[Senate Hearing 107-422]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 107-422
 
                  ONE YEAR LATER: INADEQUATE PROGRESS


                       ON AMERICA'S LEADING CAUSE


                          OF WORKPLACE INJURY
=======================================================================

                                HEARING

                               BEFORE THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                                   ON

    EXAMINING WORKPLACE INJURY ISSUES, FOCUSING ON MUSCULOSKELETAL 
                    DISORDERS (MSDs) AND ERGONOMICS

                               __________

                             APRIL 18, 2002

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions









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          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS




               EDWARD M. KENNEDY, Massachusetts, Chairman
CHRISTOPHER J. DODD, Connecticut     JUDD GREGG, New Hampshire
TOM HARKIN, Iowa                     BILL FRIST, Tennessee
BARBARA A. MIKULSKI, Maryland        MICHAEL B. ENZI, Wyoming
JAMES M. JEFFORDS (I), Vermont       TIM HUTCHINSON, Arkansas
JEFF BINGAMAN, New Mexico            JOHN W. WARNER, Virginia
PAUL D. WELLSTONE, Minnesota         CHRISTOPHER S. BOND, Missouri
PATTY MURRAY, Washington             PAT ROBERTS, Kansas
JACK REED, Rhode Island              SUSAN M. COLLINS, Maine
JOHN EDWARDS, North Carolina         JEFF SESSIONS, Alabama
HILLARY RODHAM CLINTON, New York     MIKE DeWINE, Ohio
           J. Michael Myers, Staff Director and Chief Counsel
             Townsend Lange McNitt, Minority Staff Director





                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                        Thursday, April 18, 2002

                                                                   Page
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................     1
Gregg, Hon. Judd, a U.S. Senator from the State of New Hampshire.     2
Wellstone, Hon. Paul D., a U.S. Senator from the State of 
  Minnesota......................................................     4
Hutchinson, Hon. Tim, a U.S. Senator from the State of Arkansas..     6
Chao, Hon. Elaine, Secretary, U.S. Department of Labor, 
  Washington, D.C., accompanied by John Henshaw, Assistant 
  Secretary of Labor for Occupational Safety and Health..........     7
    Prepared statement...........................................    10
    Written responses to questions of Senator Enzi...............    12
    Written responses to questions of Senator Bingaman...........    14
Bond, Hon. Christopher S., a U.S. Senator from the State of 
  Missouri.......................................................    24
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....    31
Dodd, Hon. Christopher J., a U.S. Senator from the State of 
  Connecticut....................................................    33
Edwards, Hon. John, a U.S. Senator from the State of North 
  Carolina.......................................................    36
Nowell, Jackie, Director, Occupational Safety and Health Office, 
  United Food and Commercial Workers International Union.........    43
    Prepared statement...........................................    46
    Written responses to questions of Senator Enzi...............    85
Purvis, Melody, former employee, Brylane, Indianapolis, IN.......    85
    Prepared statement...........................................    88
Fontana, Paul, occupational therapist and owner, Fontana Center 
  for Work Rehabilitation, Lafayette, LA.........................    96
    Prepared statement...........................................    99
    Written responses to questions of Senator Enzi...............   109

                          Additional Material

Statements, articles, publications, letters, etc.:...............
    Smith, Gary, Executive Director Independent Business 
      Association................................................   119
    National Coalition on Ergonomics.............................   121


                  ONE YEAR LATER: INADEQUATE PROGRESS



                       ON AMERICA'S LEADING CAUSE



                          OF WORKPLACE INJURY

                              ----------                              


                        THURSDAY, APRIL 18, 2002

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 10:05 a.m., in 
room SD-430, Dirksen Senate Office Building, Hon. Edward M. 
Kennedy, [Chairman of the Committee], presiding.
    Present: Chairman Kennedy; Senators Dodd, Wellstone, Reed, 
Edwards, Clinton, Gregg, Enzi, Hutchinson, Bond, Sessions.
    The Chairman. We will come to order.
    We are honored to have the Secretary of Labor with us today 
on a subject of enormous importance to workers and workers' 
families. I know that all of us appreciate, Madam Secretary, 
the time, effort, and energy that you have spent on this issue. 
You have had a lot of contact with all of us on it over a 
period of time, we have been looking forward to hearing from 
you, and we will hear from you in just a moment. I know you 
will introduce John Henshaw, the Assistant Secretary, when you 
are recognized.
    I will make a brief opening statement and then turn to 
Senator Gregg, the Chairman of the Subcommittee on Children and 
Families; Senator Wellstone, who has important responsibilities 
in this area, will say a word, and hopefully, Senator Enzi will 
be here as well to make a comment, and then we will get on with 
your testimony.
    I understand we will have two votes at 11:30, so we are 
going to try to make as much progress as we can.

                  Opening Statement of Senator Kennedy

    America's workers have waited for more than a year for a 
plan from the Department of Labor to keep them safe on the job 
from ergonomic injuries. Two weeks ago, we learned that we will 
have to wait even longer for serious action on the Nation's 
leading causes of workplace injuries. During that extended 
delay by the administration, America's workers have suffered 
over 1.8 million workplace injuries which could have been 
prevented. The administration's delay has also cost the economy 
dearly--nearly $50 billion according to the National Academy of 
Sciences due to injury costs and lost productivity from injured 
workers unable to do their jobs.
    As we will hear today, these injuries have devastated lives 
and destroyed careers. Ergonomic injuries account for 
approximately one-third of all workplace injuries. Women have 
suffered the most from the administration's extended delay. 
Women make up less than half of the work force, yet they suffer 
about two-thirds of all workplace injuries from carpal tunnel 
syndrome and tendonitis.
    Many of these injuries could have been prevented if this 
administration had acted as promised. Sadly, the long-awaited 
plan of action by the administration falls far short of 
protecting America's workers. It is not the ``comprehensive 
approach to ergonomics'' promised by the President and the 
Secretary over a year ago. In fact, it is really only a plan to 
come up with a plan.
    The administration's plan is a replay of failed strategies 
from the past. They rely on toothless voluntary guidelines that 
most corporations will simply ignore. In fact, after over a 
year of delay, the administration still has not identified what 
industries will be covered and has not produced a single one of 
these voluntary guidelines.
    Under the administration's voluntary plan, great emphasis 
is placed on the importance of training; yet the President's 
budget cuts workplace safety training by $7 million. With these 
cuts, the administration is eliminating a long-time successful 
program for improving workplace safety for immigrant workers.
    This issue has been studied and studied and studied again 
and again and again over 10 years. There were three 
congressionally-funded studies over 4 years. There is 
absolutely no doubt that millions of workers suffer from 
repetitive motion injuries due to their jobs. Yet the 
administration's plan means more study, additional delay, 
unenforceable guidelines, and another decade in which little is 
done to protect these workers.
    We all know that if a million CEOs were injured on the job 
instead of a million secretaries and cashiers, we would see a 
very different plan presented to the Committee today.
    As the American Public Health Association stated: ``It is 
very clear that American workers need a real ergonomic 
standard, that there is scientific data supporting a standard, 
and that Secretary Chao has chosen to ignore the information 
favor of big business interests.''
    The administration mistakenly claims that a purely 
voluntary approach is best to protect workers. We have already 
been down that road. In the first Bush Administration, they 
recognized the failure of voluntary guidelines, compliance 
assistance and enforcement under the general duty clause, and 
began to develop a nationwide standard 10 years ago. Instead of 
taking seriously the lessons of history, the administration is 
protecting the employers who ignore the safety of their 
workers, and America's workers are left to suffer the 
consequences. Millions of injured workers have their lives 
disrupted and their careers destroyed just for doing their job 
well. We owe it to them to do all we can to protect them.
    I welcome our witnesses today and look forward to hearing 
from them how we can best protect America's workers on the job.
    Senator Gregg.

                   Opening Statement of Senator Gregg

    Senator Gregg. Thank you, Mr. Chairman.
    Traditionally, hearings in this Committee are held for the 
purpose of receiving facts, developing policy, or learning 
something about an issue which we may not be fully informed on. 
But when I look at the title of this hearing, which is ``Over 
One Year Later: Inadequate Progress on America's Leading Cause 
of Workplace Injuries,'' I have to conclude that maybe this 
hearing comes with a conclusion versus a purpose. And it is 
ironic that it does in those contexts over one year later, 
because if you look at what has occurred on the issue of 
ergonomics, you have to appreciate the fact that this a 
question of incredible complexity which we have not as a 
Government wrestled with very effectively. And I would state 
that the prior administration is the best example of that.
    They spent over 8 years and $10 million to produce 
regulations which amounted to 600 pages. I have copies of it 
right here. This is the Clinton proposal which they issued in 
the final hours of the Clinton Administration--600 pages, 8 
years, $10 million. It was such a flawed product--such a flawed 
product--that a bipartisan vote of the Congress rejected it out 
of hand as something that has failed.
    They rejected it because as a study, it basically did not 
use strong science. They rejected it because it created a one-
size-fits-all approach which fundamentally impacted the 
capacity of small business people especially to create and 
maintain jobs. They rejected it because the terms were vague 
and the definitions were vague, and the policies would have 
been virtually unenforceable on many accounts and would have 
created a plethora of lawsuits and might have benefitted the 
trial lawyers but would have benefitted few employees. And they 
rejected it because it simply did not work, and it was going to 
end up costing America jobs without any significant improvement 
in the health of our citizenry.
    We all recognize that musculoskeletal injuries are serious, 
that they are real, and that they need to be addressed. I 
think, however, that to point the finger of blame at this 
administration, at the Bush Administration, which has made a 
legitimate effort over its year in office to try to put back 
together the pieces of a strategy which was so fundamentally 
flawed under the Clinton Administration, is an inappropriate 
and probably nonproductive approach to the issue.
    The Labor Department under the leadership of Secretary Chao 
has come forward with a set of principles, and they are 
reasonable principles as to how we should proceed. Had these 
principles been put in force 8 years ago, maybe we would not be 
at this point; maybe we would have a policy that would work. 
Unfortunately, that was not the case.
    The first principle is that they will develop industry- and 
task-specific guidelines to assist businesses in achieving a 
safer workplace. Such an approach would encourage creativity 
and flexibility, allowing customized solutions to meet specific 
demands of different workplaces--a fundamentally different 
thrust than what the Clinton Administration proposed, which was 
a one-size-fits-all approach which simply was not functional in 
the multiple marketplaces and workplace which we have in our 
country.
    Second, the Department of Labor will focus heavily on 
enforcement activities, cracking down on bad actors that refuse 
to abate recognized hazards that can cause harm to workers--
and, in fact, has done that, and as a result of doing that, we 
have seen an actual reduction in these types of injuries since 
this administration took office.
    Third, the Department of Labor will conduct outreach and 
assistance activities, providing expertise to employers and 
especially small business people who need that type of 
assistance, through training programs, compliance assistance 
tools, and determining the best practices available. This is 
the type of assistance we need in the marketplace to accomplish 
real results.
    Finally, the Department will help to fill the research gaps 
that exist in the area of ergonomics so that we can develop a 
policy that is based on sound science and that will be 
constructive and that will actually work to abate these 
injuries rather than a policy which will simply create 
paperwork and lawsuits.
    I applaud the administration for their initiatives. I think 
that in the context of what they were given, the problems which 
they confronted when they came into office, the fact that they 
had 8 years of failed policies, 600 pages of administrative 
initiatives which clearly did not work and which, in fact, the 
Congress rejected, that they have done an excellent job in 
trying to right the ship and get us back on a course toward 
addressing this issue and protecting the American worker.
    The Chairman. Senator Wellstone.

                 Opening Statement of Senator Wellstone

    Senator Wellstone. Thank you, Mr. Chairman.
    Let me first of all thank you for convening the hearing 
today, although I think it is disappointing that we have to 
address this topic of inadequate progress in America's leading 
cause of workplace injury. But sadly, that is the situation 
that we face.
    Madam Secretary, let me welcome you to the Committee. I 
appreciate your joining us today, but quite frankly--and I do 
not think it will surprise you when you hear me say this--I 
think this is a case of too little too late.
    We have had a year of inaction and delay, and I think that 
is a very fair conclusion to reach. After having pressed the 
administration to deliver on its promise of a ``comprehensive 
plan'' to address the serious problem of repetitive stress 
injuries in the workplace, what we have today, what has been 
delivered, is a hollow shell.
    It is a plan that actually turns the clock back, Mr. 
Chairman, before the first Bush Administration. I am very 
anxious to hear from the Secretary why it took so long to 
produce so very little.
    Mr. Chairman, we have heard all the statistics, and we are 
going to have people testify today whose lives reflect those 
statistics. Each year, 1.8 million workers experience 
repetitive stress injuries on the job; 5,000 injured workers a 
day; one worker injured every 18 seconds. Women suffer 
disproportionately from these injuries, painful and 
debilitating injuries. And we will hear from witnesses today 
about what this has meant to their lives and what it is doing 
to people around our country, men and women, but especially 
women.
    We know that we can prevent literally hundreds of thousands 
of needless workplace injuries each year. We have the know-how 
and we have the experience, and a strong, balanced repetitive 
stress injury standard would have advanced that goal.
    Instead, the administration has opted for measures that 
have been repeatedly tried--and I say this as Chair of the 
Subcommittee on Employment and Safety and Training--that have 
been repeatedly tried over the past 10 years and have 
consistently failed to decrease the level of injuries--
voluntary guidelines, general duty clause enforcement, outreach 
and compliance, and further research.
    Voluntary approaches alone have not protected workers from 
repetitive stress injuries. OSHA itself reports that only 16 
percent of employers in the general industry have put in place 
ergonomic programs to reduce hazards. Relying on employers to 
take the necessary steps simply has not stemmed the tide of 1.8 
million repetitive stress injuries suffered each year by 
workers.
    Moreover, the Bureau of Labor Statistics reports show that 
injury numbers and rates are increasing, particularly in high-
risk industries and occupations. And what do we have here? 
Voluntary guidelines.
    Nor can general duty clause enforcement deliver the same 
results as a comprehensive standard. General duty clause 
enforcement is lengthy, burdensome, expensive, resource-
intensive, and most importantly, it is not a preventive tool, 
and most importantly, you do not even have a definition of 
repetitive stress injury, so I do not even know how we use 
this.
    OSHA has been providing valuable compliance assistance on 
repetitive stress hazards for nearly two decades. It is not a 
new initiative. What is difficult to understand, however, is 
how OSHA can advance this part of its plan in the face of the 
President's proposed cuts to the overall compliance assistance 
and training budgets by nearly $11 million.
    Indeed, with the demands that will be placed on OSHA to 
implement this repetitive stress injury plan, it is difficult 
to understand why the Department did not seek additional 
resources for its implementation.
    And finally--and I will spend some time in questions on 
this--I am really troubled by this research agenda. To begin 
with, given the comprehensive National Academy of Sciences 
report--as long as we are holding up documents; right here--
just finished last year, it is difficult to understand what 
additional research could possibly be needed in order for OSHA 
to frame a repetitive stress injury agenda.
    In any event, the Occupational Safety and Health Act 
clearly specifies that NIOSH is the entity for conducting and 
engaging in the research, and this is a complete end run around 
NIOSH with yet another advisory committee, and quite frankly, I 
am trying to figure out what the meaning of this is. Is the 
real goal here to create a forum for those who continue to 
claim that there is no science behind ergonomics and that 
repetitive stress injury simply results from the worker's 
inability to cope? Why yet another advisory committee outside 
the jurisdiction of NIOSH?
    Gunnar Murdahl, the Swedish sociologist, once said 
``Ignorance is never random.'' Sometimes we do not know what we 
do not know want to know.
    Finally, I am concerned that despite the Department's year-
long inquiry into precisely the question of definition, there 
is no definition of ergonomic injury other than to leave open 
the possibility that the definition might be narrowed.
    OSHA has stayed until next year its definition of MSDs for 
the purpose of recordkeeping. Without answering this question, 
without having a definition of repetitive stress injury, which 
you do not have, how does OSHA encourage compliance? Compliance 
of what? How does OSHA undertake research and training, invoke 
the general duty clause, identify research gaps and quantify 
the magnitude of the problem when you do not even have a 
definition of the injury?
    How can anything meaningful be done for workers who suffer 
from repetitive stress injury every day, when you do not even 
come up here with a definition of repetitive stress injury?
    I do not think time is neutral for a lot of workers, and I 
think it is fair to conclude that very little has been done in 
this past year, and a lot of people pay a very dear price. And 
I think that that is what this hearing is about.
    The Chairman. Senator Hutchinson.

                Opening Statement of Senator Hutchinson

    Senator Hutchinson. Thank you, Mr. Chairman.
    I want to thank you, Madam Secretary, for being here today. 
Under your leadership ergonomic protections have been put in 
place a little over a year after taking office, and we need to 
remember the significant work force that the Department of 
Labor has had to dedicate to the aftermath of September 11, the 
anthrax attacks, and the Enron collapse.
    Rather than the attitude implied by the title of this 
hearing, which indeed presupposes its own conclusion, I would 
like to congratulate you for your actions on this very 
difficult subject, one which the previous administration spent 
10 years and $10 million developing a rule to address a rule, 
which I might add was so clearly misguided, so flawed, and so 
unworkable that in an unprecedented bipartisan action, Congress 
overturned it.
    So I congratulate you, and I thank you for what you are 
doing, Madam Secretary. We thank you for your leadership and 
your testimony today and the plan to reduce ergonomic injuries. 
The actions that you have outlined in your testimony and the 
plan that the administration has come forward with will make a 
real difference in the lives of American workers by improving 
the safety of their workplace.
    The plan you announced on April 4 has already gone into 
effect. In fact, the general duty clause, which requires 
employers to provide a workplace free of recognized hazards 
that are likely to cause serious physical harm is already being 
applied to ergonomic hazards by your administration. This 
approach is already working.
    You settled an OSH Review Commission case brought against 
Beverly Nursing Home, and now, that nursing home is switching 
to a mechanical lifting device for lifting patients.
    Much has been said about the fact that the guidelines for 
reducing ergonomic hazards will be voluntary. Well, I would 
like to point out that while complying with the specific 
guideline may be voluntary, the obligation to keep a workplace 
free of recognized ergonomic hazards--and I am quoting--
``recognized ergonomic hazards likely to cause serious harm'' 
is not voluntary.
    So essentially, you are giving employers a goal line that 
they must reach and one possible path to get there. But if an 
employer knows of another way to get there, a way that might be 
better or less expensive or less onerous for the employer or 
the employee, that can be used too. What counts here is the 
result--reducing ergonomic injuries. And while the number of 
reported cases of repeated trauma injuries more than tripled to 
332,000 in the decade ending in 1994, they then began to back 
down to 235,000 by 1998. Additionally, injuries and illnesses 
related to MSDs have declined over the last 10 years even 
though there has not been a specific standard addressing them.
    So I believe your approach is working, and it is results 
that count, and you have moved forward with a very good plan 
and good guidelines in a very difficult time for the Department 
and for the Nation. I commend you, and I thank you for your 
willingness to come and explain that approach to the Committee 
today.
    The Chairman. Thank you very much, Senator Hutchinson.
    Madam Secretary, we will be glad to hear from you.

 STATEMENT OF HON. ELAINE CHAO, SECRETARY, U.S. DEPARTMENT OF 
LABOR, WASHINGTON, D.C., ACCOMPANIED BY JOHN HENSHAW, ASSISTANT 
     SECRETARY OF LABOR FOR OCCUPATIONAL SAFETY AND HEALTH

