March 1, 2000

OSHA Docket Office
Docket No. S-777
U.S. Department of Labor
200 Constitution Avenue, N.W., Room N-2625
Washington, DC 20210

RE: Proposed rule on the new Ergonomics Program (64 Fed. Reg. 65,768)

The American Society of Civil Engineers (ASCE) is pleased to provide comments to the Occupational Safety and Health Administration (OSHA) on its proposal to create an ergonomics program standard to address the risk of musculoskeletal disorders (MSDs). ASCE, however, wishes to reiterate the concerns stated in our letter of December 10, 1999 concerning the lack of sufficient time to thoroughly review the proposed rule. Even with the thirty day extension, the full impact of the proposed rule on the practice of civil engineering could not be fully assessed in the time permitted. The comments below reflect a very general review of the proposed rule.

ASCE BACKGROUND

ASCE was founded in 1852 and is the country's oldest national civil engineering organization. It represents more than 123,000 civil engineers in private practice, government, industry and academia who are dedicated to protecting public health and safety. The practice of civil engineering is broad and varied and touches on many aspects of modern life. Simply put, civil engineers are responsible for the design and construction of the nation's built environment - the highways, bridges, railroads, waterways, tunnels, water supply, waste treatment and other systems essential to modern life.

COMMENTS

Although this phase of the proposed rule excludes the construction industry, ASCE recognizes that the construction industry includes 'manual handling' jobs requiring forceful exertions, and has jobs where 'OSHA recordable' MSDs meeting OSHA's screening criteria are reported. However, OSHA has little or no data regarding MSD's in construction or any practical solutions to any problems that may exist. But the materials for construction such as steel, concrete and pre-fabricated assemblies etc., are produced in manufacturing industries which are covered by the proposed rule.

Table VI-6, page 65934, of the OSHA proposed rule provides estimates of the incidence of lost-workday MSDs for the 75 occupations having the highest incidence of employer-reported MSDs, in 1996. Sixteen (16) of the 75 occupations are related to construction, with the incidence per 1000 workers ranging from 5.8 to 23.3. The number of employees in the construction-related occupations, in the OSHA VI-6 Table, who suffered MSDs in 1996 total to 3.0 million. Some of the construction occupations in the table are common to other industries, therefore the 3.0 million figure is on the higher side. The statistics, however, indicate that a significant number of construction workers, trades, and supervisors suffer MSDs at worksites.

The MSDs are currently cited by OSHA under the authority of section 5(a)(1) of the Occupational Safety and Health Act. The construction companies are simply not aware of the risk factors that cause MSDs. However, if an Ergonomics Program is required of all employers, as in the proposed rule, the employers will benefit in two ways:

• They will implement engineering controls and/or administrative practices to eliminate or minimize the risk factors that are known to cause MSDs, and
• The employees, after proper training as required in the proposed rule, will improve their work methods, body postures, and tools; and thus avoid MSDs.

Pre-Employment Screening

Construction employees have no reasonable objective method of identifying a pre-existing MSD during the hiring process, nor is there any baseline against which to measure compliance. In a hearing conservation program, it is possible for an employer to perform a baseline audiometric analysis. The same is not true of MSDs. To evaluate job performance skills an employer can establish physical performance tests to ensure competent performance, but such tests cannot identify pre-existing MSDs.

Employee Responsibility

In the planning, design, and construction or maintenance of civil engineering works, MSDs are caused by poor body postures, manual material handling, and improper hand and power tools or work methods. While the employers can play a role in reducing ergonomic injuries by using techniques such as improving work methods, rotating workers on different jobs, providing mechanical aids for manual handling tasks, and training workers; the workers themselves play a much more significant role in learning, accepting, and using the ergonomic tools, body postures, and work methods. Any prevention standard must, therefore, hold workers accountable for not using ergonomic methods or tools after they are trained. Several studies have concluded that more than 80% of the accidents are caused by the unsafe acts of workers, and only about 10% - 12% of the accidents are caused by unsafe conditions. A few countries that have enacted laws to penalize workers for unsafe acts have lower injury incidence rates. In view of the significance of workers' participation in ensuring safety at work-sites, ASCE in Policy Statement 350 "Construction Site Safety" states:

'All on site workers, after proper training, assume personal responsibility and accountability for their actions, including knowing and observing safety rules and safe work procedures, wearing and using the required clothing, equipment and protective devices and being free from drugs sand alcohol.'

