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Electronic Regulatory Forum

OSHA's Proposed Ergonomics Rule Leave A Comment

CRE has selected the proposed OSHA ergonomics rule as its first topic for coverage. To kick off this first Electronic Regulatory Forum, CRE has assembled the following information for review. Please click on the interactive boxes below to offer information or otherwise add to the dialogue on this topic.

Table of Contents (click content areas)

Background

In the past few years, OSHA has become quite concerned with various muscoloskeletal disorders (MSDs) arising from workplace activities, particularly those involving (but not limited to) repetitive motion injuries (e.g. Carpal Tunnel Syndrome). In response to such concerns, on November 23, 1999, OSHA published a Notice of Proposed Rulemaking in the Federal Register (64 Fed. Reg. 65768) for its proposed ergonomics program standard. Click here to view the proposed OSHA standard. The new OSHA standard would amend Part 1910 of Title 29 of the Code of Federal Regulations.

The ergonomics rule has been quite controversial, largely due to the uncertain state of the science associated with the field of ergonomics and the significant costs it would impose upon employers. OSHA has had a number of hearings on the issue, and OSHA officials have suggested that further opportunities for public input may arise. OSHA hopes to finalize the ergonomics rule by fall 2000.

The major features of the proposed OSHA ergonomics standard include:

Basic Coverage

An employer with manufacturing production or manual handling jobs is required to initiate a basic program under the OSHA rule, regardless of whether any musculoskeletal disorders (MSDs) have been reported. The basic program must include:

- A management leadership and employee participation training program.
- A hazard information and reporting program.
- A procedure for employees to report signs and symptoms of MSDs.
Full Coverage

Full coverage requirements under the proposed OSHA rule are triggered when an employee reports either an "OSHA recordable MSD" or "persistent symptoms." In that event, the employer must undertake the following actions:

- Institute a job hazard analysis and control program.
- Eliminate or materially reduce MSD hazards in the workplace.
- Track progress, and when jobs change, identify and evaluate MSD hazards.
- Train employees in jobs with covered MSDs.
- Train persons responsible for the organization's ergonomics program.
- Provide prompt attention to injured workers, including access to health care providers.
- Obtain an opinion in writing from health care professional(s) on how to appropriately manage the employee's recovery from an MSD.
- Provide necessary protections and work restrictions during an employee's recovery period. (Such benefits last until the employee returns to work, the MSD hazard has been corrected, or six months elapses, whichever comes first.)

"Quick Fix" Option

Once an MSD occurrence is reported, an employer may obviate the need for work restrictions and other protections under the rule by instituting a "quick fix." The quick fix involves:

- Prompt care for the injured worker;
- Efforts to eliminate the MSD hazard within 90 days;
- Verification within another 30 days that the fix worked;
- Recordation of quick fix controls.

If the quick fix fails or another MSD of the same type occurs on the job in question within 36 months, a full ergonomics program must be initiated.

Opportunities for Public Comment

In addition to the public comment request accompanying its initial notice of proposed rulemaking in the Federal Register, OSHA has initiated a number of public hearings on its proposed ergonomics rule. The hearing schedule is as follows:

  • March 13 - April 7, 2000 Washington, D.C.

  • April 11-21, 2000 Chicago, IL

  • April 24 - May 3, 2000 Portland, OR

  • May 8-12, 2000 Washington, D.C.

  • July 7, 2000 Atlanta, GA

    • OSHA officials have suggested that there may be publication of another written comment request in the Federal Register after the close of the public hearing cycle, although this has not yet been formally decided.

    Comments on the OSHA proposed ergonomics rule may be submitted to the agency in the following manner:

    Mailed Comments:
    OSHA Docket Office, Docket No. S-777
    U.S. Department of Labor
    200 Constitution Avenue, N.W., Room N-2625
    Washington, D.C. 20210

    Faxed Comments (10 pages or less):
    (202) 693-1648

    Electronically-Submitted Comments:
    Utilize the comments feature which can be accessed through the OSHA homepage at www.osha.gov.

    Please note that you may not attach materials such as studies or journal articles to your electronic comments. If you wish to include such materials, you must submit them separately in duplicate to the OSHA Docket Office at the address listed above. When submitting such materials to the OSHA Docket Office, you must clearly identify your electronic comments by name, date, and subject, so that OSHA can attach them to your electronic comments.

