Ergonomics Debate Heats Up Again

Brace yourselves, the ergonomics debate is back again! A little more than 18 months has passed since OSHA created a firestorm of controversy by instituting an ergonomics rule during the waning days of the Clinton administration. President Bush and Congress repealed that ergonomics rule in March 2001 under the previously unused Congressional Review Act. Since then, OSHA has developed a new ergonomics program that relies on voluntary guidelines to reduce ergonomic hazards. Labor advocates have condemned OSHA's new ergonomics program and its reliance on voluntary guidelines even though the industry guidelines have not yet been released and their effectiveness has not been determined.

Labor groups such as the AFL-CIO have lobbied Congress to pass legislation requiring OSHA to adopt a new ergonomics rule requiring employers to take specific steps to address ergonomic hazards. Their efforts bore fruit on June 19th when the Senate Health, Education, Labor, and Pensions Committee approved a bill that would require OSHA to issue the new ergonomics rule within two years. The bill requires a broader ergonomics rule than the one Congress previously repealed. The previous rule did not apply to the construction, agricultural and maritime industries but the legislation passed by the Senate committee would apply to all industries where there are "economically and technologically feasible measures to control these hazards." The bill does, however, exempt employers from responsibility for injuries that occur outside of the workplace. It also explicitly states that it does not expand state workers' compensation laws, which was a major cause of the previous ergonomics rule's downfall.

The bill faces several additional challenges, however, before it becomes law. Opponents of the bill have indicated that they may attempt a filibuster to block the bill from reaching the Senate floor. In addition, Labor Secretary Elaine Chao has sent a letter to the Senate committee stating that she will ask President Bush to veto the bill if it is passed in its current form. Moreover, even if the bill becomes law, it will almost certainly face legal challenges based on language in the Congressional Review Act that prohibits agencies from passing a new rule that is "substantially similar" to a rule that is repealed under the Act.

While the ergonomics debate continues in Congress, OSHA is moving forward with its new ergonomics program. OSHA announced in April that the first set of...