H. Rept. 106-272 - 106th Congress (1999-2000)
July 29, 1999, As Reported by the Education and the Workforce Committee

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House Report 106-272 - WORKPLACE PRESERVATION ACT




[House Report 106-272]
[From the U.S. Government Printing Office]



106th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    106-272

======================================================================



 
                       WORKPLACE PRESERVATION ACT

                                _______
                                

 July 29, 1999.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______


   Mr. Goodling, from the Committee on Education and the Workforce, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 987]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Education and the Workforce, to whom was 
referred the bill (H.R. 987) to require the Secretary of Labor 
to wait for completion of a National Academy of Sciences study 
before promulgating a standard or guideline on ergonomics, 
having considered the same, report favorably thereon without 
amendment and recommend that the bill do pass.

                                PURPOSE

    The purpose of H.R. 987, the Workplace Preservation Act, is 
to ensure that the National Academy of Sciences (NAS) completes 
the study (provided for in Public Law 105-277) of the available 
evidence examining ``the cause and effect relationship between 
repetitive tasks in the workplace and musculoskeletal 
disorders'' before the Occupational Safety and Health 
Administration (OSHA) promulgates an ergonomics standard or 
guidelines.

                            COMMITTEE ACTION

    The Committee on Education and the Workforce has been 
active in bringing attention to the questions of the scientific 
soundness and the effectiveness of a national ergonomics 
standard. A detailed explanation of the hearings follows:

                             105th Congress

    In the 105th Congress, the Subcommittee on Workforce 
Protections held a hearing on May 21, 1997, to hear first hand 
what the medical community understands about so-called 
``ergonomics'' injuries and illnesses, as well as the current 
state of medical knowledge of the causes and remedies for the 
general area of back, arm, neck, hand, and other 
musculoskeletal strains, aches, and pains. The witnesses 
testifying at the hearing included: Dr. Howard M. Sandler, 
M.D., President, Sandler Occupational Medicine Associates Inc., 
Melville, New York; Dr. Nortin M. Hadler, M.D., F.A.C.P., 
F.A.C.R., Professor of Medicine and Microbiology/Immunology, 
University of North Carolina, and Senior Attending 
Rheumatologist, North Carolina Memorial Hospital, Chapel Hill, 
North Carolina; Dr. Morton L. Kasdan, M.D., F.A.C.S., Clinical 
Professor of Surgery, Department of Preventive Medicine and 
Environmental Health, University of Louisville, Louisville, 
Kentucky; Dr. Stanley J. Bigos, M.D., Professor of Orthopedics 
and Adjunct Professor of Environmental Health, University of 
Washington, Seattle, Washington; and, Dr. Laura S. Welch, M.D., 
F.A.C.P., F.A.C.O.E.M., Professor of Medicine and Healthcare 
Sciences, Director, Division of Occupational and Environmental 
Medicine, George Washington University, Washington, D.C.
    The Subcommittee on Oversight and Investigations held a 
hearing on July 16, 1997, to examine the feasibility of an 
ergonomics standard covering the multiple types and sizes of 
businesses and industries operating in the United States. This 
hearing reviewed the types of ``ergonomics'' issues being 
experienced in a broad range of industries, and the steps 
currently being taken to address these concerns. Witnesses 
testifying at the hearing included: Dr. Nelson Conger, DDS, 
Dalton, Georgia; Mr. Douglas B. Adams, Safety Coordinator, San 
Diego Unified School District, San Diego, California; Dr. Mark 
Berkman, Vice President, National Economic Research Associates, 
Inc., San Francisco, California; Mr. Carl Loop, Jr., President, 
Florida Farm Bureau Federation, Gainesville,Florida; and Dr. 
Franklin E. Mirer, Director, Health and Safety Department, 
International Union, United Auto Workers, Detroit, Michigan.

                             106th Congress

    The Subcommittee on Workforce Protections held two hearings 
regarding an ergonomics standard in 1999. The first was on 
March 23, 1999, and focused on oversight of the Occupational 
Safety and Health Administration, specifically on OSHA's 
regulatory agenda, including a proposed ergonomics standard. 
Testifying at the hearing were: Mr. Charles N. Jeffress, 
Assistant Secretary for Occupational Safety and Health, U.S. 
Department of Labor, Washington, D.C.; Mr. Stuart McMichael, 
President, Custom Print, Inc., Arlington, Virginia, 
representing the Printing Industries of America, the National 
Federation of Independent Business, and the Alliance for 
Workplace Safety; Mr. David G. Sarvadi, Attorney-at-Law, Keller 
and Heckman LLP, Washington, D.C., representing the National 
Coalition on Ergonomics; Mr. James Elmer, James W. Elmer 
Construction Company, Spokane, Washington; and Mr. Bill 
Borwegen, Occupational Health and Safety Director, Service 
Employees International Union, Washington, D.C.
    On April 21, 1999, the Subcommittee on Workforce 
Protections held a hearing on legislation to amend the 
Occupational Safety and Health Act. Among the bills considered 
was H.R. 987, the Workplace Preservation Act. The witnesses 
testifying on H.R. 987 included the Honorable Roy Blunt, Member 
of Congress, 7th District of Missouri; the Honorable Nancy 
Pelosi, Member of Congress, 8th District of California; Dr. 
Stanley J. Bigos, Professor of Orthopedics with the Bone and 
Joint Center at the University of Washington Medical Center, 
Seattle, Washington; and Dr. Michael Vender, Hand Surgeon, Hand 
Surgery Associates, Arlington Heights, Illinois.
    On May 19, 1999, the Subcommittee on Workforce Protections 
approved the Workplace Preservation Act (H.R. 987) and ordered 
it favorably reported to the Full Committee by voice vote. On 
June 23, 1999, the Committee on Education and the Workforce 
approved the Workplace Preservation Act (H.R. 987) by a roll 
call vote of 23-18 and ordered the bill favorably reported to 
the House of Representatives.

