On the Matter of:
Department of Labor, U.S. Occupational Safety
and Health Administration

Proposed Standard on Ergonomics
Presented by
John H. Cheffer, CSP, PE

April 21, 2000

Good afternoon, my name is John Cheffer. I am a Professional Engineer (PE), Certified Safety Professional (CSP), and Chairman of the American Society of Safety Engineers (ASSE) National Governmental Affairs Committee. ASSE, founded in 1911, with almost 33,000 members, is the oldest and largest Society of safety professionals in the world. We are dedicated to the protection of people, property, and environment on a worldwide basis.

My testimony focuses on how ASSE views the proposed OSHA ergonomics standard and how it could potentially impact our membership. It is also appropriate to point out that through my professional life, I have personally worked with thousands of businesses and organizations on safety and health issues, including ergonomics.

Here is a 30,000 foot overview of ASSE's perspectives:

  • ASSE supports the development of a stand-alone ergonomic standard. This standard should be performance oriented. It should be applicable to all employers and describe the basic tenets and best practices necessary for successfully developing and managing an effective ergonomic program. The standard needs to be supported by a cohesive outreach effort melding the resources of OSHA, business associations, professional societies and academia. Such a program can be supported by other positive reinforcement actions such as penalty reductions for good faith efforts by employers; or, because of the significant anticipated costs to employers, granting tax credits for the creation/maintenance of an acceptable program.

  • The establishment of basic ergonomic management programs and increasing employee awareness and involvement on these issues is not a burden to employers when compared to other safety and health compliance requirements. In fact, most efficient and effective ergonomic initiatives will usually "dovetail" with other existing safety and health programs.

  • ASSE believes there is science justifying the creation of such a standard. ASSE accepts that the National Academy of Science (NAS) ergonomics study released two years ago indicated an overriding basis for an ergonomic standard. However, ASSE supports enhancing the knowledge base through continued research into the causation, identification, and prevention of ergonomic injuries.

ASSE wants to be clear on the following point: The Society is a supporter of OSHA as we believe the Agency maintains a national focus on the importance of occupational safety and health, and there is a need for a functional and understandable ergonomic standard that enables all employers to recognize problems and learn how to solve them. However, ASSE is concerned that the flaws in the proposed rule - such as the single incident trigger and its interference with established state worker's compensation programs -- and the rule's complexity may result in the rejection of the entire standard. This could be literally: Throwing the baby out with the bath water. That is the precise reason why ASSE is the only organization that wrote an alternative proposal for OSHA's consideration.

Specific aspects of the proposal may force safety professionals into a no-win regulatory situation regarding injury causation that is currently adequately handled by state workers' compensation statutes. During the draft comment period ASSE commented extensively about OSHA's February, 1999 draft proposal. We concluded the original proposal was much easier to understand than the current document. While OSHA's draft was a reasonable starting point, ASSE offered a counter-proposal which is again recommended to the Agency. The ASSE counter-proposal remains a sound discussion document that addresses the specifics of the safety related ergonomic issues employees and employers face on a daily basis.

The most disquieting element of the current proposal is its significant departure from previous standards making. This proposal leans heavily toward correcting issues that should be properly addressed by revising 29 CFR, Part1904, if incident reporting is a real issue, or, if wages are an issue, by Wage and Hour standards applications. ASSE sees the proposal potentially diminishing the abilities of safety and health professionals and practitioners to address actual hazards and exposures in the workplace. The proposed standard will over-focus employers on this issue, to the exclusion of more important hazards and exposures as well as putting safety professionals at odds with employers and employees as they are forced to address social issues instead of safety issues.

The apparent intent of this concept is to promote a team approach to ergonomic programs and establish some documented levels of responsibility. However, the proposed standard seeks to identify specific individuals to be responsible for the establishment of programs and the initiation of corrective action. In many cases, these employees will be the staff safety professional or perhaps third-party consultants. The primary mission of the safety professional is to provide information to management supported by good science and sound technology. ASSE's concern is that during implementation and interpretation of the standard, OSHA could hold safety professionals responsible for workplace ergonomic issues beyond their control. Clarification is needed on the following issues:

  • Would prompt communication of identification of hazards and suggested courses of action or corrections to responsible management leadership, by safety professionals, meet the intent of the standard?

  • Would a safety professional be potentially held personally liable under the Occupational Safety and Health Act if his/her suggested corrective action was not taken and the result was an ergonomic injury to an employee?

