On April 5, 2002, more than a year after President Bush signed the resolution repealing the OSHA ergonomics standard and promised to pursue a “comprehensive approach” to ergonomics, the Bush Administration announced its intention to pursue a collection of vague, voluntary measures that provides no real protection for workers.

During the March 2001 debate on repealing the OSHA ergonomics standard, Secretary of Labor Elaine Chao promised Congress that should the standard be repealed, the Administration would “pursue a comprehensive approach to ergonomics, which may include new rulemaking.”

• But instead of a standard that would require employers to protect workers by reducing exposures to ergonomic hazards, the Bush Administration ergonomics “plan” includes Voluntary guidelines, instead of a mandatory standard, with unspecified publication dates, and addressing a number of industries and processes, only one of which—nursing homes—has been identified. These guidelines will not be used for enforcement even when they are blatantly violated.
• Enforcement under the General Duty Clause, an extremely time consuming, expensive and burdensome process that OSHA only considers after large numbers of workers have been seriously injured.
• Compliance Assistance, including training grants and fact sheets, measures that have been used over the past ten years without significantly reducing the number of MSDs plaguing American workers.
• An unneeded and redundant research component that will provide a forum for those who continue to insist there is no science.

Undermining the plan even further are:

• Cuts in the OSHA budget, particularly in enforcement, training and outreach, as well as in the NIOSH research budget;
• OSHA’s refusal to publish a definition of a musculoskeletal disorder that employers can use to decide how to record injuries;
• The Bush Plan only applies to states covered by federal OSHA, not to the 23 states and territories that operate their own state OSHA plans.  Under the OSHAct, if OSHA issued a new ergonomics standard, states would be required to adopt a standard that was as effective as the federal standard and enforce it, but states are under no obligation to follow the voluntary ergonomics plan set forth by the Administration

The “plan” offers no real protections for workers.  Despite their claim that this is a “major improvement” over the rejected ergonomics standard and will “dramatically reduce ergonomic injuries,” the plan actually provides workers with far less protection against ergonomic hazards than the first Bush Administration.  In the early 1990’s the Labor Department issued ergonomic guidelines for the meatpacking industry, took major enforcement actions in high risk industries under OSHA’s general duty clause that required employers to fix hazardous jobs, conducted extensive training and outreach, hired professional ergonomists at OSHA, and initiated rulemaking on a mandatory OSHA ergonomics standard.

The Bush Ergonomics Plan is an empty shell that includes no specifics nor any factual basis or rationale.  The Bush plan doesn’t even reveal how DOL will define an “ergonomic injury,” or how the agency will determine whether injuries are work-related, saying only that they are considering narrowing the definition “as appropriate to address the specific workplace hazards covered.”

The 4-pronged Bush Administration Ergonomics Initiative includes:

Voluntary Guidelines:

OSHA will begin work on developing voluntary industry and task-specific guidelines and will encourage other businesses and industries to develop their own. OSHA expects to begin releasing guidelines this year.

• The Bush Administration has identified only one industry—nursing homes—for which guidelines will be written, but refuses to provide any timeline for completion.
• The guidelines will be totally voluntary. The Bush Administration has stated that failure to comply with the guidelines will not be a basis for enforcement action under the General Duty Clause.
• Voluntary approaches alone have failed to protect workers from work-related musculoskeletal disorders (MSDs).  According to employers’ own reports, 1.8 million workers continue to suffer MSDs each year and OSHA reports that only 16 percent of employers in general industry have put in place ergonomic programs to reduce hazards. Year after year, MSDs consistently account for more than one-third of all workplace injuries involving days away from work. Overall the number of MSDs has remained the same for the past several years.  But in a number of high-risk sectors, including nursing homes, air transportation and trucking and courier services MSDs have increased.  Similarly, the number of MSDs suffered by construction laborers and cashiers have also increased.
• The large number of MSDs afflicting American workers is not due to lack of information or assistance available to employers, but the unwillingness of many employers to invest in preventing these injuries.  Plenty of industry and task specific guidelines already exist and have existed for years.  And industry has always been free to develop its own guidelines with or without OSHA’s assistance, encouragement or permission.
• As stated in the preamble to the 1999 proposed OSHA ergonomics rule, “Promulgation of an ergonomics rule will add the only tool the Agency has so far not deployed against this hazard—a mandatory standard—to these other OSHA and employer-driven initiatives.”

