A REVIEW OF OSHA’S PLAN TO REDUCE

ERGONOMIC INJURIES

HEARING

BEFORE THE 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

OF THE 

COMMITTEE ON EDUCATION AND 

THE WORKFORCE 

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

HEARING HELD IN WASHINGTON, DC, APRIL 25, 2002 

Serial No. 107-61 

Printed for the use of the Committee on Education 

and the Workforce

U.S. GOVERNMENT PRINTING OFFICE 

WASHINGTON : 2002 

81-202 pdf 

For sale by the Superintendent of Documents, U.S. Government Printing Office 

Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 

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ii

COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN A. BOEHNER, Ohio, Chairman 

THOMAS E. PETRI, Wisconsin GEORGE MILLER, California 

MARGE ROUKEMA, New Jersey DALE E. KILDEE, Michigan 

CASS BALLENGER, North Carolina MAJOR R. OWENS, New York 

PETER HOEKSTRA, Michigan DONALD M. PAYNE, New Jersey 

HOWARD P. “BUCK” McKEON, California PATSY MINK, Hawaii 

MICHAEL N. CASTLE, Delaware ROBERT E. ANDREWS, New Jersey 

SAM JOHNSON, Texas TIM ROEMER, Indiana 

JAMES C. GREENWOOD, Pennsylvania ROBERT C. “BOBBY” SCOTT, Virginia 

LINDSEY O. GRAHAM, South Carolina LYNN C. WOOLSEY, California 

MARK E. SOUDER, Indiana LYNN N. RIVERS, Michigan 

CHARLIE W. NORWOOD, JR., Georgia RUBEN HINOJOSA, Texas 

BOB SCHAFFER, Colorado CAROLYN McCARTHY, New York 

FRED UPTON, Michigan JOHN F. TIERNEY, Massachusetts 

VAN HILLEARY, Tennessee RON KIND, Wisconsin 

VERNON J. EHLERS, Michigan LORETTA SANCHEZ, California 

THOMAS G. TANCREDO, Colorado HAROLD E. FORD, JR., Tennessee 

JIM DeMINT, South Carolina DENNIS KUCINICH, Ohio 

JOHNNY ISAKSON, Georgia DAVID WU, Oregon 

BOB GOODLATTE, Virginia RUSH D. HOLT, New Jersey 

JUDY BIGGERT, Illinois HILDA L. SOLIS, California 

TODD RUSSELL PLATTS, Pennsylvania SUSAN DAVIS, California 

PATRICK J. TIBERI, Ohio BETTY McCOLLUM, Minnesota 

 RIC KELLER, Florida 

 TOM OSBORNE, Nebraska 

 JOHN ABNEY CULBERSON, Texas 

JOE WILSON, South Carolina 

Paula Nowakowski, Chief of Staff 

 John Lawrence, Minority Staff Director

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

CHARLIE NORWOOD, Georgia, Chairman

JUDY BIGGERT, Illinois, Vice Chairman MAJOR R. OWENS, New York

CASS BALLENGER, North Carolina DENNIS KUCINICH, Ohio 

LINDSEY O. GRAHAM, South Carolina PATSY T. MINK, Hawaii 

JOHNNY ISAKSON, Georgia LYNN C. WOOLSEY, California 

BOB GOODLATTE, Virginia LORETTA SANCHEZ, California 

RIC KELLER, Florida HILDA L. SOLIS, California 

JOHN ABNEY CULBERSON, Texas 
iii

Table of Contents 

OPENING STATEMENT OF CHAIRMAN CHARLIE NORWOOD, SUBCOMMITTEE ON 

WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE

........................................................................................................................................................ 2

OPENING STATEMENT OF RANKING MEMBER MAJOR OWENS, SUBCOMMITTEE 

ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE 

WORKFORCE ............................................................................................................................... 4

STATEMENT OF JOHN L. HENSHAW, ASSISTANT SECRETARY OF LABOR, 

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF 

LABOR, WASHINGTON, D.C. .................................................................................................... 7

APPENDIX A - WRITTEN OPENING STATEMENT OF CHAIRMAN CHARLIE 

NORWOOD, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON 

EDUCATION AND THE WORKFORCE................................................................................... 31

APPENDIX B - STATEMENT OF JOHN L. HENSHAW, ASSISTANT SECRETARY OF 

LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, U.S. 

DEPARTMENT OF LABOR, WASHINGTON, D.C. ................................................................ 37

APPENDIX C – SUBMITTED FOR THE RECORD, LETTER FROM JOHN L. HENSHAW, 

ASSISTANT SECRETARY FOR OCCUPATIONAL SAFETY AND HEALTH, U.S. 

DEPARTMENT OF LABOR, WASHINGTON, D.C., TO CHAIRMAN CHARLIE 

NORWOOD, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON 

EDUCATION AND THE WORKFORCE JULY 3, 2002........................................................... 45

APPENDIX D – SUBMITTED FOR THE RECORD, STATEMENT OF CONGRESSMAN 

DENNIS KUCINICH, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE 

ON EDUCATION AND THE WORKFORCE............................................................................ 53

APPENDIX E – SUBMITTED FOR THE RECORD, STATEMENT OF CONGRESSWOMAN 

HILDA SOLIS, SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON 

EDUCATION AND THE WORKFORCE................................................................................... 57

APPENDIX F – SUBMITTED FOR THE RECORD, STATEMENT OF LPA (LABOR 

POLICY ASSOCIATION), WASHINGTON, D.C., APRIL 25, 2002........................................ 61

Table of Indexes............................................................................................................................ 70 
iv
1

HEARING ON A REVIEW OF OSHA'S PLAN 

TO REDUCE ERGONOMIC INJURIES 

____________________

Thursday, April 25, 2002 

Subcommittee on Workforce Protections 

Committee on Education and the Workforce 

U.S. House of Representatives 

Washington, D.C. 

 The Subcommittee met, pursuant to notice, at 10:00 a.m., in Room 2175, Rayburn House 

Office Building, Hon. Charlie Norwood, Chairman of the Subcommittee, presiding. 

 Present: Chairman Boehner, Representatives Norwood, Biggert, Isakson, Goodlatte, Keller, 

Owens, Kucinich, Woolsey, Sanchez, Solis, and Hinojosa. 

 Staff present: Stephen Settle, Professional Staff Member; Molly Salmi, Professional Staff 

Member; Travis McCoy, Legislative Assistant; Paula Nowakowski, Staff Director; Ed Gilroy, 

Director of Workforce Policy; Greg Maurer, Coalitions Director for Workforce Policy; Kristin 

Fitzgerald, Professional Staff Member; Christine Roth, Professional Staff Member; Jo-Marie St. 

Martin, General Counsel; Linda Stevens, Chief Clerk/Assistant to the General Counsel; Heather 

Valentine, Press Secretary; and, Dave Thomas, Legislative Assistant. 

Peter Rutledge, Minority Senior Legislative Associate/Labor; Maria Cuprill, Minority Legislative 

Associate/Labor; and, Dan Rawlins, Minority Staff Assistant/Labor.
2

Chairman Norwood. A quorum being present, the Subcommittee on Workforce Protections will 

now come to order. 

 Good morning, everyone. The Subcommittee is meeting today to hear testimony on 

OSHA's comprehensive strategy to reduce ergonomic injuries. Joining us today is the Assistant 

Secretary for Occupational Safety and Health at the U.S. Department of Labor, Mr. John Henshaw. 

Welcome, Mr. Secretary. 

 We are honored to have someone with as much knowledge as Mr. Henshaw take the time to 

help us understand these complex issues, and we very much welcome you. 

 Under rule 12(b) of the Committee rules, any oral opening statements are limited to the 

Chairman and Ranking Minority Member of the Subcommittee. If other Members have opening 

statements, they may be included in the hearing record. Without objection, the record will be held 

open 14 days to allow Member statements, the written testimony of our witnesses, and other 

extraneous materials to be included in the official hearing record. 

OPENING STATEMENT OF CHAIRMAN CHARLIE NORWOOD, 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON 

EDUCATION AND THE WORKFORCE 

 Before we begin our discussions today, I need to put on my “game face” and make a few 

things crystal clear. I need to do this because a lot of things have been said over the past two 

weeks, since OSHA announced its plan for ergonomics. Some of the things being said are not 

quite supported by fact. That is probably the kindest way I can describe this situation. 

 Of all that has been said, nothing that I have heard is more hurtful and further from the truth 

than the cavalier statements concerning Republican Members of Congress and the individuals 

representing this Administration; statements suggesting that we don't take ergonomic injuries 

seriously.

 I hope most of you will respond to such school-type antics with a moment of thought. The 

truth is that many Republican Members of Congress have owned businesses before coming to 

Congress. All of us have employees in our offices. It is ridiculous to suggest that we do not take 

seriously the well being of our staffs in Congress or the employees we had while in business. 

Many of these people are close friends. And, in many situations, we know each other's families, 

and sometimes we even think of each other as a second family. Not caring? What a callous thing to 

say just to score a few political points. 

