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"ERGONOMICS: IS IT READY TO BE REGULATED?"

Remarks to the National Safety Council
87th Annual Congress and Expo
October 20, 1999
New Orleans, Louisiana

By:

Laurie T. Baulig, Esq.
Scopelitis, Garvin, Light & Hanson, P.C.
Washington, D.C. 20005-1209
(202) 783-9222
lbaulig@aol.com

Introduction

Good morning. I would like to thank the National Safety Council for inviting me, on behalf of the National Coalition on Ergonomics, to participate in this very timely debate.

The question posed in this session, "Ergonomics: Is it Ready to be Regulated?" is certainly the right question to ask, because the government's involvement in this issue raises the stakes for everyone -- every employer, every employee, and everyone else who cares about workplace safety and health in this country.

This morning we've heard the argument that because many employers have implemented voluntary ergonomics programs, it is now time for the government to regulate in this area. We respectfully disagree.

It is critically important to distinguish between voluntary actions taken by employers to address real safety and health concerns, and those that are mandated by the government. Voluntary actions do not lead to inspections, citations, civil penalties, and perhaps worse -- legal fees. Government actions do.

Indeed, the many trade associations and businesses that support the Coalition have consistently said for the past 5 years that we are not opposed to ergonomics. Our members have been in the forefront of applying ergonomic principles where they make sense because they can improve efficiency, increase worker comfort, and yes, in some cases, reduce injuries.

In fact, as many of you know, ergonomics is technically an industrial engineering discipline that evolved to improve workplace efficiency. It is only recently that we've begun talking about ergonomics as a tool to address safety and health issues. Which brings me back to the Coalition's position on this issue.

We are not "the just say no" coalition. What we oppose is an ergonomics standard that is not science-based. After all, any standard that does not have sound science behind it cannot achieve its intended objective of reducing workplace injuries and illnesses.

So the science does matter - not just because it's the law and public policy of this country to have science-based rules, but because they simply will have no benefit if they are not grounded in scientific fact.

Ladies and gentlemen, let me be brutally honest with you this morning. At this time, the science simply does not exist to regulate ergonomics.

In the next few minutes, I want to explain why this lack of science will ultimately doom OSHA's efforts to issue regulations in this area. In particular, I want to discuss the key requirements the agency must satisfy before it can issue an ergonomics standard under the federal Occupational Safety and Health Act. And again, bear in mind that the standard for regulation is purposely higher than for voluntary actions taken by employers.

What OSHA Must Establish Under the OSH Act to Promulgate a Health Standard

Before OSHA can issue a final ergonomics standard, it must demonstrate that the proposal can meet specific criteria under the statute. I should note that the Coalition believes that the ergonomics standard is a health standard, rather than a safety standard, since it purports to address conditions that theoretically develop due to exposures that occur over time, rather than injuries due to sudden trauma.

There are four major requirements under the Occupational Safety and Health Act for health standards. They are:

1. The standard must identify a significant risk in the workplace that threatens material impairment of health or functional capacity;
2. OSHA must demonstrate that the requirements of the standard will mitigate that risk to a significant degree;
3. The standard must be technologically and economically feasible in each industry sector to which it is applied; and
4. Based on principles of regulatory law and sound public policy, OSHA must select the least intrusive and most cost-effective alternative in establishing the requirements of a standard.

While the Coalition takes the position that OSHA cannot satisfy any of these criteria, I would like to focus only on the first two this morning: identification of significant risk and mitigation of that risk under the proposed standard.

Significant Risk

OSHA's obligation to show that its proposed ergonomics standard addresses a significant risk in the workplace brings us right back to the question of science, for establishing "risk" necessarily means establishing a connection between work and injury.

More precisely, OSHA must establish a connection between a particular set of circumstances in the workplace -- such as the presence of a chemical exposure above a certain level, or a job activity measured in some quantifiable way - and the illness or injury arising from those circumstances.

In other words, OSHA must show that a specific workplace activity, performed over a specific period of time, caused the injury. This OSHA cannot do because the scientific evidence showing a quantitative relationship between workplace activity and illness or injury is entirely lacking. And without quantitative relationships, we will not know to what extent a non-workplace activity caused the injury.

