On November 14, 2000, the Occupational Safety and Health Administration adopted its Final Ergonomics Program Standard for the purpose of reducing the number and severity of musculoskeletal disorders (MSDs) caused by exposure to certain conditions in the workplace.1 The Final Ergonomics Program Standard, implemented on January 16, 2001, four days before President Clinton left office, pertained to all musculoskeletal disorders (MSDs) attributable to repetitive job activities.2 Such MSDs were not only ascribable to manual labor jobs but also to office work activities, such as typing.3
OSHA’s Ergonomics Program Standard4 imposed numerous requirements on employers. The Standard contained certain communication requirements according to which employers were to post and provide to all employees information regarding common MSDs and their signs and symptoms, how to report MSDs to the employer and the importance of doing so, the risk factors and the types of job activities related to MSD hazards, as well as a summary of OSHA’s Ergonomics Program Standard and its requirements.
The Standard also provided certain procedures that must be followed when an employee reported an MSD or the signs or symptoms of an MSD. Once reported by the employee, the employer was required to promptly determine if the MSD or the reported signs or symptoms satisfied the definition of an "MSD incident." If the reported signs and symptoms fell within the definition of an MSD incident, an employer was required to ascertain whether the employee’s job satisfies the "Action Trigger." When the "Action Trigger" is met, an employer was required to implement either a "Quick Fix" or a full ergonomics program not only for the complaining employee’s job but for all similar jobs in the workplace.
In addition, an employer was to provide, at no cost to the employee, "MSD Management," including access to a health care professional, work restrictions (including time off work), work restriction protections, and evaluation and follow-up to the MSD incident.
Pre-existing ergonomics programs fell under the Standard’s "grandfather" clause if the program was implemented before November 14, 2000 and the program contained all of the elements required under the Standard: management leadership; employee participation; job hazard analysis and control; training of managers, supervisors and employees; and program evaluation.
Generally, the Final Ergonomics Program Standard was applicable to all employers, including law firms, except those already governed by OSHA standards regulating the agriculture, maritime, construction, and railroad industries.
The Congressional Review Act of 1996 gives Congress 60 session days to review and, if it chooses, reject an agency’s rule. This procedure had never been used.
In the House, a resolution of disapproval follows much the same path a bill does. After it is introduced, the resolution is referred to the committee of jurisdiction. In the Senate a resolution of disapproval takes a different path from a bill if it is not backed by the committee of jurisdiction. If the committee does not consider the joint resolution, any senator can file a discharge petition by gathering 30 Senate signatures, which then allows the bill to be sent to the floor for a vote. A resolution of disapproval is introduced under special expedited procedures. Debate in the House is limited to 10 hours and Senate filibusters are banned. It is unclear whether the President must sign the resolution but he can veto it.
If the motion to disapprove passes in both the House and Senate, and is then signed by the President, the rule essentially disappears. Even if it has already taken effect, the agency that issued it can no longer enforce the regulation or defend it in court. Furthermore, the agency is banned from pushing a similar version of the rule at a later date.
On Wednesday, March 7, 2001, Congress, moving with lightning speed by legislative standards, struck down the contentious Clinton administration workplace safety rule. After only an hours debate the House of Representatives passed a resolution of disapproval. The Senate quickly followed.
OSHA and supporters of the Standard claimed that the regulations would benefit both employees and employers. Proponents contended that the Standard would protect hundreds of thousands of employees by preventing a large number of work-related injuries.5 According to OSHA, MSDs are a significant problem, constituting approximately one-third of all job-related injuries.6 Ergonomic-related injuries are also among the most preventable types of injuries.7 An ergonomics study by the National Academy of Sciences recently released to Congress supported OSHA’s claim that the Standard would reduce MSDs.8
In addition, proponents contended that reducing ergonomic-related injuries would result in a corresponding reduction in workers’ compensation and other costs.9 According to OSHA, ergonomics-related injuries cost employers billions of dollars per year and account for a large amount of time off taken by employees.10 OSHA estimated that employers would save approximately $9 billion per year with the implementation of the new Ergonomics Program Standard.11 Thus, supporters maintained that employers would also benefit from the Standard.
