U.S. Department of Labor
Occupational Safety and Health Administration
Attn: Mr. Charles Jeffress, Assistant Secretary of Labor
200 Constitution Avenue, NW (S.2315)
Washington, DC 20210

Assistant Secretary Jeffress: The purpose of this letter is to submit comments from the American Society of Safety Engineers (ASSE) to address the proposed OSHA Ergonomic Program Standard. Our summary position is as follows:

• ASSE supports the concept of a federal standard addressing ergonomics.
• ASSE believes there is science justifying the creation of such a standard.
• ASSE commends OSHA for getting the draft standard to this stage of the process.
• ASSE has significant concern with specific portions of this proposal. The biggest concern is that many ASSE members have contacted the national headquarters and spoke of the need for such a standard, but that some of the sections of the proposal will generate unneeded resistance, (e.g. medical management/removal). The view has been raised that this proposal might result in the throwing of the baby out with the bath water. The overriding concern of ASSE is that such a standard is needed, but if this is defeated, there might not be another opportunity in the foreseeable future to try again.

ASSE positions are based on consensus and do not reflect complete member unanimity. Our members are involved in the development and implementation of standards, methods, procedures, systems, and devices for the purpose of reducing, controlling, or eliminating hazardous exposures. Our interests are solely those of professional practitioners whose charge is to protect our nation’s resources. For the purpose of this comment, ASSE embarked on an extensive review and analysis of the draft proposal, the science behind it, and its underlying principles. The Society created a blue ribbon committee of members from academia, public sector, industry, commercial interests, consulting, engineering, organized labor, and the ASSE divisional membership, to review the draft standard, comment, and proposed alternative. We estimate that approximately 120 ASSE members reviewed the OSHA proposal and our response before its release. We believe such an extensive review is significant and indicates that there is some science and thinking behind the proposal.

A major element of the Society’s mission is to support sound actions which enable the development of effective safety and health standards designed to facilitate the identification and control of hazardous conditions and practices. From such standards, hazard control methods, procedures, and programs are initiated to promote positive and pro-active approaches to safety and health. An integral element of these techniques is mandatory quality training and educational requirements, which communicate the necessary hazard recognition, control, and avoidance information. This methodology, when properly implemented, has the potential to effectively reduce our nation’s workplace injury and illness toll.

The above complete, systematic approach to workplace safety and health can be found in most sections of the currently proposed standard. After review by the ASSE Executive Committee, Council on Practices and Standards, Council on Professional Affairs, Governmental Affairs Committee, Standards Development Committee, Management Division, Consultants Division, and the Health Care Division the following is offered:

The Society believes there is not a one-size-fits-all approach to ergonomics. Control measures should be designed to eliminate ergonomic stresses specific to the results of the ergonomic evaluation and; provide for effective follow-up mechanisms. Safety and health professionals, ergonomists, engineers, and other trained specialists can provide valuable assistance in various aspects of the improvement process. Efficient/effective systems are more successful when there is a partnership between management and employees. Successful ergonomic systems incorporate employee participation and results in discussion across all levels and directions of an organization.

The Society supports the use of voluntary national consensus standards when appropriate, and is currently a member of the Z365 Standards Committee, the American National Standard addressing cumulative trauma disorders. Research should continue in both the public and private sectors. Public sector agencies, such as the National Institute of Occupational Safety and Health (NIOSH), should continue researching ergonomic related issues and identifying sound hazard control mechanisms. The Society has consistently took the position that if research and data justify the need for a mandatory federal standard, the standard should:

1. Be performance based and not use a one-size-fits-all approach to ergonomics.

2. Require an ergonomic evaluation, and that the evaluation be performed by a person competent in ergonomic related issues. Emphasis should be placed on improvement versus overly detailed specifications. Safety and health professionals, ergonomists, engineers, and other trained specialists can provide valuable assistance in the evaluation process.

3. Be created through private/public sector partnership, such as the negotiated rulemaking process, or the multiple stakeholders input process as exemplified by the proposed OSHA Safety and Health Program Standard.

