INFORMATION PAPER - OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION (OSHA)

Ergonomics Final Rule
65 FR 68262 - 68870
November 14, 2000

On November 14, 2000, the U.S. Occupational Safety and Health Administration (OSHA) published in the Federal Register a final rule on ergonomics standards to address the risk of work-related musculoskeletal disorders (MSDs) injuries and illnesses. This far-reaching rule imposes a complex bureaucratic maze on millions of manufacturing, service, financial, education, and other general industry employers.

The final rule addresses the risk of work related musculoskeletal (MSD) injuries and illnesses in the workplace. This ergonomics rule, which is opposed by the U.S. Chamber of Commerce, the National Association of Manufacturers (NAM), the National Coalition on Ergonomics (NCE), and other business groups, provides a sweeping set of standards that OSHA believes will reduce injuries and illnesses in the workplace environment. OSHA has concluded that MSD injuries, which account for one-third of all occupational injuries and illnesses, can be reduced through the implementation of its ergonomics program. This final rule can affect approximately 6.1 million workers and 102 million employees. MHI is strenuously opposed to any type of ergonomics program being initiated for the manufactured housing industry.

The final rule was completed just twelve months after publication of the proposed rule, is significantly broader than the original proposal, and includes numerous provisions never subjected to public review. General industry will have to implement a comprehensive ergonomics program if just two employees claim to have experienced a sign or symptom of an MSD, such as carpal tunnel syndrome or lower back pain. Employers, and possibly even OSHA inspectors, may face uncertainty and confusion in applying the final rule's many processes and undefined terms to the diverse workplace environment.

This final rule can affect almost the entire manufactured housing industry. Manufactured home producers will be included since they employ assembly line techniques and manual lifting jobs on a daily basis to produce manufactured home sections. Many suppliers of products to the manufactured home industry would also be affected in the same manner. Manufactured home retailers, State-based manufactured housing associations and community owners can also fall under the OSHA ergonomics program that pertains to office environments. It targets workers who sit in front of a computer screen all day, typing and using a mouse. There are only four facets of the United States general industry that would not be affected by the ergonomics program: the maritime, construction, railroad and agricultural industries. Manufactured home installers would be exempt from the new rules since the manufactured home set-up would be considered a part of the construction industry.

There is no absolute manner to control the hazards of repetition, vibration and physical force required in the production facility setting of manufactured home construction. MHI has argued that OSHA should recognize that the bulk of the work completed in a manufactured housing production facility is very similar to the work completed in site-built homes. Consider that both home types are built with heavy toilets that must be lifted, electrical wires that must be pulled through wall studs, pneumatic hammers that must place nails, flooring that must be sanded and lumber that must be hoisted. Since OSHA has acknowledged how difficult it would be to regulate ergonomics hazards in the construction industry, MHI emphasized that it would be equally difficult to control these same hazards of construction inside the production facility.

An ergonomics rider was appended to the Labor Health and Human Services (HHS) spending bill that would have prevented the OSHA ergonomics standard from being published as a final rule. However, since OSHA published the final rule on November 14, 2000, and before Congress had acted on the HSS bill, the rider has officially become mute. There was no movement on the Hill to insert any other type of language into the spending bill concerning ergonomics at the close of the recent congressional session.

In response to the proposed rule issued in November 1999, MHI joined the National Coalition on Ergonomics (NCE). The NCE is an offshoot of the National Association of Manufacturers (NAM). MHI has become party to a petition for review (lawsuit) that was filed on November 22, 2000 in the US Court of Appeals for the District of Columbia on behalf of the NCE to block the ergonomics final rule. Other industries have filed petitions for review, including the unionized labor force who wish the ergonomics final rule was more stringent. All petitions have been consolidated to be heard before one court, the DC Court of Appeals, which was the NCE's first choice.

In the mean time, the NCE has held three meetings to inform interested parties on the three fronts being pursued, the administrative end, the court end, and through Congress. The administrative front consists of petitioning OSHA to stay (delay) the implementation date of the final rule, for at least a year. This stay was filed on December 6th, and OSHA has subsequently denied that request. The second front, the court end, is to file a stay with the Court of Appeals in a late January/early February 2001 timeframe. This stay, if granted, would permit the court proceedings to be completed, and decide the fate of the lawsuits, before the ergonomics final rule can be implemented. Since it is anticipated that the lawsuits will not be resolved until the Spring 2002, the stay is needed so employers will not have to implement any ergonomics groundwork by October 15, 2001 for interim control measures.

The third front is a possible "Resolution of Disapproval" through the Congressional Review Act under the new Bush administration. Both the NCE and NAM are working this avenue to rescind the ergonomics final rule through their grassroots effort on the Hill to educate the new congressional members of the importance (negative impact) of the ergonomics standard to the general industry. NCE is developing an expedited procedure. This procedure would deny the OSHA final rule from being implemented in the workplace environment. NCE anticipates that both the House and Senate to support the expedited procedure, and then on to the White House for President Bush's signature. Invoking the Congressional Review Act for the first time ever would be advantageous for the general industry as a whole.

In order of importance, the NCE has ranked these three fronts from highest potential to lowest potential for stopping the ergonomics final rule in its tracks. The best avenue is the invoking of the Congressional Review Act. The second is the potential stay through the Secretary of Labor, once this person is selected and confirmed. Lastly, the lawsuit front is the least desirable since the outcome can not be predicted with any amount of certainty.

Unless and until the federal courts, Congressional and/or a potential Bush administration intervenes, it is likely that employers across the country will be required to quickly familiarize themselves with the multi-faceted requirements of the OSHA Ergonomics Program Standard. Its potential application in the manufactured housing industry can affect all aspects except home installers.

We also encourage members to obtain a copy of the 600+ page final rule from the Federal Register website, http://www.osha-slc.gov/ergonomics-standard/index.html, for review by whoever is responsible for your safety related programs. Acting now would put fewer burdens on your company should other avenues to block ergonomics intervention in the manufactured housing industry, and general industry, fail to be successful.

MHI has developed an OSHA Ergonomics Resource Materials document, which contains information from OSHA and the NCE. This document does not indicate how each segment of the manufactured housing industry would comply with the ergonomics final rule. It is only a resource document for valued informational purposes. If the current fronts the NCE is fighting do not block the implementation of the OSHA final rule, industry must start to comply on October 15, 2001. This means that industry segments must start no later than an April/May 2001 timeframe to review their safety programs and determine whether ergonomics intervention is necessary. To obtain a copy of this document, please contact Keisha Pheney at (703) 558-0667 or keisha@mfghome.org.

In the future, MHI plans to develop industry guidelines to satisfy the ergonomics requirements whether or not the NCE efforts fail. The target date for draft guideline completion is the end of February 2001.