                     COMMITTEE STATEMENT AND VIEWS

Background

    Section 6 of the Occupational Safety and Health Act (OSH 
Act), 29 U.S.C. Sec. 655, authorizes the Secretary of Labor to 
establish occupational safety and health standards, subject to 
certain procedural and substantive conditions. Among other 
things, the statute requires that such standards be based on 
sound science. In promulgating a standard, the Secretary has 
the burden of showing, by scientific evidence, not ``conclusory 
statements,'' that the standard is necessary to address a 
``significant risk of material health impairment.'' Industrial 
Union Department, AFL-CIO v. American Petroleum Institute 
(Benzene case), 448 U.S. 607, 100 S.Ct 2844 (1980); AFL-CIO v. 
OSHA, 965 F.2d 962 (11th Cir., 1992) In addition, section 
6(b)(5), 29 U.S.C. Sec. 655(b)(5), requires that health 
standards be based on ``the latest available scientific data in 
the field.''
    OSHA has made issuing an ergonomics standard its top 
priority \1\ despite scientific uncertainties and Congressional 
concerns about the cost effectiveness of any such standard when 
such uncertainties exist. These uncertainties include defining 
what ergonomics-related injuries are and how work versus non-
work and non-physical factors are related to such injuries.
---------------------------------------------------------------------------
    \1\ U.S. Congress, House. Committee on Education and the Workforce, 
Subcommittee on Workforce Protections, ``Oversight Hearing to Review 
the Occupational Safety and Health Administration's Regulatory 
Agenda,'' Testimony of Charles Jeffress, Assistant Secretary of OSHA, 
March 23, 1999, 106th Congress, 1st session. In addition, the head of 
OSHA's ergonomics team in 1995, speaking about the intention of 
Congress to pass legislation requiring a moratorium on regulations for 
several months in 1995 said, ``If the legislation says the moratorium 
runs through December the 31st, our anticipation is that we would get 
the proposal out January the 1st, unless it says do not work on any 
ergonomics standards or go to jail. If it only says we cannot publish 
the proposal, we can continue to work on it,'' Daily Labor Report, 
March 13, 1995, page A8.
---------------------------------------------------------------------------
    At the beginning of this decade, OSHA considered workplace 
ergonomic hazards to be those that, though otherwise undefined, 
caused or contributed to ``repetitive motion trauma'' or 
``cumulative trauma disorder.'' \2\ Neither repetitive motion 
trauma, nor cumulative trauma disorder are defined medical 
terms; \3\ indeed, the diagnosis and definition of even the 
most recognized form of ``cumulative trauma disorder,'' carpal 
tunnel syndrome, remains much debated in the medical 
community.\4\
---------------------------------------------------------------------------
    \2\ U.S. Department of Labor, Office of Information, ``Secretary 
Dole Announces Ergonomics Guidelines to Protect Workers From Repetitive 
Motion Illness/Carpal Tunnel Syndrome'', August 30, 1990.
    \3\ U.S. Congress, House. Committee on Education and the Workforce, 
Subcommittee on Workforce Protections, ``Hearing to Review Pending OSHA 
Legislation,'' Testimony of Dr. Michael Vender, April 21, 1999, 106th 
Congress, 1st session.
    \4\ ``Common but Confusing Workers'' Wrist Ailments,'' The New York 
Times, July 21, 1999, page D6.
---------------------------------------------------------------------------
    Nonetheless, in 1990, the Department of Labor estimated 
that ``ergonomic hazards'' in the workplace accounted for 48 
percent of workplace illnesses, or about 3 percent of total 
injuries and illnesses.\5\ In 1999, the Assistant Secretary for 
OSHA testified before the Subcommittee on Workforce Protections 
that ergonomic hazards cause or contribute to 34 percent of all 
workplace injuries and illnesses.\6\ The reason for this 
tremendous increase (from 3 percent to 34 percent of total 
injuries and illnesses) in nine years is the changing and 
expanding definition of ``ergonomic hazards.'' ``Ergonomic 
hazards'' are defined no longer in terms of causing or 
contributing only to ``cumulative trauma disorders,'' but also 
to any ``musculoskeletal disorder'' (MSD). MSDs are defined as 
any ``disorders of the muscles, nerves, tendons, ligaments, 
joints, cartilage, or spinal disks.'' Thus, ergonomic hazards 
are not confined to those alleged to cause ``repetitive 
stress,'' but include one-time exertions and any other factors 
that may cause or contribute to back pain, muscle strain, or 
any other MSD.\7\
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    \5\ U.S. Department of Labor, Office of Information, August 30, 
1990.
    \6\ Testimony of Charles Jeffress, Assistant Secretary of OSHA, 
March 23, 1999.
    \7\ ``Individual factors were found to be highly related to 
Cumulative Trauma Syndrome by a study of six different groups of 
American and Japanese subjects. Researchers found that factors such as 
body mass index, age, wrist depth to width ratio, hand dominance, and 
avocational exercise level, together always predicted the incidence of 
CTS with greater accuracy than did job-related factors. The importance 
of individual factors was found by the study to be at least fourfold 
greater than job-related factors.'' Accident Facts, National Safety 
Council, 1994, page 53. ``Fourth, ergonomics is the study of people and 
their work environment. However, looking only at one's work ignores the 
major portion of life, which is spent away from work. Consider that, on 
average, work accounts for only 15% or less of life. It is not adequate 
to study just part of a patient's activities when researching the cause 
of what is suspected to be an environmental disease. If we were to look 
only at work in seeking the cause of AIDS, heart disease or 
tuberculosis for example, than a tautology would be created with work 
as the only answer. The scientific literature indicates that pregnancy 
obesity, smoking and other intrinsic factors completely unrelated to 
work increase the risk of getting carpal tunnel syndrome.'' U.S. 
Congress, House. Committee on Education and the Workforce, Subcommittee 
on Workforce Protections, ``Oversight Hearing to Review the Status of 
Scientific Information on Ergonomics,'' Testimony of Dr. Morton L. 
Kasdan, May 21, 1997, 105th Congress, 1st session, Serial No. 105-31.
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    The importance of this change in the focus of ergonomics is 
significant both to public perceptions and to OSHA's attempt to 
regulate ergonomics. For example, a recent Washington Post 
article on ``repetitive stress injuries'' cited the number used 
by OSHA, 647,000 MSDs nationwide in 1996, without mentioning 
that this number was not the number of ``repetitive stress 
injuries'' but rather the total number of MSDs.\8\ In fact, the 
overwhelming number of MSDs are back pain, a particularly 
difficult symptom to identify the cause of or to treat.\9\ 
Furthermore, the medical and scientific communities have 
recognized that MSDs are often caused by non-physical and non-
work-related factors. Indeed, that is why the word 
``disorders'' rather than ``injuries'' is used.\10\ In short, 
an ergonomics standard potentially affects nearly every 
employer in the United States. It would extend regulation into 
many common, everyday activities such as lifting, turning, 
walking, climbing, keyboarding, and sitting. It also would 
attempt to regulate in an area in which, by any analysis, the 
causes and effects are not well understood.
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    \8\ ``Repetitive Stress Solutions,'' The Washington Post, July 21, 
1999, Section E, page 1.
    \9\ Testimony of David Sarvdai, March 23, 1999.
    \10\ ``Work-Related Musculoskeletal Disorders: A Review of the 
Evidence,'' Report of the National Research Council, (Washington, D.C., 
National Academy Press, 1998).
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    An ergonomics standard would also be very expensive. OSHA 
estimated the cost of its 1999 draft proposed standard as $3.5 
billion per year. There are several reasons to believe that 
OSHA's estimates are substantially understated. First, small 
business owners who participated in a Small Business Advocacy 
Review Panel, the only outside panel that has thus far reviewed 
OSHA's current proposal, stated that, in their view, OSHA 
substantially understated the costs of compliance with the 
standard.\11\ Second, an earlier proposal from OSHA in 1995, 
which OSHA estimated would cost American companies $4.5 billion 
per year in compliance costs, was reviewed by the National 
Economic Research Associates (NERA), who found that the actual 
costs for the trucking industry alone would be more than $6 
billion per year.\12\ In addition, the North Carolina School 
Boards Association has estimated the costs of an ergonomics 
standard for schools in that state alone, and considering only 
the costs of ergonomics analysis and not any job modifications, 
to be nearly $132 million.\13\ The costs of an ergonomics 
standard are particularly difficult to predict because, as 
described below, without a scientific basis for a standard, 
OSHA is likely to propose a standard that is vague as to what 
employers must do in order to assure compliance.
---------------------------------------------------------------------------
    \11\ OSHA was required by Section 609 of the Small Business 
Regulatory Fairness Enforcement Act to submit the standard to a Small 
Business Advocacy Review Panel prior to publication as a proposed 
standard. The Panel's report, issued on April 30, 1999, criticized 
nearly every aspect of the draft standard, including OSHA's cost 
estimates, which the Panel believes were substantially understated. One 
of the panelists stated, ``government estimates are always 1/10 to 1/4 
of the actual implementation costs.''
    \12\ National Economic Research Associates (NERA) for the ATA 
Foundation, ``Ergonomics and Economics: The Impact of OSHA's Proposed 
Ergonomic Standard on the US Trucking Industry,'' October 1996.
    \13\ Letter to Commissioner Harry E. Payne, Jr., North Carolina 
Department of Labor from Edwin Dunlap, Jr., PhD., Executive Director 
North Carolina School Boards Association, July 2, 1999.
---------------------------------------------------------------------------
    Congress has had a lengthy history of involvement with 
OSHA's regulation of workplace ergonomics. In the 102nd 
Congress, legislation was introduced by Representative William 
Ford, Chairman of the Committee on Education and Labor, and 
Senator Edward Kennedy, Chairman of the Senate Committee on 
Labor and Human Resources, which would have required OSHA to 
issue a final ergonomics standard within two years of enactment 
(H.R. 3160, S. 1622). Similar legislation was introduced in the 
103rd Congress (H.R. 1280, S. 575). Despite the Clinton 
Administration's support for the bills introduced in the 103rd 
Congress, neither the House nor the Senate passed the 
legislation.
    Notwithstanding the fact that Congress did not enact the 
proposed legislation directing OSHA to issue an ergonomics 
standard, OSHA proceeded towards issuing such a standard. In 
June 1994, OSHA released a draft summary ergonomics standard 
and released a proposed standard in March 1995. OSHA's draft 
standard received considerable criticism in Congress, 
particularly in the House of Representatives,\14\ and 
subsequently, in adopting the fiscal year 1996 Appropriations 
for the Department of Labor,\15\ Congress included the 
following language:
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    \14\ U.S. Congress, House, Amendment by Representative Tom Delay to 
H.R. 1158, 104th Congress, 1st session, March 15, 1995.
    \15\ Public Law 104-134.

