WASHINGTON, NOVEMBER 1, 2000—The federal government is on the verge of adopting a new workplace regulation that will cost state and local taxpayers at least $6.6 billion annually, and private businesses $5.8 billion to $10.8 billion more, despite a significant decline over the past six years in the types of injuries the regulations are supposed to prevent, a recent Heritage Foundation study shows. In Kentucky the proposed rule could cost taxpayers $39 million per year and businesses and consumers another $151 million per year.

Wilson provides a high and low annual cost estimate for each state, ranging from $12.1 million to $22.7 million for Wyoming, to between $782 million and $1.4 billion in California. For the 28 states that automatically adopt OSHA rules, including Kentucky, he shows what the rule will cost both the public and private sectors.

OSHA seems determined to move ahead with the rule, he says, though businesses have voluntarily reduced ergonomic injuries by almost 26 percent between 1992 and 1998. Wilson predicts that the rule will not only have direct costs, but will also boost worker compensation claims and state compliance assistance costs.

The impact of the ergonomics rule is not limited to higher costs, he notes. Because it is filled with vague and undefined words and phrases such as "significant amount of the employee’s time" and "core element of the job," private- and public-sector employers will have difficulty complying with it, he says. The problem is no set of risk factors can be convincingly identified as causing ergonomic injuries. Moreover, a multitude of complicating factors, such as heredity, fitness, sports injuries, and nutrition, are beyond the control of employers. An employer could hire 100 lawyers and never be certain that they are in compliance with the proposed rule. It is also unclear how the rule would apply to people working at home or the cost of home improvements.

Wilson notes that workplace changes required by the proposed rule could force both private- and public-sector managers to reopen collective bargaining agreements or face possible penalties for failure to take corrective action. Many of the job changes that the ergonomics rule would require are considered mandatory subjects of collective bargaining. An employer's implementation of those changes could constitute unfair labor practices under many state labor laws, such as New York's Taylor Law

The proposed ergonomics rule also has a number of irremediable conflicts with state workers' compensation systems. The state's workers' compensation provisions for health care providers and medical cost containment are overridden. The due process protections for employers provided under workers' compensation are denied and the proposed rule's restrictions on the health care provider's report deny the employer critical information needed for administering the claim under workers' compensation. Moreover, there is no mechanism for determining benefits if the worker has more than one job. Wilson says, "these conflicts demonstrate OSHA's failure to fully consider the practical implications of its proposed rule on state workers' compensation programs."

Recent testimony before House and Senate committees and the latest OSHA notice strongly suggest that OSHA is rushing to publish a final rule without carefully considering all of the issues or fully accounting for all of the costs. OSHA should slow its development of the ergonomics rule, particularly given the dramatic and continuing decline in ergonomic-related injuries. Instead of issuing a vaguely written and costly mandatory regulation, OSHA should consider adopting voluntary guidelines for tailor-made workplace solutions.

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