November 1999
More than six years ago, the California Legislature enacted Labor Code section 6357, requiring a Cal/OSHA standard for ergonomics in the workplace designed to minimize repetitive motion injuries (RMIs).
As a result of that directive, the California ergonomics regulation was developed and adopted by the California Occupational Safety and Health Standards Board (the Standards Board) after a lengthy and difficult process. The ergonomics regulation has been in effect since July 1997, but not without contentious debate over its requirements.
This debate resulted in legal challenges aimed at the regulation from all directions. The California Labor Federation and the AFL-CIO challenged the regulation essentially arguing that it is not rigorous enough, while the American Trucking Association and California Truck Association challenged the regulation essentially claiming that the standard is far too rigorous. Of course, the Standards Board (supported by a number of other employer groups) argued that its regulation was about as good as it could be, given the controversial nature of this subject and the legislative mandate to regulate a subject that is surrounded by scientific uncertainty.
On October 15, 1997, following extensive briefing and a hearing, the trial court issued a decision, granting most of the relief sought by Labor interests and denying all of the relief sought by the Trucking Associations. The trial court changed the regulation significantly by striking four provisions of the regulation that were helpful to employers.
The trial court's decision was appealed to the California Court of Appeals, and the trial court's decision was stayed, pending resolution of the appeal. On October 29, 1999, the California Court of Appeals issued its judgment, reversing nearly all of the changes made by the trial court. Pulaski v. California Occupational Safety and Health Standards Board (1999 Daily Journal D.A.R. 11143). The main points of the appellate court's decision are as follows:
- The court upheld the "safe harbor" provision of the regulation. The "safe harbor" provision states that measures implemented by an employer under the regulation shall satisfy the employer's obligations, unless it is shown that a measure known to but not taken by the employer is substantially certain to cause a greater reduction in injuries and that the alternative measure would not impose additional unreasonable costs. While the trial court struck the provision as unnecessary and ambiguous, the Court of Appeals found that the "safe harbor" was reasonably included to provide protection to employers undertaking good faith programs aimed at reducing repetitive motion injuries.
- The court upheld the regulation's limitation that an employer's obligation under the regulation is only triggered after it is found that a repetitive motion injury is "predominantly caused" (defined as 50% or more) by work-related tasks. The court held that the "predominate cause" requirement was properly included by the Standards Board in light of the large number of potential sham claims. As the court noted, even ergonomics advocates agree that RMIs can be caused by a host of factors, including psychological and psychosocial factors, which are not work-related. The Court of Appeals rejected a claim that the predominant cause requirement would lead to abuse by employers "seeking," as Labor argued, "to avoid their obligation to provide a safe workplace." The Court of Appeals noted that, until the regulation is put into effect, it is not possible to predict whether the predominant cause requirement will be "a valuable tool for ferreting out dubious RMI claims or be improperly exploited by employers bent on circumventing the regulation."
- The Court of Appeals upheld the requirement in the regulation that the injury be "objectively identified by a licensed physician." Again, the Court of Appeals found that this requirement was properly based on a lack of scientific consensus on the proper definition of RMIs. The court noted that a diagnosis based only on employee complaints of "pain" could conceivably require every employer to institute ergonomics control measures.
- The Court of Appeals did, however, reject the regulation's exemption for small businesses with nine or fewer employees. The Court of Appeals stated that the exemption would exempt nearly four of five employers from the regulation and 25% of all employees in California. The Court of Appeals agreed with the trial court that the provision was inconsistent with the Standards Board's statutory mandate to minimize RMIs "in the workplace." The Court of Appeals concluded that the term "workplace" must include all places of employment.
- Finally, the Court of Appeals rejected the Trucking Associations' various claims that the entire regulation should be stricken because the Standards Board failed to follow proper procedures.
What Does This Mean For California Employers?
The ergonomics regulation is clearly in effect. However, it is likely that an appeal (or multiple appeals) to the California Supreme Court will be filed. In the meanime, it appears that the ergonomics regulation will cover virtually all employers in every industry.
All California employers should evaluate their workplace for the presence of repetitive motion hazards and develop an ergonomics program if required to do so by the regulation. Employers should consult with legal counsel to determine if and when an ergonomics program is required.
California's Ergonomics Regulation: 8 CCR ' 5110, As Modified By The Court Of Appeals
Section 5110. Repetitive Motion Injuries.
(a) Scope and application. This section shall apply to a job, process, or operation where a repetitive motion injury (RMI) has occurred to more than one employe under the following conditions:
(1) Work-related causation. The repetitive motion injuries (RMIs) were predominantly caused (i.e., 50% or more) by a repetitive job, process, or operation;
(2) Relationship between RMIs at the workplace. The employees incurring the RMIs were performing a job process, or operation of identical work activity. Identical work activity means that the employees were performing the same repetitive motion task, such as but not limited to word processing, assembly, or loading;
(3) Medical requirements. The RMIs were musculoskeletal injuries that a licensed physician objectively identified and diagnosed; and
(4) Time requirements. The RMIs were reported by the employees to the employer in the last 12 months but not before (July 3, 1997).
(b) Program designed to minimize RMIs. Every employer subject to this section shall establish and implement a program designed to minimize RMIs. The program shall include a worksite evaluation, control of exposures which have caused RMIs and training of employees.
(1) Worksite evaluation. Each job, process, or operation of identical work activity covered by this section or a representative number of such jobs, processes, or operations of identical work activities shall be evaluated for exposures that have caused RMIs.
(2) Control of exposures which have caused RMIs. Any exposures that caused RMIs shall, in a timely manner, be corrected or if not capable of being corrected have the exposures minimized to the extent feasible. The employer shall consider engineering controls, such as work station redesign, adjustable fixtures or tool redesign, and administrative controls, such as job rotation, work pacing or work breaks.
(3) Training. Employees shall be provided training that includes an explanation of:
(A) The employer's program;
(B) The exposures that have been associated with RMIs;
(C) The symptoms and consequences of injuries caused by repetitive motion;
(D) The importance of reporting symptoms and injuries to the employer; and
(E) Methods used by the employer to minimize RMIs.
(c) Measures implemented by an employer under subsection (b)(1), (b)(2), or (b)(3) shall satisfy the employer's obligations under that respective subsection, unless it is shown that a measure known to but not taken by the employer is substantially certain to cause a greater reduction in such injuries and that this alternative measure would not impose additional unreasonable costs.
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