Friday’s court-order to make Washington’s Department of Labor and Industries’ (L&I) ergonomics practices fair game to any interested reader marks another step in the dizzying regulation dance.
It’s happened before. Take the feds, who spent a decade dancing around with planning and creating mandatory ergonomics regulations only to have a new administration turn their work into fish-wrap in favor of follow-them-at-will ergonomics guidelines. And something similar could happen in Washington state where the regulations are already carved out, but compliance has yet to be enforced.
On Friday, a Thurston County Superior Court judge declared that the state’s records regarding ergonomics dealings with companies needed to be opened to the curious. That includes journalists and the Building Industry Association of Washington, both of whom, the media reports, have been kept from the records in the past. That might not be a big deal if some state business groups weren’t already up in arms over the state’s stringent guidelines, but they are. And then there are those discussions between L&I and retail giant, Wal-Mart.
Reported on Ergonomics Today earlier this month (October 9, 2002, Better Deal for Out-of-Staters in Washington?), the question surrounds correspondence between L&I and Wal-Mart from earlier this year. According to some Washington business groups, L&I gave Wal-Mart the ergo go-ahead long before ground was broken on a proposed distribution facility in Grandview. But according to Washington’s Industrial Safety and Health Act Services Division (WISHA) that wasn’t the case at all.
“There is absolutely no evidence that we have given a waiver of any sort to any employer,” said WISHA’s Assistant Director, Michael A. Silverstein, M.D. of the great Wal-Mart debate. “We get calls from employers all the time asking about whether or not their facilities or activities are in compliance with various rules of ours. We try to be as helpful as we can,” said Silverstein. In this instance, according to Silverstein, helpful meant checking out a similar Wal-Mart warehouse in Temple, Texas, and giving ergonomics rule compliance feedback based on what was seen. Industry groups interpret it to mean that Wal-Mart passed an ergonomics test on a yet un-built facility sight-unseen. According to Silverstein, no stamp of approval was ever given, just the gentle nudge of yes, if the facility works the way it does at the Texas facility, then it should be in compliance.
Specifically, a January 7, 2002 letter from L&I’s Gary Moore to Wal-Mart’s VP of Logistics, Larry Duff stated, “Based on what we saw and discussed with you during the Temple [Texas] visit, we are confident that you can locate a similar food distribution center with comparable operations in Washington and be in compliance with the Washington State Ergonomics Rule.” Additionally, the letter informed Duff that ” . . .if you effectively enforce your existing policies and thereby properly follow [Washington’s] guidelines, the operations described in this letter and consistent with the operations we observed in Temple, Texas, do not involve hazardous exposures that would require correction under the rule and you will not be cited for hazardous exposures.” Similar letters were also provided to Ferguson Enterprises, Safeway, and the Washington Food Industry in the past year regarding separate facilities.
Industry groups have claimed that L&I isn’t dealing fairly across the board and might be bending the rules to encourage new business to come into the state. Previous reports indicated that Wal-Mart might locate their warehouse facility in neighboring Oregon or Idaho because of Washington’s ergonomics rule. Silverstein claims his group’s goal is to work with new business, but not to the extent that they receive preferential treatment.
“Occasionally we get calls from outside the state of Washington. Businesses want some assurance that they understand what’s required in the state of Washington,” said Silverstein. “We try to be as helpful as we can.”
Washington’s ergonomics rule is being criticized for being too stringent, too costly, too rigid. Silverstein disagrees.
“We have well over 50,000 workers every year in the state of Washington with work-related MSDs at a cost of a billion dollars a year,” said Silverstein. “[The goal is] to reduce work-related MSDs and all of the consequences.” According to Silverstein, the state went to great pains to put together a rule that would accomplish the goal. “It was a tremendous process,” he said. Two years, nine public meetings, development conferences, public hearing, advisory committees. “Every step along the way, we developed issues and ideas that would be positive and effective, and we came up with a stronger and stronger proposal,” Silverstein continued.
But regardless of the effort, the backlash was expected. “There are a number of trade associations that have opposed this from the very beginning,” Silverstein said.
Currently L&I’s records are available only to the businesses and industries that are directly affected by the records. However, Friday’s court order to open the records to other groups and individuals could spell additional trouble for L&I, particularly during an election year. While previous court decisions have found the rule valid, that the department had done its job correctly, said Silverstein, November’s elections might not be so forgiving. Already some business and industry lobbyists in Washington are finding themselves supporting a more Republican governing body — one more likely to follow in the feds’ footsteps and overturn Washington’s ergonomics rule.
Sources: Seattle Post-Intelligencer, The Olympian, WISHA