 So let me start by saying something I should not have to say, and thought I would never say 

as a Subcommittee Chairman. We are here today to talk about issues we all take very, very 

seriously. I think I speak for both sides of the aisle. Anyone who tells you otherwise has missed 

the point; and, if I might suggest, is playing so very far out in left field that he or she doesn't even 
3

know the score. 

 Let me report on the score for those who have lost touch. Unless I have missed something, 

we have a golden opportunity before us to successfully reduce ergonomic injuries right now, 

starting today, not years down the road. We know what doesn't work. We learned those lessons the 

hard way through some painful but totally necessary political votes. And now, if we choose, we 

can build around those lessons learned rather than trying to force a solution into place that will 

never work without scientific support. 

 It is like straining to put a square peg in a round hole. It is just not going to work. We can 

decide to move forward, however. We have an opportunity to attempt a realistic approach, which 

will shift our focus to a positive plan of action that can, and I and most experts on safety and health 

think will successfully reduce ergonomic-related injuries. Now that is the bottom line, isn't it? 

Results.

 In the OSHA context, results means reduced workplace injuries. Isn't that what this is all 

about? It is substance over form, not vice versa. I have to admit that when I first heard about 

OSHA's plan to reduce ergonomic injuries, I had some real concerns. The fact is I still have some 

concerns in some areas. The prospect of being cited under the general duty clause sends shivers 

down the spines of most employers. I'm thinking about the small businesses in Georgia when I say 

that. When I heard talk about best industry practices as a basis for establishing guidelines, I thought 

about whether these guidelines would set the bar so high it would jeopardize small enterprises in 

my state and in New York. I thought of a lot of reasons to find fault with OSHA's strategy; then I 

stopped and tried to direct my mind away from being an obstructionist into a more positive 

direction. I thought about the bottom line again. I remember what is at stake here, and thought 

about how obstructionism is maybe just the easy way out. 

 It is like sore losers playing checkers. When they realize that someone else's strategy is 

going to work, they turn over the board, send the checkers flying in all directions, thus, ending the 

game; and then they cry about how we should all begin to start over. In truth, whether for political 

reasons or whether based on a sincere belief that there is a better way to solve a problem, the 

bottom line is that when we have a problem to solve, Members of Congress, unions, employers, 

and employees can help and pitch in or hinder with obstruction. There really is a choice for us 

today.

 In terms of Mr. Henshaw's strategy, we can look at this as a plan that can work, and just 

might work if together we make it work. Or we can look at this as someone else's plan and hinder 

its implementation with cries that we need to start over and play by new rules that a majority has 

already rejected once. 

 Which of these two tactics will reap the greater benefit for the workers? What comes to 

mind is a barrel of fresh Georgia peaches. Some people just stare at the barrel and spend all of their 

time thinking about a few rotten peaches that might be in that barrel; others grab one of those 

peaches and think about how sweet it tastes going down. Isn't that about the same as the difference 

between saying that this is just a plan to make a plan and walking away, versus looking at it as a 

plan that could and just might work, and lending a hand to help iron out details to make it 
4

successful? 

 So despite my reservations, Mr. Henshaw, I intend to work with you and do everything I 

can to try to help make this plan work. Simply stated, I am going to do this because I want to see 

results begin to accrue right now, not years from now. Simply stated, I want to give a process 

where we work together a chance to work, not restart the political rhetoric. That does not mean I 

am going to forget about my concerns. 

 Right now, I am asking you, Mr. Henshaw, to agree to keep this Subcommittee fully 

informed about the process and progress of this strategy. Keep all of us informed, majority and 

minority. I want to let Secretary Chao know well ahead of time that I intend to conduct another 

hearing at an appropriate time in the future to review the progress that is being made. If you can 

give me the promise to keep us informed, Mr. Henshaw, then you have my word that I am not 

going to spend my time to pass any bill to force OSHA to use its resources to do anything other 

than make this plan work. 

 To my colleagues on the minority side, I want to ask you to join with us. Work with OSHA 

to help make this work. If you will give this a chance to work, together we can monitor its progress 

and help direct its success.

WRITTEN OPENING STATEMENT OF CHAIRMAN CHARLIE NORWOOD, 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND 

THE WORKFORCE – SEE APPENDIX A 

Chairman Norwood. I hope that we can work together, Mr. Owens, to make this happen. 

 It is now my pleasure to yield to the Ranking Minority Member of the Subcommittee, Mr. 

Owens, for his opening statement. 

OPENING STATEMENT OF RANKING MEMBER MAJOR OWENS, 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS, COMMITTEE ON 

EDUCATION AND THE WORKFORCE 

Thank you very much, Mr. Chairman. Mr. Henshaw, I want to welcome you also. I look 

forward to your testimony. As I am sure you suspect, there are many on my side of the aisle that 

have doubts about how effective your program to reduce ergonomic injuries will be. 

 The Reagan Administration, the first Bush Administration, and the Clinton Administration 

all implemented comprehensive programs emphasizing guidelines, general duty clause 

enforcement, and voluntary compliance. Each of those administrations concluded that an 

ergonomic standard was essential to the protection of workers; half measures were grossly 
5

inadequate.

 Also, I am aware of Secretary Chao's argument that this program can be implemented 

immediately, whereas, a standard will take four-and-a-half years to develop. More than a few 

Senators believe that an ergonomic standard can be developed in less time. 

 More importantly, however, your program is not mutually incompatible with the 

development of a standard. The contention that this program can be immediately implemented, 

does not preclude the simultaneous development of a standard, nor does it justify your decision to 

forego the development of a standard. 

 I have heard the rhetoric that your program is not a “one size fits all” program, the 

implication being that the rule proposed by the Clinton Administration was a one size fits all 

program. In the first instance, it is an absolute untruth to say that the Clinton Administration rule 

proposed or required a single economic solution or program for all employers. 

 More importantly, our purpose in being here this morning is to hear how your program will 

reduce ergonomic injuries. I know that we are all guilty of this. But meaningless rhetorical 

slogans, as good as they may sound, do little to tell us how your program will actually reduce 

ergonomic injuries in the workplace. 

 You regularly refer to your program as a four-pronged, comprehensive approach to workrelated ergonomic injuries. Let me note, however, that so far OSHA has only developed guidelines 

for the meat packing industry. I know you have begun to work on guidelines for the nursing home 

industry. But even once that is complete, you would have guidelines for less than 2 percent of the 

workforce.

 Before one can fairly characterize this as a comprehensive program, I think OSHA has an 

obligation to explain more thoroughly how you are going to protect the remaining 98 percent of the 

workforce for whom the development of guidelines has not even begun. We need specific 

information about what you are going to do and when you will do it. 

 Ergonomic injuries are the leading cause of workplace injuries, accounting for 1.8 million 

injuries every year. They are responsible for more than one-third of all days away from work due 

to workplace injury. The National Academy of Science has estimated that in 1999, more than one 

million workers had to take time from work because of ergonomic injuries at a cost of 

approximately $50 billion. 

 There has been a decline in the number of days lost due to ergonomic injuries. At the same 

time, however, the number of cases involving light duty or restricted activity due to injury has 

increased significantly as a percentage of days lost from work due to ergonomic injuries is 

increasing. In certain key industries including air transportation, trucking, and nursing homes, 

recent data show a marked increase in ergonomic injuries. There are those who contend, despite 

numerous studies to the contrary, including two by the National Academy of Science, and another 

by NIOSH, that there is no such thing as an ergonomic injury. We have been through that over and 

over again. They contend that such injuries are not work-related, or that we do not know how to 
6

reduce the incidents of such injuries through workplace interventions. Unfortunately, some of those 

who have advocated this nonsense in the past are now at the Department of Labor. 

 You proposed a plan that does not differ significantly from earlier unsuccessful efforts to 

combat ergonomic injuries. You tell us we can reduce ergonomic injuries through the use of 

guidelines. But there are no guidelines for 98 percent of the workforce, and you have not told us 

what industries or occupations you would develop guidelines for. 

 You tell us that your program would better prevent ergonomic injuries before they occur, 

but the only enforcement mechanism is the use of the general duty clause. In the past, the 

Department of Labor has only brought general duty clause enforcement cases after there have been 

significant injuries. In addition, both your own solicitor, and your own deputy administrator have 

stated that they believe a general duty clause case should not and cannot be successfully used to 

prosecute ergonomic cases. 

 You say that you want to increase outreach, especially to Hispanic and other minority 

workers; however, your budget cuts fiscal year 2003 training grants by 64 percent. That is $7 

million. And it converts a successful program that has provided direct health and safety training 

for workers, including thousands of minority workers, into a web-based program that will be 

inaccessible to many minority workers. 

 The magazine Business Insurance ran a web poll yesterday that asked the question, “How 

effective do you think OSHA's volunteer ergonomic guidelines will be in preventing repetitive 

stress injuries?” The magazine is not one generally read by workers, and has itself editorialized in 

favor of a volunteer program. Nevertheless, as of 7 p.m. last night, only 5.4 percent thought the 

program would be very effective; 27 percent thought the program would be somewhat effective; 

and 68 percent, more than two-thirds, thought the program would not be effective at all. 