    Related Congressional Actions

    Congress has also voiced its concerns with the proposed OSHA ergonomics rule through pending legislative provisions. For example:

  • On August 3, 1999, the House passed the Workplace Preservation Act (H.R. 987), which would prohibit the Secretary of Labor from promulgating through OSHA any standard or guideline on ergonomics until the National Academy of Sciences completes a study on the issue and reports to Congress thereon.

  • A similar provision has been introduced in the Senate. The Sensible Ergonomics Needs Scientific Evidence Act (a.k.a. the SENSE Act) (S. 1070) was introduced on May 18, 1999. The bill, whose provisions are similar to H.R. 987 discussed above, was referred to the Senate Health, Education, Labor, and Pensions Committee.

    • Electronic Regulatory Forum

    CRE has reviewed a variety of sources commenting on the proposed OSHA ergonomics rule. Concerns expressed in those comments are broken down into three main categories below: (1) Scientific Concerns; (2) Public Policy Concerns, and (3) Economic Analyses Concerns.

    CRE encourages interested parties to supply their own thoughts on these issues, through utilization of the comment box at the end of this section.

    Scientific Concerns

    The following points are taken from the an article by Eugene Scalia, entitled "OSHA's Ergonomics Litigation Record: Three Strikes and It's Out." This article is obtainable through the Cato Institute's website (www.cato.org).

  • "Ergonomists are not physicians - they are engineers - and their medical theories are controversial. ... They acknowledge that musculoskeletal pain has many causes other than work, and, while contending that physical exertion is hazardous, they also acknowledge that some degree of physical activity is healthful and that they cannot identify the point at which exertion ceases being good or benign and instead becomes a workplace hazard that must be regulated by the government." (p. 1)

  • "[T]he 'science' of ergonomics is notoriously doubt-ridden and controversial. ...[E]ven accepting its premises, ergonomists admit great difficulty diagnosing an RMI [repetitive motion injury] in any given instance. As noted, musculoskeletal discomfort is ubiquitous, and ergonomists concede it has many causes other than work: it occurs (and dissipates) naturally and also is correlated with aging, obesity, and genetic predisposition, among other things. ... OSHA's proposed rule threat 'fatigue' as synonymous with injury." (p. 3)

  • Ergonomists also have "great difficulty in identifying effective ergonomic solutions." Part of the problem is that scientists have not been able to identify dose-response relationship (i.e. the point at which normal physical activities go beyond a person's limits and cause injury). (p. 3)

  • "Perhaps the most conspicuous hole in ergonomists' theories is 'psychosocial factors.' Much of the literature on back pain and other musculoskeletal complaints finds no correlation with job demands but does indicate a significant tie to job satisfaction and general happiness. ... Generally, however, the proposed rule brushes off psychosocial factors, making the irresponsible and undocumented claim that physical factors play a far greater role in reported musculoskeletal disorders." (p. 4)

    • Public Policy Concerns

    Again, the following points are taken from the an article by Eugene Scalia, entitled "OSHA's Ergonomics Litigation Record: Three Strikes and It's Out." This article is obtainable through the Cato Institute's website (www.cato.org).

  • "OSHA's proposed rule identifies no specific changes employers must make; instead, it identifies a series of steps they must follow if 'work-related musculoskeletal disorders' occur. Employers' obligations under the rule triggered by 'signs' and 'symptoms' of musculoskeletal disorders, which OSHA defines to include 'pain,' 'numbness,' and 'tingling.' When those symptoms occur, employers are to examine the employee's job to determine whether it is 'reasonably likely' to be ergonomically hazardous. If it is, the employer is to implement ... abatement measures...." (pp. 2-3)

  • "The many weaknesses of ergonomics have resulted in testimony by 'expert' ergonomists being rejected repeatedly by the federal courts under the Supreme Court's 'junk science' test." (p. 4)

    - "OSHA has litigated three ergonomics cases to judgment and suffered devastating losses in each. It could not prove that workers had musculoskeletal injuries caused by work, could not prove what aspect of work caused their musculoskeletal complaints, and could not establish what ergonomic interventions would correct the supposed hazard." (p. 6)

  • For reference, the following cases have been litigated by OSHA on the ergonomics issue:

  • Secretary of Labor v. Beverly Enterprises, Inc., OSHRC Docket Nos. 91-3344, 1995 OSAHRC LEXIS 158, at *90, directed for review (November 9, 1995).

  • Secretary of Labor v. Dayton Tire, Bridgestone/Firestone, OSHRC Docket No. 93-3327, 1998 OSAHRC LEXIS 23 (January 26, 1998).