    Secretary Chao. Chairman Kennedy, Senator Gregg, and 
Members of the Committee, thank you for inviting me to appear 
before your Committee this morning on the subject of 
ergonomics.
    Mr. Chairman, I do have a more detailed written statement 
that I would like to request be submitted for the record.
    The Chairman. It will be included in its entirety in the 
record.
    Secretary Chao. As I listened to stakeholders and reactions 
and responses on this issue, I was reminded of Lord Tennyson's 
immortal lines: ``Cannon to the right of them, cannon to the 
left of them, cannon in front of them, volleyed and 
thundered.''
    Ergonomics has indeed been a highly charged and 
controversial subject on which people have very strongly held 
views, and in many cases I have found, diametrically opposed 
points of view.
    But it does not have to be that way if we agree that our 
ultimate goal is to protect workers as quickly and effectively 
as possible. I am confident that our comprehensive plan on 
ergonomics will achieve the goal of protecting workers from 
musculoskeletal injuries with quick and lasting results.
    In fact, our plan goes much further than the old and 
rejected ergonomics rule by seeking to prevent injuries before 
they occur and by having the capacity to protect a much broader 
range of workers who are at risk.
    Our plan integrates four essential components that 
complement and reinforce each other--industry- and task-
specific guidelines; vigorous enforcement; a range of dedicated 
compliance assistance efforts; and expanded research to help us 
continuously upgrade the ergonomic protections available to 
workers.
    Most importantly, our plan accomplishes what the old 
regulations could not, even after 10 years and $10 million--it 
protects real workers in real workplaces, starting now.
    Before I go any further, I would like to introduce a person 
on my right, that is, Mr. John Henshaw, the Administrator for 
OSHA at the Department of Labor, and I will speak a little bit 
more about his background at the end.
    I am here with Mr. Henshaw today to announce our first 
industry-specific guidelines and initiatives to protect workers 
in nursing homes. These workers play a vital role in caring for 
the needs of the elderly and the infirm, but in the course of 
caring for others, they are frequently exposed to significant 
risks to their own health and safety, especially from ergonomic 
hazards.
    As you may know, the majority of nursing home workers are 
low wage earners, many are low-skilled, and many are women. In 
the last decade or so, recent immigrants have become a major 
source of nursing home labor. Many of them have only limited 
English proficiency, let alone an understanding of U.S. labor 
laws. A substantial percentage of nursing home workers do not 
have legal immigration status, and that is a reality that we 
have to work with as well.
    All of this makes it very difficult for these employees to 
take steps on their own to better protect themselves on their 
jobs. And that is why my announcement today that we are 
embarking upon our first industry-specific guidelines to 
protect workers in nursing homes demonstrates once again that 
now is the time--today--to start taking care of these 
caregivers--not 2 years from now, not 3 years from now, not 10 
years from now, but today.
    Our new initiative will establish effective, workable 
guidelines to quickly reduce ergonomic injuries among these 
vulnerable workers. These guidelines will build on our 
groundbreaking pro-worker settlement in the Beverly Enterprise 
case, where we require for the very first time ergonomically 
safe lifting programs in well over 200 nursing home facilities.
    As a senior labor leader said of our work on that case, 
``Nursing home workers suffer crippling back injuries, and now, 
help is on the way.''
    That is the message that I want to bring to all of you 
today, and that is that help is finally on the way. Our success 
in the Beverly Enterprises case proves that we can protect 
workers from ergonomic injuries with the tools that we have 
right now.
    But this is only the beginning. We are in the process of 
reaching out to representatives of nursing home workers as well 
as nursing home operators to try to find common ground on 
reducing ergonomic hazards in these workplaces. We all agree 
that workers have an interest in achieving this goal, but so do 
employers. The truth is as many employers already know and 
practice, protecting your workers is just good business sense.
    Our plan is to bring these interests together to develop 
creative, effective solutions that will prevent injuries and 
get them implemented as quickly as possible. We will use 
outreach and training efforts to reinforce these solutions and 
maximize their use. This is the approach we will adopt not only 
in nursing homes but also in other industries where workers 
face high risks of ergonomic injuries.
    In most cases, bringing employers and workers together will 
be the most effective way to get injury rates down in the short 
run and also in the long run. In that vein, I do want to 
commend the nursing home operators who have agreed to work with 
us and with their workers and employees to make their 
facilities ergonomically safer. That is the kind of cooperation 
we seek and expect, but we also intend to exert leadership and 
pressure to get the results we need to adequately protect 
workers.
    That is why our comprehensive ergonomics plan includes not 
only collaborative guidelines but also committed enforcement. I 
truly believe that most employers want to do the right thing by 
their employees. Some companies already invest large amounts of 
money in tools and technologies that help prevent ergonomic 
injuries. But to those employers who stubbornly refuse to 
safeguard their workers from identifiable, work-related 
ergonomic hazards, I have a word of warning: Our law defends 
the safety and health of every worker, and we will enforce that 
law.
    Our enforcement strategy will build on the approach that 
delivered real victories for the workers in the Beverly 
Enterprise case by combining enforcement with compliance 
assistance techniques, new research and development, and 
industry-specific guidelines, we can move quickly to get 
workers the help that they need.
    Now, of course, I realize that the approach we are 
pursuing, which sets the highest priority on protecting workers 
immediately, still will not satisfy everybody, including 
Members of this Committee. A number of you strongly based the 
last administration's ergonomics rule and would basically like 
it to be reinstated even though it was extremely controversial 
and ultimately rejected by a majority of your colleagues, both 
Democrat and Republican.
    There are also interest groups out there that would prefer 
us not to do anything, who argue that ergonomic injuries simply 
do not exist, or at least they do not deserve the level of 
intervention that our plan provides.
    So I will be the first to admit that there are some things 
that our plan will not do that tend to make Washington 
comfortable. It will not generate thousands of pages of entries 
in The Federal Register. It will not keep armies of lawyers and 
lobbyists busy as they figure out ways to attack the plan or 
expand parts of it or shrink parts of it. It will not make for 
good mail copy for groups to send out to their members to 
inflame them. And it will not take years to promulgate, 
litigate, or legislate to get results.
    Instead, our ergonomics plan is designed to do just one 
thing--protect workers as quickly and as effectively as 
possible.
    I mentioned John Henshaw, the Assistant Secretary of OSHA 
at the Department of Labor, is next to me. John has years of 
real life experience in occupational safety and health. Unlike 
most people in Washington, he has personally designed and 
implemented health and safety plans that achieve measurable 
benefits for workers, and throughout this process I have valued 
John's integrity and his experience as we have crafted a 
comprehensive ergonomics plan that will succeed in protecting 
America's workers.
    Now, John and I look forward to responding to the 
Committee's question.
    [The prepared statement of Hon. Elaine Chao follows:]
               Prepared Statement of Hon. Elaine L. Chao
    Chairman Kennedy, Senator Gregg, and Members of the Committee, 
thank you for inviting me to appear before you to discuss ergonomic 
injuries in the workplace. I am pleased to be here to talk about the 
Department of Labor's new, comprehensive approach to ergonomics. I am 
confident that we have developed an approach that will effectively 
reduce ergonomics injuries in the workplace.
    Over the past several years, few workplace issues have proved more 
contentious than what has become known as ``ergonomics.'' Although 
injuries often related to ergonomic issues, referred to as 
Musculoskeletal Disorders (MSDs), have declined by 26 percent since 
1992, calls for Federal action have been widespread. Since becoming 
Secretary of Labor, I have spent more time on this issue than any other 
issue, meeting with dozens of leaders from organized labor and 
industry, as well as medical experts, to discuss this problem. More 
importantly, I have spent time with injured workers who shared their 
stories with me, and I am determined to make their workplaces safe.
    I feel strongly about the need to reduce ergonomic injuries in the 
workplace. The Department has backed up that belief with action. We are 
implementing a practical, four- pronged approach with concrete steps 
that we can take now, to address the issue of MSDs--steps that will 
produce real results for American workers.
    First, the approach calls for the development of industry-specific 
MSD prevention guidelines, with the first set to be completed this 
year. Second, it creates a new enforcement strategy to pursue bad 
actors who refuse to take the necessary steps to protect their 
employees. Third, we are establishing an outreach and assistance 
program, to make sure that employers, workers, labor unions, and health 
and safety professionals are aware of ergonomics issues and measures to 
resolve them. Finally, while there is a large body of research 
available on ergonomics, there are many areas where additional research 
is necessary, including those identified by the National Academy of 
Science (NAS). The Occupational Safety and Health Administration (OSHA) 
will serve as a catalyst to encourage researchers to design studies in 
areas where additional information would be helpful, by chartering an 
advisory committee on ergonomics to identify research gaps and by 
working closely with the National Institute for Occupational Safety and 
Health (NIOSH) and through the National Occupational Research Agenda 
process to encourage research in needed areas.
    Sound principles underlie this approach. First and foremost, it 
will get workplace protections into place as quickly as possible. Even 
assuming that a scientifically valid rule could be prepared based on 
our current understanding of the nature of the relationship between 
work activities and certain injuries, following that route could take 
years. Our approach consists of steps we can take now, without waiting 
for the science to answer the many questions that exist about these 
injuries and their relationship to workplace ergonomic factors. 
Carefully developed guidelines, together with a workable, targeted 
enforcement strategy, can begin to be rolled out this year. We should 
not delay further while we attempt to resolve scientific uncertainties. 
Guidelines suggest specific actions employers can take to address 
ergonomic hazards in the workplace while recognizing that different 
workplaces have different needs. Of course, guidelines capture existing 
best practices and provide voluntary solutions for the overwhelming 
majority of employers who want to find better ways to protect their 
workers. To target bad actors, this approach also includes the 
development of a serious enforcement strategy, under Section 5(a)(1) 
(the General Duty Clause) of the Occupational Safety and Health Act 
(OSH Act).
    The Department of Labor's multi-pronged approach builds upon 
existing guidelines that have already proved effective in bringing down 
injury rates. MSDs in the meat products industry, for example, have 
fallen by 62 percent since 1992--more than twice the decline for all of 
private industry. We firmly believe this approach benefits both workers 
and employers. In particular, it avoids a one-size-fits-all mandate 
that would discourage employers from developing innovative, customized 
approaches to preventing MSDs. Given the evolving nature of the 
science, Government simply does not have all the answers.
    It is important to understand the context in which we have settled 
on this strategy. In the closing days of the Clinton Administration, 
OSHA issued a controversial and broadly questioned ergonomics rule. 
Many interested persons have contended that the rule was rushed through 
without sufficient consideration of the voluminous public record. They 
thought that it failed to distinguish between job-related and non job-
related injuries, and required employers to pay for work days that 
employees missed due to injuries that may not have been caused by work 
at all. They also argued that the rule did not adequately inform 
employers of what steps they must take to achieve compliance with the 
rule and that it would not have been effective in preventing injuries 
to workers. OSHA's final ergonomics rule was thought to be so flawed 
that bipartisan majorities in both houses of Congress voted to 
eliminate it early last year.
    At that time, I promised to establish a comprehensive policy to 
address MSDs. It was critical that any Departmental approach to 
ergonomics be clear, effective, and capable of surviving legal 
challenges and Congressional review under the Congressional Review Act. 
After more than a year of work, including three public forums held 
around the country, the Department of Labor has unveiled an approach 
that will provide real protections for America's workforce. Inevitably, 
some will criticize the new approach, arguing that relying on 
enforcement and industry-specific guidelines instead of a formal rule 
does not go far enough. Such criticism ignores several realities.
    For example, when promulgating a rule, OSHA should follow certain 
principles, such as making a scientifically valid determination 
regarding the degree of risk from various levels of activity. The lack 
of precise information about degree of risk, ``dose-response'' 
relationships, or feasible and effective controls, for example, would 
be a major hurdle to Agency efforts to promulgate a standard that meets 
legal requirements and protects workers. The risk assessment does not 
have to be based on 100 percent perfect information, but we need to 
know more about many types of MSDs than we do at this point in time.
    Because of the practical realities involved in doing a rulemaking 
on ergonomics, I believe our new four-pronged approach is simply a more 
effective and realistic way of addressing the needs of workers and 
employers. Industry-specific guidelines and compliance assistance are, 
in fact, among the best ways to protect workers from MSDs. A simple 
look at OSHA's inspection numbers, which I will describe shortly, will 
explain why. OSHA cannot be in every workplace all the time. The bottom 
line is that workplace protections are only effective if employers have 
usable information and incentives to implement them on their own.
    Of course, OSHA can, and will, crack down on those who ignore 
identified threats to worker safety. Enforcement is, accordingly, the 
second prong of our approach. In addition to responding to complaints, 
OSHA will address recognized hazards where they are identified in the 
course of planned inspections. In FY 2002, OSHA plans to conduct some 
36,400 inspections overall, and in FY 2003 we plan to do 37,700 
inspections, including investigation of ergonomic hazards and including 
about 3,600 Site Specific Targeting (SST) inspections. SST inspections, 
which target the Nation's most hazardous workplaces as determined by 
employer-reported injury and illness data, are thorough inspections 
that address both safety and health hazards in the workplace. The next 
round of SST inspections is scheduled to begin this month.
    Along with that program, OSHA will be implementing a separate 
National Emphasis Program that will address hazards in the nursing home 
industry, including ergonomics hazards.
    OSHA will not focus its enforcement efforts on employers who have 
implemented an effective ergonomics program or who are engaged in good 
faith efforts to correct the hazards. Inspections that identify 
ergonomic hazards will not necessarily result in citations. In some 
cases, OSHA will issue a Hazard Alert Letter that makes the employer 
aware of the hazard and provides information on feasible means of 
abatement and possible sources of assistance. Within twelve months, 
OSHA will conduct follow-up inspections or investigations of certain 
employers who receive a Hazard Alert Letter. To assist this effort, 
OSHA is also providing its inspectors with additional training on 
ergonomic hazards and abatement.
    As you know, employers have two principal obligations under the OSH 
Act: to comply with standards and to provide a workplace free of 
``recognized hazards'' under the General Duty Clause in Section 5(a)(1) 
of the OSH Act. Historically, OSHA has issued over 500 General Duty 
Clause citations related to ergonomic-type problems and issues. To be 
sure, the number of those citations dropped off considerably over the 
past few years because OSHA did not pursue General Duty Clause 
citations during the pendency of the rulemaking.
    OSHA's new comprehensive approach to address ergonomic hazards, 
however, incorporates an enforcement strategy that will result not only 
in General Duty Clause citations, but also successful prosecutions. Let 
me just mention in this regard the successful settlement recently of a 
5(a)(1) citation against Beverly Enterprises, Inc. nursing homes, under 
which the employer agreed not only to institute a lifting program in 
the 5 facilities that were the subject of citations, but to do so at 
each of their 240 nursing home facilities under Federal jurisdiction.
    Building upon the Department's litigation successes in the Beverly 
Enterprises and Pepperidge Farm cases, OSHA will use the General Duty 
Clause to cite employers who fail to engage in good faith efforts to 
abate ergonomic hazards. OSHA will, in appropriate cases, issue 5(a)(1) 
citations involving ergonomic hazards, and I have instructed OSHA and 
the Solicitor of Labor to act accordingly. The Solicitor's office is 
preparing a new enforcement strategy that will help ensure that 
employers meet their safety obligations to their employees. As SEIU 
President Andrew L. Stern said in reaction to our victory in the 
Beverly case, ``Nursing home workers suffer crippling back injuries, 
and now help is finally on the way.''
    Along with guidelines and enforcement, our comprehensive approach 
includes outreach and assistance, as well as research. OSHA will 
provide specialized training and information on guidelines and the 
implementation of successful ergonomics programs, administer targeted 
training grants, develop compliance assistance tools to help employers 
prevent and reduce ergonomic injuries, forge partnerships, and create a 
recognition program to highlight successful ergonomics injury reduction 
efforts. This effort will also include, as part of the Department's 
commitment to protecting immigrant workers, a specialized focus to help 
Hispanic and other immigrant workers, many of whom work in industries 
with high ergonomic hazard rates. Finally, in concert with NIOSH, OSHA 
will stimulate and encourage needed research by forming a national 
committee, which will advise OSHA about research gaps and other issues 
related to our approach to ergonomics. This measured, step-by-step, 
four-pronged approach assures that OSHA will fulfill its statutory 
obligation to protect American workers, while at the same time 
protecting against overreach and one-size-fits-all determinations.
    While we implement our approach to reduce workplace MSDs, it is 
important to recognize that many American workplaces are addressing 
this problem on their own. MSDs have declined by 26 percent over the 
last decade, in part due to increased awareness regarding the problem. 
Many employers know that it is simply good business to prevent 
workplace injuries, and they are taking steps to do so. We need to 
avoid taking any action that would stifle the creativity and initiative 
that workplaces have demonstrated over the last several years to 
respond to this issue.
    I want to thank the Members of this Committee for allowing the 
process to run its course. We are now taking real steps to address the 
problem. Reducing MSD hazards will make all workplaces safer and 
improve the lives of thousands of American workers. The Department of 
Labor's comprehensive, multi-pronged strategy is the best way to reach 
these goals. I urge employers, workers, organized labor, and ergonomics 
experts to come together and help this strategy succeed.
                                 ______
                                 
       Response to Questions of Senator Enzi from Elaine L. Chao
    Question 1. Have you seen that employers are already voluntarily 
developing ergonomics programs? As a follow-up question, would the 
promulgation of a broad new ergonomics standard assist or hinder these 
efforts?
    Answer. Many employers, in a wide variety of industries, have 
already implemented successful ergonomics programs. Participants in 
OSHA's Voluntary Protection Programs (VPP) are documented proof of the 
success of a voluntary approach. We have also seen successful voluntary 
programs implemented in industries where OSHA does not typically have a 
significant presence, such as Honeywell Technology Solutions at the 
White Sands testing facility in Las Cruces, NM. In addition, during the 
forums on ergonomics that the Department conducted last summer, OSHA 
heard from many other participants who had implemented successful 
programs.
    Part of the reason for the success of the voluntary approach is 
that each employer is free to develop a program that is flexible enough 
to adapt to the unique conditions within its own environment. The 
promulgation of a mandatory one-size-fits-all approach would eliminate 
such flexibility, and could actually hinder implementation of more 
appropriate tailor-made solutions. Guidelines can be more effective 
because they create a co-operative relationship with employers, who 
will actually implement ergonomic safeguards. Also guidelines are cost 
effective, making it far more likely that businesses can actually 
implement needed protections.
    Question 2. How do you think the Department's strategy will reduce 
workplace ergonomic injuries and illnesses more quickly and effectively 
than a broad new rule?
    Answer. First, our plan can be implemented faster. There are a 
number of time-consuming procedural requirements that must be met when 
undertaking a new rulemaking. It would tie up critical OSHA personnel 
and other resources which would then not be available to help promote 
immediate hazard reduction. We estimate that it could take more than 4 
years to promulgate a new rule. The last ergonomics rulemaking took 10 
years and $10 million to accomplish, and still there were so many flaws 
and controversies regarding it that a bipartisan majority of both 
houses of Congress voted to nullify it. Any new ergonomics rule, 
particularly one that is as broad and complex as some have suggested, 
would be vulnerable to court challenges.
    Second, our approach is workable. The Department of Labor 
considered whether a new ergonomics standard could be crafted that did 
not have the myriad of negatives that were cited during congressional 
debate on S. J. Res. 6. We concluded that a one-size-fits-all standard 
that would apply to every workplace and every occupation was virtually 
impossible to conceive. Flexibility was needed to tailor abatement of 
hazards to individual worker and employer situations.
    Third, the Department strongly believes that abatement of hazards 
that lead to ergonomic injuries, not just after-the-fact fines and 
penalties, should be the ultimate goal of our ergonomics plan. 
Guidelines, the first prong of our comprehensive approach, have proven 
to be effective. For instance, in the meat packing industry, industry-
specific guidelines have led to a 62 percent reduction in 
Musculoskeletal Disorders (MSDs), as well as a 73 percent decline in 
the rate of carpal tunnel injuries, a 76 percent decline in the rate of 
sprains and strains, and a 78 percent decline in the rate of back 
injuries. If employers fail to take seriously the need to address 
ergonomic hazards, they will face the prospect of enforcement action 
under Section 5(a)(1).
    Question 3. One of my concerns with the repealed ergonomics rule 
was that it took a ``one size-fits-all'' approach. How does the 
Department's new strategy differ in this respect?
    Answer. Industry-specific guidelines give the Department the 
flexibility to work with industries to find the best means of reducing 
ergonomic hazards. Unlike rulemaking, guidelines can be formulated and 
implemented more quickly. Also, as proven by the record of the past 10 
years on this issue, it is very difficult to produce a one-size-fits-
all standard to address ergonomic hazards, which vary widely in 
complexity across industries and occupations.
    A rule is also no guarantee of success in reducing hazards. 
Workplace practices and processes may change during a lengthy 
rulemaking, thus producing the possibility of little or no reduction in 
injuries to workers while producing a definite regulatory burden on 
businesses and high costs in time and dollars.
    Further, a more flexible approach will permit OSHA to keep the 
guidelines up to date with advances in the science. A one-size-fits-all 
standard could only be amended after a long regulatory process.
    Question 4. One of my biggest concerns with the repealed ergonomics 
rule was its impact on small businesses. How will the Department's new 
strategy take into account the unique needs and capabilities of small 
businesses?
    Answer. We understand that small businesses often do not have an 
employee solely dedicated to job safety and health. OSHA will offer 
specific assistance to small businesses by providing direct outreach to 
them and their trade associations to reach as many small businesses as 
possible. For example, OSHA will tailor its consultation program to 
help businesses with 250 or fewer employees by providing best practices 
designed for small businesses, and also by conducting workshops focused 
on small business needs. Small businesses will also be able to work 
with OSHA's 10 regional ergonomic coordinators, who will be involved in 
enforcement, outreach, and compliance assistance.
    We are also in discussions with the Small Business Administration's 
Office of Advocacy to determine additional ways to disseminate 
information to small businesses on how to effectively reduce ergonomic 
hazards.
    Question 5. The Department's strategy calls for industry and task-
specific guidelines. Does the Department's plan have sufficient 
``teeth'' to motivate employers to provide their employees with a safe 
workplace?
    Answer. A large majority of businesses already have sufficient 
motivation they want to protect their most important asset: their 
employees. We will provide those businesses with the best tools for 
continuing to protect the health and safety of their workers.
    For those employers who fail to engage in good-faith efforts to 
abate recognized ergonomic hazards, we will consider our enforcement 
options. We will target these employers through an enforcement plan 
that includes a legal strategy designed for successful prosecution 
under the General Duty Clause.
    Question 6. Since the General Duty clause of the OSH Act, Section 
5(a)(1), already exists and requires employers to provide employees 
with a workplace that is free from recognized serious hazards, what new 
activities will OSHA's ergonomic enforcement program entail?
    Answer. OSHA will have an enforcement plan designed from the start 
to target prosecutable violations. For the first time in the Agency's 
history, inspections will be based on a legal strategy successfully 
used in past ergonomics cases. Under the ergonomics plan we will be 
implementing, we intend to build on the success of the Beverly 
Enterprises and Pepperidge Farm decisions, and on the favorable 
settlement we achieved to resolve the final issues in the Beverly case, 
which produced positive results for workers throughout the corporation.
    Also, OSHA will utilize special ergonomics inspection teams that 
will, from the earliest stages, work closely with Department of Labor 
attorneys, and experts to successfully bring prosecutions under the 
General Duty Clause.
    OSHA has already announced a National Emphasis Program in the 
nursing home industry to guide inspections of nursing homes. The 
program will focus special attention on ergonomic hazards related to 
patient lifting. OSHA will also issue ergonomic hazard alert letters 
when appropriate and will conduct follow-up inspections or 
investigations within 12 months of certain employers who receive these 
letters.
                                 ______
                                 
     Response to Questions of Senator Bingaman from Elaine L. Chao
    From what I can tell, the recommendations that you have put forward 
by and large ignore the recommendations published by the National 
Academy of Sciences on MSD and the workplace. Given the quality of the 
scholarship and the length of time involved in the research, I am 
confused why this might be. I would like you to walk through each of 
the recommendations published by the National Academy of Sciences and 
explain either: (1) how exactly your current proposal is compatible 
with that recommendation, and; (2) why you believe that recommendation 
is inappropriate and you have chosen not to implement that 
recommendation.
    Your statement at the HELP ergonomics hearing suggests that 
employers and employees share a common goal of reducing workplace 
injuries. In theory, I would agree with you. In practice, this is still 
not the case. Unfortunately, there are still many cases where employers 
find it more cost-effective to ignore the changes that would help their 
employees and simply hire new employees when current employees are 
injured. These employers may (or may not, depending on your 
perspective) be anomalies, but they are still a problem that needs to 
be addressed. In concrete terms, how would your current proposal 
respond to or prevent such cases?
    I think Senator Enzi made a good comment today, that being that 
some businesses do not know the best practices that can be used in 
their workplace to solve ergonomic problems. Your current proposal 
mentions outreach, assistance, training, and other such efforts, but 
neglects to give concrete plans. Given the voluntary nature of your 
current proposal and its reliance on business to comply of their own 
volition, I would like some elaboration on your plans in this area. In 
concrete terms, please tell me if the administration is planning to 
request equal or additional funds for current programs designed for 
employer and/or employee education? Does it have new programs in mind? 
If outreach and training is so important, why has funding been cut to 
successful and important programs like the Susan Harwood program?
    The testimony of Ms. Purvis suggests that one of the primary 
problems we face at this time in this country on MSD's is that there 
are differences across States, but within industries and companies in 
terms of how they implement and enforce ergonomic standards. It would 
seem that common guidelines across industries and companies would 
assist in solving this long-standing, but you have chosen not to create 
them at this time. Given this fact, in concrete terms how would your 
current proposal eliminate some of these differences that I have 
mentioned? Using Brylane as an example, how should the administration 
respond to, how will the administration respond to, the problems that 
exist at that company?
    You stated at the HELP ergonomics hearing that you would provide 
guidelines for specific industries ``soon.'' Please provide me with a 
concrete timetable for when you expect that these guidelines will be 
created and implemented.

