What's old is new again

For the first time in a decade, potential for ergonomics regulation exists. But how can a new standard succeed where its predecessor failed?

By Kyle W. Morrison, associate editor

Perhaps no other safety and health topic is so fiercely debated. The science has been scrutinized, criticized and defended. To some worker advocates, its regulation is the solution to many problems. To some industry leaders, such regulation would be the death knell to business. The topic? Ergonomics.

About 10 years ago, in the waning months of the Clinton administration, OSHA published an ergonomics standard. Critics rallied against it, calling the regulation too broad, too costly, too sweeping and too ill-defined. When the Bush administration took office, the Republican-controlled Congress effectively pulled the plug on the standard and barred OSHA from issuing another regulation that was “substantially the same.” This presents what can be considered the greatest irony of all concerning OSHA’s dealings with ergonomics to date: “One of the most significant regulatory actions in the agency’s history basically resulted in nothing,” said Brad Hammock, a partner in the Washington, D.C. region office of Jackson Lewis LLP and former OSHA lawyer who worked on the regulation.

In the standard’s place, OSHA issued guidance documents on ergonomics for a handful of industries to reduce injuries from musculoskeletal disorders, an approach current OSHA administrator David Michaels said three years ago was too narrow to tackle the “breadth and magnitude” of workplace MSDs. With the agency now under Michaels’ leadership, OSHA officials say they have not yet decided the best way to approach the issue, but have stressed that ergonomics needs to be addressed. It is clear that any sort of ergonomics regulation has as many supporters as detractors. While debate rages on whether or not such a rulemaking is a good thing, many stakeholders are asking the same questions: Will there be another attempt at a standard? What would it look like? And how, exactly, will OSHA proceed once it makes up its mind? According to some experts, the attempt has already been made.

One column, many disagreements

In January, OSHA released a proposal to revise its Occupational Injury and Illness Recording and Reporting regulation. The proposed rule would restore an MSD column on the OSHA 300 log of work-related injuries and illnesses, which employers are required to keep. Instead of recording MSD injuries in an all-encompassing “other” or “injury” column, employers now would be required to list MSDs in a separate column.

This column originally was included in OSHA’s proposed recordkeeping regulation in 2001, but was deleted before the rulemaking went into effect in 2003. According to OSHA, the proposal does not change current requirements for when to record an MSD injury – the only change is where on the log employers make that recording. (Read more about the rule change in “The 300 log problem” on p. 40.)

OSHA officials insist the MSD column rule is not a prelude to a broader ergonomics standard, but some stakeholders are skeptical. In an overview of the proposal, the Washington-based National Association of Manufacturers suggested the rule is evidence of OSHA’s interest in pursuing an ergonomics standard and is a precursor to such rulemaking.

Hammock gives the current administration the benefit of the doubt about the MSD column rule not being a prelude to a more expansive ergonomics standard. However, he acknowledges that the rule – which would collect MSD injury-specific data from employers – would give OSHA more information that could assist in promulgating an ergonomics rule. “There’s no doubt if by doing what they’re doing, they could potentially improve their ability to issue a rule on ergonomics,” Hammock said.

At least one expert believes the MSD column is, in fact, an ergonomics rule. “This is an ergonomics standard,” said Tom Sullivan, an attorney at Washington-based Nelson Mullins Riley and Scarborough LLP. Sullivan runs the law firm’s small-business coalition for regulatory relief. Sullivan considers the MSD column proposal a de facto standard because it would require employers, particularly small-business employers, to develop an ergonomics program. Such a program, Sullivan suggested, would be necessary for an employer to determine whether or not an injury was an MSD, and to take steps to mitigate future injuries.

This would be a violation of limitations set by Congress for OSHA toward ergonomics. “I do not believe they have the authority because of what happened with the Congressional Review Act,” Sullivan said of the MSD column proposal.

The CRA is a rarely used maneuver by which Congress can review any agency’s newly promulgated rule before the rule goes into effect. If they wish, legislators can disapprove of the rule and prohibit the agency from issuing another that is “substantially the same” as the rule Congress threw out. This was the fate of the Clinton administration’s ergonomics standard.

According to Sullivan, the CRA applies to virtually any regulatory effort the agency might take in regard to ergonomics. For OSHA to pursue regulating ergonomics, Sullivan said, it would need some action from Congress. Although congressional action would be the cleanest way to move forward, Hammock said, it may not be the only way.

Moving forward

Ergonomics was the most significant rulemaking overturned by successful use of the CRA. As such, there is no precedent on what can be done in light of that act. If OSHA chooses to move forward with ergonomics regulation without a clear blessing from Congress, the outcome of that effort would depend on decisions the agency makes.

