In the wake of federal legislation scrapping the Occupational Safety and Health Administration’s (OSHA) ergonomics rules, momentum is quietly building on both the federal and state level for some kind of regulatory approach to take their place.
According to a source at OSHA who refused to be identified, Labor Secretary Elaine L. Chao is working quietly to develop a strategy for ergonomics.
“The secretary has said she wants a comprehensive approach,” the source said. “I don’t know at this point whether this means a new plan or a set of rules or what.”
“Nobody here wants to say anything on the record about this,” the source added, also refusing to answer other questions about the timing or nature of any possible action by the Labor Secretary.
In the meantime, both OSHA and the 24 states that have adopted their own OSHA plans must contend with enforcement obligations under the more catch-all provisions of the “general duty” section of the Occupational Safety and Health Act.
While these provisions offer protection to workers exposed to any kind of injury risk, federal and state officials questioned by CFO.com said they were hard to enforce, at least as far as ergonomics is concerned, and admit that citations under the provisions have been rare.
Regulatory ‘Patchwork’ Evolving
To complicate matters, only one of these states, California, already has its own ergonomics plan.
North Carolina, which had put a plan into effect late last year, rescinded it hours before Congress acted March 7 to overturn the federal rules promulgated in January.
Washington has a set of promulgated rules slated to go into effect over the next several years, and at least three more states are either drawing up plans or actively considering doing so, leaving firms doing business in more than one state the task of dealing with a patchwork of regulations that may vary from site to site.
The Federal Approach This leaves both the federal government and the states without specific ergonomics rules dealing with the vagaries of “general duty” enforcement. Under this section, most firms with 11 or more employees are required to keep an OSHA 200 log with a detailed record of all workplace injuries.
Exempted from “general duty” are certain “safer” industries such as finance.
Of the many firms that keep these logs, one for each site, most are never seen by inspectors until after a complaint or injury happens.
“When we go to a site, the first thing we do is ask to see the 200 log,” the OSHA source said.
Once a problem occurs, general duty makes no distinction between ergonomic and other types of hazards. The only requirement is that there be a “generally recognized threat” before action is taken.
While most of these logs are maintained on site, OSHA actively participates in the review of about 80,000 of them.
But, despite these ongoing efforts, no one at OSHA was able to offer any statistics or anecdotal evidence of the frequency or severity of any ergonomic actions taken as a result.
The California Experience On the other hand, California officials, who have had their ergonomics rule since January 1997, are able to offer a snapshot of their enforcement efforts and the dollar impact they have had since implementation.
During that time, the state has conducted 191 inspections based upon reported repetitive stress and other “soft tissue” or ergonomic injuries, according to Dean Fryer, public information officer of the California Department of Industrial Relations.
Of these, 41, or 21.5 percent of the sites inspected, were found to be responsible for 74 violations. The price tag: $122,555 in penalties.
According to the California rules, “two employees performing the same work at the same workplace and receiving the same injury” is the “trigger event” for state action, Fryer said.
Status of Other States
- The state of Washington promulgated its ergonomics rules in May 2000, and they’re scheduled to go into effect starting July 1, 2002, when the firms in the highest-risk industries with 50 or more full-time employees are to complete the first phase — “awareness education and hazard analysis.”
Highest-risk, according to the Washington law, is associated with the following Standard Industrial Codes (SICs): Landscape and Horticultural Services (078), General Building Contractors, Residential Buildings (152), Masonry, Stonework, Tile Setting & Plastering (174), Carpentry and Floor Work (175), Roof, Siding and Sheet Metal (176), Concrete Work (177), Sawmills & Planing Mills (242), trucking & Courier Service, not air (421), Air Transportation, Scheduled and Air Courier (451), Grocery Stores (541), Nursing & Personal Care (805), and Residential Care (836).
These firms are to move beyond “awareness” to the completion of “hazard elimination” by July 1, 2003. All others, down to employers in “safe” industries with 10 or fewer employees, are to be completely on board by July 1, 2006.
According to David Jansen, ergonomics program manager for Washington’s Department of Labor and Industries, his state used a “completely different approach” than the federal code, which was “based on the presence of injuries.”
“We say ‘you need to fix the workplace'” and not wait for injuries, he said.
- Arizona is “in the process of starting to write” its own regulations, said Tony DiDomenico, industrial hygiene consultant at the Industrial Commission of Arizona.
But rather than mirror the rescinded federal rule, Arizona is going to avoid that “part of the standard which we could not adopt” — the part which provides 90 percent or more compensation for injuries, as opposed to the state workers’ compensation law — which provides for 66 2/3 percent compensation to be set by local compensation boards.
The rules are being devised by a panel including the state’s largest employers such as Motorola and the City of Scottsdale, she said.
In the meantime, “we’re advising employers that we intend to enforce ergonomics based upon general duty clause” provisions. “Even though there isn’t a standard, they still have to be aware that they’re responsible for the hazards.”
- Hawaii is also in the process of drawing up its own rules, according to Doreen Miyaki of the state Department of Labor and Industrial Relations.
“We’re looking at six months, at best with no holdups, for the promulgation process,” she said.
Other States Sit on the Fence In addition, some of the other officially “undecided” states are considering or leaning toward passing their own rules.
- Minnesota, which had been prepared to pass its own ergonomics rule until the feds changed course, is among those. “We don’t know what we’re going to do,” said James Honerman, communications director of the Department of Labor and Industry. “We’re looking at options.”
- New Jersey is “considering” drawing up its own ergonomics rules, said Peter Pittore, chief of occupational health compliance at the Department of Labor. But since that state’s OSHA plan only covers its less than 500,000 state, county, and municipal employees, the effect here will be limited.
- On the other hand, neighboring New York, with nearly 1.2 million such public employees, and Connecticut, with about 169,000, both have no plans to write ergonomics standards in the foreseeable future, according to officials in both states, which also have OSHA plans only covering state, county and municipal workers.
Most Others Say ‘No’ Throughout most of the rest of the country, the ‘nays’ seem to have it, although many states could change their mind.
At least 10 other states are leaning against or definitely opposed to writing new standards.
- Tennessee, which according to an official had been one of the several states to petition Congress through its legislature to overturn the federal rule.
- Kentucky, which had been “set up to adopt the federal regulation and doesn’t have anything in the works” at this point.
- Indiana, which under its own laws “can be as effective as but not more effective than federal OSHA.”
- Michigan: “If there’s not going to be a federal standard MI OSHA doesn’t have to have one.”
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