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May 2, 2002

The Honorable John B. Breaux
United States Senate
SH-503 Hart Senate Office Building
Washington, DC 20510

VIA E-MAIL: senator@breaux.senate.gov

RE: Comment on S. 2184

Dear Senator Breaux:

On behalf of its 30,000 members whose professional responsibility it is to help ensure that American workers have safe and healthy workplaces, the American Society of Safety Engineers (ASSE) offers this response to your legislative effort to task the Department of Labor to issue a standard to address workplace ergonomic risks.

ASSE has long called for a reasonable, workable federal ergonomics standard, so we share your desire to see a proposal from the Administration that defines employer responsibility in lowering ergonomic risks to workers. We are concerned that guidelines coupled with enforcement of the general duty clause will probably result in confusion and ongoing legal discord, causing loss of needed focus in attaining the widely shared goal of eliminating ergonomic hazards.

Despite these concerns, the Society does not oppose the plan drafted by the Occupational Health and Safety Administration (OSHA). In a difficult political climate that makes setting a standard equally difficult, if this approach is the most expedient way of proceeding toward protections for American workers, then we stand ready to work towards making sure the process chosen by OSHA results in an effective solution. ASSE will turn towards calling for a reinvigorated effort to establish an ergonomics standard through the voluntary consensus process under the auspices of the American National Standards Institute. Hopefully, through that process, all stakeholders - from employers to unions to professional associations- can again come together to establish an acceptable standard that can serve as a benchmark for the government's efforts in finding guidelines that will help protect American workers.

On the other hand, ASSE cannot support your bill as written. Though we fully support its intent of requiring the establishment of a federal ergonomics standard, we do not believe that the requirements for the standard as currently written into the bill would necessarily lead to a workable solution. During the previous Administration, all who were concerned over this issue were disappointed with a proposed standard that tried to do too much, be too specific about how employers meet the overall goal of improving ergonomic safety in the workplace. With ergonomics, it is difficult if not impossible to offer a standard that can address the particular ergonomic challenges in every workplace or even every industry. Even workplaces in different businesses in the same industry offer different safety and health challenges. Most importantly, we do not believe that OSHA has either the data necessary or the best information on successful industry practices to develop adequate standards or even guidelines for various industries. Committing the resources needed to develop such information and expertise, especially in this time of reduced funding expectations, would only take away from OSHA's ongoing mission and responsibilities.

For these various reasons, we urge you to consider a different approach to achieving the same outcome. Enclosed with this correspondence is a copy of California's ergonomics standard. Though short and relatively simple, it is entirely consistent with ASSE's long-standing policy with regard to ergonomics - that such a standard be performance based, that it require specific workplace evaluations, and that it encourage cooperative efforts to improve ergonomic safety in the workplace.

The California standard offers a variety of elements that ASSE believes would lead to an acceptable, successful ergonomics standard.

• At the heart of the California standard is the firm requirement that "employers…shall establish and implement a program" to address ergonomic risks, yet specific solutions that may not fit specific situations are not mandated.
• The standard is targeted to identifiable ergonomic problems and not entire workplaces since workstation evaluations are required only for "exposures which have caused (repetitive motion injuries)."
• The standard does not set an unreasonable absolute. Employers are required to correct correctible exposures but, if not correctible, "have the exposures minimized to the extent feasible."
• Government is encouraged to offer solutions -- not only penalties -- in language that says employers fall short when "it is shown that a measure known to but not taken by the employer is substantially certain to cause a great reduction."

It is rare that difficult public policy decisions can be made based on models or experiments that have worked. Though it does not meet everyone's concerns on this matter, the California approach has, by the reports ASSE has had from its members who are responsible for meeting its requirements, been successful to date. Detailed, comprehensive information on the California ergonomics standard is available at http://www.dir.ca.gov/DOSH/doshl.html.

