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Ergonomics briefing paper
Statistics on workplace accidents
Frequently asked questions & answers

Nationally and in North Carolina,
ergonomics rules kick in on Jan. 16
Business groups are fuming that President Clinton gave in to demands by OSHA officials and organized labor by imposing ergonomics rules that will take effect on Jan. 16 -- just days before he leaves office. The president's decision nearly led to a shutdown of the federal government last month and has spurred a raft of lawsuits seeking to halt or delay implementation of the new rules (see story at right).

The day after the president signed an executive order authorizing OSHA to implement the ergonomics rules, North Carolina Labor Commissioner Harry Payne adopted the same standards for North Carolina's job-safety program. It was a high moment for Payne, who has tried for two years to impose ergonomics rules on North Carolina employers. However, up to now he has been stymied by NCCBI, which twice persuaded the General Assembly to direct Payne not to spend any taxpayer dollars on ergonomics.

By adopting the federal standard, the state Labor Department will add the ergonomics regulations to all the other workplace regulations it now enforces. Employers here will have until October before state OSHA inspectors begin enforcing the new rules. 

Payne's decision to adopt the federal ergonomics standard by reference is required under the agreement with the federal government that allows North Carolina to run its own job-safety program. But Payne didn't have to act so fast. The state had six months to adopt the federal rule or tailor one of its own. But Payne -- who didn't seek re-election to a third term -- would have been out of power by then.

Although legal actions are in the works, as it stands now almost every business in North Carolina, and more than 6 million nationwide, will be subjected to the new regulations effective Jan. 16. Businesses will have until October to get geared up and become ready to comply.

Because the president acted before a National Academy of Sciences study has been completed, a debate continues raging over whether the rules, as written, will be effective at curbing repetitive motion injuries. ``We don't think there is any scientific basis to say how many repetitions are too many, how much weight is too much,'' said Stephen Bokat, senior vice president and general counsel for the U.S. Chamber of Commerce. NCCBI is the state affiliate of the U.S. Chamber.

Bokat and others said OSHA should have issued nonbinding ergonomics guidelines instead. The National Association of Manufacturers (NAM) and other business organizations contend OSHA grossly underestimated the cost of the regulations. OSHA puts compliance costs at $4.5 billion, but one industry study concludes the new rules would cost U.S. businesses more than $90 billion a year. A study by the NAM, with which NCCBI also is affiliated, said it would cost the typical company $780 per employee to comply with the ergonomics rules in the first year.

Charles Jeffress, head of the federal OSHA program in the Department of Labor and former head of North Carolina's state OSHA program, said businesses would reap about $9 billion in benefits from the new rules as a result of greater productivity and reduced lost-time accidents. 

On the surface at least, most employers covered by the rule may have to do little more than provide workers with information about ergonomics-related injuries and their symptoms. But the trouble comes when a worker complains. See Frequently Asked Questions below.

If just one employee reports symptoms of a musculoskeletal disorder -- such as carpal tunnel syndrome, back pain or tendinitis -- the employer must determine whether that problem is connected to the job. If so, the worker is entitled to medical care and time off with pay. The employer must then find out if that job exposes workers to risks and take steps to reduce the hazards. That could include altering work stations, redesigning facilities or changing tools based on injuries.

The ergonomics standards, which were 10 years in the making, were so contentious that they helped torpedo budget negotiations between the White House and Republican lawmakers. The impasse helped stall final agreement on the $350 billion spending bill for the departments of Labor, Health and Education. Both the Republican-controlled House and Senate opposed OSHA's plans to issue the rules before the National Academy of Sciences completed its own ergonomics study, and stipulated that in the b udget bill for the agencies.

If an employee complains and if a musculoskeletal disorder is determined to be work-related, employers must look more closely at the nature of the job to see if it exposes workers to risk factors that include:

Repeating the same motions every few seconds.
Using a keyboard or mouse for more than four hours a day. 
Repeatedly working with the hands above the head for more than two hours a day.
The employers then would have to take steps to reduce these hazards.

Questions are being raised over whether, and how easily, the next president could undo Clinton's imposition of the rules. "If a Bush administration wanted to overturn them, they would have to go through a lengthy rule-making process," one senior House Republican aide said.

Such a challenge, critics said, would almost certainly draw a counterattack from organized labor, and lead to a costly, drawn-out and uncertain court fight. But Jeffress disputed that assertion. "If the next president determined that there is no basis for the rule, all it takes is to give 30 days notice, have 30 days comment, and then a decision," Jeffress said in a New York Times article.

