Workplace Violence and Heat Stress—Understanding and Defending General Duty Clause Citations

Quick Hits

• Two cases before the Tenth Circuit Court of Appeals could limit OSHA’s ability to cite employers for failing to prevent workplace violence, particularly in psychiatric hospitals where staff have reported patient assaults.
• OSHRC has consistently affirmed General Duty Clause citations in workplace violence cases, contrasting with its rulings in heat-stress cases, where feasible abatement measures were harder to establish.
• Employers are closely watching the Tenth Circuit’s upcoming decisions in cases involving workplace violence cases, which could either uphold OSHRC’s precedent or impose stricter requirements with respect to OSHA’s burden of proof, influencing future workplace safety enforcement.

This stands in contrast to how OSHA has fared in General Duty Clause citations involving heat stress/heat-related illness. In Secretary of Labor v. United States Postal Service, decided in 2023, OSHRC vacated citations, finding that the secretary had failed to establish that feasible and effective means existed to abate the hazard.

In Secretary of Labor v. A.H. Sturgill Roofing Inc., decided in 2019, OSHRC vacated a citation, concluding that simply defining a hazard as “excessive heat” was impermissibly vague to provide sufficient notice to the employer. The lack of a clear hazardous threshold for all workers, given the many variables, such as humidity, wind, workload, personal protective equipment (PPE), and acclimatization, as well as the physical attributes of each employee, made heat a difficult hazard to define under the General Duty Clause. (OSHA does provide guidance on exposure to outdoor and indoor heat-related hazards for employers with temporary workers.)

The contrast between workplace violence prevention and heat-related cases with regard to the General Duty Clause lies in workplace violence being seen by the Commission as a broadly recognized hazard in certain industries, such as healthcare, with abatement measures that are feasible, concrete, and well-evidenced. Heat is far more complicated, and the feasibility of abatement measures are highly context-specific (as detailed above), often making these cases harder for the secretary to prove.

The recent decisions in workplace violence prevention enforcement in patient violence cases offer important lessons for how federal OSHA may approach General Duty Clause cases involving heat. In workplace violence cases, OSHA’s success has hinged on its ability to clearly establish each of the General Duty Clause’s four required elements:

• Hazard Recognition: In workplace violence cases, OSHA has prevailed when it demonstrated that the risk of violence was well-recognized in the industry and foreseeable based on things such as prior incidents, employee reports, or industry guidance. For heat stress, OSHA must similarly show that the employer or industry recognizes the specific heat hazard under the actual working conditions, not just that heat can be generally hazardous.
• Employee Exposure: OSHA must prove that employees were actually exposed to the recognized hazard. In workplace violence cases, this often involves evidence that employees worked in settings with a history of violence. For heat, OSHA must show that employees were exposed to hazardous heat levels for a sufficient time and intensity, considering a variety of factors, including the workload, PPE, and acclimatization.
• Likelihood of Death or Serious Physical Harm: In both workplace violence and heat-related cases, OSHA must demonstrate that the hazard was likely to cause death or serious physical harm. In workplace violence cases, this is often supported by evidence of prior incidents or threats. In heat-related cases, OSHA must provide evidence such as medical records or expert testimony that the conditions present a real risk of heat illness or death.
• Feasible and Effective Abatement: In workplace violence cases, OSHRC has found that a process-based approach to feasible methods of abatement includes written prevention programs, training, communication and reporting protocols, and staffing adjustments. For heat-related cases, OSHA must propose controls such as rest breaks, hydration, shade, or acclimatization that are practical for the specific worksite and proven to reduce risk.

Next Steps

Employers are awaiting the Tenth Circuit’s rulings and analyses of the recent cases appealed by the healthcare facilities. Will it uphold OSHRC precedent—finding that OSHA met its burden of proof under the General Duty Clause, or will it follow OSHRC’s trend in heat-related cases, questioning the feasibility of abatement measures and heightening OSHA’s burden when litigating these cases? Either outcome will assist employers in their defenses of such cases and in their workplace violence prevention efforts.

Ogletree Deakins Workplace Safety and Health Practice Group and Workplace Violence Prevention Practice Group will continue to monitor developments and will provide updates on the Healthcare, State Developments, Workplace Safety and Health, and Workplace Violence Prevention blogs as additional information becomes available.

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