Trause assures McCabe that L&I will abide by the law and not issue a new standard. He points out, however, that prior to issuance of the ergonomics standard, L&I was able to cite employers for injuries caused by poor ergonomics under Washington's "general rule," referred to as the General Duty Clause by federal OSHA. The General Duty Clause simply requires an employer to maintain a safe workplace. Even without a standard, OSHA can cite employers if it can be proven that a recognized hazard is likely to cause (or has caused) death or serious physical harm and there are reasonable means of abatement.
Trause points out that these general rules were not repealed by Proposition 841 and "these rules remain valid tools for preventing work-related musculoskeletal disorders." In fact, Trause explains, the new WISHA directive will mimic federal OSHA's approach to ergonomics following the repeal of the federal standard in 2001, quoting Assistant Secretary of Labor for OSHA John Henshaw who reported that "since January 2002, OSHA has conducted almost 1,500 inspections focusing on ergonomics issues and has followed up with citations and hazard-alert letters informing employers of ergonomic hazards in their workplaces."
Then Trause zings them:
As your organization has previously recognized, it has been proper and legitimate for many years to apply general rules to the hazards associated with musculoskeletal disorders. In fact, one of the arguments made by your representatives and publications in support of Initiative 841 was that because existing WISHA rules gave L&I all the authority it needed to address hazards, the ergonomics standard was unnecessary. For example, on page 6 of the October 2003 edition of your Building Insight publication you summarize a study done by the Washington Policy Center and note that:Trause closes by reminding McCabe that:"…current safety codes cover ergonomics injuries in the same manner as other workplace risks. Currently employers are required to keep safety records and to share them with L&I. State inspectors are authorized to conduct workplace inspections at any time with no advance warning. Employers with unsafe workplaces – including ergonomically hazardous – may be fined."
As you know, employers in the residential construction industry, including members of your organization, have among the highest rates of work-related musculoskeletal disorders in the state. We have a great deal to gain by working together.This blog is occasionally read by children, so I can't reveal here what I would have written...but it would have begun with "Tom, you ignorant slut," and ended with "Why don't you fire the staff that encouraged you to write this letter? They obviously don't have a clue about the law or the conditions under which the employee of your members work, nor have they even bothered to read your own publications."
As an interesting sidenote, it seems that the several companies cited by federal OSHA over the past couple of years aren't much happier with federal OSHA than BIAW is with WISHA. They're threatening to sue the agency over ergonomics citations. According to Inside OSHA, "Settlement talks in recent OSHA ergonomics citations issued to Coca-Cola, SuperValu Holdings and Pepsi Bottling Group, LLC. have broken down and are spurring the potential legal action."
This threat of legal action has been going on for some time. I wrote about it first almost a year ago. (Link here. Scroll down to "Meanwhile, back at the ranch")
Clearly another case of the federal gestapo threatening capitalism and harassing small businesses like Coca Cola with stratospheric fines of $4,500.
Inside OSHA points out that what's really pissing off the industry lobbyists is that George Bush's OSHA insists on enforcing the law:
Industry representatives say that OSHA Administrator John Henshaw has been disingenuous by talking about compliance assistance while at the same time maintaining a consistent level of citations.
