Business Groups Sound Ergonomics Alarm --- Some Fear OSHA's Move to Start Issuing Citations to Employers Is a `First Wave'

By Albert R. Karr
8 September 2003
The Wall Street Journal A4 English
(Copyright (c) 2003, Dow Jones & Company, Inc.)

Washington -- WITH LITTLE FANFARE, the Occupational Safety and Health Administration has again started citing employers for not sufficiently protecting workers from ergonomic injuries. The move has alarmed business groups that successfully lobbied in 2001 to get tough rules aimed at combating such injuries repealed.

The Labor Department agency has issued 11 citations for workplace practices that it says could cause so-called musculoskeletal disorders -- muscle, nerve and joint injuries that can result from repetitive tasks. All the citations, which can lead to hefty fines, were issued this year, after a two-year enforcement hiatus following the defeat of the Clinton administration's ergonomic rules. Though the number of citations is small, it could grow quickly because the agency plans to have inspected 3,200 "high hazard" workplaces for ergonomic shortcomings and other violations by the end of the year. OSHA also has sent warning letters to hundreds of employers about possible ergonomic problems in their workplaces.

"We fear that this is the first wave of a lot of citations," an attorney for one large-employer group said.

Under pressure from labor unions, the federal government has been wrestling with how to reduce ergonomics-related injuries since the 1980s. Though no federal rules specifically target such injuries, OSHA always has had the power to issue ergonomics-related citations under the federal occupational safety law's so-called general duty clause, which requires employers to maintain safe workplaces even absent specific rules.

The first Bush administration's OSHA issued 935 ergonomics-related citations, most of them to a handful of large companies. The Clinton administration issued 120 ergonomics citations in eight years, but it also worked aggressively on strict rules requiring business owners to take specific steps to prevent injuries.

In 1999, OSHA's proposed ergonomics rules prompted cheers from labor unions and fierce opposition from business groups, which complained that the rules were too costly, vague and broad and based on questionable assumptions that expensive workplace renovations and revamped work methods could prevent ordinary aches and pains.

Business groups used the issue to rally support for Republican candidates in the 2000 election. The rules were finalized just before Bill Clinton left office, but with Republicans in control, Congress in 2001 passed a measure repealing them, and President Bush signed it.

To bolster support for the repeal, the administration promised to issue voluntary guidelines for industries with lots of repetitive-task injuries. But the first guidelines, for nursing homes, prompted employer complaints that they appeared based on the rejected Clinton rules -- and could be used to justify general duty clause citations, despite administration promises to the contrary.

Now they say their fears are coming true. "There continues to be well-founded concern in the business community that . . . the culture of heavy-handed enforcement at OSHA has not changed," said Tim Hammonds, head of the Food Marketing Institute, in a letter commenting on OSHA's recently proposed ergonomics guidelines for the grocery stores.

The business lobby's National Coalition on Ergonomics urged OSHA to re-evaluate the citations and withdraw ones "that do not reflect the prudent exercise of prosecutorial discretion."

Citations issued to nursing-home companies "almost read like a repetition of the rule that was rescinded," says Janice Zalen of the American Healthcare Association, which represents 12,000 nursing-home operators. "I'm hearing stories that guidelines are being used [by OSHA compliance officers] to intimidate some nursing homes."

John Henshaw, the assistant secretary of labor for OSHA, denies that. "We will not use the guidelines for any kind of enforcement action . . . and we're not doing that," he said. Mr. Henshaw, who reviews all the ergonomic citations, says compliance officers have been told that an employer's failure to follow the guidelines can't be used as basis for issuing a citation. Only employers with a high injury rate that don't make good-faith efforts to reduce them are targeted, he adds. And those good-faith efforts don't necessarily have to follow the voluntary guidelines, he adds.

"Regardless of the naysayers on both sides . . . my concern is the worker," Mr. Henshaw said. "We believe that there are [ways to] reduce the overall incidence of musculoskeletal disorders."

All the complaining has labor unions scratching their heads, because they think the Bush administration ergonomics enforcement actions and guidelines aren't nearly tough enough. "OSHA is just exercising its tepid authority," said Jackie Nowell, safety and health director for the United Food and Commercial Workers Union. Without an explicit ergonomics rule in place, "thousands of workers are becoming permanently disabled and losing their jobs" because of musculoskeletal disorders, she says.

Some of the citations went to facilities run by companies that already have ergonomics programs in place, including Coca-Cola Enterprises Inc.'s Cincinnati bottling company and Minneapolis-based Supervalu Holdings Inc.'s Hazelwood, Mo., grocery warehouse. Supervalu's risk-control director is a member of OSHA's National Advisory Committee on Ergonomics. "Supervalu and Coca-Cola are leaders in their industries, and if these companies aren't safe, then nobody's safe," said American Bakers Association's Robb Mackie, who helps lead the business ergonomics coalition.

Mr. Henshaw said a parent company's overall ergonomics reputation is irrelevant. "The corporation may have a good program and a good stance on ergonomics, but it's the . . . facility's implementation of the program that's at issue here," he said.

OSHA cited Tri-State Coca-Cola Bottling Co. for requiring workers to perform various repetitive and awkward manual tasks -- lifting, pushing, pulling, bending and twisting -- while handling heavy boxes, beverage cases and carbon-dioxide tanks. The citation suggested various methods for preventing injuries, including easily controlled handcarts and handhold cutouts on boxes. The company, which is contesting the citation, said its employees are given at least two hours a year of safety training.

The agency cited the Supervalu warehouse for requiring employees to frequently lift objects weighing 77 pounds or more while twisting, bending and reaching. Supervalu is contesting its citation, too, and said workplace safety is its "top priority."

OSHA also has cited two of Dallas-based Mariner Health Care's nursing homes for requiring assistants to lift patients without mechanical hoists or other devices; it's also contesting the charges. The Food Marketing Institute's Mr. Hammonds notes that nursing-home operators helped OSHA draft the guidelines for their industry and says the citations could discourage other industries from working with OSHA. "It certainly will cause our industry to proceed with great caution," he says.