A recent Supreme Court decision has given employers a free hand in excluding workers who may have a preexisting health condition. In this case the preexisting health condition would be one which might become worse given the chemicals that the employing company may be exposing workers to.
Or, for example, if a worker is found to be sensitized to the fumes from an industrial solvent odor, and complains that the odor causes severe breathing problems, the employer can refuse to change the solvent. It is up the worker to either put up with the chemical danger or find another job. To the unwary person this may sound rather logical. Shouldn’t the job applicant be warned, and in this case, be barred from a job that might make his or her condition worse?
The attorneys for the company, ChevronTexaco Corp., who appeared before the Supreme Court, actually said that not allowing the employer to refuse work to these workers would make the company “complicit in a suicide attempt.” Attorneys for Jackson Lewis, the most notorious anti-union law firm in the U.S., said, if the Supreme Court ruled on behalf of the worker, it “would have created a head-on collision with OSHA.” They were right, but, obviously, for the wrong reasons.
The right-wingers on the Supreme Court, and their supporters, were targeting the Americans with Disabilities Act (ADA), the law that provides economic and political equity to millions of disabled people.
Labor, political action and disability organizations have been trying to expand the scope of the ADA since its enactment. But the forces of profit and greed have also been working, trying to restrict its scope to the point of ineffectiveness, which is a form of repeal.
What the companies in this case are saying, although not openly, is that occupational health problems brought on by chemical exposures in production are not going to change. Worker and union activists were hoping that passage of the ADA would be another valuable tool in forcing scofflaw employers to fix their workplaces for already-hired workers and those who would seek employment in the future and that ADA meant that employers had to make the factories and offices of our country safe for everyone.
This does not mean, for example, if a worker is having a negative reaction to an industrial solvent, he or she has no recourse. It is not uncommon, for example, for the odor from an industrial solvent to cause headaches and other reactions in some workers.
The union and the working agreement is the first line of defense for workers. The affected worker must talk with his or her shop steward. The steward and an official of the union should approach management with the request for another solvent to be used.
But, the laws of the land, such as OSHA, were not meant to be enforceable only if you have a union to back you up. They are meant to protect everyone. Constitutional and labor advocates need to analyze this decision, pick it apart and begin the process of entering another case that limits its impact. The ChevronTexaco case cannot be left standing as is. It may require special congressional legislation to reverse this trend. A new Congress after the 2002 elections can make this possible.
The author can be reached at pww@pww.org
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