    The Chairman. Thank you very much. We welcome you.
    We will have 6-minute rounds, and I will ask staff to keep 
track of the time.
    Just to understand, what are you announcing today in terms 
of the nursing homes?
    Secretary Chao. We have a comprehensive ergonomics plan, 
and it is a four-pronged strategy to ensure that workers are 
protected. The first is industry-driven and task-specific 
guidelines to be followed by strong enforcement and aggressive 
outreach, compliance assistance, and lastly, research and 
development to add to the gaps in the science.
    So today, we are announcing, in fact, the first industry-
specific guidelines, and based on our experience with----
    The Chairman. This is in the nursing homes.
    Secretary Chao. Yes.
    The Chairman. Do you have the guidelines here?
    Secretary Chao. I do not have it with me. We will submit 
that.
    The Chairman. Okay. But they are prepared, and they are 
going to go out now--it is current. I think your earlier 
testimony had indicated that that was the plan for the end of 
the year----
    Secretary Chao. Right.
    The Chairman [continuing]. And I understand you to say now 
that it is going to be issued today.
    Secretary Chao. It will not be issued today. Our 
comprehensive plan of guidelines will take--we will exert all 
efforts to make sure that guidelines are coming out as quickly 
as possible, and we think that by the end of the year, we will 
have guidelines. But these will be----
    The Chairman. By the end of the year?
    Secretary Chao [continuing]. But they will be industry-
specific and task-specific, and our first industry-specific 
guidelines we are announcing today, that we are working on with 
industry workers and employers, will be the nursing home 
industry.
    The Chairman. Are you setting any goals or timetables for 
industry-wide where you even expect your guidelines to go into 
effect? Are we going to have an evaluation--could you answer 
that?
    Secretary Chao. I can assure you, Mr. Chairman, that it is 
my intent to proceed as quickly as possible to working out the 
guidelines in as short a time as possible, because my concern 
is speed and protecting workers.
    The Chairman. But today we have no plan establishing any 
goals or any timetables for the industries, other than the 
announcement of what you are doing in the nursing homes?
    Secretary Chao. The nursing homes will not be the only 
industry. We will proceed with other industries as well. But we 
will----
    The Chairman. But you are not prepared to tell us what 
those industries are?
    Secretary Chao. Primarily because when we take a look at 
the industries, there are a number of factors that we want to 
take a look at, and also, our guidelines, as I mentioned, are a 
four-pronged strategy, and we want to make sure that as we 
proceed with guidelines, we will also have the other three 
prongs in place as well.
    But as I mentioned, I will assure you that we want to do 
this as quickly as possible.
    The Chairman. We have to look at this, Madam Secretary, 
obviously, against a whole history of activity in this area, as 
you are very familiar with, starting even under President 
Reagan, where OSHA used voluntary guidelines for, at that time, 
just manual lifting; and then, under President Bush, OSHA 
issued voluntary guidelines for the red meat industry. Then, 
they had pursuit of the general duty clause which you have 
referenced in your own plan, and they also had a nationwide 
education and outreach program. President Clinton for the first 
8 years highlighted voluntary guidelines. He also indicated 
that he was going to have enforcement of the general duty 
clause. They also had a nationwide education program and three 
congressionally-funded comprehensive studies over 4 years. They 
had regional ergonomic coordinators around the country.
    And what we have seen in all the statistics that ergonomic 
injuries are still one-third of workplace injuries. After 10 
years, they are still about one-third of all the injuries. 
These past approaches have failed; they have failed. And the 
question is why do you believe that yours are going to be any 
more successful than the previous Presidents' when they have 
followed similar guidelines? Why are yours going to be so 
effective? What kind of assurance can you give to all those who 
are out there working today, right now, to those workers 
outside of the nursing home industry, who are going to be 
endangered this year and very likely next year as well?
    Why do you believe that you are going to be successful when 
the record for all the other efforts using the same approach 
has been a complete and unadulterated failure?
    Secretary Chao. I do not think the efforts in the past have 
been comprehensive, nor have they been coordinated. I think 
there has been a great deal of controversy in the past which 
has shown that these efforts have been in fits and starts and 
were not a seamless procession of efforts as your remarks would 
indicate.
    We have shown results. We have shown in the Beverly 
Enterprise case that we can use the general duty clause to 
bring about much-needed relief for workers. And despite the 
temporary increase in ergonomic injuries as reported by the 
BLS, which I am very concerned about, the overall trend for 
ergonomic injuries in the last decade has been declining; and 
in fact, with specific types of ergonomic injuries with 
relation to back strains, back pain and carpal tunnel, there 
have been substantial decreases in injuries.
    I am not satisfied with that--but also, I think the 
important thing to note is that a rule in itself will not stop 
these injuries, either. What we need is a comprehensive 
approach, and I believe that our plan will be able to 
accomplish that.
    The Chairman. Well, the statistics indicate that at least 
one-third of serious workplace injuries are still ergonomic 
injuries. The statistics indicate that very, very completely.
    Now, we have the situation where former Secretary Dole, 
when she reviewed this and looked at it over 10 years ago, 
said, ``The Department is committed to taking the most 
effective steps necessary to address the problem of ergonomic 
hazards on an industry-wide basis. Thus, I intend to begin the 
rulemaking process by asking the public for information about 
ergonomic hazards across all industry.'' And even in your March 
6 letter, you indicate that, ``I intend to pursue a 
comprehensive approach to ergonomics which may include new 
rulemaking.''
    Why did you discount the possibility of rulemaking? Let us 
put aside the rule from the last administration. Why haven't 
you issued a rule that would cover all industries and available 
to cover all the workers who are being adversely affected?
    Secretary Chao. We actually did consider a whole array of 
options, and it was our belief that our number one priority was 
to protect the workers in as quick a matter as possible. It is 
by no means certain that the previous rule, had it been in 
place, would not have been challenged and would not have been 
stayed and bogged down in tremendous litigation.
    To promulgate a successful rule, we expect would take about 
4\1/2\ years, assuming that that rule were not subject to legal 
challenges. So our concern is that we want to prevent injuries 
from occurring, we want to help the workers as quickly as we 
can, we want to have a strong enforcement program that will be 
a disincentive for employers to be bad actors, and we want to 
have an aggressive outreach and compliance assistance program 
so that we can help the workers. And from a speed point of 
view, we thought that this comprehensive point of view, 
comprehensive plan, would be best able to achieve that.
    The Chairman. Well, your own Solicitor has talked about 
using the general duty clause in enforcement--and I did not 
think I would be quoting Mr. Scalia these days--but his 
conclusion was: ``Not Ready for Prime Time--from its 
embarrassing losses in the three ergonomic cases it litigated 
to judgment, OSHA has concluded that it should cease enforcing 
ergonomics under the general duty clause and issue an ergonomic 
rule instead.''
    Here is your Solicitor General talking about the 
complexities and difficulties in pursuing cases under the 
general duty clause, effectively saying, if you read through 
the article, that it just does not work. So we are getting 
voluntary guidelines similar to the guidelines in the past that 
have not worked and following an enforcement mechanism which I 
think has been lacking.
    Senator Enzi.
    Senator Enzi. Thank you, Mr. Chairman.
    First, I would like to ask unanimous consent that my full 
statement appear in the record, and I will not go through that 
again. I had to be in the Finance Committee talking about stock 
options.
    The Chairman. Without objection.
    [The prepared statement of Senator Enzi follows:]

                   Prepared Statement of Senator Enzi

    Thank you Mr. Chairman. When a majority of both Houses of 
this Congress voted to rescind the Clinton Administration 
ergonomics rule an opportunity was created--an opportunity to 
protect workers from ergonomic injuries in an effective and 
feasible way. As Ranking Member of the Subcommittee on 
Employment, Safety and Training, I feel a special 
responsibility to help protect America's workers. I believe 
that ergonomic injuries and illnesses are a very real and very 
significant concern for America's workers and the companies 
that employ them.
    What is the best way for the Occupational Safety and Health 
Administration to respond? The measure of success for a plan to 
address ergonomic hazards in the workplace is its ability to 
prevent their occurrence. Last March, Congress exercised its 
authority under the Congressional Review Act to overturn the 
product of a rushed and flawed rulemaking process. The result 
of that process was a rule that would have impeded efforts to 
reduce musculoskeletal disorders (MSDs) in the workplace. Many 
companies have already taken significant steps to address 
musculoskeletal injuries at their worksites. Many other 
companies are looking for the tools to do so. Many small 
businesses don't know what to do. OSHA should build upon and 
foster successful efforts to reduce ergonomic injuries. The 
Agency should also provide tools for companies to implement 
programs that can work--and will work--to reduce ergonomic 
injuries in their particular industries and worksites. This is 
the best way to protect America's workers.
    Recently released data shows that overall MSD injuries and 
illness have continued to decline. Today, I am pleased to hear 
about OSHA's strategy for accelerating--rather than inhibiting 
the decline of these injuries and illnesses.
    OSHA's plan calls for industry- or task-specific 
guidelines, enforcement, compliance assistance and research. 
This approach recognizes that many questions remain, but much 
can still be done now to address ergonomic hazards in the 
workplace. This approach will build upon ``best practices'' 
that have proven successful in reducing injuries and illnesses. 
This approach will build partnerships between the Agency and 
businesses to reduce ergonomic injuries, rather than merely 
creating adversaries. Most importantly, this approach will 
focus on realities and results.
    Companies must be given the flexibility to implement 
ergonomics programs tailored to their particular needs and 
capabilities--not the complex formulas that are difficult to 
find, let alone follow, that were referenced but not provided 
in the repealed rule. Ergonomic hazards, and therefor 
appropriate interventions, vary from industry to industry, from 
location to location, and from individual to individual. A 
``one-size-fits-all'' mandate that fails to recognize the 
varying capabilities and characteristics of different 
businesses will simply not work. Furthermore, such a mandate 
will divert resources away from innovative programs that 
actually do work to reduce ergonomic injuries.
    OSHA's strategy will provide companies with the flexibility 
to address ergonomic hazards in their workplaces. The Agency 
also plans to provide employers and employees with tools to do 
so quickly and effectively. OSHA has announced that it will 
immediately begin work on developing industry and task-specific 
guidelines. OSHA has also announced a number of outreach and 
compliance assistance activities that will proactively deal 
with ergonomic issues in the workplace.
    I am particularly pleased to see that OSHA's proposal 
includes compliance assistance to small businesses. One of my 
biggest problems with the Clinton Administration's ergonomics 
rule was its impact on small businesses. Small businesses have 
unique needs and capabilities which must be taken into account 
by the Agency in order to develop an effective and appropriate 
ergonomics plan that prevents injuries. Small business doesn't 
have the range of experts to know what to do. Searching is 
often more costly than the cure.
    This concern about small businesses is highlighted by a 
recent study conducted by the Mercatus Center at George Mason 
University in conjunction with the National Association of 
Manufacturers. The ``Workplace Regulation Compliance Study'' 
found that the regulatory burden of compliance with Federal 
workplace regulations falls disproportionately on small 
manufacturing firms with less than 100 workers. The total 
compliance cost per employee is 68 percent higher at small 
firms than at large firms with more than 500 employees--and 
that's the cost of discovery of what can be done.
    I will be very interested in hearing from Secretary Chao 
about specific plans to address the needs of small businesses 
in addressing ergonomic hazards. OSHA has announced the 
formation of an advisory committee to identify gaps in research 
related to the application of ergonomics to the workplace. I 
request Secretary Chao and Assistant Secretary Henshaw to 
ensure that small business is represented on the advisory 
committee.
    While OSHA's ergonomics strategy will give employers the 
tools to reduce ergonomic injuries, it also contains the 
``teeth'' to punish employers who expose workers to ergonomic 
hazards. Some of my colleagues argue that an ergonomics rule is 
necessary in order to punish employers for ergonomic hazards 
and to motivate companies to reduce ergonomic injuries. 
However, my colleagues fail to acknowledge two fundamental 
facts--(1) ergonomics is good business and (2) ergonomics 
hazards are enforceable under the General Duty Clause of the 
OSH Act. We've had examples from past General Duty clause 
actions, including the Beverly Enterprises case, that ergonomic 
hazards are within the scope of the General Duty clause.
    First of all, good ergonomics is good business. Ergonomics 
injuries raise costs to a company, decrease productivity and 
impact the bottom line (not only because worker injuries are an 
expense under workers' compensation). In the absence of an 
ergonomics standard, businesses are implementing ergonomics 
programs because they recognize the benefits of a safer 
workplace. We will hear today from Paul Fontana, an 
occupational therapists who works with companies to address 
ergonomic hazards. Mr. Fontana can speak first-hand about 
businesses efforts to reduce ergonomic injuries because they 
recognize it makes good business sense to do so.
    Secondly, Under the General Duty Clause of the OSH Act, 
Section 5(a)(1), employers must keep their workplaces free from 
recognized serious hazards. This includes ergonomic hazards. 
OSHA has announced an ergonomics enforcement plan that will 
crack down on ``bad actors'' by coordinating inspections with a 
legal strategy designed for successful prosecution of General 
Duty Clause violations.
    As indicated by the title of this hearing, some of my 
colleagues argue that nothing short of an OSHA ergonomics 
standard will be sufficient to protect workers from ergonomic 
injuries. I must point out that significant legal, scientific 
and technical impediments to such action remain. Available 
science cannot accurately attribute ergonomic injuries to work-
related versus non-work-related factors. Furthermore, the 
economic and technical feasibility of an ergonomics rule has 
not been supported. Perhaps we should be asking what can be 
done to reduce ergonomic injuries at home and with hobbies and 
recreation. Since home and hobbies affect work, I'm sure 
businesses would be willing to help--but not to shoulder all 
the responsibility of an inspect and fine mentality.
    I applaud the administration for developing an ergonomics 
strategy that contains the flexibility, the tools and the 
``teeth'' to significantly reduce ergonomic injuries and 
illnesses. The National Safety Council, a non-partisan public 
service organization, responded to OSHA's ergonomics plan with 
the statement that: ``We are optimistic that this approach, 
rigorously pursued, will produce effective, targeted results.'' 
I share in the National Safety Council's optimism that OSHA's 
ergonomics strategy will produce results--a safer workplace 
that benefits both workers and employers alike.
    Thank you Mr. Chairman.
    Senator Enzi. I do appreciate the issue that we have here. 
I do not think anybody disagrees that we need to take care of 
ergonomics injuries, and we need to prevent them.
    I want to thank you for all of the work and effort that you 
have gone into since you became Secretary of Labor. I also 
think that the approach that you are taking will be a quick way 
to get some great reductions in ergonomic injuries.
    One of the problems that we noticed when we went through 
the kind of pseudo-rulemaking process the last time--and I 
still object to the way that that was handled and know that 
that is the reason why Congress threw that out--one of the 
problems that businesses have--and the smaller the business, 
the bigger the problem--is that they do not know what to do. 
They do not know how it can be done. They do not know the best 
practice. And your guidelines will provide that kind of 
information for each industry in a very specific way.
    I remember in the ergonomics rule that we looked at, one of 
the difficulties was that one of the formulas that people had 
to use was in a separate publication from the ergonomics rule 
itself, and that publication was out-of-date and not available. 
Fortunately, I was able to find one, and I did a chart on it, 
and I defied any engineer who was watching to be able to 
interpret in detail so that a small businessman could 
understand the formula that was necessary for truck vibration 
or any other industry that had vibration. What they need to 
know is how to solve the problem, not how to calculate whether 
there is a problem.
    I definitely noted during the process that we went through 
that there just was not enough information for a small 
businessman to understand what was going on.
    Now, as to the general duty clause, the reason that the 
general duty clause is hard to enforce is because we do not 
have any specific duty, and the guidelines provide some things 
that a business can look at, can determine whether it is 
actually applicable to their business, meaning that they have 
that kind of situation, and if they have that kind of 
situation, they can put the solution in place. If they are not 
putting the solution in place, they are violating the general 
duty clause. So I think you have actually increased some of the 
capability there, and I want to congratulate you for what you 
have done. I think that it will be a speedy resolution.
    Insofar as ergonomics still encompass one-third of the 
injuries, I think one thing that our committee has noted 
through the years is that injuries have been going down, 
injuries of all kinds. Injuries for ergonomics have been going 
down. The fact that they are still one-third of the injuries 
shows where some of the concentration needs to be done, and I 
appreciate the specific way that you are saying that it will be 
done.
    Now, I do assume that you carefully considered doing 
another ergonomics rule before you ultimately decided on the 
approach you did. Why did you feel that a rule was not 
feasible?
    Secretary Chao. Well, as has been discussed, the Congress, 
by a bipartisan majority, overturned the previous 
administration's ergonomics rule which became final on January 
16, 4 days before they left office.
    I am interested in protecting workers, and I wanted to find 
a comprehensive way, as I mentioned to the Congress, of 
protecting workers. In going through the rules, there was a 
great deal of question as to whether a new rule can indeed be 
promulgated given the Congressional Review Act, which 
overturned the previous rule; and secondly, the length of time 
it would take to promulgate a new rule. To do a credible job in 
coming up with a new rule would probably require about 4\1/2\ 
years.
    Again, because my concern is with the speed with which we 
can protect workers, I believe the Department's comprehensive 
approach will best help workers now and not just years from 
now. Guidelines, as you have noted, are indeed helpful because 
they do lay out a path; they help people know what they can do 
to prevent injuries before they occur. The previously-rejected 
rule, in fact, had a trigger which would not go into place 
unless an injury occurred. That is unacceptable to me as well.
    I also wanted something that was flexible, because I wanted 
employers and employees to work together and have the ability 
to custom design whatever made sense for them at their 
particular worksite. A one-size-fits-all, as you have heard, 
just will not be responsive in truly helping workers.
    Senator Enzi. I particularly appreciate the emphasis on 
prevention. I am sure you are aware that Senator Breaux 
introduced a bill yesterday requiring the Department to issue 
an ergonomics rule within 2 years. I know that we repealed the 
ergonomics rule because it was flawed both in process and in 
substance, and I was particularly troubled by the fact that 
OSHA paid contractors to testify and they paid them to tear 
apart the testimony of other people, and that all played a role 
in it.
    I am now very troubled that the bill introduced by Senator 
Breaux requires the Department of Labor to develop an ergonomic 
standard based on the complete record of evidence for the 
repealed rule, a record that I think we pretty well showed was 
tainted at best, and the only redeeming factor would be that 
maybe this time the information that was presented would be 
read.
    Do you share this concern?
    Secretary Chao. I have not had a chance to read the bill 
myself because, as we all know, it was introduced very late 
last night. I am concerned about the amendment, because I think 
it will set up a deterrent effect to people following our 
comprehensive ergonomics rule.
    If there is uncertainty, and if there is a lack of clarity 
as to where this Department is going and what other factors are 
impinging upon this comprehensive ergonomics plan, I think a 
lot of people would not follow the ergonomics plan and 
therefore contribute to its possible failure.
    Senator Enzi. Vagueness was our problem before. I think you 
are on the right track.
    I see that my time has expired.
    The Chairman. Senator Wellstone.
    Senator Wellstone. Madam Secretary, first of all, let me 
just repeat what I said earlier. The truth of the matter is 
there is a reason why we have a focus on this, and it is 
because we have all of these disabling injuries, and I think we 
have measures here that have not worked for 10 years, and that 
is what we have again--voluntary guideline--not guidelines, but 
guideline--general duty clause enforcement, and further 
research.
    Let me ask you this. Last March when the original standard 
was repealed, you stated that you would develop a comprehensive 
approach to ergonomics that might include--well, a 
comprehensive approach.
    Then, in your press release of April 5 announcing your 
program, you said that OSHA--this is a year later, this is 
April 5, would ``develop industry- and task-specific 
guidelines''--guidelines.
    Today you announce a plan to develop a guideline.
    This is an incredibly shrinking plan that we have before us 
here.
    I want to ask you two questions, and you can answer them 
together. First of all, I am interested in--when it comes to 
this guideline--as I look at what has happened, Mr. Chairman, 
between 1999 and 2000 in a whole bunch of different areas of 
work--painting and paper-hanging, 172 percent increase in 
occupational injuries involving MSDs; nursing and personal care 
facilities, 237 percent increase; beer, wine, and distilled 
beverages, 240 percent increase; leather tanning and finishing, 
188 percent increase; local and suburban transportation, 173 
percent increase; tires and inner tubes, 157 percent increase; 
fabricated rubber products, 153 percent increase--no, scratch 
that; I was looking at the wrong column--very quickly, again, 
beer wine and distilled beverages, 27 percent; leather tanning 
and finishing, 107 percent; tires and inner tubes, 43 percent; 
fabricated rubber products, 35 percent.
    The point is that nursing and personal care facilities--the 
point is there is a huge percentage increase in all kinds of 
areas of work, and I am interested in why we do not have a plan 
to deal with these workers. That is my first question.
    The part B is now to go to what we have heard today, which 
is a plan to develop a guideline--so we have a nursing home 
guideline, but it is voluntary, right--I think you said it is 
voluntary--so if the nursing home chooses not to be interested 
in the guideline, does this then mean you automatically invoke 
the general duty clause?
    So my question is how are workers in companies that do not 
go along with the guideline protected?
    So I have two questions. One guideline is all we have, far 
from comprehensive. We have all kinds of people working in all 
kinds of parts of the economy, with huge numbers of people 
injured, and we do not do anything for them; why not?
    And then, third, I am not even sure how this works in the 
nursing home industry.
    Secretary Chao. I am very confident that our plan is going 
to help reduce ergonomic injuries, and I hope that the 
Committee Members will give the Department and my team an 
opportunity to make that happen.
    Instead of viewing and characterizing our progress in the 
last year as ``shrinking,'' I would respectfully say that we 
are really showing progress. I have said that I was going to 
enact a comprehensive approach, and I have done so. And in the 
year since, obviously, September 11 has slowed our progress 
because OSHA was involved at Ground Zero and in a lot of 
security aspects with the anthrax scare of our country. 
Nevertheless, this has been a front burner issue. No other 
Secretary has worked more on this issue than I have. This is 
the second time that I have testified on the Hill. No other 
Secretary has ever testified on the Hill on this.
    What I am concerned about in terms of the guidelines is 
that our announcement today is one additional step in what we 
have done to protect workers. We have now designated an 
industry, the nursing home care industry, which has a high 
number of low skill workers with high risk of ergonomic 
injuries. We are making progress in designating this industry. 
This will not be the only industry. We will work with other 
industries to come out with guidelines.
    Senator Wellstone. But Madam----
    Secretary Chao. In the year since, may I also add, we do 
not operate in a vacuum. We are actively engaged in soliciting 
and interacting with other stakeholders. We came in on January 
20, and we have met with scores of stakeholders from across the 
spectrum; I myself have met personally with a tremendous number 
of labor leaders, with health care organizations, with 
academicians, with doctors, with physical therapists, on this 
particular issue.
    So during this time, we are making progress. We are 
consulting with the groups who have a stake in this issue. We 
cannot do this in a vacuum, and we are enlisting their 
assistance as well.
    Senator Wellstone. But didn't the workers--I think of a 
union like SEIU--first of all, again, you have one voluntary 
guideline. That is what you presented here, with no 
enforcement. That is your plan. What you have announced today 
is a plan to develop a guideline, with no enforcement.
    Let me ask you this. I have spent a lot of time with 
nursing home workers, and I certainly know SEIU, to use but one 
union. So now you have a situation where the nursing home 
industry chooses not to--they are not interested in your 
voluntary guideline.
    Secretary Chao. That is not true. They are.
    Senator Wellstone. Wait a minute, wait a minute. I am 
asking you if, in fact, you have a situation where one of these 
companies is not interested, because it is voluntary, is there 
enforcement? Do you then invoke the general duty clause?
    Secretary Chao. We have a whole enforcement strategy.
    Senator Wellstone. What is it?
    Secretary Chao. For the very first time, we are going to 
have an enforcement strategy that links the investigators and 
the lawyers at the Department of Labor.
    Senator Wellstone. But you have not answered my question. 
Will you invoke the general duty clause? That is what you list 
here today as one of your----
    Secretary Chao. If there is a bad player who is blatantly 
and deliberately ignoring the well-being of their workers, they 
will be targeted.
    Senator Wellstone. What is a ``bad player''? In other 
words--I want it to be clear on the record, because it is 
different from what I think you were saying earlier--let us 
assume you have good people----
    Secretary Chao. The guidelines----
    Senator Wellstone [continuing]. Let me finish with the 
question--you have good people who want to go along. I say that 
is great; all of us do. Then, you have some actors in the 
industry who do not want to go along with the standard. It is 
voluntary. If they do not go along with the standard, and you 
say they are bad actors--and I would like to ask your 
definition--then, you will invoke the general duty clause; is 
that correct?
    Secretary Chao. It will not be linked, but yes, we have----
    Senator Wellstone. It will what--not be linked?
    Secretary Chao. It will not be linked to guidelines. But we 
have a responsibility to ensure that these bad actors who are 
blatantly ignoring the well-being of their workers will be 
taken to task. So we have that tool, and it is an effective 
tool, as we have shown in Beverly Enterprises. And, in fact, 
the union that you mention, SEIU, and we have worked together 
on the Beverly Enterprises case, and they are quite pleased 
with the results that we have gotten in that case.
    Senator Wellstone. I am, too. It took 10 years. But you 
have answered my question and you have told me it will not be 
linked.
    Secretary Chao. It cannot be linked.
    Senator Wellstone. First you said it would be, but now you 
say it won't be; correct?
    Secretary Chao. It cannot be linked--but the general duty--
--
    Senator Wellstone. Okay. Well, then, you have no 
enforcement.
    Secretary Chao [continuing]. That is not true, with all due 
respect, Senator.
    The Chairman. Senator Bond.

