Vol. 47, No 10
Whether the rules come from the states or ultimately the federal government , HR will have a hand in implementing them.
The pressure is building. With the federal government backtracking on ergonomics—replacing a strong ergo standard with voluntary guidelines and stressing assistance rather than enforcement—the states are getting impatient.
Employee advocates in state capitals from Anchorage to Providence can’t accept the glacial pace at which the Occupational Safety and Health Administration (OSHA) is focusing its outreach efforts on one industry at a time—first nursing homes, then grocery stores and poultry processors—in a process that could take years. To them, there has to be a faster, more powerful way to stop work-related ergonomic injuries that waylay 1.8 million employees every year and cost the country $45 billion to $54 billion in medical expenses and lost productivity.
Stepping into the void, the states are taking on their classic role as laboratories for social and economic change.
“There’s no question that ergo activity is picking up at the state level,” says Patrick Tyson, head of OSHA under President Reagan and now partner and OSHA Practice Group Leader for the law firm of Constangy, Brooks, Smith in Atlanta. “Several states are moving, and I wouldn’t be surprised to see more.”
“Politically, it makes sense to work on the state level right now,” agrees Peter Budnick, president and CEO of Ergoweb, a full-service ergonomics consulting company in Midway, Utah. And that could lead to federal regulation down the road. Until a federal minimum standard is enacted, Budnick says, business will likely complain that complying with varying state requirements is burdensome and costly, and labor may complain of uneven protection.
“If it happens at the state level,” says Budnick, “the feds will want to step in to achieve some uniformity.”
Other experts also believe the burden caused by uneven and inconsistent standards in the states will eventually lead to federal regulation.
Tyson, for example, sees “an interesting parallel” between the current ergonomics-regulation process and another set of initially troublesome rules—OSHA’s Right to Know regulations. The federal government began developing those rules, says Tyson, but “got bogged down with a lot of opposition, so the states started moving.” Multi-state employers found the multiple state regulations to be a burden, so they asked OSHA to create a federal standard, which it did.
Similarly, the ergonomics activity at the state level may provide an early glimpse at future federal ergonomics regulations. The following snapshots indicate where attention to workplace ergonomics is headed—and where HR must go to help position their companies for eventual ergonomic oversight, whether state or federal.
The Voices of the People
In Alaska, where the fish processing industry presents the greatest ergonomic headaches, a proposed ergonomics standard is being ushered through various state offices, including the Department of Labor and Workforce Development and the attorney general’s office.
The standard now under consideration reflects recommendations gathered from the public earlier this year in meetings throughout the state. “A total of 175 people showed up” at the sessions, says Richard Mastriano, director of the state Labor Department’s Labor Standards and Safety Division. “And they had a lot of comments.”
The initial draft of the regulations that was discussed in the meetings called for all public and private employers to set up ergonomics programs in which a “competent person” would identify workplace hazards at least once a year, or whenever the company added or changed processes or job tasks. Employers who found ergonomic hazards would have been required to take actions such as establishing engineering or work practice controls or giving out protective equipment.
Also in the mix were annual program reviews, employee training and education, regular safety meetings, and citations and monetary penalties for violations.
Mastriano says his department has tried to be accommodating. “On the workplace hazard evaluation, for example, the proposal mandated it every year, but we compromised and rewrote it to require evaluation only if significant changes have occurred,” he says.
“We also got complaints about the safety meetings, so we changed it to require more-frequent safety meetings for more-hazardous work environments,” he says. “Construction projects, which change all the time, should have more meetings, but office environments, where little changes, don’t need them as often. The greater the hazard, the more frequent the meetings.”
Mastriano adds that the sessions’ attendees “were also concerned about the ‘competent person’ who [would do] the workplace evaluation. They were worried that they’d have to hire an engineer. So we changed the definition to be more flexible. It can even be the person doing the job.
“We told employers, if they evaluate a job and there’s no way to change it, they don’t have to fix it. But they do have to keep track of new science. If there’s a new solution, and it’s cost-effective, they have to implement it. If there’s an engineering fix, they have to do it. If there are no engineering fixes, then maybe job rotation would work. That’s what grocery stores do—they rotate their checkout clerks who use scanners so no one gets a repetitive-motion injury.”
A Higher Hurdle
California, a leader in ergonomics regulation, has had a standard on the books since 1996, although it became effective only in 1999, after surviving a court challenge.
Unlike Alaska’s proposal, which requires employers to evaluate and correct hazards regardless of whether there’s been an injury, California’s requirements are predicated on injuries. “The enforcement mechanism is triggered when two employees are medically diagnosed with injuries stemming from identical tasks within the same 12-month period,” says Susan Gard, a spokeswoman for the California Department of Industrial Relations.
After the second injury, the employer must develop ergonomics programs that include worksite evaluation, hazard control and employee training. Penalties for violation include citations and fines.
“But even without a second injury,” Gard says, “we can send the company an information memorandum, putting them on notice that they may want to set up an ergonomics program before they might be cited.”