NCCBI joins suit
filed by coalition over 
new ergonomics rules 
NCCBI has joined a lawsuit filed by the National Coalition on Ergonomics (NCE) seeking to halt or overturn actions by the Occupational Safety and Health Administration to impose ergonomics regulations.

NCCBI President Phil Kirk said the association agreed to be named as a party in the action at the request of the National Association of Manufacturers, a major player in the NCE.

NCCBI's action came as several national business organizations, including the U.S. Chamber of Commerce, sought help from the courts over the new workplace rules.

"You cannot do something this big this fast and still do it right," said Mike Baroody, the NAM’s senior vice president for policy, communications and public affairs. "If OSHA were serious about a sensible rulemaking, it simply could not have finalized the ergonomics regulation in less than a year."

"OSHA’s regulatory juggernaut has violated employers’ right to due process, by failing to provide a clear standard regarding which workplace circumstances or conduct would meet the obligation to control significant risk," said U.S. Chamber President Thomas Donohue. "OSHA’s refusal to listen to reason as they rushed ahead with this ill-advised and illegal proposal is an example of irresponsible government at its worst."

NCCBI is the state affiliate of the NAM and the U.S. Chamber of Commerce.

The NAM filed a petition for review – on its own behalf and in the interests of the broader business community – in the U.S. Court of Appeals for the D.C. Circuit on grounds that it is unsound procedurally, scientifically and legally. The National Coalition on Ergonomics and other major business groups support the NAM in pursuing a legal remedy, with more expected to join as the process moves forward.

"Our other objections to the rule are by now well known: it reaches beyond the workplace to make employers liable for injuries aggravated, but not caused by, work; it overrides existing workers compensation laws and creates a ‘most-favored injury’ status for ergonomics; and, its finalization now ignores the will of a bipartisan majority in both houses of Congress, which voted to block implementation of the rule," Baroody continued.

The NAM and the business community overall contend that OSHA’s rush to regulate on ergonomics has led to a rule that is too broad, overly vague and unsound scientifically. "While OSHA will say this is a standard more than 10 years in the making, the proposed rule was published – complete with errors – less than a year ago. We’re talking about the most far-reaching and costly rule in the agency’s history, and we think 11 months is a fraction of the time needed to develop an effective regulation."

The NAM noted that OSHA has pressed on with  publication on the final rule despite a steady decline in ergonomics complaints, according to the Bureau of Labor Statistics.

Ergonomics Briefing Paper
Prepared by the National Association of Manufacturers 

The type of workplace injuries the ergonomics regulations will attempt to reduce -- the so-called musculoskeletal disorders or MSDs -- already are declining precipitously and are at their lowest level since the Bureau of Labor Statistics (BLS) began reporting information on them in the 1970s. Recent BLS data shows that such injuries, including carpel tunnel syndrome, have declined by 24 percent since 1994. In North Carolina, the incidence rate is down by about one-third in that same period. More specific data on MSD injuries is included in the statistics story below.

Employers covered by OSHA’s proposed rule (and that's about everyone) will be responsible for taking measures to reduce all MSDs, including carpal tunnel syndrome and neck and back strains, by initiating and maintaining a basic ergonomics program once a single injury is reported in their facility. OSHA considers an injury "work related" if working conditions contributed to the injury, even if non-work factors contributed as well. Further, where typical workers’ compensation rules currently provide two-thirds of an employee’s pay while out of work, OSHA’s rule will require workers to be paid at 90 percent of their pay if claiming an ergonomic injury. OSHA has, in effect, created a "most favored injury" status for ergonomics.

Covered employers must set up an ergonomics program which must include the following elements: (1) management leadership and employee participation; (2) hazard identification and information; (3) job hazard analysis and control; (4) training; (5) medical management and (6) program evaluation. 

In October 1998, Congress approved $890,000 for the National Academy of Sciences (NAS) to conduct an independent, peer-reviewed analysis of the available science on MSDs. The study was needed because the medical community is divided over what causes some people to be susceptible to repetitive motion injuries and how to treat such injuries. The business community believes strongly that the government should wait until that study has been completed, and its recommendations known, before any regulations are implemented.

OSHA’s ergonomics rule defines "work related" even as an injury aggravated by work. Under the rule, any injury sustained away from work but aggravated by work is the employer’s responsibility. For example, a worker strains his back playing softball on the weekend, then aggravates the injury at work Monday morning. Under the new rules, the weekend softball injury now is a worker's comp case.

