working in yawing

temperatures at varying levels of physical exertion. Then, after these individual prevention

programs are developed, the contractor would then have to implement and enforce each

employee’s prevention program in the field and monitor each worker to ensure their

compliance, which would require keeping track of the activities being perfonned, how

strenuous they are, how long they are being performed, and in what temperatures. Because

feasibility includes “lit and “practicality,” the interference with work. inconvenience.

manpower and. resources needed. to implement individualized abatement measures for

every employee would clearly rise to the level of infeasibility.

Moreover, due to the multiple variables which come into play and influence how

th.e combination of environmental heat and physica.l exertion affect an individual with a.

certain medical condition, no one-size-fits-all rule can be made for predicting how well an

388. 1986); Ccrro Metal Prod. Dlv, Mormon Group, Fnc.. 12 SNA OSHC 1821. 1822. 1986-87 CCH OSHD

27.579 (Nc. 78-5159. 1986).

Jewel! Painting. Inc. Respondent. 16 O.5J4. Cas. (BNA) ¶ 2110 (O.S.H.R.C.A,L.J. Sept. 12, 1994) ciling Pc/ron, 12 UNA at 1836. Cerro, 12 NA at 1822-23.

Stu’çill AU Dcc. p. 17 ‘

Sturgill AU Dec. p. 17

22
16:55:15 05—14—2018 29

individual with a certain disability wilT tolerate varying conditions. Factors such as how

much sleep they got the night before, how wel.l hydrated they were when they arrive on.

site, what they ate that morning, what other medical conditions they have going on —

possibly known or unknown, all come into play. Consequently, even if an employer had.

the resources to develop an individua.I heat-illness prevention program for each employee

— the likely utility and effectiveness ofsuch a program can quickly become obsolete.

Physical ability tests, which are permitted by the ADAAA.,65 would. not provide an

employer with the necessary information needed to materially reduce the risk of heatillness created by an employee’s age or health. The issue in Sturgill is not whether MR.

was able to stand for long periods of time or be able to push materials over the side of a

waist-high wall; clearly he could. Rather, the issue is for how long and under what

conditions could he do so without it being hazardous to his health.

Tn the context ofthe ADAAA, the reasonableness, feasibility, and utility ofmedical

pre-screening of workers (and therefore, whether such an inquiry is illegal or not) depends

on the degree of intrusiveness of the requirements. The ADAAA’s job-related business

necessity exception only permits employers to conduct a medical exam or disability-relal:ed

inquin- that is “no broader or more intrusive than necessary” and which is a “reasonably

effective method” of achieving a. business necessityP9 Such inquiries must he “limited to

an evaluation of the employee’s condition onLy to the extent necessary under the

circumstances to establish the employee’s fitness for the work at issue.”° Most

29 CRR 1630.14(a). “Employers are penniffcd to niake prc-cmploment inquiries into the abiliw of an

applicant to perform job-rejated. functions. This inquiry must he narrowly tailored. The employer may describe

or demonstrate the job function” and ask irthe employee is able to perform ii:. Id. ‘

Canny v. N.Y. Stale Dept OfCar,, Sen’s, 333 F.3d 88. 97—98 (2d Cir. 2003). See also See ADA Enforcement

Ciuidancc; Preemployment Disability-Rctated Questions and Medical Examinations October, 1995 (11

following a disability-related question or medical examination an employer rejects an applicant Or changes an

existing emplove&s terms. conditions or privileges of employment. “the court will closely scrutinize whether

the rejection was based on the results of that question or examination, ifthe question or examination screens

out an Individual because of a disability, the employer must demonstrate that the reason for the rejection

is “job-relattd and consistent with business necessity.”) ‘° lice v. Centre Area Xrarisp. Auth.. 247 F.3d 506. 515 (3d Cir. 2001).

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importantly. an employer “is not permitted to deny an employment opportunity to an

individual, with a disability merely because of a slightly increased risk. The risk can only

be considered when it poses a significant risk, i.e., high probability, of substantial, harm; a

speculative or remote risk is insufficient.”7’ Thus, in order to protect against unnecessary

over exclusion of persons with disabilities, for a screening procedure to be legally

permissible under the job-related business necessity exception, a doctor would need to be

able to ascertain, with reasonable certainty, the point at which exposure to heat will pose a

substantial risk ofsignificant harm to th.e individual.

