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[Page: S5629] GPO's PDF---
AMENDMENT NO. 3594, AS MODIFIED
Mr. BOND. Mr. President, I rise today to support in the strongest possible way the Enzi-Bond amendment to the Labor-HHS appropriations bill relating to ergonomics . This amendment will save businesses, small businesses particularly, and other employers, and primarily their employees, from the ravages of OSHA's regulatory impulses running rampant.
As many in this body know, I have questioned OSHA's approach to formulating an ergonomics regulation for several years. Last year, I introduced a bill, which currently has 48 cosponsors, to force OSHA to wait for the results of the study that we and the President--and the President--directed the National Academy of Sciences to conduct on whether there is sufficient scientific evidence to support this regulation.
This measure is known as the Sensible Ergonomics Scientific Evidence Act, or the SENSE Act. Sadly, this issue, as administered by OSHA, has been lacking in common sense in the years that OSHA has been working on it.
We were not able to move the SENSE Act last year, nor were we able to convince OSHA they needed to put some common sense into their regulatory process before going forward with the proposed rule. At this time last year, we were fearful of what OSHA might come up with because it did not look as if they were going about it in a reasonable, responsible way. When the proposed rule was finally published in November and we found out what they wanted to do, it was worse than we could have imagined.
It is tragic that OSHA and this administration have all but disregarded the protections for the rulemaking process that are needed for sound regulations . They moved at an unprecedented pace, and it looked as if they were trying to get this regulation finalized before they even left office.
This is a classic example of ready, fire, aim. OSHA needs to be told they have gone too far and they must suspend the regulation so that it can be redrafted and put into some reasonable, workable approach.
The Enzi-Bond amendment to the Labor-HHS appropriations bill must be adopted, and I urge my colleagues to strongly support it.
I have the honor of serving as chairman of the Small Business Committee, and I have heard from literally thousands of small businesses and their representatives about the utter terror they face of having to comply with an impossible regulation that they cannot figure out and they cannot implement.
Let me be clear, their fear is not that they will have to protect their employees or even that they will have to spend some money to achieve that goal--they are doing that already because they do not want to see their employees have repetitive motion injuries or ergonomic injuries. They want to do what is right for their employees. In many cases, these employees in the smallest businesses are like family. They treat them like family members because they work closely with them.
Instead, this fear, this terror is that they will be forced to figure out what this regulation means, what is expected of them, whether they can satisfy the requirements, whether they will get any results from the huge costs of this regulation, and whether they can convince an OSHA inspector they have satisfied a regulation which gives no clear guidelines.
In some cases, the alternative to complying with the regulation may be to close the company or to move it to another
country where they do not have such regulations , or, which is also extremely sad, they may be required to get rid of employees and buy equipment and replace their employees with equipment.
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None of these regulatory efforts has to do with assuring protection for employees from repetitive motion injuries. The simple truth is, there is nothing the regulation says that will protect employees. It does not do what OSHA would have us believe it does. It does not tell employers how they can help their employees. On this basis alone, the proposed regulation fails and must be withdrawn.
OSHA likes to say this regulation is flexible. So is a bullwhip. What OSHA calls flexible is really a level of vagueness such that no employer, no matter how well intentioned, would be able to tell what is required of them or if they have done enough. Let me give a couple examples to help illustrate the degree of vagueness that permeates this proposal. These terms come directly from the language of the proposed rule:
Throughout the standard, employers are directed to implement provisions and establish program elements ``promptly.''
In analyzing a ``problem job,'' employers are instructed to look for employees ``exerting considerable physical effort to complete a motion,'' or employees ``doing the same motion over and over again.''
Engineering controls are to be used ``where feasible.'' When implementing the ``incremental abatement'' provisions, employers are to ``implement controls that reduce MSD hazards to the extent feasible.''
For an employer to evaluate its ergonomics program, it is to ``evaluate the elements of [its] program to ensure they are functioning properly; and evaluate the program to ensure it is eliminating or materially reducing MSD hazards.''
Ergonomics risk factors are defined as: ``(i) force (i.e., forceful exertions, including dynamic motions); (ii) repetition; (iii) awkward postures; (iv) static postures; (v) contact stress; (vi) vibration; and (vii) cold temperatures.''
Anytime one lifts a garbage can outside in the winter, one probably goes through all those.
To be effective, however, this regulation must tell employers when their employees will be injured, when an employee will have lifted too much,
when the employee will have done too many repetitions, what an employer can do to prevent injuries or to help an employee recover from an injury.
OSHA loves to say this proposal is supported by adequate science and many studies. Unfortunately, none of these studies have answered these critical questions, or at least OSHA has not bothered to include any of that information in this proposed rule.
