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Both business and labor groups have sued over massive new ergonomics standards issued by the federal Occupational Safety and Health Administration (OSHA). National trade organizations and labor unions rushed to federal courts seeking to influence or block enforcement of the rules, which tell employers and employees how to settle arguments over soft-tissue injuries caused by repetitive job actions. As expected, big business sued because, it says, OSHA went too far in protecting overworked employees. Labor, which generally backs OSHA on pro-employee standards, wants to litigate points on which it feels the agency caved in. Business groups also charge, despite OSHA’s denials, that the Clinton-led agency rushed the new standards to a premature release to head off the possible swearing-in of a Bush administration early next year. “There is no question that the Department of Labor was on track to issue this rule at all costs prior to any change in Administration, and in its rush to judgment made many mistakes,” asserted Willis J. Goldsmith, a lead litigator for the U.S. Chamber of Commerce and a partner in the Washington, D.C., office of Jones, Day, Reavis & Pogue. Despite OSHA’s assurances that it followed the letter of the law when it adopted on Nov. 14 the ergonomic standards scheduled to take effect in stages beginning on Jan. 16, 2001, the business lawyers insist that the “accelerated” public hearings schedule followed this past summer and fall, even if technically allowed by law, were too short for so large a project. For instance, they note, OSHA issued its proposed standards a year ago on Nov. 19, 1999. The agency’s final version was submitted to the Office of Management and Budget on Nov. 3 for its required financial analysis, a few days before it was adopted. “Here, we had some of the most comprehensive regulations ever adopted in history [done so] with the speed of light,” says Peter A. Susser, a managing partner in the Washington, D.C., office of San Francisco’s Littler Mendelson. The government says that a decade of work has gone into the standards. “The Department of Labor began its work on ergonomics more than 10 years ago, under Elizabeth Dole,” says Deputy Solicitor Sally P. Paxton. “It should come as no surprise. We did what we said we’d do all along.” Nor do the agency’s supporters on the labor side of the three-way fight believe that such conspiracy allegations will carry the day in court. “The people now saying there was a rush to judgment are the same people who failed to cooperate” in adopting acceptable ergonomic standards “all these years,” says George Cohen, a lead AFL-CIO attorney and a partner at Washington, D.C.’s Bredhoff & Kaiser. ‘BREATHTAKING IN THEIR BREADTH’ The business allegation that OSHA is guilty of a power grab is not limited to the agency’s purported clever use of the procedural law in a presidential election year. OSHA’s key Ergonomics Standards — generally made applicable to all employers and the 102 million employees already covered by OSHA’s enabling statute — are so inclusive as to be nothing short of “breathtaking in their breadth,” argues the national Chamber’s general counsel, Stephen A. Bokat. But the otherwise supportive labor groups are criticizing the OSHA standards for not reaching far enough. Cohen, who says his own petition for review was filed on behalf of the AFL-CIO, will argue that OSHA’s exemption for the railroad, construction, maritime and agriculture industries should have been omitted from the final standards. The courtroom showdown won’t happen anytime soon. According to OSHA, business groups have filed the necessary one-paragraph petitions for review at the U.S. Circuit Court of Appeals for the District of Columbia, as well as the 4th and 5th Circuits. Labor unions have filed similar petitions for review in the 1st, 2d, 3d and 9th Circuits. Washington’s Judicial Panel on Multi-District Litigation is expected to hold a lottery by the end of this week to determine which of those circuits will actually hear the consolidated petitions. But the statement of the issues and legal briefs that will flesh out each side’s arguments is weeks, if not months, from being required. “Picking which legal arguments to target will be our hardest job,” says Baruch A. Fellner, a partner at Los Angeles’ Gibson, Dunn & Crutcher who represents 60 companies that make up the National Coalition on Ergonomics. Most lawyers agreed that a definitive court ruling should not be expected before next November. Of course, should George W. Bush be inaugurated in January and a Republican be appointed to head OSHA, the possibility of an “administrative stay” of the standards would presumably increase substantially, thereby obviating the need for a courtroom resolution. So, what is so formidable — and disconcerting — about OSHA’s new standards? After all, the agency says that they should save the country $9 billion annually and don’t even need to be “communicated” in full to employees or otherwise implemented in full until after Oct. 15, 2001. The answer lies in their breadth. The 700 pages of standards reads as applying to all musculoskeletal disorders — including tendinitis and back injuries — that can be caused by workplace exposure to certain risk factors. When most such incidents are reported, an “action trigger” provision requires the employer either to find a quick-fix solution or to implement a full ergonomics program, which may entail elaborate job-hazard analysis and training. Besides requiring the employer to provide medical benefits and temporary workers’ compensation-like payments for covered employees, merely “serious” or “nonserious” violations of the new safety rules can trigger a $7,000 fine. Repeated or willful offenses can draw fines of up to $70,000. “Egregious” missteps can result in multiplying such fines times the number of incidents involved. The AFL-CIO’s Cohen calls the triggering events unduly restrictive. The business lawyers insist that these triggered remedies and related provisions promise to be very expensive. The business-friendly Employment Policy Foundation has estimated the standards’ first-year costs to American businesses as $100 billion, compared to OSHA’s $4.5 billion estimate. The standards also conflict with other federal statutes, such as the Americans With Disabilities Act, business groups argue. The new standards also violate the OSHA statute’s ban on workplace rules that duplicate the remedies of the states’ workers’ compensation statutes, says Thomas Sullivan, an attorney and executive director of yet another of the litigating parties, the National Federation of Independent Business. OSHA Associate Solicitor Joseph M. Woodward acknowledges that those issues were a major bone of contention during the public-hearing process. But he says that the agency carefully reviewed the case precedents and came away convinced that the standards would pass muster in court. PREPPING CORPORATIONS Meanwhile, private law firms have begun prepping their corporate clients on how to deal with the complex new rules, should they be upheld. Littler’s Susser says he is advising his larger business clients to begin reviewing OSHA’s formidable new rules, many of which contain new concepts and catchwords never heard of before by many businesspeople, such as “MSD incident.” He also urges all businesses to assess their workers’ compensation and health benefits claims records to identify any “areas of focus” that might call for special attention. Another Littler shareholder, San Francisco’s Jeffrey M. Tanenbaum, says that he is recommending clients develop a written ergonomics program. Such investments might be especially wise, they noted, in light of OSHA’s high success rate in challenges to its major regulatory initiatives. Concludes Paxton, “Our success rate in the past has been good, but we will put our best arguments forward and let the courts decide” who wins.

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