California Court Upholds Expanded Ergo Regulation

A California appeals court has upheld the state's ergonomics standard put in place in 1997 and broadened its scope to include employers with nine or fewer employees.

The opinion, issued Oct. 29 by the 3rd Appellate District in Sacramento, upholds the nation's first ergonomics regulation, which had been contested in a lawsuit against the California Occupational Safety and Health Standards Board. American Trucking Associations, California Trucking Association and others contend that the regulation is scientifically unsound and is too costly compared to its benefits.

The state regulation requires an employer to institute an ergonomics program whenever two or more of its employees performing repetitive tasks have reported repetitive motion injuries (RMIs) within a 12-month time span. These so-called "triggering" RMIs must be predominantly work-related and objectively diagnosed by a licensed physician.

The employer's program must include worksite evaluation, corrective control of exposure to RMIs and employee training. Two qualifications in the original regulation were that employers with nine or fewer employees would be exempt and that employers would have a "safe harbor" if they undertook good-faith measures designed to minimize RMIs.

The appeals court's verdict reverses several decisions from a previous ruling by Sacramento Superior Court. The Sacramento court had:

  • Upheld the two-injury threshold to trigger an employer's obligation to institute ergonomics measures;
  • Eliminated the exemption for small businesses;
  • Struck the word "objectively" from a physician's diagnosis; and
  • Eliminated the "safe harbor" provision.

Three of those points were reversed by the appeals court, which upheld eliminating the small business exemption.

"In reinstating the "safe harbor" provision of the Cal OSHA ergonomics regulations, the court of appeals recognized the inexact nature of ergonomics diagnoses and remedies," said Warren Hoemann, vice president of the California Trucking Association. "While our attorneys review the overall decision, the California Trucking Association is pleased that businesses will not be held to unproven, prescriptive solutions and novel claims."

President John J. Sweeney of the AFL-CIO hailed the court's opinion as a victory for working families in California and a precursor to OSHA's plan to issue its proposed ergo standard in November. "While it is unfortunate that the standard includes unnecessary loopholes that weaken its protection, the court's decision means that the standard will cover workers at an additional 80 percent of California workplaces," Sweeney said.

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