  • Secretary of Labor v. Pepperidge Farm, Inc., 17 O.S.H. Cas. (BNA) 1993, 2028-29 (1997).

    • The following points are taken from the an article by Robert W. Hahn and Petrea R. Moyle, entitled "Developing a Framework for Sensible Regulation: Lessons from OSHA's Proposed Ergonomics Rule." This article is obtainable through the website of the American Enterprise Institute-Brookings Joint Center for Regulatory Studies (www.aei.brookings.org). The three primary recommendations from the article were:

    1. "OSHA should more precisely evaluate the nature and extent of musculoskeletal disorders (MSDs) in the workplace than it did in the proposed rule." (p. 1)

    2. "OSHA should used improved economic analysis to target serious MSDs that employers can reduce at low cost." (p. 1)

    3. "OSHA should include new provisions to improve employer access to information about reducing workplace risk of MSDs. The rule's ergonomics program requirements should apply only to those MSDs that employers do not have sufficient incentive to reduce without government intervention." (p.1)

    Related points raised in the Hahn and Moyle article include:

  • "OSHA's estimate of workplace MSDs may include injuries that are not MSDs. OSHA should provide support for each type of injury included in the final estimate of workplace MSDs." (p.1)

  • "The rule does not provide any information on trends in the frequency and severity of specific MSDs over time, so it is not clear the rule targets these injuries." (p. 1)

  • "OSHA should adjust the workplace MSD estimate to account for multiple risk factors, such as non-work activities or the physical ability of a worker to tolerate repetitive stress. ... OSHA should use different aetiological fractions for different injuries and job types, as appropriate." (p. 1)

  • "According to the National Institute for Occupational Safety and Health, however, the nature and strength of such evidence varies significantly among injuries. OSHA should classify the causation evidence presented in the rule by MSD and job type, and discuss the association between workplace activities and specific MSDs." (p. 2)

  • "The market has already shown that it will respond to better information about the risk of MSDs, as indicated by the 5% annual decline in MSDs since 1992. If the employer savings from ergonomics programs that OSHA cites in the proposed rule exist, such as increased worker productivity and worker compensation savings, improving access to useful information about the rewards of such programs should encourage employers to adopt them." (p. 3)

    1. Provide On-line Information (p. 3)

    2. Fill Key Information Gaps (p. 3)

  • OSHA's definition of MSD is different from that of other agencies within the federal government, such as the Bureau of Labor Statistics (BLS). "OSHA's definition includes injuries and disorders of soft tissues. These injuries are characterized by sprains, strains, tears, back pain, soreness, or simply 'pain,' as long as these injuries were caused by specified bodily motions, such as bending. The BLS definition of a MSD, on the other hand, excludes injuries from sprains, strains, and tears and traumatic injuries to soft tissues. ... According to OSHA's definition, the number of workplace MSDs in 1997 was 626,000, or approximately 34% of all nonfatal occupational injuries and illnesses that required at least one day away from work. According to the BLS, the number was 34, 325, or 2% of all nonfatal injuries and illnesses." (p. 10) Thus, a significant number of injuries covered by the rule would not typically be categorized as MSDs.

    • The National Tooling and Machining Association (NTMA) posted the following concerns on its website on the proposed ergonomics rule (www.ntma.org/ergonomics.htm). These comments were taken from a NTMA submission to OSHA on the rule.

  • "The greatest concern NTMA has with the proposed ergonomics program standard is its scope. ... Virtually every general industry workplace, regardless of size or injury history, will fall under the definition of coverage. ... NTMA believes OSHA should focus its efforts on industries exhibiting a significant rate of occurrence of MSDs and specifically define these 'problem' industries by SIC code."

  • "A major concern NTMA has with the proposed ergonomics program standard is the general vagueness of the rule, and the likely subjectivity of enforcement. In many cases the definitions contained in the proposed standard are circular in nature. ... NTMA believes the NAS [National Academy of Sciences] examination of ergonomics should serve as a benchmark before considering any ergonomics program standard."

  • "The overall vagueness of the proposed standard and the lack of sound scientific data lead to NTMA's concern with the subjective nature of the regulation. Small business owners must know when they are in compliance. However, the proposed ergonomics program standard does not provide assurance that employers will know when they have satisfied the regulation's requirements."