          None of the funds made available in this Act may be 
        used by the Occupational Safety and Health 
        Administration directly or through section 23 (g) of 
        the Occupational Safety and Health Act for the 
        development, promulgation, or issuance of any proposed 
        or final standard or guideline regarding ergonomic 
        protection or recording or reporting occupational 
---------------------------------------------------------------------------
        injuries or illness directly related thereto.

    Similar language was approved by the House Appropriations 
Committee as part of the Department of Labor Appropriations for 
fiscal year 1997, but was deleted by an amendment adopted by 
the full House of Representatives.\16\ In the meantime, 
however, OSHA announced that it had withdrawn its proposed 
ergonomics standard and was reevaluating its strategy on 
ergonomics and the scope of any potential standard.\17\
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    \16\ The FY 1997 Labor Appropriation bill (H.R. 3755) reported by 
the Committee on Appropriations included an amendment by Representative 
Henry Bonilla to prohibit OSHA from developing or issuing any proposed 
or final ergonomics standard during fiscal 1997. During House floor 
consideration on July 10-11, 1996, Representative Nancy Pelosi offered 
an amendment to strike the ``ergonomics rider'' from the bill. The 
amendment passed by a vote of 216-205, Congressional Record, pages 
H7239-H7242 and H7301.
    \17\ During a debate at the American Bar Association in March 1997, 
Nancy Adams, the OSHA Ergonomics Coordinator told attendees, that ``the 
March 1995 draft proposed standard in effect no longer exists * * *'' 
and OSHA pulled the document from its Internet site stating that it 
would initiate a new rulemaking on ergonomics as part of a four step 
action plan, Daily Labor Report, March 17, 1997, pages A9-10.
---------------------------------------------------------------------------
    During consideration of the fiscal year 1998 Appropriations 
bill for the Department of Labor, Representative Henry Bonilla 
again proposed to prohibit OSHA from promulgating an ergonomics 
standard during the fiscal year, and also to request an 
independent study by the National Academy of Sciences of the 
underlying medical and scientific questions involved in such a 
standard. Representative Bonilla's request for the NAS study 
was supported by a letter signed by 166 Members of Congress, 
including all of the Republican Members of the Committee on 
Education and the Workforce.18 The final 1998 
Appropriations bill included language prohibiting OSHA from 
promulgating the standard, but did not include the specific 
authorization for the NAS study.19 Instead, the 
Chairman of the House Appropriations Committee, by letter, 
requested the Director of the National Institutes of Health to 
fund the study by the NAS.20 Despite his request for 
a comprehensive study, in May 1998 the Director of the National 
Institutes of Health asked NAS merely to conduct a ``workshop'' 
to examine ``literature relevant to work-related 
musculoskeletal disorders.'' 21
---------------------------------------------------------------------------
    \18\ Letter to Representative Robert Livingston, Chairman of the 
Committee on Appropriations and Representative John Porter, Chairman of 
the Subcommittee on Labor, Health and Human Services, and Education 
from a bipartisan coalition of 166 Members of the U.S. House of 
Representatives, June 26, 1997.
    \19\ Public Law 105-78.
    \20\ Letter to Dr. Harold E. Varmus, Director, National Institutes 
of Health from Representative Robert Livingston, Chairman of the 
Committee on Appropriations, July 31, 1997.
    \21\ ``Work-Related Musculoskeletal Disorders: A Review of the 
Evidence,'' Report of the National Research Council, (Washington, D.C., 
National Academy Press, 1998), page 1.
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    During consideration of the fiscal year 1999 Department of 
Labor Appropriations, Representative Bonilla renewed his 
proposal for a comprehensive study of ergonomics by the NAS. 
The study was included in the omnibus appropriations bill, P.L. 
105-277:

          Provided that $890,000 shall be for a contract with 
        the National Academy of Sciences to conduct a study of 
        all the available scientific literature examining the 
        cause-and-effect relationship between repetitive tasks 
        in the workplace and musculoskeletal disorders.

    The accompanying report further details the issues that the 
NAS study is to consider:

          The Committee has provided $890,000 for a contract 
        with the National Academy of Sciences (NAS) to conduct 
        a study of all the available scientific literature 
        examining the cause-and-effect relationship between 
        repetitive tasks in the workplace and musculoskeletal 
        disorders. The NAS study should address the following 
        questions: (1) what are the conditions affecting humans 
        that are considered to be work-related musculoskeletal 
        disorders; (2) what is the status of medical science 
        with respect to the diagnosis and classification of 
        such conditions; (3) what is the state of knowledge, 
        characterized by the degree of certainty or lack 
        thereof, with regard to occupational and non-
        occupational activities causing such conditions; (4) 
        what is the relative contribution of any causal factors 
        identified in the literature to the development of such 
        conditions in the general population, specific 
        industries, and specific occupational groups; (5) what 
        is the incidence of such conditions in the general 
        population, specific industries, and specific 
        occupational groups; (6) does the literature reveal any 
        specific guidance to prevent the development of such 
        conditions in the general population, specific 
        industries, and specific occupational groups, and (7) 
        what scientific questions remain unanswered, and may 
        require further research, to determine which 
        occupational activities in which specific industries 
        cause or contribute to work-related musculoskeletal 
        disorders.

    The NAS began its study in early 1999. The study is 
expected to take approximately two years.
    It should be emphasized that the NAS study was requested 
and funded by Congress because of the continued disagreement 
and controversy over fundamental questions regarding MSDs and 
work activities; questions that are important to society, 
employers, and employees, but are also necessary considerations 
in any rulemaking on ergonomics. As detailed above, over the 
past two years, the Committee on Education and the Workforce 
has conducted several hearings in which many of the country's 
leading physicians and researchers on injuries and disorders of 
the hands, back, and upper extremities provided testimony 
regarding the continued uncertainty about the cause and effect 
relationship between work activities and MSDs.
    For example, Dr. Morton Kasdan, a Clinical Professor of 
Surgery, Department of Preventive Medicine and Environmental 
Health, University of Louisville, testified on May 21, 1997 
that:

          There is a lack of scientific evidence that using our 
        hands repetitively causes so-called cumulative 
        trauma.22
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    \22\ ``Hearing to Review the Status of Scientific Information on 
Ergonomics,'' May 21, 1997, page 7.

    Dr. Stanley Bigos, Professor of Orthopedics and Adjunct 
Professor of Environmental Health, Department of Orthopedics, 
University of Washington, author/ co-author of numerous 
articles and abstracts on back injuries testifying in May 1997 
---------------------------------------------------------------------------
stated:

          I strongly believe that we should prevent harm to, 
        and alleviate discomfort in working people. However, 
        before making expensive policy decisions that would 
        eventually take millions of dollars out of the pockets 
        of hourly employees, I would demand at least one 
        reliable prospective ``testing'' study to substantiate 
        hypotheses. The American worker is not served by 
policybased upon bias-laden retrospective ``searching'' studies or soft 
outcome memory-based surveys that neither differentiate the many 
reasons for discomfort not differentiate complaints from damage and 
injury.\23\
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    \23\ Ibid., page 156.

