California passes limited repetitive motion law

Could legislation be model for federal package?

California has enacted the country’s first law aimed at reducing repetitive motion injuries in the workplace, but it will address only a portion of the problem. Nevertheless, the action bodes well for future regulation on a national level, which has so far been stalled by political concerns and protests from employers.

The California law is the result of years of political wrangling, and the final version is much narrower than originally envisioned by proponents. The San Diego-based Occupational Safety and Health Standards Board voted down a similar regulation in 1994, saying implementation would be too costly, and no one agreed on the usefulness.

The law requires employers to provide workers suffering from repetitive motion injuries with special training, altered work routines, and workstations or tools that help the worker avoid further injury. But in changes that some critics say greatly weakened the law, the final version applies only to companies with more than 10 employees and only after two workers performing identical tasks have suffered similar injuries in a year. Implementing the law in smaller workplaces was considered too burdensome.

Labor leaders have said those changes will make the California law difficult to enforce. Earlier proposals called for the law to apply when injured workers did "substantially similar," not identical tasks. Since employees in the same position within the same company often do not perform absolutely identical tasks, the law will not protect many workers susceptible to repetitive motion injuries.

Though "identical" tasks may seem like overly strict wording that would give employers a way to always say two employees do different work, proponents of the law at the California Department of Industrial Relations in San Francisco say that is not a worry. Spokesman Troy Swauger tells Occupational Health Management that the wording is intended to make sure the law applies only when the job itself is the problem.

"We don’t want this rule to apply if you have people doing different jobs because you won’t know if it is the job that needs correcting," Swauger explains. "If they are doing similar jobs but in different ways, it may be unnecessary to require the employer to put in ergonomic controls."

In other words, the law is not intended to address every ergonomic problem that can occur in the workplace. It is aimed only at repetitive motion injuries that arise from the design of the job itself — not necessarily the way in which an individual employee performs the task. California authorities concluded there were no objective, verifiable data to determine that a certain type of work would always cause a repetitive motion injury in anyone. So they wrote the provision requiring injuries from at least two workers in identical jobs within a one-year period.

"When that happens, it is safer to say that the job is the problem and not any of the other factors like the way the worker performs the job or any predisposition to the injury," Swauger says. "We don’t think the wording in the rule will be used by an employer to get out of anything."

Only employers with 10 or more workers are covered by the law. That represents 23% of California employers, but those 198,227 companies employ 10.9 million people and account for 86% of all of the state’s employees. That leaves 679,402 employers with 1.7 million workers that do not have to worry about the law at all.

There is no estimation of how often the law will apply after two workers report injuries, Swauger says. Pending administrative action by the state’s Office of Administrative Law and filing with the secretary of state, the new regulation should become effective in mid-January 1997.

Once an employer is subject to the provisions of the rule, California requires that the company implement a program designed to minimize repetitive motion injuries. The program must include a work site evaluation, control of exposures that lead to injury, and training of employees.

The rule requires employers to "consider" engineering controls such as workstation redesign, adjustable fixtures, tool redesign, and administrative controls, such as job rotation, work pacing, and work breaks.

Fed standard may be more likely now

Laws and standards promulgated in California often influence regulations across the country, and experts predict that the California law will be a boost to federal efforts to establish an ergonomics rule. The federal Occupational Safety and Health Administration in Washington, DC, has been promising an ergonomic standard since 1990 and has released proposed versions of the standard in recent years. The proposed federal ergonomic standard released in March 1995 was a different, weaker version of a draft standard that was released in 1994.

The 1994 draft would have covered all employers, about 6.1 million employers with 9.6 million employees, but the 1995 proposal would have covered only employers with evidence that hazards exist, about 2.6 million employers with 21 million employees.

Both proposals were met with strong criticism, with the strongest criticism coming from business leaders who felt the proposed standard would put too much of a burden on employers. Even after the standard was greatly watered down for the most recent proposal, employers still balked at the cost and hassle of complying. In 1995, the whole effort was shelved when Congress threatened the agency with budget cutbacks if it pursued the ergonomics rule, followed with a specific prohibition against such a rule.

Joseph A. Dear, U.S. assistant secretary of labor for occupational safety and health, is making it clear that his agency will pursue a federal standard again. In a recent speech to the International Conference on Occupational Disorders of the Upper Extremities, Dear blamed the holdup on the 104th Congress’ aggressive cost cutting and opposition to any new requirements on small businesses.

With political changes and a fiscal 1997 budget that can fund the rule-making process, Dear says OSHA is "moving ahead responsibly and deliberately but with determination" with efforts to enact a federal ergonomics rule. Research is continuing, and the agency has formed a task force to review potential ergonomic hazards that can be addressed under OSHA’s general duty clause, with a focus on high-risk industries. Public education will be more of a concern in the future, he says, and OSHA will publish a technical assistance manual for employers within the next year.

A second attempt at a federal ergonomics regulation might not be such a great idea, says Neal Taslitz, co-founder of the National Repetitive Strain Injury Foundation and president of The BackCare Corporation, both in Chicago. While he generally supports the idea of a federal regulation that would urge employers to address ergonomic problems, he says the previous fight was so damaging that he does not look forward to a repeat.

"There was so much backlash from the organized opponents that it creates a negative association with ergonomics," he explains. "It can be detrimental to the whole effort to improve working conditions."

A lot of the controversy is related to the problem of developing a single ergonomics rule that applies to a wide range of industries. Doing so creates too many exceptions and opportunities for companies to complain that the requirements are onerous for some type of employers. Working with individual employers may be more productive than relying on a federal rule, Taslitz says.

"And besides, I’m not really optimistic about seeing a rule with a lot of teeth," he says. "If there’s going to be another big fight over the federal issue, we’ll be better off spending the time and effort on the people who want to make changes than those who don’t."