Election-Year Ergonomics

Can OSHA make its proposal stick?

What's going to happen next in the almost-decade-long debate over a workplace ergonomics standard is anyone's guess. Business and the government completely disagree over the extent of the problem, the correct solution, and what the annual cost of compliance with the proposed standard -- one that OSHA hopes will reduce the number of workplace musculoskeletal disorders (MSDs) caused by repetitive-motion activities -- would be. But with the public hearing process winding down next month, several things are clear. First, OSHA, in the face of allegations that election-year politics prompted the proposed standard, has no intent of retreating from its plan to publish a final standard later this year, even though Congress has barred the agency from issuing such a rule three times since 1995. "Work-related MSDs currently account for one-third of all occupational injuries and illnesses that are severe enough to result in days away from work," says OSHA chief Charles Jeffress. "It is our top priority." At the same time, business isn't any more willing today to embrace an ergonomic standard than it was when the concept was first proposed nine years ago or when unions first brought the issue to the forefront 15 years ago by highlighting the problems in the meat-packing industry. Business already has threatened to sue to block any standard; furthermore, it has more statistical ammunition in its arsenal than ever before. The number of repeated trauma cases in the workplace has declined 24% since 1994 -- to 253,300 in 1998, according to data from the Bureau of Labor Statistics (BLS). That's approximately 4% of all occupational injuries and illnesses in both years. "In light of [the BLS'] own data that show MSDs have decreased almost 25% over the last five years, one questions the need for bureaucratic intervention," says Ronald E. Bird, chief economist, the Employment Policy Foundation (EPF), Washington. What's more, contends Bird, when OSHA altered its definition of MSDs in 1998, that change turned MSDs into "a statistical catchall" that includes not just repeated-trauma injuries but also injuries caused by two additional categories: injuries that occur as the result of bending, climbing, crawling, reaching, and twisting; and those caused by overexertion, which are seven times more frequent than repeated-trauma injuries. "It appears that OSHA has progressively expanded the definition of MSDs," suggests Bird, "to create the impression that there is a crisis that requires regulatory intervention." Bird points to BLS data that show repeated-trauma injuries, such as carpal tunnel syndrome and chronic tendinitis, account for less than 11% of all MSDs that cause people to miss time from work. "It seems to me that part of OSHA's strategy has been driven by a desire to make a bigger splash and address a broad category of problems under one general regulation." "The proposal is a massive set of requirements that will affect every office, if not every workplace, that has employees who use any muscle to perform their jobs," concurs P.J. Edington, executive director of the Center for Office Technology, Alexandria, Va. "OSHA expects employers to try and eliminate any muscle ache or pain in the workplace. [The standard needs] to go back to the drawing board." In addition to disagreeing on the extent of the problem, compliance cost estimates from OSHA and business are at opposite ends of the spectrum. OSHA projects annual costs at $4.2 billion, while the EPF estimates annual costs as high as $100 billion. "Those studies predicting high costs are just making bad assumptions," asserts OSHA's Jeffress. "They assume that more workers will be injured, that all jobs will be automated, and that there will be productivity losses from ergonomic changes. We believe that those assumptions are wrong. Good ergonomics reduces costs and increases productivity." Yet those disagreements on the extent of the problem and the cost to correct it -- as vast as they seem to be -- aren't anywhere near as problematic to business as many of the concepts that OSHA proposed last November to address the problem. "Although the proposed standard shows some improvements . . . since the previous draft," says Kathryn McMahon-Lohrer of Collier, Shannon, Rill & Scott PLLC's environmental, safety, and health practice group in Washington, "the proposal retains certain provisions that industry will have great difficulty living with." The most troublesome: work-restriction protections and medical removal for workers with MSD injuries, and the requirement that a single MSD injury trigger the creation of a six-part ergonomics program. For example, says Deron Zeppelin, director of governmental affairs for the Society for Human Resource Management (SHRM), Alexandria, Va., the proposed work-restriction protections "would appear to require" the employer to create temporary jobs for workers with MSD injuries and to pay those workers wage-loss benefits "above those that are made through workers' compensation laws." (The proposal requires companies to provide 100% of benefits and after-tax earnings when a worker with an MSD is on light-duty work and 90% of after-tax wages and 100% of benefits for six months or more if time off work is needed to recover from the injury.) "The proposed rule would remove the prerogative of state legislatures to determine the level of payments for work-related disabilities by mandating the level of compensation for workers with MSDs," asserts Nancy Schroeder, assistant vice president, workers' compensation, the National Assn. of Independent Insurers (NAII), Des Plaines, Ill. "What's more, workers with MSDs would become a special class of claimants who receiver higher payments than workers with other types of injuries." In addition, as the proposal is now worded, physicians treating workers with MSDs would not be permitted to communicate to the employer any findings not related to workplace exposure. "Taken literally," says SHRM's Zeppelin, "this requirement would prevent a [physician] from informing an employer that the cause of a . . . back injury was, for instance, helping a friend move household furniture during a recent weekend." Such an approach, insists NAII's Schroeder, "will result in increased incentives and opportunities for fraud." The proposed rules "make employers liable for wage continuation payments," she says, "even if there is no real evidence that the workplace actually caused or contributed to the injury." In addition, business is concerned with the stipulation that after a single reportable MSD they will need to implement the six-part ergonomic program specified in the proposal. For starters, business argues that only an injury that results in days away from work should trigger the need to create an ergonomic program. But of even more concern to business is that a preexisting MSD injury, whether work-related or not, is considered a reportable MSD if exposure at work aggravates the injury. "An employer could be impacted . . . not because of anything intrinsic in the work environment but because an employee originally got injured playing tennis or volleyball," says EPF's Bird. Just as troublesome: The final definition of an MSD won't be known to business until after OSHA publishes revisions to its record-keeping rules later this year. "At the very least, OSHA should have specified the definition of a recordable MSD rather than by reference to a rule currently being revised," asserts Zeppelin. Besides those objections, the after-the-fact nature and the vagueness of the proposal rankles business, as does OSHA's attempt to suggest that half of all workers and their employers will be unaffected by the proposed rule because a grandfather clause exempts firms that already have established voluntary ergonomics programs. And, charge critics, nothing in the proposed regulation ensures the prevention of even one injury. Instead, OSHA mandates that companies institute ergonomic programs after an injury occurs. (The exception: Companies with manufacturing and material-handling jobs are required to implement hazard information and reporting systems and management leadership and employee participation programs from the onset.) To be sure, admits EPF's Bird, "OSHA has come up with some good ideas. But I'm afraid that despite their well-intentioned efforts, they have gotten it wrong. The proposal has all sorts of holes and uncertainties. OSHA has to say exactly where the problems are and they haven't done that. I hope they will be very open and take very seriously the things that constructive critics are saying. But I fear that they have already made up their minds." Harris Raynor, southern regional co-manager in Union, Ga., for the Union of Needletrades Industrial & Textile Employees, argues from the employees' perspective: "We have to make sure that all workers get the benefit of safer jobs. . . . Many employers faced with brutal cost pressures refuse to provide even the simplest ergonomic equipment. We need OSHA to force them to treat their workers fairly."

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