  • "Another misleading section of the proposed ergonomics program standard is the 'grandfather clause,' which states that a business with an ergonomics program 'may continue that program, even if it differs from the one this standard requires, provided you show that' the program meets certain requirements. An analysis of the 'grandfather' requirements reveals that the ergonomics program may not in fact differ from the one this standard requires."

  • "The reporting of a single MSD incident is too low a threshold to require the implementation of the full program. On its own, a single reported MSD may not be statistically significant to warrant the corrective measures required by the proposed regulation."

    - "NTMA acknowledges that OSHA has attempted to address the single MSD trigger issue by including a Quick Fix option in the revised November 1999 proposal. However, the Quick Fix option is not a solution to the trigger problem. Using the Quick Fix option essentially compels employers to implement the same controls that the full program requires."

  • "The MSD management provisions contain several flaws. First, the work restriction protections of the MSD management provisions are ripe for abuse. Second, NTMA believes that the threshold is too low for an employee to claim they are suffering a work-related MSD. Third, NTMA disagrees with provisions that describe what must be contained in the Health Care Professional's written opinion."

    • Economic Analyses Concerns

    The following comments were offered by Keith Belton, Director of Policy, Economics,and Risk Analysis, at the American Chemistry Council. (These thought are the author's own and do not necessarily reflect the opinion of the ACC.) In reading OSHA's preliminary economic analysis for the ergonomics rule, he said that he tried to answer three key questions:

    (1) How well does the economic analysis model the rule?

    Conclusion:

    I have concerns about the MSD [musculoskeletal disease] rate used in the preliminary economic analysis. It apparently is based on historic OSHA reportable injury rates. Some commenters have been critical that the rule expands the definition of MSD to injuries that are not OSHA-reportable. If this concern is true, then the economic analysis isn't accurate, and a higher MSD rate should be used.

    I also have concerns about OSHA's estimate of the percentage of employees covered by an existing ergonomics program. For ACC companies, the OSHA assumes that 75% of employees are covered by an existing ergonomics program. Now I haven't read the proposed rule in its entirety, but it seems to me that an important issue is determining whether an existing ergonomics program negates the need for the OSHA-mandated program. If a certain percentage of existing ergonomics programs are insufficient, then a greater number of employees would have to be covered by the rule, and the OSHA economic analysis would understate the percentage of employees that would be covered under the rule.

    Finally, I question the accuracy of OSHA's estimate of how much time would be required to establish and run the program. The amount of time needed to become familiar with the rule, train employees, train managers, implement the program, investigate each reported MSD - each time estimate seems extremely low to me.

    Each of these three concerns, if fixed, would raise the estimated cost of the rule.

    (2) How good are the data used in the analysis?

    Conclusion:

    The data is rather old (number of employees is based on 1996 data, and the percent of employees covered by an existing ergonomics program is based on a 1993survey), and more recent data are available for the economic analysis. For the chemical industry, the numbers OSHA used would tend to overstate cost.

    (3) Which of the major assumptions used in the analysis are most important in determining the cost of the rule?

    Conclusion:

    For the assumptions I just questioned, I determined how much costs would change if the assumptions were made more realistic. This is obviously a subjective exercise, but I concluded that of these assumptions, the most critical is the time element. This is followed by the percentage of employees covered by an existing program, the MSD rate, and the number of employees. If I change each assumption to better reflect reality (again, my opinion), the overall cost to the chemical industry increases slightly over OSHA's estimate.

    I do not rule out the possibility that there are other assumptions that affect cost, and these assumptions may not be accurate. I am not an ergonomics expert. But like I mentioned previously, this is still a work in progress, and I am learning from company representatives that have extensive knowledge about their operations and experience with ergonomics programs.

    The following points are taken from the an article by Robert W. Hahn and Petrea R. Moyle, entitled "Developing a Framework for Sensible Regulation: Lessons from OSHA's Proposed Ergonomics Rule." This article is obtainable through the website of the American Enterprise Institute-Brookings Joint Center for Regulatory Studies (www.aei.brookings.org).

