U.S. GOVERNMENT PRINTING OFFICE

67–091 WASHINGTON : 2000

OSHA’S PROPOSED ERGONOMICS STANDARD:

ITS IMPACT ON SMALL BUSINESS

HEARING

BEFORE THE

SUBCOMMITTEE ON REGULATORY REFORM

AND PAPERWORK REDUCTION

OF THE

COMMITTEE ON SMALL BUSINESS

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

WASHINGTON, DC, APRIL 13, 2000

Serial No. 106–51

Printed for the use of the Committee on Small Business

(

(II)

COMMITTEE ON SMALL BUSINESS

JAMES M. TALENT, Missouri, Chairman

LARRY COMBEST, Texas

JOEL HEFLEY, Colorado

DONALD A. MANZULLO, Illinois

ROSCOE G. BARTLETT, Maryland

FRANK A. LOBIONDO, New Jersey

SUE W. KELLY, New York

STEVEN J. CHABOT, Ohio

PHIL ENGLISH, Pennsylvania

DAVID M. MCINTOSH, Indiana

RICK HILL, Montana

JOSEPH R. PITTS, Pennsylvania

JOHN E. SWEENEY, New York

PATRICK J. TOOMEY, Pennsylvania

JIM DEMINT, South Carolina

EDWARD PEASE, Indiana

JOHN THUNE, South Dakota

MARY BONO, California

NYDIA M. VELA ́ ZQUEZ, New York

JUANITA MILLENDER-MCDONALD,

California

DANNY K. DAVIS, Illinois

CAROLYN McCARTHY, New York

BILL PASCRELL, New Jersey

RUBEN HINOJOSA, Texas

DONNA M. CHRISTIAN-CHRISTENSEN,

Virgin Islands

ROBERT A. BRADY, Pennsylvania

TOM UDALL, New Mexico

DENNIS MOORE, Kansas

STEPHANIE TUBBS JONES, Ohio

CHARLES A. GONZALEZ, Texas

DAVID D. PHELPS, Illinois

GRACE F. NAPOLITANO, California

BRIAN BAIRD, Washington

MARK UDALL, Colorado

SHELLEY BERKLEY, Nevada

HARRY KATRICHIS, Chief Counsel

MICHAEL DAY, Minority Staff Director

SUBCOMMITTEE ON REGULATORY REFORM AND PAPERWORK REDUCTION

SUE W. KELLY, New York, Chairwoman

LARRY COMBEST, Texas

DAVID M. McINTOSH, Indiana

JOHN E. SWEENEY, New York

JOHN THUNE, South Dakota

BILL PASCRELL, New Jersey

ROBERT A. BRADY, Pennsylvania

DENNIS MOORE, Kansas

MEREDITH MATTY, Professional Staff Member

(III)

C O N T E N T S

Page

Hearing held on April 13, 2000 .............................................................................. 1

WITNESSES

Jeffress, Charles N., Asst. Secretary of Labor for Occupational Safety and

Health, Dept. of Labor ......................................................................................... 4

O’Shaughnessy, Laura, Corporate Secretary, Revere Copper Products .............. 29

Landon, Brian, Owner, Landon’s Car Wash & Laundry ...................................... 31

Kremp, Charles, President & CEO, Kremp Florists ............................................. 33

Russ, Leonard, Administrator, Bayberry Care Center ......................................... 35

Saxon, Edward, President, Conco Systems, Inc .................................................... 37

Woodbury, Jennifer, Esq., McDermott, Will & Emery ......................................... 52

Nowell, Jackie, Director, United Food and Commercial Workers Int’l Union .... 54

Halprin, Lawrence, Esq., Keller & Heckman ........................................................ 56

Mirer, Frank, Director, UAW Int’l Union .............................................................. 58

Cheffer, John P., Chairman, American Society of Safety Engineers ................... 60

APPENDIX

Opening statement:

Kelly, Hon. Sue ................................................................................................. 72

Prepared statements:

Jeffress, Charles N ........................................................................................... 74

O’Shaughnessy, Laura ..................................................................................... 88

Landon, Brian ................................................................................................... 99

Kremp, Charles ................................................................................................. 104

Russ, Leonard ................................................................................................... 116

Saxon, Edward .................................................................................................. 156

Woodbury, Jennifer .......................................................................................... 165

Nowell, Jackie ................................................................................................... 172

Halprin, Lawrence ............................................................................................ 176

Mirer, Frank ..................................................................................................... 190

Cheffer, John P ................................................................................................. 209

Additional material:

OSAH’s Proposed Ergonomics Standard: Its Impact on Small Business ..... 263

Letter from Hon. James Talent to Hon. Charles Jeffress ............................. 266

OSHA followup ................................................................................................. 278

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OSHA’S PROPOSED ERGONOMICS STANDARD:

ITS IMPACT ON SMALL BUSINESS

THURSDAY, APRIL 13, 2000

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON REGULATORY REFORM

AND PAPERWORK REDUCTION, COMMITTEE ON SMALL BUSINESS, Washington, DC.

The subcommittee met at 10:35 a.m. in room 2360 of the Rayburn House Office Building, the Honorable Sue Kelly, chairwoman

of the subcommittee, presiding.

Chairwoman KELLY [presiding]. Good morning. Today the Subcommittee on Regulatory Reform and Paperwork Reduction is

meeting to discuss the Occupational Safety and Health Administration’s proposed ergonomics program standard. I am going to call it

OSHA from now on, because you all know what OSHA is.

OSHA released the proposed rule and accompanying material for

comment by interested parties on November 23, 1999. The material

for comment was voluminous and included a 300-page Federal Register notice and an 1100-page economic analysis. Despite more than

a thousand requests for an extension of the comment period, OSHA

maintains that comments would be due on February 1st, 2000.

With only five days left in the comment period, OSHA then extended the comment deadline by 30 days to March 2d, 2000.

One of the concerns that I have with OSHA at this point, Mr.

Jeffress, I have to just say we didn’t get your testimony until almost 6:00 o’clock last night, so I had to stay up very late to have

a chance to read it. I really am very concerned about the fact that

it didn’t get in here on time. There is a committee rule that it

should be here earlier, and I think you know that.

Mr. JEFFRESS. I apologize to you for that being late.

Chairwoman KELLY. I think this may be, perhaps, indicative of

OSHA’s procedures, where it is a normal operating standard of

being a little late here, despite the fact that the invitation letter

and the committee rules require that all testimony be delivered 48

hours in advance of the hearing. OSHA didn’t get it to us until last

night, so I really am concerned that, if we ask you to come back,

and if you are willing to come back, Mr. Jeffress, that OSHA will

come back within our committee rules and get that 48 hours in advance to us so that I don’t have to stay up until midnight to read

it.

Any Chairman would ask the same of you. I hope it is not indicative of how OSHA plans to conduct the rest of the proceeding implementing the proposed standard.

2

OSHA has made it abundantly clear that you intend to issue a

final standard by the end of the year. In response to the notice of

proposed rulemaking, OSHA received some 7000 comments. In addition, many organizations, small business owners, union representatives, and individual workers have agreed to testify before

public hearings being held by OSHA on the proposed standard. Obviously, there is a great deal of interest in the proposed standard,

especially considering the amount of effort that is needed to submit

written comments to a Federal agency or appear at a hearing.

I am going to go back to your late testimony. It is a big effort

on the part of people to get here to submit their testimony. I had

the testimony from these folks who are testifying 48 hours in advance, but you are here in Washington, Mr. Jeffress, and I didn’t

get it. So, I think it is important that small business owners who

generally have more significant things to worry about, like operating their businesses than filing comments with a Federal agency

on a proposed rule, be treated with due consideration by OSHA.

This interest really has been confirmed on the part of small business in this ergonomics rule. The interest has been confirmed in

my discussions with a lot of the small business owners in my district. I have to say that they have been coming up and talking with

me even as I walk down the street in my village.

The small business owners, as we will hear today, strive to provide the safest working environment for their employees. Now, all

of a sudden, they are being told by OSHA that they have to do

more. These small business owners certainly would do more if they

knew what to do.

The proposed standard, although written in plain English, is difficult to understand and may leave far too much discretion in the

hands of OSHA inspectors in assessing compliance. So, it is not

surprising to find that many small business owners are confused

over how they will comply and what costs of compliance will be.

Even if they are going to be able to comply, it is very important

for OSHA to understand these concerns. It is one of the primary

reasons for holding the hearing, to ensure that OSHA understands

that small businesses are different from large businesses in terms

of financial resources, technical expertise, and daily operation.

OSHA needs to take that into account in developing a final rule.

Otherwise, I fear segregation. Workers for larger enterprises will

get ergonomic protections, because their employers can figure out

how to comply with the standard while employees of smaller businesses do not, because OSHA has abdicated its responsibility to

draft a rule that actually provides scientific, identifiable workplace

and engineering practice guidelines to substantially reduce or

eliminate ergonomic hazards.

The proposed standard is one of the most far-reaching initiatives

ever undertaken by OSHA or, for that matter, any Federal regulatory agency that is going to affect the vast majority of small businesses throughout the United States. As a result, I look forward to

the hearing even though it may be very long. However, given the

importance of the issue, it is critical that we in Congress devote the

necessary time to understanding the ramifications of this regulatory initiative.

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Let me just simply stop here and ask if anyone else—Mr.

Pascrell, do you have an opening statement you would like to

make.

I am going to call on Mr. Pascrell.

Mr. PASCRELL. First, I want to thank my good friend, Chairwoman Kelly, for holding this hearing today so we can examine the

proposed ergonomic standard. Hopefully, this committee will be

able to keep the level of bipartisanship that it always has in the

past.

For the past few days again, I have been examining these standards, and I have heard the concerns of many sides. Some small

business owners look at the OSHA proposal and are skeptical

about how the standard will affect their business. They have asked

what the costs will be. Legitimate questions. Who will be there to

help them? Very legitimate questions.

I am truly confident that Assistant Secretary Jeffress will be able

to alleviate those fears. That is what I am counting on this morning as we move away from the lock-step approach which we had

just a few years ago. That is horrible. That is a bureaucracy which

attains no objective, really, except frustration.

I think we are making progress here. Each year, 1.8 million

workers experience injuries related to overexertion, repetitive motions. Six hundred thousand [600,000] are injured severely enough

to require time off from work. These disorders cost employers between $15 billion and $20 billion.

If we can prevent these things from happening, it will be to the

advantage of businesses all across America. If we can do it within

cost, within reason, this is what we should be trying to do.

The evidence is that MSDs caused by ergonomics hazards are the

biggest safety problem in our workplaces today, and something

must be done about it. We should use this opportunity, therefore,

to look at the pain and suffering being experienced by our workers,

much of which can easily be averted. We are talking about real

people who, I believe, need and deserve the standard to avert potentially crippling injuries. This is really an issue that hits home

in my district, where there’s 1100 manufacturing firms.

While I surely do not want to see them overly burdened by the

government, God knows they are already. Those firms do employ

57,000 people, all of whom must be protected against MSDs.

This threat of injury is out there, and what OSHA recommends

are common-sense solutions that will make a difference in their

lives. The proposal is not designed, as I see it now, to create massive penalties and paperwork, because, if it was, I am not going to

support it. To me, it looks to create a scenario where the problems

of ergonomic injuries are abated rather than prosecuted. We are

doing in this area what we have attempted to do in the environmental situation, working together to move away from prosecution

to abatement of problems together.

I would like to recount the example of a New Jersey door assembly plant, where a consultant was informed by employees of wrist

discomfort and pain from the repetitive motion caused by tightening the screws with a regular, straight screwdriver. Pretty elemental. Among other recommendations made by the consultant in

his report to the employer, it was suggested that pistol-grip screwVerDate 11-MAY-2000 07:43 Mar 13, 2001 Jkt 069902 PO 00000 Frm 00007 Fmt 6633 Sfmt 6602 E:\HEARINGS\67091.XXX pfrm09 PsN: 67091
4

drivers replace the straight ones at an increased cost of $25 per

screwdriver. The employer implemented the recommendation, and

it resulted in a dramatic reduction in injuries, especially wrist

problems associated with the operation.

The proposed rule we examine today is a significant step toward

ensuring the health of millions nationwide. Hundreds of companies

who have implemented changes in ergonomic design have saved

money, increased productivity, and they pay less in workers’ compensation costs. I hope that is an objective of everybody in this

room.

In conclusion, I think balancing the safety of workers and maintaining the viability of small business is a goal that, with proper

communication and interaction, can be achieved. We would be terribly remiss today if we focus solely on the impact this proposed

rule will have on our business. We must look closely and, in my

view, strongly support the benefits and protections that this rule

will give to our workers. The aims of OSHA’s proposed rule are

laudable, and we should not lose sight of that. I am hopeful that

we will be able to find common ground, which we did in the environmental area. We must do so here. So, I would like to thank my

friend, the Chairwoman from New York, for being so accommodating in setting up the hearing. I look forward to the testimony.

Thank you.

Chairwoman KELLY. Thank you very much, Mr. Pascrell. I was

happy to move the hearing so that we could accommodate your

schedule. Mr. Manzullo has informed me he does not have an opening statement.

So, I am going to move directly to the first panel, who will be

the Honorable Charles N. Jeffress, the Assistant Secretary of

Labor, and the Administrator of OSHA. I am interested in hearing

from Mr. Jeffress on his views concerning small business compliance, the cost thereof, and the alternatives that will be considered

in reducing the potentially adverse consequences on small businesses.

Mr. Jeffress, we are going to go directly to you.

STATEMENT OF MR. CHARLES JEFFRESS, ASSISTANT

SECRETARY OF LABOR, ADMINISTRATOR OF OSHA

Mr. JEFFRESS. Thank you, Madam Chair. I am happy to be here

with you.

Let me call your attention to a new publication in the past two

weeks that OSHA has produced for small businesses, Questions

and Answers for Small Business Employers, with information on

OSHA, how it operates, what to expect from us, and where to go

for help. It is a part of our continuing effort to reach out to small

business, to assist small business to protect their workers.

Our goal here is to keep people from getting hurt, the same goal

the businesses have. I think they have a common goal, and, to the

extent we can promote it and educate people through materials like

this, we seek to do that.

Work-related musculoskeletal disorders, which I am going to call

MSDs for simplicity’s sake, are the most widespread occupational

health problem facing our country today.

5

As Mr. Pascrell said, nearly two million workers suffer MSDs on

the job. More than 600,000 have to lose time from the job as a result of these injuries. While the median number of days lost is

seven, the most severe injuries of this type can put people out of

work for months, and even permanently disable them.

In addition, from the employer’s point of view, not only are people being hurt and made less productive, one out of every three dollars that they spend on workers’ compensation goes for MSDs. Not

only is this a burden for America’s workers in terms of ergonomics,

it is a major burden for American businesses. As Mr. Pascrell said,

the direct costs attributable to MSDs are between $15 billion and

$20 billion each year, and every year total costs ranging upwards

to $60 billion. Reducing the total on workers as proposed through

this ergonomic standard will also reduce the financial burden on

American businesses.

As businesses throughout the country have proven, good

ergonomics is good economics. Thousands of employers across the

country are proving that everyday.

The human dimension of this problem is striking. Now, let me

give you a couple of examples. Ursula Stafford, a 24-year-old paraprofessional in the New York City school district—She was assigned to assist a paralyzed student who uses a wheelchair. The

student weighed 250 pounds. Ursula weighed 122. She received no

training on how to lift the student, which she had to do to assist

the student to go to the bathroom, for example. Nor did her employer provide any lifting equipment. Ursula worked only two days

before seriously injuring her back on the third day. She had a herniated disc and spasms in her neck. Today, she wears a back brace.

She endures constant pain. She has been told she may not be able

to have children, because her back cannot support the weight of a

pregnancy. Compounding this tragedy is the fact the Ursula’s predecessor was hurt in exactly the same way. Under the requirements

of our proposal, Ursula’s employer would have been required to fix

this hazard after the first injury occurred, and she might never

have been hurt.

Then there is Walt Frazier, a 41-year-old poultry worker. For

nearly nine years, Walt worked as a live hanger in a chicken processing plant. He stood beside the processing line, stretched over a

barrier bar designed to contain the chickens, grabbed the chickens

by the legs, and then stretched upward to hang the chickens onto

the shackles. He repeated this process once every three seconds.

That is 10,000 times a day, 50,000 times a week, two and a half

million times every year. Finally, in 1998, barely able to lift 20

pounds and unable to perform many daily household chores, he

agreed with his doctors’ recommendations and had the first of four

surgeries in an attempt to repair his damaged hands. In addition

to severe hand problems, Walter has lower back pain and severe

and chronic arthritis in his hands and shoulders.

Another worker lost her job. Mary, a nurse in Oregon. She sustained a back injury. She worked on light duty for a year. Then,

her hospital told her to find another job, because they did not have

anything for her to do. Today, she works at different part-time jobs

in different locations and can no longer provide patient care.

6

Workers shouldn’t have to suffer like this. Many businesses, both

large and small, have already demonstrated the value of

ergonomics programs.

Enid Memorial Hospital’s small nursing care facility in Oklahoma instituted an ergonomics program focused on back injury prevention. They presented a program to staff through lectures, videos, hand-outs, demonstrations. The facility purchased mechanical

lifts and made them available throughout the establishment in ’97

to ’98. This practical ergonomics program cut their rate of work-related injuries by almost 75 percent. They reduced the number of

associated lost workdays by over 85 percent.

Another example. A 25-person lumber yard in Ohio developed

checklists for use by each of their employees in evaluating the ergonomic appropriateness of their personal protective equipment, their

mechanical equipment, and their overall workplace. The lumber

yard completely redesigned their work stations in 1994. As of July

of last year, they had not had any lost time injuries since strengthening their program.

Another company, Ultra Tool & Plastics, a New York plastics

product manufacturer, implemented an ergonomics program that

cut injuries by 70 percent, reduced lost workdays by 80 percent by

their solutions they put in place. This is a small employer purchasing ergonomic chairs for production employees, providing back

safety training, installing robot presses to eliminate the need for

production employees to reach for parts, and making pallet jacks

available for metal bins to allow height adjustments.

These are only a few examples among many that are available.

We published our 11-page ergonomics standard, which I have

right here. That’s the total ergonomics standard, the total rules

that the employer has to read.

We published our standard in November. It is based on sound

scientific evidence, including findings by the National Academy of

Sciences that strongly supports two basic conclusions. One, there is

a positive relationship between work-related musculoskeletal disorders and the workplace. Two, ergonomics programs and specific

ergonomic interventions can reduce these injuries.

We are providing ample opportunity for the public to provide

input on the ergonomics proposal. As the Chairwoman said, we

have heard from more than 7000 stakeholders during our hundredday prehearing comment period. We are now in the midst of nine

weeks of public hearings on the proposal. During the hearings, we

expect to hear from more than a thousand witnesses, including representatives of large and small businesses, small business owners,

employee representatives, and individual workers, as well as physicians, ergonomists, occupational health nurses, and others. Not

only was there a pre-hearing comment period and nine weeks of

hearings, participants who have filed a notice of intent to appear

will also have an additional 90 days after the close of the hearing

to submit further comments. In total, the combined period which

interested members of the public will have to comment on OSHA’s

proposal exceeds eight months. This period is in addition to the

small business panel review process conducted under SBREFA, the

opportunity for comment after that process is concluded, and the

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more than eight years of dialogue that have occurred since OSHA

issued its advance notice of proposed rulemaking in 1992.

Our proposed standard relies on a practical, flexible approach. It

is not one-size-fits-all. It is an approach that can be tailored to individual companies. It is an approach that reflects best industry

practices. It would require general industry employers to address

ergonomics for manual handling and manufacturing production

jobs, where we know the problems are most severe. It requires

other general industry employers to act only when someone is hurt.

The proposal identifies six elements for a full program—management leadership and employee participations, hazard information

and reporting, job hazard analysis and control, training, MSD management, and program evaluations. The ergonomics program need

not cover all jobs in the workplace.

Only MSDs caused by a work activity that is a core element of

an employee’s job or a significant part of her work will trigger coverage. Because the proposed standard is only triggered when an

MSD is reported, its protectiveness relies heavily on workers’ willingness and ability to raise problems when they occur.

Evidence shows that employees are reluctant to report symptoms

if doing so might cause them to miss work and lose pay. Therefore,

we have proposed that workers whose injuries prevent them from

working could receive 90 percent of their net pay and 100 percent

of their benefits to eliminate any economic loss as a result of their

injuries. This proposal is roughly equivalent to the two-thirds of

pre-tax pay of gross pay that workers receive under most state

workers’ compensation programs. But, this provision is not about

worker pay. It is about injury prevention. It is designed to encourage early reporting and intervention, which is to the worker’s benefit and the employer’s benefit. We have included similar provisions

in several other standards, including those on asbestos, cotton dust,

formaldehyde, lead, methylene chloride, benzene, and cadmium.

We estimate that this proposed standard will prevent about three

million work-related MSDs over the next ten years and save an estimated $9 billion annually for American employers in terms of lost

production, administrative and other direct costs. The total benefit

for American businesses far outweighs the estimated $4.2 billion

annual cost of the program.

As requested by Mr. Pascrell and Ms. Kelly, we paid close attention to the unique needs of small businesses as we have developed

this proposal. We have drafted the 11-page proposal in a question

and answer format, as you requested, that is written in plain language. The proposal also exempts businesses with ten or fewer employees from recordkeeping requirements. It extends the phase-in

requirements for up to three years for implementing engineering

controls.

In accordance with the Small Business Regulatory Enforcement

Fairness Act, OSHA, the Office of Management and Budget, and

the Small Business Administration convened a panel to review and

comment on a working draft of the ergonomics proposal last year.

We then made changes, both to our economic analysis and to the

proposal after the panel’s review and the input from small businesses. Those changes included refining of the work restriction provision that I just mentioned. We increased the cost estimates based

8

on what people told us. We added the quick-fix option. The draft

that we provided to SBREFA panel employers said you have to put

a full program in place if an MSD occurs. After listening to small

businesses, small businesses said, ‘‘Gee, if I have one problem job

and I can fix it right away and it doesn’t give me any further problems, why, I don’t have to do the full program.’’ We listened. We

heard that. We inserted the quick-fix option, so, if you identify a

problem job, fix it. No problems. In ninety days, you are done.

