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78–951 PDF 2002

S. HRG. 107–422

ONE YEAR LATER: INADEQUATE PROGRESS

ON AMERICA’S LEADING CAUSE

OF WORKPLACE INJURY

HEARING

BEFORE THE

COMMITTEE ON HEALTH, EDUCATION,

LABOR, AND PENSIONS

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

ON

EXAMINING WORKPLACE INJURY ISSUES, FOCUSING ON

MUSCULOSKELETAL DISORDERS (MSDs) AND ERGONOMICS

APRIL 18, 2002

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

(

(II)

COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

EDWARD M. KENNEDY, Massachusetts, Chairman

CHRISTOPHER J. DODD, Connecticut

TOM HARKIN, Iowa

BARBARA A. MIKULSKI, Maryland

JAMES M. JEFFORDS (I), Vermont

JEFF BINGAMAN, New Mexico

PAUL D. WELLSTONE, Minnesota

PATTY MURRAY, Washington

JACK REED, Rhode Island

JOHN EDWARDS, North Carolina

HILLARY RODHAM CLINTON, New York

JUDD GREGG, New Hampshire

BILL FRIST, Tennessee

MICHAEL B. ENZI, Wyoming

TIM HUTCHINSON, Arkansas

JOHN W. WARNER, Virginia

CHRISTOPHER S. BOND, Missouri

PAT ROBERTS, Kansas

SUSAN M. COLLINS, Maine

JEFF SESSIONS, Alabama

MIKE DeWINE, Ohio

J. MICHAEL MYERS, Staff Director and Chief Counsel

TOWNSEND LANGE MCNITT, Minority Staff Director

(III)

CONTENTS

STATEMENTS

THURSDAY, APRIL 18, 2002

Page

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 1

Gregg, Hon. Judd, a U.S. Senator from the State of New Hampshire ................ 2

Wellstone, Hon. Paul D., a U.S. Senator from the State of Minnesota ............... 4

Hutchinson, Hon. Tim, a U.S. Senator from the State of Arkansas ................... 6

Chao, Hon. Elaine, Secretary, U.S. Department of Labor, Washington, D.C.,

accompanied by John Henshaw, Assistant Secretary of Labor for Occupational Safety and Health ..................................................................................... 7

Prepared statement .......................................................................................... 10

Written responses to questions of Senator Enzi ............................................ 12

Written responses to questions of Senator Bingaman ................................... 14

Bond, Hon. Christopher S., a U.S. Senator from the State of Missouri .............. 24

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 31

Dodd, Hon. Christopher J., a U.S. Senator from the State of Connecticut ......... 33

Edwards, Hon. John, a U.S. Senator from the State of North Carolina ............. 36

Nowell, Jackie, Director, Occupational Safety and Health Office, United Food

and Commercial Workers International Union ................................................. 43

Prepared statement .......................................................................................... 46

Written responses to questions of Senator Enzi ............................................ 85

Purvis, Melody, former employee, Brylane, Indianapolis, IN .............................. 85

Prepared statement .......................................................................................... 88

Fontana, Paul, occupational therapist and owner, Fontana Center for Work

Rehabilitation, Lafayette, LA .............................................................................. 96

Prepared statement .......................................................................................... 99

Written responses to questions of Senator Enzi ............................................ 109

ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.: ....................................................

Smith, Gary, Executive Director Independent Business Association ........... 119

National Coalition on Ergonomics .................................................................. 121

(1)

ONE YEAR LATER: INADEQUATE PROGRESS

ON AMERICA’S LEADING CAUSE

OF WORKPLACE INJURY

THURSDAY, APRIL 18, 2002

U.S. SENATE,

COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS,

Washington, D.C.

The Committee met, pursuant to notice, at 10:05 a.m., in room

SD-430, Dirksen Senate Office Building, Hon. Edward M. Kennedy,

[Chairman of the Committee], presiding.

Present: Chairman Kennedy; Senators Dodd, Wellstone, Reed,

Edwards, Clinton, Gregg, Enzi, Hutchinson, Bond, Sessions.

The CHAIRMAN. We will come to order.

We are honored to have the Secretary of Labor with us today on

a subject of enormous importance to workers and workers’ families.

I know that all of us appreciate, Madam Secretary, the time, effort,

and energy that you have spent on this issue. You have had a lot

of contact with all of us on it over a period of time, we have been

looking forward to hearing from you, and we will hear from you in

just a moment. I know you will introduce John Henshaw, the Assistant Secretary, when you are recognized.

I will make a brief opening statement and then turn to Senator

Gregg, the Chairman of the Subcommittee on Children and Families; Senator Wellstone, who has important responsibilities in this

area, will say a word, and hopefully, Senator Enzi will be here as

well to make a comment, and then we will get on with your testimony.

I understand we will have two votes at 11:30, so we are going

to try to make as much progress as we can.

OPENING STATEMENT OF SENATOR KENNEDY

America’s workers have waited for more than a year for a plan

from the Department of Labor to keep them safe on the job from

ergonomic injuries. Two weeks ago, we learned that we will have

to wait even longer for serious action on the Nation’s leading

causes of workplace injuries. During that extended delay by the administration, America’s workers have suffered over 1.8 million

workplace injuries which could have been prevented. The administration’s delay has also cost the economy dearly—nearly $50 billion

according to the National Academy of Sciences due to injury costs

and lost productivity from injured workers unable to do their jobs.

As we will hear today, these injuries have devastated lives and

destroyed careers. Ergonomic injuries account for approximately

2

one-third of all workplace injuries. Women have suffered the most

from the administration’s extended delay. Women make up less

than half of the work force, yet they suffer about two-thirds of all

workplace injuries from carpal tunnel syndrome and tendonitis.

Many of these injuries could have been prevented if this administration had acted as promised. Sadly, the long-awaited plan of action by the administration falls far short of protecting America’s

workers. It is not the ‘‘comprehensive approach to ergonomics’’ promised by the President and the Secretary over a year ago. In

fact, it is really only a plan to come up with a plan.

The administration’s plan is a replay of failed strategies from the

past. They rely on toothless voluntary guidelines that most corporations will simply ignore. In fact, after over a year of delay, the administration still has not identified what industries will be covered

and has not produced a single one of these voluntary guidelines.

Under the administration’s voluntary plan, great emphasis is

placed on the importance of training; yet the President’s budget cuts workplace safety training by $7 million. With these cuts, the

administration is eliminating a long-time successful program for

improving workplace safety for immigrant workers.

This issue has been studied and studied and studied again and

again and again over 10 years. There were three congressionallyfunded studies over 4 years. There is absolutely no doubt that millions of workers suffer from repetitive motion injuries due to their

jobs. Yet the administration’s plan means more study, additional

delay, unenforceable guidelines, and another decade in which little

is done to protect these workers.

We all know that if a million CEOs were injured on the job instead of a million secretaries and cashiers, we would see a very different plan presented to the Committee today.

As the American Public Health Association stated: ‘‘It is very

clear that American workers need a real ergonomic standard, that

there is scientific data supporting a standard, and that Secretary

Chao has chosen to ignore the information favor of big business interests.’’ The administration mistakenly claims that a purely voluntary

approach is best to protect workers. We have already been down

that road. In the first Bush Administration, they recognized the

failure of voluntary guidelines, compliance assistance and enforcement under the general duty clause, and began to develop a nationwide standard 10 years ago. Instead of taking seriously the lessons

of history, the administration is protecting the employers who ignore the safety of their workers, and America’s workers are left to

suffer the consequences. Millions of injured workers have their

lives disrupted and their careers destroyed just for doing their job

well. We owe it to them to do all we can to protect them.

I welcome our witnesses today and look forward to hearing from

them how we can best protect America’s workers on the job.

Senator Gregg.

OPENING STATEMENT OF SENATOR GREGG

Senator GREGG. Thank you, Mr. Chairman.

Traditionally, hearings in this Committee are held for the purpose of receiving facts, developing policy, or learning something

3

about an issue which we may not be fully informed on. But when

I look at the title of this hearing, which is ‘‘Over One Year Later:

Inadequate Progress on America’s Leading Cause of Workplace Injuries,’’ I have to conclude that maybe this hearing comes with a

conclusion versus a purpose. And it is ironic that it does in those

contexts over one year later, because if you look at what has occurred on the issue of ergonomics, you have to appreciate the fact

that this a question of incredible complexity which we have not as

a Government wrestled with very effectively. And I would state

that the prior administration is the best example of that. They spent over 8 years and $10 million to produce regulations

which amounted to 600 pages. I have copies of it right here. This

is the Clinton proposal which they issued in the final hours of the

Clinton Administration—600 pages, 8 years, $10 million. It was

such a flawed product—such a flawed product—that a bipartisan

vote of the Congress rejected it out of hand as something that has

failed.

They rejected it because as a study, it basically did not use

strong science. They rejected it because it created a one-size-fits-all

approach which fundamentally impacted the capacity of small business people especially to create and maintain jobs. They rejected it

because the terms were vague and the definitions were vague, and

the policies would have been virtually unenforceable on many accounts and would have created a plethora of lawsuits and might

have benefitted the trial lawyers but would have benefitted few

employees. And they rejected it because it simply did not work, and

it was going to end up costing America jobs without any significant

improvement in the health of our citizenry.

We all recognize that musculoskeletal injuries are serious, that

they are real, and that they need to be addressed. I think, however,

that to point the finger of blame at this administration, at the

Bush Administration, which has made a legitimate effort over its

year in office to try to put back together the pieces of a strategy

which was so fundamentally flawed under the Clinton Administration, is an inappropriate and probably nonproductive approach to

the issue.

The Labor Department under the leadership of Secretary Chao

has come forward with a set of principles, and they are reasonable

principles as to how we should proceed. Had these principles been

put in force 8 years ago, maybe we would not be at this point;

maybe we would have a policy that would work. Unfortunately,

that was not the case.

The first principle is that they will develop industry- and taskspecific guidelines to assist businesses in achieving a safer workplace. Such an approach would encourage creativity and flexibility,

allowing customized solutions to meet specific demands of different

workplaces—a fundamentally different thrust than what the Clinton Administration proposed, which was a one-size-fits-all approach

which simply was not functional in the multiple marketplaces and

workplace which we have in our country.

Second, the Department of Labor will focus heavily on enforcement activities, cracking down on bad actors that refuse to abate

recognized hazards that can cause harm to workers—and, in fact,

has done that, and as a result of doing that, we have seen an acVerDate 11-MAY-2000 15:07 Dec 17, 2002 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\DOCS\78951 SLABOR3 PsN: SLABOR3
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tual reduction in these types of injuries since this administration

took office.

Third, the Department of Labor will conduct outreach and assistance activities, providing expertise to employers and especially

small business people who need that type of assistance, through

training programs, compliance assistance tools, and determining

the best practices available. This is the type of assistance we need

in the marketplace to accomplish real results.

Finally, the Department will help to fill the research gaps that

exist in the area of ergonomics so that we can develop a policy that

is based on sound science and that will be constructive and that

will actually work to abate these injuries rather than a policy

which will simply create paperwork and lawsuits.

I applaud the administration for their initiatives. I think that in

the context of what they were given, the problems which they confronted when they came into office, the fact that they had 8 years

of failed policies, 600 pages of administrative initiatives which

clearly did not work and which, in fact, the Congress rejected, that

they have done an excellent job in trying to right the ship and get

us back on a course toward addressing this issue and protecting

the American worker.

The CHAIRMAN. Senator Wellstone.

OPENING STATEMENT OF SENATOR WELLSTONE

Senator WELLSTONE. Thank you, Mr. Chairman.

Let me first of all thank you for convening the hearing today, although I think it is disappointing that we have to address this

topic of inadequate progress in America’s leading cause of workplace injury. But sadly, that is the situation that we face.

Madam Secretary, let me welcome you to the Committee. I appreciate your joining us today, but quite frankly—and I do not

think it will surprise you when you hear me say this—I think this

is a case of too little too late.

We have had a year of inaction and delay, and I think that is

a very fair conclusion to reach. After having pressed the administration to deliver on its promise of a ‘‘comprehensive plan’’ to address the serious problem of repetitive stress injuries in the workplace, what we have today, what has been delivered, is a hollow

shell.

It is a plan that actually turns the clock back, Mr. Chairman, before the first Bush Administration. I am very anxious to hear from

the Secretary why it took so long to produce so very little.

Mr. Chairman, we have heard all the statistics, and we are going

to have people testify today whose lives reflect those statistics.

Each year, 1.8 million workers experience repetitive stress injuries

on the job; 5,000 injured workers a day; one worker injured every

18 seconds. Women suffer disproportionately from these injuries,

painful and debilitating injuries. And we will hear from witnesses

today about what this has meant to their lives and what it is doing

to people around our country, men and women, but especially

women.

We know that we can prevent literally hundreds of thousands of

needless workplace injuries each year. We have the know-how and

5

we have the experience, and a strong, balanced repetitive stress injury standard would have advanced that goal.

Instead, the administration has opted for measures that have

been repeatedly tried—and I say this as Chair of the Subcommittee

on Employment and Safety and Training—that have been repeatedly tried over the past 10 years and have consistently failed to decrease the level of injuries—voluntary guidelines, general duty

clause enforcement, outreach and compliance, and further research.

Voluntary approaches alone have not protected workers from repetitive stress injuries. OSHA itself reports that only 16 percent of

employers in the general industry have put in place ergonomic programs to reduce hazards. Relying on employers to take the necessary steps simply has not stemmed the tide of 1.8 million repetitive stress injuries suffered each year by workers.

Moreover, the Bureau of Labor Statistics reports show that injury numbers and rates are increasing, particularly in high-risk industries and occupations. And what do we have here? Voluntary

guidelines.

Nor can general duty clause enforcement deliver the same results

as a comprehensive standard. General duty clause enforcement is

lengthy, burdensome, expensive, resource-intensive, and most importantly, it is not a preventive tool, and most importantly, you do

not even have a definition of repetitive stress injury, so I do not

even know how we use this.

OSHA has been providing valuable compliance assistance on repetitive stress hazards for nearly two decades. It is not a new initiative. What is difficult to understand, however, is how OSHA can

advance this part of its plan in the face of the President’s proposed

cuts to the overall compliance assistance and training budgets by

nearly $11 million.

Indeed, with the demands that will be placed on OSHA to implement this repetitive stress injury plan, it is difficult to understand

why the Department did not seek additional resources for its implementation.

And finally—and I will spend some time in questions on this—

I am really troubled by this research agenda. To begin with, given

the comprehensive National Academy of Sciences report—as long

as we are holding up documents; right here—just finished last

year, it is difficult to understand what additional research could

possibly be needed in order for OSHA to frame a repetitive stress

injury agenda.

In any event, the Occupational Safety and Health Act clearly

specifies that NIOSH is the entity for conducting and engaging in

the research, and this is a complete end run around NIOSH with

yet another advisory committee, and quite frankly, I am trying to

figure out what the meaning of this is. Is the real goal here to create a forum for those who continue to claim that there is no science

behind ergonomics and that repetitive stress injury simply results

from the worker’s inability to cope? Why yet another advisory committee outside the jurisdiction of NIOSH?

Gunnar Murdahl, the Swedish sociologist, once said ‘‘Ignorance is

never random.’’ Sometimes we do not know what we do not know

want to know.

6

Finally, I am concerned that despite the Department’s year-long

inquiry into precisely the question of definition, there is no definition of ergonomic injury other than to leave open the possibility

that the definition might be narrowed.

OSHA has stayed until next year its definition of MSDs for the

purpose of recordkeeping. Without answering this question, without having a definition of repetitive stress injury, which you do not

have, how does OSHA encourage compliance? Compliance of what?

How does OSHA undertake research and training, invoke the general duty clause, identify research gaps and quantify the magnitude of the problem when you do not even have a definition of

the injury?

How can anything meaningful be done for workers who suffer

from repetitive stress injury every day, when you do not even come

up here with a definition of repetitive stress injury?

I do not think time is neutral for a lot of workers, and I think

it is fair to conclude that very little has been done in this past year,

and a lot of people pay a very dear price. And I think that that is

what this hearing is about.

The CHAIRMAN. Senator Hutchinson.

OPENING STATEMENT OF SENATOR HUTCHINSON

Senator HUTCHINSON. Thank you, Mr. Chairman.

I want to thank you, Madam Secretary, for being here today.

Under your leadership ergonomic protections have been put in

place a little over a year after taking office, and we need to remember the significant work force that the Department of Labor has

had to dedicate to the aftermath of September 11, the anthrax attacks, and the Enron collapse.

Rather than the attitude implied by the title of this hearing,

which indeed presupposes its own conclusion, I would like to congratulate you for your actions on this very difficult subject, one

which the previous administration spent 10 years and $10 million

developing a rule to address a rule, which I might add was so clearly misguided, so flawed, and so unworkable that in an unprecedented bipartisan action, Congress overturned it.

So I congratulate you, and I thank you for what you are doing,

Madam Secretary. We thank you for your leadership and your testimony today and the plan to reduce ergonomic injuries. The actions that you have outlined in your testimony and the plan that

the administration has come forward with will make a real difference in the lives of American workers by improving the safety

of their workplace.

The plan you announced on April 4 has already gone into effect.

In fact, the general duty clause, which requires employers to provide a workplace free of recognized hazards that are likely to cause

serious physical harm is already being applied to ergonomic hazards by your administration. This approach is already working.

You settled an OSH Review Commission case brought against

Beverly Nursing Home, and now, that nursing home is switching

to a mechanical lifting device for lifting patients.

Much has been said about the fact that the guidelines for reducing ergonomic hazards will be voluntary. Well, I would like to point

out that while complying with the specific guideline may be volVerDate 11-MAY-2000 15:07 Dec 17, 2002 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 S:\DOCS\78951 SLABOR3 PsN: SLABOR3
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untary, the obligation to keep a workplace free of recognized ergonomic hazards—and I am quoting—‘‘recognized ergonomic hazards

likely to cause serious harm’’ is not voluntary.

So essentially, you are giving employers a goal line that they

must reach and one possible path to get there. But if an employer

knows of another way to get there, a way that might be better or

less expensive or less onerous for the employer or the employee,

that can be used too. What counts here is the result—reducing

ergonomic injuries. And while the number of reported cases of repeated trauma injuries more than tripled to 332,000 in the decade

ending in 1994, they then began to back down to 235,000 by 1998.

Additionally, injuries and illnesses related to MSDs have declined

over the last 10 years even though there has not been a specific

standard addressing them.

So I believe your approach is working, and it is results that

count, and you have moved forward with a very good plan and good

guidelines in a very difficult time for the Department and for the

Nation. I commend you, and I thank you for your willingness to

come and explain that approach to the Committee today.

The CHAIRMAN. Thank you very much, Senator Hutchinson.

Madam Secretary, we will be glad to hear from you.

STATEMENT OF HON. ELAINE CHAO, SECRETARY, U.S. DEPARTMENT OF LABOR, WASHINGTON, D.C., ACCOMPANIED

BY JOHN HENSHAW, ASSISTANT SECRETARY OF LABOR FOR

OCCUPATIONAL SAFETY AND HEALTH

Secretary CHAO. Chairman Kennedy, Senator Gregg, and Members of the Committee, thank you for inviting me to appear before

your Committee this morning on the subject of ergonomics.

Mr. Chairman, I do have a more detailed written statement that

I would like to request be submitted for the record.

The CHAIRMAN. It will be included in its entirety in the record.

Secretary CHAO. As I listened to stakeholders and reactions and

responses on this issue, I was reminded of Lord Tennyson’s immortal lines: ‘‘Cannon to the right of them, cannon to the left of them,

cannon in front of them, volleyed and thundered.’’

Ergonomics has indeed been a highly charged and controversial

subject on which people have very strongly held views, and in

many cases I have found, diametrically opposed points of view.

But it does not have to be that way if we agree that our ultimate

goal is to protect workers as quickly and effectively as possible. I

am confident that our comprehensive plan on ergonomics will

achieve the goal of protecting workers from musculoskeletal injuries with quick and lasting results.

In fact, our plan goes much further than the old and rejected

ergonomics rule by seeking to prevent injuries before they occur

and by having the capacity to protect a much broader range of

workers who are at risk.

Our plan integrates four essential components that complement

and reinforce each other—industry- and task-specific guidelines;

vigorous enforcement; a range of dedicated compliance assistance

efforts; and expanded research to help us continuously upgrade the

ergonomic protections available to workers.

8

Most importantly, our plan accomplishes what the old regulations could not, even after 10 years and $10 million—it protects

real workers in real workplaces, starting now.

Before I go any further, I would like to introduce a person on my

right, that is, Mr. John Henshaw, the Administrator for OSHA at

the Department of Labor, and I will speak a little bit more about

his background at the end.

I am here with Mr. Henshaw today to announce our first industry-specific guidelines and initiatives to protect workers in nursing

homes. These workers play a vital role in caring for the needs of

the elderly and the infirm, but in the course of caring for others,

they are frequently exposed to significant risks to their own health

and safety, especially from ergonomic hazards.

As you may know, the majority of nursing home workers are low

wage earners, many are low-skilled, and many are women. In the

last decade or so, recent immigrants have become a major source

of nursing home labor. Many of them have only limited English

proficiency, let alone an understanding of U.S. labor laws. A substantial percentage of nursing home workers do not have legal immigration status, and that is a reality that we have to work with

as well.

All of this makes it very difficult for these employees to take

steps on their own to better protect themselves on their jobs. And

that is why my announcement today that we are embarking upon

our first industry-specific guidelines to protect workers in nursing

homes demonstrates once again that now is the time—today—to

start taking care of these caregivers—not 2 years from now, not 3

years from now, not 10 years from now, but today.

Our new initiative will establish effective, workable guidelines to

quickly reduce ergonomic injuries among these vulnerable workers.