Most likely, no approach to ergonomics will satisfy every concern or viewpoint. Nevertheless, we all must work to find a broadly acceptable approach. To be broadly acceptable, the solution should encourage and not proscribe unnecessarily, provide those who are subject to its requirements the leeway to develop their own creative means of achieving reachable goals, and be clearly enforceable without being inflexible. The California model meets these necessary goals.

Our members pride themselves on ASSE's commitment to finding reasonable, workable solutions to public policy problems involving workplace safety. Our voice, we hope, is one of reason. For the ongoing, contentious ergonomics debate, the Society hopes this proposal can bring about some reasonable and timely closure. Everyone, including safety professionals, would be well served in a speedy resolution of this issue.

As always, ASSE is prepared to work with you or your staff in carving a new pathway among the well-meaning but disparate approaches to protecting America's workers from unacceptable ergonomics risks.

Sincerely,

M.E. Greer, CSP
Society President 2001-2002

California Ergonomics Standard

Subchapter 7. General Industry Safety Orders
Group 15. Occupational Noise
Article 106. Ergonomics

§5110. Repetitive Motion Injuries.
(a) Scope and application. This section shall apply to a job, process, operation where a repetitive motion injury (RMI) has occurred to more than one employee under the following conditions:

(1) Work related causation. The repetitive motion injuries (RMIs) were predominantly caused (i.e. 50% or more) by a repetitive job, process, or operation;
(2) Relationship between RMIs at the workplace. The employees incurring the RMIs were performing a job process, or operation of identical work activity. Identical work activity means that the employees were performing the same repetitive motion task, such as but not limited to word processing, assembly or, loading;
(3) Medical requirements. The RMIs were musculoskeletal injuries that a licensed physician objectively identified and diagnosed; and
(4)Time requirements. The RMIs were reported by the employees to the employer in the last 12 months but not before July 3, 1997.

(1) Worksite evaluation. Each job, process, or operation of identical work activity covered by this section or a representative number of such jobs, processes, or operations of identical work activities shall be evaluated for exposures which have caused RMIs.
(2) Control of exposures which have caused RMIs. Any exposures that have caused RMIs shall, in a timely manner, be corrected or if not capable of being corrected have the exposures minimized to the extent feasible. The employer shall consider engineering controls, such as work station redesign, adjustable fixtures or tool redesign, and administrative controls, such as job rotation, work pacing or work breaks.
(3) Training. Employees shall be provided training that includes an explanation of:

(A) The employer's program;
(B) The exposures which have been associated with RMIs;
(C) The symptoms and consequences of injuries caused by repetitive motion;
(D) The importance of reporting symptoms and injuries to the employer; and
(E) Methods used by the employer to minimize RMIs.

2. Editorial correction of subsection (b)(1) (Register 97, No. 29).

3. Change without regulatory effect repealing subsection (a)(4) Exemption and amending Note filed 4-28-2000 pursuant to section 100, title 1, California Code of Regulations (Register 2000, No. 17).

ERGONOMICS -- HISTORY OF CALIFORNIA STANDARD
In 1993, Assembly Bill 110 also added a new Section 6357 to the Labor Code, which required the California Occupational Safety and Health Standards Board--an agency separate and independent from the Division of Occupational Safety and Health--to adopt

"[O]n or before January 1, 1995... standards for ergonomics in the workplace designed to minimize instances of injury from repetitive motion."

At the time the legislation passed in mid-1993, the California Occupational Safety and Health Standards Board ("Standards Board") was relying on the Division of Occupational Safety and Health and its public Ergonomics Advisory Committee to develop an ergonomics standard for the Standards Board's consideration and adoption. In November of 1993, a Notice of Public Hearing was published in the California Notice Registry which contained the ergonomics standard (8 CCR Section 5110) proposed by the Division based on the public advisory committee process. In November of 1994, after two large public hearings, and the submission of over 6,500 written comments, the Standards Board voted down the proposed Section 5110 standard.

