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ICER. The Senator from Wyoming.
Mr. ENZI. I yield myself 3 minutes.
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The other side today has spent most of the day avoiding the ergonomics debate. Part of the debate was on the floods in North Dakota. That is because they do not have an answer to what we have been saying all day. We, too, are concerned about worker safety. We have been doing things for worker safety. Companies in this country have been doing things for worker safety. In fact, I appreciate the ranking member of my subcommittee mentioning today a couple of companies in his State that have made tremendous strides in worker safety, including ergonomics.
I am so pleased to report that according to the Bureau of Labor Statistics, last year there was a 24-percent decrease in ergonomics accidents. Companies are doing something. They are doing what they can think of.
If the same $1.8 million that has been spent on getting testimony for this rule had been used and focused particularly on small business to make sure they had the information to make the ergonomics changes in their work site, we would have even more workplace safety.
But, no, we have been paying contractors to testify. Has the Department disclosed that? No. They think these people have been volunteering their time, just like everybody else. Not only that, they edited their text for them. They had mock sessions so these experts could do it correctly. Then they paid them to rip the opposition. That is not testimony. That is the expertise that we ought to have in the workers comp department.
This will have a drastic effect on Medicare and Medicaid. We place limits on what we pay on Medicare. We are not raising those caps through the rule. So we will force people to violate some of the Medicare and some of the nursing statutes that we already have.
Then the work restriction protection--my goodness, we want the United States to get into a workers comp program? Ask your States how much of a problem they are having administering workers comp, and see if you think that OSHA can do the job. See if you think they can.
Incidentally, it was mentioned that there was testimony in our committee in that there was no opposition from the States. I presented a letter. I ask unanimous consent the letter be printed in the RECORD. It is from the State of New York Department of Labor, saying they were opposed to it.
I also ask permission that a similar letter from the State of Pennsylvania, be placed in the RECORD.
There being no objection, the letters were ordered to be printed in the RECORD, as follows:
STATE OF NEW YORK,
DEPARTMENT OF LABOR,
Albany, NY, March 1, 2000.
OSHA Docket Office,
Docket No. S-777, Department of Labor, Washington, DC.
To
whom it may concern:
Enclosed please find comments from the New York State Department of Labor concerning the proposed Ergonomics Standard, 29 CFR Part 1910, published Tuesday, November 23, 1999, in Federal Register, Volume 64, Number 225, at page 65768.
Sincerely,
CONNIE J. VARCASIA.
Enclosure.
This constitutes comments by the New York State Department of Labor (NYSDOL) regarding the proposed Ergonomics Standard 29 CFR Part 1910.
1. We note for the record that OSHA, in the Federal Register notice dated November 23, 1999, (hereinafter referred to as notice), at page 66,054, IX, states, ``In addition, the agency has preliminarily concluded, based on a review of the rulemaking record to date, that few, if any, of the affected employers are state, local and tribal governments.'' Aside from the issue of how OSHA arrived at this conclusion, we agree with the statement. Therefore, we do not expect that the public sector programs of State Plan states' will be required to adopt the proposed standard.
2. If, however, OSHA intends to require adoption of this standard by State Plan public sector programs, we object. We object to the standard because OSHA excluded small public sector jurisdictions (small entities under the Small Business Regulatory Enforcement Fairness Act, hereinafter ``SBREFA'') from the SBREFA process and panel during the course of preparing this rulemaking.
3. OSHA's proposal may not be a ``standard'' as defined by the statute. It does not describe means, methods or practices reasonably necessary or appropriate to control occupational safety and health hazards. It is not a ``standard'' about workplace hazards; rather, it proposes to impose a particular management approach on employers.
4. OSHA has estimated the cost of initial compliance with this standard at $4.2 billion (OSHA's original estimate was $3.5 billion). Private sector businesses and trade associations have estimated this cost as high as $26 billion and the United States Small Business Administration (SBA) has estimated the same cost at more than $18 billion. A copy of the SBA report is annexed hereto and made a part hereof.
Given these disparity of costs, there is not consensus as to the costs of compliance with this proposed standard. It appears that a proper and accurate cost-benefit analysis has not been done, and that OSHA should, at a minimum, address the conclusion of the SBA regarding the cost of this proposal.
5. This rulemaking is completely devoid of any mention of the amount of funding that could be appropriated to State Plans for its enforcement. OSHA has not discussed the issue of funding this standard with State Plans in any other forum. Of particular concern are the following:
(a) Depending on which ergonomist one believes, ergonomics affects 30%, 40% or 50% of the jobs in America. As a regulatory agency, the NYSDOL can expect at least a 30% increase in the number of legitimate complaints (as well as countless unsubstantiated complaints) because of the new standard. Based on sheer numbers, caseload and volume, our public sector State Plan will require an increase in the amount of funding to respond to complaints.