  • "OSHA estimates the proposed rule will cost $4 billion per year and generate $9 billion per year in benefits. Yet, OSHA does not provide sufficient evidence that private markets are failing to reduce MSD risk without government intervention and does not convincingly demonstrate that the rule will result in more good than harm." (Abstract page)

  • "OSHA should more carefully evaluate the nature and extent of MSDs in the workplace than it did in the proposed rule and use improved economic analysis to target serious MSDs that employers can reduce at low cost." (Abstract page)

  • "Reducing the risk of target MSDs will, by definition, have high benefits and low costs. To identify target MSDs, OSHA should combine information on the nature and extent of workplaces MSDs discussed in the previous section with information about the cost of interventions. OSHA can then estimate the aggregate costs and benefits of the rule. As a result of flaws in OSHA's economic analysis of the proposed rule, OSHA overestimated the benefits of the proposed ergonomics rule. The following recommendations, which address the flaws in OSHA's economic analysis, will help OSHA estimate the costs and benefits of reducing target MSDs." (p. 2)

    1. Base Analytical Assumptions on Peer-Reviewed Studies. (p. 2)

    2. Discuss the Uncertainty in Key Assumptions. (p. 2)

    3. Adjust Baseline to Reflect Decline in MSDs Over Time. (p. 2)

    4. Include Failed Ergonomics Programs in Effectiveness Estimate. (p. 2)

    5. Link Cost and Benefit Estimates. (p. 3)

  • "In its cost analysis, OSHA relied on information from a limited sample of experts and on assumptions that overestimate cost savings and underestimate the costs of ergonomics program implementation. OSHA also did not test the sensitivity of its final estimates to uncertain parameters in its analysis." (p. 16)

  • "OSHA overestimated the benefits of the rule to employers because it based its estimate on five flawed assumptions: 1) that the programs implemented as a result of the rule will reduce workplace risk by 50%; 2) that programs to reduce risk are equally effective, regardless of injury or industry; 3) that the studies it used to estimate the benefits of the rule are comparable to the studies; 4) that the rule does not provide workers with the incentive to exaggerate or fake injuries; and 5) that the MSD rate will stay at 1996 levels for the ten-year duration of OSHA's economic analysis." (pp. 19-20)

  • "OSHA assumes that ergonomics programs required by the rule will reduce workplace risk by 50%, and estimates the number of injuries the proposed regulation will reduce based on this assumption. ... OSHA bases its 50% effectiveness assumption on two separate reviews of intervention studies, neither of which provides sufficient evidence to justify OSHA's 50% assumption. OSHA cites the highest estimates of program effectiveness for different injuries from the first review, and ignores the low estimate of program effectiveness. The high estimates are based on the assumption that programs reduce 100% of workplace MSD risk, which is doubtful given evidence that ergonomics programs are sometimes ineffective or fail to reduce all risk." (p. 20)

  • "Ergonomics program effectiveness is dependent on the type of injury and the nature of the industry, if not the specific job. OSHA did not show that the 50% effectiveness rate estimate applies to all MSDs, industries, and jobs." (p. 21)

  • "OSHA does not link the studies it used to estimate the benefits of the proposed rule to the costs of the rule. It reviewed over 100 studies as part of its benefits analysis, yet provides no evidence of costs based on these studies." (p. 22)

  • "The rule provides workers diagnosed with a MSD with compensation at 90% of after tax wages and 100% compensation for restricted work. These benefits represent an unspecified increase in benefits relative to current benefits from workers' compensation programs. OSHA does not adequately address the impact the increase in benefits may have on the number and duration of claims, referred to as moral hazard. OSHA further does not address why employers should compensate workers more for MSD injuries than for other workplace injuries, such as burns, broken limbs, or sprains." (p. 22)

  • "OSHA does not factor in the observed 5% annual decline in MSDs since 1992... If OSHA factors some portion of this decline into its analysis, it would result in a lower estimate of the injuries reduced as a result of the rule. This would lower estimates of the costs of the rule as well as the benefits, although it will reduce the cost estimate more than the benefit estimate." (p. 23)

    • Under the Small Business Regulatory Enforcement Fairness Act (SBREFA), at least one small business panel was convened to review the OSHA proposed rule. The National Tooling and Machining Association (NTMA) was one of the attendees at that meeting along with the Small Business Administration (SBA), the Office of Management and Budget (OMB), and OSHA. In a discussion of that panel on its website, the NTMA notes that the SBA question's OSHA's economic assumptions for the proposed ergonomics rule, and the SBA Office of Advocacy suggested that OSHA had significantly overstated the benefits of the rule while underestimating it costs.

    Related Websites and Other Sources of Information

  • OSHA Ergonomics Website

  • The Cato Institute

  • AEI-Brookings Joint Center for Regulatory Studies

  • National Tooling & Machining Association

  • National Institute of Occupational Health and Safety (NIOSH)

  • University of California at Los Angeles (UCLA)

  • National Association of Manufacturers (NAM)

  • National Coalition on Ergonomics

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