The proposed rule does not hold workers responsible for not following ergonomic principles after they are trained. Appropriate penalties on workers for specific violations of ergonomic work methods, body postures, and not using safe tools, etc., must be defined in the proposed rule.

ASCE acknowledges OSHA's rule making role, as evident in the following clause of Policy Statement 350:

'The Occupational Safety and Health Administration (OSHA) continues to identify safety and health hazards and establish technical rules and standards, while emphasizing voluntary participation, education and training'.

By their very nature MSDs, when reported, pose several problems to the employer, the health care provider, and the insurance company:

• They could be fully, or partially psychophysical. Poor worker-supervisor relationship, lack of interest (apathy) in work, monotonous or boring jobs, or other job-related frustrations may trigger physical pains.
• They may not be work-related.
• They could be the result of normal degenerative process of aging, and/or genetics; or some underlying (pre-existing) condition(s).
• They could be completely non-existent; and might be reported with fraudulent intention, such as: back ache, head ache, etc. Most of such cases can not be diagnosed instantly and definitively, while resulting in days away from work.

Potential Costs Associated with Implementation of Proposed Rule

The proposed Standard states that "The employer shall not be required to implement controls that are not economically and technologically reasonable and feasible." Below is a short list of potential costs associated with implementing controls for ergonomics.

• Increase in Worker's Compensations claims.
• Use of Consultants to determine Risk Factors and creating JSA for each job.
• Training costs and specific training for each job.
• Evaluation and record keeping costs.
• Professional medical involvement.
• Weight factors may affect suppliers packaging and increase cost of supplies. Potential increase in legal costs for contesting claims and adjusted pre-hiring techniques. Infringement on EEO laws such as Americans with Disabilities Act (ADA) and Age Discrimination in Employment Act (ADEA).

Changes in Rule Needed

In view of the nature of MSDs the ergonomics standard must include the following as a minimum to avoid placing an unnecessary and unfair burden on the employers:

• Employees must be held responsible for any willful unsafe acts, and for not complying with the safety rules such as: not wearing required PPEs, and not using ergo tools when provided. Dollar penalties should be defined for each specific safety violation by the employees, after they are properly trained.
• Employees should be required to report existing MSDs soon after employment. They should be required to take medical examinations for pre-existing MSDs; and for physical strength, and mental capabilities.
• Severe penalties must be defined for fraudulent reporting of MSDs by workers
• To suit the task to the worker, employers should be authorized to assign tasks to workers according to their physical and mental capabilities.
• OSHA, before implementing the proposed rule, should initiate research to document procedures to distinguish work-related MSDs from those that occurred at home, in sport, or at other private and uninsured jobs.
• OSHA should determine a formula to discount the effect of aging on each of the reported MSDs. For example the degree of 'loss of hearing' should be defined as to how much it is due to age.
• The several psychophysical factors that can cause MSDs should be researched, and documented. This will enable employers to control such factors as far as possible.

Conclusion

In the absence of definitive and well-researched answers to the above questions, the proposed ergonomics standard will trigger a flurry of employee claims for MSDs whose etiology has, as yet, not been exactly determined. The employers may have a huge burden of compensating almost every employee in his/her working life.

In conclusion, the proposed ergonomics rule in its present form imposes unfair burden on the employer; will trigger a flurry of MSD complaints and lawsuits, some of which could be frivolous; and is unworkable and inefficient because it does not include an enforceable employee participation.

Respectfully submitted,

Delon Hampton, Ph.D., P.E.
President