These guidelines will build on our groundbreaking pro-worker settlement in the Beverly Enterprise case, where we require for the

very first time ergonomically safe lifting programs in well over 200

nursing home facilities.

As a senior labor leader said of our work on that case, ‘‘Nursing

home workers suffer crippling back injuries, and now, help is on

the way.’’

That is the message that I want to bring to all of you today, and

that is that help is finally on the way. Our success in the Beverly

Enterprises case proves that we can protect workers from ergonomic injuries with the tools that we have right now.

But this is only the beginning. We are in the process of reaching

out to representatives of nursing home workers as well as nursing

home operators to try to find common ground on reducing ergonomic hazards in these workplaces. We all agree that workers have

an interest in achieving this goal, but so do employers. The truth

is as many employers already know and practice, protecting your

workers is just good business sense.

Our plan is to bring these interests together to develop creative,

effective solutions that will prevent injuries and get them implemented as quickly as possible. We will use outreach and training

efforts to reinforce these solutions and maximize their use. This is

the approach we will adopt not only in nursing homes but also in

9

other industries where workers face high risks of ergonomic injuries.

In most cases, bringing employers and workers together will be

the most effective way to get injury rates down in the short run

and also in the long run. In that vein, I do want to commend the

nursing home operators who have agreed to work with us and with

their workers and employees to make their facilities ergonomically

safer. That is the kind of cooperation we seek and expect, but we

also intend to exert leadership and pressure to get the results we

need to adequately protect workers.

That is why our comprehensive ergonomics plan includes not

only collaborative guidelines but also committed enforcement. I

truly believe that most employers want to do the right thing by

their employees. Some companies already invest large amounts of

money in tools and technologies that help prevent ergonomic injuries. But to those employers who stubbornly refuse to safeguard

their workers from identifiable, work-related ergonomic hazards, I

have a word of warning: Our law defends the safety and health of

every worker, and we will enforce that law.

Our enforcement strategy will build on the approach that delivered real victories for the workers in the Beverly Enterprise case

by combining enforcement with compliance assistance techniques,

new research and development, and industry-specific guidelines, we

can move quickly to get workers the help that they need.

Now, of course, I realize that the approach we are pursuing,

which sets the highest priority on protecting workers immediately,

still will not satisfy everybody, including Members of this Committee. A number of you strongly based the last administration’s

ergonomics rule and would basically like it to be reinstated even

though it was extremely controversial and ultimately rejected by a

majority of your colleagues, both Democrat and Republican.

There are also interest groups out there that would prefer us not

to do anything, who argue that ergonomic injuries simply do not

exist, or at least they do not deserve the level of intervention that

our plan provides.

So I will be the first to admit that there are some things that

our plan will not do that tend to make Washington comfortable. It

will not generate thousands of pages of entries in The Federal Register. It will not keep armies of lawyers and lobbyists busy as they

figure out ways to attack the plan or expand parts of it or shrink

parts of it. It will not make for good mail copy for groups to send

out to their members to inflame them. And it will not take years

to promulgate, litigate, or legislate to get results.

Instead, our ergonomics plan is designed to do just one thing—

protect workers as quickly and as effectively as possible.

I mentioned John Henshaw, the Assistant Secretary of OSHA at

the Department of Labor, is next to me. John has years of real life

experience in occupational safety and health. Unlike most people in

Washington, he has personally designed and implemented health

and safety plans that achieve measurable benefits for workers, and

throughout this process I have valued John’s integrity and his experience as we have crafted a comprehensive ergonomics plan that

will succeed in protecting America’s workers.

10

Now, John and I look forward to responding to the Committee’s

question.

[The prepared statement of Hon. Elaine Chao follows:]

PREPARED STATEMENT OF HON. ELAINE L. CHAO

Chairman Kennedy, Senator Gregg, and Members of the Committee, thank you

for inviting me to appear before you to discuss ergonomic injuries in the workplace.

I am pleased to be here to talk about the Department of Labor’s new, comprehensive

approach to ergonomics. I am confident that we have developed an approach that

will effectively reduce ergonomics injuries in the workplace.

Over the past several years, few workplace issues have proved more contentious

than what has become known as ‘‘ergonomics.’’ Although injuries often related to

ergonomic issues, referred to as Musculoskeletal Disorders (MSDs), have declined by

26 percent since 1992, calls for Federal action have been widespread. Since becoming Secretary of Labor, I have spent more time on this issue than any other issue,

meeting with dozens of leaders from organized labor and industry, as well as medical experts, to discuss this problem. More importantly, I have spent time with injured workers who shared their stories with me, and I am determined to make their

workplaces safe.

I feel strongly about the need to reduce ergonomic injuries in the workplace. The

Department has backed up that belief with action. We are implementing a practical,

four- pronged approach with concrete steps that we can take now, to address the

issue of MSDs—steps that will produce real results for American workers.

First, the approach calls for the development of industry-specific MSD prevention

guidelines, with the first set to be completed this year. Second, it creates a new enforcement strategy to pursue bad actors who refuse to take the necessary steps to

protect their employees. Third, we are establishing an outreach and assistance program, to make sure that employers, workers, labor unions, and health and safety

professionals are aware of ergonomics issues and measures to resolve them. Finally,

while there is a large body of research available on ergonomics, there are many

areas where additional research is necessary, including those identified by the National Academy of Science (NAS). The Occupational Safety and Health Administration (OSHA) will serve as a catalyst to encourage researchers to design studies in

areas where additional information would be helpful, by chartering an advisory committee on ergonomics to identify research gaps and by working closely with the National Institute for Occupational Safety and Health (NIOSH) and through the National Occupational Research Agenda process to encourage research in needed areas.

Sound principles underlie this approach. First and foremost, it will get workplace

protections into place as quickly as possible. Even assuming that a scientifically

valid rule could be prepared based on our current understanding of the nature of

the relationship between work activities and certain injuries, following that route

could take years. Our approach consists of steps we can take now, without waiting

for the science to answer the many questions that exist about these injuries and

their relationship to workplace ergonomic factors. Carefully developed guidelines, together with a workable, targeted enforcement strategy, can begin to be rolled out

this year. We should not delay further while we attempt to resolve scientific uncertainties. Guidelines suggest specific actions employers can take to address ergonomic hazards in the workplace while recognizing that different workplaces have

different needs. Of course, guidelines capture existing best practices and provide voluntary solutions for the overwhelming majority of employers who want to find better ways to protect their workers. To target bad actors, this approach also includes

the development of a serious enforcement strategy, under Section 5(a)(1) (the General Duty Clause) of the Occupational Safety and Health Act (OSH Act).

The Department of Labor’s multi-pronged approach builds upon existing guidelines that have already proved effective in bringing down injury rates. MSDs in the

meat products industry, for example, have fallen by 62 percent since 1992—more

than twice the decline for all of private industry. We firmly believe this approach

benefits both workers and employers. In particular, it avoids a one-size-fits-all mandate that would discourage employers from developing innovative, customized approaches to preventing MSDs. Given the evolving nature of the science, Government

simply does not have all the answers.

It is important to understand the context in which we have settled on this strategy. In the closing days of the Clinton Administration, OSHA issued a controversial

and broadly questioned ergonomics rule. Many interested persons have contended

that the rule was rushed through without sufficient consideration of the voluminous

public record. They thought that it failed to distinguish between job-related and non

11

job-related injuries, and required employers to pay for work days that employees

missed due to injuries that may not have been caused by work at all. They also argued that the rule did not adequately inform employers of what steps they must

take to achieve compliance with the rule and that it would not have been effective

in preventing injuries to workers. OSHA’s final ergonomics rule was thought to be

so flawed that bipartisan majorities in both houses of Congress voted to eliminate

it early last year.

At that time, I promised to establish a comprehensive policy to address MSDs.

It was critical that any Departmental approach to ergonomics be clear, effective, and

capable of surviving legal challenges and Congressional review under the Congressional Review Act. After more than a year of work, including three public forums

held around the country, the Department of Labor has unveiled an approach that

will provide real protections for America’s workforce. Inevitably, some will criticize

the new approach, arguing that relying on enforcement and industry-specific guidelines instead of a formal rule does not go far enough. Such criticism ignores several

realities.

For example, when promulgating a rule, OSHA should follow certain principles,

such as making a scientifically valid determination regarding the degree of risk

from various levels of activity. The lack of precise information about degree of risk,

‘‘dose-response’’ relationships, or feasible and effective controls, for example, would

be a major hurdle to Agency efforts to promulgate a standard that meets legal requirements and protects workers. The risk assessment does not have to be based

on 100 percent perfect information, but we need to know more about many types

of MSDs than we do at this point in time.

Because of the practical realities involved in doing a rulemaking on ergonomics,

I believe our new four-pronged approach is simply a more effective and realistic way

of addressing the needs of workers and employers. Industry-specific guidelines and

compliance assistance are, in fact, among the best ways to protect workers from

MSDs. A simple look at OSHA’s inspection numbers, which I will describe shortly,

will explain why. OSHA cannot be in every workplace all the time. The bottom line

is that workplace protections are only effective if employers have usable information

and incentives to implement them on their own.

Of course, OSHA can, and will, crack down on those who ignore identified threats

to worker safety. Enforcement is, accordingly, the second prong of our approach. In

addition to responding to complaints, OSHA will address recognized hazards where

they are identified in the course of planned inspections. In FY 2002, OSHA plans

to conduct some 36,400 inspections overall, and in FY 2003 we plan to do 37,700

inspections, including investigation of ergonomic hazards and including about 3,600

Site Specific Targeting (SST) inspections. SST inspections, which target the Nation’s most hazardous workplaces as determined by employer-reported injury and illness

data, are thorough inspections that address both safety and health hazards in the

workplace. The next round of SST inspections is scheduled to begin this month.

Along with that program, OSHA will be implementing a separate National Emphasis Program that will address hazards in the nursing home industry, including

ergonomics hazards.

OSHA will not focus its enforcement efforts on employers who have implemented

an effective ergonomics program or who are engaged in good faith efforts to correct

the hazards. Inspections that identify ergonomic hazards will not necessarily result

in citations. In some cases, OSHA will issue a Hazard Alert Letter that makes the

employer aware of the hazard and provides information on feasible means of abatement and possible sources of assistance. Within twelve months, OSHA will conduct

follow-up inspections or investigations of certain employers who receive a Hazard

Alert Letter. To assist this effort, OSHA is also providing its inspectors with additional training on ergonomic hazards and abatement.

As you know, employers have two principal obligations under the OSH Act: to

comply with standards and to provide a workplace free of ‘‘recognized hazards’’

under the General Duty Clause in Section 5(a)(1) of the OSH Act. Historically,

OSHA has issued over 500 General Duty Clause citations related to ergonomic-type

problems and issues. To be sure, the number of those citations dropped off considerably over the past few years because OSHA did not pursue General Duty Clause

citations during the pendency of the rulemaking.

OSHA’s new comprehensive approach to address ergonomic hazards, however, incorporates an enforcement strategy that will result not only in General Duty Clause

citations, but also successful prosecutions. Let me just mention in this regard the

successful settlement recently of a 5(a)(1) citation against Beverly Enterprises, Inc.

nursing homes, under which the employer agreed not only to institute a lifting program in the 5 facilities that were the subject of citations, but to do so at each of

their 240 nursing home facilities under Federal jurisdiction.

12

Building upon the Department’s litigation successes in the Beverly Enterprises

and Pepperidge Farm cases, OSHA will use the General Duty Clause to cite employers who fail to engage in good faith efforts to abate ergonomic hazards. OSHA will,

in appropriate cases, issue 5(a)(1) citations involving ergonomic hazards, and I have

instructed OSHA and the Solicitor of Labor to act accordingly. The Solicitor’s office

is preparing a new enforcement strategy that will help ensure that employers meet

their safety obligations to their employees. As SEIU President Andrew L. Stern said

in reaction to our victory in the Beverly case, ‘‘Nursing home workers suffer crippling back injuries, and now help is finally on the way.’’

Along with guidelines and enforcement, our comprehensive approach includes outreach and assistance, as well as research. OSHA will provide specialized training

and information on guidelines and the implementation of successful ergonomics programs, administer targeted training grants, develop compliance assistance tools to

help employers prevent and reduce ergonomic injuries, forge partnerships, and create a recognition program to highlight successful ergonomics injury reduction efforts. This effort will also include, as part of the Department’s commitment to protecting immigrant workers, a specialized focus to help Hispanic and other immigrant workers, many of whom work in industries with high ergonomic hazard rates.

Finally, in concert with NIOSH, OSHA will stimulate and encourage needed research by forming a national committee, which will advise OSHA about research

gaps and other issues related to our approach to ergonomics. This measured, stepby-step, four-pronged approach assures that OSHA will fulfill its statutory obligation to protect American workers, while at the same time protecting against overreach and one-size-fits-all determinations.

While we implement our approach to reduce workplace MSDs, it is important to

recognize that many American workplaces are addressing this problem on their

own. MSDs have declined by 26 percent over the last decade, in part due to increased awareness regarding the problem. Many employers know that it is simply

good business to prevent workplace injuries, and they are taking steps to do so. We

need to avoid taking any action that would stifle the creativity and initiative that

workplaces have demonstrated over the last several years to respond to this issue.

I want to thank the Members of this Committee for allowing the process to run

its course. We are now taking real steps to address the problem. Reducing MSD

hazards will make all workplaces safer and improve the lives of thousands of American workers. The Department of Labor’s comprehensive, multi-pronged strategy is

the best way to reach these goals. I urge employers, workers, organized labor, and

ergonomics experts to come together and help this strategy succeed.

RESPONSE TO QUESTIONS OF SENATOR ENZI FROM ELAINE L. CHAO

Question 1. Have you seen that employers are already voluntarily developing

ergonomics programs? As a follow-up question, would the promulgation of a broad

new ergonomics standard assist or hinder these efforts?

Answer. Many employers, in a wide variety of industries, have already implemented successful ergonomics programs. Participants in OSHA’s Voluntary Protection Programs (VPP) are documented proof of the success of a voluntary approach.

We have also seen successful voluntary programs implemented in industries where

OSHA does not typically have a significant presence, such as Honeywell Technology

Solutions at the White Sands testing facility in Las Cruces, NM. In addition, during

the forums on ergonomics that the Department conducted last summer, OSHA

heard from many other participants who had implemented successful programs.

Part of the reason for the success of the voluntary approach is that each employer

is free to develop a program that is flexible enough to adapt to the unique conditions

within its own environment. The promulgation of a mandatory one-size-fits-all approach would eliminate such flexibility, and could actually hinder implementation

of more appropriate tailor-made solutions. Guidelines can be more effective because

they create a co-operative relationship with employers, who will actually implement

ergonomic safeguards. Also guidelines are cost effective, making it far more likely

that businesses can actually implement needed protections.

Question 2. How do you think the Department’s strategy will reduce workplace

ergonomic injuries and illnesses more quickly and effectively than a broad new rule?

Answer. First, our plan can be implemented faster. There are a number of timeconsuming procedural requirements that must be met when undertaking a new

rulemaking. It would tie up critical OSHA personnel and other resources which

would then not be available to help promote immediate hazard reduction. We estimate that it could take more than 4 years to promulgate a new rule. The last

ergonomics rulemaking took 10 years and $10 million to accomplish, and still there

13

were so many flaws and controversies regarding it that a bipartisan majority of both

houses of Congress voted to nullify it. Any new ergonomics rule, particularly one

that is as broad and complex as some have suggested, would be vulnerable to court

challenges.

Second, our approach is workable. The Department of Labor considered whether

a new ergonomics standard could be crafted that did not have the myriad of negatives that were cited during congressional debate on S. J. Res. 6. We concluded that

a one-size-fits-all standard that would apply to every workplace and every occupation was virtually impossible to conceive. Flexibility was needed to tailor abatement

of hazards to individual worker and employer situations.

Third, the Department strongly believes that abatement of hazards that lead to

ergonomic injuries, not just after-the-fact fines and penalties, should be the ultimate

goal of our ergonomics plan. Guidelines, the first prong of our comprehensive approach, have proven to be effective. For instance, in the meat packing industry, industry-specific guidelines have led to a 62 percent reduction in Musculoskeletal Disorders (MSDs), as well as a 73 percent decline in the rate of carpal tunnel injuries,

a 76 percent decline in the rate of sprains and strains, and a 78 percent decline

in the rate of back injuries. If employers fail to take seriously the need to address

ergonomic hazards, they will face the prospect of enforcement action under Section

5(a)(1).

Question 3. One of my concerns with the repealed ergonomics rule was that it took a ‘‘one size-fits-all’’ approach. How does the Department’s new strategy differ in this

respect?

Answer. Industry-specific guidelines give the Department the flexibility to work

with industries to find the best means of reducing ergonomic hazards. Unlike rulemaking, guidelines can be formulated and implemented more quickly. Also, as proven by the record of the past 10 years on this issue, it is very difficult to produce

a one-size-fits-all standard to address ergonomic hazards, which vary widely in complexity across industries and occupations.

A rule is also no guarantee of success in reducing hazards. Workplace practices

and processes may change during a lengthy rulemaking, thus producing the possibility of little or no reduction in injuries to workers while producing a definite regulatory burden on businesses and high costs in time and dollars.

Further, a more flexible approach will permit OSHA to keep the guidelines up to

date with advances in the science. A one-size-fits-all standard could only be amended after a long regulatory process.

Question 4. One of my biggest concerns with the repealed ergonomics rule was its

impact on small businesses. How will the Department’s new strategy take into account the unique needs and capabilities of small businesses?

Answer. We understand that small businesses often do not have an employee solely dedicated to job safety and health. OSHA will offer specific assistance to small

businesses by providing direct outreach to them and their trade associations to

reach as many small businesses as possible. For example, OSHA will tailor its consultation program to help businesses with 250 or fewer employees by providing best

practices designed for small businesses, and also by conducting workshops focused

on small business needs. Small businesses will also be able to work with OSHA’s

10 regional ergonomic coordinators, who will be involved in enforcement, outreach,

and compliance assistance.

We are also in discussions with the Small Business Administration’s Office of Advocacy to determine additional ways to disseminate information to small businesses

on how to effectively reduce ergonomic hazards.

Question 5. The Department’s strategy calls for industry and task-specific guidelines. Does the Department’s plan have sufficient ‘‘teeth’’ to motivate employers to

provide their employees with a safe workplace?

Answer. A large majority of businesses already have sufficient motivation they

want to protect their most important asset: their employees. We will provide those

businesses with the best tools for continuing to protect the health and safety of their

workers.

For those employers who fail to engage in good-faith efforts to abate recognized

ergonomic hazards, we will consider our enforcement options. We will target these

employers through an enforcement plan that includes a legal strategy designed for

successful prosecution under the General Duty Clause.

Question 6. Since the General Duty clause of the OSH Act, Section 5(a)(1), already

exists and requires employers to provide employees with a workplace that is free

from recognized serious hazards, what new activities will OSHA’s ergonomic enforcement program entail?

Answer. OSHA will have an enforcement plan designed from the start to target

prosecutable violations. For the first time in the Agency’s history, inspections will

14

be based on a legal strategy successfully used in past ergonomics cases. Under the

ergonomics plan we will be implementing, we intend to build on the success of the

Beverly Enterprises and Pepperidge Farm decisions, and on the favorable settlement we achieved to resolve the final issues in the Beverly case, which produced

positive results for workers throughout the corporation.

Also, OSHA will utilize special ergonomics inspection teams that will, from the

earliest stages, work closely with Department of Labor attorneys, and experts to

successfully bring prosecutions under the General Duty Clause.

OSHA has already announced a National Emphasis Program in the nursing home

industry to guide inspections of nursing homes. The program will focus special attention on ergonomic hazards related to patient lifting. OSHA will also issue ergonomic hazard alert letters when appropriate and will conduct follow-up inspections

or investigations within 12 months of certain employers who receive these letters.

RESPONSE TO QUESTIONS OF SENATOR BINGAMAN FROM ELAINE L. CHAO

From what I can tell, the recommendations that you have put forward by and

large ignore the recommendations published by the National Academy of Sciences

on MSD and the workplace. Given the quality of the scholarship and the length of

time involved in the research, I am confused why this might be. I would like you

to walk through each of the recommendations published by the National Academy

of Sciences and explain either: (1) how exactly your current proposal is compatible

with that recommendation, and; (2) why you believe that recommendation is inappropriate and you have chosen not to implement that recommendation.

Your statement at the HELP ergonomics hearing suggests that employers and

employees share a common goal of reducing workplace injuries. In theory, I would

agree with you. In practice, this is still not the case. Unfortunately, there are still

many cases where employers find it more cost-effective to ignore the changes that

would help their employees and simply hire new employees when current employees

are injured. These employers may (or may not, depending on your perspective) be

anomalies, but they are still a problem that needs to be addressed. In concrete

terms, how would your current proposal respond to or prevent such cases?

I think Senator Enzi made a good comment today, that being that some businesses do not know the best practices that can be used in their workplace to solve

ergonomic problems. Your current proposal mentions outreach, assistance, training,

and other such efforts, but neglects to give concrete plans. Given the voluntary nature of your current proposal and its reliance on business to comply of their own

volition, I would like some elaboration on your plans in this area. In concrete terms,

please tell me if the administration is planning to request equal or additional funds

for current programs designed for employer and/or employee education? Does it have

new programs in mind? If outreach and training is so important, why has funding

been cut to successful and important programs like the Susan Harwood program?

The testimony of Ms. Purvis suggests that one of the primary problems we face

at this time in this country on MSD’s is that there are differences across States,

but within industries and companies in terms of how they implement and enforce

ergonomic standards. It would seem that common guidelines across industries and

companies would assist in solving this long-standing, but you have chosen not to

create them at this time. Given this fact, in concrete terms how would your current

proposal eliminate some of these differences that I have mentioned? Using Brylane

as an example, how should the administration respond to, how will the administration respond to, the problems that exist at that company?

