On March 1st the Occupational Safety and Health Administration (OSHA) released the premiere issue of a new electronic communication tool that is available by e-mail to subscribers on a regular basis.

Called QuickTakes, it is an e-news memo of activities and announcements and will often contain links to related sites. Click on the QuickTakes link at www.osha.gov and follow the instructions to subscribe. If you do not choose to receive QuickTakes automatically, you may view them on the OSHA web site.

Worker Illness and Injury Rate Hits Record Low

A total of 5.7 million injuries and illnesses were reported in private industry workplaces during 2000, resulting in a rate of 6.1 cases per 100 equivalent full-time workers, according to the Bureau of Labor Statistics, U.S. Department of Labor. Employers reported about the same number of cases compared with 1999 and a 2% increase in the hours worked, reducing the case rate from 6.3 in 1999 to 6.1 in 2000. The rate for 2000 was the lowest since the Bureau began reporting this information in the early 1970s.

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U.S. Secretary of Labor Elaine L. Chao released the following statement:

"Today’s announcement is good news for both workers and those who employ them. Workplace injury and illness rates declined in 2000, to the lowest level since the Bureau of Labor Statistics began reporting this data in the early 1970s. This data shows that our nation’s workplaces continue to become safer and healthier each year.

While the number of injuries and illness cases remained basically the same as reported in 1999—5.7 million—the number of hours worked rose by 2%, resulting in a lower injury and illness rate of 6.1 cases per 100 workers. Injury and illness rates in more dangerous occupations such as construction and manufacturing also continued to decline.

We must keep improving upon this positive trend in workplace injury and illness rates, through proper enforcement of health and safety standards, as well as OSHA’s model compliance assistance program."

U.S. Supreme Court Rules that Seniority Trumps Disability Accommodation

On April 29th the United States Supreme Court decided the case of US Airways v. Barnett. By a vote of 5 to 4, the court concluded that, as a matter of law, when reasonable accommodation under ADA conflicts with established seniority systems, the seniority systems win.

The details of the case are:

In 1990, Robert Barnett injured his back while working in a cargo-handling position at US Airways, Inc. He invoked seniority rights and transferred to a less physically demanding mailroom position. Under US Airways’ seniority system, that position, like others, periodically became open to seniority-based employee bidding. In 1992, Barnett learned that at least two employees senior to him intended to bid for the mailroom job. He asked US Airways to accommodate his disability-imposed limitations by making an exception that would allow him to remain in the mailroom. After permitting Barnett to continue his mailroom work for five months while it considered the matter, US Airways eventually decided not to make an exception. And Barnett lost his job.

Barnett then brought this ADA suit claiming, among other things, that he was an "individual with a disability" capable of performing the essential functions of the mailroom job, that the mailroom job amounted to a "reasonable accommodation" of his disability, and that US Airways, in refusing to assign him the job, unlawfully discriminated against him.

The District Court found that the undisputed facts about seniority warranted summary judgment in US Airways’ favor. The Act says that an employer who fails to make "reasonable accommodations to the known physical or mental limitations of an [employee] with a disability" discriminates "unless" the employer "can demonstrate that the accommodation would impose an undue hardship on the operation of [its] business." The court said:

"[T]he uncontroverted evidence shows that the USAir seniority system has been in place for ‘decades’ and governs over 14,000 USAir Agents. Moreover, seniority policies such as the one at issue in this case are common to the airline industry. Given this context, it seems clear that the USAir employees were justified in relying upon the policy. As such, any significant alteration of that policy would result in undue hardship to both the company and its non-disabled employees."

An en banc panel of the United States Court of Appeals for the Ninth Circuit reversed this decision. It said that the presence of a seniority system is merely "a factor in the undue hardship analysis." And it held that "[a] case-by-case fact intensive analysis is required to determine whether any particular reassignment would constitute an undue hardship to the employer."