The NAM supports bipartisan legislation, H.R. 987, "The Workplace Preservation Act," introduced in March of 1999 by Missouri Rep. Roy Blunt and approved by the full House of Representatives in August of 1999 by a vote of 217-209. That bill would prevent OSHA from moving ahead with an ergonomics regulation until a comprehensive review of all medical studies related to MSDs is completed by the National Academy of Sciences.

With a current lack of consensus in the scientific and medical communities on the causes of MSDs, the NAM believes this objective assessment by the NAS of all available data will narrow, if not eliminate, the significant differences of opinion that currently exist regarding ergonomics in the workplace.

On May 24, 2000, during the House Appropriations Committee consideration of the FY 2001 Labor, HHS and Education appropriations bill, Kentucky Rep. Anne Northup proposed an amendment that would prohibit OSHA funds from being used "to promulgate, issue, implement, administer or enforce any proposed, temporary or final standard on ergonomic protection." It was approved by a vote of 32-22. Most recently, on June 8, the full House rejected by 220-203 a labor-backed amendment, offered by Ohio Rep. James Traficant, that would have stripped the Northup language from the spending bill. The NAM fully supports Rep. Northup’s efforts to keep OSHA from imposing the most expensive and overreaching rule in the history of the agency on manufacturers who, by and large, are already doing the right thing and spending mightily on the safety and health of their employees.

Statistics on Workplace Injuries 
According to the Bureau of Labor Statistics

5.9 million injuries and illnesses of all types, including those so minor that the employee didn't have to miss any work, were reported in private industry workplaces during 1998, according to a recent survey by the Bureau of Labor Statistics, U. S. Department of Labor. The number falls to 1.7 million if you just consider injuries and illnesses that required recuperation away from work beyond the day of the incident. The total number of these cases, which includes MSDs and all other types of on-the-job accidents, has declined each year since 1992. 

  The benchmark for measuring on-the-job accidents and injuries is the number of cases per 100 full-time equivalent workers in one year. Employers reported a 4 percent drop in the number of accidents and injuries in 1998 compared to 1997 even though the number of hours worked rose by 3 percent. That led to a reduction in the case rate of on-the-job accidents from 7.1 in 1997 to 6.7 in 1998. By comparison, the rate was 11.0 in 1973. The 1998 rate is the lowest since the Bureau began reporting this information.

Taking the long view, there has been a drop of nearly 61 percent in workplace accidents in the nearly 30 years since the BLS has kept track of the data. 

MSDs, including carpel tunnel syndrome and other repetitive-motion injuries, accounted for 592,500 of the 1.73 million workplace injuries recorded in 1998 -- or about one in every three that required recuperation away from work beyond the day of the incident.  More than 4 out of 10 of all the 1.73 million lost-time injuries and illnesses in 1998 were sprains or strains, most often involving the back. The number of sprains or strains cases declined by nearly 26 percent from 1992 to 1998, which was about the same as the decline for all cases. 

Men accounted for two out of three of the 1.7 million cases, a proportion somewhat higher than their share (59 percent) of the hours worked by all private wage and salary workers. 

Workers aged 24 and under accounted for 15 percent of the cases and 14 percent of the total hours worked. Those aged 25 to 44 accounted for 56 percent of the cases and 55 percent of the hours worked. Workers aged 45 and older accounted for 27 percent of the cases and 30 percent of the hours worked. 

Operators, fabricators and laborers led all other occupational groups, accounting for 42 percent of the case total. 

Almost 6 out of 10 workers had at least a year of service with their employer when they sustained their injury or illness. Indeed, over a fourth had over 5 years of service, suggesting that even experienced workers incur lost worktime injuries.

Sprains and strains was, by far, the leading nature of injury and illness in every major industry division, ranging from 34 percent in agriculture, forestry, and fishing to 51 percent in services. 

The trunk, including the back, was the body part most affected by disabling work incidents. 

"What kinds of conditions is OSHA talking about?"
Injuries of muscles, nerves, tendons, ligaments and joints, including many strains and conditions of ordinary life. Covered are complaints of "low back pain", "sciatica", "trigger finger", "rotator cuff syndrome", "tendinitis", and carpal tunnel syndrome, among others.