                   Opening Statement of Senator Bond

    Senator Bond. Thank you very much, Mr. Chairman, and 
welcome, Madam Secretary. I can say finally, after more than 10 
years of studies, hearings, false starts, rumors, suspicions, 
and one hugely miscalculated, politically motivated regulation, 
we have an approach that is grounded in what we know and will 
reduce work-related ergonomic injuries, rather than hold 
employers accountable for non-work-related pains and 
discomforts.
    Secretary Chao, Assistant Secretary Henshaw, and your 
entire team should be commended for tackling this problem 
aggressively, forthrightly, and honestly and for developing an 
approach that promises to produce results, but above all, it 
makes common sense and not just more work for trial lawyers.
    To those who would favor a more restrictive, burdensome 
regulatory approach, I ask why. The Secretary has outlined a 
comprehensive program with all the elements inherent in a 
regulation, but with more flexibility and responsiveness than 
any regulation could ever provide.
    The approach is designed to reduce exposure in the 
workplace before an employee develops symptoms or reports an 
injury, compared to the previous regulation, which merely 
triggers actions after an injury occurs.
    I know there are those who would like to see the regulation 
reinstated, and we know that legislation has been introduced 
that would allow that to happen, but it is beyond me to 
understand why they believe it would be beneficial to the 
workers. Not only would it shift the focus to post-injury 
administrative penalties and lawsuits--as I said, a bonanza for 
those who file lawsuits--it would cost a very significant 
number of jobs in the small businesses, which would either be 
put out of business or forced to replace workers with 
equipment.
    The impact on small business is why Senator Enzi and others 
on the Small Business Committee, which I chair, were called to 
use the Small Business Red Tape Reduction Act to overturn this 
misguided regulation.
    While workplace exposures can contribute to a worker 
getting an ergonomic injury, there are many other factors that 
are not controlled by the employer. As the National Academy of 
Sciences study concluded, none of the common musculoskeletal 
disorders is uniquely caused by work exposures. That means 
there was a problem in the causal relationship.
    We found out with the invalidated regulation the structure 
and burdens of the regulation made it so expensive that it was 
economically infeasible, particularly for small businesses.
    The Secretary's plan is not just the most reasonable and 
pragmatic decision she can make within the limits of science 
and available options; it is actually superior to a full 
regulatory approach relying on post facto fines and lawsuits.
    To make sure, however, that the plan is taken seriously, 
this plan includes a very strategic and focused commitment to 
enforcement designed to find those employers who are ignoring 
all the advice and assistance instead of putting all employers 
under hollow threats. The plan also includes a dedicated 
commitment to research to develop new information and data 
which would help support more and better guidelines.
    By contrast, were a regulation to be issued, it would 
freeze research where it was because the rulemaking process is 
cumbersome.
    Finally, the plan also includes a more specific vision 
about outreach and compliance assistance, especially for small 
businesses, than we saw before. I think the Secretary's plan is 
well-conceived. We look forward to seeing it put in place.
    And I would say that the new bill introduced last night, 
from our initial review, is a colossal step backward. It would 
literally mandate that the invalidated Clinton ergonomic 
standard be resurrected as if it were being brought back from 
the dust bin of bad Government policy. It is a brazen attempt 
to turn back the clock and pretend that the bipartisan 
majorities of both Houses did not say this regulation was 
flawed.
    The new bill is the legislative equivalent of trying to 
establish by law that the world is flat. We know better. The 
science will not support that conclusion just as it will not 
support the ergonomics regulation.
    Madam Secretary, you have indicated that you will use your 
enforcement powers; you will use the general duty clause. It is 
not tied to voluntary guidelines because the guidelines are 
voluntary.
    Would you or Mr. Henshaw like to give us some insights into 
your enforcement philosophy, because you have indicated that 
you do intend to go after those who are not maintaining safe 
workplaces. Could you explain your enforcement philosophy and 
your commitment to us, please?
    Secretary Chao. Yes. I appreciate the opportunity very 
much.
    I did not get a chance to finish. If the nursing home does 
nothing, if there are no guidelines or any other alternative 
efforts, they will be a target for the general duty clause 
5(a)(1). And there are four required elements that go into 
pursuing a 5(a)(1) case, and I want to also let John Henshaw 
speak to this.
    We are increasing, in fact, our FTEs in enforcement by 
about 17 people, so we are increasing our enforcement efforts. 
We are also going to be giving out additional grants to help 
educate and do more aggressive training and outreach on what 
ergonomic injuries mean and how to prevent them.
    The four requirement elements are: Is there an exposure to 
the hazard? Is there a recognized workplace hazard by the 
employer or the industry or employee? Is it likely to cause 
serious injury? There is a whole set of rules.
    John, maybe you would like to take it up, because you are 
going to be in charge of the enforcement effort.
    Mr. Henshaw. Yes, thank you, Madam Secretary.
    Yes, obviously, the enforcement strategy is a key component 
of this four-prong approach. And it is the first time ever that 
we have established a strategy around successful prosecution 
using 5(a)(1).
    The tenets of 5(a)(1) still remain the tenets of 5(a)(1), 
as the Senator realizes. It is existing in our Act, and we 
continue to enforce it according to the tenets established in 
that. But this will be the first time that we will develop a 
team that will be specialized in identifying those 
organizations who choose to ignore ergonomic hazards and do not 
take the appropriate steps to address them. They still have to 
meet the qualifications under 5(a)(1).
    Senator Bond. Thank you, Mr. Chairman.
    [The prepared statement of Senator Bond follows:]

                   Prepared Statement of Senator Bond

    Mr. Chairman, all I can say is: Finally! Finally, after 
more than 10 years of studies, hearings, false starts, rumors, 
suspicions, and one hugely miscalculated, politically motivated 
regulation, we have an approach that is grounded in what we 
know, and will reduce work-related ergonomic injuries rather 
than hold employers accountable for non-work related pains and 
discomforts. Secretary Chao, Assistant Secretary Henshaw and 
their team are to be commended for tackling this problem 
aggressively, forthrightly, and honestly and for developing an 
approach that promises to produce results, but above all, just 
makes common sense.
    To those who favor a more restrictive, burdensome, 
regulatory approach I would ask: Why? The Secretary has 
outlined a comprehensive program with all the elements inherent 
in a regulation but with more flexibility and responsiveness 
than any regulation could ever provide. Furthermore, this 
approach is designed to reduce exposures in the workplace 
before any employee develops symptoms or reports an injury, 
compared to the previous, invalidated regulation that required 
a reported injury to trigger an employer's response. I know 
that there are those who would like to see that regulation 
reinstated, legislation has been introduced that would allow 
that to happen, but it is beyond me to understand why they 
believe that would be beneficial.
    The Secretary and her team have carefully reviewed the data 
and testimony that was submitted during last summer's fora and 
have determined that, as a matter of law, there is insufficient 
certainty and clarity surrounding the requirements for a 
regulation to support pursuing a new regulation. For OSHA to 
pursue a regulation, they must demonstrate: (1) that there are 
actual injuries; (2) that these injuries are caused by the 
workplace; and 3) that these injuries are preventable through 
economically and technologically feasible means. Whether there 
are actual injuries is no longer at issue, the problems arise 
with the other requirements.
    While workplace exposures can contribute to a worker 
getting an ergonomic injury, so can a wide range of other 
factors that are not controlled by the employer. As the NAS 
study concluded, ``None of the common [musculoskeletal 
disorders] is uniquely caused by work exposures.'' Absent that 
causal relationship, OSHA cannot promulgate a regulation to 
reduce these injuries.
    As we found out with the invalidated regulation, the 
structure and burdens of a regulation make one so expensive 
that it becomes economically infeasible. This is particularly 
true for small businesses who do not often have workplace 
safety specialists on their payroll. Depending on the 
workplace, the remedies may also be technologically infeasible 
if entire workplaces must be redesigned, or better equipment 
does not exist to reduce or eliminate exposures.
    The Secretary's plan is not just the most reasonable and 
pragmatic decision she could make within the limits of the 
science and available options, it is actually superior to a 
full regulatory approach. This comprehensive approach will 
achieve better results because it preserves employers' 
flexibility to try different things instead of forcing them to 
worry about whether they had met the burden of a regulation 
just so they could avoid a legal penalty. To make sure, 
however, that her plan is taken seriously, it includes a very 
strategic and focused commitment to enforcement designed to 
find those employers who are ignoring all the advice and 
assistance, instead of putting all employers under hollow 
threats. The plan also includes a dedicated commitment to 
research to develop new information and data to help support 
more and better guidelines. By contrast, once a regulation is 
issued, it freezes research where it is because the rulemaking 
process is so cumbersome and lengthy there is no way to react 
to new findings. Finally, the plan also includes a more 
specific vision about outreach and compliance assistance, 
especially for small businesses, than we saw before.
    Secretary Chao's plan is well conceived, and will result in 
better protection of workers than they currently have. I 
commend the Secretary for being willing to start from the 
beginning on this issue and forging a new course, and I look 
forward to seeing it put into place.

                COMMENT ON S. 2184--BREAUX ERGO BILL II

    The new bill, S. 2184, just introduced by Senator Breaux, 
is a colossal step backwards. This bill would literally mandate 
that the invalidated Clinton ergonomics standard be resurrected 
as if it were being brought back from the dustbin of bad 
Government policy. It is a brazen attempt to turn back the 
clock and pretend that bipartisan majorities of both Houses did 
not say this regulation was so flawed it could not be salvaged.
    By mandating that the docket for the previous regulation be 
used for the new rule required by the bill, this bill is quite 
literally mandating that the same mistakes will be made again. 
Have not the sponsors of this legislation learned anything from 
the previous experience?
    This bill also expands the definition of work-related 
injuries that would be covered so that now, even injuries that 
occur outside the workplace can be covered by this standard. It 
is simply outrageous to imagine that an employer would be 
responsible for injuries that are caused by anything other than 
exposures that occur in the workplace.
    This new bill is the legislative equivalent of trying to 
establish by law that the world is flat. We know better. The 
science will not support that conclusion just as it will not 
support an ergonomics regulation. We now have a viable, 
sensible approach on how to deal with workplace ergonomic 
issues before us that the Secretary has unveiled and we need to 
do everything possible to make this work instead of spending 
energy trying to revive failed, rigid regulatory regimes.
    The Chairman. Senator Clinton.
    Senator Clinton. Thank you very much, Mr. Chairman, and 
thank you, Secretary Chao, for being here and answering our 
questions.
    As you can tell, this is a case of the glass being either 
half-empty or half-full, depending upon one's perspective. I 
have six areas of concern, some of which have already been 
addressed. The definition and timing issues are ones that I am 
hoping to get more clarification on based on the questioning of 
previous Senators. And the enforcement system with respect to 
the use of the general duty clause is also something that I am 
concerned about.
    But let me jump to a few other issues. What is the 
Department's attitude with respect to national coverage, 
because of course, this plan only applies to States covered by 
Federal OSHA and not to the 23 States and Territories that 
operate their own State OSHA plans.
    So what is it that you will do with respect to the 23 
States, one of which is New York?
    Secretary Chao. Well, generally speaking--and I want to 
have John also answer more fully, because I am very interested 
in Members understanding what our comprehensive plan is all 
about----
    Senator Clinton. I understand that. But the law----
    Secretary Chao [continuing]. Yes. We work very well 
together with State OSHA departments. In fact, the Federal 
standards are what is the minimum, and then----
    Senator Clinton. That is not the case, Secretary, and I 
think----
    Secretary Chao. Let me have John answer it, then.
    Senator Clinton. That would be good.
    Secretary Chao. Thank you.
    Mr. Henshaw. Thank you, Madam Secretary.
    The Secretary is correct. We have 23 States that have State 
plans, and we have three others that have just public sector 
employees covered, like New York. We had discussed this plan 
with the board that monitors all the State plan organizations. 
Counting the total, all employees, as well as State and 
municipal employees, we deal with 26 plans. So there are 26 
different States including New York.
    Senator Clinton. But of course, if there were a rule, that 
rule would apply to all States. One of the problems after 10 
years of effort to try to determine how to deal with this issue 
is that the existing patchwork of enforcement and coverage 
challenges led previous administrations, including the first 
Bush Administration and the Clinton Administration, to 
basically throw up their hands and say, ``We need a rule.'' One 
of the reasons they did that is that in the absence of a rule, 
States are not required to adopt this plan and these guidelines 
that you are promulgating. I think that is a significant 
deficit. If half of our States are not covered, then the 
voluntary approach that you are proposing leaves out millions 
and millions of workers and employers.
    So I would ask you to look at that. I do not think that 
that is an adequate response.
    Secondly, with respect to the voluntary guidelines, one of 
the reasons that the Clinton Administration finally promulgated 
a rule is stated in the preamble to that rule, which is that 
the promulgation of a rule was literally the only tool that the 
agency had not used. With all due respect, I believe that 
Secretary Dole and previous Secretaries of Labor and Presidents 
were concerned about this issue, and they tried everything. 
They tried voluntary efforts, they tried training, they tried 
general duty enforcement, and finally, the consensus was that 
we needed a rule.
    Now, one can quibble about the rule, and one can say that 
maybe the rule was not the right rule, but the reason the rule 
was adopted was because everything else had been tried.
    Now, here we are, 10 years later, about to go down that 
road again of trying all sorts of things that will only apply 
to half the States. I think that that raises some serious 
questions.
    Thirdly, with respect to the use of the general duty 
clause, I think that what Senator Wellstone was attempting to 
get at was that the general duty clause was used in earlier 
years in an attempt to try to create pressure on these so-
called bad actors to act voluntarily, and in the absence of 
voluntary action, the general duty clause was invoked.
    Now, of course, as you know, were subsequent employer 
challenges to enforcement and legal decisions that essentially 
rendered the enforcement through the general duty clause time-
consuming, expensive, and ultimately unsuccessful.
    I applaud you for the Beverly Nursing Home resolution, but 
it did take 10 years, and it is the exception, not the rule. I 
think the facts are clear on that.
    I am also concerned about the role of compliance assistance 
and what I see as a contradiction between your proposal and the 
budget that the administration has proposed. As I look at the 
budget, the President's budget cuts OSHA's overall compliance 
assistance budget by over $4 million in fiscal year 2003. It 
also calls for a huge, $7 million cut, 64 percent cut, in the 
fiscal year 2003 OSHA training budget. That would come on line 
at exactly the time that these guidelines are going to be 
promulgated, assuming there is a guideline by the end of the 
year, maybe more than one guideline, and the enforcement of 
those guidelines rests on compliance assistance; yet the budget 
is being cut.
    I find that contradictory. Can you explain to me how you 
will fund the compliance assistance that you are resting this 
voluntary effort on in the absence of adequate funding?
    Secretary Chao. Senator Clinton, thank you very much for 
your questions and obviously for your concern. You have worked 
on this, and I want to say that we are committed to working 
with you. In fact, for all the Senators on the Committee, I am 
more than willing to have my staff come over and meet with your 
staff so that we can present--and we have done so already, but 
maybe we need to continue to do that. We are more than glad to 
send our staff over, because we do need a greater understanding 
of this comprehensive approach, and we are again more than 
willing to work with you.
    Specifically on the rules issue, people kind of talk about 
this----
    Senator Clinton. What about the budget issue, Madam 
Secretary?
    Secretary Chao. On the budget issue, we in fact, as I 
mentioned, have increased our FTEs in our inspection ranks by 
17, and the cut in FTEs that you are talking about primarily 
applies to management. So we, in fact, are increasing our 
enforcement resources, and the enforcement resources to 
ergonomics obviously will reflect that intensity as well.
    Senator Clinton. What about the Susan Harwood program 
which, as I understand----
    Secretary Chao. We are reconstructing the Susan Harwood 
grants to be more web-based and to be more conducive to what we 
are doing today to reach a larger number of people.
    Senator Clinton. Without any money?
    Secretary Chao. No--we have about $4 million for that. But 
the Susan Harwood grants are not the only grants that we use to 
reach out for training. There are many other grants which we 
use for training purposes as well.
    Senator Clinton. Well, I think the problem is that the web-
based programs do not directly address the issues of many low-
income and non-English-speaking immigrant workers which is what 
the Susan Harwood program was specifically directed to address, 
and in fact, the Congress provided money specifically for that 
program, because again, after many years of experience, we 
learned that we could not get information to many of these 
populations who, as you pointed out, are working in our nursing 
homes, working in our poultry plants, et cetera.
    My final issue, Madam Secretary, is with respect to this 
new national advisory committee--if I could, Mr. Chairman, just 
one last, quick question on this. As I understand it, you are 
chartering a new national advisory committee. Does that mean 
that you are basically ignoring or undermining NIOSH?
    Secretary Chao. Absolutely not. We are, in fact, working as 
a catalyst and facilitator, because the National Academy of 
Sciences study, in fact, points out gaps in science which we 
hope, through a grassroots approach with members who actually 
work on these issues, being a part of the national advisory 
commission, will be able to fill in some of these gaps and work 
with NIOSH on that.
    Senator Clinton. I would appreciate additional information 
on all of these six issues that I raised.
    Secretary Chao. We would be more than glad to provide that.
    Senator Clinton. Thank you.
    The Chairman. Senator Sessions.

                 Opening Statement of Senator Sessions

    Senator Sessions. Thank you, Mr. Chairman.
    Madam Secretary, thank you for your leadership. I do not 
believe there is anyone in Government more committed to doing 
the right thing than you or working harder. You have assembled 
a first-rate staff, and I know you want to do this thing right, 
and I believe you have proposed these procedures as a result of 
your honest and fair study of it. So we thank you for that.
    With regard to the 600 pages of guidelines that the 
previous regulations were proposed to be part of, you really 
almost have to have 600 pages if you are going to do a 
comprehensive management of all industry in America through a 
written guideline. It is so large and so complex, as Senator 
Enzi noted, that it is just difficult if not impossible, 
particularly for small businesses, to comply with them.
    So I believe there are some good indications that we are 
moving in the right direction. You noted in your written 
remarks that musculoskeletal disorders have declined by 46 
percent since 1992. We do not have any mandatory regulations to 
cause that; it is because businesses know that if they have 
safe workplaces, they will have better workers, happier 
workers, workers who will be off from work a lot less, and they 
have a real self-interest in making that happen.
    I know that Treasury Secretary O'Neill is almost obsessive 
about his efforts on behalf of his business previously, in 
Alcoa, to reduce injuries. But injuries are difficult to 
ascertain, particularly ergonomic injuries. I have concluded 
that I have carpal tunnel syndrome. I did not know it until I 
worked at home in the woods one day with a machete, and my hand 
became numb, and I notice now that if I work out in the gym in 
certain ways, my hand gets numb. If I write for a long time, my 
hand will get numb. Now, I do not know what caused it--working 
out at the gym or writing. So some of these things are just 
difficult to ascertain what is causing the injury.
    I believe that your approach has much merit. Let me ask you 
this. You indicated several times that it would literally take 
over 4 years if you were to promulgate another complex set of 
guidelines to actually have them become law. How does that 
happen?
    Secretary Chao. To do a credible and responsible job, it 
would take about 4- to 4\1/2\ years.
    Senator Sessions. And those have to be published, and you 
have to have input and all of the formalities that go along 
with that, and Congress would have to vote again on whether or 
not to approve them. Your proposals take place right now.
    I note, Madam Secretary, some of the successes in the meat-
packing industry as a result of voluntary guidelines. I am told 
that with industry-specific guidelines in the meat-packing 
industry, where OSHA focused on enforcement, and the guidelines 
were specific to the kind of work they do in that industry that 
days away from work have gone down 47 percent from 1992 through 
1999, and that for injuries from strains and sprains, days away 
from work have gone down 61 percent; that rates for back 
injuries and days away from work have gone down 64 percent. 
Now, that was a voluntary procedure in which OSHA worked with 
that industry to develop realistic goals and guidelines for 
their specific kind of work.
    Is that what you have in mind throughout all industries in 
general?
    Secretary Chao. Very much so. There is an assumption that 
rules work. There is an assumption that had the previous rule 
been upheld that it would have worked, and that is not at all 
certain.
    The previous rule most likely would have been, again, 
bogged down in litigation, and there was a great deal of 
uncertainty as to whether that rule would have indeed saved 
very many people from very many injuries. I am concerned about 
prevention. I am concerned about a speedy resolution, a speedy 
and responsible solution to help workers with their injuries.
    Well, we know that the estimates were as high as $60 
billion annually under the previous set of regulations, and we 
have to ask ourselves if we are getting the maximum benefit 
from that kind of expenditure, and I do not think we are.
    Senator Enzi and I had the privilege to know and have 
testify here Mr. Ron Hayes, whose son was killed in a workplace 
accident. He is just passionate about the view that I share, 
and I know Senator Enzi shares, that we need to do more in 
advance of accidents; that just coming in after accidents and 
fining and so on is not a good way to do business.
    I notice in your testimony that you do expect increased 
inspections, and you project increased inspections in the years 
to come; is that correct?
    Secretary Chao. We expect to increase inspections to about 
38,000 this year.
    Senator Sessions. And that will represent a commitment on 
your part to inspect the workplace prior to an injury?
    Secretary Chao. That is always our goal. We want to be 
helping people prevent injuries, not after they have occurred 
and punishing people afterward.
    Senator Sessions. Some have complained about your 
insistence that we go out and get the best science on health 
and injury matters. Explain to us why it is important when we 
pass a rule or guideline or regulation that we have good 
science to back it up.
    Secretary Chao. Having a sound foundation and understanding 
what we are regulating I think is very important. The National 
Academy of Sciences study does point out that there are gaps in 
the science. That is why we have set up this national advisory 
commission. The charter of this commission will be coming out 
in 30 days, and we want to be able to also print out and 
release guidelines for nominations as to how people can apply.
    What we basically want to do is to make sure that we are 
preventing injuries before they occur. We have a speed program 
which we want to enact. We have a strong enforcement program 
and team in place, and we want to add to the sound science.
    Senator Session. Thank you. I share that view.
    Thank you, Mr. Chairman.
    The Chairman. Senator Dodd.

