New OSHA Regulations Costly, Not Covered

Labor groups are hailing the U.S. Occupational Safety and Health Administration’s new ergonomics standards designed to protect workers from injuries caused by repetitive motion, contact stress or vibration.

Business groups say the new regulations, completed in November and scheduled to take effect Oct. 15, are impractical and will cost businesses billions of unnecessary dollars every year.

And the Arkansas Workers’ Compensation Commission argues that the new standards overstep OSHA’s boundaries by setting benefits for injured workers different from, and significantly higher than, those established by state law or covered by typical workers’ comp policies.

OSHA regulations call for an employer to maintain 100 percent of earnings and full benefits for injured employees who require limits on their work activities or temporary alternative duty. But if an employee is removed from work, he is to receive 90 percent of his earnings and 100 percent of benefits. These benefits will last until the employee can safely return to work, or a health care worker determines the employee can never return to work, or 90 days have passed.

Under Arkansas’ workers’ comp law, an injured worker receives two-thirds of his average weekly salary up to a maximum of $410 while on temporary total disability, said Jennifer Love, chief legal adviser for the Workers’ Compensation Commission.

If the worker can perform light duty, the employer can change the worker’s job from, say, construction worker to secretary and pay the worker at the lower secretarial pay. But if the worker can only work 20 hours a week, he still will receive two-thirds of his earnings, up to $410, for the 20 hours he didn’t work.

The new OSHA guideline “mandates that the employers must pay for certain costs and expenses for which, at this point, they are not insured,” said Julie Benafield Bowman, CEO of the Arkansas Workers’ Compensation Commission. “For instance, some of the benefits in this regulation go well above what’s allowed under Arkansas law for workers’ compensation purposes, and the employers are not insured for that. So it would have to come directly out of their pockets.”

She said that the workers’ compensation system was designed to be the exclusive remedy for employees who have been injured on the job and that most workers’ comp policies exclude remedies required as a result of OSHA findings.

“So there’s just some conflict with who is actually regulating these areas,” she said.

Bowman said she would wait and see what happens with various lawsuits challenging the new standards. But if the regulations stand, the commission will have to adjust some of its rules.

One of Bowman’s allies is Dick Horne, a Little Rock attorney who represents the American Insurance Association in Arkansas.

Horne said he is trying to encourage state officials to file a brief in the lawsuit that the AIA has filed against OSHA saying the new regulations overstep OSHA’s jurisdiction and meddle with state law.

“We think it is encroaching on state law, which my understanding is OSHA isn’t supposed to do,” Horne said. “My understanding what OSHA [is supposed to do] is work toward preventing accidents.”

Horne said the Workers’ Compensation Commission already provides specific guidelines to determine whether there has been a compensable injury and what the compensation should be for a specific injury or condition. But under the new regulations, the OSHA process takes over. If an employee is sent to a physician and the doctor certifies that the worker has carpal-tunnel syndrome, “that is pretty much the end of it,” he said.

“In other words, the Workers’ Compensation Commission is not involved in that process.”

Horne said he hoped the state attorney general would get involved. But Attorney General Mark Pryor’s office said it was taking a wait-and-see approach.

“We don’t think the evidence shows that the regulations are going to undermine state law,” said spokesman Michael Teague. “That doesn’t mean in the future we might not change our position.”

Still, Horne criticized the new OSHA regulations because an injured worker would be paid about a third more than what the Workers’ Compensation Commission guidelines require without coming up with a way to pay for it.

“It’s not going to cost OSHA anything,” he said. “[The money] is going to be provided by the insurance company or the employer.”

Roadblocks

The new OSHA regulations could be stopped on several fronts. About a dozen groups have filed lawsuits against OSHA in Washington, D.C., to stop the regulations. A judge could issue an injunction suspending the rule, or Congress could pass a resolution of disapproval, said Kim Bosgraaf, manager of regulatory policy for the Nation Federal of Independent Business in Washington.

Bosgraaf said NFIB would support any legislation that does away with the regulations.

She also said many business groups erroneously believe President Bush could save the day by simply canceling the regulations, promulgated during the Clinton administration.

“He would have to go through the regulatory rule-making process and follow the Administrative Procedure Act, just as you would to put a rule in place,” she said.

