Presented ToUS House of Representatives Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs, and the Committee on Government Reform and Oversight
Speaker(s)Dear, Joseph A.
"This document was published prior to the publication of OSHA's final rule on Ergonomics Program (29 CFR 1910.900, November 14, 2000), and therefore does not necessarily address or reflect the provisions set forth in the final standard."
REMARKS OF JOSEPH A. DEAR,
ASSISTANT SECRETARY OF LABOR FOR OCCUPATIONAL SAFETY AND
BEFORE THE US HOUSE OF REPRESENTATIVES SUBCOMMITTEE ON NATIONAL
ECONOMIC GROWTH, NATURAL RESOURCES, AND REGULATORY AFFAIRS, AND
THE COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
JULY 12, 1995
Thank you for this opportunity to discuss the Occupational Safety and Health Administration's activities regarding ergonomically-related hazards in the workplace. Before discussing this important topic, I would like to make a few general comments about the major changes which are taking place within OSHA.
In the past few months, you have heard a lot of troubling stories about OSHA. These stories tell of incompetent inspectors who fine business thousands of dollars for nitpicky violations that have little to do with worker safety. But most of these stories have little basis in fact. Moreover, they fail to acknowledge OSHA's successes in preventing injuries and illnesses, or the improvements the agency has made recently.
The plain truth is OSHA saves lives. Since its creation in 1970, OSHA has performed an invaluable service to millions of America's working families. Through the agency's protective standards and enforcement program, as well as efforts by thousands of responsible employers, the workplace fatality rate has declined substantially. Looking at the 23-year period before OSHA, the average annual decline in fatalities was 139; but since OSHA the decline has improved to 204. Couple these numbers with a more rapid increase in employment since 1970, and the results are even more dramatic -- an estimated 27,700 lives saved in 1993 alone. This 57 percent reduction in the rate of workplace fatalities since OSHA was created is an unquestionable improvement.
OSHA is changing the way it does business. As announced by President Clinton on May 16, OSHA has begun regulatory reform initiatives to enhance safety, trim paperwork, and transform the agency. OSHA is working to carry out the President's commitment. The reforms which are now being implemented are changing the agency's culture -- to ensure that we adequately protect workers without imposing unfair burdens on employers.
In order to accomplish this, we are making every effort to involve the agency's stakeholders in our regulatory process. For instance, OSHA has been working closely with business and labor to develop revised recordkeeping requirements, utilizing the services of the Keystone Group to facilitate the process. OSHA is also undertaking a systematic effort to identify the leading causes of workplace injury, illness and death, in order to establish the agency's rulemaking priorities. We have solicited input from stakeholders through mailings, a Federal Register notice and a series of meetings. We have received more than 100 written comments and direct participation of nearly 200 representatives of labor, industry, professional and academic organizations. When completed, the priority list will reflect a true crosscut of public and private views of where the agency should focus its rulemaking efforts.
The New OSHA
There are three core principles guiding the agency's reform efforts. First, a choice between partnership and traditional enforcement. OSHA has begun to refocus its enforcement and compliance assistance efforts. We believe that our mission to save lives and prevent injuries can be enhanced by making a better effort to identify good actors and treat them differently from bad actors. For employers who have made safety and health a priority, and who seek a productive partnership, we will offer incentives, compliance assistance, training and education -- and we will recognize their good efforts. But for those employers who disregard their workers' safety and health -- and Mr. Chairman, the sad fact is that some still do -- we will continue to vigorously enforce the law. Common Sense Regulation OSHA is changing its approach to regulations by eliminating or fixing out-of-date and confusing standards, by identifying clear and sensible priorities for new rules, and by employing "performance-based" approaches where feasible. As part of its effort, OSHA will rewrite many of its standards in plain language.
Results...Not Red Tape
Many employers have complained that OSHA inspectors care less about worker safety and health than they do about meeting perceived "quotas" for citations and penalties. While OSHA has never used quotas, it has in the past used citations and penalties as performance measures. But not anymore. This year, the new OSHA ended this practice.
A major success story for OSHA in its attempt to work more closely with employers and employees is the "Maine 200" concept. In Maine, OSHA identified the 200 employers with the highest number of injuries and illnesses, and gave them the choice of participating in a new program or sticking with the traditional enforcement approach. Nearly all chose to work cooperatively with OSHA to establish safety and health programs. Doing the job themselves, these employers identified about fourteen times as many hazards as OSHA's small staff of inspectors could have found.
