From The Ergoweb® Learning Center

Attorney Shares Insight on Legal Challenges Against OSHA

The National Coalition on Ergonomics (NCE), an alliance of associations and businesses representing large and small employers across the United States, has consolidated with the National Association of Manufacturers (NAM) and others in a filing against OSHA over the recently released ergonomics program standard.

NCE’s attorney, David Sarvadi, explained that more than 60 trade organizations and employers have filed petitions in the U.S. Court of Appeals in various circuits. These petitions must be filed within 60 days of the promulgation of the standard and more are expected. Based on the petitions filed before December 8, the cases were consolidated into the D.C. Court of Appeals. After filing docket statements, the court will set a briefing schedule that will probably culminate in filing of briefs in late spring or early summer, with oral arguments in the fall or early winter. This would lead to a decision in early 2002.

“Who knows what will happen. From a lawyer’s perspective, there is so much juicy material here that it’s hard to predict. There is the controversy with the state of the science behind ergonomics, we have a significant public relations component, Congress is involved, and the election outcome isn’t resolved.”

NCE’s position against the standard is based on numerous contentions. They argue that it doesn’t meet objective minimal standards of scientific credibility for establishing hard and fast rules to govern employer behavior, there isn’t a public policy justification for the standard, and the epidemiological evidence that shows a relationship between musculoskeletal disorders and the work environment isn’t specific enough to tell what causes injury and how to prevent it. NCE contends ergonomics still requires trial-and-error experimentation to have an impact on injury and illness rates, and that the epidemiology that is available is oftentimes contradictory.

Sarvadi elaborates, “Most members of NCE recognize the value and principles of ergonomics but we don’t believe the subject has progressed far enough for the government to create mandatory regulations. We know there are people who feel pain and there is medical evidence to support their conditions. But if you look in detail at the studies you will see that OSHA has not been objective and dispassionate. They haven’t proven the causal relationship between the alleged hazardous environment and injury. Scientific studies demonstrate the causes of these injuries are multiple and varied. Lacking that necessary element, OSHA should not be imposing new and ambiguous obligations on employers.”

Unless stayed by the court or by the Department of Labor, the standard goes into effect in January, with most of the implementation dates coming due in October.