(b) Ergonomics is a precise science where incorrect advice can do more damage than no advice at all. New York State does not currently have staff with ergonomics expe rtise, and we have serious concerns with its lack of availability. No mention is made in this rulemaking of how much money OSHA will provide for staff training in this field. Note that a two-week training session on ergonomics is n ot sufficient to provide the professional level of service which the regulated community will demand. The number of professionally accredited ergonomists in the United States is wholly inadequate to meet the demand that will be engendered by adoption of this standard throughout the United States (see attached article).
(c) The proposed standard is unfair to public sector employers because some of the more frequently utilized abatement measures are not available to them. The public sector workplace is nearly 100% unionized in New York State. It is governed by civil service rules and collective bargaining agreements that describe in detail job tasks to be performed. Accordingly, redesigning a job for one person to include varied tasks not contained within the general job description for that position is not permitted. A public employer cannot change a job unilaterally; it must return to the collective bargaining table for job redesign. Many states have statutes such as our own Taylor Law, which expose an employer to improper practice (unfair labor practice) liability if it were to obey an order based upon the OSHA proposed standard. The employer would also be subject to grievance proceedings under the collective bargaining agreement with the union involved, as changing individual job requirements would constitute a breach of the contract.
(d) Another often recommended abatement measure is more frequent rest breaks. Rest breaks, and the timing and duration thereof, are also provided for in collective bargaining agreements and civil service rules. Any public employer altering such breaks unilaterally, without a return to the bargaining table, would again be subject to the sanctions of improper practice charges under the Taylor Law and union grievance for breach of the collective bargaining agreement. As such, these abatement measures are unavailable to public sector employers. The proposed OSHA standard is an infringement of rights granted under collective bargaining agreements and laws to public sector employers and employees.
(e) Should a public sector employer attempt to implement altered rest breaks or altered job tasks unilaterally in order to comply a violation of the OSHA standard, the state regulatory agency would be in the position of aiding and abetting the infringement of workers' rights guaranteed under the collective bargaining agreement and state statutes.
(f) Regarding the costs of implementing the standard for small public sector entities, the proposed standard would place a tremendous burden on the public sector employer. If one assumes that this will increase costs to public employers, the only way to pay for this will be to increase the taxes of the citizens in its jurisdiction. Public sector small entities include town, village and small city governments, as well as fire districts, volunteer fire departments, school districts, water districts, and many others that would not be able to sustain the cost of this proposed standard without increased taxation.
6. The proposed standard does not provide adequate notice to the affected employers or employees. A by-product of this uncertainty is likely to be increased litigation. Many terms are undefined or vague: ``management leadership,'' ``employee participation,'' ``relevant,'' ``become involved,'' ``effective means,'' ``reasonably likely,'' ``promptly,'' ``likely to cause,'' ``likely to contribute,'' ``similar jobs,'' ``minimize,'' ``try,'' ``feasible,'' ``medical management,'' ``periodically as needed,'' ``recovery period,'' ``closely associated,'' ``adequate,'' ``excessive vibration,'' ``recently,'' and ``prolonged'' are either poorly defined or not defined at all. While OSHA offers definitions of some of
[Page: S5645] GPO's PDF
7. We agree with former Acting Assistant Secretary and OSHA Head, Greg Watchman, who said on November 30, 1999, that the proposed ergonomic standard is too broad, triggered too easily, and includes comprehensive requirements that may not be necessary to address one or two signs or symptoms of musculoskeletal disorders. We also agree with his statement that thousands or perhaps millions of employers would be required to implement programs regardless of whether workers are at risk.
8. We agree with the Small Business Administration that OSHA failed to fully examine other regulatory approaches, such as using the On Site Consultation Program to educate employers and the public as to precisely what ergonomics is an d how studying ergonomics can h elp individual employers and their workforces.
9. We agree with the Women Constructors Forum's statement, ``Women-owned companies are the fastest growing sector of our economy. What we need is information, not regulation....... The nature of this standard could force businesses to completely overhaul their safety and health practices and devote more resources to paperwork and compliance.''
10. Attached and made a part of these comments are a number of articles and studies marked exhibits 1 through 7. The New York State Department of Labor requests that these be made a part of our comments and asks that OSHA respond to the concerns and questions addressed in them.
COMMONWEALTH OF PENNSYLVANIA,
DEPARTMENT OF LABOR AND INDUSTRY,
Harrisburg, PA, February 29, 2000.
Re Comments to
the Proposed Ergonomic Standard.
OSHA Docket Office,
Docket No.
S-777, Department of Labor, Washington, DC.
DEAR SIR/MADAM: Pursuant to the proposed rulemaking published in the Federal Register on November 23, 1999, Vol. 64, No. 225, the Commonwealth of Pennsylvania submits the attached comments in response to OSHA's ``Proposed Ergonomics Stand ard.''