Enforcement:

OSHA will use the “general duty clause” to crack down on “bad actors” and designate 10 regional ergonomic coordinators and involve them in enforcement and outreach.

• Use of the General Duty Clause (Section 5(a)(1) of the Occupational Safety and Health Act [1] ) to require employers to address ergonomic hazards is not new, nor is it an adequate substitute for an OSHA standard.  In the 1980’s and 1990’s the Reagan and Bush Administrations successfully used the General Duty Clause to enforce against ergonomic hazards in meatpacking, poultry, auto assembly and other high risk industries.  But subsequent employer challenges to enforcement actions and legal decisions made the use of the General Duty Clause much more difficult.
• Using the General Duty Clause to enforce against ergonomic hazards is extremely expensive, resource-intensive and time consuming for the agency.  Citations challenged by employers often take years or even a decade to reach conclusion and cost millions of dollars per case.  For example, in the Pepperidge Farm case, one of the cases cited in OSHA’s plan, the original inspection took place on June 23, 1988, the citation was delivered in December 1988 and the final Occupational Safety and Health Review Commission (OSHRC) decision came down on April 26, 1997.  By that time, the plant had been shut down. The first Beverly Enterprises citation for lifting hazards in nursing homes was issued in 1991 and the final settlement was signed eleven years later in 2002.  During the decade that the cases were being decided and settled, no abatement action was required and workers continued to be injured.
• The General Duty Clause has only been used in cases where large numbers of workers have been seriously injured.  It is not a pro-active approach, nor is it consistent with Secretary Chao’s promise to “Place greater emphasis on preventing injuries before they occur.”
• Under the General Duty Clause, the burden of proof is on OSHA to show for each citation that a hazard exists, that is has caused, or is capable of causing serious injury, that the employer or industry has recognized the hazard and that there are further feasible means of abatement that are needed to protect workers.  Under an ergonomics standard, once OSHA makes a showing that the standard has been violated, the burden is on the employer to show that they are in compliance with the rules or that compliance is impossible. 
• The person responsible for pursuing General Duty Clause litigation, Solicitor of Labor Eugene Scalia, wrote in 2000 that “OSHA should cease its general duty clause litigation” because of “devastating losses” in the two cases that OSHA now holds up as examples of how it will pursue General Duty Clause citations. [2]
• While the Bush Administration states that it intends to conduct more resource-intensive General Duty citations, OSHA is cutting its enforcement budget by half a million dollars.
• OSHA has failed to identify any industries that it will target for ergonomics enforcement (aside from a previously announced, but not yet initiated program targeting nursing homes) or how many inspections it will conduct.  OSHA has also failed to set forth the procedures and criteria it will use to determine if citations for general duty clause will be issued, or if employers will receive non-binding warning letters.
• Ergonomics coordinators are not new.  OSHA has had regional ergonomics coordinators since 1987. 

Compliance Assistance

OSHA will provide specialized training and information on guidelines, “administer targeted training grants, develop compliance assistance tools, forge partnerships and create a recognition program to highlight successful ergonomics injury reduction efforts.”

