It’s All in the Execution for Doomed OSHA Regulations

To the relief of employers and insurers, Congress overturned the ergonomic regulations adopted by OSHA last year.

Despite all the caterwauling about the ergonomic regulations adopted by OSHA in November 2000, I think they would have worked fine-if Bill Clinton were still President.

It’s simple, you see. Businesses that failed to adequately protect their workers from carpal tunnel syndrome and other maladies would ultimately have been exonerated by the pardon-happy now-former President.

Sorry, couldn’t resist that. Meanwhile, back to reality.

It might have been controversial, but it wasn’t a surprise that Congress for the first time used the five-year-old Congressional Review Act to toss out a federal regulation. Sure, the voting was close and the partisanship bitter, but the long-term implications could be minimal politically.

The vote came during a week when the nation was probably more concerned about two stories of school shootings. The OSHA repeal wasn’t even the most notable vote taken that week in the U.S. House, which passed-again by a whisper-thin margin-the first plank of President Bush’s $1.62-trillion, 10-year tax cut plan. In the battle for headlines, economics will win 99 times out of 100 over ergonomics-and this wasn’t that one-in-100 situation.

It might have been if the regulation hadn’t been overturned. For business, this was the equivalent of staring down a loaded gun, with the weapon’s caliber inversely proportional to the size of the firm. The numbers are in dispute-OSHA places the annual cost to business at less than $5 billion; business interests say the impact would have been nearly $100 billion-but there can be little argument that some jobs would have been lost if the rule had been implemented.

Not exactly a great Rx with the economy poised on the edge of what used to be known as a “downturn.”

Assume that business groups exaggerated the cost of compliance, which, of course, they probably did. Assume it was $50 billion a year, not $100 billion. Assume that instead of about $2,000 per employee per year, it would have been, say, $1,000. For a firm of 10 people-the size of the average independent agency-that’s still 10-grand a year. These days, you’d better have a compelling reason if you’re proposing something that would add a five-figure cost to the average small business.

In short, business of all stripes got a big victory and Republicans had to expend minimal political capital to deliver it.

It’s not quite that cut-and-dried, though.

Ergonomics may not be sexy as an issue-okay, it could walk through the room in the most revealing of outfits and no one’s head would turn-but “carpal tunnel syndrome” is a buzz term that gets people’s attention. Articles about the repeal invariably included the term in the first couple of paragraphs. There’s also the not-insignificant factor that carpal tunnel is an equal opportunity affliction, particularly as more and more people make their livings at computer terminals.

Furthermore, given the lack of resources available to them, workers at smaller businesses are more prone to suffering the effects of carpal tunnel without having the proper on-the-job training that is provided by many larger firms. In its clumsy, costly way, the OSHA regulation would have helped correct this imbalance-unfortunately at the cost of the jobs of many of the employees the regulation was designed to aid the most.

In celebrating the death of the OSHA rule, businesses large and particularly small know the fight is hardly over. Business groups-associations in particular-are going to have to be more proactive in bringing workplace safety programs, seminars, etc., to their members.

In an ironic and politically calculated announcement on the day the House voted to repeal the OSHA regulation, the National Association of Independent Insurers publicized its joint sponsorship with OSHA of a series of work safety risk management courses geared toward small businesses. The seminars are part of an NAII-OSHA pilot program to reach out to businesses that lack access to effective risk management techniques.

Expect to hear more about similar pilot programs, or expect to hear a lot of clamoring to bring back the now-dead regulation. Such pilot programs shouldn’t be a tough sell, particularly given the state of the workers’ comp market.

(“Do you want to save money on your workers’ compensation insurance?”

“Well, yeah, actually, we do. Tell us more.”)

While the OSHA regulation may have been too much, too soon, it was certainly filled with noble intent. Its execution, creating mandates, was the problem. It’s not unreasonable to expect that some of the regulation’s provisions, especially the educational aspects, will eventually become requirements.

For the moment, the ball is in the court of business. It won’t be there for long.

Topics Legislation Workers' Compensation