Employers Face Growing Headaches Under New Federal Rules

A new ergonomics requirement is likely to bring added cost and confusion to employers. The Occupational Safety & Health Administration is proposing that a column be added to the OSHA 300 log, which employers use to record workplace injuries and illnesses. That column would track musculoskeletal disorders, or MSDs. OSHA officials say the goal is to help employers identify workplace hazards.

Employers are unhappy, though, because even minor MSDs would have to be recorded. Business groups say the requirement is unreasonable, in part because it’s often impossible to tell whether an MSD is work-related. If someone hurts his back at home, for example, and then has pain lifting on the job, what category would that fall in? An employer who guesses wrong could be subject to a penalty for a recordkeeping violation.

The biggest concern is that the recordkeeping requirement is only the start. Companies fear that OSHA will use the data to justify tough new ergonomic standards that will be expensive and disruptive. One approach would require employers to have injury and illness prevention programs and include an ergonomic standard as part of the programs. That would keep OSHA from running afoul of the Congressional Review Act, which was used to repeal the Clinton ergonomics rule and which forbids OSHA from proposing a similar rule.

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Other changes in federal rules and procedures that could be problematic for employers are also in the works. Firms could have a tougher time defending against age discrimination cases after the Equal Employment Opportunity Commission issues rules responding to two U.S. Supreme Court decisions. In Smith v. City of Jackson, the court ruled that employment practices that have a disparate, adverse impact on workers aged 40 and older may violate the Age Discrimination in Employment Act. Then, in Meacham v. Knolls Atomic Power Lab, the court found that if an adverse impact is shown, employers have the burden of proving the employment practice was based on “reasonable factors other than age.”

The EEOC proposal would define “reasonable factors other than age” in a way that would lead to a much narrower defense than that now in use. But a final rule may take some time, since the EEOC lacks a quorum to issue rulings, and Republicans aren’t likely to hurry action on any of Obama’s three nominees.

Also worrying employers: A likely break in the impasse at the National Labor Relations Board. The NLRB has been hobbled by the lack of a quorum, with only two of five slots filled, for more than two years. Controversial issues are on hold, but the sitting members have issued 500 rulings, though their legitimacy is under challenge in the courts.

Republicans are blocking Craig Becker, one of Obama’s three nominees. Business groups insist he’s a pro-labor radical, but labor unions are insisting that Obama not withdraw the nomination. A recess appointment once Congress breaks for Easter is a good bet. Once the board has a quorum, it could reaffirm the challenged rulings to give them more legitimacy, if need be. Also, an Obama board is expected to overturn many of the decisions made during the Bush administration.

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