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Employers wary of changes in approach, focus at OSHA

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WASHINGTON—Employers are concerned about changes at the Occupational Safety and Health Administration, including a shift to more aggressive enforcement and increased attention to musculoskeletal disorders.

Fueling some concerns was a proposal last week by the Department of Labor and OSHA to require that employers report worker musculoskeletal disorders, known as MSDs, as part of their Form 300 injury logs.

Employer organizations said they fear that the increased MSD reporting could set the stage for mandatory workplace ergonomics standards.

“While the department has indicated that they do not intend to pursue regulatory actions on an ergonomics standard, we see (that) the development and request for this data would definitely be part of those efforts to develop such,” said Keith Smith, director of employment and labor policy for the National Assn. of Manufacturers in Washington.

“The only reason why OSHA would want to capture that data is to build a case for doing something on ergonomics,” said Marc Freedman, executive director for labor law policy at the U.S. Chamber of Commerce in Washington. “Whether it's a full-blown regulation or some other approach, we don't know. But it's abundantly clear they want that data for the purpose of moving forward on some approach regarding ergonomics.”

Employers fought an ergonomics rule adopted during the Clinton administration. Among other measures, the Clinton plan would have required employer payments for employees who could not work due to MSDs (BI, April 15, 2002).

However, a Republican-led Congress rescinded the mandatory ergonomics standards rule during the Bush administration.

Last week, during a Web chat to discuss OSHA's new agenda, acting Assistant Secretary of Labor Jordan Barab said “musculoskeletal injuries are one of the biggest worker health and safety problem in this country” and “a complicated regulatory and political issue, which this agency is considering,”

Placing an MSD column on the mandatory OSHA injury log would be valuable to assess safety conditions nationally and at individual workplaces, Mr. Barab said.

However, he also said OSHA's plan “is not a prelude for a broader ergonomics standard.” He said at this time, OSHA has no plans to pursue ergonomics regulation, although addressing the musculoskeletal issue remains a high priority.

Reporting injuries does not necessarily mean there would be an ergonomics standard and OSHA probably has not yet determined its regulatory approach to address the issue, said Bradford T. Hammock, an attorney who represents employers and specializes in workplace safety compliance and government relations at Jackson Lewis L.L.P. in Reston, Va.

“On the other hand, there are going to be a number of people, in the employer community in particular, that believe this is the first step towards revisiting ergonomics from a regulatory perspective,” Mr. Hammock said.

Just attempting to define MSDs can be controversial and determining whether a repetitive stress injury is work-related remains a very difficult challenge for employers, he said.

OSHA released its new agenda last week, the same week David Michaels started on the job as the Obama administration's new assistant secretary of labor (see box).

Several OSHA observers in Washington said they expect Mr. Michaels to maintain the course already laid out by Mr. Barab and Labor Secretary Hilda Solis. The U.S. Senate on Dec. 3 confirmed Mr. Michaels' appointment without a public hearing, a hearing NAM requested to assess his views on OSHA's possible stance on issues such as ergonomics.

“Unfortunately, the response came in the form of a confirmation without a hearing,” said Keith Smith, director of employment labor for NAM. “While we (did not) oppose his nomination...we see, with the direction OSHA appears to be going, a lot of questions that should have been raised in a public forum.”

One employer concern is that OSHA could emphasize enforcement to the detriment of programs that have stressed improving workplace safety through volunteer efforts and cooperation between OSHA and employers.

That concern stems directly from OSHA's statements.

Last summer, for example, Mr. Barab told the American Society of Safety Engineers that the labor secretary had said “that we will turn our energies from voluntary programs to enforcement.”

But Mr. Barab also said OSHA was not eliminating its voluntary programs and partnerships with employers.

“But the days of signing companies into (voluntary programs) just to fill arbitrary goals...are over,” Mr. Barab said. He also said the days of delayed rulemaking and of “starving” OSHA's budget are over.

In fact, OSHA's 2010 budget has been increased to hire 130 new inspectors, he said.

“The messaging has been very strong that they will be ramping up enforcement” the Chamber's Mr. Freedman said.

“They have essentially said they don't believe the cooperative relationships and partnerships...were productive and they want to rely on enforcement,” he said.

Enforcement plays an important role, but helping employers and providing resources to improve safety practices also is vital, he said.

Under the current administration, OSHA is likely to take a tougher stance on egregious cases, settling them less often while placing less emphasis on cooperative programs, said Dave Heidorn, manager of government affairs and policy for the American Society of Safety Engineers in Des Plaines, Ill.

But it's unlikely that the cooperative programs would be eliminated, and many large employers' safety programs often are driven by reducing costly losses, not just concerns about OSHA enforcement actions, Mr. Heidorn said.