In a flash, Congress kills ergo legislation, ending decade of OSHA action

Rules are gone along with ergonomics imperative

In the first-ever use of a law that allows congressional review of new federal regulations, Congress rescinded the far-reaching ergonomics standard released late last year by the U.S. Occupational Safety and Health Administration (OSHA). The resolution to repeal the Clinton administration workplace rules was quickly signed by President Bush, who said the rule "would have cost both large and small employers billions of dollars and presented employers with overwhelming compliance challenges."

Gone are controversial provisions that would have given workers with musculoskeletal disorders (MSDs) a different workers’ compensation protection and provided for second and third medical opinions on work restrictions. Yet employee health professionals also lost a significant tool to make ergonomics a priority for injury prevention in hospitals.

"I don’t know what it means for the future of ergonomics and the safety of the employee in the workplace," says MaryAnn Gruden, MSN, CRNP, NP-C, COHN-S/CM, AOHP, executive president and employee health nurse practitioner at Sewickley (PA) Valley Hospital. "There were some good portions of the standard, yet there were areas of significant concern."

Advocates for health care workers decried the congressional action. "What the Congress did . . . is really a tragedy for health care workers," says Bill Borwegen, MPH, occupational health and safety director of the Service Employees International Union in Washington, DC. "It’s really shameful that a 10-year effort can be eliminated in a 10-hour congressional debate."

Meanwhile, the Bush administration is reviewing the record-keeping and bloodborne pathogens standards, along with other regulations promulgated during former President Clinton’s last days in office. Since the bloodborne pathogens standard stems from a law passed unanimously by Congress, employee health experts don’t expect it to be impacted. However, revisions could be made to the record-keeping rule, which is due to become effective Jan. 1, 2002.

Opposition nearly constant to OSHA rule

The final blow to OSHA’s ergonomics regulation ended a decade-long effort to address musculoskeletal injuries, the most common injury in health care. Workers report about 1.8 million work-related MSDs each year, 600,000 of which involve lost work. More than 18,000 hospital workers suffered an injury from overexertion due to lifting in 1998, according to the Bureau of Labor Statistics.

Yet industry opposition to ergonomics regulation had been almost constant since rulemaking began, including several congressional efforts to quash it. (See timetable, below.) After issuing its proposed standard in 1999, OSHA received more than 7,000 written comments and heard from nearly 700 witnesses at four public hearings. But rather than resolve some of the concerns raised in hearings, the final rule drew fresh criticism.

Chronology of OSHA Ergonomics

1979: OSHA hires its first ergonomist.
1986: OSHA begins a pilot program on reducing back injuries through analyzing injury records, training, and job redesign. Six months later, OSHA requests information from general industry on reducing back injuries resulting from manual lifting.
1987: OSHA cites automobile plants for ergonomic hazards.
1990: Labor Secretary Elizabeth Dole promises action on ergonomics and stresses the need to eliminate musculoskletal disorder (MSD) hazards. OSHA creates an Office of Ergonomics Support. OSHA also publishes ergonomics guidelines for the meat-packing industry.
1992: OSHA issues an Advance Notice of Proposed Rulemaking and requests comments.
1995: OSHA begins drafting an ergonomics standard. Congress prohibits use of fiscal year 1995 and 1996 funds to issue a proposed or final ergonomics standard or guidelines.
1997: Congress allows OSHA to work on ergonomics in fiscal year 1998 but prohibits issuance of any proposed or final standard or guidelines. A House conference report says this will be the last time OSHA’s work on an ergonomics standard is restricted.
1998: OSHA holds "stakeholder" meetings on ergonomics rulemaking.
1999: OSHA publishes its proposed ergonomics standard in the Federal Register.
2000: OSHA holds five sets of public hearings on the proposed standard. President Clinton vowed to veto an appropriations bill that contained language barring OSHA from spending funds to complete or implement an ergonomics standard. A final standard is released Nov. 14. Opponents of the standard immediately file lawsuits to overturn the standard.
2001: A National Academy of Sciences panel issues a report citing scientific evidence for certain types of work-related MSDs and positive outcomes from ergonomic interventions. The ergonomics standard becomes effective Jan. 16, two days before Clinton leaves office. In March, the House and the Senate approve a Joint Resolution of Disapproval that overturns the ergonomics standard. President Bush signs repeal March 20.

As soon as OSHA issued the standard in November, opponents filed lawsuits seeking to overturn it. The American Hospital Association (AHA) was among the organizations asserting that the rule wasn’t scientifically based and OSHA had greatly underestimated the expense of complying. In January, a National Academy of Sciences panel released a report stating that certain workplace factors clearly had been linked to MSDs and ergonomic interventions would lessen the risk of injury. But that support of the ergonomics standard paled in comparison to the brewing political opposition. The National Association of Manufacturers, the U.S. Chamber of Commerce, and major employers such as UPS branded the ergonomics standard as a danger to U.S. business and heavily lobbied Congress to intervene.