You stated at the HELP ergonomics hearing that you would provide guidelines

for specific industries ‘‘soon.’’ Please provide me with a concrete timetable for when

you expect that these guidelines will be created and implemented.

The CHAIRMAN. Thank you very much. We welcome you.

We will have 6-minute rounds, and I will ask staff to keep track

of the time.

Just to understand, what are you announcing today in terms of

the nursing homes?

Secretary CHAO. We have a comprehensive ergonomics plan, and

it is a four-pronged strategy to ensure that workers are protected.

The first is industry-driven and task-specific guidelines to be followed by strong enforcement and aggressive outreach, compliance

15

assistance, and lastly, research and development to add to the gaps

in the science.

So today, we are announcing, in fact, the first industry-specific

guidelines, and based on our experience with—— The CHAIRMAN. This is in the nursing homes.

Secretary CHAO. Yes.

The CHAIRMAN. Do you have the guidelines here?

Secretary CHAO. I do not have it with me. We will submit that.

The CHAIRMAN. Okay. But they are prepared, and they are going

to go out now—it is current. I think your earlier testimony had indicated that that was the plan for the end of the year—— Secretary CHAO. Right.

The CHAIRMAN [continuing]. And I understand you to say now

that it is going to be issued today.

Secretary CHAO. It will not be issued today. Our comprehensive

plan of guidelines will take—we will exert all efforts to make sure

that guidelines are coming out as quickly as possible, and we think

that by the end of the year, we will have guidelines. But these will

be——

The CHAIRMAN. By the end of the year?

Secretary CHAO [continuing]. But they will be industry-specific

and task-specific, and our first industry-specific guidelines we are

announcing today, that we are working on with industry workers

and employers, will be the nursing home industry.

The CHAIRMAN. Are you setting any goals or timetables for industry-wide where you even expect your guidelines to go into effect?

Are we going to have an evaluation—could you answer that?

Secretary CHAO. I can assure you, Mr. Chairman, that it is my

intent to proceed as quickly as possible to working out the guidelines in as short a time as possible, because my concern is speed

and protecting workers.

The CHAIRMAN. But today we have no plan establishing any

goals or any timetables for the industries, other than the announcement of what you are doing in the nursing homes?

Secretary CHAO. The nursing homes will not be the only industry. We will proceed with other industries as well. But we will—— The CHAIRMAN. But you are not prepared to tell us what those

industries are?

Secretary CHAO. Primarily because when we take a look at the

industries, there are a number of factors that we want to take a

look at, and also, our guidelines, as I mentioned, are a four-pronged

strategy, and we want to make sure that as we proceed with guidelines, we will also have the other three prongs in place as well.

But as I mentioned, I will assure you that we want to do this

as quickly as possible.

The CHAIRMAN. We have to look at this, Madam Secretary, obviously, against a whole history of activity in this area, as you are

very familiar with, starting even under President Reagan, where

OSHA used voluntary guidelines for, at that time, just manual lifting; and then, under President Bush, OSHA issued voluntary

guidelines for the red meat industry. Then, they had pursuit of the

general duty clause which you have referenced in your own plan,

and they also had a nationwide education and outreach program.

President Clinton for the first 8 years highlighted voluntary guideVerDate 11-MAY-2000 15:07 Dec 17, 2002 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6601 S:\DOCS\78951 SLABOR3 PsN: SLABOR3
16

lines. He also indicated that he was going to have enforcement of

the general duty clause. They also had a nationwide education program and three congressionally-funded comprehensive studies over

4 years. They had regional ergonomic coordinators around the

country.

And what we have seen in all the statistics that ergonomic injuries are still one-third of workplace injuries. After 10 years, they

are still about one-third of all the injuries. These past approaches

have failed; they have failed. And the question is why do you believe that yours are going to be any more successful than the previous Presidents’ when they have followed similar guidelines? Why

are yours going to be so effective? What kind of assurance can you

give to all those who are out there working today, right now, to

those workers outside of the nursing home industry, who are going

to be endangered this year and very likely next year as well?

Why do you believe that you are going to be successful when the

record for all the other efforts using the same approach has been

a complete and unadulterated failure?

Secretary CHAO. I do not think the efforts in the past have been

comprehensive, nor have they been coordinated. I think there has

been a great deal of controversy in the past which has shown that

these efforts have been in fits and starts and were not a seamless

procession of efforts as your remarks would indicate.

We have shown results. We have shown in the Beverly Enterprise case that we can use the general duty clause to bring about

much-needed relief for workers. And despite the temporary increase in ergonomic injuries as reported by the BLS, which I am

very concerned about, the overall trend for ergonomic injuries in

the last decade has been declining; and in fact, with specific types

of ergonomic injuries with relation to back strains, back pain and

carpal tunnel, there have been substantial decreases in injuries.

I am not satisfied with that—but also, I think the important

thing to note is that a rule in itself will not stop these injuries, either. What we need is a comprehensive approach, and I believe

that our plan will be able to accomplish that.

The CHAIRMAN. Well, the statistics indicate that at least onethird of serious workplace injuries are still ergonomic injuries. The

statistics indicate that very, very completely.

Now, we have the situation where former Secretary Dole, when

she reviewed this and looked at it over 10 years ago, said, ‘‘The Department is committed to taking the most effective steps necessary

to address the problem of ergonomic hazards on an industry-wide

basis. Thus, I intend to begin the rulemaking process by asking the

public for information about ergonomic hazards across all industry.’’ And even in your March 6 letter, you indicate that, ‘‘I intend

to pursue a comprehensive approach to ergonomics which may include new rulemaking.’’ Why did you discount the possibility of rulemaking? Let us put

aside the rule from the last administration. Why haven’t you issued

a rule that would cover all industries and available to cover all the

workers who are being adversely affected?

Secretary CHAO. We actually did consider a whole array of options, and it was our belief that our number one priority was to

protect the workers in as quick a matter as possible. It is by no

17

means certain that the previous rule, had it been in place, would

not have been challenged and would not have been stayed and

bogged down in tremendous litigation.

To promulgate a successful rule, we expect would take about 41⁄2

years, assuming that that rule were not subject to legal challenges.

So our concern is that we want to prevent injuries from occurring,

we want to help the workers as quickly as we can, we want to have

a strong enforcement program that will be a disincentive for employers to be bad actors, and we want to have an aggressive outreach and compliance assistance program so that we can help the

workers. And from a speed point of view, we thought that this comprehensive point of view, comprehensive plan, would be best able

to achieve that.

The CHAIRMAN. Well, your own Solicitor has talked about using

the general duty clause in enforcement—and I did not think I

would be quoting Mr. Scalia these days—but his conclusion was:

‘‘Not Ready for Prime Time—from its embarrassing losses in the

three ergonomic cases it litigated to judgment, OSHA has concluded that it should cease enforcing ergonomics under the general

duty clause and issue an ergonomic rule instead.’’

Here is your Solicitor General talking about the complexities and

difficulties in pursuing cases under the general duty clause, effectively saying, if you read through the article, that it just does not

work. So we are getting voluntary guidelines similar to the guidelines in the past that have not worked and following an enforcement mechanism which I think has been lacking.

Senator Enzi.

Senator ENZI. Thank you, Mr. Chairman.

First, I would like to ask unanimous consent that my full statement appear in the record, and I will not go through that again.

I had to be in the Finance Committee talking about stock options.

The CHAIRMAN. Without objection.

[The prepared statement of Senator Enzi follows:]

PREPARED STATEMENT OF SENATOR ENZI

Thank you Mr. Chairman. When a majority of both Houses of

this Congress voted to rescind the Clinton Administration

ergonomics rule an opportunity was created—an opportunity to

protect workers from ergonomic injuries in an effective and feasible

way. As Ranking Member of the Subcommittee on Employment,

Safety and Training, I feel a special responsibility to help protect

America’s workers. I believe that ergonomic injuries and illnesses

are a very real and very significant concern for America’s workers

and the companies that employ them.

What is the best way for the Occupational Safety and Health Administration to respond? The measure of success for a plan to address ergonomic hazards in the workplace is its ability to prevent

their occurrence. Last March, Congress exercised its authority

under the Congressional Review Act to overturn the product of a

rushed and flawed rulemaking process. The result of that process

was a rule that would have impeded efforts to reduce musculoskeletal disorders (MSDs) in the workplace. Many companies have

already taken significant steps to address musculoskeletal injuries

at their worksites. Many other companies are looking for the tools

18

to do so. Many small businesses don’t know what to do. OSHA

should build upon and foster successful efforts to reduce ergonomic

injuries. The Agency should also provide tools for companies to implement programs that can work—and will work—to reduce ergonomic injuries in their particular industries and worksites. This is

the best way to protect America’s workers.

Recently released data shows that overall MSD injuries and illness have continued to decline. Today, I am pleased to hear about

OSHA’s strategy for accelerating—rather than inhibiting the decline of these injuries and illnesses.

OSHA’s plan calls for industry- or task-specific guidelines, enforcement, compliance assistance and research. This approach recognizes that many questions remain, but much can still be done

now to address ergonomic hazards in the workplace. This approach

will build upon ‘‘best practices’’ that have proven successful in reducing injuries and illnesses. This approach will build partnerships

between the Agency and businesses to reduce ergonomic injuries,

rather than merely creating adversaries. Most importantly, this approach will focus on realities and results.

Companies must be given the flexibility to implement ergonomics

programs tailored to their particular needs and capabilities—not

the complex formulas that are difficult to find, let alone follow, that

were referenced but not provided in the repealed rule. Ergonomic

hazards, and therefor appropriate interventions, vary from industry to industry, from location to location, and from individual to individual. A ‘‘one-size-fits-all’’ mandate that fails to recognize the

varying capabilities and characteristics of different businesses will

simply not work. Furthermore, such a mandate will divert resources away from innovative programs that actually do work to

reduce ergonomic injuries.

OSHA’s strategy will provide companies with the flexibility to address ergonomic hazards in their workplaces. The Agency also

plans to provide employers and employees with tools to do so quickly and effectively. OSHA has announced that it will immediately

begin work on developing industry and task-specific guidelines.

OSHA has also announced a number of outreach and compliance

assistance activities that will proactively deal with ergonomic

issues in the workplace.

I am particularly pleased to see that OSHA’s proposal includes

compliance assistance to small businesses. One of my biggest problems with the Clinton Administration’s ergonomics rule was its impact on small businesses. Small businesses have unique needs and

capabilities which must be taken into account by the Agency in

order to develop an effective and appropriate ergonomics plan that

prevents injuries. Small business doesn’t have the range of experts

to know what to do. Searching is often more costly than the cure.

This concern about small businesses is highlighted by a recent

study conducted by the Mercatus Center at George Mason University in conjunction with the National Association of Manufacturers.

The ‘‘Workplace Regulation Compliance Study’’ found that the regulatory burden of compliance with Federal workplace regulations

falls disproportionately on small manufacturing firms with less

than 100 workers. The total compliance cost per employee is 68

percent higher at small firms than at large firms with more than

19

500 employees—and that’s the cost of discovery of what can be

done.

I will be very interested in hearing from Secretary Chao about

specific plans to address the needs of small businesses in addressing ergonomic hazards. OSHA has announced the formation of an

advisory committee to identify gaps in research related to the application of ergonomics to the workplace. I request Secretary Chao

and Assistant Secretary Henshaw to ensure that small business is

represented on the advisory committee.

While OSHA’s ergonomics strategy will give employers the tools

to reduce ergonomic injuries, it also contains the ‘‘teeth’’ to punish

employers who expose workers to ergonomic hazards. Some of my

colleagues argue that an ergonomics rule is necessary in order to

punish employers for ergonomic hazards and to motivate companies

to reduce ergonomic injuries. However, my colleagues fail to acknowledge two fundamental facts—(1) ergonomics is good business

and (2) ergonomics hazards are enforceable under the General

Duty Clause of the OSH Act. We’ve had examples from past General Duty clause actions, including the Beverly Enterprises case,

that ergonomic hazards are within the scope of the General Duty

clause.

First of all, good ergonomics is good business. Ergonomics injuries raise costs to a company, decrease productivity and impact the

bottom line (not only because worker injuries are an expense under

workers’ compensation). In the absence of an ergonomics standard,

businesses are implementing ergonomics programs because they

recognize the benefits of a safer workplace. We will hear today

from Paul Fontana, an occupational therapists who works with

companies to address ergonomic hazards. Mr. Fontana can speak

first-hand about businesses efforts to reduce ergonomic injuries because they recognize it makes good business sense to do so.

Secondly, Under the General Duty Clause of the OSH Act, Section 5(a)(1), employers must keep their workplaces free from recognized serious hazards. This includes ergonomic hazards. OSHA has

announced an ergonomics enforcement plan that will crack down

on ‘‘bad actors’’ by coordinating inspections with a legal strategy

designed for successful prosecution of General Duty Clause violations.

As indicated by the title of this hearing, some of my colleagues

argue that nothing short of an OSHA ergonomics standard will be

sufficient to protect workers from ergonomic injuries. I must point

out that significant legal, scientific and technical impediments to

such action remain. Available science cannot accurately attribute

ergonomic injuries to work-related versus non-work-related factors.

Furthermore, the economic and technical feasibility of an

ergonomics rule has not been supported. Perhaps we should be asking what can be done to reduce ergonomic injuries at home and

with hobbies and recreation. Since home and hobbies affect work,

I’m sure businesses would be willing to help—but not to shoulder

all the responsibility of an inspect and fine mentality.

I applaud the administration for developing an ergonomics strategy that contains the flexibility, the tools and the ‘‘teeth’’ to significantly reduce ergonomic injuries and illnesses. The National Safety

Council, a non-partisan public service organization, responded to

20

OSHA’s ergonomics plan with the statement that: ‘‘We are optimistic that this approach, rigorously pursued, will produce effective,

targeted results.’’ I share in the National Safety Council’s optimism

that OSHA’s ergonomics strategy will produce results—a safer

workplace that benefits both workers and employers alike.

Thank you Mr. Chairman.

Senator ENZI. I do appreciate the issue that we have here. I do

not think anybody disagrees that we need to take care of

ergonomics injuries, and we need to prevent them.

I want to thank you for all of the work and effort that you have

gone into since you became Secretary of Labor. I also think that

the approach that you are taking will be a quick way to get some

great reductions in ergonomic injuries.

One of the problems that we noticed when we went through the

kind of pseudo-rulemaking process the last time—and I still object

to the way that that was handled and know that that is the reason

why Congress threw that out—one of the problems that businesses

have—and the smaller the business, the bigger the problem—is

that they do not know what to do. They do not know how it can

be done. They do not know the best practice. And your guidelines

will provide that kind of information for each industry in a very

specific way.

I remember in the ergonomics rule that we looked at, one of the

difficulties was that one of the formulas that people had to use was

in a separate publication from the ergonomics rule itself, and that

publication was out-of-date and not available. Fortunately, I was

able to find one, and I did a chart on it, and I defied any engineer

who was watching to be able to interpret in detail so that a small

businessman could understand the formula that was necessary for

truck vibration or any other industry that had vibration. What they

need to know is how to solve the problem, not how to calculate

whether there is a problem.

I definitely noted during the process that we went through that

there just was not enough information for a small businessman to

understand what was going on.

Now, as to the general duty clause, the reason that the general

duty clause is hard to enforce is because we do not have any specific duty, and the guidelines provide some things that a business

can look at, can determine whether it is actually applicable to their

business, meaning that they have that kind of situation, and if

they have that kind of situation, they can put the solution in place.

If they are not putting the solution in place, they are violating the

general duty clause. So I think you have actually increased some

of the capability there, and I want to congratulate you for what you

have done. I think that it will be a speedy resolution.

Insofar as ergonomics still encompass one-third of the injuries, I

think one thing that our committee has noted through the years is

that injuries have been going down, injuries of all kinds. Injuries

for ergonomics have been going down. The fact that they are still

one-third of the injuries shows where some of the concentration

needs to be done, and I appreciate the specific way that you are

saying that it will be done.

21

Now, I do assume that you carefully considered doing another

ergonomics rule before you ultimately decided on the approach you

did. Why did you feel that a rule was not feasible?

Secretary CHAO. Well, as has been discussed, the Congress, by a

bipartisan majority, overturned the previous administration’s

ergonomics rule which became final on January 16, 4 days before

they left office.

I am interested in protecting workers, and I wanted to find a

comprehensive way, as I mentioned to the Congress, of protecting

workers. In going through the rules, there was a great deal of question as to whether a new rule can indeed be promulgated given the

Congressional Review Act, which overturned the previous rule; and

secondly, the length of time it would take to promulgate a new

rule. To do a credible job in coming up with a new rule would probably require about 41⁄2 years.

Again, because my concern is with the speed with which we can

protect workers, I believe the Department’s comprehensive approach will best help workers now and not just years from now.

Guidelines, as you have noted, are indeed helpful because they do

lay out a path; they help people know what they can do to prevent

injuries before they occur. The previously-rejected rule, in fact, had

a trigger which would not go into place unless an injury occurred.

That is unacceptable to me as well.

I also wanted something that was flexible, because I wanted employers and employees to work together and have the ability to custom design whatever made sense for them at their particular worksite. A one-size-fits-all, as you have heard, just will not be responsive in truly helping workers.

Senator ENZI. I particularly appreciate the emphasis on prevention. I am sure you are aware that Senator Breaux introduced a

bill yesterday requiring the Department to issue an ergonomics

rule within 2 years. I know that we repealed the ergonomics rule

because it was flawed both in process and in substance, and I was

particularly troubled by the fact that OSHA paid contractors to testify and they paid them to tear apart the testimony of other people,

and that all played a role in it.

I am now very troubled that the bill introduced by Senator

Breaux requires the Department of Labor to develop an ergonomic

standard based on the complete record of evidence for the repealed

rule, a record that I think we pretty well showed was tainted at

best, and the only redeeming factor would be that maybe this time

the information that was presented would be read.

Do you share this concern?

Secretary CHAO. I have not had a chance to read the bill myself

because, as we all know, it was introduced very late last night. I

am concerned about the amendment, because I think it will set up

a deterrent effect to people following our comprehensive ergonomics

rule.

If there is uncertainty, and if there is a lack of clarity as to

where this Department is going and what other factors are impinging upon this comprehensive ergonomics plan, I think a lot of people would not follow the ergonomics plan and therefore contribute

to its possible failure.

22

Senator ENZI. Vagueness was our problem before. I think you are

on the right track.

I see that my time has expired.

The CHAIRMAN. Senator Wellstone.

Senator WELLSTONE. Madam Secretary, first of all, let me just

repeat what I said earlier. The truth of the matter is there is a reason why we have a focus on this, and it is because we have all of

these disabling injuries, and I think we have measures here that

have not worked for 10 years, and that is what we have again— voluntary guideline—not guidelines, but guideline—general duty

clause enforcement, and further research.

Let me ask you this. Last March when the original standard was

repealed, you stated that you would develop a comprehensive approach to ergonomics that might include—well, a comprehensive

approach.

Then, in your press release of April 5 announcing your program,

you said that OSHA—this is a year later, this is April 5, would ‘‘develop industry- and task-specific guidelines’’—guidelines.

Today you announce a plan to develop a guideline.

This is an incredibly shrinking plan that we have before us here.

I want to ask you two questions, and you can answer them together. First of all, I am interested in—when it comes to this guideline—as I look at what has happened, Mr. Chairman, between 1999

and 2000 in a whole bunch of different areas of work—painting and

paper-hanging, 172 percent increase in occupational injuries involving MSDs; nursing and personal care facilities, 237 percent increase; beer, wine, and distilled beverages, 240 percent increase;

leather tanning and finishing, 188 percent increase; local and suburban transportation, 173 percent increase; tires and inner tubes,

157 percent increase; fabricated rubber products, 153 percent increase—no, scratch that; I was looking at the wrong column—very

quickly, again, beer wine and distilled beverages, 27 percent; leather tanning and finishing, 107 percent; tires and inner tubes, 43

percent; fabricated rubber products, 35 percent.

The point is that nursing and personal care facilities—the point

is there is a huge percentage increase in all kinds of areas of work,

and I am interested in why we do not have a plan to deal with

these workers. That is my first question.

The part B is now to go to what we have heard today, which is

a plan to develop a guideline—so we have a nursing home guideline, but it is voluntary, right—I think you said it is voluntary—

so if the nursing home chooses not to be interested in the guideline,

does this then mean you automatically invoke the general duty

clause?

So my question is how are workers in companies that do not go

along with the guideline protected?

So I have two questions. One guideline is all we have, far from

comprehensive. We have all kinds of people working in all kinds of

parts of the economy, with huge numbers of people injured, and we

do not do anything for them; why not?

And then, third, I am not even sure how this works in the nursing home industry.

Secretary CHAO. I am very confident that our plan is going to

help reduce ergonomic injuries, and I hope that the Committee

23

Members will give the Department and my team an opportunity to

make that happen.

Instead of viewing and characterizing our progress in the last

year as ‘‘shrinking,’’ I would respectfully say that we are really

showing progress. I have said that I was going to enact a comprehensive approach, and I have done so. And in the year since, obviously, September 11 has slowed our progress because OSHA was

involved at Ground Zero and in a lot of security aspects with the

anthrax scare of our country. Nevertheless, this has been a front

burner issue. No other Secretary has worked more on this issue

than I have. This is the second time that I have testified on the

Hill. No other Secretary has ever testified on the Hill on this.

What I am concerned about in terms of the guidelines is that our

announcement today is one additional step in what we have done

to protect workers. We have now designated an industry, the nursing home care industry, which has a high number of low skill workers with high risk of ergonomic injuries. We are making progress

in designating this industry. This will not be the only industry. We

will work with other industries to come out with guidelines.