You don’t have to put the full program in place. In addition to

drafting a standard that places a minimal burden on small businesses, we plan to provide extensive assistance to small businesses,

as you requested, to assist with compliance—publications, checklists, training grants, information sheets that will help employers

provide their employees with information on ergonomics. We also

will use Internet-based materials, outreach sessions, and our free

consultation program available through state agencies. Every small

employer that needs help will be able to contact one of OSHA’s

state consultation programs for free assistance on-site to decide

whether they need a program and what to do if they need one.

We are also undertaking extensive efforts to train our compliance

staff. Our Training Institute already trains our compliance officers

about ergonomics, since we have been addressing ergonomic issues

for more than ten years. Consistent with our standard practice,

whenever we promulgate a new standard, we will revise our

courses based on the final rule and assure that all compliance officers who perform ergonomics inspections receive updated training.

MSDs have a very measurable impact on the lives and careers

of American workers. Companies that have worked to prevent

these injuries with sound programs have often improved their productivity, drastically reduced their workers’ compensation costs,

and improved job satisfaction. We believe that same opportunity for

a safer workplace must be extended to other workers whose livelihoods and careers remain at risk. Preventable hazards too often

mean the difference between a happy, healthy, productive worker

and one whose life and career may forever be changed by the misery of chronic pain from a needless injury.

Madam Chairman, I will be happy to respond to questions.

[Mr. Jeffress’ statement may be found in appendix]

Chairwoman KELLY. Thank you very much, Mr. Jeffress. I obviously have obviously a number of questions that I would like to

ask, but I am just going to ask one right now.

I might ask a follow-up, but then I am going to let the other people speak and ask their questions before I go back to finish with

my questioning.

As I said in my opening statement, no one denies that the injuries suffered by individuals that you cite are not a problem in the

workforce. My concern is whether the rule that you are promulgating will prevent these injuries from Occurring. Telling small

businesses that we have a problem but not telling them how to fix

it leaves it up to them to figure out.

As a former small business owner, I have to tell you that I

wouldn’t necessarily be able to fix a problem and fix it correctly according to what your inspector might say, because I don’t know

how to fix it without some kind of expert advice and consultation

9

or something that is carefully delineated in what you are promulgating.

So, do you plan to tell small businesses how to fix a particular

injury?

Mr. JEFFRESS. There are a number of ways we are going to address this issue.

What we heard when we met with small businesses and other

stakeholders prior to issuing this proposal was every business is

different. There is no one fix that will work for every business, so

don’t put a rule in place that mandates that everybody do the same

thing.

We ask, then, how do we put a rule in place? What kind of rule

should we have? We were told, ‘‘tell us the elements of a program

that makes sense’’, which is what our rule now does based on the

actual practice of businesses that have ergonomics programs in

place.

The rule says there are six principles important to follow in establishing programs—getting leadership from your management,

involvement from your employees, training your employees, analyzing your hazards and fixing them, giving medical treatment to

employees who need it, evaluating the program. So, those principles are what’s required by this rule. There is no one fix, because

each business is going to be different.

So, the question that you asked, then, is, okay, the small business understands the principles. How do they get an idea of what

fix works? We will be producing and have produced examples of solutions that work for different businesses. Our expert advisers on

the Internet that we have on other subjects, for instance, allow a

small business to hit on the Internet, ask about their particular

business, what kinds of hazards can be expected, and how to fix

those hazards. With respect to ergonomics, here is a booklet, for instance, that has been prepared by the Consultation Program in the

state of California, that is available to small businesses and is an

example of the kinds of information which you have just asked us

to provide for small businesses. We have in here pictures of solutions that work. We have specific solutions for different types of

workplaces. This type of information will be available in print form

and over the Internet and in person through state consultants.

So, a small business employer who determines that they have

problems and wants help can get specific advice, can get on-site

help, but is required not to put any specific solution in place but

to put a program in place that fits their workplace.

Chairwoman KELLY. I am going to ask a follow-up question here.

OSHA determined that this rule is significant under the Regulatory Flexibility Act.

According to SBREFA, OSHA is required to draft a compliance

guide for use by the small businesses. When are you going to that?

When are you going to get that drafted? I am going to ask you several questions here.

The final rule has to be issued for publication in the Federal Register, so small businesses have material to help them comply. Or,

is that going to be done later? Is that going to be done after the

rule gets promulgated, and shouldn’t you be trying to develop a

compliance guide along with this final standard?

10

Mr. JEFFRESS. Yes, we will publish a final compliance guide.

As you indicated, that guide has to give guidance on how to comply with the final rule.

The final rule is now up for hearing. We are listening to people.

We will be making modifications to our proposal based on what we

hear to improve the rule, so the compliance guide cannot be written

finally until the final rule is in place.

The final rule has a three-year phase-in for engineering controls

for small businesses, a two-year phase-in for job hazard analysis.

We are already publishing, as I say, lots of advice on how to put

ergonomic solutions in place and what works. The specific compliance guide that we are developing will be issued after the final rule

is issued.

Chairwoman KELLY. Well, I have looked through this. I hope you

are going to give people more than something like this.

One of the things that I find disturbing about this is that you

have lifted that 11-page guide that you have offered to people. You

say all they have to do is read that, and they will have a clear understanding of what it is you are trying to do. If I understood you

correctly, that is what you said.

Mr. JEFFRESS. I said to read this to determine if they are covered

by this rule and what it is they are required to do.

Chairwoman KELLY. Well, on page 1077 of your Economic Analysis, you note that the preamble has additional definitions of key

items in the regulatory text. So, somebody reads that 11-page rule

and your own analysis doesn’t support reading just 11 pages is

going to give anybody the full information that they need.

I want to know if you want to comment on that.

Mr. JEFFRESS. Yes, ma’am. I would suggest to you that the practical application of rules like this is being done every day in workplaces across this country. Earlier this week, I was in two workplaces in Illinois, NCS, Incorporated, in Rockford and at Dayco in

North Aurora, Illinois. In both of those cases, meeting with the

owner of the businesses, I talked to them about how do you identify

these problems.

How is it you figure out that you’ve got a problem that needs addressing? Their comment to me was this doesn’t take any expert.

In the case of Dayco, the person was applying a rust inhibitor to

a flywheel, had to get up underneath a conveyer, and squeeze her

handgun like this, and then get on top of the conveyor and squeeze

again like that. He said it is pretty clear that is a problem for us.

It is a problem for that employee. They fixed that problem for $200.

They fixed that problem and prevented injuries to their employees.

That’s the kind of thing that employers are required to do. That is

the kind of thing employers can do, and that is the thing they are

doing without having to read thousands of pages of information.

Chairwoman KELLY. Mr. Jeffress, I am sorry to keep going, because I really want to let these other people go.

I do have a whole lot of questions for you. This is just the beginning. Sorry about that, but this raises so many issues, and, as a

small businesswoman, I care ardently that people really get it

right, just as you do.

I want to make sure that workers get protected, but I also want

to make sure that the small businesses understand what it is you

11

are trying to get them to do. You just said that it doesn’t take any

expert, is what you heard, for them to define what needs to be

done. On the other hand, how do we know from what you have

written so far, and from what I understand from all of the things

that I have read, I don’t know, as a small businesswoman, that

what I do is going to meet the criterion of your inspector who

comes in.

That’s the rub. That is the real rub, is when your inspector

comes in—every inspector. It is going to be a little like, if you will

forgive me, the IRS. When they come in, they are going to play

‘‘aha, I got ya.’’ Some of them will, because that is just the nature

of human beings. I am very concerned for the small businesses who

get caught in that trap. That is all I am going to say on that, because we can go back to that a little bit later. But, I am raising

a cautionary flag to you, sir, that, when you do your training for

these people, that they understand that is not the government’s attitude.

Mr. JEFFRESS. I assure you consistency is important to us and

every compliance officer calls things the same way.

But, what is most important to us is reducing injuries and illnesses. It’s not the ‘‘gotcha.’’ It’s not the violations of the rules we

are looking for. We are looking to help employers protect their employees. That is why our compliance officers are out there.

Chairwoman KELLY. I hope you put those words in large-type on

the wall.

Thanks. I am going to go now to Mr. Pascrell.

Mr. PASCRELL. Mr. Jeffress, we are facing a philosophical abyss

here. That depends if we want to take you back five years or you

want to go here. But, I think we are going to get there. I think we

will get to the center eventually.

To those who believe that we can do all of these things through

self-examination—I believe in self-examination. No question about

it, but I also believe that, through the state of the art, through

science, we can help the worker who is on the job without bankrupting the company so that he is not on the job any longer. This

is what your objective is, I hope. Is that correct?

Mr. JEFFRESS. Yes, sir.

Mr. PASCRELL. I’ve got to tell you, though, I am very frustrated

at rules that exist and are created by us and Federal agencies, and

there’s no way to monitor these things.

I mentioned to you before new laws and new rules that went into

effect about our fire departments throughout the United States of

America. There’s 32,000 fire departments. You promulgated a

rule—OSHA did in terms of fighting fires, that, whenever this went

to multiple alarm, when two men or two women were in regardless,

two had to be outside, one monitoring the situation. That rule was

promulgated over a year ago. Seventy percent of the departments

are not complying.

You could have all the rules in the world. You can have all the

laws in the world, which leads me to believe that the best thing

that we can do is make sure we try—we are all finite beings—to

get it as right as possible in the beginning. So, don’t be too quick,

and I will say this in a declarative way. Don’t be too quick to jump

to put this rule into effect, to hear from a lot of folks.

12

I believe there should be a standard, but we have graduated from

the fact of how many times can we allow the employee to raise his

arm. Come on. Every person is different. Every person brings his

own being to the job. Every person is unique. It is tough to deal

with a standard, but that we should have a standard, that there

is a threshold. That there is a plan to avoid or shrink the possibilities of injury is what we should be after.

I will support you on that if I know that you have taken into account the things that you are about to hear today.

Now, I’ve got two examples. In Clifton, New Jersey, part of my

district, Union Camp, which is not a small business, was very dissatisfied with the high levels of back injuries experienced. I might

add that the workers who experienced the back injuries were not

pleased, either. [Laughter.]

Mr. PASCRELL. Despite the company’s training program on manual lifting, in its effort to reduce carton heights, injuries continued

to occur. The company decided, because of lost time, dollars spent,

that automatic pallet positioners represented the best solution. The

equipment enables workers to keep working at waist level. Workers

fill the pallet. The top of the positioner automatically adjusts so the

work height remains the same, reduces lifting and other awkward

motions. The impact at Union Camp has been remarkable. Productivity—and we have only witnessed an increase in productivity in

the American worker in the last three years—the American worker

is doing his job. Productivity increased—We didn’t have that productivity increase, by the way, in the ’80’s. We have it now. Productivity increased as car impactors no longer needed to bend, stoop,

or reach. Workers can now load a pallet in 40 percent less time and

less fatigue. Good stuff. Suits your purpose.

You can use that model in other places, and I am sure that is

what that booklet that you held up, I hope, is all about. How many

of these success stories have you found, and how did you incorporate them into where we are at this point?

Then, I have a second smaller business I want to talk about.

Mr. JEFFRESS. In preparing for the proposal for the seven to

eight years after we issued the advanced notice, before we issued

the proposal, we held stakeholder meetings around the country— all around the country so people could come talk to us about things

that worked, such as the Union Camp proposal and what they did

in their workplace. We also held best practices conferences, where

people came and reported on the solutions that were working for

them, that were reducing injuries and reducing Workers’ Comp

costs.

After listening to those proposals, those ideas, those actual practices that made a difference, we digested, what are the essential

elements of these, because no one proposal would fit every workplace. What are the essential elements of these? We arrived at

these six principles, fed them back to people, and are asking, in the

course of this hearing, are these the right principles. Are these the

right ways to guide the development of ergonomics programs?

They are based on the actual practices of hundreds of employers

that came to the stakeholder meetings and told us that this is the

way we do business. So, we did meet with folks like Union Camp.

We did learn from them. We did incorporate into our proposal the

13

kinds of solutions, the kinds of principles they followed in adopting

those solutions.

I would also point out that the kind of solution you mentioned

at Union Camp is not unusual. Businesses are finding these solutions. At Mr. Manzullo’s district recently, I had a meeting with the

Zenith Corporation folks. They had people carrying heavy metal

pieces from a table over to a machine. Carrying that was an issue

for them, but there’s a back problem. The owner of the business

looked at it and said, well, why don’t we put wheels on the table

so you can wheel the whole table over there, and they don’t have

to carry it from one place to another? That is what they did and

solved the problem. Those kinds of solutions are out there.

Our proposal is built on the program that helps people identify

those solutions, not specifying which one to follow but specifying a

process for arriving at those solutions.

Mr. PASCRELL. Before I get to the smaller business, which is really a concern of ours—all of us here—when I said that we have

some philosophical problems here—and I used the example of the

environment before—They are parallel issues in my mind, okay?

That is how I am thinking, anyway.

We seem to be moving in government from a prosecutorial approach to these things to abatement. I have to be assured that that

is where you are coming from. I think this is critical for us, that

you are going to help businesses and you are not going to bog them

down in paperwork and bureaucracy and nothing is accomplished.

I mean, I wouldn’t mind if something was accomplished. Do you

know what I am saying?

Mr. JEFFRESS. Yes, I do. In response, we are moving in the direction you are suggesting we move.

One of the ways we are doing that, OSHA’s standards used to

specify exactly what an employer had to do—put that fire extinguisher 34 inches off the floor. Thirty-six inches or 32 inches, you

are not doing what the standard says. Put it 34 inches off the floor.

That is not productive. That is not conducive to safety and health.

We are moving to performance-based standards that says to employers, as to ergonomics, put a program in place that fits your

workplace to solve the problems you have. That’s the kind of performance-oriented approach that I think is important in putting

that approach in place. Our goal here is to reduce injuries and illnesses, not to see that a block is checked or a piece of paper is written, but to reduce injuries and illnesses.

We are increasingly providing compliance assistance materials.

As a matter of fact, President Clinton—His last three budgets to

this Congress has proposed dramatic increases in assistance to

businesses on much more of a percentage increase for compliance

assistance than enforcement, because we are trying to reach out

and teach. OSHA would like to be as well known for our education

as we are for enforcement. We believe that is an important way to

help reduce injuries and illnesses in this country.

Mr. PASCRELL. You would agree, though, that the conclusion is

going to be much better if we can do this thing together in a partnership rather than you come in and tell somebody that. We have

gotten complaints from one worker, two workers, and this is what

you need to do.

14

The only time you are talking—the only way you are going to

spend some money is if you are going to make the workplace safer.

Are you stating that for the record?

Mr. JEFFRESS. Mr. Pascrell, yes. The only need for employers to

invest in safety and health is to protect their workers.

That is what OSHA rules are designed to achieve. We would always rather do it in a cooperative manner and a partnership. Let

me hasten to add, though, that I make no apology for using strong

enforcement means when it is necessary to get someone’s attention.

But, having gotten someone’s attention, the way to teach people to

work more safely then is through education partnerships.

That is the way we strive to make our workplaces safer.

Mr. PASCRELL. Thank you, Madam Chairman.

Chairwoman KELLY. Thank you very much, Madam Chair. Mr.

Manzullo has asked to have one question before we go to vote. We

have been called to a vote. I am going to allow him to do that, because I think he has other things he has to do.

Mr. MANZULLO. Thank you. I really appreciate your coming to

my district.

The purpose of that was to show you that the plants were quite

capable in solving their own problems, which OSHA can do based

upon, you said, 11 pages. These are the 600 pages of regulations

and instructions regarding ergonomics in the Federal Register.

My question is this. My brother has a restaurant, and this is how

you wash dishes. Somebody there comes in. This is how you scrub

pots, and, if somebody develops an injury there, how are you going

to stop that injury? He does not have an automatic dishwasher.

Mr. JEFFRESS. I am going to say that my children tell me that

the dishwashers are far superior.

Mr. MANZULLO. But it costs about $40,000. He can’t afford it.

How is he going to solve that problem? Tell me how you are going

to solve it.

Mr. JEFFRESS. We are going to solve the problem of dishwashers.

Has he had dishwashers with repetitive motion injuries?

Mr. MANZULLO. He has not had that, because they come and go,

but sometimes his dishwashers are there for periods of time.

Mr. JEFFRESS. If he has not had an injury, this standard is not

going to trigger anything.

Mr. MANZULLO. What happens if he has an injury?

Mr. JEFFRESS. If he has an injury, he has to look at what is there

in that job that can be fixed.

Mr. MANZULLO. How does he fix that? It is a simple question.

Mr. JEFFRESS. Until someone is hurt, there is no requirement to

do anything and for years he has operated that restaurant and had

no one hurt.

Let’s not hypothesize it. That solves a problem that doesn’t exist.

Mr. MANZULLO. This standard that federalizes workers’ compensation laws and encourages lawsuits. It is a very simple question. What happens when a person reports an injury because of

washing dishes? A very simple question, the type of questions that

at least 900,000 businesses are going to have to ask, because they

are required to have a plan.

How do you stop that type of injury?

15

Mr. JEFFRESS. I think what Mr. Pascrell pointed out is the guidance we are trying to use is let’s solve real problems.

This man has never had an injury. There is no problem to solve.

Mr. MANZULLO. What it amounts to is you can’t stop that type

of injury. It is an issue of an injury that will occur, and you can’t

fix that type of injury.

Mr. JEFFRESS. It is not an injury, Mr. Manzullo. When there is

an injury, we have to work with them to solve that.

Chairwoman KELLY. Mr. Jeffress, if I may ask, we are going to

have to leave, because we have to go to this vote. Just hypothesize.

If there were an injury. I think that is really what Mr. Manzullo

was asking. If there were such an injury, how would you, under

this new rule, tell someone—that restaurant owner—to fix it?

Mr. JEFFRESS. Anytime someone is hurt by an MSD, what we

would expect is for that employer to look at what are the risk factors in this job that have caused that injury. If there are risk factors in the job that are causing an injury, they would need to be

addressed.

Chairwoman KELLY. How would you address them is really what

Mr. Manzullo is asking.

Mr. JEFFRESS. At this point, Madam Chairman, the hypothetical

example has no injury.

Chairwoman KELLY. I asked you to suggest by saying—let’s have

a hypothetical. Let’s suggest that there are injuries like that. What

would you do?

What he is trying to point out is, I believe, that the lack of flexibility, the lack of real defined solutions for businesses to follow may

lead us all into a swamp that we don’t want to get into.

We want to protect those workers. We just don’t want to get into

the swamp.

Mr. JEFFRESS. The whole purpose of this standard is to address

real problems, because there are real people out there. There’s

600,000 people every year suffering injuries in these jobs, losing

time from work, that need help. There is no injury. We are not trying to solve hypothetical problems. We are trying to solve real problems.

Mr. PASCRELL. Madam Chair, we are trying to abate a situation,

not be prosecutorial to the witness.

Mr. MANZULLO. Come on. We want an answer.

Mr. PASCRELL. Madam Chair, I have the floor. Number two.

I would think, in that situation, which is a legitimate situation

that you put forth, that the people whose business it is would come

up with some kind of a plan.

Mr. MANZULLO. What is the plan?

Mr. PASCRELL. I don’t know what the plan is. Maybe they become

ambidextrous at knowing how to wash the dishes. The point is that

they would come up with the plan, not OSHA, and I think we

should keep this in mind as we move along.

Chairwoman KELLY. With that, I am going to take a brief—we

are going to have a ten-minute break here, so we can go and vote.

We’ll be back.

[Recess.]

Chairwoman KELLY. I am going to call the committee back to

order here.

16

In the absence of Mr. Pascrell who had the floor, I am going to

go ahead, Mr. Jeffress, and ask a few of the other questions I had.

One of our panelists raises the issue of pre-existing conditions

and conditions that are unrelated to work. That is one of the serious things that I think we must consider with this rule before the

rule is finalized. How do you address these?

Mr. JEFFRESS. It is very important to us that this proposal be

read as addressing work-related problems. The rule is designed to

only be triggered if there is a work-related musculoskeletal disorder.

The issue of things that happen off the job, have been happening

for years. Employers have had to make decisions ever since workers’ compensation has been in place about whether injuries are

work-related or not.

This rule doesn’t change that. This proposal doesn’t change what

is considered work-related or not considered work-related. So, the

decision that employers have been making for years for workers’ compensation purposes about whether things are work-related is

the same type of decision they will have to make in the future.

So, the rule is only intended to address work-related injuries. It

is not intended to address things that are not work-related, and I

share your view that we need to draw a sharp line there and assure that people read this as only applying to injuries that occur

in the work environment.

Chairwoman KELLY. That I understand. My concern is how does

an employer know. You probably know if you have listened to any

kind of testimony from this committee that I am a small businesswoman. My kids, my husband, we are all small businesspeople.

I know that, upon occasion, and my husband is a building contractor and folks take the tools that he has provided them and the

safety things he has provided them, and they will work for him five

days a week. But, then, they have their own sideline job, and they

will go out on the weekend and do their own job for themselves.

They may injure themselves on that weekend job, come back on the

job, work a couple of hours for my husband, and say. Oops, sorry,

I hurt my back. How is my husband to know, because it is a workrelated injury. It’s just not my husband’s problem. It is their own

problem, because they worked out on their own.

Mr. JEFFRESS. My point, Madam Chair, is that this rule doesn’t

affect that. This rule makes no changes in that. He has that problem today. He will have that problem tomorrow. This rule won’t

solve that problem or make it worse.

To make that determination as something work-related—did it

occur on my job or did it occur on somebody else’s job—what you

have been doing and your husband has been doing in the past you

will keep doing.

You’ll look at, what kind of injury does this person have. That

person recently has gotten that injury on my job. Is there something on my job that is likely to cause these types of injuries? Are

there other things this person was doing that I know of outside of

work that might have contributed to the kind or caused the kind

of injury this person has? Those are the kinds of questions that I

presume you have been asking in the past, that you will keep asking in the future.

17

This proposal doesn’t add to or reduce that requirement or

change the way in which you would do that.

Chairwoman KELLY. Let me just rephrase this then. Let me just

take it one step further.

If the thing goes that far, my husband has got a workmen’s comp

board to take this thing to. But, with this new rule, someone could

come in from OSHA and assess a fine and tell my husband he has

to pay this person who injured himself, not on my husband’s job.

While all of this is being tracked, my husband has to pay 90 percent of the salary. If he is a union person, that would include

stamps and benefits and vacation, and all the rest of the stuff that

is built into a union-paid person.

My concern is that that takes money out of the income stream

for my husband’s business. He is going to have to pay that person

the money, and suppose the adjudication goes against the worker,

because people are honest finally and they find that the worker injured himself on another job. The worker then has to pay my husband back. The chances of my husband getting paid back are probably nil.

