Copyright 2000 Federal News Service, Inc.
Federal News Service
April 13, 2000, Thursday
SECTION: PREPARED TESTIMONY
LENGTH: 3900 words
HEADLINE:
PREPARED TESTIMONY OF EDWARD SAXON PRESIDENT AND C.E.O. CONCO SYSTEMS, INC.
VERONA, PENNSYLVANIA ON BEHALF OF NATIONAL SMALL BUSINESS UNITED
BEFORE THE HOUSE SMALL BUSINESS COMMITTEE SUBCOMMITTEE ON
REGULATORY REFORM AND PAPERWORK REDUCTION
BODY:
Madam Chair and Members of the Subcommittee on Regulatory Affairs and
Paperwork Reduction, my name is Edward Saxon, President and Chief Executive
Officer of Conco Systems, Incorporated of Verona, Pennsylvania, a family-owned
business. Conco Systems employs approximately 80 people in our efforts to
provide condenser-related tools and services to the power generating industry. I
am also here representing National Small Business United (NSBU), the nation's
oldest small business advocacy organization and SMC Business Councils of
Pennsylvania (SMC). I respectfully submit this testimony regarding the impact of
OSHA's Ergonomics Rulemaking on behalf of NSBU's 65,000 members and SMC's 5,000
plus members.
The promulgation of a mandatory workplace ergonomics
standard is a substantial concern to all small businesses. Smell businesses will
be significantly and adversely affected by this standard as it is currently
written. As a small business owner, worker and workplace safety and health is a
vital concern to me, I do not feel that the ergonomics proposal as it appears
now is the best means of addressing this problem. Thus, I am - as is NSBU and
SMC - strenuously opposed to the promulgation of a final ergonomics standard in
its current form. I urge OSHA to take a step back, gather all the relevant
information, comments and research, and to reevaluate the ergonomics proposal.
Barring that, I ask that Congress intervene to protect small businesses
from an improperly promulgated ergonomics standard, such as the one being
considered here today, that will have a horrific impact on small business,
including mine. I offer the following critiques and suggestions on the
Ergonomics standard.
TIME FRAME AND SCHEDULE REQUIREMENTS
As
noted in the written comments submitted by NSBU to OSHA, I would like to
register my displeasure with the manner in which OSHA has continued to advance
this regulatory proposal. It appears that OSHA deliberately chose to limit the
amount of meaningful public participation and input by originally making the
comment period extremely short. Isn't a standard so vast in nature, and probably
the most significant and burdensome regulatory initiative ever proposed by the
Agency, worth of an appropriate amount of time for review and comments?
SCOPE OF THE PROPOSED STANDARD
The proposed standard's automatic
application to all general industry jobs involving manufacturing or manual
handling alone creates quite a broad reach. But when you add to that the
inclusion of any job in which an employee reports a musculoskeletal disorder
(MSD) or experiences persistent MSD symptoms, then the threshold for being
included is extraordinarily low and unjustifiable. Based upon the criteria
described in section 1910.901 and 1910.906, NSBU believes, and I agree that OSHA
has drafted an ergonomics standard that is too expansive to properly address the
initiatives and ultimate goal of the proposal - the reduction and prevention of
MSDs.
OSHA contends that the proposed standard will avoid a "one size
fits all" approach, yet we've seen no evidence to conclude that this is the
case. Virtually every general industry workplace, regardless of size or injury
history, would fall under coverage as described in sections 1910.901 and
1910.906. Rather than focusing on those industries that have demonstrated a
clear track record of ergonomically related problems, or those industries that
are deemed to have "high risk" potential, OSHA has chosen to blanket the entire
business community regardless of industry, size or history. Ultimately, it
appears that no business will be able to escape the scope of this standard.
