OP- ED

Ergonomic Regulation & Reality  

Ergonomics 101 – Ergonomics is the applied science of workplace design intended to reduce operator fatigue and discomfort. Ergonomic injuries are cumulative in nature, and involve chronic and repeated exposure to awkward positions and (series of) movements, vibration, impact, etc. MSD, musculoskeletal Disorders and CTS, cumulative trauma syndrome, most often involve the lower back and upper extremities. Common diagnoses are low back pain, sciatica, carpel tunnel syndrome, etc. They do not encompass the world of instantaneous accidental injuries.  

Political History of the Ergonomic Regulation – The concept that workplace ergonomic hazards should be regulated originated about a decade ago at the beckoning of labor groups, as per usual with any other occupational health and safety regulation. Business interests had always countered that the etiology of ergonomic risks and injuries were not clear and may not be causally related to workplace exposures. Business felt that more studies should be conducted to verify the nature of the relationship between workplace exposure and ergonomic injuries before any such standard be written or implemented. In Labor’s mind, the risk relationship was obvious enough with existing data, and the consequences were too great to procrastinate any further. For most of the past 10 years, OSHA’s appropriations bill contained a bipartisan rider that explicitly forbade the agency to work on or draft an Ergonomic Standard. In the past 2 years, the rider allowed OSHA to write the Standard, but not publish it until after the release of the National Academy of Science (NAM) 2-year study on MSDs in the workplace. OSHA published the Final Ergonomic Standard in November of 2000 by executive order, 2 months before the NAM study was released, and in violation of its appropriation’s bill rider stipulations. The Standard was thus hurried through public review and comment. It had not been subjected to the usual agonizing drawn-out process. The Standard was saddled with some very controversial and complex requirements that ultimately sank it (see next paragraph).  With the advent of the new Republican administration and Congress, the Standard was repealed by way of the Congressional Review Act this March. This is the first time that the Act has ever been enacted since its creation in 1996. It is entirely possible that a new version of the Standard will be delivered within this Administration. Of course, it will curious to see what approach would be taken.  

Ergonomic Standard’s Suicide Pill – There were two issues that rendered the Standard seriously troubled, both stemming from the requirement to provide 90% wage replacement to all workers out on disability due to ergonomic injuries for the first 90 days. Firstly, this would have, by all intent and purposes, nationalized the worker’s compensation system. Over 80-90% of workers’ compensation claims is ergonomic. This benefit requirement, along with its related medical management procedural requirements, would have been superimposed upon each individual state’s own internal workers’ compensation system. This would have created mass chaos and certain procedural impossibilities as some of the requirements are in conflict with, or at the very least, out of alignment with, existing administrative legal procedures. Secondly, this 90% wage replacement would have created two classes of injured workers. Those with MSDs or CTDs like carpel tunnel syndrome or sciatica, would receive 90% wage replacement for the first 90 days. Then there are the second class citizens of injured workers who may have suffered equally or even more disabling, painful or fatal injuries, like burns, falls from heights, motor vehicle accidents, explosions, etc. They would receive benefits based on their own state’s worker’s compensation rates, dismally lower than the 90% benefit rates for those injured workers who happen to have the better fortune to have an ergonomic cases. Undoubtedly, this was fundamentally unjust, penalizing and rewarding injured workers based on the cause of their injury. Such protocols would encourage a shifting of reported causes of injuries from non-ergonomic to the ergonomic sort. It is arguable that this benefit requirement would also make fraudulent claims even more lucrative.

Compliance Quandary – Employers have always been, and still are required, to abate recognizable hazards and provide a safe workplace under the General Duty Clause. OSHA inspectors do not cite the General Duty Clause lightly in the first place. This process is further scrutinized internally when citing ergonomic hazards, due to the political backdrop. Ergonomic hazards cited under the General Duty Clause require supervisor, regional director and national level reviews before issuance. The inspector must also submit videotape that explicitly documents the cited hazard. The inspector must clearly establish that an ergonomic hazard exists and that the employer has implemented no abatement method. No healthcare facilities have been cited since the controversial Beverly case even though they are rife with ergonomic problems because all healthcare institutions conduct employee training, and have some semblance of a program that attempts to address the issue, however effectively or ineffectively. Thus, this violation issuance strategy is predicated on a clear, indisputable hazard, and the complete lack of any employer response to the problem. Such citations would start at approximately $3,500 to $5,000. They are subject to discounts, negotiations, and even withdrawal by a competent defense.