- The Washington Times - Monday, January 15, 2001

One of the biggest concerns about the federal job safety regulations that take effect this week is the great unknown they represent not to mention the fact business groups say they will be the costliest in history for employers.

The Occupational Safety and Health Administration (OSHA) says the rules will reduce job injuries and illnesses, particularly repetitive stress injuries. Employers have until Oct. 15 to comply before they face possible fines from OSHA.

The problem, employers complain, is that nearly all jobs involve at least some repetitive stress.

Data entry clerks tap their fingers and wrists on keyboards from morning to late afternoon, factory workers lift and push things all day long and teachers can strain their eyes grading papers for hours on end. Even stockbrokers could suffer job injuries by yelling out company names and numbers so loud and long it strains their throats.

"A lot of businesses are freaking out," says Kyle Key, spokesman for Ergonetics LLC, an occupational safety training company in Chevy Chase. "They don't know what to think." In recent weeks, Mr. Key says, business has been good.

OSHA says any money employers put into adjusting work stations and duties will be recovered through lower medical expenses. The agency estimates the bill for compliance to employers nationwide at $4.5 billion.

However, OSHA estimates savings to employers from its ergonomics rules at $9 billion a year. In addition, 460,000 fewer workers would be injured each year.

Some cry foul

Many employers say OSHA could drive some of them out of business. Their estimates for the cost of compliance are about as consistent as a wind gauge in a tornado.

The National Association of Manufacturers says its constituency of about 10,000 small and medium-sized manufacturers would need to spend $6.7 billion to comply.

The Employment Policy Foundation, a business research organization, says the cost for the entire economy would be $125.8 billion in the first year and $886.6 billion in the next 10 years.

Most industry organizations place the cost somewhere between $20 billion and $120 billion.

Therein lies another part of the problem. No one knows the exact figure or even how OSHA will enforce the ergonomics rules.

Ergonomics refers to the science of fitting jobs to the workers.

"I don't really know what will happen," says James Meath, a Washington labor lawyer with the firm of Williams, Mullen, Clark & Dobbin. "They create at the very least some tension for the business community in complying with the these regulations."

He likens the new OSHA rules to uncertainty that preceded the 1990 Americans with Disabilities Act, which required employers to make job sites accessible to disabled workers. Employers soon realized that many of their fears were unwarranted.

"A lot of employers were doing what the ADA was talking about all the time," Mr. Meath says.

While the ADA involved only disabled workers, the new OSHA rules apply to any kind of worker engaged in repetitive physical activities. About 40 percent of employers already have ergonomics programs, according to the U.S. Labor Department. However, Mr. Heath says, "I'm not sure they're doing what these ergonomics regulations talk about."

David Thompson, a lobbyist for the restaurant industry, says most of the uncertainties result from poor wording and definitions by OSHA.

One provision of the rules requires employers to analyze jobs that could potentially cause repetitive stress for ways to prevent such hazards.

"There's no clear standard as to when you have to do the individual job analysis," Mr. Thompson says. "They mention specifically drink delivery, but they don't mention food delivery. They don't clearly define which jobs are covered. Every restaurant job varies."

Another provision requires employers to pay workers with musculoskeletal injuries from repetitive stress 90 percent of their normal wages for the first 90 days they are out of work recuperating.

"The 90-day provision on providing full pay conflicts with workers' compensation," Mr. Thompson says.

Workers' compensation laws normally limit workers to receiving no more than two-thirds of the full-time wage while they recover from job injuries. Even then, the benefits start only after an administrative law judge rules the workers suffered job injuries.

Under the OSHA rules, workers must be paid from the date they claim they are unable to work because of a musculoskeletal injury.

The date for beginning payments represents another problem with the rules, Mr. Thompson says. It creates a presumption that workers are injured until the employers can prove otherwise.

He cites the case of a typist he knew who was an "ultimate Frisbee" player in her spare time. She claimed workers' compensation for carpal tunnel syndrome in her wrist, which she attributed to her typing duties. Her employer argued that extreme Frisbee caused the injury.

Mr. Thompson says the new rules' presumption that an injury is job-related creates a threat to the restaurant industry, which relies heavily on younger workers.

"Because of the younger, more athletic work force, our employers are going to be footing the bill for off-the-job injuries," Mr. Thompson says.

Uncertainties abound for other industries as well.

Bill Spencer, spokesman for the Associated Builders and Contractors, says he hoped the rules would only negligibly affect construction contractors.

"They are at least partially exempt from ergonomic regulations … I think," he says.[

GOP might block rules

The ergonomics rule was issued by OSHA in November in a blizzard of last-minute environmental, health and safety regulations during the waning days of the Clinton administration. Already, OSHA faces legal challenges from businesses, insurance companies, trade groups and the U.S. Chamber of Commerce.

The first major challenge could come as early as next week, when George W. Bush settles into the Oval Office as president of the United States.

In recent days, Republican congressional leaders and representatives of the new Bush administration said they might change what House Majority Leader Dick Armey called President Clinton's "midnight regulations." Mr. Armey estimates the cost to industry to comply with the ergonomic rules at $6 billion.

"That's $6 billion that won't be spent hiring employees, increasing salaries or lowering prices for consumers," Mr. Armey said two weeks ago during the Republican Party's weekly radio address. "We must keep our economy from tripping over this pile of Washington red tape."