Clearly, a "one size fits all" approach to ergonomics will not work. Not
all manufacturing and manual handling businesses are alike and in many cases,
based on size and type of business, the likelihood of a worker experiencing an
MSD or repetitive stress injury is remote. Despite no credible evidence that
MSDs are a widespread problem caused by workplace situations, OSHA continues to
press their heavy-handed standard on all businesses regardless of size. This is
completely inappropriate and unfair for small businesses, the majority of which
have rare occurrences of MSDs. Why should the small business community be placed
under an umbrella where "high risk" industries are also included? It would be of
greater benefit if the Agency would focus its efforts on industries that show a
high occurrence of MSDs and repetitive stress injuries. This standard must be
industry specific to make it fair for small businesses.
This being said,
it is not unreasonable to request that OSHA exempt all small businesses from the
basic program requirements. The simple fact is that the ergonomics standard, if
implemented in its current form, will have a much greater negative impact on the
small business community than larger industries. Labor statistical data suggests
that MSD incidence rates are too low to justify implementation of the basic
program for businesses with fewer than 100 employees.
LACK OF SCIENTIFIC
EVIDENCE & CONSENSUS ON MSDS
One of the major deficiencies in the
literature surrounding what OSHA defines as MSDs, repetitive stress injuries and
ergonomically related problems is that there is no demonstrable relationship
between workplace activities and illness and injuries. There is no clear
statement, consensus or evidence that describes which activities really pose a
threat of employee injury, and at what levels of "exposure" is that risk
present. Even the National Institute on Occupational Safety and Health (NIOSH)
stated in a report entitled Musculoskeletal Disorders and Workplace Factors that
"the document represents a first step in assessing the work relatedness of MSDs.
The second step would involve qualitative risk estimates that are beyond the
purpose and scope of this document." (National Institute on Occupational Safety
and Health (NIOSH), Musculoskeletal Disorders and Workplace Factors. - U.S.
Department of Health and Human Services, 1997) It is disingenuous and
unacceptable to bring forth such a huge standard without clear, convincing, and
indisputable evidence that describes exactly what causes these injuries and how
to identify a hazardous exposure.
While OSHA and other proponents of an
ergonomics standard insist that the current wisdom and information and evidence
gathered to date is sufficient so as to justify this broad regulatory scheme,
unbiased and reasoned people would disagree with this short-sighted and narrow
assessment. There is no convincing proof or sufficient data to support the need
for this heavy-handed regulation.
One essential question that OSHA
continually sidesteps is how to deal with the existence of pre-existing
conditions, or symptoms that have their origin in factors unrelated to work or
work exposures. What impact does work have on these pre-existing conditions?
This is particularly a concern for me, as I have personal experience with this
problem.
OSHA has chosen not to address these factors because they fall
outside the scope of what can be analyzed and defined.
OSHA, in its
standard, has failed to give any weight to the relationship between these
factors and the presence of pre-existing MSD symptoms or disorders. The net
result could be employers spending exorbitant amounts of money and time trying
to eliminate job related MSD or repetitive stress injuries that have no relation
to work. Many of the risk factors addressed in the standard (force, repetition,
vibration, awkwardness, posture, etc) are encountered routinely on a daily basis
outside the work place, when participating in non work activities. OSHA must
delay their standard until the National Academy of Sciences concludes their
study on ergonomics (which was mandated by the U.S. House of Representatives.)
Then, working in conjunction with the business community, the information can be
analyzed, disseminated and used in a way that benefits both employers, and
employees and balances the cost and benefits of implementation.
REAL
LIFE EVIDENCE THAT THESE PROBLEMS EXIST
In October of 1990, Conco
Systems, Inc. hired a part-time employee as a general laborer and pump mechanic.
In November of 1991, this employee began to complain of pain in his right wrist.