Calling the standard "overly prescriptive," Rick Pollack, AHA executive vice president, wrote the Senate sponsor of the Joint Resolution of Disapproval, Sen. Don Nickles (R-OK). "This new onerous, unreasonable, and unnecessary regulation will do little to further protect America’s hospital caregivers. Only a mutual commitment between organizations and workers will achieve that goal," Pollack stated.

Meanwhile, the Bush administration issued a statement through the Office of Management and Budget supporting the congressional resolution to overturn the standard. "If implemented, [the ergonomics rules] would require employers to establish burdensome and costly new systems intended to track, prevent, and provide compensation for an extremely broad class of injuries whose cause is subject to considerable debate," the statement said.

The joint resolution passed the House by a 223-206 vote and the Senate in a 56-44 vote.

Injury prevention still requires ergonomics

So what happens now with ergonomics? The incentive to provide lift equipment and preventive programs remains the same as it has for years: reducing the cost and disability that results from back injuries and other MSDs. Gruden notes that some states require employers that are self-insured for workers’ compensation to have an injury prevention program. Ergonomics would be a part of that, and the overturned standard still provides a framework for evaluating and addressing MSDs, she says. "We can still use [some aspects of the standard] as guidelines in approaching the whole issue of ergonomics in the workplace," she says.

In fact, with the high cost of these disabling injuries and the tight labor market, hospitals have plenty of incentive to reduce MSDs, says Geoff Kelafant, MD, MSPH, FACOEM, medical director of the occupational health department at the Sarah Bush Lincoln Health Center in Mattoon, IL. He is also vice chairman and communications chairman of the Medical Center Occupational Health Section of the American College of Occupational and Environmental Medicine (ACOEM) in Arlington Heights, IL.

The ACOEM had withdrawn support for the final rule, which did not require a medical diagnosis of work-related MSDs. Instead, the rule provided a checklist for employers to determine if an MSD was work-related. "I think it’s a perfect example of how things that are very well-intentioned go awry," Kelafant says. "Somebody needed to step in and just stop the whole thing."

New provisions appeared in the final version that had never been released for comment, Kelafant notes. For example, the standard provided for as many as three different clinical opinions on temporary work restrictions. "This is an example of something that had very little to do with science or medicine or the health of individual workers," he says of the standard as a whole. "It had everything to do with politics."

Can ergo regulation be revived?

Workers and their advocates expressed little hope that efforts to mandate ergonomics could be revived. The Congressional Review Act prohibits agencies from promulgating the same or similar regulations once one has been rescinded. Labor Secretary Elaine Chao sought to soften that stance by promising to "pursue a comprehensive approach to ergonomics, which may include new rulemaking, that addresses the concerns levied against the current standard."

"This approach will provide employers with achievable measures that protect their employees before injuries occur," she said in a letter to key senators before the vote. "Repetitive stress injuries in the workplace are an important problem. I recognize this critical challenge and want you to understand that the safety and health of our nation’s work force will always be a priority during my tenure as secretary."

Borwegen dismissed those comments as "political cover" for Republicans who were hesitant to vote against worker protections.

Gary Orr, PE, CPE, an ergonomist who helped draft the standard, also says it is unlikely OSHA could draft a standard that would overcome the strong opposition. "In the six years I was working on the standard, I found if we came up with some accommodations to meet the requests of the [U.S. Chamber of Commerce and other opponents], they just asked for additional accommodations," says Orr, who is now an ergonomic consultant based in Washington, DC. "I think the people who were in major opposition are in opposition in philosophy to regulation."

Smaller employers are the ones most likely to back off from ergonomics regulation, he predicts. And he says OSHA won’t have much room under the "general duty" clause to require ergonomic interventions. The general duty clause of the Occupational Safety and Health Act requires employers to keep workplaces free from recognized hazards that cause or are likely to cause serious physical harm or death.

Last fall, the Occupational Safety and Health Review Commission ruled that Beverly Enterprises Inc., a nursing home corporation based in Fort Smith, AR, was properly cited for ergonomics hazards under the general duty clause. That overturned a decision by an administrative law judge, who had said OSHA had not identified a "recognized hazard" when inspectors issued citations against five nursing homes in Pennsylvania in the early 1990s due to injuries related to patient handling.

It took more than five years for the review commission to issue the finding that lifting represented a hazard that requires abatement under the general duty clause. The administrative law judge still must decide the case.

"OSHA [still] has to prove that the industry knew about the hazard and there were reasonable abatements the industry knew about," explains Orr. That lengthy case is an example of why OSHA uses the general duty clause sparingly, he says. "When [employers] choose to fight it, it’s a long, expensive road for both parties."