Ergonomics rule finally released amid a storm of harsh resistance
Lawsuits seek to stop rule, many groups protest
The federal government finally released the long-awaited and long-debated ergonomics rule recently, and it was promptly met by some of the most harsh criticism ever levied against a new standard. A wide range of professionals, including some who rarely agree on anything, are calling the rule ill-conceived and hastily enacted.
To no one’s surprise, the business community promptly filed a lawsuit challenging the ergonomics standards. Congress repeatedly has put up roadblocks to past efforts to issue the rule, but the Clinton administration issued the rule in November despite stern warnings from Congress not to do so. Many congressional leaders oppose the rule so strongly that, in the past, they threatened to essentially withdraw all funding for the federal Occupational Safety and Health Administration if the rule was issued.
Since the timing of the rule’s issuance makes it virtually impossible for Congress to take any action to stop or delay the measure, the National Coalition on Ergonomics filed a petition for review in the Court of Appeals for the District of Columbia.
"For reasons only OSHA can explain, the agency has elected to ignore the will of the Congress and moved forward with its ill-conceived proposal," says Ed Gilroy, co-chairman of the National Coalition on Ergonomics.
Gilroy says the reasons behind the coalition’s lawsuit are: Medical science does not adequately support the need for the Labor Department’s regulation; the standard is too vague and incomprehensible; OSHA produced a fatally flawed economic analysis; and OSHA committed serious procedural violations such as issuing an altered rule without a new round of public comments.
The lawsuit represents various business groups including the National Association of Manufacturers and the National Federation of Independent Business.
The Society for Human Resource Management (SHRM) also filed a lawsuit in U.S. District Court in an effort to block implementation of the standard. The organization filed formal comments in March arguing that the proposed rule placed unwarranted compliance burdens on employers and had unrealistic goals that conflicted with the National Labor Relations Act, the Family and Medical Leave Act, the Americans with Disabilities Act, and state workers’ compensation laws.
SHRM also expressed concern that the regulations were based on inadequate science and would be much more costly than projected by the department.
Massive rule issued despite protests
"Despite minor changes in the final published standard, little has been done to eliminate our original concerns," says Susan Meisinger, SPHR, SHRM executive vice president and COO. "It is unfortunate that the administration has taken this unprecedented course of action to rush such a complex standard through the regulatory process. It has left us with no option but to file suit." (Congress also is complaining loudly. See related story, in this issue.)
The Department of Labor claims that the final standard was designed to reduce the number of musculoskeletal disorders (MSD) or repetitive motion injuries in the workplace. It requires all general industry employers to implement an ergonomics program when specific risk factors such as repetition, lifting, pushing, pulling, awkward postures, stress, or vibrations develop into an MSD or repetitive motion injury.
The standard also calls for a 90% federally mandated wage replacement for employees removed from work due to an MSD and a 100% replacement for those workers placed on restricted or light-duty work. The department provides no guidance to employers on how to rationalize the regulations’ wage replacement requirement along with state workers’ compensation laws.
OSHA’s ergonomics rule is 1,600 pages long. By Jan. 16, 2001, businesses are expected to begin complying with the standards OSHA says will prevent injuries and save businesses billions of dollars every year.
In a significant turnaround, the American College of Occupational and Environmental Medicine (ACOEM) immediately announced its opposition to the standard, citing the standard’s lack of a sound medical foundation. While maintaining the need for a medically-based standard to protect the nation’s workers, ACOEM becomes the only major medical association previously supporting the standard to withdraw support for the highly publicized OSHA standard, which is intended to reduce the number of MSDs in the nation’s work force.
"We cannot support the final regulation as it is currently written," says Robert Goldberg, MD, FACOEM, ACOEM president and director of the ergonomics program and assistant clinical professor at the University of California, San Francisco.
He expressed the college’s fear that in its haste to publish the final standard, OSHA put the standard in legal jeopardy by the agency’s failure to address the shortcomings debated during hearings earlier in 2000. During those hearings, ACOEM submitted several recommendations to establish a firm medical basis for the diagnosis and treatment of MSDs.
