05/24/2006
NFIB Legal Foundation urges Michigan Court of Appeals to reverse ruling and allow business owners to regain control over assessing safety at the workplace
CONTACT: Melissa Sharp, (202) 554-9000
WASHINGTON, D.C.—The National Federation of Independent Business' Legal Foundation filed an amicus brief with the Michigan Court of Appeals urging the court to overturn a decision by the Michigan Occupational Safety and Health Administration that would require businesses to complete duplicative hazard assessments.
The statute in question is the Michigan Occupational Safety and Health Act. The relevant provision in the case before the court is identical to the federal OSHA provision and requires that "an employer shall assess the workplace to determine if hazards that necessitate the use of personal protective equipment are present or are likely to be present." The Michigan decision is contrary to decisions by 61 other federal and state OSHA jurisdictions.
"MIOSHA's decision will impose undue and unnecessary hardships on every employer subject to the MIOSH Act," said Karen Harned, executive director of NFIB's Legal Foundation. "If this ruling is not reversed by the Michigan Court of Appeals, all businesses in Michigan will be required to perform time-consuming and expensive safety assessments in workplaces where no hazards requiring PPE could possibly be present, such as offices."
Harned continued, "This is inefficient, financially burdensome and most likely will not yield any new safety precautions for workers. Instead, businesses will be required to perform identical, costly assessments on facilities where job performances have already been assessed, wasting valuable resources that could be used instead to help expand these businesses and hire new workers."
The case before the court is UPS v. Bureau of Safety and Regulations. According to MIOSHA, UPS violated the safety regulation, Rule 408.13308(1), when they hired a consulting firm to inspect UPS's aircraft facility workplaces to identify specific job performances that could require the use of PPE. The consulting firm chose to conduct the inspection at UPS's central hub in Louisville, Ky., because every specific job task that occurs in all of UPS's aircraft facilities also occurs at the Louisville location. The firm identified 10 specific job tasks that could require PPE and UPS updated its universal safety and health procedures to mandate the use of PPE for all UPS facilities including two in Michigan, one in Lansing and one in Romulus.
A union official filed complaints against this UPS practice, specifically targeting the Michigan facilities. As a result, UPS evaluated a second facility in Des Moines, Iowa, and found the Louisville assessment to have covered all concerns for health and safety. However, when the state inspected the Michigan facilities, they found no safety violations but still concluded that UPS' assessment practice was inadequate. This finding initiated the judicial proceedings by the parties.
