Dear Sir or Madam:
Pursuant to the Occupational Safety and Health Administration's (OSHA) November 23, 1999, Federal Register Notice, 64 Fed. Reg. 65768, as amended by subsequent notices on December 30, 1999, and February 1, 2000, I am respectfully submitting the following comments on OSHA's Proposed Ergonomics Program Rule (Proposed Rule or Rule) in quadruplicate, and on a disk in ASCII format. The following comments reflect my own opinion and do not necessarily reflect those of The Heritage Foundation.
Summary of Comments
The Proposed Rule is unworkable for a number of reasons and should be withdrawn. The Rule is legally unsound, far too vague, and in most cases it will leave employers totally in the dark as to whether the Rule applies to their workplaces at all. The Rule is fundamentally unenforceable because in the three ergonomic enforcement cases that have gone to court under the general duty clause, OSHA has failed to prove the theories underlying its proposal. Moreover, since OSHA clearly states in the Rule that the occurrence of a covered musculoskeletal disorder (MSD) is not a violation of the standard, and employers are provided with only vague guidance on how to comply with the Rule's process-oriented provisions, it is difficult to see how most OSHA citations would be upheld in court. The Rule's repeated recommendations concerning the level and degree of employer/employee bargaining over conditions of work conflicts with the Section 8(a)(2) of the National Labor Relations Act. Finally, the Rule could reduce workplace safety by limiting voluntary safety incentive programs, and the work restriction provisions will increase workplace benefit fraud.
Public Comment Period Far too Short
Any rulemaking, particularly one of this size and scope, should allow all interested parties to fully debate the relevant facts and evidence. However, the short comment period, OSHA's failure to ensure that the massive Docket underlying the Proposed Rule (the index alone is over 800 pages) was complete at the time the Rule was issued, and its refusal to make the full Docket available in electronic format all inhibit meaningful comment by all interested parties. Moreover, OSHA published significant technical revisions to the rule on December 30, 1999, with little or no public notice to the regulated community. Given that the Docket contains more than 50,000 pages, a 90-day public comment period does not provide sufficient time to completely review the Rule in any meaningful way. Thus, I am filing my comments even though I have not had time to review carefully the entire Docket, and could not possibly have done so prior to the March 2, 2000, end of the comment period. Even without a complete review, however, the flaws in the Proposed Rule are many, obvious, and fatal.
Legally Unsound and Vague Rule
OSHA's regulatory approach in the Proposed Rule is legally unsound. The statutory basis for the Proposed Rule requires the Secretary of Labor to "set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by the standard for the period of his working life."1 Yet the OSHA fails to set a threshold standard for the existence of any ergonomic hazard. OSHA offers a number of examples, but provides no standards. Instead, OSHA foists this responsibility onto the regulated community. Although OSHA claims that it takes this approach to ensure maximum flexibility for employers, the agency ignores the fact that it is promulgating a mandatory standard. Any employer exercising flexibility will be subject to second-guessing by OSHA in enforcement proceedings to an overwhelming degree. The OSH Act simply does not permit the agency to shift its burden to set a standard to employers, and for this reason the Proposed Rule is seriously flawed.
Because scientists and medical experts have been unable to establish the point at which any ergonomic stressor could cause injury and the feasible methods that have proven to be effective in abating any supposed hazard, it is impossible for OSHA to draft a standard regulating alleged ergonomic hazards in the workplace. The vaguely written Proposed Rule simply does not describe the required hazard abatement controls with sufficient specificity or objective criteria to inform employers of their obligations. OSHA then exacerbates this problem by shifting the burden to the regulated community to identify and experiment with possible hazard controls through an incremental abatement process, while subjecting employers to post-experimentation enforcement if, in OSHA's judgment, the employer did not experiment enough. For these reasons, the Proposed Rule fails to give an employer fair warning of the conduct it prohibits or requires, or to provide a reasonably clear standard of culpability to circumscribe the discretion of OSHA, and, as such, violates due process.2
For example, the Rule is suppose to apply to manufacturing jobs where the physical work activities of producing a product make up a significant amount of the employees' time. Yet OSHA provides no definition of what constitutes a significant amount of time. Is it 30 percent, 50 percent, or 70 percent of a worker's time on the job? Apparently, OSHA is willing to leave this key decision (the scope of the Rule) up to individual employers or it intends provide this information through compliance interpretation letters. Either course of action violates congressional intent of the OSH Act.
The Rule is also supposed to apply to manual handling jobs where forceful manual handling is a core element of the employee's job. Yet again OSHA provides no definition of what constitutes a core element of the employee's job or what forceful is. OSHA does provide examples of jobs that are typically covered by the Rule, but it provides no specific or objective standard that informs employers exactly which jobs are covered by the rule. The Proposed Rule as written will require employers to guess at which jobs are covered, only to be second-guessed by OSHA inspectors.