US Airways petitioned the US Supreme Court to decide whether "the [ADA] requires an employer to reassign a disabled employee to a position as a ‘reasonable accommodation’ even though another employee is entitled to hold the position under the employer’s bona fide and established seniority system."

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U.S. Supreme Court Hears Arguments in Second Important Disability Case

On February 27th the United States Supreme Court heard arguments in the case of Chevron v. Echazabal, which will determine whether an employer can exclude a disabled employee from work if the job might jeopardize the employee’s health.

The case concerns Mario Echazabal, who worked in Chevron’s refinery in El Segundo, California, for 20 years as an outside contractor before applying to Chevron for a job. Chevron withdrew its job offer when on the employee entrance exam, Mr. Echazabel was discovered to have asymptomatic chronic active hepatitis C. Chevron based its rejection on the concern that exposure to solvents and chemicals would make the liver disease worse.

This case brings into sharp focus a little-discussed inconsistency in the crafting and implementation of the Americans with Disabilities Act (ADA). ADA allows the denial of employment if employment would create a "direct threat." The Act defines "direct threat" as "direct threat to the health or safety of other individuals in the workplace." In implementing the Act, the Equal Employment Opportunity Commission (EEOC) expanded the definition beyond that passed by Congress to "a significant risk of substantial harm to the health or safety of the individual or others..." Obviously, this expansion makes a huge difference. Congress’s formulation does not allow the consideration of potential health risks on the individual in hiring decisions, only whether the employee can perform the essential job functions. Congress specifically rejected a broader approach. The EEOC, nonetheless, implemented a broader definition, setting up the conflict and the basis for this case.

During the arguments before the Supreme Court, the justices expressed concern about tying the hands of companies as it relates to allowing a worker to perform a job that might be dangerous to the worker’s health. Justice Kennedy stated: "We want employers to care about their employees."

Previously, the 9th U.S. Circuit Court of Appeals ruled that the health risk was not enough to disqualify Echazabal.

On January 8th the Supreme Court, in a unanimous decision in the case of Toyota v. Williams, limited the ADA’s definition of disability to impairments that prevent major daily life activities.

The case concerned Ella Williams who worked on an assembly line at a Toyota plant in Georgetown, Kentucky. She developed carpal tunnel syndrome and tendonitis after beginning work at the plant in 1990. She was transferred to another job where the symptoms eased. But when her duties were subsequently increased, her symptoms returned. Williams asked to be reassigned to her former job and when Toyota refused to limit her duties, she sued.

Justice Sandra Day O’Connor, writing for the court, stated:

"We therefore hold that to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives. The impairment’s impact must also be permanent or long-term."

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Magnets No Better Than Placebo in CTS

A small, double blind, randomized clinical trial performed by Richard Carter and colleagues and published in the January 2002 edition of the Journal of Family Practice finds that: "The use of a magnet for reducing pain attributed to carpal tunnel syndrome was no more effective than use of the placebo device."

The study examined 30 patients with pain attributable to carpal tunnel syndrome. Patients were treated with either a real or a sham magnet. Both treatments produced a reduction in pain but there was no difference between the two treatments.

Tuberculosis Comments Extended

In March the Occupational Health and Safety Administration (OSHA) announced it was extending until May 24, 2002 the period for comments on the tuberculosis (TB) rulemaking record. The TB record was reopened on January 24th for 60 days to allow interested parties the opportunity to review and comment on the agency’s final risk assessment and the Institute of Medicine’s IOM report "Tuberculosis in the Workplace." The agency’s draft risk assessment was also included in the record. The 60-day extension was requested by the Association for Professionals in Infection Control and Epidemiology, the American Health Care Association, and the American Society for Microbiology. Visit www.osha.gov.

Personal Hydration Systems

Heat stress is less of a threat for field workers thanks to a new concept in personal hydration. Utility workers in Jacksonville, Florida, are wearing a personal hydration system that is worn like a backpack and holds several hours’ worth of cool drinking water within reach. Visit www.ohsonline.com.