"I've heard that our safety incentive programs and even our workplace drug testing policies have to be reconsidered under the OSHA proposal. What do they have to do with ergonomics?"
OSHA would require all manufacturers to "reconsider" policies and practices that may make employees reluctant to report MSD signs and symptoms. In OSHA's view, safety incentive programs can have that effect, as might requirements that all employees reporting accidents must submit to a drug test.

"How are MSDs reported?"
First, you must give employees information about "common MSD hazards" as well as the signs and symptoms of MSDs. Second, you must set up a way for employees to report such signs and symptoms to the company, and get responses. Third, you must provide "MSD (medical) management", including an assessment of whether work restrictions are necessary (with accompanying wage protection requirements), access to a health care professional at no cost to the employee, and a written opinion regarding the employee's condition.

"What's the significance of an MSD report?"
Once a single MSD is reported, you can attempt to eliminate the related "hazard" via OSHA's "Quick Fix" method. If that is unsuccessful or if another MSD occurs, you must set up the complete ergonomics program. This includes "job hazard analysis and control", "training", "MSD management (including wage replacement in many instances) and program evaluation.

"What are 'problem jobs'?"
A "problem job" is any and every job in which an MSD is reported. The resulting obligations also apply to any other job in that workplace that involves the same physical work activities and conditions as the one in which the MSD is reported.

"Are any requirements triggered once a position is labeled a 'problem job'?"
After you survey employees on the physical difficulties of the job, you must observe the job and evaluate the "hazards" posed by ergonomic "risk factors", such as "force", "repetition", "awkward postures", "contact stress", "cold temperatures" "static postures", "vibration" and others. You must then implement "feasible" controls -- remembering that OSHA's preference is for engineering changes, rather than administrative controls or personal protective equipment. Thus, a "fix" dictated by the rule can include things from new tools to increased staffing (to minimize repetition and repeated exposures) to automating various processes. You also have an ongoing obligation to "periodically look to see whether additional controls are now feasible and, if so, implement them promptly".

"When can I be sure that I'm done and have met my compliance obligations?"
Good luck guessing! Until you implement "controls" acceptable to OSHA that completely eliminate "problem jobs" and "MSDs", you will be under obligations to take further steps, monitor the impact of those steps, and go on to make further workplace changes. Will each interim measure you take satisfy OSHA? Will the agency's field compliance officers – likely to be less than knowledgeable about your industry and inexperienced in your manufacturing processes – agree with your conclusions as to what is "feasible" in terms of engineering or other changes? These and other questions are likely to remain unresolved…until that lucky day when your work-site is examined by OSHA inspectors applying compliance guidelines issued by the agency regarding this vague rule.

"What does OSHA mandate for employees who can't work because of an alleged MSD?"
In a startling departure from most OSHA standards, the agency would implement mandated compensation protection for employees who can't perform their regular jobs because of MSDs. Employers would be required to guarantee 100% of normal after-tax earnings of employees on restricted work, and 90% of normal after-tax earnings for employees who are removed from the workplace because of these conditions.

"Some employees who report MSD symptoms engage in activities outside work that are more likely to produce those symptoms more than their jobs. Doesn't that scenario eliminate our responsibilities under the rule?"
No. In fact, OSHA's proposal would limit a company's ability to even identify such outside activities that contribute to reported symptoms, in contrast to virtually every state workers' compensation law. Where signs and symptoms are reported for jobs that include a degree of lifting, repetition and other requirements, there is no practical way for an employer to avoid the OSHA's rule's responsibilities, even where the individual's signs and symptoms are more closely linked to outside activities.

"Doesn't this treat MSDs differently than other workplace injuries?"

Yes, it establishes these as the "most favored" condition, guaranteeing compensation at levels above those now provided for more traumatic and severe injuries and illnesses by almost all workers' compensation programs and disability insurance policies. (Also guaranteeing that this diagnosis will be triggered more frequently, in order to secure these "protections").

"We've covered ergonomics issues for years under our workplace safety & health program. We've achieved some improvements. So, I'm right to assume that this proposal is not a big deal for us, right?"

  Do you guarantee 100% of after-tax for up to 6 months for employees on restricted work for an MSD? Do you guarantee 90% of after-tax earnings of employees out of work for MSDs? Are you limited in learning about non-work activities that might contribute to such "compensable" conditions? To these and other important questions, even those employers with comprehensive safety & health programs that cover ergonomics issues would answer "no". The OSHA standard would impose these and other stringent practices, even in workplaces where current programs have been very successful.

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