The Proposed Rule makes no mention of whether or not it applies to employees working at home. This critically important issue concerning the scope of the rule should have been clearly specified in the Proposed Rule. Indeed, after OSHA rescinded its November 15, 1999, Compliance Interpretation letter on January 5, 2000, that specifically held employers responsible for ergonomic hazards in private homes, the Proposed Rule should have been withdrawn and republished with a full and complete discussion of why or why not this standard should apply to employees working at home. By leaving this out of the Proposed Rule both opponents and proponents of this important scope issue are unable to adequately comment on what may be in the final rule.
Under the pretext of flexibility OSHA fails to define such key terms as "considerable," "constantly," "long," "high forces," and "excessive cold." This merely conceals OSHA's inability to set any particular level of exposure to alleged ergonomic hazards that may result in an injury. Indeed, OSHA concedes in the Rule that identifying ergonomic hazards is extremely difficult.
The Proposed Rule is simply unworkable. Its scope is far too vague and in most cases will leave employers totally in the dark as to whether the Rule applies to their workplaces at all. Although the Occupational Safety and Health Act does not require OSHA to define risks precisely, the Proposed Rule must be sufficiently specific that employers will know what the OSHA expects of them. What OSHA may not do is what it attempts to do in the Proposed Rule: simply leave it to employers to guess at both what level is safe and how to get to that level, and then penalize them if OSHA later disagrees.
The Rule Is Unenforceable
OSHA takes a distorted view of its efforts to impose ergonomic requirements upon employers under the General Duty Clause. Although OSHA claims that it has successfully issued over 550 ergonomics citations under the General Duty Clause, it conveniently omits any discussion in the Proposed Rule that it has lost the only three contested ergonomic enforcement actions that were actually tried to completion in the courts.3 Indeed, these cases -- unlike the settlements extracted from employers who are unwilling or unable to resist protracted and costly litigation brought against them by the United States government -- are the only real acid tests of OSHA's theories on ergonomics. In fact, they are the only times in which OSHA has been forced to prove the theories underlying the Proposed Rule. And in each case, OSHA has failed.
In Secretary of Labor v. Beverly Enters,4 OSHA could not prove that physical exertion constituted a hazard and the Administrative Law Judge noted that the subjective nature of ergonomic hazards makes it very difficult to define them in a way that informs employers of their obligations. In Secretary of Labor v. Dayton Tire, Division of Bridgestone/Firestone, Inc.,5 the court held that OSHA had failed to establish that any of the conditions or activities alleged in the citation presented a hazard to employees. Finally, OSHA lost Secretary of Labor v. Pepperidge Farm,6 because it could not establish that the employer's voluntary ergonomics program was inadequate or that any of the abatement measures demanded by OSHA could materially reduce the existence of any alleged ergonomic hazard. Now OSHA is attempting to adopt a mandatory ergonomics program standard based on the same discredited theories advanced in these cases and will try to enforce the standard in court; they are not likely to succeed.
The Rule Conflicts with the National Labor Relations Act
The Proposed Rule also creates conflicts under the National Labor Relations Act (NLRA). For example, I am not aware of any collective bargaining agreement that permits an employer to unilaterally reorganize jobs, change working hours, implement job rotation, change work rules, or make many of the other changes that OSHA would require under the Proposed Rule. Many of the job changes that the standard would require are mandatory subjects of bargaining, and an employer's unilateral implementation of those changes would generally constitute unfair labor practices under the NLRA. Moreover, despite the Solicitor of Labor's opinion that there are many ways that employers can involve their workers without violating Section 8(a)(2) of the NLRA, the type of employee involvement and interaction with management that is repeatedly identified by OSHA in the Proposed Rule as being necessary to successfully reducing MSD hazards could clearly be construed as bargaining over conditions of work and a possible violation of the NLRA. OSHA's brief explanation of just one labor lawyer's opinion (the Solicitor of Labor) is completely inadequate given the findings and recommendations of the Commission on the Future of Worker-Management Relations (also known as the Dunlop Commission) and testimony presented before Congress on the subject of employer/employee workplace safety committees. OSHA offers no effective guidance for employers who may be forced to choose between an OSHA enforcement proceeding, an unfair labor practice charge, or a strike and general labor unrest.
The Rule Will Reduce Safety and Increase Fraud
OSHA believes that employer policies and state workers' compensation programs cause the MSD injuries to be significantly underreported. Incredibly, OSHA asserts that safety bonus and award programs, sick leave policies, and state workers' compensation rules and benefit rates are a problem when it comes to identifying and reducing ergonomic injuries. To fix the alleged underreporting of MSDs the Proposed Rule will require employers to implement work restriction protections (WRP) and to significantly change safety bonus and award programs.
