Ergonomics rule flexes its muscle
Hospitals could see a significant increase in the costs of preventing physical strain and repetitive motion injuries if the federal ergonomics rule is not stopped by pending lawsuits, according to experts on all sides of the issue.
Health care workers have long been seen as a primary beneficiary of the rule because of the risk posed by lifting patients and other strains inherent in the business. Proponents of the rule say it prevents many injuries each year, but critics say it will create a terrific burden on health care employers. When the federal government finally released the long-debated ergonomics rule recently, it was promptly met by some of the harshest criticism ever levied against a new standard. A wide range of professionals, including some that 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 has repeatedly put up roadblocks to past efforts to issue the rule, but the U.S. Occupational Safety and Health Administration (OSHA) 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 have threatened to withdraw essentially all funding for the federal agency 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 basis of the coalition’s lawsuit is that medical science does not adequately support the need for the Labor Department’s regulation; that the standard is too vague and incomprehensible; that the OSHA has produced a fatally flawed economic analysis; and that OSHA has 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. SHRM 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.
"Despite minor changes in the final published standard, little has been done to eliminate our original concerns," says SHRM executive vice president and COO Susan Meisinger, SPHR. "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."
The Department of Labor has claimed that the final standard was designed to reduce the number of musculoskeletal disorders (MSDs), 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. It 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 in the regulations on how to rationalize this wage replacement requirement with state workers’ compensation laws.
OSHA’s ergonomics rule is 1,600 pages long. Businesses are expected to begin complying with the standards that OSHA says will prevent injuries and save businesses billions of dollars every year by Jan. 16, 2001.
The standard becomes effective Jan. 16, just days before President Clinton leaves office. Employers must begin implementing the ergonomics rule by educating employees and responding to injuries no later than Oct. 14. Employers will have four years to fully implement controls, such as purchasing mechanical lifts.
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 ACOEM president Robert Goldberg, MD, FACOEM, 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 has 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 musculoskeletal disorders.
"Fundamental to an effective standard is a process to verify the diagnosis of a musculoskeletal disorder 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."
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