Brace yourselves, the ergonomics debate is back again! A little more than 18 months has passed since OSHA created a firestorm of controversy by instituting an ergonomics rule during the waning days of the Clinton administration. President Bush and Congress repealed that ergonomics rule in March 2001 under the previously unused Congressional Review Act. Since then, OSHA has developed a new ergonomics program that relies on voluntary guidelines to reduce ergonomic hazards. Labor advocates have condemned OSHA’s new ergonomics program and its reliance on voluntary guidelines even though the industry guidelines have not yet been released and their effectiveness has not been determined.
Labor groups such as the AFL-CIO have lobbied Congress to pass legislation requiring OSHA to adopt a new ergonomics rule requiring employers to take specific steps to address ergonomic hazards. Their efforts bore fruit on June 19th when the Senate Health, Education, Labor, and Pensions Committee approved a bill that would require OSHA to issue the new ergonomics rule within two years. The bill requires a broader ergonomics rule than the one Congress previously repealed. The previous rule did not apply to the construction, agricultural and maritime industries but the legislation passed by the Senate committee would apply to all industries where there are "economically and technologically feasible measures to control these hazards." The bill does, however, exempt employers from responsibility for injuries that occur outside of the workplace. It also explicitly states that it does not expand state workers’ compensation laws, which was a major cause of the previous ergonomics rule’s downfall.
The bill faces several additional challenges, however, before it becomes law. Opponents of the bill have indicated that they may attempt a filibuster to block the bill from reaching the Senate floor. In addition, Labor Secretary Elaine Chao has sent a letter to the Senate committee stating that she will ask President Bush to veto the bill if it is passed in its current form. Moreover, even if the bill becomes law, it will almost certainly face legal challenges based on language in the Congressional Review Act that prohibits agencies from passing a new rule that is "substantially similar" to a rule that is repealed under the Act.
While the ergonomics debate continues in Congress, OSHA is moving forward with its new ergonomics program. OSHA announced in April that the first set of voluntary guidelines would be developed for the nursing home industry. Although no specific date has been set for the release of the voluntary guidelines for the nursing home industry, Secretary Chao has indicated that they could be released before the end of the year. In June, OSHA also announced that it will develop ergonomic guidelines for retail grocery stores and the poultry processing industry. OSHA has also formed the National Advisory Committee on Ergonomics. The committee will consist of 15 members who will serve two-year terms. The committee is designed to advise OSHA on a number of issues including the formation of industry or task-specific guidelines, identification of gaps in the existing research on ergonomics, the application of ergonomic principles to the workplace, current and projected research needs, methods of providing outreach and assistance to employers and employees, and ways to increase communication among stakeholders on the issue of ergonomics. OSHA hopes to hold the first meeting of the Committee in September.
Emergency Planning is Essential
Does your company have an emergency management plan? Emergency planning saves lives and saves businesses from financial ruin. According to the American Red Cross, approximately 40 percent of small businesses never reopen after a major disaster. The tragic events of September 11th focused attention on emergency management planning but unfortunately, many businesses did not follow through with their intent to either prepare or update their emergency plan. In addition to the obvious need to minimize the potentially catastrophic effects of natural disasters, hazardous material releases, or terrorist acts, the following seven OSHA standards require emergency action plans: (1) 29 CFR 1910.119, process safety management of highly hazardous chemicals; (2) 29 CFR 1910.160, fixed extinguishing systems, general; (3) 29 CFR 1910.164, fire detection systems; (4) 29 CFR 1910.272, grain handling; (5) 29 CFR 1910.1047, ethylene oxide; (6) 29 CFR 1910.1050, methylenedianiline; and (7) 29 CFR 1910.1051, 1,3-butadiene. Kilpatrick Stockton is now offering free on-site consultations to help businesses with this essential task. Please contact Ted Edwards at (919) 420-1757 for more information regarding this service.
Emergency management planning is currently an area of emphasis for OSHA. The agency issued a new directive in July that provides additional guidance for its inspectors regarding enforcement of the various OSHA rules requiring emergency action plans. More importantly, however, the process of developing and implementing an effective emergency plan will maximize the business’ ability to protect its workers and to resume operations after the disaster.
Confined Space Rule May Be Extended to Cover Construction
A recent study published in the July issue of the Journal of Occupational and Environmental Medicine recommends the extension of the confined space safety rule to cover the construction industry. The study reviewed OSHA fatality records for the construction industry and found that the number of fatalities resulting from work with water, sewer and utility lines could be significantly reduced if the confined space rules applicable to general industry were enforced. The general industry confined space rule requires the use of direct reading instruments with alarms for hydrogen sulfide, carbon monoxide and oxygen. The rule would also require that workers be trained in the use of air-supplied respirators and be supplied with carbon monoxide alarms when they were using fuel-powered tools indoors. According to the study, 62 percent of the construction fatalities resulting from toxic exposures could be prevented if the provisions of the confined space rule were implemented. The study also noted that increased awareness and education regarding toxic exposures is necessary in the construction industry. The OSHA fatality investigations found that the most common worker mistake was the failure to recognize the hazardous condition prior to the accident.
Occupational Safety and Health Update is a bulletin of new developments and is not intended as legal advice or as an opinion on specific facts.