All other OSHA regulations provide a threshold of exposure to a risk beyond which the employer must not let the employee be exposed without protection or taking a corrective measure.
This proposal is unique in its complete absence of any thresholds. I guess that is what they mean by ``flexible.'' That bullwhip they use can come down at any time and give them the full benefits of flexibility. There is not a single threshold.
OSHA is telling employers: We think you have a problem. We cannot define it. We cannot tell you how to fix it. But you have to go fix it. We will hold you accountable for how well you fix it, even though we cannot tell you how to fix it.
This is absurd. It would be like driving down a highway where the sign said, ``Don't drive too fast,'' but not specifying what the speed limit is. You would never know if you had gone too fast until the highway patrolman pulled you over and told you whether you had gone too fast, according to that patrol person's view of what was ``too fast.''
This is no way to create an enforceable, workable, worker safety regulation in a country that prides itself on being a country governed by laws, not people.
This proposal is simply unenforceable as it is written. It amounts to nothing more than a regulatory trap which will result in more citations, more fines, more litigation, more legal fees, more confusion, and more problems without protecting a single worker or making a single workplace safer. It is a big bullwhip to threaten employers without telling them how to avoid that which they seek to prevent.
Whatever other problems this regulation may cause for large employers, the problems will be catastrophic for many small businesses. It is impossible to overstate the complications and the burden this regulation could impose on small businesses. Small business owners simply do not have the time, expertise, resources, staff, or understanding of the issue to deal with this regulation while still performing all the other roles that are demanded of them as businesspeople as well as family members.
The same person who may handle sales, accounting, inventory, customer relations, and environmental compliance may also be responsible for safety compliance. With the vagueness of this proposal, the lack of a scientific consensus on what causes these injuries, the lack of a medical consensus on what is an effective remedy, and the naturally complicated nature of this issue, the typical small business owners will be so overwhelmed with this regulation, it will be a wonder if they decide they can both comply with the regulation and stay in business. Every hour they spend on this regulation--and despite OSHA's claims, there will be many--is an hour they will not use to do something that will further increase their business or create more jobs. For small business owners, time really is money. And if they are not dealing with all these roles in their business, they are probably trying to set aside a few hours a day to spend with their children and families.
The Small Business Administration did an analysis of this proposed rule. One of the points they made is that small businesses are not just large businesses with fewer employees, they function in an entirely different way. In addition to their lack of resources and staff, they may also have a different cash-flow structure, which means that the financial burden of this regulation cannot be absorbed as easily.
In many small businesses, they are more dependent on financing for their operating capital, so the cost of implementing this regulation will require the company to take on more debt, thus eroding further its opportunity to make a profit and grow and hire more employees.
Also, small businesses often exist as niche businesses to serve very special needs. They may not be able to pass costs along to their customer easily because the customer may be able to do without the niche product or be able to find it cheaper or more easily from a larger source.
Small businesses are the engine of this great economic expansion we have been enjoying recently. They are the ones that are creating the jobs. They are the ones that are creating the opportunity and creating the wealth for many families around this country. This rule will be sand that can cause this engine to seize up and stop dead in its tracks.
The Small Business Administration's study on this proposal found that OSHA underestimated the cost of this regulation by a factor of anywhere between 2 and 15 times. OSHA simply has no idea how much this regulation will cost businesses, and particularly small businesses. And businesses have no idea what they will get for the money they will be forced to spend.
Employers have no problem investing in safety to protect their employees, but when you ask them to spend excessive amounts, with no guarantee of what they will get in return, they are going to object, and object strenuously.
This weekend, when I was in Missouri, I talked to small businesses, small businesses that are very much concerned about this. Do you know what they said to me? They said to me: Look, we don't want to see repetitive motion injuries. We are very much concerned if one of our employees comes up with carpal tunnel syndrome.
One small business owner said: I have hired two different safety engineers to come in and work with the employees and me to find out where there might be an injury, to help us develop ways of preventing those injuries. We talk with and listen to our workers and say: What are we doing? What can we do differently?
He also said: I have paid a lot of money trying to find an answer. Wherever we can find an answer, we implement it, because it doesn't make any sense for me to lose good workers or to have them suffer the physical pain, which is great, or to have the loss of income which can come from one of
[Page: S5631] GPO's PDF
And he said: When we look at what OSHA is telling us, how come, if they are so smart, they can't tell me what specific things I can do? What are the standards? I paid these safety engineers to come in and help me, and they have done everything they can. And OSHA doesn't even come close. They are not even trying. They are just going to pull out that big bullwhip and whack me across the back if there is something I missed and something nobody understands can be done to prevent it.
