Washington L&I Can Use General-Duty Clause to Enforce Ergonomics

Washington state's Supreme Court has ruled that a 2003 voter initiative that repealed a statewide workplace ergonomics standard does not strip the state's labor department of its power to use the state's general-duty clause to cite employers for ergonomic-related hazards.

Calling the language of Initiative 841 (I-841) "plain and unambiguous," the Supreme Court majority in an Oct. 19 opinion concluded that I-841 repealed the ergonomics standard promulgated by the Washington state Department of Labor and Industries (L&I) in 2000 but "never mentions the elimination of L&I's ability to prevent serious ergonomics-related hazards under the general-duty clause."

"Seldom have there been initiatives before this court that have been more precise," Justice Tom Chambers wrote for the majority. " … We conclude based upon the plain text of I-841 that the voters intended to repeal and prohibit only what they said they intended to repeal and prohibit."

I-841, which Washington state voters passed in November 2003, repealed what was described in the ballot language as "an expensive, unproven rule." It also forbade L&I from adopting any new or amended ergonomics rules unless ordered by federal OSHA or Congress. Washington is one of 26 state-plan states.

It was up to the high court to decide whether voters intended to repeal only the ergonomics standard promulgated in 2000 or both the ergonomics standard and L&I's authority to enforce workplace ergonomics through the general-duty clause, Chambers wrote.

The majority determined I-841's "plain language" makes it clear that "voters did not intend to eliminate L&I's ability to use its enforcement power to prevent ergonomics-related workplace hazards" that are causing or are likely to cause serious injury or death.

The high court opinion adds that the outcome of I-841 - a reduction in employers' compliance burden and an increase in L&I's enforcement burden - only supports the court's conclusion.

" … L&I has a higher burden when proving a violation under the general-duty clause than it does when proving a violation of a specific rule," Chambers wrote.

Employee's Ergonomics Complaint Sparked Supreme Court Review

The issue of the scope of I-841 reached the Washington Supreme Court by way of a dispute between L&I and Eden Prairie, Minn.-based grocery chain SuperValu Inc.

In December 2003, an employee of SuperValu's Tacoma, Wash., distribution center sent a letter to L&I complaining of "tripping and ergonomic hazards" at the facility. The letter alleged that "[w]orkers must access products and carry heavy items over pallets" and alleged that there had been an increasing number of back injuries and other injuries.

L&I responded with a letter to SuperValu asking the company to investigate whether any hazards existed and to produce a report detailing the results of the investigation, according to the Supreme Court opinion.

Later, a state WISHA compliance officer - WISHA (Washington Industrial Safety and Health Act) is L&I's enforcement arm - inspected SuperValu's Tacoma facility and then sent an e-mail to SuperValu requesting additional materials from the company, including accident investigation reports for any injury claims related to stepping on a pallet. SuperValu, in a letter to L&I on March 16, 2004, objected to the request.

On April 27, 2004, L&I issued a subpoena requiring SuperValu to provide all written materials pertaining to the company's ergonomics program. After several months of discussions between L&I and SuperValu, L&I on Aug. 30, 2004, re-issued the subpoena.

SuperValu then filed a complaint for injunctive relief in Pierce County Superior Court. The superior court ruled in favor of SuperValu, refusing to enforce the subpoena and determining that I-841 stripped L&I of its authority to perform inspections regarding any ergonomic-related hazards.

The Washington Supreme Court, however, in its Oct. 19 opinion struck down the superior court's order.

L&I spokeswoman Cheryl Moore told Occupationalhazards.com that the agency is "pleased with the decision that indicates to us that [I-841] did not affect our ability to enforce the general-duty clause in the Washington Industrial Safety and Health Act."

However, the agency also is in the process of "analyzing the ruling."

"We're looking at the court's decision more thoroughly to understand what it all means," Moore said.

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