The NAM and 18 other leading employer organizations sent the Occupational Safety and Health Administration (OSHA) extensive comments to reflect our concerns with the agency’s proposed rulemaking on the recordkeeping of musculoskeletal disorders (MSDs). As we detail in our comments, despite many years of study and research, the scientific community remains unable to reliably define, diagnose or determine the cause of MSDs, or identify appropriate remedial measures with any degree of precision.

This proposal would require employers to implement a new regimen for recording injuries and illnesses in the workplace.

Our response explains our substantial concerns with the proposed rulemaking and argue that OSHA should withdraw the proposal entirely, including:

In light of the obvious inability to define, diagnose or determine the cause of MSDs with any degree of precision, the logical conclusion, mandated by the applicable OSH Act criteria, is that OSHA must acknowledge the limitations it faces in implementing a workable MSD provision in Part 1904 consistent with its statutory authority and withdraw the Proposed Rule. There simply is no medically and scientifically supported definition for the injuries that OSHA expects employers to record. OSHA’s attempt to establish an MSD column for the OSHA 300 Log fails to serve any useful purpose and would only lead to an inappropriate misallocation of resources that would detract from efforts to advance workplace safety and health in the United States. OSHA’s cost estimate for this proposal strained credulity and the agency utterly failed to provide an adequate factual basis for the certification necessary to avoid having to comply with the Regulatory Flexibility Act as amended by the Small Business Regulatory Enforcement Fairness Act. Finally, the Federal Register notice was defective as OSHA mischaracterized the scope of this proposal and failed to acknowledge the critical recharacterization of MSDs from injuries to illnesses affected by language in the preamble. We urge OSHA to abandon this ill-fated attempt to classify that which is impossible objectively to verify or categorize.

If put into effect, this proposal will pose a considerable burden on employers, and the data that it seeks to collect will be inaccurate and not useful. The rule would force employers to make medical determinations regarding the “work relatedness” of potential MSDs that are often difficult for even medical professionals to determine. Employer compliance costs would rise as companies would be forced to devote extensive time and resources to implementing the new recordkeeping requirements.

To view these comments, click here.

A Department of Labor event March 9, 2010, “OSHA Recordkeeping MSD Proposal Public Hearing“:

Description: The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) is hosting a public hearing on a proposal to revise its Occupational Injury and Illness Recording and Reporting regulation by restoring a column on the OSHA Form 300 to better identify work-related musculoskeletal disorders (MSDs).

The event starts at 9 a.m. at the Department of Labor building.

Remarks by David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, on Feb. 3 at a meeting of ORC Worldwide:

First: OSHA has proposed revising its recordkeeping regulation to restore the column for musculoskeletal disorders (MSD’s) on the OSHA 300 Log that employers use to record workplace injuries and illnesses. The proposed rule would require employers to check the MSD column if the case is recordable under the regulation’s general requirements and the case meets the definition of an MSD. It appears from press reports that our announcement of this effort may have confused some observers. So, let me be clear: This is not a prelude to a broader ergonomics standard. OSHA is simply restoring the musculoskeletal disorders column to the OSHA 300 log as the recordkeeping standard, issued in 2001, originally intended.

MSD’s continue to be a major problem for American workers. They’re real and they’re hurting a lot of people. OSHA believes that putting the MSD column back on the log will improve the Nation’s occupational injury and illness statistics as well as provide useful information that workers and employers can use to better identify musculoskeletal disorders in their workplaces. However, at this time, OSHA has no plans for regulatory activity.

We note the “at this time,” a oft-used rhetorical hedge.

From The Hunton & Williams LLP Labor Policy Task Force’s blog, “Telling Signs That Ergonomic Regulations Are Making A Comeback“:

The Obama Administration recently proposed requirements to ensure that U.S. companies keep more extensive records of repetitive stress and other types of workplace injuries.  This is one of several signs that employers will face more regulation related to “ergonomics,” or the design and functioning of work spaces, equipment, and tasks in such a manner as to avoid such injuries.

