Ergonomic regulation reform put on the back burner

By DON McINTOSH, Associate Editor

It’s been nine years since a Republican-majority Congress stepped in to overturn brand-new workplace ergonomic regulations issued by the Occupational Safety and Health Administration (OSHA). One year into a Democratic White House and Democratic-majority Congress, there’s no appetite in Congress for reinstating those regulations.

Ergonomics, the science of fitting work to the worker, is about maximizing productivity and minimizing injury. In practice, it means introducing tools, equipment, and training to prevent workplace injuries caused by repetitive motion and overexertion. Ergonomics injuries, more properly called musculoskeletal disorders — include sprains and strains from heavy lifting, and carpal tunnel and tendinitis from repetitive motion. Taken together, they make up the biggest single category in workers’ compensation cases, both in frequency and dollar amount of claims.

In the 1990s, the labor movement pushed hard to get OSHA to use its rule-making authority to require that employers address ergonomic hazards. OSHA is the agency that enforces the Occupational Safety and Health Act. The act requires employers to provide a workplace “free from recognized hazards that are likely to cause death or serious physical harm.” As part of its enforcement of the law, OSHA sets safety and health standards for different kinds of workplaces, like allowable levels of exposure to lead and arsenic, or requirements for personal protective equipment.

Led by the appointees of President Bill Clinton, OSHA developed similar rules for ergonomics. But business groups fought fiercely against the introduction of those rules, and from 1994 on, the Republican-led Congress attached “riders” to annual appropriations bills, specifically forbidding OSHA from releasing ergonomics regulations. OSHA finally had an opportunity to institute such a regulation just as Clinton was leaving office.

The regulation would have required employers to implement an ergonomics program if they had musculoskeletal injuries in a workplace. That would include looking at injury rates and evaluating jobs for risk factors, and then mitigating risks with equipment and training. It would also include procedures to identify medical conditions early on, before they become serious. Employees would have to be involved in the workplace response, and have access to training. Finally, the most controversial part of the regulation: In addition to paying medical costs and lost wages, employers would have to pay injured workers wages until they could get back to their regular jobs.

Business groups, including the U.S. Chamber of Commerce, lobbied Congress heavily to oppose the regulation, and in March 2001, Congress voted to repeal the ergonomics standard and prevent OSHA from issuing a new one. It was the first time since the 1971 passage of the Occupational Safety and Health Act that Congress had intervened to strike down a regulation applying the law. The vote was largely along party lines, except that six Senate Democrats and 16 House Democrats joined Republicans in striking down the law, while 13 House Republicans bucked their party and voted to uphold the regulation. The AFL-CIO denounced the repeal, citing it as evidence that the Republican White House and Congress were fundamentally anti-worker.

Safety and health standards overall declined during the years of the Bush Administration, says AFL-CIO Safety and Health Director Peg Seminario.

“It wasn’t just that [OSHA] didn’t act,” Seminario said. “Employers turned away from making investments in safety. Much of the progress that was made on ergonomics as a result of strong enforcement actions in meatpacking, poultry and the auto industry eroded.”

“But when the dust settled over the giant political controversy, people went back to what is the logical thing to do,” said Steven Hecker, senior lecturer of environmental and occupational health sciences at the University of Washington School of Public Health. OSHA made voluntary guidelines available about ergonomic best practices in five specific industries. And some businesses voluntarily implemented improved ergonomics practices, Hecker said.

“Many industries have recognized you can reduce workers’ comp costs and improve productivity by dealing with poorly designed work stations and assembly lines,” Hecker said.

States also acted. California OSHA had already implemented an employer ergonomics requirement, triggered if employees turned up with identical musculoskeletal disorders caused by the same problem. In 2006, the Washington State Legislature passed a law mandating that hospital employers implement ergonomics improvements to reduce injuries caused when nurse assistants lift and move patients.

But a national regulation, of the kind OSHA was getting ready to implement in 2001, appears to be off the agenda. Congress would have to repeal its legislation for OSHA to act.

“Given the political climate in Congress, I don’t think there’s any way you could get them to overturn the prohibition,” says Seminario. It’s not just Senate Republican willingness to use the filibuster, but also that Democrats are concerned about the economy, and business groups would argue that imposing ergonomic standards would be a “job-killer.”

In fact, business is ready to fight any movement in that direction. The latest is an OSHA proposal to reinstate a requirement that employers identify musculoskeletal disorders on the workplace injury log they’re required to file. Under the Bush Administration, the Labor Department got rid of a rule requiring them to count such injuries.

In a Dec. 7, 2009, chat session, Jordan Barab, deputy assistant secretary of labor for occupational safety and health, told a questioner that the proposed reporting requirement is not a prelude to a broader ergonomics standard. Labor Secretary Hilda Solis has also said OSHA has no current plans to pursue a new ergonomics rule.

Nor is it an immediate priority for the AFL-CIO.

“It was such a huge political fight that we lost,” Seminario said. Labor doesn’t want to bang its head against the wall fighting that fight again, Seminario said: It wants to do something to protect workers.

“Since the Bush Administration did virtually nothing in the regulatory arena on job safety for eight years, there’s a huge backlog. It’s not just ergonomics. They didn’t issue a standard on silica. We’ve had cranes collapsing. We’ve got infectious diseases, pandemic flu.…”

Those other workplace safety issues don’t have a law preventing OSHA from taking action, Seminario said, so the AFL-CIO is pushing the agency to act on them.

“It’s not that we’ve abandoned ergonomics, by any means,” Seminario said. “It’s just that given current legal constraints and political and economic realities, we have to ask, ‘how do we move forward?’”