Senator WELLSTONE. But Madam——

Secretary CHAO. In the year since, may I also add, we do not operate in a vacuum. We are actively engaged in soliciting and interacting with other stakeholders. We came in on January 20, and we

have met with scores of stakeholders from across the spectrum; I

myself have met personally with a tremendous number of labor

leaders, with health care organizations, with academicians, with

doctors, with physical therapists, on this particular issue.

So during this time, we are making progress. We are consulting

with the groups who have a stake in this issue. We cannot do this

in a vacuum, and we are enlisting their assistance as well.

Senator WELLSTONE. But didn’t the workers—I think of a union

like SEIU—first of all, again, you have one voluntary guideline.

That is what you presented here, with no enforcement. That is your

plan. What you have announced today is a plan to develop a guideline, with no enforcement.

Let me ask you this. I have spent a lot of time with nursing

home workers, and I certainly know SEIU, to use but one union.

So now you have a situation where the nursing home industry

chooses not to—they are not interested in your voluntary guideline.

Secretary CHAO. That is not true. They are.

Senator WELLSTONE. Wait a minute, wait a minute. I am asking

you if, in fact, you have a situation where one of these companies

is not interested, because it is voluntary, is there enforcement? Do

you then invoke the general duty clause?

Secretary CHAO. We have a whole enforcement strategy.

Senator WELLSTONE. What is it?

Secretary CHAO. For the very first time, we are going to have an

enforcement strategy that links the investigators and the lawyers

at the Department of Labor.

Senator WELLSTONE. But you have not answered my question.

Will you invoke the general duty clause? That is what you list here

today as one of your——

24

Secretary CHAO. If there is a bad player who is blatantly and deliberately ignoring the well-being of their workers, they will be targeted.

Senator WELLSTONE. What is a ‘‘bad player’’? In other words— I want it to be clear on the record, because it is different from what

I think you were saying earlier—let us assume you have good

people—— Secretary CHAO. The guidelines—— Senator WELLSTONE [continuing]. Let me finish with the question—you have good people who want to go along. I say that is

great; all of us do. Then, you have some actors in the industry who

do not want to go along with the standard. It is voluntary. If they

do not go along with the standard, and you say they are bad actors—and I would like to ask your definition—then, you will invoke

the general duty clause; is that correct?

Secretary CHAO. It will not be linked, but yes, we have—— Senator WELLSTONE. It will what—not be linked?

Secretary CHAO. It will not be linked to guidelines. But we have

a responsibility to ensure that these bad actors who are blatantly

ignoring the well-being of their workers will be taken to task. So

we have that tool, and it is an effective tool, as we have shown in

Beverly Enterprises. And, in fact, the union that you mention,

SEIU, and we have worked together on the Beverly Enterprises

case, and they are quite pleased with the results that we have gotten in that case.

Senator WELLSTONE. I am, too. It took 10 years. But you have

answered my question and you have told me it will not be linked.

Secretary CHAO. It cannot be linked.

Senator WELLSTONE. First you said it would be, but now you say

it won’t be; correct?

Secretary CHAO. It cannot be linked—but the general duty—— Senator WELLSTONE. Okay. Well, then, you have no enforcement.

Secretary CHAO [continuing]. That is not true, with all due respect, Senator.

The CHAIRMAN. Senator Bond.

OPENING STATEMENT OF SENATOR BOND

Senator BOND. Thank you very much, Mr. Chairman, and welcome, Madam Secretary. I can say finally, after more than 10 years

of studies, hearings, false starts, rumors, suspicions, and one

hugely miscalculated, politically motivated regulation, we have an

approach that is grounded in what we know and will reduce workrelated ergonomic injuries, rather than hold employers accountable

for non-work-related pains and discomforts.

Secretary Chao, Assistant Secretary Henshaw, and your entire

team should be commended for tackling this problem aggressively,

forthrightly, and honestly and for developing an approach that

promises to produce results, but above all, it makes common sense

and not just more work for trial lawyers.

To those who would favor a more restrictive, burdensome regulatory approach, I ask why. The Secretary has outlined a comprehensive program with all the elements inherent in a regulation,

but with more flexibility and responsiveness than any regulation

could ever provide.

25

The approach is designed to reduce exposure in the workplace before an employee develops symptoms or reports an injury, compared to the previous regulation, which merely triggers actions

after an injury occurs.

I know there are those who would like to see the regulation reinstated, and we know that legislation has been introduced that

would allow that to happen, but it is beyond me to understand why

they believe it would be beneficial to the workers. Not only would

it shift the focus to post-injury administrative penalties and lawsuits—as I said, a bonanza for those who file lawsuits—it would

cost a very significant number of jobs in the small businesses,

which would either be put out of business or forced to replace

workers with equipment.

The impact on small business is why Senator Enzi and others on

the Small Business Committee, which I chair, were called to use

the Small Business Red Tape Reduction Act to overturn this misguided regulation.

While workplace exposures can contribute to a worker getting an

ergonomic injury, there are many other factors that are not controlled by the employer. As the National Academy of Sciences study

concluded, none of the common musculoskeletal disorders is

uniquely caused by work exposures. That means there was a problem in the causal relationship.

We found out with the invalidated regulation the structure and

burdens of the regulation made it so expensive that it was economically infeasible, particularly for small businesses.

The Secretary’s plan is not just the most reasonable and pragmatic decision she can make within the limits of science and available options; it is actually superior to a full regulatory approach relying on post facto fines and lawsuits.

To make sure, however, that the plan is taken seriously, this

plan includes a very strategic and focused commitment to enforcement designed to find those employers who are ignoring all the advice and assistance instead of putting all employers under hollow

threats. The plan also includes a dedicated commitment to research

to develop new information and data which would help support

more and better guidelines.

By contrast, were a regulation to be issued, it would freeze research where it was because the rulemaking process is cumbersome.

Finally, the plan also includes a more specific vision about outreach and compliance assistance, especially for small businesses,

than we saw before. I think the Secretary’s plan is well-conceived.

We look forward to seeing it put in place.

And I would say that the new bill introduced last night, from our

initial review, is a colossal step backward. It would literally mandate that the invalidated Clinton ergonomic standard be resurrected as if it were being brought back from the dust bin of bad

Government policy. It is a brazen attempt to turn back the clock

and pretend that the bipartisan majorities of both Houses did not

say this regulation was flawed.

The new bill is the legislative equivalent of trying to establish by

law that the world is flat. We know better. The science will not

26

support that conclusion just as it will not support the ergonomics

regulation.

Madam Secretary, you have indicated that you will use your enforcement powers; you will use the general duty clause. It is not

tied to voluntary guidelines because the guidelines are voluntary.

Would you or Mr. Henshaw like to give us some insights into

your enforcement philosophy, because you have indicated that you

do intend to go after those who are not maintaining safe workplaces. Could you explain your enforcement philosophy and your

commitment to us, please?

Secretary CHAO. Yes. I appreciate the opportunity very much.

I did not get a chance to finish. If the nursing home does nothing, if there are no guidelines or any other alternative efforts, they

will be a target for the general duty clause 5(a)(1). And there are

four required elements that go into pursuing a 5(a)(1) case, and I

want to also let John Henshaw speak to this.

We are increasing, in fact, our FTEs in enforcement by about 17

people, so we are increasing our enforcement efforts. We are also

going to be giving out additional grants to help educate and do

more aggressive training and outreach on what ergonomic injuries

mean and how to prevent them.

The four requirement elements are: Is there an exposure to the

hazard? Is there a recognized workplace hazard by the employer or

the industry or employee? Is it likely to cause serious injury? There

is a whole set of rules.

John, maybe you would like to take it up, because you are going

to be in charge of the enforcement effort.

Mr. HENSHAW. Yes, thank you, Madam Secretary.

Yes, obviously, the enforcement strategy is a key component of

this four-prong approach. And it is the first time ever that we have

established a strategy around successful prosecution using 5(a)(1).

The tenets of 5(a)(1) still remain the tenets of 5(a)(1), as the Senator realizes. It is existing in our Act, and we continue to enforce

it according to the tenets established in that. But this will be the

first time that we will develop a team that will be specialized in

identifying those organizations who choose to ignore ergonomic

hazards and do not take the appropriate steps to address them.

They still have to meet the qualifications under 5(a)(1).

Senator BOND. Thank you, Mr. Chairman.

[The prepared statement of Senator Bond follows:]

PREPARED STATEMENT OF SENATOR BOND

Mr. Chairman, all I can say is: Finally! Finally, after more than

10 years of studies, hearings, false starts, rumors, suspicions, and

one hugely miscalculated, politically motivated regulation, we have

an approach that is grounded in what we know, and will reduce

work-related ergonomic injuries rather than hold employers accountable for non-work related pains and discomforts. Secretary

Chao, Assistant Secretary Henshaw and their team are to be commended for tackling this problem aggressively, forthrightly, and

honestly and for developing an approach that promises to produce

results, but above all, just makes common sense.

To those who favor a more restrictive, burdensome, regulatory

approach I would ask: Why? The Secretary has outlined a comVerDate 11-MAY-2000 15:07 Dec 17, 2002 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6601 S:\DOCS\78951 SLABOR3 PsN: SLABOR3
27

prehensive program with all the elements inherent in a regulation

but with more flexibility and responsiveness than any regulation

could ever provide. Furthermore, this approach is designed to reduce exposures in the workplace before any employee develops

symptoms or reports an injury, compared to the previous, invalidated regulation that required a reported injury to trigger an employer’s response. I know that there are those who would like to

see that regulation reinstated, legislation has been introduced that

would allow that to happen, but it is beyond me to understand why

they believe that would be beneficial.

The Secretary and her team have carefully reviewed the data

and testimony that was submitted during last summer’s fora and

have determined that, as a matter of law, there is insufficient certainty and clarity surrounding the requirements for a regulation to

support pursuing a new regulation. For OSHA to pursue a regulation, they must demonstrate: (1) that there are actual injuries; (2)

that these injuries are caused by the workplace; and 3) that these

injuries are preventable through economically and technologically

feasible means. Whether there are actual injuries is no longer at

issue, the problems arise with the other requirements.

While workplace exposures can contribute to a worker getting an

ergonomic injury, so can a wide range of other factors that are not

controlled by the employer. As the NAS study concluded, ‘‘None of

the common [musculoskeletal disorders] is uniquely caused by work

exposures.’’ Absent that causal relationship, OSHA cannot promulgate a regulation to reduce these injuries.

As we found out with the invalidated regulation, the structure

and burdens of a regulation make one so expensive that it becomes

economically infeasible. This is particularly true for small businesses who do not often have workplace safety specialists on their

payroll. Depending on the workplace, the remedies may also be

technologically infeasible if entire workplaces must be redesigned,

or better equipment does not exist to reduce or eliminate exposures.

The Secretary’s plan is not just the most reasonable and pragmatic decision she could make within the limits of the science and

available options, it is actually superior to a full regulatory approach. This comprehensive approach will achieve better results because it preserves employers’ flexibility to try different things instead of forcing them to worry about whether they had met the

burden of a regulation just so they could avoid a legal penalty. To

make sure, however, that her plan is taken seriously, it includes

a very strategic and focused commitment to enforcement designed

to find those employers who are ignoring all the advice and assistance, instead of putting all employers under hollow threats. The

plan also includes a dedicated commitment to research to develop

new information and data to help support more and better guidelines. By contrast, once a regulation is issued, it freezes research

where it is because the rulemaking process is so cumbersome and

lengthy there is no way to react to new findings. Finally, the plan

also includes a more specific vision about outreach and compliance

assistance, especially for small businesses, than we saw before.

Secretary Chao’s plan is well conceived, and will result in better

protection of workers than they currently have. I commend the SecVerDate 11-MAY-2000 15:07 Dec 17, 2002 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6601 S:\DOCS\78951 SLABOR3 PsN: SLABOR3
28

retary for being willing to start from the beginning on this issue

and forging a new course, and I look forward to seeing it put into

place.

COMMENT ON S. 2184—BREAUX ERGO BILL II

The new bill, S. 2184, just introduced by Senator Breaux, is a colossal step backwards. This bill would literally mandate that the

invalidated Clinton ergonomics standard be resurrected as if it

were being brought back from the dustbin of bad Government policy. It is a brazen attempt to turn back the clock and pretend that

bipartisan majorities of both Houses did not say this regulation

was so flawed it could not be salvaged.

By mandating that the docket for the previous regulation be used

for the new rule required by the bill, this bill is quite literally mandating that the same mistakes will be made again. Have not the

sponsors of this legislation learned anything from the previous experience?

This bill also expands the definition of work-related injuries that

would be covered so that now, even injuries that occur outside the

workplace can be covered by this standard. It is simply outrageous

to imagine that an employer would be responsible for injuries that

are caused by anything other than exposures that occur in the

workplace.

This new bill is the legislative equivalent of trying to establish

by law that the world is flat. We know better. The science will not

support that conclusion just as it will not support an ergonomics

regulation. We now have a viable, sensible approach on how to deal

with workplace ergonomic issues before us that the Secretary has

unveiled and we need to do everything possible to make this work

instead of spending energy trying to revive failed, rigid regulatory

regimes.

The CHAIRMAN. Senator Clinton.

Senator CLINTON. Thank you very much, Mr. Chairman, and

thank you, Secretary Chao, for being here and answering our questions.

As you can tell, this is a case of the glass being either half-empty

or half-full, depending upon one’s perspective. I have six areas of

concern, some of which have already been addressed. The definition

and timing issues are ones that I am hoping to get more clarification on based on the questioning of previous Senators. And the enforcement system with respect to the use of the general duty clause

is also something that I am concerned about.

But let me jump to a few other issues. What is the Department’s

attitude with respect to national coverage, because of course, this

plan only applies to States covered by Federal OSHA and not to

the 23 States and Territories that operate their own State OSHA

plans.

So what is it that you will do with respect to the 23 States, one

of which is New York?

Secretary CHAO. Well, generally speaking—and I want to have

John also answer more fully, because I am very interested in Members understanding what our comprehensive plan is all about——

Senator CLINTON. I understand that. But the law——

29

Secretary CHAO [continuing]. Yes. We work very well together

with State OSHA departments. In fact, the Federal standards are

what is the minimum, and then——

Senator CLINTON. That is not the case, Secretary, and I

think——

Secretary CHAO. Let me have John answer it, then.

Senator CLINTON. That would be good.

Secretary CHAO. Thank you.

Mr. HENSHAW. Thank you, Madam Secretary.

The Secretary is correct. We have 23 States that have State

plans, and we have three others that have just public sector employees covered, like New York. We had discussed this plan with

the board that monitors all the State plan organizations. Counting

the total, all employees, as well as State and municipal employees,

we deal with 26 plans. So there are 26 different States including

New York.

Senator CLINTON. But of course, if there were a rule, that rule

would apply to all States. One of the problems after 10 years of effort to try to determine how to deal with this issue is that the existing patchwork of enforcement and coverage challenges led previous administrations, including the first Bush Administration and

the Clinton Administration, to basically throw up their hands and

say, ‘‘We need a rule.’’ One of the reasons they did that is that in

the absence of a rule, States are not required to adopt this plan

and these guidelines that you are promulgating. I think that is a

significant deficit. If half of our States are not covered, then the

voluntary approach that you are proposing leaves out millions and

millions of workers and employers.

So I would ask you to look at that. I do not think that that is

an adequate response.

Secondly, with respect to the voluntary guidelines, one of the reasons that the Clinton Administration finally promulgated a rule is

stated in the preamble to that rule, which is that the promulgation

of a rule was literally the only tool that the agency had not used.

With all due respect, I believe that Secretary Dole and previous

Secretaries of Labor and Presidents were concerned about this

issue, and they tried everything. They tried voluntary efforts, they

tried training, they tried general duty enforcement, and finally, the

consensus was that we needed a rule.

Now, one can quibble about the rule, and one can say that maybe

the rule was not the right rule, but the reason the rule was adopted was because everything else had been tried.

Now, here we are, 10 years later, about to go down that road

again of trying all sorts of things that will only apply to half the

States. I think that that raises some serious questions.

Thirdly, with respect to the use of the general duty clause, I

think that what Senator Wellstone was attempting to get at was

that the general duty clause was used in earlier years in an attempt to try to create pressure on these so-called bad actors to act

voluntarily, and in the absence of voluntary action, the general

duty clause was invoked.

Now, of course, as you know, were subsequent employer challenges to enforcement and legal decisions that essentially rendered

30

the enforcement through the general duty clause time-consuming,

expensive, and ultimately unsuccessful.

I applaud you for the Beverly Nursing Home resolution, but it

did take 10 years, and it is the exception, not the rule. I think the

facts are clear on that.

I am also concerned about the role of compliance assistance and

what I see as a contradiction between your proposal and the budget

that the administration has proposed. As I look at the budget, the

President’s budget cuts OSHA’s overall compliance assistance budget by over $4 million in fiscal year 2003. It also calls for a

huge, $7 million cut, 64 percent cut, in the fiscal year 2003 OSHA

training budget. That would come on line at exactly the time that

these guidelines are going to be promulgated, assuming there is a

guideline by the end of the year, maybe more than one guideline,

and the enforcement of those guidelines rests on compliance assistance; yet the budget is being cut.

I find that contradictory. Can you explain to me how you will

fund the compliance assistance that you are resting this voluntary

effort on in the absence of adequate funding?

Secretary CHAO. Senator Clinton, thank you very much for your

questions and obviously for your concern. You have worked on this,

and I want to say that we are committed to working with you. In

fact, for all the Senators on the Committee, I am more than willing

to have my staff come over and meet with your staff so that we can

present—and we have done so already, but maybe we need to continue to do that. We are more than glad to send our staff over, because we do need a greater understanding of this comprehensive

approach, and we are again more than willing to work with you.

Specifically on the rules issue, people kind of talk about this——

Senator CLINTON. What about the budget issue, Madam Secretary?

Secretary CHAO. On the budget issue, we in fact, as I mentioned,

have increased our FTEs in our inspection ranks by 17, and the cut

in FTEs that you are talking about primarily applies to management. So we, in fact, are increasing our enforcement resources, and

the enforcement resources to ergonomics obviously will reflect that

intensity as well.

Senator CLINTON. What about the Susan Harwood program

which, as I understand—— Secretary CHAO. We are reconstructing the Susan Harwood

grants to be more web-based and to be more conducive to what we

are doing today to reach a larger number of people.

Senator CLINTON. Without any money?

Secretary CHAO. No—we have about $4 million for that. But the

Susan Harwood grants are not the only grants that we use to reach

out for training. There are many other grants which we use for

training purposes as well.

Senator CLINTON. Well, I think the problem is that the webbased programs do not directly address the issues of many low-income and non-English-speaking immigrant workers which is what

the Susan Harwood program was specifically directed to address,

and in fact, the Congress provided money specifically for that program, because again, after many years of experience, we learned

that we could not get information to many of these populations

31

who, as you pointed out, are working in our nursing homes, working in our poultry plants, et cetera.

My final issue, Madam Secretary, is with respect to this new national advisory committee—if I could, Mr. Chairman, just one last,

quick question on this. As I understand it, you are chartering a

new national advisory committee. Does that mean that you are basically ignoring or undermining NIOSH?

Secretary CHAO. Absolutely not. We are, in fact, working as a

catalyst and facilitator, because the National Academy of Sciences

study, in fact, points out gaps in science which we hope, through

a grassroots approach with members who actually work on these

issues, being a part of the national advisory commission, will be

able to fill in some of these gaps and work with NIOSH on that.

Senator CLINTON. I would appreciate additional information on

all of these six issues that I raised.

Secretary CHAO. We would be more than glad to provide that.

Senator CLINTON. Thank you.

The CHAIRMAN. Senator Sessions.

OPENING STATEMENT OF SENATOR SESSIONS

Senator SESSIONS. Thank you, Mr. Chairman.

Madam Secretary, thank you for your leadership. I do not believe

there is anyone in Government more committed to doing the right

thing than you or working harder. You have assembled a first-rate

staff, and I know you want to do this thing right, and I believe you

have proposed these procedures as a result of your honest and fair

study of it. So we thank you for that.

With regard to the 600 pages of guidelines that the previous regulations were proposed to be part of, you really almost have to

have 600 pages if you are going to do a comprehensive management of all industry in America through a written guideline. It is

so large and so complex, as Senator Enzi noted, that it is just difficult if not impossible, particularly for small businesses, to comply

with them.

So I believe there are some good indications that we are moving

in the right direction. You noted in your written remarks that musculoskeletal disorders have declined by 46 percent since 1992. We

do not have any mandatory regulations to cause that; it is because

businesses know that if they have safe workplaces, they will have

better workers, happier workers, workers who will be off from work

a lot less, and they have a real self-interest in making that happen.

I know that Treasury Secretary O’Neill is almost obsessive about

his efforts on behalf of his business previously, in Alcoa, to reduce

injuries. But injuries are difficult to ascertain, particularly ergonomic injuries. I have concluded that I have carpal tunnel syndrome. I did not know it until I worked at home in the woods one

day with a machete, and my hand became numb, and I notice now

that if I work out in the gym in certain ways, my hand gets numb.

If I write for a long time, my hand will get numb. Now, I do not

know what caused it—working out at the gym or writing. So some

of these things are just difficult to ascertain what is causing the

injury.

I believe that your approach has much merit. Let me ask you

this. You indicated several times that it would literally take over

32

4 years if you were to promulgate another complex set of guidelines

to actually have them become law. How does that happen?

Secretary CHAO. To do a credible and responsible job, it would

take about 4- to 41⁄2 years.

Senator SESSIONS. And those have to be published, and you have

to have input and all of the formalities that go along with that, and

Congress would have to vote again on whether or not to approve

them. Your proposals take place right now.

