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The future of new ergonomics regulations remained in doubt as the U.S. Occupational Safety and Health Administration (OSHA) standard was due to go into effect Jan. 16. Over the past several years, Republicans in Congress repeatedly tried to stall or scuttle the standard. Lawyers for business organizations suing OSHA are expected to ask the new labor secretary under President George W. Bush for an administrative stay to halt enforcement of the standard while lawsuits are pending.
Although Bush had expressed opposition to the ergonomics standard, Bill Borwegen, MPH, occupational health and safety director of the Service Employees International Union (SEIU), notes that progress toward workplace safety has occurred under Republican administrations. In fact, work on an ergonomics standard began under Labor Secretary Elizabeth Dole during the previous Bush administration.
With the close split in the country, Borwegen expressed hope that hard-line positions might ease. "Some of the best days of OSHA were when we had a Democratic Congress and a Republican administration," he says.
Meanwhile, lawsuits have been filed in several federal circuit courts on behalf of business organizations that oppose the standard. The cases have been consolidated, and legal arguments likely will not occur until this summer, at the earliest, predicted Willis Goldsmith, an attorney with Jones, Day, Reavis & Pogue in Washington, DC, which represents the U.S. Chamber of Commerce, the Society for Human Resource Management, and other organizations.
"We believe the economic analysis that OSHA has provided is flawed," says Baruch Fellner, a Washington, DC, lawyer who represents the National Association of Manufacturers and the National Coalition on Ergonomics. "The analysis of the science is equally flawed. There are many procedural errors that the agency made in its rush to judgment."
Supporters of OSHA’s ergonomics standard were buoyed by a victory in a case involving Beverly Enterprises, which operates nursing homes around the country. More than five years after it received the case for review, the Occupational Safety and Health Review Commission ruled in October that the nursing home corporation was properly cited for ergonomics hazards under the "general duty" clause of the Occupational Safety and Health Act. The general duty clause requires employers to keep workplaces free from recognized hazards that cause or are likely to cause serious physical harm or death.
The commission’s ruling overturned a decision by an administrative law judge, who said OSHA had not identified a "recognized hazard" when inspectors issued citations against five nursing homes in Pennsylvania in the early 1990s due to injuries related to patient handling.
The commission’s finding that lifting represented a hazard that requires abatement under the general duty clause gives credence to OSHA’s efforts to establish an ergonomics standard, says Borwegen. "It really does support OSHA moving forward on this ergonomics rule."