When OSHA released its proposed ergonomics rule in November 1999, business reaction to work restriction protection (WRP) and the grandfather clause appeared to combine outright rejection of the provisions with contempt for the agency that produced them.
The final rule reveals that OSHA has at least attempted to respond to these complaints, as both provisions were changed in ways clearly intended to mollify industry opponents. Modifications to the grandfather clause have quieted some critics, and OSHA believes that most companies with ergonomics programs will now qualify for grandfather protection. Opposition to WRP provisions, however, remains intense.
WRP: What's the Fuss?
According to the final standard, whenever an employee suffers a musculoskeletal disorder (MSD) in a job that meets the rule's "action trigger," the employer must provide the worker with temporary work restrictions or time off. If a health care professional (HCP) has been consulted, the HCP determines what kind of work restriction is appropriate; otherwise, this decision is left up to the employer.
The main difference between the proposed and the final rule's WRP provisions is the amount of time the injured worker gets paid.
Under the final standard, if the employee's work is restricted, he must receive full pay and benefits for up to 90 days, until it is determined when -- or whether -- he can return to work. If the employee stops working, he gets 90 percent of his salary for up to 90 days.
The proposed rule required the employer to pay injured workers for up to six months.
Cutting the length of WRP benefits in half "did not ameliorate our problem at all," according to Bruce Wood, assistant general counsel for the American Insurance Association (AIA), which is suing OSHA solely on the basis of the rule's WRP provision. "We would challenge it if it were just one day." AIA represents a number of property and casualty insurance companies who fear the WRP provision in the rule could drive up workers' compensation rates.
The insurance industry's biggest problem with the rule, Wood said, is that it is a direct infringement on the "exclusive remedy" aspect of workers' compensation law.
Unlike other industry groups challenging the ergonomics rule who have raised innumerable questions of fact, AIA's suit is based only on a simple legal argument: The OSH Act that established OSHA forbids the agency from mandating a compensation program.
Wood believes the language in paragraph 4(b)(4) of the act is clear, and he expressed frustration that courts so far have ruled in favor of WRP provisions in other OSHA rules, such as lead, benzene and formaldehyde.
"My question is, if WRP doesn't violate 4(b)(4), what else could Congress have meant?" Wood argues that these previous rulings were incorrectly decided by what he termed a "liberal jurist, now deceased" in the D.C. circuit court.
The D.C. court appears even more enamored with WRP than is OSHA. In 1987, OSHA originally left WRP out of its formaldehyde standard, but the D.C. court told the agency its reasons for omitting WRP were "feeble." The court remanded the issue for the OSHA's further consideration, and the agency eventually put a WRP provision in the formaldehyde rule.
The precedent of this decision is more binding in D.C. court than elsewhere, which is why AIA filed its suit in another court. Its case and scores of other suits, however, were consolidated and will be heard in the D.C. court.
WRP: A Matter of Mistrust
Safety professionals with hands-on experience see practical and even moral problems with WRP.
Because the WRP provision singles out some injuries for special federal treatment, it could lead to real injustice, according to Jim Weaver, senior risk control administrator at Hallmark Cards.
"A guy who gets his arm cut off in the press could get paid less money than a guy who got trigger finger," depending on what a company pays for restricted duty or time off, he said.
Weaver also worries that WRP in the ergonomics rule may encourage shirkers to avoid work -- a second form of injustice. Because of the difficulty of verifying the diagnosis of MSDs, idlers may beat the system by seeking out sympathetic health care professionals to support claims of bogus injuries.
Weaver shared a fear expressed by the U.S. Chamber of Commerce during public hearings: Truly committed malingerers could string out WRP indefinitely by showing up for work a few days after the 90-day period has elapsed and then claim another injury to get another 90 days of pay without work.
If WRP raises such formidable legal and practical problems, why did OSHA keep it in the final rule? From OSHA's point of view, the answer is simple: The standard cannot work without it.
Unlike other OSHA standards, the ergonomics rule does not require employers to monitor their workplaces for hazards. Employers do not have to worry about abating ergonomics hazards until after a worker has reported symptoms of an MSD.
Workers, physicians and researchers at NIOSH convinced OSHA there is already significant underreporting of MSDs. The most common reason given for this behavior by workers is the fear of losing income.
OSHA officials were worried, because the rule is triggered by a single MSD, that without WRP, the ergonomics rule could have increased the pressure on workers not to report signs and symptoms. Moreover, early reporting is critical if the rule is to succeed in cutting costs and improving health.
Peg Seminario, AFL-CIO's safety and health director, echoed a point made in the rule's preamble. The WRP provision should not affect workers' compensation programs because the two have essentially different functions. WRP serves to ensure employees are not afraid to report early signs and symptoms of MSDs to their employers. It is not intended to compensate workers for injuries suffered on the job.
Seminario's point, however, underscores one reason why it is so difficult for opposing sides to compromise on the WRP issue: It comes down to a matter of trust, or mistrust. OSHA and organized labor want WRP because they believe employers will intimidate workers to hide MSDs. Industry groups oppose WRP because they fear malingerers will abuse it to get paid for not working.
A Grandfather Clause That Works?
Companies that satisfy grandfather clause requirements can comply with the standard without having to implement all of its provisions, according to OSHA. When the agency held public hearings on the ergonomics proposal last year in Washington, D.C., there was nearly universal agreement that few, if any, businesses would ever be "grandfathered" given the stringent requirements set forth in the proposal. This appears to have changed in the final standard.
Gary Orr, the ergonomist OSHA assigned to the standard, pointed to a couple of big changes he believes will make it possible for 80 percent to 90 percent of employers with ergonomics programs to qualify for the grandfather provision. OSHA estimated that only 16 percent of such employers would have qualified under the proposed rule.
The proposal required employees to have been involved from the beginning in the development of the ergonomics program; whereas, the final rule only obliges employee participation from now on.
Orr explained: "A lot of employers said, 'Hey, we just didn't know -- this was a management project. Now we've got employees participating, but we didn't when we started.'"
A second big change to make it easier for companies to qualify for grandfather protection takes us back to WRP.
"Companies told us, 'We don't have WRP in place right now,'" Orr said. "What most employers were saying about WRP was they needed some time to implement that process."
So the final rule gives businesses until Jan. 16, 2002, to set up a WRP component to their ergonomics program.
Have these changes answered industry complaints that no company can qualify for OSHA's stringent grandfather rules? "We feel like we can be grandfathered," said Linda Weitzel, manager of Xerox Corp.'s ergonomics resource center.
Ironically, Weitzel's reasons for believing Xerox can now qualify have nothing to do with the changes Orr thought significant. The crucial change for Weitzel had to do with the loosening of recordkeeping requirements. According to her analysis of the final rule, if you can prove you have an effective program, you have a reduced recordkeeping burden.
Overall, Weitzel thought the grandfather provision in the final rule was reasonable. "What they require for the grandfather program is what most good programs would have anyway."
Of course, Xerox has one of the finest ergonomics programs in the country, according to the AFL-CIO's Seminario and many others. If Xerox cannot make it, nobody can.
At companies without first-rate programs, however, even safety professionals critical of the rule said privately they think the standard can help them win upper-management support for improving ergonomics in their facilities.
OSHA hopes that by setting the bar a bit lower for the grandfather clause, many companies just might decide it makes sense to jump over it.