Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.
A Pain in the Neck: Who is Responsible?
Last November, Bill Clinton authorized the Occupational Safety and Health Administration's (OSHA) first-ever ergonomics regulation designed to protect 102 million employees, ranging from poultry-processing workers to office secretaries. A few days ago, Congress invoked the never previously used Congressional Review Act of 1996 to kill the regulation, with the promise that President Bush will sign the repeal. Union and health organization leaders consider the action draconian since it obliterates ten years of work started by Labor Secretary Elizabeth Dole under Bush's father.
The regulation had flaws that made it easy for Congress to bow under the pressure of the business lobby. Most controversial was the provision, allowing an employee injured on the job due to an ergonomic hazard, with a doctor's consent, to take up to 90 days off from work at full benefits and 90 percent pay.
The problem with this is twofold. First, it makes an employer responsible for paying for injuries that cannot always be isolated from factors outside of the physical work environment. A recently published National Academy of Science study shows a strong link between exposure to ergonomic hazards in the workplace and musculoskeletal disorders. But it also states that many factors resulting in such disorders are personal, including gender, age, pre-existing health conditions, and lifestyle choices. Second, it is unclear how federally mandated wage replacement would be related to states' different workers' compensation benefits. While some states currently cover injuries resulting from repetitive or chronic exposure in workers' compensation programs, other states only allow for coverage when the injury can be pinpointed to a specific accident, such as falling on a wet floor.
While OSHA estimates that compliance with its regulation would cost $4.5 billion, employers claim it would be more like $120 billion. The regulation mandates that employers apply a bureaucratic process in establishing an ergonomics program if two or more employees report musculoskeletal disorders. By not requiring any action before an injury is reported, OSHA intended to make its rule less burdensome for employers. However, this is an injury-incident model that puts the cart before the horse. It would be far better to give businesses incentives to implement good workplace practices in the first place rather than to require them to invest administrative costs in following lengthy procedures after workers have been injured.
To date, about 40 percent of American employers have voluntarily implemented preventive measures. Congress should encourage all businesses to follow suit by providing tax incentives to spur preventive training programs, job redesign and technological developments that address ergonomic hazards. OSHA could assist in these efforts by expanding the scope of its training activities for employers. The Bush administration should increase the Department of Labor's spending for this purpose. Furthermore, since it is important to catch musculoskeletal disorders early in order to prevent long-term disability, states should reform existing workers' compensation programs by improving diagnostic means, shortening waiting periods, and making sure ergonomic injuries are not by definition of terms excluded from coverage.
Ultimately, government, companies, and employees all need to work together so that today's most crippling occupational health issue does not remain a pain in the neck for our nation.
—Michelle Voll, Developmetn Director
Center for Public Justice
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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”