 Unfortunately, I am with the 68 percent. That is my initial impression as well. It is my 

hope, however, that I am wrong and that your commitment to reduce ergonomic injuries and your 

willingness to take the steps necessary to accomplish that are sincere. We won't go round and 

round in a circle for no reason. You will bring it to a productive end. Thank you. 

Chairman Norwood. Thank you very much, Mr. Owens. 

 If our goal today is to review OSHA's strategy to reduce ergonomic injuries, we certainly 

have in the person of Assistant Secretary John Henshaw, someone capable of providing the 

information we need. 

 Now I know that Mr. Henshaw finds great pleasure in sailing, and golf, and four 

grandchildren. I also know for a fact that over the past 25-plus years, he has had another passion in 

life, workplace safety and health. I could go over a long list of honors and accomplishments but I 

will not, and instead just say that I cannot imagine a more qualified individual to lead a discussion 

on workplace protections. 
7

 With that said, Mr. Henshaw, I would like to ask you to begin the process of walking us 

through OSHA's strategy. I am not quite sure that we all will have questions following your 

presentation. But, at any rate, thank you very much for being here, John. 

 And, as we begin the questioning process, I want to take a minute and remind Members of 

the Committee rule that imposes a five-minute limit on questions. We will try to stick to that, but 

have as many rounds of questions as you like. 

 With that, Mr. Henshaw, if you would proceed. 

STATEMENT OF JOHN L. HENSHAW, ASSISTANT SECRETARY OF 

LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, 

U.S. DEPARTMENT OF LABOR, WASHINGTON, D.C. 

Thank you, Mr. Chairman, and Mr. Owens, and the Members of the Subcommittee. Thank 

you for this opportunity to describe OSHA's comprehensive plan for addressing ergonomic 

hazards. I have submitted a written statement for the record, but let me summarize in this oral 

statement. 

 As you know, in March of 2001, Secretary Chao made a commitment to develop a 

comprehensive approach to ergonomics. Just one year later, we have announced OSHA's plan, 

which I am confident will reduce ergonomic hazards in America's workplaces. We have produced 

a four-prong, comprehensive approach to ergonomics that I believe will be effective in addressing 

musculo skeletal disorders in the workplace. 

 First, our approach calls for the development of task-specific and industry guidelines. The 

first set of guidelines, which are specific to the nursing home industry, will be completed this year 

with many other guidelines. Second, it creates a new enforcement strategy under existing law to 

pursue employers who refuse to take the necessary steps to protect their workers. Third, we are 

establishing an outreach and assistance program to ensure that employers, workers, unions, and 

health and safety professionals are aware of ergonomic issues, and take measures to help address 

them in the workplaces of this country. Finally, while there is a large body of information available 

on ergonomics, there are many areas where additional research is necessary. The agency will 

create a national Advisory Committee, which will advise us on these gaps, as well as the 

development of guidance, outreach and assistance materials. 

 OSHA's plan is based on the Secretary's principles for a sound approach using good 

science, incentives, flexibility, and avoiding a “one size fits all” approach, addressing the feasibility 

questions, and clarity for practical solutions in the workplace. 

 Let me speak to each one of those four components. As the first prong of our approach, 

OSHA will develop industry and task-specific guidelines that reflect what is known in terms of best 

practices and effective and feasible abatement methods. 
8

 Why guidelines and why not a rule? Mr. Chairman, it took ten years and $10 million to 

develop the previous rule, which was discredited by this body. Our goal now should not be to rush 

out another rule for the sake of issuing a rule. The time to be effective is now. We already know 

that guidelines are helping employers to identify problems in their workplaces by providing 

practical and useful steps for them to take to reduce these hazards. They are effective. As many of 

you know, in the early 1990's, OSHA issued the guidelines for the meat packing industry. 

Subsequently, ergonomic-related injuries for that industry fell by 62 percent, more than twice the 

decline for all the private industry. 

 The second component of our plan is enforcement. This is a critical piece of our plan.

Under Section 5(a)(1) of the Occupational Safety and Health Act, which is the general duty clause, 

employers must keep their workplaces free of recognized hazards. OSHA's new comprehensive 

approach to ergonomics incorporates an enforcement strategy for the first time that will result not 

only in general duty clause citations, but successful prosecutions where necessary. Make no 

mistake about it; OSHA will not tolerate employers who ignore ergonomic hazards. If employers 

fail to exercise their responsibility to protect employees from known hazardous conditions, we can 

assure you that they will hear from us. 

 I want to make it clear that we are not enforcing guidelines. Indeed, if we were, that would 

merely make them a rule by another name. Rather, we are enforcing the obligations that employers 

have under the Occupational Safety and Health Act that was passed in 1970, to keep their 

workplaces free of recognized hazards. 

Secretary Chao has instructed me, as well as the Solicitor of Labor, to use Section 5(a)(1) of 

the Act, where appropriate, for ergonomic citations. In many cases, employers may be taking some 

steps to abate hazards, but problems still persist. In those instances, the Agency may issue 

ergonomic hazard alert letters when appropriate. These letters make employers aware of the 

hazards and provide information on feasible means of abatement and sources for assistance.

OSHA will conduct follow up inspections within 12 months in certain work sites that receive these 

hazard alert letters. 

 The third component is compliance assistance and outreach. Compliance assistance and 

outreach are essential components of our ergonomic strategy. OSHA will provide assistance to 

businesses, particularly small businesses, to help proactively address ergonomic problems in the 

workplace.

 Local OSHA offices have a compliance assistance specialist who works with the 

community and directly with employers and employees to determine best solutions and provide 

advice on safety and health. Also, OSHA now has about 134 partnerships with private sector 

participants throughout the nation. Many partnerships are at the local level, where an OSHA area 

office works with the local union and/or the employer organizations to improve workplace 

conditions in particular establishments. We will now focus development of similar new 

partnerships that highlight the value of ergonomic guidelines and active solutions. 

 The last piece of our plan is research. While there is a large body of research available on 

ergonomics, the National Academy of Sciences has identified gaps that still remain. These need to 
9

be worked on and improved. They deal with measurements and assessments of physical stress and 

workplace solutions. We will soon publish in the Federal Register the details of a new national 

Advisory Committee on ergonomics, which, among other duties will be asked to identify gaps in 

research related to the application of ergonomic principles in the workplace. OSHA will also, of 

course, continue to work closely with NIOSH to encourage needed research in this field, and to 

ensure that advances in science are communicated in practical terms to employers and workers. 

 In conclusion, Mr. Chairman, while we implement our approach to reduce workplace 

musculo skeletal disorders, it is important to recognize that many American workplaces are already 

addressing these problems on their own. Musculo skeletal disorders have declined by 26 percent 

over the last decade, due in part to increased awareness of these problems. Many employers know 

that it is simply good business to prevent workplace hazards, and they are taking the appropriate 

steps to do so. 

Mr. Chairman, I have spent my entire life, as my kids say, working in occupational safety 

and health as a professional, developing and advocating programs to protect workers that actually 

do work. Those are the real solutions. I have always taken a systematic approach to worker 

protection. There are very few workplace hazards that can be eliminated by quick fixes. Solutions 

come from gathering data, analyzing information, and utilizing a multi-faceted approach to 

problem solving. That means involving all parties including the workers. 

 Ergonomics is best addressed in this fashion by a multi-faceted approach. As the Secretary 

has said, reducing MSDs or musculo skeletal disorder hazards will make all workplaces safer, and 

improve the lives of thousands of American workers. We believe the comprehensive plan we have 

put forward can effectively advance that objective. And, yes, Mr. Chairman, we will keep you 

informed as we proceed with this plan. Thank you, and I will be glad to take questions. 

STATEMENT OF JOHN L. HENSHAW, ASSISTANT SECRETARY OF LABOR, 

OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF 

LABOR, WASHINGTON, D.C. – SEE APPENDIX B 

Chairman Norwood. Thank you very much, Mr. Henshaw, and I will yield myself five minutes to 

ask questions. 

 I want to follow up on Congressman Owens statement that only two percent of the nursing 

home work force is covered under the nursing home guidelines that will be ready right away. Does 

the Federal Government actually know where the greatest amount of musculo skeletal disorders 

occur in the nation, and in what industries they occur? Do we know the answer to that? 

Mr. Henshaw. Mr. Chairman, we know the answer with respect to how we define musculo skeletal 

disorders. As you know, certainly from the data of the last several years, that the definition of 

musculo skeletal disorders or MSDs, is an art in the scientific literature, since it combines all of 

these injuries that are in the workplace. The hazards, the definitions of the disorders, the causation 

of those disorders are very complex and multivariate. 
10

Chairman Norwood. Then why did you select the nursing home industry first? 

Mr. Henshaw. Using the BLS statistics that we have today, nursing homes have a high percentage 

of musculo skeletal disorders. So that is the reason why we selected the nursing home industry. 

Chairman Norwood. What other industries have a high percentage of musculo skeletal injuries? 

Mr. Henshaw. We have looked at all of the high hazard industries, and they are all on our target 

list for guidelines. 

Chairman Norwood. This may come as a great shock for some, but personally I don't believe that 

every American needs your help. I don't believe every American worker out there, or 100 percent 

of the workers in this country really need anything from you, since they are not in a workforce area 

that is causing problems. 

