Ergonomics rule hits major roadblock, but ultimate fate still unclear

Senate amendment means action probably delayed

The federal ergonomics rule is closer than ever to becoming final, yet it still may be more than a year before the rule is put in place.

The Senate passed an amendment recently that would force the Occupational Safety and Health Administration to take at least another year to fix problems with its proposed ergonomics rule.

Mike Enzi (R-WY), chairman of the Senate Sub-committee on Employment, Safety and Training, who offered the amendment, says OSHA must remedy the negative effects the rule could have on nursing home patients and states’ workers’ compensation systems, and explore a host of other potential snarl-ups the rule could create. Law-makers voted 57-41 to add Enzi’s amendment to the Labor, Health and Human Services (LHHS) Appropriations bill.

The amendment is identical to language inserted in the House version of the LHHS bill. The amendment would prevent OSHA from using money in the fiscal year 2001 appropriations bill to implement its proposed rule.

Enzi says he is concerned about the proposed ergonomics rule’s potential effect on the elderly who depend on Medicaid and Medicare for coverage of nursing homes stays, home health services, or other inpatient care.

Compliance with the new rule would force health care prices to go up, he says, but a ceiling on the reimbursement amounts for Medicaid and Medicare prevents patients and providers from absorbing the cost.

"But my issue with this rule is not that it will cost these facilities so much money," he says. "It’s that it will cost elderly and poor patients access to quality care. Sadly, these patients are already in danger of losing quality care. Many facilities dependent on Medicaid and Medicare are in serious financial straits, and implementing this sweeping and expensive proposed ergonomics standard is simply more than this industry can bear."

The ergonomics rule also would impose requirements on facilities concerning patient care and movement that may conflict with laws already on the books, Enzi says. The Nursing Home Act of 1987 provides important protections for patient dignity by giving patients the freedom to choose how they are moved. These protections may be at odds with the mandates of the ergonomics rule, he says.

Proposal conflicts with current laws

Enzi says the ergonomic rule is even in conflict with the law that created OSHA in 1970. The law states that OSHA may not "supersede or in any manner affect any workers’ compensation law." The Work Restriction Protection provision of the proposed ergonomics rule, in effect, creates a federal system of workers’ compensation that must be administered by OSHA.

The agency will be forced to divert considerable resources away from worker safety and health to workers’ compensation disputes about medical conditions and fault, according to Enzi.

Enzi says OSHA’s preparation of witnesses who were paid $10,000 each to provide testimony during the rule-making hearings also is suspect and should be evaluated. He claims that OSHA administrators took these actions:

• gave detailed outlines to at least some of the witnesses telling them what to say in their testimony;

• told at least one expert witness that they wanted a stronger statement regarding the role of physical factors;

• heavily edited the testimony of at least some of the witnesses;

• held practice sessions to coach the witnesses in their testimony.

"A year’s stay also will give Congress the time to perform its appropriate oversight function and investigate serious concerns about the integrity of the rule-making process," he says.

The legislation will go to a Senate/House conference committee formed to work out any differences in the two bills. Each body will vote on the committee’s report before it is sent to the president for his signature.

Enzi says a year delay in the rule is reasonable because of the serious problems that already have been identified with the rule and because of its sweeping nature and complexity.

"This proposed rule is monumental in scope. Never before has OSHA tried to rush a rule that could have so much impact on so many people through in only one year. The agency did not accommodate the numerous requests to extend the remarkably short comment period. OSHA must take the time to evaluate the more than 7,000 comments it has received and try to solve the problems with the rule," he explains.

Whether or not ergonomics regulation is a good idea, Enzi says, businesses and workers certainly do not need the regulation OSHA has proposed. OSHA’s proposed rule does not advance worker safety and health, he contends. Rather, it focuses agency and employer attention and resources on complying with highly confusing and intricate requirements rather than preventing workplace injury and illness, adds Enzi.

"OSHA should take the time to promulgate a rule that is responsible and will truly help workers," he says. "Moreover, workers will still be protected by the general duty clause of the Occupational Safety and Health Act during the one-year delay."