"Fundamental to an effective standard is a process to verify the diagnosis of an [MSD] and to determine that the injury or disorder is directly related to workplace duties," ACOEM explains in a statement opposing the standard. "Throughout the past two years of the rulemaking process, ACOEM has consistently urged OSHA to limit implementation of the standard only to work-related disorders for which credible scientific evidence exists. Yet, the final standard appears to require neither a medical diagnosis nor a causal assessment."
Litigation holdups
Goldberg says the standard is certain to be held up by legal battles for the next several years.
"Unfortunately, OSHA’s failure to base the standard on a firm medical foundation lends credence to the arguments that will be made in court by those who will try to block this standard from going into effect," he says. "It is distressing that our nation’s workers will be left without preventive measures to protect them from unnecessary musculoskeletal injuries."
One of the keys to ensuring effective implementation of an ergonomics standard is a medical diagnosis, Goldberg notes. A proper diagnosis protects ill or injured workers by ensuring that their signs and symptoms are directly related to an MSD rather than another type of injury or illness, he says. It also helps ensure that the patient receives proper treatment and workplace modifications.
A major problem with the standard, he says, is that it would be triggered without a clear determination that a worker’s reported symptoms or signs are related to a musculoskeletal disorder that is attributable to a worker’s job.
"While ACOEM was pleased that OSHA included an appeals process for temporary work restrictions and work removal, the college is disappointed that the standard’s multiple review requirement fails to provide for health care providers who have the ability to make a diagnosis or causal assessment — or who have any knowledge of the prevention and treatment of [MSDs]," he says.
"Other programs, such as the Department of Labor’s Federal Employees’ Compensation Program, OSHA’s lead, arsenic, and asbestos standards; and most workers’ compensation programs, base their work restrictions and removal requirements on a medical diagnosis," Goldberg adds.
ACOEM also points out shortcomings in some of the terminology used in the standard. The standard simply lists several specific disorders but fails to specify the criteria for a determination of an MSD. Absent a physician or other health care provider qualified to make a diagnosis, OSHA fails to define the signs, symptoms, and diagnostic testing data that would lead a health care provider to support the diagnosis of an MSD.
"The failure to include a medically accurate definition of [MSDs] will contribute to confusion and additional cause for litigation," Goldberg says.
In light of the anticipated lawsuits from both labor organizations and private industry, Goldberg says ACOEM is hopeful that the courts will resolve these issues, resulting in a stronger and more enforceable ergonomics program standard.
"We would support any action that will correct the errors and omissions present in this standard," he says. "Throughout the rulemaking process, ACOEM has supported the development of an ergonomics standard, but in the end, this final standard does not address the concerns we raised. ACOEM has no choice but to oppose the final standard.
"Our physician members, who represent a range of backgrounds, from private practice and academia to public health and corporate practice, treat thousands of workers each year who are affected by musculoskeletal conditions and who need the protection of a medically sound standard," Goldberg adds.
AAOHN also has concerns about standard
The American Association of Occupational Health Nurses (AAOHN) also responded to the final rule with a note of disappointment. The Atlanta-based group issued a statement saying it "fully supports development of a regulatory strategy to address work-related MSDs," but it goes on to say:
"AAOHN has concerns with the agency’s failure to incorporate many of the association’s recommendations for the final standard."
The group cites these problems in the final standard:
• Many workers will remain unprotected by this standard. Industries that experience high rates of MSDs, such as the construction industry, are not covered under this rulemaking.
• AAOHN is disappointed that OSHA has chosen to promulgate a standard that fails to adopt a preventative approach to addressing these expensive and debilitating injuries and illnesses. Waiting until an employee experiences an MSD simply goes against all theories of
prevention.
• The association is seriously concerned that the final rule does not require consultation of a health care provider to determine whether an "MSD incident" has occurred. Employers who do not have access to the knowledge, experience, and training of a health care professional are not qualified to make determinations about whether an MSD has occurred or whether it is work-related.
