Ergonomics Resurfaces in Both Washingtons
Webster's dictionary defines ergonomics as "an applied science concerned with designing and arranging things people use so that the people and things interact most efficiently and safely ? also called human engineering."
Just as there are different types of engineering ? electrical, mechanical, civil and environmental, computer and aeronautical ? "human engineering" or genetics comprises a rather vast and complicated universe in and of itself.
Often the number of engineers you have on one project is equal to the number of solutions put forth to address a structural problem. Every engineer will offer a different approach to resolving the problem, each with a different result.
Because no two humans have the same genetic makeup, no scientists or doctors are ever likely to agree on how best to treat a genetic disorder, whether it's musculoskeletal or intestinal.
More to the point, can any doctor or scientist really accurately determine whether a musculoskeletal disorder (MSD) is related to one's daily work activities or was acquired after normal working hours doing simple household chores? Can anyone envision a little ergonomics robot following us home to monitor our physical activities, thus ensuring all workmen's comp complaints are actually valid? You get the picture, I'm sure.
With that in mind, it is difficult at best to understand how a handful of bureaucrats and politicians at the federal and state level could actually conceive of a one-size-fits-all regulation addressing work-related musculoskeletal disorders and other so-called ergonomic hazards for the diverse range of industries we have across our country.
MSDs result from a variety of different risk factors and methods used to eliminate or substantially reduce those workplace hazards vary greatly among different processes in different industries. These complex issues, and others, make including such a wide range of industries in one ergonomic rule both undesirable and virtually impossible.
Regrettably, however, Senator John Breaux (D-La.) and others have sponsored a bill, S. 2184, which would require the Occupational Health and Safety Administration (OSHA) to include all industries in an ergonomics rule ? a rule that could be even broader than a Clinton Administration regulation overturned by Congress in March.
S. 2184 would include construction, agriculture and maritime, as well as general industry. No exceptions. Worse still, the legislation mandates that OSHA consider outdated scientific information that may be irrelevant to promulgation of a new standard. Application of ergonomic standards is completely subjective; experience has shown that a tailored approach to standard setting tends to produce better results. However, the Breaux legislation is not reflective of that reality.
In June, the Health, Education, Labor and Pensions Committee reported S. 2184 to the full Senate, and Breaux and the other cosponsors of the bill are anxious to have it brought up for consideration. The U.S. Department of Labor has made known its opposition to this bill and promises a Presidential veto should it pass both Houses of Congress.
In expressing her views to the Committee, Labor Secretary Elaine Chao argues that, "S. 2184 would require the Department to issue a standard in a very complex area where we have judged a standard to be unworkable at this time and ineffective at achieving our goals for reducing ergonomic hazards in the workplace. We believe that passage of S. 2184 would further delay any real action to address ergonomic hazards as employers put their current ergonomic hazard abatement plans on hold while awaiting a new federal standard.
"Moreover, S. 2184 would require the Department to divert resources from our current efforts to immediately address ergonomic hazards to the development of a new standard which would take, at a minimum, years before it became effective and provided any relief whatsoever to America's workers."
Notwithstanding that veto threat, the proponents of ergonomics regulations have yet another iron in the appropriations fire and we may well have a fight on our hands related to this issue now that the Senate has returned from its August recess.
As reported in this magazine, the Fiscal Year 2003 Labor/HHS Appropriations bill contains $2 million for the promulgation of a new ergonomics standard by OSHA within two years. Although the Department of Labor is not bound by the appropriations language to actually come up with a new standard, it could just be the nose under the camel's tent, prompting action by the full Senate on S. 2184.
On the other Coast
In the interim, however, it is important that everyone in the industry keep an eye on ergonomics developments at the state level. Washington State, for instance, has an ergonomics regulation in place now ? although actual enforcement of those standards has been delayed for two years in order to allow employers more time to understand the requirements of the State's rule.
In a nutshell, the purpose of the Washington State rule is to "reduce employee exposure to specific workplace hazards that can cause or aggravate work-related MSDs." Employers with "caution zone jobs" ? jobs where an employee's typical work activities include a host of specific physical risk factors such as awkward posture, highly repetitive motion, heavy, frequent or awkward lifting, moderate to high hand-arm vibration, etc., are covered by the rule. Typical work activities are those that are a regular and foreseeable part of the job and occur on more than one day per week and more frequently than one week per year.
The problem with this approach, however, is that no consideration is given to any employment facility's safety and health history. In order to demonstrate compliance with the proposal, all job analysis, job design, modification and employee training would have to be documented by the employer for each facility, and possibly for each job. This would be a costly undertaking for every employer, no matter what its size.
Furthermore, the cost of instituting changes to each job could be prohibitive, particularly since the lack of any scientific and medical evidence will force employers to engage in costly trial and error experiments that are neither justified nor cost beneficial.
What is more disconcerting, however, is the physical risk factors in Appendix B of the rule were adopted as part of the Clinton Administration rule finalized in November 2000. Congress rescinded that rule in part because there was no guidance for how employers should measure time restrictions for hazardous activities.
For example, a squatting duration of four hours is the proposed threshold in Appendix B of the Washington state rule. But will employers be required to time the duration of each squat or the period over which many squats are taken? This type of analysis would require significant expertise and expensive equipment that is largely unknown to most employers. The specifications for hazardous exposures defined in these appendices have no basis in scientific research.
Although a group of Washington State businesses sued the Department of Labor Industries over the rule, claiming, among other things, that they exceeded their statutory authority, a County Court upheld the standard. Those same businesses are considering an appeal.
Because the State of Washington will not be enforcing these new standards for another two years, it is understandable that industries of all types would be slow to adopt changes in their work force habits. But it would also be shortsighted of those industries to rely on the overtures of gubernatorial candidates who might rescind these rules and completely ignore any evaluation of potential workplace hazards that could be minimized with little effort.
Much work has gone into the development of the Washington State standards and training and educational materials are available from resources within the masonry industry. We might all agree with the old adage "if it ain't broke, don't fix it," but if the Washington State standards are here to stay and they continue to set a precedent for national standards, it is in everyone's interest to try and make them understandable, workable and cost effective.
About the Author
Marian J. Marshall was the Director of Government Affairs for the Mason Contractors Association of America.