Terms of new OSHA rule ‘undefined, undefinable’
Terms of new OSHA rule undefined, undefinable’
Attorney warns compliance will be impossible
Here’s a warning for employers trying to ensure that their workplaces will be in compliance with the new Occupational Safety & Health Administration (OSHA) regulations on ergonomics: It’s Mission Impossible.’
"The proposed rule is a morass of undefined and undefinable terms that employers have no hope of complying with and that the agency has no hope of enforcing consistently," asserts Willis J. Goldsmith, Esq., who chairs the Labor & Employment Practice of the law firm of Jones, Day, Reavis & Pogue.
Goldsmith, who works out of the firm’s Washington, DC, office, has been representing the U.S. Chamber of Congress in the ongoing debate over OSHA’s Proposed Ergonomics Program Standard.
Terms are too vague
One of Goldsmith’s major criticisms of the proposed rule is that the terms it uses are incredibly vague. One particularly onerous section is Sect. 1910.918, which addresses job hazard analysis and control. "This sets out procedures to be followed in analyzing a problem job," he explains. "Employers are told they must observe the employees performing the job to identify physical work activities, conditions, and ergonomic risk factors."
This section includes a chart that lists specific conditions that could lead to injury. "One of conditions in the chart is doing the same motion over and over again,’" says Goldsmith. "Our position, quite simply, is that what that phrase means is likely to differ from person to person. In fact, during the rule-making hearings, no one was able to define the term."
In the same chart, "awkward postures" were also cited as a risk factor. "Not surprisingly, your idea, my idea, and someone else’s ideas of what constitutes an "awkward posture" can be quite different," says Goldsmith. "Again, no one in rule making could define it. If there is no way to define it, then there is no way for the rule to be well enforced." Other vague terms in the rule, Goldsmith notes, are "sitting for a long time," and "performing tasks that involve long reaches."
However vague the rule is, Goldsmith notes, "If promulgated as a final standard, it will have the force of law, and employers will be subject to action based on whether or not they are doing something over and over again in an awkward posture. This presents a problem."
If the program were voluntary, he adds, there would not be a problem. "If we were talking about a voluntary program, fine. The problem is you’re going to have compliance officers going in trying to maintain standards that are undefinable. There will be different understandings of the rule from one area office to another area office."
In addition, says Goldsmith, there is insufficient research on which to base the new rule, or to indicate that OSHA’s approach would actually reduce stress injuries. "There are certain scientific concepts that are beyond dispute," he asserts. "For example, there is no way to determine anything resembling a dose-response relationship — in other words, what supposed stressors will cause particular injuries or illnesses, when an injury or illness will develop in the presence of other variables, or who would develop an injury or illness in the presence of supposed stressors."
The preamble to the rule, Goldsmith notes, acknowledges that there are conditions the science has revealed that are contributing factors to musculoskeletal disorders (MSDs) that the new standard does not take into account. "For example, there are psychosocial factors," he notes. "An employee who is happy is much less likely to report an MSD than one who is unhappy." Stress is another contributing factor.
Is passage inevitable?
Goldsmith believes that the rule, with all of its flaws, will become law. "I think, unfortunately, what is likely to happen — no matter what was said in rule making and no matter what will be submitted by legal arguments — OSHA is bound and determined to issue this proposed rule as a final standard by year’s end," he says. "And I think they will; and it will look an awful lot like the proposed rule."
Are there any preparations employers could or should be making? "There are two things to keep in mind," says Goldsmith. "Virtually immediately upon promulgation of the final rule, it will be challenged in the Court of Appeals. But that doesn’t automatically operate as a stay of the standard. I would hope that the agency would exercise some degree of common sense and good judgment and not seek to enforce the standard while a ruling is pending. If it does, however, the only recourse a cited employer will have is to either litigate it or settle it. Virtually every employer will be seriously affected by the rule, so if litigation is a feasible option, that’s the option that should be taken."
[Editor’s note: The proposed OSHA rule can be found on the U.S. Department of Labor’s Web site: www.dol.gov. For any additional information, contact: Willis J. Goldsmith, Jones, Day, Reavis & Pogue, 51 Louisiana Ave. N.W., Washington, DC 20001-2113. Telephone: (202) 879-3939. Fax: (202) 626-1700.]
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