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The federal Occupational Safety and Health Administration published the ergonomic rule and critics immediately savaged it as too far-reaching and burdensome. Sen. Mike Enzi (R-WY) offers this list of the key problems in the rule:
• Extremely broad reach. The rule applies to all businesses (except construction, maritime, and agriculture). It is one of the broadest rules ever promulgated by OSHA.
• Single incident trigger. Enzi says the harshness of the single incident trigger cannot be overstated. If an employee has a musculoskeletal disorder (MSD) "incident," defined by any of several "signs" or "symptoms," the employer must set up a full-blown ergonomics program. For example, if an employee complains about cramping or stiffness for seven days, and on one day per week that same employee uses a keyboard for separate periods of time that total four hours or raises his hands above his head for periods of time that total two hours, that employer must set up the full ergonomics program.
• Employer responsibility for behavior outside the workplace. Employers must set up the full ergonomics program as long as something in the workplace in any way "contributed to" or "significantly aggravated" the MSD (or the cramping or stiffness). The employer is responsible even if the injury (or symptom) is 99% caused by outside activities such as athletics or gardening or other factors such as age or weight. Moreover, employers are forbidden from inquiring about employees outside risk factors. Enzi says OSHA does not have statutory authority to make employers responsible for those factors.
• Employers’ responsibility for complying with external documents. In order to avoid fines and penalties for noncompliance, employers must reduce hazards in workplace to levels set by seven different "Job Hazard Analysis Tools" listed in the standard; compliance levels are set by seven separate entities that are not affiliated with OSHA. Employers must pay to obtain these documents, and the documents are, for the most part, highly complex scientific documents intended as guidelines or studies, not specific requirements.
• Requirement to make sweeping workplace changes. In order to reach the levels in the outside "tools," employers are required to use administrative controls or work practice controls even if protective equipment alone would solve the problem. Thus, compliance requires addition of new employees, changes in fundamental job requirements, and shortening of shifts.
• Requirement for employers to pay for three health care providers. In response to an MSD incident, the employer must pay for visits to up to three separate health care professionals by the employee complaining of MSD symptoms. The rule prohibits the medical opinion from including any information about the condition being caused by factors outside the workplace. The rule also prohibits the health care professional from communicating any information to the employer about nonworkplace causes of the MSD.
• Conflict with workers’ compensation laws. In spite of the fact that Congress has long chosen not to set up a federal system of workers’ compensation, Enzi says OSHA’s standard does just that — for MSDs only. He says it completely undermines state workers’ compensation systems by requiring employers to pay 90% of salary for employees who are unable to work and 100% for employees placed on light duty due to MSDs.
• Record-keeping requirements. Employers must keep all records, available upon demand for three years, of the employer’s response to MSD reports and of all employee records of MSDs, including MSD signs, symptoms, workplace restrictions, time off work, and medical opinions. The rule raises several privacy concerns regarding the availability of medical opinions which may contain sensitive and highly personal information, Enzi says.
• Burden on businesses. The Small Business Administration and various private analyses estimate that the standard would cost businesses $60 billion to $100 billion annually. OSHA estimates the cost at $4.5 billion, but uses a 10 year annualized figure incorporating fictionalized savings not realized until several years down the road. Enzi says even OSHA’s own first and second year actual cost figures show the cost would be crippling — particularly to small businesses without significant resources.