The Occupational Safety and Health Administration (“OSHA” or the “Agency”) recently announced its intent to reinstate the “musculoskeletal disorder” column on its injury and illness 300 Form.  The Agency is also developing a proposed rule to add a definition of musculoskeletal disorders to the Occupational Safety and Health Act (the “Act”).  A notice of the proposed rule-making and opportunity for public comment will be issued in January 2010.

Yes, we see the same signs.

The post notes the OSHA had previously evaluated ergonomic issues by using the General Duty Clause of the Occupational Safety and Health Act. In 2001, OSHA eliminated the musculoskeletal disorder checkbox on the 300 Form, the result of a 2001 settlement agreement with the NAM and others. For a summary of that agreement in National Association of Manufacturers v. Chao, see the NAM’s Legal Beagle entry.

Business Insurance covered the ergonomics issue in a December report, “Employers wary of changes in approach, focus at OSHA.” See also Media Health Leaders, “OSHA Protections May Include Airborne Infectious Disease, Safe Patient Handling.”

Kudos to the Obama Administration and the Department of Labor for conducting webchats about the department and its sub-cabinet agencies’ regulatory agendas on Monday. They seemed to work well and provided useful information. (Earlier post.)

We’ll admit to be frustrated by the online comments from Jordan Barab, the acting administrator of the Occupational Safety and Health Administration (OSHA), on the topic of ergonomics. Next week Barab will become deputy administrator after the newly confirmed David Michaels assumes the top spot. This week, he offered conflicting commentary on whether the agency would propose new ergonomics regulations.

Here are two exchanges:

Monday December 7, 2009 4:08

[Comment From Judie Smithers] From the Secretary’s chat: The agenda has an entry at the proposed rule stage to add requirements to record musculoskeletal disorders in a separate column on the 300 log. Does this signifiy that OSHA is considering future action to promulgate an ergonomics standard?

Jordan : Judie, This is not a prelude to a broader ergonomics standard. No, we are simply putting the MSD column back on the OSHA log as was originally intended in the 2001 issuance of OSHA’s recordkeeping standard. MSDs continue to be a major problem for American workers, but at this time, OSHA has no plans for regulatory activity.

Monday December 7, 2009 4:32

[Comment From Holly] In a speech recently, you called ergonomics a “huge health and safety problem” and said the govt must “take the field and make some fundamental changes.” Given these comments, why WOULDN’T OSHA have plans for regulatory activity?

Jordan: Holly: You’re right. I called musculoskeletal disorders a “huge health and safety problem.” I also called it a “huge political issue” and that we are in the process of determining how we are going to address it. Our new Assistant Secretary will arrive later this week, and we will intensify the process of determining how we are going to address ergonomics.

So OSHA has no plans for a new ergonomics rule, but it might have plans next week after Michaels arrives? Repetitive stress disorders are a “huge health and safety problem,” but OSHA’s goal now is merely to “intensify the process?” What in the world is “intensify the process”?

Since Barab’s all over the map in those responses, let’s pin him down to Milwaukee, Wisc., where he gave a speech to the AFL-CIO on September 25, the speech that commenter Holly cites in her question.

Here’s what he said to the labor audience, with lawyers the primary constituency for new rules:

And soon we must confront the 60,000-pound elephant in the room: Ergonomics. Let’s acknowledge a couple of obvious things about “ergo.” First, it’s a huge health and safety problem, recognized by strong science. Second, it’s a huge political football that some very big players don’t want to see on the field. Well, for the sake of our working men and women, we have to take the field and make some fundamental changes in America’s workplaces.

That sounds like OSHA will propose a new rule, doesn’t it? The Clinton Administration used a “midnight regulation” to establish an ergonomics standard in 2001, repealed by Congress using the Congressional Review Act because of the rule’s multi-billion-dollar cost, ambiguity, and potential to destroy jobs.

We’ve put more of Barab’s map-skittering responses in the extended entry below. Judging from the answers, we suspect that if OSHA issues a new rule — President Obama’s inclination as announced on the campaign trail — it will try to disguise its costs and burdens to escape political backlash.

