[House Hearing, 106 Congress]
[From the U.S. Government Publishing Office]
OSHA'S PROPOSED ERGONOMICS STANDARD:
ITS IMPACT ON SMALL BUSINESS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON REGULATORY REFORM
AND PAPERWORK REDUCTION
of the
COMMITTEE ON SMALL BUSINESS
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
WASHINGTON, DC, APRIL 13, 2000
__________
Serial No. 106-51
__________
Printed for the use of the Committee on Small Business
COMMITTEE ON SMALL BUSINESS
JAMES M. TALENT, Missouri, Chairman
LARRY COMBEST, Texas NYDIA M. VELAZQUEZ, New York
JOEL HEFLEY, Colorado JUANITA MILLENDER-McDONALD,
DONALD A. MANZULLO, Illinois California
ROSCOE G. BARTLETT, Maryland DANNY K. DAVIS, Illinois
FRANK A. LoBIONDO, New Jersey CAROLYN McCARTHY, New York
SUE W. KELLY, New York BILL PASCRELL, New Jersey
STEVEN J. CHABOT, Ohio RUBEN HINOJOSA, Texas
PHIL ENGLISH, Pennsylvania DONNA M. CHRISTIAN-CHRISTENSEN,
DAVID M. McINTOSH, Indiana Virgin Islands
RICK HILL, Montana ROBERT A. BRADY, Pennsylvania
JOSEPH R. PITTS, Pennsylvania TOM UDALL, New Mexico
JOHN E. SWEENEY, New York DENNIS MOORE, Kansas
PATRICK J. TOOMEY, Pennsylvania STEPHANIE TUBBS JONES, Ohio
JIM DeMINT, South Carolina CHARLES A. GONZALEZ, Texas
EDWARD PEASE, Indiana DAVID D. PHELPS, Illinois
JOHN THUNE, South Dakota GRACE F. NAPOLITANO, California
MARY BONO, California BRIAN BAIRD, Washington
MARK UDALL, Colorado
SHELLEY BERKLEY, Nevada
Harry Katrichis, Chief Counsel
Michael Day, Minority Staff Director
------
Subcommittee on Regulatory Reform and Paperwork Reduction
SUE W. KELLY, New York, Chairwoman
LARRY COMBEST, Texas BILL PASCRELL, New Jersey
DAVID M. McINTOSH, Indiana ROBERT A. BRADY, Pennsylvania
JOHN E. SWEENEY, New York DENNIS MOORE, Kansas
JOHN THUNE, South Dakota
Meredith Matty, Professional Staff Member
C O N T E N T S
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Page
Hearing held on April 13, 2000................................... 1
Witnesses
Jeffress, Charles N., Asst. Secretary of Labor for Occupational
Safety and Health, Dept. of Labor.............................. 4
O'Shaughnessy, Laura, Corporate Secretary, Revere Copper Products 29
Landon, Brian, Owner, Landon's Car Wash & Laundry................ 31
Kremp, Charles, President & CEO, Kremp Florists.................. 33
Russ, Leonard, Administrator, Bayberry Care Center............... 35
Saxon, Edward, President, Conco Systems, Inc..................... 37
Woodbury, Jennifer, Esq., McDermott, Will & Emery................ 52
Nowell, Jackie, Director, United Food and Commercial Workers
Int'l Union.................................................... 54
Halprin, Lawrence, Esq., Keller & Heckman........................ 56
Mirer, Frank, Director, UAW Int'l Union.......................... 58
Cheffer, John P., Chairman, American Society of Safety Engineers. 60
Appendix
Opening statement:
Kelly, Hon. Sue.............................................. 72
Prepared statements:
Jeffress, Charles N.......................................... 74
O'Shaughnessy, Laura......................................... 88
Landon, Brian................................................ 99
Kremp, Charles............................................... 104
Russ, Leonard................................................ 116
Saxon, Edward................................................ 156
Woodbury, Jennifer........................................... 165
Nowell, Jackie............................................... 172
Halprin, Lawrence............................................ 176
Mirer, Frank................................................. 190
Cheffer, John P.............................................. 209
Additional material:
OSAH's Proposed Ergonomics Standard: Its Impact on Small
Business................................................... 263
Letter from Hon. James Talent to Hon. Charles Jeffress....... 266
OSHA followup................................................ 278
OSHA'S PROPOSED ERGONOMICS STANDARD: ITS IMPACT ON SMALL BUSINESS
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THURSDAY, APRIL 13, 2000
House of Representatives,
Subcommittee on Regulatory Reform
and Paperwork Reduction,
Committee on Small Business,
Washington, DC.
The subcommittee met at 10:35 a.m. in room 2360 of the
Rayburn House Office Building, the Honorable Sue Kelly,
chairwoman of the subcommittee, presiding.
Chairwoman Kelly [presiding]. Good morning. Today the
Subcommittee on Regulatory Reform and Paperwork Reduction is
meeting to discuss the Occupational Safety and Health
Administration's proposed ergonomics program standard. I am
going to call it OSHA from now on, because you all know what
OSHA is.
OSHA released the proposed rule and accompanying material
for comment by interested parties on November 23, 1999. The
material for comment was voluminous and included a 300-page
Federal Register notice and an 1100-page economic analysis.
Despite more than a thousand requests for an extension of the
comment period, OSHA maintains that comments would be due on
February 1st, 2000. With only five days left in the comment
period, OSHA then extended the comment deadline by 30 days to
March 2d, 2000.
One of the concerns that I have with OSHA at this point,
Mr. Jeffress, I have to just say we didn't get your testimony
until almost 6:00 o'clock last night, so I had to stay up very
late to have a chance to read it. I really am very concerned
about the fact that it didn't get in here on time. There is a
committee rule that it should be here earlier, and I think you
know that.
Mr. Jeffress. I apologize to you for that being late.
Chairwoman Kelly. I think this may be, perhaps, indicative
of OSHA's procedures, where it is a normal operating standard
of being a little late here, despite the fact that the
invitation letter and the committee rules require that all
testimony be delivered 48 hours in advance of the hearing. OSHA
didn't get it to us until last night, so I really am concerned
that, if we ask you to come back, and if you are willing to
come back, Mr. Jeffress, that OSHA will come back within our
committee rules and get that 48 hours in advance to us so that
I don't have to stay up until midnight to read it.
Any Chairman would ask the same of you. I hope it is not
indicative of how OSHA plans to conduct the rest of the
proceeding implementing the proposed standard.
OSHA has made it abundantly clear that you intend to issue
a final standard by the end of the year. In response to the
notice of proposed rulemaking, OSHA received some 7000
comments. In addition, many organizations, small business
owners, union representatives, and individual workers have
agreed to testify before public hearings being held by OSHA on
the proposed standard. Obviously, there is a great deal of
interest in the proposed standard, especially considering the
amount of effort that is needed to submit written comments to a
Federal agency or appear at a hearing.
I am going to go back to your late testimony. It is a big
effort on the part of people to get here to submit their
testimony. I had the testimony from these folks who are
testifying 48 hours in advance, but you are here in Washington,
Mr. Jeffress, and I didn't get it. So, I think it is important
that small business owners who generally have more significant
things to worry about, like operating their businesses than
filing comments with a Federal agency on a proposed rule, be
treated with due consideration by OSHA.
This interest really has been confirmed on the part of
small business in this ergonomics rule. The interest has been
confirmed in my discussions with a lot of the small business
owners in my district. I have to say that they have been coming
up and talking with me even as I walk down the street in my
village.
The small business owners, as we will hear today, strive to
provide the safest working environment for their employees.
Now, all of a sudden, they are being told by OSHA that they
have to do more. These small business owners certainly would do
more if they knew what to do.
The proposed standard, although written in plain English,
is difficult to understand and may leave far too much
discretion in the hands of OSHA inspectors in assessing
compliance. So, it is not surprising to find that many small
business owners are confused over how they will comply and what
costs of compliance will be.
Even if they are going to be able to comply, it is very
important for OSHA to understand these concerns. It is one of
the primary reasons for holding the hearing, to ensure that
OSHA understands that small businesses are different from large
businesses in terms of financial resources, technical
expertise, and daily operation. OSHA needs to take that into
account in developing a final rule.
Otherwise, I fear segregation. Workers for larger
enterprises will get ergonomic protections, because their
employers can figure out how to comply with the standard while
employees of smaller businesses do not, because OSHA has
abdicated its responsibility to draft a rule that actually
provides scientific, identifiable workplace and engineering
practice guidelines to substantially reduce or eliminate
ergonomic hazards.
The proposed standard is one of the most far-reaching
initiatives ever undertaken by OSHA or, for that matter, any
Federal regulatory agency that is going to affect the vast
majority of small businesses throughout the United States. As a
result, I look forward to the hearing even though it may be
very long. However, given the importance of the issue, it is
critical that we in Congress devote the necessary time to
understanding the ramifications of this regulatory initiative.
Let me just simply stop here and ask if anyone else--Mr.
Pascrell, do you have an openingstatement you would like to
make.
I am going to call on Mr. Pascrell.
Mr. Pascrell. First, I want to thank my good friend,
Chairwoman Kelly, for holding this hearing today so we can
examine the proposed ergonomic standard. Hopefully, this
committee will be able to keep the level of bipartisanship that
it always has in the past.
For the past few days again, I have been examining these
standards, and I have heard the concerns of many sides. Some
small business owners look at the OSHA proposal and are
skeptical about how the standard will affect their business.
They have asked what the costs will be. Legitimate questions.
Who will be there to help them? Very legitimate questions.
I am truly confident that Assistant Secretary Jeffress will
be able to alleviate those fears. That is what I am counting on
this morning as we move away from the lock-step approach which
we had just a few years ago. That is horrible. That is a
bureaucracy which attains no objective, really, except
frustration.
I think we are making progress here. Each year, 1.8 million
workers experience injuries related to overexertion, repetitive
motions. Six hundred thousand [600,000] are injured severely
enough to require time off from work. These disorders cost
employers between $15 billion and $20 billion.
If we can prevent these things from happening, it will be
to the advantage of businesses all across America. If we can do
it within cost, within reason, this is what we should be trying
to do.
The evidence is that MSDs caused by ergonomics hazards are
the biggest safety problem in our workplaces today, and
something must be done about it. We should use this
opportunity, therefore, to look at the pain and suffering being
experienced by our workers, much of which can easily be
averted. We are talking about real people who, I believe, need
and deserve the standard to avert potentially crippling
injuries. This is really an issue that hits home in my
district, where there's 1100 manufacturing firms.
While I surely do not want to see them overly burdened by
the government, God knows they are already. Those firms do
employ 57,000 people, all of whom must be protected against
MSDs.
This threat of injury is out there, and what OSHA
recommends are common-sense solutions that will make a
difference in their lives. The proposal is not designed, as I
see it now, to create massive penalties and paperwork, because,
if it was, I am not going to support it. To me, it looks to
create a scenario where the problems of ergonomic injuries are
abated rather than prosecuted. We are doing in this area what
we have attempted to do in the environmental situation, working
together to move away from prosecution to abatement of problems
together.
I would like to recount the example of a New Jersey door
assembly plant, where a consultant was informed by employees of
wrist discomfort and pain from the repetitive motion caused by
tightening the screws with a regular, straight screwdriver.
Pretty elemental. Among other recommendations made by the
consultant in his report to the employer, it was suggested that
pistol-grip screwdrivers replace the straight ones at an
increased cost of $25 per screwdriver. The employer implemented
the recommendation, and it resulted in a dramatic reduction in
injuries, especially wrist problems associated with the
operation.
The proposed rule we examine today is a significant step
toward ensuring the health of millions nationwide. Hundreds of
companies who have implemented changes in ergonomic design have
saved money, increased productivity, and they pay less in
workers' compensation costs. I hope that is an objective of
everybody in this room.
In conclusion, I think balancing the safety of workers and
maintaining the viability of small business is a goal that,
with proper communication and interaction, can be achieved. We
would be terribly remiss today if we focus solely on the impact
this proposed rule will have on our business. We must look
closely and, in my view, strongly support the benefits and
protections that this rule will give to our workers. The aims
of OSHA's proposed rule are laudable, and we should not lose
sight of that. I am hopeful that we will be able to find common
ground, which we did in the environmental area. We must do so
here. So, I would like to thank my friend, the Chairwoman from
New York, for being so accommodating in setting up the hearing.
I look forward to the testimony. Thank you.
Chairwoman Kelly. Thank you very much, Mr. Pascrell. I was
happy to move the hearing so that we could accommodate your
schedule. Mr. Manzullo has informed me he does not have an
opening statement.
So, I am going to move directly to the first panel, who
will be the Honorable Charles N. Jeffress, the Assistant
Secretary of Labor, and the Administrator of OSHA. I am
interested in hearing from Mr. Jeffress on his views concerning
small business compliance, the cost thereof, and the
alternatives that will be considered in reducing the
potentially adverse consequences on small businesses.
Mr. Jeffress, we are going to go directly to you.
STATEMENT OF MR. CHARLES JEFFRESS, ASSISTANT SECRETARY OF
LABOR, ADMINISTRATOR OF OSHA
Mr. Jeffress. Thank you, Madam Chair. I am happy to be here
with you.
Let me call your attention to a new publication in the past
two weeks that OSHA has produced for small businesses,
Questions and Answers for Small Business Employers, with
information on OSHA, how it operates, what to expect from us,
and where to go for help. It is a part of our continuing effort
to reach out to small business, to assist small business to
protect their workers.
Our goal here is to keep people from getting hurt, the same
goal the businesses have. I think they have a common goal, and,
to the extent we can promote it and educate people through
materials like this, we seek to do that.
Work-related musculoskeletal disorders, which I am going to
call MSDs for simplicity's sake, are the most widespread
occupational health problem facing our country today.
As Mr. Pascrell said, nearly two million workers suffer
MSDs on the job. More than 600,000 have to lose time from the
job as a result of these injuries. While the median number of
days lost is seven, the most severe injuries of this type can
put people out of work for months, and even permanently disable
them.
In addition, from the employer's point of view, not only
are people being hurt and made less productive, one out of
every three dollars that they spend on workers' compensation
goes for MSDs. Not only is this a burden for America's workers
in terms of ergonomics, it is a major burden for American
businesses. As Mr. Pascrell said, the direct costs attributable
to MSDs are between $15 billion and $20 billion each year, and
every year total costs ranging upwards to $60 billion. Reducing
the total on workers as proposed through this ergonomic
standard will also reduce the financial burden on American
businesses.
As businesses throughout the country have proven, good
ergonomics is good economics. Thousands of employers across the
country are proving that everyday.
The human dimension of this problem is striking. Now, let
me give you a couple of examples. Ursula Stafford, a 24-year-
old paraprofessional in the New York City school district--She
was assigned to assist a paralyzed student who uses a
wheelchair. The student weighed 250 pounds. Ursula weighed 122.
She received no training on how to lift the student, which she
had to do to assist the student to go to the bathroom, for
example. Nor did her employer provide any lifting equipment.
Ursula worked only two days before seriously injuring her back
on the third day. She had a herniated disc and spasms in her
neck. Today, she wears a back brace. She endures constant pain.
She has been told she may not be able to have children, because
her back cannot support the weight of a pregnancy. Compounding
this tragedy is the fact the Ursula's predecessor was hurt in
exactly the same way. Under the requirements of our proposal,
Ursula's employer would have been required to fix this hazard
after the first injury occurred, and she might never have been
hurt.
Then there is Walt Frazier, a 41-year-old poultry worker.
For nearly nine years, Walt worked as a live hanger in a
chicken processing plant. He stood beside the processing line,
stretched over a barrier bar designed to contain the chickens,
grabbed the chickens by the legs, and then stretched upward to
hang the chickens onto the shackles. He repeated this process
once every three seconds. That is 10,000 times a day, 50,000
times a week, two and a half million times every year. Finally,
in 1998, barely able to lift 20 pounds and unable to perform
many daily household chores, he agreed with his doctors'
recommendations and had the first of four surgeries in an
attempt to repair his damaged hands. In addition to severe hand
problems, Walter has lower back pain and severe and chronic
arthritis in his hands and shoulders.
Another worker lost her job. Mary, a nurse in Oregon. She
sustained a back injury. She worked on light duty for a year.
Then, her hospital told her to find another job, because they
did not have anything for her to do. Today, she works at
different part-time jobs in different locations and can no
longer provide patient care.
Workers shouldn't have to suffer like this. Many
businesses, both large and small, have already demonstrated the
value of ergonomics programs.
Enid Memorial Hospital's small nursing care facility in
Oklahoma instituted an ergonomics program focused on back
injury prevention. They presented a program to staff through
lectures, videos, hand-outs, demonstrations. The facility
purchased mechanical lifts and made them available throughout
the establishment in '97 to '98. This practical ergonomics
program cut their rate of work-related injuries by almost 75
percent. They reduced the number of associated lost workdays by
over 85 percent.
Another example. A 25-person lumber yard in Ohio developed
checklists for use by each of their employees in evaluating the
ergonomic appropriateness of their personal protective
equipment, their mechanical equipment, and their overall
workplace. The lumber yard completely redesigned their work
stations in 1994. As of July of last year, they had not had any
lost time injuries since strengthening their program.
Another company, Ultra Tool & Plastics, a New York plastics
product manufacturer, implemented an ergonomics program that
cut injuries by 70 percent, reduced lost workdays by 80 percent
by their solutions they put in place. This is a small employer
purchasing ergonomic chairs for production employees, providing
back safety training, installing robot presses to eliminate the
need for production employees to reach for parts, and making
pallet jacks available for metal bins to allow height
adjustments.
These are only a few examples among many that are
available.
We published our 11-page ergonomics standard, which I have
right here. That's the total ergonomics standard, the total
rules that the employer has to read.
We published our standard in November. It is based on sound
scientific evidence, including findings by the National Academy
of Sciences that strongly supports two basic conclusions. One,
there is a positive relationship between work-related
musculoskeletal disorders and the workplace. Two, ergonomics
programs and specific ergonomic interventions can reduce these
injuries.
We are providing ample opportunity for the public to
provide input on the ergonomics proposal. As the Chairwoman
said, we have heard from more than 7000 stakeholders during our
hundred-day prehearing comment period. We are now in the midst
of nine weeks of public hearings on the proposal. During the
hearings, we expect to hear from more than a thousand
witnesses, including representatives of large and small
businesses, small business owners, employee representatives,
and individual workers, as well as physicians, ergonomists,
occupational health nurses, and others. Not only was there a
pre-hearing comment period and nine weeks of hearings,
participants who have filed a notice of intent to appear will
also have an additional 90 days after the close of the hearing
to submit further comments. In total, the combined period which
interested members of the public will have to comment on OSHA's
proposal exceeds eight months. This period is in addition to
the small business panel review process conducted under SBREFA,
the opportunity for comment after that process is concluded,
and the more than eight years of dialogue that have occurred
since OSHA issued its advance notice of proposed rulemaking in
1992.
Our proposed standard relies on a practical, flexible
approach. It is not one-size-fits-all. It is an approach that
can be tailored to individual companies. It is an approach that
reflects best industry practices. It would require general
industry employers to address ergonomics for manual handling
and manufacturing production jobs, where we know the problems
are most severe. It requires other general industry employers
to act only when someone is hurt.
The proposal identifies six elements for a full program--
management leadership and employee participations, hazard
information and reporting, job hazard analysis and control,
training, MSD management, and program evaluations. The
ergonomics program need not cover all jobs in the workplace.
Only MSDs caused by a work activity that is a core element
of an employee's job or a significant part of her work will
trigger coverage. Because the proposed standard is only
triggered when an MSD is reported, its protectiveness relies
heavily on workers' willingness and ability to raise problems
when they occur.
Evidence shows that employees are reluctant to report
symptoms if doing so might cause them to miss work and lose
pay. Therefore, we have proposed that workers whose injuries
prevent them from working could receive 90 percent of their net
pay and 100 percent of their benefits to eliminate any economic
loss as a result of their injuries. This proposal is roughly
equivalent to the two-thirds of pre-tax pay of gross pay that
workers receive under most state workers' compensation
programs. But, this provision is not about worker pay. It is
about injury prevention. It is designed to encourage early
reporting and intervention, which is to the worker's benefit
and the employer's benefit. We have included similar provisions
in several other standards, including those on asbestos, cotton
dust, formaldehyde, lead, methylene chloride, benzene, and
cadmium.
We estimate that this proposed standard will prevent about
three million work-related MSDs over the next ten years and
save an estimated $9 billion annually for American employers in
terms of lost production, administrative and other direct
costs. The total benefit for American businesses far outweighs
the estimated $4.2 billion annual cost of the program.
As requested by Mr. Pascrell and Ms. Kelly, we paid close
attention to the unique needs of small businesses as we have
developed this proposal. We have drafted the 11-page proposal
in a question and answer format, as you requested, that is
written in plain language. The proposal also exempts businesses
with ten or fewer employees from recordkeeping requirements. It
extends the phase-in requirements for up to three years for
implementing engineering controls.
In accordance with the Small Business Regulatory
Enforcement Fairness Act, OSHA, the Office of Management and
Budget, and the Small Business Administration convened a panel
to review and comment on a working draft of the ergonomics
proposal last year. We then made changes, both to our economic
analysis and to the proposal after the panel's review and the
input from small businesses. Those changes included refining of
the work restriction provision that I just mentioned. We
increased the cost estimates based on what people told us. We
added the quick-fix option. The draft that we provided to
SBREFA panel employers said you have to put a full program in
place if an MSD occurs. After listening to small businesses,
small businesses said, ``Gee, if I have one problem job and I
can fix it right away and it doesn't give me any further
problems, why, I don't have to do the full program.'' We
listened. We heard that. We inserted the quick-fix option, so,
if you identify a problem job, fix it. No problems. In ninety
days, you are done.
You don't have to put the full program in place. In
addition to drafting a standard that places a minimal burden on
small businesses, we plan to provide extensive assistance to
small businesses, as you requested, to assist with compliance--
publications, checklists, training grants, information sheets
that will help employers provide their employees with
information on ergonomics. We also will use Internet-based
materials, outreach sessions, and our free consultation program
available through state agencies. Every small employer that
needs help will be able to contact one of OSHA's state
consultation programs for free assistance on-site to decide
whether they need a program and what to do if they need one.
