Proponents of ergonomics proposal hit hard as plan stalls; research continues
Watered-down version still rankles congressional leaders, employers
It should come as no surprise to anyone familiar with the federal government’s efforts to create an ergonomics standard for American workplaces, but the apparent delay of the most recent proposal in Congress still is seen as a crushing defeat. Many observers say it is unlikely the country will ever see an ergonomics standard.
Recently, the House Committee on Education and the Workforce voted to require the federal Occupational Safety and Health Admini-stration (OSHA) to delay publication of its ergonomics standard. Committee members said they wanted to wait for the results of a research review by the National Academy of Sciences (NAS), which is expected in 2001.
The proposal had been expected to face a difficult path because other efforts to enact ergonomic standards met similar fates in recent years. Despite efforts by OSHA to sharply curtail the scope of the proposal, Congress still saw it as too much of a burden on employers.
Although Congress must approve the committee’s decision, observers say it is unlikely now that the ergonomics proposal will move forward this year.
The most recent proposal would apply only to manufacturing and manual-handling jobs, whereas previous proposals would have applied to virtually all U.S. employers.
There are only two major requirements in the current proposal:
1. Employers must have a system for recording ergonomic-related injuries and illnesses.
2. If a musculoskeletal disorder occurs, the employer must respond in some way.
A formal draft of the ergonomics proposal was to be published in the fall of 1999, public hearings were to begin in early 2000, and a final rule was to be issued by the end of 2000. The Congressional action will prevent that final rule publication until after the scientific study is completed in 2001, and some observers say the continued opposition to an ergonomics standard means the proposal could be stalled further at that point.
The House committee approved H.R. 987, the Workplace Preservation Act, while the Senate will deal with S. 1070, the Sensible Ergonomics Needs Scientific Evidence Act. The bills are not identical, but both call for OSHA to delay publication of the rule.
A typical critic of the most recent proposal is Sen. Michael Enzi (R-WY). He tells Occupational Health Management that the proposed ergonomic standard is more like the "old OSHA" in which employers were coerced into complying out of fear of citations and penalties, rather than the "new OSHA" in which the administration works proactively with employers to improve worker conditions.
A large proportion of American employers fear the proposed ergonomic standard will be another oppressive OSHA regulation, says Peter Eide, manager of labor law policy at the Chamber of Commerce in Washington, DC.
The Chamber of Commerce has been active in past efforts to defeat ergonomics proposals, and Eide is calling this year’s attempt "hopelessly vague" and "extremely burdensome." The Chamber of Commerce is urging OSHA to delay the ergonomics rule until there is scientific evidence that such a rule is needed and actually would improve worker safety. That lack of concrete data has been a stumbling block for those promoting past ergonomic proposals.
Eide tells OHM that he expects the Workplace Preservation Act to be approved by the full House and Senate, though he knows of no specific tally of expected votes.
"We feel fairly confident because this issue is one of those where the angels are on our side," he says. "There is no valid argument against this legislation, but there are a number of arguments in favor of it."
Delay will allow report to influence proposal
The committee action does not kill the ergonomics proposal, Eide notes, even if some observers take a more pessimistic viewpoint. The proposal is delayed for a while, but Eide says the delay is entirely justified because the NAS report will have a major impact on federal decisions regarding the need for an ergonomics proposal.
"Our position is that if OSHA looks at the NAS study, they will see that there is not a sufficient basis in medicine or science for this type of regulation," Eide says. "That’s our hope. But we fully realize that the NAS people might say there is more evidence than you could possibly want that people are dropping like flies without an ergonomics regulation.
"We don’t expect that, but if NAS says there is enough evidence, then I think we are going to be in a very difficult position," he adds. "Anyone who wants to contest that is going to be in a very difficult position."
Eide says OSHA brought on this latest round of trouble by imprudently relying on a study from the National Institutes of Occupational Safety and Health (NIOSH), along with a workshop with researchers and representatives from labor unions.
