Capitol Hill

An important victory occurred for NRCA when, on June 30, the Occupational Safety and Health Administration (OSHA) announced the OSHA 300 form, which is used to record workplace injuries and illnesses, will not be modified to include a separate column for musculoskeletal disorders (MSDs). OSHA's decision involves not just the recording of injuries but the entire ergonomics debate, as well.

OSHA's revised record-keeping rule was made final on the last day of the Clinton administration, Jan. 19, 2001, and went into effect Jan. 1, 2002. But the MSD provision, requiring employers to check a separate MSD column on the OSHA 300 Log, was delayed by the agency for further consideration and never went into effect.

The agency, now staffed by the Bush administration, was concerned that recording MSDs was not feasible because of a lack of scientific consensus about the definition of such injuries. Also, the terms "MSD" and "ergonomics injury" are used interchangeably, so recording MSDs would be tantamount to recording ergonomics injuries. On March 20, 2001, OSHA's ergonomics standard was rescinded by Congress. Recording MSDs could have sparked demand for a new standard despite being based on unreliable data.

I spoke with Secretary of Labor Elaine Chao about the link between recording MSDs and the ergonomics debate at a meeting of the U.S. Chamber of Commerce's Labor Relations Committee and suggested the MSD/ergonomics issue be subject to a new rulemaking. NRCA's written comments submitted to the U.S. Department of Labor on Sept. 4, 2001, stated that a reopened rulemaking for the MSD provision should not be limited in duration. In other words, it would be poor public policy to establish a date for the rulemaking to conclude with a definition of MSD/ergonomics injury when there was no reason to believe there would be a consensus about the definition within any particular time frame. OSHA's decision to make a clean break and cancel the MSD provision is consistent with NRCA's views about the issue, and the agency deserves praise for its decision.

Ballot initiative

The state of Washington made a poor decision when it imposed its ergonomics standard on the employer community in May 2000.

The Roofing Contractors Association of Washington and others in the construction industry have been fighting to repeal the state's standard since it went into effect.

This year, the Building Industry Association of Washington funded a successful signature-gathering effort for a state ballot initiative certified by Washington's secretary of state guaranteeing the issue of regulating ergonomics will go before voters in November.

The official ballot initiative reads, "This measure would repeal existing state ergonomics regulations and direct the department of labor and industries not to adopt new ergonomics regulations unless a uniform federal standard is required."

Reform bills

The U.S. House of Representatives recently has addressed OSHA issues. In May, Rep. Charlie Norwood (R-Ga.) introduced an Occupational Safety and Health Act reform bill, HR 1583, the Occupational Safety and Health Fairness Act of 2003. The act subsequently was split into three pieces of legislation—HR 2728, HR 2729 and HR 2730—when it was approved on July 23 by the House Subcommittee on Workforce Protections.

HR 2728, the Occupational Safety and Health Small Business Day in Court Act of 2003, would provide the Occupational Safety and Health Review Commission (OSHRC) some flexibility in applying the 15-day period employers have to contest OSHA citations and proposed penalties. The exceptions would be tightly limited to legitimate excuses, such as late mail delivery, and are intended to give employers the opportunity to make their case to the commission on merits rather than automatically losing by a technicality.

HR 2729, the Occupational Safety and Health Review Commission Efficiency Act of 2003, would expand—from three to five—the number of OSHRC members. The change was made to address a common situation in which the commission, which currently consists of three commissioners, does not have a quorum.

HR 2730, the Occupational Safety and Health Independent Review of OSHA Citations Act of 2003, would clarify that courts may defer to OSHA on matters of regulatory interpretation but deference would be given to OSHRC.

These bills currently are awaiting action in the House Committee on Education and the Workforce. No corresponding Senate bills have been introduced yet.

Craig S. Brightup is NRCA's vice president of government relations.