What do I mean by quantitative relationships? How many repetitions are too many? Is every worker who lifts 25 pounds automatically at risk for a back injury? How much vibration, and over what period of time, creates a hazard? We simply do not know the answers to these critical questions. And you won't find them addressed anywhere in OSHA's draft standard.

By contrast, since the U.S. Supreme Court's decision in the Benzene case, every health standard promulgated by OSHA - with one exception, bloodborne pathogens - has involved detailed, quantitative risk assessments that clearly establish a risk of illness at a specific level of exposure. And that exception is not relevant here because health professionals are not exposed to bloodborne pathogens in their everyday lives. But repetitive motion is part of daily living, and all of us are exposed to it 24 hours a day.

Of course, OSHA claims there are plenty of epidemiological studies of repetitive motion in the workplace that justify an ergonomics standard at this time. Well, the Coalition has carefully examined OSHA's analysis of those studies, and we believe this analysis is seriously flawed. In fact, over the past 4 years, the agency has relied principally on two documents to establish "significant risk" under the OSH Act.

The first attempt was by OSHA itself in the form of a "risk assessment" document the agency attached to its 1995 ergonomics draft. In reviewing this document, the Coalition found that the studies cited by OSHA were mis-cited, or cited for the wrong conclusion. Important studies were excluded, and studies which supported OSHA's position were given more weight and were less critically reviewed than those which took a contrary view. Understandably, the agency no longer relies on this document.

The second study, and the one OSHA now relies on to establish "significant risk," was a literature review completed by the National Institute of Occupational Safety and Health in 1997. Some have pointed to this study as the definitive review of the science. It is not. The NIOSH study is flawed in many respects, but two in particular.

First, it makes no attempt to address quantitative relationships -- the all-important issue of "how many repetitions are too many" required to establish significant risk.

And second, the study did not even consider the role of non-occupational causes in contributing to soft tissue injuries. I don't mean to make light of real pain and real injury, but, come on, we don't call it tennis elbow for nothing!

Of course, as Robb has already discussed, the Coalition has called for a complete, objective, unbiased review of all of the scientific literature on ergonomics by the National Academy of Sciences.

While we look forward to the National Academy's report on this issue, we expect that if the Academy examines the underlying literature in the way that Congress intended, they will reach one inevitable conclusion: that there is simply no reliable scientific evidence to establish a quantitative causal connection between specific repetitive tasks in the workplace and illness or injury, or ways to exclude contribution from non-occupational causes.

Lacking this evidence, OSHA simply cannot satisfy the threshold statutory requirement in promulgating an ergonomics standard: establishment of a "significant risk of material impairment or functional capacity."

Material Impairment

And since I've used the term again, let me say a few words about "material impairment," which is highly relevant to the subject of ergonomics and another critical hurdle for OSHA to clear.

When the Occupational Safety and Health Act was enacted in 1970, Congress was concerned about conditions that left people permanently injured or interfered with their ability to earn a living. OSHA's ergonomics standard, by contrast, attempts to address even the aches and pains of everyday living. A court could reasonably conclude that such disorders - while real -- fall well short of what the statute intended.

In fact, most people who suffer soft tissue aches and pains recover fully in a relatively short period of time - a few days to a few months - with no residual effect or impact on their health or status. And they do so without treatment. Don't take my word for it. Check out the website for the U. S. Department of Health and Human Services and see what this government agency says about acute low back pain.

Mitigation of Risk to a Significant Degree

I could simply stop here. If OSHA fails to establish a "significant risk of material impairment," the courts will simply invalidate the standard and the agency will have to go back to the drawing board.

But I also want to spend a few minutes on the second statutory requirement any ergonomics standard must meet: that the obligations imposed under the standard will mitigate the risk to a significant degree.

Put another way, this requirement means the agency has to show that compliance with the standard will either eliminate or significantly reduce the risk of illness or injury. This issue should be of primary concern to every safety and health professional, and, of course, to every safety and health professional's CEO and general counsel. Why spend limited safety resources complying with government regulations when compliance does not insure a reduction in illness or injury?