We are also undertaking extensive efforts to train our
compliance staff. Our Training Institute already trains our
compliance officers about ergonomics, since we have been
addressing ergonomic issues for more than ten years. Consistent
with our standard practice, whenever we promulgate a new
standard, we will revise our courses based on the final rule
and assure that all compliance officers who perform ergonomics
inspections receive updated training.
MSDs have a very measurable impact on the lives and careers
of American workers. Companies that have worked to prevent
these injuries with sound programs have often improved their
productivity, drastically reduced their workers' compensation
costs, and improved job satisfaction. We believe that same
opportunity for a safer workplace must be extended to other
workers whose livelihoods and careers remain at risk.
Preventable hazards too often mean the difference between a
happy, healthy, productive worker and one whose life and career
may forever be changed by the misery of chronic pain from a
needless injury.
Madam Chairman, I will be happy to respond to questions.
[Mr. Jeffress' statement may be found in appendix]
Chairwoman Kelly. Thank you very much, Mr. Jeffress. I
obviously have obviously a number of questions that I would
like to ask, but I am just going to ask one right now.
I might ask a follow-up, but then I am going to let the
other people speak and ask their questions before I go back to
finish with my questioning.
As I said in my opening statement, no one denies that the
injuries suffered by individuals that you cite are not a
problem in the workforce. My concern is whether the rule that
you are promulgating will prevent these injuries from
Occurring. Telling small businesses that we have a problem but
not telling them how to fix it leaves it up to them to figure
out.
As a former small business owner, I have to tell you that I
wouldn't necessarily be able to fix a problem and fix it
correctly according to what your inspector might say, because I
don't know how to fix it without some kind of expert advice and
consultation or something that is carefully delineated in what
you are promulgating.
So, do you plan to tell small businesses how to fix a
particular injury?
Mr. Jeffress. There are a number of ways we are going to
address this issue.
What we heard when we met with small businesses and other
stakeholders prior to issuing this proposal was every business
is different. There is no one fix that will work for every
business, so don't put a rule in place that mandates that
everybody do the same thing.
We ask, then, how do we put a rule in place? What kind of
rule should we have? We were told, ``tell us the elements of a
program that makes sense'', which is what our rule now does
based on the actual practice of businesses that have ergonomics
programs in place.
The rule says there are six principles important to follow
in establishing programs--getting leadership from your
management, involvement from your employees, training your
employees, analyzing your hazards and fixing them, giving
medical treatment to employees who need it, evaluating the
program. So, those principles are what's required by this rule.
There is no one fix, because each business is going to be
different.
So, the question that you asked, then, is, okay, the small
business understands the principles. How do they get an idea of
what fix works? We will be producing and have produced examples
of solutions that work for different businesses. Our expert
advisers on the Internet that we have on other subjects, for
instance, allow a small business to hit on the Internet, ask
about their particular business, what kinds of hazards can be
expected, and how to fix those hazards. With respect to
ergonomics, here is a booklet, for instance, that has been
prepared by the Consultation Program in the state of
California, that is available to small businesses and is an
example of the kinds of information which you have just asked
us to provide for small businesses. We have in here pictures of
solutions that work. We have specific solutions for different
types of workplaces. This type of information will be available
in print form and over the Internet and in person through state
consultants.
So, a small business employer who determines that they have
problems and wants help can get specific advice, can get on-
site help, but is required not to put any specific solution in
place but to put a program in place that fits their workplace.
Chairwoman Kelly. I am going to ask a follow-up question
here.
OSHA determined that this rule is significant under the
Regulatory Flexibility Act.
According to SBREFA, OSHA is required to draft a compliance
guide for use by the small businesses. When are you going to
that? When are you going to get that drafted? I am going to ask
you several questions here.
The final rule has to be issued for publication in the
Federal Register, so small businesses have material to help
them comply. Or, is that going to be done later? Is that going
to be done after the rule gets promulgated, and shouldn't you
be trying to develop a compliance guide along with this final
standard?
Mr. Jeffress. Yes, we will publish a final compliance
guide.
As you indicated, that guide has to give guidance on how to
comply with the final rule.
The final rule is now up for hearing. We are listening to
people. We will be making modifications to our proposal based
on what we hear to improve the rule, so the compliance guide
cannot be written finally until the final rule is in place.
The final rule has a three-year phase-in for engineering
controls for small businesses, a two-year phase-in for job
hazard analysis.
We are already publishing, as I say, lots of advice on how
to put ergonomic solutions in place and what works. The
specific compliance guide that we are developing will be issued
after the final rule is issued.
Chairwoman Kelly. Well, I have looked through this. I hope
you are going to give people more than something like this.
One of the things that I find disturbing about this is that
you have lifted that 11-page guide that you have offered to
people. You say all they have to do is read that, and they will
have a clear understanding of what it is you are trying to do.
If I understood you correctly, that is what you said.
Mr. Jeffress. I said to read this to determine if they are
covered by this rule and what it is they are required to do.
Chairwoman Kelly. Well, on page 1077 of your Economic
Analysis, you note that the preamble has additional definitions
of key items in the regulatory text. So, somebody reads that
11-page rule and your own analysis doesn't support reading just
11 pages is going to give anybody the full information that
they need.
I want to know if you want to comment on that.
Mr. Jeffress. Yes, ma'am. I would suggest to you that the
practical application of rules like this is being done every
day in workplaces across this country. Earlier this week, I was
in two workplaces in Illinois, NCS, Incorporated, in Rockford
and at Dayco in North Aurora, Illinois. In both of those cases,
meeting with the owner of the businesses, I talked to them
about how do you identify these problems.
How is it you figure out that you've got a problem that
needs addressing? Their comment to me was this doesn't take any
expert. In the case of Dayco, the person was applying a rust
inhibitor to a flywheel, had to get up underneath a conveyer,
and squeeze her handgun like this, and then get on top of the
conveyor and squeeze again like that. He said it is pretty
clear that is a problem for us. It is a problem for that
employee. They fixed that problem for $200. They fixed that
problem and prevented injuries to their employees. That's the
kind of thing that employers are required to do. That is the
kind of thing employers can do, and that is the thing they are
doing without having to read thousands of pages of information.
Chairwoman Kelly. Mr. Jeffress, I am sorry to keep going,
because I really want to let these other people go.
I do have a whole lot of questions for you. This is just
the beginning. Sorry about that, but this raises so many
issues, and, as a small businesswoman, I care ardently that
people really get it right, just as you do.
I want to make sure that workers get protected, but I also
want to make sure that the small businesses understand what it
is you are trying to get them to do. You just said that it
doesn't take any expert, is what you heard, for them to define
what needs to be done. On the other hand, how do we know from
what you have written so far, and from what I understand from
all of the things that I have read, I don't know, as a small
businesswoman, that what I do is going to meet the criterion of
your inspector who comes in.
That's the rub. That is the real rub, is when your
inspector comes in--every inspector. It is going to be a little
like, if you will forgive me, the IRS. When they come in, they
are going to play ``aha, I got ya.'' Some of them will, because
that is just the nature of human beings. I am very concerned
for the small businesses who get caught in that trap. That is
all I am going to say on that, because we can go back to that a
little bit later. But, I am raising a cautionary flag to you,
sir, that, when you do your training for these people, that
they understand that is not the government's attitude.
Mr. Jeffress. I assure you consistency is important to us
and every compliance officer calls things the same way.
But, what is most important to us is reducing injuries and
illnesses. It's not the ``gotcha.'' It's not the violations of
the rules we are looking for. We are looking to help employers
protect their employees. That is why our compliance officers
are out there.
Chairwoman Kelly. I hope you put those words in large-type
on the wall.
Thanks. I am going to go now to Mr. Pascrell.
Mr. Pascrell. Mr. Jeffress, we are facing a philosophical
abyss here. That depends if we want to take you back five years
or you want to go here. But, I think we are going to get there.
I think we will get to the center eventually.
To those who believe that we can do all of these things
through self-examination--I believe in self-examination. No
question about it, but I also believe that, through the state
of the art, through science, we can help the worker who is on
the job without bankrupting the company so that he is not on
the job any longer. This is what your objective is, I hope. Is
that correct?
Mr. Jeffress. Yes, sir.
Mr. Pascrell. I've got to tell you, though, I am very
frustrated at rules that exist and are created by us and
Federal agencies, and there's no way to monitor these things.
I mentioned to you before new laws and new rules that went
into effect about our fire departments throughout the United
States of America. There's 32,000 fire departments. You
promulgated a rule--OSHA did in terms of fighting fires, that,
whenever this went to multiple alarm, when two men or two women
were in regardless, two had to be outside, one monitoring the
situation. That rule was promulgated over a year ago. Seventy
percent of the departments are not complying.
You could have all the rules in the world. You can have all
the laws in the world, which leads me to believe that the best
thing that we can do is make sure we try--we are all finite
beings--to get it as right as possible in the beginning. So,
don't be too quick, and I will say this in a declarative way.
Don't be too quick to jump to put this rule into effect, to
hear from a lot of folks.
I believe there should be a standard, but we have graduated
from the fact of how many times can we allow the employee to
raise his arm. Come on. Every person is different. Every person
brings his own being to the job. Every person is unique. It is
tough to deal with a standard, but that we should have a
standard, that there is a threshold. That there is a plan to
avoid or shrink the possibilities of injury is what we should
be after.
I will support you on that if I know that you have taken
into account the things that you are about to hear today.
Now, I've got two examples. In Clifton, New Jersey, part of
my district, Union Camp, which is not a small business, was
very dissatisfied with the high levels of back injuries
experienced. I might add that the workers who experienced the
back injuries were not pleased, either. [Laughter.]
Mr. Pascrell. Despite the company's training program on
manual lifting, in its effort to reduce carton heights,
injuries continued to occur. The company decided, because of
lost time, dollars spent, that automatic pallet positioners
represented the best solution. The equipment enables workers to
keep working at waist level. Workers fill the pallet. The top
of the positioner automatically adjusts so the work height
remains the same, reduces lifting and other awkward motions.
The impact at Union Camp has been remarkable. Productivity--and
we have only witnessed an increase in productivity in the
American worker in the last three years--the American worker is
doing his job. Productivity increased--We didn't have that
productivity increase, by the way, in the '80's. We have it
now. Productivity increased as car impactors no longer needed
to bend, stoop, or reach. Workers can now load a pallet in 40
percent less time and less fatigue. Good stuff. Suits your
purpose.
You can use that model in other places, and I am sure that
is what that booklet that you held up, I hope, is all about.
How many of these success stories have you found, and how did
you incorporate them into where we are at this point?
Then, I have a second smaller business I want to talk
about.
Mr. Jeffress. In preparing for the proposal for the seven
to eight years after we issued the advanced notice, before we
issued the proposal, we held stakeholder meetings around the
country--all around the country so people could come talk to us
about things that worked, such as the Union Camp proposal and
what they did in their workplace. We also held best practices
conferences, where people came and reported on the solutions
that were working for them, that were reducing injuries and
reducing Workers' Comp costs.
After listening to those proposals, those ideas, those
actual practices that made a difference, we digested, what are
the essential elements of these, because no one proposal would
fit every workplace. What are the essential elements of these?
We arrived at these six principles, fed them back to people,
and are asking, in the course of this hearing, are these the
right principles. Are these the right ways to guide the
development of ergonomics programs?
They are based on the actual practices of hundreds of
employers that came to the stakeholder meetings and told us
that this is the way we do business. So, we did meet with folks
like Union Camp. We did learn from them. We did incorporate
into our proposal the kinds of solutions, the kinds of
principles they followed in adopting those solutions.
I would also point out that the kind of solution you
mentioned at Union Camp is not unusual. Businesses are finding
these solutions. At Mr. Manzullo's district recently, I had a
meeting with the Zenith Corporation folks. They had people
carrying heavy metal pieces from a table over to a machine.
Carrying that was an issue for them, but there's a back
problem. The owner of the business looked at it and said, well,
why don't we put wheels on the table so you can wheel the whole
table over there, and they don't have to carry it from one
place to another? That is what they did and solved the problem.
Those kinds of solutions are out there.
Our proposal is built on the program that helps people
identify those solutions, not specifying which one to follow
but specifying a process for arriving at those solutions.
Mr. Pascrell. Before I get to the smaller business, which
is really a concern of ours--all of us here--when I said that
we have some philosophical problems here--and I used the
example of the environment before--They are parallel issues in
my mind, okay? That is how I am thinking, anyway.
We seem to be moving in government from a prosecutorial
approach to these things to abatement. I have to be assured
that that is where you are coming from. I think this is
critical for us, that you are going to help businesses and you
are not going to bog them down in paperwork and bureaucracy and
nothing is accomplished. I mean, I wouldn't mind if something
was accomplished. Do you know what I am saying?
Mr. Jeffress. Yes, I do. In response, we are moving in the
direction you are suggesting we move.
One of the ways we are doing that, OSHA's standards used to
specify exactly what an employer had to do--put that fire
extinguisher 34 inches off the floor. Thirty-six inches or 32
inches, you are not doing what the standard says. Put it 34
inches off the floor. That is not productive. That is not
conducive to safety and health.
We are moving to performance-based standards that says to
employers, as to ergonomics, put a program in place that fits
your workplace to solve the problems you have. That's the kind
of performance-oriented approach that I think is important in
putting that approach in place. Our goal here is to reduce
injuries and illnesses, not to see that a block is checked or a
piece of paper is written, but to reduce injuries and
illnesses.
We are increasingly providing compliance assistance
materials. As a matter of fact, President Clinton--His last
three budgets to this Congress has proposed dramatic increases
in assistance to businesses on much more of a percentage
increase for compliance assistance than enforcement, because we
are trying to reach out and teach. OSHA would like to be as
well known for our education as we are for enforcement. We
believe that is an important way to help reduce injuries and
illnesses in this country.
Mr. Pascrell. You would agree, though, that the conclusion
is going to be much better if we can do this thing together in
a partnership rather than you come in and tell somebody that.
We have gotten complaints from one worker, two workers, and
this is what you need to do.
The only time you are talking--the only way you are going
to spend some money is if you are going to make the workplace
safer. Are you stating that for the record?
Mr. Jeffress. Mr. Pascrell, yes. The only need for
employers to invest in safety and health is to protect their
workers.
That is what OSHA rules are designed to achieve. We would
always rather do it in a cooperative manner and a partnership.
Let me hasten to add, though, that I make no apology for using
strong enforcement means when it is necessary to get someone's
attention. But, having gotten someone's attention, the way to
teach people to work more safely then is through education
partnerships.
That is the way we strive to make our workplaces safer.
Mr. Pascrell. Thank you, Madam Chairman.
Chairwoman Kelly. Thank you very much, Madam Chair. Mr.
Manzullo has asked to have one question before we go to vote.
We have been called to a vote. I am going to allow him to do
that, because I think he has other things he has to do.
Mr. Manzullo. Thank you. I really appreciate your coming to
my district.
The purpose of that was to show you that the plants were
quite capable in solving their own problems, which OSHA can do
based upon, you said, 11 pages. These are the 600 pages of
regulations and instructions regarding ergonomics in the
Federal Register.
My question is this. My brother has a restaurant, and this
is how you wash dishes. Somebody there comes in. This is how
you scrub pots, and, if somebody develops an injury there, how
are you going to stop that injury? He does not have an
automatic dishwasher.
Mr. Jeffress. I am going to say that my children tell me
that the dishwashers are far superior.
Mr. Manzullo. But it costs about $40,000. He can't afford
it. How is he going to solve that problem? Tell me how you are
going to solve it.
Mr. Jeffress. We are going to solve the problem of
dishwashers. Has he had dishwashers with repetitive motion
injuries?
Mr. Manzullo. He has not had that, because they come and
go, but sometimes his dishwashers are there for periods of
time.
Mr. Jeffress. If he has not had an injury, this standard is
not going to trigger anything.
Mr. Manzullo. What happens if he has an injury?
Mr. Jeffress. If he has an injury, he has to look at what
is there in that job that can be fixed.
Mr. Manzullo. How does he fix that? It is a simple
question.
Mr. Jeffress. Until someone is hurt, there is no
requirement to do anything and for years he has operated that
restaurant and had no one hurt.
Let's not hypothesize it. That solves a problem that
doesn't exist.
Mr. Manzullo. This standard that federalizes workers'
compensation laws and encourages lawsuits. It is a very simple
question. What happens when a person reports an injury because
of washing dishes? A very simple question, the type of
questions that at least 900,000 businesses are going to have to
ask, because they are required to have a plan.
How do you stop that type of injury?
Mr. Jeffress. I think what Mr. Pascrell pointed out is the
guidance we are trying to use is let's solve real problems.
This man has never had an injury. There is no problem to
solve.
Mr. Manzullo. What it amounts to is you can't stop that
type of injury. It is an issue of an injury that will occur,
and you can't fix that type of injury.
Mr. Jeffress. It is not an injury, Mr. Manzullo. When there
is an injury, we have to work with them to solve that.
Chairwoman Kelly. Mr. Jeffress, if I may ask, we are going
to have to leave, because we have to go to this vote. Just
hypothesize. If there were an injury. I think that is really
what Mr. Manzullo was asking. If there were such an injury, how
would you, under this new rule, tell someone--that restaurant
owner--to fix it?
Mr. Jeffress. Anytime someone is hurt by an MSD, what we
would expect is for that employer to look at what are the risk
factors in this job that have caused that injury. If there are
risk factors in the job that are causing an injury, they would
need to be addressed.
Chairwoman Kelly. How would you address them is really what
Mr. Manzullo is asking.
Mr. Jeffress. At this point, Madam Chairman, the
hypothetical example has no injury.
Chairwoman Kelly. I asked you to suggest by saying--let's
have a hypothetical. Let's suggest that there are injuries like
that. What would you do?
What he is trying to point out is, I believe, that the lack
of flexibility, the lack of real defined solutions for
businesses to follow may lead us all into a swamp that we don't
want to get into.
We want to protect those workers. We just don't want to get
into the swamp.
Mr. Jeffress. The whole purpose of this standard is to
address real problems, because there are real people out there.
There's 600,000 people every year suffering injuries in these
jobs, losing time from work, that need help. There is no
injury. We are not trying to solve hypothetical problems. We
are trying to solve real problems.
Mr. Pascrell. Madam Chair, we are trying to abate a
situation, not be prosecutorial to the witness.
Mr. Manzullo. Come on. We want an answer.
Mr. Pascrell. Madam Chair, I have the floor. Number two.
I would think, in that situation, which is a legitimate
situation that you put forth, that the people whose business it
is would come up with some kind of a plan.
Mr. Manzullo. What is the plan?
Mr. Pascrell. I don't know what the plan is. Maybe they
become ambidextrous at knowing how to wash the dishes. The
point is that they would come up with the plan, not OSHA, and I
think we should keep this in mind as we move along.
Chairwoman Kelly. With that, I am going to take a brief--we
are going to have a ten-minute break here, so we can go and
vote. We'll be back.
[Recess.]
Chairwoman Kelly. I am going to call the committee back to
order here.
In the absence of Mr. Pascrell who had the floor, I am
going to go ahead, Mr. Jeffress, and ask a few of the other
questions I had.
One of our panelists raises the issue of pre-existing
conditions and conditions that are unrelated to work. That is
one of the serious things that I think we must consider with
this rule before the rule is finalized. How do you address
these?
Mr. Jeffress. It is very important to us that this proposal
be read as addressing work-related problems. The rule is
designed to only be triggered if there is a work-related
musculoskeletal disorder.
The issue of things that happen off the job, have been
happening for years. Employers have had to make decisions ever
since workers' compensation has been in place about whether
injuries are work-related or not.
This rule doesn't change that. This proposal doesn't change
what is considered work-related or not considered work-related.
So, the decision that employers have been making for years for
workers' compensation purposes about whether things are work-
related is the same type of decision they will have to make in
the future.
So, the rule is only intended to address work-related
injuries. It is not intended to address things that are not
work-related, and I share your view that we need to draw a
sharp line there and assure that people read this as only
applying to injuries that occur in the work environment.
Chairwoman Kelly. That I understand. My concern is how does
an employer know. You probably know if you have listened to any
kind of testimony from this committee that I am a small
businesswoman. My kids, my husband, we are all small
businesspeople.
I know that, upon occasion, and my husband is a building
contractor and folks take the tools that he has provided them
and the safety things he has provided them, and they will work
for him five days a week. But, then, they have their own
sideline job, and they will go out on the weekend and do their
own job for themselves. They may injure themselves on that
weekend job, come back on the job, work a couple of hours for
my husband, and say. Oops, sorry, I hurt my back. How is my
husband to know, because it is a work-related injury. It's just
not my husband's problem. It is their own problem, because they
worked out on their own.
Mr. Jeffress. My point, Madam Chair, is that this rule
doesn't affect that. This rule makes no changes in that. He has
that problem today. He will have that problem tomorrow. This
rule won't solve that problem or make it worse.
To make that determination as something work-related--did
it occur on my job or did it occur on somebody else's job--what
you have been doing and your husband has been doing in the past
you will keep doing.
You'll look at, what kind of injury does this person have.
That person recently has gotten that injury on my job. Is there
something on my job that is likely to cause these types of
injuries? Are there other things this person was doing that I
know of outside of work that might have contributed to the kind
or caused the kind of injury this person has? Those are the
kinds of questions that I presume you have been asking in the
past, that you will keep asking in the future.
This proposal doesn't add to or reduce that requirement or
change the way in which you would do that.
Chairwoman Kelly. Let me just rephrase this then. Let me
just take it one step further.
If the thing goes that far, my husband has got a workmen's
comp board to take this thing to. But, with this new rule,
someone could come in from OSHA and assess a fine and tell my
husband he has to pay this person who injured himself, not on
my husband's job. While all of this is being tracked, my
husband has to pay 90 percent of the salary. If he is a union
person, that would include stamps and benefits and vacation,
and all the rest of the stuff that is built into a union-paid
person.
My concern is that that takes money out of the income
stream for my husband's business. He is going to have to pay
that person the money, and suppose the adjudication goes
against the worker, because people are honest finally and they
find that the worker injured himself on another job. The worker
then has to pay my husband back. The chances of my husband
getting paid back are probably nil.
