United States: OSHA´s Ergonomics Standard Overturned

As is now well known, OSHA's Ergonomics Standard has been voided by a joint resolution of Congress signed by President Bush pursuant to the Congressional Review Act. Proponents of an ergonomics rule are presently considering their options. Included among these options are a court challenge to the constitutionality of the Congressional Review Act and new legislation requiring OSHA to promulgate a new ergonomics standard within the next two years. The idea for this proposed legislation has been discussed by Senator Breaux. In addition, Labor Secretary Chao has stated that the Labor Department is considering alternative approaches to the prior ergonomics rule. It is unlikely that any action will result in a new ergonomics standard in the near future.

On March 28, 2001, the Bureau of National Affairs published an article by Ross & Hardies partner Jerry Bowman titled "OSHA and the Ergonomics Standard Rule: What To Do Now." (The article is based upon a letter Jerry Bowman sent to clients and friends of Ross & Hardies updating them on the status of ergonomics and providing recommendations for future action.)

In the first quarter of the government's fiscal year 2001, the number of "significant" cases (involving proposed penalties of over $100,000) increased over the first quarter of fiscal year 2000. Forty-seven significant cases were pursued by OSHA in the first quarter of this year.

The Bush administration has promised a greater focus on compliance assistance, presumably at the expense of enforcement. But employers should not rely upon a docile OSHA. In prior Republican administrations, OSHA's enforcement efforts, while perhaps more focused, were quite vigorous. It is unlikely there will be any significant shift in OSHA policy until an administrator is selected by the Bush administration.

"But he didn't follow our rules." This is a very common employer complaint in response to an OSHA citation for a hazard created by an employee who ignored a safety rule. Case law under OSHA clearly establishes that employers are not guarantors of their employees' safety. For example, employers may defend an OSHA citation by relying upon the isolated occurrence or employee misconduct defense. To rely successfully upon this defense, the employer must generally prove that (1) the employer has established a work rule designed to prevent the cited hazard; (2) the work rule has been communicated to employees; (3) the employer has taken steps to discover violations of the work rule; and (4) the employer has effectively enforced the rule when violations have been discovered.

It is often easy to establish that the employer has a work rule which, if followed, would have prevented the cited hazard. Similarly, employers are often able to establish that this work rule has been communicated to employees. Most often, the defense fails because the employer is unable to establish the third or fourth element of the defense. Employers should consider taking specific, concrete steps in order to maximize the possibility that the isolated occurrence/employee misconduct defense will be available. In particular, employers should consider establishing a program whereby supervisors regularly "walk the worksite" and monitor safety compliance. This need not be a burdensome requirement. For example, it could be rolled into a regularly scheduled quality assurance inspection. The important point is that the employer be able to establish that it regularly takes steps to discover safety violations. By training supervisors on the need for such regular inspections and by documenting that training (and, perhaps, even documenting the inspections themselves), employers will have established strong evidence that the third element of the defense has been satisfied.

In addition, employers often have good work rules in place but have no records demonstrating that the work rules are enforced. A written enforcement policy for all safety rules which includes specific disciplinary steps to be taken upon detection of a violation (especially if the discipline becomes increasingly more severe upon repeated occurrences of violations) is especially valuable to demonstrate that the safety rules are "effectively enforced." However, even these steps will be inadequate if the enforcement policy is not followed. Accordingly, employers need to make a special effort to assure uniform and consistent enforcement of their disciplinary policies. Another suggestion would be to require supervisors to document oral reprimands of employees, perhaps in a log book devoted specifically to that purpose. Often, an employer relies upon oral reprimands to establish effective enforcement of safety rules. Without documentation, however, such oral enforcement is often difficult to prove.

By considering the recommendations outlined above, employers will be in the best position to be able to assert a possible isolated occurrence/employee misconduct defense.