STATEMENT OF JOHN L. HENSHAW
ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH
BEFORE THE
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
COMMITTEE ON EDUCATION AND THE WORKFORCE
U.S. HOUSE OF REPRESENTATIVES

April 25, 2002

Mr. Chairman, Members of the Subcommittee:

Thank you for this opportunity to describe OSHA's overall strategy for addressing ergonomic hazards. As you know, in March 2001, Secretary Chao made a commitment to develop a comprehensive approach to ergonomics. Just one year later, we have announced OSHA's plan for reducing ergonomics hazards. I am confident that our approach will protect American workers from injuries associated with such hazards. Our plan is multifaceted, in order to address, in a practical way, the many aspects of this issue.

Over the past several years, few workplace issues have proven more contentious than ergonomics. Although injuries associated with ergonomic issues have declined by 26 percent since 1992, we need to achieve further reductions, and calls for Federal action have been widespread.

I want to emphasize what Secretary Chao has said repeatedly: injuries associated with ergonomic hazards are real, and we are committed to reducing them. Secretary Chao has spent more time on ergonomics than any other issue, meeting with dozens of leaders from organized labor and industry, as well as medical experts. Last July, when the Department conducted three public forums around the country, OSHA heard from 100 speakers and collected 368 written comments. OSHA also met with stakeholder groups and individuals who were concerned about this problem. We then analyzed the comments and recommendations and reviewed information from other sources, including relevant portions of the ergonomics rulemaking by the previous Administration. OSHA carefully studied various options for reducing ergonomic hazards and researched alternative approaches.

We have produced a four-pronged, comprehensive, approach to ergonomics that we believe will effectively address MSDs in the workplace. First, our approach calls for the development of industry-and-task-specific guidelines. The first set of guidelines, which are specific to the nursing home industry, will be completed this year. Second, it creates a new enforcement strategy under existing law to pursue employers who refuse to take the necessary steps to protect their employees. Third, we are establishing an outreach and assistance program, to ensure that employers, workers, unions, and health and safety professionals are aware of ergonomic issues and measures that can be taken to address them. Finally, while there is a large body of research available on ergonomics, there are many areas where additional research is necessary. The Agency will create a national advisory committee, which will advise us on these gaps, as well as the development of ergonomics guidelines, and outreach and assistance materials. We also intend to work closely with NIOSH.

OSHA's plan is based on the Secretary's principles for a sound approach: sound science; incentives; flexibility and avoiding a one-size-fits-all approach; feasibility; and clarity in providing practical solutions. Our approach consists of steps we can take now, while science pursues a better understanding of the relationship between these injuries and workplace factors and tasks.

Guidelines

OSHA will develop industry-and-task-specific guidelines that reflect what is known in terms of best practices and effective and feasible abatement methods. We will issue the first set of guidelines this year. Guidelines will suggest specific action employers can take to address ergonomic hazards in the workplace, while recognizing that different workplaces have different needs.

One question will, and should, be asked: why guidelines and why not a rule? Mr. Chairman, it took 10 years and $10 million to develop the previous and now discredited ergonomics standard. Our goal now should not be to rush out another rule for the sake of issuing of a rule. After all, the rulemaking process is prospective and does not, by itself, alleviate ergonomic hazards. At some point, the rubber needs to meet the road; and, as Secretary Chao has said, the time is now. Our goal is to address ergonomic hazards in the most effective way possible. We have announced what we will do to accomplish this, and we will follow through. But, we will not spend more years trying to write a one-size-fits-all standard.

In addition, when promulgating a rule, OSHA should follow certain practices, such as making a scientifically valid determination regarding the degree of risk from various levels of activity. To the extent OSHA cannot establish a meaningful relationship between levels of risk and employees' workplace activities, for example, or determine types of controls that are feasible and effective for those activities, such information gaps confound efforts to construct a workable standard. 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.

We already know that guidelines -- that is, helping employers to identify problems in their workplaces and providing practical, useful steps to take to reduce hazards -- are effective. As many of you know, in the early 1990s OSHA issued guidelines for the meat products industry. Ergonomics-related injuries in that industry have fallen by 62% since 1992, more than twice the decline for all of private industry.

