Proposed ergonomic standards creating controversy, threats
Are mandated worksite changes a sign of things to come?
Workplace ergonomic standards a touchstone for controversy in many U.S. businesses are again emerging as a particularly odious issue, with threats of lawsuits even before the standards are in place.
Outgoing Secretary of Labor Robert Reich recently announced that the Occupational Safety and Health Administration (OSHA) will revisit the possibility of national ergonomic standards after years of inaction. California, often the leader in emerging national issues, has ignited a major controversy by becoming the first state in the nation to propose an ergonomic standard. (See story, below.)
In both cases, these intentions suggest a return to an issue that will cost you time and money either to implement or in the case of several companies who already have stated their opposition to fight.
There is clearly a place for ergonomic standards, especially in companies where ergonomic issues are not being addressed proactively, says Mike Fleming, ergonomics manager for Sara Lee Knit Products (Hanes Apparel Division in Winston-Salem, NC). "But it needs to be a cooperative standard between employers and OSHA," he asserts.
Increasingly, state governments are sending out the message that if companies are trying to do the right thing, they are willing to help, says Fleming. "Several states, including North Carolina, have a CAP [Cooperative Assistance Program] agreement for ergonomics," he says. "There is a multi-year agreement between the state [NC], OSHA, and the employer where the state writes out and helps the employer implement an ergonomics plan."
The same is true in California, where the San Diego-based California Occupational Safety and Health Administration’s (Cal/OSHA) Safety and Health Standards Board framed its motives for establishing such standards: "To effectively regulate the prevention of repetitive motion injury [RMI] without imposing a costly regulatory burden on a vast number of employers."
Employer must take action for RMIs
At first glance, the proposed California standard seems fairly straightforward and relatively innocuous hardly the sort of document that would spur a lawsuit. It would apply to all companies with 10 or more employees and would be activated by "injuries resulting from a repetitive job, process, or operation of identical work activity at the workplace which have been the predominant cause of a diagnosed, and objectively identified, musculoskeletal injury to more than one employee in the last 12 months."
If this should occur, the employer would be required to:
• establish and implement a program designed to minimize RMIs;
• evaluate each identified work activity for exposures that have caused RMIs;
• control exposures that have caused RMIs;
• provide employee training that includes an explanation of the program and exposures listed above, symptoms and consequences of injuries caused by RMIs, the importance of reporting symptoms and injuries to the employer, and methods used by the employer to minimize RMIs.
The standard, mandated by California’s Workers’ Compensation Reform Act of 1993, is intentionally vague, in the wake of a successful legal challenge to an earlier version. Its "middle of the road" tone is intended to please everybody.
However, it has apparently done just the opposite, admits Rick Rice, deputy director of the state Department of Industrial Relations. "Labor doesn’t like it because they don’t think it’s strong enough," he says. "And employers don’t like to be regulated at all."
Do we know enough yet?
One of the major concerns about the proposal is that the current body of scientific knowledge about ergonomics limits the creation of standards of any kind.
"We think the concept of ergonomics is a sensible one that can be positive for employers and employees. But if you ask physicians, you’ll find no consensus as to what the causes of RMI are, or most importantly, what you can do to prevent them or to remedy them once employees are suffering from RMI," notes Al Lundeen, communications director of The Coalition for Common Sense based in Sacramento. The coalition is an interest group established specifically to fight the ergonomic standard.
Lundeen notes that the coalition includes the California Orthopaedic Association, adding, "It is unusual for them to show such political involvement. We believe the docs are the ones who should hammer out the debate."
Laurie Baulig, JD, vice president for labor and human resources for the Alexandria, VA-based American Trucking Association (ATA), agrees. "Our overarching concern with ergonomic regulations of any kind is that there is insufficient scientific evidence to connect specific activities in the workplace with specific types of injuries," she says. "A number of companies, including IBM, have successfully defended lawsuits alleging that keyboards caused carpal tunnel syndrome because the argument lacked scientific foundation."
Requirements imposed only if problem exists
However, in announcing the California proposal, standards board executive officer John MacLeod noted that the standard was created precisely with the lack of scientific evidence in mind. "Because of the lack of scientific consensus as to the direct cause of repetitive motion injuries, the regulation adopted today focuses only on worksites where the problem actually exists and does not impose requirements on employers unless there is truly a problem," he said.
But the 30,000-member ATA (primarily comprising trucking companies) is so vehemently opposed to the California standard, says Baulig, that "if the OAL in California approves the standard and we expect it will we will file suit challenging the standard."
Critics say laws will be costly
Baulig asserts that the costs of complying with the California regulations or with other similar standards that may be proposed in the future, could have a deleterious effect on wellness programming. "Our concern is for the economic impact such regulation will have on employers," she explains. "If we don’t know specifically what causes these injuries or what steps we should take to prevent them, we may spend a lot of money on a grand experiment rather than spending it on what we know works wellness programs and other programs dealing with health and safety."
In fact, an economic impact report commissioned by the Coalition for Common Sense indicates that the proposed ergonomic regulation would cost California taxpayers and businesses $9.7 billion and result in 12,000 lost jobs.
Also, under the proposed standard, Baulig notes, even companies who institute comprehensive ergonomics programs can be cited simply for failing to complete the appropriate paperwork.
A critical problem with the standard, adds Lundeen, is that no two employees are identical, which he says dooms the pursuit of ergonomic standards to failure. "Two people who are physically different could perform that same task, say keyboard typing, and one might become injured after a certain number of hours, while another might not," he explains. "To say that x’ amount of repetitive motion will cause an injury is simply inaccurate."
Not only is each employee unique, says Lundeen, but so is each workplace. "You could lock every employer into specific responses that may not fit in their place of work," he asserts. "Why should employees who work on a conveyor belt be locked into the same standards as barbers or keyboard operators?"
Workers decide what’s best for company
In short, he says, employers and employees should make the decisions about how to best integrate the worker and the work environment. Besides, he notes, employees already have recourse available to them through Cal/OSHA if they feel they are in an unsafe work place.
Baulig agrees. "We know that in our own industry, we have more injuries related to slips and falls than to RMI," she says. "We’d rather invest in nonskid shoes and floors and education programs for a particular worksite and employees."
"Labor also does not like the fact that you have to have two diagnosed injuries," adds Baulig. She notes, however, that the potential lawsuits do not guarantee a delay in implementation of the standard. "Will the standard be in effect while litigation is ongoing? That will be up to the judge," she says.
Meanwhile, it could be quite some time before you have to deal with federal ergonomics regulations at your worksite.
In his briefing, Reich said the process could take several years. Jennifer Silk, a representative of OSHA’s health & safety department, echoes that sentiment. "We have been precluded by Congressional budget riders from pursuing regulations, but we are now undertaking resumption of the rule-making process," she notes. "But it will take several years."
[Editor’s Note: For more information on the California ergonomics standard, contact: Rick Rice, Department of Industrial Relations, Division of Occupational Safety and Health, 7827 Convoy Court, Suite 406, San Diego, CA 92111-1218. Telephone: (619) 279-3771. Fax: (619) 279-2454.]
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