    Dr. Howard Sandler, an occupational and environmental 
physician, former medical officer with NIOSH, and a consultant 
---------------------------------------------------------------------------
to OSHA, EPA and the CPSC, testified that:

          Considerable interest and concern has been focused on 
        the relationship between work and musculoskeletal 
        disorders. At the present time, the risk factors, their 
        interactions and their thresholds for causing effects 
        have not been sufficiently identified. Once this 
        information is established, risks can be effectively 
        predicted and appropriate preventive actions can be 
        instituted across the wide range of business and 
        industry. Research presently underway should help to 
        establish the scientific data which is currently 
        lacking.\24\
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    \24\ Ibid., page 235.

    Also, in May 1997, Dr. Nortin M. Hadler, Professor of 
Medicine and Microbiology/Immunology, University of North 
Carolina, and Attending Rheumatologist at the University of 
North Carolina Hospitals, author/co-author of many scientific 
---------------------------------------------------------------------------
articles and books on musculoskeletal disorders testified that:

          * * * very few putative ergonomic remedies have been 
        subjected to scientific scrutiny. Where they have, they 
        have proven effete or even counterproductive, if the 
        health effect to be palliated is the complaint that a 
        regional disorder is incapacitating in the workplace 
        and therefore recorded on an OSHA 200 log or registered 
        as a workers' compensation claim.\25\
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    \25\ Ibid., page 10.

    Dr. Stanley Bigos, again testifying in April 1999 stated 
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that:

          We cannot provide a universal mandate without knowing 
        specific dimensions that might work. How high should 
        the bench be? How tall is too tall and too short? What 
        about differences in age? Who will all of a sudden 
        determine without data what is right or wrong--legal or 
        illegal--borderline or punishable? From whose pockets 
        will the costs come? As usual they will probably come 
        from the employees take home pay.
          Don't be confused by those who want to over-simplify 
        the model of the human body. Using the human body does 
        not mean that you wear it out (discomfort from spring 
        gardening or spring training is not caused by damage 
        but by deconditioning of the winter rest).\26\
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    \26\ ``Hearing to Review Pending OSHA Legislation,'' Testimony of 
Dr. Stanley Bigos, April 21, 1999.

    Dr. Michael I. Vender, Hand Surgery Associates, Chairman, 
Industrial Injuries and Prevention Committee, American Society 
---------------------------------------------------------------------------
of Surgery of the Hand, testified that:

          Many physicians state in their reports that the 
        literature substantiates their opinions of a positive 
        causal relationship between workplace factors and the 
        development of conditions for which they are treating. 
        As evidenced by testimony in numerous legal 
        proceedings, these same physicians cannot explain a 
        basic understanding of what work factors are actually 
        present in the job, and what literature supports their 
        assertions. It is true there is an extensive array of 
        literature that alleges damaging effects of work-
        related factors. As scientists we all know that 
        conclusions and opinions stated in the medical 
        literature do not always prove to be true.
          Many opinions and conclusions stated cannot even be 
        substantiated by the contents of the article itself, 
        let alone be validated by other studies. Moreover, the 
        same factors described as ``work-related'' are in fact 
        descriptive adjectives that apply equally to non-job 
        activities. With our present level of understanding, we 
        cannot distinguish between on-the-job and off-the-job 
        activities because the quantitative relationships 
        between the factors and the medical conditions have so 
        far eluded discovery by medical science. That is, we 
        simply don't know how much is too much.\27\
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    \27\ Ibid., Testimony of Dr. Michael Vender, April 21, 1999.

    Despite the ongoing NAS study that was requested and funded 
by Congress last October, OSHA has proceeded with an ergonomics 
standard. On February 19, 1999, OSHA released a draft proposed 
ergonomics standard. Pursuant to section 609 of the Small 
Business Regulatory Enforcement Act, the draft standard was 
then reviewed by a Small Business Advocacy Review Panel, which 
issued its report on April 30, 1999. The Review Panel 
criticized nearly all aspects of OSHA's draft proposed standard 
including OSHA's cost estimates, which the Panel believed were 
substantially understated.\28\ Despite the Panel's criticisms 
of the proposed standard, OSHA recently forwarded its proposed 
ergonomics standard to the Office of Management and Budget for 
final review prior to its promulgation as a proposed standard. 
OSHA's announced timetable for the standard is to issue the 
proposed standard by the fall of 1999 and a final standard by 
the end of 2000, before the NAS study is completed.
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    \28\ Small Business Advocacy Review Panel Report, April 30, 1999.
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    OSHA's February 19, 1999, draft proposed standard 
underscores the need for the NAS study. The draft standard is 
vague in fundamental and critical aspects. For example, the 
draft standard never defines the hazard being regulated, except 
in circular terms (``work related MSD hazards'' are any 
``workplace conditions or physical work activities that cause 
or are reasonably likely to cause or contribute to an (sic) 
work related MSD''). What are such conditions or activities? Is 
the hazard any lifting, or lifting over a certain weight, and 
if the latter, how much? Does it depend upon other factors, 
such as the physical condition of the individual? The reason 
that the draft is not clearer is not simplypoor drafting, but 
the lack of scientific basis on which OSHA could reliably say which 
work activities cause MSDs.\29\
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    \29\ This is only one of many concerns with OSHA's draft proposed 
standard and Representative Cass Ballenger, Chairman of the 
Subcommittee on Workforce Protections wrote an article for the 
Washington Legal Foundation entitled ``OSHA Ergonomics Proposal Is 
Fatally Flawed,'' detailing problems with OSHA's draft standard, June 
25, 1999.
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The Workplace Preservation Act (H.R. 987)

    H.R. 987 is brief and simple: it prohibits OSHA from 
promulgating an ergonomics standard until the National Academy 
of Sciences completes its study and reports the results to 
Congress. The bill prohibits OSHA from promulgating either a 
proposed ergonomics standard under section 6(b)(2) or a final 
standard under section 6(b)(4).

Responses to arguments against H.R. 987

    During the Committee's hearings and markups of H.R. 987, 
opponents raised a number of arguments against the bill. These 
arguments are addressed below:
    The 1999 Appropriations language does not prohibit OSHA 
from issuing an ergonomics standard.
    A letter dated June 22, 1999, from Mr. Jacob J. Lew, the 
Director of the Office of Management and Budget (OMB), to 
Representative John Boehner expressed the Administration's 
opposition to H.R. 987. Mr. Lew wrote that ``[t]he law contains 
no prohibition on OSHA moving forward'' with an ergonomics 
standard.
    No one, certainly not the Committee on Education and the 
Workforce, has argued that the 1999 Appropriations or any other 
law currently prohibits OSHA from attempting to regulate 
ergonomics. The issue is whether OSHA should attempt to do so, 
in a preemptory way, when Congress has clearly indicated that 
additional study is needed. The Department of Labor should 
recognize Congress' concerns and simply await the results of 
the study before deciding whether regulation is appropriate. 
Instead, the Department of Labor has put in place a timetable 
for a final ergonomics standard before the NAS study is 
completed. During the Committee markup of H.R. 987, 
Representative Boehner stated:

          If OSHA meets its own timetable for this regulation, 
        the final ergonomics standard will be in place before 
        the National Academy of Science study is completed, and 
        the study will be wasted. All of us in Congress ought 
        to be outraged by such arrogance by any agency of 
        government. At the least, we ought to very quickly pass 
        Congressman Blunt's bill.

