06/ 05/ 2002
"Christmas came in November for the trial lawyers and labor unions who wanted passage of this costly mandate. It will result in frivolous lawsuits, outrageous paperwork requirements and costly programs that threaten the ability of small business to create jobs in America."
- NFIB's Dan Danner
On Nov. 15, OSHA issued an ergonomics regulation that may be the most costly government regulation in history, says NFIB's Regulatory Policy Manager Kim Bosgraaf.
"Like many burdensome regulations before it, the ergo reg is broadly written and all encompassing," Bosgraaf says. "These are ingredients for compliance confusion, paperwork nightmares and lawsuits by the thousands. This regulation will affect virtually every small business in America. On top of that, the estimated national compliance costs are as high as $125 billion per year. We'll continue to fight this regulation in Congress and in the courts."
Soon after the 1,600 page regulation was issued, the NFIB Legal Foundation joined a court battle against the new standards, objecting that OSHA went far beyond its authority with the rule to reduce repetitive-motion stress injury. Dozens of industry groups have joined the lawsuit, filed by the National Coalition on Ergonomics to block implementation of the rule.
Issue Overview: By forcing employers to change workplaces and procedures, the rule is intended to prevent musculoskeletal disorders developed on the job through repetitive motions, use of force, awkward postures, contact stress and vibration. OSHA officially introduced the mandate last year and public concern has run high. More than 700 witnesses testified about the regulation at public hearings, and OSHA has gotten more than 8,000 written comments about the rule—more than on any rule since 1988. Rushing to publish, OSHA spent only about one-third the time it usually spends in the rulemaking process.
Not only will compliance be costly, but the rule invites abuse. There is no clear way to determine where an injury took place and employers will be forced to change a workplace to avoid aggravating an employee's existing condition. Under the rule, OSHA requires employers to pay up to 90 percent of an employee's salary plus full benefits when the employee is out due to a work-related injury and 100 percent of an employee's salary if he or she is temporarily assigned to lighter duties.
"The rule conflicts with the established workers compensation system. With the 90 percent pay requirement, it may virtually replace it," Bosgraaf says. "We believe that labor lawyers will look at the 90 percent pay requirement and try to construe every workers comp claim as an ergo claim, if they can."
Where It Stands: Congress passed bills earlier this year blocking implementation of the new standard, but the Clinton administration decided to issue the new regulation over congressional objections. NFIB had tried to work with OSHA to craft worker safety measures so that small businesses could create the best work environment for their employees. But the agency rushed the regulation through in what appears to be a deliberate effort to overpower opposition.
What You Can Do: Contact your lawmakers and tell them you oppose OSHA's adoption of the ergonomic mandate. Go online to http://www.nfib.com for updates on the issue or call 1.800.552.NFIB (6342) for more information.
This article originally appeared in the January/February 2001 issue of MyBusiness Magazine, NFIB's member magazine.
