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Federal Document Clearing House
Congressional Testimony
April 27, 2000, Thursday
SECTION: CAPITOL HILL HEARING TESTIMONY
LENGTH: 4294 words
HEADLINE:
TESTIMONY April 27, 2000 CHARLES JEFFRESS LPA SENATE HEALTH,
EDUCATION, LABOR & PENSIONS NONE OSHA ERGONOMICS GUILDLINES
BODY:
STATEMENT OF LPA THE ERGONOMICS RULE: OSHA's
INTERFERENCE WITH STATE WORKERS' COMPENSATION LAWS HEARING BEFORE THE SENATE
LABOR COMMITTEE SUBCOMMITTEE ON EMPLOYMENT, SAFETY AND TRAINING APRIL 27, 2000
Mr. 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, and in particular, the work restriction
protection provisions, which would effectively replace state workers'
compensation laws for injured employees. As estimated by the Employment Policy
Foundation, at $100 billion, the standard is likely the most costly in OSHA's
history. The agency's rush to complete the standard has prevented interested
parties from fully analyzing the standard and from taking full advantage of the
public hearings. Substantively, the standard contains an unrealistic single MSD
trigger and unlike most standards, it shifts the burden of determining feasible
job controls to employers. LPA 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. Because the regulation harbors innumerable flaws, 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 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 is 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 Bard, 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. Bard, a panel of
ergonomics activists affiliated with organized labor, had run nearly an hour
over schedule. Mr. Bard 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. Bard 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. The Number of
Musculoskeletal Disorders is Falling Mr. Chairman, we would also like to note
that given recent statistics, there is a substantial question as to whether a
standard is necessary. The Bureau of Labor Statistics recently released its
report on lost workday injuries for 1998. The number of lost workday
musculoskeletal disorders (MSDs) dropped to 592,500 from 626,000 in 1997, a 6
percent decrease. Given similar decreases in recent years, it would appear that
lost workday MSDs are already declining at a rate that would result in a 50
percent decline over a 10-year period, something that OSHA predicts will occur
only after the proposed ergonomics standard is made final. Thus, there is a
substantial question as to whether a standard is needed at all. The Ergonomics
Standard Is Estimated to Cost $100 Billion LPA oppose OSHA's ergonomics standard
because of the cost it would impose on employers. The Employment Policy
Foundation has estimated that the ergonomics regulation would
cost employers as much as $ 100 billion, likely making it the most costly
standard in OSHA's history. The Foundation reached this estimate by reviewing
the economic assumptions in the agency's questionable cost analysis. Among the
errors it found were: - failing to correctly identify the establishments and
employees affected by the proposed rule; - significantly overestimating the
benefits of the standard and underestimating the costs of compliance; - using
anecdotal evidence, subjective opinions by hired consultants, and unsound
assumptions in analysis. Mr. Chairman, in light of OSHA's questionable economic
analysis of this regulation, this standard should be substantially retooled and
resubmitted as a proposed rule before an unworkable regulation becomes
permanent. LPA's Concerns Based Upon Substantial Member Input Mr. Chairman, LPA
has significant concerns with the substance of the standard. 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. Work Restriction Protection Provision Would
Effectively Replace Workers' Compensation Laws LPA opposes OSHA's attempt to
include the "work restriction protection" (WRP) provision in the ergonomics
standard. The provision requires employers to provide 90 percent of an injured
employee's after-tax earnings for up to six months, regardless of whether the
disorder or injury was compensable under state workers' compensation laws. LPA
believes that OSHA has exceeded its authority under the Occupational Safety and
Health Act (OSH Act), section 4(b)(4) of which states: Nothing in this Act shall
be construed to supersede or in any manner affect any workmen's compensation law
or to enlarge or diminish or affect in any other manner the common law or
statutory rights, duties, or liabilities of employers and employees under any
law with respect to injuries, diseases, or death of employees arising out of, or
in the course of, employment. The WRP provision would directly attack the
exclusive remedy for workplace injuries provided by workers' compensation laws
in 49 out of 50 states. Most state workers' compensation laws often cap benefits
at two-thirds of an employee's weekly wage, and actual benefits may be lower,
depending upon the severity of the injury. In contrast, the ergonomics standard
requires employers to provide 90 percent of an employee's after-tax salary for
up to six months. Thus, workers who suffered an MSD requiring time off from work
would turn first to the ergonomics standard in order to receive 90 percent
reimbursement immediately, rather than make a claim under workers' compensation
law which requires employees to show a more concrete injury and endure a short
waiting period. The WRP provision would also greatly increase the number of
fraudulent reports of MSDs. A central problem with detecting and rehabilitating
MSDs is that they are difficult to corroborate. As a result, it is easy for
unscrupulous individuals to make false claims. A generous WRP provision gives
individuals a greater incentive to fake injury than exists under state workers'
compensation laws. The American Insurance Association has estimated that
fraudulent claims and faked injuries account for 10 percent of all workers'
compensation cases paid or approximately $3 billion annually. LRA's Guide to
Workers' Compensation Fraud: The Real Story, June 1998. The National Insurance
Crime Bureau estimates these losses at $6 billion annually. Id. Examples of
these fraudulent claims can be seen on the Internet sites of many state workers'
compensation fraud units. North Carolina, for example, lists several convictions
dealing with bad back or other apparent MSD claims on its web site. One
conviction involved a female accountant who had been diagnosed by a physician as
"totally disabled" due to chronic pain. The investigations section videotaped
the woman caulking and painting without any difficulty. She admitted that her
symptoms were contrived to profit from the workers' compensation system. See
Fraud Investigations Section of the North Carolina Industrial Commission,
available at http:Hwviw.comp.state.nc.us/ncic/pages/fraud.htm. Mr. Chairman,
because the WRP provision supercedes OSHA's authority, will result in
-unreasonable costs to employers, and increase the incidence of worker fraud,
LPA believes that this provision ought to be eliminated from any final
ergonomics standard. The Standard As a Whole is Fundamentally Flawed Although
the comments we submitted to OSHA conveyed a number of specific criticisms of
other aspects 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. 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. 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.
LOAD-DATE: May 2, 2000, Tuesday