It’s a shame the Senate HELP Committee could not manage to hold a confirmation hearing for David Michaels to allowing a public examination of issues like ergonomics. Well, welcome aboard, Mr. Assistant Secretary.

(continue reading…)

Secretary of Labor Hilda Solis did a web chat today coinciding with the Department’s release of its semi-annual regulatory agenda. It’s a pretty good one, as these things go.

Two Q&As struck us as a measure of the agency’s priorities.

2:28 [Comment From Greg Hellman, BNAGreg Hellman, BNA: ]
Hello Secretary Solis, OSHA announced it plans to publish a proposed rule on adding column on its 300 log for recording musculoskeletal disorders. Is this a prelude to a broader ergonomics regulation?

Monday December 7, 2009 2:28 Greg Hellman, BNA
2:28 Secretary Solis: Greg, thank you for the question. No. This is not a prelude to a broader ergonomic standard. We are simply putting the MSD column back on the OSHA log as was originally intended in the 2001 issuance of OSHA’s recordkeeping standard. MSDs continue to be a major problem for American workers, but at this time, OSHA has no plans for regulatory activity.

And …

2:59 [Comment From Sarah PayntaxesSarah Payntaxes: ]
Secretary Solis: Will EFCA pass next year!

Monday December 7, 2009 2:59 Sarah Payntaxes
2:59 Secretary Solis: The president and I are both on the record that we support the Employee Free Choice Act. It’s now up to the Congress.

Boy, she didn’t even bother with the boilerplate pro-union rhetoric there.

Peter Kirsanow, a Cleveland attorney and former member of the National Labor Relations Board, is a keen observer of both the legal and political aspects of the Employee Free Choice Act, so we take his latest commentary at National Review’s The Corner seriously. It’s speculation, to be sure, but worth considering.

Kirsanow suspects the references in Senator Specter’s announcement about “equal access” could be the signs of what labor would call a “compromise” in the making.

From “The EFCA-Lite Trap“:

The timing of Senator Specter’s remarks is interesting. When EFCA was reintroduced in both Houses two weeks ago, Senator Harkin repeatedly invoked “equal access,” as if to signal a possible compromise based on that concept. Almost contemporaneously, Representative Sestak (D, Pa.) introduced an alternative bill that featured equal access. Last weekend, compromise proposals were floated that incorporated some of the elements Sen. Specter would be willing to consider, including equal access. And SEIU president Andy Stern (possibly the most influential EFCA supporter) is quoted in the current issue of Business Week as understanding that EFCA might need to be changed to secure passage.

It’s doubtful this flurry of activity is mere coincidence. The EFCA campaign is about to proceed to another level. Employers should be prepared to address the implications of quickie elections, equal access, and limited-interest arbitration — the combination of which would amount to “EFCA Lite.”

The elimination of secret-ballot elections was the big drag on EFCA’s prospects for passage. Now that card check may be off the table, EFCA opponents have lost their most effective talking point. Consequently, wavering senators may now be more inclined to vote for the remaining provisions of EFCA, plus quickie-election/equal-access provisions that make union organization almost as easy as card check.

Senator Specter’s announcement merely concludes Round Two.

Kirsanow is reading too much into the flurry, we think. Rep. Sestak (D-PA) introduced his bill (H.R. 1355) a week before card check, had no cosponsors, heard from the unions and cosponsored EFCA (H.R. 1409). Not really a factor.

Business groups like the NAM and our allies at the Coalition for a Democratic Workplace are NOT declaring victory and surrendering the playing field to organized labor on the bill. The unions, meanwhile, will set their sites on Senate elections 2010 in an attempt to get to 62 or 63 Senators and then ram the bill through.

Yes, efforts will likely continue to pass other bargaining-related legislation this Congress. Still, it’s our sense that Sen. Specter’s decision now frees up organized labor and their congressional allies to pursue other parts of labor’s agenda — things like paid family and medical leave, comparable worth and even new ergonomics standards. Even while the Employee Free Choice Act was being fought over prior to its introduction, organized labor was winning many legislative fights — such as inclusion of Davis-Bacon wage provisions in the stimulus bill. Card check remains a fight, but different battlefields are coming into view.