    Even if OSHA should not otherwise move forward with a 
standard while the NAS study is underway, a letter signed by 
the Chairman and Ranking Member of the Appropriations Committee 
``authorized'' OSHA to do so.
    The letter referenced above, signed by Representative Bob 
Livingston, then-Chairman of the Appropriations Committee and 
Representative David Obey, Ranking Minority Member of the 
Appropriations Committee, was not made public until several 
weeks after the Appropriations bill was passed and signed into 
law. As Representative Roy Blunt, sponsor of H.R. 987, 
testified before the Subcommittee on Workforce Protections:

          I know that my friend Ms. Pelosi and others will cite 
        a letter signed by the ranking member, Mr. Obey, and 
        the Chairman at that time, Mr. Livingston, saying that 
        really, OSHA doesn't have to wait for this study. But I 
        have to tell you that neither I nor most of the Members 
        who voted for that million-dollar appropriation knew 
        about that letter when we cast our vote. I don't think 
        that's the way to legislate. I also don't think that 
        helps the appropriations process. When the process is 
        over, we are told there's really something that's not 
        apparent in what we voted for, that Members should be 
        aware of.\30\
---------------------------------------------------------------------------
    \30\ Testimony of Representative Roy Blunt, April 21, 1999.

    Beyond that, the letter referred to adds little to the 
consideration of whether OSHA should issue an ergonomics 
regulation while the NAS study is underway; the letter 
certainly does not require OSHA to ``thumb its nose'' at 
Congress' desire for additional study to inform the regulatory 
process, and it does not change any of the policy reasons for 
requesting the NAS study.
    We don't need another study. There's already sufficient 
science to support an ergonomics standard.
    Opponents of H.R. 987 argue that the NAS study is 
unnecessary, and that there is already sufficient science to 
support an ergonomics standard. In support of that argument, 
opponents of H.R. 987 generally point to two reports, both of 
which say that there is evidence of some relationship between 
workplace activities and MSDs. Those reports are a 1997 report 
by the National Institute for Occupational Safety and Health 
(NIOSH) and the 1998 publication by the National Research 
Council of the results of the two-day workshop on ergonomics 
hosted by the National Academy of Sciences.\31\
---------------------------------------------------------------------------
    \31\ ``Musculoskeletal Disorders and Workplace Factors, A Critical 
Review of Epidemiologic Evidence for Work-Related Musculoskeletal 
Disorders of the Neck, Upper Extremity, and Low Back,'' U.S. Department 
of Health and Human Services, July 1997 (DHHS/NIOSH Publication No. 97-
141); and Report of the National Research Council, 1998.
---------------------------------------------------------------------------
    However, in testimony before the Subcommittee on Workforce 
Protections in March 1999, Assistant Secretary for OSHA Charles 
Jeffress claimed that ``since 1900 there have been more than 
2000 studies'' on workplace ergonomics. What Mr. Jeffress 
failed to note was that, in conducting its 1997 literature 
review, NIOSH eliminated about 1400 of the2000 studies without 
any in-depth analysis, and found that only a small minority of the 
remaining 600 studies met even NIOSH's minimal criteria for 
reliability.
    Both the NAS and the NIOSH reports have been criticized on 
scientific grounds. As indicated above, the NAS report is based 
upon a two-day workshop rather than any independent, thorough 
analysis of the reliability of studies. NIOSH's report is based 
on a lengthier analysis of existing studies. However, NIOSH's 
approach has also been criticized for crediting only those 
studies showing a ``positive'' correlation between workplace 
activities and MSDs, rather than looking at the weight of the 
evidence.\32\ Furthermore, the NIOSH report acknowledges the 
role of non-work factors and non-physical factors in MSDs,\33\ 
but fails to explain how such factors can be separated from 
physical factors in the workplace in either causing or 
eliminating MSDs.
---------------------------------------------------------------------------
    \32\ Testimony of Dr. Michael Vender, April 21,1999.
    \33\ ``While the etiologic mechanisms are poorly understood, there 
is increasing evidence that psychosocial factors related to the job and 
work environment play a role in the development of work-related 
musculoskeletal disorders of the upper extremity and back. Though the 
findings of the studies reviewed are not entirely consistent, they 
suggest that perceptions of intensified workload, monotonous work, 
limited job control, low job clarity, and low social support are 
associated with various work-related musculoskeletal disorders,'' 
``Musculoskeletal Disorders and Workplace Factors, A Critical Review of 
Epidemiologic Evidence for Work-Related Musculoskeletal Disorders of 
the Neck, Upper Extremity, and Low Back,'' U.S. Department of Health 
and Human Services, July 1997 (DHHS/NIOSH Publication No. 97-141), page 
7-1.
---------------------------------------------------------------------------
    However, even if you accept the conclusions of the NAS and 
NIOSH reports that there is evidence of some relationship 
between work and MSDs, that is not sufficient to be the basis 
for a regulation. As mentioned above, the OSH Act requires that 
standards be based upon predictable and specific risk 
determinations. So too, does common sense and sound public 
policy. How can OSHA write a standard that purports to regulate 
such common work activities as lifting and bending and even 
sitting without knowing how much or what type of lifting or 
bending or sitting causes injury? Neither the NIOSH report nor 
the NAS report suggests that the answer to that question is 
known or knowable; indeed, the NIOSH report specifically says 
that ``quantitative risk estimates are beyond the purpose and 
scope of this document.'' \34\ Yet that is precisely the type 
of scientific information OSHA must have before it decides 
whether a standard is appropriate.
---------------------------------------------------------------------------
    \34\ Ibid., page 1-14.
---------------------------------------------------------------------------
    Employers are already implementing effective ergonomics 
programs, proving that enough is known about ergonomics in 
order to regulate.
    The cost of injuries, personal and financial, not OSHA 
regulation, is the largest factor in employers' and employees' 
efforts to reduce injuries and improve safety and health. In 
fact, tremendous improvement has been made. Workplace injuries 
are at the lowest rate since those statistics have been 
kept.\35\ In addition, ``repetitive stress injuries'' have 
declined by 17 percent over the past three years without an 
ergonomics regulation.
---------------------------------------------------------------------------
    \35\ ``Work-Related Injuries, Illnesses Fell In 1997 to Lowest Rate 
on Record, BLS Says,'' Occupational Safety & Health, December 23, 1998, 
Page 925.
---------------------------------------------------------------------------
    Opponents of H.R. 987 argue that the fact that employers 
have taken steps to reduce these injuries proves enough is 
known about the causes to issue a regulation. In fact, the 
practical experience of employers is just the opposite. In 
summarizing its study of several ``successful'' efforts by 
employers to reduce ergonomics-related injuries, the General 
Accounting Office found that:

          Although the ergonomics programs at all of the case 
        study facilities displayed each of these elements, 
        there were often significant variety in how they were 
        implemented. This variety typically resulted from 
        factors such as differences in the facilities' 
        industries and product line, corporate culture, and 
        experiences during the programs' evolution.\36\
---------------------------------------------------------------------------
    \36\ General Accounting Office, Report to Congressional Requesters, 
``Worker Protection: Private Sector Ergonomics Programs Yield Positive 
Results,'' (GAO/HEHS-97-163), page 4.

