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Contents
Different Sides of the Fence
Sound Science vs. Workplace Experience
The Elements of the Proposed Standard
The Cost of Compliance
The Bottom Line

The suspense is over. The U.S. Occupational Safety and Health Administration has released its much anticipated and far-reaching proposal for ergonomics regulation. While everyone agrees that worker protection is a good thing, they don't agree on much else.

The new proposed ergonomics standard issued by the U.S. Occupational Safety and Health Administration (OSHA) is either the best thing to happen to the workplace since the invention of electricity, or the worst thing to occur to business since the stock market crash of '29. Depends on whom you ask about it.

Businesses, both large and small, generally oppose the proposed ergonomics standard, to the point of threatening legal action if OSHA moves forward on the regulation. Congress is miffed that OSHA rushed to release the proposed standard as soon as it recessed. Occupational safety and health associations are supportive of the standard. Unions, which have long lobbied for ergonomics programs in the workplace, are strong supporters of the standard.

Some critics claim the cost of implementation of the proposed standard is prohibitive and could drive some small companies out of business. Proponents of the standard claim that ergonomic injuries cripple thousands of workers and cost business billions a year and a standard is necessary to stem the rising tide of workers' compensation claims.

Whatever their opinion, there seem to be very few people who are sitting on the fence about the proposed standard.

Different Sides of the Fence
The UAW has had some success negotiating ergonomics programs into its contracts with employers, said President Stephen P. Yokich, who added, "Responsible employers all see the need for ergonomics. But the lack of an enforceable standard, and competition from irresponsible corporate citizens, limits what we can achieve through negotiations. That's why we need full enactment of this proposed standard to protect all workers."

The United States Chamber of Commerce, on the other hand, condemned the proposed ergonomics rule "as vague, scientifically unsound, and a politically motivated end-run around Congress."

The chamber has threatened to sue the agency over the ergonomics proposal, said Randel Johnson, the chamber's vice president for labor policy. He said the ergonomics rule does not meet the standards required for new regulation under the Occupational Safety and Health Act.

"OSHA has written a blank check on the backs of American workers and their employers," said Johnson. "This rule would cost businesses billions of dollars, yet the benefits, if any, are uncertain. Proposing costly and far-reaching regulation before the scientific studies are completed shows how little sound science matters to this administration."

Sound Science vs. Workplace Experience
The words "sound science" come up whenever the proposed standard is criticized. In October 1998, Congress appropriated almost $1 million for a non-partisan study by the National Academy of Sciences focusing on the relationship between repetitive tasks and repetitive stress injuries.

On August 3, the House passed the Workplace Preservation Act, sponsored by Rep. Roy Blunt (R-MO) to prohibit OSHA from issuing a proposed or final rule on workplace ergonomics until after the academy completes its study in 2001, but the Senate adjourned before passing similar legislation. Critics have accused OSHA of hustling the proposed ergonomics standard to publication before the senators' chairs had a chance to cool off as their occupants left for vacation.

"Despite these actions by Congress, OSHA has decided to publish its rule anyway, the first business day after Congress has adjourned for the year. If OSHA meets its own timetable for this regulation, the final ergonomics rule will be in place before the academy study is completed, and the study will be wasted," said a statement issued by House Education and the Workforce Committee Chairman Bill Goodling (R-Pa.); Workforce Protections Subcommittee Chairman Cass Ballenger (R-N.C.); Employer-Employee Relations Subcommittee Chairman John Boehner (R-Ohio); and Oversight and Investigations Subcommittee Chairman Pete Hoekstra (R-Mich.) and Vice Chairman Charlie Norwood (R-Ga.).

There was a need for speed, according to OSHA Administrator Charles N. Jeffress. "We are compelled to act. Employees are getting hurt. Workers are being sent home. People are suffering," he said.

His comments left congressional critics unmoved. "This debate isn't about whether we need to ensure safety in the workplace for American workers. There can be no debate about that. Rather, the debate is about whether we expect regulatory agencies to base their rules on medical evidence and sound science," they countered in their statement.

The American Industrial Hygiene Association (AIHA), which supports the proposed ergonomics standard, said in a statement that there was ample scientific evidence to support an ergonomics standard.

AIHA said "claims to delay this proposal because of a lack of data are unfounded. Last year, the National Academy of Sciences conducted a review of this science. The Academy concluded that there is strong and compelling evidence to support the relationship between certain work activities, musculoskeletal disorders and the effectiveness of intervention."

Labor unions claim that the proof that ergonomics programs are necessary doesn't need to come from scientific studies. It is written on the faces of injured workers and in thousands of workers' compensation claims.