You know that. This is the swamp I am talking about. This
is such a gray area here. There's a heck of a lot of people
like my husband out there. Not just building contractors but
lots of other people.
I don't want to see them hurt. I want that worker to be
safe.
When they are on my job, my son will go along to the
business and make sure that they've got their goggles on, they
are wearing their boots, they are doing whatever they have to
do to put their safety clips on. Things like that.
But, if they are out there working for themselves, even
though that equipment is in the trunk of their car, they won't
put it on for themselves, because they don't want to. It is an
inconvenience, so you've got a real messy situation.
That swamp is out there, and I just simply want to call to
your attention that that is there. I think that is what the
crux is of a lot of the testimony we are going to here today
from the small businesspeople here.
I am just simply concerned that you stop, you think, and
you address this kind of a situation, because that will take
from the bottom line of a business profitability, I can tell
you from my own experience. Profitability in small businesses
isn't great. We make some money. We make enough to live on, to
feed our kids, but I tell you, what we have if we are a small
businesspeople we plow back into the business. That is the
nature of the business. So, you need to make sure what you are
doing doesn't cut into our bottom line.
Mr. Jeffress. Again, the decision on this is whether
something triggers the standard goes back to the employer's
determination. The employer makes that determination if there
is some uncertainty.
The employer--many employers do, and I suspect you do on
occasion use a physician that you have confidence in to make a
determination about the injury. The employer in this standard
can rely on the determination of the physician that the
employer has chosen in deciding whether this is work-related.
There are many other OSHA standards where the possibility
exists for OSHA compliance officers to second-guess employers.
We try not to do that. There has been a suggestion in the
rulemaking hearing that there be some appeal mechanism--some
way of determining whether something is work-related, some
physician review, if you will, rather than relying just on an
employer's determination or just on one physician's
determination.
We are open to that. We will be exploring that. Again, the
purpose of the hearing is, where there are difficulties
presented, if people can come forward with solutions that will
help us to improve the standard, we will do that.
Chairwoman Kelly. I just want to say there is no question,
in the example I gave you, that the injury is work-related. It
is just not on my job. That is the problem, and I don't know
how we would work our way out of it. It is a real sticky-wicket
right now. I am just afraid this is going to make it worse.
We want people protected, but I just want to make sure
that, if there is an injury, that we are able to ascertain
where that injury came from--it didn't come from somebody going
off and playing rugby on the weekend and coming back on the
job.
Again, I am going to hold my questions, and I am going to
go to Mr. Thune.
Mr. Thune. Thank you, Madam Chair. Let me just say that I
appreciate your objective and your goal of workplace safety.
That is something that we are all interested in here. We
are obviously also very concerned about how to achieve that in
a way that minimizes the disruption on, particularly, the small
business sector, and I represent a state which has a large
number of small businesses.
They are all small businesses, with a couple of exceptions,
and farmers and ranchers. We are very much concerned about the
impact this is going to have on them.
I guess, from just my observation--and, granted, it is not
an in-depth one--but the vagaries that are involved here are
going to impose a tremendous burden on a lot of small
businesses in trying to determine compliance.
You have indicated that small businesses of fewer than ten
employees are going to be exempted from the recordkeeping
requirement. But, it would appear to me, that they are going to
have to do something. If an inspector comes by, they are going
to have to do a whole lot of recordkeeping to ensure that, when
that inspector comes by, that they can prove that they are in
compliance. It would be a smart business practice, I would
expect--and I would expect most small businesses--to have very
strong concerns that, if, in fact, they are audited at some
point, that they are in compliance and are, therefore, going to
be subject to a lot of the recordkeeping requirements, in any
case.
I am just curious what provisions you would contemplate in
a rule that would assist those small businesses in complying
with the standard.
Mr. Jeffress. The kind of assistance that we expect to
provide are, again, publications of actual solutions that have
worked for different businesses.
The Internet-based programs that people can call up and
inquire about the hazards that apply to their businesses and
what solutions have been used.
For smaller employers, my first recommendation is always
the free, on-site consultation that is available. It is funded
by OSHA and available through state agencies--usually state
labor departments--whereby, if an employer wants assistance,
they can invite a consultant to come in. The consultant charges
no fees. There are no penalties for anything the consultant
finds. The consultant is expected to help the employer identify
what the hazards are and what some solutions are to fix those
hazards. There are 25,000 of those consultations done across
the country every year. The President has asked for more money
to increase the consultation staff so we can do even more of
those in the future. That would be my first suggestion to the
business that has a problem.
If they don't have a problem, obviously, there is no need
to ask for assistance. But, if they have a problem or think
they have a problem, we can provide free, on-site assistance.
We will provide assistance through our publications. I
would also encourage people to use their trade associations.
The National Federation of Independent Business has something
on their Web site about ergonomics and what you should do as a
small business. If you think you have a problem and want to
address the kinds of problems you have, these kinds of
reference materials are available not only from the government
but from trade associations and other people to assist small
businesses to resolve their problems.
Mr. Thune. In the proposed standard, you exempt
construction, ag, and maritime. My assumption is, at some
point, you are going to have some sort of standard that will
apply to those industries.
I guess I am wondering what kind of a standard you might be
recommending for agriculture, for construction? What basis and
scientific data would you use for that recommendation?
Mr. Jeffress. The types of MSDs that are occurring in
maritime and construction and agriculture are not terribly
different from the MSDs that are occurring other places. So, in
terms of the injuries and the health effects of the science, if
you will, of the MSDs, I think that is pretty well documented.
What is less well documented is what solutions will work in
those different applications.
With respect to construction, we have asked the
Construction Advisory Committee of OSHA, that has employers and
employees on it, to look at what solutions work, to help
identify solutions, to document solutions that resolve the
hazards in the construction industry. Any movement forward on
our part will depend upon the kind of recommendations that we
get from that Advisory Committee, the kinds of solutions that
are documented there.
With respect to maritime, there is also a Maritime Advisory
Committee for the National Institute of Occupational Safety and
Health. It also has a two-year study on the way, particularly
to address what kind of solutions work in the maritime
industry. So, what kind of action OSHA takes in moving forward
there would be based on the specific documentation of solutions
that work in that industry.
At present, we don't have anything going forward addressing
solutions in agriculture. That would be an area that the same
kind of work would have to be done on.
Mr. Thune. I assume that, if, in fact, you got to that
point where you were going to propose some regulation, that you
would also seek input from those who are in the business of
agriculture. There are a lot of unique demands on people who
work in that industry. I would expect that it is going to be
very difficult, I would think, to ensure that, just from an
inspection regime, to ensure that compliance is there and that
the regulations are being applied in a uniform way.
I am curious to know the comments that you are receiving
from small businesses. You, I think, mentioned having received
7000 comments from small businesses already, yet you are
attempting to implement a rule by January of this next year.
How can you consider those comments and come up with a good
rule in that short of a time frame?
It seems to me, at least, that the period for a
consultation and input from small businesses are being
overlooked in terms of what it is going to take to fashion
something or craft something that takes into consideration all
the unique dynamics of the various businesses. How do you apply
this in a uniform way, and how do you eliminate some of the
vagaries that are associated with this?
Mr. Jeffress. Prior to ever issuing the proposal, as I
mentioned earlier, we had years of meetings with businesses and
input from businesses and employees on what types of programs
work, what kinds of solutions work.
Then, prior to issuing the proposal, we published a draft
and had the SBREFA process where we had 21 representatives of
small businesses. It had the Small Business Administration
involved and the Office of Management and Budget involved in
looking at, given our draft proposal, what kind of impact that
would have on small businesses. That process ran for two months
where there was an intense review by small business
representatives of what had been proposed, and comments
following that process. As I say, we modified our proposal in
several ways based on the input we got from small businesses.
Now, by March of this year, as you point out, we had 7000
comments total from small and large businesses and employee
groups, and others. From March through May, we will be taking
oral testimony and then 90 more days of written comments from
people who participated in the hearings. That gives us a long
time between March and the end of the year to analyze those
comments to look at the suggestions for improvements that are
made and make modifications to our proposal before it becomes
final.
Mr. Thune. Your assessment right now as to cost, I
understand, is escalated. It is up toabout, what, $4-plus
billion?
Mr. Jeffress. 4.2.
Mr. Thune. A lot of the trade associations, I think, are
suggesting it is going to be much higher than that. You know,
it just seems to me that, in going through this process, that
the cost that is going to be imposed on, particularly, the
smallest of businesses is going to be excessive enough that it
is going to drive a lot of them out of business.
I would hope that we could find a way that would, again,
accommodate some of the unique dynamics of businesses--in my
case, really small businesses--who are going to be hardest hit
by this.
We are going to hear from a lot of groups today, I think,
large and small. We are going to talk about the financial and
economic burden that is going to be imposed and the issues
about, again, the vague nature of the regulation. How are you
going to apply it in a uniform or equal way? I just think there
are a lot of questions that are still unanswered. I think that
it is something that we are going to need more time to deal
with.
It seems to me, at least, that the timeframe that is being
imposed here, even though I know you said that you've got ample
time to do it, is inadequate for the task that we have at hand.
But, I see my time is up, Madam Chair, so I will yield back
to you.
Chairwoman Kelly. Mr. Thune, just so you know, I am going
to hold the record open. If you have additional questions that
you would like to submit, or if you would like to just stay and
we have some more time, I will be glad to accommodate you with
those. We will hold the record open for five days following the
hearing.
Mr. Jeffress. Madam Chair, I will be happy to respond to
some of the questions if you would like me to.
As you pointed out, Mr. Thune, OSHA did listen to the kind
of comments that we got through the SBREFA process and revised
our economic assumptions and did almost double the cost
estimate that we proposed for this rule. During the hearings,
we will hear, as you have already seen from other associations,
other employers, about costs. We will also look at those
assumptions, and, where we find that there is validity to them,
we will, in fact, revise our economic assumptions.
But, I would hasten to point out to you that many of the
assumptions that we have looked at so far are suggesting that
there have been some fallacies in some of the reports that are
out there. For instance, the Food Distributors International
study that projected a $26 billion cost for their industry
proposed that, in order to implement ergonomics programs, their
industry would suffer a 25 percent decrease in productivity,
that they would have more people doing the same jobs, and that
the ergonomics programs would decrease productivity.
In fact, they didn't cite a single employer that put in an
ergonomics program in place that had decreased productivity.
When we looked at employers in this industry, in fact,
productivity increases.
If you look at Sysco Food Systems of Houston that put
ergonomics programs in place in their place of business
following an OSHA citation and action by the company there,
they achieved a 70-some percent reduction in injuries and
illnesses, a savings in money, and an increase in productivity.
I think what you will find is that, when people put these
ergonomics programs in place, that, rather than decreasing
productivity as food distributors have projected, there will be
increases in productivity. Certain businesses, Dayco that I
visited in North Aurora had a significant increase in
productivity when they revised their lines.
I think the same thing is going to be true of other
studies, that we will find assumptions that we question. For
instance, the American Meat Institute--They said that our
estimate of costs for business was very low. They thought their
costs should have been ten times what we estimated for
business. When we looked at the assumptions in the study, we
had based our costs on a 17-person business--a small business,
if you will. They had based their costs on a 150-person
business, a business almost ten times as large. Their costs
were eight to ten times higher. Not particularly surprising,
given the size of the business that was being analyzed.
So, we will go behind just the numbers and look at the
assumptions, and, where the assumptions will improve ours or
give better estimates than our estimates, we will make
modifications, as we demonstrated with the SBREFA process. But,
where the assumptions are based on misunderstandings or based
on fallacious assumptions, we will talk about those, analyze
those, and give our comments back so that people understand why
we didn't accept their suggestions.
Mr. Thune. If I might, Madam Chair, I would just say to
that I think I am sure that we will hear, too, from groups,
that there is a lot of anecdotal evidence out there about the
impact that these sorts of things have and, again, I would say
because some of the stuff comes to our attention in our state.
Primarily, we deal with small businesses, but we had one
that came to our attention here recently. There was a
regulation. The city had a gravel pit north of town from which
they were going to get gravel. It was above ground, but,
because it was a gravel pile, it was considered to be under the
mining wing, or whatever, of OSHA. Therefore, they had to put
in a porta-pottie out there eight miles north of town, which
the guy never used, at a substantial cost and also had to train
him in CPR even though it was one person, so, if he ever had to
administer CPR on himself----
[Laughter.]
Mr. Thune. My point is that there are a lot of
circumstances where you are talking about small business
situations that I don't think fit very well within the
parameters of a lot of the rules that are fashioned here in
Washington.
But, thank you.
Chairwoman Kelly. Thanks, Mr. Thune. Mr. Moore.
Mr. Moore. Thank you, Madam Chair. You kind of described
the rulemaking process here, the proposed rule, and the fact
that there are hearings coming up over the next several weeks
and months, and that further consideration will be given to
information you receive during those hearings.
I guess my question to you is can you give any assurance to
people who may wish to testify at those hearings that, in fact,
they are not wasting their time, that, in fact, consideration
will be given to any good points that are raised that have
merit during those hearings, and that OSHA would be willing to
further amend these proposed rules if meritorious information
comes to your attention?
Mr. Jeffress. I think OSHA has a history of taking
seriously what is said at hearings on OSHA rules since the
first rulemaking we have done.
If we look at the previous hearings that OSHA has done, the
final rule that comes out during those hearings is usually
modified, sometimes significantly, by the kind of information
that comes in at the hearing. I can look back at virtually
every rule that I can remember in OSHA's history and think
about the changes that have been made to those rules following
the comments that people provided at hearings.
So far, in this rule, as a result of the SBREFA process, we
have made modifications. We have put in a quick fix provision.
We have put in an incremental fix exception. We clarified work-
relatedness. We changed our economic assumptions. So, I think
we have a history of accommodating good suggestions and
recommendations when they come in. I can assure you, and as for
the people who have come to these hearings, that we will
continue that process. We will take their advice to improve
this rule and put it in place.
Mr. Moore. I heard you mention the quick fix, and I didn't
hear all of your testimony, but I have reviewed briefly your
written testimony here. What other kinds of accommodations, if
any, does OSHA have to work with small businesses, especially
to secure compliance and not just impose punishment for
violations?
Mr. Jeffress. First, there are a couple of other things in
the rule.
One I should mention is the incremental fix. When people
read this the first time, they felt, well, I've got to put a
whole program in place and do everything that is feasible right
away. We clarified that by saying. No, no. You've got a
problem. You have a fix that you think works, put that fix in
place. Only if that fix doesn't work do you then go on and put
more and more fixes in place.
So, we tried to clarify that incremental fix. Even should
we adopt this final rule and find some employer who is not in
compliance, the way OSHA procedures work, if it is a small
business, should there be a penalty, small business is eligible
for up to a 60 percent reduction in any penalties simply based
on the size of the business. If they haven't had previous
problems with OSHA, they are eligible for another ten percent
reduction. If they are acting in good faith, they are eligible
for another 25 percent reduction. So, in terms of a small
business that is trying to do the right thing, even should
there be a violation and that would be a violation that could
hurt someone, the small business would be eligible for up to 95
percent reduction in any penalties that are out there. So, we
did go to significant efforts to try to recognize good faith,
to try to give small businesses credit for what they do to make
their workplaces safe.
Mr. Moore. Mr. Thune asked the question and made reference
to a situation back in his district involving an employer with
one employee and a remote job site. You heard that. It was kind
of humorous the way he asked the question. Even you laughed.
But, seriously--and he does have a good point here, I think,
and I want to ask the question this way. If the situation is as
Mr. Thune has described, how can an employer be expected to
comply with some of these OSHA requirements, that they are not
the violations or noncompliance?
Mr. Jeffress. The example he gave where somebody had to be
trained in CPR, even though there was no other employee to be
administered CPR to, OSHA would never cite in that situation. I
would be happy to be corrected if someone has a citation. But,
I believe that kind of hypothesis is not something that we
would cite.
Is the rule written such that it would suggest to someone
that they should give that person CPR training? It may well be.
It may well be something that we would have to rely on the
discretion of the compliance officer or the area director to
exercise good judgment in that situation. That is always a
defense that the employer has in terms of any citation or
potential citation by OSHA is what is feasible for that
employer to do.
Mr. Moore. What kind of paperwork requirements will there
be, especially for small employers?
Mr. Jeffress. For small employers under ten, there is a
specific exemption from recordkeeping. So, there would be no
paperwork requirements at all. In terms of an employer, as Mr.
Thune was suggesting, just out of habit or in order to defend
themselves, they might want to keep some paper. As I have
talked to employers about what they do when they put solutions
in place, first, they have a record of the injury--that someone
was injured. They have to have it for workers' compensation
purposes as well as in OSHA 200 logs if they are an industry
that requires them to keep those logs. So, that requirement is
there. If they put in a fix, then they have some record of what
they paid to buy the part or to make the change to put that fix
in place. So, there is no new record that would be required in
order to show--you know--you had somebody hurt and they show
what they did to fix the problem.
We are not talking about generating new records here. There
is a requirement that people do a job hazard analysis if there
is a hazard at a job that is hurting someone as to how they
determine what is going to be fixed. In talking with employers
about that, most employers, if someone is hurt, they do write
up what caused the accident. In that write-up, they frequently
identify what the cause was. That write-up could suffice as a
job hazard analysis. So, we are trying to go to lengths to
assure that there's not extra paperwork required. These are
things the prudent employer would otherwise be doing.
Mr. Moore. Thank you, Mr. Jeffress. Thank you, Madam Chair.
Chairwoman Kelly. Thank you, Mr. Moore. Mr. Jeffress, you
raised a question in my mind.
It is not clear to me, if there is a fine determination,
who makes the determination about the reduction in the fine?
The same person that assessed the fine?
Mr. Jeffress. There is a formula that is in our manual for
compliance officers that specifies employers of what size, a
given size, what amount of reduction they have. In terms of
history, if there have been no serious violations in the past
three years, there is an automatic ten percent. In terms of
good faith, the compliance officer doing that assessment, there
is a formula that is in our manual that the compliance officer
follows. The area director, of course, ultimately signs off on
the citations.
Chairwoman Kelly. But the compliance officers themselves
are responsible for making those reductions in the fine.
Mr. Jeffress. Again, the compliance officer is responsible
for the reductions automatic for size. It is automatic for
history. The good faith is an assessment of the compliance
officer, approved by the area director.
Chairwoman Kelly. That sounds like you have got that fairly
well defined. It is fairly well laid out. It is an automatic
process, and I think that is part of what I have my problem
with.
This ergonomics rule is that there are a lot of things in
that that aren't laid out as thoroughly. I wish we could get
them laid out. I've got a couple of questions that I wanted to
go back to.
In your testimony, you cite the Enid Memorial Hospital.
They have an ergonomics program. I am wondering if you would
supply the committee with a copy of that program. Could you do
that for us?
Mr. Jeffress. I'll be happy to give you the information we
have from Enid.
Chairwoman Kelly. You state that the program cut work-
related injuries by 75 percent. Seventy-five percent to me
means, if you had four people injured, you now have three
people who aren't. I really would like to see some hard
numbers, not percentages. I started life as a research
scientist, and I have to tell you I early on learned how you
can play with the percentages. I would sure like to see some
hard numbers on some of this testimony that you provided.
Mr. Jeffress. There are numbers available. I would cite the
Xerox Corporation plant in New York submitted information to
the ergonomics hearing. They document what they spent on their
ergonomics solutions. Within Xerox, they spent $3.4 million.
They also document their savings as a result of those
solutions. The savings they document are over $7 million. That
kind of data is available. We'll be happy to provide it to you.
Chairwoman Kelly. I think that is wonderful for Xerox, but,
you know, if you talk about somebody who is a small business,
you are talking about people with not that many employees. It
is going to be harder for us to document it. So, if the Enid
Memorial Hospital has some figures and they are, in fact, a
small business, I think it would be good for us to see them.
I want to say that this is probably the sign of a
compulsive or a sick mind, or something. I went to a Washington
Capitols hockey game the other day, and I really had a good
time. But, I have to tell you I was sitting there looking at
the hockey players on the ice, and I was wondering whether or
not the ergonomic standard is going to cover them. If so, then
what happens to our hockey games? You can translate that to any
other major sport--baseball. People get hit with balls. They
get hit with bats. What about the stickwork on a hockey game? I
mean, how is this going to affect something like our
professional sports?
Mr. Jeffress. As you point out, the injuries in our
professional sports are not related just to ergonomics. There
are lots of other problems in professional sports as well.
I had to address this in North Carolina when I ran a
program down there with some of our minor league teams, when
they showed up as having high rates of injuries, and wondered
what they should do about it.
OSHA wondered what we should do about it. But, in going out
and visiting with the sports teams, we discovered that those
people who were suffering the injuries all had contracts, were
independent contractors and not employees, so OSHA had no
jurisdiction. [Laughter.]
Chairwoman Kelly. I have just been told by counsel that NHL
players are, in fact, employees.
Mr. Jeffress. We may well have to look at that.
Chairwoman Kelly. And they do have MSDs, and you are going
to affect them. I am not going to be happy if you do something
to the Washington Capitols.
Mr. Jeffress. Perhaps we could help them.
Chairwoman Kelly. Bill is talking about the Devils up here,
and there's a few other teams from New York we like. But, this,
again, is a parameter that I wonder if you have actually
thought through in terms of this rule.
Mr. Jeffress. In terms of professional sports teams, as I
say, our general approach to them has been that they are not
employees that we address. To the extent that we get complaints
and folks want help or there are things we can do, we will be
happy to provide assistance to anyone who asks for our
assistance.
But, in targeting workplaces for inspection and where OSHA
focuses our inspection resources, we look at those workplaces
with the highest injury and illness rates. We have focused our
inspections on those plants and those businesses where we think
we can make a difference in reducing injuries and illnesses. I
think you would be happy with the way we are focusing our
inspections and reaching those employers with the highest
rates, where people are being hurt and losing time from the
job.
Chairwoman Kelly. Somewhere in my background and some of
the schooling I have had, it included some Constitutional law.
I would submit to you that you've got to put together a rule
that applies to everybody equally, so you cannot exclude my
hockey players from your rule.
Mr. Jeffress. I haven't suggested doing that, but I would
point out, Madam Chair, that we have excluded construction and
agriculture and maritime. There is good reasons for us to apply
rules as necessary where they are needed.
