TESTIMONY OF ELAINE L. CHAO
SECRETARY OF LABOR
COMMITTEE ON HEALTH, EDUCATION, LABOR AND PENSIONS
UNITED STATES SENATE

APRIL 18, 2002

Chairman Kennedy, Senator Gregg, and members of the Committee, thank you for inviting me to appear before you to discuss ergonomic injuries in the workplace. I am pleased to be here to talk about the Department of Labor's new, comprehensive approach to ergonomics. I am confident that we have developed an approach that will effectively reduce ergonomics injuries in the workplace.

Over the past several years, few workplace issues have proved more contentious than what has become known as "ergonomics." Although injuries often related to ergonomic issues, referred to as Musculoskeletal Disorders (MSDs), have declined by 26 percent since 1992, calls for Federal action have been widespread. Since becoming Secretary of Labor, I have spent more time on this issue than any other issue, meeting with dozens of leaders from organized labor and industry, as well as medical experts, to discuss this problem. More importantly, I have spent time with injured workers who shared their stories with me, and I am determined to make their workplaces safe.

I feel strongly about the need to reduce ergonomic injuries in the workplace. The Department has backed up that belief with action. We are implementing a practical, four-pronged approach with concrete steps that we can take now, to address the issue of MSDs -- steps that will produce real results for American workers.

First, the approach calls for the development of industry-specific MSD prevention guidelines, with the first set to be completed this year. Second, it creates a new enforcement strategy to pursue bad actors who refuse to take the necessary steps to protect their employees. Third, we are establishing an outreach and assistance program, to make sure that employers, workers, labor unions, and health and safety professionals are aware of ergonomics issues and measures to resolve them. Finally, while there is a large body of research available on ergonomics, there are many areas where additional research is necessary, including those identified by the National Academy of Science (NAS). The Occupational Safety and Health Administration (OSHA) will serve as a catalyst to encourage researchers to design studies in areas where additional information would be helpful, by chartering an advisory committee on ergonomics to identify research gaps and by working closely with the National Institute for Occupational Safety and Health (NIOSH) and through the National Occupational Research Agenda process to encourage research in needed areas.

Sound principles underlie this approach. First and foremost, it will get workplace protections into place as quickly as possible. Even assuming that a scientifically valid rule could be prepared based on our current understanding of the nature of the relationship between work activities and certain injuries, following that route could take years. Our approach consists of steps we can take now, without waiting for the science to answer the many questions that exist about these injuries and their relationship to workplace ergonomic factors.

Carefully developed guidelines, together with a workable, targeted enforcement strategy, can begin to be rolled out this year. We should not delay further while we attempt to resolve scientific uncertainties. Guidelines suggest specific actions employers can take to address ergonomic hazards in the workplace while recognizing that different workplaces have different needs. Of course, guidelines capture existing best practices and provide voluntary solutions for the overwhelming majority of employers who want to find better ways to protect their workers. To target bad actors, this approach also includes the development of a serious enforcement strategy, under Section 5(a)(1) (the General Duty Clause) of the Occupational Safety and Health Act (OSH Act).

The Department of Labor's multi-pronged approach builds upon existing guidelines that have already proved effective in bringing down injury rates. MSDs in the meat products industry, for example, have fallen by 62 percent since 1992 -- more than twice the decline for all of private industry. We firmly believe this approach benefits both workers and employers. In particular, it avoids a one-size-fits-all mandate that would discourage employers from developing innovative, customized approaches to preventing MSDs. Given the evolving nature of the science, government simply does not have all the answers.

It is important to understand the context in which we have settled on this strategy. In the closing days of the Clinton administration, OSHA issued a controversial and broadly questioned ergonomics rule. Many interested persons have contended that the rule was rushed through without sufficient consideration of the voluminous public record. They thought that it failed to distinguish between job-related and non job-related injuries, and required employers to pay for work days that employees missed due to injuries that may not have been caused by work at all. They also argued that the rule did not adequately inform employers of what steps they must take to achieve compliance with the rule and that it would not have been effective in preventing injuries to workers. OSHA's final ergonomics rule was thought to be so flawed that bipartisan majorities in both houses of Congress voted to eliminate it early last year.

At that time, I promised to establish a comprehensive policy to address MSDs. It was critical that any Departmental approach to ergonomics be clear, effective, and capable of surviving legal challenges and Congressional review under the Congressional Review Act. After more than a year of work, including three public forums held around the country, the Department of Labor has unveiled an approach that will provide real protections for America's workforce. Inevitably, some will criticize the new approach, arguing that relying on enforcement and industry-specific guidelines instead of a formal rule does not go far enough. Such criticism ignores several realities.

For example, when promulgating a rule, OSHA should follow certain principles, such as making a scientifically valid determination regarding the degree of risk from various levels of activity. The lack of precise information about degree of risk, "dose-response" relationships, or feasible and effective controls, for example, would be a major hurdle to Agency efforts to promulgate a standard that meets legal requirements and protects workers. The risk assessment does not have to be based on 100% perfect information, but we need to know more about many types of MSDs than we do at this point in time.