I note, Madam Secretary, some of the successes in the meatpacking industry as a result of voluntary guidelines. I am told that

with industry-specific guidelines in the meat-packing industry,

where OSHA focused on enforcement, and the guidelines were specific to the kind of work they do in that industry that days away

from work have gone down 47 percent from 1992 through 1999,

and that for injuries from strains and sprains, days away from

work have gone down 61 percent; that rates for back injuries and

days away from work have gone down 64 percent. Now, that was

a voluntary procedure in which OSHA worked with that industry

to develop realistic goals and guidelines for their specific kind of

work.

Is that what you have in mind throughout all industries in general?

Secretary CHAO. Very much so. There is an assumption that

rules work. There is an assumption that had the previous rule been

upheld that it would have worked, and that is not at all certain.

The previous rule most likely would have been, again, bogged

down in litigation, and there was a great deal of uncertainty as to

whether that rule would have indeed saved very many people from

very many injuries. I am concerned about prevention. I am concerned about a speedy resolution, a speedy and responsible solution

to help workers with their injuries.

Well, we know that the estimates were as high as $60 billion annually under the previous set of regulations, and we have to ask

ourselves if we are getting the maximum benefit from that kind of

expenditure, and I do not think we are.

Senator Enzi and I had the privilege to know and have testify

here Mr. Ron Hayes, whose son was killed in a workplace accident.

He is just passionate about the view that I share, and I know Senator Enzi shares, that we need to do more in advance of accidents;

that just coming in after accidents and fining and so on is not a

good way to do business.

I notice in your testimony that you do expect increased inspections, and you project increased inspections in the years to come;

is that correct?

Secretary CHAO. We expect to increase inspections to about

38,000 this year.

Senator SESSIONS. And that will represent a commitment on your

part to inspect the workplace prior to an injury?

Secretary CHAO. That is always our goal. We want to be helping

people prevent injuries, not after they have occurred and punishing

people afterward.

Senator SESSIONS. Some have complained about your insistence

that we go out and get the best science on health and injury matVerDate 11-MAY-2000 15:07 Dec 17, 2002 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6601 S:\DOCS\78951 SLABOR3 PsN: SLABOR3
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ters. Explain to us why it is important when we pass a rule or

guideline or regulation that we have good science to back it up.

Secretary CHAO. Having a sound foundation and understanding

what we are regulating I think is very important. The National

Academy of Sciences study does point out that there are gaps in

the science. That is why we have set up this national advisory commission. The charter of this commission will be coming out in 30

days, and we want to be able to also print out and release guidelines for nominations as to how people can apply.

What we basically want to do is to make sure that we are preventing injuries before they occur. We have a speed program which

we want to enact. We have a strong enforcement program and

team in place, and we want to add to the sound science.

Senator SESSION. Thank you. I share that view.

Thank you, Mr. Chairman.

The CHAIRMAN. Senator Dodd.

OPENING STATEMENT OF SENATOR DODD

Senator DODD. Thank you very much, Mr. Chairman.

Let me begin by thanking you, by the way, for convening this

hearing, and thank you, Madam Secretary and Mr. Henshaw, for

being here today to participate in this discussion.

Madam Secretary, you do not have an easy job. All of us know

that, and we appreciate your willingness to take these issues on.

I must say, though, that in reading over your statement of more

than a year ago now, in March 2001—and others may have read

it, but I read it again this morning, and I am quoting here—this

was just prior to the abandonment of the regulations involving

ergonomics—you said that you made a commitment ‘‘to pursue a

comprehensive approach to ergonomics which may include new

rulemaking. This approach will provide employers with achievable

measures that protect their employees before injuries occur.’’

As I review the bidding in going over this, what we have is a

plan for a plan. Is that about right?

Secretary CHAO. I think you have to announce what you are

going to do before you do it.

Senator DODD. So it is a plan for a plan.

Secretary CHAO. We have announced what direction our Department will take to reduce workplace——

Senator DODD. It is a year later. There have been 1.8 million

people who have suffered. I think those numbers are pretty accepted.

Secretary CHAO. No, they are not, but——

Senator DODD. Well, do you think this is a serious issue? A lot

of people do not.

Secretary CHAO. Even one injury——

Senator DODD. Our colleague from Alabama is candid about it.

He says, ‘‘I do not think this is really a serious problem.’’

Secretary CHAO. No, no. I think——

Senator SESSIONS. No, I did not say that, Mr. Chairman——

Senator DODD. Well, I think some people think this is sort of

made up, excuses why people do not show up at work.

Senator SESSIONS. I would just like to have a personal——

34

Senator DODD. Let me ask the Secretary—let me use my time to

ask the Secretary——

The CHAIRMAN. Wait a minute.

Senator SESSIONS. You raised my name——

The CHAIRMAN. On my time, on my time——

Senator SESSIONS [continuing]. And suggested I did not think

this was serious, and that is absolutely incorrect.

Senator DODD. The Senator has responded.

Let me ask the Secretary—how serious do you think it is?

Secretary CHAO. I think that ergonomic injuries are serious, and

I think everyone is concerned about it.

Senator DODD. Why does it take over a year to come back with

a plan for a plan?

Secretary CHAO. Because we live in a democracy and we have

people who want to make known their concerns, and we have gone

through our due diligence in talking with the various stakeholders.

I have talked with numerous labor leaders; I have talked with primarily labor leaders, and my staff has talked to others that I am

not personally able to talk to myself. But we have to take the input

of various groups who are involved in this issue and incorporate

them in what we are going to do.

Senator DODD. I understand that, but there are no standards

here, no guidelines, no targeted industries, a general duty clause

that could take 9 years in some cases, we know, before employees

get any kind of answer at all.

Secretary CHAO. Not under my tenure. We were able to effect action on this nursing home care after 11 years, and that is because

it took leadership and it took determination.

Senator DODD. Well, I appreciate that, but the point is your response to Senator Wellstone says we are not going to enforce based

on the guidelines——

Secretary CHAO. We are going to enforce.

Senator DODD. But not based on the guidelines.

Secretary CHAO. If there is a bad actor and there is flagrant

disregard——

Senator DODD. But did I hear wrong—not based on the guidelines.

Secretary CHAO. No, it cannot—it cannot be linked.

Senator DODD. All right. Let me go back. Senator Clinton raised

a very important series of questions here about money. I mean,

here we are increasing budgets for homeland security, we are increasing budgets obviously to try to make us more secure, we are

looking into bioterrorism issues. The one agency that comes up

with answers and research in this area, in NIOSH, in OSHA, we

are cutting the budgets by $28 million and $9 million, respectively,

and cutting, 64 percent of individuals in the enforcement area. How

do we explain to our constituencies that at a time when we are facing greater threats from bioterrorism, in the very agencies of the

Federal Government that we are going to be asking to step in here,

we are looking at cuts of $9 and $28 million respectively and 64

percent cuts in enforcement—or 83 positions.

Secretary CHAO. I cannot speak to the supposed cuts in NIOSH.

In terms of OSHA, we have actually been very much involved with

35

homeland security and with the anthrax scare. We have signed a

partnership agreement with the international laborers—— Senator DODD. But do you agree with these cuts? Do they make

sense to you?

Secretary CHAO. We are not cutting back enforcement. We are

increasing—— Senator DODD. Well, how about the positions? There are 83 posi- tions. OSHA is being cut by $9 million and 83 positions, and 64 of

the cuts are in enforcement.

In response to my friend from Alabama, your answer was 38,000

inspections. I think you raised the question about how many inspections.

How do you increase the number of inspections when you are

cutting back on the number of people who are charged with doing

the job?

Secretary CHAO. Let me say that our enforcement action, as I

mentioned—we are increasing our resources in enforcement. But

let me go into more detail with John Henshaw, if I may.

Mr. HENSHAW. Thank you, Madam Secretary.

The Secretary IS RIGHT. We have not decreased our enforcement

staff. In fact, we have increased it.

Senator DODD. Well, what is this number? Am I wrong about

that number?

Mr. HENSHAW. Yes, you are. The inspection force has increased,

sir. We are at 1,123 individuals. It is up from last year and will

remain that in year 2003.

What you are speaking to is the overall enforcement staff which

are primarily managerial and support staff. They are not our inspectors. Our inspectors are increasing.

Secretary CHAO. And they are all out in the field.

Mr. HENSHAW. There are the ones who are actually doing the inspections in the field.

Senator DODD. But we are going to cut back on that budget, anyway?

Mr. HENSHAW. To effective management, we are looking to cutting managerial staff, and that is successful; we can do that.

Senator DODD. All right. Let me jump to the Susan Harwood

issue that Senator Clinton raised with you as well.

If we are talking about the minority community, the Latino community, how does a web-based program help? How many people in

the Latino and minority community are on the web? Do we know?

Secretary CHAO. Let me answer one part of it, and then, John,

if you can answer that, because you are going to be in charge. We,

in fact, have a particular outreach program to Hispanic workers

and other immigrants with limited English proficiency as part of

our comprehensive plan. We understand that a lot of new immigrants are in these high-risk, low-paying industries, so we do have

a special—we have a particular emphasis/outreach program for

Hispanic workers. And John, if you can just describe that.

Senator DODD. Is this the web-based program that we are talking

about?

Secretary CHAO. This is overall. The web-based is only a very

small part of it, and that is not the only part of it.

Senator DODD. Go ahead, Mr. Henshaw.

36

Mr. HENSHAW. Senator, I appreciate the opportunity to comment

on this. Let me just emphasize the fact that I have been in the

safety and health business for 26 years, and my only job is to reduce injuries and illnesses. That is my only purpose in life. In fact,

my kids say that I have been in this business all my life, and I say

I have not yet, but I am working on it, and I will. This will be my

entire life. This is the most serious thing that we are doing, at

least I am doing as Assistant Secretary of Labor.

So the ergonomic issues are very serious to me, and this plan

will work. It will produce quick results. It will produce lasting results.

Senator DODD. This plan for a plan. You are not calling this a

plan, then.

Mr. HENSHAW. No, sir. This is a plan, and the plan has four elements. One element, one piece of that plan, deals with developing

guidelines, industry-specific and task-specific guidelines. These are

guidelines that will cover specific industries to help determine

what are the real solutions to real problems.

Senator DODD. When will we get those, by the way, John? Do you

have any idea when we might get these guidelines?

Mr. HENSHAW. I do not think you had stepped in the room—we

had announced that nursing homes are the first set that we will

be working on, and we have an agreement with all parties involved

to help us develop these guidelines.

Senator DODD. When? Give me some ball-park.

Mr. HENSHAW. We are starting now, and we will have them out

very quickly.

Secretary CHAO. As soon as we can.

The CHAIRMAN. The Senator’s time has expired.

Senator DODD. Thank you.

The CHAIRMAN. Senator Edwards.

OPENING STATEMENT OF SENATOR EDWARDS

Senator EDWARDS. Thank you.

Secretary CHAO. And this requires input from groups—sorry, Mr.

Chairman.

Senator EDWARDS. Thank you, Mr. Chairman.

Madam Secretary, I wanted to give you a chance to respond if

you needed to.

Secretary CHAO. No. I am fine. Thank you very much.

Senator EDWARDS. Good morning. How are you?

Well, this has been an interesting hearing. I had been watching

some of it before I came here. Let me tell you what my concern is

and see if you can address some of these concerns. It appears to

me that what is being proposed is that the only enforcement mechanism is enforcement under the general duty clause. Am I right

about that?

Secretary CHAO. If it is—yes. That is an important component.

It is a very valuable tool, yes.

Senator EDWARDS. But that is the enforcement mechanism that

you are proposing, is use of the general duty clause; right?

Secretary CHAO. Yes.

Senator EDWARDS. Okay. Now, if I understand it correctly, what

OSHA must show in order to—was that right—okay—what OSHA

37

must show in order to prevail under the general duty clause is first

that a hazard exists, number one; second, that the hazard caused

or is capable of causing serious injury; third, that the employer recognize the hazard; and fourth, that there is a means of abatement

that the employers failed to employee—all of those things have to

be shown. Would you consider that a fairly heavy burden for

OSHA?

Secretary CHAO. I am not an expert. I believe that the legal advice that we have received is sound. There was talk about Mr.

Scalia, and I am not interested in revisiting the confirmation battle

over Gene Scalia; he is now our Solicitor, and he is doing a great

job. Before he was appointed, he had no role in this. Since his recess confirmation, he has helped us refine our 5(a)(1) strategy.

There has been some comment that he was very much aggressively

against it. Well, I can think of no better advocate to help me draft

this strategy than to have someone who understands every nuance.

So he is now my advocate; he has a new client, and I am very confident that he will be a very forceful advocate.

Senator EDWARDS. Well, let me ask you about him, since you

brought it up. I think Senator Kennedy raised this issue briefly

earlier. I think in May of 2000, Mr. Scalia wrote an article about

the very enforcement mechanism that you are completely depending upon now in this proposal, and it was called ‘‘OSHA’s

Ergonomics Litigation Record: Three Strikes, and It is Out.’’ And

I think he talked about three different cases. One was the Beverly

Enterprises case which in fairness was reversed subsequent to the

time that he wrote the article. But when he goes through the three

cases and talks about use of the general duty clause as an enforcement mechanism, he uses words like ‘‘OSHA’s record is embarrassing’’—I am quoting him now—‘‘embarrassing, devastating, dreadful.’’ This is your Solicitor, as I understand it, talking about the

very enforcement mechanism that you are now proposing be used.

And again, in fairness, one of the cases was reversed after that

time, but the other two I think were not.

Secretary CHAO. Well, he has a different client now.

Senator EDWARDS. So his view on that has changed?

Secretary CHAO. He has said that he will enforce the law. And

I think it is noteworthy that Beverly Enterprises was settled when

he came on board. This is a very effective tool, and it will be used.

Senator EDWARDS. Sure. Well, that is what I want to talk about,

the effectiveness of the tool, because what Mr. Scalia was talking

about was—regardless of who his client is or which side he is

on——

Secretary CHAO. It makes a big difference.

Senator EDWARDS [continuing]. But what he was talking about at

the time was how effective—he was not speaking for a client—he

was talking about how effective he believed these OSHA general

duty clause enforcement proceedings were, and he described them

as ‘‘embarrassing, devastating and dreadful.’’ And this is now the

guy who is your Solicitor.

Let me just ask you about Beverly Enterprises, the case that you

mentioned was just settled. If I understand it correctly, this case— and again, we are now talking about the only way that you will be

able to enforce—this case, which was settled in 2002, took about

38

10 years, is that correct, from the time the first citation was filed

in 1992?

Secretary CHAO. I believe so, yes.

Senator EDWARDS. And if I understand—tell me if I have these

facts right—some of the remediation, in other words, what needs

to be done to fix it, is going to take another 5 years. So for the employees who are involved, it is a period of 15 years. And again, correct me if I have these facts wrong—this was after a 31-day trial,

four Labor Department lawyers involved, five expert witnesses, a

5,500-page trial record, a long decision by an administrative law

judge who ruled against you and, 5 years later, an even longer decision by the OSHA Review Commission.

Did all of those things happen in that 10 years that this case was

going on—if you know.

Secretary CHAO. I am not a trial attorney, as experienced as you

are. All I know is that the last administration was more intent on

getting out a rule than showing real enforcement teeth on this general duty clause——

Senator EDWARDS. But can I tell you—excuse me—I will not interrupt you; you finish.

Secretary CHAO [continuing]. And let me also add that the labor

union that is involved with workers who work in this industry was

very satisfied with the outcome.

Senator EDWARDS. Well, here is my concern. If the only way you

have of enforcing these voluntary standards that you are creating

is this mechanism, and the two cases you cite as successes, one

took 10 years and will take another 5, at least for some provisions,

for remediation; so that is 15 years. The other case, which is the

Pepperidge Farm case, took a period of almost 10 years, and the

factory that is involved is actually not even open any more; it is

closed, as I understand it. And those are the cases that you cite as

examples of how successful it is.

Here is what I am concerned about. Let me just give you a hypothetical case. Let us assume that you have a company that has bad

working conditions, and they do not want to fix them, and you give

them a citation under this general duty clause provision. The company goes to its lawyer—we know this happens in the real world—

and the company says, ‘‘Listen, it is going to cost us all this money

to fix this thing. I do not agree with them. I do not want to do it.

Can we fight it?’’

And their lawyer, who is an experienced lawyer representing

them in these kinds of cases, says, ‘‘Well, you know, the truth of

the matter is the Labor Department has limited resources.’’ My experience with these things has been that they take years; they can

take as long as 8, 10, 15 years. And every day that that case is

going on, you can keep operating exactly the way you are operating

now.

Would you be surprised—if the only enforcement mechanism is

what you are proposing—would you be surprised if lawyers who are

out there representing companies who are violating the standards

that you are proposing would give that kind of advice?

Secretary CHAO. I think it is noteworthy in Beverly that we

fought it out with five homes, five facilities, within this company.

We were able to leverage that to 275 facilities. So I think that this

39

tool, if used properly and used intensely, could be of very much

value.

I don’t think there was the comprehensive approach nor was

there a linking up of a legal strategy with the enforcement strategy

to make this work.

Senator EDWARDS. But would you—just one last question, Mr.

Chairman—would you be surprised if this is all you have got, if it

is the only tool you have got—and that is what you are proposing—

would you be surprised if the lawyers out there representing these

companies may not give advice that these things drag on, you can

fight them, you can keep doing exactly what you are doing—and by

the way, in the meantime, the workers who are employed are continuing to be hurt every, single day.

Secretary CHAO. Certainly.

Senator EDWARDS. That is something you would be concerned

about?

Secretary CHAO. Absolutely. I may also say that Beverly and

Pepperidge Farm were just the first two decisions. We have to establish some new principles, and I think the next cases will be faster.

Let me also say that if we had a rule, and if that rule had been—

I talked a lot about litigation already under the previous law; the

lawyers can object under the previous repealed rule as well.

Senator EDWARDS. Thank you very much, Madam Secretary.

Secretary CHAO. Thank you.

The CHAIRMAN. Just very briefly, Madam Secretary—and I thank

you so much—we are winding up this part of the hearing, and we

still do not have the goals or the timetables set by the administration.

This is what the OSH Act of 1970 says: ‘‘To assure safe and

healthful working conditions for working men and women by authorizing enforcement of the standards developed under the Act.’’

There it is, the first sentence—standards.

Over the period since this Act has been in force, we have had

standards on benzene, we have had standards on lead, we have

had standards on asbestos, on coal dust, on bloodborne pathogens,

on formaldehyde, on confined spaces. We have had scores of standards, and none of those—none of those—has even come close to

causing the number of injuries that we have with ergonomics.

I do not see how you can possibly justify the fact that the administration refuses to do what it has the power and the authority to

do, and that is to really protect workers by issuing new standards.

You do not have the timetables, you do not have the guidelines.

You cannot measure your own results, and there is no way in the

world that we are going to be able to do that, either. That is my

real disappointment as a result of the administration’s position on

this.

If you want to make a brief comment, I would invite you to make

any comments that you would want to on that.

Secretary CHAO. Mr. Chairman, I appreciate the opportunity to

appear before the Committee. Ergonomics injuries is an issue

which I am very concerned about. I am concerned about enacting

a speedy program that will get results, and a rule would have

40

taken too long; it would have been subject to litigation and further

possible stays.

I am concerned about prevention as well. The previous rule had

a trigger in there; I did not like that.

I hope that the Committee will work with me, because this Department wants to prevent ergonomic injuries before they occur.

We have a strong enforcement program. We want to add to the research. We have a national advisory committee which we are going

to call upon, people who are well-versed in this area, to seek their

help as well.

So I hope the Committee will work with us, and as we go forward, we do hope—it is certainly my intent to show results.

The CHAIRMAN. Senator Gregg.

Senator GREGG. Thank you, and I apologize, Madam Secretary,

for having had to leave briefly, but I was able at my other event

to watch a little bit of the testimony. One of the issue which was

raised, which I thought was interesting, was this question of the

relationship of the Department on its rules relative to the States.

As was mentioned, there are 26 States that have legislation in this

area and have operating agencies in this area. The argument was

made, I think by the Senator from New York, that the only way

the Federal Government could assert its jurisdiction was through

a rule, that if we did not have a rule, if we used the guideline approach that the Department is suggesting, then you would have to

work with the States in order to accomplish the regulatory oversight and to get the type of workplace atmosphere that you deem

appropriate.

This raises two issues. First, is it the assumption of the Department as it appeared to be the assumption of the question that

these States, especially, for example, New York, are not capable of

coming up with their own workplace rules which effectively address

the issue of ergonomics?

And second, is it reasonable to presume that you must use the

hammer of the Federal Government coming in and using a onesize-fits-all rule to address issues which are uniquely divided

amongst the States, or is it reasonable to assume that the Department can work with the States to develop guidelines which are

jointly pursued and which effect the result of being concerned

about workers.

I would be interested in Mr. Henshaw’s response to that, because

he responded to the original question, and the Secretary’s also on

this.

Mr. HENSHAW. Thank you, Senator.

Yes, you are correct. The State programs have the responsibility

to enforce the requirements under OSHA. We are granting them

that right through our funding, and they are executing it. They can

promulgate more stringent standards, but they must be at least as

stringent as the Federal system.

Two States, as you know, have ergonomic rules. One is a trigger,

which is California, which the Secretary already indicated that that

was not acceptable to her. The other one is Washington State,

which as you know, the Governor has also put a stay on the Washington State rule. So those two States have done something in addition to what we are doing.

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The comprehensive plan covers the entire Nation. Our efforts

around the four prongs cover the entire Nation. Certainly the

States have the ability to enforce under 5(a)(1), and we will work

with them to make sure their enforcement strategies were up to

par to be successful when we choose to take 5(a)(1), the general

duty clause.

The guidelines we are working on are nationwide guidelines, and

implementable, and will be implemented across all States regardless of whether it is a State plan or a Federal system. So our approach covers nationwide.

I have talked in several States to the people who run these State

programs, and they are very supportive of this plan. They believe

it will work just as we believe it will work, and they are going to

work with us to execute plans successfully to reduce musculoskeletal disorders.