 Now if that is the case, assuming you will never have all of the dollars or employees you 

believe you should have, wouldn’t it be smart to go and work right now on the industries where 

you know you would do the most good? I presume this to be the case. In fact, my observation over 

the last year is you may have fewer employees than you need. 

Mr. Henshaw. That is precisely what we should be doing. My job is to produce, as you 

mentioned, results. My job is to reduce injuries and illnesses. That is my only job, my only 

purpose in life. 

Chairman Norwood. Your job isn't to reduce injuries in an industry that doesn’t have injuries, is 

it?

Mr. Henshaw. That is correct. 

Chairman Norwood. So I am glad you started with the nursing home industry. I want you to focus 

on where most of the injuries occur, under the assumption that you will never have every dollar you 

ever wanted. 

 Now you stated what I think is the $64,000 question: Why guidelines instead of standards? 

 I want to make sure we all heard you correctly. Are you telling us that a standard was not 

feasible, and that guidelines are, in fact, a better approach perhaps from a safety and health 

standpoint? Is that what you are saying? 

Mr. Henshaw. That is what I am saying, yes, sir. The reason for that is the variation in hazards that 

deal with what are classified as ergonomic hazards. The American workplace is very diverse, and 

the combinations of the various hazards associated with the workplace are very diverse. The 

difficulty in determining exposure and effect or outcomes is very complicated. It is not easy to 

make those decisions. And, therefore, rules that try to make it easy are not successful. That is one 

reason why the effort of ten years and $10 million wasn't successful. This is a very complicated 
11

issue.

Chairman Norwood. Some of my colleagues, Mr. Henshaw, have been saying that all you are 

really doing is coming up with a plan to come up with a plan, whatever the heck that is.Now, if I 

heard your testimony correctly, that is not necessarily supported by the facts. What I am hearing is 

that realistically you expect OSHA's guidelines to reduce injuries and illnesses related to musculo 

skeletal disorders. How? 

Mr. Henshaw. In the real world there is a way to execute and develop plans. They are a design of 

a strategy to produce the results we are looking for, in this case, injury and illness reduction. Our 

plan is to identify a set number of industry and task-specific guidelines. We will develop those 

guidelines. The first one we announced was nursing homes. We will develop a number of other 

guidelines specific to industries and tasks. 

 We will also develop a strategy, which we are in the process of completing, for having 

successful 5(a)(1) prosecutions where necessary. Another part of the overall plan is the execution 

and delivery of outreach and educational services. We presently have a number of measures that 

we are executing that will accomplish the outreach and assistance that we are looking for. 

 With regard to research, I have heard some comments about this having been tried in the 

past. This has not been tried in the past. This is the first time we have put a comprehensive plan 

into action; a plan that produces results, and doesn’t just tread water. This is a plan that will 

produce and therefore reduce injuries and illnesses in this country. 

Chairman Norwood. Thank you, Mr. Henshaw. 

Mr. Owens, you are now recognized for five minutes. 

Mr. Owens. Mr. Henshaw, I wrote a quote down here. You didn't say it exactly as it is written in 

your testimony, but you said, “It took ten years to develop a rule which was discredited by this 

body.” Can you explain what you mean by that? 

Mr. Henshaw. Well, I meant discredited through a joint resolution of Congress. 

Mr. Owens. What do you mean by discredit? 

Mr. Henshaw. I am not here to argue the old rule. I think that was debated about a year ago, but 

the old rule was thrown out because it was discredited. 

Mr. Owens. How was it discredited? There was a vote to throw it out. Is that what you are saying? 

Mr. Henshaw. It was thrown out, yes. 

Mr. Owens. There was a vote. How much debate was there on it? 
12

Mr. Henshaw. I was not a part of that debate, so I don't know the details. 

Mr. Owens. You know it did not come before this Committee for consideration? 

Mr. Henshaw. If I implied that, I am sorry. A bipartisan vote decided to throw the rule out by a 

joint resolution; an act of Congress

Mr. Owens. One of the first acts of the new Congress was to rapidly move to throw out ten years 

worth of work. Now you seem to disparage ten years. You throw it aside as if it doesn't mean 

anything, but it took ten years. The National Academy of Sciences and the National Institute of 

Occupational Safety and Health did several studies. Over those ten years, Elizabeth Dole, Lynn 

Martin and a whole group of experts, both Republican and Democrats, endorsed the idea that this 

was needed. And yet you blithely say it is no good because it was discredited. 

 I think that your testimony is sort of discredited when you cast aside ten years worth of 

work so casually. Instead it is back to the future with your guidelines, you know that. We are 

going to do it all over again now, although it took ten years for the best and brightest minds in 

America to come up with that standard, which was quickly voted out in one act of Congress 

without any debate, without any hearings, and no deliberations. It is kind of an uncivilized act. 

 My next question is how many ergonomic cases alleging a violation of a general duty 

clause are currently pending? 

Mr. Henshaw. We have had over the last ten years close to 300 5(a)(1) inspections, your term 

“general duty clause,” dealing with ergonomics. Most of those have been settled. 

Mr. Owens. How many are currently pending? 

Mr. Henshaw. I don't know the precise number. We can get that for you, but I don't know the 

precise number. Most of those have already been settled with successful conclusions, as far as 

reducing the ergonomic risk. 

Mr. Owens. Specifically, how is the Department going to focus enforcement efforts on those 

employers who do not have effective programs, and are not making good faith efforts to reduce 

injuries? How will you identify such employers? What will happen when such employers are 

identified? 

Mr. Henshaw. We have two processes in place as part of our enforcement strategy. If you 

remember, we have the site-specific targeting process, where we identified through our data 

initiative those employers that have a high incident rate for lost time injuries. They are a part of our 

list for targeting inspections. Those facilities that have the higher predominance of ergonomic kinds 

of injuries are on our list as well. And so, we are going to be focusing on those facilities. When we 

visit, if they qualify, which means they have not exercised good faith, as you mentioned, in 

reducing ergonomic hazards, then they may be candidates for the 5(a)(1) citations. 
13

Mr. Owens. How do they come to your attention? Is there a running statistical record of what is 

happening? 

Mr. Henshaw. It is part of the OSHA data initiative for targeting our programmed inspections. We 

send out letters a year before, receive information back, and we target our programmed inspections. 

MSDs are part of the injuries that we look at. So as the Chairman mentioned, we are going to focus 

our inspections around the high hazard industries, whether it be ergonomic-related hazards, or other 

kinds of hazards. 

Mr. Owens. You are familiar with the Pepperidge Farm case, I am sure. It took eight years to 

settle without ever reaching the courts. And also the Beverly Enterprises case took 11 years to 

settle without reaching the courts. 

 Employers are under no obligation to correct the hazard at the time the general duty clause 

case is pending, as is evident with both Pepperidge Farm and Beverly Enterprises. They can 

contest the case for a long time, and the hazard can continue. Doesn't this significantly compromise 

your ability to protect workers from ergonomic hazards when you are using the general duty 

clause?

Mr. Henshaw. With the use of the general duty clause, obviously, case law provides an 

opportunity for you to perfect the way you bring these cases forward. In litigating the Beverly 

case, we have learned a lot about how to bring 5(a)(1) cases. In the Beverly case, we performed 

inspections in five facilities, but the settlement we reached dealt with 270 facilities nationwide. To 

me, that is an excellent outcome. And, obviously, we want to capitalize on that and continue to 

employ that. 

Mr. Owens. How many general duty clause cases alleging an ergonomic violation have been filed 

by this Administration? 

Mr. Henshaw. I don't know that number, but we can get that for you. 

Mr. Owens. What would you guess? 

Mr. Henshaw. Well, I wouldn’t want to guess, but I can tell you it is not enough.

Mr. Owens. Is it 10 or less than 10? 

Mr. Henshaw. I don't know what the number is. I can get the exact number, but it hasn't been 

enough. We have not applied 5(a)(1)'s like we should have over the last several years, and past 

administration as well. This is the first time we are putting a strategy together by building on case 

law, and taking advantage of what we have learned from both successes and failures. 

 We want to make sure these are successful. The Beverly case gives us the opportunity to 

say this can work and we can apply 5(a)(1) to cover not only one facility with one citation, but the 

result could cover industry-wide. We could get settlements that cover, as in the Beverly case, 270 
14

facilities. To me, that is using our resources appropriately. 

Chairman Norwood. Thank you very much. 

Mr. Owens. Thank you, Mr. Chairman. 

Chairman Norwood. Thank you, Mr. Owens. Mr. Henshaw, I ought to be happy to admit I was 

one of the ones that spent 10 years trying to discredit that rule, and that is why we got it thrown out.

When you don't watch science, you get into trouble. 

 Now I am very delighted that we have with us the Chairman of the Education and 

Workforce Committee. Mr. Boehner, you are now recognized for questions. 

Chairman Boehner. Mr. Chairman, thank you. And let me congratulate you on two counts. 

 First, I think it is important that we recognize the importance of conducting hearings such as 

this. It is important that workers, the regulated community, and even Members of Congress learn 

more about the details of critical plans, such as this Administration's strategy to reduce ergonomic 

injuries. I think we have come a long way toward accomplishing that today with Mr. Henshaw's 

appearance here before the Committee. 