There is no question that ergonomics is a concern in the United States and there is a need from the Federal government to maintain a focus on the importance of occupational safety and health which includes ergonomics. However, we have concern with this proposed draft standard since it does not meet the three (3) tenets cited above. We make the following observations:

• A primary concern of ASSE is that the standard should address how to prevent ergonomic injuries. Too much of the standard is based on actions to take place after a reported ergonomic injury. Many of our members also made the point that medical management should be removed in its entirety. The objective of OSHA is to prevent injuries, illnesses, and fatalities. It is not to address how individuals are compensated during rehabilitation. There are already a whole series of laws addressing this issue.

• OSHA claims the initiative is a performance based standard, however, many of our members believe it is a specific guideline as to how a safety professional should approach ergonomics in the workplace. We understand this is a paradox due to current practices in American business. As a professional safety society we support the concept of a performance based standard which allows safety professionals to design/implement their own proven intervention controls. However, this is also a legal issue, which requires some specific guidelines. We do believe OSHA has attempted to incorporate the concepts of specific requirements with performance based standards.

• If the proposed standard will be performance based, it is crucial that OSHA Compliance Officers be thoroughly trained in evaluating ergonomic programs as a safety professional and not from the perspective of a compliance officer. ASSE maintains that this standard provides OSHA with an unprecedented opportunity to provide significant professional development opportunities for its staff.

• The standard does not address who is competent to provide ergonomic evaluations. Perhaps we missed it, however, we did not find anything which provided guidance on the qualifications needed to perform ergonomic evaluations. We believe such consultations/guidance will usually be given by safety professionals, safety engineers, ergonomists, industrial engineers, and industrial hygienists. We consider this issue to be of primary significance. Our concern is that this draft standard positions health care professionals as potentially being able to provide consultation on ergonomics in the workplace regardless of their occupational safety and health professional background. Health care professionals have unfettered access to the workspace, their opinions are virtually unquestionable, and it appears to us that they have the opportunity to suggest workplace changes. Many employers may see this as defacto OSHA endorsement of health care providers as the top choice for assistance with ergonomic related issues. We are certain there are health care providers qualified to provide such consultation, but we believe many of these professionals do not have the background, experience, or technical education to provide such consultation. We strongly suggest that OSHA look at the issue of required credentials and specifically cite safety professionals with accredited certification, licensing/registration or ergonomic expertise as being qualified to perform ergonomic evaluations.

• While we acknowledge that ASSE has had the opportunity to provide insight through stakeholder meetings and correspondence; we were concerned to learn the draft standard was apparently circulated to some specific organizations earlier in the review process, (e.g.: ORC), but professional safety and health organizations were not given this same access. Our belief is that the professional safety and health organizations should have equal opportunity to provide insight on this draft standard.

• Some ASSE members commented the structure of this standard will remove the emphasis from that of an overall efficient/effective safety and health management program to that of compliance with the proposed ergonomic standard. We believe a sound ergonomic program should be part of an overall efficient/effective safety and health program. Several ASSE members raised the concern that the proposed standard would force an organization to focus its primary attention on ergonomics and not on enhancing the overall safety and health program.

ASSE has reviewed the research, data, and anecdotal evidence of cumulative trauma disorders. We acknowledge there continues to be ongoing debate addressing the findings and value of existing research. We agree with OSHA that there is a preponderance of data and findings indicating the creation of a standard addressing work-related musculoskeletal disorders (MWSDs) is warranted. However, we also continue to stress that ongoing research needs to take place to identify additional concerns and efficient/effective ways to address them. The bottom line for ASSE is that even though ongoing research should continue, there is ample data/evidence supporting the go-ahead with a standard.

Perhaps the need for ongoing research regarding the nature of the ergonomic issue is best illustrated by last year's report by the Liberty Mutual Research Center suggesting the company’s worker compensation ergonomic claim incidents may have peaked and might be ready to decline. As technology takes hold in the office environment, and industries change their production methodology, research will be important to identify new development/issues of concern. Another example is that people working in the needle craft industry have the potential for high incidences of upper extremity (UE) RSI's. However, the industry unfortunately is moving off shore and for all practical purposes might be gone in a few years. As offices include the latest technology, scanning, voice recognition, voice/eye/thought control of the technology, the UE RSI problems diminish markedly. The same can be said for many other industries.