Democrats said the eight- or nine-page rule — the other pages are charts and supporting data — came after 10 years of research and hearings. They said it was the epitome of flexibility, requiring employers to do nothing unless injuries occur and giving them the power to determine whether injuries were caused at work and how to make workplace adjustments.
Also, Democrats said repealing the rule may bar OSHA from issuing a new rule that addresses critics’ concerns. Labor Secretary Elaine Chao has said she would consider issuing another ergonomics rule.
Opponents of the Standard argued that the regulations did not benefit employers or employees. First, critics argued that the Standard was overly broad and inclusive.12 For example, the Standard applied to virtually all employers and covered every type of injury, except those resulting from slips, trips, falls, vehicle accidents, or similar accidents. Also, since nothing in the Standard required an employer to determine whether an employee’s MSD was job-related or attributable to outside activity, the Standard allowed workers to receive workers’ compensation for injuries unrelated to work activities.13
The Standard imposed a huge burden on employers. For instance, the remedies provided in the regulations were expensive.14 To comply with the regulations, employers were required to modify work stations and job tasks and identify potentially hazardous working conditions.15 Moreover, an employer was required to take such action if a single employee reported MSD signs and symptoms.16 Businesses estimated that the first-year cost of the regulations to employers would have been $100 billion, far in excess of the OSHA estimate of approximately $4.5 billion.17 Thus, the Standard would have had enormous financial consequences for employers.
Moreover, there was no clear scientific evidence to support such drastic regulations. Since there is a lack of scientific evidence on the causes of repetitive stress injuries, it is uncertain what, if any, measures effectively reduce or eliminate MSD hazards.18 Due to this lack of scientific evidence, critics argued that the regulations would not prevent injuries.19 In sum, the argument was that more scientific study is needed before imposing such broad-reaching regulations.
Furthermore, as a practical matter, employees who receive up to 90% or 100% of their regular pay may delay returning to work or may falsely report MSDs.20 In addition, the regulations, by providing for up to 90% pay for employees with MSDs and 100% for employees on restricted or light duty, conflicted with workers’ compensation regulations.21
Republicans said it was a complicated, hastily prepared 600-page 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 needlessly hire more workers, cut productivity and compensate injured workers at higher rates for injuries that may not have happened on the job.
Finally, some argued that the purpose of ergonomics is not to prevent injury, as asserted by OSHA, but to maximize employee productivity by implementing procedures designed to maximize employee comfort and minimize employee fatigue.22 Thus, opponents claimed OSHA misapplied the science of ergonomics.23
CHALLENGING THE STANDARD
Labor groups supported the ergonomics regulations but business groups were opposed.
The labor groups alleged that the OSHA regulations were not broad enough and argued that OSHA should not have exempted railroad, construction, maritime and agriculture employers.24 In addition, such groups contended that the Standard’s triggering events are unduly restrictive and that action should be taken when hazardous conditions are present, before injury occurs.25
To the contrary, business groups claimed that OSHA exceeded its authority in instituting the Standard. Challengers asserted that the regulations conflict with other federal laws, such as the ADA and FMLA.26 In addition, it was argued that the regulations might be inconsistent with state workers’ compensation laws.27 For example, the regulations required wage replacement or "work restriction protection" for employees unable to perform their regular job duties due to an MSD incident, despite the exclusive remedy for workplace injuries provided for under workers’ compensation law.28 Moreover, the Standard violated OSHA’s own prohibition of regulations that have any affect on workers’ compensation laws.29
In addition, challengers argued that the rule-making process was hasty and based on political considerations.30 The regulations, which were issued less than one year after their proposal, were rushed through the administrative review and approval process.31 Consequently, critics claimed that the regulations failed to address concerns expressed in the public comment period.32 However, OSHA retorted that the Government had been trying to address repetitive motion injuries for a decade before publication of the regulations.33
Moreover, opponents contended that the Standard was vague and confusing in its language and procedures.34 For instance, the regulations contained new, unfamiliar terms, such as "MSD incident" and "Action Trigger." Although the Standard defined such terms, the definitions themselves were vague and confusing. Also, the regulations were based on subjective standards, making compliance with the Standard a complicated process.
