Union and industry stakeholders are differing on the potential benefits and costs associated with OSHA's proposal to add back a column recording musculoskeletal disorders (MSDs) on the OSHA 300 log. At a stakeholder meeting earlier this month, union stakeholders said the column is needed to provide accurate data on the rates of MSD injuries and would result in little burden to industry, but industry and small business representatives said the proposal would be costly and should be reassessed. OSHA intends to have the new requirements implemented by January 2011.
Larry Halprin, a partner with the law firm of Keller and Heckman LLP, who spoke at the hearing for the U.S. Chamber of Commerce and the National Association of Manufacturers, said he thinks it would be "inappropriate" for OSHA to proceed with the proposal and thinks it should be withdrawn. He questioned OSHA's assertion that the proposed rule will not change existing requirements and the agency's estimates on the impact of its costs.
Dorothy Dougherty, OSHA's director of standards and guidance, said at the meeting that OSHA believes the cost associated with the proposal is the time it takes employers to learn about the changes to the OSHA 300 log and record cases in the new column. "OSHA believes such costs would not pose an economic difficulty for any establishment," she said.
But Halprin pointed to the agency's plan to change its interpretation of minor musculoskeletal discomfort as an example of why it is "impossible" for the agency to evaluate the costs of the proposed rule with existing information. OSHA indicated in its proposal that it plans to remove language in its recordkeeping compliance directive outlining that some cases of minor musculoskeletal discomfort need not be recorded by employers. The language was added following a settlement agreement with NAM in 2001 (see Inside OSHA, Feb. 9). "Now we have a whole slew of cases that either weren't treated as injuries before or were treated as minor injuries that didn't require recording," Halprin said.
He added that employers will be required to make decisions on whether to report injuries that go beyond their scope of knowledge under the proposed rule, including whether a condition is new or work-related. As a result, employers will need to learn how to make such an assessment or take the costly step of sending workers to a medical professional in every case of a possible MSD, he said.
Additionally, Halprin noted that he thinks the proposal will cause employers to record injuries that are not significant and may be unrelated to the workplace.
Furthermore, the proposed rule could have a detrimental impact on small businesses, said Karen Harned, executive director of the Small Business Legal Center at the National Federation of Independent Business (NFIB). She added that the agency's proposed rule "raises several red flags for small businesses." NFIB is urging the agency to re-examine the time and cost estimates associated with complying with the proposed rule. "We are hopeful that the process of doing this will reveal the real effect of the proposal on our members and perhaps persuade OSHA to modify its approach to this rule for small business," she said.
Additionally, Harned urged OSHA to convene a Small Business Regulatory Enforcement Fairness Act (SBREFA) panel to obtain further information about the effect and cost of the proposed rule on small businesses. A SBREFA panel is required to be convened when a rule is expected to be economically significant to small businesses.
An OSHA spokeswoman said in an e-mail that the agency will carefully examine stakeholder comments to determine whether any revisions to its cost estimates are necessary, as well as "the extent to which this may alter OSHA's conclusion concerning feasibility and significance of impact."
However, union stakeholders generally praised the plan to add back the MSD column. Jackie Nowell, director of occupational safety and health at the United Food and Commercial Workers International Union (UFCW), contended that it will help industry save money. She noted that, along with unions, some in industry currently spend time and effort to analyze recordkeeping logs. Additionally, she said the new column will allow employers to be more precise in categorizing MSD injuries. "This is not a burden," she said.
Other union stakeholders said adding back the column would provide useful information on MSD injuries. AFL-CIO safety and health director Peg Seminario said the union "strongly supports" OSHA's proposal to add the MSD column back to the OSHA 300 log. "There is no national data and there is no industry data on the extent of MSDs," she said. "This rule would address both of those problems." She added that collecting the information will be useful in determining trends in particular industries, as well as to assist OSHA in developing outreach, enforcement strategies and regulatory policy.
Seminario said that "days away from work" cases currently provide the only information on MSDs that is available on a national level. However, she noted there are some problems with only examining those cases, as employers may engage in "medical management" by keeping employees at work through job restriction.
Additionally, she argued that the proposal does not require employers to provide any more information than they are currently required to submit on recordkeeping forms. "It will provide better information, but it does not create any new obligations on employers to address or control ergonomic hazards in the workplace than already exist under existing OSHA authority under the general duty clause," she said.
Seminario also suggested that OSHA and the Bureau of Labor Statistics provide numbers and rates at an industry level, once it begins to capture the MSD data.
Pamela Vossenas of Unite Here agreed that adding back the column would be beneficial to help collect data on MSDs."We feel that unless you can count an injury, then you can't prevent it, she said. "And unless you can count an injury, you can't find solutions to mitigate the damage that that injury causes."
She noted that the union has done its own research to assess data and determine some levels of MSDs for certain sectors, such as housekeepers and food service workers. Vossenas said the research required significant resources, which points to the need for an MSD column on the log. The union's research was "extremely labor-intensive" and as accurate as was possible, but "OSHA could do far more," she said.
Dougherty noted at the hearing that OSHA intends to use the data collected from the column to better target its guidance and outreach efforts to specific industries with MSD problems, as well as to determine the effectiveness of ergonomics guidelines that OSHA has already released.
Additionally, OSHA's proposal notes that data will be used to "assist OSHA, and other safety and health policy makers, in understanding MSDs and making informed decisions on policies concerning workplace MSDs." OSHA chief David Michaels has repeatedly contended that the action to add back the column is not a prelude to a rulemaking on ergonomics. However, the OSHA spokeswoman noted that MSD column data won't become available until November 2012 and "[a]t this time, it is difficult to know what policy issues and discussions will be before OSHA in 2012."
Furthermore, some stakeholders noted that the value of collecting data is diminished if it is not based on quality information. Steve Newell of ORC Worldwide said the group generally supports the agency's plan to add back the MSD column. However, he noted that ORC has some concerns about the timing and plans for implementation in OSHA's proposal. "The data derived from this column will only have value if the criteria for recording these cases are reasonable and clear," he said.
Newell added that he expects it will be difficult for OSHA to determine the proper mix of MSD cases to capture, particularly in evaluating minor cases relation to work. "For the column to have a positive impact, OSHA really needs to be thoughtful about how broad to cast the recordable MSD net," he said.
Additionally, he said he is supportive of the agency's plan to distribute software to assist companies interested in moving to electronic recordkeeping. He added that an "expert system" that could help employers determine which information should be provided on recordkeeping forms would strengthen data quality.
He also pointed out that collecting MSD data will be particularly important amid an aging population of workers. -- Sara Ditta