Ergonomics proposal faces major roadblock
The proposed ergonomics standard is facing a serious challenge in Congress, and criticism continues to mount from a number of sources. A bill making its way through Congress would quash the ergonomics standard altogether, and a leading think tank says the proposal is based on "bad science" and should be abandoned.
The House Appropriations Committee adopted an amendment to the Labor/Health and Human Services/Education Appropriations bill by Rep. Ann Northrup (R-KY) that would prohibit the federal Occupational Safety and Health Administra-tion from using appropriated funds to promulgate, issue, implement, administer, or enforce any ergonomic standard. The rulemaking process is well under way, with more than 1,000 witnesses already testifying. More than 7,000 written comments were submitted and the post-hearing comment period has just begun.
Secretary of Labor Alexis Herman, head of OSHA, blasted the committee’s action, saying the committee turned its back on "thousands of American workers who suffer from debilitating musculoskeletal injuries that could be prevented by the new ergonomics standard OSHA has proposed. Ergonomics programs have helped employers raise productivity, prevent injuries and disability to their employees, and reduce the cost of workers’ compensation. OSHA must be allowed to complete work on this important rule. American workers have already waited too long."
Herman said the committee’s bill is "unacceptable" and the president has said that he would veto it in its current form. The bill is far from the only challenge to the ergonomics rule, however. A leading think tank in Washington, DC, the Cato Institute, said the proposal is based on bad science and should be abandoned.
The comments were made in a policy analysis by a labor and employment attorney for the institute, Eugene Scalia. The ambitious new workplace ergonomics rules would regulate, among other things, the pace of work, the level of staffing, rest periods, the length of shifts, and the design of equipment and facilities.
But Scalia said the field of ergonomics regulation is so fraught with uncertainties about the existence and causes of so-called repetitive motion injuries that OSHA’s regulatory endeavors should be abandoned. "The premise of ergonomic regulation is that physical exertion is hazardous and causes musculoskeletal disorders’ such as carpal tunnel syndrome," he wrote.
Yet there is great medical uncertainty about this claim, Scalia added, and it is at the root of myriad problems with OSHA’s desire to regulate workplace ergonomics.
For example, the author found that many leading medical researchers deny that repetitive motion actually causes injury; musculoskeletal pain of the kind OSHA seeks to prevent has many obvious causes other than work. Neither ergonomists nor doctors can identify the point at which exertion ceases being benign and instead becomes a workplace hazard.
Scalia contended that OSHA’s "abysmal" three-case record of ergonomics litigation is strong evidence that the agency finds regulating workplace ergonomics rather bewildering. According to his study, in the 1995 Beverly Enterprises case, "OSHA could not establish that lifting causes back injury.
"In the 1998 Dayton Tire case,1 OSHA charged that nearly two dozen jobs in a single facility were hazardous but at trial could not establish the presence of a single hazard" because OSHA experts could not agree with each other’s assessments of supposed job hazards. "Ultimately, their testimony was thrown out of court under the Supreme Court’s junk science’ test," he wrote.
Finally, in the 1997 Pepperidge Farm case,2 "OSHA and the world’s leading ergonomists could not identify changes needed to eliminate supposed ergonomic hazards," Scalia found. Scalia admonished OSHA to cease its ergonomics regulations, on the grounds that in court, "the agency could not determine what if anything was wrong, or how to correct it." Employers, he advised, "should not be commanded to make scientific determinations that consistently have eluded OSHA."
The Cato Institute is a nonpartisan public policy research foundation "dedicated to broadening policy debate consistent with the traditional American principles of individual liberty, limited government, free markets, and peace."
References
1. Dayton Tire & Rubber Company v. OSHARC 539 F2d 242, DC Cir 1976.
2. Secretary of Labor v. Pepperidge Farm Inc., 1997 OSHRC No. 25.
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