BIPARTISANSHIP TAKES A HIT
In the hurry-up House debate in which most lawmakers were given only one or two minutes apiece to speak, some Republicans said they were not opposed to worker safety protections, but were voting to stop a reckless bureaucracy from strangling American business and driving jobs offshore.
Democrats criticized the swiftness of the Repulicans’ attack on the rule and accused them of bowing to big business, which they said has no interest in accepting a revised rule that addresses critics’ concerns.
Coming in a week of partisan wrangling over Bush’s tax-cut proposal, medical privacy, and a bill to overhaul bankruptcy law, the worker safety debate exacerbated the friction between a split Congress and barely elected President.
The ideological poles from which this debate emanates, coupled with well funded combatants, makes it highly unlikely that this matter is anywhere near settled. While the titans ponder their next moves, one can only hope that it will result in an equitable balance between legitimate business interests and worker safety.
National Coalition on Ergonomics: www.ncergo.org
Society for Human Resource Management:
1 29 C.F.R. 1910.900.
3Bechak, Christina. "Painful Proposal from OSHA," Legal Times, Jan. 31, 2000. www.law.com.
4 Supra, note 1.
5Frisman, Paul. "OSHA’s Ergonomics Plan: A Good Fit?," The Connecticut Law Tribune, Dec. 13, 1999.
7 "OSHA Unveils Ergonomics Standard to Ire of Congress, Employer Groups," Employment Law Weekly, Nov. 29, 1999. www.law.com.
8 Dine, Philip. "New Ergonomics Report Supports Ambitious Actions by Government; Congress Has 60 Days to Review Findings and Take Any Action It Decides On," St. Louis Post-Dispatch, Jan. 18, 2001. Five Star Lift Edition. http://web.lexis-nexis.com/more/shrm/19213/6781671/3.
9 Supra, note 5.
10 Supra, note 5.
11 Supra, note 5.
12 Van Duch, Darryl. "Ergonomics Rules Draw Attacks," The National Law Journal, Dec. 5, 2000. www.law.com.
13 Minehan, Maureen. "OSHA ergonomics regs draw immediate fire." HR News Magazine. Vol. 20. No. 1, p.3 (Jan. 2001).
14 Supra, note 12.
15 Foster, Andrea. "OSHA Ergonomics Rule Has Businesses Stressed," New York Law Journal, Sept. 2, 1999. www.law.com.
16 Foster, Andrea. "Challenge Readied Over OSHA Rule," New York Law Journal, Dec. 2, 1999. www.law.com.
17 Supra, note 12.
18 U.S. Chamber of Commerce. "Chamber Files Suit to Block OSHA Ergo Rule As Unconstitutional, Unscientific, and Unworkable." Press Release. (Nov. 13, 2000). www.uschamber.com/Press+Room/2000+Releases/November+2000/00-207.htm.
20 Supra, note 5.
21 U.S. Chamber of Commerce, Labor and Employee Benefits Policy Division. (Nov. 2000). www.uschamber.com/_Political+Advocacy/Issues+Index/Labor+and+Workplace/Ergonomics
22 National Coalition on Ergonomics. www.ncergo.org.
24 Supra, note 12.
25 Supra, note 13.
26 Supra, note 12.
27 Kazlauskas, Denise M. "OSHA’s Final Ergonomics Standard: A Heavy Load for Employer," Employment Practices Solutions, December 2000. www.epexperts. com/articles/articles_index.htm.
29 Supra, note 12. See 29 C.F.R 1910.900, sub-section 4(b)(4).
30 Supra, note 22.
31 Supra, note 13 at 1.
33 Supra, note 12.
34 Supra, note 27.