                   Opening Statement of Senator Dodd

    Senator Dodd. Thank you very much, Mr. Chairman.
    Let me begin by thanking you, by the way, for convening 
this hearing, and thank you, Madam Secretary and Mr. Henshaw, 
for being here today to participate in this discussion.
    Madam Secretary, you do not have an easy job. All of us 
know that, and we appreciate your willingness to take these 
issues on.
    I must say, though, that in reading over your statement of 
more than a year ago now, in March 2001--and others may have 
read it, but I read it again this morning, and I am quoting 
here--this was just prior to the abandonment of the regulations 
involving ergonomics--you said that you made a commitment ``to 
pursue a comprehensive approach to ergonomics which may include 
new rulemaking. This approach will provide employers with 
achievable measures that protect their employees before 
injuries occur.''
    As I review the bidding in going over this, what we have is 
a plan for a plan. Is that about right?
    Secretary Chao. I think you have to announce what you are 
going to do before you do it.
    Senator Dodd. So it is a plan for a plan.
    Secretary Chao. We have announced what direction our 
Department will take to reduce workplace----
    Senator Dodd. It is a year later. There have been 1.8 
million people who have suffered. I think those numbers are 
pretty accepted.
    Secretary Chao. No, they are not, but----
    Senator Dodd. Well, do you think this is a serious issue? A 
lot of people do not.
    Secretary Chao. Even one injury----
    Senator Dodd. Our colleague from Alabama is candid about 
it. He says, ``I do not think this is really a serious 
problem.''
    Secretary Chao. No, no. I think----
    Senator Sessions. No, I did not say that, Mr. Chairman----
    Senator Dodd. Well, I think some people think this is sort 
of made up, excuses why people do not show up at work.
    Senator Sessions. I would just like to have a personal----
    Senator Dodd. Let me ask the Secretary--let me use my time 
to ask the Secretary----
    The Chairman. Wait a minute.
    Senator Sessions. You raised my name----
    The Chairman. On my time, on my time----
    Senator Sessions [continuing]. And suggested I did not 
think this was serious, and that is absolutely incorrect.
    Senator Dodd. The Senator has responded.
    Let me ask the Secretary--how serious do you think it is?
    Secretary Chao. I think that ergonomic injuries are 
serious, and I think everyone is concerned about it.
    Senator Dodd. Why does it take over a year to come back 
with a plan for a plan?
    Secretary Chao. Because we live in a democracy and we have 
people who want to make known their concerns, and we have gone 
through our due diligence in talking with the various 
stakeholders. I have talked with numerous labor leaders; I have 
talked with primarily labor leaders, and my staff has talked to 
others that I am not personally able to talk to myself. But we 
have to take the input of various groups who are involved in 
this issue and incorporate them in what we are going to do.
    Senator Dodd. I understand that, but there are no standards 
here, no guidelines, no targeted industries, a general duty 
clause that could take 9 years in some cases, we know, before 
employees get any kind of answer at all.
    Secretary Chao. Not under my tenure. We were able to effect 
action on this nursing home care after 11 years, and that is 
because it took leadership and it took determination.
    Senator Dodd. Well, I appreciate that, but the point is 
your response to Senator Wellstone says we are not going to 
enforce based on the guidelines----
    Secretary Chao. We are going to enforce.
    Senator Dodd. But not based on the guidelines.
    Secretary Chao. If there is a bad actor and there is 
flagrant disregard----
    Senator Dodd. But did I hear wrong--not based on the 
guidelines.
    Secretary Chao. No, it cannot--it cannot be linked.
    Senator Dodd. All right. Let me go back. Senator Clinton 
raised a very important series of questions here about money. I 
mean, here we are increasing budgets for homeland security, we 
are increasing budgets obviously to try to make us more secure, 
we are looking into bioterrorism issues. The one agency that 
comes up with answers and research in this area, in NIOSH, in 
OSHA, we are cutting the budgets by $28 million and $9 million, 
respectively, and cutting, 64 percent of individuals in the 
enforcement area. How do we explain to our constituencies that 
at a time when we are facing greater threats from bioterrorism, 
in the very agencies of the Federal Government that we are 
going to be asking to step in here, we are looking at cuts of 
$9 and $28 million respectively and 64 percent cuts in 
enforcement--or 83 positions.
    Secretary Chao. I cannot speak to the supposed cuts in 
NIOSH. In terms of OSHA, we have actually been very much 
involved with homeland security and with the anthrax scare. We 
have signed a partnership agreement with the international 
laborers----
    Senator Dodd. But do you agree with these cuts? Do they 
make sense to you?
    Secretary Chao. We are not cutting back enforcement. We are 
increasing----
    Senator Dodd. Well, how about the positions? There are 83 
positions. OSHA is being cut by $9 million and 83 positions, 
and 64 of the cuts are in enforcement.
    In response to my friend from Alabama, your answer was 
38,000 inspections. I think you raised the question about how 
many inspections.
    How do you increase the number of inspections when you are 
cutting back on the number of people who are charged with doing 
the job?
    Secretary Chao. Let me say that our enforcement action, as 
I mentioned--we are increasing our resources in enforcement. 
But let me go into more detail with John Henshaw, if I may.
    Mr. Henshaw. Thank you, Madam Secretary.
    The Secretary is right. We have not decreased our 
enforcement staff. In fact, we have increased it.
    Senator Dodd. Well, what is this number? Am I wrong about 
that number?
    Mr. Henshaw. Yes, you are. The inspection force has 
increased, sir. We are at 1,123 individuals. It is up from last 
year and will remain that in year 2003.
    What you are speaking to is the overall enforcement staff 
which are primarily managerial and support staff. They are not 
our inspectors. Our inspectors are increasing.
    Secretary Chao. And they are all out in the field.
    Mr. Henshaw. There are the ones who are actually doing the 
inspections in the field.
    Senator Dodd. But we are going to cut back on that budget, 
anyway?
    Mr. Henshaw. To effective management, we are looking to 
cutting managerial staff, and that is successful; we can do 
that.
    Senator Dodd. All right. Let me jump to the Susan Harwood 
issue that Senator Clinton raised with you as well.
    If we are talking about the minority community, the Latino 
community, how does a web-based program help? How many people 
in the Latino and minority community are on the web? Do we 
know?
    Secretary Chao. Let me answer one part of it, and then, 
John, if you can answer that, because you are going to be in 
charge. We, in fact, have a particular outreach program to 
Hispanic workers and other immigrants with limited English 
proficiency as part of our comprehensive plan. We understand 
that a lot of new immigrants are in these high-risk, low-paying 
industries, so we do have a special--we have a particular 
emphasis/outreach program for Hispanic workers. And John, if 
you can just describe that.
    Senator Dodd. Is this the web-based program that we are 
talking about?
    Secretary Chao. This is overall. The web-based is only a 
very small part of it, and that is not the only part of it.
    Senator Dodd. Go ahead, Mr. Henshaw.
    Mr. Henshaw. Senator, I appreciate the opportunity to 
comment on this. Let me just emphasize the fact that I have 
been in the safety and health business for 26 years, and my 
only job is to reduce injuries and illnesses. That is my only 
purpose in life. In fact, my kids say that I have been in this 
business all my life, and I say I have not yet, but I am 
working on it, and I will. This will be my entire life. This is 
the most serious thing that we are doing, at least I am doing 
as Assistant Secretary of Labor.
    So the ergonomic issues are very serious to me, and this 
plan will work. It will produce quick results. It will produce 
lasting results.
    Senator Dodd. This plan for a plan. You are not calling 
this a plan, then.
    Mr. Henshaw. No, sir. This is a plan, and the plan has four 
elements. One element, one piece of that plan, deals with 
developing guidelines, industry-specific and task-specific 
guidelines. These are guidelines that will cover specific 
industries to help determine what are the real solutions to 
real problems.
    Senator Dodd. When will we get those, by the way, John? Do 
you have any idea when we might get these guidelines?
    Mr. Henshaw. I do not think you had stepped in the room--we 
had announced that nursing homes are the first set that we will 
be working on, and we have an agreement with all parties 
involved to help us develop these guidelines.
    Senator Dodd. When? Give me some ball-park.
    Mr. Henshaw. We are starting now, and we will have them out 
very quickly.
    Secretary Chao. As soon as we can.
    The Chairman. The Senator's time has expired.
    Senator Dodd. Thank you.
    The Chairman. Senator Edwards.

                  Opening Statement of Senator Edwards

    Senator Edwards. Thank you.
    Secretary Chao. And this requires input from groups--sorry, 
Mr. Chairman.
    Senator Edwards. Thank you, Mr. Chairman.
    Madam Secretary, I wanted to give you a chance to respond 
if you needed to.
    Secretary Chao. No. I am fine. Thank you very much.
    Senator Edwards. Good morning. How are you?
    Well, this has been an interesting hearing. I had been 
watching some of it before I came here. Let me tell you what my 
concern is and see if you can address some of these concerns. 
It appears to me that what is being proposed is that the only 
enforcement mechanism is enforcement under the general duty 
clause. Am I right about that?
    Secretary Chao. If it is--yes. That is an important 
component. It is a very valuable tool, yes.
    Senator Edwards. But that is the enforcement mechanism that 
you are proposing, is use of the general duty clause; right?
    Secretary Chao. Yes.
    Senator Edwards. Okay. Now, if I understand it correctly, 
what OSHA must show in order to--was that right--okay--what 
OSHA must show in order to prevail under the general duty 
clause is first that a hazard exists, number one; second, that 
the hazard caused or is capable of causing serious injury; 
third, that the employer recognize the hazard; and fourth, that 
there is a means of abatement that the employers failed to 
employee--all of those things have to be shown. Would you 
consider that a fairly heavy burden for OSHA?
    Secretary Chao. I am not an expert. I believe that the 
legal advice that we have received is sound. There was talk 
about Mr. Scalia, and I am not interested in revisiting the 
confirmation battle over Gene Scalia; he is now our Solicitor, 
and he is doing a great job. Before he was appointed, he had no 
role in this. Since his recess confirmation, he has helped us 
refine our 5(a)(1) strategy. There has been some comment that 
he was very much aggressively against it. Well, I can think of 
no better advocate to help me draft this strategy than to have 
someone who understands every nuance. So he is now my advocate; 
he has a new client, and I am very confident that he will be a 
very forceful advocate.
    Senator Edwards. Well, let me ask you about him, since you 
brought it up. I think Senator Kennedy raised this issue 
briefly earlier. I think in May of 2000, Mr. Scalia wrote an 
article about the very enforcement mechanism that you are 
completely depending upon now in this proposal, and it was 
called ``OSHA's Ergonomics Litigation Record: Three Strikes, 
and It is Out.'' And I think he talked about three different 
cases. One was the Beverly Enterprises case which in fairness 
was reversed subsequent to the time that he wrote the article. 
But when he goes through the three cases and talks about use of 
the general duty clause as an enforcement mechanism, he uses 
words like ``OSHA's record is embarrassing''--I am quoting him 
now--``embarrassing, devastating, dreadful.'' This is your 
Solicitor, as I understand it, talking about the very 
enforcement mechanism that you are now proposing be used. And 
again, in fairness, one of the cases was reversed after that 
time, but the other two I think were not.
    Secretary Chao. Well, he has a different client now.
    Senator Edwards. So his view on that has changed?
    Secretary Chao. He has said that he will enforce the law. 
And I think it is noteworthy that Beverly Enterprises was 
settled when he came on board. This is a very effective tool, 
and it will be used.
    Senator Edwards. Sure. Well, that is what I want to talk 
about, the effectiveness of the tool, because what Mr. Scalia 
was talking about was--regardless of who his client is or which 
side he is on----
    Secretary Chao. It makes a big difference.
    Senator Edwards [continuing]. But what he was talking about 
at the time was how effective--he was not speaking for a 
client--he was talking about how effective he believed these 
OSHA general duty clause enforcement proceedings were, and he 
described them as ``embarrassing, devastating and dreadful.'' 
And this is now the guy who is your Solicitor.
    Let me just ask you about Beverly Enterprises, the case 
that you mentioned was just settled. If I understand it 
correctly, this case--and again, we are now talking about the 
only way that you will be able to enforce--this case, which was 
settled in 2002, took about 10 years, is that correct, from the 
time the first citation was filed in 1992?
    Secretary Chao. I believe so, yes.
    Senator Edwards. And if I understand--tell me if I have 
these facts right--some of the remediation, in other words, 
what needs to be done to fix it, is going to take another 5 
years. So for the employees who are involved, it is a period of 
15 years. And again, correct me if I have these facts wrong--
this was after a 31-day trial, four Labor Department lawyers 
involved, five expert witnesses, a 5,500-page trial record, a 
long decision by an administrative law judge who ruled against 
you and, 5 years later, an even longer decision by the OSHA 
Review Commission.
    Did all of those things happen in that 10 years that this 
case was going on--if you know.
    Secretary Chao. I am not a trial attorney, as experienced 
as you are. All I know is that the last administration was more 
intent on getting out a rule than showing real enforcement 
teeth on this general duty clause----
    Senator Edwards. But can I tell you--excuse me--I will not 
interrupt you; you finish.
    Secretary Chao [continuing]. And let me also add that the 
labor union that is involved with workers who work in this 
industry was very satisfied with the outcome.
    Senator Edwards. Well, here is my concern. If the only way 
you have of enforcing these voluntary standards that you are 
creating is this mechanism, and the two cases you cite as 
successes, one took 10 years and will take another 5, at least 
for some provisions, for remediation; so that is 15 years. The 
other case, which is the Pepperidge Farm case, took a period of 
almost 10 years, and the factory that is involved is actually 
not even open any more; it is closed, as I understand it. And 
those are the cases that you cite as examples of how successful 
it is.
    Here is what I am concerned about. Let me just give you a 
hypothetical case. Let us assume that you have a company that 
has bad working conditions, and they do not want to fix them, 
and you give them a citation under this general duty clause 
provision. The company goes to its lawyer--we know this happens 
in the real world--and the company says, ``Listen, it is going 
to cost us all this money to fix this thing. I do not agree 
with them. I do not want to do it. Can we fight it?''
    And their lawyer, who is an experienced lawyer representing 
them in these kinds of cases, says, ``Well, you know, the truth 
of the matter is the Labor Department has limited resources.'' 
My experience with these things has been that they take years; 
they can take as long as 8, 10, 15 years. And every day that 
that case is going on, you can keep operating exactly the way 
you are operating now.
    Would you be surprised--if the only enforcement mechanism 
is what you are proposing--would you be surprised if lawyers 
who are out there representing companies who are violating the 
standards that you are proposing would give that kind of 
advice?
    Secretary Chao. I think it is noteworthy in Beverly that we 
fought it out with five homes, five facilities, within this 
company. We were able to leverage that to 275 facilities. So I 
think that this tool, if used properly and used intensely, 
could be of very much value.
    I don't think there was the comprehensive approach nor was 
there a linking up of a legal strategy with the enforcement 
strategy to make this work.
    Senator Edwards. But would you--just one last question, Mr. 
Chairman--would you be surprised if this is all you have got, 
if it is the only tool you have got--and that is what you are 
proposing--would you be surprised if the lawyers out there 
representing these companies may not give advice that these 
things drag on, you can fight them, you can keep doing exactly 
what you are doing--and by the way, in the meantime, the 
workers who are employed are continuing to be hurt every, 
single day.
    Secretary Chao. Certainly.
    Senator Edwards. That is something you would be concerned 
about?
    Secretary Chao. Absolutely. I may also say that Beverly and 
Pepperidge Farm were just the first two decisions. We have to 
establish some new principles, and I think the next cases will 
be faster.
    Let me also say that if we had a rule, and if that rule had 
been--I talked a lot about litigation already under the 
previous law; the lawyers can object under the previous 
repealed rule as well.
    Senator Edwards. Thank you very much, Madam Secretary.
    Secretary Chao. Thank you.
    The Chairman. Just very briefly, Madam Secretary--and I 
thank you so much--we are winding up this part of the hearing, 
and we still do not have the goals or the timetables set by the 
administration.
    This is what the OSH Act of 1970 says: ``To assure safe and 
healthful working conditions for working men and women by 
authorizing enforcement of the standards developed under the 
Act.'' There it is, the first sentence--standards.
    Over the period since this Act has been in force, we have 
had standards on benzene, we have had standards on lead, we 
have had standards on asbestos, on coal dust, on bloodborne 
pathogens, on formaldehyde, on confined spaces. We have had 
scores of standards, and none of those--none of those--has even 
come close to causing the number of injuries that we have with 
ergonomics.
    I do not see how you can possibly justify the fact that the 
administration refuses to do what it has the power and the 
authority to do, and that is to really protect workers by 
issuing new standards. You do not have the timetables, you do 
not have the guidelines. You cannot measure your own results, 
and there is no way in the world that we are going to be able 
to do that, either. That is my real disappointment as a result 
of the administration's position on this.
    If you want to make a brief comment, I would invite you to 
make any comments that you would want to on that.
    Secretary Chao. Mr. Chairman, I appreciate the opportunity 
to appear before the Committee. Ergonomics injuries is an issue 
which I am very concerned about. I am concerned about enacting 
a speedy program that will get results, and a rule would have 
taken too long; it would have been subject to litigation and 
further possible stays.
    I am concerned about prevention as well. The previous rule 
had a trigger in there; I did not like that.
    I hope that the Committee will work with me, because this 
Department wants to prevent ergonomic injuries before they 
occur. We have a strong enforcement program. We want to add to 
the research. We have a national advisory committee which we 
are going to call upon, people who are well-versed in this 
area, to seek their help as well.
    So I hope the Committee will work with us, and as we go 
forward, we do hope--it is certainly my intent to show results.
    The Chairman. Senator Gregg.
    Senator Gregg. Thank you, and I apologize, Madam Secretary, 
for having had to leave briefly, but I was able at my other 
event to watch a little bit of the testimony. One of the issue 
which was raised, which I thought was interesting, was this 
question of the relationship of the Department on its rules 
relative to the States. As was mentioned, there are 26 States 
that have legislation in this area and have operating agencies 
in this area. The argument was made, I think by the Senator 
from New York, that the only way the Federal Government could 
assert its jurisdiction was through a rule, that if we did not 
have a rule, if we used the guideline approach that the 
Department is suggesting, then you would have to work with the 
States in order to accomplish the regulatory oversight and to 
get the type of workplace atmosphere that you deem appropriate.
    This raises two issues. First, is it the assumption of the 
Department as it appeared to be the assumption of the question 
that these States, especially, for example, New York, are not 
capable of coming up with their own workplace rules which 
effectively address the issue of ergonomics?
    And second, is it reasonable to presume that you must use 
the hammer of the Federal Government coming in and using a one-
size-fits-all rule to address issues which are uniquely divided 
amongst the States, or is it reasonable to assume that the 
Department can work with the States to develop guidelines which 
are jointly pursued and which effect the result of being 
concerned about workers.
    I would be interested in Mr. Henshaw's response to that, 
because he responded to the original question, and the 
Secretary's also on this.
    Mr. Henshaw. Thank you, Senator.
    Yes, you are correct. The State programs have the 
responsibility to enforce the requirements under OSHA. We are 
granting them that right through our funding, and they are 
executing it. They can promulgate more stringent standards, but 
they must be at least as stringent as the Federal system.
    Two States, as you know, have ergonomic rules. One is a 
trigger, which is California, which the Secretary already 
indicated that that was not acceptable to her. The other one is 
Washington State, which as you know, the Governor has also put 
a stay on the Washington State rule. So those two States have 
done something in addition to what we are doing.
    The comprehensive plan covers the entire Nation. Our 
efforts around the four prongs cover the entire Nation. 
Certainly the States have the ability to enforce under 5(a)(1), 
and we will work with them to make sure their enforcement 
strategies were up to par to be successful when we choose to 
take 5(a)(1), the general duty clause.
    The guidelines we are working on are nationwide guidelines, 
and implementable, and will be implemented across all States 
regardless of whether it is a State plan or a Federal system. 
So our approach covers nationwide.
    I have talked in several States to the people who run these 
State programs, and they are very supportive of this plan. They 
believe it will work just as we believe it will work, and they 
are going to work with us to execute plans successfully to 
reduce musculoskeletal disorders.
    Secretary Chao. I might also add that the Federal OSHA 
really does apply to private employees in New York State--and I 
am talking specifically about New York State. The State plan in 
New York actually only applies to the public sector.
    Senator Gregg. Thank you. I appreciate your time.
    The Chairman. Senator Wellstone.
    Senator Wellstone. Well, Mr. Chairman, the Secretary has 
been here for a long time, with much questioning, and I know we 
have other witnesses. There are two things I want to mention 
just for the record.
    Senator Harkin wanted to be here today, but he is in a 
conference committee on the agriculture bill, and he wanted me 
to convey that to you, Madam Secretary.
    And I would like to put some questions to you on the 
research agenda. I raised that at the beginning, and I will 
just put those written questions to the two of you, and we will 
do it that way because we have other witnesses as well.
    There is a strong difference of opinion, obviously, but I 
do thank you for being here.
    Secretary Chao. Thank you.
    [The prepared statement of Senator Harkin follows:]