Based on the draft standard we have seen, OSHA cannot meet this commonsense requirement of the statute.

Of course, it follows logically that if you can't say precisely what causes the illness or injury, you certainly can't say what will prevent it.

Let's look at the requirements of the draft ergonomics standard OSHA has approved. In a nutshell, a covered employer must have a written ergonomics program that has the following 6 elements:

1. Management leadership and employee participation;
2. Hazard identification and information;
3. Job hazard analysis and hazard control;
4. Training;
5. Medical Management; and
6. Program Evaluation.

The two primary elements that relate to the abatement issue are those dealing with "hazard identification" and "hazard control." Well, what must an employer do to be in compliance with these requirements?

First, let's look at a covered employer's obligations with respect to "hazard identification." According to the working draft posted on OSHA's website, an employer must do the following:

1. "Set up a way for employees to report WMSD signs, symptoms, and hazards, and to make recommendations about controlling them; and
2. "Review safety and health records you already keep to look for WMSDs and WMSD hazards."

Next, once a hazard is identified, here's what you have to do to " control" it:

1. "Identify, evaluate and implement feasible control measures (interim and permanent) to control the WMSD hazards;
2. "Track your progress in controlling the WMSD hazards;
3. "Communicate results of the job hazard analysis to other areas in your workplace (e.g., procurement, human resources, maintenance, design, and engineering) whose assistance may be needed to successfully control the WMSD hazard; and
4. "Identify hazards when you change, design or purchase equipment, processes and facilities to prevent new problems from being brought into the workplace."

If these seem somewhat cumbersome to you, don't worry. OSHA has also come up with a short-cut to this process:

"NOTE: Where solutions are obvious and you can eliminate the problem quickly, you may move directly to implementing controls without following all of the steps of the control process."

Unfortunately, there is no further guidance on what makes a solution "obvious," or what it means to "eliminate the problem quickly."

So, does OSHA tell employers in the standard what kind of controls they must use? Yes, sort of. In a nutshell, engineering controls are preferred; personal protective equipment, on the other hand, can only be used on an interim basis.

Here's the critical question: Does OSHA specify which engineering controls will work for a particular hazard? No.

OSHA leaves to the employer the hard task of determining what type of control will work for a particular hazard. Can this be enough to satisfy the statutory requirement that the standard must "mitigate the risk to a significant degree?" The answer is obvious. No, it is most certainly not enough.

In fact, it can be said that by leaving to the employer the responsibility of abating the hazard, OSHA has abdicated this important statutory obligation. Again, faced with such a clear deficiency under the law, a court would have no choice but to invalidate the standard.

And speaking of employer responsibility, let me mention another significant hurdle OSHA must clear before any ergonomics proposal can become law. The courts have held that, as a matter of due process, a government regulation must clearly state what conduct is prohibited or what conduct is required. Otherwise, the regulation is unconstitutionally vague.

As I've said, OSHA's draft standard fails to tell employers clearly what they must do to be in compliance. That determination will ultimately be left to the discretion of the OSHA inspector. This is like posting a sign on the highway that simply says "drive safely" and allowing a police officer to decide when someone is driving too fast. Our constitution will not stand for that type of unbridled law enforcement. Neither should you.

Conclusion

In wrapping up, let me summarize the key points I've made here this morning:

1. First, there is insufficient scientific evidence quantitatively linking specific tasks or activities in the workplace to MSDs. Thus, it is impossible for OSHA to distinguish workplace risks from non-occupational risks, or "acceptable" activity from that which is "unacceptable" - a critical issue for employers. This means that OSHA's draft ergonomics standard cannot satisfy the "significant risk" requirement of the Occupational Safety and Health Act.
2. Second, OSHA's draft standard fails to identify specific methods of abating WMSDs, leaving that duty largely to the employer. OSHA therefore fails its statutory obligation to show that its standard will mitigate risk to a significant degree.
3. Third, OSHA's ergonomics standard is unconstitutionally vague because it fails to tell employers precisely when they are in compliance; and when they are not.
4. Fourth, and finally, for all of these reasons, now is clearly not the time for OSHA , or any government agency, to regulate ergonomics.

Thank you very much.