Industry groups are still debating whether to ask OSHA to "stay" the ergonomics rule.
That is, delay its implementation and enforcement while a combined lawsuit of business groups and companies against OSHA runs its course. If OSHA refuses, industry would then ask the court for a stay.
But convincing a court to agree to a stay is tough, according to Stephen Yohay of McDermott, Will & Emery, a Washington, D.C., attorney with extensive OSHA experience.
To win a stay of the standard, petitioners must make the case that:
- if the rule takes effect it will cause irreparable harm;
- there is no other adequate remedy;
- they are likely to prevail later anyway on the merits;
- the public interest will not be harmed if they stay is granted.
If no stay is granted, employers will have to prepare to comply with the final ergonomics standard.
In a letter released after the rule was issued, OSHA said employers must be ready to comply by Oct. 15, 2001.
To obtain a stay, industry would need to show that the efforts that are necessary to prepare for compliance by that date would cause irreparable harm.
In the meantime, what should employers do?
"It''s very difficult to advise clients what to do to get ready because the rule is so unclear," Yohay said.
The industry suit against the ergonomics standard is also complicated: it involves numerous parties with many different legal and evidentiary arguments. Asked to boil the case down to a few simple points, Yohay replied, "It is difficult to do. It''s a complex case."
Baruch Fellner, an attorney representing the National Coalition on Ergonomics (NCE), a business group opposed to the standard, outlined four grounds for the lawsuit seeking to kill the rule.
He said there is no scientific support for the standard, the rule is too vague, it rests on a "fatally flawed" economic analysis, and OSHA committed serious procedural violations of the Administrative Procedures Act.
Other lawyers involved in the case have zeroed in on the work restriction protection they contend violates the OSH Act.
OSHA made one change to the final rule that will make it harder for it to win the economic cost-benefit argument.
The proposed rule was a health standard, but the final rule was issued as a safety standard.
According to Yohay, although the court will not demand a strict cost-benefit analysis, courts expect a higher benefit-to-cost ratio in safety standards than in health rules.
This may be one reason why OSHA initially tried to issue ergonomics as a health standard.
Lawyers familiar with legal challenges to OSHA standards are unable to predict the outcome, but several insiders noted that what often happens in such cases is the court seeks a middle ground.
Under this scenario, the court would send the standard back to OSHA for clarification or even modification of certain provisions.
OSHA Administrator Charles Jeffress, though clearly elated the ergonomics standard has finally been issued, sees no quick resolution to the litigation over the rule.
"I expect that our new standard will be tied up in litigation for at least another year," he said at a Nov. 15 international safety conference in San Francisco.
by James Nash