Ergonomic hearings expected to be full of debate, disagreement

Fight over proposed rule continues

The formal hearings into the federal government’s proposed ergonomic rule have begun, and all signs indicate that they will provide a vivid illustration of just why this rule is considered one of the most hotly debated in the entire history of the federal Occupational Safety and Health Administration.

A great many organizations are providing formal comments and testimony regarding the proposed rule, and it seems that nearly everyone has found something they don’t like.

The American Association of Occupational Health Nurses in Atlanta (AAOHN) recently criticized the rule, saying it does not go far enough in trying to prevent ergonomic-related injuries and it does not adequately recognize the role of occupational health nurses. Now the group representing occupational health physicians is making similar complaints. (For more about the AAOHN position, see Occupational Health Management, April 2000, pp. 37-41.)

Even groups that support the overall concept outlined in the ergonomic proposal still want OSHA to fine-tune it in some important ways. The American Industrial Hygiene Association (AIHA) in Washington, DC, wants an ergonomic rule but one that is more proactive, says Sheree Gibson, PE, CPE, president of Ergonomics Applications in Greenville, SC, and former chair of the AIHA’s ergonomics committee. She will testify on behalf of the AIHA in May.

About 1,000 people are scheduled to testify during a three-month period in Washington, DC; Chicago; or Portland, OR. OSHA received nearly 7,000 comments on the proposal during the 100-day public comment period that closed March 2.

Gibson says the hearings are shaping up as a rough experience for OSHA officials. They have been under fire for years because of the effort to enact an ergonomic rule, and some opponents will see these hearings as the opportunity to vocalize all their frustration and dissatisfaction, she says.

"This is such a political issue, a hot topic, and that shows no signs of abating. In all my years in occupational health, I’ve never seen an issue that’s this political. The hearings make me feel sorry for OSHA. It must feel like chum in the water when sharks are around. The feeding frenzy will start," Gibson adds.

Final rule expected by end of the year

Gibson says she and her AIHA colleagues are relieved to see the ergonomic proposal moving forward, even if the road continues to be more than a bit rocky. OSHA has been trying to enact an ergonomic rule for more than 10 years, progressively weakening the proposals in response to employer protests and strong resistance from Congress.

The administration first wanted to cover all U.S. employers in a 1994 proposal, which then was about 6.1 million employers with 96 million employees. A 1995 proposal reduced the scope to only employers with evidence that hazards exist, about 2.6 million employers with 21 million employees.

The current proposed OSHA ergonomics program standard relies on what OSHA calls "a practical, flexible approach that reflects industry best practices and focuses on jobs where problems are severe and solutions well understood." It would require general industry employers to address ergonomics for manual handling or manufacturing production jobs. Employers also would need to fix other jobs where employees experience work-related musculoskeletal disorders (MSD).

About one-third of general industry work sites — 1.9 million sites — would be affected, and more than 27 million workers would be protected by the standard. Fewer than 30% of general industry employers have effective ergonomics programs in place today, according to OSHA.

Under the OSHA proposal, about 1.6 million employers would need to implement a basic ergonomics program. The program would involve assigning someone to be responsible for ergonomics; providing information to employees on the risk of injuries, signs and symptoms to look for, and the importance of reporting problems early; and setting up a system for employees to report signs and symptoms. Full programs would be required only if one or more work-related MSDs actually occurred.

Taking the quick-fix’ route

The proposal’s "quick-fix" alternative to setting up a full ergonomics program works the following way:

- Correct a hazard within 90 days.

- Check to see that the fix works.

No further action is necessary. In addition, a "grandfather" clause gives credit to firms that already have effective ergonomics programs in place and are working to correct hazards.

After the hearings end in May, OSHA intends to finalize the rule by the end of 2000.

Gibson says the AIHA views the proposal as flawed but workable. The biggest problem is that the proposed standard is almost entirely reactive, rather than proactive. Much of the proposed rule depends on an "injury trigger," in which an employer is obligated to correct ergonomic hazards only after an injury is re-ported, she says.

"Most people in the safety and health profession try to be proactive, but using an injury trigger is obviously a reaction," she says. "It doesn’t seem to have anything using a risk-based approach, looking for problems before they cause an injury."

Gibson says she suspects OSHA used the injury trigger in an effort to minimize the burden on employers, and she acknowledges that the problem with the trigger may be more philosophical than practical.

"You really need to look at the jobs with high-risk factors and deal with those problems at least. But to be honest, when you see something that has high-level risk factors, you’re probably going to catch it with an injury. So in reality, part of the debate is philosophical. If you have high-risk factors, you’re likely to see an injury within a short period of time," she points out.

Past injuries not considered for trigger

Gibson says there is another part of the proposal that runs counter to the way most occupational health professionals operate. If the rule is enacted as it is written now, any workplace injuries occurring before the rule’s effective date are not considered a trigger for implementing the rule’s requirements. The employer is free to use that injury as a reason to implement changes, just as they are free to do so now, but the rule would not require any action based on previous history of injuries.