  • What would be the tort liability of safety professionals arising from workplace ergonomic injuries?

  • When will OSHA provide rationale in its Preface/Preamble addressing these concerns and clarifying the exposures of the "responsible person" ?

  • Will, and if not why not, the language of the standard provide such a shield for the safety professional is his or her assigned staff/non-employer role?

The Society believes the grandfathering clause is functionally ineffective, particularly for sound programs implemented and administered by our members, since the program must still be equivalent to what OSHA requires. The grandfathering concept is too vague. Based upon our previous experience, compliance officers may enforce the standard in an arbitrary manner due to lack of training, certification, and experience. Such deficiencies could lead to chaos through different interpretations of whether hazards and exposures are limited to a given case. ASSE members and safety professionals who have already established ergo programs may have to jump through many hoops to convince a compliance officer that their program meets the requirements of the standard. Finally, the standard of proof is going to present significant problems.

The standard will surely trigger a significant need for trained safety professionals. However, ASSE was distressed to learn that OSHA does not recognize the importance of using competent safety and health professionals and qualified consultants to conduct or direct ergonomic programs. OSHA should encourage employers to use staff safety professionals, or contract with those safety professionals who have the competence and expertise to conduct ergonomic related activities.

A historical concern of ASSE is that the safety profession is heavily regulated in regard to how a function/practice is to be conducted, but, there has been little if any guidance addressing the level of competence of those who perform these activities. OSHA may have to define the competence of safety professionals in the future as related to its proposed standards. ASSE stands ready to assist when this issue arises. The Society has advocated professional competence for almost ninety (90) years. Accordingly, we have the resources, expertise, and history to assist with this issue, (e.g. ANSI Z590 proposed rule, National Registry of Safety Professionals and Other Registrants, introduction of legislation defining competence in numerous states).

There is great and good concern that the proposed rule allows health care professionals to provide ergonomic consultations in the workplace regardless of their occupational safety and health professional background. In fact, OSHA's belief that it is important to single out healthcare professionals as being qualified to perform ergonomic evaluations, and not recognize safety professionals or industrial hygienists in the proposal is poor public policy and is indefensible from our perspective. After reviewing the proposed standard we believe the following questions and issues need to be resolved by OSHA before allowing the proposal to move forward:

  • Why are safety professionals not directly cited in the draft standard, under proposed Section 1910.945 Key Terms and Definitions, when these professionals will be responsible to implement the standard if or when it is promulgated?

  • Why does OSHA consider those persons performing engineering or safety functions to be personnel, while those who provide health care related functions are considered to be professionals? This questions refers specifically to the 11/23/1999 Federal Register announcement on Page 65823, left column, bottom of the page "Identify Controls".
  • Does the standard provide health care professionals with unfettered access to the workspace since our interpretation is that it does?

  • Does the standard really clarify the role of the health care professional in regard to MSD management, or does it provide the health care professional with abatement responsibilities far beyond his or her background?

  • Is the opinion of a health care professional unquestionable if they offer hazard abatement strategies to safety professionals regardless of his or her overall occupational safety and health background? This questions refers specifically to the 11/23/1999 Federal Register announcement on Page 65844, right column, bottom of the page and on Page 65485, right column, top of the page.

  • The proposal also appears to specifically recognize that health care professionals have the opportunity to suggest workplace changes. How will OSHA ensure that these health care professionals are qualified to provide such consultation?

  • Does OSHA have any data or studies indicating that health care professionals have the experience, technical education, and overall background to provide ergonomic consultation?

  • Does OSHA not see an urgent need to look at the overall issue of credentials for those professionals qualified to perform ergonomic evaluations?

Comments in the Preamble would indicate that some employers, particularly in rural areas, are more concerned with access to health professionals (doctors, physicians assistants and nurse practitioners,) and not as concerned with the qualifications of such providers. As OSHA has focused on the importance of health in this standard, ASSE is perplexed that the Agency apparently is not calling for a higher level of knowledge and competency for those health care professionals listed as qualified to administer to injured workers. We find the current proposal to be poor policy, and call on OSHA to provide clarification in the final rule.

In summary, although ASSE's overall experience with OSHA has been very positive and we believe that a standard is needed, OSHA should not finalize the rule as drafted in the November 1999 proposal until the above listed points and questions. ASSE stands ready to work with the Agency in ensuring a standard is implemented which is technically and professionally feasible.

I thank you for your time today and would be pleased to answer any questions that you may have.


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