Labor and industry have been fighting one another for years over OSHAs ergonomics standard, but when it finally came out the two sides managed to agree on one point: OSHAs final ergonomics standard is the most important worker safety action developed in the agencys history.
So said AFL-CIO President John Sweeney in a statement three days before the rule was issued on Nov. 14.
Mike Baroody, senior vice president for policy at the National Association of Manufacturers (NAM), spoke similar words at a Nov. 13 press conference. But the real purpose of the press conference was not to give a history lesson, it was to announce that a coalition of business groups have mounted a legal challenge to the final rule that could tie it up in court indefinitely.
For years the war over ergonomics has been fought mainly on Capitol Hill, but now that OSHA has issued the final rule the principal battleground shifts from politics to law. Foes of the rule have few other weapons left.
On the critical issue of whether opponents of the rule would seek a stay that would block OSHAs enforcement of the rule during litigation, industrys chief counsel Baruch Fellner was non-committal. Were not asking for a stay now -- we need to evaluate it more, he said.
There is time for opponents to make up their minds. The new rule is effective Jan. 16, 2001, but its provisions will not become enforceable until Oct. 14, 2001, when employers must begin to distribute information on the standard to employees and begin receiving and responding to reports of repetitive motion injuries.
After that, the standards other provisions will gradually kick in until Jan. 18, 2005.
At the press conference Fellner outlined four grounds for the legal challenge to the ergonomics standard: it has no scientific support, it is too vague, it rests on fatally flawed economic analysis, and in its rush to promulgate the rule OSHA engaged in serious procedural violations. Of course OSHA knew all along the rule would be challenged in court. In order to improve the final standard -- and the chances of winning in court -- the agency made a number of significant changes to the proposed rule issued last year. In a Nov. 13 interview, Charles Jeffress pointed to four major changes in the final rule:
- The final standard applies in the same way to all general industry, whereas in the proposal it applied only to manufacturing and manual handling jobs, plus jobs with a reported musculoskeletal disorder (MSD).
- In response to the charge that the proposal was too vague, the final rule provides a screen to tell employers which jobs have to be fixed and which do not. Jeffress said the final rule also has some very specific job hazard analysis tools so employers can determine when they have done enough to fix a job.
- The grandfather clause has been modified to make it easier for companies to qualify: the main change here is to delay the requirement of an MSD management policy until Jan. 16, 2002.
- Restrictions on using the Quick Fix option have been loosened: employers can now use it so long as there is not more than one MSD incident in a job and no more than two in an establishment within 18 months.
Jeffress did not mention one other major change: the much-criticized work restriction protection has been cut back from six months of benefits to 90 days.
Although it appears as though most of the major changes were responses to industry concerns -- and the need to defend against a lawsuit -- OSHA was evidently listening to labor complaints also.
The final rule requires more employee involvement in the process and a second medical opinion on reported MSDs. OSHA estimates the new rule will cost employers $4.5 billion annually, up slightly from the $4.2 billion price tag of the proposal.
There was no evidence at the NAM press conference that OSHAs changes to the final rule had mollified its industry opponents, who bitterly accused the Clinton-Gore administration of using a politicized OSHA to pay its debts to organized labor.
This is not a health and safety standard, said Baroody, its a political pay-off.
By James Nash