Ergonomics will start making headlines again next week.
In its first official action since Congress killed pending regulations last March, the Occupational Safety and Health Administration will go on the road with four public forums to be held at venues throughout the country.
Labor Secretary Elaine Chao has been promising since then to come up with a new approach to the topic of ergonomics, including repetitive motion and soft tissue injuries.
When he signed the legislation killing the new rules on March 20, President George W. Bush also said he would “pursue a comprehensive approach that addresses the concerns surrounding the ergonomics rule repealed today.”
And last month, along with the announcement of the upcoming forums, Chao issued a public statement vowing to “identify a final course of action on the issue by September.”
But despite this pronouncement, there remains considerable skepticism on both sides of the issue that the administration will come up with new regulations as a result of this process.
Tea leaf readers on this topic are increasingly looking at recent OSHA and Labor Department nominees in an attempt to divine the intentions of the new administration.
On the one hand, the administration’s choice of John L. Henshaw, a safety and health expert at a St. Louis chemical company has met little opposition from labor unions, who are generally pleased with his level of expertise even though he comes from private industry.
But, perhaps more importantly, Eugene Scalia, the nominee for solicitor of Labor, the top legal post in that department, is already on record as being a harsh critic of the regulations that were killed, and of OSHA enforcement of ergonomics rules in general.
Scalia, a 37-year-old Gibson, Dunn & Crutcher labor attorney who is the son of Supreme Court Justice Antonin Scalia, has been instrumental in fighting ergonomic regulation, not only via Wall Street Journal articles, but also through his representation of some of the most strident opponents of such regulation, including the National Coalition on Ergonomics, United Parcel Service, and Anheuser-Busch Companies.
Assuming he is confirmed, Scalia, who was unable to comment due to his pending nomination, may prove critical to defining an approach to ergonomics enforcement in the years to come.
This is because it is highly likely that the extent to which rules are legally enforced may prove even more critical than the nature of any rules passed going forward.
The legislation striking down the ergonomics rules in March specifically prohibited OSHA from promulgating rules “substantially similar” to the ones that had been voided.
This leaves the regulatory body with three basic options:
- Enact new rules, but do so in a more piecemeal fashion, striking some of the planks that were most objectionable to the business community, such as leave for injured workers.
- Devise a set of “voluntary guidelines.”
- Write no new rules as such, but pledge to use an existing “general duty” clause contained in the original legislation establishing OSHA in 1970 to more aggressively police ergonomic concerns.
It is the last of these three that looks likely, when taking into consideration some of the hints given out both by Chao and members of her staff over the past several months.
The Labor Secretary concluded a statement issued after Congress acted to strike down the regulations, by noting that “OSHA already has the power to ensure ergonomic protections for the workforce through the current statute and that is one possible solution among many that I will be hearing about.”
“The course of action to be taken in September could involve rulemaking, but that is only one course of action,” an OSHA spokesperson tells CFO.com. “In the absence of a rule, OSHA can cite an employer.”
According to another OSHA source, the regulatory body has used the power it already has, albeit sparingly, over the years to cite companies for ergonomics violations uncovered as a result of “general duty” inspections.
From Jan. 1, 1990 to Jan. 29, 2001, OSHA has cited firms in 472 instances in which ergonomics played a part in alleged violation. This has resulted in “more than $2 million in fines assessed.”
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