Many employers are afraid of the proposal because it does not clearly define how OSHA will enforce it, Gibson says. OSHA may have tried to keep the proposal relatively simple and without any heavy-handed threats of enforcement, but that effort may have backfired, she says. Employers would be more comfortable knowing what to expect.

"Some people would rather have the devil you know rather than the devil you don’t know," she says. "I tell people that I think OSHA’s going to go after the bad guys first, but the industries have no guarantee of that."

Accurate diagnosis prime concern of ACOEM

The 34-page comment on the rule by the American College of Occupational and Environ-mental Medicine (ACOEM) in Arlington Heights, IL, emphasizes that the accurate diagnosis of a MSD is paramount to making any workplace ergonomic program effective.

As written, the rule does not ensure an accurate diagnosis, says Robert McCunney, MD, MPH, director of environmental medicine at the Massachusetts Institute of Technology in Boston and president of ACOEM. (See story on ACOEM’s and AAOHN’s comments on the rule, p. 51.)

"There is nothing specific about musculoskeletal disorders that would pinpoint the cause," he says. "If someone has pain in the shoulder, elbow, or knee, that looks the same to a physician and is treated the same whether it occurred at work or not. It’s important to ensure an accurate diagnosis and determination of the cause, because tre-mendous ramifications ensue for the employer once that diagnosis is made."

Without an accurate diagnosis, employers can be subjected to the requirements of the rule for injuries that actually are not work-related, he says. The rule should specify that a physician, preferably one who specializes in occupational health, be responsible for making the diagnosis. It is not enough to require only a "licensed health care provider" to make the diagnosis, McCunney says.

"I’ve been in this field for 20 years, and I never cease to be amazed at how many physicians have virtually no concept of what goes on at work. To make a proper assessment, one needs to understand what goes on at work," he adds.

In its formal comments to OSHA, ACOEM stated that "a qualified’ occupational health care provider should be an individual empowered to independently make the decision of whether a diagnosis is needed and if so, to make such a diagnosis." State scope of practice laws are not sufficient for determining which health care providers can make such an assessment, the comments say.

ACOEM also expressed concern about the "quick-fix option" in the proposed rule. Although the quick fix may allow employers to find a fast and inexpensive solution, the comments note that "it may be contrary to the best interests of an employee." Part of the problem, ACOEM said, is that the rule allows the employer to determine whether the quick fix has been successful.

"Clearly, a disincentive exists for the employer to determine that a quick fix has not been successful," ACOEM stated. "In addition, employees may feel pressure — warranted or not — to agree that the quick fix has solved the hazard."

McCunney also expresses concern about the worker compensation provisions in the proposed rule. OSHA proposes that employees suffering ergonomic injuries would be compensated 90% of their after-tax earnings, but most state workers’ compensation systems provide only 66%. The higher compensation is intended as an incentive to report ergonomic injuries, but McCunney says that is an unlikely result.

ACOEM recommends that the compensation rate for workers should be based on existing workers’ compensation statutes, but that the waiting time for benefits and the types of injuries covered should be governed by the ergonomics standard.

Employers not at all keen on the idea

The proposed rule is not popular with many employers, McCunney says. That should not be interpreted necessarily as a resistance to dealing effectively with ergonomic hazards, he says. Rather, the opposition from employers is likely a response to the uncertainty of how a rule would affect them in tangible ways.

"I really expected more employer support for the rule because of the effect that these injuries have on productivity," he says. "Employers have a natural hesitation and resistance to more federal regulations. It’s almost like asking the National Rifle Association if they want another gun-control bill."

One of the most vocal critics of the proposed rule is the National Coalition on Ergonomics (NCE) in Washington, DC, a group of about 300 employers and other organizations opposed to the rule. Ed Gilroy, co-chair of NCE, says employers see the proposed rule as unrealistic.

"Looking at the data and the record as a whole, there is no way any reasonable person could agree with OSHA’s contention that there is scientific, legal, or public policy justification for the agency’s proposed ergonomics rule," he says. "The requirements of the rule are subjective and ambiguous, assuring that an employer could never achieve compliance because, in all of its more than 1,000 pages, not a single proven solution is provided. Even the best-intentioned employer will be unable to understand what this proposal requires, no matter how many lawyers or experts he or she hires."

Looking for assurances

The NCE has long supported safety and health programs, but in OSHA’s proposed ergonomics regulation, the coalition only sees a costly experiment that fails to assure the prevention of injuries, Gilroy says.

"Nothing in the proposed regulation assures the prevention of even one injury," he says. "The only assurance is that this is the most expensive regulation ever proposed by OSHA. Even the agency admits its estimates are the highest costs ever proposed, and we think those estimates are unrealistically low."