Comments of The Society of the Plastics Industry, Inc.
Submitted August 3, 2001,
to the U.S. Department of Labor,
Occupational Safety and Health Administration

Re: Docket S-777A, Public Forum on Ergonomics

The Society of the Plastics Industry, Inc. (SPI) appreciates this opportunity to provide comments to the Department of Labor (DOL) regarding the development of its comprehensive approach for addressing ergonomic hazards in the workplace.

In our comments, we first summarize SPI's general policy regarding ergonomics. Second, we evaluate and express our support for the six framework principles established by the Secretary for developing a comprehensive approach to workplace ergonomics. Third, we address the three questions posed by the Department's June 12, 2001, Request for Comments. See 66 Fed. Reg. 31694-31695. Finally, based on the application of those principles, these comments explain why we believe the Occupational Safety and Health Administration (OSHA) should adopt an approach that encourages and assists employers and employees in implementing good ergonomic practices, and why we believe an enforceable standard would be both pre-mature and counterproductive.

I. INTRODUCTION

Founded in 1937, SPI is the trade association representing one of the largest manufacturing industries in the United States. SPI's approximately 1,500 members represent the entire plastics industry supply chain, including processors, machinery and equipment manufacturers and raw material suppliers. The U.S. plastics industry employs 1.5 million workers and annually produces goods with an approximate aggregate value of $304 billion. For more information on SPI, please visit our web site at www.plasticsindustry.org.

SPI believes ergonomic principles are beneficial to both employers and employees in terms of productivity, worker comfort and worker safety, and should be a part of an employer's comprehensive health and safety program. Application of these principles should be based on sound science and accepted risk management practices. Any initiative that addresses ergonomics, whether regulatory-driven or industry-driven, should provide each facility with the flexibility to develop and implement a process for managing workplace ergonomic risk factors and musculoskeletal disorders (MSDs) tailored to the operations, activities, needs, people and culture at that facility.

II. THE SIX FRAMEWORK PRINCIPLES FOR DEVELOPING A COMPREHENSIVE APPROACH TO WORKPLACE ERGONOMICS

Under the leadership of Secretary of Labor Elaine Chao, the Department of Labor established the following six principles as the basis on which the Department would develop a comprehensive approach to workplace ergonomics: 1) prevention; 2) sound science; 3) incentive driven; 4) flexibility; 5) feasibility; and 6) clarity. SPI views the six framework principles announced by DOL as a common sense implementation of the applicable legal criteria, reflecting a commitment to action based on sound science, sound public policy and the applicable law. We support those principles and, consistent with the principle of clarity, believe it is critically important to clarify how we believe those principles should be applied to avoid any potential misunderstandings in the future.

A. Prevention

The Department has explained that, consistent with the other principles, the principle of "prevention" means that the selected approach should place greater emphasis on preventing injuries before they occur. However, as the Secretary has stated: "There is no set formula. No table exists. There is no equation that permits us to simply plug in a worker's injury and instantly determine its history." In other words, while models such as the National Institute for Occupational Safety and Health (NIOSH) Lifting Equation may provide some useful guidance, they have limited applications and have never been validated even for those limited applications. In the absence of reliably quantified threshold effect and dose-response data for the infinite variety of physical activities associated with MSDs, employers and employees have largely relied on hands-on, common sense, trial and error experience with general qualitative criteria such as the following to prevent them:

1. Design tasks not to exceed human physical abilities;
2. Avoid excessive repetitive motion;
3. Avoid excessive stagnation;
4. Balance or rotate between jobs requiring gross motor skills and those requiring fine motor skills;
5. Balance or rotate between the use of different muscle groups;
6. Provide adequate breaks;
7. Rotate between sitting and standing;
8. Provide adequate lighting;
9. Provide adjustable chairs and work tables;
10. Encourage worker input;
11. Provide adequate variety to avoid boredom;
12. Try to keep repetitive lifts to a comfortable and reasonable weight.

See the July 24, 2001, Testimony of Paul Appelblom presented on behalf of SPI. A more detailed and complex set of proactive guidelines is contained in Tray 9 (Proactive Ergonomics) of the "Elements of Ergonomics Programs" published by NIOSH in March of 1997.

B. Sound Science

The Department has explained that, consistent with the other principles, the principle of "sound science" means the selected approach should be based on the best available science and research. In addition to taking actions based on the best available science, we believe the principle of sound science means that government interventions are constrained by the practical limits of the current science.

