Labor Department Seeks To Improve Squashed Ergonomics Rule

Inspired by the Bush administration's repeal of federal ergonomics standards in March, Secretary of Labor Elaine L. Chao recently held a series of forums to gather information on how to address ergonomics injuries in the workplace.

In mid-July, three forums were held in Alexandria, Va., Chicago and Stanford, Calif., by the Occupational Safety and Health Administration (OSHA), Washington, D.C. Chao asked those testifying at the forums to address three key ergonomics questions:

  • What is an ergonomics injury?

  • How can OSHA, employers and employees determine whether an ergonomics injury was caused by work-related activities or non-work-related activities, and if the ergonomics injury was caused by a combination of the two, what is the appropriate response?

  • What are the most useful and cost-effective types of government involvement to address workplace ergonomics injuries?

OSHA has employed a group of principles on which it will base its new ergonomics program: prevention, sound science, incentive-driven, flexibility, feasibility and clarity.

“The issue isn't about whether we should deal with ergonomic injuries,” Chao said during opening statements at the July 16 forum. “It's about how we deal with them.” She also warned against making the same mistakes that led to the invalidation of the previous ergonomic regulations after complaints from Congress and businesses that they were too expensive and unrealistic.

The now-dead ergonomics rule sought to reduce injuries such as tendonitis, lower back pain and carpal tunnel syndrome, and required managers to take steps to prevent the disorders.

The forums were praised by some in Congress and seen as ludicrous by others. Sen. Kit Bond, R-Mo., voiced his support, while Sens. Paul Wellstone, D-Minn., and Ted Kennedy, D-Mass., both dismissed the forums as a sham, according to an Associated Press report. Several protests also took place during the course of the hearings.

Many, including those in the solid waste industry, argue that there should not be one set standard of rules for everyone. “We don't know how many lifts are too many for your typical waste collector, or how heavy is too heavy,” says David Biderman, general counsel for the Washington, D.C.-based National Solid Wastes Management Association (NSWMA), a sub-association of the Environmental Industry Associations (EIA). Biderman testified at the July 17 forum. “There is no sufficient science that links the cause and effect in our field,” he adds.

The National Association of Manufacturers (NAM) and the U.S. Chamber of Commerce, both based in Washington, D.C., oppose new federal regulations, arguing that businesses already are addressing the problem on their own through ergonomics training sessions and other voluntary efforts. They argue that the emphasis should be on prevention, not enforcement.

The NSWMA wants to work with OSHA to promote solid waste industry best management practices. Regardless of the issue's future direction, Biderman says, “we're extending the olive branch.”

The Solid Waste Association of North America (SWANA), Silver Spring, Md., also has attempted to work with OSHA in the past to create a more tailored standard that would apply more appropriately to the solid waste industry, says Holly Smithson, director of government affairs for SWANA. “Now,” she says, “we will certainly be keeping our eyes and ears open as to which way they'll go. We're in a sit-and-wait mode to see what [OSHA is] going to ask of us at the end of September,” Smithson adds.

But proponents of the regulations argue that a one-size-fits-all, enforcement-oriented approach would be an effective means of addressing these types of injuries.

When Congress repealed former President Bill Clinton's regulations, it stipulated that OSHA cannot enact substantially similar legislation, Biderman says, which means they “can't do something that looks too much like what was done before.” Nevertheless, OSHA still has the authority to cite violators of unsafe working conditions relating to ergonomic injuries under the General Duty Clause.

Recently appointed Assistant Labor Secretary John Henshaw has pledged to help the Labor Department meet its goal of an early decision. In a statement during his confirmation hearing before the Senate Health, Education, Labor and Pensions Committee, Henshaw said it will take more than enforcement to create an effective policy and added that partnerships and voluntary programs should help to prevent workplace injuries.

Although the Labor Department has no official timetable, a decision is expected by the end of September.