                Prepared Statement of Senator Tom Harkin

    Thank you, Mr. Chairman, for holding this important hearing 
and thank you, Secretary Chao, the UFCW and other witnesses who 
have joined us today to talk about this proposal.
    Before I begin with my questions, Ms. Chao, I'd like to 
take a moment to express my extreme disappointment in the 
proposal that the administration released earlier this month.
    I've taken a good look at your plan--and from what I can 
see, your four-pronged approach does very little to prevent 
these debilitating injuries.
    In your April 5 announcement packet, you're quoted as 
saying ``This plan is a major improvement over the rejected 
rule because it will prevent ergonomics injuries before they 
occur and reach a much larger number of at-risk workers.''
    Your plan does nothing of the sort. What you're proposing 
are unenforceable guidelines and a commitment to continue 
efforts--such as OSHA compliance assistance--that already 
exist. Of course, that commitment doesn't seem too strong since 
the President's 2003 budget cuts compliance assistance.
    I just can't understand how your voluntary plan will 
prevent more injuries than an ergonomics rule--that is 
enforceable and based on more than 10 years of scientific 
study.
    Well, I'm pleased that here in Congress we're still 
pursuing an enforceable rule to protect America's workers--many 
of whom who suffer from these injuries are women. I am a proud 
cosponsor of the bill Sen. Breaux introduced yesterday that 
puts a 2-year deadline for a final rule.
    The Chairman. Senator Enzi.
    Senator Enzi. Thank you, Mr. Chairman.
    I just want to thank the Secretary for being the first 
Secretary of Labor to appear before the Committee and for now 
having done that twice.
    On the general duty clause, I feel compelled to point out 
that when we had testimony before, one of Senator Wellstone's 
people showed that the general duty clause does work, that 
there had been huge improvements in their company as a result 
of that. And that had not been one of those that went through 
the 10-year process. So the threat of the general duty clause 
is a provision that can make a difference.
    Senator Wellstone. I want to remind my good friend that the 
Secretary is on record saying that the general duty clause will 
not be invoked in relation to the voluntary standards; so that 
is the problem once you de-link it.
    Senator Gregg. Does the Secretary wish to respond to that?
    Secretary Chao. We will target. We have a strong 
enforcement program. We will target bad actors.
    Senator Wellstone. I understand that, and you keep saying 
that, but I asked you whether in relation to your voluntary 
standards whether it was directly linked or not if people did 
not comply, and you said no.
    Secretary Chao. We will be very targeted in our approach, 
because you cannot inspect every single workplace even if we 
had a rule. So we are going to be able to target specific 
offenders, and that will be a strong deterrent effect. We will 
make sure it is successful.
    The Chairman. Madam Secretary, this is obviously a matter 
of enormous importance and consequence--I know you feel that 
way--and we have important areas of difference, but I want to 
thank you very much for appearing before our Committee today 
and for your responses to the questions. We are very, very 
grateful to you for doing so.
    Secretary Chao. Thank you, Mr. Chairman.
    The Chairman. We now welcome our panel.
    Jackie Nowell is Director of Occupational Safety and Health 
for the United Food and Commercial Workers. She is a certified 
industrial hygienist and earned her Master's in Public Health 
at the University of California. She served as Assistant 
Professor in the Environmental and Occupational Health Sciences 
Division of Hunter College in New York City. In her work with 
the United Food and Commercial Workers, she has been deeply 
involved in the development of major ergonomic programs, 
particularly in the red meat and poultry industries.
    Melody Purvis started working in the returns department at 
Brylane in Indianapolis, IN in November 1993. Brylane is a 
major catalog clothing company. We welcome her.
    Paul Fontana is an Occupational Therapist and owner of 
Fontana Center for Work Rehabilitation in Lafayette, LA. The 
Fontana Center has 40 employees who administer programs to 
businesses and individuals such as industrial injury 
prevention, rehabilitation, and return to work. We are 
delighted to have him here.
    Jackie, do you want to start?

 STATEMENT OF MS. JACKIE NOWELL, DIRECTOR, OCCUPATIONAL SAFETY 
     AND HEALTH OFFICE, UNITED FOOD AND COMMERCIAL WORKERS 
                      INTERNATIONAL UNION

    Ms. Nowell. Thank you, Chairman Kennedy and Members of the 
Committee.
    I am Jackie Nowell. I am ddirector of the Occupational 
Safety and Health Office at the United Food and Commercial 
Workers Union. We represent packinghouse workers, poultry 
workers, retail store workers, and myriad other industries.
    Thank you for the opportunity to testify today about 
ergonomics and the Department of Labor's proposal for 
addressing the nearly 2 million MSDs suffered each year by 
American workers.
    My testimony provides historical background and evidence 
for why the Bush Administration's proposal to confront this 
epidemic with a voluntary program will fail to bring about a 
significant reduction in musculoskeletal disorders.
    My full statement is in the record, so I am going to 
summarize, and I also want to raise a few points that were 
raised both by the Secretary and by the Committee.
    The Department of Labor's announced plan released on April 
5 merely mirrors OSHA's experience in the red meat industry 
more than 10 years ago. Everything else has been used except a 
standard, and I think that was well-put this morning.
    Let me give you that scenario in the red meat industry. We 
have very high rates of injuries in the industry. The union 
filed, in the late 1980s and 1990s, OSHA complaints. These 
resulted in inspections and citations under the general duty 
clause and high fines including, actually, those for 
recordkeeping.
    The companies settled. The settlement agreements mandated 
highly successful ergonomics programs. In the midst of that 
enforcement in 1990, OSHA utilized the expertise of ourselves, 
the union, the meat industry and the Government in development 
of these now-famous red meat guidelines. I actually brought a 
copy with me; they used to be red, and they are now green.
    In 1990, Secretary of Labor Elizabeth Dole announced her 
commitment to go forward with an ergonomic standard. Then again 
in 1992, Secretary of Labor Lynn Martin again committed to a 
standard. During the mid-1990s, there was research going on, 
and there were also tripartite stakeholder meetings.
    The missing piece, of course, was a standard. So when we 
talk about comprehensive plans, all has been done before. The 
missing piece was a standard. And the administration in 2002 
actually published a standard.
    This bit of history shows that rather than moving forward, 
the Department of Labor is actually moving backward.
    Let me say a little bit about the incidence of MSDs which 
was raised here this morning in the meat-packing industry. 
While much has been done, let me give you the most recent 
statistics and then an example from one of our plants.
    The meat-packing industry still leads all industries in 
numbers of injuries and illnesses. Fully one-quarter of meat-
packing workers are injured every year.
    Number two, the weight of lost work-day injury/illnesses 
cases leads all other industries.
    And number three, the meat-packing industry still leads the 
pack with MSDs.
    One of my plants, which is the starship plant for having an 
ergonomics program, the union tells me today in this year has 
an MSD rate of 10 percent. Is that okay? Is that acceptable? We 
say no.
    As for the Bush Administration's plan, where is the beef? 
Workers have waited over 1 year, and the announced plan is less 
than three pages long, and it contains no specifics.
    As to the issues of State plans and employer guidelines--
again, these were raised earlier--there has never been anything 
to stop the States from going forward with ergonomic rules or 
with guidelines. As a matter of fact, several have done that. 
There has never been anything that would stop the industry from 
going forward with ergonomic guidelines.
    This plan announced today does not give anybody permission 
to do any of that. That all has been there.
    In terms of the guidelines, I again want to put in context 
the red meat guidelines. They came on the heels of high, high 
numbers of injuries in this industry. Union complaints that 
brought OSHA into those plants, inspections, high fines--John 
Morrell was fined $4.1 million, the highest fine in OSHA's then 
history--were followed by settlement agreements, and part of 
the reason they settled was because it was also a recordkeeping 
issue. These companies were bad actors at the time. So we got 
settlement agreements.
    On the heels of that, people sat down from all of the 
parties and said let us come up with guidelines on this, and at 
the same time, the agency said they were moving forward with a 
standard. So whenever someone tries to take the red meat 
guidelines out of context, you must remember that they were in 
a context, and that it was 10 and 12 years ago. Companies get 
it now. They know about enforcement, they know about general 
duty clause. I do not think it would work today the way it 
worked back then.
    The Chairman. Take another minute if you could wrap up.
    Ms. Nowell. Okay. The general duty clause was talked about 
a lot. In terms of outreach and assistance, we represent low-
wage workers, immigrant workers, and we believe that cutting 
back the very grant program that is reaching those workers is a 
real mistake. We were very glad to see that Senators Breaux and 
Specter introduced legislation yesterday that would force the 
Department to issue a standard. Workers now look to you, their 
elected officials, to swiftly pass legislation.
    Thank you.
    The Chairman. Thank you very much.
    [The prepared statement of Ms. Jackie Nowell follows:]
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      Response to Questions of Senator Enzi from Jacqueline Nowell
    Answer 1. Please see my testimony, pages 8 and 9. As I have stated 
often in the public record regarding our role in and support of the Red 
Meat Guidelines, their development and use must be taken in the context 
of the time. They were developed in the middle of heavy union 
complaint-generated enforcement activity by OSHA in the meatpacking 
industry. Under the settlement agreements, companies were developing 
comprehensive and effective ergonomic programs, the elements of which 
were incorporated into the Guidelines. And, concurrently, Secretary of 
Labor Elizabeth Dole announced the Department's decision to promulgate 
a standard. Therefore, OSHA was quite confident that companies who had 
not yet been inspected for ergonomic hazards would follow these 
guidelines.
    We are in a very different time today. Initially, companies who 
were cited under the General Duty Clause, negotiated and settled the 
citations with ergonomic programs. However, strong and meaningful OSHA 
enforcement under the General Duty Clause is extremely difficult, as 
illustrated by the Pepperidge Farms and Beverly Enterprises cases which 
took years to litigate and settle. And companies know this. As well, 
the last major ergonomics case OSHA brought, against Hudson Foods 
(Tyson Foods, Inc.), resulted in a settlement with no specifics, a mere 
shadow of the prior settlement agreements OSHA negotiated in the early 
1990s.
    Answer 2. The Department of Labor's plan has been done before, 
you're correct. But, this is the year 2002, not the year 1990. We've 
been there and done that! As for the components of the plan, they are 
NEARLY the same as those in 1990 (and 1996). However, OSHA was 
committed to promulgate a standard, that's the missing piece that both 
opponents to a standard and this DOL forget! Where is the hammer to 
convince ``bad'' companies that they should address ergonomic hazards? 
General Duty Clause enforcement? I don't think so, in the post-
Pepperidge Farm, Beverly Enterprises era.
    I have a question you might consider asking the DOL. There is no 
doubt that the number of cumulative trauma cases in the meatpacking 
industry have dropped since 1991 and significant progress has been made 
in the area of ergonomics. However, the industry still experiences the 
highest rate of reported MSDs. My best plant has a 10 percent MSD rate 
for the year 2002. Is that good enough? The answer is clearly NO!
    Answer 3. Yes. History shows that the decade-old General Duty 
Clause enforcement strategy utilized by OSHA in the meatpacking 
industry, the result of union complaints, was successful. Again, please 
look at the cases, the large number of injured workers, the limited 
number of cases, the speed with which they settled (two years compared 
to ten for later cases, Beverly Enterprises and Pepperidge Farms), the 
unprecedented fines ($4 million) and the huge endeavor required by 
OSHA, including astronomical costs. Subsequent employer challenges to 
enforcement actions and legal decisions have made its use today much 
more difficult.
    Answer 4. Voluntary efforts have so far failed to protect workers 
from work related MSDs. Overall the number of MSDs has remained the 
same for the past several years. But in a number of high risk sectors, 
including nursing homes, air transportation and trucking and courier 
services, MSDs have increased. Cashiers and construction laborers MSDs 
have also increased.
    OSHA successfully utilized the expertise of Government, industry 
and the union in both development of the Red Meat Guidelines and 
subsequent stakeholder meetings during the course of standard 
development. However, with additional guidelines, OSHA is developing 
little more than educational pamphlets if they are unwilling to link 
these guidelines to enforcement, actually utilize the guidelines in 
coordination with an effort to enforce compliance with them.
    What will motivate industries to address ergonomic hazards who have 
not already under a set of guidelines not linked to enforcement? The 
threat of a random OSHA inspection? It would take OSHA 84 years to 
inspect all the workplaces under its jurisdiction just once. I don't 
think so!
    Thank you for this opportunity to once again share with the 
Committee our experience regarding this hazard which significant 
affects the UFCW membership.

    The Chairman. Ms. Purvis.

     STATEMENT OF MELODY PURVIS, FORMER EMPLOYEE, BRYLANE, 
                        INDIANAPOLIS, IN

    Ms. Purvis. Mr. Chairman and Members of the Committee, my 
name is Melody Purvis, and I am from Indianapolis, IN. On 
behalf of all the workers at the Brylane Company in Indiana, 
all the workers injured on the job, thank you for giving me 
this chance to speak here today.
    In my plant, 1,600 workers select, pack, and ship out 
garments and other products to customers ordering from catalogs 
and websites and handle customer service calls. The company's 
own records show that there were 163 cases of repetitive trauma 
illnesses in 2000, including dozens of people who had to stop 
working for an average of about 7 weeks each. So many people 
have had surgery and, like me, have suffered tremendously.
    I am here today to tell you my story and hope that it will 
help you put a face on the issue of why American workers need a 
real ergonomics standard--not voluntary.
    I am married, and my husband and I support our three 
children and one grandchild, with another one on the way in 
June.
    On November 16, 1993, I went to work in the returns 
department as a folder. I was first injured on a job where I 
stood 8 hours a day, taking garments out of a tote, putting 
them up over my head on a hanger--and I am showing you with my 
left arm because it hurts to use my right arm, but I am right-
handed.
    In December of 1993, my arm swelled up, got inflamed, and 
was hot to the touch. When I told a company official, he told 
me to go home and put some ice on it. Later, he sent me to the 
doctor, who sent me to physical therapy and put me on light 
duty. But I was still performing the same motion between 400 
and 600 times every night. My pain continued. I had surgery on 
my right shoulder in 1995, and the doctor put me on work 
restrictions. My restrictions limited the weight of the 
materials I was throwing, but it did not change the lifting and 
throwing that I had to do.
    Many packages still weighed as much as 10 pounds and 
sometimes more. I was re-injured in December of 1997. I had 
surgery on both hands and my right wrist for carpal tunnel 
syndrome, but I still have numbness in my right hand. I was put 
on permanent restrictions for lifting, throwing, and bending. 
In order to make production, I would take painkillers, and even 
with the pain, I was a hard worker.
    In June of 1999, my supervisors gave me a certificate of 
appreciation for top production.
    By June of 2000, my hands and arms would hurt so bad that I 
could not hold a potato or a knife to peel it.
    By June of 2001, I hurt so badly that I could not go to 
sleep or brush my own hair. I was scared to pick up my grand-
daughter. I went back to a company doctor who told me, 
``Melody, Brylane is killing you.'' He recommended another 
surgery that had no guarantees. I had to take a medical leave 
of absence.
    In October of 2001, the company told me that I would, 
quote, ``remain off work due to permanent partial impairment 
for a work-related injury that Brylane could not comply with in 
your department.''
    I truly believe that if Brylane had spent their time fixing 
the job instead of trying to fix me, I could still be working 
today. Instead, I have had four surgeries, and they have not 
made one real change to my work station. Does Brylane know 
about this problem and how to stop it? Yes.
    In Massachusetts, the same company has another plant doing 
the same kind of work. They have almost no repetitive motion 
injuries there. Why? Because the company has an ergonomics 
program that the union developed with management. That program 
says that ``the Brylane management team is committed to 
enforcement of this policy--encouraging prompt reports of 
symptoms and actions to decrease ergonomic hazards.''
    I am glad the company's program works for the union members 
and the company in Massachusetts, but in Indianapolis, even 
after we win our union drive, we will still need strong OSHA 
standards that will force companies like Brylane to fix our 
jobs and to educate us about the dangers of these injuries.
    I could tell you many changes that Brylane could do to help 
stop the pain at work. Unfortunately, Brylane's past shows that 
on its own, Brylane will not make even these simple changes. 
This is outrageous. We work hard in our plant to feed our 
families and pay our taxes, and this is what we get in return--
a plant with an injury rate that is nearly 18 times higher than 
the average for the same industry.
    Unless OSHA issues real ergonomic standards that will force 
companies like Brylane to make jobs safer, we will continue to 
suffer. This is just wrong. We should be able to go to work and 
do our jobs without fear of injury.
    Now OSHA has started talking about doing some things about 
ergonomics, but OSHA is still not talking about new standards 
to force Brylane to fix the jobs.
    In February, with help from United, my co-workers filed an 
OSHA complaint about a lot of safety problems, but we were told 
that there were no laws to protect workers against 
ergonomically dangerous jobs. It is too late to save my hands 
and arms, but it is not too late to save the hundreds of other 
workers in my plant who suffer from these problems every year.
    Please tell OSHA they have to issue new standards. We are 
counting on you to get us the protection we need.
    Thank you again for the opportunity to testify.
    The Chairman. Thank you. That was very moving. [Applause.] 
You obviously speak for a number of people.
    Thank you.
    [The prepared statement of Ms. Melody Purvis follows:]
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    The Chairman. Mr. Fontana.

 STATEMENT OF PAUL FONTANA, OCCUPATIONAL THERAPIST AND OWNER, 
     FONTANA CENTER FOR WORK REHABILITATION, LAFAYETTE, LA

    Mr. Fontana. Chairman Kennedy and Members of the Committee, 
my name is Paul Fontana, and I am appearing before you as both 
a small business owner and an occupational therapist who works 
in the area of ergonomics on a regular basis. I am honored to 
be invited to present my thoughts regarding this important 
issue and thank you for allowing me the opportunity to speak 
with you all.
    I am the owner and president of the Fontana Center for Work 
Rehabilitation in Lafayette, LA. This is a small business with 
40 full-time employees, providing injury prevention, 
rehabilitation, and return-to-work programs to industry, 
outpatient, occupational, and physical therapy, and fitness and 
health programs to business and individuals.
    Working in south Louisiana means that much of my industrial 
work comes from work dealing with companies directly involved 
with the oil and gas business, both on the drilling and 
production side. However, I regularly work with customers from 
all industries--the beverage industry, the transportation and 
warehouse industry, the mining industry, municipalities, power 
and electric. I have even developed programs on ergonomics for 
an invasive cardiologist, attorneys, nurses, nurses' aides, 
bank tellers, secretaries, data input aides.
    I have reviewed the information on the administration's 
proposal for establishing the voluntary industry- and task-
specific guidelines to control ergonomic-related problems. On 
balance, I am pleased with what I see.
    As a small business owner, I believe the new proposal 
offers a flexible, cost-effective plan that I will be able to 
implement. As an occupational therapist who is intimately 
involved with returning employees to work and with developing 
and implementing injury prevention and ergonomic programs to 
companies, I believe this offers us a solid framework to take 
care of the problems found in the job.
    Incorporating proper ergonomic principles into the 
workplace makes good business sense, because it keeps our 
employees healthy, improves their productivity, and reduces 
injuries. Along with the reduction in injuries will come a 
reduction in the cost to the employer, which makes the employer 
a more competitive company. A competitive company is a stable 
employer. Employers large and small understand this and are 
responding positively to this.
    A flexible approach to workplace safety is needed to allow 
business and industry to tailor solutions to these specific 
problems, and I would like to share just one example of one of 
my customers.
    It is a small salt processing mine with under 100 
employees. These guys were experiencing high numbers of 
relatively minor but costly injuries, and over a period of 
years, this resulted in a decrease in the profitability from 
the salt processing operations and an inability for this 
company to compete with the largest salt producers in the area. 
The bottom line was that their cost for salt per ton was 
substantially higher than the larger producers.
    The plant's management team made a concerted commitment to 
total safety, and zero injuries became the company's safety 
goal. Briefly, what the company implemented is as follows.
    I evaluated each job from a biomechanical standpoint, both 
to quantify the physical demands of the job as well as to 
identify the physiological hazards present in the job. All 
employees underwent intensive training in biomechanical 
ergonomic principles. Then, the ergonomic team which consisted 
of hourly employees, management, and maintenance personnel as 
well as myself, trained in ergonomic principles, set up an 
abatement program to resolve these issues.
    Many of these abatements involved minimal to no cost, like 
job rotation every 2 hours instead of every 2 weeks, or the 
implementation of a regular stretching program. These resulted 
in comments from the employees of well-being very quickly after 
being implemented.
    Other items, such as a series of custombuilt scaffolds and 
stairways eliminated high risk in the plant yet were relatively 
expensive--about $10,000. This, along with the new processing 
technique, actually increased production by almost 5 percent a 
year.
    With the success of these programs came an increase in 
employee morale. As injuries went down and production 
increased, the company's cost per ton of salt also went down so 
the company was more competitive with these larger producers. 
In the year 2000, the company invested $700,000 in an automated 
packaging and pelletizing unit. This eliminated all the 
repetitive motion hazards that we were unable to eliminate in 
any other manner. This has resulted in an increase in 
production by 40 percent.
    The Chairman. Mr. Fontana, I am very reluctant to interrupt 
you. As you probably see with our colleagues going out and the 
lights in the back, it means that the clock is ticking for 
Senator Enzi and myself, and we are going to have another vote 
after that.
    So if you would not mind, we will put your full statement 
in the record as read and completed, and if you would like to 
take another 30 seconds to conclude, that would be fine.
    Mr. Fontana. That is about what I had left, and it is right 
under the time frame that you all had asked me to stay within.
    The Chairman. Well, we apologize to you and to our other 
witnesses because of the arrangements over there; we would have 
had more than enough time.
    Mr. Fontana. The bottom line is this company was able to 
decrease its cost per ton. The two employees who would not be 
needed in the job any longer that the company I guess could 
have eliminated, they did not eliminate, but rather moved them 
to a quality control position. And over the last 5 years, this 
salt mine has successfully completed one million man-hours 
without a lost time incident or modified return-to-work 
incident.
    I have many success stories like this. The voluntary 
flexible approach to ergonomic hazards is successful. The 
repealed ergonomic rule did not allow for the creativity and 
flexibility depending on the size of the business. Moreover, 
the burden to implement the old rule would have been 
tremendous, especially to small businesses such as mine.
    Industry is working toward eliminating these ergonomic 
hazards inherent on the job. Employers are stepping up and 
making the changes in their worksites because it is good 
business, and I believe they will embrace the voluntary 
guidelines to make the workplace safer. And for those employers 
who just do not get it, OSHA's new proposed enhancement 
penalties under the general duty clause I believe will have 
enforcement.
    As an occupational therapist who does this on a regular 
basis, I can see a willingness of companies to do this.
    [The prepared statement of Mr. Paul Fontana follows:]
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    The Chairman. Thank you. I think that will have to be the 
last word for now. We will put the remainder of your statement 
in the record, and I hope you will accept our apologies.
    The hearing will stand in recess. We will keep the record 
open for questions for the witnesses.
    Thank you very much.
    [Additional material follows.]

