Copyright 2000 Federal News Service, Inc.
Federal News Service
April 13, 2000, Thursday
SECTION: PREPARED TESTIMONY
LENGTH: 1652 words
HEADLINE:
PREPARED TESTIMONY OF LPA
BEFORE THE HOUSE SMALL
BUSINESS COMMITTEE SUBCOMMITTEE ON REGULATORY REFORM AND PAPERWORK REDUCTION
SUBJECT - OSHA'S PROPOSED ERGONOMICS STANDARD AND ITS IMPACT ON
SMALL BUSINESS
BODY:
Madame Chairman and
Members of the Subcommittee:
LPA is pleased to submit testimony in
strong opposition to the Occupational Safety and Health Administration's
(OSHA's) proposed ergonomics standard, which has been estimated by the
Employment Policy Foundation to impose annual costs on employers of nearly
$100 billion, probably making it the most expensive labor
regulation in history.
LPA, Inc., is an association of the senior human
resource executives of more than 200 leading corporations in the United States.
LPA's purpose is to ensure that U.S. employment policy supports the competitive
goals of its member companies and their employees. LPA member companies employ
more than 12 million employees, or 12 percent of the private sector workforce.
Although LPA's membership consists of larger businesses, we believe that the
ergonomics standard raises similar issues for small businesses because of the
broad scope of the regulations. Essentially, every employee of a covered
employer will be affected.
In short, LPA recommends that the proposed
ergonomics standard be delayed until it has been implemented within the federal
government's operations for at least two years in order to demonstrate the
efficacy and cost effectiveness of the standard. Indeed, the federal government
itself, along with those states which are acting on their own in this area,
should serve as an incubator before a one-size-fits-all approach is imposed on
the entire country.
The Regulatory Process Has Been Subverted
At
the outset, it is important to note that it is not just the substance of the
ergonomics standard itself which justifies close oversight, it is also the
regulatory process that OSHA has followed as it races to get to a final
standard. OSHA's fast-track approach following the release of the proposed
ergonomics standard has been nothing short of a mockery of the regulatory
process. The standard and accompanying materials were over three hundred pages
in length. The agency stubbornly refused to extend the original seventy-day
comment period until a few days before it was set to expire. Yet, the docket is
over one hundred thousand pages, making it nearly impossible to undertake a
systematic review of OSHA's rationale and the studies it relied on to justify
the standard as a health standard under the Occupational Safety and Health Act.
The public hearings that followed the close of the comment period, which
are intended to gather real-life stories and case studies to bolster the
administrative record, have likewise been a travesty. In the first set of
Washington hearings, which ended on April 7, representatives from business and
labor often had less than fifteen minutes per side to question each panel of
witnesses, barely enough time for an individual questioner to develop a line of
questioning. That problem was compounded when there was more than one questioner
per side, as was often the case.
More troubling, however, is the
favoritism the OSHA panel has shown towards witnesses from organized labor
versus the antagonism the panel has shown towards business witnesses and the way
the OSHA panel has cajoled certain witnesses into providing the panel with more
time for questioning. LPA's own experience aptly demonstrates this
contrast.LPA's Assistant General Counsel, Tim Bartl, was originally scheduled to
testify as the last witness of the day on Friday, March 24, starting at 5:00
p.m. The panel preceding Mr. Bartl, a panel of ergonomics activists affiliated
with organized labor, had run nearly an hour over schedule. Mr. Bartl was kept
waiting until 6:00 p.m. and was then pressured by OSHA staff to keep his
presentation brief because of the lateness of the hour. Nevertheless, after his
truncated remarks, Mr. Bartl was subjected to 25 minutes of hostile questioning
by OSHA staff. Thus far, we are unaware of any similarly antagonistic treatment
being accorded a labor witness.
Use the Federal Government as a Test
Market for the Ergonomics Standard
Mr. Chairman, in light of the
complexity of the standard and the agency's desire to accelerate to the
regulatory process, LPA recommends that the Subcommittee consider two approaches
to OSHA's ergonomics standard as it continues its oversight responsibilities.