At the present time, the best available science is simply inadequate to provide a scientifically sound basis for establishing significant risk thresholds and dose-response relationships necessary to establish permissible exposure limits for one or a combination of ergonomic risk factors. Accordingly, the principles of sound science, feasibility and clarity would preclude the adoption of a requirement (such as that contained in the rescinded standard) that an employer take measures to "significantly" reduce exposures to certain "risk factors" or to reduce those exposures to an unspecified level at which the condition is "unlikely to recur."

C. Incentive Driven

The Department has explained that, consistent with the other principles, the principle of "incentive driven" means the selected approach should focus on cooperation between OSHA and employers. In other words, OSHA and its state counterparts should institute and/or expand programs that demonstrate, to both employers and employees, that ergonomic principles can be applied to workplace activities in a practical and cost-effective manner that would provide significant benefits to both employers and employees.

NIOSH has stated that successful ergonomics fits "assure high productivity, avoidance of illness and injury risks, and increased satisfaction among the workforce." Employers and employees would greatly benefit from government programs that validate these assurances. For example, the Michigan Occupational Safety and Health Administration (MIOSHA) Consultation Education & Training Division Programs, including the Ergonomics Training Programs, include an on-site visit by a consultant to perform an injury analysis and an accident cost analysis that greatly assist employers in quantifying some of the financial benefits (avoided costs) of applying ergonomics principles in their workplaces.

D. Flexibility

The Department has explained that, consistent with the other principles, the principle of "flexibility" means the approach should take account of the varying capabilities and characteristics of different businesses and workers. We believe it is critical to explicitly acknowledge that the principle of flexibility (and feasibility) precludes an approach under which an employer would be expected to modify every job so that every worker in its employ could perform that job without sustaining an ergonomic injury (much less a musculoskeletal disorder as defined by the National Academy of Science (NAS)) regardless of the worker's physical characteristics, physiological characteristics and the relevant psychosocial factors¹. For that reason, we believe it is critical that the Department continue to follow the determination, announced (in the preamble to) and relied on in the rescinded ergonomics standard, that the generally referenced biomechanical ergonomic risk factors (e.g., force, repetition, posture, contact stress) are Section 3(8) safety hazards rather than Section 6(b)(5) health hazards for purposes of the OSH Act.

E. Feasibility

The Department has explained that, consistent with the other principles, the principle of "feasibility" means the approach must take into account the real costs of compliance, with particular concern for the impact on small businesses. We recognize and support the necessity of paying particular attention to the needs of small businesses. However, DOL must not overlook the feasibility concerns of larger businesses.

We also have a continuing concern with the use of the term feasibility, without further qualification, given the manner in which the term has been defined by the U.S. Supreme Court in connection with OSHA standards. In that context, the term "feasible" has been defined as something that is both technically feasible (i.e., capable of being done) and economically feasible (i.e., something that can be done without threatening the competitive structure or viability of an industry or an industry segment). However, the courts have also held that in employing a government mandate to achieve a particular safety and health objective, the government must select the most cost-effective approach. Furthermore, in adopting a requirement to address a Section 3(8) safety hazard (such as those that may be presented by biomechanical ergonomic risk factors), the courts have held that the costs of compliance must be reasonably related to the benefits. Accordingly, we believe the framework principle of "feasibility" should be clarified to reflect these points.

The scope of the rescinded standard extended to virtually every physical activity in the American workplace, and required a technical and economic feasibility and impact analysis of the same scope. In light of that experience, we believe it is critical that, before the Department initiates any new technical and/or economic feasibility analysis in this area, it establish an expert advisory committee and seek public comment on an appropriate process for developing such an analysis.

While much can be accomplished through the application of ergonomics principles, we believe it is appropriate to note that the prior administration acknowledged that it would not be possible to eliminate a substantial number of MSDs, and estimated that only half of the attempted ergonomic interventions would be effective.

F. Clarity

The Department has explained that, consistent with the other principles, the principle of "clarity" means the approach must include short, simple and common sense instructions. We must emphasize the importance of this principle. In the absence of clear language that OSHA, employers and their employees can readily understand and apply, there will be confusion, misallocation of resources and, in many cases, a sense of frustration that will cause employers, especially small employers, to throw their hands into the air and turn their attention to other matters. Finally, in the context of a mandatory standard, vague language leads to varying and inconsistent enforcement and presents a real potential for prosecutorial abuse. The right to contest inappropriate citations does not protect employers from prosecutorial abuse. For many if not most small employers, the potential costs involved in contesting ergonomics citations could be prohibitive.

III. OVERVIEW AND SIGNIFICANCE OF THIS PROCEEDING

This important initiative seeks information designed to assist DOL/OSHA in formulating a comprehensive approach for addressing ergonomics hazards in the workplace. We very much appreciate the forward-thinking steps taken by the Secretary and the Administration in initiating this comprehensive review rather than rushing into another ergonomics rulemaking.