This pain was originally diagnosed as possible slight Carpal Tunnel Syndrome
(CTS). As surgery was a possibility, this employee went for further testing and
it was found that CTS was an incorrect diagnosis and the patient was sent to a
neurologist for further examination. At that same time, November, 1991, this
person's workman's compensation claim was denied as a result of the diagnosis
that the problem was not CTS and could not be traced to any work related
incident. The patient/employee continued to pursue his claim even after being
laid off as a result of a reduced workload. Some years later, in July of 1994,
this former employees workman's compensation claim was approved granting him
medical expenses and back wage benefits to February, 1992, plus penalties and
interest even though he had left the state and removed himself from the
workforce. On January 11, 1999, the case was closed on appeal reversing the July
1994 position claiming that this employee was responsible for restitution which,
of course never happened. This former employee made it perfectly clear that he
had no intention of returning to work at either Conco Systems or anywhere else.
Not only are these injuries hard to diagnosis and trace to any specific
incident, work-related or otherwise, they are often impossible to evaluate in an
effective manner. To place the burden on the small business employer to resolve
problems that medical professionals can not determine is not fair. If the
current proposed ergonomics regulation were in place when this
incident occurred, this single incident would have required Conco Systems to
investigate this pump mechanics job and find ways for him to perform the
functions without further aggravating his injuries, at great expense and time.
Further, it would have potentially opened the door to other claims by Conco
Systems employees. And ultimately, this "claim" was shown to be unrelated to the
work place and the workman's compensation award reversed by the courts.
UNREASONABLE TRIGGER MECHANISM FOR COVERAGE
Another area of
concern in OSHA's proposed ergonomics standard is the single MSD-instance
trigger mechanism. The occurrence of a single reported MSD would force small
businesses to address with substantial and costly compliance responsibilities
along with ongoing "improvement" measures. Even in circumstances in which a
covered MSD has not occurred, expanded responsibilities can be triggered by
complaints of persistent MSD symptoms (from one employee over seven consecutive
days). It is clear that the reporting of one single reported MSD is too low of a
threshold to require the implementation of an expensive ergonomics program of
dubious value. If this rulemaking were in effect 10 years ago at Conco Systems
would have been activated into this program, despite the fact that this injury
was proven to be non-work related.
The broad programmatic obligations of
the standard should not be triggered by a single occurrence in one aspect of a
businesses operation. External factors, including preexisting or non-work
related physical conditions may be the reason an employee feels pain while at
work. This does not mean that another employee, who performs the same physical
tasks, is in danger or that the job is "hazardous." The one- instance threshold
makes the full program an almost certainty for virtually every business owner.
Given the absence of scientific consensus on the causes and work relationship of
asserted workplace- based MSDs, this threshold is absurdly low and unreasonable!
QUICK FIX ALTERNATIVE
The Quick Fix alternative in the
ergonomics standard is designed to serve as an alternative to the full program
obligations brought forth by the unreasonably low trigger mechanism. While I
recognize OSHA's attempt to address this concern in the revised November 1999
proposal, I do not feel that it is an appropriate solution. If an employer, such
as myself, is able to devise an improvement that effectively minimizes or
eliminates the problems that OSHA aims to regulate, those efforts could be
wasted if another MSD is reported within a three-year period. The greater
problem is that the trigger for a revived full program is not another MSD of the
same sort, reported by the same person, but merely a second MSD in another,
unrelated position at the business where the "risk factor" is allegedly present.
The mere fact of a second MSD reporting relating to the same hazard, occurring
in the same job would disqualify employers from further Quick Fix efforts and
immediately places them into the jeopardy of a full program.
This
"opportunity" for the employer to respond promptly and effectively to remedy the
alleged problems is unreasonably narrow and extremely limited. The time frame to
evaluate the results of the Quick Fix effort is too short to be truly
conclusive. Thirty days is not enough time to determine whether or not the
efforts of the employer have eliminated the alleged hazard. If not, then owners
have another three years of "probation" where their business must keep a clean
record.