I would be pleased to elaborate on these initiatives during the question and answer period.
OSHA's Ergonomics Initiatives
We also welcome the opportunity to discuss the subject of today's hearing -- ergonomics -- because it too has generated myths and fables that have been widely disseminated. The first myth is that OSHA is on the verge of publishing a final rule; in fact, OSHA is working on a proposal to permit a full and open public discussion. While some OSHA rulemakings may generate broadly divergent views among interested parties, the best way to ensure full and fair debate on such issues is by the publishing of a proposed rule. OSHA believes that this first step is critical. It represents the agency's initiation of the formal public participation process, the only process that assures that everyone who is interested will have the opportunity to provide written comments and oral testimony.
In this sense, the process of publishing a proposal represents the ultimate peer review of OSHA's data collection and analysis, as well as the underlying science.
Scope of the Problem
OSHA estimates that work-related musculoskeletal disorders in the United States range from more than 700,000 lost workday injuries and illnesses (30% of the all lost workdays reported to BLS) to more than 2.7 million annually awarded workers compensation claims because employees work in jobs that are not properly designed. These jobs appear in all types of industries and in all sizes of facilities. Many of these disorders can be prevented by the application of ergonomics in the workplace.
They occur in exposed workers in all parts of their bodies--the upper extremity, lower extremity, and back. An example of the magnitude of the problem involves repeated trauma to the upper extremity, or that portion of the body above the waist, in forms such as carpal tunnel syndrome and shoulder tendinitis. In 1993, employers reported 302,000 upper extremity repeated trauma cases, for example, while in 1981, the number was only 22,700. Adjusting the data to reflect changes in the size of the employee population indicates that there has been a greater than 7-fold increase in such cases in the last ten years. In industries such as meat packing, 13 out of every 100 workers report a work-related musculoskeletal disorder related to repeated trauma each year. In automotive assembly, 8 out of every 100 workers are affected.
The number of work-related back injuries occurring every year is even larger. Industries reporting a large number of cases of back injuries include hospitals and personal care facilities.
These disorders are the result of stresses to various body parts caused by the way the work is performed. The positioning of the body and the type of physical work that must be done to complete the tasks of a job may cause persistent pain and lead to deterioration of the affected joints, tissues, and muscles over time. The longer time the worker must maintain a fixed or awkward posture, exert force, repeat the same movements, experience vibration, or handle heavy items, the greater the chance that such a disorder will occur. These job-related stresses are referred to as "workplace risk factors," and the scientific literature demonstrates that exposure to these risk factors, particularly in combination with each other, significantly increases an employee's risk of developing a work-related musculoskeletal disorder.
One dramatic illustration of the societal effect of these disorders is the skyrocketing cost of the workers' compensation claims related to them. Work-related musculoskeletal disorders now account for an astounding one out of every three dollars spent on workers' compensation. It is estimated that employers spend $20 billion a year in direct costs for workers' compensation, and up to five times that much for indirect costs, such as those associated with hiring and training replacement workers.
In addition to these monetary effects, these disorders often impose a stunning personal toll on workers who experience their effects. We have heard people say that OSHA is promulgating a "comfort" standard, and that every minor ache and pain in the workplace will now be regulated. This is simply not true. Any proposed ergonomics standard would focus on those jobs with the highest risks. The workers whose livelihoods have been curtailed as a result of these disorders, who have suffered permanent disability, and whose quality of life has been drastically impaired, deserve attention to this compelling and serious occupational health problem.
The Department of Labor has received over a thousand letters and more than 10,000 petition signatures from workers asking OSHA to promulgate a standard to prevent work-related musculoskeletal disorders. There has rarely been such broad grass roots demand for an OSHA standard in the agency's 25-year history. This far-reaching support is due to the fact that ergonomic-related disorders are widespread, crossing over all industries and all levels of education. We have provided copies of some of these letters for the record.
Many of the most severely impacted employees are those who are also the most disadvantaged members of the workforce. They have little education or training to allow them to perform other types of work. Their wages are low and thus compensation for injuries, when received, is even lower. And they are frequently women or members of other minority groups. Garment workers are an example of a worker population that has serious problems. One story we received told of a garment worker who stitched shoulder pads, and whose pay was determined by the number of pieces completed. In order to earn enough money, she had to complete as many pieces as possible. She eventually reached the point where she could hardly move by the end of the day. As the damage to her body progressed, all aspects of her life were affected. Now she not only cannot work, but is unable to comb her hair, button her clothes, or brush her teeth.
