Copyright 1999 Federal News Service, Inc.
Federal News Service
MARCH 23, 1999, TUESDAY
SECTION: IN THE NEWS
LENGTH:
2836 words
HEADLINE: PREPARED STATEMENT OF
DAVID G.
SARVADI ESQ.
THE NATIONAL COALITION ON ERGONOMICS
BEFORE THE
HOUSE EDUCATION AND THE WORKFORCE COMMITTEE
WORKFORCE
PROTECTIONS SUBCOMMITTEE
SUBJECT - THE EFFORTS OF OSHA TO PROMULGATE
A
STANDARD ADDRESSING MUSCULOSKELETAL DISORDERS
BODY:
Mr. Chairman, Honorable Members, and Guests. My name is David Sarvadi. I
am honored to be asked to participate in this process to examine the activities
of the U.S. Department of Labor's (DOL) Occupational Safety and Health
Administration (OSHA) in pursuing rulemaking on the subject of ergonomics and
musculoskeletal disorders (MSD). I have been working with the National Coalition
on Ergonomics on this OSHA regulatory issue since NCE's formation in 1994. The
Coalition has been unwavering in its support for an effort by OSHA based on
sound science, and unyielding in its opposition to attempts to skirt the serious
questions about the relationship between activities both on and off the job and
what are now called MSD.
The NCE is a group of over 250 trade associations,
companies, and organizations interested in ergonomics and application of
principles of ergonomics to workplace safety. We represent all sectors of the
economy, from office workers to manufacturing, to transportation and health
care. A partial list of the organizations which support our efforts is found in
the left margin of the cover page to my written comments. As you can see, this
coalition represents the vast majority of American workplaces.
By way of
background, I am an attorney with the Washington law firm of Keller and Heckman.
I am also a certified industrial hygienist, and have spent more than 25 years in
the field of occupational safety and health. I have participated in OSHA
rulemakings since 1974, having served on various industry and trade association
committees in reviewing OSHA proposals and providing comments on how those
proposals affect individual employers as well as industry sectors. The views I
humbly offer here are those of the Coalition, leavened by my experience as a
health and safety professional as well as an attorney in Washington working on
occupational safety and health issues. In the interests of full disclosure, I
can tell you that I have had no contracts with any federal agency since 1990,
and have no current contracts.
I. Introduction
Our system of laws is
predicated on the idea that due process in formulating the laws contributes to a
sense of fairness among the citizenry that the government does not take
arbitrary and capricious actions. Notice to and participation by members of the
regulated community is often regarded as the primary element to convince
citizens that the process is open, but openness is only one of the concepts
embodied in the notion of due process. A second one is the belief that the
decision has an objective and substantial basis. For if government does not base
its decisions on objective criteria, particularly with regard to technical
issues, the decisions will be seen as simply the exercise of raw political
power, subject to the winds of change that blow incessantly in our nation's
capitol.
For the last five years, the subject of an OSHA ergonomics
regulation has generated controversy and political drama. In prior
years, it has resulted in legislative direction to prohibit OSHA from adopting
proposal which in the view of many is unwise, untenable, and unsupportable by
the evidence.
Let me explain my views in more detail.
II. The Statutory
Basis of OSHA Rulemaking
No doubt the Occupational Safety and Health Act
grants broad power to OSHA to regulate the workplace. When it was adopted,
Congress was appalled at the number of employees injured and killed in the
workplace each year. Over time, OSHA's authority was challenged by industry as
too broadly interpreted, as an unconstitutional delegation of legislative power.
Indeed, U.S. Supreme Court decisions in the 1970% and 1980% interpreted the
delegation of that power as limited to avoid the constitutional problem. OSHA,
the Court said, that a must show significant risk exists before it acts, and its
decisions must have a reasonable basis to expect that the changes sought will
mitigate those risks in the industries affected. In recent cases, appellate
courts have concluded that such determinations must be made for each industry
that will be affected, and Congress imposed a further requirement that OSHA
should specifically examine the effects on small business with the help of the
Small Business Administration Office of Advocacy and a panel of small business
representatives. That process is proceeding as we speak.
We believe that the
only legitimate and appropriate exercise of OSHA's authority is one based on
objective information that informs and shapes the policy judgments that must be
made. In ergonomics, it has been our contention that the underlying science is
inadequate to support quantitative relationships. Given that the kinds of
medical conditions and complaints are common among the general population as
well as being reported in workplace injury and illness statistical data, we
believe it is necessary to have some idea of the magnitude and nature of the
risks OSHA seeks to control so as to distinguish workplaces of increased risk
from those which have little or no problems.