This is one of the most complex issues in the area of occupational safety and health. We commend the Secretary for requesting specific comment on some of the fundamental threshold issues that must be resolved before informed decision making is possible. Before proceeding with the adoption of a comprehensive approach in this area, it is critical that the Department determine:

1. The nature of the problem-i.e., what is an "ergonomics injury" for purposes of this inquiry?
2. The scope of the problem;
3. The primary cause or causes of the problem;
4. The feasible and practical measures that would be most effective in eliminating or meaningfully reducing the problem;
5. The category or categories of entities or individuals in the best position to adopt and implement those measures;
6. Whether, based on the principles of sound science, sound public policy and the applicable law, there are permissible government interventions that should be taken to assist, encourage or require employers and /or employees to adopt and implement those measures.

Once these questions have been answered, informed decisions can be made on what government interventions would be appropriate.

IV. THE THREE QUESTIONS RAISED BY THE SECRETARY

A. What is an Ergonomics Injury?

The first question raised by the Secretary was "What is an Ergonomics Injury?" This is a complex question involving interrelated legal, medical and policy issues, which we believe can only be analyzed by breaking it down into two questions: 1) what is an injury? and 2) what is an ergonomics injury? Furthermore, given the current science, we believe the question can only be answered appropriately when tied to the context in which the term would be used.

1.   What is an injury?

From a legal standpoint, Congress recognized that there is no such thing as a risk-free environment and determined that, under the OSH Act, OSHA may regulate only where there is a significant risk-where there are hazards that pose a significant risk of causing material impairment of health or functional capacity. The scope of the term "significant risk" under the OSH Act is far narrower than the scope of the term "musculoskeletal disorder" as defined by the NAS. In its report titled "Musculoskeletal Disorders and the Workplace," the NAS defines the term "disorder" as "an alteration in an individual's sense of wellness or ability to function." In other words, the threshold legal requirement of the OSH Act precludes OSHA from requiring employers to take the measures that would be necessary to prevent every work-related MSD.

From a medical standpoint, we believe the term "injury" should be limited to conditions that are generally recognized by the medical community as constituting "significant harm" to the musculoskeletal system and for which the medical community has established uniform criteria for its identification and diagnosis.

2.   What is an "Ergonomics Injury"

Giving a condition the label of "ergonomic injury" has consequences and, for that reason, we believe the term "ergonomics injury" can be properly defined only in the context of the available remedial ergonomics initiatives or interventions that would be effective in addressing those injuries.

We believe it is critical to point out that the original petition for rulemaking filed with OSHA by United Food and Commercial Workers (UFCW) requested a standard to address repetitive motion injuries. The scope of the California Repetitive Motion Injuries (RMI) standard is limited to repetitive motion injuries. The intervention studies offered in support of ergonomics programs are almost exclusively limited to repetitive motion tasks. There is no significant evidence demonstrating that ergonomics programs would be effective in preventing most of the strain and sprain injuries caused by single incident events which represent the overwhelming portion (approximately 85%) of the MSDs estimated by OSHA using the Bureau of Labor Statistics (BLS) data.

3.   The Definition of the Term Should be Tied to its Intended Use

In principle, given the uncertainties as to what causes MSDs, how to prevent them and how to treat them, we believe the definition of the term "ergonomics injury" would have to be very narrow in the context of an enforceable standard (e.g., limited to repetitive motion in excess of appropriately determined triggers that would cause and not simply aggravate a significant, recognized injury-criteria which it does not appear can be satisfied given the current science) and could be somewhat broader in the context of voluntary guidelines and outreach programs.

B. Causation With Respect to Ergonomic Injuries

1. The issue of causation is a complex question involving interrelated legal, medical and policy issues. According to the NAS, causation is a multifactorial process involving the interplay of the mechanical exposures, the physiological characteristics of the individual and psychosocial factors. Accordingly, in most cases, it is not possible to determine with any reasonable degree of certainty what caused a particular condition, much less the degree to which work contributed to its occurrence.

2. One of the most recognized and respected medical groups in the area of occupational medicine says the employer, in consultation with a qualified health care provider, should base the determination of causation on a valid medical diagnosis and causal assessment. It goes on to say:

The assessment should include evidence of association with work. The following questions should be addressed by the health care provider: Is there epidemiological evidence that this specific disorder is associated with certain patterns or levels of physical activity at work?

