Regulatory Changes During the Bush Administration: The Ergonomics Case Study

Shell J. Bleiweiss and Jaime Hochhausen

OSHA issued what may be the shortest-lived rule in history when it promulgated its ergonomics standard (Standard) on Jan. 16, 2001. Although OSHA had been trying to enact an ergonomics rule for many years, the agency had been blocked by politics for most of that time. Finally, in the waning days of the Clinton administration OSHA managed to promulgate the Standard.

Congress, however, had other ideas. In early March of 2001, using a little known law entitled the Congressional Review Act of 1996, Congress overturned the Standard. President Bush signed Congress' rejection of the Standard into law on March 20. "The ergonomics rule would have cost both large and small employers billions of dollars and presented employers with overwhelming compliance challenges," Bush said. Businesses said implementation could cost them $100 billion.

The Congressional Review Act allows Congress to reject federal regulations within 60 days after they are issued. This is the first time Congress exercised its authority to do so. Bad luck for OSHA! Once, rejected, OSHA is barred from ever issuing similar rules without express authority from Congress.

The unions and the Democrats, who managed to form successful alliances with moderate Republicans on previous ergonomics legislation, could not maintain the coalition in the Bush administration. Six Democratic senators voted with the unanimous Republican alliance for repeal in the Senate, and in the House 16 Democrats broke rank, though supporters did pick up 13 Republicans.

Summary of the Standard
The purpose of the Standard was to reduce musculoskeletal disorders (MSDs) in workers who do jobs involving repetitive movements, continuous force, bending and reaching, operating vibrating tools and lifting heavy objects. Common MSDs include carpal tunnel syndrome, trigger finger, low back pain, rotator cuff syndrome, and tendonitis. Signs of an MSD include painful joints, pain, tingling or numbness in hands or feet, shooting or stabbing pains, swelling, burning sensation, pain in wrists, shoulders, forearms, knees, fingers or toes turning white and back or neck pain. The Standard applied to all employees and employers except those in the construction, maritime, agriculture and railroad industries.

To comply with the Standard, employers had to provide all current and new employees information about: 1) common MSD signs and symptoms; 2) the importance of reporting MSDs early; 3) the procedure for reporting MSDs in their workplace; 4) the kinds of risk factors; 5) jobs and activities associated with MSDs; and, 6) a summary of the requirements of OSHA's ergonomics standard. The summary had to be in written form (or electronic form if all employees had access) and posted where everyone could see it, such as on employee bulletin boards.

When an employee reported an MSD, the employer had to determine if it qualified as an "MSD incident". An MSD was an incident when: 1) it was work-related and required time off work, restrictions to work, or medical treatment (not including first aid); or, 2) the MSD signs or symptoms were work-related and lasted for 7 consecutive days after the employee reported them. If the MSD was classified as an incident, the employer next had to determine if it met the "action trigger". The action trigger was met if the employee's job routinely (1 or more days a week) involved exposure to one or more relevant risk factors. If the employee's job met the action trigger, the employer had to develop and implement an ergonomics program.

If employees had no more than one MSD incident in any one job, and there had been no more than 2 MSD incidents in the establishment in the past 18 months, the employer qualified for a "quick fix" rather than setting up a full ergonomics program. If the MSD hazards were reduced as a result of the quick fix, no further action needed to be taken except maintenance. If the MSD hazards had not been reduced, the employer had to implement a full ergonomics program.

Information about the Standard was to be distributed and employers had to receive and respond to initial employee reports by Oct. 14, 2001. Permanent controls were due by January 18, 2005, or 2 years after determining a job meets the action trigger, whichever came later.

What's Next?
Many employers are continuing to implement voluntary ergonomics programs despite the inapplicability of OSHA's Standard. Doing so can aid productivity and worker morale, while minimizing lost days and worker's compensation claims.

Prior to this Standard, OSHA had relied on the OSH Act's General Duty Clause to cite employers for ergonomics violations. Now, OSHA is likely to revert to that practice again. If they do, it seems to this author that a credible argument can be made that Congress has barred such citations also. In order to prevail, an employer would have to convince a court that Congress, through its later action (rejection of the Standard in 2001) had modified its earlier enactment of the General Duty Clause to say that the OSH Act cannot apply to ergonomics issues.

The next few years should be very interesting, not only showing whether ergonomics is dead and buried, but how much use Congress makes of its new rejection power over all federal agencies.

Shell J. Bleiweiss is an attorney specializing in environmental and OSHA law in Chicago. He practiced for 16 years with three of the largest law firms in the U.S. before starting his own firm in 1998. Contact him at sbleiweiss@shell-bleiweiss.com. Jaime Hochhausen is a law student at John Marshall Law School and clerks for the Law Offices of Shell J. Bleiweiss.