Proposed ergonomics rule spells major headache for trucking
As it now stands, the federal ergonomics rule being proposed by the Occupational Safety and Health Administration (OSHA) poses a royal - and expensive - pain for truck fleets.
First, some facts. If it becomes law, the ergonomics proposal will be a performance-based standard. That is, there won't be black-and-white regs to follow to be in compliance. Rather, there will be a fuzzier workplace target - the reduction of "musculoskeletal disorders" (MSDs) - to keep in sight.
MSDs primarily involve back injuries and carpal-tunnel syndrome, but can include any injury to muscles, tendons, ligaments, joint cartilage, and spinal discs. To be regarded as an MSD by OSHA, the injury must be work-related, diagnosed by a heath-care practitioner, and require both medical treatment and time off for recovery.
Trucking industry workers most likely to be covered by the rule would be those involved in moving freight and delivering packages. At this point, it's far less clear if drivers could claim MSDs are caused by truck vibration. But the proposal does point out potential problems could result from "driving for several hours without a break."
Two programs As the proposal is now written, employers will have to comply with one of two programs, Basic or Full. For employers whose workers have not yet sustained an MSD, the Basic program will suffice. This requires that someone be named responsible for ergonomic training. In addition, employees must be furnished periodically with information on risk factors (such as improper lifting) and how to recognize symptoms of MSDs.
The Full program is required when workplaces experience MSDs. Once that happens, employers must analyze "problem jobs" for ergonomic risks; work with employees to cut down MSD hazards; provide protective equipment; establish training programs; and track their progress.
Provisions for time off after an injury are among the most objectionable aspects of the proposal for employers. The rule would allow workers to get time off for recovery at 90% of pay and 100% of benefits for up to six months. And injured workers switched to lighter duties would get full pay and benefits.
One saving grace of the proposal is its "Quick Fix" option. This provides for no further action if an employer addresses an ergonomic issue within 90 days and can verify that its "fix" worked.
The other good news for employers is a grandfather clause. According to OSHA, firms that already have ergonomic injury-prevention programs in place don't have to start from scratch.
That is if, in the eyes of OSHA, their programs meet the obligations of the new standard to "eliminate or materially reduce" MSD hazards. And, naturally, the programs must be implemented before the effective date of the ergonomic rule.
According to OSHA's boss, Secretary of Labor Alexis Herman, MSDs "are the most prevalent, most expensive, and most preventable workplace injuries in the country."
No applause In a nutshell that's why, without any specific mandate from Congress, OSHA chose to embark on this road. Unfortunately, no one subject to the new rules has yet applauded anything they've seen or heard from the agency on the ergonomics proposal.
For example, according to Dirk Van Dongen, president of the National Assn. of Wholesaler-Distributors (NAW), the proposal does not take into consideration that there is "insufficient science to support the conditions and risk factors that would be regulated by the standard." Van Dongen also calls the proposal too vague and disagrees with its work-restriction provisions.
Like NAW, most industry groups opposed to the proposal argue that it is scientifically invalid. Many say OSHA should at least wait until the National Academy of Sciences releases its report on ergonomics, which is due in a few months. It is expected this report will contain definitive scientific data on ergonomic injuries, which critics say the OSHA proposal lacks.
Also taking a strong stand against the proposal is the American Trucking Assns. (ATA). For starters, ATA contends that OSHA has grossly underestimated the cost of complying with the proposal. OSHA states it will cost all of American business $4.2 billion to comply. But ATA says it will cost trucking $6.5 billion alone.
And ATA is not alone in its high cost-figuring. For example, the American Moving & Storage Assn. (AMSA) expects the proposal's impact on truck and warehouse crews to cost the moving industry $3.6 billion a year. What's more, AMSA estimates the rule will knock labor productivity down by a whopping 26%.
Unworkable rule Echoing the concerns many a truck fleet will no doubt have, AMSA also declares the rule will be unworkable for "a work force whose 'workstation' constantly changes, from day to day, house to house."
Also weighing in on the proposal's potentially sky-high cost is the Food Distributors International (FDI) group, which represents 242 grocery wholesale and food-service distribution companies. Kevin Burke, FDI's vp-government relations, says the rule would cost its members alone up to $26 billion the first year and $6 billion a year from then on.
"In our industry," says Burke, "many companies will be forced to accept lower production and efficiency at best. In many cases, they will be required to reconfigure their warehouse facilities and jobs. All because OSHA says so, not because there is any scientific basis for its decision."
And according to Dan Raftery, president of Prime Consulting Inc., which performed the cost analysis for FDI, those figures don't tell the whole story.