A person with a disability under the ADAAA, is, by definition, an individual with

a physiological disorder or impairment which negatively effects one or more of their body

systems outside of a “normal” nnge.72 The nervous system. endocrine system

(hypothalamus, thyroid and metabolism) cardiovascular/circulatory system, and

integumentaty system (skin and. hair), are alL systems involved in thennoregulation of body

temperature5 Obesity, chronic illnesses, and persons taking certain medications (e.g..

blood pressure medications, diuretics, or water pills) can increase the risk of heat-illness.74

Accordingly, a medical examination or questionnaire designed to identift employees with

health conditions aggravated by heat or which prevents them from being able to

thermoregulate “normally” would implicate an incredibly wide swath of people and

conditions. Moreover, in most cases. the point at which an individual’s disability will pose

a “significani: risk” of “substantial harm” to them in th.e context of heat-stress is difficult to

predict with any degree of certainty due to other importanIt variables that come into play

after the employee leaves the doctor’s office.

EEOC Interpretive Gui&ncc to 29 C.F.R. 1630.2(r) citing Senate ReporE at 27; Hotise Report Labor Report

t 56—57; House Judiciaiy Report at 45. 12 EEOC Interpretive Guidance to C.F.R. 163O.2(h) n https://opencunieulum.org’s3asmomcostasis.a.nd-rcgulatiori-jn-the-human.hodv/ 71 CX-9 pg. 7

24
lø:55:15O—I4—2OlS 31

There is also a lack of objective evidence showing that pre-employ-ment medical

screening would provide any noticeable impact on reducing the incidence of occupational

heat-illness.” To the contrary, studies have shown that such screenings have little actual

affect in preventing future health, related occupational risks]6 In fact, the most likely

outcome of such screening is the unnecessary over-exclusion of individuals with

disabilities.”

Wan employer’s screening procedures are overhroad orgo too far, they will expose

the employer to liability under the ADA- Medical pre-screening which is designed to

uncover conditions which might make an individual more vulnerable to heat and physical

exertion may easily be viewed, as overbroa.d and not reasonably tailored to a job-related

business necessity- Moreover, compliance with the 051-1 Act’s general duty clause is not

a defense to a discrimination cl.aim.S Due to the large number of physiological systems

involved in regulating body heal; such screenings would. require individuals to disclose a

great amount of detail about protected disabilities, without the employer necessarily being

able to prove that the means justiFj the end.s

The abatement measures suggested by the AU and Secretary were not reasonably

necessary under the conditions presenl: at the Sturgill jobsite on August 1,2012, which did

not pose a significant risk of death or serious injury to any of the other employees on the

roof other than. ..R. As it pertains to heat-illness prevention, abatement methods which

require individual medical screenings provide relatively low utility in light of the high

expeuse, unreliable results, and. high likelihood of unnecessarily screening out of

individuals with disabilities — and therefore, are infeasible.

‘ httpi/www.who.inVbufletinivolumeslR7/7/08-052605!en/ 76 Id.

http;/www.whoint’buIktinJvoliimcs/87/7/O8-Q526O5/cn/

See e.g. Miller v. Whirlpool Corp., at 688—89 (N0. Ohio 2011) supra (compliance with the OS Act’s general duty clause. cannot he used as justi:flcation tbr medical inquiries which screen out an individu& because

of a dis3hititv).

25
16:55:1505—14—2018 32

V. THE GENERAL DUTY CLAUSE SHOULD NOT BE EXPANDED TO

REQUIRE EMPLOYERS TO PERFORM fl1)VUALIZED

EMPLOYEE ASSESSMENTS ON EVERY JOB EVERY DAY.

A. central issue implicated in the findings which formed the basis of the AU’s

Sffirgifl decision arises from the similar, yet competing mandates of two federal acts

enacted by Congress to protect and enhance tile employment rights of American workers.

The OSH Act, which was created to enhance workplace health and safety for employees,

accomplishes its directive by requiring that employers implement rules and restrictions

designed to reduce the dangers posed by conditions and practices in the workplace.

Similarly, the Americans with Disabilities Act as Amended was created to enhance work

conditions and opportunities for Americans with disabilities. The AD.AAA’s directive,

however, is achieved by requiring that employers remove barriers in the workplace in order

to expand opportunities and increase accessibility.

Review of the underlying action presents an opportunity for the Commission to

draw a bright line between where an employer’s obligation to ensure worker safety

pursuant to the OSH Act ends, and an employee’s responsibility — and choice — to

determine whether they require an individualized workplace accommodation for their

disability arises As demonstrated above, the law requires that this line be drawn at the

point where the OSH Act’s general duty clause is not interpreted to require an employer to

perform a risk-assessment for each employee in order to proactivel.y implem.. ent customized

work place controls designed to address the physiological idiosyncrasies inherent between

people of different ages and health status.