Secretary CHAO. I might also add that the Federal OSHA really

does apply to private employees in New York State—and I am talking specifically about New York State. The State plan in New York

actually only applies to the public sector.

Senator GREGG. Thank you. I appreciate your time.

The CHAIRMAN. Senator Wellstone.

Senator WELLSTONE. Well, Mr. Chairman, the Secretary has

been here for a long time, with much questioning, and I know we

have other witnesses. There are two things I want to mention just

for the record.

Senator Harkin wanted to be here today, but he is in a conference committee on the agriculture bill, and he wanted me to convey that to you, Madam Secretary.

And I would like to put some questions to you on the research

agenda. I raised that at the beginning, and I will just put those

written questions to the two of you, and we will do it that way because we have other witnesses as well.

There is a strong difference of opinion, obviously, but I do thank

you for being here.

Secretary CHAO. Thank you.

[The prepared statement of Senator Harkin follows:]

PREPARED STATEMENT OF SENATOR TOM HARKIN

Thank you, Mr. Chairman, for holding this important hearing

and thank you, Secretary Chao, the UFCW and other witnesses

who have joined us today to talk about this proposal.

Before I begin with my questions, Ms. Chao, I’d like to take a

moment to express my extreme disappointment in the proposal

that the administration released earlier this month.

I’ve taken a good look at your plan—and from what I can see,

your four-pronged approach does very little to prevent these debilitating injuries.

In your April 5 announcement packet, you’re quoted as saying

‘‘This plan is a major improvement over the rejected rule because

it will prevent ergonomics injuries before they occur and reach a

much larger number of at-risk workers.’’ Your plan does nothing of the sort. What you’re proposing are

unenforceable guidelines and a commitment to continue efforts—

such as OSHA compliance assistance—that already exist. Of

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course, that commitment doesn’t seem too strong since the President’s 2003 budget cuts compliance assistance.

I just can’t understand how your voluntary plan will prevent

more injuries than an ergonomics rule—that is enforceable and

based on more than 10 years of scientific study.

Well, I’m pleased that here in Congress we’re still pursuing an

enforceable rule to protect America’s workers—many of whom who

suffer from these injuries are women. I am a proud cosponsor of

the bill Sen. Breaux introduced yesterday that puts a 2-year deadline for a final rule.

The CHAIRMAN. Senator Enzi.

Senator ENZI. Thank you, Mr. Chairman.

I just want to thank the Secretary for being the first Secretary

of Labor to appear before the Committee and for now having done

that twice.

On the general duty clause, I feel compelled to point out that

when we had testimony before, one of Senator Wellstone’s people

showed that the general duty clause does work, that there had

been huge improvements in their company as a result of that. And

that had not been one of those that went through the 10-year process. So the threat of the general duty clause is a provision that can

make a difference.

Senator WELLSTONE. I want to remind my good friend that the

Secretary is on record saying that the general duty clause will not

be invoked in relation to the voluntary standards; so that is the

problem once you de-link it.

Senator GREGG. Does the Secretary wish to respond to that?

Secretary CHAO. We will target. We have a strong enforcement

program. We will target bad actors.

Senator WELLSTONE. I understand that, and you keep saying

that, but I asked you whether in relation to your voluntary standards whether it was directly linked or not if people did not comply,

and you said no.

Secretary CHAO. We will be very targeted in our approach, because you cannot inspect every single workplace even if we had a

rule. So we are going to be able to target specific offenders, and

that will be a strong deterrent effect. We will make sure it is successful.

The CHAIRMAN. Madam Secretary, this is obviously a matter of

enormous importance and consequence—I know you feel that

way—and we have important areas of difference, but I want to

thank you very much for appearing before our Committee today

and for your responses to the questions. We are very, very grateful

to you for doing so.

Secretary CHAO. Thank you, Mr. Chairman.

The CHAIRMAN. We now welcome our panel.

Jackie Nowell is Director of Occupational Safety and Health for

the United Food and Commercial Workers. She is a certified industrial hygienist and earned her Master’s in Public Health at the

University of California. She served as Assistant Professor in the

Environmental and Occupational Health Sciences Division of

Hunter College in New York City. In her work with the United

Food and Commercial Workers, she has been deeply involved in the

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development of major ergonomic programs, particularly in the red

meat and poultry industries.

Melody Purvis started working in the returns department at

Brylane in Indianapolis, IN in November 1993. Brylane is a major

catalog clothing company. We welcome her.

Paul Fontana is an Occupational Therapist and owner of Fontana Center for Work Rehabilitation in Lafayette, LA. The Fontana

Center has 40 employees who administer programs to businesses

and individuals such as industrial injury prevention, rehabilitation,

and return to work. We are delighted to have him here.

Jackie, do you want to start?

STATEMENT OF MS. JACKIE NOWELL, DIRECTOR, OCCUPATIONAL SAFETY AND HEALTH OFFICE, UNITED FOOD AND

COMMERCIAL WORKERS INTERNATIONAL UNION

Ms. NOWELL. Thank you, Chairman Kennedy and Members of

the Committee.

I am Jackie Nowell. I am ddirector of the Occupational Safety

and Health Office at the United Food and Commercial Workers

Union. We represent packinghouse workers, poultry workers, retail

store workers, and myriad other industries.

Thank you for the opportunity to testify today about ergonomics

and the Department of Labor’s proposal for addressing the nearly

2 million MSDs suffered each year by American workers.

My testimony provides historical background and evidence for

why the Bush Administration’s proposal to confront this epidemic

with a voluntary program will fail to bring about a significant reduction in musculoskeletal disorders.

My full statement is in the record, so I am going to summarize,

and I also want to raise a few points that were raised both by the

Secretary and by the Committee.

The Department of Labor’s announced plan released on April 5

merely mirrors OSHA’s experience in the red meat industry more

than 10 years ago. Everything else has been used except a standard, and I think that was well-put this morning.

Let me give you that scenario in the red meat industry. We have

very high rates of injuries in the industry. The union filed, in the

late 1980s and 1990s, OSHA complaints. These resulted in inspections and citations under the general duty clause and high fines including, actually, those for recordkeeping.

The companies settled. The settlement agreements mandated

highly successful ergonomics programs. In the midst of that enforcement in 1990, OSHA utilized the expertise of ourselves, the

union, the meat industry and the Government in development of

these now-famous red meat guidelines. I actually brought a copy

with me; they used to be red, and they are now green.

In 1990, Secretary of Labor Elizabeth Dole announced her commitment to go forward with an ergonomic standard. Then again in

1992, Secretary of Labor Lynn Martin again committed to a standard. During the mid-1990s, there was research going on, and there

were also tripartite stakeholder meetings.

The missing piece, of course, was a standard. So when we talk

about comprehensive plans, all has been done before. The missing

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piece was a standard. And the administration in 2002 actually published a standard.

This bit of history shows that rather than moving forward, the

Department of Labor is actually moving backward.

Let me say a little bit about the incidence of MSDs which was

raised here this morning in the meat-packing industry. While much

has been done, let me give you the most recent statistics and then

an example from one of our plants.

The meat-packing industry still leads all industries in numbers

of injuries and illnesses. Fully one-quarter of meat-packing workers

are injured every year.

Number two, the weight of lost work-day injury/illnesses cases

leads all other industries.

And number three, the meat-packing industry still leads the

pack with MSDs.

One of my plants, which is the starship plant for having an

ergonomics program, the union tells me today in this year has an

MSD rate of 10 percent. Is that okay? Is that acceptable? We say

no.

As for the Bush Administration’s plan, where is the beef? Workers have waited over 1 year, and the announced plan is less than

three pages long, and it contains no specifics.

As to the issues of State plans and employer guidelines—again,

these were raised earlier—there has never been anything to stop

the States from going forward with ergonomic rules or with guidelines. As a matter of fact, several have done that. There has never

been anything that would stop the industry from going forward

with ergonomic guidelines.

This plan announced today does not give anybody permission to

do any of that. That all has been there.

In terms of the guidelines, I again want to put in context the red

meat guidelines. They came on the heels of high, high numbers of

injuries in this industry. Union complaints that brought OSHA into

those plants, inspections, high fines—John Morrell was fined $4.1

million, the highest fine in OSHA’s then history—were followed by

settlement agreements, and part of the reason they settled was because it was also a recordkeeping issue. These companies were bad

actors at the time. So we got settlement agreements.

On the heels of that, people sat down from all of the parties and

said let us come up with guidelines on this, and at the same time,

the agency said they were moving forward with a standard. So

whenever someone tries to take the red meat guidelines out of context, you must remember that they were in a context, and that it

was 10 and 12 years ago. Companies get it now. They know about

enforcement, they know about general duty clause. I do not think

it would work today the way it worked back then.

The CHAIRMAN. Take another minute if you could wrap up.

Ms. NOWELL. Okay. The general duty clause was talked about a

lot. In terms of outreach and assistance, we represent low-wage

workers, immigrant workers, and we believe that cutting back the

very grant program that is reaching those workers is a real mistake. We were very glad to see that Senators Breaux and Specter

introduced legislation yesterday that would force the Department

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to issue a standard. Workers now look to you, their elected officials,

to swiftly pass legislation.

Thank you.

The CHAIRMAN. Thank you very much.

[The prepared statement of Ms. Jackie Nowell follows:]

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RESPONSE TO QUESTIONS OF SENATOR ENZI FROM JACQUELINE NOWELL

Answer 1. Please see my testimony, pages 8 and 9. As I have stated often in the

public record regarding our role in and support of the Red Meat Guidelines, their

development and use must be taken in the context of the time. They were developed

in the middle of heavy union complaint-generated enforcement activity by OSHA in

the meatpacking industry. Under the settlement agreements, companies were developing comprehensive and effective ergonomic programs, the elements of which were

incorporated into the Guidelines. And, concurrently, Secretary of Labor Elizabeth

Dole announced the Department’s decision to promulgate a standard. Therefore,

OSHA was quite confident that companies who had not yet been inspected for ergonomic hazards would follow these guidelines.

We are in a very different time today. Initially, companies who were cited under

the General Duty Clause, negotiated and settled the citations with ergonomic programs. However, strong and meaningful OSHA enforcement under the General Duty

Clause is extremely difficult, as illustrated by the Pepperidge Farms and Beverly

Enterprises cases which took years to litigate and settle. And companies know this.

As well, the last major ergonomics case OSHA brought, against Hudson Foods

(Tyson Foods, Inc.), resulted in a settlement with no specifics, a mere shadow of the

prior settlement agreements OSHA negotiated in the early 1990s.

Answer 2. The Department of Labor’s plan has been done before, you’re correct.

But, this is the year 2002, not the year 1990. We’ve been there and done that! As

for the components of the plan, they are NEARLY the same as those in 1990 (and

1996). However, OSHA was committed to promulgate a standard, that’s the missing

piece that both opponents to a standard and this DOL forget! Where is the hammer

to convince ‘‘bad’’ companies that they should address ergonomic hazards? General

Duty Clause enforcement? I don’t think so, in the post-Pepperidge Farm, Beverly

Enterprises era.

I have a question you might consider asking the DOL. There is no doubt that the

number of cumulative trauma cases in the meatpacking industry have dropped since

1991 and significant progress has been made in the area of ergonomics. However,

the industry still experiences the highest rate of reported MSDs. My best plant has

a 10 percent MSD rate for the year 2002. Is that good enough? The answer is clearly

NO!

Answer 3. Yes. History shows that the decade-old General Duty Clause enforcement strategy utilized by OSHA in the meatpacking industry, the result of union

complaints, was successful. Again, please look at the cases, the large number of injured workers, the limited number of cases, the speed with which they settled (two

years compared to ten for later cases, Beverly Enterprises and Pepperidge Farms),

the unprecedented fines ($4 million) and the huge endeavor required by OSHA, including astronomical costs. Subsequent employer challenges to enforcement actions

and legal decisions have made its use today much more difficult.

Answer 4. Voluntary efforts have so far failed to protect workers from work related MSDs. Overall the number of MSDs has remained the same for the past several

years. But in a number of high risk sectors, including nursing homes, air transportation and trucking and courier services, MSDs have increased. Cashiers and construction laborers MSDs have also increased.

OSHA successfully utilized the expertise of Government, industry and the union

in both development of the Red Meat Guidelines and subsequent stakeholder meetings during the course of standard development. However, with additional guidelines, OSHA is developing little more than educational pamphlets if they are unwilling to link these guidelines to enforcement, actually utilize the guidelines in coordination with an effort to enforce compliance with them.

What will motivate industries to address ergonomic hazards who have not already

under a set of guidelines not linked to enforcement? The threat of a random OSHA

inspection? It would take OSHA 84 years to inspect all the workplaces under its jurisdiction just once. I don’t think so!

Thank you for this opportunity to once again share with the Committee our experience regarding this hazard which significant affects the UFCW membership.

The CHAIRMAN. Ms. Purvis.

STATEMENT OF MELODY PURVIS, FORMER EMPLOYEE,

BRYLANE, INDIANAPOLIS, IN

Ms. PURVIS. Mr. Chairman and Members of the Committee, my

name is Melody Purvis, and I am from Indianapolis, IN. On behalf

of all the workers at the Brylane Company in Indiana, all the

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workers injured on the job, thank you for giving me this chance to

speak here today.

In my plant, 1,600 workers select, pack, and ship out garments

and other products to customers ordering from catalogs and

websites and handle customer service calls. The company’s own

records show that there were 163 cases of repetitive trauma illnesses in 2000, including dozens of people who had to stop working

for an average of about 7 weeks each. So many people have had

surgery and, like me, have suffered tremendously.

I am here today to tell you my story and hope that it will help

you put a face on the issue of why American workers need a real

ergonomics standard—not voluntary.

I am married, and my husband and I support our three children

and one grandchild, with another one on the way in June.

On November 16, 1993, I went to work in the returns department as a folder. I was first injured on a job where I stood 8 hours

a day, taking garments out of a tote, putting them up over my head

on a hanger—and I am showing you with my left arm because it

hurts to use my right arm, but I am right-handed.

In December of 1993, my arm swelled up, got inflamed, and was

hot to the touch. When I told a company official, he told me to go

home and put some ice on it. Later, he sent me to the doctor, who

sent me to physical therapy and put me on light duty. But I was

still performing the same motion between 400 and 600 times every

night. My pain continued. I had surgery on my right shoulder in

1995, and the doctor put me on work restrictions. My restrictions

limited the weight of the materials I was throwing, but it did not

change the lifting and throwing that I had to do.

Many packages still weighed as much as 10 pounds and sometimes more. I was re-injured in December of 1997. I had surgery

on both hands and my right wrist for carpal tunnel syndrome, but

I still have numbness in my right hand. I was put on permanent

restrictions for lifting, throwing, and bending. In order to make

production, I would take painkillers, and even with the pain, I was

a hard worker.

In June of 1999, my supervisors gave me a certificate of appreciation for top production.

By June of 2000, my hands and arms would hurt so bad that I

could not hold a potato or a knife to peel it.

By June of 2001, I hurt so badly that I could not go to sleep or

brush my own hair. I was scared to pick up my grand-daughter. I

went back to a company doctor who told me, ‘‘Melody, Brylane is

killing you.’’ He recommended another surgery that had no guarantees. I had to take a medical leave of absence.

In October of 2001, the company told me that I would, quote, ‘‘remain off work due to permanent partial impairment for a work-related injury that Brylane could not comply with in your department.’’

I truly believe that if Brylane had spent their time fixing the job

instead of trying to fix me, I could still be working today. Instead,

I have had four surgeries, and they have not made one real change

to my work station. Does Brylane know about this problem and

how to stop it? Yes.

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In Massachusetts, the same company has another plant doing

the same kind of work. They have almost no repetitive motion injuries there. Why? Because the company has an ergonomics program

that the union developed with management. That program says

that ‘‘the Brylane management team is committed to enforcement

of this policy—encouraging prompt reports of symptoms and actions to decrease ergonomic hazards.’’ I am glad the company’s program works for the union members

and the company in Massachusetts, but in Indianapolis, even after

we win our union drive, we will still need strong OSHA standards

that will force companies like Brylane to fix our jobs and to educate

us about the dangers of these injuries.

I could tell you many changes that Brylane could do to help stop

the pain at work. Unfortunately, Brylane’s past shows that on its

own, Brylane will not make even these simple changes. This is outrageous. We work hard in our plant to feed our families and pay

our taxes, and this is what we get in return—a plant with an injury rate that is nearly 18 times higher than the average for the

same industry.

Unless OSHA issues real ergonomic standards that will force

companies like Brylane to make jobs safer, we will continue to suffer. This is just wrong. We should be able to go to work and do our

jobs without fear of injury.

Now OSHA has started talking about doing some things about

ergonomics, but OSHA is still not talking about new standards to

force Brylane to fix the jobs.

In February, with help from United, my co-workers filed an

OSHA complaint about a lot of safety problems, but we were told

that there were no laws to protect workers against ergonomically

dangerous jobs. It is too late to save my hands and arms, but it

is not too late to save the hundreds of other workers in my plant

who suffer from these problems every year.

Please tell OSHA they have to issue new standards. We are

counting on you to get us the protection we need.

Thank you again for the opportunity to testify.

The CHAIRMAN. Thank you. That was very moving. [Applause.]

You obviously speak for a number of people.

Thank you.

[The prepared statement of Ms. Melody Purvis follows:]

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The CHAIRMAN. Mr. Fontana.

STATEMENT OF PAUL FONTANA, OCCUPATIONAL THERAPIST

AND OWNER, FONTANA CENTER FOR WORK REHABILITATION, LAFAYETTE, LA

Mr. FONTANA. Chairman Kennedy and Members of the Committee, my name is Paul Fontana, and I am appearing before you as

both a small business owner and an occupational therapist who

works in the area of ergonomics on a regular basis. I am honored

to be invited to present my thoughts regarding this important issue

and thank you for allowing me the opportunity to speak with you

all.

I am the owner and president of the Fontana Center for Work

Rehabilitation in Lafayette, LA. This is a small business with 40

full-time employees, providing injury prevention, rehabilitation,

and return-to-work programs to industry, outpatient, occupational,

and physical therapy, and fitness and health programs to business

and individuals.

Working in south Louisiana means that much of my industrial

work comes from work dealing with companies directly involved

with the oil and gas business, both on the drilling and production

side. However, I regularly work with customers from all industries—the beverage industry, the transportation and warehouse industry, the mining industry, municipalities, power and electric. I

have even developed programs on ergonomics for an invasive cardiologist, attorneys, nurses, nurses’ aides, bank tellers, secretaries,

data input aides.

I have reviewed the information on the administration’s proposal

for establishing the voluntary industry- and task-specific guidelines

to control ergonomic-related problems. On balance, I am pleased

with what I see.

As a small business owner, I believe the new proposal offers a

flexible, cost-effective plan that I will be able to implement. As an

occupational therapist who is intimately involved with returning

employees to work and with developing and implementing injury

prevention and ergonomic programs to companies, I believe this offers us a solid framework to take care of the problems found in the

job.

Incorporating proper ergonomic principles into the workplace

makes good business sense, because it keeps our employees

healthy, improves their productivity, and reduces injuries. Along

with the reduction in injuries will come a reduction in the cost to

the employer, which makes the employer a more competitive company. A competitive company is a stable employer. Employers large

and small understand this and are responding positively to this.

A flexible approach to workplace safety is needed to allow business and industry to tailor solutions to these specific problems, and

I would like to share just one example of one of my customers.

It is a small salt processing mine with under 100 employees.

These guys were experiencing high numbers of relatively minor but

costly injuries, and over a period of years, this resulted in a decrease in the profitability from the salt processing operations and

an inability for this company to compete with the largest salt proVerDate 11-MAY-2000 15:07 Dec 17, 2002 Jkt 000000 PO 00000 Frm 00100 Fmt 6633 Sfmt 6601 S:\DOCS\78951 SLABOR3 PsN: SLABOR3
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ducers in the area. The bottom line was that their cost for salt per

ton was substantially higher than the larger producers.

The plant’s management team made a concerted commitment to

total safety, and zero injuries became the company’s safety goal.

Briefly, what the company implemented is as follows.

I evaluated each job from a biomechanical standpoint, both to

quantify the physical demands of the job as well as to identify the

physiological hazards present in the job. All employees underwent

intensive training in biomechanical ergonomic principles. Then, the

ergonomic team which consisted of hourly employees, management,

and maintenance personnel as well as myself, trained in ergonomic

principles, set up an abatement program to resolve these issues.

Many of these abatements involved minimal to no cost, like job

rotation every 2 hours instead of every 2 weeks, or the implementation of a regular stretching program. These resulted in comments

from the employees of well-being very quickly after being implemented.

Other items, such as a series of custombuilt scaffolds and stairways eliminated high risk in the plant yet were relatively expensive—about $10,000. This, along with the new processing technique, actually increased production by almost 5 percent a year.

With the success of these programs came an increase in employee morale. As injuries went down and production increased, the

company’s cost per ton of salt also went down so the company was

more competitive with these larger producers. In the year 2000, the

company invested $700,000 in an automated packaging and

pelletizing unit. This eliminated all the repetitive motion hazards

that we were unable to eliminate in any other manner. This has

resulted in an increase in production by 40 percent.

The CHAIRMAN. Mr. Fontana, I am very reluctant to interrupt

you. As you probably see with our colleagues going out and the

lights in the back, it means that the clock is ticking for Senator

Enzi and myself, and we are going to have another vote after that.

So if you would not mind, we will put your full statement in the

record as read and completed, and if you would like to take another

30 seconds to conclude, that would be fine.

Mr. FONTANA. That is about what I had left, and it is right under

the time frame that you all had asked me to stay within.

The CHAIRMAN. Well, we apologize to you and to our other witnesses because of the arrangements over there; we would have had

more than enough time.