It should also include evidence of exposure: Is there an exposure assessment methodology available to determine whether the physical activities of this particular job place workers at increased risk of developing disease? If so, what do the results predict? If not, are the circumstances of exposure, (e.g., magnitude, duration and frequency) consistent with the epidemiological data?

And lastly and perhaps most importantly, a case-specific determination needs to be made for the individual employee. This approach is consistent with accepted medical practice and is fair to both the employer and the employee.

3. While this approach may reflect accepted medical practice, we have several significant concerns with its use:

1. At best, it would be one knowledgeable person's best estimate of causation/contribution based on the information that medical professional obtained.
2. In the absence of threshold significant risk and dose-response relationships for any of the "ergonomic risk factors," the exposure information might, at best, indicate that a person was at increased risk, but it would not indicate whether the risk was significant.
3. This type of analysis would require a tremendous commitment of resources when, in may cases, it would be far more cost-effective for the employer to try to address the situation (through trial and error) by implementing one or more simple control measures before proceeding with medical evaluations (off-site x-rays, MRI's, nerve conduction tests, etc.), literature reviews and detailed case-specific determinations.

4. The Significance of the Causation Determination

In principle, given the uncertainties as to what causes ergonomics injuries, how to prevent them and how to treat them, we believe the manner in which causation is used as a screening device should depend on the type of intervention being considered. If the intervention under consideration is a mandatory standard requiring exposure control measures or other comparable burdens, we believe the causation test should be used to screen out all conditions (e.g., MSDs, ergonomic injuries) not determined by a competent medical professional to be predominantly caused by exposure to biomechanical risk factors in the workplace. Certainly, a more liberal (e.g., reasonably likely) test could be used in the context of voluntary guidelines and outreach programs.

5. Determining Causation Does Not Resolve All Questions

The determination that a particular condition was predominantly caused by work (in the context of a standard) or reasonably likely to have been caused by work (in the context of voluntary guidelines) is not the end of the inquiry. Consistent with the public statements made by the prior Administration, we continue to believe a mandatory standard should only be considered in connection with what the science identifies as high-risk, repetitive motion tasks. As we noted above, we believe it is critical to explicitly acknowledge that the employer should not be expected to provide a risk-free workplace for all workers, regardless of their individual characteristics. Even if work caused or materially aggravated a particular condition, that does not mean the employer should always be expected to take remedial measures that would permit the affected individual to continue working at that job. At the extreme, there may be a limited number of jobs or tasks jobs that are properly characterized as generally hazardous to workers such that the employer should be expected to make them safer. On the other hand, there are likely to be many jobs or tasks that are beyond the physical/physiological/psychosocial capabilities of some workers but are safe for a large segment of workers. In these circumstances, the employer should be permitted to assign these tasks to the "more capable" workers rather than fixing every job so that it can be performed by everyone without risk of an ergonomic injury (much less a musculoskeletal disorder as that term is defined by NAS).

During the course of the rulemaking, we believe the prior Administration recognized that requiring the employer to "take every worker as you find him" and implement whatever accommodations are necessary to allow that person to continue to safely perform his/her job was not viable. However, rather than acknowledging that the concept was invalid and discarding it, the prior Administration attempted to address this problem by limiting its application. Although the limitations placed on the implementation of this concept in the rescinded standard (i.e., the adoption of the threshold triggers and safe harbor provisions) were inadequate, we believe it is important to note that the prior Administration did recognize the need and go so far as to attempt to address this problem.

C. The Most Useful and Cost-effective Types of Government Involvement

At this point in time, given the lack of adequate science to establish threshold significant risk and dose-response relationships, or to reliably determine what caused and how to prevent a particular ergonomic injury, the application of the six framework principles² leads to the conclusion that an enforceable standard would be both premature and counterproductive. This is particularly true given OSHA's statement that 95% of employers are acting in good faith, and the fact that the reduction of psychosocial stressors advocated by NAS, as part of the application of ergonomics principles, is outside of OSHA's statutory authority. For the small portion of employers (probably well below 5%) who may not be acting in good faith and have significant ergonomic injuries predominantly caused by exposure to workplace biomechanical risk factors³, the General Duty Clause provides an adequate and appropriate enforcement tool.

Additionally, the application of the six framework principles also leads to the conclusion that OSHA's support of further research and purely voluntary intervention measures would be welcomed by employers and would significantly advance efforts to reduce MSDs by both direct prevention and through the subsequent analysis and application of the information derived from the implementation of these measures. Furthermore, the Secretary is specifically directed by Section 2(b) of the OSH Act to consider implementation of these kinds of measures in furtherance of the overall objective of achieving workplace safety:

1. by encouraging employers and employees in their efforts to reduce the number of occupational safety and health hazards at their places of employment, and to stimulate employers and employees to institute new, and to perfect existing, programs for providing safe and healthful working conditions;
2. by building upon advances already made through employer and employee initiative for providing safe and healthful working conditions; and
3. by providing for research in the field of occupational safety and health, including the psychological factors involved, and by developing innovative methods, techniques and approaches for dealing with occupational safety and health problems.