    The last factor was also emphasized, in testimony before 
the Subcommittee on Oversight and Investigations, by Douglas 
Adams, who has responsibility for implementing ergonomics 
programs for the San Diego Unifed School District. Mr. Adams' 
---------------------------------------------------------------------------
testimony clearly states the problem:

          Over the years, I have personally evaluated a variety 
        of ergonomic work tools, furniture, and peripheral 
        equipment which, according to the manufacturer, have 
        been designed to lessen strain or stress in various 
        work applications. Some of these materials have shown 
        some success for some employees, while others using the 
        same material have actually aggravated existing 
        conditions or developed entirely new symptoms. In many 
        cases, employees working with the same ergonomically 
        correct equipment on the same work assignments show 
        drastically different results in workplace injuries. 
        One may develop symptoms after a relatively short time 
        period while the other never develops these symptoms at 
        all.
          On some occasions we have attempted to provide relief 
        for injured employees who later discovered that their 
        hobbies or sports-related activities were the actual 
        cause for their symptoms. This experience alone has 
        demonstrated to us that there is no such thing as a 
        ``one size fits all'' in the area of ergonomics. If the 
        problem is not totally caused by work conditions, then 
        the solution is not going to be found in the workplace 
        no matter what regulations are adopted.
          This is not to say that the injuries are not 
        ``real.'' They are real. The problem is that as a 
        result of the lack of scientific or medical 
        understanding of the very nature of repetitive motion 
        injuries, many employees find themselves being used as 
        guinea pigs while experimentation continues to attempt 
        to find a lasting solution to their problems.
          In my experience, the most helpful factor in dealing 
        with repetitive stress injuries has been education and 
        training. However, you cannot ``regulate'' such 
        training and education, because it is specific to each 
        individual employee's comfort level with the various 
        activities they perform inside and outside of the 
        workplace.
          My entire job focuses on what we can be doing to 
        prevent injuries. Part of that is reflected in workers' 
        compensation costs. Do we want to keep those costs 
        down? Of course. It is in the interests of the 
        teachers, administrators, and especially, our students, 
        to keep those costs to a minimum. If we thought the 
        Cal/OSHA ergonomics regulation would improve our 
        workers' compensation picture, we would be the first to 
        support it, if for that reason only. However, we have 
        no reason to believe it, or any other ergonomic 
        regulation would have that effect. Individual employers 
        are implementing individual ergonomic programs--some 
        are meeting with great success. Others are spending a 
        lot of money, and having no change whatsoever in their 
        illness and injury picture. And some have actually seen 
        increased injuries after implementing such changes. 
        There are case studies to justify just about any point 
        of view.
          For schools, cost is always an issue. In our school 
        district alone, projections of costs to equip workers 
        with the latest ergonomically designed work stations 
        would exceed $750,000, with continuing costs as 
        employees move to new work locations and new employees 
        occupy these areas which may not feel quite right to 
        them. Fresno Unified School District estimated a 
        $250,000 cost to take similar measures.
          What does $750,000 buy for a school district? It 
        means 30,000 new text books or 500 new classroom 
        computers. Cities and counties around the state of 
        California--many of which are struggling to fund basic 
        public services--will spend approximately $420 million 
        to comply with the regulation, according to an economic 
        impact study. We will spend this money, but we have no 
        reason to believe we will see any reduction in 
        repetitive stress illnesses.
          This is because we simply do not have answers to some 
        basic questions, such as:
          
 How many repetitions is too many for our 
        landscape maintenance people raking leaves?
          
 How heavy is too heavy for teachers to lift 
        a box of school supplies?
          
 How many hours at the computer is too many 
        for the data entry clerk?
          
 What does the ideal chair look like? The 
        ideal desk?
          
 What's the right height for a counter top in 
        the school cafeteria?
          
 Who qualifies as an ergonomist?
          
 In short, what are the proven measures we 
        should take to actually prevent these ailments?
          These are the questions we face in the real world of 
        complying with ergonomics standard. Yet, these are the 
        very questions to which no one yet has the answers * * 
        *
          For schools, complying with this regulation will 
        result in money which should be spent on children's 
        education being taken away from classrooms and other 
        valuable educational materials and programs. Instead, 
        it will be spent to furnish administrators and clerks 
        with the latest ergonomically correct items that may or 
        may not be of any help to them. Ironically, this comes 
        at a time when many of our school children are forced 
        to use out-dated, damaged desks and classroom furniture 
        left over from the 1950's and 1960's.
          It does not make sense to force schools to expend 
        scarce resources on ineffective, ill-defined workplace 
        regulations. In the field of education, children should 
        always remain our top priority * * * The parents in our 
        school district rightfully expect educational funding 
        to be used to benefit their children, not to be used to 
        conduct experiments in occupational therapy.
          As a medical problem, this first demands better 
        medical research and understanding. Before the federal 
        Occupational Safety and Health Administration follows 
        California's lead and enacts cost prohibitive 
        regulations, I urge you to see they take this into 
        consideration.\37\

    \37\ U.S. Congress, House. Subcommittee on Oversight and 
Investigations, ``Hearing on Ergonomics: A Question of Feasibility,'' 
Testimony of Douglas Adams, July 16, 1997, 105th Congress, 1st session, 
Serial No. 105-40, pages 60-63.

    OSHA's regulation of ergonomics will not be burdensome on 
employers, it will only require that employers take obvious and 
reasonable steps to avoid hazards.
    Another indication of the lack of quantitative risk 
information, which OSHA must have to write a reasonable and 
clear standard, is OSHA's attempt to justify the regulation by 
anecdote. Examples have been given about meat cutters changing 
the shape of the handle of the knife being used, resulting in 
fewer wrist injuries. Such examples are helpful, but they do 
not provide the scientific basis for regulation.
    OSHA's February 1999 proposed standard illustrates the 
problem, and the danger of moving forward with regulation 
without scientific support. Under the proposed standard, an 
employer with a job in which a ``work-related MSD'' has 
occurred must do everything ``feasible'' to eliminate hazards 
that may cause or contribute to a subsequent work-related MSD 
in that job or any ``similar'' job. ``Feasible'' has been 
defined under the OSH Act as meaning anything ``possible'' 
short of forcing an entire industry to close down. American 
Textile Mfrs. Inst. v. Donovan, 452 U.S. 490 (1981). Thus, 
OSHA's regulation could require, for example, an employer to 
slow the speed of a production line or to implementcostly job 
rotation or other measures, even in the absence of proof that these 
factors have caused injury or that the abatement required would prevent 
injury. Furthermore, the draft standard invites arbitrary enforcement. 
Since OSHA does not define what the employer will be required to do in 
order to be in compliance (other than to do whatever is ``feasible''), 
an employer has no assurance that a slow-down required in his or her 
production line, for example, will also be required of the employer's 
competitors.
    We can have it both ways. NAS should go forward with the 
study, and OSHA should be allowed to go forward with its 
regulation.
    This argument, made during Committee markup, unfortunately 
ignores the fact that OSHA's own timetable for its ergonomics 
standard calls for having a final regulation issued by the end 
of 2000, before the NAS study is completed.
    Furthermore, even if OSHA does not meet its timetable, it 
is sensible public policy for OSHA to wait (or be required to 
wait) before deciding whether to propose a standard until the 
NAS study is completed. A proposed standard largely shapes a 
final standard. In fact, agencies may not deviate too far from 
a proposed standard in issuing a final standard, instead they 
must issue a new proposed standard. OSHA should keep an open 
mind on whether a standard is appropriate and necessary, and 
use the NAS study to help make that determination, rather than 
prejudging the answer.

                                summary

    H.R. 987 ensures that a study of the cause and effect 
relationship between work activities and ``musculoskeletal 
disorders'' by the National Academy of Sciences is completed 
prior to OSHA promulgating an ergonomics standard or 
guidelines.

                           section by section

Section 1. Short title

    The Workplace Preservation Act.

Section 2. Findings

    Describes the rationale for the bill including the finding 
that in October 1998, Congress and the President agreed upon a 
comprehensive study by the National Academy of Sciences of the 
medical and scientific evidence regarding musculoskeletal 
disorders * * * it is premature for OSHA to decide that a 
regulation on ergonomics is necessary or appropriate to 
improving workers' health and safety before such study is 
complete.

