NSWMA Challenges Ergonomics Rule

Brook Raflo

The National Solid Wastes Management Association (NSWMA), Washington, D.C., has filed a separate petition in the district's federal court of appeals, challenging a recent ergonomics rule from the U.S. Occupational Safety and Health Administration (OSHA), Washington, D.C. Published on November 14, the rule seeks to reduce work-related injuries, such as tendinitis and back strain, triggered by repetitive actions and awkward postures.

While OSHA exempted the construction, maritime, agricultural and railroad industries from the rule, it did not exempt the solid waste industry. This decision came despite testimony from public- and private-sector waste industry representatives that solid waste employers do not sufficiently control the workplace to address ergonomic issues.

Now, the NSWMA will work to persuade the court that OSHA's failure to exempt the solid waste industry from the ergonomics rule - when the administration exempted other similarly situated industries - was "arbitrary and capricious," says the association's general counsel, David Biderman.

But litigation does not preempt the possibility of a settlement. "We want to continue working with OSHA to press our request for exemption from the rule," Biderman says.

However, one OSHA official who asked not to be named suggests the administration currently is not considering a settlement on the exemption issue.

"The waste industry will be covered [by the ergonomics rule]," the official says.

But OSHA's exemption denial is not the end of the story, he adds. "Now we have asked the industry to participate with us in developing best practices to evaluate [solid waste employers'] ergonomic safety performance."

Once these waste industry-specific "best practices" are in place, employers who follow the mutually agreed-upon practices "wouldn't be asked to do more," the official says.

Nevertheless, the NSWMA primarily is focused on exemption.

"We are hopeful," Biderman says, "that the new administration may view our exemption in a more favorable light."

While a hearing date is difficult to predict because so many industry representatives, including the Washington, D.C.-based U.S. Chamber of Commerce, have filed similar petitions with the district's federal court, Biderman estimates the court will hear oral arguments sometime in the fall and issue its decision early next year.

Meanwhile, some business groups are planning a multi-tiered attack on OSHA's ergonomics rule, Biderman says. In addition to pursuing lawsuits, business groups are pushing Congress to invoke the never-before-used 1996 Congressional Review Act that allows Congress to invalidate an executive rule within 60 days of the rule's issuance.

"We have no choice," Patrick Cleary, the National Association of Manufacturers' vice president for human resources policy, told the Associated Press. "This rule is a killer for us."

While OSHA predicts that the rule eventually will save businesses billions of dollars in workers' comp and lost work time, some business leaders contend the rule could cost U.S. employers as much as $90 billion annually.