You know that. This is the swamp I am talking about. This is

such a gray area here. There’s a heck of a lot of people like my husband out there. Not just building contractors but lots of other people.

I don’t want to see them hurt. I want that worker to be safe.

When they are on my job, my son will go along to the business

and make sure that they’ve got their goggles on, they are wearing

their boots, they are doing whatever they have to do to put their

safety clips on. Things like that.

But, if they are out there working for themselves, even though

that equipment is in the trunk of their car, they won’t put it on

for themselves, because they don’t want to. It is an inconvenience,

so you’ve got a real messy situation.

That swamp is out there, and I just simply want to call to your

attention that that is there. I think that is what the crux is of a

lot of the testimony we are going to here today from the small

businesspeople here.

I am just simply concerned that you stop, you think, and you address this kind of a situation, because that will take from the bottom line of a business profitability, I can tell you from my own experience. Profitability in small businesses isn’t great. We make

some money. We make enough to live on, to feed our kids, but I

tell you, what we have if we are a small businesspeople we plow

back into the business. That is the nature of the business. So, you

need to make sure what you are doing doesn’t cut into our bottom

line.

Mr. JEFFRESS. Again, the decision on this is whether something

triggers the standard goes back to the employer’s determination.

The employer makes that determination if there is some uncertainty.

The employer—many employers do, and I suspect you do on occasion use a physician that you have confidence in to make a determination about the injury. The employer in this standard can rely

on the determination of the physician that the employer has chosen

in deciding whether this is work-related.

18

There are many other OSHA standards where the possibility exists for OSHA compliance officers to second-guess employers. We

try not to do that. There has been a suggestion in the rulemaking

hearing that there be some appeal mechanism—some way of determining whether something is work-related, some physician review,

if you will, rather than relying just on an employer’s determination

or just on one physician’s determination.

We are open to that. We will be exploring that. Again, the purpose of the hearing is, where there are difficulties presented, if people can come forward with solutions that will help us to improve

the standard, we will do that.

Chairwoman KELLY. I just want to say there is no question, in

the example I gave you, that the injury is work-related. It is just

not on my job. That is the problem, and I don’t know how we would

work our way out of it. It is a real sticky-wicket right now. I am

just afraid this is going to make it worse.

We want people protected, but I just want to make sure that, if

there is an injury, that we are able to ascertain where that injury

came from—it didn’t come from somebody going off and playing

rugby on the weekend and coming back on the job.

Again, I am going to hold my questions, and I am going to go

to Mr. Thune.

Mr. THUNE. Thank you, Madam Chair. Let me just say that I appreciate your objective and your goal of workplace safety.

That is something that we are all interested in here. We are obviously also very concerned about how to achieve that in a way

that minimizes the disruption on, particularly, the small business

sector, and I represent a state which has a large number of small

businesses.

They are all small businesses, with a couple of exceptions, and

farmers and ranchers. We are very much concerned about the impact this is going to have on them.

I guess, from just my observation—and, granted, it is not an indepth one—but the vagaries that are involved here are going to impose a tremendous burden on a lot of small businesses in trying to

determine compliance.

You have indicated that small businesses of fewer than ten employees are going to be exempted from the recordkeeping requirement. But, it would appear to me, that they are going to have to

do something. If an inspector comes by, they are going to have to

do a whole lot of recordkeeping to ensure that, when that inspector

comes by, that they can prove that they are in compliance. It would

be a smart business practice, I would expect—and I would expect

most small businesses—to have very strong concerns that, if, in

fact, they are audited at some point, that they are in compliance

and are, therefore, going to be subject to a lot of the recordkeeping

requirements, in any case.

I am just curious what provisions you would contemplate in a

rule that would assist those small businesses in complying with the

standard.

Mr. JEFFRESS. The kind of assistance that we expect to provide

are, again, publications of actual solutions that have worked for

different businesses.

19

The Internet-based programs that people can call up and inquire

about the hazards that apply to their businesses and what solutions have been used.

For smaller employers, my first recommendation is always the

free, on-site consultation that is available. It is funded by OSHA

and available through state agencies—usually state labor departments—whereby, if an employer wants assistance, they can invite

a consultant to come in. The consultant charges no fees. There are

no penalties for anything the consultant finds. The consultant is

expected to help the employer identify what the hazards are and

what some solutions are to fix those hazards. There are 25,000 of

those consultations done across the country every year. The President has asked for more money to increase the consultation staff

so we can do even more of those in the future. That would be my

first suggestion to the business that has a problem.

If they don’t have a problem, obviously, there is no need to ask

for assistance. But, if they have a problem or think they have a

problem, we can provide free, on-site assistance.

We will provide assistance through our publications. I would also

encourage people to use their trade associations. The National Federation of Independent Business has something on their Web site

about ergonomics and what you should do as a small business. If

you think you have a problem and want to address the kinds of

problems you have, these kinds of reference materials are available

not only from the government but from trade associations and

other people to assist small businesses to resolve their problems.

Mr. THUNE. In the proposed standard, you exempt construction,

ag, and maritime. My assumption is, at some point, you are going

to have some sort of standard that will apply to those industries.

I guess I am wondering what kind of a standard you might be

recommending for agriculture, for construction? What basis and scientific data would you use for that recommendation?

Mr. JEFFRESS. The types of MSDs that are occurring in maritime

and construction and agriculture are not terribly different from the

MSDs that are occurring other places. So, in terms of the injuries

and the health effects of the science, if you will, of the MSDs, I

think that is pretty well documented. What is less well documented

is what solutions will work in those different applications.

With respect to construction, we have asked the Construction Advisory Committee of OSHA, that has employers and employees on

it, to look at what solutions work, to help identify solutions, to document solutions that resolve the hazards in the construction industry. Any movement forward on our part will depend upon the kind

of recommendations that we get from that Advisory Committee, the

kinds of solutions that are documented there.

With respect to maritime, there is also a Maritime Advisory

Committee for the National Institute of Occupational Safety and

Health. It also has a two-year study on the way, particularly to address what kind of solutions work in the maritime industry. So,

what kind of action OSHA takes in moving forward there would be

based on the specific documentation of solutions that work in that

industry.

20

At present, we don’t have anything going forward addressing solutions in agriculture. That would be an area that the same kind

of work would have to be done on.

Mr. THUNE. I assume that, if, in fact, you got to that point where

you were going to propose some regulation, that you would also

seek input from those who are in the business of agriculture. There

are a lot of unique demands on people who work in that industry.

I would expect that it is going to be very difficult, I would think,

to ensure that, just from an inspection regime, to ensure that compliance is there and that the regulations are being applied in a uniform way.

I am curious to know the comments that you are receiving from

small businesses. You, I think, mentioned having received 7000

comments from small businesses already, yet you are attempting to

implement a rule by January of this next year. How can you consider those comments and come up with a good rule in that short

of a time frame?

It seems to me, at least, that the period for a consultation and

input from small businesses are being overlooked in terms of what

it is going to take to fashion something or craft something that

takes into consideration all the unique dynamics of the various

businesses. How do you apply this in a uniform way, and how do

you eliminate some of the vagaries that are associated with this?

Mr. JEFFRESS. Prior to ever issuing the proposal, as I mentioned

earlier, we had years of meetings with businesses and input from

businesses and employees on what types of programs work, what

kinds of solutions work.

Then, prior to issuing the proposal, we published a draft and had

the SBREFA process where we had 21 representatives of small

businesses. It had the Small Business Administration involved and

the Office of Management and Budget involved in looking at, given

our draft proposal, what kind of impact that would have on small

businesses. That process ran for two months where there was an

intense review by small business representatives of what had been

proposed, and comments following that process. As I say, we modified our proposal in several ways based on the input we got from

small businesses.

Now, by March of this year, as you point out, we had 7000 comments total from small and large businesses and employee groups,

and others. From March through May, we will be taking oral testimony and then 90 more days of written comments from people who

participated in the hearings. That gives us a long time between

March and the end of the year to analyze those comments to look

at the suggestions for improvements that are made and make

modifications to our proposal before it becomes final.

Mr. THUNE. Your assessment right now as to cost, I understand,

is escalated. It is up to about, what, $4-plus billion?

Mr. JEFFRESS. 4.2.

Mr. THUNE. A lot of the trade associations, I think, are suggesting it is going to be much higher than that. You know, it just

seems to me that, in going through this process, that the cost that

is going to be imposed on, particularly, the smallest of businesses

is going to be excessive enough that it is going to drive a lot of

them out of business.

21

I would hope that we could find a way that would, again, accommodate some of the unique dynamics of businesses—in my case,

really small businesses—who are going to be hardest hit by this.

We are going to hear from a lot of groups today, I think, large

and small. We are going to talk about the financial and economic

burden that is going to be imposed and the issues about, again, the

vague nature of the regulation. How are you going to apply it in

a uniform or equal way? I just think there are a lot of questions

that are still unanswered. I think that it is something that we are

going to need more time to deal with.

It seems to me, at least, that the timeframe that is being imposed here, even though I know you said that you’ve got ample

time to do it, is inadequate for the task that we have at hand.

But, I see my time is up, Madam Chair, so I will yield back to

you.

Chairwoman KELLY. Mr. Thune, just so you know, I am going to

hold the record open. If you have additional questions that you

would like to submit, or if you would like to just stay and we have

some more time, I will be glad to accommodate you with those. We

will hold the record open for five days following the hearing.

Mr. JEFFRESS. Madam Chair, I will be happy to respond to some

of the questions if you would like me to.

As you pointed out, Mr. Thune, OSHA did listen to the kind of

comments that we got through the SBREFA process and revised

our economic assumptions and did almost double the cost estimate

that we proposed for this rule. During the hearings, we will hear,

as you have already seen from other associations, other employers,

about costs. We will also look at those assumptions, and, where we

find that there is validity to them, we will, in fact, revise our economic assumptions.

But, I would hasten to point out to you that many of the assumptions that we have looked at so far are suggesting that there have

been some fallacies in some of the reports that are out there. For

instance, the Food Distributors International study that projected

a $26 billion cost for their industry proposed that, in order to implement ergonomics programs, their industry would suffer a 25

percent decrease in productivity, that they would have more people

doing the same jobs, and that the ergonomics programs would decrease productivity.

In fact, they didn’t cite a single employer that put in an

ergonomics program in place that had decreased productivity.

When we looked at employers in this industry, in fact, productivity

increases.

If you look at Sysco Food Systems of Houston that put

ergonomics programs in place in their place of business following

an OSHA citation and action by the company there, they achieved

a 70-some percent reduction in injuries and illnesses, a savings in

money, and an increase in productivity. I think what you will find

is that, when people put these ergonomics programs in place, that,

rather than decreasing productivity as food distributors have projected, there will be increases in productivity. Certain businesses,

Dayco that I visited in North Aurora had a significant increase in

productivity when they revised their lines.

22

I think the same thing is going to be true of other studies, that

we will find assumptions that we question. For instance, the American Meat Institute—They said that our estimate of costs for business was very low. They thought their costs should have been ten

times what we estimated for business. When we looked at the assumptions in the study, we had based our costs on a 17-person

business—a small business, if you will. They had based their costs

on a 150-person business, a business almost ten times as large.

Their costs were eight to ten times higher. Not particularly surprising, given the size of the business that was being analyzed.

So, we will go behind just the numbers and look at the assumptions, and, where the assumptions will improve ours or give better

estimates than our estimates, we will make modifications, as we

demonstrated with the SBREFA process. But, where the assumptions are based on misunderstandings or based on fallacious assumptions, we will talk about those, analyze those, and give our

comments back so that people understand why we didn’t accept

their suggestions.

Mr. THUNE. If I might, Madam Chair, I would just say to that

I think I am sure that we will hear, too, from groups, that there

is a lot of anecdotal evidence out there about the impact that these

sorts of things have and, again, I would say because some of the

stuff comes to our attention in our state.

Primarily, we deal with small businesses, but we had one that

came to our attention here recently. There was a regulation. The

city had a gravel pit north of town from which they were going to

get gravel. It was above ground, but, because it was a gravel pile,

it was considered to be under the mining wing, or whatever, of

OSHA. Therefore, they had to put in a porta-pottie out there eight

miles north of town, which the guy never used, at a substantial

cost and also had to train him in CPR even though it was one person, so, if he ever had to administer CPR on himself——

[Laughter.]

Mr. THUNE. My point is that there are a lot of circumstances

where you are talking about small business situations that I don’t

think fit very well within the parameters of a lot of the rules that

are fashioned here in Washington.

But, thank you.

Chairwoman KELLY. Thanks, Mr. Thune. Mr. Moore.

Mr. MOORE. Thank you, Madam Chair. You kind of described the

rulemaking process here, the proposed rule, and the fact that there

are hearings coming up over the next several weeks and months,

and that further consideration will be given to information you receive during those hearings.

I guess my question to you is can you give any assurance to people who may wish to testify at those hearings that, in fact, they are

not wasting their time, that, in fact, consideration will be given to

any good points that are raised that have merit during those hearings, and that OSHA would be willing to further amend these proposed rules if meritorious information comes to your attention?

Mr. JEFFRESS. I think OSHA has a history of taking seriously

what is said at hearings on OSHA rules since the first rulemaking

we have done.

23

If we look at the previous hearings that OSHA has done, the

final rule that comes out during those hearings is usually modified,

sometimes significantly, by the kind of information that comes in

at the hearing. I can look back at virtually every rule that I can

remember in OSHA’s history and think about the changes that

have been made to those rules following the comments that people

provided at hearings.

So far, in this rule, as a result of the SBREFA process, we have

made modifications. We have put in a quick fix provision. We have

put in an incremental fix exception. We clarified work-relatedness.

We changed our economic assumptions. So, I think we have a history of accommodating good suggestions and recommendations

when they come in. I can assure you, and as for the people who

have come to these hearings, that we will continue that process.

We will take their advice to improve this rule and put it in place.

Mr. MOORE. I heard you mention the quick fix, and I didn’t hear

all of your testimony, but I have reviewed briefly your written testimony here. What other kinds of accommodations, if any, does

OSHA have to work with small businesses, especially to secure

compliance and not just impose punishment for violations?

Mr. JEFFRESS. First, there are a couple of other things in the

rule.

One I should mention is the incremental fix. When people read

this the first time, they felt, well, I’ve got to put a whole program

in place and do everything that is feasible right away. We clarified

that by saying. No, no. You’ve got a problem. You have a fix that

you think works, put that fix in place. Only if that fix doesn’t work

do you then go on and put more and more fixes in place.

So, we tried to clarify that incremental fix. Even should we adopt

this final rule and find some employer who is not in compliance,

the way OSHA procedures work, if it is a small business, should

there be a penalty, small business is eligible for up to a 60 percent

reduction in any penalties simply based on the size of the business.

If they haven’t had previous problems with OSHA, they are eligible

for another ten percent reduction. If they are acting in good faith,

they are eligible for another 25 percent reduction. So, in terms of

a small business that is trying to do the right thing, even should

there be a violation and that would be a violation that could hurt

someone, the small business would be eligible for up to 95 percent

reduction in any penalties that are out there. So, we did go to significant efforts to try to recognize good faith, to try to give small

businesses credit for what they do to make their workplaces safe.

Mr. MOORE. Mr. Thune asked the question and made reference

to a situation back in his district involving an employer with one

employee and a remote job site. You heard that. It was kind of humorous the way he asked the question. Even you laughed. But, seriously—and he does have a good point here, I think, and I want

to ask the question this way. If the situation is as Mr. Thune has

described, how can an employer be expected to comply with some

of these OSHA requirements, that they are not the violations or

noncompliance?

Mr. JEFFRESS. The example he gave where somebody had to be

trained in CPR, even though there was no other employee to be administered CPR to, OSHA would never cite in that situation. I

24

would be happy to be corrected if someone has a citation. But, I believe that kind of hypothesis is not something that we would cite.

Is the rule written such that it would suggest to someone that

they should give that person CPR training? It may well be. It may

well be something that we would have to rely on the discretion of

the compliance officer or the area director to exercise good judgment in that situation. That is always a defense that the employer

has in terms of any citation or potential citation by OSHA is what

is feasible for that employer to do.

Mr. MOORE. What kind of paperwork requirements will there be,

especially for small employers?

Mr. JEFFRESS. For small employers under ten, there is a specific

exemption from recordkeeping. So, there would be no paperwork requirements at all. In terms of an employer, as Mr. Thune was suggesting, just out of habit or in order to defend themselves, they

might want to keep some paper. As I have talked to employers

about what they do when they put solutions in place, first, they

have a record of the injury—that someone was injured. They have

to have it for workers’ compensation purposes as well as in OSHA

200 logs if they are an industry that requires them to keep those

logs. So, that requirement is there. If they put in a fix, then they

have some record of what they paid to buy the part or to make the

change to put that fix in place. So, there is no new record that

would be required in order to show—you know—you had somebody

hurt and they show what they did to fix the problem.

We are not talking about generating new records here. There is

a requirement that people do a job hazard analysis if there is a

hazard at a job that is hurting someone as to how they determine

what is going to be fixed. In talking with employers about that,

most employers, if someone is hurt, they do write up what caused

the accident. In that write-up, they frequently identify what the

cause was. That write-up could suffice as a job hazard analysis. So,

we are trying to go to lengths to assure that there’s not extra paperwork required. These are things the prudent employer would

otherwise be doing.

Mr. MOORE. Thank you, Mr. Jeffress. Thank you, Madam Chair.

Chairwoman KELLY. Thank you, Mr. Moore. Mr. Jeffress, you

raised a question in my mind.

It is not clear to me, if there is a fine determination, who makes

the determination about the reduction in the fine? The same person

that assessed the fine?

Mr. JEFFRESS. There is a formula that is in our manual for compliance officers that specifies employers of what size, a given size,

what amount of reduction they have. In terms of history, if there

have been no serious violations in the past three years, there is an

automatic ten percent. In terms of good faith, the compliance officer doing that assessment, there is a formula that is in our manual

that the compliance officer follows. The area director, of course, ultimately signs off on the citations.

Chairwoman KELLY. But the compliance officers themselves are

responsible for making those reductions in the fine.

Mr. JEFFRESS. Again, the compliance officer is responsible for the

reductions automatic for size. It is automatic for history. The good

25

faith is an assessment of the compliance officer, approved by the

area director.

Chairwoman KELLY. That sounds like you have got that fairly

well defined. It is fairly well laid out. It is an automatic process,

and I think that is part of what I have my problem with.

This ergonomics rule is that there are a lot of things in that that

aren’t laid out as thoroughly. I wish we could get them laid out.

I’ve got a couple of questions that I wanted to go back to.

In your testimony, you cite the Enid Memorial Hospital. They

have an ergonomics program. I am wondering if you would supply

the committee with a copy of that program. Could you do that for

us?

Mr. JEFFRESS. I’ll be happy to give you the information we have

from Enid.

Chairwoman KELLY. You state that the program cut work-related

injuries by 75 percent. Seventy-five percent to me means, if you

had four people injured, you now have three people who aren’t. I

really would like to see some hard numbers, not percentages. I

started life as a research scientist, and I have to tell you I early

on learned how you can play with the percentages. I would sure

like to see some hard numbers on some of this testimony that you

provided.

Mr. JEFFRESS. There are numbers available. I would cite the

Xerox Corporation plant in New York submitted information to the

ergonomics hearing. They document what they spent on their

ergonomics solutions. Within Xerox, they spent $3.4 million. They

also document their savings as a result of those solutions. The savings they document are over $7 million. That kind of data is available. We’ll be happy to provide it to you.

Chairwoman KELLY. I think that is wonderful for Xerox, but, you

know, if you talk about somebody who is a small business, you are

talking about people with not that many employees. It is going to

be harder for us to document it. So, if the Enid Memorial Hospital

has some figures and they are, in fact, a small business, I think

it would be good for us to see them.

I want to say that this is probably the sign of a compulsive or

a sick mind, or something. I went to a Washington Capitols hockey

game the other day, and I really had a good time. But, I have to

tell you I was sitting there looking at the hockey players on the ice,

and I was wondering whether or not the ergonomic standard is

going to cover them. If so, then what happens to our hockey games?

You can translate that to any other major sport—baseball. People

get hit with balls. They get hit with bats. What about the

stickwork on a hockey game? I mean, how is this going to affect

something like our professional sports?

Mr. JEFFRESS. As you point out, the injuries in our professional

sports are not related just to ergonomics. There are lots of other

problems in professional sports as well.

I had to address this in North Carolina when I ran a program

down there with some of our minor league teams, when they

showed up as having high rates of injuries, and wondered what

they should do about it.

OSHA wondered what we should do about it. But, in going out

and visiting with the sports teams, we discovered that those people

26

who were suffering the injuries all had contracts, were independent

contractors and not employees, so OSHA had no jurisdiction.

[Laughter.]

Chairwoman KELLY. I have just been told by counsel that NHL

players are, in fact, employees.

Mr. JEFFRESS. We may well have to look at that.

Chairwoman KELLY. And they do have MSDs, and you are going

to affect them. I am not going to be happy if you do something to

the Washington Capitols.

Mr. JEFFRESS. Perhaps we could help them.

Chairwoman KELLY. Bill is talking about the Devils up here, and

there’s a few other teams from New York we like. But, this, again,

is a parameter that I wonder if you have actually thought through

in terms of this rule.

Mr. JEFFRESS. In terms of professional sports teams, as I say, our

general approach to them has been that they are not employees

that we address. To the extent that we get complaints and folks

want help or there are things we can do, we will be happy to provide assistance to anyone who asks for our assistance.

But, in targeting workplaces for inspection and where OSHA focuses our inspection resources, we look at those workplaces with

the highest injury and illness rates. We have focused our inspections on those plants and those businesses where we think we can

make a difference in reducing injuries and illnesses. I think you

would be happy with the way we are focusing our inspections and

reaching those employers with the highest rates, where people are

being hurt and losing time from the job.

Chairwoman KELLY. Somewhere in my background and some of

the schooling I have had, it included some Constitutional law. I

would submit to you that you’ve got to put together a rule that applies to everybody equally, so you cannot exclude my hockey players from your rule.

Mr. JEFFRESS. I haven’t suggested doing that, but I would point

out, Madam Chair, that we have excluded construction and agriculture and maritime. There is good reasons for us to apply rules

as necessary where they are needed.

Chairwoman KELLY. You are going to give them a buy on a compliance with the standard?