Late last year, Wall Street Journal reporter, Tony Horwitz, described his experience working in poultry processing facilities in an article that recently won a Pulitzer prize. Mr. Horwitz experienced firsthand the difficult conditions under which this work is performed: "Packed tightly and working quickly with knives and scissors, workers often cut themselves and others. Floors that are slick with wash water and chicken bits add to the hazard. And though most tasks at first appear undemanding, if unpleasant, they quickly become grueling as the same motion is repeated, at rapid speed, for eight hours or more." He further noted that: "The work was often so fast-paced that it took on a zany chaos, with arms and boxes and poultry flying in every direction." Poultry processing workers often develop carpal tunnel syndrome as a result of their working conditions.
Other workers who are severely impacted are those whose jobs require heavy lifting or moving. Nursing home workers are an example of these--particularly those who must handle patients. For example, one such worker whose back was injured twice reports she is now experiencing chronic pain, and is unable to perform such personal activities as grocery shopping, lifting her grandchild, or doing housework.
One of the ironies of the increased use of computers is that highly skilled and educated workers are now also subject to the development of these occupational disorders. For example, a number of journalists or writers have found their lives and livelihood affected by carpal tunnel syndrome developed from keyboard use at work. One wrote an article she sent to us which described her inability, at the age of 26, "to drive a car, type, lift anything heavy, or even write with a ballpoint pen."
OSHA believes that the number and severity of these disorders require that something be done to prevent them from occurring. As a physician wrote to OSHA in a letter regarding his experiences treating patients with work-related musculoskeletal disorders: "The gradual shrinkage of virtually all activities of daily living leads to a pitifully circumscribed life style that is difficult for many to bear." Work conditions which lead to such disorders cannot be considered a "safe and healthful workplace," nor are they trivial matters of discomfort.
What is "Ergonomics?"
Ergonomics is the science which prevents injuries to workers by fitting the job to the person, rather than the person to the job. An ergonomic evaluation would examine the jobs or tasks, the workstation, equipment used, and processes needed to complete the work. Then these elements of the work environment can be designed or modified so that workers can perform safely. When a job is designed without considering the worker, it will not be done in the most efficient or effective manner.
Use of ergonomics design principles is good for business--both in terms of productivity of the work process and quality of the product. "Ergonomics" is thus the solution--not the problem.
Availability of Solutions
The evidence OSHA has collected over the past few years indicates that the problem is significant and suggests that there is a strong basis in medical science to initiate rulemaking in this area. This evidence has led to the agency's conclusion that a common sense strategy regarding ergonomically-related hazards must be developed. OSHA believes this strategy should consist of consultation, training and education, labor and industry partnerships, sensible and appropriate regulatory approaches and a sensible enforcement/litigation strategy.
In fact, many employers have recognized the problems and implemented successful solutions. OSHA has met with many companies, such as AT&T, Dupont, and Hewlett-Packard, that have voluntarily implemented ergonomics programs. The agency has also collected dozens of success stories from companies which report significant benefits from their programs. Savings in workers' compensation costs are generally a large part of the measurable benefits. In addition, such employers report increased productivity, decreased absenteeism and turnover, and increased employee morale. We have provided for the record of this hearing a summary of a number of these success stories.
There seems to be a misconception that ergonomics programs always entail complete redesign of the workplace or the way the work is performed. In fact, many of the effective control measures implemented by employers are simple and cheap. For example, the employee may simply need a rubber mat to stand on while working. Or a rigid chair may be replaced by one that is adjustable. Complete redesign of the entire work process is rarely required to achieve significant reductions in risks. Employees familiar with the process are often best able to both define the cause of the problem and suggest simple solutions.
History of OSHA's Involvement in Ergonomics
While I have made development of a proposed standard to address ergonomically-related hazards a priority in my tenure as Assistant Secretary, the identification of the problem and the determination that there is a need for a standard and other non-regulatory activities were made by my predecessors. In fact, OSHA has been actively pursuing issues related to ergonomics for more than 15 years.
The primary tool available to the agency in the absence of a standard is the employer's responsibility under the general duty clause, section 5(a)(1) of the Occupational Safety and Health Act, to provide a safe and healthful workplace. In the late 1970's, the agency began to issue general duty clause citations to employers in various industries where work-related musculoskeletal disorders were occurring. Over 400 cases have been completed, and the vast majority of them were not contested by the cited employers. Thus these employers accepted the existence of a problem, and were able to abate the hazards using available feasible methods. OSHA began training compliance officers and consultants in ergonomics in 1983, issued guidance for its field staff in 1986 and 1987, and established ergonomic coordinators in the regional offices at that time.