“Ultimately, one of the things OSHA is going to have to decide is how bold are they willing to be and how much risk are they willing to take on?” Hammock said. For instance, if OSHA makes another attempt at a broad, all-encompassing standard in the vein of the Clinton administration’s rule, it could lead to challenges and the agency losing all over again.

Several options are available for OSHA. One idea that has been floated is industry-specific or hazard-specific rulemaking. Where the Clinton-era standard was broad, a standard targeting a single industry or hazard would be more narrow and could be different enough from the Clinton rule to theoretically avoid conflicting with the CRA. It also has the support of some in the industry: Several attendees at the “OSHA Listens” stakeholder meeting suggested the agency pursue this route for ergonomics.

One industry in particular that has a lot of support for ergonomics-related regulation is nursing. “We know nurses are being injured. The science is there,” said Nancy Hughes, director of the American Nurses Association’s Center for Occupational and Environmental Health.

Silver Spring, MD-based ANA supports the Nurse and Health Care Worker Protection Act of 2009, a bill in both the House and Senate at press time that would direct OSHA to issue a safe patient handling and injury prevention standard.

As many as 24,000 nursing aides, orderlies and attendants reported MSD injuries in 2007, and more than half of all nurses suffer from chronic back pain, according to figures cited in the legislation. The legislation aims to eliminate manual lifting of patients by mandating use of mechanical devices. While some of the upfront costs for purchasing patient handling devices required by the legislation may be costly, ergonomics programs in health care facilities could achieve a return on investment in as little as two or three years, according to Hughes.

Also interesting about this legislation, Hammock noted, is that – if passed – it would presumably allow OSHA to proceed without any CRA restrictions.

Learning from the past

An industry- or hazard-specific standard would be a new approach for regulating ergonomics, but what about past approaches?

“If they do try to do it – ergonomics in any way – we think they have got to learn from the mistakes from the past,” said Karen Harned, small business legal center director at the National Federation of Independent Business, a Washington-based small-business association. Harned listed some of the concerns regarding the Clinton administration standard: it was “one size fits all”; it was costly; and MSD injuries, which are cumulative by nature, could have been caused by something off the job. All of these issues are large concerns for many businesses, particularly small businesses.

While proponents of the original standard asserted any upfront costs would be outweighed by benefits predicted to return to employers down the line, Harned and other critics of the Clinton standard cite the expensive costs associated with that rule as one of the major reasons it failed. For small businesses in particular, Harned said the costs to comply were “disproportionately” higher compared with those for larger corporations. Another major problem with the original standard was the definition of an MSD injury. Critics believe the definition OSHA provided earlier in the decade and the one provided now is too broad and too ambiguous. Furthermore, how does one know whether or not an injury is work-related?

“How do we know it’s from work?” Harned asked. “You’re asking a small-business owner to answer questions they’re not qualified to make.” If OSHA chooses to move forward on an ergonomics standard, it should seek a middle ground on the issue, according to Hammock. Paring down an ergonomics standard to a single industry or hazard would help avoid claims that the regulation is too broad. Other provisions of the old standard that were most controversial also should be trimmed, he said.

Two of those provisions may be the work restriction protection provision and the trigger. The WRP provision would have required employers to pay for a certain percent of benefits if employees lose worktime for any MSD-related reason; the trigger would have required employers to implement an ergonomics program only when an MSD incident was recorded.

Sullivan suggested OSHA implement a phase-in approach for any ergonomics regulation. Because costs can be an issue, phasing in requirements that direct larger employers to comply first before other smaller businesses will help lower costs down the line for equipment and devices that may be required in an ergonomics program under the standard, he said.

Current movements

Whatever OSHA decides to do with any possible ergonomics standard, Hammock said two things will be necessary for the agency to succeed: examining what it can and cannot do under the CRA, and reaching out early in the process to both employees and employers to sell them on the standard.

For those who are nervous about OSHA quickly implementing a standard, Hammock doubts that will happen. Depending on who is asked, the last ergonomics standard took either 10 years or three years to promulgate (some may choose to include steps taken during President George H.W. Bush’s presidency; others only when the effort ramped up during the Clinton administration). If a standard were promulgated during President Barack Obama’s presidency, and Obama is not re-elected, the agency has less than three years to put it out.

Given that the agency’s plate is already full with other regulatory issues, the amount of resources necessary to promulgate a potential ergonomics standard and the lack of success with ergonomics regulations being pushed through OSHA in the final moments of past administrations, Michaels may not wish to repeat history. Instead, Hammock suggested, look for ergonomics regulation during a second Obama term, if he is re-elected.