 And, second, I want to thank you for focusing our attention on the need to work together in 

cooperation to make this plan a success. As Secretary Chao has noted, it is important that we begin 

the process of achieving results today, not years from now. If a strategy similar to what the 

Administration is proposing had happened 10 years ago, we could have actually reduced many 

ergonomic workplace injuries. 

 A little more than a year ago, I stood on the floor of the House, and I will quote, “No one is 

opposed to providing appropriate workable ergonomic protections in the workplace.” I meant what 

I said, and I also said that I looked forward to working with Secretary Chao. And I will say, 

“Pursue a comprehensive and workable approach to reduce ergonomic injuries.” While I think we 

have got a lot more work to do, I think we are on our way toward meeting that goal. 

 Now, like my colleague from Georgia, I like what I am hearing this morning. But I have to 

admit that I have some reservations, and I hope, Mr. Henshaw, you can help sort them out. One 

thing that sticks out in my mind, Mr. Henshaw, are the findings that appeared in the National 

Academy of Sciences report issued in January of 2001. The report stated on page 1, and I quote, 

“None of the common musculo skeletal disorders is uniquely caused by work exposures.” In fact, 

the National Academy report seems to be loaded with such findings, all of which seem to support 

either the Academy's conclusion that, and I quote, “It is therefore neither feasible nor desirable to 

propose a generic solution.” 

 So, Mr. Henshaw, tell me. How is OSHA's strategy going to account for these National 

Academy of Science findings, both in establishing your guidelines, and in implementing your 
15

enforcement strategy? 

Mr. Henshaw. Certainly. We have reviewed the National Academy of Science's findings, and 

obviously they did not suggest any other appropriate alternative, like a rule process. They clearly 

identified a number of gaps and issues that have to be addressed as we deal with musculo skeletal 

disorders.

 What we intend to do in this plan is develop guidelines where the science is clear, where we 

know which solutions, we know the diagnostic ability, we have a better feel, maybe not absolute, 

but a better feel for work relationship kinds of issues. Guidelines will be centered on what we 

know, and what we don't know or the idea of the research component. The National Advisory 

Committee on Ergonomics will help us identify issues to include in a research process so we can 

fill those gaps. 

 We are not ignoring the fact that the science is not clear. We are trying to address that. 

And so, what we want to do is get that into the process. As we get more information, we hope to 

be a catalyst to drive the research and work with NIOSH. Once we get the knowledge, then we feed 

it back into the guideline process, so it is a continuous loop. We are not ignoring the fact that there 

are gaps; we are trying to fill those gaps. 

Mr. Boehner. Mr. Henshaw, it was pretty obvious to me during the ten year debate over the socalled ergonomics rule that what eventually, in my view, killed that approach was that it was an 

attempt at a “one size fits all” mandate from the Federal Government for every business in 

America. 

 And I think one of the strongest parts of your presentation this morning, and one of the 

strongest arguments in favor of the approach that the Administration is taking, is that these in fact 

are voluntary guidelines. They are being developed and implemented in a cooperative effort 

between the government and the private sector to identify those workplace areas and businesses 

where these injuries are most likely to occur. And while that may fit my particular ideological 

position, and be opposed by some on the other side of the aisle, the fact is that this kind of 

cooperation, in my view, will in fact help reduce more ergonomic workplace injuries than the rule 

proposed last year would in the end. 

 Do you want to comment on this relationship between these voluntary guidelines as 

compared with your typical government mandate? 

Mr. Henshaw. My belief is that real solutions to ergonomic problems are developed at the plant 

floor level by the people who do the work, with the engineers and with management. That is where 

real solutions occur, which last and sustain themselves because they are effective and valued. 

Trying to mandate a fix from outside of the work environment spends a lot of resources and time, 

and is not effective or sustained in the sense that workers are not going to do things that are not 

valuable.

 I have a great deal of respect for the American worker. They know how to get the job done.

They have been given a charge, and they do it. They also know some of the solutions. The 
16

managers, the people who actually execute the work and decide what work needs to be done when 

and where, know how to fix these things. It cannot be done in Washington. 

 So what I intend to do with these guidelines is to capitalize on that experience, capitalize on 

that cooperation, and capitalize on that knowledge, and then build on that for further controls, 

further reduction of injuries, and specifically ergonomic injuries. 

Mr. Boehner. Thank you, Mr. Henshaw, and thank you, Mr. Chairman. 

Chairman Norwood. Thank you, Mr. Chairman, for spending some time with us this morning. 

I would like to remind the Subcommittee Members of Committee rule 2 which allows five 

minutes of questioning, except, of course, for the Chairman. With that, I see my friend, Mr. 

Kucinich, has come in, and you are now recognized for five minutes. 

Mr. Kucinich. I want to thank my good friend, the Chair, for this opportunity; and to the witness, 

welcome. 

Secretary Chao recently received a letter from 37 physicians and academics, most of whom 

were paid consultants and witnesses for industries opposing the ergonomic standard, supporting the 

Administration's decision not to issue a standard. Now the letter states, and I quote, “It is not true, 

as some have assumed, that we can succeed” in reducing musculo skeletal injuries “merely by 

reducing the physical exposures that are within our control.” Is this Department of Labor's 

position? 

Mr. Henshaw. I haven't read the letter you are referring to. 

Mr. Kucinich. But do you know the position of the Department of Labor? 

Mr. Henshaw. I know the position of the Department of Labor. Our position is that musculo 

skeletal disorders are a real cause of pain and suffering. They are real injuries, and there are real 

ways of accomplishing and reducing that pain and suffering by reducing the hazards that cause that 

pain and suffering. 

 The comprehensive plan around guidelines, the enforcement around the general duty clause, 

the outreach in education, and filling in the research gaps will accomplish that. That is our position. 

And I am confident we can make that happen. We can reduce the number of MSDs. 

Mr. Kucinich. So do you think ergonomics is a science then? 

Mr. Henshaw. Ergonomics is a relationship of human factors, or the human being at work. That is 

the definition of ergonomics. 

Mr. Kucinich. Do you think people actually get hurt on the job because of those factors? 
17

Mr. Henshaw. As I mentioned, injuries around ergonomic hazards are real. There are workplace 

circumstances where people do get hurt, as a result of repetitive motion, or awkward postures, and 

those sorts of things. 

Mr. Kucinich. Now doesn't the recent agreement the Department signed with nursing home 

operator, Beverly Enterprises, in fact, call for reducing physical exposure to lifting hazards? Are 

you familiar with that? 

Mr. Henshaw. I am familiar with the settlement. The settlement puts together a guideline and 

implements that guideline on lifting and avoiding the risk factors with respect to lifting in nursing 

homes, yes. 

Mr. Kucinich. And would you tell me, and tell this Committee, if it is in fact the Department's 

position, as the letter states, that “musculo skeletal pain in workers, such as back and upper limb 

pain, are best seen as a personal health issue rather than an ergonomics issue.” Is that the position? 

Mr. Henshaw. I don't think you can categorically say any of that. It is absurd to say that is the way 

it is in every circumstance in every workplace in this country. 

 It is true there are many different psychosocial factors that go into judging whether an 

injury is a result of workplace hazards, or some other kind of hazard or experience. There are 

many factors that go into making these determinations. 

Mr. Kucinich. But you wouldn't discount that as an ergonomics problem? 

Mr. Henshaw. I think I have already stated that there are real ergonomic hazards that cause 

musculo skeletal disorders in workplaces across this country. 

Mr. Kucinich. Now I remember, Mr. Chairman, listening to testimony from somebody in the 

poultry industry, who told OSHA in a hearing that they often hang more than 30,000 chickens a 

day. Now is it the Department's position that their risks, their shoulder, their back problems should 

be treated as personal health issues, or ergonomics problems? 

Mr. Henshaw. I wish it were that simple to say whether that is a problem or not, Congressman. 

That is what the guidelines are all about; to determine what those risk factors are, what the physical 

conditions of the people are, and what else contributes to that injury. 

 It could be, Congressman, if you already have a preexisting injury it may result in some sort 

of pain. Is that work-related? There are a lot of issues and concerns that go into making those 

judgment calls. 

Mr. Kucinich. I worked at a hospital as one of my first jobs, and there are nurses who lift 200-

pound patients multiple times a day. Are these back injuries personal health issues, or are they 

ergonomic problems? 
18

Mr. Henshaw. I would have to look at those cases. 

Mr. Kucinich. Let me give you an example. I was an orderly at St. Alexis Hospital, one of my 

first jobs. There was a patient. I was in pretty good shape. I have to say that. I was running 20 

miles a day. But there was a patient that weighed over 200 pounds, and I probably weighed about 

125 then, and he was falling out of bed, and I caught him, and I ended up with a hernia. 

 What would you say? Did I have a personal health problem, or was that somehow a workrelated injury? 

Mr. Henshaw. Under those kinds of conditions, trying to lift 200 pounds in an awkward position 

like that is probably something that shouldn't have been done. Obviously, you know those are the 

kinds of guidelines, training, and experience we want to give to workers, so that they avoid those 

kinds of injuries. 