Chairwoman Kelly. You are going to give them a buy on a
compliance with the standard?
Mr. Jeffress. No, construction, agriculture, and maritime
we will come back to and look at when we have more information
on those.
Chairwoman Kelly. I am still going back. This is hitting--I
mean, we are going perhaps too far for it. But, the hockey team
is going to have to comply. You put this rule in place. The
hockey team is going to have to comply, and I think that-- I am
concerned about your rushing into something that you haven't
got all of the pieces put together on.
Let me just ask. In another part of your testimony, you
mentioned Sysco Foods.
Mr. Jeffress. Of Houston. Sysco is a franchise.
Chairwoman Kelly. How large is that group?
Mr. Jeffress. Again, it is just a Houston distributor that
I was talking about. It is probably still a relatively large
employer with hundreds of employees.
Chairwoman Kelly. So that really doesn't affect our small
business concerns?
Mr. Jeffress. The larger businesses keep the records and
can document their cases better, as somebody pointed out. So, a
lot of information we have on costs comes from larger
businesses. But, in terms of the solutions, the solutions are
just as effective in small businesses as they are in larger
businesses.
Chairwoman Kelly. Do you have any records on the cost from
small businesses? Do you have any estimates of what it is going
to cost, and can you provide them to this committee?
Mr. Jeffress. Yes, in producing our estimates of the costs,
we did stratify by certain sizes of businesses. We did surveys
at businesses to ascertain the costs. Much of it is in our
economic analysis. We have surveyed over 300 different
industries. We can provide you that economic analysis, that
kind of information, if you would like.
[Information may be found in appendix.]
Chairwoman Kelly. On page eight of your testimony, you
state that OSHA allows the hearing participants to question
each other in the hearings that you hold. I think that is
really very fair and probably a very productive exchange. I am
wondering if you would allow the panelists that we have
following you to question you.
Mr. Jeffress. You always do a very effective job of
questioning me.
We have submitted the OSHA panel to two days of questioning
on this rule, and we were happy to provide that. We then had
experts provide it by OSHA on the area of ergonomics. Each of
those experts was subjected to questioning and the public who
wanted to question, including most of the organizations
represented in this room, I suspect, had people there to
question the OSHA panel and the experts provided. So, there has
been a fair amount of give and take in answering by OSHA the
questions.
I don't have the time today to sit down and respond to
those questions, but I assure you that, letter after letter
after letter, we are responding to many of the questions that
people have been asking.
Chairwoman Kelly. And you will continue to do that, I hope?
Mr. Jeffress. Yes, ma'am, we will.
Chairwoman Kelly. I misspoke before when I said I would
hold the hearing open for five days.
I intend to hold it open, actually, for 14 days, so I want
to make sure people do have a chance, that I have a chance to
submit more questions to you.
Will you have some staff that will stay here, though, to
hear some of these folks?
Mr. Jeffress. Yes, there are four people from the Labor
Department who will be here to listen to the rest of the
panelists.
Chairwoman Kelly. On page ten of your testimony, you state
that ergonomics programs need not cover all jobs in the
workplace.
Now, this is one of the things that I find troubling about
what you said. You say nor are all MSDs covered, just those
caused by a core element of an employee's job. Who decides,
because this is very, very loose language? Who is going to
decide these standards? You don't have descriptive guidelines
for every single job.
We keep inventing new jobs, because we are small
businesses, and we are entrepreneurs and we keep coming up with
new jobs. So, you can't do it that way. So, who is going to
decide which MSDs are going to be covered when an inspector
comes in? 1Who is going to decide that an MSD is, in fact,
caused by a core element of the job?
Mr. Jeffress. The employer decides whether it is a covered
MSD or not, and the employer decides is there a core element of
this job that caused this. The employer decides what kind of
fix to put in place to respond to the hazard.
Chairwoman Kelly. I have one last question I am going to
ask. One of the small businessmen who is here today is going to
testify that repeated trauma injuries are down among all
industries in the United States by 24 percent since 1994,
without any legislation, without any regulation.
That has just happened. How do you explain that?
Mr. Jeffress. Overall, injuries and illnesses are down by
24 percent.
MSDs are, in fact, down, as well. The last number I saw was
17 percent. But, injuries and illnesses are down overall, and
MSDs are down overall, but MSDs are not going down at any
faster rate than injuries and illnesses all together. They
remain a third of all injuries and illnesses and the single
biggest cause of injuries and illnesses. There are still
600,000 Americans every year losing time from the job because
of these injuries and illnesses. I am delighted that the rate,
after going up at a 30- or 40-degree angle for eight or nine
years, has, the last three years, started to come down. That is
a sign that things are improving. As I say, injuries and
illnesses over the last six years have been coming down. But,
the fact is there are hundreds of thousands of Americans being
hurt.
The fact that there are only 30 percent of American
businesses that have ergonomics programs out there right now
suggests to us that there remains a need for this rule.
Chairwoman Kelly. Thank you very much, Mr. Jeffress.
There's obviously a lot more questions I will have, but I
appreciate very much your patience with being here as long as
you have.
I thank you very much, and I am now going to go to the
second panel.
Mr. Jeffress. Let me just ask you to tell Mr. Manzullo we
have got an ergonomist to come to work with him on his
dishwashing problem. Thank you, Madam Chair.
[Pause.]
Chairwoman Kelly. The second panel is made up of five small
business owners who are going to testify about their operations
and how the proposed standard will affect them, what
information they really need, an ergonomic standard to protect
their employees.
I am very glad that Mr. Jeffress has some staff here to
stay and listen to the testimony in both the second and the
third panel.
With that, we are going to begin with Ms. Laura
O'Shaughnessy.
Ms. O'Shaughnessy is here on behalf of the Revere Copper
Products. Ms. O'Shaughnessy has a very impressive bio, and I am
very happy to have you speak here today. Ms. O'Shaughnessy, if
you would like to begin, please, feel free to do so.
STATEMENT OF MS. LAURA O'SHAUGHNESSY, REVERE COPPER PRODUCTS
Ms. O'Shaughnessy. Thank you for inviting me to speak here
on behalf of small businesses, particularly for Revere and the
National Association of Manufacturers. The National Association
represents 14,000 manufacturers, of which more than 10,000 are
small businesses. Small manufacturers specifically are affected
by this, as we have been discussing this morning.
I would like to illustrate three specific points of the
difficulties of compliance with this rule--Number one, how
ambiguous the kind of standard is--the proposed standard;
Number two, the relative newness of the ergonomics profession;
and Number three, how the two of these affect small businesses,
in general, and Revere in particular.
Safety--Just to give you a little background on me and why
I have the place to speak as I do--has been the main focus of
my professional career and my academic career. I have a
Master's in Engineering based on human factors engineering and
consider myself a safety advocate and ergonomist. I could have
at one point been working with Mr. Jeffress and OSHA, and I
considered that.
But, instead of doing that, I found that I had the skills
to take the theory and put it into practice and, by doing so,
apply those principles of ergonomics and safety into an
effective manner in protecting the worker and consumers. I have
done that through various companies and now through my work at
Revere as a corporate secretary and a board member. I am able
to do it there, and I also volunteer for child safety, and I am
a mother. So, I am very interested in safety and ergonomics all
over.
I am not an opponent of standards and regulations. Not at
all. I work to write them. I have worked to improve them. I
have been in charge of enforcing them at different companies,
and I think they do have a place. However, all of the standards
with which I have worked have one thing in common. They are
based on something that is measurable, something that is
empirical, some research.
I remember, back when I was in graduate school, I was
working--I think it was H.R. 3160 then. That has been over ten
years ago. That just illustrates how hard making this
regulation has been, that ten years ago it was still in draft--
the proposals.
It is not very different today. We have not come any
further on the ability to measure it.
There are certain risk factors that OSHA asserts, which I
agree with, by the way, having to do with force, repetition,
posture, temperature, vibration, rest periods, and so on, which
bring up the ability to assess risk for a musculoskeletal
disorder. However, the difference between MSDs, or ergonomics
problems, and other types of safety issues are the
measurements.
I can measure how much is in the air. Mr. Jeffress cited in
his testimony things like benzene and lead and asbestos. Those
are very measurable. The risk factors that we discuss for MSDs
are not necessarily measurable, nor do we have an algorithm
that can add up the variables associated with all these factors
to come up with some kind of risk, some kind of measurement of
the injury, or any kind of costs we have discussed so many
times, especially with your particular case with construction.
How do I know where the injury came from? You don't, and
that is a great problem with this regulation. It is a great
problem with all safety injuries. You really don't have a way.
If you can't determine the cause, how can you eliminate that
cause? That is one of the bigger problems I have with this
regulation.
There is one thing, I think, that OSHA is definitely clear
on, and we all agree on. We want to protect our workers, and
that can be a problem. I found, just in an industry
publication--an ergonomics, human factors and ergonomics
society journal that just came out this month, an article
entitled Work Organization, Job Stress, and Work-Related
Musculoskeletal Disorders. Hmmm. It turns out that these three
authors have come to believe that stress is the primary cause
of the symptoms associated with many upper extremity work-
related musculoskeletal disorders. Others disagree. They say
that in their very first paragraph.
Now, the interesting thing I would point out besides the
disagreement in the very first paragraph is that this article
was submitted in 1993 and has been rewritten three times, and
just approved in 1999 to be published in 2000. If it takes that
long for experts to come up with facts, and still the first
fact that they assert is that there's disagreement, we are in
trouble.
Back to the proposed standard. This proposed standard
leaves an excess of an open-ended burden on the employer not
only to identify any potential hazard and the cause, but to
remedy this and create an effective program.
Unfortunately, what the standard does not do is supply any
clear program guidelines or any solutions. Employers are left
guessing what OSHA wants them to do, where they should apply
any fixes, and which jobs should be addressed.
This leaves us on the losing end of the musculoskeletal
disorder battle. Ergonomics is a real puzzle, and I think it
has been for a long time.
There is a need for a regulation, but I think it needs a
lot more work, and specifically it needs some work as far as
addressing the risks and what the measurement is going to be
and how to develop a program. A more appropriate arena in which
to spend funds and allocate resources to address this problem
is defining quantifiable methods and a clear process, as I say.
The proposed standard is not without merit, however. An
ideal standard must do two things. Most importantly, it must
outline a clear, effective program and elements which, although
Mr. Jeffress listed six things, the existing OSHA standards
list almost exactly those same things. We don't have any
changes in the proposed standard--the elements. It does not
tell us how to apply them and apply them effectively. Many
companies haveeffective programs for safety as it is and apply
those to ergonomic issues. Why add another standard just to increase
the levels of ambiguity and create a preferential class of injuries?
Further, this current proposal does not provide a manner to
create and manage a successful in-house ergonomics program.
Instead, this standard is going to require employers like
Revere Copper Products--as higher, costly consultants make
changes--to make a program that might be a fly-by-night, empty,
flashy program just in order to meet what their version of the
standard is--which may not meet what OSHA's auditors believe
the standard to be.
Chairwoman Kelly. Ms. O'Shaughnessy, I am sorry, but I am
going to impose the five-minute rule on the panels, and, if you
can summarize, it would be helpful.
Ms. O'Shaughnessy. Certainly. To summarize, my three points
were the problems with the standard are the ambiguity--current
level of ambiguity--the newness, and the naivete of the
ergonomics profession in general--the two of these impacting
small businesses which do not have the resources to understand
the regulation and apply them effectively to meet the standard
and not the imposed fines. Those are my three points. Misspent
time as well as resources and increased paperwork will limit
the ability of companies such as Revere to successfully reduce
these risks.
Chairwoman Kelly. Would you like to insert the cited
material into the record?
Ms. O'Shaughnessy. I don't think that is necessary.
However, I would like to insert one change to my statement, if
I may.
Chairwoman Kelly. We can do that. That is fine.
Ms. O'Shaughnessy. I think it is very appropriate right
now.
It has to do with our mission statement at Revere. I put in
a shortened mission statement in the interest of reduced
paperwork, if you will. But, I would like to tell you our
mission statement is to be the best in the world at what we do
and have fun doing it. This means using to the fullest extent
the talent of all Revere people working as a team in a safe--
that is our most important--environmentally sound and ethical
manner to achieve absolute customer satisfaction through
superior quality and reliability.
Thank you.
[Ms. O'Shaughnessy's statement may be found in appendix.]
Chairwoman Kelly. Ms. O'Shaughnessy, we thank you very
much. Just so you know, the boxes on the table are there
because they have lights on them. They will be green. When they
flip up to an orange, that means you have one more minute, and,
when they go red, that is the end of five minutes. So, for the
rest of you, I really would like to try to keep within the
five-minute rule. The hearing is long anyway, and I am just
trying to move it on. Next, I would like to go to Brian Landon.
Mr. Landon is the owner of Landon's Car Wash and Laundry in
Canton, Pennsylvania. He is here for the National Federation of
Independent Businesses. We are really happy to have you here.
Thank you for coming.
STATEMENT OF MR. BRIAN LANDON, OWNER, LANDON'S CAR WASH AND
LAUNDRY, CANTON, PENNSYLVANIA
Mr. Landon. Good afternoon, Madam Chair. Well, as you
mentioned, my name is Brian Landon. I am owner and operator of
Landon's Car Wash and Laundry in Canton, Pennsylvania. Besides
the services part of my business, my business also includes the
remanufacturing, installation, and service of equipment related
to the car wash industry.
I have been a small business owner for almost 25 years.
Currently, I have three employees--one full time and two part
time. I am a proud member of the National Federation of
Independent Business, as you mentioned. With three employees
and gross sales just over $200,000, I am fairly typical of the
600,000 NFIB members.
It is my pleasure to offer comments on OSHA's proposed
ergonomic standard.
In opening, I would like to say that I have a strong
commitment to my employees' safety and health. This is a
commitment not routed in rules or regulations but in the unique
relationships that exist in a very small business--
relationships that come about by working side by side with my
employees at the car wash, at the laundry, in the shop, and in
the office, working in an atmosphere where there are no strict
job descriptions and daily tasks are often shared and traded
between myself and my employees.
My employees know that I will provide them with whatever
support, be it information, supplies or equipment, that is
necessary to create a safe workplace and to protect their
health. I am typical of many very small businesses whose
employees are family and friends. It is these personal
relationships, not rules or regulations, that drive my concern
for their health and safety. I am proud to say that we have
never had an injury, accident, or health hazard occur at my
business. The proposed rule ignores these unique
characteristics of very small businesses.
As a three-employee business, I don't have a safety and
health officer. I cannot assign the task required by the rule
to a management team or a manager, or even one of my employees.
The full burden would fall on me. This would have a detrimental
effect on my productivity. It is my productivity on which the
success of my small business and my employees' jobs depend.
As always, the overall cost of compliance would fall
heaviest on my small business and other small businesses like
mine. The rule does include a recordkeeping exemption for very
small businesses. This exemption, under the guise of helping
very small businesses like mine, is a non-exemption, since no
small business owner, when faced with the threat of an
inspector zeroing in on the requirements of this rule, could
ignore the necessity of recordkeeping. Plus, if I were to avail
myself of the quick-fix provisions of this rule, I would lose
any recordkeeping exemption, such as it is.
I am extremely concerned with the regulatory burdens and
associated costs that the requirements of the proposed rule
would place on me and my small business--costs that have
already begun--simply in my need to try and understand the
proposed ten- or 11-page rule and accompanying 260 pages of
clarification, a task which OSHA estimates should take one hour
and to which I have already spent over 20 hours.This is just to
become familiar with the rule, a task which is not yet completed.
As a matter of fact, on March 22nd, I testified before the
OSHA Ergonomics Panel. During the question and answer period,
the Panel could not tell me whether the remanufacturing I do at
my business would or would not subject me to the rule. If OSHA
is uncertain whether a small business would be covered by the
rule, how should a small business know?
In closing, there are several factors relative to small
business that the proposed rule does not take into account--
One, the very unique nature of small businesses and the unique
way they provide for the safety and health of their employees;
Two, the risk of musculoskeletal disorders in a small business
is extremely low; Three, the burdens and costs of compliance
would fall heaviest on the smallest of small businesses such as
mine without significantly increasing workplace safety.
It seems to me, relative to small business, that the
proposed standard is a solution looking for a problem.
Therefore, I strongly urge the agency to withdraw the
ergonomics rule.
Thank you for the opportunity to comment, and, at the
appropriate time, I will be happy to answer any questions.
[Mr. Landon's statement may be found in appendix.]
Chairwoman Kelly. Thank you very much, Mr. Landon. Next we
are going to go to Mr. Kremp.
He is here for the Society of American Florists, and Mr.
Kremp, as a fellow florist, I really empathize with you, and I
am glad to have you here testifying.
STATEMENT OF MR. CHARLES KREMP, SOCIETY OF AMERICAN FLORISTS
Mr. Kremp. Thank you. Good afternoon. Chairwoman Kelly and
members of the committee, my name is Charles Kremp. I am here
representing the Society of American Florists, which is the
national voice of the floriculture industry that represents,
really, all segments of our industry. Most of those members are
small, family-owned businesses like my own.
With your permission, what I would like to do is just
submit my written testimony for the record and then just
briefly summarize parts of it here.
Our family has served the Philadelphia area for many years
since 1946. I was in business with my brother and my father
until '81 when I went into business for myself.
Now, along with my wife, I have four sons, who are in the
family flower business. We currently employ 43 full-time
employees and 43 part-time employees in six flower shops and
one small greenhouse in the Philadelphia area.
OSHA's ergonomics proposal, I believe, does nothing to
instruct me on how to specifically protect my employees from
MSDs in the workplace. I have a strong commitment to a safe
workplace. Our family works in the trenches. We know how the
jobs are done. We work side by side with our employees.
I believe our record demonstrates how we protect our
employees. I looked at our workers' compensation claims report
over the last several years and found that, when we take out
automobile accidents, there were only nine injuries. Four of
them required compensation, and only one was related to an MSD.
The other five injuries were mostly slips and trips.
We have employees who are in their 70's who have said to us
that they can no longer do the jobs that they were hired to do.
But, they are good workers, and we want to keep them, so we
found other places for them, and they are happy and we are
happy.
One of my immediate concerns with OSHA's proposal is the
time and cost for me to understand and implement the program.
I, too, do not employ a safety expert, so this burden would
fall upon me, as Brian had mentioned with his firm. I also have
spent several hours trying to understand this document, which
is 310 pages long, where OSHA says that they estimate one hour
per business cost. I must be a very slow learner. Trying to
comply with this rule will divert my time and my attention from
pursuing the more proven efforts to maintain a safe and healthy
workplace, and those efforts are already effective with our
people.
OSHA's proposal covers any employer whose employees work in
manual-handling jobs. These kinds of activities involve many
jobs in a typical retail flower shop. Unlike large employers or
employers with union contracts, each job's core element is not
specifically defined.
The regulation does give some examples of manual-handling
jobs. However, the definition is very vague. Because of these
activities that I just described, I think I would automatically
be required to implement those first three elements of the
ergonomics program.
However, we do all of this now--lead, interact with
employees, identify hazards, and all of this without
regulations. The problem is the way we operate now may not
satisfy the OSHA inspector, yet it achieves the goal that is
intended.
The first element, the management, leadership, and employee
participation, if I didn't do this already, I couldn't succeed.
In a small business, there is no filter to prevent management
from knowing of problems. As already mentioned, I work side by
side with and know each of the employees very well. They are
not faceless numbers. Problems of all sorts are discussed.
Suggested course of actions are developed and implemented. The
problems are brought to management's attention and acted upon
immediately, because we are working together.
The hazard information and reporting element has
instructions that are incredibly broad and vague. I prefer to
know absolutely if and when I am in compliance. OSHA's goal
should be to identify specific problems with known solutions
that are effective and proven, because that is what we do now
in our business, and that is how we stay in business.
The work restriction provision is troubling to me, as are
the provisions that mean we have to change our facilities. We
don't control all of our facilities. We rent space, and we
don't have the control over those facilities and could not
control them if we needed to.
In conclusion, our company is very concerned with safety
and the health of our employees. If OSHA were to set forth an
affirmative rule showing me how I can protect my employees from
MSDs in the workplace, I would most certainly embrace it.
This rule will have a negative impact on our business with
no guaranteed benefits.
I appreciate the opportunity to offer the comments, commend
you for holding this important meeting. If I can answer any
questions later, I would be happy to. Thank you.
[Mr. Kremp's statement may be found in appendix.]
Chairwoman Kelly. Thank you very much, Mr. Kremp. We are
going to move on now to Mr. Russ. He is Administrator of the
Bay Care Center in New Rochelle, New York, and he is here for
the American Health Care Association.
Thank you, Mr. Russ.
STATEMENT OF MR. RUSS, ADMINISTRATOR, BAY CARE CENTER, NEW
ROCHELLE, NEW YORK
Mr. Russ. Thank you, Madam Chairwoman. Good afternoon,
ranking member Pascrell and members of the Subcommittee.
Just as a casual aside, I bring to you, Madam Chairwoman,
the warmest regards from other health care providers in your
home district. We have always felt that you have been able to
champion that delicate balance between the needs and
aspirations of health care providers, their dedicated workforce
as well as the patients we serve.
I am the Administrator and partner in my family's business,
Bayberry Care Center, in New Rochelle, New York. Bayberry is a
60-bed, skilled nursing facility employing 50 full-time and 30
part-time professional and nonprofessional staff, most of whom
are direct caregivers.
I am here today, as you mentioned, representing the
American Health Care Association, a federation of affiliated
associations representing more than 12,000 nonprofit and for-
profit nursing facilities, assisted living, residential care,
and intermediate care for the mentally retarded and sub-acute
care providers. AHCA's member facilities employ more than 1.2
million workers, the majority of whom are front-line
caregivers.
First, I just want to make two broad points. I want to tell
you that the imposition of these regulations would surely
result in the diversion of scarce resources from recruitment
and retention of caregivers in the tightest labor market we
have ever experienced. This would divert our desperately needed
resources away from wages and benefits and towards regulatory
compliance, an area which remains clearly ambiguous--which may
sound like an oxymoron but that is something we have had to
wrestle with.
