ERGONOMICS -- HISTORY OF CALIFORNIA STANDARD

In 1993, Assembly Bill 110 also added a new Section 6357 to the Labor Code, which required the California Occupational Safety and Health Standards Board--an agency separate and independent from the Division of Occupational Safety and Health--to adopt

"[O]n or before January 1, 1995... standards for ergonomics in the workplace designed to minimize instances of injury from repetitive motion."

At the time the legislation passed in mid-1993, the California Occupational Safety and Health Standards Board ("Standards Board") was relying on the Division of Occupational Safety and Health and its public Ergonomics Advisory Committee to develop an ergonomics standard for the Standards Board's consideration and adoption. In November of 1993, a Notice of Public Hearing was published in the California Notice Registry which contained the ergonomics standard (8 CCR Section 5110) proposed by the Division based on the public advisory committee process. In November of 1994, after two large public hearings, and the submission of over 6,500 written comments, the Standards Board voted down the proposed Section 5110 standard.

On 19 January 1995, the Standards Board was sued by the California Labor Federation, and three named injured workers, in Superior Court in Sacramento, California for its failure to "adopt" a standard "to minimize instances of injury from repetitive motion" by 1 January 1995. The Superior Court ordered the Standards Board to develop and adopt a standard which complied with Section 6357 by 1 December 1996.

In December of 1995, the Standards Board published a Notice of Public Hearing which contained a proposed repetitive motion standard. Hearings on the proposed standard were held on 18 (Los Angeles) and 23 (Sacramento) January 1996.

On 14 November 1996, the Standards Board adopted a new 8 CCR Section 5110 entitled "Repetitive Motion Injuries."

The Standards Board's adoption met the 1 December 1996 deadline established by the Sacramento County Superior Court. However, on 3 January 1997, the California Office of Administrative Law disapproved Section 5110 and returned it to the Standards Board "because Section 5110 fails to satisfy the clarity standard of Government Code Section 11349.1." Within 120 days (as permitted by the California Government Code), the Standards Board resubmitted Section 5110 to the Office of Administrative Law for its approval.

The Office of Administrative Law approved 8 CCR Section 5110 on 3 June 1997, and the new repetitive motion injury standard became legally enforceable in California on 3 July 1997.

In mid-1997, Section 5110 was challenged by both organized labor and employer representatives in the Sacramento Superior Court. On 15 October 1997, Superior Court Judge James T. Ford issued a Minute Order and made the following changes to Section 5110 and declared the remainder to be valid:

(1) Judge Ford modified subsection (a)(1) to strike the words "predominant" and "(i.e., 50% or more)";

(2) Judge Ford modified subsection (a)(3) to strike the word "objectively;"

(3) Judge Ford modified subsection (a) by striking the words "Exemption: Employers with 9 or fewer employees," following subdivision (a)(4); and

(4) Judge Ford modified subsection (c) by striking the entire subsection (c).

On 12 December 1997, the Occupational Safety and Health Standards Board, as well as the American and California Trucking Associations, filed an appeal of the Superior Court Order with the Third Appellate District of the California Court of Appeals in Sacramento.

On 13 March 1998, the Third Appellate District stayed Judge Ford's Order of 6 February 1998 (issued at a special hearing on that date), thus reinstating the wording of the standard as adopted by the Standards Board on 14 November 1996.

On 29 October 1999, the Third Appellate District of the Court of Appeal reversed in major part the judgment of the Superior Court.

The Court of Appeal concluded on the appeal by the Standards Board and the Associations

"that, except for one conspicuous exemption, the regulation [8 CCR Section 5110] is valid, that the trial court improperly invaded the rulemaking authority of the [Standards] Board by striking the remaining provisions and that the APA-based challenges to the regulation are meritless."

The "one conspicuous exemption" that the Court of Appeal found defective in the Standards Board's regulation was the small employer exemption, found in 5110, subsection (a).

The trial court had ruled this provision was inconsistent with the Standards Board's statutory authority to "minimize RMIs in the workplace." On this issue, the Court of Appeals agreed with the trial court, stating that a standard which excludes four out of five workplaces is inherently inconsistent with [the Board's statutory] responsibility to promulgate standards for minimizing RMIs in all places of employment in California.

In addition, the Court of Appeal specifically found that there was no reason to return the entire regulation to the Standards Board for more rulemaking just to sever the invalid small employer exemption. As a result, the small employer exemption in Section 5110 ceased to have any legal effect.

Neither the Standards Board nor the employer trucking associations filed a petition for hearing in front of the California Supreme Court. Thus, litigation over California's ergonomics standard concluded approximately three years after the Repetitive Motion Injury Standard was adopted by the Standards Board.

Despite the end of appellate litigation mostly in the favor of the Standards Board, the Legislature in 1999 reaffirmed its continuing concern over the prevalence of repetitive motion injuries in California workplaces and reminded the Occupational Safety and Health Standards Board of its continuing duty to carry out Labor Code Section 6357.