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Ergonomics Is Law Of The Land — For Now
While high-tech companies struggle to understand how to comply with new, stronger regulations protecting U.S. workers from repetitive-motion injuries, opponents of the ergonomics rules are crafting a bevy of strategies aimed at undoing them.
The regulations took effect Jan. 16, and companies have several months to adapt their workplaces or become vulnerable to government action for lack of enforcement. But that will remain true only if the government does not erase the rules first.
Beating The Buzzer
The Clinton administration promulgated the rules as one of its last acts, publishing them in the Federal Register Nov. 14. Because 60 days had to pass from date of publication to enactment, the rules became active just days before the Bush administration began.
President Clinton's action enraged business groups and lawmakers who had successfully blocked the ergonomics rules for roughly a decade. One industry observer said the Senate "dropped the ball" in 1999 when it failed to consider an extension of a law restraining the Occupational Health and Safety Administration (OSHA) from putting such regulations in place. That opened the door for the current regulations, strongly backed by labor unions such as the AFL-CIO.
The high-tech industry joined the battle late, in early 2000, and never has been aggressive on the issue, industry sources said. Most, if not all, mid-sized to large tech companies already have ergonomics plans in place. The small startup companies, already beleaguered by difficult economic conditions, are expected to feel it most. The new rules will apply only to companies with more than 10 full- or part-time employees.
"The bottom line is it's going to be very, very costly," both in outright expenditures and lost productivity, said Raymond Keating, chief economist at the Small Business Survival Committee, which has 60,000 members. In addition, companies may need to add health care professionals to comply with the rules.
High-tech firms also hesitated in lobbying on the issue because many are located in states such as California and Washington that already have OSHA-approved state plans on ergonomics. They believed they were covered. Enforcement of the new rules begins on Oct. 16 and will be implemented by 2,000 OSHA compliance officers. They are generalists, rather than experts in ergonomics, and oversee some 6 million companies, an industry source said.
The Critical View
The new rules do include several provisions troubling to tech firms, the costs of complying being chief among them. For instance, if a company with an assembly team hears a complaint from one employee, it must assume that the whole team has the same complaint, and the company is under obligation to "engineer" the problem out.
The rules also include a trigger that is based on computer or mouse use of more than four hours per day. That covers virtually everyone in the industry, and critics say the standard is not based on science.
Another problem, critics of the law say, is that the rules do not permit employers to ask what factors outside of work might have contributed to an employee's reported injury. So employers cannot know, for instance, if a person suffering from carpal tunnel syndrome also spends hours on a computer at home each day. "That is the most unreasonable part of this," the industry representative said. "It makes work responsible for all life's aches and pains."
One of the biggest complaints is that the rules take a "one-size-fits-all" approach to companies' plans for limiting repetitive stress injuries, according to Thomas Stohler at AeA (formerly the American Electronics Association). That is an affront to firms that say they know without government intervention that it is in their best interest to keep workers healthy and on the job.
"We're still suffering from a shortage of workers," said Jeff Lande, vice president of the Information Technology Association of America (ITAA), which opposes the rules. "The last thing employers want is to have a worker out for an injury." ITAA is holding a series of workshops for its members on how to comply with the new rules, he said.
How Ergonomics Came To Be
The AeA's Stohler said the first ergonomics rule was drafted and defeated in 1995, followed by a rider in 1996 that later was removed. The idea of asking an independent agency such as the National Academy of Sciences (NAS) to study the issue arose in 1997, but not until 1999 did Congress request that study.
Also in 1999, OSHA published a second draft ergonomics rule, which led to a bill by Rep. Anne Northup, R-KY, and Sen. Michael Enzi, R-WY. Congress cleared the measure in 2000 in an attempt to prevent OSHA from issuing the final rule. But OSHA published the 600-page regulation Nov. 16, before the Northup-Enzi law took effect, thus rendering it moot.
The NAS study, finally released last week, provided evidence that musculoskeletal disorders are plaguing American workers and identified new technologies as a major contributor to the problem.
Repetitive-stress injuries account for nearly 70 million visits to the doctor's office per year, with some 1 million people taking time off from work for treatment and recovery in 1999, the report said. It estimated the economic burden at between $45 billion and $54 billion a year. Opponents of the rule cited ambiguities in the study to say it lends support to their cause.
In Search Of A Friendlier Forum
Some opponents of the rules are not ready to accept them. Groups such as the National Association of Manufacturers and the Chamber of Commerce plan legal challenges to the rule. They have questioned the regulations' constitutionality, the procedures under which they were made and the science upon which they were based. High-tech trade associations have not joined the lawsuits except as part of a broader group called the National Coalition on Ergonomics.
Other longstanding enemies of the regulations are pushing Congress to revisit the issue. The focus is on a relatively new and untested tool, the Congressional Review Act (CRA) "motion of disapproval," which Congress gave itself to overturn "bad" regulations after the fact.
It is "highly likely," a Senate source said, that a motion of disapproval on ergonomics will emerge in the Senate Small Business Committee, led by Chairman Christopher "Kit" Bond, R-MO. Lawmakers passed a Bond bill four years ago that keys on the CRA as a way to protect small businesses from regulations, said committee spokesman Craig Orfield. Other congressional sources said Enzi and Rep. Roy Blunt, R-MO, are considering introducing a measure as well.
The motion of disapproval, a "last-ditch-effort," can originate with any member in either chamber and then is referred to the appropriate committee, according to a congressional source.
On the Senate side, where the motion is expected to face a tougher fight, if the committee does not act within 20 days, then 30 senators can force the issue to the floor. Once on the floor, there can be no amendments, no points of order and no filibustering, and debate is limited to 10 hours, five for each party.
Waiting For A Signal From Bush
In earlier battles against the ergonomics measures, several Democratic senators, including Ernest Hollings, D-SC, John Breaux, D-LA, and Blanche Lambert Lincoln, D-AR, joined Republicans in opposition. But the issue, which has some resonance with the public, could cause moderate Republicans to switch sides, too, the Senate source said.
If Congress passes the motion of disapproval, it will go to President Bush, and observers expect the Bush administration to support efforts to kill the ergonomics rules because Bush spoke against them in his campaign. But Hill sources will wait to see what Bush decides before acting.
The new administration is reviewing several measures imposed by the Clinton administration, a Bush spokeswoman said. The White House could try to strike the rules through administrative means as well, but that reportedly would be more arduous.
 | - by William New |
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