Second, the standard will also create a barrier between
patient and caregiver, and ironically but not surprisingly
conflicts with the Health Care Finance Administration's own
regulations, which is the primary regulatory agency governing
the quality of life of our patients.
AHCA and its members recognize and emphasize the importance
of employers protecting workers from recurring or exacerbating
pre-existing MSDs. Long-term care employers like myself care
deeply about the health and welfare of our employees. We
realize that the health and well-being of our patients is tied
directly to the health of our caregivers. Indeed, we know that
the physical well-being of our caregivers is actually essential
to the delivery of the optimal quality of care.
Recognizing that the potential physical challenges
associated with caring for the frail and the elderly, my
facility has worked to reduce injuries to our caregivers for
many years. I would like to share some of those elements of my
program with you.
For more than the last two decades, we have used mechanical
lifts. The most commonly known is a Hoya lift. These are used
to elevate and transfer the most physically challenged
patients. There are many types of such lifts on the market, and
most operate according to the same basic principle of
positioning a resident securely in a seated position on a
canvass sling that is cranked and elevated mechanically. The
frame of the device is mounted on wheels enabling the transfer
of the patient to a desired location where the resident is
lowered and released. Our caregivers are also given back braces
for use during lifting and transferring, which most employees
use routinely.
I found it somewhat ironic, in listening to Assistant
Commissioner Jeffress, who pointed to the facility in Oklahoma
and the inordinate success they have had in their voluntary
program of compliance. We, too, have had incredible success. In
fact, we have never known or experienced any MSD injuries at
all.
It is ironic that, given the track record of the double-
digit percentage reduction in these MSDs that he, himself,
pointed to, that we would now have to go into an ergonomic
standard when we are making such incredible progress on the
voluntary side with the existing programs. What we need,
perhaps, from OSHA is guidance. What we do not need are new
guidelines.
The lift and transfer of patients from bed to a wheelchair,
from the bed to the bathroom, are events that occur repeatedly
throughout the day. They are an integral part of the resident's
care and the safety of the caregiver.
Now, when the resident is admitted to the facility, we are
required by Federal regulation to assess that resident and
every aspect of their activities of daily living. One of the
key things that we are required to do by Federal and state
regulation is to ask them how they would want to be lifted if
that is what they need. If they prefer to be lifted by
caregivers--and most of them do prefer that, preferring, of
course, the intimate and warm contact with another person and
not wanting to feel dehumanized by the possibility of being
lifted by a mechanical device--we have to adhere and honor
their requests. The regulations of the Health Care Financing
Administration are designed to protect residents' dignity. If a
caregiver were to follow that, they would possibly be in
violation of OSHA's regulations.
More than anything, this paradox illustrates an overall
dilemma that we face in long-term care, which are layers of
conflicting regulations promulgated by different Federal
agencies which are either unaware of or indifferent to each
other's mandates. This is where Federal standards work at cross
purposes. HCFA requires caregivers to followthe residents'
requests, but OSHA imposes ergonomic standards favoring mechanical
lifts. There is no resolution. I was asked to tell you whether I
believe the current programs for my facility will grandfather me into
OSHA's ergonomic standard. The honest answer is I am not really sure.
Chairwoman Kelly. Mr. Russ, I am sorry, but the five
minutes is up. Could you please summarize?
Mr. Russ. I sure can. To put in simple terms, to equip a
120-bed facility with moderate or heavy acuity including state-
of-the-art resident-lifting equipment would cost approximately
$30,000. Long-term care is in a financially fragile position.
It is a simple reality that business cannot ignore the costs of
regulation. With almost ten percent of all nursing facilities
right now in bankruptcy, the desperately needed resources to
comply with this ambiguous regulation simply are not there. We
are not, like other businesses, able to raise prices. We are
paid for largely by Medicare and Medicaid. Unless the
government is prepared to finance and fund this unfunded
mandate, there is absolutely no way that we are going to have
the resources to do so.
Our first priority is the health and safety and dignity of
those for whom we care, and our providers are committed to
that.
[Mr. Russ' statement may be found in appendix.]
Chairwoman Kelly. Thank you very much. We have been called
for another vote.
We have a few minutes. In that time period, I would like to
call on you, Mr. Saxon.
You are our last witness on this panel, and, if you can
manage to fit this in five minutes, we can get your testimony
in and still get to our vote on time.
Mr. Saxon is President of Conco Systems of Verona,
Pennsylvania, and he is here for the National Small Business
United. Welcome.
STATEMENT OF MR. EDWARD SAXON, PRESIDENT, CONCO SYSTEMS,
VERONA, PENNSYLVANIA
Mr. Saxon. Thank you very much, Chairwoman Kelly, ranking
member Pascrell, and members of the Subcommittee on Regulatory
Affairs and Paperwork Reduction.
Thank you. My name is Ed Saxon, President and Chief
Executive Officer of Conco Systems, Incorporated, in Verona,
Pennsylvania. My family in Conco Systems employs approximately
80 people in our efforts to provide condenser-related tools and
services to the fire generation industry. I am also here
representing the National Small Business United, the nation's
oldest small business advocacy organization, and SMC Business
Councils of Pennsylvania.
I respectfully submit this testimony regarding the impact
of OSHA's ergonomics rulemaking on behalf of the NSBU and SMC.
The promulgation of a mandatory workplace ergonomics
standard is a substantial concern to all small businesses.
Small business will be significantly and adversely affected by
this standard as it is currently written. As a small business
owner, worker, workplace safety and health is a vital concern
to me, but I do not feel that the ergonomics proposal as it
appears now is the best means of addressing this problem. Thus,
I am, as is NSBU and SMC, strenuously opposed to the
promulgation of final ergonomics standards in its current form.
I urge OSHA to take a step back, gather all the relevant
information, comments, and research, to re-evaluate the
ergonomics proposal. Barring that, I ask the Congress to
intervene to protect small business from an improperly
promulgated ergonomics standard.
Let me share a cautionary tale from my own business, Conco
Systems. In October, 1990, Conco hired a part-time employee as
a general laborer and pump mechanic. In November of '92, this
employee began to complain of pain in his right wrist. The pain
was originally diagnosed as a possible slight carpal tunnel
syndrome. Surgery was a possibility. This employee went for
further testing, and it was found that CTS was an incorrect
diagnosis. The patient was sent to a neurologist for further
examination.
At that time, November of '91, this person's workers'
compensation claim was denied as a result of a diagnosis that
the problem was not CTS and could not be traced to any work-
related incident. The patient-employee continued to pursue his
claim even after being laid off as a result of reduced
workload. Some years later in July of '94, this former
employee's workers' compensation claim was approved, granting
him medical expenses and back wage benefits to February, '92,
plus penalties and interest, even though he had left the state
and removed himself from the workforce. On January 11th, 1999,
the case was closed on appeal reversing the July, '94 position,
claiming that this employee was responsible for restitution,
which, of course, never happened. This former employee made it
perfectly clear that he had no intention of returning to work,
either at Conco or anywhere else.
Not only are these injuries hard to diagnose and trace to
any specific incidents, work-related or otherwise, they are
often impossible to evaluate in an effective manner. To place
the burden on the small business employer to resolve problems
that medical professionals nor workers' compensation courts
cannot determine is not fair.
If the current proposed ergonomics regulation were in place
when this incident occurred, this single incident would have
required Conco Systems to investigate this pump mechanic's job
and find ways for him to perform the functions without further
aggravating his injuries, at great expense and time. It clearly
would have potentially opened the door to further claims by
other Conco Systems employees, although the so-called claim was
shown to be unrelated to the workplace and the workers'
compensation award reversed by the courts. Nonetheless, the so-
called claim was made and accepted at one level of the workers'
compensation program. This would likely be significant enough a
situation to have triggered the currently proposed ergonomics
standard at Conco.
What this one example illustrates, an example that is, no
doubt, duplicated almost every day across this country in many
small businesses, is the potentially devastating impact that a
poorly thought out ergonomics standard with loose definitions
and overly easy triggers and harshrepercussions can have on
honest, productive small businesses like mine. I know that many of my
fellow panelists will go into great detail as I have in the written
statement. So, I will leave the detailed critiques and suggestions to
my submitted written testimony.
Let me conclude by stating clearly that, as a
representative of National Small Business United and SMC
Business Councils, as a small business owner, I strongly urge
OSHA to reconsider the release of their ergonomics standard
without a more complete review. I also encourage Congress to
take the action to stop them if they do not.
In summary, I really don't believe OSHA should be in the
insurance business providing benefits to injured employees. The
standard addresses existing conditions, not only ones caused
but aggravation on existing conditions.
None of the testimony of Mr. Jeffress was relevant to small
business, and, with regard to Mr. Pascrell's statement on the
pollution analogy, let me say that there are no longer hardly
any small foundries left in the United States as a result of
that program.
Thank you for your time.
[Mr. Saxon's statement may be found in appendix.]
Chairwoman Kelly. Thank you very much, Mr. Saxon. You came
right in right on the dot. That was very impressive.
Mr. Saxon. Us small business guys are efficient and operate
well under pressure.
Chairwoman Kelly. Way to go, Mr. Saxon. We have been called
for a vote.
I am going to take a short ten-minute break. When we come
back, we will go directly to the questions for the panelists.
Then, we will move on to the third panel. Thank you very much.
[Recess.]
Chairwoman Kelly. Thank you very much. I am just going to
continue to go right on here.
I am going to start with my own personal questioning with
you, Ms. O'Shaughnessy. You are evidently an expert in this
field, although you don't want to be called an expert since you
say the field is so young.
But, given your knowledge of the field, you say you
couldn't tell your employer what constitutes compliance for the
proposed standard. What if you went to another job? Can you
come up, tell them, another manufacturer, how to comply with
the proposed standard?
Ms. O'Shaughnessy. To clarify that, I believe my statement
was we could figure out how to comply with our interpretation
of the standard. But, that is not necessarily equal to OSHA or
the specific auditor's perception or interpretation of the
standard, and that is a major issue.
Chairwoman Kelly. I am sorry if I mischaracterized it. That
is exactly what you did say.
Ms. O'Shaughnessy. I think I could at my current employer.
I could help them interpret it and apply it effectively as well
as a new employer.
Chairwoman Kelly. You think you could?
Ms. O'Shaughnessy. I do, because I have a background in it.
I don't mind being called an expert, because it is a new
profession. It is constantly growing and learning and changing.
It wasn't an insult as much as a fact. I think I could. I have
legal advisors. I have the background--academic and practical
background. Not every small business has that.
I think I would have some difficulty complying with it,
and, in the event of an audit, I would have difficulty working
with that particular auditor and their personality, which comes
into play with the regulation.
If I am going to have difficulty complying with it, 90
percent of small businesses are going to have difficulty and
will not be able to comply with this.
Chairwoman Kelly. If you were going into, say, Mr. Landon's
business--now, I shouldn't say you.
But, suppose someone went into Mr. Landon's business and
started to just talk with him about compliance, and they didn't
have your background. What I am driving at here is you stated
in your testimony that there is a large number of charlatans
and snake-oil salesmen that are selling ergonomic advice. I
think that is an important point, and, if you got one of those
folks going into Mr. Landon's business, how can he protect
himself from that sort of thing?
Ms. O'Shaughnessy. It is very difficult, and I think one of
the things we have to caution ourselves with as we go out and
find consultants--which small businesses have to do to comply
with standards--OSHA's free consultants are not always
available.
We are not necessarily comfortable using them. Many times
we get a consultant with a flashy program that speaks very well
to a group, has very nice graphics and slogans. However, they
just have enough knowledge to be dangerous. Having enough
knowledge to be dangerous and not enough knowledge to be
effective can be a real downfall.
Chairwoman Kelly. Well, Mr. Landon, we caution you then.
Get somebody who has got some real expertise in the field.
[Laughter.]
And, obviously, according to Ms. O'Shaughnessy, this is
going to be a little more difficult than one would think.
One of the things that OSHA mentions is that one way to
avoid all of the problem is being able to utilize the so-called
quick fix. How easy would it be in your business, since I know
you have large pieces of machinery, to reconfigure your shop
floor to do a quick fix? Would it be possible to do it at all?
Ms. O'Shaughnessy. It really depends on the level of the
hazard.
If we are talking about a broom handle, of course, that
would be easier. If we are talking about moving the entrance of
a machine so what is fed in is at a different height for
differently-abled or different-heighted people, that can go
into tens of thousands of dollars. Doing something like that is
going to be prohibitive under budgetary constraints, time
constraints, business constraints, customer constraints, where
we are really going to reap the benefits of making those
changes and not necessarily because of the difficulty of
finding the actual cost, and fixing the problem.
Chairwoman Kelly. One of the things that occurred to me
when you talked about someone feeding a machine is that there
is usually a fairly big difference between the size of a woman
and the size of a man. If you have a factory that is running,
manufacturing 24 hours a day, seven days a week--as plenty of
them do--and you have a man feeding something into a machine,
and a woman with amuch smaller stature comes to take over in
that job, how easy will it be for someone to look at this from an
ergonomics standpoint and make sure that either the man or the woman
don't fall into the MSD problem, if there has been a demonstrated
problem at that machine?
Ms. O'Shaughnessy. How easy would it be to find the
problem, or how easy would it be to fix it? To fix it would
probably be very easy, because you can find all kinds of
mechanical and engineering means to do it.
The cost of those may mean that you cannot do it
immediately or that you remove that employee, which kind of
negates our whole intent of protecting the worker, because we
are removing the worker. Finding a feasible fix is not so easy.
A lot of these machines are over 50 years old, if you will--
fixed heavy metal, heavy industry machines, and are not
changeable. So, this will bind our hands considerably.
Chairwoman Kelly. Thank you. I am going to jump to Mr.
Landon.
Mr. Landon, have any of your employees ever requested a
change in their work environment based on musculoskeletal
problems? If so, how did you handle it?
Mr. Landon. No, they haven't, and I need to go into that a
little deeper. I have just one full-time employee whose range
of duties cover the gamut and can change drastically from one
day to the next. But, no, I have not.
Chairwoman Kelly. I am interested, on page two of your
testimony, you note that you have already spent 20 hours
reading the proposed standard and the preamble.
Congratulations. Have you read the economic analysis in which
OSHA assesses various workplace controls for correcting
ergonomic problems? Or, did you simply surrender after trying
to wade through the preamble and the rule?
Mr. Landon. ``Wade'' is a good choice of words. I did
attempt to read some of the economic analysis. I have mentioned
I am not a safety expert. I am also not an economist. I have to
say that most of it was Greek to me.
Chairwoman Kelly. This is it. You don't feel you have a
real grasp of it.
Mr. Landon. No.
Chairwoman Kelly. As a small businessperson, it is going to
take you hours to try to understand this. Is that what you
feel? It would take any of us in small business probably the
same amount of time.
Mr. Landon. Absolutely, and, as I mentioned, I have spent a
great amount of time already and have not yet been able to
fully understand the rule and, particularly, even understand
whether or not I am going to initially come under the rule that
is not that clear. I don't have a clear answer to that yet.
Chairwoman Kelly. I want to go to something that I
tentatively raised with Mr. Jeffress. I am going to follow up
in some of my line of questioning with him.
I want to talk about that with you. As a small
businessperson, you pay workers' compensation. Who determines--
Just for the record, who determines whether an injury is
covered under workers' compensation?
Mr. Landon. My experience, since I have not had injuries--I
really have to honestly say I don't know the answer to that. I
would assume it would be the physician who examined the
employee.
Chairwoman Kelly. Who would determine whether the injury
triggers fixing the job or the worker restrictions?
Mr. Landon. As the rule reads, it is the employer's
responsibility. Again, besides not being a safety expert nor an
economist, I am also not a health care professional, so it
would be a pretty tough call for me.
Chairwoman Kelly. So you don't feel you have the expertise?
Mr. Landon. No, I don't.
Chairwoman Kelly. Do you feel this is a pretty heavy load
that is falling on your shoulders?
Mr. Landon. I feel it would be a tremendous burden. I can
see huge portions of my time being taken up trying to comply
with the rule, taking me away from far more productive uses of
my time.
Chairwoman Kelly. If the standard is issued, what do you
think it should include to make sure that you could cost-
effectively implement it and ensure that you are protecting not
only yourself, since you work with your workers, but your
workers, also?
Mr. Landon. I am not sure I could suggest a modification to
the rule that would fit very small businesses such as mine. To
go a little further on that point, one thing I think the rule
doesn't take into account is the unique characteristics of very
small businesses such as mine and how we currently deal with
health and safety based on these personal relationships that
exist in our business.
My employees are, all three of them, either family or very
close friends. These are relationships that don't exist in
larger businesses. OSHA has done nothing to allow for that
difference between very small businesses and larger businesses.
Chairwoman Kelly. But you would work with them, I assume,
and you just would automatically protect them and take care of
whatever injury they might experience, and try to work to
correct it on your own.
Mr. Landon. Absolutely.
Chairwoman Kelly. I am going to just go on to my questions
for Mr. Kremp.
I was really fascinated, Mr. Kremp, when I read your
testimony about the experience you had with the worker with the
MSD injury. Do you mind describing that injury that was
suffered by your employee and talk about the time that was
missed?
Mr. Kremp. Could you tell me just which injury? I wonder if
that was in my testimony, because we really haven't had any
serious MSD injuries.
Chairwoman Kelly. I'm sorry. I see where it is. It is
here.--Over the past several years, our problems have been
negligible, in fact, only nine injuries. Only four of the
injuries required compensation, and only one was related to
musculoskeletal disorders. Now, that is from your testimony,
actually, sir. That is on page four.
Mr. Kremp. Yes, and I believe that these were--There was a
strain when someone lifted a box. We reported it, but it was
not serious enough for them to feel they needed compensation.
The way that this was handled was that our employee reported to
my son that he had strained his back lifting this box and he
didn't need to go to the doctor.We said. Take it easy and see
how this works. We reported it, as we have to with any injuries on the
job. Within a couple of days, he felt better. He worked for us for
several years and has since that point. So, he was accommodated in that
we told him to take it easy and don't do any lifting and let it get
better.
Now, the injury may have been caused by some activity that
was beyond the workplace or it may be that, at that one time,
he did something in a manner in which he should not have. But,
it was a minor injury that repaired itself in the normal course
of healing. We accommodated it. We accommodated it in the
normal way that we do business.
A similar situation happened with another employee, where
they twisted an ankle when they were setting up a display. We
did the same thing--allowed him to have activities at work that
would not make this position more severe.
We have had situations where the workers themselves would
help each other. For instance, we have an elderly gentleman who
was not able to lift large boxes--and they are not that large.
A woman that works for us helped him. I remember seeing this so
clearly--helped him carry them in.
So, I think that the situation is such in a business where
no one wants pain. A businessperson doesn't want pain for their
employees. They don't want it for themselves, and the
procedures are in place to prevent pain, and those procedures
start out with common sense.
Chairwoman Kelly. Mr. Kremp, having some familiarity with
the florist business, I am very interested in asking you this
next question, which is how easy is it for you to find floral
designers? And, no, I am not yet applying for a job.
Mr. Kremp. Open for a draft. I understand you are off next
week or Easter week.
Chairwoman Kelly. I am pretty fast, Mr. Kremp. I have
learned.
Mr. Kremp. You wouldn't have to twist my arm. In most small
businesses now, especially with the fact that it is a tight
labor market, we are able to attract employees because we are
able to provide them with a job they like to do. So, we have a
lot of people to come to us to be floral designers, because
that is really what they want to do.
Now, when they come to us and that is what they want to do,
it is unrealistic to think that, if they have some kind of an
injury, that we are going to say. Okay, now you are going to be
a truck driver, or you are going to work in the greenhouse.
There are very specific tasks that people like to do, and so
that is another part of this provision that really doesn't
reflect reality. Reality should be in being able to give to
workers the jobs that they like to do.
Chairwoman Kelly. How easy is it to find a floral designer
on a temporary basis?
Mr. Kremp. It is next to impossible. For us to have floral
designers, we have to start when they have people come in to do
odd tasks and then train them over years so that we will have
them. We hire people now to wrap and to do trimming of plants
so that we can train them over years, so that, maybe in two
years, we will have a floral designer.
Chairwoman Kelly. What happens if one of your floral
designers goes out? How do you cover that right now?
Mr. Kremp. That person who is trimming plants becomes a
floral designer much more quickly. We all just have to fill in,
and a lot of it, quite honestly, is with the management, as I
said earlier. My four sons, one daughter-in-law, my wife, and
myself are in this business, and there is nothing in the
business that we don't do ourselves, and so we have to fill in
on those jobs.
Chairwoman Kelly. Would this law make any difference in the
way you handle your employees and the way you are able to
handle these situations?
Mr. Kremp. It would make such a difference that it would
completely change the way that we do business. I am in a unique
position that I have four sons that can share the load of these
management tasks. I am representing-- As I said, there's 16,000
retail florists in the Society of American Florists. Most of
those companies, there's one owner and a couple of employees.
What would discourage these people--other people from going
into business is that, instead of being a florist, they are
going to have to be a safety expert and a bureaucrat and going
on doing things that are not close to the business.
The situation in small business today is such that these
problems are being taken care of because of what was said
earlier. We care about the people we work with, and what is
being put upon us now are tasks that many would not like to do
and will discourage people from going into business.
Chairwoman Kelly. Thank you, Mr. Kremp. I am going to go to
Mr. Pascrell to ask questions of this panel.
I thank you all very much. Mr. Russ, I am going to ask you
a couple of questions in a few minutes.
Mr. Pascrell. Thank you, Madam Chairlady. First, I think we
need to clear up, once and for all, that there is nothing in
the regulations that says that any company has to hire a safety
officer. Some of you have referred to safety officers in your
testimony, and some of you have said--Two of you have said that
you may have to go out and hire a safety officer because you
feel that the rule is complicated or ambiguous. Somebody used
that word. But, there is nothing in the rule which in any
manner, shape, or form can be construed to mean that you are
mandated to hire a public safety officer.
Now, look, I am an easy person to get along with through
the Chair. Very easy. But, you know, you cannot have selective
memory and stack the deck without looking at the entire
regulation.
You don't want to do that, because I am trying to be very
objective and very open-minded. But, I am telling you now, if
there is or there has not been any MSD at your workplace, you
will not be affected by this OSHA standard rule. Call it
whatever you want. And, I am going to repeat that again.