Opposing sides in the ergonomics standard debate may pose the issue as a fight between labor and management, but ergonomics professionals also have some misgivings about the current proposal, says Jeffrey Fernandez, PhD, BE, CPE, senior managing engineer with Exponent Failure Analysis Associates, an engineering consulting company in Alexandria, VA. Fernandez works with employers to help them overcome ergonomic problems with engineering and other solutions. He previously was a professor of industrial engineering and has acted as an expert witness for OSHA on several cases related to ergonomics.
Fernandez says some ergonomics professionals share the concerns of employers who fear the ergonomic standard would throw a monkey wrench into the systems they already have for addressing workplace injuries. In many cases, those systems already address ergonomic hazards as effectively as they address other types of hazards, he says. And since some companies already have in place specific programs to address ergonomic hazards, Fernandez says there is a major question as to what will happen to those programs.
"If you know your program is working, why would you want to go in and change it because this new standard says you have to do it a certain way?" he says. "The current standard is workable, but it has some kinks that need to be worked out. Industry definitely is having some problems accepting this standard as it is written now."
Some of the problems involve the way the proposed standard would interfere with the already sensitive relations between labor and management. The standard’s requirement for placing injured workers on modified duty, for instance, could conflict with union rules that require management to consider seniority when assigning jobs. Another requirement that injured workers receive 100% compensation and benefits for some time period could conflict with workers’ compensation laws in some states, he says. Part of the problem is ergonomics is a field influencing and overlapping many other areas of industry and health care, Fernandez says.
"Ergonomics seeps into so many areas that it is difficult to make sure the standard doesn’t conflict with other laws out there," he says.
Another big sticking point for management and ergonomics professionals is that OSHA has established a one-injury trigger for when an employer must address ergonomic problems. Ergonomic professionals are accustomed to using rates for such triggers, rather than an individual case, Fernandez says. The one-injury trigger may place more of a burden on small employers, he says.
As for the ultimate likelihood of an ergonomics standard coming to fruition, Fernandez says he is not sure what to expect. He has heard confident declarations of eventual victory from both sides of the issue.
"For many of us in ergonomics, it’s just wait and see," he says. "Whatever we end up with, we just hope it’s practical and based on good science."
There is some support for the federal ergo-nomics proposal, but it does not appear that it will be enough to keep Congress from interfering, at least temporarily. The American Industrial Hygiene Association (AIHA) supports the ergonomics proposal and has publicly opposed the House bill that requires OSHA to wait for the NAS report before proceeding. AIHA president James Rock, PhD, stated the organization’s position in a letter to Congressional leaders.
He wrote, "AIHA believes the only true way to determine if the data and science on the issue of ergonomics merit an OSHA standard is to allow OSHA to continue the process by issuing a proposal that can be debated through the public process."
Some labor support
Labor representatives also have voiced support for the ergonomics proposal. Eric Frumin, national safety and health director for the Union of Needle-trades, Industrial, and Textile Employees (UNITE) in Washington, DC, testified before the House committee recently and urged the members not to stifle OSHA’s efforts. "We all know perfectly well there is no serious scientific controversy about the ergonomics issue, certainly not enough to warrant delaying action by the secretary of labor," he told the committee members. "At your urging, the National Academy of Sciences already answered that question last year."
Frumin calls the efforts to prevent an ergo-nomics standard "a betrayal of the workers who suffer every day." Secretary of Labor Alexis Herman, PhD, reacted to the House Committee’s action by predicting that 1 million Americans will suffer work-related musculoskeletal disorders before the NAS completes its second review of the scientific literature on ergonomics.
Herman says she will urge President Clinton to veto the House bill if it passes the House and Senate.
[For more information, contact:
Peter Eide, Manager of Labor Law Policy, Chamber of Commerce, 1615 H St. N.W., Washington, DC 20062. Telephone: (202) 659-6000.
Sen. Michael Enzi, United States Senate, Washington, DC 20510-5004. Telephone: (202) 224-3424. E-mail: [email protected].
Jeffrey Fernandez, Senior Managing Engineer, Exponent Failure Analysis Associates, 310 Montgomery St., Alexandria, VA 22314. Telephone: (703) 549-9565.
OSHA’s ergonomics home page has extensive information and contact information: http://www.osha-sic.gov:80/sltc/ergonomics/.]
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