By Cindy Skrzycki
Tuesday, November 20, 2007
Construction companies, which won an exemption from a Clinton administration rule intended to protect workers from heavy lifting and other repetitive-motion injuries, are trying to kill off a new voluntary industry standard.
Five trade groups representing U.S. residential and commercial builders filed an appeal on Nov. 9 of an ergonomics measure adopted by the nonprofit American National Standards Institute, which uses safety professionals and labor and industry to develop rules. There is no penalty if employers ignore the standards.
"It strains credulity to assert that a voluntary consensus standard exists in the face of opposition by the construction industry employers,'' the appeal said. Some issues "are so contentious they do not lend themselves to the development of consensus standards.''
The regulation of ergonomics -- the relationship of workers to their physical environment -- has been a decade-long battleground involving Congress, business, labor and government. The Labor Department said in 2001 that more than 600,000 workers a year had to take time off because of ergonomic-related injuries. Congress that year overturned a Clinton administration rule designed to prevent such injuries.
Since then, business groups have been vigilant in preventing most formal regulation at the state or federal level. Most of them don't support the voluntary ergonomic "guidelines'' that the Occupational Safety and Health Administration has issued covering poultry processing, grocery stores and nursing homes.
The five trade groups will "do whatever they can to stop an ergonomics standard,'' said Frank Burg, a safety consultant who worked on the voluntary rule. "We reached out to these people and put 90 percent of what they wanted in the standard.''
The American Society of Safety Engineers, a trade group in Des Plaines, Ill., oversaw the process that led to the institute's adoption of the rule on June 4. The appeal will be decided in February.
The issue carries more weight now because of the industry's concern that a Democrat might take the White House and resurrect an enforceable federal ergonomics standard. Almost all the Democratic presidential candidates are on record saying they support protecting workers from such injuries.
The construction industry also fears that OSHA might use the Washington-based institute's voluntary rule as a basis for citing employers for infractions under its general safety regulations, or as a model for a future rule.
About half the 9,529 voluntary standards adopted by the standards institute over the years have been used to support federal rules, said Stacy Leistner, a spokesman for the institute.
Strains and sprains account for 35 percent of the work days lost in construction, said Laura Welch, medical director for the Center for Construction Research and Training of Silver Spring, which is affiliated with trade unions. Three-quarters of the incidents are due to overexertion.
According to Labor Department data, there were 52,880 cases of strains and sprains among the nation's 11 million construction workers last year. This is a decline from 57,310 reports in 2004.
The standards institute tried in 2002 to create a general voluntary ergonomics standard. It fell the next year to a challenge by the U.S. Chamber of Commerce and other business interests, on the grounds that proper consensus hadn't been reached.
The institute's construction standard offers tools to employers to evaluate and fix workplace hazards. It suggests bringing work to waist height so employees won't have to bend over; using lighter packages of building materials; and providing rest breaks and job rotation for repetitive tasks.
Scott Schneider, director of occupational safety and health for the Laborers' Health and Safety Fund of North America, a management and labor group based in Washington, said, "Every study we had seen and every company who has instituted such programs have noted the benefits in terms of fewer injuries, less severe injuries and increased productivity.'' Schneider was a member of the committee that developed the voluntary standard.
To try to appease the industry, the standard says ergonomic fixes might reduce the risk of injury, even though eliminating them may not be possible because of "non-occupational risk factors.''
Michael Kennedy, general counsel for the Associated General Contractors of America, in Arlington, said, "Soft-tissue injuries are taken seriously, and we are trying to reduce them.'' His group is one of those appealing.
The general contractors have a "soft-tissue injury-reduction program'' that stresses stretching and being in the correct position to lift and carry.
The industry appeal asks for "immediate withdrawal of the standard,'' claiming the 74-member committee was dominated by pro-ergonomic forces that didn't represent a true consensus. The 76 percent favorable vote for the rule didn't amount to the necessary substantial agreement, the brief said, because the process was riddled with "fatal procedural deficiencies'' that didn't offer due process to the construction industry.
"Safety standards should not resemble a game of Whack-a-Mole,'' the industry appeal said, citing previous attempts to create an ergonomics standard.
Cindy Skrzycki is a regulatory columnist with Bloomberg News. She can be reached atcskrzycki@bloomberg.net.
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