A New Federal Mandate: Don't Work Too Hard

By Eugene Scalia
Copyright 1999 Wall Street Journal
March 1, 1999

The Clinton administration wants to slow your business down. Or so it appears from the draft "ergonomics" rule the Occupational Safety and Health Administration released recently with much ballyhoo. The rule would regulate the pace of work, the number of workers assigned to tasks and the duration and number of employee rest periods. It would also require companies to "redesign" tools, equipment, even entire "facilities." Employees could get special light-duty jobs for up to six months, while keeping their regular pay and benefits.

The rule, announced Feb. 19, would be the most sweeping regulation in the history of OSHA and perhaps any federal agency. Yet it relies on doubtful evidence that repeatedly has flunked the courts' "junk science" test.

OSHA's premise is that repetitive motion, lifting and other physical tasks cause "musculoskeletal disorders" such as carpal tunnel syndrome, muscle strains, and low back pain. Leading physicians and medical associations dispute that premise. The California Orthopedic Association opposed an ergonomics rule in that state on the ground that "no convincing scientific studies ... show that repetitive strain injury exists." The American Society for Hand Surgery told OSHA that "current medical literature does not ... establish a causal relationship between specific work activities and the development of well-recognized disease entities." It warned: "Premature rules ... could prove deleterious to the physical and psychological well-being of workers."

Even OSHA's research arm -- the National Institute for Occupational Safety and Health -- concedes that the cause of back pain rarely can be identified. OSHA lost one high-profile case when the judge found "no reliable epidemiological evidence establishing lifting as a cause" of low back pain.

More devastating still to OSHA's regulatory ambitions, "ergonomists" who accept the agency's medical premise cannot pinpoint the conditions they believe caused a supposed ailment in any given instance, and therefore cannot identify the preventive measures that are necessary. Here's the blunt assessment of a leading ergonomics manual: "It is difficult to try and prevent low-back injuries when no one really knows what causes them."

OSHA's new push for ergonomics regulation follows a series of stunning setbacks in every ergonomics case it litigated to judgment. As noted, in one case OSHA could not prove that lifting causes back injury. In its biggest case to date, the agency spent years investigating and prosecuting a Pepperidge Farm cookie-making operation to force it to hire more employees, reduce the pace of production or automate. It called the nation's leading ergonomists to testify, yet the commission hearing the case ruled that this all-star cast failed to identify a single ergonomic measure that Pepperidge Farm should have implemented but did not.

In OSHA's most recent and embarrassing loss, the judge used the Supreme Court's junk science test to throw out testimony by OSHA's ergonomics expert witnesses. In numerous civil suits, too, federal judges have barred testimony by ergonomists, who are not medical doctors.

It takes chutzpah for OSHA to pursue a nationwide ergonomics rule in the face of these losses. Leading ergonomists spent months in these cases focusing on specific companies and specific perceived hazards -- and even with such an intense effort, the agency could not make the case for ergonomic remedies. Now OSHA wants to take what it could not establish on a case-by-case basis and convert it to a rule of general applicability.

OSHA's draft rule shows how little the agency or anyone else knows about ergonomics. The rule would require companies to take extensive remedial steps in the event of ergonomic "hazards." Yet OSHA can't define ergonomic hazards any more specifically than saying they're conditions that may "cause or contribute to" ergonomic ailments. Big help!

The ailments that trigger the rule don't have to be actual injuries -- back "pain" is enough. Nor does work have to be the cause; if it "contributes" to back pain, employers may have to reduce their work pace or build a whole new conveyer system. Since 80% of Americans experience back pain and Americans spend more waking hours at work than anywhere else, nearly all American workplaces will have to start gearing up to gear down under OSHA's new rule. Individual companies have estimated their compliance costs in the hundreds of millions of dollars, and the rule's total cost easily will run into the billions.

OSHA's brainstorm still needs approval from the White House. One hopes it will get a close look. Perhaps the vice president will see that a "slower pace" for American business is a poor prescription for his own future success.

Eugene Scalia is a Washington lawyer.

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