Research. We strongly encourage the agency to begin by developing and funding further research in the areas identified by the NAS study (e.g., objective and uniform criteria for the diagnosis, classification and treatment of musculoskeletal injuries; determining the causes of these injuries and the relative contribution of each causal factor; and identifying practical and effective interventions for particular activities or risk factors).

Technical Assistance and Consultation. We also encourage the agency to fund and promote technical assistance and consultation (outreach) programs such as the Ergonomics Development Program sponsored by MIOSHA. To be effective, it is essential that the individuals providing the outreach and consulting services develop sufficient expertise specific to the industries they are serving. Otherwise, the recipient is too often likely to be frustrated by an academic suggestion that cannot be practically implemented in the real world.

Best Practices Conferences. We also encourage the agency, in partnership with the affected stakeholders, to hold additional conferences that address what interventions, based on the available evidence, apparently have or have not produced significant health and safety benefits.

Development of Industry-Specific and/or Task-Specific Guidelines. Finally, we encourage OSHA to develop carefully and cautiously, in close cooperation with the affected stakeholders, a series of voluntary guidelines or "best practices," which are clearly voluntary and are not used to support General Duty Clause enforcement actions. We believe those guidelines or best practices should focus on those tasks or industries where the risks of ergonomic injuries appear to be the greatest. Furthermore, we suggest that OSHA consider issuing these documents in draft for trial use for a period of one to two years.

The effort to develop guidelines or best practices would have the greatest potential for success if OSHA were to establish a separate, carefully balanced special advisory committee for each such industry. This is consistent with the National Academy of Sciences report on ergonomic injuries, which noted that, "no single strategy is or will be effective for all types of industry."

We believe balance is best achieved in this area by awarding half the seats to employees or employee representatives (including unions), and half the seats to employers or employer representatives (including trade associations). The employee seats would be appropriately divided between employees of small businesses and employees of large businesses. The employer seats would be appropriately divided between large businesses and small businesses. Those from the academic world, the medical profession, etc., could serve as consultants, independent or otherwise, but would not vote on what we believe is properly viewed as a matter best addressed by and between employers and employees.

V. CONCLUSION

We very much appreciate the courageous steps taken by the Congress of the United States and the Administration in rescinding an ergonomics standard that we believe would have been a severe setback for workplace safety, for our economy and for the principles and values we view as fundamental to our way of life. More specifically, we believe the rescinded rule would have undermined our worker's compensation and managed care systems, labor-management relations, our efforts to ensure workplace safety in a balanced and practical manner, our productivity and global competitiveness and our quality of life. This country now has the opportunity to make a fresh start in this challenging area, free from the political decisions of the prior Administration.

The goal of ergonomics management is to meld workers and facilities together in a way that facilitates productivity, worker comfort and worker safety. The success of these efforts depends on the effective application of ergonomic principles to an infinite variety of tasks presenting an infinite set of ergonomic risk factor exposures. These tasks are collectively performed by over 110,000,000 U.S. workers. Each worker has a unique set of physical, physiological and psychological characteristics, which results in each worker being uniquely affected by these ergonomic risk factor exposures.

Under the limits imposed by the current level of scientific knowledge, the effective application of ergonomic principles can only be achieved through an incentive-driven, proactive approach based on the practical, flexible, common-sense application of that knowledge. Given the current level of scientific knowledge, it is not possible to craft an OSHA standard that would meet these criteria or provide meaningful objective direction (i.e., clarity, also known as due process) as to what an employer must do to control exposures to ergonomic risk factors.

At the present time, the only viable approach is a voluntary one based on outreach, consultation, research and the development of best practices. We very much appreciate this opportunity to provide you with our views on this important issue and would be pleased to answer any further questions you may have.

Respectfully submitted,

Maureen Healey
Vice President of Government Affairs

1. See the July 24, 2001 Testimony of Paul Appelblom on behalf of SPI.

2. As demonstrated by the July 24, 2001 Testimony of Paul Appelblom, the most effective ergonomics program is based on a set of proactive measures that are only feasible in a highly flexible environment; that is incompatible with government mandates and rigid labor management structures.

3. See Michigan Occupational Health Program Directive No. 00-3, Enforcement Policy and Procedures for Conducting Investigations of Ergonomic Hazards.

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