GRANDFATHER CLAUSE
OSHA is now facing the realization
that many small businesses and other employers are taking steps independently to
implement their own "ergonomics program" to help control MSDs. Many of these
efforts have been successful. In an effort to show that they are not utilizing a
"one size fits all" approach, OSHA has highlighted some employer created program
success stories. This regulatory section, 1910.908, states that a business with
an ergonomics program already in place, "may continue that program, even if it
differs from the one this standard requires, provided that you show that..." the
program meets certain OSHA requirements.
This grandfather provision,
when further analyzed, reveals that any independent ergonomics program that is
self imposed must really satisfy every major element of OSHA's proposed
standard. Thus, there are very few current programs that would meet the basic
requirements, including the MSD management component. Thus, those businesses
that have implemented their own program, regardless of its effectiveness, will
essentially be forced to reconfigure their programs as to nearly match OSHA's
mandatory components. Instead of reviewing and analyzing the benefits of the
self-imposed program, the Agency appears determined to have every employer's
efforts match their desired program. Once again, the "one size fits all"
approach rears its ugly head. Furthermore, what OSHA proposes as mandatory
components are scientifically unproven and untested.
MSD MANAGEMENT
(MISMANAGEMENT)
The MSD management portion of OSHA's ergonomic proposal
is unbelievably unfair and abusive to small business. According to the proposal,
employers must make MSD management available promptly whenever a covered MSD
occurs. At no cost to the employee, employers must provide workers with
temporary "work restrictions" and work "restriction protections" (Federal
Register, 1910.929 November 23,1999). Under MSD management, employers also have
other obligations such as providing access to a health care professional (HCP).
If an HCP makes a determination that a worker suffered an MSD, the employer will
be responsible for implementing work restriction protections, which includes
maintaining 100 percent after tax earnings for employees who claim to have an
MSD. For employees who are removed from the workplace, the employer would be
responsible for maintaining 90 percent of the employee's after tax earnings.
OSHA contends that the extensive MSD management provisions are necessary in
order for the regulation to be effective. They contend that workers will not
properly report MSD related injuries for fear of punishment or retribution from
their employers.
In fact, the MSD management portion creates incentives
for the employee to mischaracterize conditions as MSDs. Any possible pain,
strain or sprain that occurred in or out of work could be classified as an MSD
so an employee could be eligible for compensation and other protections. The
standard invites such actions and the inherently subjective nature of the
conditions will make this assertion difficult to resist.
Employees who
report MSD symptoms and whose jobs contain identified "risk factors" thereby
instantly qualify for an employer's mandatory compliance. This means that those
employees will be granted with specified work limitations, obtain a right to
restricted or "light" duty with no employer right to "challenge" that assertion
and the economic advantages of wage protection. Moreover, the standard would
require maintenance of "rights and benefits" as though the employee had not been
placed on temporary work restrictions. This means that they may secure payment
protections for overtime and other premiums they could have earned during the
period of absence from their normal job or work schedule.
Employers know
better than other parties that such concerns do not apply to all employees.
Certainly, in many instances, long-standing company employees, an organization's
hardest-working, highest- performing and most capable employees never incur
workplace injuries, and know how to work with high productivity without
incurring strains, sprains, pains and other disorders. Many employers' report
that a very small percentage of employees account for a disproportionately large
percentage of injuries and compensation costs. Nonetheless, there is a
percentage of individuals in the workforce that approaches injury and
compensation questions from an entirely different perspective. Consider the
example from Conco Systems. It is clear that the mechanisms outlined in the
proposed standard provides a path to recovery that is too attractive and
enticing, with inadequate protections for employers who will pay their costs,
both out-of-pocket and in terms of operational constraints, and should be
reconsidered in many key respects. The conditions for abuse are ripe.
VAGUENESS AND AMBIGUITY OF THE STANDARD
Another significant
problem that I foresee with the standard is its vagueness. As the standard is
currently written, key terms and obligations are so vague that many regulated
businesses will not be able to take the necessary measures or even know the
correct steps to take to be in compliance. In many cases, the definitions held
within the standard are completely ambiguous and circular in nature.