ASSE believes that due care is required to ensure that the ergonomics standard addresses legitimate ergonomic hazards while avoiding adverse outcomes. One potential adverse outcome would involve the perceived loss of jobs involving high risk from the employer’s viewpoint. A second potential adverse outcome involves false positive situations in which a safe job is called unsafe, or, more importantly, employees with congenital or normal aging symptoms are treated, and even mistreated, in a work-related context. Such cases are inevitable an overly sensitive ergonomic standard creates the perception of an ergonomic epidemic. A third potential adverse outcome involves the inappropriate allocation of limited safety budget/resources. In particular, if care is not taken the ergonomic standard could result in inappropriate high budgets and resource allocations to speculative issues (e.g.: computer keyboards), instead of important well documented hazards for which proven reduction strategies do exist.

Many of the ASSE reviewers also commented that the ergo issue has risen in stature because of the office ergo "epidemic", and that a large number of the ergo cases being cited were reported during the last half of the decade. But, is that data reflective of the actual MMH/RSI situation? The old MMH, low back injury, stressors remain. We are not sure if the draft standard is clear that these incidents traditionally represent the vast majority of reported cases and consume the most worker compensation dollars.

Virtually every ASSE member reviewing the draft standard for the purpose of this comment stated the format was easy to follow, and was not hard to understand. OSHA’s use of questions and answers also drew positive feedback from the ASSE membership. Comments were made that such an approach should be beneficial to small business or business entities that do not have a safety professional on-staff or have access to a knowledgeable consultant. ASSE has consistently spoken in favor of Plain English regulations and standards and there is little question this initiative meets these guidelines. Finally, there was a unanimous consensus that the draft is a significant improvement over the document which was circulated in 1994 and 1995. On this point, ASSE also commends the agency.

The current version of the standard basically includes all manufacturing operations, manual/material handling operations, and tasks that have been identified as Problem Jobs. Our belief is that most of the jobs currently being performed in the United States could eventually fall into what is considered to be a Problem Job due to the threshold being set at one incident of a reported work-related musculoskeletal disorder (WMSDs). The members of the Society reviewing the standard also expressed puzzlement as to why maritime, construction, and the agricultural industry are exempt. Several comments were made that if any industry needs to be seriously reviewed for a standard on ergonomics it is probably the agricultural industry. Agricultural workers are exposed to significant ergonomic exposures when one looks at their working environment which includes awkward bending motions, performing tasks they may not have the physical strength for, repetitive motion, and poor, if any, worksite mechanization. Since OSHA has historically tried to stay away from the agricultural industry, we would like to know if there are any preliminary plans by any government agency to address the issue of agricultural safety as a comprehensive issue and ergonomics specifically. In addition, we suggest it would be appropriate for OSHA to issue some type of forecast of if/when there will be construction and maritime ergonomic standards.

ASSE agrees the objective of this standard should be to reduce the number and severity of WMSDs. We agree with OSHA that there is no such thing as a One Size Fits all Approach to ergonomics and we commend OSHA for recognizing this fact. However, we continue to have concern that this performance based standard has very specific implementation guidelines. Any ergonomic program implemented by an employer should certainly be based on the issues faced in that specific worksite. We know from past criticism of OSHA that the idea of dictating how ergonomics should be specifically managed in the workplace was an issue of concern.

[A] Several members who reviewed the draft standard commented that the Ergonomics Program Standard Flowchart was self-explanatory and explained the tenets/requirements of the program in clear-to-understand language. ASSE agrees employers have a legal and moral responsibility to ensure corrective action is taken to alleviate potentially dangerous safety and health situations.

