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Senate ergo hearing: Sparks fly, confusion persists

April 19, 2002
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Labor Secretary Elaine Chao donned her flak jacket and trekked to Capitol Hill April 18th to explain OSHA's recently announced ergonomics plan that relies on voluntary compliance to members of a Senate subcommittee on workplace safety, and to field questions from hostile Democrats who want OSHA to draft another ergo standard.

For a subcommittee hearing, an unusually high number of senators turned out - four Democrats and five Republicans - evidence that ergonomics is one of the hot labor issues in Washington these days. A C-SPAN camera was rolling. Reporters from the likes of the Gannet news service, Dow Jones news service, the Associated Press and the New York Times crowded the press table. Business lobbyists and union officials, injured workers, and reps from trade associations and professional societies watched the grilling.

Senate Democrats, including Ten Kennedy of Massachusetts, Paul Wellstone of Minnesota and Hillary Clinton of New York, worked over the Labor Department head for 90 minutes. Republicans offered moral support and generally congratulated her on the plan.

Chao used the hearing to announce that nursing homes will be the first to get guidelines. But Kennedy was taken aback when she explained that the guidelines and enforcement are "delinked" - failure to follow the guidelines will not, and cannot, be used to issue a general duty clause citation.

(The Occupational Safety and Health Act requires employers to broadly provide a workplace free from recognized hazards, which is being interpreted to include ergo hazards.)

Said Kennedy: "The long-awaited plan of action by the administration falls far short of protecting America's workers. It is not the "comprehensive approach to ergonomics" promised by the President and the Secretary over a year ago. In fact, it is really only a plan to come up with a plan."

Kennedy argued for an ergo standard, declaring that most corporations will simply ignore what he labeled "toothless guidelines."

Clinton asked if states that run their own OSHA programs will be required to incorporate voluntary guidelines. The answer seems to be no.

But that's just one issue that left attendees still confused after the hearing. Chao emphasized that the guidelines will be enforced, but not directly through general duty clause citations. And the timetable for issuing guidelines is still unclear. Early on, Chao made it sound like guidelines for nursing homes will be coming out any day now. But when Kennedy pressed for clarification, Chao answered that the guidelines will come out by the end of the year.

Kennedy railed: "The first Bush Administration recognized the failure of voluntary guidelines, compliance assistance and enforcement under the general duty clause and began to develop a nationwide (ergo) standard ten years ago. Instead of taking seriously the lessons of history, this administration is protecting employers who ignore the safety of their workers."

Republicans see it all quite differently, naturally. OSHA is on the right track with its plan, according to Senator Mike Enzi of Wyoming.

Said Enzi: "Companies must be given the flexibility to implement ergonomics programs tailored to their particular needs and capabilities - not the complex formulas that are difficult to find, let alone follow, that were referenced but not provided in the repealed rule."

Enzi said significant legal, scientific and technical issues remain unresolved, blocking any chance of a standard. Current science cannot accurately attribute ergonomic injuries to work-related versus non-work-related factors, and the economic and technical feasibility of an ergo rule has not been supported, he claimed.

"Perhaps we should be asking what can be done to reduce ergonomic injuries at home and with hobbies and recreation. Since home and hobbies affect work, I'm sure businesses would be willing to help - but not to shoulder all the responsibility of an inspect and fine mentality," said Enzi.

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