On 19 January 1995, the Standards Board was sued by the California Labor Federation, and three named injured workers, in Superior Court in Sacramento, California for its failure to "adopt" a standard "to minimize instances of injury from repetitive motion" by 1 January 1995. The Superior Court ordered the Standards Board to develop and adopt a standard which complied with Section 6357 by 1 December 1996.

In December of 1995, the Standards Board published a Notice of Public Hearing which contained a proposed repetitive motion standard. Hearings on the proposed standard were held on 18 (Los Angeles) and 23 (Sacramento) January 1996.

On 14 November 1996, the Standards Board adopted a new 8 CCR Section 5110 entitled "Repetitive Motion Injuries."

The Standards Board's adoption met the 1 December 1996 deadline established by the Sacramento County Superior Court. However, on 3 January 1997, the California Office of Administrative Law disapproved Section 5110 and returned it to the Standards Board "because Section 5110 fails to satisfy the clarity standard of Government Code Section 11349.1." Within 120 days (as permitted by the California Government Code), the Standards Board resubmitted Section 5110 to the Office of Administrative Law for its approval.

The Office of Administrative Law approved 8 CCR Section 5110 on 3 June 1997, and the new repetitive motion injury standard became legally enforceable in California on 3 July 1997.

In mid-1997, Section 5110 was challenged by both organized labor and employer representatives in the Sacramento Superior Court. On 15 October 1997, Superior Court Judge James T. Ford issued a Minute Order and made the following changes to Section 5110 and declared the remainder to be valid:

(1) Judge Ford modified subsection (a)(1) to strike the words "predominant" and "(i.e., 50% or more)";

(2) Judge Ford modified subsection (a)(3) to strike the word "objectively;"

(3) Judge Ford modified subsection (a) by striking the words "Exemption: Employers with 9 or fewer employees," following subdivision (a)(4); and

(4) Judge Ford modified subsection (c) by striking the entire subsection (c).

On 12 December 1997, the Occupational Safety and Health Standards Board, as well as the American and California Trucking Associations, filed an appeal of the Superior Court Order with the Third Appellate District of the California Court of Appeals in Sacramento.

On 13 March 1998, the Third Appellate District stayed Judge Ford's Order of 6 February 1998 (issued at a special hearing on that date), thus reinstating the wording of the standard as adopted by the Standards Board on 14 November 1996.

On 29 October 1999, the Third Appellate District of the Court of Appeal reversed in major part the judgment of the Superior Court.

The Court of Appeal concluded on the appeal by the Standards Board and the Associations

"that, except for one conspicuous exemption, the regulation [8 CCR Section 5110] is valid, that the trial court improperly invaded the rulemaking authority of the [Standards] Board by striking the remaining provisions and that the APA-based challenges to the regulation are meritless."

The "one conspicuous exemption" that the Court of Appeal found defective in the Standards Board's regulation was the small employer exemption, found in 5110, subsection (a).

The trial court had ruled this provision was inconsistent with the Standards Board's statutory authority to "minimize RMIs in the workplace." On this issue,

the Court of Appeals agreed with the trial court, stating that a standard which excludes four out of five workplaces is inherently inconsistent with [the Board's statutory] responsibility to promulgate standards for minimizing RMIs in all places of employment in California.

In addition, the Court of Appeal specifically found that there was no reason to return the entire regulation to the Standards Board for more rulemaking just to sever the invalid small employer exemption. As a result, the small employer exemption in Section 5110 ceased to have any legal effect.

Neither the Standards Board nor the employer trucking associations filed a petition for hearing in front of the California Supreme Court. Thus, litigation over California's ergonomics standard concluded approximately three years after the Repetitive Motion Injury Standard was adopted by the Standards Board.

Despite the end of appellate litigation mostly in the favor of the Standards Board, the Legislature in 1999 reaffirmed its continuing concern over the prevalence of repetitive motion injuries in California workplaces and reminded the Occupational Safety and Health Standards Board of its continuing duty to carry out Labor Code Section 6357.

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