Mr. JEFFRESS. No, construction, agriculture, and maritime we

will come back to and look at when we have more information on

those.

Chairwoman KELLY. I am still going back. This is hitting—I

mean, we are going perhaps too far for it. But, the hockey team is

going to have to comply. You put this rule in place. The hockey

team is going to have to comply, and I think that— I am concerned

about your rushing into something that you haven’t got all of the

pieces put together on.

Let me just ask. In another part of your testimony, you mentioned Sysco Foods.

Mr. JEFFRESS. Of Houston. Sysco is a franchise.

Chairwoman KELLY. How large is that group?

Mr. JEFFRESS. Again, it is just a Houston distributor that I was

talking about. It is probably still a relatively large employer with

hundreds of employees.

27

Chairwoman KELLY. So that really doesn’t affect our small business concerns?

Mr. JEFFRESS. The larger businesses keep the records and can

document their cases better, as somebody pointed out. So, a lot of

information we have on costs comes from larger businesses. But, in

terms of the solutions, the solutions are just as effective in small

businesses as they are in larger businesses.

Chairwoman KELLY. Do you have any records on the cost from

small businesses? Do you have any estimates of what it is going

to cost, and can you provide them to this committee?

Mr. JEFFRESS. Yes, in producing our estimates of the costs, we

did stratify by certain sizes of businesses. We did surveys at businesses to ascertain the costs. Much of it is in our economic analysis. We have surveyed over 300 different industries. We can provide you that economic analysis, that kind of information, if you

would like.

[Information may be found in appendix.]

Chairwoman KELLY. On page eight of your testimony, you state

that OSHA allows the hearing participants to question each other

in the hearings that you hold. I think that is really very fair and

probably a very productive exchange. I am wondering if you would

allow the panelists that we have following you to question you.

Mr. JEFFRESS. You always do a very effective job of questioning

me.

We have submitted the OSHA panel to two days of questioning

on this rule, and we were happy to provide that. We then had experts provide it by OSHA on the area of ergonomics. Each of those

experts was subjected to questioning and the public who wanted to

question, including most of the organizations represented in this

room, I suspect, had people there to question the OSHA panel and

the experts provided. So, there has been a fair amount of give and

take in answering by OSHA the questions.

I don’t have the time today to sit down and respond to those

questions, but I assure you that, letter after letter after letter, we

are responding to many of the questions that people have been asking.

Chairwoman KELLY. And you will continue to do that, I hope?

Mr. JEFFRESS. Yes, ma’am, we will.

Chairwoman KELLY. I misspoke before when I said I would hold

the hearing open for five days.

I intend to hold it open, actually, for 14 days, so I want to make

sure people do have a chance, that I have a chance to submit more

questions to you.

Will you have some staff that will stay here, though, to hear

some of these folks?

Mr. JEFFRESS. Yes, there are four people from the Labor Department who will be here to listen to the rest of the panelists.

Chairwoman KELLY. On page ten of your testimony, you state

that ergonomics programs need not cover all jobs in the workplace.

Now, this is one of the things that I find troubling about what

you said. You say nor are all MSDs covered, just those caused by

a core element of an employee’s job. Who decides, because this is

very, very loose language? Who is going to decide these standards?

You don’t have descriptive guidelines for every single job.

28

We keep inventing new jobs, because we are small businesses,

and we are entrepreneurs and we keep coming up with new jobs.

So, you can’t do it that way. So, who is going to decide which MSDs

are going to be covered when an inspector comes in? 1Who is going

to decide that an MSD is, in fact, caused by a core element of the

job?

Mr. JEFFRESS. The employer decides whether it is a covered MSD

or not, and the employer decides is there a core element of this job

that caused this. The employer decides what kind of fix to put in

place to respond to the hazard.

Chairwoman KELLY. I have one last question I am going to ask.

One of the small businessmen who is here today is going to testify

that repeated trauma injuries are down among all industries in the

United States by 24 percent since 1994, without any legislation,

without any regulation.

That has just happened. How do you explain that?

Mr. JEFFRESS. Overall, injuries and illnesses are down by 24 percent.

MSDs are, in fact, down, as well. The last number I saw was 17

percent. But, injuries and illnesses are down overall, and MSDs are

down overall, but MSDs are not going down at any faster rate than

injuries and illnesses all together. They remain a third of all injuries and illnesses and the single biggest cause of injuries and illnesses. There are still 600,000 Americans every year losing time

from the job because of these injuries and illnesses. I am delighted

that the rate, after going up at a 30- or 40-degree angle for eight

or nine years, has, the last three years, started to come down. That

is a sign that things are improving. As I say, injuries and illnesses

over the last six years have been coming down. But, the fact is

there are hundreds of thousands of Americans being hurt.

The fact that there are only 30 percent of American businesses

that have ergonomics programs out there right now suggests to us

that there remains a need for this rule.

Chairwoman KELLY. Thank you very much, Mr. Jeffress. There’s

obviously a lot more questions I will have, but I appreciate very

much your patience with being here as long as you have.

I thank you very much, and I am now going to go to the second

panel.

Mr. JEFFRESS. Let me just ask you to tell Mr. Manzullo we have

got an ergonomist to come to work with him on his dishwashing

problem. Thank you, Madam Chair.

[Pause.]

Chairwoman KELLY. The second panel is made up of five small

business owners who are going to testify about their operations and

how the proposed standard will affect them, what information they

really need, an ergonomic standard to protect their employees.

I am very glad that Mr. Jeffress has some staff here to stay and

listen to the testimony in both the second and the third panel.

With that, we are going to begin with Ms. Laura O’Shaughnessy.

Ms. O’Shaughnessy is here on behalf of the Revere Copper Products. Ms. O’Shaughnessy has a very impressive bio, and I am very

happy to have you speak here today. Ms. O’Shaughnessy, if you

would like to begin, please, feel free to do so.

29

STATEMENT OF MS. LAURA O’SHAUGHNESSY, REVERE

COPPER PRODUCTS

Ms. O’SHAUGHNESSY. Thank you for inviting me to speak here on

behalf of small businesses, particularly for Revere and the National

Association of Manufacturers. The National Association represents

14,000 manufacturers, of which more than 10,000 are small businesses. Small manufacturers specifically are affected by this, as we

have been discussing this morning.

I would like to illustrate three specific points of the difficulties

of compliance with this rule—Number one, how ambiguous the

kind of standard is—the proposed standard; Number two, the relative newness of the ergonomics profession; and Number three,

how the two of these affect small businesses, in general, and Revere in particular.

Safety—Just to give you a little background on me and why I

have the place to speak as I do—has been the main focus of my

professional career and my academic career. I have a Master’s in

Engineering based on human factors engineering and consider myself a safety advocate and ergonomist. I could have at one point

been working with Mr. Jeffress and OSHA, and I considered that.

But, instead of doing that, I found that I had the skills to take

the theory and put it into practice and, by doing so, apply those

principles of ergonomics and safety into an effective manner in protecting the worker and consumers. I have done that through various companies and now through my work at Revere as a corporate

secretary and a board member. I am able to do it there, and I also

volunteer for child safety, and I am a mother. So, I am very interested in safety and ergonomics all over.

I am not an opponent of standards and regulations. Not at all.

I work to write them. I have worked to improve them. I have been

in charge of enforcing them at different companies, and I think

they do have a place. However, all of the standards with which I

have worked have one thing in common. They are based on something that is measurable, something that is empirical, some research.

I remember, back when I was in graduate school, I was working—I think it was H.R. 3160 then. That has been over ten years

ago. That just illustrates how hard making this regulation has

been, that ten years ago it was still in draft—the proposals.

It is not very different today. We have not come any further on

the ability to measure it.

There are certain risk factors that OSHA asserts, which I agree

with, by the way, having to do with force, repetition, posture, temperature, vibration, rest periods, and so on, which bring up the

ability to assess risk for a musculoskeletal disorder. However, the

difference between MSDs, or ergonomics problems, and other types

of safety issues are the measurements.

I can measure how much is in the air. Mr. Jeffress cited in his

testimony things like benzene and lead and asbestos. Those are

very measurable. The risk factors that we discuss for MSDs are not

necessarily measurable, nor do we have an algorithm that can add

up the variables associated with all these factors to come up with

some kind of risk, some kind of measurement of the injury, or any

30

kind of costs we have discussed so many times, especially with your

particular case with construction.

How do I know where the injury came from? You don’t, and that

is a great problem with this regulation. It is a great problem with

all safety injuries. You really don’t have a way. If you can’t determine the cause, how can you eliminate that cause? That is one of

the bigger problems I have with this regulation.

There is one thing, I think, that OSHA is definitely clear on, and

we all agree on. We want to protect our workers, and that can be

a problem. I found, just in an industry publication—an ergonomics,

human factors and ergonomics society journal that just came out

this month, an article entitled Work Organization, Job Stress, and

Work-Related Musculoskeletal Disorders. Hmmm. It turns out that

these three authors have come to believe that stress is the primary

cause of the symptoms associated with many upper extremity

work-related musculoskeletal disorders. Others disagree. They say

that in their very first paragraph.

Now, the interesting thing I would point out besides the disagreement in the very first paragraph is that this article was submitted in 1993 and has been rewritten three times, and just approved in 1999 to be published in 2000. If it takes that long for experts to come up with facts, and still the first fact that they assert

is that there’s disagreement, we are in trouble.

Back to the proposed standard. This proposed standard leaves an

excess of an open-ended burden on the employer not only to identify any potential hazard and the cause, but to remedy this and

create an effective program.

Unfortunately, what the standard does not do is supply any clear

program guidelines or any solutions. Employers are left guessing

what OSHA wants them to do, where they should apply any fixes,

and which jobs should be addressed.

This leaves us on the losing end of the musculoskeletal disorder

battle. Ergonomics is a real puzzle, and I think it has been for a

long time.

There is a need for a regulation, but I think it needs a lot more

work, and specifically it needs some work as far as addressing the

risks and what the measurement is going to be and how to develop

a program. A more appropriate arena in which to spend funds and

allocate resources to address this problem is defining quantifiable

methods and a clear process, as I say.

The proposed standard is not without merit, however. An ideal

standard must do two things. Most importantly, it must outline a

clear, effective program and elements which, although Mr. Jeffress

listed six things, the existing OSHA standards list almost exactly

those same things. We don’t have any changes in the proposed

standard—the elements. It does not tell us how to apply them and

apply them effectively. Many companies have effective programs for

safety as it is and apply those to ergonomic issues. Why add another standard just to increase the levels of ambiguity and create

a preferential class of injuries?

Further, this current proposal does not provide a manner to create and manage a successful in-house ergonomics program. Instead, this standard is going to require employers like Revere Copper Products—as higher, costly consultants make changes—to

31

make a program that might be a fly-by-night, empty, flashy program just in order to meet what their version of the standard is— which may not meet what OSHA’s auditors believe the standard to

be.

Chairwoman KELLY. Ms. O’Shaughnessy, I am sorry, but I am

going to impose the five-minute rule on the panels, and, if you can

summarize, it would be helpful.

Ms. O’SHAUGHNESSY. Certainly. To summarize, my three points

were the problems with the standard are the ambiguity—current

level of ambiguity—the newness, and the naivete of the ergonomics

profession in general—the two of these impacting small businesses

which do not have the resources to understand the regulation and

apply them effectively to meet the standard and not the imposed

fines. Those are my three points. Misspent time as well as resources and increased paperwork will limit the ability of companies

such as Revere to successfully reduce these risks.

Chairwoman KELLY. Would you like to insert the cited material

into the record?

Ms. O’SHAUGHNESSY. I don’t think that is necessary. However, I

would like to insert one change to my statement, if I may.

Chairwoman KELLY. We can do that. That is fine.

Ms. O’SHAUGHNESSY. I think it is very appropriate right now.

It has to do with our mission statement at Revere. I put in a

shortened mission statement in the interest of reduced paperwork,

if you will. But, I would like to tell you our mission statement is

to be the best in the world at what we do and have fun doing it.

This means using to the fullest extent the talent of all Revere people working as a team in a safe—that is our most important—environmentally sound and ethical manner to achieve absolute customer satisfaction through superior quality and reliability.

Thank you.

[Ms. O’Shaughnessy’s statement may be found in appendix.]

Chairwoman KELLY. Ms. O’Shaughnessy, we thank you very

much. Just so you know, the boxes on the table are there because

they have lights on them. They will be green. When they flip up

to an orange, that means you have one more minute, and, when

they go red, that is the end of five minutes. So, for the rest of you,

I really would like to try to keep within the five-minute rule. The

hearing is long anyway, and I am just trying to move it on. Next,

I would like to go to Brian Landon. Mr. Landon is the owner of

Landon’s Car Wash and Laundry in Canton, Pennsylvania. He is

here for the National Federation of Independent Businesses. We

are really happy to have you here. Thank you for coming.

STATEMENT OF MR. BRIAN LANDON, OWNER, LANDON’S CAR

WASH AND LAUNDRY, CANTON, PENNSYLVANIA

Mr. LANDON. Good afternoon, Madam Chair. Well, as you mentioned, my name is Brian Landon. I am owner and operator of

Landon’s Car Wash and Laundry in Canton, Pennsylvania. Besides

the services part of my business, my business also includes the remanufacturing, installation, and service of equipment related to

the car wash industry.

I have been a small business owner for almost 25 years. Currently, I have three employees—one full time and two part time.

32

I am a proud member of the National Federation of Independent

Business, as you mentioned. With three employees and gross sales

just over $200,000, I am fairly typical of the 600,000 NFIB members.

It is my pleasure to offer comments on OSHA’s proposed ergonomic standard.

In opening, I would like to say that I have a strong commitment

to my employees’ safety and health. This is a commitment not routed in rules or regulations but in the unique relationships that exist

in a very small business—relationships that come about by working side by side with my employees at the car wash, at the laundry,

in the shop, and in the office, working in an atmosphere where

there are no strict job descriptions and daily tasks are often shared

and traded between myself and my employees.

My employees know that I will provide them with whatever support, be it information, supplies or equipment, that is necessary to

create a safe workplace and to protect their health. I am typical of

many very small businesses whose employees are family and

friends. It is these personal relationships, not rules or regulations,

that drive my concern for their health and safety. I am proud to

say that we have never had an injury, accident, or health hazard

occur at my business. The proposed rule ignores these unique characteristics of very small businesses.

As a three-employee business, I don’t have a safety and health

officer. I cannot assign the task required by the rule to a management team or a manager, or even one of my employees. The full

burden would fall on me. This would have a detrimental effect on

my productivity. It is my productivity on which the success of my

small business and my employees’ jobs depend.

As always, the overall cost of compliance would fall heaviest on

my small business and other small businesses like mine. The rule

does include a recordkeeping exemption for very small businesses.

This exemption, under the guise of helping very small businesses

like mine, is a non-exemption, since no small business owner, when

faced with the threat of an inspector zeroing in on the requirements of this rule, could ignore the necessity of recordkeeping.

Plus, if I were to avail myself of the quick-fix provisions of this

rule, I would lose any recordkeeping exemption, such as it is.

I am extremely concerned with the regulatory burdens and associated costs that the requirements of the proposed rule would place

on me and my small business—costs that have already begun—

simply in my need to try and understand the proposed ten- or 11-

page rule and accompanying 260 pages of clarification, a task

which OSHA estimates should take one hour and to which I have

already spent over 20 hours. This is just to become familiar with

the rule, a task which is not yet completed.

As a matter of fact, on March 22nd, I testified before the OSHA

Ergonomics Panel. During the question and answer period, the

Panel could not tell me whether the remanufacturing I do at my

business would or would not subject me to the rule. If OSHA is uncertain whether a small business would be covered by the rule, how

should a small business know?

In closing, there are several factors relative to small business

that the proposed rule does not take into account—One, the very

33

unique nature of small businesses and the unique way they provide

for the safety and health of their employees; Two, the risk of musculoskeletal disorders in a small business is extremely low; Three,

the burdens and costs of compliance would fall heaviest on the

smallest of small businesses such as mine without significantly increasing workplace safety.

It seems to me, relative to small business, that the proposed

standard is a solution looking for a problem. Therefore, I strongly

urge the agency to withdraw the ergonomics rule.

Thank you for the opportunity to comment, and, at the appropriate time, I will be happy to answer any questions.

[Mr. Landon’s statement may be found in appendix.]

Chairwoman KELLY. Thank you very much, Mr. Landon. Next we

are going to go to Mr. Kremp.

He is here for the Society of American Florists, and Mr. Kremp,

as a fellow florist, I really empathize with you, and I am glad to

have you here testifying.

STATEMENT OF MR. CHARLES KREMP, SOCIETY OF AMERICAN

FLORISTS

Mr. KREMP. Thank you. Good afternoon. Chairwoman Kelly and

members of the committee, my name is Charles Kremp. I am here

representing the Society of American Florists, which is the national

voice of the floriculture industry that represents, really, all segments of our industry. Most of those members are small, familyowned businesses like my own.

With your permission, what I would like to do is just submit my

written testimony for the record and then just briefly summarize

parts of it here.

Our family has served the Philadelphia area for many years

since 1946. I was in business with my brother and my father until

’81 when I went into business for myself.

Now, along with my wife, I have four sons, who are in the family

flower business. We currently employ 43 full-time employees and

43 part-time employees in six flower shops and one small greenhouse in the Philadelphia area.

OSHA’s ergonomics proposal, I believe, does nothing to instruct

me on how to specifically protect my employees from MSDs in the

workplace. I have a strong commitment to a safe workplace. Our

family works in the trenches. We know how the jobs are done. We

work side by side with our employees.

I believe our record demonstrates how we protect our employees.

I looked at our workers’ compensation claims report over the last

several years and found that, when we take out automobile accidents, there were only nine injuries. Four of them required compensation, and only one was related to an MSD. The other five injuries were mostly slips and trips.

We have employees who are in their 70’s who have said to us

that they can no longer do the jobs that they were hired to do. But,

they are good workers, and we want to keep them, so we found

other places for them, and they are happy and we are happy.

One of my immediate concerns with OSHA’s proposal is the time

and cost for me to understand and implement the program. I, too,

do not employ a safety expert, so this burden would fall upon me,

34

as Brian had mentioned with his firm. I also have spent several

hours trying to understand this document, which is 310 pages long,

where OSHA says that they estimate one hour per business cost.

I must be a very slow learner. Trying to comply with this rule will

divert my time and my attention from pursuing the more proven

efforts to maintain a safe and healthy workplace, and those efforts

are already effective with our people.

OSHA’s proposal covers any employer whose employees work in

manual-handling jobs. These kinds of activities involve many jobs

in a typical retail flower shop. Unlike large employers or employers

with union contracts, each job’s core element is not specifically defined.

The regulation does give some examples of manual-handling jobs.

However, the definition is very vague. Because of these activities

that I just described, I think I would automatically be required to

implement those first three elements of the ergonomics program.

However, we do all of this now—lead, interact with employees,

identify hazards, and all of this without regulations. The problem

is the way we operate now may not satisfy the OSHA inspector, yet

it achieves the goal that is intended.

The first element, the management, leadership, and employee

participation, if I didn’t do this already, I couldn’t succeed. In a

small business, there is no filter to prevent management from

knowing of problems. As already mentioned, I work side by side

with and know each of the employees very well. They are not faceless numbers. Problems of all sorts are discussed. Suggested course

of actions are developed and implemented. The problems are

brought to management’s attention and acted upon immediately,

because we are working together.

The hazard information and reporting element has instructions

that are incredibly broad and vague. I prefer to know absolutely if

and when I am in compliance. OSHA’s goal should be to identify

specific problems with known solutions that are effective and proven, because that is what we do now in our business, and that is

how we stay in business.

The work restriction provision is troubling to me, as are the provisions that mean we have to change our facilities. We don’t control

all of our facilities. We rent space, and we don’t have the control

over those facilities and could not control them if we needed to.

In conclusion, our company is very concerned with safety and the

health of our employees. If OSHA were to set forth an affirmative

rule showing me how I can protect my employees from MSDs in the

workplace, I would most certainly embrace it.

This rule will have a negative impact on our business with no

guaranteed benefits.

I appreciate the opportunity to offer the comments, commend you

for holding this important meeting. If I can answer any questions

later, I would be happy to. Thank you.

[Mr. Kremp’s statement may be found in appendix.]

Chairwoman KELLY. Thank you very much, Mr. Kremp. We are

going to move on now to Mr. Russ. He is Administrator of the Bay

Care Center in New Rochelle, New York, and he is here for the

American Health Care Association.

Thank you, Mr. Russ.

35

STATEMENT OF MR. RUSS, ADMINISTRATOR, BAY CARE

CENTER, NEW ROCHELLE, NEW YORK

Mr. RUSS. Thank you, Madam Chairwoman. Good afternoon,

ranking member Pascrell and members of the Subcommittee.

Just as a casual aside, I bring to you, Madam Chairwoman, the

warmest regards from other health care providers in your home

district. We have always felt that you have been able to champion

that delicate balance between the needs and aspirations of health

care providers, their dedicated workforce as well as the patients we

serve.

I am the Administrator and partner in my family’s business,

Bayberry Care Center, in New Rochelle, New York. Bayberry is a

60-bed, skilled nursing facility employing 50 full-time and 30 parttime professional and nonprofessional staff, most of whom are direct caregivers.

I am here today, as you mentioned, representing the American

Health Care Association, a federation of affiliated associations representing more than 12,000 nonprofit and for-profit nursing facilities, assisted living, residential care, and intermediate care for the

mentally retarded and sub-acute care providers. AHCA’s member

facilities employ more than 1.2 million workers, the majority of

whom are front-line caregivers.

First, I just want to make two broad points. I want to tell you

that the imposition of these regulations would surely result in the

diversion of scarce resources from recruitment and retention of

caregivers in the tightest labor market we have ever experienced.

This would divert our desperately needed resources away from

wages and benefits and towards regulatory compliance, an area

which remains clearly ambiguous—which may sound like an

oxymoron but that is something we have had to wrestle with.

Second, the standard will also create a barrier between patient

and caregiver, and ironically but not surprisingly conflicts with the

Health Care Finance Administration’s own regulations, which is

the primary regulatory agency governing the quality of life of our

patients.

AHCA and its members recognize and emphasize the importance

of employers protecting workers from recurring or exacerbating

pre-existing MSDs. Long-term care employers like myself care

deeply about the health and welfare of our employees. We realize

that the health and well-being of our patients is tied directly to the

health of our caregivers. Indeed, we know that the physical wellbeing of our caregivers is actually essential to the delivery of the

optimal quality of care.