• The standard places heavy emphasis on work restrictions as a form of MSD management. It is unclear whether employers are required to cover the cost of treatment for work-related MSDs.
The MSD management component simply requires access to a health care professional to provide an opinion for work restrictions and states nothing of the course of treatment recommended by the health care professional. Many state workers’ compensation programs have different requirements for determining the work relatedness of a condition.
• AAOHN remains concerned about the work restriction protections included in the final rule and whether they will withstand a legal challenge.
• AAOHN is concerned that the compliance deadlines for training individuals who are responsible for setting up an ergonomics program may not be feasible.
For some employers, it will be extremely difficult for an individual to be trained to set up a program within 45 days after determining that a job meets the "action trigger."
AAOHN also sees some good aspects to the final rule. The nurses’ group notes that the standard is written in a manner that is relatively easy to understand and that OSHA continues to use broad language in defining health care professionals under the standard. The broad language, previously upheld by the 11th Circuit Court in the Respiratory Protection Standard, recognizes that health care professionals from different disciplines can provide valuable contributions to managing MSDs.
AAOHN also says it is pleased to see the use of tools designed to assist employers in determining what is required of them by the standard. Tools such as the flowchart, job-analysis tools, appendices, and the basic screening tool will be helpful for employers to use when complying with the standard, the group says.
And indeed the labor unions seem to be the only groups thoroughly enchanted by the new ergonomics rule. Stephen Yokich, president of the United Auto Workers (UAW), praised OSHA for following through on its promise to release the rule by the end of 2000.
"This new health and safety protection will prevent injuries, reduce workers’ compensation costs, and improve workplace quality and efficiency," Yokich says.
"We aren’t done yet. The leadership of the Republican House is holding the Labor and Health budget hostage to another attempt to block these new protections through a budget rider," he adds. "We expect the opponents of this protection, such as the National Association of Manufacturers and the Chamber of Commerce, to try to block progress by lawsuits. The UAW will do what is necessary to defend this standard."
Yokich says ergonomics problems caused by repetitive motion and overexertion lead to the majority of work injuries among UAW members. Responsible employers all see the need for ergonomics, he says, but the lack of an enforceable standard, ideological opposition, and competition from poor corporate citizens limit what can be achieved through negotiations.
Falls short of existing programs
The UAW fully participated in the OSHA standards process, submitting hundreds of pages of data and testimony to OSHA, and presenting 25 witnesses in three cities, he says. The evidence included the experience of shop floor workers who are using ergonomics programs to prevent injuries, union staff who bargain for these programs, and health and safety professionals.
"This standard, while a necessary first step, reflects some compromises in the face of the fierce industry and political opposition to any rule protecting workers," he says.
"It appears to allow employers to defer action until workers are hurt, rather than requiring a more proactive approach. In this regard, the Ergonomics Program Standard falls somewhat short of many existing ergonomics programs. In addition to defending the standard, the UAW will work to implement and strengthen these protections," Yokich says.
The Associated General Contractors of America (AGC) criticized the rule as "a clumsy safety tool that will not improve worker safety."
Stephen Sandherr, executive vice president and CEO of the AGC, says the standard is "a political prescription to a medical problem and it creates more uncertainty than certainty. It creates an uncertain baseline for compliance, an uncertain diagnosis of injury, an uncertain remedy for injuries, an uncertain impact on state workers’ compensation plans all under the uncertain legality of the rule itself.
"Furthermore, the regulation fails to delineate between possible work-related injuries and stress from everyday life activities," he says.
In its present form, the standard would take businesses many years and as much as $100 billion annually to implement, Sandherr says. While the rule excludes the construction industry, AGC has repeatedly voiced its opposition to the ergonomics rule and is working independently and with coalitions to try to prevent this misguided standard from being issued, Sandherr adds.
"We are glad construction is not covered under this rule," he says.
"We do not believe this rule will actually prevent injuries in the construction industry. AGC and its member companies have been focusing our efforts on identifying and elevating risk factors. We are working to develop educational resources and industry guidelines to ensure worker safety," Sandherr says.
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