The standard has done little, however, to decrease repeated-trauma disorders, according to the California Labor Federation, which has more than 1,300 affiliated local unions representing 2.1 million workers. The federation says two-thirds of Cal/OSHA’s investigations resulted in no citations because there was no qualifying second injury. The labor group supports legislation calling for the state’s Occupational Safety and Health Standards Board “to adopt a truly preventive ergonomics standard” by next July 1. The bill cleared the California Assembly and is in the Senate.
The bill’s proponents note that, according to the state’s Workers’ Compensation Insurance Rating Bureau, in 1998 there were 5,757 permanent-disability claims arising from carpal tunnel syndrome, and they cost employers $189 million—mainly in permanent-disability benefits. Moreover, the legislation’s advocates note, carpal tunnel represents only a fraction of all ergonomic injuries.
The bill’s opponents, citing a lack of scientific evidence to the contrary, say the present ergonomics standard provides a balanced approach and works well.
Keeping Employers in Sight
Washington state, like California, has traveled farther than most down the ergonomics road. The state’s ergonomics rule, adopted two years ago, recently withstood a challenge in state court by a group of business associations, including the Washington State Society for Human Resource Management Council. Now, despite the possibility of an appeal, the state is moving forward on the rule, which requires employers to take preventive steps.
“There are several good reasons” for the proactive approach, says Michael Silverstein, director of Washington Industrial Safety and Health Act (WISHA) Services. “The most important is that it’s a basic principle of occupational-hazard prevention to address hazards before people get hurt. In fact, most occupational safety and health standards focus on prevention.
“Second, in the public hearings on the rule, employers told us they didn’t want a rule triggered by injuries. In the construction industry, for example, employees may work for several employers in a year, and employers didn’t want to have an employee who just started on their jobsite develop a musculoskeletal disorder based on hazards at someone else’s workplace.
“Finally, we wanted to construct a firewall between ergonomics and workers’ comp, so it wouldn’t degenerate into a workers’ comp debate with a dispute over causation. So we drew a bright line, telling an employer there would be no consequences under the rule if a worker had an injury.”
Injuries would be handled under the workers’ comp system, Silverstein explains, while the ergonomics standard would focus on prevention. Employers would face penalties if they failed to put an effective ergonomics program in place or to otherwise adhere to the standard’s requirements.
Washington’s standards apply only where employers identify “caution zone jobs”—those presenting risks such as awkward posture, high hand force, repetitive motion, frequent heavy lifting or hand-arm vibration. Once those risks are identified, employers must analyze the job functions, reduce hazards and put in ergonomic education programs.
The rules will be phased in gradually. They took effect in July for large high-risk employers such as roofers, residential construction companies and nursing homes. They become effective for remaining high-risk employers in July 2003; for moderate-sized employers in July 2004; and for small employers in July 2005. All employers get a two-year grace period on penalties.
The state’s Department of Labor and Industries is working to help businesses understand the rule’s requirements, Silverstein says. “We’re trying out some inspections on a trial basis. Employers want to know what an inspection feels like, what investigators will look for, what they’ll ask. We want them to be sure there will be no surprises.”
The department is also conducting ergonomics workshops for employers. Some of the sessions are specific to certain industries, such as construction, food retailing and landscaping. Others are for employers in general, including those whose work is done in offices.
Brainstorming in the Midwest
In Minnesota, where ergonomic problems arise in the meatpacking and high-technology industries, among others, a legislative proposal this year would have required the Department of Labor and Industry to develop a standard with a June 2004 enforcement date. The proposal cleared the state Senate but was defeated in the House. So, the department set up a 20-member task force that went around the state this past summer holding roundtable discussions, encouraging the public to help brainstorm solutions.
Task force Chairman Philip Jacobs, president of Jacobs Consulting in St. Paul, says, “We’re interested to hear what employers are already doing, especially smaller companies—we’re hoping to find out some creative solutions.”
“There are a lot of low-cost, effective procedures that can be done,” Jacobs says, “and we’re trying to collect information on some of the better ones. They could be program changes—training, education, reporting, for example—or engineering changes, which are physical changes to keyboards or workstations.”
‘Identifying the Best Practices’
Some states are still in the early stages of exploring ergonomics standards. Oregon, for example, has a steering committee examining the matter. North Carolina plans to develop a voluntary guideline to control or reduce ergonomics hazards in furniture manufacturing.
In Rhode Island, lawmakers created a 15-member ergonomics commission to “consider the need for the creation of an ergonomics guideline to protect the workforce and to assist employers in providing a safe workplace.” The commission is responsible for identifying current best practices and educating employees and employers on the value of ergonomic programs.
Hawaii too is considering whether to promulgate an ergonomics rule, says Jennifer Shishido, administrator of the state’s Occupational Safety and Health Division. Currently the state “is enforcing only two aspects of ergonomics—manual material handling and patient handling,” she says, although “the state has been performing outreach and training in ergonomics for over six years.”
Larger companies understand that “ergonomics programs save money” by reducing worker injuries and lowering workers’ comp premiums, Shishido says, but small companies—nearly 95 percent of Hawaii’s employers—haven’t bought into the value of such programs. But with ergonomics injuries accounting for nearly 40 percent of workers’ comp costs, she says, “it would make sense” if they did.
Diane Cadrain is an attorney and has been covering workplace legal issues for 19 years. She is a member of the Human Resource Association of Central Connecticut.