The one-year delay is not welcomed by some. The Washington, DC-based American Nurses Association (ANA) strongly opposes any efforts to delay the rule, saying the new standard would protect nurses from disabling back injuries and musculoskeletal disorders (MSDs). With proper enforcement, the standard will not only prevent back injuries and MSDs, but will also improve patient care, says ANA president Mary Foley, MS, RN.

"Every day, nurses suffer debilitating, and often career-ending and life-altering injuries from lifting and moving patients," Foley says. "We should not have to jeopardize our own health while caring for patients. We have been debating this standard for more than 10 years while nurses continue to get injured, and many are choosing to leave the profession rather than risk injury."

Back injuries affect up to 38% of all nurses, according to the ANA. Patient handling, transfer, and manual lifting are significant risk factors for back injuries. The prevalence of back injuries among health care workers is so high, Foley says, that an enforceable requirement for evaluating the physical demands in patient care and implementing programs to prevent disabling back and upper extremity injuries is critical. These programs should involve frontline health care workers in the evaluation of the risks in the environment and recommendations for prevention, she says.

"While the debate about the ergonomics standard continues, thousands of nurses are being injured," Foley says. "The time is now for Congress to stop the politics and let OSHA step forward and protect health care workers from injury."

Emphasis on consultation, not punishment

Enzi won bipartisan agreement in the Senate to add language to an appropriations bill. The language would instruct OSHA to spend more of its money helping employers prevent worker deaths and injuries rather than concentrate solely on what happens after accidents.

Enzi’s amendment to the appropriations bill instructs OSHA to use $22.2 million for consultation programs to help employers comply with the new law. This is half of the $44.4 million budget increase it has requested over last year’s funding level. The amendment will be added to the $352.19 billion appropriations bill that is providing fiscal year 2001 funding to the Departments of Labor; Health and Human Services; Education; and other related agencies.

The Senate passed the LHHS appropriations bill on a vote of 52-43.

"My amendment requires OSHA to put half of the requested $44.4 million increase into consultation programs that help employers comply. Keep in mind, this still gives OSHA an increase of $22.2 million to use for enforcement activities if it wants to — so OSHA can continue to target bad actors with fines and keep them from becoming repeat offenders," Enzi says. "Any would be detractors of this amendment also should keep in mind that it says nothing whatsoever about how OSHA should spend the $382 million it received last year in its overall [operating] budget — although, believe me, I have plenty of ideas about that, too."

Enforcement vs. compliance

He says OSHA could do a better job of preventing the 16 deaths and 18,600 injuries that happen on the job each day if the agency would use more of its resources helping employers and employees comply with safety rules. But instead of an emphasis on compliance, OSHA plans to spend almost four times more on enforcement-related activities than it spends on consultation and education, he says.

"That is like saying after-the-fact punishment is four times as important as pre-emptive prevention," Enzi says. "That’s just not logical, particularly when you look at the details surrounding OSHA’s enforcement activities. Employers need help from OSHA to understand, interpret, and implement the more than 1,200 pages of highly technical safety regulations. Mountain Sports in Casper, the Owl Inn in Cheyenne, 84 Lumber Company in Rock Springs, and all other Wyoming businesses are required by law to know and adhere to the regulations contained in those 1,200 pages."

Enzi says statistics suggest that there is actually no correlation between OSHA’s enforcement measures and decreases in workplace injuries and illnesses. For example, between 1994 and 1996, the number of OSHA citations dropped by more than 62%. Yet during the same period, work-related injuries and illnesses dropped to their lowest rate in nearly a decade. Consultation is more effective than citations in preventing workplace accidents, he says.

"The fact is that you cannot force employers to comply with regulations they don’t understand or know how to implement, and no amount of threats will solve this problem," he says. "If an employer isn’t getting the help he needs, an inspection won’t make the difference. But OSHA continues to ask us to throw more and more money into its enforcement programs."