Industry vs. Ergo Rule: The Battle Continues

The law suits of many business groups and individual companies against OSHA's ergonomic standard have been consolidated into a single action in a federal circuit court.

Although a number of business groups and individual companies filed suits against OSHA in federal courts around the country, all the cases were consolidated into a single action in a federal circuit court chosen by lottery.

Where the case is heard is important because some courts are friendlier to OSHA than others.

For this reason labor unions also filed suit in their favorite jurisdictions, to increase their chances of "winning the lottery," as they seek to defend OSHA''s rule and possibly pursue grievances of their own.

Peg Seminario, director of safety and health programs at the AFL-CIO praised the ergonomics standard as a huge step forward. But in an interview Seminario pointed to what she thought were two major weaknesses in the rule.

"The trigger is still dependent on an incident occurring -- this is different from every other OSHA rule." Other OSHA rules are based on hazards and exposures she explained. "We believe for the rule to be fully protective it should include a hazard trigger, like the Washington state rule and many employer programs."

Labor is also disappointed that maritime, agriculture and construction are not covered by the standard.

Sources close to industry''s litigation said the District of Columbia (D.C.) circuit court had "won" the lottery, a development that appears to be favorable to opponents of the rule, as this was where the National Association of Manufacturers filed suit.

On the other hand, having to fight it out in the D.C. court is bad news for insurance groups challenging the rule''s work restriction protection (WRP).

This is the court that has repeatedly affirmed OSHA''s right to include WRP provisions in previous standards, and lawyers say this precedent is more binding on the D.C. court than other federal appeals courts, even though the judge who made the previous decisions has died.

by James Nash

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