A new bill was just introduced in Congress that marries the bad old days with the bad new days. The Warehouse Worker Protection Act (WWPA) would result in the Occupational Safety and Health Administration (OSHA) issuing a new ergonomics standard along with giving unions a streamlined approach to organizing warehouses and denying employers their due process rights for certain OSHA citations.
To refresh, at the end of the Clinton Administration, OSHA issued a standard on how employers were to protect their employees from ergonomic hazards, such as repetitive motions, that OSHA believed could lead to musculoskeletal disorders (MSDs) or soft tissue injuries. The regulation was highly controversial at the time, and the subject has remained radioactive.
Shortly after the standard was issued, Congress recorded the first successful use of the Congressional Review Act, invalidating the OSHA ergonomics standard with strong bipartisan support. But, like the 17-year cicadas, the ergonomics standard went underground for a while. Now, the Warehouse Worker Protection Act would allow it to emerge again. For OSHA to proceed with a new regulation, Congress must specifically authorize that to happen, which is what the WWPA would do.
One of the reasons the ergonomics regulation generated so much opposition was that it would have held employers accountable for employee injuries or strains that happen outside the workplace, but because the workplace could exacerbate them, it would be converted into workplace injuries. If an employee sprained an ankle during a weekend softball game and couldn’t put pressure on that ankle at work, that would become a workplace-related injury that could trigger ergonomic remedial measures.
In some cases, employees do the same activities at home that they do at the workplace, like working on computers. If an employee complained about wrist discomfort or carpal tunnel syndrome, how could an employer distinguish between the home-based computer activities and those at work that could be the source of the problem? The required workplace redesigns would be excessively burdensome, especially for small businesses.
Under the WWPA, employers would be required to include employees or their representatives in identifying hazards and ergonomic job evaluations. This would lead to unions deciding how workplaces will be designed for maximum union benefit. And hazard control “may rely on the principles of hierarchy of controls”—this means that employers could be required to redesign workplaces under the engineering controls prong of the hierarchy, the highest and most expensive level of protection, which is characterized by reconfiguring a workplace.
In addition to resurrecting the most odious OSHA regulation in the agency's history, the bill would also give unions a greased path to organizing warehouses. The bill creates a new unfair labor practice (ULP) if an employer imposes an employee quota “that significantly discourages or prevents, or [is] intended to significantly discourage or prevent, an employee from exercising” their NLRA Section 7 rights to organize. When this new ULP is coupled with the NLRB’s Cemex decision that imposes a card check organizing process if a company is found to have committed a ULP, it will provide a green light for unions to organize any warehouse or distribution facility covered by this bill.
Finally, the bill would also mean employers who receive a willful or repeat violation citation (for any violation, not just those covered by this bill) would be required to abate the alleged hazard before they have exhausted their ability to challenge the citation. Current law lets employers pursue their challenges as far as they can before having to abate an alleged hazard.
Hazard abatement is often considerably more expensive than the penalties of a violation. Under the bill, they will have to abate an alleged hazard regardless of whether they prevail on their challenge, thereby denying them their due process rights.
The WWPA is a bad bill whose time has not come.
About the authors
Marc Freedman
Marc Freedman is vice president of workplace policy at the U.S. Chamber of Commerce. He develops and advocates the Chamber’s response to OSHA matters; FLSA issues such as overtime, minimum wage, and independent contractors; paid leave issues; EEOC, and other labor and workplace issues.
