The Mother of All Regulations

By Thomas J. Donohue

January 2001

On January 16, the most costly, burdensome, and far-reaching government regulation in U.S. history took effect, marking a dangerous new government intrusion into the private-sector workplace and the lives of honest, hardworking Americans.

The Occupational Safety and Health Administration's (OSHA's) ergonomics standard, which OSHA claims is designed to alleviate musculoskeletal disorders (MSDs) caused by workplace activity, is one of a flurry of onerous midnight regulations hastily enacted by the outgoing Clinton Administration. In its zeal to keep political promises made to big labor bosses, the Clinton Administration's OSHA has abandoned sound science and common sense.

The ergonomics regulation is bad policy for several reasons. First, the standard is not supported by sound science. Leading scientists and medical practitioners agree that we simply do not know enough about ergonomics injuries—what causes them and how to prevent them— to warrant a regulation of this size and scope. In fact, a new study released by the National Academy of Sciences concludes that an array of non-work related "psychosocial" factors, including stress or depression, can cause MSDs. Even the American College of Occupational and Environmental Medicine (ACOEM) does not support OSHA's standard, noting that "the final standard appears to require neither a medical diagnosis nor a causal assessment."

Second, the standard is impractical. Its incredible breadth, scope, and cost are unprecedented in the history of government regulation. The enormous proposal, consuming over 600 pages of fine print in the Federal Register, affects 102 million employees and 6.1 million businesses of all types and sizes. Contrary to what most believe, the standard is not limited to jobs that involve numerous repetitive motions. It applies to any job that requires occasional bending, reaching, pulling, pushing, and gripping—18 million jobs by OSHA's own estimates.

For instance, the regulation could require employers to limit employees' use of a computer mouse to less than four hours per day—even for employees who use a mouse just one day a week. In addition, businesses could be cited if any of their employees work with their hands above their head, or kneel or squat, for more than two hours total per day, again even if only one day a week.

These impractical standards have dramatic consequences for the workplace. To reduce bending or reaching, employers could be required to adjust the height and speed of assembly lines to accommodate workers of various heights and other physical conditions. They could be required to double or triple the number of delivery personnel to limit the lifting each worker must do, eliminate the practice of storing goods on low or high shelves, or dramatically increase the number of work break periods in order to slow the rate and number of repetitive motions.

In short, the standard will require the redesign of millions of workstations in America, costing businesses large and small billions of dollars. While most of these costs will be the result of workplace, work procedure, and staffing changes, medical management costs will be daunting as well. Every employee ache or general pain allegedly caused, or potentially worsened, by workplace activities could require up to three company-paid medical exams. OSHA puts total compliance costs at $4.5 billion annually, but the business community estimates costs to reach as high as $100 billion a year.

Third, the regulation completely undermines state workers' compensation laws. It overrides well established state standards in determining whether a condition is work-related. It even supersedes state standards establishing levels of compensation for injured workers. If a condition is determined to be work-related within the meaning of the OSHA standard, the employer must provide full benefits and 100% of the employee's pay for up to three months while he or she is in a light-duty job, or 90% of pay and full benefits while not working.

Fourth, OSHA has clearly overstepped its authority by making employers responsible for worker injuries primarily caused by non-workplace activities. In fact, the regulation prohibits the examining medical professional from informing the employer of non-work related explanations for an employee's alleged on-the-job ergonomic injury.

Finally, one must question the need for such a sweeping, one-size-fits-all regulation. MSDs in the workplace are declining. According to the federal government, repeated trauma injuries such as carpal tunnel syndrome have declined 24% since 1994. Why? Primarily because businesses have voluntarily and effectively dealt with real ergonomic issues. Thousands of businesses have successfully implemented common sense ergonomics programs that address real, identifiable workplace problems and achieve measurable results. OSHA's ergonomics rule will undermine these highly successful, custom-designed programs.

OSHA's rush to issue an ill-conceived, expensive, and unscientific ergonomics standard is irresponsible government at its worse. The rule will cost businesses billions of dollars, yet the benefits to workers—if any—are uncertain. The U.S. Chamber of Commerce is challenging the regulation in federal court, and it will continue to vigorously petition Congress to repeal this egregious rule. In the mean time, the Chamber has asked the Bush Administration to delay enforcement of the regulation and open a new rulemaking process that will rely on sound science and will carefully consider the entire universe of potential factors that contribute to ergonomic injuries.

Every employer has a responsibility to provide its employees with a safe workplace. American workers deserve it. But the government has a responsibility to businesses to write rules that make sense. Businesses deserve it. What workers and businesses don't deserve is an ill-conceived, politically motivated regulation that is not based on sound science and will not achieve its stated goals. That's what we have with OSHA's ergonomics rule, and that's why it must be repealed.

Thomas J. Donohue is President and CEO of the U.S. Chamber of Commerce.