The nation's largest labor union, the AFL-CIO, weighed in on the issue in a statement that said the "broad support for the OSHA ergonomics standard from the safety and health professional community—from doctors, nurses, industrial hygienists and safety engineers—is validation that the scientific evidence on ergonomics is strong. It confirms what workers have known for years—that these injuries are caused by workplace hazards and can be prevented."

Calling on OSHA to extend its ergonomics coverage to include the construction, agriculture, and maritime industries, the union said the proposal is "a major step forward in the fight to end crippling workplace injuries. Despite an unrelenting and mean-spirited campaign by big business groups and anti-worker members of Congress to block these important protections, the public will finally have a chance to be heard."

Part of that public, the workers represented by the Union of Needletrades, Industrial and Textile Employees (UNITE) would probably be surprised at critics who claim there is not enough scientific or medical evidence to support an ergonomics standard.

"Every year, over 600,000 workers nationally are disabled by back pain and hand/arm injuries like carpal tunnel syndrome," said UNITE President Jay Mazur. "Hundreds of thousands more workers keep working every day in pain, to feed their families. Workers desperately need strong OSHA standards on extreme workloads and heavy packages. OSHA has been talking about this for 10 years. It's time for action."

The Elements of the Proposed Standard
Action, in the case of the proposed ergonomics standard, involves approximately one-third of general industry work sites, some 1.9 million workplaces employing 27 million workers. The proposed standard applies to employers in general industry whose employees labor in manufacturing jobs, perform material handling tasks, or work in jobs where a musculoskeletal disorder (MSD) has been reported.

The standard calls for employers to implement a basic ergonomics program. They must assign someone to be responsible for ergonomics; provide information to employees on the risk of injuries, signs and symptoms to watch for and the importance of reporting problems early; and set up a system for employees to report signs and symptoms. Full ergonomics programs would be required only if one or more work-related MSDs occur.

The elements of a full ergonomics program include: management leadership and employee participation, hazard information and reporting, job hazard analysis and control, training, MSD management, and program evaluation. Ergonomics programs should be job-based and cover the specific job where the risk of developing an MSD exists and jobs like it that expose other workers to the same hazard. Ergonomics programs, according to OSHA, do not need to cover all the jobs in the workplace.

The proposed standard requires that workers who experience covered MSDs receive a prompt response from their employers, an evaluation of their injuries, and, if necessary, follow-up by a healthcare professional.

Two of the biggest sticking points for opponents of the standard are the single injury report that triggers a full ergonomics program, and the medical removal clause. Workers who need time off to recover from the injury could receive 90% of their pay and 100% of their benefits. Workers on light duty would receive full pay and benefits. The agency says this provision is to encourage early reporting to catch problems before they become injuries.

"The medical removal (clause) is over and above what workers' compensation pays," said Laura Fenwick, associate director of community relations for the American Health Care Association (AHCA), which represents long-term care providers. "The proposed standard requires employers to pay benefits and salary for injured workers and to hold that position open. That places a financial burden on [some] employers."

The other sticking point, the one-incident trigger, has triggered alarm throughout industry. Robert J. McCunney, M.D., president of the American College of Environmental and Occupational Medicine, said that he was concerned about the fact that one case triggers the need for a full ergonomics program.

Because of the one-incident trigger, said McCunney, "it is in the best interest of all concerned to get an accurate medical diagnosis of the problem. There is a need for physicians to become more aware of ergonomics issues, to understand workplace risks in general and ergonomics specifically."

However, he added, "I think the ‘quick fix' modification made by OSHA is a reasonable approach to eliminating the problems of a one-case trigger."

The "quick fix" is an alternative to setting up a full program. If employers correct a hazard within 90 days and check to see the fix works, then no further action is necessary. Firms that already have effective ergonomics programs in place and are working to correct hazards are given credit for their efforts in a "grandfather" clause.

"The proposed regulation contains some flexibility for employers," said McCunney. "The standard appears reasonable and there was a need for the establishment of a standard or some regulatory action to address the ergonomic factors that cause or contribute to MSDs."

Despite such elements as the "quick fix" and the grandfathering of existing programs, many employers still fear the impact the standard could have on their bottom line.

The Cost of Compliance
The cost of compliance with the standard could put many smaller operations out of business, believes Sen. Christopher S. "Kit" Bond (R-Mo.), chairman of the Senate Committee on Small Business. These are not companies looking to earn a buck regardless of the suffering of their employees, according to Bond, but rather concerned business owners who "value the health of their employees just as they do their own family members because in many cases, they are family members. What they need from OSHA is guidance on how to solve these problems, not an unclear, vague, regulatory trap," he said.