Mr. FONTANA. The bottom line is this company was able to decrease its cost per ton. The two employees who would not be needed in the job any longer that the company I guess could have eliminated, they did not eliminate, but rather moved them to a quality

control position. And over the last 5 years, this salt mine has successfully completed one million man-hours without a lost time incident or modified return-to-work incident.

I have many success stories like this. The voluntary flexible approach to ergonomic hazards is successful. The repealed ergonomic

rule did not allow for the creativity and flexibility depending on the

size of the business. Moreover, the burden to implement the old

rule would have been tremendous, especially to small businesses

such as mine.

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Industry is working toward eliminating these ergonomic hazards

inherent on the job. Employers are stepping up and making the

changes in their worksites because it is good business, and I believe they will embrace the voluntary guidelines to make the workplace safer. And for those employers who just do not get it, OSHA’s

new proposed enhancement penalties under the general duty clause

I believe will have enforcement.

As an occupational therapist who does this on a regular basis, I

can see a willingness of companies to do this.

[The prepared statement of Mr. Paul Fontana follows:]

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The CHAIRMAN. Thank you. I think that will have to be the last

word for now. We will put the remainder of your statement in the

record, and I hope you will accept our apologies.

The hearing will stand in recess. We will keep the record open

for questions for the witnesses.

Thank you very much.

[Additional material follows.]

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ADDITIONAL MATERIAL

PREPARED STATEMENT OF GARY SMITH

Mr. Chairman, and Members of the Committee:

I am pleased to be here today to present some insight regarding efforts to reduce

musculoskeletal disorder (MSD) injuries in the workplace. This is truly an important subject and I applaud the Committee for holding this hearing to discuss it.

My name is Gary Smith and I am the Executive Director of the Independent Business Association in Washington State. The Independent Business Association represents over 4800 small business owners all across Washington State in almost

every conceivable industry.

Members of the Committee may already know that Washington State has one of

the most comprehensive regulations in the world intended to reduce MSD injuries.

The Washington State regulation was adopted in May 2000.

My comments today are to inform the Committee on the implementation of these

Washington State MSD injury reducing regulations in order to help the Committee

to understand the complexity and the large number of significant challenges involved in establishing Government regulations to attempt to reduce MSD injuries.

First, I want to address a common misconception. For some unknown reason,

many think that without some form of Government regulation, employers have no

desire to control or minimize MSD injuries. This truly is a gross misconception for

four key reasons:

1. With each MSD injury, the costs for an employers workers’ compensation insurance increases. One of the major activities in managing any business is to minimize

costs and avoid cost increases. Since MSD injuries increase costs, employers already

do whatever they can to eliminate them.

2. If an employee suffers an MSD injury, the production capability of that business is reduced. Lost production means late deliveries or lost sales. Business owners

clearly manage their enterprises to avoid late deliveries or lost sales. Otherwise

their business would cease to exist.

3. If an employee suffers an MSD injury, it is likely that employee will no longer

be able to work for that employer temporarily or permanently. Replacing that employee is extremely costly to the employer. Just the hiring and training alone will

cost the employer thousands of dollars.

4. Finally, employers, especially small employers, are real people with feelings

and compassion for their employees. They have no reason or desire to see their employees hurt by MSDs or any other type of injury or illness. Yes, there may be a

very few anecdotal examples of some employers not having the best interest of their

employees at heart, but clearly ninety-nine plus percent of all employers have the

best interest of their employees at heart. Their employees are their most valuable

resource.

I know for a fact that almost every employer has already taken action to reduce

MSD injuries in the place of business. Clearly, from the four points just outlined,

reducing MSD injuries is simply good business besides being the right thing to do.

Therefore, we believe it is extremely important for the Committee to clearly understand that employers do want to reduce MSD injuries now, even without any

Government regulation, and have been and continue to take action to do so.

Yet, the Committee and employers are still concerned about the number and severity of workplace MSD injuries. What can be done to reduce those injuries?

The experience in Washington State with its comprehensive MSD injury reduction

regulation gives our small employer members a great deal of insight to help answer

this question.

Will a comprehensive Government regulation reduce these workplace MSD injuries?

The Washington State experience to date shows a comprehensive regulatory approach likely does more harm than good in reducing workplace MSD injuries. Please

let me explain.

First, the Washington State regulation is a one-size-fits-all approach. It sets out

a series of benchmarks for various body motions and activities that employers are

not to exceed unless the employer has reduce the activities to the extent ‘‘technologically and economically feasible.’’ This one-size-fits-all approach makes no sense.

If applied literally, the Washington State regulation calls for the following:

A 20-year old male worker in top physical condition cannot lift a 71-pound box

from the floor and put it on a shelf at a height above his waist, anytime during any

workday. Yet, this same regulation provides no protections for a 60 year old male

or female worker to pick up a box weighing 63 pounds from the floor and putting

on a shelf at a height above their waist, 3 times a minute as long as this worker

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is not required to do this for more than 59 minutes continuously. The difference is,

the 20-year-old worker cannot lift 71 pounds at anytime during his workday. Yet

the 60-year-old worker can be expected to lift 11,151 pounds over the course of 59

minutes with no protections.

Ah, you say, the Washington State regulation is obviously flawed. But for this aberration, the regulation is probably very good policy.

Unfortunately that initial reaction is not justified. The Washington State regulation was developed over a 2-year period with input from experts from across the nation. The lifting guideline described above is based on NIOSH lifting standards.

NIOSH is the National Institute for Occupational Safety and Health and is the research arm of the Federal Government’s Center for Disease Control and Prevention

with the responsibility to reduce workplace injuries and illnesses.

The problem with a comprehensive type of regulation like that already adopted

in Washington State 2 years ago is that it attempts to apply a very unclear set of

research to an infinitely variable set of conditions. In the world of engineering and

science, trying to apply unclear inputs to an infinitely variable set of outputs produces no predictable or reliable set of results.

Please allow me to now move from theory to real practice with the Washington

State workplace MSD injury reducing regulations. I personally have worked extremely closely with the roofing industry in Washington State in an effort to assist

them in understanding what they must do to comply with the Washington MSD regulation. All of us have roofs over our heads at home and at work. Someone has to

put that roof on. A roof is of one of the most fundamental elements of our civilized

society. The strict application of this regulation in the roofing industry as been carefully estimated to increase the cost of roofing a normal residence by 33 percent to

40 percent depending on the unique features of that residence. What are the MSD

injury risks identified in the Washington State regulation for the roofing industry?

• They must lift materials that exceed the lifting limits allowed

• They must work with their backs bent more than the 2 hours a day allowed

by the regulation

• They often must work on their knees for more than the 4 hours a day allowed

by the regulation

• They must repetitively grasp and move materials (roofing) and put it in place

for more hours than is allowed by the rule

• Many must use vibration producing tools for more hours in a day than is allowed by the regulation

• Some use tools requiring hand forces which exceed that allowed by the regulation

• Many must work with the necks bent for more hours a day than is allowed by

the regulation.

Now picture one of the Nation’s 35 million senior citizens who are living on Social

Security and struggling to make ends meet and remain in his/her home. Their roof

springs a leak. The contractor comes out and the roof is shot. The Washington State

ergonomics regulation will add an additional $1,000 to $1,500 in cost for that senior

citizen to re-roof his/her home. Most simply can’t afford that.

We are confident you do not find this scenario acceptable and either do we. That

is why we have been working with our Washington State Department of Labor and

Industries to find ways for the roofing industry to comply with this regulation. This

is critical because if citizens cannot afford to roof or re-roof their homes, hundreds

of roofing workers are out of work. A vicious cycle none of us can accept. We have

been working this the Department now for over 2 years to find solutions. This is

the same Department that developed and adopted this Washington State regulation.

While no final solution has been reached to date, the reality is, the regulation as

written will not work for the roofing industry. But that is not all. This same Department is working with many other industries for which the regulation will not work.

In each case, the Department and the industry are developing special plans in lieu

of complying with the regulation as written.

Bottom line, a one-size-fits-all regulation or approach simply will not work. This

has been proven in Washington State already.

One final and unfortunate effect of the Washington regulation. The regulation is

actually diverting the limited funds employers have available to reduce MSD injury

risks, away from injury reduction and instead to try to figure out what must be done

to comply with the regulation. This is a poor use of those limited resources but when

you will face citations and fines for non-compliance of the regulation, that diversion

of those limited funds is required.

Let me present with my observations of what will work to help reduce workplace

MSD injuries:

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1. The single most important action any Government authority can undertake is

to provide information employers on ways to reduce workplace MSD injury risks in

their specific industry or business. Reducing workplace MSD injuries is far from a

science currently. Reducing these injuries involves so many factors that simply do

not enable the development of a regulation. Factors include the physical condition

of those doing the work, the type of work, recovery times, where the work is being

done, etc. A solution to reducing workplace MSD injuries for one roofing project simply cannot be applied to another roofing project because of the infinite variability

in this as well as other industries.

Please allow me a moment to talk about information. In years past, those workers

who did warehouse work were told to wear ‘‘back belts’’ to reduce their risk of MSD

injury. Employers provided back belts. A few years later a study showed that the

use of back belts may actually increase the risk of MSD injury not reduce it because

when the worker went home and did not use the back belt while lifting, the likelihood of injury was greater.

Employers need clear information of what has proven to work. Not what will theoretically work, but what has proven to work. Here is the correct role for Government

to play. Gather this data or do the research necessary to develop this data instead

of having each employer expend funds trying to find solutions using a hit-and-miss

approach to see what really works to reduce workplace MSD injuries. This is the

biggest single action any Government agency can provide that will deliver the most

results in reducing workplace MSD injuries. Figure out what works and then tell

employers. Employers already have four significant incentives to reduce workplace

MSD injuries as discussed previously. They just need information about how to do

it.

2. Provide this information along with assistance to employers—especially small

employers. More than 85 percent of the nation’s employers are small employers with

fewer than 50 employees. They employ about 45 percent of the nation’s private sector workforce. Almost none of these employers have any expertise in ergonomics.

Government authorities need to provide assistance in how to apply the information

on what works. As I stated earlier in my comments, employers small and large, already have four reasons they want to reduce workplace MSD injuries. They want

the information and assistance to do so. This must be the focus of any Government

initiative to help reduce workplace MSD injuries.

We applaud President Bush and his administration for their recently announced

plan to reduce workplace MSD injuries. Their approach is very similar that what

I have just presented to you. We know from the Washington State experience that

a new, comprehensive set of regulations setting theoretical limits on various work

activities simply are unworkable and threaten the jobs of many workers. Developing

information about what works and providing assistance in applying it industry-byindustry and business-by-business in a mode of assistance rather than through the

use of citations and penalties is the best approach. Employers already want to reduce workplace MSD injuries. What they lack is information and assistance on how

to do it.

Thank you and I will be pleased to respond to any questions you may have.

PREPARED STATEMENT OF NATIONAL COALITION ON ERGONOMICS

The National Coalition on Ergonomics (‘‘Coalition’’), which represents well over

100 associations and companies with a vital interest in governmental ergonomics

policy, appreciates the opportunity to submit this post-hearing statement to the

record. At the conclusion of the Committee’s hearing, the record was held open for

submissions relating to specific questions and issues that were raised at the hearing. This statement focuses on two of the issues that were raised most prominently.

First, during introductory remarks preceding the questioning of Secretary of

Labor Elaine Chao, Senator Wellstone termed OSHA’s research agenda ‘‘troubling.’’

In Senator Wellstone’s opinion, ‘‘given the comprehensive National Academy of

Sciences report finished just last year, it is difficult to understand what additional

research could possibly be necessary in order for OSHA to frame its repetitive stress

injury agenda.’’ As explained below, however, neither the National Academy of

Sciences (‘‘NAS’’) report nor other any other scientific source resolves the serious scientific questions in this area or brings an end to the need for further research. Until

these questions are answered, it is inappropriate to reach beyond a voluntary guidelines approach to impose a standard.

Second, during the questioning of Secretary Chao, it was suggested that a Government standard is necessary to overcome specific shortcomings in OSHA’s guidelines

approach. Senator Edwards expressed concern about OSHA’s intent to rely upon

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1 National Research Council, National Academy of Sciences, Musculoskeletal Disorders and the

Workplace: Low Back and Upper Extremities (‘‘NAS Report’’) at ES-5 (2001). 2 Id. at 1-15. 3 Id. at 1-6. 4 Id. at ES-7. 5 NIOSH, Musculoskeletal Disorders and Workplace Factors, at 1-7 (1997). 6 NAS Report at 1-8 to 1-9.

7 Id. at 1-16; see also id. at 1-10 (‘‘Every clinical disorder represents a complex interaction between the affected individiual and a variety of determinants of the response of the particular

individual to injury.’’)

general duty clause enforcement, despite the delays and mixed results it has experienced in prior general duty clause litigation. Senator Clinton also raised the issue

of applicability to Government employees in state-plan jurisdictions. As OSHA’s past

experience shows, however, there are inherent problems with governmental enforcement when the science is so uncertain. These problems are intensified, and not

solved, by a rulemaking effort.

THE NATIONAL ACADEMY OF SCIENCES REPORT UNDERSCORES THE

NEED FOR ERGONOMICS RESEARCH

Far from calling for an end to scientific inquiry, NAS calls for a renewal of these

efforts. Those who would suggest otherwise focus solely on a couple of oft-quoted

passages from the NAS report, which speak in isolation about ‘‘clear’’ relationships

between ‘‘back disorders and physical load’’ and ‘‘important work-related factors’’

that contribute to ‘‘disorders of the upper extremities.’’ 1 These statements have been

taken out of context as expressions of enthusiastic support for Government regulation. They are not.

A DEFINITIONAL NIGHTMARE

When the NAS refers to a ‘‘disorder,’’ it is not referring to an injury in any sense

that OSHA can—or should—regulate. Rather, the ‘‘disorder’’ that NAS describes is

‘‘an alteration in an individual’s usual sense of wellness or ability to function,’’

which ‘‘may or may not be associated with well-recognized anatomic, physiologic, or

psychiatric pathology.’’ 2 NAS readily acknowledges that musculoskeletal ‘‘disorders,’’ in its lexicon, are not necessarily injuries or illnesses, and in many cases

share common characteristics with pain syndromes such as migraine headaches and

premenstrual syndromes.3 OSHA’s mandate simply does not extend beyond clinical

injury to these vague concepts of ‘‘wellness.’’

Recognizing the seriousness of the definitional problem, the NAS emphasizes the

imperative of ‘‘developing uniform definitions of musculoskeletal disorders for use in

clinical diagnosis, epidemiologic research, and data collection for surveillance systems. These definitions should (1) include clear and consistent endpoint measures,

(2) agree with consensus codification of clinically relevant classification systems, and

(3) have a biological and clinical basis.’’ 4 The National Institute for Occupational

Safety and Health (‘‘NIOSH’’) has also recognized the ‘‘scarcity of objective measures

(including physical examination techniques) to define work-related MSDs, and lack

of standardized criteria for defining MSD cases.’’ 5 OSHA properly posed this issue

as the lead question in its forums, ultimately concluding that it needed to consider

the question further in light of the continuing controversy and uncertainty. Until

this important issue can be resolved, OSHA will continue to lack the essential definitional building block for governmental regulation.

A COMPLEX WEB OF SUSPECTED CAUSES

Even the ‘‘disorders’’ broadly referenced by NAS cannot be linked solely, or even

primarily, to the physical factors that a standard would exclusively address. According to the NAS, ‘‘the association between physical exposure and the development of

a musculoskeletal disorder occurs in a broad context of economic and cultural factors and reflects the interaction of elements intrinsic to, as well as extrinsic to, the

individual.’’ 6 The NAS identified a complex web of suspected influences, including

not only ‘‘mechanical exposure’’ (both in and out of the workplace) but also individual ‘‘physiological characteristics’’ and ‘‘psychological characteristics,’’ all considered

against the ‘‘broader social, economic, and cultural context.’’ 7 The following illustrations, reproduced from the NAS document, reflect these contributing factors and

their inextricable interrelationship:

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8 Id., Figures 1.1, 1.2. 9 Id. at 1-11. 10 Id. at 1-5. 11 Id. at 1-9. 12 Id. 13 Id. (citations omitted). 14 Id. at 1-10 (citations omitted). 15 Id. (citations omitted). 16 Id. at APP.C-1. 17 Id. at ES-15.

These figures 8 show not only the myriad of suspected causal factors, but also the

difficulty in extracting and isolating any one factor, including work. According to the

NAS, these illustrations and what they suggest about the interrelationship of contributing factors is central to the panel’s conclusions and to an understanding of its

report 9 and it should likewise be central to any decision on ergonomics regulation.

It is a well-established principle, stated succinctly in the NAS report, that ‘‘injury

is a psychosocial event as well as a biological or physical one.’’ 10 According to the

NAS, ‘‘there is convincing evidence to support the hypothesis that compensation

wage replacement rates, local unemployment rates, and cultural differences can influence the reporting of musculoskeletal pain or disability.’’ 11 The NAS focused, in

particular, on the impact of three separate socioeconomic factors (or, properly, categories of factors), and found that all three showed a strong correlation to injuries

reported in the workplace: disability benefits, employer organizational policies and

practices, and what can broadly be called cultural factors.12 The panel noted a

strong correlation between return to work after injury and the level of benefits;

studies show that as disability benefit levels rise, the probability that an injured

employee will return to work decreases, and the duration of absence from work increases.13 Employers with policies that show a commitment to worker health and

safety report lower rates of lost-time injuries. 14 Cultural factors also appear to impact the level at which ‘‘work-related’’ MSDs are reported. For example, ‘‘Westernization, industrialization, and social security systems may be associated with a

greater willingness of workers to report low back pain.’’ 15

Even the NAS’ review of physical factors, moreover, acknowledges important limitations in the relationship. In responding to a dissent with respect to its findings

on carpal tunnel syndrome, for example, the panel emphasized: ‘‘The report does not

state that [physical workplace] interventions prevent carpal tunnel syndrome or, indeed, any other upper-extremity disorder. The emphasis, rather, is on amelioration

of symptoms, which is the end point in the relevant literature.... [I]nterventions influence symptoms, not the incidence of specific disorders.’’ 16

In light of all of these interwoven factors, the NAS found that ‘‘musculoskeletal

disorders should be approached in the context of the whole person.’’ 17 Voluntary employer programs are well suited to such a task. Government mandates are not—especially regulations, like the former standard, that rely on formulaic judgments as

to ‘‘unsafe’’ physical exposure levels.

A STATISTICAL WASTELAND

Quite possibly, no other area of current labor policy debate is more prone to the

misuse of statistics than ergonomics. While the Bureau of Labor Statistics reported

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18 . 19S.2184, 107th Cong., 2d Sess., § 1(a)(2). 20 NAS Report at 2-1. 21See 65 Fed. Reg. 68541 (Nov. 14, 2000); see also Government Accounting Office, Worker Protection; Private Ergonomics Programs Yield Positive Results (1997) (‘‘BLS does not currently

have a simple way to classify an injury or illness as an MSD . . . As a result, there is no single

estimate of the total number of MSDs reported.’’). 22See OSHA Hearing Transcript, July 7, 2000, at 18212-13 (http://www.osha-slc.gov/

ergonomics-standard/PROPOSED/transcripts/ergo07072000.pdf). Many individual examples of

alleged ‘‘musculoskeletal disorders’’ also arise from specific, one-time incidents that have nothing

to do with the conditions that an ergonomics standard is supposed to address. See, e.g., (lead

example on AFL-CIO website of an injury that could allegedly be prevented by an ergonomics

standard, which, in fact, was an accident caused by faulty bed brakes: ‘‘In November 1999, while

[nursing assistant Cindy Wright] was helping to transfer a patient three times her size, the

bed’s brakes failed and the patient rolled over on top of Wright, seriously inuring her shoulder

and neck.’’) 23 NAS Report at 2-14. The NAS also criticized the BLS statistics because, among other

things, they are based on a sample size too small to permit reliable estimates at all but the

largest macro-level, they fail to provide essential data concerning occupation, task, or demographics, and more detailed information is restricted to lost-time cases based on another inadequate coding system. NAS Report at 2-14 to 2-15. 24 Id. at 2-14. 25See 65 Fed. Reg. 68541 (Nov. 14, 2000). 26 NAS Report at 12-1. 27 Id. at 12-1 to 12-4.

approximately 577,000 lost workday MSDs in its most recent annual statistics, 18 for

example, the Senate bill that would mandate a standard includes an express finding

that ‘‘[a]n estimated 1,000,000 workers each year lose time from work as a result

of work-related musculoskeletal disorders,’’ 19 citing NAS as the source. NAS, however, reports that ‘‘there are no comprehensive national data sources capturing

medically determined musculoskeletal disorders.’’ 20

Why is there such a disconnect between these numbers and others that are frequently bandied about, both higher and lower? The answer is explained above: no

one really knows how to define a musculoskeletal disorder or to reliably determine

its relationship to work.

BLS and OSHA reporting mechanisms do not even recognize a category for ‘‘MSDs,’’ forcing statisticians to speculate as to the portions of existing recordkeeping categories to include. 21 In doing so, they inevitably include large portions

of data for incidents that the recordkeeper believed to be the result of a single traumatic event rather than any sort of repetitive stress. 22 Not that the recordkeeper

has any real idea, because—as the NAS itself observed—BLS recording criteria rely

upon ‘‘very crude collapsing of unlike conditions and is determined by a person with

no specific training for the task.’’ 23

The BLS statistics are, by far, the most widely quoted and heavily used source

of MSD data. Indeed, as the NAS noted, they are the only recognized source of nationwide data. 24 They formed the bedrock of OSHA’s case justifying regulation of

ergonomics as a ‘‘significant risk,’’ 25 and they continue to be cited as a measure of

progress, even for OSHA’s guidelines approach. Blind reliance on these inherently

unreliable numbers, however, would be a serious mistake. Until BLS can resolve the

problems that plague every aspect of these statistics, they should not form the basis

of critical policy decisions.

