The coming OSHA standards wars

Press headlines since the election have included these: “A new administration, ergo, a new chance for ergo;” “Labor’s revival could reignite fight over ergonomics.” Indeed, during the presidential campaign Obama issued a written statement that said many workers are susceptible to debilitating musculoskeletal injuries, and that OSHA “must attack this problem with all of the tools at its disposal: regulations, enforcement, training and compliance assistance.”

But Dr. John Howard reminded his audience in a speech given in November, 2008: “Development of such a standard (for ergonomics) will be a challenge since the Congressional Review Act (CRA) requires that any new MSD (musculoskeletal disorders) standard, replacing the one that was nullified by the CRA in 2001, must be substantially different.”

Some job safety activists argue that OSHA should adopt Cal/OSHA’s ergonomics standard, which applies to a job, process or operation where a repetitive motion injury (RMI) has occurred to more than one employee under these conditions:

1) Work related causation. The repetitive motion injuries (RMIs) were predominantly caused (i.e. 50 percent or more) by a repetitive job, process, or operation;

2) Relationship between RMIs at the workplace. The employees incurring the RMIs were performing a job process, or operation of identical work activity. Identical work activity means that the employees were performing the same repetitive motion task, such as but not limited to word processing, assembly or, loading;

3) Medical requirements. The RMIs were musculoskeletal injuries that a licensed physician objectively identified and diagnosed; and

4 Time requirements. The RMIs were reported by the employees to the employer in the last 12 months but not before July 3, 1997.

Every employer subject to the standard is required to implement a program designed to minimize RMIs. The program consists of:

1) Worksite evaluation. Each job, process, or operation of identical work activity covered by this section or a representative number of such jobs, processes, or operations of identical work activities shall be evaluated for exposures which have caused RMIs.

2) Control of exposures that have caused RMIs. Any exposures that have caused RMIs shall, in a timely manner, be corrected or if not capable of being corrected have the exposures minimized to the extent feasible. The employer shall consider engineering controls, such as work station redesign, adjustable fixtures or tool redesign, and administrative controls, such as job rotation, work pacing or work breaks.

3) Training. Employees shall be provided training that includes an explanation of: the employer's program; the exposures which have been associated with RMIs; the symptoms and consequences of injuries caused by repetitive motion; the importance of reporting symptoms and injuries to the employer; and methods used by the employer to minimize RMIs.

A number of job safety and health experts advocate that OSHA avoid the quagmire of ergonomics standard-setting and instead put its limited resources into a mandatory safety and health program management set of requirements. Again, Cal/OSHA offers a model with its injury and illness prevention program standard that supporters claim is flexible, performance-based, and has engendered scant compliance headaches.

Dr. Howard, in his speech last November, asked: “Should a risk-based occupational safety and health management system regulation (come first)? “Some might say yes, if for no other reason to harmonize OSHA’s own promotion of such risk safety and health management systems for their voluntary programs, with their reticence to consider placement of a risk-based management standard on its regulatory agenda for all employers.”

Some experts, including the AFL-CIO’s Peg Seminario, advocate going this route. Seminario says a national safety and health program rule should have been the first standard OSHA issued in 1971, and such a standard could encompass and address ergonomic risks. But a number of labor safety officials want this rule to mandate worker safety committees and worker training, which business groups will bitterly oppose, especially mandatory committees.

One of, if not the most important, decisions facing the new OSHA boss early on will be whether the agency is to pursue an ergonomics standard or a safety and health program rule, or ambitiously decides to tackle both.

Another key decision of the new OSHA chief will be how to address the hundred of out-of-date permissible exposure limits (PELs), if at all.

David Michaels, an epidemiologist and research professor at George Washington University, who has been mentioned as a dark horse for the top OSHA job, wrote in a 2005 article in Scientific American: “Out of the almost 3,000 chemicals produced in large quantities (more than one-million pounds annually), OSHA enforces exposure limits for fewer than 500… The vast majority… are still ‘regulated’ by voluntary standards set before 1971, which the newly created agency adopted them uncritically and unchanged. New science has had no impact on them. I conclude that successive OSHA administrators have simply recognized that establishing new standards is so time- and labor-intensive, and will inevitably call forth such orchestrated opposition from industry, that it is not worth expending the agency’s limited resources on the issue.

Outside groups of experts have grappled several times in the past 20 years on how to “fix” the PELs, with the idea of forwarding their recommendations to OSHA. But nothing has been delivered to OSHA’s doorstep, as union and business participants in these ad hoc advisory groups have not come close to backing down or compromising on their health (unions) versus costs (business) concerns.

In March, 2009, another stab at presenting ideas to revive and reinvent the process of updating exposure limits was floated by a group that includes former OSHA chief John Henshaw, current OSHA regional administrator Chuck Adkins, long-time union member Frank Mirer, ten certified industrial hygienists, the current president of the American Industrial Hygiene Association, and three past presidents.

Dr. Howard posed this question in his speech last November: “Is there a way to get statutory permission to again incorporate voluntary consensus occupational exposure limits into OSHA standards? Or should OSHA only work on those air contaminants that have the most exposure in the residual manufacturing workforce in America?”

When it comes to the thorny problem of updating PELs, one thing is sure: it’s easier to ask questions than come up with answers.