ICFA Submits Comments as OSHA Develops New Ergonomics Program
by Robert M. Fells, Esq., general counsel
This summer, the Bush administration initiated a new review for an ergonomics workplace safety program in the wake of the onerous plan implemented by the Clinton administration but repealed by act of Congress earlier this year (see the June column for details). Public forums were held during July in Washington, D.C.; Chicago, Illinois; and Stanford, California.
The new approach outlined by Labor Secretary Elaine Chao stresses a "common sense" method for preventing musculoskeletal disorders (MSDs) through cooperation between OSHA (Occupational Safety and Health Administration) and employers. The hearings were not specifically structured but instead were designed to solicit ideas about the best method of developing an ergonomics program. The ICFA submitted comments outlining its concerns with any program, especially the effect on small businesses.
The ICFA comments were submitted by Past President Edward C. Laux, CCE, who noted there are at least 100,000 cemeteries and approximately 22,000 funeral homes in the United States. "The vast majority of cemeteries and funeral homes, approximately 87 percent, are small businesses and family-owned operations. The owners of these small businesses wear a number of hats, including that of legal compliance officer for the many governmental regulations they face, both state and federal, including existing OSHA standards. We urge the department to bear these factors in mind when developing 'user friendly' regulations that can be easily understood and implemented by individuals who may have little formal training in comprehending the language of government regulations."
Laux commented on the historically low injury rate of cemetery and funeral home workers, rates that are confirmed by OSHA's own statistics. "Based on my own personal experiences of over 40 years in this industry, I have found that our members have more often been fined for paperwork violations than for any injuries sustained by their workers due to an unsafe worksite. More importantly, many of the MSDs that potentially would be covered in an ergonomics program involve activities whereby cemetery and funeral home workers use tools, power lifts and other equipment that significantly reduce the potential for injury. For example, the mechanical backhoe has virtually eliminated the hand-digging of graves and consequential back injuries."
The ICFA urged the Labor Department to establish a threshold rate based on actual reported injuries as "a practical method of determining which businesses should be covered by an ergonomics program in the first place."
The ICFA comments also suggested that alternative approaches be explored to encourage workplace safety, such as qualifying specific MSDs under state workers compensation laws. "Under this approach, the insurance industry will have strong incentives to develop prevention programs to keep the number of claims down. Businesses will likewise have every incentive to adopt such prevention programs to keep their insurance premiums at a minimum. We feel this approach creates a more positive environment for worker safety than the 'carrot-and-stick' approach of threatening ruinous fines in order to obtain compliance with regulations that are subjective in terms of measuring compliance."
The Labor Department plans to issue a report in September, taking into account comments submitted, to identify a course of action for proposing a new ergonomics program.
In a related development, the Mayo Clinic recently published a study indicating that heavy computer use does not increase the likelihood of carpal tunnel syndrome, an MSD involving the wrist. In creating a program for ergonomics injuries, a National Academy of Sciences report issued earlier this year noted that, "No single strategy is or will be effective for all types of industry."
The ICFA supports the National Ergonomics Coalition, a broad-based group of trade associations and industries advocating practical prevention for MSDs.
Members will be kept informed of important developments.