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Posted By Bob Dunlevey of Taft Law, Thursday, March 14, 2019

In one of the most significant decisions in decades, rendered by OSHA's highest tribunal, a commercial roofing contractor was found not to have violated the General Duty Clause and training standards for its temporary employee who died following his collapse on a roof. The decision has far reaching implications for employers dealing with citations related to the General Duty Clause (GDC) - the “catch-all” provision that requires employers to provide a workplace free from known hazards that can be feasibly abated. In the 52-page decision overturning the trial Judge’s decision, there is something to assist every employer in successfully defending against OSHA citations – a must read decision for all safety professionals. It not only serves as important guidance on what employers should do to address heat stress and train employees but also it limits OSHA's recent attempts to foist ad hoc requirements on employers through GDC citations when no applicable standard exists. The case is A.H. Sturgill Roofing, Inc. v. Sec'y of Labor, OSHRC, No. 13-0224, 2/28/19. Sturgill was represented throughout the case by Bob Dunlevey of Taft Law.

Through this high profile case which started in 2013 and just ended in Washington, OSHA was in hopes of forcing each employer to have a very elaborate and burdensome heat stress program – a multi-faceted program almost impossible to carry out. It chose this case in an attempt to emphasize heat stress issues and broaden its expectations as to what an employer's heat stress program should be. See Bob Dunlevey's Legally Speaking article – “OSHA - HOT OVER HEAT STRESS” for a detailed analysis of heat stress programs and his comments about this case as trial attorney for the employer.

Some of the “take-aways” from this precedent setting decision are:

  • Risks inherent in the workplace are part of normal operations and by themselves should not imply automatically that they carry a significant risk of harm supporting a violation of the GDC - Congress never intended such.

  • Excessive heat is not in and of itself a recognized hazard.

  • Rest, water and shade remain the primary methods to address heat hazards.

  • Numerous feasible and effective abatement measures exist and all do not have to be used together.

  • OSHA's use of the National Weather Service heat index chart or the use of trade association training literature to prove a hazard is quite problematic and provides numerous defenses for employers.

  • The underlying health conditions of a single employee cannot set the employer's safety responsibilities toward that employee due to the prohibited inquiries regulated by the American with Disabilities Act - personal risk factors such as disability and age should not be factored into an OSHA violation.

For further information about this and other OSHA matters, use your Legal Services Plan and contact Bob Dunlevey, Board Certified Labor & Employment Law Attorney at Taft Law - (937) 641-1743. Be sure to identify yourself as a DRMA member.


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