Roadblock halts first state ergonomics standard
Roadblock halts first state ergonomics standard
California plan sent back for revisions
The nation’s first state plan to protect workers from on-the-job repetitive motion injuries (RMIs) hit a surprise snag recently when the California Office of Administrative Law (OAL) rejected the proposal and sent it back for revisions, citing clarity concerns.
California’s landmark standard was expected to become effective in mid-January this year, pending final review by the OAL, the agency that reviews all proposed regulations for compliance with the state’s Administrative Procedures Act. (See related story in Hospital Employee Health, February 1997, pp. 18-21.) The California Occupational Safety and Health Administration (CALOSHA) has been under a legislative mandate since 1993 to develop an ergonomics standard, and it has been no easy task. In 1994, the state’s Occupational Safety and Health Standards Board unanimously voted down another proposal, citing cost factors and a lack of agreement on the effectiveness and scope of the measures.
Both sides threatening litigation
Late last year the standards board adopted the present version, much scaled down from the original, despite criticism from both employer and labor groups. Even after it is revised and adopted, the standard’s future is clouded by threats of litigation from both sides.
At issue in the current proposal are several items needing clarification, the OAL pointed out in its 18-page notice on the one-and-a-half-page standard. One is the need to restructure the scope and application requirements of the regulation so it can be more easily understood.
Presently, the proposal applies only to employers with 10 or more workers. At those work sites, the ergonomics standard would be enforced only when at least two employees performing identical work activities are diagnosed with RMIs within 12 consecutive months. Should that occur, employers must establish and implement programs to minimize RMIs. Those programs should include worksite evaluations, control of exposures that may have caused RMIs, and employee training, according to the proposal, but specific interventions are not spelled out.
In its criticism, the OAL targeted several clarity concerns related to language, such as what constitutes an "identical work activity," what locations are considered part of the "workplace," and what is included in "a diagnosis of RMI."
Employers call standard premature’
Health care employers have opposed the ergonomics standard, maintaining that hospital work-related ergonomics issues are adequately addressed in other standards requiring workplace illness and injury prevention programs. They also claim that the proposal was not supported by scientific research and would do nothing to reduce worker injuries, says Thomas Luevano, vice president of human resources and governance for the California Healthcare Association (CHA) in Sacramento, which represents 456 hospitals in that state.
Calling the regulation "very premature," Luevano adds that its applicability to patient-lifting injuries, probably the most common and costly ergonomics problem among hospital workers, is uncertain. While keyboarding injuries such as carpal tunnel syndrome and other cumulative trauma disorders clearly are RMIs, injuries incurred during patient-lifting are not, he says. CALOSHA officials have not established whether patient-lifting injuries will be considered RMIs under the proposed standard.
"It’s a wait-and-see situation. Who’s going to file the first complaint? Who is going to be the first test case? That’s how they’re going to approach this," Luevano says.
Ergonomics issues are "so new and so difficult to address" that compliance with the proposed standard is unlikely to reduce RMIs, he states.
Ineffectiveness of the proposed standard is one point on which both employers and labor agree, but labor officials are calling for a stronger regulation.
"We think there’s a great need for a standard. We were very disappointed in the standard they came up with, but we still felt that it was important for it to be adopted," says Michael Kushner, senior occupational safety and health representative for the Western region of the Service Employees International Union (SEIU) in Los Angeles.
Kushner cites two major problems with the proposed standard:
• It does not emphasize preventing injuries, but instead is effective only after two injuries occur as a result of identical work activities.
• Remediation of workplace ergonomics problems is left up to employers, instead of specifying that employers identify work hazards and implement controls to eliminate them.
Union: Employers weakened standard
SEIU officials say the language was intentionally vague due to political pressure from employers who do not want to see a strong standard enacted.
"It was done in response to the employers’ position, which is that no one really understands these injuries and how to prevent them, but we feel that is not accurate," Kushner states. "The problems addressed by the OAL are many of the same problems we’ve complained about, so we think they have a pretty good take on what some of the problems are, but the question is how the standards board will work to resolve those issues. If past practice is any indication, we may not be very happy with what we see."
Kushner says SEIU officials have not decided whether to join a planned lawsuit against CALOSHA once the proposed standard is adopted.
Fran Schreiberg, JD, an Oakland, CA, attorney with Worksafe!, a state pro-worker coalition, says the latest snag in the standard’s development is "just another in a long line of delays orchestrated by the business community."
Instead of developing a standard that would minimize worker injuries, "the standards board did [its] best to create a regulation that would minimize the burden on the employer. What they came up with is a narrow regulation in conflict with the statute that mandates it," she says. "When you have a government board that does not act according to what the law requires, you can compel them to go back and reconsider."
Even though the proposed standard will protect only a small number of workers, according to Schreiberg, the coalition wants the standard adopted, "and then we’ll go back to the court with our lawsuit and get most of the folks protected."
Standard kicks in after injuries occur
Like SEIU, the coalition seeks a standard that prevents injuries. "Any occupational safety and health regulation on the books right now does not wait until a worker is injured or killed before it kicks in," she says. "The duty of the employer is to provide a safe place to work. Employers should do walk-arounds, respond to complaints of symptoms and problems, and try to address and correct them before a worker is injured."
In addition, a standard should require employers to correct problems to the best of their ability, Schreiberg says.
"The law requires employers to correct unsafe situations. Right now, the way the regulation is fashioned, it says employers can do whatever they like, and that whatever they like is good enough. We’re willing to have a performance-based regulation as opposed to a specification regulation, and we’re not demanding a 4,000-page prescribed checklist, but it should comport itself with the rest of statutory law," she states.
Small employers not exempt from law’
Third, the coalition does not want the standard to apply only to employers of 10 or more workers. Other OSHA regulations do not base safety measures on the size of an employee population. "Just because you’re a small employer doesn’t mean that you have the right to kill workers. Small employers are not exempt from the law," says Schreiberg.
Nevertheless, John McLeod, executive officer of the standards board, claims that revisions to the proposed standard relate to "minor" issues.
"That’s not to belittle [the OAL’s] comments," he says. "We think they had some constructive criticism in terms of clarity, and I think we can probably present it in a clearer format."
McLeod says the standards board plans some sentence restructuring, but does not intend to change any "significant or policy-related issues" in the proposal. He adds that the board did not expect the proposal to be sent back for revision.
"The standard allows great flexibility in how the regulation is triggered, with two injuries in a 12-month period, and provides employers with great flexibility in how to go about minimizing these types of injuries in the workplace," he states.
McLeod says the proposal’s rocky history makes him "cautiously optimistic" about its future. "This particular rulemaking has been under great scrutiny in the past and still is currently, and it will continue to be under great scrutiny in the future, I’m sure," he says. "It’s a very charged issue in the business and labor communities. Business doesn’t want it, and labor does, and labor not only does, but they want a much more stringent regulation. This is in the middle ground somewhere."
The standards board expects to meet a mid-April deadline for revising and re-adopting the proposed standard. If the OAL accepts the amended version, it then goes to the secretary of state for final approval, probably in June or July.
Subscribe Now for Access
You have reached your article limit for the month. We hope you found our articles both enjoyable and insightful. For information on new subscriptions, product trials, alternative billing arrangements or group and site discounts please call 800-688-2421. We look forward to having you as a long-term member of the Relias Media community.