"Depending on the approach taken by an individual OSHA compliance officer," Raftery contends, "to comply a company could be placed at a severe competitive disadvantage - or could be forced out of business." And he says distributors that survive the regulation would be compelled to pass the high cost of compliance onto customers.
Trucking's specific viewpoint on the proposal is being forcefully made by ATA. Stuart Flatow, the association's director of occupational safety & health, declares that "every person in trucking" has something to fear from the proposal when it becomes a rule, "whether they be an LTL or TL carrier, a maintenance provider, or an insurance carrier."
Driving at risk In addition to the obvious tie-in to MSDs that freight handling suggests, Flatow points out there are at least five references in the proposal to "whole-body vibration" that could implicate over-the-road truck driving as an MSD risk factor.
"Among the cost-scenario breakdowns in the proposal," he relates, "is a $500 per unit 'seat modification' for bus drivers. It would not be hard for OSHA to extrapolate that to apply to truck drivers. The proposal also speaks of the repetitious shifting experienced by crane operators. It would not be a stretch for the agency to extend that to OTR drivers."
Flatow says ATA finds fault with the "vagueness" of the rule, which he says means its interpretation will be at the discretion of the individual OSHA compliance officer. "There won't be prior notice of what's required," he states, "leaving employers to experiment - and making them vulnerable to tort and product-liability litigation.
"ATA also objects to the proposal's work-restriction provisions," Flatow continues, "because it opens the door to fraud and could prevent getting to the root cause of an injury" by too readily declaring it work-related.
"It will amount to the agency micro-managing and second-guessing fleet management. This provision," Flatow adds, "can be seen as an attempt to federalize the worker's comp system and have it run by OSHA."
It's laudable for industry interest groups to fight together against excessive or poorly thought out regulations, either to change them or stop them dead in their tracks. But individual companies that will be affected by the final rule stand to lose more if they wait for the regulatory dust to settle before acting.
That's so for two reasons. Number one, this regulation has been building for years and shows no sign of going away or being significantly watered down by the ongoing comment-and-hearing stage of the rulemaking.
Number two, OSHA has already put the aforementioned grandfather clause into the proposal. That should make compliance easier for companies with an ergonomic injury-prevention program in place before the new rule kicks in.
Good news The good news is there's plenty of time for truck fleets to act in their own best interests by getting a jump on the rule.
Under OSHA's presumed timetable, the proposal will not become a final rule before January 2001. Once the rule's set in stone, it won't be enforced for 60 days. Even then, OSHA plans to roll out various components of the program over a three-year timeframe.
Like most regulations, the proposal runs to many, many pages. It boils down in OSHA's words to a standard that "relies on a practical, flexible approach that reflects industry best practices and focuses on jobs where problems are severe and solutions well understood."
More specifically, the rule would require general industry employers "to address ergonomics - the fit between the worker and work - for manual handling or manufacturing production jobs. Employers also would need to fix other jobs where employees experience work-related musculoskeletal disorders."
The phrase "manual handling" clearly delivers this proposal right to trucking's doorstep. At least that much is obvious. What's less evident, and therefore more devilish, is the latter aspect of the rule that opens compliance up to any employer that has an employee - even just one - who reports a workplace-related MSD.
Indeed, the biggest objection stated by the rule's opponents is that its kick-in provisions are hard to pin down.
What a pain In other words, a truck fleet could take all meaningful precautions to prevent MSDs from afflicting its dockhands and other freight handlers, such as by providing the best equipment and training for injury prevention. Yet, if one mechanic wrenched his back or a driver complained that vibration caused his shift hand to ache, then those workplace areas would potentially come under ergonomic scrutiny by OSHA inspectors.
What's more, the damage could extend to the courtroom where attorneys for worker's comp plaintiffs could argue the employer was negligent for not meeting the OSHA standard before the MSD injury in question occurred.
Lawyers around the country engaged in liability lawsuits of one sort or another against truck fleets already use industry, let alone regulatory, "best practices" against defendants.
Besides planning their own ergonomic programs to put in place before the new rule becomes effective, the best thing truck fleet managers can do now is make their voice heard on the proposal's shortcomings through associations like ATA and the National Private Truck Council (NPTC).
Regrettably, when convinced to add to the period for written comments, OSHA only extended it by 30 days. That deadline ran out on March 2.
However, public hearings will be conducted between March 13 and May 3 in several cities. After that, it will be OSHA's turn to complete the proposal and issue its final rule, which is expected to hit the industry the first of the year.