A CALL FOR MORE RESEARCH

In light of all of these problems, all fully acknowledged by the NAS, the panel

could not have possibly found that research issues have been fully resolved. To the

contrary, the NAS expressly called for more research—a recommendation that

OSHA’s comprehensive plan now implements. Indeed, the NAS report devotes an

entire chapter to a proposed ‘‘research agenda’’ designed to fill ‘‘several important

gaps in the science base.’’ 26 NAS calls upon researchers, among other things, to (1)

develop improved tools for exposure (dose) assessment; (2) develop improved measures of outcomes and case definitions for use in epidemiologic and intervention studies; (3) in studies of humans, further quantify the relationships between exposures

and outcomes; (4) conduct tissue mechanobiology studies related to the impact of

physical loading; (5) conduct biomechanical studies to investigate the role of various

factors on changes in loading patterns and tolerance limits, quantify the relationship between loading and pain, and explore the influence of psychological stress on

musculoskeletal response and loading of joints; (6) conduct studies into the impact

of psychosocial stressors; (7) conduct epidemiologic studies into the exposure-response relationship; and (8) conduct workplace intervention studies. 27

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28http://www.osha-slc.gov/ergonomics/FAQs-external.html. 29See 65 Fed. Reg. 68265 (Nov. 14, 2000). 30See http://www.osha-slc.gov/SLTC/ergonomics/ergoreg.html. 31 65 Fed. Reg. 66071 (Nov.14, 2000) (proposed § 1910.921). 32See 65 Fed. Reg. 68848-49 (Table W-1), 68859-64 (App. D-1). 33See Congressional Record, Mar. 6, 2001, at S1858 (statement of Sen. Specter). 34 Id. (statement of Sen. Specter).

Clearly, then, the NAS does not believe that the need for research has come to

an end or that the case for Government regulation has been fully established. Indeed, in the entire 492-page NAS report, any recommendation to regulate

ergonomics with mandatory governmental obligations is conspicuously absent. It

would be a serious mistake to disregard these important recommendations for additional research, or to proceed with a regulation before knowing the answers that

this research can provide.

INTRACTABLE HURDLES TO THE PROMULGATION OF A STANDARD PREVENT OSHA FROM

GOING BEYOND VOLUNTARY GUIDELINES

The second key question posed by the Committee—why is the Secretary of Labor

pursuing guidelines rather than a standard—is answered directly by the ‘‘frequently

asked questions’’ document issued on the day of the Secretary’s announcement. The

document explains that a host of factors ‘‘make it very difficult to develop simple

criteria for compliance that can apply to a broad range of industries,’’ including: (1)

‘‘There are a variety of different hazards and combinations of different hazards to

be addressed’’; (2) ‘‘Exposure to the hazards is not readily measured in some cases’’;

(3) ‘‘The exposure-response relationship is not well understood’’; (4) ‘‘Cost and feasibility of abatement measures may be uncertain and may be very high in some

cases’’; and (5) ‘‘It is very difficult, except in the most general terms, to prescribe

remedies for abating such hazards in a single rule.’’ 28

OSHA’s findings are right on the mark. While it is tempting to think of

ergonomics standard-setting as something that can be done instantly to make the

problem go away, the answer is not that simple.

A HISTORY OF FAILED ATTEMPTS

The 10 years of rulemaking activity preceding OSHA’s rejected rule is sometimes

invoked as providing all the necessary groundwork for a quick and easy solution

that OSHA could provide right now. What is lost in such statements, however, is

one of the major reasons why this process took so long. Throughout the past decade,

OSHA repeatedly tried to solve two regulatory conundrums: (1) How can a standard

be designed that is specific enough to provide adequate notice of abatement actions

that will be enforced, yet is not so specific as to outstrip the limitations of scientific

research; and (2) if a more specific approach is chosen, how can it account for basic

differences in all the various industries, suspected risk factors, and reported syndromes while at the same time avoiding undue complexity? OSHA moved back and

forth between both sides of each dilemma, but it was never able to find a satisfactorily solution.

After an initial round of comments in 1992 and a series of face-to-face stakeholder

meetings that followed, OSHA circulated a ‘‘pre-proposal draft’’ in March 1995. 29

That draft, which required the use of a specific ‘‘workplace risk factor checklist’’

whenever there was exposure to any of five quantitatively-defined ‘‘signal risk factors,’’ was widely criticized for codifying rigid, quantitative exposure measures that

lack scientific verification or uniform applicability. OSHA followed up with a 1998

‘‘working draft’’ requiring interventions for ‘‘problem jobs,’’ which were vaguely defined as jobs with ‘‘known hazards’’ including those identified in insurance reports,

consultant reports, prior OSHA inspections, or even self audits. 30 In its 1999 proposed standard, OSHA added terminology that purported to clarify the definition of

‘‘hazard’’ and the descriptions of required abatements, but it continued to rely on

vague concepts such as reduction ‘‘in a way that is reasonably anticipated to significantly reduce the likelihood that covered MSDs will occur.’’ 31 Finally, after a flood

of comments justifiably criticizing the uncertainty of these benchmarks, OSHA incorporated a series of quantified ‘‘action levels’’ and ‘‘tools’’ to its final standard, 32

even though these measurements had not been scientifically validated and none of

them had been subjected to notice and comment. 33 Members of Congress expressed

concern with not only the lack of scientific support for these measures, but also their

‘‘complexity.’’ 34

OSHA’s inability to develop an acceptable standard, therefore, is not due to a lack

of effort. The science is simply not in place to support a regulation that would proVerDate 11-MAY-2000 15:07 Dec 17, 2002 Jkt 000000 PO 00000 Frm 00129 Fmt 6633 Sfmt 6621 S:\DOCS\78951 SLABOR3 PsN: SLABOR3
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35See, e.g., Secretary of Labor v. Beverly Enterprises, Inc., 2000 OSAHRC LEXIS 121, at *18

(OSHRC Oct. 27, 2000). 36See 29 U.S.C. § 655. 37Secretary of Labor v. Dayton Tire, Bridgestone/Firestone, OSHRC Docket No. 93-3327, 1998

OSAHRC LEXIS 23, at *120 (Jan.26, 1998). 38 Id. at *88 n.40. 39Secretary of Labor v. Pepperidge Farm, Inc., 17 O.S.H. Cas. (BNA) 1993, at 2036 (Apr. 26,

1997).

vide workable, understandable, and enforceable regulatory endpoints. OSHA’s decision to pursue voluntary guidelines, on an industry-specific basis, recognizes these

hurdles. By keeping guidelines voluntary and disclaiming their use as an enforcement barometer, OSHA avoids the problems inherent in mandating adherence to

rigid goals that the science does not support. By further breaking down its guidance

effort to specific industries, moreover, OSHA avoids the complexity that is inevitable

when the agency tries to bring too many diverse situations under one umbrella.

Congress cannot make these problems disappear by simply decreeing that OSHA

must quickly do what it has not yet found an acceptable means to accomplish.

A HOST OF LEGAL BARRIERS

Noting that OSHA’s guidelines policy would rely to some extent on general duty

clause enforcement, several Members of the Committee also brought up the rather

checkered history of past ergonomics litigation. The vast majority of the more than

550 general duty clause citations issued by OSHA were resolved relatively quickly

and favorably from the agency’s perspective. Yet, as Senator Edwards also observed,

the three cases that proceeded to litigation took years to resolve and did not culminate in findings of enforceable abatement requirements.

No one should conclude from this experience, however, that the solution is to pursue a standard. OSHA encountered difficulty in its general duty clause cases because it was unable to establish all of the essential elements of a general duty

clause violation: an activity or condition in the workplace that presents a hazard,

recognition of the hazard by the employer or industry, a likelihood of death or serious physical harm, and a feasible and effective means of abatement to eliminate or

materially reduce the hazard. 35 To promulgate a standard, however, OSHA must

make similar findings—not just for a single employer or industry but for the entire

regulated community—and it must successfully defend these findings against any

judicial challenge. 36

This litigation would be enormously complex and lengthy. The general duty clause

litigation, moreover, provides just a small glimpse of the legal issues that OSHA

would face. Even among its own hired experts, OSHA was unable to achieve a consensus in those cases as to even a single workplace, much less all of general industry. In its citation of Dayton Tire, for example, OSHA’s in-house ergonomist used a ‘‘lifting equation’’ to determine that one job was safe, while the agency’s hired outside expert concluded the same job was not safe and would not become safe unless

the lifted weight was reduced to zero. 37 The agency further charged in its citation

that one job’s hazard was ‘‘elevated and extended reaches’’ and ‘‘long periods of

standing,’’ but at trial the outside expert ‘‘admitted . . . that neither activity is likely to result in injury.’’ 38 Similarly, in the Pepperidge Farm litigation, OSHA paraded a virtual who’s who of expert ergonomists to the witness stand, each of whom

advocated a variety of different ergonomic interventions. The Review Commission

decided that none of these experts had identified effective, feasible steps that the

employer should have taken but did not. 39

If OSHA seeks to define exposure levels that are ‘‘hazardous’’ or ‘‘safe’’ in a final

rule, it will encounter the same problems in justifying those determinations and defending them during appellate review. Even if it does not—and it somehow gets beyond the problem of promulgating a standard that provides no concrete guidance on

compliance—it will ultimately be faced with the burden of making similar showings

during enforcement, in order to prove that an employer’s existing practices were inadequate. So long as the science remains in its present state, OSHA will not be able

to overcome the lack of evidence supporting measurements of compliance that could

be applied in a workable, enforceable standard.

A VARIETY OF STATE APPROACHES

Senator Clinton also raised the issue of public employee coverage in the 26 jurisdictions with State plans, which would be mandatory in the wake of a Federal

standard. Yet, in a voluntary guidelines regime, all 50 State governments—like all

other employers—will be encouraged to voluntarily apply ‘‘best practices’’ that fit

their particular situations. State employees thus will not be treated any differently

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40See Bigos S., et al., Clinical Practice Guideline: Acute Low Back Problems in Adults, U.S.

Department of Health and Human Services, Public Health Services, Agency for Health Care Policy and Research, AHCPR Pub. No. 95-0642 (Dec. 1994).

than their private sector counterparts. If there are concerns that render a mandatory standard problematic when applied to the private sector, those same concerns

will be at least as problematic in the public sector. An unfunded mandate requiring

comprehensive ergonomics programs for State employees, moreover, would be particularly troublesome during this time of shrinking State revenues and rising deficits. It would be perverse—and contrary to any reasonable notion of federalism—

to call for mandatory ergonomics regulation simply to exercise more direct control

over the working conditions of State employees in the 26 states that have reached

State plan agreements with OSHA. Ergonomics rulemaking, for all employees,

should rise or fall on its own merits.

A ROLE FOR GUIDELINES

In the end, guidelines allow OSHA to accomplish what it cannot accomplish

through a standard. Guidelines leave room for the uncertainty of medical knowledge, the lack of clarity as to what should be done in any particular situation, and

the vast distinctions between industries, jobs, regulated employee activities, and reported medical conditions. They also provide an opportunity for employers and employees to try out new and innovative approaches. Many medical professionals, for

example, emphasize accommodations for individual workers that allow them to return to full activity levels. These approaches find support in some of the most respected collaborations of medical expertise, such as the Agency for Health Care Policy Research guideline on low back pain prepared under the auspices of the U.S.

Department of Health and Human Services. 40 A standard requiring employers to

permanently eliminate or restrict specific work activity levels would at the very

least complicate—and very possibly contravene—a program based on this emerging

medical consensus that rapid return to normal activity is in the back pain patient’s

best interest.

The success of guidelines, of course, will depend upon details not yet known: most

importantly, how will they be formulated and applied? With this in mind, the Coalition is looking forward to the release of OSHA’s first set of guidelines for nursing

homes, described during Secretary Chao’s testimony. OSHA quite properly promised

that these guidelines would be posted for notice and comment, giving all interested

parties an opportunity to air their concerns. In light of the advantages of OSHA’s

guidelines approach and the barriers that continue to impede a workable standard,

the Coalition urges this Committee to grant Secretary Chao the leeway necessary

to make her guidelines policy work.

Submitted on behalf of the National Coalition on Ergonomics by Baruch A.

Fellner, Derry Dean Sparlin, Jr., Gibson, Dunn & Crutcher LLP, 1050 Connecticut

Avenue, N.W., Washington, D.C. 20036

PREPARED STATEMENT OF GARY SMITH

Mr. Chairman, and Members of the Committee:

I am pleased to be here today to present some insight regarding efforts to reduce

musculoskeletal disorder (MSD) injuries in the workplace. This is truly an important subject and I applaud the Committee for holding this hearing to discuss it.

My name is Gary Smith and I am the Executive Director of the Independent Business Association in Washington State. The Independent Business Association represents over 4800 small business owners all across Washington State in almost

every conceivable industry.

Members of the Committee may already know that Washington State has one of

the most comprehensive regulations in the world intended to reduce MSD injuries.

The Washington State regulation was adopted in May 2000.

My comments today are to inform the Committee on the implementation of these

Washington State MSD injury reducing regulations in order to help the Committee

to understand the complexity and the large number of significant challenges involved in establishing Government regulations to attempt to reduce MSD injuries.

First, I want to address a common misconception. For some unknown reason,

many think that without some form of Government regulation, employers have no

desire to control or minimize MSD injuries. This truly is a gross misconception for

four key reasons:

1. With each MSD injury, the costs for an employers workers’ compensation insurance increases. One of the major activities in managing any business is to minimize

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costs and avoid cost increases. Since MSD injuries increase costs, employers already

do whatever they can to eliminate them.

2. If an employee suffers an MSD injury, the production capability of that business is reduced. Lost production means late deliveries or lost sales. Business owners

clearly manage their enterprises to avoid late deliveries or lost sales. Otherwise

their business would cease to exist.

3. If an employee suffers an MSD injury, it is likely that employee will no longer

be able to work for that employer temporarily or permanently. Replacing that employee is extremely costly to the employer. Just the hiring and training alone will

cost the employer thousands of dollars.

4. Finally, employers, especially small employers, are real people with feelings

and compassion for their employees. They have no reason or desire to see their employees hurt by MSDs or any other type of injury or illness. Yes, there may be a

very few anecdotal examples of some employers not having the best interest of their

employees at heart, but clearly ninety-nine plus percent of all employers have the

best interest of their employees at heart. Their employees are their most valuable

resource. I know for a fact that almost every employer has already taken action to reduce

MSD injuries in the place of business. Clearly, from the four points just outlined,

reducing MSD injuries is simply good business besides being the right thing to do.

Therefore, we believe it is extremely important for the Committee to clearly understand that employers do want to reduce MSD injuries now, even without any

Government regulation, and have been and continue to take action to do so.

Yet, the Committee and employers are still concerned about the number and severity of workplace MSD injuries. What can be done to reduce those injuries?

The experience in Washington State with its comprehensive MSD injury reduction

regulation gives our small employer members a great deal of insight to help answer

this question.

Will a comprehensive Government regulation reduce these workplace MSD injuries?

The Washington State experience to date shows a comprehensive regulatory approach likely does more harm than good in reducing workplace MSD injuries. Please

let me explain.

First, the Washington State regulation is a one-size-fits-all approach. It sets out

a series of benchmarks for various body motions and activities that employers are

not to exceed unless the employer has reduce the activities to the extent ‘‘technologically and economically feasible.’’ This one-size-fits-all approach makes no sense.

If applied literally, the Washington State regulation calls for the following:

A 20-year old male worker in top physical condition cannot lift a 71-pound box

from the floor and put it on a shelf at a height above his waist, anytime during any

workday. Yet, this same regulation provides no protections for a 60 year old male

or female worker to pick up a box weighing 63 pounds from the floor and putting

on a shelf at a height above their waist, 3 times a minute as long as this worker

is not required to do this for more than 59 minutes continuously. The difference is,

the 20-year-old worker cannot lift 71 pounds at anytime during his workday. Yet

the 60-year-old worker can be expected to lift 11,151 pounds over the course of 59

minutes with no protections.

Ah, you say, the Washington State regulation is obviously flawed. But for this aberration, the regulation is probably very good policy.

Unfortunately that initial reaction is not justified. The Washington State regulation was developed over a 2-year period with input from experts from across the nation. The lifting guideline described above is based on NIOSH lifting standards.

NIOSH is the National Institute for Occupational Safety and Health and is the research arm of the Federal Government’s Center for Disease Control and Prevention

with the responsibility to reduce workplace injuries and illnesses.

The problem with a comprehensive type of regulation like that already adopted

in Washington State 2 years ago is that it attempts to apply a very unclear set of

research to an infinitely variable set of conditions. In the world of engineering and

science, trying to apply unclear inputs to an infinitely variable set of outputs produces no predictable or reliable set of results.

Please allow me to now move from theory to real practice with the Washington

State workplace MSD injury reducing regulations. I personally have worked extremely closely with the roofing industry in Washington State in an effort to assist

them in understanding what they must do to comply with the Washington MSD regulation. All of us have roofs over our heads at home and at work. Someone has to

put that roof on. A roof is of one of the most fundamental elements of our civilized

society. The strict application of this regulation in the roofing industry as been carefully estimated to increase the cost of roofing a normal residence by 33 percent to

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40 percent depending on the unique features of that residence. What are the MSD

injury risks identified in the Washington State regulation for the roofing industry?

• They must lift materials that exceed the lifting limits allowed

• They must work with their backs bent more than the 2 hours a day allowed

by the regulation

• They often must work on their knees for more than the 4 hours a day allowed

by the regulation

• They must repetitively grasp and move materials (roofing) and put it in place

for more hours than is allowed by the rule

• Many must use vibration producing tools for more hours in a day than is allowed by the regulation

• Some use tools requiring hand forces which exceed that allowed by the regulation

• Many must work with the necks bent for more hours a day than is allowed by

the regulation.

Now picture one of the Nation’s 35 million senior citizens who are living on Social

Security and struggling to make ends meet and remain in his/her home. Their roof

springs a leak. The contractor comes out and the roof is shot. The Washington State

ergonomics regulation will add an additional $1,000 to $1,500 in cost for that senior

citizen to re-roof his/her home. Most simply can’t afford that.

We are confident you do not find this scenario acceptable and either do we. That

is why we have been working with our Washington State Department of Labor and

Industries to find ways for the roofing industry to comply with this regulation. This

is critical because if citizens cannot afford to roof or re-roof their homes, hundreds

of roofing workers are out of work. A vicious cycle none of us can accept. We have

been working this the Department now for over 2 years to find solutions. This is

the same Department that developed and adopted this Washington State regulation.

While no final solution has been reached to date, the reality is, the regulation as

written will not work for the roofing industry. But that is not all. This same Department is working with many other industries for which the regulation will not work.

In each case, the Department and the industry are developing special plans in lieu

of complying with the regulation as written.

Bottom line, a one-size-fits-all regulation or approach simply will not work. This

has been proven in Washington State already.

One final and unfortunate effect of the Washington regulation. The regulation is

actually diverting the limited funds employers have available to reduce MSD injury

risks, away from injury reduction and instead to try to figure out what must be done

to comply with the regulation. This is a poor use of those limited resources but when

you will face citations and fines for non-compliance of the regulation, that diversion

of those limited funds is required.

Let me present with my observations of what will work to help reduce workplace

MSD injuries:

1. The single most important action any Government authority can undertake is

to provide information employers on ways to reduce workplace MSD injury risks in

their specific industry or business. Reducing workplace MSD injuries is far from a

science currently. Reducing these injuries involves so many factors that simply do

not enable the development of a regulation. Factors include the physical condition

of those doing the work, the type of work, recovery times, where the work is being

done, etc. A solution to reducing workplace MSD injuries for one roofing project simply cannot be applied to another roofing project because of the infinite variability

in this as well as other industries.

Please allow me a moment to talk about information. In years past, those workers

who did warehouse work were told to wear ‘‘back belts’’ to reduce their risk of MSD

injury. Employers provided back belts. A few years later a study showed that the

use of back belts may actually increase the risk of MSD injury not reduce it because

when the worker went home and did not use the back belt while lifting, the likelihood of injury was greater.

Employers need clear information of what has proven to work. Not what will theoretically work, but what has proven to work. Here is the correct role for Government

to play. Gather this data or do the research necessary to develop this data instead

of having each employer expend funds trying to find solutions using a hit-and-miss

approach to see what really works to reduce workplace MSD injuries. This is the

biggest single action any Government agency can provide that will deliver the most

results in reducing workplace MSD injuries. Figure out what works and then tell

employers. Employers already have four significant incentives to reduce workplace

MSD injuries as discussed previously. They just need information about how to do

it.

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2. Provide this information along with assistance to employers—especially small

employers. More than 85 percent of the nation’s employers are small employers with

fewer than 50 employees. They employ about 45 percent of the nation’s private sector workforce. Almost none of these employers have any expertise in ergonomics.

Government authorities need to provide assistance in how to apply the information

on what works. As I stated earlier in my comments, employers small and large, already have four reasons they want to reduce workplace MSD injuries. They want

the information and assistance to do so. This must be the focus of any Government

initiative to help reduce workplace MSD injuries.

We applaud President Bush and his administration for their recently announced

plan to reduce workplace MSD injuries. Their approach is very similar that what

I have just presented to you. We know from the Washington State experience that

a new, comprehensive set of regulations setting theoretical limits on various work

activities simply are unworkable and threaten the jobs of many workers. Developing

information about what works and providing assistance in applying it industry-byindustry and business-by-business in a mode of assistance rather than through the

use of citations and penalties is the best approach. Employers already want to reduce workplace MSD injuries. What they lack is information and assistance on how

to do it.

Thank you and I will be pleased to respond to any questions you may have.

[Whereupon, at 12:10 p.m., the hearing was adjourned.]

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