Section 3. Delay of standard or guidelines

    States that the Secretary of Labor or OSHA may not 
promulgate or issue any standard or guidelines on ergonomics 
until the National Academy of Sciences completes a peer-
reviewed scientific study of the available evidence examining 
repetitive tasks in the workplace and submits the report to 
Congress.

                       explanation of amendments

    The Bill was reported without Amendment.

              application of law to the legislative branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch. This bill ensures that the National Academy of Sciences 
completes the study, provided for in Public Law 105-277, of the 
available evidence examining ``the cause and effect 
relationship between repetitive tasks in the workplace and 
musculoskeletal disorders'' before the Occupational Safety and 
Health Administration promulgates an ergonomics standard. The 
bill does not prevent legislative branch employees from 
receiving the benefits of this legislation.

                       unfunded mandate statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement of 
whether the provisions of the reported bill include unfunded 
mandates. This bill ensures that the National Academy of 
Sciences completes the study, provided for in Public Law 105-
277, of the available evidence examining ``the cause and effect 
relationship between repetitive tasks in the workplace and 
musculoskeletal disorders'' before the Occupational Safety and 
Health Administration promulgates an ergonomics standard. As 
such, the bill does not contain any unfunded mandates.

                             rollcall votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee Report to include for 
each record vote on a motion to report the measure or matter 
and on any amendments offered to the measure or matter the 
total number of votes for and against and the names of the 
Members voting for and against.
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>

  statement of oversight findings and recommendations of the committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the body of this report.

   new budget authority and congressional budget office cost estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the House of Representatives and section 308(a) of the 
Congressional Budget Act of 1974 and with respect to 
requirements of 3(c)(3) of rule XIII of the House of 
Representatives and section 402 of the Congressional Budget Act 
of 1974, the Committee has received the following cost estimate 
for H.R. 987 from the Director of the Congressional Budget 
Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 29, 1999.
Hon. William F. Goodling,
Chairman, Committee on Education and the Workforce, House of 
        Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 987, the Workplace 
Preservation Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Cyndi 
Dudzinski.
            Sincerely,
                                          Barry B. Anderson
                                    (For Dan L. Crippen, Director).
    Enclosure.

H.R. 987--Workplace Preservation Act

    CBO estimates that enacting H.R. 987 would not have a 
significant impact on the federal budget. The bill could affect 
both federal receipts and discretionary spending, but CBO 
estimates that any such effects would be negligible. H.R. 987 
contains no private-sector or intergovernmental mandates as 
defined in the Unfunded Mandates Reform Act and would impose no 
costs on state, local, or tribal governments.
    The National Academy of Sciences (NAS) is currently 
undertaking a study on the effect of repetitive tasks in the 
workplace on musculoskeletal disorders and repetitive stress 
injuries. H.R. 987 would prohibit the Secretary of Labor from 
promulgating, through the Occupational Safety and Health 
Administration (OSHA), any standard or guideline on ergonomics 
until that study is completed and submitted to the Congress. 
The NAS report is due to be completed by December 2000. Without 
this legislation, OSHA expects to issue a proposed regulation 
in the fall of 1999 and finalize it late in 2000 or early in 
2001, although legal challenges or other developments could 
slow this schedule. Enactment of this legislation could delay 
this process for about a year, but would not significantly 
affect OSHA's workload or receipts from penalties levied as the 
result of OSHA citations during this period.
    The CBO staff contacts for this estimate are Cyndi 
Dudzinski for federal costs, Susan Sieg for the impact on 
state, local, and tribal governments, and Karuna Patel for the 
impact on the private sector. This estimate was approved by 
Paul N. Van de Water, Assistant Director for Budget Analysis.

 statement of oversight findings of the committee on government reform

    With respect to the requirement of clause 3(c)(4) of rule 
XIII of the Rules of the House of Representatives, the 
Committee has received no report of oversight findings and 
recommendations from the Committee on Government Reform on the 
subject of H.R. 987.

                   constitutional authority statement

    Under clause 3(d)(1) of rule XIII of the Rules of the House 
of Representatives, the Committee must include a statement 
citing the specific powers granted to Congress in the 
Constitution to enact the law proposed by H.R. 987. The 
Committee believes that the study authorized by Public Law 105-
277 and the actions required of OSHA by this bill are within 
Congress's authority under Article I, section 8 of the 
Constitution.

                           committee estimate

    Clauses 3(d)(2) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs that would be incurred in carrying out 
H.R. 987. However, clause 3(d)(3)(B) of that rule provides that 
this requirement does not apply when the Committee has included 
in its report a timely submitted cost estimate of the bill 
prepared by the Director of the Congressional Budget Office 
under section 402 of the Congressional Budget Act.

         changes in existing law made by the bill, as reported

    There are no changes to existing law made by this bill.

                             MINORITY VIEWS

I. Introduction
    H.R. 987 is yet another scheme by the Majority to scuttle 
the Occupational Safety and Health Administration's (OSHA) 
long-studied rule to help minimize workplace stress and strain 
injuries. If H.R. 987 were enacted, it would once again block 
OSHA from issuing a rule requiring employers to be cognizant of 
ergonomic hazards and to take steps to address those hazards. 
The contention by the Majority that we do not know enough to 
regulate in this area is disputed by the overwhelming majority 
of scientific opinion and has been disproved by the real world 
experience of thousands of employers who have taken steps to 
address ergonomic hazards and have substantially reduced 
injuries as a result. For the Congress to continue to act to 
prevent OSHA from issuing a rule on ergonomics is to 
senselessly condemn tens of thousands of workers to unnecessary 
suffering.
    Ergonomic injuries and illnesses remain the most common 
serious health risk workers face and ergonomic injuries and 
illnesses remain the single largest cause of injury-related 
lost workdays. In 1997, there were 620,459 lost workday 
injuries and illnesses due to overexertion, repetitive motion, 
and other bodily reactions related to ergonomic hazards. This 
represents 34 percent of all lost workdays injuries and 
illnesses. Work-related musculoskeletal disorders cost 
employers between $15 and $20 billion in workers' compensation 
costs each year. These are costs that can and should be 
reduced. For the Congress to act to further delay the 
development of an ergonomics standard is worse than simply 
encouraging bad business practices, it is to needlessly prolong 
pain and suffering.
    Women workers are particularly victimized by ergonomic 
injuries and illnesses. Women are 46 percent of the workforce 
and 33 percent of those injured at work. Yet, women are 69 
percent of those who lose work-time due to carpal tunnel 
syndrome; they are 63 percent of those who suffer repetitive 
motion injuries; and they are 61 percent of those who lose 
work-time due to tendonitis. Nearly half of all injuries and 
illnesses to women workers are due to ergonomic hazards.
    Because ergonomic injuries are very rarely ever life-
threatening, there seems to be a tendency to disregard their 
seriousness. The fact of the matter is that ergonomic injuries 
are often crippling. Workers with carpal tunnel syndrome miss 
more days from work (25 days on average) than workers with any 
other type of major disabling condition, including amputation. 
The pain and suffering experienced by victims of ergonomic 
hazards is real.
II. History of OSHA's ergonomic rule
    The Majority views imply that OSHA is rushing forward 
recklessly to develop and issue its rule on ergonomics. Nothing 
could be further from the truth. The fact of the matter is that 
OSHA has been working to address ergonomic injuries and 
illnesses through its regulatory, enforcement, and compliance 
assistance programs for more than two decades.
    OSHA took its first enforcement action to address ergonomic 
hazards under the general duty clause in the mid-1970's. In the 
1980's there was extensive enforcement on ergonomics in a 
number of industries with high rates and numbers of ergonomic 
injuries including the auto industry, meatpacking, poultry, 
apparel, and other assembly operations. Enforcement actions to 
address manual handling hazards were undertaken in package 
delivery, warehouse operations, nursing homes, and other high 
risk industries.
    These enforcement actions resulted in a series of 
corporate-wide settlement agreements in these industries which 
required employers to identify hazardous jobs, control 
ergonomic risk factors, train workers about ergonomic hazards 
and injuries, and set up medical management programs for 
injured workers--the same elements that are required by OSHA's 
current draft ergonomics standard.
    In 1990, OSHA published ergonomic guidelines for the red 
meat industry which recommended the same basic approach for 
controlling ergonomic injuries. Experience has shown that the 
approach set forth in the settlement agreements, OSHA 
guidelines, and current draft standard are sound, and when 
implemented can significantly reduce injuries and illnesses as 
evidenced by a 26 percent reduction in reported cumulative 
trauma cases from 1994 to 1996 in the red meat industry.
    At the time the red meat industry guidelines were issued, 
then Secretary of Labor Elizabeth Dole announced that the 
Department of Labor was initiating rulemaking ``to address the 
problem of ergonomic hazards on an industry-wide basis'' to 
reduce repetitive trauma disorders, ``one of the nation's most 
debilitating across-the-board worker safety and health 
illnesses of the 1990's.'' In April 1992, then Secretary of 
Labor Lynn Martin repeated this commitment stating that 
``information currently available support the initiative of 
Section 6(b) rulemaking'' and in August 1992, OSHA initiated 
rulemaking with the issuance of an advance notice of proposed 
rulemaking.
    But, nearly a decade after Secretary of Labor Elizabeth 
Dole promised government action to reduce the toll of ergonomic 
injuries and illnesses, and after more than a decade of 
experience that these injuries can be prevented, industry 
opponents and some in Congress are still trying to block a 
standard to protect workers.