I am going to ask each and every one of you, and I want you
to answer for the record, please, through the Chair, do you
have, Mr. Landon, an MSD complaint at your workplace--any of
the five that you have--four or five places, locations? Yes or
no.
Mr. Landon. The answer to that question is no.
Mr. Pascrell. Mr. Russ, do you have, at any of your
places--and you are including the whole Association, or just
where you work in New Rochelle, New York--do you have any
complaints against the company--the corporation?
Mr. Russ. Against my facility? I don't have any formal
complaints right now.
However, I have had people complain about----
Mr. Pascrell. The weather and things like that?
Mr. Russ. About things that might, under this standard, be
construed as MSDs.
Mr. Pascrell. But you haven't had a complaint as such?
Mr. Russ. No, and I can expect that I would.
Mr. Pascrell. Excuse me, what does that mean, you could
expect that you would?
If this rule--If it were going into effect tomorrow
morning, you could expect the complaint pretty soon afterwards?
Mr. Russ. I would think so, absolutely.
Mr. Pascrell. Explain that.
Mr. Russ. Because we have people doing manual things, doing
lifting, they will often complain. I think my back hurts. If
there is an opportunity for such remedies as work protection,
which is to possibly collect 90 percent of your salary while
not working, for up to six months, I can assure you that many
of our employees could theoretically, and possibly very well
expectedly, take advantage of that.
Mr. Pascrell. Mr. Russ, the answer to the question,
therefore, is no. For you to imply or for me to imply that,
because a rule or a standard goes into effect, that everybody
is going is jump on the gravy train, to me, is part of the
problem for us to clearly see through the fog at the objective
that we all want.
Mr. Russ. With all due respect----
Mr. Pascrell. Excuse me. To protect the workers. You said
that yourself. Isn't that your objective?
Mr. Russ. Absolutely.
Mr. Pascrell. Then we are on the same thing.
Mr. Russ. That is particularly why we state that we don't
need this rule to protect the workers.
Mr. Pascrell. It doesn't even apply to you so far.
Mr. Russ. But it could well.
Mr. Pascrell. Mr. Saxon, have you had any MSD complaints at
your workplace?
Mr. Saxon. Yes.
Mr. Pascrell. Would you just briefly----
Mr. Saxon. The one that I detailed, and we have
occasionally a sore back problem.
Mr. Pascrell. So you would have to--Let's say, if this rule
was in effect, you would have to put some plan into operation
to indicate that you would prevent this from happening in the
future as it is now? As the rule stands now or as a proposal.
Mr. Saxon. Sure.
Mr. Pascrell. Let me ask you a question. When the complaint
was made to you or to your corporation--your company--did you
think about putting something into effect or finding ways that
maybe we could alleviate the conditions that produced the pain,
or whatever? Or the injury? Did you think about that?
Mr. Saxon. Not with regard to the case that I detailed in
here, because the perusal of the job and the review of the job,
and our knowledge of the job, was that that didn't cause that
injury. We did put into consideration alternative workload for
that individual. Before that guy, and since that guy, nobody
having that job has ever had the complaint.
Mr. Pascrell. Thank you very much for your honesty, Mr.
Saxon.
Now, next, Mr. Kremp, do you have any MSD complaints in any
of your shops?
Mr. Kremp. Yes.
Mr. Pascrell. You explained before, basically, one of the
situations and what happened.
Mr. Kremp. Yes, and I am sure that, over the course of
many, many years, there have been other times when someone has
pulled something or turned in a funny way so that they have had
what would be described as this. I have been in the business
for 40 years, and I know, over that time, I have had that
happen to me. So, yes, that has happened.
Mr. Pascrell. OSHA, Mr. Kremp--and correct me if I am
wrong, Madam Chairlady--OSHA does not instruct anybody how to
protect the workers in the workplace. They can give you
information, but they do not instruct, so there is really no
mandate except if there is a complaint made against your
business or my business. Then, they are asking you to put a
plan together that would try to avoid this in the future. What
is so demonic about that?
Mr. Kremp. I think that is a stronger term than I would
use. I think that it is impractical, and the reason is that, as
I read through the proposal, I found out that I am not really
qualified to make some of the recommendations, in which case I
would need to have the expert come in in order to come up with
a solution that would satisfy the needs of OSHA. So, that is
why I think it takes it from where we do things as we now do
them, which is react to an individual where there is a problem
and say. You know, you shouldn't be lifting that.
Mr. Pascrell. I would think, Mr. Kremp, that some part of
the standards or some part of the rule needs to be a little bit
more flexible. I would even say that, but we are not talking
about if there is a complaint. We are mostly talking about a
proactive plan. This is my perception. This is my reading of
what OSHA is projecting, a proactive plan that will avoid those
problems for you in the future. But, OSHA is not giving you
that. They are saying you will have to come up with it in your
own business, which is better for you, isn't it, than if they
imposed?
Mr. Kremp. It wouldn't be in certain cases.
Mr. Pascrell. They are not the experts in the florist
business.
Mr. Kremp. But I am not an expert in carpal tunnel
syndrome.
Mr. Pascrell. Nor am I.
Mr. Kremp. That is one area that really concerns me. I
would love to have somebody tell me how to prevent that from
happening to me, because I don't want that to happen to me.
Mr. Pascrell. You asked a very legitimate question, and I
believe OSHA, from what I have questioned them about before
this meeting, what I have read, what I have heard today, has an
obligation to provide to you, as to every other business
community, some help in getting that information.
I believe they have that obligation, and the question that
I asked or was about to ask two persons ago was have any of you
used, Mr. Saxon and Mr. Kremp, the local--the state
freeprograms that are available in all 50 states and have been
available for many years? I ask that question rhetorically.
Mr. Kremp. I would be happy to answer. We didn't, because
we had an OSHA inspector come in and made recommendations. We
went through, and we followed all of those, and I think what
has happened over time, because there is such a program, is we
are conscious of hazards, and I think that is fine.
Mr. Pascrell. I think that is important.
Mr. Kremp. But, with this, we need to have a specific
course of action to follow, because it's areas that we know
nothing about.
Mr. Pascrell. Mr. Kremp, you sound like a very
conscientious businessman. I don't say that to pander to you. I
listen to what you have to say, but we are not going to win
this battle to bring some sanity to the process of regulation
by going to either extreme. What we need to do is find some
common ground that you can live with that is not going to break
the bank. I understand that, but, where the message is very
clear, all employers--not just Mr. Kremp who is very
conscientious--all employers have an obligation to their
workers. Now, I think, within that common ground, we can find
some rules that we can agree with. That is my opinion. I may be
wrong.
Mr. Kremp. I think we agreed right away, and that is to
definitively tell us how to take care of the problems which we
are faced with.
Mr. Pascrell. Thank you, Mr. Kremp. Appreciate that. Now,
Ms. O'Shaughnessy----
Chairwoman Kelly. Will the gentleman yield? I think it is
important to put on the record that all manufacturers are
required to implement portions of this rule immediately,
whether there is an MSD or not. I think that is important to
put in the record, because manufacturers, in particular, have
been singled out to have to comply with the rule whether there
is an MSD or not. They don't have to wait. They just have to
comply, and there is nothing in the rule that indicates, even
from our talk with Mr. Jeffress, how they do that, so I think
that is important to note.
Mr. Pascrell. It is very important, but, again, the
question of complaints is at the very axis of this entire
regulatory process. No one is asking anybody to go out and
spend money now to put in all different kinds of apparatus if
there's no complaints.
I don't see that in the rule. I don't see that anyplace in
the rule. I do not see where the person who owns a company, who
owns a business, has to spend any money now to predate the
problem if there are no problems.
Now, whether the rule goes into effect with manufacturers
at a different period of time than would ordinarily be, that is
another question. We are not finished with the rule, and, as
you heard OSHA say, they are not finished with the rule.
All I can say is no complaints, no problem. And, let me ask
you that question. Do you have in your business an MSD
complaint?
Ms. O'Shaughnessy. We are quite a bit larger than most of
my other panelists. We have almost 500 employees at one
location, and, yes, we have plenty. Thirty-five percent of our
injuries are what you could loosely consider a soft-tissue
injury or a musculoskeletal disorder. What that translates to,
in 1999, we had over 40 workers' comp cases and over 20 OSHA
recordables.
Keep in mind, for nine years running, we won the Copper
Development Association safety award, which meant that we had
the best safety record in the industry. So, we are excellent
performers in the field of safety. We have had huge successes
in lowering our workers' comp, OSHA recordables, and to tell us
that we need to have a totally new program just for ergonomic
injuries that we are treating exactly the same as every other
injury--effectively we are treating that--I think is out of the
question.
Mr. Pascrell. If we duplicated what we already are doing, I
would agree with you. I said that two hours ago, but the
question is the standards by which you are judged, for which
your company got the award, may be inclusive, and may not be. I
think you can understand that, and there may be things that
they looked at or didn't look at that should be considered.
I am not questioning whether you deserved it or not. That
is not what I am saying at all. What I am saying is, the next
panel that is going to come on, you are going to hear folks
that are representing the workers.
I know your answer is not going to be to them, if I may be
so bold to anticipate, that you ought to depend upon the
company to do the best it can and just assume that it is doing
the best it can, because what you are doing is one thing. What
all companies are doing may be another thing altogether.
Ms. O'Shaughnessy. With all due respect, I take offense at
you saying I am not representing my workers, because it is of
the utmost priority--the safety of every worker's safety in my
plant and in my offices. That is where we begin and end.
Mr. Pascrell. I didn't say that, nor did I imply that.
Ms. O'Shaughnessy. I represent the workers. I want to
protect their safety, and what we choose to do is involve every
single worker in all of our resources in order to treat every
hazard, whether it is for a musculoskeletal disorder or a slip
and fall, or a crushing injury, no matter what, and treat them
the same and have our recordkeeping and our hazard analysis,
and our abatement issues treated all the same. We have been
effective, and we represent other manufacturers, I think. I
don't think too many are far different from us.
Mr. Pascrell. I don't question what you said one second.
That is not the issue. The issue is can we have a universal
rule?
First of all, it doesn't fit everybody. We know that, but
can we have a universal rule that is somewhat flexible, that
can basically prod the process and make sure that folks are
responding to the employees that work for them.
Let me tell you something. We are not going to get away
with no regulation. It isn't going to happen, so isn't it best
that we work together to come up with something that we can
live with? Or, do you want to insist on fighting the fight you
cannot win? You can't win it. There's going to be a regulation.
Don't we want to have input into it? I would think that that is
what we want to do.
Ms. O'Shaughnessy. In response to that question, on page
eight and page nine of my testimony, I specifically addressed
that question because I think that is an excellent question.
If we are going to have a regulation, I suggest several
appropriate areas in which to allocate our funds and our
resources, including defining quantifiable methods for
assessing the risk and measuring an injury, and rehabilitation
and so on, in addition to outlining clear and effective program
elements which the standard lacks of right now, and providing
the manner to create and manage a successful in-house program,
not putting an excessive burden of consultants, and so on, on
us as an employer.
Mr. Pascrell. On page five of your testimony, you state
that OSHA's WRP provision will increase the number of
fraudulent workplace injury claims.
That is on page five of your testimony. Are you with me?
Ms. O'Shaughnessy. You might be talking about a different--
--
Mr. Pascrell. In the last paragraph.
Ms. O'Shaughnessy. Not to mention an increase in fraud?
Yes.
Mr. Pascrell. Okay, that is what you say.
Ms. O'Shaughnessy. I am with you now.
Mr. Pascrell. You say that it will increase the number of
fraudulent workplace injury claims.
That is a pretty broad statement, Madam Chairlady. We don't
know what those workers are going to do.
Ms. O'Shaughnessy. We do.
Mr. Pascrell. Oh, you do. Let me finish the question, if I
may. On what evidence do you base this statement?
Ms. O'Shaughnessy. Past history.
Mr. Pascrell. Tell us about it.
Ms. O'Shaughnessy. I have worked at many companies, from
looking at animal caretakers in genetics testing facilities to
wire- and cable-making to consumer products manufacturing. I
don't remember who said it, but knowledge of a class of
injuries increases the occurrence. Did you ever hear of carpal
tunnel before ten, 20 years ago?
You can't tell me it didn't exist at the turn of the
century in much greater percentages and much greater numbers
than we have now. However, we didn't have any instances of
carpal tunnel until we had the name of it and the knowledge of
it.
The same thing is going to happen, and it will create a
greater knowledge of the injury. Therefore, as I state also on
page five, OSHA's plan will give 90 percent to 100 percent of
pay to workers who claim musculoskeletal injuries.
Mr. Pascrell. This is a very good part of this testimony.
I find it very fascinating and interesting, because--I'm
sorry, I thought you were done.
Ms. O'Shaughnessy. No, I wasn't. In New York state
currently, workers' comp cases are approximately two-thirds. It
is not that difficult to diagnose any type of injury as
musculoskeletal injury and, therefore, get 90 to 100 percent of
your pay as opposed to two-thirds of your pay for a simple
workers' comp. Now I am finished.
Mr. Pascrell. Thank you. I think we have a serious problem
here. I'll be very honest with you, because the many industries
that I have reviewed, where there is repetitive activity and
where there is a major problem, I am not concerned about what
it is called, I am not concerned about the nomenclature, I am
concerned about whether there was injury or pain.
What you call it is secondary and that it was caused by
work. People simply assume that this was part of the job. Now,
we have grown. The state of the art has grown. What we accepted
20 years ago we don't accept now. Your job, my job, we try to
make things a little bit more easy in an imperfect world.
Couldn't I just as easily say that OSHA's WRP provision will
increase the number of employers who will discourage their
employees from reporting workplace injuries? Couldn't that be
the case, also?
Ms. O'Shaughnessy. It could, but there is an increase in
fines and ramifications against employers for not reporting if
they are found out during an OSHA audit or a walk-through or a
free consultancy visit, and so on.
Mr. Pascrell. It works both ways is my point, okay? That is
why we must work together to come up with a rule that we can
live with. We can't fight it and think that it is going to go
away. Then, we won't have to worry about these repetitive
injuries.
Chairwoman Kelly. If the gentleman will yield, I don't
think these people are really feeling as though they are
fighting the rule. What they are trying to do is trying to have
some input so that this rulemaking mechanism works for them to
help them protect their workers. I don't mean to disagree with
you, my friend, but I do think that the whole point of this
hearing is to let them have a voice in this rulemaking process,
which they might not otherwise have had.
Mr. Pascrell. Madam Chairlady, let us disagree then. It
doesn't in any manner, shape, or form decrease my respect and
my admiration for you. But, that is not what I heard from three
of those testifying today. They don't want the rule. You ask
them. Thank you.
Chairwoman Kelly. Thank you very much, Mr. Pascrell. Being
a small businessperson, having had a couple of small businesses
and having my family in it, I do understand, Mr. Kremp, Mr.
Russ, Mr. Landon. I know that you are there working on the
floor with your workers.
Anything that comes out of this rulemaking process is going
to help you protect yourselves, because you are very intimately
involved in doing the business that you are in. I think, Mr.
Pascrell, that that is really the point of what, at least, I am
trying to understand here--is how we can help these folks
protect themselves and their workers at the same time without
having a rule that is so large in scope that it undercuts their
bottom line, undercuts their ability to do what they need to do
in order to stay in business.
But, more importantly, it doesn't allow them to protect
themselves without having to go through a great many steps that
might not be necessary for these people. They need something,
but they need something that addresses their concerns as small
businesspeople--really small businesspeople.
Many of the examples that we have heard today come from
large businesses, not small. It is important that we stay
focused on the small business.
That takes me to you, Mr. Russ, because I did have one
question I wanted to ask you.
OSHA assumes that businesses are going to be able to pass
along the increased costs of any proposed standards onto their
customers. That may be true for an ordinary industry, but
aren't the rates that you receive for patient care in your
business set by the Health Care Financing Administration and
the states?
Mr. Russ. Yes, they are.
Chairwoman Kelly. So your ability to pass along any of
these costs is simply blocked off by another agency.
Mr. Russ. Absolutely, unless there were some concurrence on
the part of other Federal agencies, namely, the Health Care
Financing Administration, which would independently recognize
this as a distinct cost and then add it to the rates at which
they pay us. There would be no other mechanism to absorb these
costs. Only a very small fraction of patients in nursing
facilities today pay their own way. There's a variety of
reasons for that, but primarily because Medicare--and primarily
Medicaid--are the primary payers. That is the system we have to
live with. This unfunded mandate provides no mechanism for any
kind of recognition of the costs that we are likely to incur.
As a result of this--and, you know, it would be
presumptuous to assume that not every facility would be
affected by this, because, even as a protective measure, in
order to potentially avoid claims, we would have to purchase
the number of lifts, as I described to you, that would not only
conflict with existing regulations--because HCFA precludes us
from using it on patients who don't want them--but it opens up
the possibility that we would have to make an enormous capital
investment and would probably be in violation of other OSHA
regulations, from a practical standpoint.
Sometimes we don't see the forest for the trees. If you
were to actually mandate that every patient should be lifted
with a mechanical device, there would have to be, literally,
probably one of these monstrous entities for possibly five or
six patients. Each one of these devices is an enormous entity.
We have no place to even store these things. If you would put
them in the hallways and the corridors, you would be in
violation of life-safety code and other OSHA regulations. If
you were to put them in the patients' rooms, you would be in
violation of certain OSHA regulations as well as regulations of
the Health Care Financing Administration. No one has thought
out the actual practical implications of having to do this.
Chairwoman Kelly. Thank you very much, Mr. Russ. I just
want to question one more thing, where, again, it seems to me
that you are caught with agencies controlling things that you
have no choice over. You brought up the instance of mechanical
lifts, but aren't you mandated by law to offer that choice to
patients? They get to choose whether or not they want to be
lifted by personnel in your institution or they wish to be
taken on a mechanical life.
I would also want to point out, having worked in hospitals
a number of years, that there is a certain dehumanizing aspect
to being lifted by a mechanical lift. I don't care how heavy or
light the patient is. It is rather dehumanizing to the patient
to have a mechanical lift being used on them. It also is not
necessarily the best way, but aren't you caught by that?
Mr. Russ. Absolutely. Not only is it dehumanizing, most
patients are fearful of being lifted by anything--I mean, the
whole point of all the HCFA regulations that we have
encountered over the last ten to 15 years has been to enhance
the quality of life of residents and the patients we serve.
That is all generated through education and increased bonding
and closer relationships with the caregivers. This creates a
barrier between the caregivers and the residents.
From a practical standpoint, any good, caring facility
lifts and transfers patients not just once a day. It is not
just to get the patient out of bed in the morning and into bed
at night. We take patients out of the wheelchair at every meal
and put them in regular chairs to enhance their dignity so they
don't have to eat lunch in a wheelchair, who want them to eat
in a regular chair like people who are not handicapped. So, we
would have to be using these lifts in a way five, six, seven,
eight, nine times a day. It is practically, from a practical
standpoint, impossible, because there is no way to situate them
in a dining room to that extent.
Chairwoman Kelly. Excuse me, sir, but it is also mandates
by law that you not do that with the patients. Is that correct?
Mr. Russ. Well, it is not mandated that we do not. We have
to offer the patient a choice. We educate the patients who are
competent and those representatives of those patients as to the
pros and cons of a lift, just as we do with other aspects of
care. However, if they elect to decline that, we have to honor
that request by law.
Chairwoman Kelly. That is exactly what I was driving at.
You must honor that request by law.
Mr. Russ. Correct.
Chairwoman Kelly. So you are another one of the businesses
caught between agency rules.
Mr. Russ. Correct.
Chairwoman Kelly. I thank you very much. At this point, I
thank the panel. You have been extremely patient, and I really
appreciate the fact that you came to testify today.
I know that there are many other things that we would like
to ask you, and I am sure there are other things you would like
to say to us, so, again, I am keeping the record open and we
will, hopefully, continue the dialogue. Thank you so much. I am
going to excuse this panel, and we will have the next panel.
[Pause.]
Chairwoman Kelly. I thank you all very much. We have
Jennifer Woodbury here from McDermott, Will & Emery, Jackie
Nowell, who is the Director of the OSHA Office for the United
Food and Commercial Workers International Union. We welcome
you. John Cheffer, Chairman of the National Governmental
Affairs Committee, the American Society of Safety Engineers. We
have Frank Mirer, the Director of the Health and Safety
Department from the UAW International Union, and we have Mr.
Lawrence Halprin from Keller & Heckman, Washington, D.C.
I do thank you all very much for your enormous patience. I
hope it has been an interesting experience for you sitting here
listening to these two different panels.
With that said, I am going to begin with you, and I am
going to welcome you back, Jennifer. We are glad to have you
here, and we are glad to have you on that side of the table
testifying, so please go right ahead.
STATEMENT OF MS. JENNIFER WOODBURY, MCDERMOTT, WILL & EMERY
Ms. Woodbury. Thank you so much, Chairwoman Kelly. It is my
pleasure to be here. I am Jen Woodbury with the firm of
McDermott, Will & Emery in our Washington office, as part of
the OSHA group.
I am very happy to be here today. I found the hearing
illuminating, and, hopefully, what I have to say here today
will add to that.
I would like to clarify, first of all, I am testifying on
my own behalf as opposed to my firm.
I would like to note--I am going to paraphrase my testimony
to keep it within the five-minute period. But, I would like to
request that my entire statement be entered into the record.
Chairwoman Kelly. Thank you very much.
Ms. Woodbury. I have been practicing OSHA law for a few
years now. But, when I started, my knowledge was probably
equivalent to what some of the small businesses have to deal
with. So, you can imagine how overwhelmed I was when I learned
what I would have to learn. These are the CFRs for OSHA only.
There's something like 1200 pages here, and it is pretty
intimidating.
I am a lawyer, but, when I started, I didn't know anything
about it, and so I had to leaf through all this. So, you can
imagine what small businesses have to deal with. It is
unbelievable.
So, what I would suggest to you is that any rule that is
promulgated here--we are talking about OSHA--has to be clearly
objective in nature so that small businesses know exactly what
they are supposed to do in order to prevent injuries. That is
the goal, so small businesses can know what they are supposed
to do. It has to be objective; it has to be measurable; and it
has to be understandable. I think what you heard here today is
that the rule isn't all of those things, and that is what the
problem is.
