The American Insurance Association (AIA) has joined the National Coalition on Ergonomics in submitting comments to the Occupational Safety and Health Administration (OSHA), urging the federal agency to base examination of ergonomic injuries in the workplace on sound scientific evidence.
Ken Stoller, AIA counsel, stated that without any consensus from the scientific community on the objective causes or a workable definition of ergonomic injuries, it would be “irrational” and “absurd” for OSHA to impose an ergonomics standard imposing “convoluted requirements and prohibitive expenses” on the business community.
After Congress repealed the Clinton Administration’s OSHA ergonomics regulation this spring, Secretary of Labor Elaine Chao began a logical and comprehensive process by which to address ergonomics in the workplace, beginning with building consensus on answers to three critical questions:
* What is an ergonomics injury?
* How can OSHA, employers and employees determine whether an ergonomics injury was caused by work-related activities; and, if the ergonomics injury was caused by a combination of the two, what is the appropriate response?
* What are the most useful and cost-effective types of government involvement to address workplace ergonomic injuries?
The Coalition’s comments, supported by a strong, diverse group of more than 100 organizations and businesses, provide answers to these questions, and conclude that knowledge gaps make ergonomics non-regulatable. Because the definition of ergonomics injuries remains vague, and scientific evidence citing workplace causation is scant, OSHA should steer clear of setting any standard and consider information initiatives to encourage voluntary adoption of good ergonomic practices.
The comments note: “The 1997 National Institute for Occupational Safety and Health report and the 1998 and 2001 National Academy of Sciences (NAS) reports do not support the simplistic conclusions that some regulatory proponents would like to draw from them.” None of the studies concluded ergonomics injuries could be exclusively linked to working conditions.
Stoller noted that any administrative action should be informed by the most recent NAS study, which indicates that efforts to reduce repetition and other causes of ergonomic injuries “are best suited to the individual situation” confronted by each worker and “no single strategy is or will be effective for all types of industry.” Stoller added that there is currently no practical and cost-effective type of government involvement to address workplace ergonomic injuries.
AIA’s support of sound science and loss prevention complements its opposition to OSHA-mandated compensation provisions that infringe on workers’ compensation. AIA submitted comments to OSHA on the workers’ comp issue in July.
According to the AIA, OSHA is expressly prohibited by the Occupational Safety and Health Act (OSH Act) from adopting regulations that “supersede” or “affect in any manner” workers’ comp. AIA coordinated a lawsuit against OSHA on behalf of major property and casualty insurers and employers after the proposed OSHA ergonomics regulations were issued last November. It was the only legal challenge among many that solely challenged the regulation’s so-called “work restriction protection” (WRP) provisions of the rule, contending that they breached OSHA’s statutory mandate by interfering with state workers’ comp laws. This interference included mandating payments for medical evaluation and treatment, and lost wages for qualifying “musculoskeletal disorders – mirroring payments under workers’ compensation laws.” The Small Business Administration estimated annual cost increases from WRP benefits at more than $2 billion.
Because the regulation was repealed under the Congressional Review Act, OSHA is prohibited under that Act from issuing any new regulation that is “substantially similar” to the regulation that was repealed.
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