                          ADDITIONAL MATERIAL


                    Prepared Statement of Gary Smith

    Mr. Chairman, and Members of the Committee:
    I am pleased to be here today to present some insight 
regarding efforts to reduce musculoskeletal disorder (MSD) 
injuries in the workplace. This is truly an important subject 
and I applaud the Committee for holding this hearing to discuss 
it.
    My name is Gary Smith and I am the Executive Director of 
the Independent Business Association in Washington State. The 
Independent Business Association represents over 4800 small 
business owners all across Washington State in almost every 
conceivable industry.
    Members of the Committee may already know that Washington 
State has one of the most comprehensive regulations in the 
world intended to reduce MSD injuries. The Washington State 
regulation was adopted in May 2000.
    My comments today are to inform the Committee on the 
implementation of these Washington State MSD injury reducing 
regulations in order to help the Committee to understand the 
complexity and the large number of significant challenges 
involved in establishing Government regulations to attempt to 
reduce MSD injuries.
    First, I want to address a common misconception. For some 
unknown reason, many think that without some form of Government 
regulation, employers have no desire to control or minimize MSD 
injuries. This truly is a gross misconception for four key 
reasons:
    1. With each MSD injury, the costs for an employers 
workers' compensation insurance increases. One of the major 
activities in managing any business is to minimize costs and 
avoid cost increases. Since MSD injuries increase costs, 
employers already do whatever they can to eliminate them.
    2. If an employee suffers an MSD injury, the production 
capability of that business is reduced. Lost production means 
late deliveries or lost sales. Business owners clearly manage 
their enterprises to avoid late deliveries or lost sales. 
Otherwise their business would cease to exist.
    3. If an employee suffers an MSD injury, it is likely that 
employee will no longer be able to work for that employer 
temporarily or permanently. Replacing that employee is 
extremely costly to the employer. Just the hiring and training 
alone will cost the employer thousands of dollars.
    4. Finally, employers, especially small employers, are real 
people with feelings and compassion for their employees. They 
have no reason or desire to see their employees hurt by MSDs or 
any other type of injury or illness. Yes, there may be a very 
few anecdotal examples of some employers not having the best 
interest of their employees at heart, but clearly ninety-nine 
plus percent of all employers have the best interest of their 
employees at heart. Their employees are their most valuable 
resource.
    I know for a fact that almost every employer has already 
taken action to reduce MSD injuries in the place of business. 
Clearly, from the four points just outlined, reducing MSD 
injuries is simply good business besides being the right thing 
to do.
    Therefore, we believe it is extremely important for the 
Committee to clearly understand that employers do want to 
reduce MSD injuries now, even without any Government 
regulation, and have been and continue to take action to do so.
    Yet, the Committee and employers are still concerned about 
the number and severity of workplace MSD injuries. What can be 
done to reduce those injuries?
    The experience in Washington State with its comprehensive 
MSD injury reduction regulation gives our small employer 
members a great deal of insight to help answer this question.
    Will a comprehensive Government regulation reduce these 
workplace MSD injuries?
    The Washington State experience to date shows a 
comprehensive regulatory approach likely does more harm than 
good in reducing workplace MSD injuries. Please let me explain.
    First, the Washington State regulation is a one-size-fits-
all approach. It sets out a series of benchmarks for various 
body motions and activities that employers are not to exceed 
unless the employer has reduce the activities to the extent 
``technologically and economically feasible.'' This one-size-
fits-all approach makes no sense. If applied literally, the 
Washington State regulation calls for the following:
    A 20-year old male worker in top physical condition cannot 
lift a 71-pound box from the floor and put it on a shelf at a 
height above his waist, anytime during any workday. Yet, this 
same regulation provides no protections for a 60 year old male 
or female worker to pick up a box weighing 63 pounds from the 
floor and putting on a shelf at a height above their waist, 3 
times a minute as long as this worker is not required to do 
this for more than 59 minutes continuously. The difference is, 
the 20-year-old worker cannot lift 71 pounds at anytime during 
his workday. Yet the 60-year-old worker can be expected to lift 
11,151 pounds over the course of 59 minutes with no 
protections.
    Ah, you say, the Washington State regulation is obviously 
flawed. But for this aberration, the regulation is probably 
very good policy.
    Unfortunately that initial reaction is not justified. The 
Washington State regulation was developed over a 2-year period 
with input from experts from across the nation. The lifting 
guideline described above is based on NIOSH lifting standards. 
NIOSH is the National Institute for Occupational Safety and 
Health and is the research arm of the Federal Government's 
Center for Disease Control and Prevention with the 
responsibility to reduce workplace injuries and illnesses.
    The problem with a comprehensive type of regulation like 
that already adopted in Washington State 2 years ago is that it 
attempts to apply a very unclear set of research to an 
infinitely variable set of conditions. In the world of 
engineering and science, trying to apply unclear inputs to an 
infinitely variable set of outputs produces no predictable or 
reliable set of results.
    Please allow me to now move from theory to real practice 
with the Washington State workplace MSD injury reducing 
regulations. I personally have worked extremely closely with 
the roofing industry in Washington State in an effort to assist 
them in understanding what they must do to comply with the 
Washington MSD regulation. All of us have roofs over our heads 
at home and at work. Someone has to put that roof on. A roof is 
of one of the most fundamental elements of our civilized 
society. The strict application of this regulation in the 
roofing industry as been carefully estimated to increase the 
cost of roofing a normal residence by 33 percent to 40 percent 
depending on the unique features of that residence. What are 
the MSD injury risks identified in the Washington State 
regulation for the roofing industry?
     They must lift materials that exceed the lifting 
limits allowed
     They must work with their backs bent more than the 
2 hours a day allowed by the regulation
     They often must work on their knees for more than 
the 4 hours a day allowed by the regulation
     They must repetitively grasp and move materials 
(roofing) and put it in place for more hours than is allowed by 
the rule
     Many must use vibration producing tools for more 
hours in a day than is allowed by the regulation
     Some use tools requiring hand forces which exceed 
that allowed by the regulation
     Many must work with the necks bent for more hours 
a day than is allowed by the regulation.
    Now picture one of the Nation's 35 million senior citizens 
who are living on Social Security and struggling to make ends 
meet and remain in his/her home. Their roof springs a leak. The 
contractor comes out and the roof is shot. The Washington State 
ergonomics regulation will add an additional $1,000 to $1,500 
in cost for that senior citizen to re-roof his/her home. Most 
simply can't afford that.
    We are confident you do not find this scenario acceptable 
and either do we. That is why we have been working with our 
Washington State Department of Labor and Industries to find 
ways for the roofing industry to comply with this regulation. 
This is critical because if citizens cannot afford to roof or 
re-roof their homes, hundreds of roofing workers are out of 
work. A vicious cycle none of us can accept. We have been 
working this the Department now for over 2 years to find 
solutions. This is the same Department that developed and 
adopted this Washington State regulation. While no final 
solution has been reached to date, the reality is, the 
regulation as written will not work for the roofing industry. 
But that is not all. This same Department is working with many 
other industries for which the regulation will not work. In 
each case, the Department and the industry are developing 
special plans in lieu of complying with the regulation as 
written.
    Bottom line, a one-size-fits-all regulation or approach 
simply will not work. This has been proven in Washington State 
already.
    One final and unfortunate effect of the Washington 
regulation. The regulation is actually diverting the limited 
funds employers have available to reduce MSD injury risks, away 
from injury reduction and instead to try to figure out what 
must be done to comply with the regulation. This is a poor use 
of those limited resources but when you will face citations and 
fines for non-compliance of the regulation, that diversion of 
those limited funds is required.
    Let me present with my observations of what will work to 
help reduce workplace MSD injuries:
    1. The single most important action any Government 
authority can undertake is to provide information employers on 
ways to reduce workplace MSD injury risks in their specific 
industry or business. Reducing workplace MSD injuries is far 
from a science currently. Reducing these injuries involves so 
many factors that simply do not enable the development of a 
regulation. Factors include the physical condition of those 
doing the work, the type of work, recovery times, where the 
work is being done, etc. A solution to reducing workplace MSD 
injuries for one roofing project simply cannot be applied to 
another roofing project because of the infinite variability in 
this as well as other industries.
    Please allow me a moment to talk about information. In 
years past, those workers who did warehouse work were told to 
wear ``back belts'' to reduce their risk of MSD injury. 
Employers provided back belts. A few years later a study showed 
that the use of back belts may actually increase the risk of 
MSD injury not reduce it because when the worker went home and 
did not use the back belt while lifting, the likelihood of 
injury was greater.
    Employers need clear information of what has proven to 
work. Not what will theoretically work, but what has proven to 
work. Here is the correct role for Government to play. Gather 
this data or do the research necessary to develop this data 
instead of having each employer expend funds trying to find 
solutions using a hit-and-miss approach to see what really 
works to reduce workplace MSD injuries. This is the biggest 
single action any Government agency can provide that will 
deliver the most results in reducing workplace MSD injuries. 
Figure out what works and then tell employers. Employers 
already have four significant incentives to reduce workplace 
MSD injuries as discussed previously. They just need 
information about how to do it.
    2. Provide this information along with assistance to 
employers--especially small employers. More than 85 percent of 
the nation's employers are small employers with fewer than 50 
employees. They employ about 45 percent of the nation's private 
sector workforce. Almost none of these employers have any 
expertise in ergonomics. Government authorities need to provide 
assistance in how to apply the information on what works. As I 
stated earlier in my comments, employers small and large, 
already have four reasons they want to reduce workplace MSD 
injuries. They want the information and assistance to do so. 
This must be the focus of any Government initiative to help 
reduce workplace MSD injuries.
    We applaud President Bush and his administration for their 
recently announced plan to reduce workplace MSD injuries. Their 
approach is very similar that what I have just presented to 
you. We know from the Washington State experience that a new, 
comprehensive set of regulations setting theoretical limits on 
various work activities simply are unworkable and threaten the 
jobs of many workers. Developing information about what works 
and providing assistance in applying it industry-by-industry 
and business-by-business in a mode of assistance rather than 
through the use of citations and penalties is the best 
approach. Employers already want to reduce workplace MSD 
injuries. What they lack is information and assistance on how 
to do it.
    Thank you and I will be pleased to respond to any questions 
you may have.
                                ------                                


         Prepared Statement of National Coalition on Ergonomics

    The National Coalition on Ergonomics (``Coalition''), which 
represents well over 100 associations and companies with a 
vital interest in governmental ergonomics policy, appreciates 
the opportunity to submit this post-hearing statement to the 
record. At the conclusion of the Committee's hearing, the 
record was held open for submissions relating to specific 
questions and issues that were raised at the hearing. This 
statement focuses on two of the issues that were raised most 
prominently.
    First, during introductory remarks preceding the 
questioning of Secretary of Labor Elaine Chao, Senator 
Wellstone termed OSHA's research agenda ``troubling.'' In 
Senator Wellstone's opinion, ``given the comprehensive National 
Academy of Sciences report finished just last year, it is 
difficult to understand what additional research could possibly 
be necessary in order for OSHA to frame its repetitive stress 
injury agenda.'' As explained below, however, neither the 
National Academy of Sciences (``NAS'') report nor other any 
other scientific source resolves the serious scientific 
questions in this area or brings an end to the need for further 
research. Until these questions are answered, it is 
inappropriate to reach beyond a voluntary guidelines approach 
to impose a standard.
    Second, during the questioning of Secretary Chao, it was 
suggested that a Government standard is necessary to overcome 
specific shortcomings in OSHA's guidelines approach. Senator 
Edwards expressed concern about OSHA's intent to rely upon 
general duty clause enforcement, despite the delays and mixed 
results it has experienced in prior general duty clause 
litigation. Senator Clinton also raised the issue of 
applicability to Government employees in state-plan 
jurisdictions. As OSHA's past experience shows, however, there 
are inherent problems with governmental enforcement when the 
science is so uncertain. These problems are intensified, and 
not solved, by a rulemaking effort.

   THE NATIONAL ACADEMY OF SCIENCES REPORT UNDERSCORES THE NEED FOR 
                          ERGONOMICS RESEARCH

    Far from calling for an end to scientific inquiry, NAS 
calls for a renewal of these efforts. Those who would suggest 
otherwise focus solely on a couple of oft-quoted passages from 
the NAS report, which speak in isolation about ``clear'' 
relationships between ``back disorders and physical load'' and 
``important work-related factors'' that contribute to 
``disorders of the upper extremities.'' \1\ These statements 
have been taken out of context as expressions of enthusiastic 
support for Government regulation. They are not.
---------------------------------------------------------------------------
    \1\ National Research Council, National Academy of Sciences, 
Musculoskeletal Disorders and the Workplace: Low Back and Upper 
Extremities (``NAS Report'') at ES-5 (2001).
---------------------------------------------------------------------------

                        A DEFINITIONAL NIGHTMARE

    When the NAS refers to a ``disorder,'' it is not referring 
to an injury in any sense that OSHA can--or should--regulate. 
Rather, the ``disorder'' that NAS describes is ``an alteration 
in an individual's usual sense of wellness or ability to 
function,'' which ``may or may not be associated with well-
recognized anatomic, physiologic, or psychiatric pathology.'' 
\2\ NAS readily acknowledges that musculoskeletal 
``disorders,'' in its lexicon, are not necessarily injuries or 
illnesses, and in many cases share common characteristics with 
pain syndromes such as migraine headaches and premenstrual 
syndromes.\3\ OSHA's mandate simply does not extend beyond 
clinical injury to these vague concepts of ``wellness.''
---------------------------------------------------------------------------
    \2\ Id. at 1-15.
    \3\ Id. at 1-6.
---------------------------------------------------------------------------
    Recognizing the seriousness of the definitional problem, 
the NAS emphasizes the imperative of ``developing uniform 
definitions of musculoskeletal disorders for use in clinical 
diagnosis, epidemiologic research, and data collection for 
surveillance systems. These definitions should (1) include 
clear and consistent endpoint measures, (2) agree with 
consensus codification of clinically relevant classification 
systems, and (3) have a biological and clinical basis.'' \4\ 
The National Institute for Occupational Safety and Health 
(``NIOSH'') has also recognized the ``scarcity of objective 
measures (including physical examination techniques) to define 
work-related MSDs, and lack of standardized criteria for 
defining MSD cases.'' \5\ OSHA properly posed this issue as the 
lead question in its forums, ultimately concluding that it 
needed to consider the question further in light of the 
continuing controversy and uncertainty. Until this important 
issue can be resolved, OSHA will continue to lack the essential 
definitional building block for governmental regulation.
---------------------------------------------------------------------------
    \4\ Id. at ES-7.
    \5\ NIOSH, Musculoskeletal Disorders and Workplace Factors, at 1-7 
(1997).
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                   A COMPLEX WEB OF SUSPECTED CAUSES

    Even the ``disorders'' broadly referenced by NAS cannot be 
linked solely, or even primarily, to the physical factors that 
a standard would exclusively address. According to the NAS, 
``the association between physical exposure and the development 
of a musculoskeletal disorder occurs in a broad context of 
economic and cultural factors and reflects the interaction of 
elements intrinsic to, as well as extrinsic to, the 
individual.'' \6\ The NAS identified a complex web of suspected 
influences, including not only ``mechanical exposure'' (both in 
and out of the workplace) but also individual ``physiological 
characteristics'' and ``psychological characteristics,'' all 
considered against the ``broader social, economic, and cultural 
context.'' \7\ The following illustrations, reproduced from the 
NAS document, reflect these contributing factors and their 
inextricable interrelationship:
---------------------------------------------------------------------------
    \6\ NAS Report at 1-8 to 1-9.
    \7\ Id. at 1-16; see also id. at 1-10 (``Every clinical disorder 
represents a complex interaction between the affected individiual and a 
variety of determinants of the response of the particular individual to 
injury.'')
[GRAPHIC] [TIFF OMITTED] 78951.068