We believe it is clear that the
idea that most, or even many, of the nation's workplaces have a significant risk
of MSD is a complete exaggeration. We understand that the Bureau of Labor
Statistics, which collects data from a statistical sample of American
businesses, reports that a majority of workplaces do not have a reportable
injury or illness in any given year. Some may argue that this is because so many
of the workplaces are small; this may be so, but OSHA's current plan does not
account for this fact, and includes workplaces that have manufacturing and
material handling tasks regardless of their injury and illness history. A
clearer picture of a solution in search of a problem will probably never be
found.
Moreover, it is also clear that having a single case does not create
a significant risk of injury in a workplace in and of itself. Because these
identical conditions occur in the general population, with substantial
frequency, significant risk can only be determined if a comparison with
background rates of MSD, specifically to the type of condition reported, can be
made. Unfortunately, current knowledge does not allow such comparisons to be
made. This is an area that would quickly bear fruit that would contribute to
settling the debate.
We cannot emphasize how important it is for OSHA to
have a sound scientific foundation. Although the political dynamic will be muted
when science supports an objective neutral basis for a regulation, equally
important is that the Agency can be more certain of having an effective
regulatory approach, and one that does not create an unknown risk that the cures
might be worse than the disease. Until better correlations are made between
specific kinds of activities and conditions, it is impossible to predict whether
the proposed solution will have a beneficial impact. A.
A.
Significant Risk Is Only Significant in Relation to the Nature and Severity
of Injury and the Probability of its Occurrence
To conclude that injuries
are caused by work, one needs evidence: - of a direct causal link (pathology,
description of physical causes, demonstration in animals or prospective
epidemiology); or
- that the condition occurs in greater frequency or
incidence than in general population.
We contend there is no clear evidence
linking specific causes to specific activities in a quantitative fashion. Even
for conditions, such as Raynaud's Syndrome, a condition of the hands caused by
concurrent exposure to vibration and cold temperatures, the magnitude of the
risk expressed in terms of temperatures and quantitative measures of vibration,
is unclear. At least, there is a complex formula that specifies daily exposure
limits, copy of which is attached.The problem is that the conditions caused and
etiologic agent in ergonomics are not clearly identifiable or measurable. Until
we are able to do so, it is an impossible task even for large companies to
define their obligations. The reason is that current science cannot quantify the
risks. Indeed, there is a serious question whether the conditions most
frequently associated with "ergonomics," such as carpal tunnel syndrome and
computer work, is related to on the job activities. Reports by Lamm, Nathan,
Vendor, and Hadler, among others, question the underlying hypothesis: whether
keyboarding causes the condition at all. A recent paper by a group in California
reported that treating physicians mss existing conditions, like diabetes and
overweight, that are known risk factors for carpal tunnel. Until the studies are
done to control for non-work factors, the conclusion that work causes the injury
must remain an hypothesis.
The Society of Hand Surgeons and the California
Orthopedic Society agree -- there is no clear demonstration of causality to
date.
Nevertheless, people are in pain. And no wonder. Our population is
getting older by the minute. It is well known that as we age, aches and pains
become more common. The OSHA proposal would medicalize many of these normal
conditions, and provide an incentive for people to seek assistance in the
workers compensation system. The proposal in fact provides for maintenance of
benefits and wages for six months. This sounds like a great idea, at first. But
talking with economists who study such programs shows that such incentives
create claims where they might not have existed before. Once in the system, many
people become victims of a vicious cycle: they can't get benefits unless they
are still ill, and they can't afford to get well.
So what is the state of
the science? The National Academy of Sciences (NAS) and the National Institute
for Occupational Safety and Health (NIOSH) both produced reports on this
subject. The NAS report was the work of a day and a half workshop last summer.
It sought to complete an impossible task: to review the state of the art with
presentations by specialists in the field of ergonomics. That task is
specifically not what representatives in the House asked NIH to do. Rather, the
Members sought a comprehensive, objective, independent and de novo review of the
literature to address the question: what is the state of knowledge about
activity and injury, and how is it related to on the job and off the job
activities.
The NIOSH report was a more comprehensive review. However, it,
too, failed to answer the key question. Both reports conclude that there was
some evidence of a qualitative link between on-the-job activities but not a
quantitative one. Yet, as I noted above, that is precisely what we need. For how
else are we to distinguish between cases which are truly related to a person's
job from those related to non-work causes. We need the answer to these questions
because employers will not have an impact on the development of these conditions
if they do not understand better than we do now what the causes are.
B.
