Business Notebook

Ergonomics is the science of fitting the job to the worker. When there is a mismatch between the physical requirements of the job and the physical capabilities of the worker, work-related musculoskeletal (MSD) disorders can occur. Estimates indicate that 1.8 million workers suffer from MSDs due to ergonomic causes. These injuries cost businesses $15 to $20 billion in workers’ compensation costs annually. One dollar out of every three spent on workers’ compensation costs is attributed to a MSD injury. Indirect costs such as absenteeism, retraining injured workers, decreased productivity, and poor employee morale run as high as $45 to $60 billion. Charles Jeffress, former U.S. Department of Labor Assistant Secretary and OSHA chief states, “Work-related musculoskeletal disorders are the number one workplace injury in America.” The standard was drafted because of the overwhelming medical and scientific evidence that ergonomic injuries were a major workplace safety and health issue.

The Standard

The final standard was over 1,688 pages of text. The major factor in its

defeat was the standard’s complex, broad, and poorly defined approach to regulation. To understand this, one must only look at the requirements

of the standard. This regulation applied to general industry employers. OSHA estimates that 102 million workers at 6.1 million work sites would be protected with this new regulation. This standard did not apply to employment that was covered by OSHA’s construction standards, maritime standards, railroad standards, or agricultural standards. OSHA was utilizing a phase-in approach, starting with the largest and most vulnerable group of employees: those employed in general industry. General industry accounts for more than 90 percent of all reported MSD cases annually. If a work related injury contained certain risk factors as defined by the new regulation, an injury would be classified as ergonomic. This scenario triggered the new regulation into action. OSHA classified certain risk factors that must be present for an injury to be considered ergonomic. Workers who must repeat the same motion throughout their workday, who must work in awkward positions, who must use a great deal of force to perform their jobs, who must repeatedly lift heavy objects, or who face a combination of these risk factors are most likely to develop MSD’s. Prolonged exposure to these ergonomic risk factors particularly in combination or at high levels can cause or contribute to a MSD or aggravate a pre-existing MSD. This new standard required employers to inform their employee about the hazards of ergonomics. This included training and written notification.

From here, the regulation started to become complex and confusing. OSHA began to specify its requirements. The new regulation first defined the steps an employer would take to determine if an injury was ergonomic. If the employer determined that a MSD injury occurred, the employer would then screen the injury once again using the new standard’s action triggers. These action triggers included action levels for certain tasks. The action level criteria were broad. Some action levels included using a computer mouse or keyboard for more than four hours a day, lifting over 55 pounds more than 10 times a day, pushing or pulling heavy objects more than 2 hours per day, and maintaining awkward postures more than 2 hours a day. If the job met or exceeded these action levels, the employer would either comply with the standard’s “Quick Fix” option, if qualified, or implement a full ergonomics program.

The “Quick Fix” option could only be used in limited circumstances and did not differ greatly from the full ergonomics program. The “Quick Fix” option included MSD management and measures to control and reduce exposure to the MSD hazard identified by the injury. If, after applying the “Quick Fix” option, your MSD hazards had not been reduced to the appropriate levels, the full ergonomics program would be required.

Full Ergonomics Program

The full ergonomics program was broad and encompassing and was bold in that it ventured into compensation issues. The full program required management leadership and employee participation, job hazard analysis and control, implementation of hazard controls required by the standard, implementation of training requirements, and record keeping.

Under the new regulation, employees suffering from a MSD injury must be provided with free access to a health care professional for evaluation and treatment. This included the right to obtain a second opinion and even a third medical opinion at the employer’s expense. If the employee was placed on restricted work status/time off work, the employer must provide the worker with Work Restriction Protection (WRP). WRP maintained the employee’s employment rights and benefits. There were two important and controversial components to the WRP program:

Employees who were placed on temporary work restrictions would receive 100 percent compensation for 90 days or until back to full duty status.

Employees who had been taken off work would receive 90 percent compensation for 90 days.

The employer’s obligation to provide WRP benefits to a worker on restricted duty or taken off work was reduced to the extent that the employee received compensation for earnings lost during the work restriction period from your company’s workers’ compensation insurance program. The specifics of administering the WRP were not known under the standard.

The Fight

Until March 6 the White House was conspicuously silent on this matter. There were no comments from the newly appointed Secretary of Labor Elaine Chao or from the White House. But, March 6, the day the Senate was to vote on the repeal, the White House came down firmly against the regulations. “These regulations would cost employers, large and small, billions of dollars annually while providing uncertain new benefits.” Even before the Senate vote, it sounded as if the ergonomics regulation’s demise was a foregone conclusion. Labor Secretary Elaine Chao made a pledge “to pursue a comprehensive approach to ergonomics, which may include new rulemaking.”

Moving with lightening speed by Congressional standards, the ergonomics standard was brought before Congress to repeal, using the Congressional Review Act with the Senate voting on March 6 and the House on March 7. According to the rules of the CRA, the Senate had only 10 hours to debate the standard before calling for a final vote. Only one hour of debate was allowed on the House floor before a final vote. Democratic members of the House were particularly outraged because the House floor was idle for three hours during that day. The fight began. Both the Republican and the Democrats could not agree on what the rule would do or how it came into being. Republicans said it was complicated, a hastily prepared payoff to organized labor that makes more use of the stick than the carrot to impose safety rules. They said it would force employers to hire more workers, cut productivity, and compensate injured workers at higher rates for injuries that may not have happened on the job.

The Democrats tell a different story. They said the rule came after 10 years of research and hearings. They said the ruling was flexible, requiring employers to do nothing unless injuries occur. Employers were given the authority to determine whether the injuries were caused at work and the authority to make workplace modifications on their own. The Democrats also said that repealing the rule could bar OSHA from issuing a new ergonomics rule later.

The Vote

After a 10-hour debate in the Senate, they voted 56-44 to repeal the ergonomics standard as six Democrats sided with all 50 Republicans. Less than 24 hours later, the House voted 223-206 to repeal the standard. Majority Republicans were joined by 16 Democrats in opposing the rule, while 13 Republicans broke ranks against the repeal.

President Bush has indicated that he will sign the bill. Of interest is that this vote came in a week of partisan wrangling over president Bush’s tax-cut proposal, medical privacy, and a bill to overhaul bankruptcy law. White House aides have stated that President Bush, in attempting to keep his tax cut to $1.6 trillion, is hoping to discourage business organizations from pressing lawmakers to add an expensive capital gains tax cut.

These aides said that killing the OSHA rule would be a political gesture to these same groups, as well as, relief amounting to tens of billions of dollars a year by their own estimate.

The Future

The White House is trying to reassure its critics. “This administration is committed to protecting the health and safety of workers. That’ why the Department of Labor will pursue a comprehensive approach to addressing this issue.” Congressional repeal of the ergonomics standard does not remove this issue. Unions and special interest groups will continue to keep the pressure on the Bush Administration to enact a new ruling. The

National Academy of Sciences says that musculoskeletal injuries affect about 1 million workers and cost businesses between $45 billion to $54 billion. A recent U.S. General Accounting office study of several active ergonomics programs found that these programs reduced MSDs and their associated costs. The study also found that the programs and the specific job modifications were not necessarily costly or complex for employers. These programs are the most effective means of minimizing the exposure and costs associated with MSD injuries in the workplace. The good news is that ergonomic injuries are preventable and prevention is the key to cost containment. Business cannot afford to wait. Ergonomic injury costs are staggering. Companies must be proactive and begin to design and implement workplace ergonomics programs. Unlike the ergonomics standard, these injuries will not go away.