[B] ASSE also agrees with the basic program elements with the exception of medical management. The goal should be to prevent WMSDs. While the standard clearly states its intent is to focus on prevention, a significant portion of the proposal is designed to address the diagnosis and treatment process. ASSE members reviewing the draft standard commented there are already a plethora of state/national laws addressing the rehabilitation issue and protecting the rights of injured workers. The suggestion is to strike the medical management portions of the standard and refer to applicable state and national rehabilitation laws for injured workers. Point (6) also refers to Program Evaluation. We suggest that this should be changed to Program Evaluation and Continuing Improvement. Our belief is that evaluation of a program does not necessarily mean improvement. OSHA discusses ongoing improvement in other sections of the draft standard, thus, we think it is appropriate to include ongoing improvement as part of the basic elements

[C] ASSE takes the position that a threshold for this standard of one MSD to identify a Problem Job is unreasonable. We suggest as an alternative for sites with existing safety/health program, the standard kick in for significant ergonomic problems. A consensus was reached by ASSE members reviewing the draft standard, that a more reasonable approach would be for the standard to take effect if WMSDs make-up more than 10% of a site’s recordable injuries/illnesses averaged over the last three years. Our thinking along these lines is that promulgating this standard is controversial to begin with. A threshold of one WMSD to identify a Problem Job is difficult to defend, and is almost certain to generate even more resistance to the draft standard. Some ASSE members commented that this approach goes against the tenets of good science. If there is a WMSD reported, the first step should be to conduct a thorough worksite hazard analysis. However, in this case one reported WMSD could trigger the implementation of the standard. As an example, the issue could be resolved through the purchase of an electric lifting table. In such a situation there certainly would not be a need to implement program elements such as medical management.

ASSE also maintains that public policy making should be based on the concept of incrementalism. Ongoing scientific research will assist in identifying more root causes and better ways to calculate incidence rates. The standard should be not be promulgated with the idea it will not be revised for a significant period of time. ASSE has significant experience in standards writing through its ongoing work with ANSI and ASTM. Our experience indicates to us that promulgating minimum criteria when addressing new standards is a more efficient/effective way to proceed. We do not see any advantage in proposing a threshold, which probably cannot be successfully defended, and is almost certain to generate even more unneeded resistance.

[D] ASSE is very concerned with the example provided in Table C of 1910.502 [C] on page 4 of the draft standard, which could force the establishment of an ergonomic program due to a hazard being identified through an insurance or consultant report. This could insinuate that consultant/insurance reports would be made available to a compliance officer during an inspection. We suggest an approach to that introduced in the 1997 version of the SAFEAct where an administrative law judge would make an unbiased decision on the release of consultant audit reports. To support this position we point to the following:

1. Our first reaction is to be puzzled why OSHA would base the establishment of a program on the report of a consultant. OSHA has opposed the use of consultants for voluntary third party audits and evaluations citing their level of integrity, knowledge, and ability. However, in this case OSHA is using the report of a consultant as an authority when deciding whether or not the program should be implemented. We find these two (2) positions to be inconsistent, and we ask for clarification. If OSHA mistrusts safety and health consultants to such a degree why is the Agency taking their report as gospel for the sake of this standard.
2. Ensuring some privacy of consultant/insurance reports motivates employers to take viable action to ensure a safe and healthful workplace.
3. Ensuring some privacy of consultant/insurance reports increases the level of responsibility that the private sector must take for the safety of its workforce.
4. Ensuring some privacy of consultant/insurance reports encourages accurate recordkeeping. Having accurate data is a key component in identifying potential or latent workplace hazards.
5. Employers should be protected against the release of information which, if misused, could result in harm to that employer’s reputation, its employees’ safety and health, or its financial stability.

Employee involvement is a great asset to a program, and it needs to be emphasized. However, it must remain in balance with management accountability. While ASSE generally tries not to comment on employer/employee relations issues, we believe this is an instance of a regulation which could inappropriately sway the balance. We believe the standard places too much emphasis on employee involvement to the point of leaving the impression of employee control of the ergonomics programs. Our concern is that this proposal has the potential of OSHA moving away from a safety and health enforcement agency to a reviewer of employee/employer relations programs. While employer/employee relations is addressed in the Occupational Safety and Health Act, we believe the intent was not to enter into what we consider to be a gray area at best.

