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The repeal of the federal ergonomics rule means the future will hold more challenges for occupational health providers, observers say, since employers will not have the specter of federal enforcement motivating them to prevent injuries. Providers have to remain determined to prevent musculoskeletal disorders even though the job will be harder than it might have been with the ergonomics rule, observers say.
The repeal of the ergonomics rule is the latest, and quite possibly the last, chapter in the long, troubled history of the federal effort to enact a rule that would address musculoskeletal injuries in the workplace. The rule suffered its first major defeat in June 1995, when the first proposal from the Occupational Safety and Health Administration failed in a big way.
The Clinton administration had promised an ergonomic standard since 1990 and released proposed versions of the standard, progressively weakening the proposals in response to employer protests. A 1994 draft would have covered all U.S. employers, about 6.1 million employers with 96 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.
From beginning to end, the strongest criticism of the rule came from business leaders who said the proposed standard would put too much of a burden on employers, even after the standard was greatly watered down. Those complaints were well-received by congressional leaders, who exerted extraordinary pressure on OSHA, and the agency withdrew the proposal in 1995. The federal government kept trying to revive the effort and finally pushed the rule through in the last minutes of the Clinton administration. But employers and congressional leaders howled in protest, claiming that the rule would be a costly nightmare.
Once the Bush administration came to town, Congress acted quickly to repeal the rule. William Patterson, MD, FACOEM, MPH, medical director at Occupational Health and Rehabilitation in Wilmington, MA, says he is disappointed that there will be no federal ergonomics rule, but he isn’t surprised that Congress defeated it.
"The ergonomic standard as written was seriously flawed, which in my opinion is really unfortunate, because had it been less flawed it might have been able to gather enough support to resist the recall effort," Patterson says. "My own opinion is that it is unlikely there will be any serious effort under the Bush administration to come up with an effective standard that addresses the problem of injuries in the workplace."
Patterson says the major flaws were the apparent preemption of existing workers’ compensation programs, especially with respect to wage replacement. Another problem was the broad definition of "health professional," plus the way in which the rule required a lengthy and awkward process to allow employers to make a reasonable determination regarding work relatedness.
For example, Patterson says a physical therapist could notify the employer of a supposedly work-related problem and the employer could be required to initiate a response, even without a supporting opinion from a physician.
"The rule was unduly burdensome and excessively inclusive in its approach," Patterson says. "I feel strongly that we need a standard for injuries, to reduce the financial impact to employers and human impact of injuries to employees. Occupational health providers know that the morbidity, suffering, and life disruption caused by injuries is far greater than that caused by illnesses. The standard was just not written in a way that encouraged people to get behind it and support it."
One of the biggest opponents of the ergonomics rule has been Sen. Mike Enzi (R-WY). "This 600-page gorilla of a rule was pushed through by the Clinton OSHA without adequate consideration of the problems it will cause workers, employers, states, and entire industries. This rule is about paperwork, not protection," Enzi says. "Before the rule was published last year we gave OSHA the opportunity to go back and fix the fatal flaws, to listen to the concerns of workers and employers, but those concerns fell on deaf ears," he adds.
Enzi and others in Congress used the Congressional Review Act to repeal the ergonomic rule. The act provides a 60-day window for Congress to reject final regulations issued by federal agencies. Enzi charged that the rule would force every employer to adopt a full-blown ergonomics program including changing equipment, shortening shifts, hiring more employees, and changing work processes if just one ergonomic "symptom" — not even caused in the workplace but only contributed to by the work process — is reported.
He also says the rule would have "nationalized" workers’ compensation for ergonomic injuries by requiring any employee who "reports any ergonomic injury or symptom" to receive 90% of pay for the first 90 days off from work. Other kinds of workplace injuries command about 67% of pay on average. (For a summary of Enzi’s complaints about the rule, see "Fatal flaws kill ergo rule," in this issue.)
Because of such problems, the rule lost support even among occupational health professionals. The American College of Occupational and Environmental Medicine (ACOEM) opposed the standard, citing the standard’s lack of a sound medical foundation. ACOEM supported the creation of an ergonomic rule but condemned the rule once the final version was published.
Employers were almost unanimously happy to see the ergonomic rule finally die. The National Small Business United (NSBU), the nation’s oldest bi-partisan small business advocacy organization, praises Congress for repealing the standard. By OSHA’s own estimates, the rule will cost American businesses $4.5 billion per year. Others, most notably those in the Small Business Administration’s Office of Advocacy, contend it could cost firms upward of $100 billion annually.
"The repeal of the ergonomics standard is by far the biggest victory for small business in the last decade," says Dick Herring, NSBU chairman. "We encourage President Bush to sign it expeditiously and thank the leadership in both branches for protecting small business from this flawed mandate."
So what does the future hold? For occupational health providers, the defeat of the ergonomic rule means they are without any federal leverage when promoting workplace injury reduction. Patterson cautions that the defeat of the rule is not a reason to give up or even reduce efforts to improve workplace ergonomics.
"This leaves occupational health providers right where they were before all this started," he says. "Some will be able to use the scientific data regarding the relationship between cumulative trauma and musculoskeletal disorders and the cost effectiveness data generated as part of OSHA’s background preparation, to help convince employers of the benefits of an effective ergonomics program."
Patterson suggests that providers should study the data provided with the ergonomics rule and develop more palatable ways for employers to reduce workplace injuries. One good result of the entire debate may be that employers are now more aware of the whole issue of workplace ergonomics. Even if they opposed the federal rule, employers may be more receptive if occupational health providers come forward with realistic, cost-effective ways to reduce injuries, Patterson says.
"There is no reason to give up the fight on this just because the OSHA rule won’t be there to help," he says. "It’s going to be a different sort of challenge now than we thought it would be, but the effort to control injuries and their effects in the workplace is still an important priority."