The problem that exists is what OSHA terms and really
bolsters about the rule as being flexible. What flexible means
is that small businesses have their own opportunity to
determine what is important for their business.
I believe that is what Congressman Pascrell was going to. A
flexible rule can be very good, because it helps the small
businessperson put into practice things that work for that
business. But, the problem is that flexible can also mean vague
and ambiguous.
My testimony goes into several examples, but I would just
like to talk about one very briefly to stay within the five
minutes. One of the key provisions of the OSHA ergonomics
proposal is that employers must materially reduce MSD hazards.
Well, all of us could come up with different interpretations of
what ``materially'' means, so, of course, you want to look to
the definition. Unfortunately, the definition is not going to
help us very much, because here is what it says, ``To
materially reduce MSD hazards means to reduce the duration,
frequency, and/or magnitude of exposure to one or more
ergonomic risk factors in a way that is reasonably anticipated
to significantly reduce the likelihood that a covered MSD will
occur.''
Now, I want to be really clear. I think that, if we went
around the room, there is no way that all of us, or maybe even
two of us, could agree on what those three terms--reasonably
anticipated, significantly reduced, or likelihood--mean. I
don't think there is any way that we could come to one solid,
absolute determination of what those terms mean. We have heard
from some pretty respectable small businesses. I bet they
couldn't even all agree, even as respectable as they are.
But, despite this fact, no matter how reasonable your
interpretation is, what this proposal says is: ``my
interpretation wins, because I am the OSHA inspector.'' That is
what the small businessperson is dealing with. It is not that
they hate the rule, in many instances, anyway, or that they
don't want any rule, or that rules don't work. It is that they
can do their best, and they will still be cited.
I heard Assistant Secretary Jeffress state, ``Well, we'll
have to rely on the reasonableness of our OSHA inspectors.''
That doesn't make anyone sit very calmly in their chair,
knowing,''Well, I have no idea, really, what the inspector is
going to say, but, boy, I am sure they'll be reasonable.'' That
doesn't work, so I would suggest that that is a major problem
with this proposal.
Another major problem is that the proposal asks the
employer to determine what a ``covered MSD'' is. In other
words, did the injury occur at work or did it occur in an off-
work activity, such as tennis-playing or gardening? We are
expecting the employer not only to make that determination but
to know that the employee engages in such activities. That is a
problem, At the OSHA hearing--One of the attorneys in my OSHA
practice group at the firm asked a Georgetown physician how he
would make such a determination, and, indeed, there was no
definitive answer given.
I will close by saying that the most important thing I can
get across is that company ergonomics programs absolutely can
work. They can work when they are well-founded, but, without
any objective measures, I would be concerned that this proposal
will force small businesses who have a limited amount of money
to spend on safety to spend that money trying to comply with an
ambiguous and vague rule. That is going to be a problem. I
thank you so much for the opportunity to testify here today and
would be happy to answer any questions that you have.
Thank you.
[Ms. Woodbury's statement may be found in appendix]
Chairwoman Kelly. Thank you very much. Next, we are going
to hear from Jackie Nowell, whom I saw doing a lot of head-
shaking out there. So, I hope this has been an interesting
experience for you, Ms. Nowell, but I am looking forward to
hearing your testimony.
STATEMENT OF MS. JACQUELINE NOWELL, DIRECTOR, OCCUPATIONAL
SAFETY AND HEALTH OFFICE, UFCW INTERNATIONAL UNION
Ms. Nowell. Thank you very much, Chairwoman Kelly. It has
been a long time since I have been up on the Hill, so, yes, a
lot of head-wagging.
My name is Jackie Nowell. I am the Director of the
Occupational Safety and Health Office at the UFCW International
Union.
Five minutes goes very fast. Let me give you a little
background. Then, I would like to actually comment on some of
the issues that were brought up by the last panel.
We do represent 1.2 million workers in the U.S. in retail,
food, meat packing, poultry, food processing, warehousing,
health care, garment and textile, footwear, and chemical
industries. Included in this are over 400 small employers in
virtually every state in the country.
We strongly support OSHA's proposed ergonomics program. We
have been actively working on this issue for 20 years. We began
educating our members, seeing that there was a lack of programs
and fixes out there in our industries. We filed OSHA complaints
in the meat-packing, poultry, and catfish industries. We worked
closely with the Department of Labor to develop red-meat
guidelines issued by then Secretary of Labor, Elizabeth Dole.
In 1991, we petitioned OSHA for an emergency temporary standard
along with 29 other unions. In '92, Secretary Lynn Martin of
the Department of Labor agreed with the unions' information
supported initiation of 6(B)(5) rulemaking under the OSH Act to
address ergonomic hazard. This standard has been ten years in
the making, and it is long overdue.
The UFCW has many programs in our plants with full union
participation that are working to reduce MSDs.
I am going to highlight three points quickly. Mr. Jeffress
very clearly talked about these things being real.
Let me tell you about Carolyn Shebora, who is a cashier at
a grocery store in Alexandria, Virginia. She had bilateral
carpal tunnel surgery and is fearful that it is coming back.
Her company fought her workers' compensation claim for one and
a half years. She had worked for them 27 years. She was
devastated by that.
To highlight what was said on the last panel about these
conditions having been around forever, there has been an
enormous change in the way we do work in this country. Just two
industries--the poultry industry alone, 91 birds a minute, is
what they will allow that line to go. If you think about word
processing, secretaries used to do everything in the office,
which gave them a lot of variety of tasks. Now, when you look
in an office, you have word processors dedicated to doing
nothing but keying all day long. So, when we talk about these
things are new, they are new, but they are a result of changes
in industry.
Point two--many industries we represent have recognized the
problem for more than 15 years and developed programs. One
meat-packing industry plant, I can tell you, reduced its
workers' comp costs by nearly 60 percent, reduced turnover by
75 percent, and recouped all of their investment in the first
two years of the program. The numbers of MSD cases were halved,
and the number of surgeries fell 40 percent. 1I could give you
other examples and will be glad to put them in the record.
I was going to talk about the retail industry, because I
thought there were going to be some grocery stores here.
Let me switch to the health-care industry, and I would be
happy to put in the record the research that has been done in
nursing homes on back injuries. Back injuries are their biggest
problem. They come forward all the time and tell you folks
that. They have more lost-time injuries than construction has.
The lift-assist equipment that is out there now is no longer
mechanical. It is electric, and, in terms of who do you lift
with that equipment, you lift residents who are not able to
help the health-care provider--the aide--do that work. You do
not use those lifts on everybody. They don't work on somebody
who can assist you in the lift.
So, just to get that in the record--There is a lot of
information out there that has been developed by unions, trade
groups, and associations that will be tremendously helpful to
small business. I note that, on the table here, the National
Association of Convenience Stores has put in their testimony
that they have stuff available and they represent all small
business. The Food Marketing Institute says that they
represent--More than half of who they represent are single-
store entities and they have on their Web site lots of
information to help small business.
Workers are being hurt. The examples that Charles gave,
that I just gave, are but examples of hundreds of thousands of
workers in the U.S. who are developing MSDs. I could also have
told you about two more. You can see these workers when you go
into your neighborhood grocery store, for example. They come
from small plants and large plants, union plants and non-union
plants. The point is it doesn't matter where they worked. They
need help.
Chairwoman Kelley. I am going to have to ask you to sum it
up. The red light is on.
Ms. Nowell. I will note that others have gone beyond the
red light.
While we note that there are some differences between small
and large businesses, we believe the standard is flexible. It
is programmatic rather than specification-based, meaning it is
a flexible set of requirements that small business will be able
to adapt to its establishment. But, if small business believes
that OSHA needs to clarify the rule for them, then they should
be informing OSHA of specific provisions that will assist them.
Thank you for the opportunity to speak with you about this
matter.
[Ms. Nowell's statement may be found in appendix]
Chairwoman Kelley. Thank you very much. We are next going
to move to Mr. Halprin.
STATEMENT OF MR. LAWRENCE HALPRIN, PARTNER, KELLER AND HECKMAN
Mr. Halprin. Madam Chairwoman, members of the committee, my
name is Lawrence Halprin, a partner in the law firm of Keller
and Heckman.
I appreciate the opportunity to be here today. As you can
tell, there are more issues than we can ever take the time to
talk about.
I will try to address some of them. This rulemaking is
different from any prior rule the agency has ever attempted to
promulgate. For prior rules--Mr. Jeffress mentioned lead, for
example--Causation of the harm was established. The harm's are
due to exposures--to a lead exposure, which is unique to work.
You are not going to find lead in a typical home. Exposures are
measurable. The agency has established what it considers to be
permissible exposure limits, which set safe limits and unsafe
limits.
None of that is present in this situation. The agency
hasn't identified the harm in any meaningful way. You've got to
look at an OSHA recordkeeping system to figure out what the
harm is. It is not a medical definition. OSHA has come up with
a procedure for saying something is an abnormal condition that
in any way was caused, contributed to, or aggravated to any
degree in any way by work. Once the employer cannot prove that
was the case, it ends up on the log. Then, Mr. Jeffress comes
along and says there's 600,000 of them. It is not terribly
meaningful. To give the example that you talked about today
with the worker who came from another job, I asked during the
hearings. I asked the OSHA panel whether a standard--this
standard--would be triggered by an employee who reported to
work with a non-work MSD, then aggravated that injury
performing the work he performed for many years without any
problem. The answer from the Associate Solicitor for OSHA, the
highest attorney responsible for OSHA matters, almost verbatim
was. Yes, you take the worker as you find them.
I think that is absurd. The same thing would happen if that
worker had been working two jobs and injured in another one.
This agency has absolutely no reasonable limits on the scope of
this rule.
An MSD is defined--my reading of this--so broadly that, if
you have a little muscle discomfort which results in stiffness
which limits your ability to touch your toes, which you
normally would be able to do, you have restricted motion under
this standard. An employer has then got to determine whether he
has got to take the employee off the job long enough so that
they can recover sufficient flexibility to touch the toes.
There is something wrong with a standard that does that. It
is not based on simply the 600,000 allegedly lost workday
cases. It extends beyond them to anything else that, under the
OSHA rule, is considered a recordable musculoskeletal disorder.
I should mention that the rule in place today for recording
musculoskeletal disorders is being substantially expanded and
being incorporated into this rule so that the data will
probably actually go up, because now OSHA is expanding the
universe of things that are going to be covered. So, we have
got an agency that goes beyond its own impairmente of health to
regulate things that don't fall into that category.
We've got a situation where they can't even define what the
problem is, in a sense medically, if they use these assumptions
and presumptions of work causation. That is what we are dealing
with. Now, back to some of the research.
I realize it is controversial, but OSHA must demonstrate
that there are a significant number of employees who are
exposed to hazards at unsafe levels by properly quantifying the
risk. In this case, we think it is disingenuous for OSHA to say
that it has performed a scientifically valid risk assessment in
light of what has transpired in this proceeding. This is not an
academic debate. If the research doesn't demonstrate that what
OSHA proposes is going to work, whether it is not an effective
way of doing it, whether it is going to impose burdens on
employers that they shouldn't be on employers in the first
place, something is terribly wrong.
In this case, OSHA and NIOSH selectively relied on a body
of outdated and inadequate studies. This is based on testimony
from medical experts, obviously.
I am not an expert in medical areas. According to BLS, the
MSD rates, as was previously mentioned, are already declining
at a rate of 24 percent over the four-year period we have
talked about. OSHA projects a 50-percent decline in MSDs from
this rule over ten years. So, actually, OSHA isn't projecting
any better benefits than seem to be the trend, based on what is
happening through voluntary programs currently in effect.
OSHA excluded from its consideration, as you heard
previously, the entire body of persuasive scientific evidence
supported by written statements and testimony from people I
believe to be some of the world's most outstanding medical
experts, that the vast majority of covered MSDs are not caused
simply by workplace exposure, to bio-mechanical factors. But,
there are other considerations involved. Even NIOSH has
acknowledged that, within the general population, non-
occupational causes of low-back pain are probably more common
than workplace causes. However, what OSHA would do would be to
have this person come into work, and, if the employer doesn't
catch them--and I will stop here--and stop them from
aggravating the injury, then all of a sudden the injury is
aggravated. The standard is triggered.
I could go on, but I am out of time.
I appreciate the opportunity. Thank you.
[Mr. Halprin's statement may be found in appendix.]
Chairwoman Kelly. Actually, we have a timer up here, so we
know exactly how far everybody does run over.
You didn't do too badly. Next, we have Dr. Mirer. Dr.
Mirer, we would like to hear from you. Thank you very much for
being so patient.
STATEMENT OF DR. FRANK MIRER, DIRECTOR, UAW HEALTH AND SAFETY
DEPARTMENT
Dr. Mirer. Dr. Frank Mirer, Director of UAW Health and
Safety Department. I represent the UAW here today, but I want
to start by telling you that my late father was a small
businessman. He ran a union shop in a business in New York
City. I spent many Sunday afternoons with him helping out
getting work ready for Monday.
I want to tell you, from personal experience, there is no
reason why a small business owner or manager can't do
ergonomics, can't understand this proposed rule, can't use our
new knowledge to protect and retain employees. Frankly, if the
employer associations would concentrate on technical support
and education for their members, instead of what they are
doing, especially here today, workers and employers would be a
lot better off.
Ten years is not rushing into anything. The ten years this
has taken is a long lag, particularly in relation to people
being hurt everyday.
That is what is happening out in the world. With due
respect to Ms. O'Shaughnessy, ergonomics is based on
biomechanics and physiology, two quantitative disciplines.
Biomechanics uses the same physics that an engineer would use
in designing a building or an airplane. It is a quantitative
method. Two observers will agree on the biomechanical stress on
a body part. They can rank exposures with great precision. They
can rank exposures before and after modifications of a job.
The simple checklist systems that are being put in place
all through industry are based on those biomechanical and
psychophysical model results, which have been validated dozens
and hundreds of times over in the scientific literature.
It is not for a lawyer to say that they don't believe it.
The scientific consensus was peer reviewed externally to by
NIOSH and other agencies. It. that was confirmed by the NAS.
There is a continuum of stresses, related to the continuum
of health effects. The science is there. There is no question
about it.
The second point, is triggering mechanisms. Let's talk
about what triggers into an ergonomics program. A worker
complains of pain or injury to his employer. The employer
selects the health-care provider to which the employee goes.
The health-care provider determines whether this matter is
work-related or not work-related. The health-care provider
keeps other medical information confidential from the employer,
the same way that the employer's medical information ought to
be kept confidential from the employees. If it is determined to
be work-related, then the employer analyzes the job. If the job
does not contain risk factors for any musculoskeletal
disorders, that is the end of it. No risk factors, no
abatement, no other action. Also, the health-care provider
selected by the employers is the one who determines whether the
employee is at increased risk, and gets a restriction.
Now, work removal protection has been in OSHA standards
since 1978, when the lead standard went into effect. OSHA
determined then, that medical provisions, where an employer was
required to honor a restriction, also needed to protect the
employee. We see no reason why this standard should be
different.
We have heard a lot of complaints about the plain language
of the rule. This rule was reviewed by a SBREFA panel. They
made 36 recommendations to OSHA regarding the standards. OSHA
responded to each one of them and made changes in the
regulatory text, the explanation, and the economic analysis.
This responsiveness is, quite frankly, now being turned against
OSHA, because every complaint we have heard today is about the
plain language, about the flexibility in determining the
exposure assessment methodology about permitting management to
defer exposure assessment until injuries are there.
Quite frankly, every one of these is a recommendation that
industry, especially small business, made to OSHA. They were
taken, and now they are here.
The question of whether everybody has had their say, first
of all, with due respect to the committee, if we were following
the OSHA model, the first thing that would have happened here
is we would be questioning you as to the basis for your
position. You would have to answer those questions on the
record. Then, we go to the rest of the proceeding. It has been
grinding on before OSHA in Washington. I just came back from
Chicago. We presented testimony from 14 or 15 local union
representatives who are doing ergonomics successfully in
plants, large and small, and offices all across the country.
The bulk of analysis of risk factors on the job in the auto
industry is being done by hourly workers off the floor who have
had a training course in how to analyze risk factors. We have
done this in plants, large and small. It is effective. Their
ability to do this analysis is validated, and, quite frankly, I
see no reason why a manager or an employer or an owner of a
small business would not be able to do everything that our
workers off the floor can do.
Thank you very much.
[Dr. Mirer's statement may be found in appendix.]
Chairwoman Kelly. Thank you, Dr. Mirer. I appreciate your
ending when you did, being brief.
Mr. Cheffer, we have yet to hear from you. Thank you for
being so very patient.
STATEMENT OF MR. JOHN CHEFFER, CHAIR, AMERICAN SOCIETY OF
SAFETY ENGINEERS NATIONAL GOVERNMENTAL AFFAIRS COMMITTEE
Mr. Cheffer. Good afternoon, Chairwoman Kelly, members of
the Subcommittee.
My name is John Cheffer, I am a professional engineer,
certified safety professional, and Chair of the American
Society of Safety Engineers National Governmental Affairs
Committee. ASSE was founded in 1911 and currently has almost
33,000 members. It is the oldest and largest Society of safety
professionals in the world. We are dedicated to the protection
of property, people, and the environment on a worldwide basis.
My testimony today focuses on how ASSE views the proposed
ergonomics standard and how it could affect small business. It
is also appropriate to point out that, throughout my
professional life, I have personally worked with hundreds of
small businesses on safety and health issues, including
ergonomics.
ASSE wants to be clear on the following point, and that is
that the Society is a supporter of OSHA, as we believe the
agency maintains a national focus on the importance of
occupational safety and health, and there is a need for a
functional and understandable ergonomics standard that enables
all employers to recognize problems and learn how to solve
them. However, ASSE is concerned that the flaws in the proposed
rule, such as the single incident trigger, its interference
with established state workers' compensation programs, and the
rule's complexity with respect to small business entity
compliance, may result in the rejection of the entire standard.
Therein lies our concern, that the employees who would most
benefit might be harmed. That is the precise reason why ASSE is
the only organization that wrote an alternative proposal for
OSHA's consideration with respect to small business issues.
With respect to small business issues, a key question
involves the cost and complexity of performing an ergonomic
analysis. We believe OSHA has provided insufficient information
to enable any small business owner or operator to understand
the ergonomic issue and proposed standard or to determine what
actions must be taken in order to identify and correct
ergonomic hazards.
ASSE is at a loss to see how a small business employer
without specialized training will be able to use the standard
to prevent work-related musculoskeletal disorders. We suggest
the current proposal is much too complex for the average
employer to use as a tool to address ergonomic issues.
ASSE believes that the agency has underestimated the costs
associated in implementing and maintaining compliance with the
standard. The agency gives the perception that ergonomic
evaluation and of controls are not that difficult to understand
and are inexpensive to implement.
However, ergonomics and cumulative trauma disorders are
very complicated technical issues. Most ergonomic problems
cannot be corrected through low-tech solutions such as having
the employee stand on a box or propping up a computer monitor
with a phone book, as ESHA has suggested.
ASSE asked OSHA if it conducted any studies or research on
how many small businesspeople can work in NIOSH lifting
formula. The agency does not appear to have adequately studied
this issue. For example, while the NIOSH formula tables and
assessments are specifically referenced in the preamble, we do
not believe that the typical small businessperson will be able
to learn of this in the hour of training allotted in the
preamble's cost estimate. Later in the preamble OSHA
acknowledges that more training may be necessary, depending
upon the specifics of the operation, but, this additional
training is apparently not factored into the cost estimates.
ASSE recently completed a survey of our members and other
safety professionals on the issue of consultation. A total of
4500 safety professionals were surveyed. While we readily
acknowledged this is not a scientific evaluation, it does give
an excellent snapshot of the cost considerations. Our data
indicates that the average hourly billing rate for an ergonomic
audit or evaluation is approximately $108.00 per hour for each
consultant. This is an across-the-board average, and costs
would probably be higher on the East or West Coasts.
The basic problem with cost projections is that there are
so many variables involved in performing a quality ergonomic
evaluation, including the size and nature of the workplace and
the workforce. The time required to conduct an evaluation at a
small business involved with material handling or manufacturing
would certainly be more extensive than an audit in an office
setting.
The fixes could be much more costly as well. Along with the
initial consultant's visit, there would be cost associated with
report preparation, follow-up consultation, potential revisions
to an action plan, and implementation of the recommendations.
Based upon our data and experience, the OSHA time estimates
in the proposed rule are inaccurate with respect to
implementation of a work-related musculoskeletal disorder
prevention program. With respect to the cost of correcting
ergonomic hazards at a small retail or service business, ASSE
cannot give an overall estimate because of the variety of work
environments. However, I have personally worked on issues which
have run anywhere from $15.00, a small charge, such as changing
table legs, to completely re-engineering a work process which
costs thousands of dollars.
Each situation is different. That is the key difficulty
with assessing the impact of OSHA's proposed ergonomics
standard. There is no one-size-fits-all approach to ergonomics,
and our core belief is that it is impossible to provide a one-
size-fits-all cost average.
Another issue is whether OSHA could have identified
successful ergonomic intervention controls. In January of 1997,
ASSE had an opportunity to work with OSHA on a very successful
conference titled ``Ergonomics, Effective Workplace Practices
and Programs.'' There were approximately a thousand
participants representing both the private and public sector.
The conference focused on different approaches to ergonomics.
The results were excellent and would have been useful for OSHA
to point to some of these intervention strategies in the
proposed rule's preamble for consideration by interested
stakeholders. Such examples could show how ergonomic hazards
have been effectively and efficiently addressed in the
workplace by employers.
In summary, although ASSE's overall experience with OSHA
has been very positive and we believe that a standard is
needed, OSHA should not finalize the rule as drafted in the
1999 November proposal. OSHA should find an alternative method
for protecting U.S. workers from work-related ergonomic
injuries----
Chairwoman Kelly. Mr. Cheffer, I am going to interrupt here
and ask you to summarize.
Mr. Cheffer [continuing]. On impacting small business, and
I think that is as good a summary as I can do.
[Mr. Cheffer's statement may be found in appendix.]
Chairwoman Kelly. Thank you very much. I want to thank all
of the panel.