Recognizing that the potential physical challenges associated

with caring for the frail and the elderly, my facility has worked to

reduce injuries to our caregivers for many years. I would like to

share some of those elements of my program with you.

For more than the last two decades, we have used mechanical

lifts. The most commonly known is a Hoya lift. These are used to

elevate and transfer the most physically challenged patients. There

are many types of such lifts on the market, and most operate according to the same basic principle of positioning a resident securely in a seated position on a canvass sling that is cranked and

elevated mechanically. The frame of the device is mounted on

36

wheels enabling the transfer of the patient to a desired location

where the resident is lowered and released. Our caregivers are also

given back braces for use during lifting and transferring, which

most employees use routinely.

I found it somewhat ironic, in listening to Assistant Commissioner Jeffress, who pointed to the facility in Oklahoma and the inordinate success they have had in their voluntary program of compliance. We, too, have had incredible success. In fact, we have

never known or experienced any MSD injuries at all.

It is ironic that, given the track record of the double-digit percentage reduction in these MSDs that he, himself, pointed to, that

we would now have to go into an ergonomic standard when we are

making such incredible progress on the voluntary side with the existing programs. What we need, perhaps, from OSHA is guidance.

What we do not need are new guidelines.

The lift and transfer of patients from bed to a wheelchair, from

the bed to the bathroom, are events that occur repeatedly throughout the day. They are an integral part of the resident’s care and

the safety of the caregiver.

Now, when the resident is admitted to the facility, we are required by Federal regulation to assess that resident and every aspect of their activities of daily living. One of the key things that

we are required to do by Federal and state regulation is to ask

them how they would want to be lifted if that is what they need.

If they prefer to be lifted by caregivers—and most of them do prefer

that, preferring, of course, the intimate and warm contact with another person and not wanting to feel dehumanized by the possibility of being lifted by a mechanical device—we have to adhere

and honor their requests. The regulations of the Health Care Financing Administration are designed to protect residents’ dignity.

If a caregiver were to follow that, they would possibly be in violation of OSHA’s regulations.

More than anything, this paradox illustrates an overall dilemma

that we face in long-term care, which are layers of conflicting regulations promulgated by different Federal agencies which are either

unaware of or indifferent to each other’s mandates. This is where

Federal standards work at cross purposes. HCFA requires caregivers to follow the residents’ requests, but OSHA imposes ergonomic standards favoring mechanical lifts. There is no resolution.

I was asked to tell you whether I believe the current programs for

my facility will grandfather me into OSHA’s ergonomic standard.

The honest answer is I am not really sure.

Chairwoman KELLY. Mr. Russ, I am sorry, but the five minutes

is up. Could you please summarize?

Mr. RUSS. I sure can. To put in simple terms, to equip a 120-bed

facility with moderate or heavy acuity including state-of-the-art

resident-lifting equipment would cost approximately $30,000. Longterm care is in a financially fragile position. It is a simple reality

that business cannot ignore the costs of regulation. With almost ten

percent of all nursing facilities right now in bankruptcy, the desperately needed resources to comply with this ambiguous regulation simply are not there. We are not, like other businesses, able

to raise prices. We are paid for largely by Medicare and Medicaid.

Unless the government is prepared to finance and fund this unVerDate 11-MAY-2000 07:43 Mar 13, 2001 Jkt 069902 PO 00000 Frm 00040 Fmt 6633 Sfmt 6602 E:\HEARINGS\67091.XXX pfrm09 PsN: 67091
37

funded mandate, there is absolutely no way that we are going to

have the resources to do so.

Our first priority is the health and safety and dignity of those

for whom we care, and our providers are committed to that.

[Mr. Russ’ statement may be found in appendix.]

Chairwoman KELLY. Thank you very much. We have been called

for another vote.

We have a few minutes. In that time period, I would like to call

on you, Mr. Saxon.

You are our last witness on this panel, and, if you can manage

to fit this in five minutes, we can get your testimony in and still

get to our vote on time.

Mr. Saxon is President of Conco Systems of Verona, Pennsylvania, and he is here for the National Small Business United. Welcome.

STATEMENT OF MR. EDWARD SAXON, PRESIDENT, CONCO

SYSTEMS, VERONA, PENNSYLVANIA

Mr. SAXON. Thank you very much, Chairwoman Kelly, ranking

member Pascrell, and members of the Subcommittee on Regulatory

Affairs and Paperwork Reduction.

Thank you. My name is Ed Saxon, President and Chief Executive

Officer of Conco Systems, Incorporated, in Verona, Pennsylvania.

My family in Conco Systems employs approximately 80 people in

our efforts to provide condenser-related tools and services to the

fire generation industry. I am also here representing the National

Small Business United, the nation’s oldest small business advocacy

organization, and SMC Business Councils of Pennsylvania.

I respectfully submit this testimony regarding the impact of

OSHA’s ergonomics rulemaking on behalf of the NSBU and SMC.

The promulgation of a mandatory workplace ergonomics standard is a substantial concern to all small businesses. Small business

will be significantly and adversely affected by this standard as it

is currently written. As a small business owner, worker, workplace

safety and health is a vital concern to me, but I do not feel that

the ergonomics proposal as it appears now is the best means of addressing this problem. Thus, I am, as is NSBU and SMC, strenuously opposed to the promulgation of final ergonomics standards in

its current form.

I urge OSHA to take a step back, gather all the relevant information, comments, and research, to re-evaluate the ergonomics proposal. Barring that, I ask the Congress to intervene to protect

small business from an improperly promulgated ergonomics standard.

Let me share a cautionary tale from my own business, Conco

Systems. In October, 1990, Conco hired a part-time employee as a

general laborer and pump mechanic. In November of ’92, this employee began to complain of pain in his right wrist. The pain was

originally diagnosed as a possible slight carpal tunnel syndrome.

Surgery was a possibility. This employee went for further testing,

and it was found that CTS was an incorrect diagnosis. The patient

was sent to a neurologist for further examination.

At that time, November of ’91, this person’s workers’ compensation claim was denied as a result of a diagnosis that the problem

38

was not CTS and could not be traced to any work-related incident.

The patient-employee continued to pursue his claim even after

being laid off as a result of reduced workload. Some years later in

July of ’94, this former employee’s workers’ compensation claim

was approved, granting him medical expenses and back wage benefits to February, ’92, plus penalties and interest, even though he

had left the state and removed himself from the workforce. On January 11th, 1999, the case was closed on appeal reversing the July,

’94 position, claiming that this employee was responsible for restitution, which, of course, never happened. This former employee

made it perfectly clear that he had no intention of returning to

work, either at Conco or anywhere else.

Not only are these injuries hard to diagnose and trace to any

specific incidents, work-related or otherwise, they are often impossible to evaluate in an effective manner. To place the burden on the

small business employer to resolve problems that medical professionals nor workers’ compensation courts cannot determine is not

fair.

If the current proposed ergonomics regulation were in place when

this incident occurred, this single incident would have required

Conco Systems to investigate this pump mechanic’s job and find

ways for him to perform the functions without further aggravating

his injuries, at great expense and time. It clearly would have potentially opened the door to further claims by other Conco Systems

employees, although the so-called claim was shown to be unrelated

to the workplace and the workers’ compensation award reversed by

the courts. Nonetheless, the so-called claim was made and accepted

at one level of the workers’ compensation program. This would likely be significant enough a situation to have triggered the currently

proposed ergonomics standard at Conco.

What this one example illustrates, an example that is, no doubt,

duplicated almost every day across this country in many small

businesses, is the potentially devastating impact that a poorly

thought out ergonomics standard with loose definitions and overly

easy triggers and harsh repercussions can have on honest, productive small businesses like mine. I know that many of my fellow

panelists will go into great detail as I have in the written statement. So, I will leave the detailed critiques and suggestions to my

submitted written testimony.

Let me conclude by stating clearly that, as a representative of

National Small Business United and SMC Business Councils, as a

small business owner, I strongly urge OSHA to reconsider the release of their ergonomics standard without a more complete review.

I also encourage Congress to take the action to stop them if they

do not.

In summary, I really don’t believe OSHA should be in the insurance business providing benefits to injured employees. The standard addresses existing conditions, not only ones caused but aggravation on existing conditions.

None of the testimony of Mr. Jeffress was relevant to small business, and, with regard to Mr. Pascrell’s statement on the pollution

analogy, let me say that there are no longer hardly any small

foundries left in the United States as a result of that program.

Thank you for your time.

39

[Mr. Saxon’s statement may be found in appendix.]

Chairwoman KELLY. Thank you very much, Mr. Saxon. You came

right in right on the dot. That was very impressive.

Mr. SAXON. Us small business guys are efficient and operate well

under pressure.

Chairwoman KELLY. Way to go, Mr. Saxon. We have been called

for a vote.

I am going to take a short ten-minute break. When we come

back, we will go directly to the questions for the panelists. Then,

we will move on to the third panel. Thank you very much.

[Recess.]

Chairwoman KELLY. Thank you very much. I am just going to

continue to go right on here.

I am going to start with my own personal questioning with you,

Ms. O’Shaughnessy. You are evidently an expert in this field, although you don’t want to be called an expert since you say the field

is so young.

But, given your knowledge of the field, you say you couldn’t tell

your employer what constitutes compliance for the proposed standard. What if you went to another job? Can you come up, tell them,

another manufacturer, how to comply with the proposed standard?

Ms. O’SHAUGHNESSY. To clarify that, I believe my statement was

we could figure out how to comply with our interpretation of the

standard. But, that is not necessarily equal to OSHA or the specific

auditor’s perception or interpretation of the standard, and that is

a major issue.

Chairwoman KELLY. I am sorry if I mischaracterized it. That is

exactly what you did say.

Ms. O’SHAUGHNESSY. I think I could at my current employer. I

could help them interpret it and apply it effectively as well as a

new employer.

Chairwoman KELLY. You think you could?

Ms. O’SHAUGHNESSY. I do, because I have a background in it.

I don’t mind being called an expert, because it is a new profession. It is constantly growing and learning and changing. It wasn’t

an insult as much as a fact. I think I could. I have legal advisors.

I have the background—academic and practical background. Not

every small business has that.

I think I would have some difficulty complying with it, and, in

the event of an audit, I would have difficulty working with that

particular auditor and their personality, which comes into play

with the regulation.

If I am going to have difficulty complying with it, 90 percent of

small businesses are going to have difficulty and will not be able

to comply with this.

Chairwoman KELLY. If you were going into, say, Mr. Landon’s

business—now, I shouldn’t say you.

But, suppose someone went into Mr. Landon’s business and

started to just talk with him about compliance, and they didn’t

have your background. What I am driving at here is you stated in

your testimony that there is a large number of charlatans and

snake-oil salesmen that are selling ergonomic advice. I think that

is an important point, and, if you got one of those folks going into

40

Mr. Landon’s business, how can he protect himself from that sort

of thing?

Ms. O’SHAUGHNESSY. It is very difficult, and I think one of the

things we have to caution ourselves with as we go out and find consultants—which small businesses have to do to comply with standards—OSHA’s free consultants are not always available.

We are not necessarily comfortable using them. Many times we

get a consultant with a flashy program that speaks very well to a

group, has very nice graphics and slogans. However, they just have

enough knowledge to be dangerous. Having enough knowledge to

be dangerous and not enough knowledge to be effective can be a

real downfall.

Chairwoman KELLY. Well, Mr. Landon, we caution you then. Get

somebody who has got some real expertise in the field. [Laughter.]

And, obviously, according to Ms. O’Shaughnessy, this is going to

be a little more difficult than one would think.

One of the things that OSHA mentions is that one way to avoid

all of the problem is being able to utilize the so-called quick fix.

How easy would it be in your business, since I know you have large

pieces of machinery, to reconfigure your shop floor to do a quick

fix? Would it be possible to do it at all?

Ms. O’SHAUGHNESSY. It really depends on the level of the hazard.

If we are talking about a broom handle, of course, that would be

easier. If we are talking about moving the entrance of a machine

so what is fed in is at a different height for differently-abled or different-heighted people, that can go into tens of thousands of dollars. Doing something like that is going to be prohibitive under

budgetary constraints, time constraints, business constraints, customer constraints, where we are really going to reap the benefits

of making those changes and not necessarily because of the difficulty of finding the actual cost, and fixing the problem.

Chairwoman KELLY. One of the things that occurred to me when

you talked about someone feeding a machine is that there is usually a fairly big difference between the size of a woman and the

size of a man. If you have a factory that is running, manufacturing

24 hours a day, seven days a week—as plenty of them do—and you

have a man feeding something into a machine, and a woman with

a much smaller stature comes to take over in that job, how easy

will it be for someone to look at this from an ergonomics standpoint

and make sure that either the man or the woman don’t fall into

the MSD problem, if there has been a demonstrated problem at

that machine?

Ms. O’SHAUGHNESSY. How easy would it be to find the problem,

or how easy would it be to fix it? To fix it would probably be very

easy, because you can find all kinds of mechanical and engineering

means to do it.

The cost of those may mean that you cannot do it immediately

or that you remove that employee, which kind of negates our whole

intent of protecting the worker, because we are removing the worker. Finding a feasible fix is not so easy. A lot of these machines are

over 50 years old, if you will—fixed heavy metal, heavy industry

machines, and are not changeable. So, this will bind our hands considerably.

41

Chairwoman KELLY. Thank you. I am going to jump to Mr.

Landon.

Mr. Landon, have any of your employees ever requested a change

in their work environment based on musculoskeletal problems? If

so, how did you handle it?

Mr. LANDON. No, they haven’t, and I need to go into that a little

deeper. I have just one full-time employee whose range of duties

cover the gamut and can change drastically from one day to the

next. But, no, I have not.

Chairwoman KELLY. I am interested, on page two of your testimony, you note that you have already spent 20 hours reading the

proposed standard and the preamble. Congratulations. Have you

read the economic analysis in which OSHA assesses various workplace controls for correcting ergonomic problems? Or, did you simply surrender after trying to wade through the preamble and the

rule?

Mr. LANDON. ‘‘Wade’’ is a good choice of words. I did attempt to

read some of the economic analysis. I have mentioned I am not a

safety expert. I am also not an economist. I have to say that most

of it was Greek to me.

Chairwoman KELLY. This is it. You don’t feel you have a real

grasp of it.

Mr. LANDON. No.

Chairwoman KELLY. As a small businessperson, it is going to

take you hours to try to understand this. Is that what you feel? It

would take any of us in small business probably the same amount

of time.

Mr. LANDON. Absolutely, and, as I mentioned, I have spent a

great amount of time already and have not yet been able to fully

understand the rule and, particularly, even understand whether or

not I am going to initially come under the rule that is not that

clear. I don’t have a clear answer to that yet.

Chairwoman KELLY. I want to go to something that I tentatively

raised with Mr. Jeffress. I am going to follow up in some of my line

of questioning with him.

I want to talk about that with you. As a small businessperson,

you pay workers’ compensation. Who determines—Just for the

record, who determines whether an injury is covered under workers’ compensation?

Mr. LANDON. My experience, since I have not had injuries—I

really have to honestly say I don’t know the answer to that. I

would assume it would be the physician who examined the employee.

Chairwoman KELLY. Who would determine whether the injury

triggers fixing the job or the worker restrictions?

Mr. LANDON. As the rule reads, it is the employer’s responsibility. Again, besides not being a safety expert nor an economist,

I am also not a health care professional, so it would be a pretty

tough call for me.

Chairwoman KELLY. So you don’t feel you have the expertise?

Mr. LANDON. No, I don’t.

Chairwoman KELLY. Do you feel this is a pretty heavy load that

is falling on your shoulders?

42

Mr. LANDON. I feel it would be a tremendous burden. I can see

huge portions of my time being taken up trying to comply with the

rule, taking me away from far more productive uses of my time.

Chairwoman KELLY. If the standard is issued, what do you think

it should include to make sure that you could cost-effectively implement it and ensure that you are protecting not only yourself, since

you work with your workers, but your workers, also?

Mr. LANDON. I am not sure I could suggest a modification to the

rule that would fit very small businesses such as mine. To go a little further on that point, one thing I think the rule doesn’t take

into account is the unique characteristics of very small businesses

such as mine and how we currently deal with health and safety

based on these personal relationships that exist in our business.

My employees are, all three of them, either family or very close

friends. These are relationships that don’t exist in larger businesses. OSHA has done nothing to allow for that difference between very small businesses and larger businesses.

Chairwoman KELLY. But you would work with them, I assume,

and you just would automatically protect them and take care of

whatever injury they might experience, and try to work to correct

it on your own.

Mr. LANDON. Absolutely.

Chairwoman KELLY. I am going to just go on to my questions for

Mr. Kremp.

I was really fascinated, Mr. Kremp, when I read your testimony

about the experience you had with the worker with the MSD injury. Do you mind describing that injury that was suffered by your

employee and talk about the time that was missed?

Mr. KREMP. Could you tell me just which injury? I wonder if that

was in my testimony, because we really haven’t had any serious

MSD injuries.

Chairwoman KELLY. I’m sorry. I see where it is. It is here.—Over

the past several years, our problems have been negligible, in fact,

only nine injuries. Only four of the injuries required compensation,

and only one was related to musculoskeletal disorders. Now, that

is from your testimony, actually, sir. That is on page four.

Mr. KREMP. Yes, and I believe that these were—There was a

strain when someone lifted a box. We reported it, but it was not

serious enough for them to feel they needed compensation. The way

that this was handled was that our employee reported to my son

that he had strained his back lifting this box and he didn’t need

to go to the doctor. We said. Take it easy and see how this works.

We reported it, as we have to with any injuries on the job. Within

a couple of days, he felt better. He worked for us for several years

and has since that point. So, he was accommodated in that we told

him to take it easy and don’t do any lifting and let it get better.

Now, the injury may have been caused by some activity that was

beyond the workplace or it may be that, at that one time, he did

something in a manner in which he should not have. But, it was

a minor injury that repaired itself in the normal course of healing.

We accommodated it. We accommodated it in the normal way that

we do business.

A similar situation happened with another employee, where they

twisted an ankle when they were setting up a display. We did the

43

same thing—allowed him to have activities at work that would not

make this position more severe.

We have had situations where the workers themselves would

help each other. For instance, we have an elderly gentleman who

was not able to lift large boxes—and they are not that large. A

woman that works for us helped him. I remember seeing this so

clearly—helped him carry them in.

So, I think that the situation is such in a business where no one

wants pain. A businessperson doesn’t want pain for their employees. They don’t want it for themselves, and the procedures are in

place to prevent pain, and those procedures start out with common

sense.

Chairwoman KELLY. Mr. Kremp, having some familiarity with

the florist business, I am very interested in asking you this next

question, which is how easy is it for you to find floral designers?

And, no, I am not yet applying for a job.

Mr. KREMP. Open for a draft. I understand you are off next week

or Easter week.

Chairwoman KELLY. I am pretty fast, Mr. Kremp. I have learned.

Mr. KREMP. You wouldn’t have to twist my arm. In most small

businesses now, especially with the fact that it is a tight labor market, we are able to attract employees because we are able to provide them with a job they like to do. So, we have a lot of people

to come to us to be floral designers, because that is really what

they want to do.

Now, when they come to us and that is what they want to do,

it is unrealistic to think that, if they have some kind of an injury,

that we are going to say. Okay, now you are going to be a truck

driver, or you are going to work in the greenhouse. There are very

specific tasks that people like to do, and so that is another part of

this provision that really doesn’t reflect reality. Reality should be

in being able to give to workers the jobs that they like to do.

Chairwoman KELLY. How easy is it to find a floral designer on

a temporary basis?

Mr. KREMP. It is next to impossible. For us to have floral designers, we have to start when they have people come in to do odd

tasks and then train them over years so that we will have them.

We hire people now to wrap and to do trimming of plants so that

we can train them over years, so that, maybe in two years, we will

have a floral designer.

Chairwoman KELLY. What happens if one of your floral designers

goes out? How do you cover that right now?

Mr. KREMP. That person who is trimming plants becomes a floral

designer much more quickly. We all just have to fill in, and a lot

of it, quite honestly, is with the management, as I said earlier. My

four sons, one daughter-in-law, my wife, and myself are in this

business, and there is nothing in the business that we don’t do ourselves, and so we have to fill in on those jobs.

Chairwoman KELLY. Would this law make any difference in the

way you handle your employees and the way you are able to handle

these situations?

Mr. KREMP. It would make such a difference that it would completely change the way that we do business. I am in a unique position that I have four sons that can share the load of these manageVerDate 11-MAY-2000 07:43 Mar 13, 2001 Jkt 069902 PO 00000 Frm 00047 Fmt 6633 Sfmt 6602 E:\HEARINGS\67091.XXX pfrm09 PsN: 67091
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ment tasks. I am representing— As I said, there’s 16,000 retail florists in the Society of American Florists. Most of those companies,

there’s one owner and a couple of employees. What would discourage these people—other people from going into business is that, instead of being a florist, they are going to have to be a safety expert

and a bureaucrat and going on doing things that are not close to

the business.

The situation in small business today is such that these problems

are being taken care of because of what was said earlier. We care

about the people we work with, and what is being put upon us now

are tasks that many would not like to do and will discourage people

from going into business.

Chairwoman KELLY. Thank you, Mr. Kremp. I am going to go to

Mr. Pascrell to ask questions of this panel.

I thank you all very much. Mr. Russ, I am going to ask you a

couple of questions in a few minutes.

Mr. PASCRELL. Thank you, Madam Chairlady. First, I think we

need to clear up, once and for all, that there is nothing in the regulations that says that any company has to hire a safety officer.

Some of you have referred to safety officers in your testimony, and

some of you have said—Two of you have said that you may have

to go out and hire a safety officer because you feel that the rule

is complicated or ambiguous. Somebody used that word. But, there

is nothing in the rule which in any manner, shape, or form can be

construed to mean that you are mandated to hire a public safety

officer.

Now, look, I am an easy person to get along with through the

Chair. Very easy. But, you know, you cannot have selective memory and stack the deck without looking at the entire regulation.

You don’t want to do that, because I am trying to be very objective and very open-minded. But, I am telling you now, if there is

or there has not been any MSD at your workplace, you will not be

affected by this OSHA standard rule. Call it whatever you want.

And, I am going to repeat that again.

I am going to ask each and every one of you, and I want you to

answer for the record, please, through the Chair, do you have, Mr.