OSHA was never designed, nor could it have been, to eliminate all occupational.

accidents. Rather, it is designed to require a good faith effort to balance the need ofworkers

to have a safe and healthy work environment against the requirement of industry to thnction

26
16:55:1505—14—2013 33

without undue interference*’9 The general duty clause does not impose strict liability on

employers; rather., it only imposes a duty on employers capable of achievement.80 In

Industrial Union Department v. American Petroleum Institute, the Supreme Court struck

down OSHA’s policy which set carcinogen exposure limits to the lowest feasible level.

finding that a nile which is designed to safeguard relatively few sensitive workers as not

being reasonably necessary or appmpriatc, The Court held that OSHA’s rulemaking

authority is limited. to rules which are reasonably necessaly or appropriate to remedy a

“significant” risk of “material” health impairment82 Insofar as standards promulgated by

OSHA designed to safeguard hypersensitive workers have been struck down as

unnecessary, it is unreasonable for an employer’s general duty obligations to be more

rigorous than those imposed by standards which have gone through the notice and comment

rulemaking process.

To find that the OSH Act requires an employer to perform a.n individual risk

assessment for each employee to detennine whether their health or age increases the

likelihood of a hazard springing into existence wou.l.d have the perverse effect of providing

employers with a legally sanctioned reason to disqualii hundreds of thousands of

individuals from job opportunities that they are qualified and able to perform under the

pretense that the employer is unable to provide them with a. hazard-free workplace as

7” Titanium Metals Corp. ofAm. v. tJse.’y, 579 F.2d 536, 543-44 (9th Cir. 19Th) (infernal citations omitted)

citing Lc5islative History of the occupational Safety and Health Act of 1970, Suhconimiftec on Labor o:[thc

Senate Committee on Labor and Public Welfare, 92nd Cong., I st Sess. (Comm. Print 1971.) at 435 (Remarks

of Senator Wiluiann). Quoted in Anning-Johnson Co. v. OSHRC. 516 F.2d 1081. 1088 (7th Cii. 1975).

Titanium Melds Corp. ofAm. v. Ucery. 579 F.2d 536, 543.44 (9th Cii. 1978). cIting to Srennan v. OSFIEC

(flendrbc d/b/a Msea T..umbcr Co.). 51] F.2d 1139. 1144(9th Cir, 1975) (holding that the employer’s duty under

the general duty clause “must be one which is Achievable.”) Accord, IVacional Realty. supra, at 1265-66

(Congrcss intended to require eliminai;ion only of preventable hazards.”).

Industrial Union Dep’ AFL-CIO 1’, American Petroleum hut/lute, 448 U.S. 607 (1980). 12 Industrial Union as 645 (“Expert testimony that a substance is pTOhably a human carcinogen—ither because

it has caused cancer in animals or because individuals have contracted cancer following extremely high

exposures—would justi. the conclusion that the substance poses some risk of serious bairn no matter how minute the exposure and no matter bow many experts testified that they regarded the risk as insigniflcant. That

conclusion would in turn justi& pervasive rcgulation limited only by l:he constraint ni reasibility. l:n light of the fsct that there are literally thousands of substances used in the workplace that have been identified

as carcinogens Or suspect carcinogens the Government’s theory would give OSHA power to impose

enormous costs that might produce little, if any, dketrnible benefit,”)

27
I 1e::11O1—14—2O1I I 14 I

required by the OSH Act’s genera.l duty clause. Not only does the ADAAA preclude an

employer from obtaining the type of information which would be needed in order to

develop an individual hazard-prevention policy for each employee, due to the variable

nature of heat-stress, the meri.l:s and actual. utility of such a. policy are low. Moreover.

depending on the size, resources, and. sophistication of the employer, the actual

implementation of individual hazard-prevention programs is completely unfeasible.

Importantly, finding that an employers’ obligations under OSH Act does not

require that an employer make a proactive effort to free the workplace from conditions

which are hazardous on an individual employee level does not mean that such employees

will he left urprotected. Rather., it is this level of individualization where the 0511 Act’s

general duty authority ends and the ADAAA’s reasonable accommodation mandate comes

in, which is specifically designed to ensure that reasonable accommodations are not unduly

burdensome to employers, whether that means financially or in terms of disruption to

operations.83 Moreover, the ADAAA allows for employers an.d employees to engage in an

interactive process to develop and determine exactly what type of accommodation is

needed based on that employee’s specific needs, rather than the employer unilaterally

imposing an abatement measure onto an employee on.. the basis that l:he general duty clause

requires them to do so, or else be fined. The employee will still be entitled to a workplace

accommodation if one is needed to allow them to safely perform their job, which

accomplishes th.e OSU Acts directive of ensuring employers provide a workplace free of

recognized. hazards.