The proposed standard conflicts with section 4(b)(4) of the OSHA Act, 29 U.S.C. §653(b)(4), in that it attempts to supersede and preempt state workers' compensation laws where the OSHA Act specifically prohibits such preemption. Specifically, the proposed standard intrudes upon the states' abilities to respond appropriately to issues of work-related illness and injury, including those relating to musculoskeletal disorders, heretofore addressed by each state's workers' compensation laws. OSHA proposes to replace these systems, which were custom tailored to the needs of the individual states, with a broad, uniform system which at best confuses and at worst conflicts with the various states' workers' compensation programs. Despite OSHA's recognition of its inability to regulate in areas of state workers' compensation law, it has, in the proposed rulemaking, failed to recognize that many issues addressed therein are, in fact, within the province of the states' workers' compensation systems, and are beyond the scope of OSHA's regulatory authority.
We believe that Pennsylvania, as well as the other states, will be negatively impacted by the standard which OSHA has proposed. The attached comments articulate in further detail the manner by which the proposed standard confuses issues regarding the provision of health care to injured workers, employers' abilities to adequately respond to workers' compensation claims, the provision of workers' compensation wage loss-benefits, the time for filing of workers' compensation claims, and issues of causation and preexisting conditions.
In light of the foregoing, we ask that you reconsider the proposed rulemaking, as it poses substantial difficulties for the citizens of the Commonwealth of Pennsylvania. Thank you for your consideration of this matter.
Sincerely,
JOHNNY J. BUTLER.
Mr. ENZI. I have lots of letters from different groups that have said: Don't do work restriction protection. That's workers comp, and you're violating our right to do that.
The PRESIDING OFFICER. The Senator's 3 minutes have expired.
Mr. ENZI. I yield myself 1 additional minute.
Work restriction protection is prohibited by the OSHA Act. Very clear wording in the OSHA Act says you cannot get into workers comp, but they are going to with this rule they are trying to push through by December. I do not know why December is so critical to them. Maybe I do. They are trying to get this thing pushed through at all costs, and without paying attention to what people are saying to them about things that are wrong about the rule that they are doing.
We need a little time to take a look at the rule, particularly in light of how well businesses are doing at fixing ergonomics. Again, I encourage the Department to help people figure out ways they can improve the safety. All we would be doing if we passed this rule is we would be giving OSHA a bigger club to beat people up with, not an answer to the ergonomics probl em.
I reserve the remainder of my time.
The PRESIDING OFFICER. Under the previous agreement, the only time left is controlled by the Senator from Delaware, who has 3 minutes, and the Senator from Wyoming, who has 1 minute.
Mr. ROTH. I yield 3 minutes to the Senator from New Mexico.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. DOMENICI. First, I say to Senator BREAUX, while I was not physically present on the floor when you made your speech, I was listening. I am very privileged and pleased to join you tonight in suggesting that this is not a real vote on Medicare.
Most of the time--in the past--Senator ROBB is a very realistic and forthright Senator. But somehow or other we are getting close to an election, and somebody has suggested to him that this is a way to get a real Medicare vote. The truth of the matter is, everybody listening should know this is not a real Medicare vote.
If anything, if we adopt this on an appropriations bill--that funds all of the priorities of the other side of the aisle--if they want to fund education, it is funded in this bill. If they want to fund community centers to treat the people that are poor, they are funded in this bill more than last year. But now they come along and ask us to attach an amendment, a huge bill that we have never had a hearing on, and we call it prescription drugs for America. We put it on with education, community centers, all the health programs for our seniors, and we say, just put it on there and tell the committee, that knows nothing about Medicare because they are not expected to, to bring back a comprehensive Medicare program on an appropriations bill. Then the suggestion to the American senior citizens is, we are doing something for you.
What we are doing is trying to force a vote before we have a bill. This is not a bill that has been considered. It is not going to be voted out by our bipartisan effort. A great bipartisan effort is taking place.
If I were a member of the Finance Committee--be it Dr. BILL FRIST or the Senator from Texas or the distinguished Senators on that side working on it--I would be ashamed today to say: I am going to vote to usurp and take away all your power and vote in a so-called prescription drug bill that a few of us have written up. And we are going to pass it on an appropriations bill where that committee does not know anything about prescription drugs.
They are sort of expected to robot out of here and robot back in with a great prescription drug bill.
I submit that we should not vote for it. We should not use our procedures and our processes in this perverted way.
I am going to ask five or six questions. They are not answered by this legislation, and they are not answered here.
Let me first ask: How does this amendment affect the solvency of Medicare? Nobody knows. What are the premiums for drug coverage? Nobody knows. I don't know that anybody knows the official cost estimate of this bill. But I know it is expensive. Don't you think we ought to know those answers before we try to convince Americans that we are passing a prescription drug bill which could not become law?
There are two more questions: Are there taxes in this proposal? If there are, the bill goes nowhere.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. DOMENICI. I think we are going to do the right thing and deny this effort to make an issue out of something that is not ready to have an issue.
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