Ergo Rule: Opposition Certain--Delay Likely

OSHA's recent proposed ergonomics rule is likely to run into roadblocks.

At the Nov. 22 press conference announcing the proposed ergonomics rule, OSHA Administrator Charles N. Jeffress said his goal is to publish the final standard by December of next year. But OSHA regulations are rarely finished on time, and there are a number reasons to believe the highly controversial ergonomics standard will be no exception.

One likely cause of delay is the requirement that OSHA respond to the substance of every written and oral comment it receives on a proposed standard.

The first indication that OSHA may have trouble meeting its December 2000 target date will be if the deadline for written comments is extended beyond the current date of Feb. 1. Already, some industry representatives are complaining that they have too little time to respond to the complex proposal.

On Feb. 22 in Washington, D.C. OSHA will hold the first of three informal public hearings on the proposed rule, with others to follow on March 21 in Portland, Oregon and April 11 in Chicago. The deadline for sending a notice of intention to appear at these hearings is Jan. 24.

According to Gary Orr, an ergonomist at OSHA, Jeffress could decide to schedule additional public hearings if he thinks it necessary. Given the controversy surrounding the proposal, more public hearings may be unavoidable, increasing the chances of a delay in the final rule.

Another roadblock that could stand in the way of meeting OSHA's deadline is the final review of the standard by the Office of Management and Budget (OMB). Although the review is supposed to be completed in 90 days, Orr said with a standard as important and complicated as ergonomics, it could take longer. For example, the OMB took more than 90 days to complete its recent review of the ergonomics proposed standard.

Business groups have vowed to fight the ergonomics rule, and Randel Johnson, vice-president of the U.S. Chamber of Commerce has already threatened a legal challenge to the proposal. Other trade associations may follow suit, and whatever the outcome, a legal battle is almost certain to delay the final implementation of an ergonomics standard.

There is, finally, a wild card looming over the entire process: the reaction of the Republican-controlled Congress when it returns next year. The House has already approved a bill that would delay the ergonomics standard until the National Academy of Sciences (NAS) completes its study of the matter in 2001.

Congressional opponents of ergonomics argue OSHA should wait until the NAS completes its study because there is no scientific consensus on the causes and effects of musculoskeletal disorders in the workplace. But the Republican Congress has an additional motive to delay the final rule to 2001: they hope by then to have a Republican in the White House. It is because of such political factors that historically OSHA has had limited success issuing standards in the final year of an administration.

Senator Christopher Bond, R-Mo., chair of the Committee on Small Business, led the Senate effort to delay the ergonomics proposal, but although his bill had 48 co-sponsors, it was stymied earlier this year by the threat of a Democrat-led filibuster. Craig Orfield, a spokesman for the committee said he believed a majority of senators support an ergonomics delay and he predicted the Senate will re-visit the issue next year.

So although OSHA has taken a big step forward in publishing its proposed ergonomics standard, the long fight over the regulation is far from over. In this context, Jeffress's goal of issuing the final rule by the end of next year appears extremely optimistic to many OSHA observers.

"The business interests at stake, particularly the small business interests, are not about to shy away from the battle," said Orfield. "I think," he added, "there are more chapters to be written in this story."

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