There's a couple of things. I think, Ms. Nowell, you
pointed out in your meat-packing case just exactly why it is a
good idea that we have some rule affecting the ergonomics
situation, because, obviously, the people who own that meat-
packing plant, who found that they have lowered their injury
level and there are workers who are retaining their jobs, and
so on, obviously they were comfortable helping to work with the
workers to make sure that they stayed on the job.
It takes a long time to train a worker, as we heard in the
other panel. You don't want to lose them, so I think your case
was very well made.
I am glad to hear that, but I want to go--just one thing
that Dr. Mirer brought up. You were talking about the trade
associations being against this and speaking against this
proposed rule. Are you aware that the Office of Advocacy of the
U.S. Small Business Administration opposes this rule?
Dr. Mirer. I am not aware of it. I have been talking from
our experience over in the OSHA hearings about all--a third of
the trade associations that have appeared there have said they
would do some technical assistance, do some training, present
some information to their members on how to abate ergonomic
hazards. I would guess about two-thirds of the remainder say
that all they have done is essentially repeat the comments that
are on the NAM Web site opposing the standard. So, some of the
trade associations are stepping up to what they ought to do,
helping their members protect their workers, and others are
simply playing the regulatory game.
Chairwoman Kelly. Well, Dr. Mirer, there's got to be pretty
good reasons why the Office of Advocacy in the Small Business
Administration is opposing this rule. I think it would be good
if you also had a look at those, because that may affect what
your workers are involved in.
The other thing is that it points out something that was
brought forth in the second panel. That is, too frequently,
people who are regulated by Washington agencies are caught
between agencies. There's a rule that says this, and there's a
rule that says that. Nobody knows exactly where they stand, and
this is one of the biggest problems I have in understanding
this whole ergonomics thing. I don't see how this is going to
go through without catching a whole lot of people in a swamp of
alternate agency rules and regulations. I don't see how that is
going to happen. This is my grave concern.
It is important that we take care of our workers. Nobody
wants to have them be harmed, but on page 11 of your testimony,
you cite a whole bunch of examples of small businesses that
have worked with the UAW to establish effective ergonomics
programs. I want to know if you could supply the details of
those programs to this committee staff so we could study them,
and include them in the record. This might be very helpful for
us. Can you do that?
Dr. Mirer. Certainly. We will provide our training
materials.
With all due respect, about the conflicting regulation
issue, I believe what Mr. Russ testified to was that, for those
employees, those patients, who did not want to use the
mechanical assist, that the employer would have to come up with
an alternative. But, I was pleased to hear that he did have
mechanical lifts. I was pleased to hear that the estimate of
cost of equipping a facility, which I thought was actually
surprisingly low--I was pleased to hear that, in an industry
where 78 percent of the injuries are musculoskeletal, which
leads many, many injuries, he was able to get his rate down to
zero. I thought that was maybe the strongest testimony in
support of ergonomics we have heard today.
Chairwoman Kelly. Dr. Mirer, he did it without any rule or
regulation. He just did it.
Dr. Mirer. But, obviously, if you look at the experience of
the industry as a whole, his competition is not doing it at
all. In order to achieve the rate that they are seeing,
somebody had to double the industry rate in order to get to the
rates that they have.
Chairwoman Kelly. While you are taking your big stick and
whacking those people, it would be nice if you didn't take the
big stick to the people who are really willing and able and had
conformed and done what they could to try to help their
workers. That is a real concern.
I also wanted to ask you, sir, about the fact that say--and
I really applaud you--I think your training program sounds
very, very good. That 40-hour course and all the rest of it
sounds really good. Can you give us an estimate on how much
time is involved in addition to that 40-hour course that your
people have where they have had training technique instruction,
and they have been evaluated by the UAW staff and the
University of Michigan and the job analyses? How much more time
beyond that 40 courses--40-hour course is involved?
Dr. Mirer. The issue is what degree of sophistication.
Chairwoman Kelly. I am just asking about your course.
Dr. Mirer. I understand that, but, in the car companies
where there are full-time ergonomic analysts, they have had
several courses in addition to that.
In the smaller plants, the 40-hour course or even the
shorter course is sufficient to be able to do the initial
assessment of whether jobs have risk factors or not.
A simple checklist can be used at UAW GM. They go to
various computer programs after they have finished with the
simple assessment. So, the short of it is you don't actually
need the full 40 hours in order to be able to do the kind of
risk assessments you would for a dishwasher or a sewing-machine
operator. If you were going to do very sophisticated analyses
of car assembly processes, you would need more. But, for the
kinds of activities that are done in most small workplaces, you
don't need the 40-hour course to do an effective ergonomics
analysis.
Chairwoman Kelly. I am only asking you about your industry,
the people that the UAW deal with.
It looks like a very good training program. You say you
don't need the 40-hour course. What would be the average that
your folks would have--would spend if they don't take that 40-
hour course, and the other related people that you deal with
under the purview of the UAW? What is the average that you
would think that they need or that they are getting?
Dr. Mirer. Probably, for ergonomics committee members that
are going to be doing analysis on an ongoing basis, a sort of--
start with a one-day course.
Chairwoman Kelly. One day, eight hours?
Dr. Mirer. Yes, which enables them to use the basic job
checklist.
Chairwoman Kelly. The rule, as I understand it, requires
one hour.
Dr. Mirer. The one hour is for the employer to familiarize
himself with the standard and with the three or four job
characteristics that are listed in the standard.
Chairwoman Kelly. Ms. Woodbury, I can see you are shaking
your head. Would you like to respond to that?
Ms. Woodbury. If you turn your attention to page 66038 of
the preamble, Cost to Train Employees, one hour of employee
time per affected employee is the cost to train employees. This
is just from OSHA's preamble, that 66038, and two hours of
managerial time.
Dr. Mirer. You are talking about a completely different
thing.
That is completely different. That is the training for the
employee exposed on the job. I was talking about the training
for the person who is analyzing the job in order to measure the
risk factors and devise abatement methods. Those are completely
different things.
Chairwoman Kelly. I am glad we are getting this cleared up.
So, what would you think we should do about training the
employees?
Dr. Mirer. An hour is adequate for the exposed employees.
Chairwoman Kelly. But you think at least eight hours, if
you are going to have somebody who is doing the evaluations?
Dr. Mirer. I think the job analysis requires that amount of
time.
Chairwoman Kelly. I am just going to go back to a couple of
other questions.
Mr. Halprin. Excuse me, Madam Chairwoman. May I ask? As I
understand from Dr. Mirer's testimony, the UAW has in many
cases negotiated risk factor tables--correct me if I am wrong--
with the employers. So, they are not sitting on a situation
where they have to guess what the numbers are. They've got a
list of tables. Either you are above, or you are below. If you
are above, you've got a problem under their contract, and, if
you are below, you don't, which is not necessarily something
that OSHA would accept. Probably will in their scenario, but
that remains to be seen. But, that is not the scenario that is
available to a small employer. That is General Motors and Ford
and companies like that.
For them to come out and provide that service is wonderful.
If they would like to expand that to the other millions of
small employers in this country, that would be wonderful. But,
I don't think they have got the resources for that, either.
I am a little concerned about saying it is simplistic.
They've got a negotiated number. In a sense, they have made a
policy decision between their companies and their unions about
what level of stress they think is appropriate for a worker to
be able to handle, and they have made that on a negotiated
basis.
Chairwoman Kelly. Thank you very much for your input. I
appreciate that.
I am going to turn now to Mr. Pascrell. I am coming back to
pick up a couple of questions that I have left, but go ahead,
Mr. Pascrell.
Mr. Pascrell. Mr. Halprin, do you agree or disagree with
the assertion that there is an MSD worker problem in America?
Mr. Halprin. I believe there is a limited problem. It is
drastically overstated by the agency.
Mr. Pascrell. I don't want to put words in your mouth. Is
that the reason why you thought that you questioned the
authenticity of the 600,000 figure?
Mr. Halprin. Let me explain. I think you intended to
mention repetitive motions. Repetitive motion cases are about
75,000. The other 575,000 are single-incident events.
Mr. Pascrell. So you think that the first number, 75,000--
the 75,000 figure----
Mr. Halprin. That is a more realistic estimate, a starting
point for this problem. Now, whether those are caused by
biomechanical factors or psychosocial factors, or some
combination, that is what the debate is about.
Mr. Pascrell. Well, you did say that what the worker brings
to the workplace has a lot to do with this, too.
Mr. Halprin. Correct.
Mr. Pascrell. That isn't to say that the job itself or the
work entailed on the job precipitated or worsened the
situation. I mean, that is a person- by-person evaluation,
isn't it?
Mr. Halprin. I am not sure I understand the question.
Mr. Pascrell. If there is a problem, regardless of what the
number is, we do want to try to be helpful. If we are going to
promulgate the rule, we want some results to avoid these
problems in the future. You are not saying, are you, that you
don't think the problem is such or has reached the point where
we should have a rule?
Mr. Halprin. The problem has not reached a level or been
established to a level that would justify a rule of this scope
or this reach.
Mr. Pascrell. What would you suggest?
Mr. Halprin. Going back to the science, getting some clear
science. I would respectfully disagree with Dr. Mirer on what
the level of science currently is and what it shows.
For example, there are a fair amount of data that show that
employees' jobs--the physical aspects of the job don't cause
the problem. But, the workers simply hate their job, or they
hate their boss, or they have some other problem in life which
compounds and brings out factors. As a result, they show
symptoms for unknown reasons. Now, there are going to be some
highly stressful jobs which cause problems. They are limited.
This rule does nothing to try to address and sort them out. It
basically goes after everything and leaves the employer in a
situation where it is totally up to an OSHA compliance officer
to decide whether something is covered or not and whether the
employer has done enough.
The agency has come up with--It almost looks like
negotiated bargaining here. They have come up with a proposal
which is so outlandish that I honestly feel the employer
community has no choice but to oppose it. I think that is the
general gist of what I am saying. It is too far out.
Mr. Pascrell. So you are saying that the rule is too broad?
I want to clear up this one point, though. OSHA is not
sending inspectors business by business to see what they have
in place to prevent certain kinds of injuries. OSHA inspectors
only go to a business where there has been a complaint to see
whether there is a plan to prevent it in the future. Is that
correct or incorrect?
Mr. Halprin. Partially correct. The other alternative would
be to go to industries with higher than average--For example,
lost work to day injury/illness rates, and, potentially, I
don't know. The agency may consider a program based on
somebody's musculoskeletal injury rate, which, again, like I
said, I believe is inflated and, therefore, could very easily
misguide OSHA compliance officers and send them to the wrong
place.
Mr. Pascrell. So, basically, when you come right down to
this, there is a basic disagreement between yourself and Dr.
Mirer as to whether or not the science is at the point that we
can define what is a work-related injury within the category
that we are talking about here today.
Mr. Halprin. Whether it is work-related, what the cause is,
and if there are other factors, how to sort them out, how it is
fair, is a matter of policy to decide what burdens are
appropriate to put on an employer and which burdens are not.
Mr. Pascrell. Let's take a specific industry then that has
been a target or much has been written, much has been
discussed--the poultry industry. Have you yourself taken a look
at that industry to see what are the reasons why there have
been so many complaints within that industry?
Mr. Halprin. No, I have not.
Mr. Pascrell. Actually, it is industries such as that that
precipitated the research--the ten-year study to get us to
where we are today.
Mr. Halprin. Right. Now, that poultry industry, as I
understand it, and some of the meat-packing, still have,
although they are improved, the highest rates in the country.
This standard would require that they be down to zero. Totally
infeasible. That is what I am talking about, about over-
reaching, unrealistic, and basically giving employers no choice
but to say. Forget it.
Mr. Pascrell. Let's take that meat-packing and poultry
industry. What you are saying is that the rule as proposed at
this moment in time, although we are going to see some other
changes, we think, does not meet the task of solving the
problem in the first place.
Mr. Halprin. Correct, it is too broad. It doesn't reach the
problem. There are already meat-packing guidelines in effect,
which OSHA has in effect been enforcing. It is questionable
whether this actual rule would require things that would do
anything more than what is already in place on a voluntary
basis.
Mr. Pascrell. So without studying the industry as such,
which you provided us, there is a problem. We really don't know
what the extent of the problem is. This rule is not going to
solve the problem. We need a much more specific rule to solve
that problem for that industry.
Mr. Halprin. No, I did not say that.
Mr. Pascrell. Then what are you saying?
Mr. Halprin. There are some industries with high reported
rates. I can't tell you what all the reasons are for them.
There are guidelines in place to address that industry. If OSHA
were going to look at it, it would make more sense to look at
industries that don't already have those guidelines in place
and think about developing guidelines for those industries.
Mr. Pascrell. So, in other words, what we need is a rule
that pertains to poultry and a rule that pertains, maybe, to
data entry, and a rule that pertains to machinists.
Mr. Halprin. Given the current state of the science,
assuming those can be justified, yes. The agency does not have
data, to the best of my knowledge--nobody does--that says how
many times you can lift your arm or push it in a certain
direction, with how much force, and how much twisting. That is
the basis on which every one of these other health standards
has been based on. The closest thing you might call to this is
probably noise, where there is noise in the workplace, noise
outside the workplace. But, there is a permissible exposure
limit, and the noise has been demonstrated to cause hearing
loss.
We just don't have clear causation here. We don't have
numerical links. Basically, OSHA is saying. Go out there and
guess and experiment, and, if we like what you do, fine. If we
don't, we'll second-guess you. If you don't do it right,
basically, be prepared for us to take some enforcement action.
At that point, of course, they will issue a citation and tell
you what they think you should have done, and you'll be put in
the position of trying to defend it. If you are a small
business, you can't afford to defend the situation, so, unless
it is going to put you out of business, you roll over and do
what OSHA says.
Mr. Pascrell. OSHA doesn't want to put anybody out of
business. You don't think that?
Mr. Halprin. I don't think OSHA has enough knowledge to
know when they are going to put somebody out of business. As
the Chairwoman mentioned, we can tell pitchers not to throw
pitches for more than three innings. We can ban the curve ball.
We can change the game. We can change the business.
Mr. Pascrell. But we are becoming jocular here about a
serious problem in the workplace in different places. This is
serious business, and I am sure he is reading it seriously,
too. It is easier to measure decibels than it is how many times
I can go to the plate, and we know that. So, you don't really
believe we can find some general standard that could
precipitate what we should be doing in each of those
industries. You believe they should be all taken separately as
has been in the past.
Mr. Halprin. Correct.
Mr. Pascrell. I don't totally agree with you, but I just
wanted to clarify some things here. I am not against rule-
setting. You believe that the rule that is being proposed will
not correct the problem.
So, what you are asking for----
Mr. Halprin. It will be grossly inefficient. It is going to
be counterproductive. All those things.
Mr. Pascrell. So what you are suggesting is that it become
even more specific.
Mr. Halprin. Provided the science is there to support it,
correct, not just pull numbers out of thin air, which is what
the agency does.
Mr. Pascrell. Thank you.
Ms. Woodbury. If I could comment on that. I think what we
would be interested in is, if there is science--Mr. Halprin
mentioned the noise rule with a dBA of 90. But, then, they
allow the employer to use feasible means to get there. But,
there is an objective getting it down to 90 dBA engineering
controls using personal hearing protection. Here, we don't have
that 90 dBA as a goal. I use the example of ``materially
reduce''.
If we used that same criteria in the noise rule, would
``materially reduce'' mean 90, 85, 95, 80? We need an objective
goal, so I think we agree that flexibility is good. But, we
need a goal at the end of the rainbow, or else we are all going
to be all over the map and there's going to be subjective
differences in how the rule is enforced, and that is a big
problem.
Mr. Pascrell. My concern, Madam Chair, about that is that
the more specific we think we can become the more intrusive we
become within the business that we are trying to deal with.
That is my concern, and I think it is a clear concern--To me it
is. Correct me if I am wrong. What we might be suggesting is
that we want these rules to be more activity-specific, that the
standards be more activity-specific, and the solution be more
activity-specific. Maybe, to me, that goes too far, having
started out in support, generally, of what OSHA was trying to
do. We don't want to chop ourselves here, but we do want to
understand how we are going to come up with a rule--OSHA is
going to come up with a rule we are going to have to live with.
We cannot have it both ways.
Mr. Halprin. I would like to add one point. The logical
approach would be to come up with some guidelines first and try
them out first for a few years, not adopt a rule to include the
entire universe in the U.S. industry.
Mr. Pascrell. So you would say a pilot program?
Mr. Halprin. Makes perfect sense.
Mr. Pascrell. It goes into effect, say, in January rather--
and see how that works out over two or three years before you
become industry-specific.
Mr. Halprin. If industry-specific turned out to make some
sense.
Ms. Woodbury. I would agree that a pilot program----
Mr. Pascrell. Would the National Association of
Manufacturers support that?
Ms. Woodbury. I think you would need to ask them, but I
think that, before we get to the point of saying a rule is
absolutely necessary, if we are saying to employers, well, you
have to determine what a covered MSD is--because we don't
really have the science in place to establish guidelines to
help you do that--then the guidelines make perfect sense. The
problem is not whether ergonomics or injuries are happening. It
is how can we make sure that the money we spend and the things
that we put in place are actually going to cure them.
That is the crux, and that is what guidelines can help do.
Chairwoman Kelly. Thank you very much. Ms. Woodbury,
something occurred to me when I was reading your testimony.
Under this proposed rule, the worker who has an injury
would be allowed to be out for six months with full pay or the
equivalent of full pay while they are recovering from this
injury. I just wanted to know if you can tell me what is the
average maternity leave. It is about three months, isn't it?
Ms. Woodbury. I have not had the opportunity to have that
maternity leave. However----
Chairwoman Kelly. Let me enlighten you. I have.
Ms. Woodbury. Somewhere around three months.
Chairwoman Kelly. It is about three months, and they don't
take into account whether or not you have had a caesarian or
any other kind of difficult delivery. It simply is three
months. It is interesting to me that, in this rule, they are
doubling that amount of time. Under the Family Leave Act, it is
three months. It is interesting to me that, under this rule,
they have doubled the amount of time.
If you have an MSD, I find it very curious that we would
need six months to recover from something that could be
considerably less traumatic than a difficult delivery involving
a C-section. I think that was an interesting--You didn't bring
that out in your testimony. But, you mentioned the fact that it
was a six-month leave with full pay, and I think that is a very
good point to focus on.
Dr. Mirer. Congresswoman Kelly, could I respond to that,
please?
The situation with medical work removal protection is this.
The employer is selecting the health-care provider. The
employer's health-care provider determines whether the MSD is
work-related and whether to place a restriction on the
employee. It is a choice of the employers, somebody hired by
the employer to do that.
The importance of work removal protection is that, if an
employee goes back on an unabated job that has hurt him or her
already, we can be virtually certain they will get hurt again.
We can be virtually certain that the job will progress to
further disability. So, the purpose of the duration is really
the time it would take to fix the job that they were on before.
But, in any case, this is an individual decision being made by
the employer's health-care provider that they can't work the
job.
Now, Mr. Kremp described exactly the way we would hope the
process would work. He had an employee who was hurt. They found
him something else to do that he could do. He had employees
that were too old or they said advanced in age to do the tasks
that they were originally doing. He found them something to do.
We think that employers can accommodate this very well.
Out of the plant--You are disqualified out of the plant,
that is another factor. In fact, we would like to see the full
MRP/MPR framework that has been there with lead and cadmium and
formaldehyde and methylene chloride put back into the rule
rather than what we have there now, but that is the rationale.
Chairwoman Kelly. Dr. Mirer, there is one thing about the
cadmium and all the rest of those things that you have listed.
They are fatal. The MSDs are not necessarily fatal, and I think
that is a very important point.
Ms. Woodbury There is something else that you wanted to
say.
I wanted to respond to Dr. Mirer's comment saying that it
is the health-care professional's determination whether
something is work-related or not in an injury. That is
incorrect. What OSHA says is that it is the employer's decision
whether something is work-related. So, the employer, who is not
a doctor in most cases, would have to make a decision whether
something is covered, whether it is work-related. That means
that that employer would have to know what all of the
employee's home activities are, whether he is a gardener or
plays tennis, and would then have to make a determination. Is
this related to gardening, or is it related to the job?
As I mentioned in my statement, one of the attorneys in my
group during the OSHA public hearings asked a Georgetown
physician how he would make such a determination. There is no
definitive answer, yet OSHA is expecting the employer to make
that decision in order to go forward.
I just wanted to clarify. Thank you.
Mr. Halprin. Can I add something to that?
Chairwoman Kelly. Yes, Mr. Halprin.
Mr. Halprin. Beyond that, because the standard is written
to say does ``cause or contribute.'' Then, you read the
preamble and ``contribute'' means aggravate. It doesn't matter
whether thegardening might have been the primary factor. The
question is did work in any way aggravate it to any degree.
If the answer is yes, it is covered. Second, although it is
the employer's decision, if the employee doesn't like the
decision, they file a complaint with OSHA. OSHA comes in to
conduct an inspection to see whether the decision was correct.
I can't say that is the most efficient way of doing things,
but it is not as though it is the employer's absolute decision
and there is nothing else that is going to happen if the
employee files a complaint. The employer has got to go through
an OSHA inspection about it and try to justify and document why
they came to the decision they did. Then, of course, there is
the problem that the standard, as written, doesn't allow the
employer to have access to the information they need to make
the decision. That is another issue.
Chairwoman Kelly. I thank you. I think that, obviously,
honest minds can differ on this subject to a certain degree.
But, as Mr. Pascrell points out, we need to come to a
thoughtful decision with this rule. There is a need for more
information. There is a need for thought.
It is only, I believe, by working together, that we are
going to come up with some kind of a decision on this rule that
will be something that is enforceable and workable, will
protect the workers but also will protect the employers,
especially those of us who are small businesspeople who must
contend everyday on an individual basis with many rules and
regulations that are promulgated by these agencies.
So often, many of these do conflict. I thank all of you
very much for being here on the panel today. I really thank you
for your patience and your willingness to speak forth and to be
so strong in your opinions.
Thank you very much. Hearing is adjourned.
[Whereupon, at 3:15 p.m., Monday, April 14, 2000, the
hearing was adjourned.]
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