• OSHA has been providing valuable compliance assistance on ergonomic hazards since the 1980’s. OSHA hired its first ergonomist in 1979, held its first training course on ergonomics in 1983 and published ergonomics guidelines for the red meat industry in 1990.  Over the past decades, OSHA has provided millions of dollars in training grant programs and has produced, along with NIOSH, numerous publications, videos and computer tools on preventing ergonomic hazards. OSHA has held numerous stakeholder meetings and conferences, including a major national best practices conference cosponsored with NIOSH, attended by over 1,000 participants, in Chicago in 1997, as well as ten regional best practices conferences in 1998 and 1999.
• Compliance assistance is useful and important, but once again, the Bush Administration is all talk and no action.  The Bush budget cuts OSHA’s overall Compliance Assistance budget (Federal Compliance Assistance, State Compliance Assistance and Training Grants) by over $4 million in the FY 2003 Bush budget.  The Bush budget calls for a huge $7 million, 64% cut in the FY 2003 OSHA training grant budget and converts a growing training program that has successfully provided face-to-face training for tens of thousands of workers every year, into a much smaller internet and web based program only accessible to those with suitable jobs or technology.
• Meanwhile, for FY 2002, the administration has announced the premature termination of an existing highly successful long-term grant program that targets ergonomics and immigrant workers despite the fact that Congress provided the money specifically for this program.

Research:

OSHA is chartering a national advisory committee to advise OSHA on research gaps. OSHA will also serve as a “catalyst” to “stimulate and encourage” additional research.

• Research gaps on work-related musculoskeletal disorders and ergonomics have already been extensively studied and identified by two Congressional mandated National Academy of Sciences reviews, published in 1998 and 2001, at a cost of almost $1.4 million.  NIOSH also conducted a 600 page, $1 million literature review in 1997 that also identified research gaps.
•  NIOSH, not OSHA, is the agency established and designated by the Congress under the OSHAct to conduct and encourage research in occupational safety and health. NIOSH has worked for years, most recently through its National Occupational Research Agenda (NORA) initiative to identify the research needs and priorities on ergonomics and stimulate and fund additional research in this area.  In its FY 2003 budget, the Bush Administration has proposed to cut $20 million from the NIOSH budget and the National Occupational Research Agenda (NORA) program.
•  The OSHA research advisory committee would be redundant and is not needed.  Numerous OSHA and NIOSH advisory committees already exist that provide guidance and advise to the agencies on safety and health issues, including ergonomics and ergonomics research.  The National Advisory Committee on Safety and Health (NACOSH), the statutory advisory committee established by Congress in the OSHAct, has an ergonomics subcommittee and provides extensive guidance to both agencies on ergonomics.  OSHA’s Advisory Committee on Construction Safety and Health (ACCOSH) and Maritime Advisory Committee for Safety and Health (MACOSH) have spent significant effort developing advice and recommendations on ergonomics.
• NORA has had a musculoskeletal disorders team for 5 years which has broad representation from the ergonomics community and whose mission it is to develop a comprehensive research agenda, facilitate development of partnerships directed at implementing successful control strategies and to provide a framework for increasing funding for research.  In 2001, after numerous public meetings and input from hundreds of employers, unions, researchers and others, the NORA MSD team published a research agenda on ergonomics entitled Research Topics for the Next Decade and is partnering with foundations and other groups to collectively work on the research agenda. 
• In addition to the NORA ergonomics team, NIOSH also has a Board of Scientific Counselors, established under the Federal Advisory Committee Act, which provides oversight and advice on all NIOSH research initiatives, including ergonomics.
• While research gaps exist and have been identified, a large community of medical and health experts is on record that the scientific evidence on musculoskeletal disorders is sound and that an OSHA ergonomics standard is needed to protect workers.  In response to the Bush Administration’s announced plan to rely on voluntary measures, the American College of Occupational and Environmental Medicine (ACOEM), the American Industrial Hygiene Association (AIHA), the American Society of Safety Engineers, the American Public Health Association (APHA) and the American Nurses Association have all reaffirmed the need for a mandatory ergonomics standard to protect workers.
• This “new” research initiative seems to be an attempt by the Bush Administration to provide a forum for those who persist in claiming that there is no science behind ergonomics and that ergonomic injuries are due to workers’ inability to “cope” with their jobs.