Small businesses are such a vital part of the economy that, 5 years ago this month, I introduced what we call the Red Tape Reduction Act, but it is technically known as the Small Business Regulatory Enforcement Fairness Act, or SBREFA. This act was passed by the Senate without a dissenting vote and signed by the President in March of 1996.
Among other provisions, the Red Tape Reduction Act requires OSHA to convene panels of small businesses to review regulations before they are proposed, at the time when their input can have the most impact.
OSHA convened their SBREFA panel for the ergonomics regulation in March 1999. It should be no surprise that the small businesses that reviewed this regulation thought it would be a nightmare to comply with. Even those businesses that were generally in favor of doing something about an ergonomics regulation, because of the possible ergonomics injuries and the pain they cause, believed that this proposal was seriously flawed and totally inadequate. In every category of question, the small businesses that reviewed this regulation found serious problems. The report was issued, and it contained many criticisms and complaints about the proposal.
I will mention a few of them:
Many [small businesses] felt that OSHA's preliminary cost estimates had underestimated costs.
Some [small businesses] felt that there may be substantial costs for firms to understand the rule and to determine whether they are covered by the rule, even for firms not required to have a basic program and who have not had an MSD.
Many [small businesses] expressed doubt over their capability to make either the initial determination about whether they need an ergonomics program or to implement an ergonomics program itself. Many [small businesses] felt that they would need the assistance of consultants to set up an ergonomics program and to assist them in their hazard identification and control activities.
Almost all of the [small businesses] stated that they would not be able to pass on the costs of an ergonomics program to their customers. The ability to pass through costs may be dependent on the level of domestic and foreign competition.
Many [small businesses] questioned OSHA's estimate that consultants would not be necessary for any element of the program except in 10% of those cases involving job fixes.
Many [small businesses] had difficulty understanding OSHA's criteria for determining the work-relatedness of MSDs. Many [small businesses] interpreted OSHA's criteria for determining the work-relatedness of MSDs in such a way that, in practice, the two criteria in addition to a recordable MSD would be unworkable or ignored.
Some [small businesses] expressed concerns about how certain terms and provisions of the draft rule would be interpreted and enforced by OSHA compliance personnel. Many [small businesses] found it difficult to apply the concepts of feasibility, similar jobs and manual handling, as these are defined in the draft rule.
Many [small businesses] ..... were concerned about perceived overlaps between State workers' compensation laws and the draft standards' medical removal protection requirements.
Some [small businesses] suggested that employers' increased concern about MSDs could create additional incentives for employers to discriminate against individuals who may be members of protected classes of employees based on the perceived likelihood that such workers would have more MSDs than other workers.
Many [small businesses] suggested that non-regulatory guidance would be preferable to a rule.
Some [small businesses] recommended that OSHA delay the ergonomics rule until the completion of the National Academy of Sciences study that is now underway.
Mr. President, those are some of the comments the small business panels offered when they looked at this atrocity. You would think with all these concerns and recommendations, OSHA would have made major changes to the proposed rule to take into account, as they were supposed to, the legitimate concerns of small business. Unfortunately, that was not the case. The changes that were made were merely cosmetic, not substantive, and did not address any of these issues raised by the small businesses. In fact, OSHA made so few changes to the draft that when thousands complained about the short comment period after it was published in November, OSHA claimed the fact that it had been released to the panel qualified as giving interested parties sufficient time to help them develop their comments. OSHA ignored the concerns raised by small businesses that gave up their time to participate in this process in the hopes of helping OSHA fashion a reasonable and responsible, better regulation.
They didn't want to know. They didn't pay attention. This is precisely what the Red Tape Reduction Act was meant to stop, when a Federal agency says: Ready, fire; we will worry about the aim later, and they didn't care about what aim they took. They didn't care about listening to the small businesses. This is a clear-cut example of abuse of the law that is designed to protect small businesses from excessive overreaching and inappropriate Federal regulation.
Unfortunately, this has been a consistent pattern of OSHA during the development of this regulation. There have been numerous stakeholder meetings and meetings with concerned businesses where OSHA received valuable guidance and suggestions that would have led to a better regulation. OSHA has not been willing to work with anyone from the employer community who would have to deal with this regulatory monstrosity. They have pursued their vision of this rule with a myopic tunnel vision that has shut out any and all recommendations that could make this regulation palatable and workable. The intransigence of OSHA in this rulemaking has been positively staggering. Unfortunately, this regulation threatens not only to stagger but to take the breath out of small businesses in the United States.
OSHA would have us believe that they must move forward because of the levels of musculoskeletal disorders occurring among employees. In fact, as employers have focused on MSDs, the numbers have been steadily declining, since 1994, by a total of 24 percent. These injuries now make up only 4 percent of all workplace injuries and illnesses. This progress has come about without an ergonomics regulation.
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