OSHA will focus on ergonomics, willful-accident investigations, lockout-tagout, fall protection, chemicals and targeted inspections as we start the new millennium. With one of three Review Commission (OSHA court) members resigning and a second member on a one-year recess appointment term, President Bush is expected to select a new majority on the Commission. Issues of interpretation continue to occupy more case-law rulings. Recent cases reflect these trends.
Ergonomics
OSHA's new ergonomics standard recognizes existing ergonomic programs to receive favored "grandfathered" status. Although the threshold bar is high for grandfather status, OSHA has agreed to extend the January 16, 2001, deadline for meeting the OSHA ergonomic standard's requirements until March 17, 2001. To be eligible, a program must have the following elements:
- Management leadership and an effective musculoskeletal disorders (MSD) reporting system;
- Employee participation;
- MSD management and follow-up on employee MSD reports;
- Job-hazard analysis and control;
- Effective ergonomic-program training of managers and employees;
- Regular program reviews and correction of deficiencies; and
- Demonstration of the program's effectiveness.
On October 27, 2000, OSHA won a general duty citation charging lifting injury ergonomics violations against five Pennsylvania nursing homes operated by Beverly Enterprises, Inc. Although the OSHA trial judge threw out the citations due to lack of fair notice of the alleged hazard or compliance requirements, the Review Commission reinstated and affirmed the citations. Under the general duty clause, employers must abate "recognized hazards" in their workplaces. The alleged exposure hazard was manual lifting of nursing home patients or residents by the staff nursing assistants (NAs). The Commission majority found that a hazard existed for manual lifting because:
- The frequency and manner in which the employees performed their lifting tasks exposed them to forces "in excess of limits...accepted in the scientific community;"
- There were numerous associated lost-time incidents that prevented the NAs from performing their usual daily activities;
- The employer had an admitted practice of increasingly making available mechanical hoists and gait belts to its employees; and
- The company's corporate managers had historically warned their staff personnel of the lifting hazard.
What constitutes "feasible" abatement of this ergonomic hazard remains for more litigation. The cost of compliance and the employer's financial condition were viewed by one commissioner as elements of economic feasibility. Specific, technically feasible solutions remain an issue for further proceedings.
Willful Accident Citations
OSHA continues to base willful citations on unresolved employee safety complaints and internal safety audits. In Secretary v. A.E. Staley Manufacturing Co., on October 18, 2000, the Review Commission upheld willful citations for failure to label damaged asbestos insulation on pipes and to clean up debris containing asbestos because:
- The hazardous material was not only in plain view, but also near employee work areas; and
- The company's abatement efforts were reportedly sporadic and inadequate, despite being put on notice of compliance problems by employee complaints and safety audits.
The Commission then spawned confusion on whether "general evidence" of knowledge of the OSHA Act and its standards, lax safety training and applying cost-benefit analysis to safety-compliance issues can constitute willfulness. It ruled that standing alone, such general evidence does not demonstrate willfulness-where such violations are not part of a pattern. However, evidence could be used to determine whether an individual cited item was willful in nature, and to determine the employer's good faith toward employee safety.
Attorney-Fee Recoveries
Two OSHA cases won by employers led to attorney-fee recoveries under the Equal Access to Justice Act where the Secretary proposed $61,100 in citation penalties, but were reduced by the OSHA trial judge to $4000 and seven of nine citations were dismissed. The judge then allowed a recovery of $61,722 for attorney and legal assistant fees (Secretary v. Wollcow Braker Roofing Corp.)
The tempo and content of OSHA citations stretching standards beyond their scope and enforcing complex scientific standards with feasibility issues should continue to generate ever increasing appeals.