About NRCA | Insurance and safety | NRCA Special Reports and updates | NRCA's comments regarding OSHA's proposed ergonomics program rule
On March 2, NRCA submitted comments to the Occupational Safety and Health Administration (OSHA) opposing the agency's proposed ergonomics program. NRCA’s comments follow.
March 2, 2000
OSHA Docket Office
U.S. Department of Labor
200 Constitution Ave., N.W.
Room N2625, Docket S777
Washington, D.C. 20210
The National Roofing Contractors Association (NRCA) offers the
following comments on the Occupational Safety and Health
Administration's (OSHA's) proposed Ergonomics Program Rule.
NRCA represents more than 4,600 member companies in 51 countries.
Its 3,500 U.S. contractor members represent 65 percent of all
dollars spent for roofing work in the country. On average, the
typical member contractor employs 35 people.
NRCA supports the claim made by other organizations, such as the
National Coalition on Ergonomics, that there is not enough sound
scientific evidence to indicate there is a direct cause-and-effect
relationship between musculoskeletal disorders (MSDs) and the
workplace.
In addition, NRCA cannot support the proposed standard because of
the various other reasons, which follow.
The Proposed Rule is Flawed
NRCA believes many aspects of the standard are flawed. First, the
standard is vague, creating a two-fold problem. Employers will not
have clear understandings of whether they have achieved compliance
with the standard because there are no clear, objective benchmarks
provided. And because there are no benchmarks, compliance safety and
health officers (CSHOs) are forced to make subjective assessments
of employers' attempts at improvement, which, regardless of such
attempts, may result in serious citations.
The proposed rule requires employers to identify and control all
ergonomic risk factors in their companies. To identify ergonomic
risk factors, employers would have to evaluate the duration,
frequency and magnitude of each risk factor and materially reduce
it to a level where MSDs likely will not occur. A typical employer
does not have the education necessary to make these determinations.
Therefore, the standard would require an employer to hire someone
with this ability, creating an undue financial burden.
Further the term "materially reduce" is never defined in the
proposed rule. Not only would an employer not know how to reduce
an MSD exposure, he could never be certain he had done so to the
satisfaction of a CSHO.
Another serious flaw in the proposed rule relates to the Work
Restriction Protection (WRP) provision. Here, OSHA would require
employers to place injured workers who have been diagnosed by a
physician on WRP. A contractor would be required to maintain 90
percent or 100 percent of an injured employee's salary for up to
six months, depending whether the worker must be transferred to
another job or placed on leave until he is capable of returning to
his regular job.
WRPs create undue financial burdens on employers because companies
are required to purchase workers' compensation insurance and pay
premiums commensurate to the hazards. The proposed rule allows
companies to offset the WRP with workers' compensation benefits.
However, when an injury is not covered, such as a rotator-cuff
injury in the Commonwealth of Virginia, a contractor must pay the
entire WRP. Not only is a contractor required to pay the injured
employee, but he will likely have to either hire another employee
or pay overtime to existing employees to maintain productivity.
Either way, this can have severe consequences for a small employer.
Trigger for Program Implementation
The proposed rule requires companies that have with manual-handling
jobs or manufacturing jobs to implement a basic program, even if
no injuries have occurred. A basic program consists of two
elements: a process where a team consisting of management and
employees identifies and evaluates workplace MSD hazards, and a
method to disseminate and report such information.
In fact, it is necessary to implement these elements even though
no injuries have occurred. Other OSHA standards, such as hearing
conservation, hazard communication and respiratory protection, do
not require implementation when exposures to loud noises, chemicals
or airborne contaminants are not present.
Further, the standard requires an employer to implement additional
program elements when one recordable MSD is reported. These
elements include job-hazard analyses, hazard control and
implementation, and program evaluation. This single-event trigger
presents an undue burden. Even the CalOSHA ergonomics standard is
triggered only when two identical MSD events are reported. Under
the proposal, an employer would be required to implement a
comprehensive ergonomics program when an injury is reported
regardless of its validity. For example, if an employee injures
his back playing baseball during the weekend and reports it as a
work-related injury, his employer is required to implement the
full program. The single trigger provides no relief from these
events.
Applicability of the OSHA Standard to Construction
The preamble of the proposed rule states that this standard will
not apply to the construction industry, but that it will be
considered later. NRCA believes that a construction ergonomics
standard would be difficult, if not impossible, to implement. A
roofing job site, for example, is a dynamic work environment where
there is no stationary work.
Although the proposed rule does not apply to construction, this
will impact the construction industry because there are many
construction contractors who produce materials for construction
jobs. Many small roofing contractors, for example, produce
gutters and downspouts in shops. Presumably this type of activity
would be covered by the standard. So an employee of a roofing
contractor may be covered by the standard when he works in the
shop, but not covered when he works on a roof. We think it would
be helpful to explicitly state that the rule will not apply to
construction employers regardless of the type of work their
employees perform.
Conclusion
Because NRCA believes OSHA's proposed rule is vague with no clear
objective benchmarks, employers will be exposed to serious
violations regardless of their attempts to provide a safe
workplaces.
It also creates a tremendous financial burden by requiring
employers to hire additional staff, pay additional benefits and
implement ergonomics programs even when no injury has occurred.
Finally, though OSHA does not intend to regulate the construction
industry, it does so indirectly as a result of the standard's
applicability to contractor operations that produce materials for
use or installation at job sites.
NRCA appreciates and shares OSHA's concerns regarding MSD-related
injuries. However, this proposed standard will do little, if
anything, to prevent those injuries. MSD-related injuries are
unique to each work environment and, as a result, OSHA's approach
does not address the problem.
Sincerely,
NRCA
William A. Good
Executive Vice President
