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ERGONOMICS

(Current as of February 2003)

THE ISSUE IS: A federal regulation to require businesses to establish comprehensive ergonomics programs.

IT'S IMPORTANT BECAUSE: In late 2000, the federal Occupational Safety and Health Administration (OSHA) issued a final rule in the Federal Register requiring millions of businesses to establish ergonomics programs in order to reduce musculoskeletal disorders (MSDs) in the workplace. The regulation would have applied to all of general industry, not only to the manufacturing and manual handling industries. There was no exemption for small businesses.

Under the rule, all businesses would have been required to educate all of their employees about MSDs and the new ergonomics standard. If certain thresholds were met, including more than one MSD report in a job category, companies would have been required to establish full ergonomics programs, including job hazard analyses, extensive training, employee involvement and reporting systems. Employees who experienced MSDs would have been entitled to work restriction protection (WRP) benefits, which included 90 percent pay and 100 percent benefits for up to 90 days. The WRP provisions clearly conflicted with the state-based workers compensation system.

OSHA estimated that the new rule would have cost businesses between $4 and $5 billion annually, but several different studies demonstrated that this figure was extremely low. The U.S. Small Business Administration estimated that annual costs would have been around $18 billion. The Employment Policy Foundation conducted an analysis of the proposed rule and determined that it could have actually cost businesses $100 billion annually. These costs would have been particularly harmful to small businesses, which were specifically included in the regulation.

Despite objections from Congress and thousands of comments OSHA received expressing serious concerns about the necessity and scope of the ergonomics proposal, the agency was determined to push forward with implementation of the rule. The agency issued the final rule so it would take effect on January 16, 2001, four days before the Clinton Administration relinquished control to the new Bush Administration.

With a new Administration in place, Congress for the first time in history used a mechanism called the Congressional Review Act to repeal the ergonomics regulation. This act gives Congress a limited time period to hold an up-or-down vote on federal regulations that would cost the United States economy $100 million or more annually. Early in 2001, the Senate and House both passed a joint resolution of disapproval, S.J. Res. 6 to overturn the ergonomics rule. President Bush signed the measure on March 20, 2001.

Early in 2002, Secretary of Labor Elaine Chao announced a comprehensive plan to reduce ergonomic injuries through a plan including industry-specific guidelines, strong enforcement measures and outreach and compliance assistance. To date, the Labor Department has announced guidelines for the nursing home, grocery store and poultry processing industries.

Some members of the Senate and House believe that the guidelines are inadequate and that it is important for OSHA to issue another ergonomics regulation as soon as possible. These members of Congress have advocated legislation to require the Labor Department to promulgate new ergonomics regulations within a specified time period.

NAMIC POSITION: NAMIC was opposed to the Clinton Administration's ergonomics standard and actively participated in the effort to overturn it. The standard would have imposed unreasonable costs and regulatory burdens on businesses, including NAMIC members. These requirements would have been particularly harmful for small companies as businesses with 1-19 employees were specifically included in the regulation. There was no way for businesses to opt out of the system. Although there was a "grandfather clause" for businesses that already had established ergonomics program, these companies would have had to comply with all of the provisions of the OSHA standard. The "work restriction protection" (WRP) provision that would have supplanted the state-based workers compensation system was of particular concern to the property/casualty industry. The requirement to provide 90 percent pay and 100 percent benefits for up to three months to those unable to work due to an MSD would have been extremely costly and could have had the effect of encouraging employees to stay home rather than returning to work.

NAMIC has concerns about proposals to require OSHA to adopt a new ergonomics standard within a specific time period. These proposals could lead to another costly and prescriptive standard that does not give companies necessary flexibility to address their unique situations.

It is in the best interest of businesses to provide employees with safe workplaces, and companies have taken measures to improve ergonomics. Because companies and individuals have different situations and needs, allowing individual companies to adopt their own solutions is a better approach than a one-size-fits-all mandate from the federal government. The Labor Department's approach of industry-specific guidelines, outreach and compliance assistance, and enforcement is an effective way to reduce ergonomic injuries without subjecting businesses to expensive regulations that may not address the problem. NAMIC strongly believes that Congress should allow the Department of Labor to continue this sensible approach and allow the guidelines to take effect before mandating another costly one-size-fits-all regulation.