Beginning in 1988, under the Reagan Administration, OSHA entered into a number of corporate-wide settlement agreements with large companies which had multiple facilities with similar operations. Two industries received considerable focus in that regard--red meatpacking and automobile manufacturing. It is interesting to note that according to the latest BLS statistics, these two industries have shown decreasing rates of repeated trauma disorders--caused in large part, we believe, by the programs these employers have implemented as a result of OSHA's enforcement activities.
OSHA has also issued a number of written materials in response to employers' requests for information about ergonomics. In 1990, the agency provided Ergonomics Program Management Guidelines for Meatpacking Plants. While this publication included some information that was specific to meatpacking operations, it also provided general guidance for the elements of a comprehensive ergonomic safety and health program and has been widely used by employers in other industries. Also in 1990, the agency began publishing "Ergo Facts," which are short descriptions of actual problems found in a workplace with solutions that work. In 1991, the agency published two brochures to describe ergonomics and to address work with video display terminals. OSHA also funded seven ergonomic training grants in 1994.
The issue of promulgating a standard to address work-related musculoskeletal disorders has been under consideration for some years. While there have been voluntary activities to address some of the problems, the ever-increasing number of reported cases appears to indicate that employers need more guidance to address these concerns. In 1991, a coalition of unions petitioned the Secretary of Labor for an emergency temporary standard. The Secretary replied in 1992 that the issue did not meet the test for an emergency temporary standard, but that the agency had concluded that there was sufficient evidence available to support the need for developing a standard. Secretary of Labor Lynn Martin stated in April 1992 that: "OSHA agrees that available information ... supports initiation of section 6(b) rulemaking to address ergonomic hazards.... OSHA agrees that ergonomic hazards are well recognized occupational hazards."
As a result, OSHA published an advance notice of proposed rulemaking (ANPR) in August 1992, during the Bush Administration. In support of this action, my predecessor, Acting Assistant Secretary Dorothy Strunk, said: "The continuing rise in the incidence of cumulative trauma illnesses gives credibility to our judgment that emphasizing these problems in our enforcement and standard setting efforts is worthwhile and necessary." The ANPR described some of the information available regarding the extent of the problem, and asked a series of questions to elicit information from the public about the components of existing programs and what people thought should be included in a proposed standard. OSHA received almost 300 comments in response to the advance notice. These comments included significant information about existing programs, as well as many suggestions for the contents of a proposed standard. The comments are part of the public record of this rulemaking.
In addition to the public comments, OSHA has reviewed an extensive selection of scientific literature and other information related to ergonomics, such as the BLS statistics previously described and workers' compensation data regarding accepted claims for work-related musculoskeletal disorders, to form the basis for development of a proposed standard. Literally thousands of articles have been identified and reviewed. In addition, OSHA conducted a computer-assisted telephone survey of more than 3,200 establishments in order to determine current practices in industry. It is the largest data base available regarding the extent of workplace risk factors present in various jobs and industries, and provides indications of industry's response to the problems identified. OSHA has supplemented the survey results by conducting site visits to establishments with programs, and reviewing available case studies.
One of the criticisms we have heard from opponents of this rulemaking is that there is not enough "science" to support the standard, or that the agency does not have sufficient information available. We do not find these arguments convincing given the large amount of available literature and data much of which provides solid evidence regarding this problem, although the conclusions of the available literature and data are not entirely uniform. OSHA's job is to protect employees to the extent feasible, based on the best available evidence. In some cases, this involves a more limited data base then we have for ergonomics, and requires complicated extrapolation from animal data to the worker population.
In this situation, however, our evidence is from human experience since it is based on actual cases reported by employers to BLS, or accepted by various state workers' compensation systems as work-related disorders. This is unusual in the area of occupational health effects, which are typically widely underreported. In addition, there are extensive epidemiological studies that confirm the problem, indicate that it is even more prevalent than the reported cases would indicate, and identify the risk factors that are associated with the development of disorders. OSHA has based its preliminary proposals for specific action to be taken in order to address problems of work-related musculoskeletal disorders based on the collective weight of this evidence. I would be pleased to provide a listing of such studies for the Committee at your request.
