Thanks to the Chamber's extensive grassroots efforts, in March 2001 Congress invoked the Congressional Review Act to reject the Clinton Administration's ergonomics regulation. Not long after the decision, a group of senators, led by Sen. John Breaux (D-LA), introduced new legislation calling for the Occupational Safety and Health Administration (OSHA) to complete an ergonomics standard within two years. Congress did not take action on the legislation.
In early 2002, OSHA unveiled a four-pronged approach to deal with ergonomic hazards in American workplaces and work-related musculoskeletal disorders (MSDs). OSHA's plan would do the following:
- Develop industry or task-specific voluntary guidelines for industries and jobs that currently have high ergonomic incidence rates and for which there is sufficient information about effective and feasible solutions.
- Cite employers for violating the "General Duty Clause" (29 U.S.C. 654(a)(1)), also known as Sec. 5(a)(1), if they do not take necessary steps to implement effective ergonomic programs, or other measures, to reduce ergonomic hazards leading to MSDs. Alternatively, an employer may receive an "ergonomic hazard alert letter" from an OSHA inspector, which would require the employer to promptly (usually within 12 months) implement an ergonomics program or undertake other good-faith efforts to reduce ergonomic hazards.
In addition, OSHA will offer specialized training on ergonomic hazards and abatement and will offer assistance to employers with a high percentage of MSDs.
- Provide special assistance to businesses, especially small businesses, to help them "proactively" address ergonomic issues in the workplace. The agency will develop and make available "compliance assistance tools" and training programs for employers and employees.
- Encourage additional research through the National Institute for Occupational Safety and Health and the National Occupational Research Agenda. OSHA notes that Internet-based guidelines, instead of standards, will "make it easier for employers to adopt innovative programs to suit their workplaces, rather than inflexible, one-size-fits-all solutions to issues that may be unique to the industry or facility."
In October 2002, OSHA unveiled its first draft voluntary guidelines, which dealt with nursing homes. The National Coalition on Ergonomics (NCE), co-chaired by the Chamber, filed extensive comments concerning OSHA's new proposal. In its comments, the NCE pointed out that because these guidelines are the first of many to come, it is especially important that OSHA not publish over-zealous recommendations that could be considered a standard for all industries at a later date.
"Integrating all of these concepts, we believe the guidelines must be limited to activities where there is a reasonable basis to conclude, based on some appreciable amounts of scientifically sound evidence, that material impairment of health or injury is likely to result from repeated or prolonged periods of substantially similar activities, or that the performance of specific tasks is likely to substantially increase the risks of material impairment of health or functional capacity," the comments stated. We also participated in OSHA's meeting in Herndon, VA, to hear public comments about its draft voluntary guidelines for ergonomics in nursing homes.
On March 13, 2003, after weighing all of the comments received from the public, OSHA released its final version of the nursing home guidelines. While the NCE recognized that there were some improvements in OSHA's final version, the coalition remained troubled with the overall product. Among the concerns of the coalition were that the guidelines continued to rely on anecdotal stories as evidence, they placed the emphasis on a process-oriented approach (similar to that of the Clinton Administration standard), and that they continued to set precedents for jobs outside of the nursing home industry.
Throughout May 2003, OSHA released draft guidelines for the retail/grocery and poultry processing industries. Given that both of these industries cover significantly more members of the business community and the specific tasks cited within the guidelines are more applicable to other related industries, the NCE filed for extensions to each of the two comment periods. With the extensions being granted in both cases, the coalition has been able to continue to receive valuable input from all of its members, affected either directly or indirectly by the guidelines, and formulate the most comprehensive comments possible for both of these areas.
On August 22, 2003, the Chamber filed comments on the proposed guidelines for the retail/grocery industry, and also was instrumental in filing the extensive comments on behalf of the NCE. The Chamber comments focused on five broad concerns with the ergonomics guidelines. These concerns included the guidelines "cookie-cutter" program approach similar to that of the rejected Clinton Administration standard, the guidelines failure to recognize the scientific uncertainty in musculoskeletal disorders, the guidelines continued reliance upon anecdotal "success stories" rather than hard evidence, the guidelines lack of properly defined terminology and inappropriate use of assumptions, and the guidelines narrow disclaimer. In each of these cases, the Chamber reiterated its position on these issues and recommended changes that OSHA can utilize in the final version of its guidelines. The Chamber and the NCE remain hopeful that improvements will be made in the final product.
In April 2003, OSHA announced plans to develop voluntary ergonomics guidelines for the shipyard industry. This will be the fourth set of industry-specific guidelines issued by OSHA, and once again the Chamber, in its role as co-chair, will help lead the National Coalition on Ergonomics to develop an appropriate set of comments.