It may take nine years, but even without an ergonomics standard OSHA can use the general duty clause to defend ergonomics citations.
In 1991, OSHA cited Beverly Enterprises Inc., alleging that at five of the company''s 800 nursing home facilities, the lifting and transferring of patients exposed employees to the hazard of injuries to the back and upper extremities.
The company contested the citation and in 1995, a lower court agreed with the company''s position that the hazard was not described specifically enough to afford the employer fair notice of the charge against it.
Beverly argued that with respect to lifting methods, no general corporate policy or guidelines are possible because the appropriate technique can only be determined on a case-by-case basis.
The judge also concluded OSHA had failed to demonstrate that the working conditions at Beverly''s facilities presented a hazard to its employees.
Nursing assistants testified that they were not instructed when they should lift a patient by themselves, when they should lift with assistance or when they should use a mechanical device.
Beverly''s corporate safety manager testified that a "vast number" of the company''s workers'' compensation claims came from lifting and transferring residents.
Beverly contested very few of these claims.
OSHA appealed the lower court decision and won in a two to one decision released last week by the Occupational Safety and Health Review Commission (OSHRC).
The OSHRC reversed the lower court''s decision and remanded the case to determine the feasibility of abating hazards.
by James Nash