OSHA's Proposed Approach Is Not about Ergonomics and May Not Be a Standard as
Defined by the Act Except for the definitions, OSHA's recently released draft
does not describe or relate specifically to MSD or ergonomic principles. Rather
the requirements relate to a particular management approach to health and
safety.
Moreover, there is no evidence the OSHA approach works, that it is
the only way, or even the best way. While OSHA references the Government
Accounting Office (GAO) report on the five companies with existing programs, and
comments from stakeholders at various meetings around the country, OSHA makes a
leap of faith to say that because the highly individualized approaches followed
seem to work some of the time, that is sufficient evidence for OSHA to impose
this model on all of industry. It does not follow.
First, and foremost,
OSHA's proposal may not be a standard as defined by the statute. It does not
describe means, methods, practices, reasonably necessary or appropriate to
control occupational safety and health hazards, but rather tries to impose a
particular management approach on employers. The current wisdom in Washington is
that employees need to be involved in decisions about how work should be
organized and performed.
No on would argue that employees are often the
source of important information about how a job is best performed. But it is
also true that employees are often the worst source: if the requirements for
training that have been imposed over the last 20 years is any indication, it
follows that employees are often poorly informed about the correct or best
approach.
Second, employers, especially small employers, have widely
differing corporate cultures and styles. Some companies operate on the open door
method: if someone has a problem they take it to the highest person they choose.
If OSHA would consider such an approach acceptable, the requirement for employee
involvement would be unobtrusive. But it is not clear that is what OSHA has in
mind. It is abundantly clear that is not what organized labor has in mind.
Even if such were acceptable, how does this relate to ergonomics as opposed
to lockout/tagout, or any one of dozens of other safety and health issues in the
workplace? They don't. The approach used by OSHA is not a standard about
workplace hazards, it's about OSHA -- the government -- knowing best how to run
your company.
III. What Should OSHA Do?
Clearly there is a need for OSHA
to appear to be doing "something." And there is much information about the
application of ergonomic principles that would serve industry well, and perhaps
provide an ancillary benefit on the health issues. OSHA should adopt its "New
OSHA" approach and put on an aggressive outreach and consultation program.
Enforcement should be abandoned. All cases OSHA has brought to date have
been lost when OSHA actually had to prove all the elements of the violation.
Even the Pepperidge Farm case, which was a partial victory for OSHA, does not
bode well for OSHA's enforcement activity. There, OSHA only won on the issues
that were not contested, principally related to lifting. Interestingly, even in
that case, a substantially similar facility near the one which had all the
citations did not have a significant incidence of complaints. And given that
OSHA is losing these cases regularly, one wonders how OSHA expects to prove the
general case when it has failed in specific, well-defined cases for the last ten
years. It should be noted that the only cases OSHA "won" were the cases not
challenged.
OSHA should abandon its current enforcement efforts. There is no
factual basis for an allegation that a hazard exists or is recognized in the
vast majority of cases. Indeed, the one major case that is currently being
pursued, involving Hudson Foods in Missouri, is reportedly costing an enormous
amount of resources. It would be better for all concerned if OSHA would put
those resources into an outreach program, rather than pursue the chimera of
another notch in its belt.
OSHA argues that employers already do most of the
things that it would require in the proposed standard. Even if that were a
justification for adopting it, there is a critical difference between voluntary
adoption and application of principles in private activities, and having the
government impose an obligation enforceable by civil citation and penalty. OSHA
seems not to understand the distinction. Perhaps that is the cost of the
government perspective. But I can tell you unequivocally that all employers I
talk to have the same response: a mandatory OSHA standard is not going to be a
help. They see it as one more intrusion by the government in their private
lives.
But, OSHA says, health and safety people in the companies support
ergonomics. Of course they do. They, as we, support the use of ergonomic
principles in a voluntary program. What OSHA often misunderstands is the
occasional individual who sees a standard as a way to enhance his job
importance, to solve the problem of competing for resources in any organization.
As one industrial hygienist told me, it's easier to get money if there is an
OSHA standard that requires the program. No doubt it is. But that is not a
justification for a mandatory legal standard based on an unsound foundation.
So what else should OSHA do? OSHA should fund research on developing the
quantitative relationships needed to describe hazardous conditions with
particularity, as required in statute. Without such guidance, employers are left
to the vagaries of enforcement, toeing a different standard each time a new
compliance officer walks in the door. OSHA should develop and disseminate
ergonomic tools, such as documents displaying principles, application materials
(anthropometric tables), and design guides. OSHA should ask NIOSH to fund basic
research, using prospective epidemiology and clear criteria for case definition
to answer the questions that remain. Until that basic research is completed,
OSHA should not impose an unwise, and unwieldy standard on the nation's
workplaces.
END
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