    These figures \8\ show not only the myriad of suspected causal 
factors, but also the difficulty in extracting and isolating any one 
factor, including work. According to the NAS, these illustrations and 
what they suggest about the interrelationship of contributing factors 
is central to the panel's conclusions and to an understanding of its 
report \9\ and it should likewise be central to any decision on 
ergonomics regulation.
---------------------------------------------------------------------------
    \8\ Id., Figures 1.1, 1.2.
    \9\ Id. at 1-11.
---------------------------------------------------------------------------
    It is a well-established principle, stated succinctly in the NAS 
report, that ``injury is a psychosocial event as well as a biological 
or physical one.'' \10\ According to the NAS, ``there is convincing 
evidence to support the hypothesis that compensation wage replacement 
rates, local unemployment rates, and cultural differences can influence 
the reporting of musculoskeletal pain or disability.'' \11\ The NAS 
focused, in particular, on the impact of three separate socioeconomic 
factors (or, properly, categories of factors), and found that all three 
showed a strong correlation to injuries reported in the workplace: 
disability benefits, employer organizational policies and practices, 
and what can broadly be called cultural factors.\12\ The panel noted a 
strong correlation between return to work after injury and the level of 
benefits; studies show that as disability benefit levels rise, the 
probability that an injured employee will return to work decreases, and 
the duration of absence from work increases.\13\ Employers with 
policies that show a commitment to worker health and safety report 
lower rates of lost-time injuries. \14\ Cultural factors also appear to 
impact the level at which ``work-related'' MSDs are reported. For 
example, ``Westernization, industrialization, and social security 
systems may be associated with a greater willingness of workers to 
report low back pain.'' \15\
---------------------------------------------------------------------------
    \10\ Id. at 1-5.
    \11\ Id. at 1-9.
    \12\ Id.
    \13\ Id. (citations omitted).
    \14\ Id. at 1-10 (citations omitted).
    \15\ Id. (citations omitted).
---------------------------------------------------------------------------
    Even the NAS' review of physical factors, moreover, acknowledges 
important limitations in the relationship. In responding to a dissent 
with respect to its findings on carpal tunnel syndrome, for example, 
the panel emphasized: ``The report does not state that [physical 
workplace] interventions prevent carpal tunnel syndrome or, indeed, any 
other upper-extremity disorder. The emphasis, rather, is on 
amelioration of symptoms, which is the end point in the relevant 
literature.... [I]nterventions influence symptoms, not the incidence of 
specific disorders.'' \16\
---------------------------------------------------------------------------
    \16\ Id. at APP.C-1.
---------------------------------------------------------------------------
    In light of all of these interwoven factors, the NAS found that 
``musculoskeletal disorders should be approached in the context of the 
whole person.'' \17\ Voluntary employer programs are well suited to 
such a task. Government mandates are not--especially regulations, like 
the former standard, that rely on formulaic judgments as to ``unsafe'' 
physical exposure levels.
---------------------------------------------------------------------------
    \17\ Id. at ES-15.
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                        a statistical wasteland
    Quite possibly, no other area of current labor policy debate is 
more prone to the misuse of statistics than ergonomics. While the 
Bureau of Labor Statistics reported approximately 577,000 lost workday 
MSDs in its most recent annual statistics, \18\ for example, the Senate 
bill that would mandate a standard includes an express finding that 
``[a]n estimated 1,000,000 workers each year lose time from work as a 
result of work-related musculoskeletal disorders,'' \19\ citing NAS as 
the source. NAS, however, reports that ``there are no comprehensive 
national data sources capturing medically determined musculoskeletal 
disorders.'' \20\
---------------------------------------------------------------------------
    \18\ .
    \19\ S.2184, 107th Cong., 2d Sess., Sec. 1(a)(2).
    \20\ NAS Report at 2-1.
---------------------------------------------------------------------------
    Why is there such a disconnect between these numbers and others 
that are frequently bandied about, both higher and lower? The answer is 
explained above: no one really knows how to define a musculoskeletal 
disorder or to reliably determine its relationship to work.
    BLS and OSHA reporting mechanisms do not even recognize a category 
for ``MSDs,'' forcing statisticians to speculate as to the portions of 
existing recordkeeping categories to include. \21\ In doing so, they 
inevitably include large portions of data for incidents that the 
recordkeeper believed to be the result of a single traumatic event 
rather than any sort of repetitive stress. \22\ Not that the 
recordkeeper has any real idea, because--as the NAS itself observed--
BLS recording criteria rely upon ``very crude collapsing of unlike 
conditions and is determined by a person with no specific training for 
the task.'' \23\
---------------------------------------------------------------------------
    \21\ See 65 Fed. Reg. 68541 (Nov. 14, 2000); see also Government 
Accounting Office, Worker Protection; Private Ergonomics Programs Yield 
Positive Results (1997) (``BLS does not currently have a simple way to 
classify an injury or illness as an MSD . . . As a result, there is no 
single estimate of the total number of MSDs reported.'').
    \22\ See OSHA Hearing Transcript, July 7, 2000, at 18212-13 (http:/
/www.osha-slc.gov/ergonomics-standard/PROPOSED/transcripts/
ergo07072000.pdf). Many individual examples of alleged 
``musculoskeletal disorders'' also arise from specific, one-time 
incidents that have nothing to do with the conditions that an 
ergonomics standard is supposed to address. See, e.g., (lead example on 
AFL-CIO website of an injury that could allegedly be prevented by an 
ergonomics standard, which, in fact, was an accident caused by faulty 
bed brakes: ``In November 1999, while [nursing assistant Cindy Wright] 
was helping to transfer a patient three times her size, the bed's 
brakes failed and the patient rolled over on top of Wright, seriously 
inuring her shoulder and neck.'')
    \23\ NAS Report at 2-14. The NAS also criticized the BLS statistics 
because, among other things, they are based on a sample size too small 
to permit reliable estimates at all but the largest macro-level, they 
fail to provide essential data concerning occupation, task, or 
demographics, and more detailed information is restricted to lost-time 
cases based on another inadequate coding system. NAS Report at 2-14 to 
2-15.
---------------------------------------------------------------------------
    The BLS statistics are, by far, the most widely quoted and heavily 
used source of MSD data. Indeed, as the NAS noted, they are the only 
recognized source of nationwide data. \24\ They formed the bedrock of 
OSHA's case justifying regulation of ergonomics as a ``significant 
risk,'' \25\ and they continue to be cited as a measure of progress, 
even for OSHA's guidelines approach. Blind reliance on these inherently 
unreliable numbers, however, would be a serious mistake. Until BLS can 
resolve the problems that plague every aspect of these statistics, they 
should not form the basis of critical policy decisions.
---------------------------------------------------------------------------
    \24\ Id. at 2-14.
    \25\ See 65 Fed. Reg. 68541 (Nov. 14, 2000).
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                        a call for more research
    In light of all of these problems, all fully acknowledged by the 
NAS, the panel could not have possibly found that research issues have 
been fully resolved. To the contrary, the NAS expressly called for more 
research--a recommendation that OSHA's comprehensive plan now 
implements. Indeed, the NAS report devotes an entire chapter to a 
proposed ``research agenda'' designed to fill ``several important gaps 
in the science base.'' \26\ NAS calls upon researchers, among other 
things, to (1) develop improved tools for exposure (dose) assessment; 
(2) develop improved measures of outcomes and case definitions for use 
in epidemiologic and intervention studies; (3) in studies of humans, 
further quantify the relationships between exposures and outcomes; (4) 
conduct tissue mechanobiology studies related to the impact of physical 
loading; (5) conduct biomechanical studies to investigate the role of 
various factors on changes in loading patterns and tolerance limits, 
quantify the relationship between loading and pain, and explore the 
influence of psychological stress on musculoskeletal response and 
loading of joints; (6) conduct studies into the impact of psychosocial 
stressors; (7) conduct epidemiologic studies into the exposure-response 
relationship; and (8) conduct workplace intervention studies. \27\
---------------------------------------------------------------------------
    \26\ NAS Report at 12-1.
    \27\ Id. at 12-1 to 12-4.
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    Clearly, then, the NAS does not believe that the need for research 
has come to an end or that the case for Government regulation has been 
fully established. Indeed, in the entire 492-page NAS report, any 
recommendation to regulate ergonomics with mandatory governmental 
obligations is conspicuously absent. It would be a serious mistake to 
disregard these important recommendations for additional research, or 
to proceed with a regulation before knowing the answers that this 
research can provide.
intractable hurdles to the promulgation of a standard prevent osha from 
                   going beyond voluntary guidelines
    The second key question posed by the Committee--why is the 
Secretary of Labor pursuing guidelines rather than a standard--is 
answered directly by the ``frequently asked questions'' document issued 
on the day of the Secretary's announcement. The document explains that 
a host of factors ``make it very difficult to develop simple criteria 
for compliance that can apply to a broad range of industries,'' 
including: (1) ``There are a variety of different hazards and 
combinations of different hazards to be addressed''; (2) ``Exposure to 
the hazards is not readily measured in some cases''; (3) ``The 
exposure-response relationship is not well understood''; (4) ``Cost and 
feasibility of abatement measures may be uncertain and may be very high 
in some cases''; and (5) ``It is very difficult, except in the most 
general terms, to prescribe remedies for abating such hazards in a 
single rule.'' \28\
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    \28\ http://www.osha-slc.gov/ergonomics/FAQs-external.html.
---------------------------------------------------------------------------
    OSHA's findings are right on the mark. While it is tempting to 
think of ergonomics standard-setting as something that can be done 
instantly to make the problem go away, the answer is not that simple.
                      a history of failed attempts
    The 10 years of rulemaking activity preceding OSHA's rejected rule 
is sometimes invoked as providing all the necessary groundwork for a 
quick and easy solution that OSHA could provide right now. What is lost 
in such statements, however, is one of the major reasons why this 
process took so long. Throughout the past decade, OSHA repeatedly tried 
to solve two regulatory conundrums: (1) How can a standard be designed 
that is specific enough to provide adequate notice of abatement actions 
that will be enforced, yet is not so specific as to outstrip the 
limitations of scientific research; and (2) if a more specific approach 
is chosen, how can it account for basic differences in all the various 
industries, suspected risk factors, and reported syndromes while at the 
same time avoiding undue complexity? OSHA moved back and forth between 
both sides of each dilemma, but it was never able to find a 
satisfactorily solution.
    After an initial round of comments in 1992 and a series of face-to-
face stakeholder meetings that followed, OSHA circulated a ``pre-
proposal draft'' in March 1995. \29\ That draft, which required the use 
of a specific ``workplace risk factor checklist'' whenever there was 
exposure to any of five quantitatively-defined ``signal risk factors,'' 
was widely criticized for codifying rigid, quantitative exposure 
measures that lack scientific verification or uniform applicability. 
OSHA followed up with a 1998 ``working draft'' requiring interventions 
for ``problem jobs,'' which were vaguely defined as jobs with ``known 
hazards'' including those identified in insurance reports, consultant 
reports, prior OSHA inspections, or even self audits. \30\ In its 1999 
proposed standard, OSHA added terminology that purported to clarify the 
definition of ``hazard'' and the descriptions of required abatements, 
but it continued to rely on vague concepts such as reduction ``in a way 
that is reasonably anticipated to significantly reduce the likelihood 
that covered MSDs will occur.'' \31\ Finally, after a flood of comments 
justifiably criticizing the uncertainty of these benchmarks, OSHA 
incorporated a series of quantified ``action levels'' and ``tools'' to 
its final standard, \32\ even though these measurements had not been 
scientifically validated and none of them had been subjected to notice 
and comment. \33\ Members of Congress expressed concern with not only 
the lack of scientific support for these measures, but also their 
``complexity.'' \34\
---------------------------------------------------------------------------
    \29\ See 65 Fed. Reg. 68265 (Nov. 14, 2000).
    \30\ See http://www.osha-slc.gov/SLTC/ergonomics/ergoreg.html.
    \31\ 65 Fed. Reg. 66071 (Nov.14, 2000) (proposed Sec. 1910.921).
    \32\ See 65 Fed. Reg. 68848-49 (Table W-1), 68859-64 (App. D-1).
    \33\ See Congressional Record, Mar. 6, 2001, at S1858 (statement of 
Sen. Specter).
    \34\ Id. (statement of Sen. Specter).
---------------------------------------------------------------------------
    OSHA's inability to develop an acceptable standard, therefore, is 
not due to a lack of effort. The science is simply not in place to 
support a regulation that would provide workable, understandable, and 
enforceable regulatory endpoints. OSHA's decision to pursue voluntary 
guidelines, on an industry-specific basis, recognizes these hurdles. By 
keeping guidelines voluntary and disclaiming their use as an 
enforcement barometer, OSHA avoids the problems inherent in mandating 
adherence to rigid goals that the science does not support. By further 
breaking down its guidance effort to specific industries, moreover, 
OSHA avoids the complexity that is inevitable when the agency tries to 
bring too many diverse situations under one umbrella. Congress cannot 
make these problems disappear by simply decreeing that OSHA must 
quickly do what it has not yet found an acceptable means to accomplish.
                        a host of legal barriers
    Noting that OSHA's guidelines policy would rely to some extent on 
general duty clause enforcement, several Members of the Committee also 
brought up the rather checkered history of past ergonomics litigation. 
The vast majority of the more than 550 general duty clause citations 
issued by OSHA were resolved relatively quickly and favorably from the 
agency's perspective. Yet, as Senator Edwards also observed, the three 
cases that proceeded to litigation took years to resolve and did not 
culminate in findings of enforceable abatement requirements.
    No one should conclude from this experience, however, that the 
solution is to pursue a standard. OSHA encountered difficulty in its 
general duty clause cases because it was unable to establish all of the 
essential elements of a general duty clause violation: an activity or 
condition in the workplace that presents a hazard, recognition of the 
hazard by the employer or industry, a likelihood of death or serious 
physical harm, and a feasible and effective means of abatement to 
eliminate or materially reduce the hazard. \35\ To promulgate a 
standard, however, OSHA must make similar findings--not just for a 
single employer or industry but for the entire regulated community--and 
it must successfully defend these findings against any judicial 
challenge. \36\
---------------------------------------------------------------------------
    \35\ See, e.g., Secretary of Labor v. Beverly Enterprises, Inc., 
2000 OSAHRC LEXIS 121, at *18 (OSHRC Oct. 27, 2000).
    \36\ See 29 U.S.C. Sec. 655.
---------------------------------------------------------------------------
    This litigation would be enormously complex and lengthy. The 
general duty clause litigation, moreover, provides just a small glimpse 
of the legal issues that OSHA would face. Even among its own hired 
experts, OSHA was unable to achieve a consensus in those cases as to 
even a single workplace, much less all of general industry. In its 
citation of Dayton Tire, for example, OSHA's in-house ergonomist used a 
``lifting equation'' to determine that one job was safe, while the 
agency's hired outside expert concluded the same job was not safe and 
would not become safe unless the lifted weight was reduced to zero. 
\37\ The agency further charged in its citation that one job's hazard 
was ``elevated and extended reaches'' and ``long periods of standing,'' 
but at trial the outside expert ``admitted . . . that neither activity 
is likely to result in injury.'' \38\ Similarly, in the Pepperidge Farm 
litigation, OSHA paraded a virtual who's who of expert ergonomists to 
the witness stand, each of whom advocated a variety of different 
ergonomic interventions. The Review Commission decided that none of 
these experts had identified effective, feasible steps that the 
employer should have taken but did not. \39\
---------------------------------------------------------------------------
    \37\ Secretary of Labor v. Dayton Tire, Bridgestone/Firestone, 
OSHRC Docket No. 93-3327, 1998 OSAHRC LEXIS 23, at *120 (Jan.26, 1998).
    \38\ Id. at *88 n.40.
    \39\ Secretary of Labor v. Pepperidge Farm, Inc., 17 O.S.H. Cas. 
(BNA) 1993, at 2036 (Apr. 26, 1997).
---------------------------------------------------------------------------
    If OSHA seeks to define exposure levels that are ``hazardous'' or 
``safe'' in a final rule, it will encounter the same problems in 
justifying those determinations and defending them during appellate 
review. Even if it does not--and it somehow gets beyond the problem of 
promulgating a standard that provides no concrete guidance on 
compliance--it will ultimately be faced with the burden of making 
similar showings during enforcement, in order to prove that an 
employer's existing practices were inadequate. So long as the science 
remains in its present state, OSHA will not be able to overcome the 
lack of evidence supporting measurements of compliance that could be 
applied in a workable, enforceable standard.
                     a variety of state approaches
    Senator Clinton also raised the issue of public employee coverage 
in the 26 jurisdictions with State plans, which would be mandatory in 
the wake of a Federal standard. Yet, in a voluntary guidelines regime, 
all 50 State governments--like all other employers--will be encouraged 
to voluntarily apply ``best practices'' that fit their particular 
situations. State employees thus will not be treated any differently 
than their private sector counterparts. If there are concerns that 
render a mandatory standard problematic when applied to the private 
sector, those same concerns will be at least as problematic in the 
public sector. An unfunded mandate requiring comprehensive ergonomics 
programs for State employees, moreover, would be particularly 
troublesome during this time of shrinking State revenues and rising 
deficits. It would be perverse--and contrary to any reasonable notion 
of federalism--to call for mandatory ergonomics regulation simply to 
exercise more direct control over the working conditions of State 
employees in the 26 states that have reached State plan agreements with 
OSHA. Ergonomics rulemaking, for all employees, should rise or fall on 
its own merits.
                         a role for guidelines
    In the end, guidelines allow OSHA to accomplish what it cannot 
accomplish through a standard. Guidelines leave room for the 
uncertainty of medical knowledge, the lack of clarity as to what should 
be done in any particular situation, and the vast distinctions between 
industries, jobs, regulated employee activities, and reported medical 
conditions. They also provide an opportunity for employers and 
employees to try out new and innovative approaches. Many medical 
professionals, for example, emphasize accommodations for individual 
workers that allow them to return to full activity levels. These 
approaches find support in some of the most respected collaborations of 
medical expertise, such as the Agency for Health Care Policy Research 
guideline on low back pain prepared under the auspices of the U.S. 
Department of Health and Human Services. \40\ A standard requiring 
employers to permanently eliminate or restrict specific work activity 
levels would at the very least complicate--and very possibly 
contravene--a program based on this emerging medical consensus that 
rapid return to normal activity is in the back pain patient's best 
interest.
---------------------------------------------------------------------------
    \40\ See Bigos S., et al., Clinical Practice Guideline: Acute Low 
Back Problems in Adults, U.S. Department of Health and Human Services, 
Public Health Services, Agency for Health Care Policy and Research, 
AHCPR Pub. No. 95-0642 (Dec. 1994).
---------------------------------------------------------------------------
    The success of guidelines, of course, will depend upon details not 
yet known: most importantly, how will they be formulated and applied? 
With this in mind, the Coalition is looking forward to the release of 
OSHA's first set of guidelines for nursing homes, described during 
Secretary Chao's testimony. OSHA quite properly promised that these 
guidelines would be posted for notice and comment, giving all 
interested parties an opportunity to air their concerns. In light of 
the advantages of OSHA's guidelines approach and the barriers that 
continue to impede a workable standard, the Coalition urges this 
Committee to grant Secretary Chao the leeway necessary to make her 
guidelines policy work.
    Submitted on behalf of the National Coalition on Ergonomics by 
Baruch A. Fellner, Derry Dean Sparlin, Jr., Gibson, Dunn & Crutcher 
LLP, 1050 Connecticut Avenue, N.W., Washington, D.C. 20036
                    Prepared Statement of Gary Smith
    Mr. Chairman, and Members of the Committee:
    I am pleased to be here today to present some insight regarding 
efforts to reduce musculoskeletal disorder (MSD) injuries in the 
workplace. This is truly an important subject and I applaud the 
Committee for holding this hearing to discuss it.
    My name is Gary Smith and I am the Executive Director of the 
Independent Business Association in Washington State. The Independent 
Business Association represents over 4800 small business owners all 
across Washington State in almost every conceivable industry.
    Members of the Committee may already know that Washington State has 
one of the most comprehensive regulations in the world intended to 
reduce MSD injuries. The Washington State regulation was adopted in May 
2000.
    My comments today are to inform the Committee on the implementation 
of these Washington State MSD injury reducing regulations in order to 
help the Committee to understand the complexity and the large number of 
significant challenges involved in establishing Government regulations 
to attempt to reduce MSD injuries.
    First, I want to address a common misconception. For some unknown 
reason, many think that without some form of Government regulation, 
employers have no desire to control or minimize MSD injuries. This 
truly is a gross misconception for four key reasons:
    1. With each MSD injury, the costs for an employers workers' 
compensation insurance increases. One of the major activities in 
managing any business is to minimize costs and avoid cost increases. 
Since MSD injuries increase costs, employers already do whatever they 
can to eliminate them.
    2. If an employee suffers an MSD injury, the production capability 
of that business is reduced. Lost production means late deliveries or 
lost sales. Business owners clearly manage their enterprises to avoid 
late deliveries or lost sales. Otherwise their business would cease to 
exist.
    3. If an employee suffers an MSD injury, it is likely that employee 
will no longer be able to work for that employer temporarily or 
permanently. Replacing that employee is extremely costly to the 
employer. Just the hiring and training alone will cost the employer 
thousands of dollars.
    4. Finally, employers, especially small employers, are real people 
with feelings and compassion for their employees. They have no reason 
or desire to see their employees hurt by MSDs or any other type of 
injury or illness. Yes, there may be a very few anecdotal examples of 
some employers not having the best interest of their employees at 
heart, but clearly ninety-nine plus percent of all employers have the 
best interest of their employees at heart. Their employees are their 
most valuable resource.
    I know for a fact that almost every employer has already taken 
action to reduce MSD injuries in the place of business. Clearly, from 
the four points just outlined, reducing MSD injuries is simply good 
business besides being the right thing to do.
    Therefore, we believe it is extremely important for the Committee 
to clearly understand that employers do want to reduce MSD injuries 
now, even without any Government regulation, and have been and continue 
to take action to do so.
    Yet, the Committee and employers are still concerned about the 
number and severity of workplace MSD injuries. What can be done to 
reduce those injuries?
    The experience in Washington State with its comprehensive MSD 
injury reduction regulation gives our small employer members a great 
deal of insight to help answer this question.
    Will a comprehensive Government regulation reduce these workplace 
MSD injuries?
    The Washington State experience to date shows a comprehensive 
regulatory approach likely does more harm than good in reducing 
workplace MSD injuries. Please let me explain.
    First, the Washington State regulation is a one-size-fits-all 
approach. It sets out a series of benchmarks for various body motions 
and activities that employers are not to exceed unless the employer has 
reduce the activities to the extent ``technologically and economically 
feasible.'' This one-size-fits-all approach makes no sense. If applied 
literally, the Washington State regulation calls for the following:
    A 20-year old male worker in top physical condition cannot lift a 
71-pound box from the floor and put it on a shelf at a height above his 
waist, anytime during any workday. Yet, this same regulation provides 
no protections for a 60 year old male or female worker to pick up a box 
weighing 63 pounds from the floor and putting on a shelf at a height 
above their waist, 3 times a minute as long as this worker is not 
required to do this for more than 59 minutes continuously. The 
difference is, the 20-year-old worker cannot lift 71 pounds at anytime 
during his workday. Yet the 60-year-old worker can be expected to lift 
11,151 pounds over the course of 59 minutes with no protections.
    Ah, you say, the Washington State regulation is obviously flawed. 
But for this aberration, the regulation is probably very good policy.
    Unfortunately that initial reaction is not justified. The 
Washington State regulation was developed over a 2-year period with 
input from experts from across the nation. The lifting guideline 
described above is based on NIOSH lifting standards. NIOSH is the 
National Institute for Occupational Safety and Health and is the 
research arm of the Federal Government's Center for Disease Control and 
Prevention with the responsibility to reduce workplace injuries and 
illnesses.
    The problem with a comprehensive type of regulation like that 
already adopted in Washington State 2 years ago is that it attempts to 
apply a very unclear set of research to an infinitely variable set of 
conditions. In the world of engineering and science, trying to apply 
unclear inputs to an infinitely variable set of outputs produces no 
predictable or reliable set of results.
    Please allow me to now move from theory to real practice with the 
Washington State workplace MSD injury reducing regulations. I 
personally have worked extremely closely with the roofing industry in 
Washington State in an effort to assist them in understanding what they 
must do to comply with the Washington MSD regulation. All of us have 
roofs over our heads at home and at work. Someone has to put that roof 
on. A roof is of one of the most fundamental elements of our civilized 
society. The strict application of this regulation in the roofing 
industry as been carefully estimated to increase the cost of roofing a 
normal residence by 33 percent to 40 percent depending on the unique 
features of that residence. What are the MSD injury risks identified in 
the Washington State regulation for the roofing industry?
     They must lift materials that exceed the lifting limits 
allowed
     They must work with their backs bent more than the 2 hours 
a day allowed by the regulation
     They often must work on their knees for more than the 4 
hours a day allowed by the regulation
     They must repetitively grasp and move materials (roofing) 
and put it in place for more hours than is allowed by the rule
     Many must use vibration producing tools for more hours in 
a day than is allowed by the regulation
     Some use tools requiring hand forces which exceed that 
allowed by the regulation
     Many must work with the necks bent for more hours a day 
than is allowed by the regulation.
    Now picture one of the Nation's 35 million senior citizens who are 
living on Social Security and struggling to make ends meet and remain 
in his/her home. Their roof springs a leak. The contractor comes out 
and the roof is shot. The Washington State ergonomics regulation will 
add an additional $1,000 to $1,500 in cost for that senior citizen to 
re-roof his/her home. Most simply can't afford that.
    We are confident you do not find this scenario acceptable and 
either do we. That is why we have been working with our Washington 
State Department of Labor and Industries to find ways for the roofing 
industry to comply with this regulation. This is critical because if 
citizens cannot afford to roof or re-roof their homes, hundreds of 
roofing workers are out of work. A vicious cycle none of us can accept. 
We have been working this the Department now for over 2 years to find 
solutions. This is the same Department that developed and adopted this 
Washington State regulation. While no final solution has been reached 
to date, the reality is, the regulation as written will not work for 
the roofing industry. But that is not all. This same Department is 
working with many other industries for which the regulation will not 
work. In each case, the Department and the industry are developing 
special plans in lieu of complying with the regulation as written.
    Bottom line, a one-size-fits-all regulation or approach simply will 
not work. This has been proven in Washington State already.
    One final and unfortunate effect of the Washington regulation. The 
regulation is actually diverting the limited funds employers have 
available to reduce MSD injury risks, away from injury reduction and 
instead to try to figure out what must be done to comply with the 
regulation. This is a poor use of those limited resources but when you 
will face citations and fines for non-compliance of the regulation, 
that diversion of those limited funds is required.
    Let me present with my observations of what will work to help 
reduce workplace MSD injuries:
    1. The single most important action any Government authority can 
undertake is to provide information employers on ways to reduce 
workplace MSD injury risks in their specific industry or business. 
Reducing workplace MSD injuries is far from a science currently. 
Reducing these injuries involves so many factors that simply do not 
enable the development of a regulation. Factors include the physical 
condition of those doing the work, the type of work, recovery times, 
where the work is being done, etc. A solution to reducing workplace MSD 
injuries for one roofing project simply cannot be applied to another 
roofing project because of the infinite variability in this as well as 
other industries.
    Please allow me a moment to talk about information. In years past, 
those workers who did warehouse work were told to wear ``back belts'' 
to reduce their risk of MSD injury. Employers provided back belts. A 
few years later a study showed that the use of back belts may actually 
increase the risk of MSD injury not reduce it because when the worker 
went home and did not use the back belt while lifting, the likelihood 
of injury was greater.
    Employers need clear information of what has proven to work. Not 
what will theoretically work, but what has proven to work. Here is the 
correct role for Government to play. Gather this data or do the 
research necessary to develop this data instead of having each employer 
expend funds trying to find solutions using a hit-and-miss approach to 
see what really works to reduce workplace MSD injuries. This is the 
biggest single action any Government agency can provide that will 
deliver the most results in reducing workplace MSD injuries. Figure out 
what works and then tell employers. Employers already have four 
significant incentives to reduce workplace MSD injuries as discussed 
previously. They just need information about how to do it.
    2. Provide this information along with assistance to employers--
especially small employers. More than 85 percent of the nation's 
employers are small employers with fewer than 50 employees. They employ 
about 45 percent of the nation's private sector workforce. Almost none 
of these employers have any expertise in ergonomics. Government 
authorities need to provide assistance in how to apply the information 
on what works. As I stated earlier in my comments, employers small and 
large, already have four reasons they want to reduce workplace MSD 
injuries. They want the information and assistance to do so. This must 
be the focus of any Government initiative to help reduce workplace MSD 
injuries.
    We applaud President Bush and his administration for their recently 
announced plan to reduce workplace MSD injuries. Their approach is very 
similar that what I have just presented to you. We know from the 
Washington State experience that a new, comprehensive set of 
regulations setting theoretical limits on various work activities 
simply are unworkable and threaten the jobs of many workers. Developing 
information about what works and providing assistance in applying it 
industry-by-industry and business-by-business in a mode of assistance 
rather than through the use of citations and penalties is the best 
approach. Employers already want to reduce workplace MSD injuries. What 
they lack is information and assistance on how to do it.
    Thank you and I will be pleased to respond to any questions you may 
have.
    [Whereupon, at 12:10 p.m., the hearing was adjourned.]
  

                                
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