When Congress eliminated OSHA’s ergonomics rule in 2001, it was also generally understood that the agency could not issue a new rule that was “substantially the same” as the old one. But what if a new ergonomics rule wasn’t substantially the same?
A University of Pennsylvania Law School paper, A Cost-Benefit Interpretation of the ‘Substantially Similar’ Hurdle in the Congressional Review Act: Can OSHA Ever Utter the E-Word (Ergonomics) Again?, makes the case for a new ergonomics standard.
“What kind of phoenix, if any, is allowed to rise from the ashes of a dead regulation?” the authors ask.
It’s uncharted legal territory. Overturning OSHA’s ergonomics rule is the only time the Congressional Review Act (CRA) has ever been used. And so far, OSHA hasn’t issued a new ergonomics standard. Therefore, neither Congress nor any court has ever had to weigh in on whether a new rule to combat workers’ musculoskeletal disorders (MSDs) would be banned because it would be substantially the same as the old one.
Looking back at the arguments against the 2000 ergonomics rule, the authors note that a key objection was the balance of costs to benefits.
So they conclude that, as long as OSHA would produce a new regulation with a significantly more favorable balance of costs and benefits than the overturned rule, the agency could issue a new ergonomics standard within the bounds of the CRA.
How OSHA could do it
How would OSHA make sure the new rule is not substantially the same as the old one?
The authors argue that one of OSHA’s key mistakes when it issued the 2000 ergonomics rule was making it too flexible. The flexibility made the rule vague, which in turn made it difficult for businesses to achieve benefits that exceeded costs.
The paper calls, instead, for a “hybrid” rule:
“one that provides enough specificity about how to comply that small businesses cannot claim they are adrift without guidance, but one that also allows unlimited innovation so long as it is at least as effective as the permitted controls would be.”
This would allow businesses to choose either safe solutions that match OSHA guidance or develop a site-specific plan that would achieve equal or better results and could cost the company even less.
The report also calls for OSHA, this time around, to use “exposure ceilings” instead of “exposure floors.” OSHA would need to set limits, just as it does with its permissible exposure limits (PELs) for hazardous substances. Exposures above a ceiling would have to be addressed.
Another place where OSHA got in trouble with the 2000 rule: determining whether MSDs are work-related.
The 2000 standard defined a work-related MSD as one that workplace exposure “caused or contributed to.” Opponents of the measure argued that businesses would become financially responsible for too many injuries that weren’t truly caused by work.
The authors suggest a new definition that would simply require a medical opinion that the “MSD would not have occurred absent the occupational exposure.”
In summary, the report says OSHA should not reissue the ergonomics rule in anything like its past form, not because of the CRA, but because the original regulation was substantially flawed. However, they say that a new ergonomics standard with a much more favorable cost-benefit ratio for businesses should be issued. They say the CRA gives agencies a second chance to “get it right.”
Do you agree with the authors that a new ergonomics standard could be issued if it isn’t substantially the same as the previous one? And, should one be issued? Let us know what you think in the comments below.
You can download a PDF of the paper here.