OSHA has been working for 10 years on the standards it says are necessary because about 1.8 million workers report musculoskeletal disorders (MSDs) such as carpal-tunnel syndrome, tendinitis and back injuries each year. The new standards will prevent 4.6 million MSDs in the first 10 years of implementation, and 102 million workers will be protected, OSHA has estimated.

OSHA calculates that employers will pay $4.5 billion a year to fix individual workstations. But it also estimates that $9.1 billion will be saved annually by preventing injuries.

Business groups are questioning OSHA’s figures and say the cost to employers could be anywhere from $65 billion-$90 billion each year, Bosgraaf said. The standards require employers to tell their employees about common MSDs and their signs and symptoms, how to report them, and the risk factors associated with MSDs.

Once an MSD is reported, the employer must make the work site safe. And the employer must inspect the work sites to prevent MSDs.

Weighing In

Mike Ramsey, the nurse manager at the Work Injury Management Clinic at Baptist Health in Little Rock, said injuries caused from repetitive motion are a serious problem. He said the No. 1 injury in the clinic still is back injuries from improper lifting, but the clinic is seeing more repetitive-motion disorders because more workers are using keyboards.

He said repetitive-motion disorders causing pain in the wrist, elbow or shoulder account for 15-25 of the 100 injuries the clinic sees each month.

Although the Arkansas AFL-CIO supports the OSHA regulations, it is concerned that workers in the construction, maritime, agricultural and railroad industries will instead be covered by older standards.

“We would like to see them go further than what they do,” said Alan Hughes, president of the Arkansas AFL-CIO. “We would expand out coverage to more groups.”

Hughes said he doesn’t expect the new regulations to survive to Oct. 15.

“We don’t doubt the Republicans will come back and try to take this away because it means [employers] have to invest in their people,” he said.

Mark Martin, an attorney for the AFL-CIO in Arkansas, said something needed to be done to prevent MSDs, which he said are commonly seen in chicken-processing plants and factories.

“Really, of all the injuries that I see, they seem to be the most crippling because if you have a back injury you can still use your hands. But I haven’t found a job you can do without your hands,” Martin said.

But business groups say the regulations need to be abolished.

“It will be an impossible federal regulation for trucking companies to comply with simply because some of the requirements will be so hard to track in the workplace,” said Lane Kidd, president of the Arkansas Trucking Association.

For example, Kidd said, the weight-lift guidelines would be impossible to enforce. OSHA says a worker can’t be required to lift more than 75 pounds at any one time, more than 55 pounds more than 10 times a day, or more than 25 pounds below the knees, above the shoulders or at arms’ length more than 25 times per day.

“How is that worker to determine when he or she has reached that limit other than to carry a clipboard around and make a mark every time?” Kidd asked.

And even to do that would require the employee first to determine the weight of the box.

The Arkansas State Chamber of Commerce also opposes the OSHA regulations.

“There is no scientific basis for these OSHA regulations,” said Ron Russell, president and CEO for the Arkansas State Chamber of Commerce. “It’s inconsistent with any valid science that you would reward a claim for pain rather than compensate a demonstrated injury.”

He said all the major industries in the state would be affected by the regulations — poultry, timber, any plant or business or distribution center where physical labor is involved.

NFIB’s Bosgraaf also said she disagreed with OSHA’s attempt to appease small-business owners by saying a company would not have to keep records if it had fewer than 11 workers.

“Although the paperwork exemption may appear helpful, a small-business owner would be ill-advised to not write down and keep records of everything related to their ergonomics program when faced with an employee complaint or OSHA inspection,” Bosgraaf said.

Part of the cost would be from business owners buying new equipment if an employee has an injury, Bosgraaf said.

“If they have someone who reports an injury, then not only do they have to fix the job that caused the injury but also work to prevent other injuries with people doing that similar job,” Bosgraaf said.

Bud Cummins, director of the NFIB in Arkansas, said his members are opposed to the new regulations.

“When you’re dealing with repetitive motion, it’s one thing to talk about rotating a worker in a plant with 300 employees,” Cummins said. “It’s a little bit different when you have a small business that has four employees.”

He said a big business might be able to pay a safety officer $40,000 a year to make sure the company is complying with all the rules, but a small-business owner can’t afford to do that.

“The people who write [these regulations] often have never worked a day in their life in real business,” Cummins said. “These types of rules often severely impact small businesses, and small businesses usually pays the highest price.”