First, instead of allowing OSHA to go forward with these experimental
ergonomics regulations, we ask the Subcommittee to urge the
Appropriations Committee to require OSHA to first use the federal government as
a testing ground. The subcommittee should require the ergonomics standard to be
fully implemented throughout the federal government for two years before
imposing them on the private sector, in order to demonstrate the efficacy and
cost effectiveness of the standard. The federal government has no comparable
ergonomics standard in place for its own employees, yet the Department of Labor
is intent on covering hundreds of thousands of workplaces in the private sector
with untested, highly expensive mandates.
Allow States to Devise
Regulatory Alternatives Before Imposing a National Standard
Second,
because ergonomics is an area where the experts agree that there is still much
to be learned about what works and what doesn't work, we recommend that OSHA be
required to use the states as an incubator of how to regulate ergonomics. States
like California and Washington have recently implemented or are implementing
their own ergonomics rules. The statistical and anecdotal information gained
from these programs, and those in other states, should allow OSHA to more
precisely determine what works and to discover problems with different
approaches. States with non-regulatory approaches could be used as a control
group to analyze the effectiveness of guidance, education, and reliance on
market incentives from a cost-benefit standpoint. By failing to use the option
to experiment with alternative approaches through the State OSH agencies, OSHA
is missing an important opportunity to reinvent itself as an agency that works
better and costs less.
LPA 's Concerns Based Upon Substantial Member
Input
Madame Chairman, LPA has significant concerns with the substance
of the standard as well. Despite the deplorably brief time frame provided by
OSHA for public comment, LPA took full advantage of that time to obtain maximum
input from our members, including interactive use of our web site, numerous
conference calls, and an all-day meeting to ensure that our comments accurately
and comprehensively convey the concerns of our members. Our comments were
extensive and are available to anyone who wishes to read them at our public web
site at www.lpa, org. Today we wish to briefly summarize our views.
No
Scientific Basis for Regulation While our comments conveyed a number of specific
criticisms of the proposed standard, we do not believe that this is a regulation
that can be fixed by merely tinkering with its provisions. Indeed, the very
premise of the regulations--that there is a sufficient scientific basis for
linking workplace activities and ergonomics injuries--is fundamentally flawed.
LPA believes that OSHA's ergonomics standard represents a regulatory and
financial black hole for employers. The agency mandates that employers set up an
ergonomics program in virtually all jobs in general industry once a single MSD
is reported. This overly simplistic trigger could often result in employers
setting up a full ergonomics program even when the MSD is unique to the
reporting employee. The work restriction protection provision exceeds OSHA's
authority and intrudes on state workers' compensation laws because the standard
would apply to all jobs in general industry. Despite OSHA's claims to the
contrary, the standard's mandated employee involvement requirement would prompt
many nonunion employers to form employee teams, which are illegal under section
8(a)(2) of the National Labor Relations Act.
The Standard Requires
Employers to Determine Feasible Controls
OSHA's proposed ergonomics
standard would shift the burden from OSHA to employers to determine whether MSD
hazards have been sufficiently reduced and whether employers have implemented
all feasible controls. Because MSD hazards are difficult to pin down, an
employer would never be allowed to end its attempts to further control
ergonomics hazards. This would be compounded many times over for small
businesses. Yet, OSHA compliance officers would have the final say on whether an
employer has implemented sufficient incremental ergonomics controls to satisfy
the standard. OSHA has provided insufficient guidance on this point, as well as
on the extent of the training employers must provide to employees who are
responsible for monitoring and implementing many of the requirements under the
standard.
The standard also intrudes on several well-established
management policies, such as drug testing and safety incentive programs, in the
guise of ensuring that employees are not discouraged from reporting MSDs. LPA
believes attempts to eliminate or reduce such policies would further undermine
workplace safety, rather than improve it. In sum, LPA believes that OSHA's
ergonomics standard will result in more confusion and litigation than actual
improvement in safety and health, and that the standard should be withdrawn and
at the least substantially reworked.
Conclusion
For the above
reasons, we urge the Subcommittee to do everything within its power to delay the
implementation of the standard on a broad scale. At the very least, OSHA should
wait until the National Academy of Sciences study is complete. We believe a
better tack would be to require the Federal government to abide by the proposed
standard from two years and allow the states to develop their own standards.
These results could then be used to improve the standard before it is
applied to general industry.
Thank you for the opportunity to present
our views.
END
LOAD-DATE: April 15, 2000
