There is not a person on the planet who knows if OSHA will win its race with the clock and complete the ergonomic rule by year''s end.
But by midsummer one thing was clear: in its ergonomics rulemaking OSHA has a heap of complex unresolved issues and only a few weeks to settle them. An interview with a top OSHA official revealed no decisions had been made on five key areas where revisions to the proposed standard are likely: worker removal protection, the grandfather clause, trigger, clarifying when one is in compliance, and the standard''s scope.
The agency faces an official deadline of sorts sometime in September, because the final rule must be sent to the Office of Management of Budget (OMB) for review before it can be finalized. These reviews normally take 90 days, and with a standard as complex and controversial as ergonomics it could take longer.
Despite the time pressures, the official said the rule would not be sent to OMB one day before completing a document that is supported by the whole record and an economic analysis.
"We have a team of 30 people writing the standard, plus 14 attorneys and 8 economists," said the official. "There''s never been an [OSHA rulemaking] team this large before."
Opponents of the proposal have accused OSHA of ignoring public comments on the rule.
But there is some evidence that the agency is taking these comments very seriously. Because of the public record, the "scope" of the revisions to the proposal is expanding, in more ways than one.
In a May interview, Jeffress identified only four major areas where changes were likely, but that was one month before the close of the post-hearing comment period. In a recent interview, an OSHA official said a fifth issue was now up for grabs: the scope of the standard.
"There is a very strong record for expanding the scope to cover maritime, construction -- essentially all the workers in OSHA''s jurisdiction."
On the other hand, the official added, there was also a strong case for narrowing the scope to include only manual handling jobs, either in manual industry or everywhere else. "By doing that single job-based approach we would be capturing a very large percentage of MSDs (musculoskeletal disorders)," the official said.
This is one reason why revising the standard is like untangling the wires of Christmas tree lights you stored in the attic last January: the public comments OSHA is grappling with very often go off in opposite directions. To make matters worse, the five major issues are all inter-connected, so a change in one area can have big implications elsewhere.
For example, in the current proposal, OSHA actually uses the one-incident trigger partially to determine the scope of the standard, since the standard applies to almost all employers only when there is a reported MSD that meets certain criteria.
The official said that with respect to the trigger, there was a continuum in the public record that ranged from requiring an exposure assessment for all employers, to not requiring anything until MSDs are 30 percent of recordable injuries -- an incidence approach.
The wider the scope, the more difficult it will be for OSHA to defend a sensitive trigger, and vice versa.
Mature programs at large companies are more likely to be using an exposure approach already, while small employers just starting out typically use an "incidence" approach, the official said. For this reason OSHA is considering having different triggers for different sized companies.
"Everything is in flux at this point," said the official. "We have no draft text at all. We have not decided even the direction in which we would be changing those provisions for a final rule."
by James Nash