Landon, an MSD complaint at your workplace—any of the five that

you have—four or five places, locations? Yes or no.

Mr. LANDON. The answer to that question is no.

Mr. PASCRELL. Mr. Russ, do you have, at any of your places—and

you are including the whole Association, or just where you work in

New Rochelle, New York—do you have any complaints against the

company—the corporation?

Mr. RUSS. Against my facility? I don’t have any formal complaints right now.

However, I have had people complain about——

Mr. PASCRELL. The weather and things like that?

Mr. RUSS. About things that might, under this standard, be construed as MSDs.

Mr. PASCRELL. But you haven’t had a complaint as such?

Mr. RUSS. No, and I can expect that I would.

Mr. PASCRELL. Excuse me, what does that mean, you could expect that you would?

45

If this rule—If it were going into effect tomorrow morning, you

could expect the complaint pretty soon afterwards?

Mr. RUSS. I would think so, absolutely.

Mr. PASCRELL. Explain that.

Mr. RUSS. Because we have people doing manual things, doing

lifting, they will often complain. I think my back hurts. If there is

an opportunity for such remedies as work protection, which is to

possibly collect 90 percent of your salary while not working, for up

to six months, I can assure you that many of our employees could

theoretically, and possibly very well expectedly, take advantage of

that.

Mr. PASCRELL. Mr. Russ, the answer to the question, therefore,

is no. For you to imply or for me to imply that, because a rule or

a standard goes into effect, that everybody is going is jump on the

gravy train, to me, is part of the problem for us to clearly see

through the fog at the objective that we all want.

Mr. RUSS. With all due respect—— Mr. PASCRELL. Excuse me. To protect the workers. You said that

yourself. Isn’t that your objective?

Mr. RUSS. Absolutely.

Mr. PASCRELL. Then we are on the same thing.

Mr. RUSS. That is particularly why we state that we don’t need

this rule to protect the workers.

Mr. PASCRELL. It doesn’t even apply to you so far.

Mr. RUSS. But it could well.

Mr. PASCRELL. Mr. Saxon, have you had any MSD complaints at

your workplace?

Mr. SAXON. Yes.

Mr. PASCRELL. Would you just briefly—— Mr. SAXON. The one that I detailed, and we have occasionally a

sore back problem.

Mr. PASCRELL. So you would have to—Let’s say, if this rule was

in effect, you would have to put some plan into operation to indicate that you would prevent this from happening in the future as

it is now? As the rule stands now or as a proposal.

Mr. SAXON. Sure.

Mr. PASCRELL. Let me ask you a question. When the complaint

was made to you or to your corporation—your company—did you

think about putting something into effect or finding ways that

maybe we could alleviate the conditions that produced the pain, or

whatever? Or the injury? Did you think about that?

Mr. SAXON. Not with regard to the case that I detailed in here,

because the perusal of the job and the review of the job, and our

knowledge of the job, was that that didn’t cause that injury. We did

put into consideration alternative workload for that individual. Before that guy, and since that guy, nobody having that job has ever

had the complaint.

Mr. PASCRELL. Thank you very much for your honesty, Mr.

Saxon.

Now, next, Mr. Kremp, do you have any MSD complaints in any

of your shops?

Mr. KREMP. Yes.

Mr. PASCRELL. You explained before, basically, one of the situations and what happened.

46

Mr. KREMP. Yes, and I am sure that, over the course of many,

many years, there have been other times when someone has pulled

something or turned in a funny way so that they have had what

would be described as this. I have been in the business for 40

years, and I know, over that time, I have had that happen to me.

So, yes, that has happened.

Mr. PASCRELL. OSHA, Mr. Kremp—and correct me if I am

wrong, Madam Chairlady—OSHA does not instruct anybody how to

protect the workers in the workplace. They can give you information, but they do not instruct, so there is really no mandate except

if there is a complaint made against your business or my business.

Then, they are asking you to put a plan together that would try

to avoid this in the future. What is so demonic about that?

Mr. KREMP. I think that is a stronger term than I would use. I

think that it is impractical, and the reason is that, as I read

through the proposal, I found out that I am not really qualified to

make some of the recommendations, in which case I would need to

have the expert come in in order to come up with a solution that

would satisfy the needs of OSHA. So, that is why I think it takes

it from where we do things as we now do them, which is react to

an individual where there is a problem and say. You know, you

shouldn’t be lifting that.

Mr. PASCRELL. I would think, Mr. Kremp, that some part of the

standards or some part of the rule needs to be a little bit more

flexible. I would even say that, but we are not talking about if

there is a complaint. We are mostly talking about a proactive plan.

This is my perception. This is my reading of what OSHA is projecting, a proactive plan that will avoid those problems for you in

the future. But, OSHA is not giving you that. They are saying you

will have to come up with it in your own business, which is better

for you, isn’t it, than if they imposed?

Mr. KREMP. It wouldn’t be in certain cases.

Mr. PASCRELL. They are not the experts in the florist business.

Mr. KREMP. But I am not an expert in carpal tunnel syndrome.

Mr. PASCRELL. Nor am I.

Mr. KREMP. That is one area that really concerns me. I would

love to have somebody tell me how to prevent that from happening

to me, because I don’t want that to happen to me.

Mr. PASCRELL. You asked a very legitimate question, and I believe OSHA, from what I have questioned them about before this

meeting, what I have read, what I have heard today, has an obligation to provide to you, as to every other business community, some

help in getting that information.

I believe they have that obligation, and the question that I asked

or was about to ask two persons ago was have any of you used, Mr.

Saxon and Mr. Kremp, the local—the state free programs that are

available in all 50 states and have been available for many years?

I ask that question rhetorically.

Mr. KREMP. I would be happy to answer. We didn’t, because we

had an OSHA inspector come in and made recommendations. We

went through, and we followed all of those, and I think what has

happened over time, because there is such a program, is we are

conscious of hazards, and I think that is fine.

Mr. PASCRELL. I think that is important.

47

Mr. KREMP. But, with this, we need to have a specific course of

action to follow, because it’s areas that we know nothing about.

Mr. PASCRELL. Mr. Kremp, you sound like a very conscientious

businessman. I don’t say that to pander to you. I listen to what you

have to say, but we are not going to win this battle to bring some

sanity to the process of regulation by going to either extreme. What

we need to do is find some common ground that you can live with

that is not going to break the bank. I understand that, but, where

the message is very clear, all employers—not just Mr. Kremp who

is very conscientious—all employers have an obligation to their

workers. Now, I think, within that common ground, we can find

some rules that we can agree with. That is my opinion. I may be

wrong.

Mr. KREMP. I think we agreed right away, and that is to definitively tell us how to take care of the problems which we are faced

with.

Mr. PASCRELL. Thank you, Mr. Kremp. Appreciate that. Now,

Ms. O’Shaughnessy——

Chairwoman KELLY. Will the gentleman yield? I think it is important to put on the record that all manufacturers are required

to implement portions of this rule immediately, whether there is an

MSD or not. I think that is important to put in the record, because

manufacturers, in particular, have been singled out to have to comply with the rule whether there is an MSD or not. They don’t have

to wait. They just have to comply, and there is nothing in the rule

that indicates, even from our talk with Mr. Jeffress, how they do

that, so I think that is important to note.

Mr. PASCRELL. It is very important, but, again, the question of

complaints is at the very axis of this entire regulatory process. No

one is asking anybody to go out and spend money now to put in

all different kinds of apparatus if there’s no complaints.

I don’t see that in the rule. I don’t see that anyplace in the rule.

I do not see where the person who owns a company, who owns a

business, has to spend any money now to predate the problem if

there are no problems.

Now, whether the rule goes into effect with manufacturers at a

different period of time than would ordinarily be, that is another

question. We are not finished with the rule, and, as you heard

OSHA say, they are not finished with the rule.

All I can say is no complaints, no problem. And, let me ask you

that question. Do you have in your business an MSD complaint?

Ms. O’SHAUGHNESSY. We are quite a bit larger than most of my

other panelists. We have almost 500 employees at one location,

and, yes, we have plenty. Thirty-five percent of our injuries are

what you could loosely consider a soft-tissue injury or a musculoskeletal disorder. What that translates to, in 1999, we had over 40

workers’ comp cases and over 20 OSHA recordables.

Keep in mind, for nine years running, we won the Copper Development Association safety award, which meant that we had the

best safety record in the industry. So, we are excellent performers

in the field of safety. We have had huge successes in lowering our

workers’ comp, OSHA recordables, and to tell us that we need to

have a totally new program just for ergonomic injuries that we are

48

treating exactly the same as every other injury—effectively we are

treating that—I think is out of the question.

Mr. PASCRELL. If we duplicated what we already are doing, I

would agree with you. I said that two hours ago, but the question

is the standards by which you are judged, for which your company

got the award, may be inclusive, and may not be. I think you can

understand that, and there may be things that they looked at or

didn’t look at that should be considered.

I am not questioning whether you deserved it or not. That is not

what I am saying at all. What I am saying is, the next panel that

is going to come on, you are going to hear folks that are representing the workers.

I know your answer is not going to be to them, if I may be so

bold to anticipate, that you ought to depend upon the company to

do the best it can and just assume that it is doing the best it can,

because what you are doing is one thing. What all companies are

doing may be another thing altogether.

Ms. O’SHAUGHNESSY. With all due respect, I take offense at you

saying I am not representing my workers, because it is of the utmost priority—the safety of every worker’s safety in my plant and

in my offices. That is where we begin and end.

Mr. PASCRELL. I didn’t say that, nor did I imply that.

Ms. O’SHAUGHNESSY. I represent the workers. I want to protect

their safety, and what we choose to do is involve every single worker in all of our resources in order to treat every hazard, whether

it is for a musculoskeletal disorder or a slip and fall, or a crushing

injury, no matter what, and treat them the same and have our recordkeeping and our hazard analysis, and our abatement issues

treated all the same. We have been effective, and we represent

other manufacturers, I think. I don’t think too many are far different from us.

Mr. PASCRELL. I don’t question what you said one second.

That is not the issue. The issue is can we have a universal rule?

First of all, it doesn’t fit everybody. We know that, but can we

have a universal rule that is somewhat flexible, that can basically

prod the process and make sure that folks are responding to the

employees that work for them.

Let me tell you something. We are not going to get away with

no regulation. It isn’t going to happen, so isn’t it best that we work

together to come up with something that we can live with? Or, do

you want to insist on fighting the fight you cannot win? You can’t

win it. There’s going to be a regulation. Don’t we want to have

input into it? I would think that that is what we want to do.

Ms. O’SHAUGHNESSY. In response to that question, on page eight

and page nine of my testimony, I specifically addressed that question because I think that is an excellent question.

If we are going to have a regulation, I suggest several appropriate areas in which to allocate our funds and our resources, including defining quantifiable methods for assessing the risk and

measuring an injury, and rehabilitation and so on, in addition to

outlining clear and effective program elements which the standard

lacks of right now, and providing the manner to create and manage

a successful in-house program, not putting an excessive burden of

consultants, and so on, on us as an employer.

49

Mr. PASCRELL. On page five of your testimony, you state that

OSHA’s WRP provision will increase the number of fraudulent

workplace injury claims.

That is on page five of your testimony. Are you with me?

Ms. O’SHAUGHNESSY. You might be talking about a different—— Mr. PASCRELL. In the last paragraph.

Ms. O’SHAUGHNESSY. Not to mention an increase in fraud? Yes.

Mr. PASCRELL. Okay, that is what you say.

Ms. O’SHAUGHNESSY. I am with you now.

Mr. PASCRELL. You say that it will increase the number of fraudulent workplace injury claims.

That is a pretty broad statement, Madam Chairlady. We don’t

know what those workers are going to do.

Ms. O’SHAUGHNESSY. We do.

Mr. PASCRELL. Oh, you do. Let me finish the question, if I may.

On what evidence do you base this statement?

Ms. O’SHAUGHNESSY. Past history.

Mr. PASCRELL. Tell us about it.

Ms. O’SHAUGHNESSY. I have worked at many companies, from

looking at animal caretakers in genetics testing facilities to wireand cable-making to consumer products manufacturing. I don’t remember who said it, but knowledge of a class of injuries increases

the occurrence. Did you ever hear of carpal tunnel before ten, 20

years ago?

You can’t tell me it didn’t exist at the turn of the century in

much greater percentages and much greater numbers than we have

now. However, we didn’t have any instances of carpal tunnel until

we had the name of it and the knowledge of it.

The same thing is going to happen, and it will create a greater

knowledge of the injury. Therefore, as I state also on page five,

OSHA’s plan will give 90 percent to 100 percent of pay to workers

who claim musculoskeletal injuries.

Mr. PASCRELL. This is a very good part of this testimony.

I find it very fascinating and interesting, because—I’m sorry, I

thought you were done.

Ms. O’SHAUGHNESSY. No, I wasn’t. In New York state currently,

workers’ comp cases are approximately two-thirds. It is not that

difficult to diagnose any type of injury as musculoskeletal injury

and, therefore, get 90 to 100 percent of your pay as opposed to twothirds of your pay for a simple workers’ comp. Now I am finished.

Mr. PASCRELL. Thank you. I think we have a serious problem

here. I’ll be very honest with you, because the many industries that

I have reviewed, where there is repetitive activity and where there

is a major problem, I am not concerned about what it is called, I

am not concerned about the nomenclature, I am concerned about

whether there was injury or pain.

What you call it is secondary and that it was caused by work.

People simply assume that this was part of the job. Now, we have

grown. The state of the art has grown. What we accepted 20 years

ago we don’t accept now. Your job, my job, we try to make things

a little bit more easy in an imperfect world. Couldn’t I just as easily say that OSHA’s WRP provision will increase the number of employers who will discourage their employees from reporting workplace injuries? Couldn’t that be the case, also?

50

Ms. O’SHAUGHNESSY. It could, but there is an increase in fines

and ramifications against employers for not reporting if they are

found out during an OSHA audit or a walk-through or a free

consultancy visit, and so on.

Mr. PASCRELL. It works both ways is my point, okay? That is

why we must work together to come up with a rule that we can

live with. We can’t fight it and think that it is going to go away.

Then, we won’t have to worry about these repetitive injuries.

Chairwoman KELLY. If the gentleman will yield, I don’t think

these people are really feeling as though they are fighting the rule.

What they are trying to do is trying to have some input so that this

rulemaking mechanism works for them to help them protect their

workers. I don’t mean to disagree with you, my friend, but I do

think that the whole point of this hearing is to let them have a

voice in this rulemaking process, which they might not otherwise

have had.

Mr. PASCRELL. Madam Chairlady, let us disagree then. It doesn’t

in any manner, shape, or form decrease my respect and my admiration for you. But, that is not what I heard from three of those testifying today. They don’t want the rule. You ask them. Thank you.

Chairwoman KELLY. Thank you very much, Mr. Pascrell. Being

a small businessperson, having had a couple of small businesses

and having my family in it, I do understand, Mr. Kremp, Mr. Russ,

Mr. Landon. I know that you are there working on the floor with

your workers.

Anything that comes out of this rulemaking process is going to

help you protect yourselves, because you are very intimately involved in doing the business that you are in. I think, Mr. Pascrell,

that that is really the point of what, at least, I am trying to understand here—is how we can help these folks protect themselves and

their workers at the same time without having a rule that is so

large in scope that it undercuts their bottom line, undercuts their

ability to do what they need to do in order to stay in business.

But, more importantly, it doesn’t allow them to protect themselves without having to go through a great many steps that might

not be necessary for these people. They need something, but they

need something that addresses their concerns as small

businesspeople—really small businesspeople.

Many of the examples that we have heard today come from large

businesses, not small. It is important that we stay focused on the

small business.

That takes me to you, Mr. Russ, because I did have one question

I wanted to ask you.

OSHA assumes that businesses are going to be able to pass along

the increased costs of any proposed standards onto their customers.

That may be true for an ordinary industry, but aren’t the rates

that you receive for patient care in your business set by the Health

Care Financing Administration and the states?

Mr. RUSS. Yes, they are.

Chairwoman KELLY. So your ability to pass along any of these

costs is simply blocked off by another agency.

Mr. RUSS. Absolutely, unless there were some concurrence on the

part of other Federal agencies, namely, the Health Care Financing

Administration, which would independently recognize this as a disVerDate 11-MAY-2000 07:43 Mar 13, 2001 Jkt 069902 PO 00000 Frm 00054 Fmt 6633 Sfmt 6602 E:\HEARINGS\67091.XXX pfrm09 PsN: 67091
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tinct cost and then add it to the rates at which they pay us. There

would be no other mechanism to absorb these costs. Only a very

small fraction of patients in nursing facilities today pay their own

way. There’s a variety of reasons for that, but primarily because

Medicare—and primarily Medicaid—are the primary payers. That

is the system we have to live with. This unfunded mandate provides no mechanism for any kind of recognition of the costs that

we are likely to incur.

As a result of this—and, you know, it would be presumptuous to

assume that not every facility would be affected by this, because,

even as a protective measure, in order to potentially avoid claims,

we would have to purchase the number of lifts, as I described to

you, that would not only conflict with existing regulations—because

HCFA precludes us from using it on patients who don’t want

them—but it opens up the possibility that we would have to make

an enormous capital investment and would probably be in violation

of other OSHA regulations, from a practical standpoint.

Sometimes we don’t see the forest for the trees. If you were to

actually mandate that every patient should be lifted with a mechanical device, there would have to be, literally, probably one of

these monstrous entities for possibly five or six patients. Each one

of these devices is an enormous entity. We have no place to even

store these things. If you would put them in the hallways and the

corridors, you would be in violation of life-safety code and other

OSHA regulations. If you were to put them in the patients’ rooms,

you would be in violation of certain OSHA regulations as well as

regulations of the Health Care Financing Administration. No one

has thought out the actual practical implications of having to do

this.

Chairwoman KELLY. Thank you very much, Mr. Russ. I just want

to question one more thing, where, again, it seems to me that you

are caught with agencies controlling things that you have no choice

over. You brought up the instance of mechanical lifts, but aren’t

you mandated by law to offer that choice to patients? They get to

choose whether or not they want to be lifted by personnel in your

institution or they wish to be taken on a mechanical life.

I would also want to point out, having worked in hospitals a

number of years, that there is a certain dehumanizing aspect to

being lifted by a mechanical lift. I don’t care how heavy or light the

patient is. It is rather dehumanizing to the patient to have a mechanical lift being used on them. It also is not necessarily the best

way, but aren’t you caught by that?

Mr. RUSS. Absolutely. Not only is it dehumanizing, most patients

are fearful of being lifted by anything—I mean, the whole point of

all the HCFA regulations that we have encountered over the last

ten to 15 years has been to enhance the quality of life of residents

and the patients we serve. That is all generated through education

and increased bonding and closer relationships with the caregivers.

This creates a barrier between the caregivers and the residents.

From a practical standpoint, any good, caring facility lifts and

transfers patients not just once a day. It is not just to get the patient out of bed in the morning and into bed at night. We take patients out of the wheelchair at every meal and put them in regular

chairs to enhance their dignity so they don’t have to eat lunch in

52

a wheelchair, who want them to eat in a regular chair like people

who are not handicapped. So, we would have to be using these lifts

in a way five, six, seven, eight, nine times a day. It is practically,

from a practical standpoint, impossible, because there is no way to

situate them in a dining room to that extent.

Chairwoman KELLY. Excuse me, sir, but it is also mandates by

law that you not do that with the patients. Is that correct?

Mr. RUSS. Well, it is not mandated that we do not. We have to

offer the patient a choice. We educate the patients who are competent and those representatives of those patients as to the pros

and cons of a lift, just as we do with other aspects of care. However, if they elect to decline that, we have to honor that request

by law.

Chairwoman KELLY. That is exactly what I was driving at. You

must honor that request by law.

Mr. RUSS. Correct.

Chairwoman KELLY. So you are another one of the businesses

caught between agency rules.

Mr. RUSS. Correct.

Chairwoman KELLY. I thank you very much. At this point, I

thank the panel. You have been extremely patient, and I really appreciate the fact that you came to testify today.

I know that there are many other things that we would like to

ask you, and I am sure there are other things you would like to

say to us, so, again, I am keeping the record open and we will,

hopefully, continue the dialogue. Thank you so much. I am going

to excuse this panel, and we will have the next panel.

[Pause.]

Chairwoman KELLY. I thank you all very much. We have Jennifer Woodbury here from McDermott, Will & Emery, Jackie

Nowell, who is the Director of the OSHA Office for the United Food

and Commercial Workers International Union. We welcome you.

John Cheffer, Chairman of the National Governmental Affairs

Committee, the American Society of Safety Engineers. We have

Frank Mirer, the Director of the Health and Safety Department

from the UAW International Union, and we have Mr. Lawrence

Halprin from Keller & Heckman, Washington, D.C.

I do thank you all very much for your enormous patience. I hope

it has been an interesting experience for you sitting here listening

to these two different panels.

With that said, I am going to begin with you, and I am going to

welcome you back, Jennifer. We are glad to have you here, and we

are glad to have you on that side of the table testifying, so please

go right ahead.

STATEMENT OF MS. JENNIFER WOODBURY, MCDERMOTT,

WILL & EMERY

Ms. WOODBURY. Thank you so much, Chairwoman Kelly. It is my

pleasure to be here. I am Jen Woodbury with the firm of

McDermott, Will & Emery in our Washington office, as part of the

OSHA group.

I am very happy to be here today. I found the hearing illuminating, and, hopefully, what I have to say here today will add

to that.

53

I would like to clarify, first of all, I am testifying on my own behalf as opposed to my firm.

I would like to note—I am going to paraphrase my testimony to

keep it within the five-minute period. But, I would like to request

that my entire statement be entered into the record.

Chairwoman KELLY. Thank you very much.

Ms. WOODBURY. I have been practicing OSHA law for a few years

now. But, when I started, my knowledge was probably equivalent

to what some of the small businesses have to deal with. So, you can

imagine how overwhelmed I was when I learned what I would have

to learn. These are the CFRs for OSHA only. There’s something

like 1200 pages here, and it is pretty intimidating.

I am a lawyer, but, when I started, I didn’t know anything about

it, and so I had to leaf through all this. So, you can imagine what

small businesses have to deal with. It is unbelievable.

So, what I would suggest to you is that any rule that is promulgated here—we are talking about OSHA—has to be clearly objective in nature so that small businesses know exactly what they are

supposed to do in order to prevent injuries. That is the goal, so

small businesses can know what they are supposed to do. It has

to be objective; it has to be measurable; and it has to be understandable. I think what you heard here today is that the rule isn’t

all of those things, and that is what the problem is.