Enforcement

Enforcement is the second prong of our ergonomics approach. Under Section 5(a)(1) of the Occupational Safety and Health Act (the General Duty Clause), employers must keep their workplaces free from recognized hazards. OSHA's new comprehensive approach to ergonomics incorporates an enforcement strategy that we believe will result not only in General Duty Clause citations, but also in successful prosecutions.

I want to make it clear that we are not enforcing guidelines -- Indeed, if we were, that would merely make them a rule by another name. Rather, we are enforcing the obligation that employers have had since the Occupational Safety and Health Act was passed in 1970 --- to keep their workplaces free of recognized hazards. Historically, OSHA has issued over 500 General Duty Clause citations for ergonomics-related hazards. The number of such citations dropped off over the past few years, as the Agency did not pursue General Duty Clause citations during the pendency of the rulemaking. Secretary Chao has instructed me, as well as the Solicitor of Labor, to again use Section 5(a)(1), where appropriate, for ergonomics citations.

I know that there is skepticism, on the part of some, about whether enforcement using Section 5(a)(1) will be effective and meaningful. There has been much concern, on the part of others, about whether enforcement using Section 5(a)(1) can be fair. I believe we can address both concerns. Obviously OSHA, working with the Solicitor of Labor, will build on previous experience with Section 5(a)(1) citations, including the few cases that have been litigated, in developing a new enforcement strategy.

One illustration of effective, meaningful, and fair enforcement under Section 5(a)(1) is our recent settlement of a citation against Beverly Enterprises Inc. nursing homes, under which the employer agreed not only to institute a lifting program in the five facilities that were the subject of citations, but also to do so at each of its 240 nursing home facilities under Federal jurisdiction. Based upon the Department's litigation successes in the Beverly Enterprises and Pepperidge Farm cases, we know that OSHA can both effectively and fairly use the General Duty Clause to cite employers who fail to engage in good-faith efforts to abate ergonomic hazards. Make no mistake: OSHA will not tolerate employers that ignore recognized ergonomics hazards. The question, after all, is whether employers will responsibly protect their employees from known dangerous working conditions. Those that do not -- I assure you -- can expect to hear from us.

As appropriate, OSHA also will address ergonomic hazards in workplaces inspected through its Site Specific Targeting Plan for 2002. These 3,600 worksites were selected from the 80,000 sites required to send injury/illness data to OSHA. They have Lost Workday Injury/Illness Rates of 14.0 per 100 workers or higher, which is four times the national average, and many of these injuries are related to ergonomic hazards. Using the SST list will help us focus our enforcement efforts where injuries are occurring, and we will work with those employers to reduce hazards, issuing citations where appropriate to achieve worker protections.

In many cases, employers may be taking some steps to abate hazards, but problems still persist. In those instances, the Agency may issue ergonomic hazard-alert letters when appropriate. These letters make employers aware of hazards and provide information on feasible means of abatement and sources of assistance. Within 12 months, OSHA will conduct follow-up inspections or investigations in certain work sites that receive the hazard-alert letters.

To ensure that our staff can recognize ergonomic hazards and suggest effective abatement methods, OSHA will conduct specialized training for its employees, which will include information about "best practices," sources of expert assistance, and recent relevant case law development. On April 9, I named regional coordinators for ergonomics in each of OSHA's 10 regional offices. The coordinators have all had considerable experience in identifying ergonomic hazards and suggesting practical solutions. They will guide OSHA's compliance staff in conducting inspections and documenting hazards. The regional coordinators will also participate and track the ergonomics outreach efforts in each region.

Outreach and Assistance

Compliance assistance and outreach are essential components of our ergonomics strategy. OSHA will provide assistance to businesses, particularly small businesses, to help them proactively address ergonomic problems in the workplace. Once voluntary guidelines are released, OSHA will assist and train employers in implementing the guidelines. Local OSHA offices have a compliance assistance specialist who works with the community and directs employers and employees to the best sources of advice on safety and health.

OSHA's training grants are designed to enable private sector organizations to increase their occupational safety and health competency. In FY 2002, OSHA is targeting grants to address ergonomics. Grantee organizations will be expected to develop ergonomic training materials as well as to provide training to employers and employees on ergonomic risks and the prevention of MSDs. OSHA also funds 12 nonprofit Education Centers around the Nation, which provide safety and health training to private-sector personnel and safety and health professionals working for other Federal agencies. Ergonomics courses are an integral part of their curricula. In the past year, the centers have conducted almost 40 courses that included at least some discussion of ergonomics. Distance learning through the use of computers and other techniques will allow training materials to reach a wider audience.

