OF SAFETY ENGINEERS
1800 East Oakton Street
Des Plaines, Illinois 60018-2187
May 2, 2002
The Honorable John B. Breaux
United States Senate
SH-503 Hart Senate Office Building
Washington, DC 20510
VIA E-MAIL: firstname.lastname@example.org
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
- 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
- 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.
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;
(b) Program designed to minimize RMIs. Every employer subject
to this section shall establish and implement a program designed to minimize
RMIs. The program shall include a worksite evaluation, control of exposures
which have caused RMIs and training of employees.
(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
(A) The employer's program;
(c) Satisfaction of an employer's obligation. Measures implemented
by an employer under subsection (b)(1), (b)(2), or (b)(3) shall satisfy
the employer's obligations under that respective subsection, unless it is
shown that a measure known to but not taken by the employer is substantially
certain to cause a greater reduction in such injuries and that this alternative
measure would not impose additional unreasonable costs.
(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;
(E) Methods used by the employer to minimize RMIs.
Note: Authority cited: Sections 142.3 and 6357. Labor Code. Reference: Sections
142.3 and 6357. Pulaski v.Occupational Safety & Health Stds. Bd. (1999)
75 Cal.App.4th 1315 [90 Cal. Rptr. 2d 54].
1. New article 106 (section 5110) and section filed 6-3-97; operative 7-3-97
(Register 97, No. 23).
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).
|The above information is provided free of charge
by the Department of Industrial Relations from its web site at www.dir.ca.gov.
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)
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
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);
(4) Judge Ford modified subsection (c) by striking the entire subsection
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
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
"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
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.
to go back to the ASSE Federal Statements and Testimony page.