If OSHA’s proposed ergonomics standard isn’t confusing enough, try examining OSHA’s task of implementing a new standard. It involves two separate processes that should be differentiated. The first involves following internal steps as outlined in the Occupational Safety and Health (OSH) Act of 1970. The second process involves gaining political support. Where it ends up has yet to be determined.
The OSH Act was created to assure safe and healthy working conditions by authorizing enforcement of the standards developed under the Act. The Secretary of Labor may promulgate (put into law) any occupational safety or health standard by following these (highly condensed) steps:
- Secretary may seek advisory committee recommendations for a new standard.
- Secretary shall publish a proposed rule in the Federal Register.
- Written objections are accepted and posted in the Federal Register. A hearing is scheduled and held for the objections.
- The Secretary either issues the rule or determines a rule should not be issued.
OSHA published the proposed rule in November 1999 and held hearings through July 2000.
The political process began when OSHA submitted its annual budget to Congress as part of the Labor-HHS Appropriations Bill. Congress had the option to accept the budget, modify the funding, and/or put riders into the budget. Both the House and the Senate chose to attach identical riders prohibiting OSHA from using appropriated funds to promulgate, issue, implement, administer, or enforce any ergonomics standard.
This brings up a political point worth pondering. Some people question whether Congress should have the ability to legislate through riders how government departments (Defense Dept., Labor Dept., etc.) operate.
The House and Senate are now in the process of combining their bills and formulating a conference report before submitting it to the President. President Clinton has vowed to veto the bill if the ergonomics rider is attached.
The budget year ends September 30th. In the event that the bill isn’t resolved, a continuing resolution is extended typically for one to two weeks. This can happen numerous times and in rare occasions results in months of deferment. If this occurs, the Labor Department simply continues operating from its previous year’s budget. However, in an election year, there is strong pressure to get the process completed so that politicians can go home to their districts to campaign.
- Conference report puts the ergonomics rider in and the President signs it. OSHA has its funding but cannot issue a final ergonomics standard.
- Conference report doesn’t include the rider and the President signs the bill. OSHA gets their funding without stipulations and the Secretary of Labor can choose to issue a final ergonomics standard.
- Conference report puts the ergonomics rider in and the President vetoes it. (The line-item veto cannot be used for appropriations.) If a veto occurs, the bill goes back to Congress for redrafting, or Congress can try to override the veto with 2/3rds majority vote. While debating the ergonomics rider last summer, Congress voted 274 in favor and 255 against it- not enough to override a veto.
Another element to the political process involves the presidential election. If a final standard is issued this year, a new president may choose to rescind it. The Gore/Lieberman ticket is in support of the standard, but the Bush/Cheney camp would probably look at the regulation and determine it’s not in accordance with their policy.
If a final standard is issued, it is not uncommon for it to end up in court. Individuals or companies may argue that OSHA has exceeded the intent of the OSH Act, they may claim it’s not protective enough or that due process wasn’t administered properly. The judges would then determine whether to place an injunction on the standard, or keep it in effect while it’s being challenged. Their decision is based on what will cause the least amount of harm to the public.
If a final standard is issued, it will likely have changes from the proposed standard. The target areas of concern have been the work restriction provision, which allocates compensation for workers who are removed from a job for a cumulative trauma-related medical reason, the trigger (requiring an ergonomics program after a single MSD is reported), the grandfather clause and the when-you-are-in-compliance question.