42 U.s.c. § 1.21 12(b)(5)(A). (Onc of the main rights that the ADAAA affords a qualiflcd person wiLh a. disability is the right to a reasonable accommodation in thc workplace.” so long as it does not impose an

‘undue burdcK’ on the employer),

28
16:55:1505—14—2018 35

VI. CONCLUSION

The Au’s interpretation of the definition of “excessive heat-hazard” propounded

by the Sccretaiy in the citation issued to Sturgill is inconsistent with the opinions of past

courts who have addressed. the issue of “excessive-heat hazard” citations issued. under the

general duty clause. Prior to the hearing in thc Sturgill case, no court had never found an

excessive-heat hazard to exist where employecs had not been exposed to a temperature of

at least 95°E Moreover, no court had ever previously defined an “excessive heat hazard”

as bein.g characterized in part by an individual employee’s physiological condition.

Because the alleged hazard encompasses a component that an employer has no power to

control — i.e. — a physical condition that places a worker at a higher risk for heat illness

and because the alleged hazard is defined in a way never previously before found to be an.

OSH Act violation, the employer here did not have fair notice of the alleged violative

condition that would have prompted the employer to act accordingly The way in which

the ADAAA’s compliance obligations intersect the OSH Act’s genera.l duty clause

requirement precludes OSHA from penalizing an employer for failing to implement

abatement measures to address a hazard which exists as a result of individual employee’s

disability. Absent a. standard issued by OSHA which has gone thi-ough the notice and

comment rulemaking process. employers cannot screen employees (hr disabilities

aggravated by heat. Accordingly, the section 5(aXl) citation issued to Sturgill should

therefore be vacated due to the Secretaiys failure to establish by a preponderance of the

evidence that a general duty violation, as defined by the OSH Act an.d case law, existed in

this case

[SrGNATURE APPEARS ON FOLLOWING PAGE]

Miller Whirlpool Corp., O7 F. Supp. 2d 654, 688—89 (ND. Ohio 2011); Rohr v. Salt River Project Agnc.

Imp and Pqv.er Dist.. 555 l’.3d 850 (9th Cir.2009).

29
16:55:1505—14—2018 36

Respectfully submitted, this 14 day of May, 2018.

Stephei . Phillips, Esq.

(Georgia Bar No. 576850)

Erin P. Lis. Esq.

(Georgia Bar No. 171788)

RENDWCK, PHILLIPS, SALZMAN &

SIEGEL, P.C

230 Peachtree Sttet, Suite 2500

Atlanta, Georgia 30303

Telephone: (404) 522-1.410

Fax: (404) 522-9545

E-Mail: smphpsslaw.com

epl@hpsslaw.com

Counselfor Amicus Curiae National Roofing

Contraciars Association

30
16:55:1505—14—2018 37

CERTIFICATE OF SERVICE

This i.s to certi& that counsel of record in the foregoing matter has been served

with the attached document by depositing copies ofsame in the United States Mail in an

envelope with sufficient postage thereon addressed as follows:

Charles F. James, Counsel for Appellate Litigation

Heather R. Phillips, Counsel for Appellate Litigation

Scott Glabman, Senior Appellate Attorney

Office ofthe Solicitor

U.S. Department of Labor

Room S4004

200 Constitution Avenue. N.W.

Washington, D.C 20210

Robert I. Dunievey, Jr., Esq.

Taft Stettinius & Roll ister LLP

40 North. Main Street, Suite 1700

Dayton, Ohio 45423-1029

This ‘4’ dayofMay, 2018.

Stephe Phillips, Esq

(Georgia Bar No. 576850)

Eñn P. Lis, Esq.

(Georgia Bar No. 1 71788)

HENDRICK PHILLIPS, SALZMAN &

SIEGEL, P.C

230 Peachtree Street Suite 2500

Atlanta, Georgia 30303

Telephone: (404) 522-1.41.0

Fax: (404) 522-9545

E-Mail: smp@.hpsslawsom

epl@hpsslaweom

CrnmselforAmicus Curiae National Roofing

Contractors Association