The relationship of employees to employers is a subject central to the Occupational Safety and Health Act of 1970 (OSHA Act). The OSHA Act speaks of encouraging employers and employees in a joint effort to reduce the number of hazards in the workplace; of stimulating employers and employees to institute and to perfect existing safety programs. The OSHA Act also recognized the separate but interdependent responsibilities and rights with respect to achieving safe and healthful working conditions.

ASSE supports the requirement that management not discourage employees from being actively involved in a workplace ergonomic program. However, ASSE also has concern that the Agency might use the proposed language in 1910.503[a] in an attempt to prohibit traditional safety incentive programs. We recommend that the language proposed in the regulation not be used to prohibit traditional safety incentive programs. Compliance officers need to be trained that incentive programs are to be part of a broader safety and health program, not serving as the entire program or the primary element of it. Incentive programs must incorporate an emphasis on employees accurately reporting any work-related injury/illness irrespective of the effect on the incentive program award status.

Our members suggested that hazard identification should be one of the priority elements of the programs. However, we do have significant concern with the requirement in 1910.504(d), which would require an employer to provide information in languages employees use and at levels they understand. We see this requirement as being unrealistic and unmanageable for many safety professionals. As an example, one of the reviewers of this standard works in a plant that has over 5,500 employees and works twenty-four (24) hours each day. Of interest is the fact that this plant’s workforce is known to speak twenty-three (23) different languages. Would this plant have to provide information in Congolese for the thirteen (13) employees from Congo since Congolese is the language they primarily use, and they have limited command of English. The standard appears to make the judgment that most employees will speak English or another common foreign language, (e.g. Spanish). However, the truth is that many immigrants entering the United States today come from countries speaking languages virtually unknown in the United States. Is it realistic to expect a plant to be able to provide information in twenty-three separate languages? This does not even begin to look at the issues addressing different levels of literacy and cultural differences. We suggest that the section read as follows:

We are puzzled with the OSHA assertion in (ii) that ergonomic concerns with one position are indicative of ergonomic concerns with other similar positions. While many positions might display similar characteristics it does not necessarily mean the position is a Problem Job. This type of approach actually goes against the intent of this program element. Instead of mandating the standard cover such positions, we suggest a more efficient/effective approach is to conduct a hazard identification before mandating all of the program elements. Such an approach would certainly be a more efficient/effective use of safety and health resources and would not take away from other worthwhile programs.

We agree that engineering controls should be the first option in alleviating WMSDs. While this type of approach could be the most expensive from the short-term perspective, our experience is that engineering controls are the most efficient/effective approach in the long-term. We also strongly agree with OSHA that administrative and work practice controls are of significance.

ASSE also agrees with the OSHA position that if an organization is striving to improve processes/procedures, but still has WMSDs, it does not mean there has been a violation of the standard. The approach cited in the draft standard appears to be a reasonable balance of the uncertain issues addressing workspaces and WMSDs.

A significant portion of this standard is dedicated to the importance of training. Significantly, the Society is the secretariat of the accredited American National Standards (ANSI) project titled; Z490, Criteria for Best Practices in Safety, Health, and Environmental Training. Our belief is that this standard as a work in progress, when created/approved, will have significant impact on safety, health, and environmental training and federal/state legislation and regulation impacting such training. The Morella Amendment to the National Technology Transfer and Advancement Act of 1995 requires that national voluntary consensus be considered for implementation during formal rule making, thus, the significance of this rule. Most importantly, OSHA has an official on the Z490 committee creating the draft standard, and we recommend that the agency consider recognizing/citing the standard in the rule after it is approved through the ANSI process.

The language addressing medical management is a serious concern, and we suggest it be removed in its entirety. The consensus of most ASSE reviewers is that this section violates the Occupational Safety and Health Act 29USC 653 (b)[4]. The following were suggested as the key concerns with this section:

• Circumvents existing state laws/regulations
• It will create a new class of ADA victims
• Creates additional liability exposures for employers, equipment manufacturers, and government safety and health entities.
• Will generate significant resistance to the proposal.
• The standard should concentrate on preventing ergonomic injuries, and not address medical management issues.