Mr. Kucinich. But you do know there are nurses lifting these patients every day? 

Mr. Henshaw. That is what the guidelines are for. 

Chairman Norwood. Thank you very much, Mr. Kucinich. 

Mr. Kucinich. Thank you, Chairman. 

Chairman Norwood. Good questions. I would point out to you that you hit right on the subject.

The problem is we don't understand why three people can hang 30,000 chickens a day, and two of 

them are fine their entire lives, and one isn't. That is the whole problem here. As the Secretary 

pointed out, we don't know. Did they come to the workplace with a problem that was exacerbated 

after lifting? We can never figure that out. We don't understand that. 

Mr. Henshaw. You are right. You know, your point is well taken. I just want to make sure some 

people in labor don't count their chickens before they are hung. That is all. 

Chairman Norwood. Mr. Keller, you are now recognized for five minutes. 

Mr. Keller. Thank you, Mr. Chairman. And, Mr. Henshaw, I want to begin by thanking you for 

coming before our Subcommittee today. I am curious as to how OSHA is going to utilize this socalled general duty clause to penalize what it refers to as bad actors. Let me tell you the gist of 

what my concern is. 

 Back when we were considering the old rule in Congress, I had grocery store owners come 

to me and say that they were concerned that the bagboys who were loading 20-pound turkeys at 

Christmas time were going to be considered in violation of federal law because of the vagueness of 

that rule. People who delivered Coca-Cola, Pepsi, and beer said that some of the OSHA bureaucrats 

had told them that they thought they needed to have two people in the truck instead of one because 

that would lessen the load by half. They were really concerned that the vagueness of what OSHA 
19

was about to do was going to hurt them in ways that really defied common sense. 

 How are we going to make sure that when OSHA utilizes this general duty clause that we 

are not going to be penalizing people who really aren't bad actors, people like these grocery store 

owners, and Coca-Cola distributors? 

Mr. Henshaw. The whole premise behind this plan is to produce results, by reducing injuries and 

illnesses. The two elements of this that are most concerned with the issue just raised are the 

guidelines that are produced by OSHA, and the enforcement under the general duty clause. Those 

are two distinct processes. 

 Guidelines are being developed to provide the tools for best practices so when workers are 

hanging chickens, there is some guidance to determine whether there is a workplace relationship to 

any kind of hazard, or any kind of risk. That is what the guidelines are for. 

 We are also going to encourage other companies, associations, professional societies, and 

organizations to develop their own guidelines themselves. This will help employers do the right 

thing, investigate whether there are hazards, and try to control the hazards. 

 The enforcement strategy around 5(a)(1) only applies the general duty clause as it was 

originally written. It has to meet the four tenets of the general duty clause, which are: foreseeable 

hazards, the industry or the company site, the facility recognizing the hazard, or the industry itself 

recognizing the hazard. There is serious harm, and there are feasible solutions. Those are the four 

tenets. They have to be met to bring a 5(a)(1) case forward. 

 What we are going to do is make sure that an employer is exercising good faith, has a 

process, has a system, and is working on identifying and controlling hazards. These employers 

more than likely would not be candidates under 5(a)(1). 

Mr. Keller. Well, let me stop you and ask you about that. Let's say an employer voluntarily 

implements OSHA's ergonomic guidelines with respect to bagging turkeys, or distributing beer or 

Coca-Cola products. Are they guaranteed not to be cited under the general duty clause? 

Mr. Henshaw. I don't know if I can guarantee anything. What I can say is certainly somebody 

who is exercising good faith, and to me if they are implementing an OSHA guideline, somebody 

else's guideline, or somebody else's process, I don't care whether you call it guideline or not. If 

these employers are implementing some kind of process to identify and control hazards, then they 

wouldn't be candidates for the 5(a)(1). 

 Now you asked how we make sure that inspectors are applying these criteria properly? 

 We are retooling our inspectors, what I call retooling, in the sense that we are going to 

retrain them on what is successful for 5(a)(1). What we don't want to do is bring a 5(a)(1) that is 

not successful. We already know from the past where we have taken 5(a)(1)'s, and they weren't 

successful. And so, we don't want to duplicate that. 
20

 We have to be really rigorous in making sure that when we bring these cases forward, they 

are the right cases and not frivolous. We can be successful at that. Inspectors will be trained to 

know, what applies, and what doesn't. But if an employer is exercising good faith, they are not 

necessarily candidates for 5(a)(1). 

Mr. Keller. Well, thank you, Mr. Henshaw. Mr. Chairman, I will yield back. 

Chairman Norwood. Thank you very much, Mr. Keller. 

Ms. Woolsey, you are now recognized for five minutes. 

Ms. Woolsey. Thank you, Mr. Chairman. 

Drip, drip, drip, this subject is like water dripping on a rock, a stone. At least, when that 

water drips it makes an indentation over time. We keep going backwards. We talk about 

ergonomics. We get the good science. We have the good science and the good information, and 

then we start all over. 

 I, for one, am really frustrated with this subject. From 1969 to 1980, I was a human 

resources professional. You sort of stay there if that is what you had in your background in the first 

place. The manufacturing company I worked for grew from 13 people to over 600 when I left. We 

went through the phase where our assemblers were getting repetitive motion stress problems. We 

called in OSHA. We called in our workers' comp carrier. We dealt with it. But I can tell you, 

without knowing that CALOSHA was in the background, I probably would not have been able to 

get the attention soon enough of the top, top, top management in order to make a difference. 

 In dealing with it, our workers' comp claims decreased; our lost work time decreased; 

employees participated; employees got better; employees felt cared about. And now it is just plain 

common sense. 

 Why are we going backwards? Why are we questioning? Was that the right thing to do? 

We learned. That was before 1980. This is 2002, and we are still talking about this subject instead 

of doing something about it. I am frustrated as you can see. Drip, drip, drip. 

 Okay. Now here is my question to you. With all you are talking about, what is happening 

with prevention? We talked about grocery stores. It is absolutely common sense that very soon 

now the checkers who are using the scanners are going to have some kind of stress problem. Are 

we doing something about it? What is OSHA doing about what is going to come? It is coming. 

Don't wait for it. It is going to be huge. What are we doing to address, to prevent? And what has 

OSHA done in the past year to reduce ergonomic injuries, those that we already know about? 

Mr. Henshaw. Well, I share your frustration. 

Ms. Woolsey. Yeah, I am frustrated. 
21

Mr. Henshaw. And I also will acknowledge that we did the same thing that your company did. 

Ergonomic hazard preventions are integrated into the overall safety and health plan of the 

companies that I was associated with. We addressed them as they came up and found solutions. 

 We found solutions, not from a table somewhere, and not from publications that were 

generated in academic institutions. People that have worked day-in/day-out with our safety and 

health professionals devised solutions. That is how it was accomplished. But we developed our 

own process and solutions to do that. These solutions are still effective today in those workplaces.

 You mentioned the California issue. Since 1997, when the California ergonomics rule was 

put in place, there were 250 inspections done in California; 54 employers were cited as a result. 

Most of those were public sector employers. 

Ms. Woolsey. But if you will yield just a minute, they knew it could happen. It mattered to them 

that somebody was watching, and they didn't do all of this voluntarily. They learned from the 

people who were cited. 

Mr. Henshaw. Well, I don't know if people did that because the California rule was out there, but 

there is a trigger involved. It required two injuries on the same, identical job 

 You mentioned prevention. Unlike the old rule, this plan is not waiting for injuries. The 

intent behind this plan, and what I am dedicated to do, is to stop the injuries, not count them. I 

want to stop them. What that means is these guidelines are trying to identify the hazards, and 

control them before injuries occur. 

Now, specifically, you mentioned grocery clerks. 

Ms. Woolsey. Scanners. 

Mr. Henshaw. Scanners. Obviously, there is a lot of repetitive motion. On our radar screen, as far 

as developing guidelines, are those industries with high ergonomic hazards. And, certainly grocery 

scanning is an extreme repetitive motion. 

Chairman Norwood. Thank you, Ms. Woolsey. 

Ms. Woolsey. Thank you. 

Chairman Norwood. The Chairman would like to go on record saying that we do have some 

science, but we don't have enough proper science on this issue, so it isn’t as if we can go back to an 

old rule. Congress said very explicitly that you were not to write a rule that was substantially 

similar. I think you have done a very good job of taking a new approach to this. 

 Now I would like to recognize Ms. Biggert for five minutes. 
22

Mrs. Biggert. Mr. Henshaw, could you tell us more about the Advisory Committee that you talked 

about, and how that will play a role in structuring these guidelines with regard to scientific support? 

Mr. Henshaw. As you know, under the OSH Act, Section 20(a)(1), HHS gets advice from the 

Labor Secretary on research issues. Part of the reasoning behind this Committee hearing is to help 

us identify where those research gaps are, from a practical sense. 

 Our job is to make sure that workplaces are safe. We have an obligation to assure that 

proper controls are put in place and applied, and guidelines and solutions are implemented. That is 

our rule. However, we have some gaps. We not only have gaps in diagnostic ability, but also in 

determining work relationships, exposure, and outcome assessments. We have gaps around 

solutions. We have a number of gaps that were clearly identified by the National Academy of 

Sciences.

