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With the future of ergonomics regulation hanging in the balance, labor and industry representatives once again presented their arguments at three forums held in July. Labor Secretary Elaine Chao has promised to announce a "comprehensive plan" for addressing musculoskeletal disorder (MSD) injuries in September.
The statements echoed much of what was said in previous hearings on ergonomics and in the voluminous written comments the U.S. Occupational Safety and Health Administration (OSHA) used to draft its ergonomics standard. Congress rescinded that rule in March, and congressional leaders have pressured Chao to find a more acceptable alternative.
However, noticeably absent from the hearings were scientific experts bolstering the need for ergonomic interventions, such as members of the National Academy of Sciences (NAS) panel that reviewed the issue. The NAS report supported the link between workplace risk factors and MSD injuries and said ergonomics can reduce the risk. (See Hospital Employee Health, March 2001, p. 30.)
OSHA invited labor and industry to form panels of speakers, but did not invite individual speakers or a panel of scientists. While the labor panel contained a few ergonomics experts, the absence of key experts became fodder for ergonomics critics.
"The unions have chosen not to engage in that scientific debate," says Baruch Fellner, a Washington, DC, attorney who represents the National Association of Manufacturers and the National Coalition on Ergonomics. "That’s very telling in my mind. In my view, they are unwilling or unable to engage in a scientific debate, and instead are relying on the same biased science they have in the past."
However, labor representatives blasted the forums as a sham and insisted that OSHA has more than enough information to define MSDs and require ergonomics programs. In fact, it is curious that OSHA itself did not call on the NAS experts, who were charged by Congress to answer many of the same issues confronting the panel, says Bill Borwegen, MPH, occupational health and safety director of the Service Employees International Union in Washington, DC. "The Republicans funded all these NAS studies. Apparently, they didn’t like the results," he says. "Elaine Chao didn’t even invite the NAS people to present their findings. Their findings are basically that ergonomic hazards are real. These injuries are real, and we need to do something about it."
The first question posed by Chao was a basic one: What is an ergonomics injury? Yet overriding that discussion was a political issue that Chao must address: Can MSDs, the most common workplace injury, be adequately reduced through voluntary guidelines and education, or is a new regulatory standard necessary?
Whatever the outcome, Chao insisted that her goal would be to prevent ergonomic injuries. "We can choose to do one of two things: We can play politics, or we can protect workers," she said at the opening of the forums in Washington, DC. "The only way we will succeed in protecting workers from ergonomics hazards is if we begin with an open mind, which I urge all participants to bring to these forums."
OSHA panelists heard from trade associations who said their members would be financially devastated by sweeping regulation, and from worker victims who described the debilitating impact of their injuries.
Diana Blackmon, a health care consultant based in Oklahoma City, presented the American Hospital Association’s view that an ergonomics regulation would be extremely costly and burdensome, and that the science of ergonomics is incomplete. Instead of issuing a rule, OSHA should provide education, consultation, and product information, said Blackmon, who helps hospitals set up ergonomics programs. A single ergonomic approach won’t work, Blackmon said in her statement. "Every facility must be able to determine its own preventive strategy, giving consideration to its unique patient and employee populations."
Yet what about employers who fail to address ergonomic injuries voluntarily? Occupational health experts urged OSHA to maintain an enforcement element in any action it takes on ergonomics. "I think it’s time to get back to basics," says Kae Livsey, RN, MPH, public policy and advocacy manager at the American Association of Occupational Health Nurses in Atlanta, who testified at the Washington, DC, forum. "The basic standard that needs to be put out is to require employers to have a safety and health standard. A safety and health standard could require employers to address ergonomic hazards," she notes.
Livsey also suggested that OSHA issue guidelines for various industries, and enforce ergonomics hazards under the general duty clause, which requires employers to maintain a workplace free of hazards.
In written comments, MaryAnn Gruden, MSN, CRNP, NP-C, COHN-S/CM, executive president of the Association of Occupational Health Professionals in Healthcare, and employee health nurse practitioner at Sewickley (PA) Valley Hospital, likewise supported enforcement, whether through a standard or some other mechanism. "If employers know OSHA will enforce it as a part of their inspections under general duty, then I think employers will pay attention to that, even without a separate standard," she says.
Borwegen expresses doubt that OSHA could adequately enforce an ergonomics mandate through the general duty clause. He notes that the appointee for solicitor of the Department of Labor, Eugene Scalia, once called ergonomics "junk science." Scalia has represented the National Coalition on Ergonomics, a major opponent of ergonomic regulation, and has opposed ergonomic regulation as a labor lawyer at the Washington, DC, law firm of Gibson, Dunn & Crutcher.
"How in your wildest imagination can you imagine OSHA would take a general duty clause approach to ergonomics?" asks Borwegen, noting that general duty cases can be tied up in appeals. "It doesn’t have the staff; it doesn’t have the inclination. It doesn’t have the will."
This month, all eyes will be on Chao as she announces the path her agency will take. Even critics of ergonomics regulation may agree with this assessment by Borwegen: "Her legacy as secretary of Labor is predicated on what she does in this area."