Business groups and conservative legislators deemed the 2000 Ergonomics Standard diabolical and killed it before it had drawn breath. United States Labor Secretary Hilda Solis’ agenda of regulations, taking shape at the end of 2009, could suffer the same fate. Its survival depends on whether it can disarm opponents with skillful presentation and the sound design of its proposals.
Opponents still abound. For them, ergonomics rule-making remains an anathema. Ergonomics campaigners learned from the 2001 humiliation and weigh their words more carefully these days. However much proposals measure up as legislated ergonomics, they are not presented that way. A case in point: one of the most energized and significant ergonomics regulation movements – named the Safe Patient Handling campaign – is progressing in plain sight almost unhindered.
In the April issue of the Human Factors and Ergonomics Society (HFES) Bulletin, Peter Budnick, Ph.D., CPE, called on a wily statesman of the 19th Century – Otto von Bismarck – to argue the case for an adroit campaign strategy. The principal of Ergoweb, Inc., Dr. Budnick prefaces his article, “Opinion: Is a New Workplace Ergonomics Standard in the Works?” with a quote from the sometime infamous Prussian: “Laws are like sausages; it is better not to see them being made.”
Asked to comment in December on the possible pitfalls confronting the Solis agenda, Dr. Budnick said that since most regulatory activity is directed toward health and safety issues, that fact should be driven home. And he sees the value of stressing the business argument for sound ergonomics regulation. “The broad science and application of ergonomics has much to add to business bottom line,” he said. “Let’s not get distracted by one application — the prevention and remediation of work related musculoskeletal disorders.”
In common with the coalition campaigning for Safe Patient Handling, activists pressing for legislation to reduce the risk of pilot fatigue have been careful not to use an obvious ergonomics argument to make their case. They are focusing on the health and safety angle. And they haven’t ignored the business aspect: the last thing the airline industry needs is one more reason for consumers to think twice before flying. The strategy appears to be working. The Senate aviation subcommittee has prodded the Federal Aviation Administration to move swiftly on issuing revised flight/duty-time rules. A proposed rulemaking that would redefine 1960s-era flight/duty-time rules will be issues in late January 2010.
And 19 states have enacted a ban on texting while driving, an ergonomics regulation by another name. Some states have banned, or are considering a ban, on distracted driving. Again, nowhere is ergonomics mentioned, and the need for the legislation was and is argued as a commonsense safety measure. The figures from the National Highway Traffic Safety Administration, which show that nearly 6,000 people died in vehicular crashes involving a distracted or inattentive driver in 2008 – add up to a convincing argument.
Solis plans 90 new rules. The Fall 2009 edition of her department’s Regulatory Agenda lays out the rules and proposed rules each Federal agency expects to issue during 2010. The agenda is expected to give more enforcement power to the Occupational Safety and Health Administration (OSHA), the Office of Labor-Management Standards, the Wage and Hour Division, the Employment and Training Administration, the Mine Safety and Health Administration, the Office of Federal Contract Compliance Programs and the Employee Benefits Security Administration.
It will be months before the 90 proposals can be teased apart and weighed by all interested parties, then argued in part and in whole. In the meantime, the sketchy details in news releases and other reports reveal several actual or proposed changes that have clear implications for the ergonomics community.
The agenda is reported to include proposals for requiring companies in the United States to keep more extensive records of ergonomic-related injuries, including musculoskeletal disorders.
It is also reported to include proposed rules forcing employers to minimize the risk of repetitive-stress injuries with more than $4 billion a year in workplace improvements, eight years after corporations fended off the proposal.
There is keen interest in what happens to the venerable OSHA General Duty Clause in the Solis agenda. The 1970 OSHA Act states that “employers are responsible for providing a safe and healthful workplace for their employees. OSHA’s role is to promote the safety and health of America’s working men and women by setting and enforcing standards; providing training, outreach and education; establishing partnerships; and encouraging continual process improvement in workplace safety and health.”
The agenda sees OSHA inspections stepped up, with some of the present inconsistencies addressed. At present uneven inspection and enforcement, underfunding and a lack of political will undermine the effectiveness of the General Duty Clause. OSHA’s Statistics and Data Web page notes that the total OSHA fines and inspections decreased across all types of healthcare facilities in FY 2009, and it is the second straight year of declines. The Barak Obama administration is asking Congress for a $50 million increase in OSHA’s budget for the federal fiscal year that began October 1 to hire an additional 130 inspectors.
OSHA’s Field Operations Manual has already undergone revisions. The manual constitutes the agency’s “general enforcement policy and procedures for use by the agency’s field offices in conducting inspections, issuing citations and proposing penalties. … The manual assists compliance officers in scheduling and conducting inspections, enforcing regulations, and encouraging continual improvement in workplace safety and health.”
Announcing the revisions in a news release on March 31, OSHA said the changes are designed to give inspectors more latitude in issuing violations, especially in the areas of defining recognizable hazards with regard to the General Duty Clause, focusing on hazard assessments, and providing more guidance on issuing willful violations. The aim, according to OSHA, is to “provide OSHA compliance officers with a single comprehensive resource of updated guidance in implementing the agency’s mission to more effectively protect employees from occupational injuries, illnesses and fatalities.”
One of the biggest questions for the ergonomics community – and the rule-making opponents – is whether OSHA will emerge at the other end of debate about the Regulatory Agenda with robust enforcement capabilities and support. It could happen. If the design of the OSHA elements in the agenda is sound, opponents will have less solid ground for an attack. The same can be said for all of the Solis proposals – and the value of wily presentation can’t be understated.
Sources: Congressional Quarterly; Human Factors and Ergonomics Society; US Department of Labor; Occupational Safety and Health Administration; Occupational Health and Safety
This article originally appeared in The Ergonomics Report™ on 2009-12-09.