 What we want to do is establish an Advisory Committee, which we will be announcing very 

soon, that deals with all the aspects of this plan, aside from the enforcement. It will advise us on 

where the practical gaps are in the research, diagnostic ability, work relationships, and solutions. It 

will also advise us on what guidelines we should pursue, how to be more effective in guidelines, 

how to be more effective in outreach, and education, and how to provide assistance. The Advisory 

Committee will help advise us on how to effectively implement this plan across the country. 

Mrs. Biggert. Are there research topics that you have already identified? 

Mr. Henshaw. There are a number of research topics. And, certainly, you can go to the National 

Academy of Sciences report as the first place to start. 

Mrs. Biggert. I think you probably answered how the enhanced outreach and assistance efforts 

envisioned by OSHA will serve to make employers more effective in addressing hazards? 

Mr. Henshaw. As you know, it is the employer's responsibility to control hazards. What we need 

to do is make sure that the proper information, proper tools, proper education is out there for 

employers and workers, so that they can take the appropriate actions. 

Mrs. Biggert. You have ergonomic hazard alert letters. How will those be used, and how do you 

identify a site? Do you go into a plant, and then issue the letters, or is this a systematic visiting of 

different industries? 

Mr. Henshaw. It is systematic in the sense that this is part of our site-specific targeting process, 

SST, where we have already identified those sites with a high rate of total injuries. What we are 

doing is visiting. This is part of our program inspection process. We are visiting those facilities 

with inspectors. 

 As we uncover ergonomic hazards or injuries, then we issue the hazard alert letters advising 

that in fact they do have high rates of total injuries. Sometimes many employers are not aware of 

this. We want them to recognize it, and we put them on notice that there is assistance out there, 

there is guidance out there, and there are processes out there that we want them to get involved in 
23

to control the hazards. 

Mrs. Biggert. And what if they don't respond? 

Mr. Henshaw. There is a return visit in 12 months. We will select those facilities to revisit in 12 

months and see how they have made out. And then, if they meet the four tenets under 5(a)(1), they 

could be candidates for the general duty clause. 

Mrs. Biggert. Okay. Thank you, Mr. Chairman. 

Chairman Norwood. Mr. Henshaw, as Chairman, I would like to introduce two of our newest 

Subcommittee Members to you. Certainly, the prettiest two we have had in a long time. They are 

Katie and Karen Hinojosa. We certainly do welcome them here. 

Mr. Hinojosa. Thank you, Mr. Chairman, for recognizing my daughters. They have been 

shadowing me since 8 o'clock this morning. 

Chairman Norwood. That is fantastic, and they wanted to see what happens in the Education and 

Workforce Committee. Well, we are delighted to have them. Thank you. 

Mr. Hinojosa. They are very happy to be here. Thank you. 

Chairman Norwood. Mr. Secretary, we have three votes. It is going to take until 12 o'clock. 

There are a lot of people who still want to ask questions. Can you stay? 

Mr. Henshaw. Yes, sir. 

Chairman Norwood. Can you get some lunch and meet us back here at noon? 

Mr. Henshaw. I will meet you at noon. 

Chairman Norwood. We will go vote, ladies and gentlemen, and recess until 12 o'clock noon. 

Thank you. 

[Recess.]

Chairman Norwood. Mr. Henshaw, I apologize for the interruption in our schedule; nothing can 

be done about it, however. 

Ms. Solis, you are now recognized for questions for five minutes 

Ms. Solis. Thank you, Mr. Chairman; and thank you also, Mr. Henshaw, for being here today. I am 

sorry I missed the first part of your presentation, but I did review your statement that was submitted 

for the record. 
24

 I did have some questions with respect to the outreach program that will be undertaken that 

the Secretary has outlined for us. My concern is particularly with respect to the Hispanic, and the 

immigrant population, because it seems to me that they have the highest incidence of work-related 

injuries. If I might, you probably know this; there are 849 Hispanic workers who died from 

workplace injuries just in the year 2000. I am very concerned about that, because I note, there is a 

cutback in the outreach program that is supposed to be taking place. 

 So my question is how are we going to provide incentives and training? What are those 

incentives and what will the training be? Are we going to hire personnel that speak the language? 

Because it seems to me that there are a couple of issues that are going on. One is language, and the 

ability to be able to enforce whatever rules or procedures are in place, and make them available to 

the employee; and secondly, is to make sure that literature and information are appropriately posted 

and placed, and in a language this population can comprehend. 

 California is doing a lot in this area and has been I think. Of course, they can do a lot more.

We have to wait, as you said earlier, for two injury incidents to occur to go in and make an 

inspection.

 But I worry that in this targeted population, especially the immigrant population. You have 

a high number of perhaps undocumented or even legal immigrants who are not prone to reporting 

any workplace injuries because of their fear that they may be either deported, or that the 

government might in some way be intrusive and actually harm them, causing them to lose their job. 

 So those are questions I have. Also, what are you doing with respect to women's workrelated injuries since there is a high incidence of carpel tunnel syndrome among women, and what 

kind of outreach is there? I believe you also have to have some form of targeted outreach to that 

population as well. 

Mr. Henshaw. Those are obviously very excellent questions and concerns with respect to 

immigrants, and especially Hispanics. That is a population group of workers that concerns the 

Secretary and OSHA. 

 We began a task force in August of last year, to focus attention on the Hispanic worker 

primarily, and other immigrants, on how to address cultural differences and language barriers. The 

task force has been meeting to identify what should be done. We have embarked on a whole host 

of things for reaching the Hispanic worker. In particular, we have started a Spanish-speaking 800 

number, so callers can obtain information in Spanish. We have a Hispanic website, for both 

employers and employees. We have Spanish language documents explaining rules and 

responsibilities and worker rights. We will continue to address language barriers in all outreach 

documents. 

 Just recently we formed a partnership with the Hispanic contractors of North America. The 

purpose behind that is to inform the Hispanic contractors that Hispanic workers oftentimes are at 

higher risk. Immigrant workers are oftentimes given jobs that may be of higher risk than other 

populations, and ergonomics is a part of that as well. 
25

Ms. Solis. The contracting industry is obviously one source of these injuries, but there are also a 

whole slew of workers in the poultry industry, as well as the service and janitorial industries that 

are exposed to perhaps chemicals, and may not be aware of it. 

 What efforts are being made to include in that task force representatives from unions that 

are probably the most representative of these types of populations? I think of SEIU, and some of 

the other labor organizations that exist. 

Mr. Henshaw. The task force that was mentioned is an internal task force, so these are OSHA 

folks in this task force. 

Ms. Solis. Do they consult and advise with the various labor groups? Is that something that we can 

get information on so there is some kind of a record, and I could see what plan has been in place or 

implemented? 

Mr. Henshaw. Absolutely. We have a number of things on our website, www.dol.gov, which 

describe some of the actions and activities we are embarking on to inform Hispanic and immigrant 

workers. The partnerships that I mentioned are usually announced and available on our website as 

well.

 The unions or organized labor are our stakeholder in the whole process of how we get to 

employers and employees, especially when we are talking about immigrant workers. So they are 

engaged in this process, as we go through the guidelines on ergonomics. 

You mentioned Hispanics, and immigrants, and women. Our focus, as the Chairman 

mentioned, is going to be on the high hazards. For example, there are a significant number of 

women in the nursing home industry, as you know, where there are a number of employees that are 

at risk. So, obviously, we are going to be approaching a lot of women’s ergonomic issues as we 

deal with nursing homes. As we identify those other high hazard industries, and focus on those 

high hazard industries, they are going to be involving immigrants, as well as women. But the focus 

is around the musculo skeletal disorders; that is going to be our key. In many cases, like in the 

nursing home, that impacts mostly women. 

Ms. Solis. Mr. Chairman, I have another question. There was a recent court decision that was just 

handed down a couple of weeks ago, the Hoffman Plastics decision. This has had a chilling effect, 

particularly on the legal, as well as undocumented workforce. 

 My concern is that there are some businesses that are operating out there now who are using 

that particular case to instill fear into the employees. So if they get injured on the job, they are 

being misled in some cases, because we have gotten some calls that they are no longer covered by 

workers' comp, or there is no coverage for them, and that now there really is this urgency to kind of 

really go underground. 

 I think it is unfair for those legitimate businesses that are playing by the rules to have other 

businesses come in and say, “Well, you know, we don't have to play by the rules now because this 

is what this court decision says.” There is a big misinterpretation. 
26

I would like to know if there is going to be any review, or some kind of involvement there, 

because this is a very serious workplace issue that is affecting my district. I have seen reports on 

television now that it is popping up in New York and other parts of the country. 

Mr. Henshaw. Yes, I am familiar with the decision. And shortly after the decision, the Secretary of 

Labor called a press conference and invited the Hispanic media, as well as other media to address 

the issue and make sure the chilling effect doesn't take place. 