Would more information or research be helpful? Of course. But does that mean the agency should wait to address this issue? We don't believe it does. The evidence already indicates that employees are at significant risk of developing work-related musculoskeletal disorders, and that there are existing methods to protect them. It is time to ensure that protection occurs. Does OSHA have all the answers to the questions concerning the appropriate approach to take to protect workers? No, we don't. But the rulemaking process is designed to elicit help from the public in ascertaining the approach to take in the final rule.
OSHA has released to the public not only the pre-proposal draft of the standard, but significant portions of the underlying data review and analysis. The documents released include a detailed summary of the health effects, with cites to the scientific literature. In addition to providing the written text to stakeholders, the draft documents were made available on the Department's computer bulletin board. Over 4,825 copies have been downloaded from this service. OSHA also arranged to make the draft standard available on the Internet through ErgoWeb--an ergonomics project run by the University of Utah. The University arranged the access so that readers could comment on the draft provisions and provide feedback to OSHA.
In addition to its internal analysis of the available data, OSHA has conducted one of the most extensive outreach campaigns on a draft standard in its pre-proposal stage to obtain public input. This has included review of various parts of the documents OSHA has developed by professionals in the field (for example, physicians and nurses have reviewed the medical management provisions and accompanying appendix); having employers "field test" some provisions to see if they work from a practical standpoint; and conducting stakeholder meetings to obtain information regarding what should be in the standard, as well as feedback regarding what OSHA included in the draft proposal.
Based on the questions you posed to OSHA, these stakeholder meetings appear to be of particular interest. We have provided information to you regarding the participants and the details of the meetings. While we have found the pre-proposal stakeholder meetings to be useful and helpful, they are no substitute for the full exchange of information that occurs in the public rulemaking process. We made every effort to include as many interested parties as we could, and to have as many meetings as possible, to address a broad range of concerns. But with an issue that affects as many employers and employees as this one does, all over the country, we only reached a limited number of people and organizations directly.
However, as I mentioned at the outset, the rulemaking process following publication of a proposed rule is the best and broadest opportunity for public input. It is open to any and every interested party. It can also give the other parties an opportunity to read or hear what each other has to say about the issues, and address these concerns in subsequent submissions.
The Next Steps
In terms of a regulatory approach, we are considering the next step, publication of a proposal. This would allow the continuation of the iterative process that is inherent in rulemaking--that OSHA refines and improves the approach as a result of public response and additional information. The agency could then prepare the most sensible and appropriate final rule possible based on consideration of the public record developed--protecting employees in a manner that is effective and feasible.
However, OSHA is also pursuing non-regulatory approaches to address the prevention of work-related musculoskeletal disorders. As the President announced in his report, The New OSHA: Reinventing Worker Safety and Health, the agency will be developing a comprehensive strategy for activities related to ergonomics. The plan is to schedule and conduct stakeholder meetings to obtain input about a common sense strategy to the issue that would include consultation, training and education, labor and industry partnerships, and sensible enforcement/litigation. These meetings will take place during the next few months. Subsequently, OSHA will be developing the strategy by the end of this year.
We believe that OSHA has made a concerted effort to develop an ergonomics proposal using many of the concepts that are now being considered in the regulatory reform bills. The agency has made a preliminary assessment of the costs and benefits of the regulatory alternatives, and believes that the benefits--even when conservatively estimated--significantly outweigh the costs. An initial risk assessment has been conducted, and suggests that workers may be at significant risk. These studies have used currently accepted scientific methodology. Extensive efforts have been made to obtain public input and professional review of the documents at an early stage. We would look forward to the rigorous peer review which typically follows publication of an OSHA proposal. Following publication of the proposal, there would be a period for written comments, and a public hearing to allow oral testimony. A post-hearing comment period would also allow hearing participants to provide additional information, and their summaries of the proceedings.
Yet despite this careful process, efforts are being made to stop the rulemaking. OSHA believes that the best way to conduct a thorough public debate on this critical problem, and to arrive at the most appropriate, effective and feasible solution, is to proceed with our open, deliberative process. But intervention at a very early stage in the process precludes the majority of the public from participation, and may prejudge the issue without regard to the facts. This is not in the interest of either good regulation or good science.
OSHA would be happy to provide any additional information we have to further these discussions. Ultimately, however, we believe that the well-founded and balanced public process of addressing ergonomics should be allowed to continue in the interest of protecting workers and for the benefit of concerned employers as well.