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Washington High Court Upholds State Enforcement Power Despite Voter Rejection of Ergonomics Regulations

  • November 22, 2006

In 2003, voters in Washington State repealed controversial ergonomics regulations, which had been promulgated by the state's Department of Labor & Industries. The regulations imposed extremely detailed requirements on employers, including the obligation to determine whether any jobs involved potential ergonomics-related hazards and, if so, to educate employees about those hazards. Now, the Supreme Court of Washington has sustained the authority of the state regulators to enforce ergonomics safety, despite the regulations being tossed out three years ago in the ballot initiative. [Jackson Lewis reported on the repeal, see http://www.jacksonlewis.com/legalupdates/article.cfm?aid=498.]

After the repeal of the regulations, the L&I attempted to investigate a complaint that a grocery distributor's workplace included ergonomic hazards. The employer obtained an injunction halting the investigation on the theory that repeal had eliminated L&I's inspection authority as to any ergonomics-related hazards. The Washington Supreme Court granted direct review and ruled, in an 8-1 vote, that L&I retains general regulatory authority, under the state's "general duty clause," to address serious ergonomics-related workplace hazards. SuperValu Holdings, Inc. v. Dep't of Labor & Industries, No. 76527-8 (Oct. 19, 2006).

The general duty clause is part of the Washington Industrial Safety and Health Act, the state equivalent of the federal Occupational Safety and Health Act. WISHA provides that each employer "(1) Shall furnish to each of his employees a place of employment free from recognized hazards that are causing or likely to cause serious injury or death to his employees: PROVIDED, That no citation or order assessing a penalty shall be issued to any employer solely under the authority of this subsection except where no applicable rule or regulation has been adopted by the department covering the unsafe or unhealthful condition of employment at the work place; . . . " RCW 49.17.060(1). The proviso in this section precludes L&I from using the general duty clause to issue a citation or to assess a penalty if there is a specific safety regulation that applies to the situation.

The case presented the question whether the voters intended to repeal only the specific ergonomics regulations, which were originally adopted in 2000, or also to repeal the L&I's authority to enforce the general duty clause with respect to serious ergonomics-related hazards. Holding that the L&I retained authority to enforce serious ergonomics-related hazards in situations that satisfy the general duty clause, the court said: (1) the plain language of I-841 specifically identified the precise ergonomics regulations being repealed, using their date and citations; (2) I-841 contained no reference to the general duty clause; and (3) WISHA must provide at least the same level of protection as OSHA, and the OSHA general duty clause now is used to investigate alleged serious, recognized, ergonomics-related workplace hazards.

The court emphasized that "L&I has a higher burden when proving a violation under the general duty clause than it does when proving a violation of a specific rule." The burden of proof under the Washington general duty clause is the same as under OSHA's general duty clause: the L&I must show the employer failed to make the workplace free of (1) a hazard, which (2) was recognized, and (3) caused or was likely to cause death or serious injury. L&I also must specify the particular steps the employer should have taken to avoid the citation, and the agency must demonstrate the feasibility and likely utility of those measures that should have been used to abate the cited hazard.

This case reminds employers in all jurisdictions that they must take corrective action whenever a workplace hazard is recognized (ergonomic or otherwise) that can cause serious physical harm. This obligation exists regardless of whether there is an applicable federal or state safety regulation, and regardless of whether the hazard is ergonomic in nature. Indeed, OSHA has continued to assert jurisdiction over ergonomics issues even though the federal ergonomics standard was revoked pursuant to Congressional action under the Congressional Review Act.

©2006 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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