Additionally, the guidelines and subjectivity of enforcement is extremely cloudy
and could lead to variance in compliance. The terminology utilized, and the
desired goals to be achieved are largely undefined and will undoubtedly leave
business owners more confused then ever before.
The simple truth is that
there is no consensus definition on many of these terms because there is
inadequate data and research. Researchers and doctors are nowhere near agreement
on the root cause or the true de 'fruition of MSDs because there are no
universal truths. Scientists have a difficult time explaining why different
individuals working on exactly the same job will not experience the same
symptoms. Meaning that quantifying "permissible exposure limits" and setting
other obligatory criteria is a guessing game. A certain exposure level may pose
a significant risk to one employee while have no affect on another. Once again,
the "one size fits all" mantra is inappropriate.
Anyone can recognize
the difficulties OSHA faced in defining key terms for use in the proposed
standard. But, that does not mean that these overly broad, ambiguous definitions
are acceptable. This vagueness will lead to an expanded scope of the standard
itself, as well as serving to increase the various responsibilities placed upon
any regulated small business. The vagueness will also lead to expensive
litigation or the threat there of.
ECONOMIC IMPACT OF PROPOSED STANDARD
The various cost estimates of the proposed standard differ greatly. Much
like the definitions in the standard and the true cause of MSDs, the economic
impact the proposed ergonomics standard will have on both employers and
employees is unknown. Once again, there is no consensus as to the cost of
implementing this standard. OSHA predicts that in the first year of
implementation, the ergonomics program will generate $9 billion
in direct cost savings. Over ten years, OSHA contends that the ergonomics
proposal will save the government, and industry $90 billion.
Why is there any reason to believe that the "first year savings" will be
repeated each year for 10 years? On the other hand, OSHA estimates that the
first year costs to employers to be approximately $ 4.2
billion, with small businesses incurring costs of $2 billion
per year. The $4.2 billion number is a drastic increase from
the $1.75 billion estimate contained in the February 1999
working draft.
In contrast, some other estimates done by research and
economic polling firms have had single industry costs as high
$30 billion. The SBA Office of Advocacy, through Policy
Planning & Evaluation, Inc., estimated in September 1999 that the cost of
the proposed standard could be anywhere from 2.5 to 15 limes higher than the
original estimates given by OSHA.
Regardless of the correct estimates,
the existence of such variance must raise some serious doubts about the
projected costs. Small business owners will be faced with numerous new costs,
such as hiring experts to review their workplace, costs of development of the
worksite, purchasing of new equipment, increased insurance costs and other
additional costs incurred after a review. Small businesses, that will bear the
brunt of these costs, are not in a position to do so. The ergonomics standard
could lead to the demise of many small businesses. If they can survive this
regulatory process, the taxes collected from these enterprises will be much less
since the costs associated with compliance will erode profits dramatically.
CONCLUSION
As a representative of National Small Business
United, SMC Business Councils and as a small business owner, I strongly urge
OSHA to reconsider the release of their ergonomics standard without a more
complete review and encourage Congress to take action to stop them if they do
not. OSHA's intentions are good, but the means by which they are attempting to
reach their goal is fundamentally flawed. This broad effort to redefine the
workplace needs to be supported and mandated by scientific consensus, of which
there is none. The approach OSHA has taken is a direct threat to the livelihood
of the backbone of America's economy - small business. I fear that the ergonomic
standard, as currently drafted, will adversely affect the small business
community, the economy, and the group it is designed to protect -the workforce.
For all the reasons stated in this document, I object to the standard and will
vigorously fight it's promulgation.
Thank you for the opportunity to
speak with you on this important topic. I would like to thank the Chairwoman
Kelly, Ranking Member Pascrell and the entire Subcommittee for allowing me to
address this matter.
END
LOAD-DATE: April 14,
2000 
