he price tag of the campaign was steep estimated at $1.5 million but worth it, said supporters. In the weeks before the November 2003 election, television ads and yard signs urged passage of Initiative 841 to repeal Washington's ergonomics standard, scheduled for enforcement in 2005.
The opposition to Initiative 841 mostly labor unions and the state government was outspent 3 to 1. In fact, state officials are prohibited by law from engaging in a political campaign, so employees of Washington's Department of Labor and Industries (L&I) could not speak out for the ergonomic standard or against Initiative 841 in an official capacity.
Despite low voter turnout, or perhaps because of it, Initiative 841 passed. Mike Wynn, CPE, a vice president at Humantech, a workplace ergonomics consulting firm that does business in Washington, says he was surprised. "The protections for individuals are such that I thought workers would support it."
David Groves, spokesperson for the Washington State Labor Council AFL-CIO, agrees, noting, "The standard contained a lot of concessions to business; survived three years of legislative attempts to repeal, delay and eviscerate it; and survived a court challenge. It is counterintuitive for voters workers to repeal a workplace safety rule, so we thought [Initiative 841] faced an uphill battle. Obviously, we were wrong."
Ultimately, says Groves, voters believed ads claiming the standard was a "job-killer." Wynn thinks even employers who support the idea of good ergonomics were scared off by the amount of documentation required of them by the standard. "Let's face it. If there was an OSHA program for quality control, with all the paperwork and recordkeeping OSHA requires, would employers have time to improve quality?" Wynn asks.
Was the Standard Too Tough?
Washington's ergonomics rule focused on preventing injuries. Employers with "caution zone jobs," where an employee's typical work included one or more of several risk factors awkward postures, high hand force, frequent lifting, highly repetitive motion, repeated impact and moderate to high vibration were covered under the standard. Employees could perform jobs with identified risk factors for four hours a day total, and employers were required to reduce hazards to a degree that was "technically and economically feasible."
Erin Shannon, public relations director of the Building Industry Association of Washington (BIAW), reveals, "Businesses didn't trust L&I to administer the regulation. Who determines what is 'technically and economically feasible?' L&I, or the employer?" Plus, referring to the general duty clause, she adds, "Worker safety laws already allow the state to ding employers for ergonomic violations in the workplace."
Business owners told BIAW, which helped fund the repeal effort, that they were worried about the impact the standard would have on their costs, says Shannon. The state estimated the cost of compliance for employers at $80 million per year. Opponents' cost estimates ranged from over $300 million to more than $700 million.
Employers with workers performing caution zone jobs were threatening to hire part-time work forces if the standard was enforced. Which in turn meant no employer-paid health benefits for employees. "Employers told us the only way to be certain they were complying with the standard was to take workers off the job after four hours," Shannon reveals.
If employers adopted that plan of action, then employees suffered twice: fewer work hours and no benefits. Worse yet, some employers threatened to leave the state entirely.
A slaughterhouse visited by L&I was told it could be cited in the future under the then-pending ergonomics standard if changes weren't made to employee job tasks and work organization. "We can't comply," responded the company. Company management estimated the cost to implement the changes proposed by L&I at $25 million. "We'll move the facility to Idaho," company management threatened.
Citing the high cost of treatment for ergonomic injuries and the loss to business in terms of morale and production, Shannon contends, "If it was economically feasible for these businesses to make these changes, they would have done so."
What Happens Now?
Following the repeal of the standard, L&I is forbidden by law to implement another, less-restrictive standard like the one adopted by California (see sidebar) unless the federal government adopts a similar ergonomics regulation. The state has several options, says the Labor Council's Grove, including:
- Follow in the footsteps of the U.S. Occupational Safety and Health Administration (OSHA) and develop voluntary guidelines;
- Use its general duty clause to cite employers for ergonomic hazards;
- Provide consultation services to companies that want to improve ergonomics but that are unsure how to proceed.
Michael Silverstein, assistant director of L&I, says the state plans to gather representatives from labor, business and the professional community to seek advice on how to proceed with ergonomics. "We need to determine how to best use the tools and authority we have to reduce workplace injuries. Everything is on the table," he notes.
The general duty clause. The union is encouraging the state to use the general duty clause to cite employers, says Groves. "If any group of employers in the country is educated about the need for ergonomics, it is the employers in this state because of the extended debate and campaign. Employers cannot say they did not know about the hazard," he asserts.
One Washington employer, who wanted to remain anonymous, says he worries about the general duty clause, calling it a "wild card." He's heard rumors of "quotas" for L&I investigators, not just for ergonomic hazards, but for all workplace hazards. "I would ask L&I for help, but I'm afraid they'd use it as an opportunity to scope out workplace hazards including ergonomics and come back at a later date and cite me if I haven't abated the hazards they found during the consultative visit," he says.