Employers often provide monetary incentives (safety bonus and award programs) to workers to increase safety awareness on the job and reduce workplace injuries and illnesses. Although the Proposed Rule does not prohibit the use of safety bonus and award programs, OSHA is encouraging employers to use the programs to increase the early reporting of the signs and symptom of MSDs, rather than rewarding workers for having fewer MSDs. This provision will have a chilling effect on these useful and popular bonus programs that have been shown to reduce injury rates by 20 to 35 percent.
Even more problematic, the WRP provision will increase abuse and fraud in the workplace. Without even mentioning the problem and level of fraud in state workers' compensation programs that replace an average of 66 percent of workers' wages, the Proposed Rule would require employers to provide a 90 percent wage replacement for up to six months to a worker that is removed from the workplace because of an MSD.
OSHA's claim that the WRP provision is drafted to reduce any potential for employee abuse is simply ridiculous. A 1996 analysis by Conning Insurance Research located in Hartford, Connecticut, found that fraudulent claims in workers' compensation is the largest source of fraud within the property/casualty sector of the insurance industry. It accounts for more than one-third of all property and casualty fraud. The fraud level in workers' compensation claims may reach 25 percent. Raising the benefit rate for MSDs injuries from 66 percent of wages to 90 percent of wages would only magnify this problem. Common sense, to say nothing of the experiences of the workers' compensation claims personnel, unfortunately suggests there are thousands of people in this country, if not tens of thousands, who would leap at such an opportunity.
Despite OSHA's arguments to the contrary, the WRP provision is filled with opportunities for abuse. In its explanation of the WRP provision, OSHA claims (with no support whatsoever) that it believes that the fact that an individual will only receive 90 percent of his or her pay if removed from the workplace will not create the incentive for abuse. Creating a separate compensation system to cover any particular diagnosis or class of diagnoses will create preferences among patients to those diagnoses, thus increasing supposed injury rates artificially. And this problem is likely to be especially acute where, as here, the diagnosis at issue is not an objective, medically verifiable diagnosis, but rather a loose collection of poorly defined signs and symptoms.
For example, it is not hard to imagine a worker going to the doctor for some pain in his back and the doctor notifies the employer that the worker needs to be removed from the workplace under the WRP and be given 90 percent of his pay. Under this scenario, the employee has experienced a recordable MSD because the sore back is an MSD symptom that resulted in medical treatment. Yet none of these MSD symptoms can be objectively verified by a third party; thus, the very existence of an MSD symptom -- the triggering event of the Proposed Rule's coverage -- is determined solely by the employee. The moral hazard for abuse is enormous.
OSHA's position is even more untenable given that it has apparently decided to hold employers accountable not only for those complaints where there is objective, verifiable evidence that they were caused by work, but for all complaints that theoretically may have been caused or aggravated by work. How many "weekend warriors" come to work on Monday morning a little stiff from playing sports? How many workers could report lower back pain on Monday after doing yard work all weekend? Moreover, any activity, no matter how minor, may aggravate a pre-existing complaint of pain; the notion that an employee may thus be compensated for these kinds of aggravations is entirely indefensible. Before publishing a final rule OSHA should study the implications of fraud within the WRP instead of just summarily dismissing the potential for abuse.
The Proposed Rule is a morass of undefined and undefinable terms that the regulated community has no hope of complying with and that OSHA has no hope of enforcing consistently. All of these factors point to one conclusion: the proposal must be withdrawn.
D. Mark Wilson
The Heritage Foundation
214 Massachusetts Ave., NE
Washington, DC 20002
1. 29 U.S.C. § 655(b)(5).
2. Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649 (5th Cir. 1976).
3. See Secretary of Labor v. Pepperidge Farm, 1997 WL 212599, OSHRC No. 89-0265 (Rev. Comm. Apr. 26, 1997); Secretary of Labor v. Dayton Tire, Division of Bridgestone/Firestone, Inc., 1998 WL 99288, OSHRC No. 93-3327 (ALJ Mar. 4, 1998); Secretary of Labor v. Beverly Enters., 1995 WL 693958, OSHRC No. 91-3344, et al. (ALJ Nov. 13, 1995).
4. 1995 WL 693958, OSHRC No. 91-3344, et al.(ALJ Nov. 13, 1995).
5. 1998 WL 99288, OSHRC No. 93-3327 (ALJ Mar. 4, 1998).
6. 1997 WL 212599, OSHRC No. 89-0265 (Rev. Comm. Apr. 26, 1997).