 Wage and hour administrators, the solicitors, and myself were there to talk about the 

relationship of that case to what we are all about in the Department of Labor. In the case of OSHA, 

our job is to assure that workers are protected, regardless of their immigration status. Our job is to 

make sure the workplace is safe, no matter what worker is there, female, male, legal, or 

undocumented. That is our number one concern. We don't concern ourselves with other issues 

only the safety issues. When we go investigate, that is what we investigate. 

 We made it clear to the Hispanic media that the Hoffman case has no relevance to what we 

do in OSHA. Our job is to assure that workplaces are safe, regardless of where the person comes 

from, and what their status of documentation is. 

Ms. Solis. As a last comment, I realize that your proposal is on the basis of volunteerism, and that 

you will work with local businesses to see that there will be some compliance. My fear is that there 

will be companies that will obviously abuse this and will not make the effort, especially with a 

population that may be disadvantaged because they lack appropriate language skills, or are not 

fully aware of their rights. 

 So I would underscore the hope that you can work with us, and share information about 

when those safeguards will be in place, or how they are being implemented. 

Mr. Henshaw. I would be happy to do that. 

Ms. Solis. Thank you. Thank you, Mr. Chairman. 

Chairman Norwood. You are more than welcome. 

Mr. Secretary, Congressman Owens and I have a couple of other questions, if we may. I 

am interested in the comment that Hispanics have the highest number of injuries. Is that true? 

Mr. Henshaw. No. The statistics show the incidents or the number of fatalities, and the rate of 

fatalities in the Hispanic population in construction is going up, whereas the other fatality rates are 

going down. So that implies we have an issue in the case of fatalities with immigrants and 

Hispanics. We are addressing that as we speak. 

Chairman Norwood. If that is true, the communication problem is logically, one would assume, 

part of the problem. Is there any thought that OSHA might provide a guideline telling employers 
27

or employees that they have to learn to speak English as a safety factor? 

Mr. Henshaw. We don't have that as a guideline. Our outreach is to make sure we provide 

information for whatever work environment it may be applied to. So if it is a non-Englishspeaking environment what we want to do is get that information to them. 

 That is why we have developed a partnership with the Hispanic contractors of North 

America. If we are focusing on construction and Hispanic fatalities, we need to get to the 

contractors, who may or may not speak English. We want to get to them to make sure they 

understand what they have to do to comply, and then communicate it to their workers. 

 The employer is responsible for assuring a safe workplace, and providing proper training of 

their workers. So our role is to make sure the employer has the right tools. If it means information 

in a different language, then that is what we will provide. Can we provide it in all languages? 

Right now, we have a Hispanic concern. There are other languages that we are looking at. I don't 

know what the exact percentage of bilingual people in the agency is. We are focusing on increasing 

that percentage so that we can get more bilingual people in the agency that can respond to 

questions from employers or employees in their native tongue, if that will be more productive in 

communicating information. 

Chairman Norwood. Well, assuming that lack of communication is a serious health hazard 

problem, whose responsibility is it to make sure the employee speaks English, the employer or the 

employee? 

Mr. Henshaw. I don't want to say how it should be done, but the employer is responsible for 

successful communication. 

Chairman Norwood. OSHA in general is in place for all workers in America, not just union 

members and not just in ergonomics. Is that correct? 

Mr. Henshaw. Absolutely. 

Chairman Norwood. Well, then I would urge you not to think that unions actually represent most 

of the workforce groups because they don't. It is not necessarily a good idea to have a nonproportional number of union members sitting on the Advisory Committee. I mean 90 percent of 

the workforce isn’t in unions. So I am not sure that the fact that 10 percent are in unions should 

sway you to have a group of advisors that is particularly leaning more toward union bosses. 

I have asked you to outline for us very clearly how these guidelines are going to be put 

together and submit it in writing I want to have in the record an overview of precisely how you 

are going to go about doing that. I ask Mr. Owens and the other Members to ask now because I 

think it will take a little time, but it would be useful to us all to have that there. 

 Lastly, could you outline for me what industries you think these guidelines will cover so 

far? 
28

Mr. Henshaw. There are several guideposts we will use in identifying which industries we are 

going to focus on. The first guidepost will be the high hazard industries with respect to ergonomic 

hazards, the ones where the higher number of MSDs occur, as defined by the BLS, the Bureau of 

Labor Statistics.

The second guidepost will be, the practical and real solutions and determining where the 

science is clear and less clear. Obviously, we will focus on those that are clearer, where we already 

have identified practical solutions, real solutions that work. That will be another piece of the 

puzzle.

Also, we will focus on individuals who use best practices for guidance. What we want to 

do is put a guideline together that works. So we want to examine the successes of other kinds of 

best practices, pull those together, and then produce the guidelines. 

 So, the first place you can look is the top “x” percent of the BLS statistics as the first target 

area, then marry it with all of the other data on best practices where the science is clear, and so on. 

Then bring those together. I can't give you the top five, but I can give you the top “x” percent based 

on the BLS statistics. But we have got to marry the other information into that before we make a 

decision.

Chairman Norwood. Well, as I said earlier, there is a limited amount of dollars, and a limited 

amount of employees that you can eventually have, but I certainly want you to focus in on that 

area.

What if I am an employer in an industry for which OSHA does not develop industryspecific guidelines? What should I tell those employees? 

Mr. Henshaw. That is part of our outreach and our partnerships. What we want to do is encourage 

them, to whatever extent necessary, to develop their own guidelines and develop their own process 

to identify and control hazards. We want to facilitate that the best way we can because we are not 

going to get to every facility. We are not going to get to every workplace, every industry. What 

we want to do is encourage the smaller employers, where maybe a minor degree of hazards still 

exist, and still need to be controlled. 

Chairman Norwood. Congressman Owens, I yield to you. 

Mr. Owens. Mr. Chairman, for the record, I would like to enter a few statistics pertinent to the 

discussion with Ms. Solis before. 

 Hispanic workers who comprise 11 percent of the U.S. labor force experienced 14 percent 

of the fatal occupational injuries in 2000. That was up 11.4 percent from 1994 to 1999. Eight 

hundred forty-nine Hispanic workers died from workplace injuries last year, that is 58 percent, and 

494 of these were immigrant Hispanics. That is an increase of 11.6 percent from the previous year, 

and 53 percent since 1992. Finally, Hispanics accounted for a disproportionate number of 

workplace fatalities in 2000, 13.8 percent, compared with their proportion of the population, which 

was only 10.7 percent.
29

I would also like to state for the record that I had asked earlier how many general duty 

clause ergonomics cases have been brought by this Administration. Mr. Henshaw said he did not 

know, but would find out. My impression is that this Administration has not filed a single general 

duty clause ergonomics case. It is my understanding that the 300 cases Mr. Henshaw talked about 

were all filed by other administrations. I would like a list of all of the ergonomic general duty 

clause cases, when they were filed, and what the outcome was, to go into this hearing's record. 

 I also would like to know how much it cost the Department of Labor to prosecute the 

Beverly Enterprises case. All I understand is that it was more than $10 million. I would like to 

know the exact figure. Would you provide this information for the record for this hearing? 

 Thank you, Mr. Chairman. 

Chairman Norwood. Thank you, Congressman Owens. 

 And I will add, in addition to his requests, rather than just going back for the last 18 months 

determining how many general duty clause cases came up, let's go back the last 10 years and see 

how many cases under the general duty clause came up in ergonomics. 

Mr. Henshaw. Okay. 

Chairman Norwood. I want to reiterate my gratitude to Assistant Secretary Henshaw for taking 

the time to participate in what all of us consider a very important dialogue. I would like to 

summarize, if I may, what we decided today. 

 I think it is clear that a majority of this Subcommittee's Members are willing to do more 

than just wait and see. Most of us want to pitch in and assist to help make your plan work. It is 

important that this plan work, because the bottom line is results now, rather than years down the 

road. That does not mean that many of us do not have concerns about one or more elements of this 

strategy. To address this, we have agreed that OSHA will communicate regularly with this 

Subcommittee providing information on the process of this plan. 

 Let the record note that the Secretary is shaking his head affirmatively. 

Mr. Henshaw. Yes, sir. 

Chairman Norwood. We also have agreement that at an appropriate time, we will again assemble 

to review OSHA's progress. 

 Lastly, I think most of us want to see OSHA use its resources to make this plan work, and 

find this vastly superior to redirecting the resources back to the promulgation of standards. 

Because the strategy we have discussed today is, in fact, superior to a standard in terms of 

outcomes. 
30

 Once again, thank you, Mr. Henshaw, for your valuable testimony. If there is no further 

business, this Subcommittee now stands adjourned. 

Mr. Henshaw. Thank you, sir. 

Whereupon, at 12:22 p.m., the Subcommittee was adjourned 
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Table of Indexes 

Chairman Norwood, 2, 6, 9, 10, 11, 14, 16, 18, 20, 21, 23, 26, 27, 28, 29 

Mr. Boehner, 15, 16 

Mr. Henshaw, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 

Mr. Hinojosa, 23 

Mr. Keller, 18, 19, 20 

Mr. Kucinich, 16, 17, 18 

Mr. Owens, 11, 12, 13, 14, 28 

Mrs. Biggert, 22, 23 

Ms. Solis, 23, 25, 26 

Ms. Woolsey, 20, 21