OSHA's Internet and CD-ROM-based compliance assistance tools, known as e-Cats and Expert Advisors, have proven useful and very popular in providing information on how to deal with hazards such as asbestos, cadmium, confined spaces, and fire safety. The interactive tools are highly illustrated and enable the user to ask questions about a specific workplace and receive reliable advice on how OSHA's standards apply to that site. OSHA is developing a similarly comprehensive set of such tools to assist employers, particularly small businesses, in understanding ergonomic guidelines and addressing ergonomic problems. OSHA will use examples of best practices within various industries to guide other employers in protecting their workforces.

OSHA now has 134 partnerships with private-sector participants throughout the Nation. Many partnerships are at the local level, where an OSHA Area Office works with a local union or employer organization to improve workplace conditions in particular establishments. Partnerships can also be national in scope, such as that among OSHA, Ford Motor Company and the United Auto Workers to develop joint inspection protocols for safety and health in auto manufacturing. We will now focus on developing similar new partnerships that highlight the value of voluntary ergonomic guidelines.

OSHA's Voluntary Protection Program (VPP), which recognizes workplaces that go beyond the Agency's requirements in protecting workers, will be used to showcase effective ergonomic solutions. There are 833 VPP sites throughout the Nation. VPP may choose to mentor other workplaces, using their experience with successful ergonomics programs to help others achieve the same results. In addition to VPP, OSHA will develop a new recognition program to highlight the achievements of worksites with exemplary or novel approaches to ergonomics.

One area of particular concern to the Department and to OSHA is the safety of immigrant workers, and the ergonomics plan includes special emphasis on assisting Hispanic and other immigrant workers. Many immigrant workers are employed in industries that have large numbers of ergonomic hazards. OSHA has begun to address this problem in a number of ways, including the establishment of a Hispanic Workers Task Force, creation of a 1-800 number accessible to Spanish-speaking individuals, and the translation of OSHA publications into Spanish. Our outreach to immigrant workers is not limited to Spanish-speaking workers. Many regions have in place or are developing programs and publications to address other languages. For example, OSHA's Chicago regional office is engaged in a major outreach effort to Polish-speaking workers and OSHA's Region IX, in the West, maintains an 800 number complaint and technical assistance line that provides information in Spanish, Korean and Tagalog.

Research

While there is a large body of research available on ergonomics, there are many areas where additional information is necessary. In the ergonomics studies mandated by Congress in recent years, the National Academy of Sciences has identified gaps in the available information, such as the need for improved methods to measure and assess physical stress in the workplace. OSHA will serve as a catalyst, encouraging researchers to design studies that would produce information that is currently lacking.

We will soon publish in the Federal Register the details of a new national advisory committee on ergonomics which, among other duties, will be asked to identify gaps in research related to the application of ergonomics and ergonomic principles in the workplace, and advise on ergonomics guidelines, outreach and assistance. OSHA also will, of course, continue to work closely with NIOSH, and through the National Occupational Research Agenda process, to encourage needed research in this field and to ensure that advances in science are communicated in practical terms to employers and workers.

Conclusion

While we implement our approach to reduce workplace MSDs, it is important to recognize that many American workplaces are already addressing this problem on their own. MSDs have declined by 26% over the last decade in part due to increased awareness of this problem. Many employers know that it is simply good business to prevent workplace injuries and they are taking steps to do so. Several years ago, the Agency held a conference at which many employers presented the results of their own ergonomics best practices. We will build on these results to help other employers reduce ergonomic hazards and encourage the continued creativity and initiative that has been demonstrated by employers and workers over the past several years in response to this issue.

Mr. Chairman, I have spent a lifetime in the occupational safety and health profession developing and advocating for programs that protect workers -- programs that actually work. I have always taken a systematic approach to worker protection. There are very few workplace hazards that can be eliminated with a quick-fix. Solutions come from gathering data, analyzing the information and using a multifaceted approach to solving problems. Ergonomics is best addressed in this fashion. As the Secretary has said, "Reducing MSD hazards will make all workplaces safer and improve the lives of thousands of American workers." We believe the comprehensive plan we have put forward will advance that objective. Thank you. I would be pleased to answer any questions.