First, the OSHA proposal appears to presume that all health care professionals (HCP) are equally capable or diagnosing, evaluating and treating WMSD's. This proposal also appears to make the judgment that health care professionals are qualified to conduct workplace ergonomic hazard analysis and recommend control methods. The reality is that the vast majority of HCPs are not trained in the occupational field, and have neither the occupational background or expertise to be making recommendations which are not that of a medical nature. This means the potential for misdiagnosis and mismanaged WMSDs becomes significant. It seems that OSHA needs to specifically emphasize the need for HCPs who are trained in occupational medicine as the ones to address the medical aspects of WMSDs. In addition, We believe it is fair to say there is the potential for conflict when these specialists, doctors, nurses, ergonomists, and safety practitioners view similar cases.

In fact, ASSE is puzzled by OSHA’s position on this issue. The draft standard places great faith in healthcare professionals as third party reviewers. However, at the same time OSHA continues to express concern with the integrity and honesty of safety consultants. We find this ironic when one looks at the actions the federal government is taking to address the perceived abuses of the Medicare system by healthcare professionals. We find this approach inconsistent in regard to the use of the private sector when addressing safety and health issues.

In addition, we also note that in 1910.507[c](4) a health care professional must be given the opportunity to conduct workplace walkthroughs. Since the health care professional will also be making recommendations on work restrictions, recovery periods, etc…one of our primary concerns is that the language in the standard could potentially establish health care professionals as defacto workplace ergonomic consultants even though they probably do not have the overall background to be conducting such evaluations. We strongly suggest that other qualified safety professionals also be cited in the draft standard.

Recordkeeping: The paperwork reduction act and recent internal OSHA procedures are committed to streamlining recordkeeping, however, this draft standard creates significant new amounts of recordkeeping. Does the proposal create a conflict with the paperwork reduction act?

Definitions: Several reviewers suggested that the definitions, or lack of definitions, is perhaps the single greatest issue. How can OSHA measure a program and how is an employer to determine success? For example:

• What does effective medical management mean?
• Prolonged means extended and many times.
• Repeated means prolonged.
• Routine means regular.
• Substantial means requiring exertion of considerable force.

Third Party Audits/Evaluations: There are still a significant number of organizations in the United States which do not have ergonomic programs, thus, the creation of this standard will place a renewed national focus on the importance of occupational safety and health in this country. If/when the standard is promulgated, there is little question of there being a need for assistance in creating and maintaining efficient/effective ergonomic management programs. We believe the needed level of expertise is outside the area of expertise for many organizations. In order to meet the expected need of consultation services, OSHA should consider reviewing a system for voluntary third party audit and evaluations, and work with the accredited private sector professional certification bodies, both public and private recognized registries, and membership organizations to ensure that consultants have an acceptable level of competence.

During our review of the proposed standard, some evaluators suggested that it is an excellent opportunity for OSHA to build more support of safety and health programs for the federal government as a whole. These are some of the suggestions:

• OSHA should compile data relating specifically to the additional cost to employers to create, implement, and maintain ergonomic management programs that comply with the rule. The data should then be used to negotiate tax credits with the Internal Revenue Service (IRS). This approach could be of significant benefit to small employers, and get more buy-in from associations/societies representing business interests. Perhaps we now have a unique opportunity to use the tax code as a driver for effective ergonomic management programs.

• Could there be a mechanism established which would allow lower fines for employers who have made a good faith effort to comply with the standard. ASSE is specifically asking if there could be a way to tie this proposal to Vice President Gore’s taskforce report on reinventing government?

We hope our comments will be of assistance to OSHA. This proposed standard could be of significant benefit to employees, employers, professional safety and health organizations, and the country overall if/when finalized. ASSE will continue to support OSHA in the creation of an ergonomic standard which is of benefit to America. We thank you for your attention to this matter, and if we can be of assistance please feel free to contact the Society.

Fred F. Fleming, CSP, OHST
Society President, 1998-1999

Copy To:       ASSE Board of Directors
                        ASSE Council on Professional Affairs
                        ASSE Governmental Affairs Committee
                        ASSE Contact List

FF/TRF/CORRS1138
encl.

click below to view a copy of the working draft