Because of the practical realities involved in doing a rulemaking on ergonomics, I believe our new four-pronged approach is simply a more effective and realistic way of addressing the needs of workers and employers. Industry-specific guidelines and compliance assistance are, in fact, among the best ways to protect workers from MSDs. A simple look at OSHA's inspection numbers, which I will describe shortly, will explain why. OSHA cannot be in every workplace all the time. The bottom line is that workplace protections are only effective if employers have usable information and incentives to implement them on their own.

Of course, OSHA can, and will, crack down on those who ignore identified threats to worker safety. Enforcement is, accordingly, the second prong of our approach. In addition to responding to complaints, OSHA will address recognized hazards where they are identified in the course of planned inspections. In FY 2002, OSHA plans to conduct some 36,400 inspections overall, and in FY2003 we plan to do 37,700 inspections, including investigation of ergonomic hazards and including about 3,600 Site-Specific Targeting (SST) inspections. SST inspections, which target the Nation's most hazardous workplaces as determined by employer-reported injury and illness data, are thorough inspections that address both safety and health hazards in the workplace. The next round of SST inspections is scheduled to begin this month.

Along with that program, OSHA will be implementing a separate National Emphasis Program that will address hazards in the nursing home industry, including ergonomics hazards.

OSHA will not focus its enforcement efforts on employers who have implemented an effective ergonomics program or who are engaged in good faith efforts to correct the hazards. Inspections that identify ergonomic hazards will not necessarily result in citations. In some cases, OSHA will issue a Hazard Alert Letter that makes the employer aware of the hazard and provides information on feasible means of abatement and possible sources of assistance. Within twelve months, OSHA will conduct follow-up inspections or investigations of certain employers who receive a Hazard Alert Letter. To assist this effort, OSHA is also providing its inspectors with additional training on ergonomic hazards and abatement.

As you know, employers have two principal obligations under the OSH Act: to comply with standards and to provide a workplace free of "recognized hazards" under the General Duty Clause in Section 5(a)(1) of the OSH Act. Historically, OSHA has issued over 500 General Duty Clause citations related to ergonomic-type problems and issues. To be sure, the number of those citations dropped off considerably over the past few years because OSHA did not pursue General Duty Clause citations during the pendency of the rulemaking.

OSHA's new comprehensive approach to address ergonomic hazards, however, incorporates an enforcement strategy that will result not only in General Duty Clause citations, but also successful prosecutions. Let me just mention in this regard the successful settlement recently of a 5(a)(1) citation against Beverly Enterprises, Inc. nursing homes, under which the employer agreed not only to institute a lifting program in the 5 facilities that were the subject of citations, but to do so at each of their 240 nursing home facilities under Federal jurisdiction.

Building upon the Department's litigation successes in the Beverly Enterprises and Pepperidge Farm cases, OSHA will use the General Duty Clause to cite employers who fail to engage in good faith efforts to abate ergonomic hazards. OSHA will, in appropriate cases, issue 5(a)(1) citations involving ergonomic hazards, and I have instructed OSHA and the Solicitor of Labor to act accordingly. The Solicitor's office is preparing a new enforcement strategy that will help ensure that employers meet their safety obligations to their employees. As SEIU President Andrew L. Stern said in reaction to our victory in the Beverly case, "Nursing home workers suffer crippling back injuries, and now help is finally on the way."

Along with guidelines and enforcement, our comprehensive approach includes outreach and assistance, as well as research. OSHA will provide specialized training and information on guidelines and the implementation of successful ergonomics programs, administer targeted training grants, develop compliance assistance tools to help employers prevent and reduce ergonomic injuries, forge partnerships, and create a recognition program to highlight successful ergonomics injury reduction efforts. This effort will also include, as part of the Department's commitment to protecting immigrant workers, a specialized focus to help Hispanic and other immigrant workers, many of whom work in industries with high ergonomic hazard rates. Finally, in concert with NIOSH, OSHA will stimulate and encourage needed research by forming a national committee, which will advise OSHA about research gaps and other issues related to our approach to ergonomics. This measured, step-by-step, four-pronged approach assures that OSHA will fulfill its statutory obligation to protect American workers, while at the same time protecting against overreach and one-size-fits-all determinations.

While we implement our approach to reduce workplace MSDs, it is important to recognize that many American workplaces are addressing this problem on their own. MSDs have declined by 26% over the last decade, in part due to increased awareness regarding the problem. Many employers know that it is simply good business to prevent workplace injuries, and they are taking steps to do so. We need to avoid taking any action that would stifle the creativity and initiative that workplaces have demonstrated over the last several years to respond to this issue.

I want to thank the members of this Committee for allowing the process to run its course. We are now taking real steps to address the problem. Reducing MSD hazards will make all workplaces safer and improve the lives of thousands of American workers. The Department of Labor's comprehensive, multi-pronged strategy is the best way to reach these goals. I urge employers, workers, organized labor, and ergonomics experts to come together and help this strategy succeed.