The problem that exists is what OSHA terms and really bolsters

about the rule as being flexible. What flexible means is that small

businesses have their own opportunity to determine what is important for their business.

I believe that is what Congressman Pascrell was going to. A

flexible rule can be very good, because it helps the small

businessperson put into practice things that work for that business.

But, the problem is that flexible can also mean vague and ambiguous.

My testimony goes into several examples, but I would just like

to talk about one very briefly to stay within the five minutes. One

of the key provisions of the OSHA ergonomics proposal is that employers must materially reduce MSD hazards. Well, all of us could

come up with different interpretations of what ‘‘materially’’ means,

so, of course, you want to look to the definition. Unfortunately, the

definition is not going to help us very much, because here is what

it says, ‘‘To materially reduce MSD hazards means to reduce the

duration, frequency, and/or magnitude of exposure to one or more

ergonomic risk factors in a way that is reasonably anticipated to

significantly reduce the likelihood that a covered MSD will occur.’’

Now, I want to be really clear. I think that, if we went around

the room, there is no way that all of us, or maybe even two of us,

could agree on what those three terms—reasonably anticipated,

significantly reduced, or likelihood—mean. I don’t think there is

any way that we could come to one solid, absolute determination

of what those terms mean. We have heard from some pretty respectable small businesses. I bet they couldn’t even all agree, even

as respectable as they are.

But, despite this fact, no matter how reasonable your interpretation is, what this proposal says is: ‘‘my interpretation wins, because

I am the OSHA inspector.’’ That is what the small businessperson

54

is dealing with. It is not that they hate the rule, in many instances,

anyway, or that they don’t want any rule, or that rules don’t work.

It is that they can do their best, and they will still be cited.

I heard Assistant Secretary Jeffress state, ‘‘Well, we’ll have to

rely on the reasonableness of our OSHA inspectors.’’ That doesn’t

make anyone sit very calmly in their chair, knowing,’’Well, I have

no idea, really, what the inspector is going to say, but, boy, I am

sure they’ll be reasonable.’’ That doesn’t work, so I would suggest

that that is a major problem with this proposal.

Another major problem is that the proposal asks the employer to

determine what a ‘‘covered MSD’’ is. In other words, did the injury

occur at work or did it occur in an off-work activity, such as tennisplaying or gardening? We are expecting the employer not only to

make that determination but to know that the employee engages

in such activities. That is a problem, At the OSHA hearing—One

of the attorneys in my OSHA practice group at the firm asked a

Georgetown physician how he would make such a determination,

and, indeed, there was no definitive answer given.

I will close by saying that the most important thing I can get

across is that company ergonomics programs absolutely can work.

They can work when they are well-founded, but, without any objective measures, I would be concerned that this proposal will force

small businesses who have a limited amount of money to spend on

safety to spend that money trying to comply with an ambiguous

and vague rule. That is going to be a problem. I thank you so much

for the opportunity to testify here today and would be happy to answer any questions that you have.

Thank you.

[Ms. Woodbury’s statement may be found in appendix]

Chairwoman KELLY. Thank you very much. Next, we are going

to hear from Jackie Nowell, whom I saw doing a lot of head-shaking out there. So, I hope this has been an interesting experience

for you, Ms. Nowell, but I am looking forward to hearing your testimony.

STATEMENT OF MS. JACQUELINE NOWELL, DIRECTOR, OCCUPATIONAL SAFETY AND HEALTH OFFICE, UFCW INTERNATIONAL UNION

Ms. NOWELL. Thank you very much, Chairwoman Kelly. It has

been a long time since I have been up on the Hill, so, yes, a lot

of head-wagging.

My name is Jackie Nowell. I am the Director of the Occupational

Safety and Health Office at the UFCW International Union.

Five minutes goes very fast. Let me give you a little background.

Then, I would like to actually comment on some of the issues that

were brought up by the last panel.

We do represent 1.2 million workers in the U.S. in retail, food,

meat packing, poultry, food processing, warehousing, health care,

garment and textile, footwear, and chemical industries. Included in

this are over 400 small employers in virtually every state in the

country.

We strongly support OSHA’s proposed ergonomics program. We

have been actively working on this issue for 20 years. We began

educating our members, seeing that there was a lack of programs

55

and fixes out there in our industries. We filed OSHA complaints in

the meat-packing, poultry, and catfish industries. We worked closely with the Department of Labor to develop red-meat guidelines

issued by then Secretary of Labor, Elizabeth Dole. In 1991, we petitioned OSHA for an emergency temporary standard along with 29

other unions. In ’92, Secretary Lynn Martin of the Department of

Labor agreed with the unions’ information supported initiation of

6(B)(5) rulemaking under the OSH Act to address ergonomic hazard. This standard has been ten years in the making, and it is long

overdue.

The UFCW has many programs in our plants with full union

participation that are working to reduce MSDs.

I am going to highlight three points quickly. Mr. Jeffress very

clearly talked about these things being real.

Let me tell you about Carolyn Shebora, who is a cashier at a grocery store in Alexandria, Virginia. She had bilateral carpal tunnel

surgery and is fearful that it is coming back. Her company fought

her workers’ compensation claim for one and a half years. She had

worked for them 27 years. She was devastated by that.

To highlight what was said on the last panel about these conditions having been around forever, there has been an enormous

change in the way we do work in this country. Just two industries—the poultry industry alone, 91 birds a minute, is what they

will allow that line to go. If you think about word processing, secretaries used to do everything in the office, which gave them a lot

of variety of tasks. Now, when you look in an office, you have word

processors dedicated to doing nothing but keying all day long. So,

when we talk about these things are new, they are new, but they

are a result of changes in industry.

Point two—many industries we represent have recognized the

problem for more than 15 years and developed programs. One

meat-packing industry plant, I can tell you, reduced its workers’ comp costs by nearly 60 percent, reduced turnover by 75 percent,

and recouped all of their investment in the first two years of the

program. The numbers of MSD cases were halved, and the number

of surgeries fell 40 percent. 1I could give you other examples and

will be glad to put them in the record.

I was going to talk about the retail industry, because I thought

there were going to be some grocery stores here.

Let me switch to the health-care industry, and I would be happy

to put in the record the research that has been done in nursing

homes on back injuries. Back injuries are their biggest problem.

They come forward all the time and tell you folks that. They have

more lost-time injuries than construction has. The lift-assist equipment that is out there now is no longer mechanical. It is electric,

and, in terms of who do you lift with that equipment, you lift residents who are not able to help the health-care provider—the aide—

do that work. You do not use those lifts on everybody. They don’t

work on somebody who can assist you in the lift.

So, just to get that in the record—There is a lot of information

out there that has been developed by unions, trade groups, and associations that will be tremendously helpful to small business. I

note that, on the table here, the National Association of Convenience Stores has put in their testimony that they have stuff availVerDate 11-MAY-2000 07:43 Mar 13, 2001 Jkt 069902 PO 00000 Frm 00059 Fmt 6633 Sfmt 6602 E:\HEARINGS\67091.XXX pfrm09 PsN: 67091
56

able and they represent all small business. The Food Marketing Institute says that they represent—More than half of who they represent are single-store entities and they have on their Web site lots

of information to help small business.

Workers are being hurt. The examples that Charles gave, that I

just gave, are but examples of hundreds of thousands of workers

in the U.S. who are developing MSDs. I could also have told you

about two more. You can see these workers when you go into your

neighborhood grocery store, for example. They come from small

plants and large plants, union plants and non-union plants. The

point is it doesn’t matter where they worked. They need help.

Chairwoman KELLEY. I am going to have to ask you to sum it

up. The red light is on.

Ms. NOWELL. I will note that others have gone beyond the red

light.

While we note that there are some differences between small and

large businesses, we believe the standard is flexible. It is programmatic rather than specification-based, meaning it is a flexible

set of requirements that small business will be able to adapt to its

establishment. But, if small business believes that OSHA needs to

clarify the rule for them, then they should be informing OSHA of

specific provisions that will assist them.

Thank you for the opportunity to speak with you about this matter.

[Ms. Nowell’s statement may be found in appendix]

Chairwoman KELLEY. Thank you very much. We are next going

to move to Mr. Halprin.

STATEMENT OF MR. LAWRENCE HALPRIN, PARTNER, KELLER

AND HECKMAN

Mr. HALPRIN. Madam Chairwoman, members of the committee,

my name is Lawrence Halprin, a partner in the law firm of Keller

and Heckman.

I appreciate the opportunity to be here today. As you can tell,

there are more issues than we can ever take the time to talk about.

I will try to address some of them. This rulemaking is different

from any prior rule the agency has ever attempted to promulgate.

For prior rules—Mr. Jeffress mentioned lead, for example—Causation of the harm was established. The harm’s are due to exposures—to a lead exposure, which is unique to work. You are not

going to find lead in a typical home. Exposures are measurable.

The agency has established what it considers to be permissible exposure limits, which set safe limits and unsafe limits.

None of that is present in this situation. The agency hasn’t identified the harm in any meaningful way. You’ve got to look at an

OSHA recordkeeping system to figure out what the harm is. It is

not a medical definition. OSHA has come up with a procedure for

saying something is an abnormal condition that in any way was

caused, contributed to, or aggravated to any degree in any way by

work. Once the employer cannot prove that was the case, it ends

up on the log. Then, Mr. Jeffress comes along and says there’s

600,000 of them. It is not terribly meaningful. To give the example

that you talked about today with the worker who came from another job, I asked during the hearings. I asked the OSHA panel

57

whether a standard—this standard—would be triggered by an employee who reported to work with a non-work MSD, then aggravated that injury performing the work he performed for many

years without any problem. The answer from the Associate Solicitor for OSHA, the highest attorney responsible for OSHA matters,

almost verbatim was. Yes, you take the worker as you find them.

I think that is absurd. The same thing would happen if that

worker had been working two jobs and injured in another one. This

agency has absolutely no reasonable limits on the scope of this

rule.

An MSD is defined—my reading of this—so broadly that, if you

have a little muscle discomfort which results in stiffness which limits your ability to touch your toes, which you normally would be

able to do, you have restricted motion under this standard. An employer has then got to determine whether he has got to take the

employee off the job long enough so that they can recover sufficient

flexibility to touch the toes.

There is something wrong with a standard that does that. It is

not based on simply the 600,000 allegedly lost workday cases. It extends beyond them to anything else that, under the OSHA rule, is

considered a recordable musculoskeletal disorder. I should mention

that the rule in place today for recording musculoskeletal disorders

is being substantially expanded and being incorporated into this

rule so that the data will probably actually go up, because now

OSHA is expanding the universe of things that are going to be covered. So, we have got an agency that goes beyond its own

impairmente of health to regulate things that don’t fall into that

category.

We’ve got a situation where they can’t even define what the problem is, in a sense medically, if they use these assumptions and presumptions of work causation. That is what we are dealing with.

Now, back to some of the research.

I realize it is controversial, but OSHA must demonstrate that

there are a significant number of employees who are exposed to

hazards at unsafe levels by properly quantifying the risk. In this

case, we think it is disingenuous for OSHA to say that it has performed a scientifically valid risk assessment in light of what has

transpired in this proceeding. This is not an academic debate. If

the research doesn’t demonstrate that what OSHA proposes is

going to work, whether it is not an effective way of doing it, whether it is going to impose burdens on employers that they shouldn’t

be on employers in the first place, something is terribly wrong.

In this case, OSHA and NIOSH selectively relied on a body of

outdated and inadequate studies. This is based on testimony from

medical experts, obviously.

I am not an expert in medical areas. According to BLS, the MSD

rates, as was previously mentioned, are already declining at a rate

of 24 percent over the four-year period we have talked about.

OSHA projects a 50-percent decline in MSDs from this rule over

ten years. So, actually, OSHA isn’t projecting any better benefits

than seem to be the trend, based on what is happening through

voluntary programs currently in effect.

OSHA excluded from its consideration, as you heard previously,

the entire body of persuasive scientific evidence supported by writVerDate 11-MAY-2000 07:43 Mar 13, 2001 Jkt 069902 PO 00000 Frm 00061 Fmt 6633 Sfmt 6602 E:\HEARINGS\67091.XXX pfrm09 PsN: 67091
58

ten statements and testimony from people I believe to be some of

the world’s most outstanding medical experts, that the vast majority of covered MSDs are not caused simply by workplace exposure,

to bio-mechanical factors. But, there are other considerations involved. Even NIOSH has acknowledged that, within the general

population, non-occupational causes of low-back pain are probably

more common than workplace causes. However, what OSHA would

do would be to have this person come into work, and, if the employer doesn’t catch them—and I will stop here—and stop them

from aggravating the injury, then all of a sudden the injury is aggravated. The standard is triggered.

I could go on, but I am out of time.

I appreciate the opportunity. Thank you.

[Mr. Halprin’s statement may be found in appendix.]

Chairwoman KELLY. Actually, we have a timer up here, so we

know exactly how far everybody does run over.

You didn’t do too badly. Next, we have Dr. Mirer. Dr. Mirer, we

would like to hear from you. Thank you very much for being so patient.

STATEMENT OF DR. FRANK MIRER, DIRECTOR, UAW HEALTH

AND SAFETY DEPARTMENT

Dr. MIRER. Dr. Frank Mirer, Director of UAW Health and Safety

Department. I represent the UAW here today, but I want to start

by telling you that my late father was a small businessman. He ran

a union shop in a business in New York City. I spent many Sunday

afternoons with him helping out getting work ready for Monday.

I want to tell you, from personal experience, there is no reason

why a small business owner or manager can’t do ergonomics, can’t

understand this proposed rule, can’t use our new knowledge to protect and retain employees. Frankly, if the employer associations

would concentrate on technical support and education for their

members, instead of what they are doing, especially here today,

workers and employers would be a lot better off.

Ten years is not rushing into anything. The ten years this has

taken is a long lag, particularly in relation to people being hurt everyday.

That is what is happening out in the world. With due respect to

Ms. O’Shaughnessy, ergonomics is based on biomechanics and

physiology, two quantitative disciplines. Biomechanics uses the

same physics that an engineer would use in designing a building

or an airplane. It is a quantitative method. Two observers will

agree on the biomechanical stress on a body part. They can rank

exposures with great precision. They can rank exposures before

and after modifications of a job.

The simple checklist systems that are being put in place all

through industry are based on those biomechanical and psychophysical model results, which have been validated dozens and hundreds of times over in the scientific literature.

It is not for a lawyer to say that they don’t believe it. The scientific consensus was peer reviewed externally to by NIOSH and

other agencies. It. that was confirmed by the NAS.

There is a continuum of stresses, related to the continuum of

health effects. The science is there. There is no question about it.

59

The second point, is triggering mechanisms. Let’s talk about

what triggers into an ergonomics program. A worker complains of

pain or injury to his employer. The employer selects the health-care

provider to which the employee goes.

The health-care provider determines whether this matter is

work-related or not work-related. The health-care provider keeps

other medical information confidential from the employer, the same

way that the employer’s medical information ought to be kept confidential from the employees. If it is determined to be work-related,

then the employer analyzes the job. If the job does not contain risk

factors for any musculoskeletal disorders, that is the end of it. No

risk factors, no abatement, no other action. Also, the health-care

provider selected by the employers is the one who determines

whether the employee is at increased risk, and gets a restriction.

Now, work removal protection has been in OSHA standards since

1978, when the lead standard went into effect. OSHA determined

then, that medical provisions, where an employer was required to

honor a restriction, also needed to protect the employee. We see no

reason why this standard should be different.

We have heard a lot of complaints about the plain language of

the rule. This rule was reviewed by a SBREFA panel. They made

36 recommendations to OSHA regarding the standards. OSHA responded to each one of them and made changes in the regulatory

text, the explanation, and the economic analysis. This responsiveness is, quite frankly, now being turned against OSHA, because

every complaint we have heard today is about the plain language,

about the flexibility in determining the exposure assessment methodology about permitting management to defer exposure assessment until injuries are there.

Quite frankly, every one of these is a recommendation that industry, especially small business, made to OSHA. They were taken,

and now they are here.

The question of whether everybody has had their say, first of all,

with due respect to the committee, if we were following the OSHA

model, the first thing that would have happened here is we would

be questioning you as to the basis for your position. You would

have to answer those questions on the record. Then, we go to the

rest of the proceeding. It has been grinding on before OSHA in

Washington. I just came back from Chicago. We presented testimony from 14 or 15 local union representatives who are doing

ergonomics successfully in plants, large and small, and offices all

across the country.

The bulk of analysis of risk factors on the job in the auto industry is being done by hourly workers off the floor who have had a

training course in how to analyze risk factors. We have done this

in plants, large and small. It is effective. Their ability to do this

analysis is validated, and, quite frankly, I see no reason why a

manager or an employer or an owner of a small business would not

be able to do everything that our workers off the floor can do.

Thank you very much.

[Dr. Mirer’s statement may be found in appendix.]

Chairwoman KELLY. Thank you, Dr. Mirer. I appreciate your

ending when you did, being brief.

60

Mr. Cheffer, we have yet to hear from you. Thank you for being

so very patient.

STATEMENT OF MR. JOHN CHEFFER, CHAIR, AMERICAN SOCIETY OF SAFETY ENGINEERS NATIONAL GOVERNMENTAL AFFAIRS COMMITTEE

Mr. CHEFFER. Good afternoon, Chairwoman Kelly, members of

the Subcommittee.

My name is John Cheffer, I am a professional engineer, certified

safety professional, and Chair of the American Society of Safety

Engineers National Governmental Affairs Committee. ASSE was

founded in 1911 and currently has almost 33,000 members. It is

the oldest and largest Society of safety professionals in the world.

We are dedicated to the protection of property, people, and the environment on a worldwide basis.

My testimony today focuses on how ASSE views the proposed

ergonomics standard and how it could affect small business. It is

also appropriate to point out that, throughout my professional life,

I have personally worked with hundreds of small businesses on

safety and health issues, including ergonomics.

ASSE wants to be clear on the following point, and that is that

the Society is a supporter of OSHA, as we believe the agency maintains a national focus on the importance of occupational safety and

health, and there is a need for a functional and understandable

ergonomics standard that enables all employers to recognize problems and learn how to solve them. However, ASSE is concerned

that the flaws in the proposed rule, such as the single incident trigger, its interference with established state workers’ compensation

programs, and the rule’s complexity with respect to small business

entity compliance, may result in the rejection of the entire standard.

Therein lies our concern, that the employees who would most

benefit might be harmed. That is the precise reason why ASSE is

the only organization that wrote an alternative proposal for

OSHA’s consideration with respect to small business issues.

With respect to small business issues, a key question involves

the cost and complexity of performing an ergonomic analysis. We

believe OSHA has provided insufficient information to enable any

small business owner or operator to understand the ergonomic

issue and proposed standard or to determine what actions must be

taken in order to identify and correct ergonomic hazards.

ASSE is at a loss to see how a small business employer without

specialized training will be able to use the standard to prevent

work-related musculoskeletal disorders. We suggest the current

proposal is much too complex for the average employer to use as

a tool to address ergonomic issues.

ASSE believes that the agency has underestimated the costs associated in implementing and maintaining compliance with the

standard. The agency gives the perception that ergonomic evaluation and of controls are not that difficult to understand and are inexpensive to implement.

However, ergonomics and cumulative trauma disorders are very

complicated technical issues. Most ergonomic problems cannot be

corrected through low-tech solutions such as having the employee

61

stand on a box or propping up a computer monitor with a phone

book, as ESHA has suggested.

ASSE asked OSHA if it conducted any studies or research on

how many small businesspeople can work in NIOSH lifting formula. The agency does not appear to have adequately studied this

issue. For example, while the NIOSH formula tables and assessments are specifically referenced in the preamble, we do not believe

that the typical small businessperson will be able to learn of this

in the hour of training allotted in the preamble’s cost estimate.

Later in the preamble OSHA acknowledges that more training may

be necessary, depending upon the specifics of the operation, but,

this additional training is apparently not factored into the cost estimates.

ASSE recently completed a survey of our members and other

safety professionals on the issue of consultation. A total of 4500

safety professionals were surveyed. While we readily acknowledged

this is not a scientific evaluation, it does give an excellent snapshot

of the cost considerations. Our data indicates that the average

hourly billing rate for an ergonomic audit or evaluation is approximately $108.00 per hour for each consultant. This is an across-theboard average, and costs would probably be higher on the East or

West Coasts.

The basic problem with cost projections is that there are so many

variables involved in performing a quality ergonomic evaluation,

including the size and nature of the workplace and the workforce.

The time required to conduct an evaluation at a small business involved with material handling or manufacturing would certainly be

more extensive than an audit in an office setting.

The fixes could be much more costly as well. Along with the initial consultant’s visit, there would be cost associated with report

preparation, follow-up consultation, potential revisions to an action

plan, and implementation of the recommendations.

Based upon our data and experience, the OSHA time estimates

in the proposed rule are inaccurate with respect to implementation

of a work-related musculoskeletal disorder prevention program.

With respect to the cost of correcting ergonomic hazards at a small

retail or service business, ASSE cannot give an overall estimate because of the variety of work environments. However, I have personally worked on issues which have run anywhere from $15.00, a

small charge, such as changing table legs, to completely re-engineering a work process which costs thousands of dollars.

Each situation is different. That is the key difficulty with assessing the impact of OSHA’s proposed ergonomics standard. There is

no one-size-fits-all approach to ergonomics, and our core belief is

that it is impossible to provide a one-size-fits-all cost average.

Another issue is whether OSHA could have identified successful

ergonomic intervention controls. In January of 1997, ASSE had an

opportunity to work with OSHA on a very successful conference titled ‘‘Ergonomics, Effective Workplace Practices and Programs.’’

There were approximately a thousand participants representing

both the private and public sector. The conference focused on different approaches to ergonomics. The results were excellent and

would have been useful for OSHA to point to some of these intervention strategies in the proposed rule’s preamble for consideration

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by interested stakeholders. Such examples could show how ergonomic hazards have been effectively and efficiently addressed in

the workplace by employers.

In summary, although ASSE’s overall experience with OSHA has

been very positive and we believe that a standard is needed, OSHA

should not finalize the rule as drafted in the 1999 November proposal. OSHA should find an alternative method for protecting U.S.

workers from work-related ergonomic injuries—— Chairwoman KELLY. Mr. Cheffer, I am going to interrupt here

and ask you to summarize.