In April, a report was issued by a panel that reviewed OSHA's earlier draft under the Small Business Regulatory Enforcement Act. The report was critical of the draft with respect to the cost estimates of compliance, the medical removal protection, how an employer is supposed to determine whether an injury is work-related, and whether OSHA should consider an alternative approach to issuing a regulation.

"It does not appear that OSHA has modified their proposal in response to these concerns in the small business community, and I am very concerned that many people will lose their jobs and small businesses be forced to close if this rule is finalized," said Bond.

In an industry that is facing the bankruptcy of a number of nursing homes and long-term care facilities, unfunded mandates are a problem, agreed AHCA's Fenwick, who added that the increased benefits awarded to employees with MSDs could be the "wrong incentive" to encourage reporting.

According to the statement issued by congressmen Goodling, Ballenger, Boehmer, Hoekstra, and Norwood, "OSHA's own conservative estimate shows that the regulation could cost $4.2 billion per year. At the same time, the Small Business Administration, an independent government agency that analyzes the impact of federal rules on small businesses, said OSHA had grossly underestimated the cost of its rules and probably overstated the benefits. According to SBA, the annual cost to employers could easily exceed $18 billion. The Food Distributors International claims that the cost could be as high as $26 billion for its industry alone."

David D'Onofrio, vice president of government and public affairs for National Small Business United (NSBU), the nation's oldest small business advocacy organization, said that while his membership wants to do everything they can to protect their workers. However, he added, his organization is "not very enthusiastic about the standard."

Not only is the proposed standard not based on sound science, he said, but the cost of compliance has been grossly underestimated. D'Onofrio pointed out that "big business has a lot of people on the payroll" to monitor programs, implement workplace changes, and ensure compliance. At small companies, that responsibility will probably fall to owners and operators, who are already stretched thin by other responsibilities.

The end result is that they will probably have to seek outside help, "because it's not worth the time and effort" it would take them to become well versed in ergonomics, said D'Onofrio. "That might create other small business opportunities [for ergonomics consultants], but at what cost to existing businesses?" he asked.

The problem is not just the cost of revamping workstations or changing production lines, agreed Whitney Redding, spokesperson for the Assisted Living Federation of America. "This is hugely burdensome in the amount of paperwork it requires, for example," she said. "It takes time to conduct a risk assessment for each job. It takes time to conduct training."

Both Redding and Fenwick said that their members needed to consider patient and resident safety, as well as employee safety, when implementing new programs. If a patient refuses to allow a lifting device to be used, said Fenwick, then the issue becomes patients' rights versus employee safety.

"One size does not fit all," said Fenwick. "We have privacy issues for our patients, dignity issues. We can't ignore those issues because of the ergonomics standard."

The Bottom Line
Union representatives such as Harris Raynor, director of UNITE's Southern Region, are quick to point out that reducing workplace injuries and illness reduces workers' compensation, medical, and other direct and indirect costs. He said that many companies have already worked with UNITE locally to establish ergonomics programs, "because it saves them money."

Employers acknowledge that MSDs are expensive. A recent study by Philadelphia-based healthcare and disability management company Intracorp, the "Worksite Injury Prevention Study," noted that employers paid an average of $2,000 for each reported cumulative trauma disorder case in 1996. Repeated trauma cases cost U.S. businesses an estimated $950 million annually in direct workers' compensation costs and almost $3 billion when indirect costs like overtime, training, and lost production are included, according to Intracorp.

"Those companies that have worked with [UNITE] to develop ergonomic training programs have experienced real success," said Raynor. "They've experienced economic savings and reduced workers' compensation costs, a cost that is obviously nonproductive for employers."

One safety manager, speaking on the condition of anonymity, said management at his company publicly opposes an ergonomics standard, but has established what he calls "a darn good ergonomics program, with risk assessments, employee and management training, job rotation, the works."

His employers, said the safety manager, realize that ergonomics is good business and saves them money in the long run. So why are they opposed to the standard? "Their point is that we already do this on a voluntary basis, so why mandate it?" he said.

Ergonomics needs to be mandated, said Raynor, because the vast majority of workplaces do not have ergonomics programs and if they do, it's probably because they're required under union contracts. "That means they're not ‘voluntary,'" said Raynor.

"Certain employers say they already have these programs and they don't need an OSHA standard. I say, if you're doing it anyway, then why are you worried about it," asked Raynor.

Good question, one that critics and supporters alike will have ample opportunity to answer during the comment period for the proposed ergonomic standard. The proposed rules cannot become final before next year, after a comment period that will include hearings in Washington and other cities starting in February.