The employer should be encouraged by the experience of employers covered by OSHA. The agency has issued relatively few citations for ergonomic hazards under the general duty clause. OSHA conducted 1,474 ergonomic-related inspections and issued 254 ergonomic hazard alert letters and 12 general duty clause citations from January 2002 thru December 2003. According to the agency, OSHA will issue general duty clause citations even to companies that show evidence of corporate commitment to lowering ergonomic hazards in their workplaces but have failed to effectively implement that commitment at specific times and sites. "The corporate commitment must be translated to positive action at individual workplaces," says OSHA.
Guidelines. As part of its efforts to reduce ergonomic hazards in the workplace, OSHA has issued guidelines for several industries. The Washington employer doesn't like that approach either. He believes such guidelines will be used as a template by inspectors to determine ergonomic hazards in the workplace. "If I'm not following guidelines developed for my industry, does that mean I can be cited under the general duty clause?" he asks. "I'm no lawyer, but I bet it does."
He's right to worry, says Chris Tampio, director of employment policy at the National Association of Manufacturers (NAM). The federal government "is not, cannot, will not and should not be using the ergonomic guidelines" to cite companies for ergonomic hazards, he says. However, he adds, "OSHA goes in there and says, 'You've got a lot of back injuries and we're issuing a general duty clause citation. Here are some guidelines you can use as abatement suggestions.' It's like your boss saying, 'I want you to do it this way but you can do it any way you want.' I've told [Assistant Secretary of Labor] John Henshaw this: A person with authority over you 'suggesting' you do something a certain way is a de facto regulation."
Henshaw disagrees with Tampio's assessment. He points out that almost two years ago, Secretary of Labor Elaine Chao announced a four-pronged approach to address ergonomics. "Enforcement is one of those elements," says Henshaw. "As stated before, we are not and will not use guidelines or the rescinded rule in enforcement."
Consultation. In Washington, many employers hope the state takes a consultative approach toward ergonomics. But as Shannon points out, "There are 200,000 businesses in the state and L&I has performed only 180 ergonomic assessments. They don't have the manpower to offer consultation services to all employers in the state."
Many Washington employers are already voluntarily implementing ergonomic programs. As a result, "Ergonomic injuries have decreased 26 percent in the state," Shannon notes.
Humantech's Wynn concurs not all employers need a watchdog. His company is "not in the compliance business, we're in the performance business," he says. "Our clients view ergonomics as a business improvement process, the same as quality and production." But, he adds, "I work with companies that want to do the right thing. What about the rest of them?"
According to Silverstein, Washington workers suffer more than 50,000 MSDs per year at a cost estimated at $1 billion. Ergonomic-related injuries account for as much as 30 percent of the state's workers' compensation costs.
"We have used all means available to us in the past 15 years to reduce and prevent MSDs. Voluntary actions taken by employers are helping, but are not sufficient," says Silverstein, making it clear the state does not plan to ignore ergonomic hazards in the workplace.
"The people who lose [with the initiative] are those workers who are exposed to significant hazards at workplaces run by that small group of employers who won't reduce hazards unless forced to do so by a rule. Now, the real challenge is how to have an impact on those employers," he admits.
Sidebar: The California Experience
California's repetitive motion injury standard, T8 CFR Section 5110, became legally enforceable on July 3, 1997. Three years of litigation followed, but the standard remains the only law regulating ergonomics in the country.
The California regulation requires an employer to institute an ergonomics program whenever two or more of its employees performing repetitive tasks have reported repetitive motion injuries (RMIs) within a 12-month time span. These so-called "triggering" RMIs must be predominantly work-related and objectively diagnosed by a licensed physician. The employer's program must include worksite evaluation, corrective control of exposure to RMIs and employee training.
Following court challenges, a California appeals court ruled that employers would have a "safe harbor" if they undertook good-faith measures designed to minimize RMIs. The appeals court also upheld an earlier court's ruling that eliminated an exemption for businesses with nine or fewer employees.
A law on the books does not equal increased enforcement, says Dean Fryer, spokesperson for Cal-OSHA. "The problem, why we don't enforce it more, is the threshold: at least two employees with similar injuries doing the same work within a 12-month period," he notes.
"It is definitely harder to cite a company in California than it was under the Clinton administration ergonomic standard or it would have been under the Washington standard," said Chris Tampio, director of employment policy at the National Association of Manufacturers (NAM). "But, if an inspector comes in and looks at injury logs and sees two people on a loading dock with back injuries in the past year, the employer is going to get cited."
An examination of inspection records provided by Fryer finds that Cal-OSHA cited 68 employers for violations of the ergonomics standard between Jan. 1, 1999 and Dec. 31, 2003. Fines ranged from $0 to well over $100,000 in some cases, with most fines falling under the $5,000 mark and many less than $1,000. A large number of the employers cited were public entities, such as the cities of San Jose and Menlo Park and the California Highway Patrol.
"At first, we heard from employers, 'How are we going to be able to afford the cost of implementing ergonomic programs?'" says Fryer. "What they've learned is that when they implement preventive measures, they reduce costs in the long run. Employers have started to get it.
"The savings in direct medical costs, insurance costs, workers' compensation costs and indirect costs such as loss of production far outweigh the cost of preventive measures."