Mr. CHEFFER [continuing]. On impacting small business, and I

think that is as good a summary as I can do.

[Mr. Cheffer’s statement may be found in appendix.]

Chairwoman KELLY. Thank you very much. I want to thank all

of the panel.

There’s a couple of things. I think, Ms. Nowell, you pointed out

in your meat-packing case just exactly why it is a good idea that

we have some rule affecting the ergonomics situation, because, obviously, the people who own that meat-packing plant, who found

that they have lowered their injury level and there are workers

who are retaining their jobs, and so on, obviously they were comfortable helping to work with the workers to make sure that they

stayed on the job.

It takes a long time to train a worker, as we heard in the other

panel. You don’t want to lose them, so I think your case was very

well made.

I am glad to hear that, but I want to go—just one thing that Dr.

Mirer brought up. You were talking about the trade associations

being against this and speaking against this proposed rule. Are you

aware that the Office of Advocacy of the U.S. Small Business Administration opposes this rule?

Dr. MIRER. I am not aware of it. I have been talking from our

experience over in the OSHA hearings about all—a third of the

trade associations that have appeared there have said they would

do some technical assistance, do some training, present some information to their members on how to abate ergonomic hazards. I

would guess about two-thirds of the remainder say that all they

have done is essentially repeat the comments that are on the NAM

Web site opposing the standard. So, some of the trade associations

are stepping up to what they ought to do, helping their members

protect their workers, and others are simply playing the regulatory

game.

Chairwoman KELLY. Well, Dr. Mirer, there’s got to be pretty good

reasons why the Office of Advocacy in the Small Business Administration is opposing this rule. I think it would be good if you also

had a look at those, because that may affect what your workers are

involved in.

The other thing is that it points out something that was brought

forth in the second panel. That is, too frequently, people who are

regulated by Washington agencies are caught between agencies.

There’s a rule that says this, and there’s a rule that says that. Nobody knows exactly where they stand, and this is one of the biggest

problems I have in understanding this whole ergonomics thing. I

don’t see how this is going to go through without catching a whole

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lot of people in a swamp of alternate agency rules and regulations.

I don’t see how that is going to happen. This is my grave concern.

It is important that we take care of our workers. Nobody wants

to have them be harmed, but on page 11 of your testimony, you cite

a whole bunch of examples of small businesses that have worked

with the UAW to establish effective ergonomics programs. I want

to know if you could supply the details of those programs to this

committee staff so we could study them, and include them in the

record. This might be very helpful for us. Can you do that?

Dr. MIRER. Certainly. We will provide our training materials.

With all due respect, about the conflicting regulation issue, I believe what Mr. Russ testified to was that, for those employees,

those patients, who did not want to use the mechanical assist, that

the employer would have to come up with an alternative. But, I

was pleased to hear that he did have mechanical lifts. I was

pleased to hear that the estimate of cost of equipping a facility,

which I thought was actually surprisingly low—I was pleased to

hear that, in an industry where 78 percent of the injuries are musculoskeletal, which leads many, many injuries, he was able to get

his rate down to zero. I thought that was maybe the strongest testimony in support of ergonomics we have heard today.

Chairwoman KELLY. Dr. Mirer, he did it without any rule or regulation. He just did it.

Dr. MIRER. But, obviously, if you look at the experience of the industry as a whole, his competition is not doing it at all. In order

to achieve the rate that they are seeing, somebody had to double

the industry rate in order to get to the rates that they have.

Chairwoman KELLY. While you are taking your big stick and

whacking those people, it would be nice if you didn’t take the big

stick to the people who are really willing and able and had conformed and done what they could to try to help their workers. That

is a real concern.

I also wanted to ask you, sir, about the fact that say—and I really applaud you—I think your training program sounds very, very

good. That 40–hour course and all the rest of it sounds really good.

Can you give us an estimate on how much time is involved in addition to that 40–hour course that your people have where they have

had training technique instruction, and they have been evaluated

by the UAW staff and the University of Michigan and the job analyses? How much more time beyond that 40 courses—40-hour course

is involved?

Dr. MIRER. The issue is what degree of sophistication.

Chairwoman KELLY. I am just asking about your course.

Dr. MIRER. I understand that, but, in the car companies where

there are full-time ergonomic analysts, they have had several

courses in addition to that.

In the smaller plants, the 40-hour course or even the shorter

course is sufficient to be able to do the initial assessment of whether jobs have risk factors or not.

A simple checklist can be used at UAW GM. They go to various

computer programs after they have finished with the simple assessment. So, the short of it is you don’t actually need the full 40 hours

in order to be able to do the kind of risk assessments you would

for a dishwasher or a sewing-machine operator. If you were going

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to do very sophisticated analyses of car assembly processes, you

would need more. But, for the kinds of activities that are done in

most small workplaces, you don’t need the 40-hour course to do an

effective ergonomics analysis.

Chairwoman KELLY. I am only asking you about your industry,

the people that the UAW deal with.

It looks like a very good training program. You say you don’t

need the 40-hour course. What would be the average that your

folks would have—would spend if they don’t take that 40-hour

course, and the other related people that you deal with under the

purview of the UAW? What is the average that you would think

that they need or that they are getting?

Dr. MIRER. Probably, for ergonomics committee members that

are going to be doing analysis on an ongoing basis, a sort of—start

with a one-day course.

Chairwoman KELLY. One day, eight hours?

Dr. MIRER. Yes, which enables them to use the basic job checklist.

Chairwoman KELLY. The rule, as I understand it, requires one

hour.

Dr. MIRER. The one hour is for the employer to familiarize himself with the standard and with the three or four job characteristics

that are listed in the standard.

Chairwoman KELLY. Ms. Woodbury, I can see you are shaking

your head. Would you like to respond to that?

Ms. WOODBURY. If you turn your attention to page 66038 of the

preamble, Cost to Train Employees, one hour of employee time per

affected employee is the cost to train employees. This is just from

OSHA’s preamble, that 66038, and two hours of managerial time.

Dr. MIRER. You are talking about a completely different thing.

That is completely different. That is the training for the employee exposed on the job. I was talking about the training for the

person who is analyzing the job in order to measure the risk factors

and devise abatement methods. Those are completely different

things.

Chairwoman KELLY. I am glad we are getting this cleared up. So,

what would you think we should do about training the employees?

Dr. MIRER. An hour is adequate for the exposed employees.

Chairwoman KELLY. But you think at least eight hours, if you

are going to have somebody who is doing the evaluations?

Dr. MIRER. I think the job analysis requires that amount of time.

Chairwoman KELLY. I am just going to go back to a couple of

other questions.

Mr. HALPRIN. Excuse me, Madam Chairwoman. May I ask? As

I understand from Dr. Mirer’s testimony, the UAW has in many

cases negotiated risk factor tables—correct me if I am wrong—with

the employers. So, they are not sitting on a situation where they

have to guess what the numbers are. They’ve got a list of tables.

Either you are above, or you are below. If you are above, you’ve got

a problem under their contract, and, if you are below, you don’t,

which is not necessarily something that OSHA would accept. Probably will in their scenario, but that remains to be seen. But, that

is not the scenario that is available to a small employer. That is

General Motors and Ford and companies like that.

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For them to come out and provide that service is wonderful. If

they would like to expand that to the other millions of small employers in this country, that would be wonderful. But, I don’t think

they have got the resources for that, either.

I am a little concerned about saying it is simplistic. They’ve got

a negotiated number. In a sense, they have made a policy decision

between their companies and their unions about what level of

stress they think is appropriate for a worker to be able to handle,

and they have made that on a negotiated basis.

Chairwoman KELLY. Thank you very much for your input. I appreciate that.

I am going to turn now to Mr. Pascrell. I am coming back to pick

up a couple of questions that I have left, but go ahead, Mr.

Pascrell.

Mr. PASCRELL. Mr. Halprin, do you agree or disagree with the assertion that there is an MSD worker problem in America?

Mr. HALPRIN. I believe there is a limited problem. It is drastically overstated by the agency.

Mr. PASCRELL. I don’t want to put words in your mouth. Is that

the reason why you thought that you questioned the authenticity

of the 600,000 figure?

Mr. HALPRIN. Let me explain. I think you intended to mention

repetitive motions. Repetitive motion cases are about 75,000. The

other 575,000 are single-incident events.

Mr. PASCRELL. So you think that the first number, 75,000—the

75,000 figure—— Mr. HALPRIN. That is a more realistic estimate, a starting point

for this problem. Now, whether those are caused by biomechanical

factors or psychosocial factors, or some combination, that is what

the debate is about.

Mr. PASCRELL. Well, you did say that what the worker brings to

the workplace has a lot to do with this, too.

Mr. HALPRIN. Correct.

Mr. PASCRELL. That isn’t to say that the job itself or the work

entailed on the job precipitated or worsened the situation. I mean,

that is a person- by-person evaluation, isn’t it?

Mr. HALPRIN. I am not sure I understand the question.

Mr. PASCRELL. If there is a problem, regardless of what the number is, we do want to try to be helpful. If we are going to promulgate the rule, we want some results to avoid these problems in the

future. You are not saying, are you, that you don’t think the problem is such or has reached the point where we should have a rule?

Mr. HALPRIN. The problem has not reached a level or been established to a level that would justify a rule of this scope or this reach.

Mr. PASCRELL. What would you suggest?

Mr. HALPRIN. Going back to the science, getting some clear

science. I would respectfully disagree with Dr. Mirer on what the

level of science currently is and what it shows.

For example, there are a fair amount of data that show that employees’ jobs—the physical aspects of the job don’t cause the problem. But, the workers simply hate their job, or they hate their boss,

or they have some other problem in life which compounds and

brings out factors. As a result, they show symptoms for unknown

reasons. Now, there are going to be some highly stressful jobs

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which cause problems. They are limited. This rule does nothing to

try to address and sort them out. It basically goes after everything

and leaves the employer in a situation where it is totally up to an

OSHA compliance officer to decide whether something is covered or

not and whether the employer has done enough.

The agency has come up with—It almost looks like negotiated

bargaining here. They have come up with a proposal which is so

outlandish that I honestly feel the employer community has no

choice but to oppose it. I think that is the general gist of what I

am saying. It is too far out.

Mr. PASCRELL. So you are saying that the rule is too broad?

I want to clear up this one point, though. OSHA is not sending

inspectors business by business to see what they have in place to

prevent certain kinds of injuries. OSHA inspectors only go to a

business where there has been a complaint to see whether there is

a plan to prevent it in the future. Is that correct or incorrect?

Mr. HALPRIN. Partially correct. The other alternative would be to

go to industries with higher than average—For example, lost work

to day injury/illness rates, and, potentially, I don’t know. The agency may consider a program based on somebody’s musculoskeletal

injury rate, which, again, like I said, I believe is inflated and,

therefore, could very easily misguide OSHA compliance officers and

send them to the wrong place.

Mr. PASCRELL. So, basically, when you come right down to this,

there is a basic disagreement between yourself and Dr. Mirer as to

whether or not the science is at the point that we can define what

is a work-related injury within the category that we are talking

about here today.

Mr. HALPRIN. Whether it is work-related, what the cause is, and

if there are other factors, how to sort them out, how it is fair, is

a matter of policy to decide what burdens are appropriate to put

on an employer and which burdens are not.

Mr. PASCRELL. Let’s take a specific industry then that has been

a target or much has been written, much has been discussed—the

poultry industry. Have you yourself taken a look at that industry

to see what are the reasons why there have been so many complaints within that industry?

Mr. HALPRIN. No, I have not.

Mr. PASCRELL. Actually, it is industries such as that that precipitated the research—the ten-year study to get us to where we are

today.

Mr. HALPRIN. Right. Now, that poultry industry, as I understand

it, and some of the meat-packing, still have, although they are improved, the highest rates in the country. This standard would require that they be down to zero. Totally infeasible. That is what

I am talking about, about over-reaching, unrealistic, and basically

giving employers no choice but to say. Forget it.

Mr. PASCRELL. Let’s take that meat-packing and poultry industry. What you are saying is that the rule as proposed at this moment in time, although we are going to see some other changes, we

think, does not meet the task of solving the problem in the first

place.

Mr. HALPRIN. Correct, it is too broad. It doesn’t reach the problem. There are already meat-packing guidelines in effect, which

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OSHA has in effect been enforcing. It is questionable whether this

actual rule would require things that would do anything more than

what is already in place on a voluntary basis.

Mr. PASCRELL. So without studying the industry as such, which

you provided us, there is a problem. We really don’t know what the

extent of the problem is. This rule is not going to solve the problem. We need a much more specific rule to solve that problem for

that industry.

Mr. HALPRIN. No, I did not say that.

Mr. PASCRELL. Then what are you saying?

Mr. HALPRIN. There are some industries with high reported

rates. I can’t tell you what all the reasons are for them. There are

guidelines in place to address that industry. If OSHA were going

to look at it, it would make more sense to look at industries that

don’t already have those guidelines in place and think about developing guidelines for those industries.

Mr. PASCRELL. So, in other words, what we need is a rule that

pertains to poultry and a rule that pertains, maybe, to data entry,

and a rule that pertains to machinists.

Mr. HALPRIN. Given the current state of the science, assuming

those can be justified, yes. The agency does not have data, to the

best of my knowledge—nobody does—that says how many times

you can lift your arm or push it in a certain direction, with how

much force, and how much twisting. That is the basis on which

every one of these other health standards has been based on. The

closest thing you might call to this is probably noise, where there

is noise in the workplace, noise outside the workplace. But, there

is a permissible exposure limit, and the noise has been demonstrated to cause hearing loss.

We just don’t have clear causation here. We don’t have numerical

links. Basically, OSHA is saying. Go out there and guess and experiment, and, if we like what you do, fine. If we don’t, we’ll second-guess you. If you don’t do it right, basically, be prepared for

us to take some enforcement action. At that point, of course, they

will issue a citation and tell you what they think you should have

done, and you’ll be put in the position of trying to defend it. If you

are a small business, you can’t afford to defend the situation, so,

unless it is going to put you out of business, you roll over and do

what OSHA says.

Mr. PASCRELL. OSHA doesn’t want to put anybody out of business. You don’t think that?

Mr. HALPRIN. I don’t think OSHA has enough knowledge to know

when they are going to put somebody out of business. As the Chairwoman mentioned, we can tell pitchers not to throw pitches for

more than three innings. We can ban the curve ball. We can

change the game. We can change the business.

Mr. PASCRELL. But we are becoming jocular here about a serious

problem in the workplace in different places. This is serious business, and I am sure he is reading it seriously, too. It is easier to

measure decibels than it is how many times I can go to the plate,

and we know that. So, you don’t really believe we can find some

general standard that could precipitate what we should be doing in

each of those industries. You believe they should be all taken separately as has been in the past.

68

Mr. HALPRIN. Correct.

Mr. PASCRELL. I don’t totally agree with you, but I just wanted

to clarify some things here. I am not against rule-setting. You believe that the rule that is being proposed will not correct the problem.

So, what you are asking for—— Mr. HALPRIN. It will be grossly inefficient. It is going to be counterproductive. All those things.

Mr. PASCRELL. So what you are suggesting is that it become even

more specific.

Mr. HALPRIN. Provided the science is there to support it, correct,

not just pull numbers out of thin air, which is what the agency

does.

Mr. PASCRELL. Thank you.

Ms. WOODBURY. If I could comment on that. I think what we

would be interested in is, if there is science—Mr. Halprin mentioned the noise rule with a dBA of 90. But, then, they allow the

employer to use feasible means to get there. But, there is an objective getting it down to 90 dBA engineering controls using personal

hearing protection. Here, we don’t have that 90 dBA as a goal. I

use the example of ‘‘materially reduce’’. If we used that same criteria in the noise rule, would ‘‘materially

reduce’’ mean 90, 85, 95, 80? We need an objective goal, so I think

we agree that flexibility is good. But, we need a goal at the end

of the rainbow, or else we are all going to be all over the map and

there’s going to be subjective differences in how the rule is enforced, and that is a big problem.

Mr. PASCRELL. My concern, Madam Chair, about that is that the

more specific we think we can become the more intrusive we become within the business that we are trying to deal with. That is

my concern, and I think it is a clear concern—To me it is. Correct

me if I am wrong. What we might be suggesting is that we want

these rules to be more activity-specific, that the standards be more

activity-specific, and the solution be more activity-specific. Maybe,

to me, that goes too far, having started out in support, generally,

of what OSHA was trying to do. We don’t want to chop ourselves

here, but we do want to understand how we are going to come up

with a rule—OSHA is going to come up with a rule we are going

to have to live with. We cannot have it both ways.

Mr. HALPRIN. I would like to add one point. The logical approach

would be to come up with some guidelines first and try them out

first for a few years, not adopt a rule to include the entire universe

in the U.S. industry.

Mr. PASCRELL. So you would say a pilot program?

Mr. HALPRIN. Makes perfect sense.

Mr. PASCRELL. It goes into effect, say, in January rather—and

see how that works out over two or three years before you become

industry-specific.

Mr. HALPRIN. If industry-specific turned out to make some sense.

Ms. WOODBURY. I would agree that a pilot program—— Mr. PASCRELL. Would the National Association of Manufacturers

support that?

Ms. WOODBURY. I think you would need to ask them, but I think

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essary, if we are saying to employers, well, you have to determine

what a covered MSD is—because we don’t really have the science

in place to establish guidelines to help you do that—then the guidelines make perfect sense. The problem is not whether ergonomics

or injuries are happening. It is how can we make sure that the

money we spend and the things that we put in place are actually

going to cure them.

That is the crux, and that is what guidelines can help do.

Chairwoman KELLY. Thank you very much. Ms. Woodbury, something occurred to me when I was reading your testimony.

Under this proposed rule, the worker who has an injury would

be allowed to be out for six months with full pay or the equivalent

of full pay while they are recovering from this injury. I just wanted

to know if you can tell me what is the average maternity leave. It

is about three months, isn’t it?

Ms. WOODBURY. I have not had the opportunity to have that maternity leave. However—— Chairwoman KELLY. Let me enlighten you. I have.

Ms. WOODBURY. Somewhere around three months.

Chairwoman KELLY. It is about three months, and they don’t

take into account whether or not you have had a caesarian or any

other kind of difficult delivery. It simply is three months. It is interesting to me that, in this rule, they are doubling that amount

of time. Under the Family Leave Act, it is three months. It is interesting to me that, under this rule, they have doubled the amount

of time.

If you have an MSD, I find it very curious that we would need

six months to recover from something that could be considerably

less traumatic than a difficult delivery involving a C-section. I

think that was an interesting—You didn’t bring that out in your

testimony. But, you mentioned the fact that it was a six-month

leave with full pay, and I think that is a very good point to focus

on.

Dr. MIRER. Congresswoman Kelly, could I respond to that,

please?

The situation with medical work removal protection is this. The

employer is selecting the health-care provider. The employer’s

health-care provider determines whether the MSD is work-related

and whether to place a restriction on the employee. It is a choice

of the employers, somebody hired by the employer to do that.

The importance of work removal protection is that, if an employee goes back on an unabated job that has hurt him or her already, we can be virtually certain they will get hurt again. We can

be virtually certain that the job will progress to further disability.

So, the purpose of the duration is really the time it would take to

fix the job that they were on before. But, in any case, this is an

individual decision being made by the employer’s health-care provider that they can’t work the job.

Now, Mr. Kremp described exactly the way we would hope the

process would work. He had an employee who was hurt. They

found him something else to do that he could do. He had employees

that were too old or they said advanced in age to do the tasks that

they were originally doing. He found them something to do. We

think that employers can accommodate this very well.

70

Out of the plant—You are disqualified out of the plant, that is

another factor. In fact, we would like to see the full MRP/MPR

framework that has been there with lead and cadmium and formaldehyde and methylene chloride put back into the rule rather than

what we have there now, but that is the rationale.

Chairwoman KELLY. Dr. Mirer, there is one thing about the cadmium and all the rest of those things that you have listed. They

are fatal. The MSDs are not necessarily fatal, and I think that is

a very important point.

Ms. WOODBURY There is something else that you wanted to say.

I wanted to respond to Dr. Mirer’s comment saying that it is the

health-care professional’s determination whether something is

work-related or not in an injury. That is incorrect. What OSHA

says is that it is the employer’s decision whether something is

work-related. So, the employer, who is not a doctor in most cases,

would have to make a decision whether something is covered,

whether it is work-related. That means that that employer would

have to know what all of the employee’s home activities are, whether he is a gardener or plays tennis, and would then have to make

a determination. Is this related to gardening, or is it related to the

job?

As I mentioned in my statement, one of the attorneys in my

group during the OSHA public hearings asked a Georgetown physician how he would make such a determination. There is no definitive answer, yet OSHA is expecting the employer to make that decision in order to go forward.

I just wanted to clarify. Thank you.

Mr. HALPRIN. Can I add something to that?

Chairwoman KELLY. Yes, Mr. Halprin.

Mr. HALPRIN. Beyond that, because the standard is written to

say does ‘‘cause or contribute.’’ Then, you read the preamble and ‘‘contribute’’ means aggravate. It doesn’t matter whether the gardening might have been the primary factor. The question is did

work in any way aggravate it to any degree.

If the answer is yes, it is covered. Second, although it is the employer’s decision, if the employee doesn’t like the decision, they file

a complaint with OSHA. OSHA comes in to conduct an inspection

to see whether the decision was correct.

I can’t say that is the most efficient way of doing things, but it

is not as though it is the employer’s absolute decision and there is

nothing else that is going to happen if the employee files a complaint. The employer has got to go through an OSHA inspection

about it and try to justify and document why they came to the decision they did. Then, of course, there is the problem that the standard, as written, doesn’t allow the employer to have access to the

information they need to make the decision. That is another issue.

Chairwoman KELLY. I thank you. I think that, obviously, honest

minds can differ on this subject to a certain degree.

But, as Mr. Pascrell points out, we need to come to a thoughtful

decision with this rule. There is a need for more information. There

is a need for thought.

It is only, I believe, by working together, that we are going to

come up with some kind of a decision on this rule that will be

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ers but also will protect the employers, especially those of us who

are small businesspeople who must contend everyday on an individual basis with many rules and regulations that are promulgated

by these agencies.

So often, many of these do conflict. I thank all of you very much

for being here on the panel today. I really thank you for your patience and your willingness to speak forth and to be so strong in

your opinions.

Thank you very much. Hearing is adjourned.

[Whereupon, at 3:15 p.m., Monday, April 14, 2000, the hearing

was adjourned.]

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