Even if President-elect Bush cannot get Congress to agree to change the ergonomics rules, he could delay enforcement of them almost indefinitely. He could classify them as a low priority for enforcement. He could turn over enforcement to the states without giving them the money to pay for rule enforcement. He also could postpone the effective date of the rules until all legal challenges are resolved, which could take years.

Any postponements would get the support of manufacturers like Donald Rainville, president of Universal Dynamics Inc. in Woodbridge, Va. The company's 250 employees manufacture machinery for the plastics industry on an 8-acre site.

Mr. Rainville tells of a time two years ago when he spent $300,000 for a new overhead crane to reduce lifting injuries in one of his plant's buildings. He added the equipment in anticipation of new OSHA ergonomics rules.

Before the crane was installed, workers in the building averaged 11/2 back injuries per year from lifting accidents. After the crane was installed, the same workers averaged 11/2 back injuries per year, he says.

Mr. Rainville says the ergonomics rules "are way overreaching. They're not necessarily going to prevent any injuries and they're going to cost the American workers billions of dollars in wages. They're like cutting down the forest to prevent forest fires."

One of the new ergonomics rules specifies a need for additional overhead clearance for cranes used in one of the plant's buildings. Mr. Rainville says he would need to spend $8 million to $10 million to erect a new building to comply with the rule.

"It's going to lead to the expenditure of a lot of unnecessary investment in capital improvements," Mr. Rainville says.

Jim Wordsworth, owner of J.R.'s Stockyards Inn in McLean, listed some facilities in his restaurant that would need to be redesigned under the new ergonomics rule.

Ovens would need to be retrofitted to avoid blowing heat onto people who open them while they're on, high shelves would need to be removed to avoid the risk of objects falling on someone's head, hot water pipes would have to be covered with insulation to avoid burns.

"It's a myriad of equipment changes that normally a small business can't take," Mr. Wordsworth says.

Other employers agree that the ergonomics rules are worth the effort.

Ed Ross, operations manager for the corporate law firm of Hunton & Williams at 1900 K St. NW, says any money spent to reconfigure work stations has paid for itself.

"We have a lot more productive people here," Mr. Ross says. In anticipation of the ergonomics rules, Hunton & Williams switched from conventional keyboards on computers to curved keyboards, started using touchpads instead of mouse clickers and installed hands-free phone sets, foot rests and back supports for secretaries.

He describes the degree of inconvenience created by the ergonomics rules as "none whatsoever."

OSHA based its cost estimates largely on case studies. The agency went to companies that already instituted ergonomics programs, determined which portions met their standards, then asked employers about the costs. By extrapolating the costs from the case studies to the entire American work force, OSHA came up with the $4.5 billion figure for implementing the new standards.

The National Association of Manufacturers says the ergonomics rules are an example of government meddling in issues that can be resolved better by industry.

They mention as an example a recent Bureau of Labor Statistics report that showed a 4 percent drop in job injuries in 1999 compared with a year earlier. In 1999, an average of 6.3 out of every 100 private industry workers were injured on the job. Five years earlier, 8.4 per 100 were injured.

The injury rate was the lowest since the Bureau of Labor Statistics started keeping injury records in the early 1970s.

A total of 5.7 million job injuries and illnesses were reported in 1999. The lower injury and illness rate resulted in a 2 percent increase in hours worked by employees.

"Employers know that safety is good business and they have led the way in working with their employees to create safe and healthful working environments," says Patrick Cleary, a National Association of Manufacturers vice president. "Injury and illness rates continue to decline because of the efforts of manufacturers, not because of over-regulation and micro-management by OSHA."

Last week, Mr. Cleary announced at a news conference that manufacturers plan to attack the rules using the Congressional Review Act, which allows Congress to review any rule that costs business more than $100 million. "It's beyond fixing as far as we're concerned," he said.

OSHA defends rules

OSHA is trying to calm the fears of employers while assuring labor unions and other worker advocacy groups that their concerns about job safety are adequately addressed in the new rules. OSHA says it will fine employers for safety violations only as a last resort.

Employers are required to take action only if injuries occur that fall under OSHA's risk categories. When workers report injuries, employers are required to audit the injured workers' jobs for safety hazards. If a worker's job duties exceed the OSHA standards, the employer is required to eliminate the hazard.

Risk factors listed under the new rules include making workers type consistently on keyboards for more than four hours per day, requiring workers to lift heavy objects weighing more than 75 pounds more than once per day and lifting objects weighing more than 55 pounds more than 10 times per day.

OSHA Administrator Charles Jeffress said in a statement, "Our final standard establishes concrete objective guidance for employers to help them determine when they need to take further action and when they've fulfilled their obligation to resolve problems in their workplaces. It identifies persistent signs and symptoms of MSDs (musculoskeletal disorders) as problems that must be addressed, and it increases worker participation in ergonomics programs."

OSHA started working on the new ergonomics rules 10 years ago. The process began when Elizabeth Dole, secretary of labor for President Bush, announced OSHA would develop the new standards.

When OSHA started drafting the rules in 1995, Congress immediately tacked on riders, or amendments, that required additional scientific studies, in an attempt to stop OSHA from continuing.

Despite the lawmakers' interference, OSHA proposed the new rules in 1999. During the comment period that followed, employers objected the most to the 90-days-at-90-percent-pay rule, saying it would encourage workers to fake injuries.

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