Washington Supreme Court: State OSHA Can Address Ergo Hazards

In November of 2003, the Washington state business community led by Building Industry Association of Washington sponsored and won a campaign to pass Initiative 841 which repealed the states progressive ergonomics standard. The campaign was based on blatant lies that convinced a majority of voters that ergonomic regulations would result in dead children due to the loss of insurance coverage caused by massive job loss that the regulations would allegedly inspire.

According to a recent decision by the Washington State Supreme Court, however, it turns out that although the ergonomics regulation is no longer in effect, back injuries, carpal tunnel syndrome and other musculoskeletal injuries caused by poor ergonomics in the workplace still exist. And, the Washington Department of Labor & Industries, which runs the state OSHA program, is allowed to use the general-duty clause of Washington's Industrial Safety and Health Act to protect workers as it had done prior to issuence of the ergonomics regulations in 2000.

The general-duty cluase allows OSHA to cite employers for unsafe working conditions even where no standard exists, if there is a "recognized hazard" that is causing (or likely to cause) serious injuries or death.

"Nothing in I-841 suggests that L&I is stripped of its general regulatory authority to address serious or deadly ergonomics-related workplace hazards" under state law, said Justice Tom Chambers, writing for the majority.

The high court threw out a Pierce County trial court's order quashing L&I's attempt to enforce a subpoena against SuperValu Holdings, a company that distributes groceries and products to independent grocery stores throughout the Northwest. The case was returned to the lower court.

Supervalu, which received an ergonomics citation in Missouri in 2003, is particuarly sensitive to OSHA's ergonomics activities in its stores. Part of this may be related to the fact that Supervalu's Corporate Director of Risk Control, James Koskan, was a member of Secretary of Labor Elaine Chao's National Advisory Committee on Ergonomics which was set up after the Bush administration and Republican Congress repealed the federal ergonomics standard. Supervalu eventually reached a settlement with OSHA involving a $1,000 fine and other items.

In the Washington case, Supervalu was apparently not in the mood to be cooperative with OSHA:

L&I received a complaint in December 2003 from an employee at SuperValu's Tacoma distribution center concerning an alleged injury from stepping on pallets.

L&I contacted the company and asked for a report on whether any hazards existed at the site. After a state officer inspected the warehouse, L&I requested additional material, and SuperValu objected.

In April 2004, L&I issued a subpoena for SuperValu to provide written information on its programs to prevent musculoskeletal disorders, injuries, or illness.

SuperValu argued that the voters' intent in I-841 was to bar L&I from performing inspections and issuing citations with regard to any musculoskeletal injury related to an ergonomics hazard.

So, six years later, we're back where we started from, at least in the state of Washington. In the other Washington (DC), we're back to almost zero. Federal OSHA has issued fewer than 20 general-duty citations during the entire Bush administration, and most of the fines amounted to mere pocket change. Is that any way to address the biggest health and safety hazard facing American worker?