III. Examples of individuals affected by ergonomic hazards

    Present in the audience when the Committee considered H.R. 
987 was Madeleine Sherod, a mother of five from Rockford, 
Illinois. As a result of work-related ergonomic injuries, she 
was disabled to the point that she could not even comb the hair 
of her children, wash dishes, or sweep floors in her home. 
Nadine Brown of Buffalo, New York was also in attendance when 
H.R. 987 was considered. Ms. Brown required corrective surgery 
as a consequence of a work-related musculoskeletal disorder and 
missed four months of work recovering from the surgery. Now, 
she is doing exactly the same job, under exactly the same 
conditions that necessitated the surgery in the first place. 
Carolyn Shebora of Woodbridge, Virginia was also present when 
the Committee marked-up H.R. 987. She was required to have 
surgery on both of her hands as a consequence of a preventable 
work-related musculoskeletal disorder. She is fortunate in that 
her employer has already redesigned the cashier's workstations 
to ensure that others are not similarly injured.
    Another victim was also present during the Committee's 
consideration of H.R. 987, Representative Carolyn McCarthy. 
``For 32 years, I was an active nurse, and let me tell you, at 
24 years old, I pulled my back out for the first time. During 
that time, I had a young child and it became almost impossible 
for me to pick up that child for almost three months. * * * I 
certainly went to the doctors. I certainly tried to get 
treatment, but I will have a bad back for the rest of my life, 
and I lost a lot of work over it and there are a lot of things 
I couldn't do.''
    Kathy Jalbert was formerly a television news editor. Today, 
she is permanently disabled. ``If there were ergonomic 
standards eight year ago, I wouldn't be suffering like I am 
today.'' Walter Penrose was formerly a computer information 
systems manager. Today, he suffers from thoracic outlet 
syndrome, carpal tunnel syndrome, ulnar tunnel syndrome and 
severe tendonitis. ``I've been very lucky that my family has 
been able to help me or I'd be living on the street.'' Jane 
Margulies is a former school psychologist who now suffers 
chronic pain and is unemployed. ``Carpal Tunnel Syndrome 
affected every aspect of my life. I can lift one-half pound, 
that's it. Coffee mugs are heavy, turning faucets on and off 
are hard, holding my husband's hand, dressing, washing, doing 
dishes, shopping--I can't do these anymore. I can't do any of 
my hobbies--pottery, gardening, bird watching (I can't hold 
binoculars), and even reading. It's too painful to hold the 
book and turn pages.''
    These are real people who have suffered serious 
disabilities and real pain. This is the kind of suffering that 
more than a half-million workers a year will continue to 
experience if we do not allow OSHA to move forward.

IV. National Academy of Science (NAS) study is no excuse to delay OSHA 
        rule

    Proponents of H.R. 987 contend that language included in 
last year's Omnibus Appropriations Act providing for a study by 
the National Academy of Science (NAS) of erogonomic issues was 
intended to delay OSHA's rulemaking until NAS completed its 
work. In fact, the NAS study was included only after those who 
oppose this rulemaking failed in their efforts to retain rider 
language prohibiting OSHA from proceeding. The NAS language was 
agreed to only after the Administration made it perfectly clear 
that OSHA would proceed with the ergonomics rule. The chief 
negotiator on behalf of the Republicans, Mr. Livingston, 
expressly acknowledged this understanding in a joint letter 
dated October 19, 1998 that he and the Ranking Democrat on the 
Committee on Appropriations, David Obey, sent to Secretary of 
Labor Alexis Herman:

          Congress has also chosen to provide $890,000 for the 
        Secretary of Health and Human Services to fund a review 
        by the National Academy of Sciences (NAS) of the 
        scientific literature regarding work-related 
        musculoskeletal disorders. We understand that OSHA 
        intends to issue a proposed rule on ergonomics late in 
        the summer of 1999. We are writing to make clear that 
        by funding the NAS study, it is in no way our intent to 
        block or delay issuance by OSHA of a proposed rule on 
        ergonomics. (Emphasis added.)

    A June 22, 1999 letter from the Director of the Office of 
Management and Budget, Jacob Lew, to Representative Boehner 
concerning the NAS funding also makes clear that the study was 
never intended to delay or prohibit OSHA from moving forward on 
its ergonomic rule:

          The Administration agreed to the inclusion of funding 
        for this study in the Omnibus Appropriations Act for 
        fiscal year (FY) 1999, only on the understanding that 
        this study would not be used as a reason to delay 
        OSHA's issuance of a protective ergonomics standard or 
        proposed standard. (Emphasis added.) Former Chairman 
        Livingston, who negotiated on behalf of the House 
        majority, made it clear to the Administration that the 
        NAS study would not prevent OSHA from moving forward 
        with an ergonomics rule.
          * * * I believe the record supports the 
        Administration's interpretation of Congressional intent 
        on this subject. The law contains no prohibition on 
        OSHA moving forward. Moreover, the letter Chairman 
        Livingston and Representative Obey sent to Secretary of 
        Labor Alexis Herman last year made clear that the study 
        provision in no way implied that OSHA was barred from 
        moving forward with its ergonomics standard. Sent on 
        the same day as the Conference Report was filed by the 
        Chairman and Ranking Member of the Committee, the 
        letter is entitled to great weight in determining 
        legislative intent of the provision.
          * * * The negotiations pertaining to the NAS study 
        occurred in the context of the fact that neither the 
        House nor the Senate had included a rider in any FY 
        1999 appropriations bill, as they had in previous 
        years, to block issuance of a proposed or final rule or 
        guideline on ergonomics.

    The Majority views content that OSHA is somehow ``thumbing 
its nose'' at the Congress by proceeding on schedule with the 
development of an ergonomics standard. However, the proponents 
of the NAS study never contended at the time that the study was 
approved that it was intended to delay the development of an 
ergonomic standard. In fact, they expressly stated that the 
study was not intended to delay the issuance of an ergonomic 
standard. Further, the Administration only agreed to the 
funding for the NAS study on the understanding that it would 
not serve as a basis for delaying the issuance of the ergonomic 
standard. Finally, as Representative Livingston's and 
Representative Obey's letter makes plainly clear, the fact that 
OSHA planned to issue a proposed rule on ergonomics in the late 
summer of 1999, before the NAS study would be completed, was 
known before the funding the NAS study was ever approved. That 
letter is particularly compelling because it came on the heals 
of the House report on the Labor-HHS-Education Appropriations 
bill for fiscal year 1998, the last bill to restrict OSHA's 
activity on ergonomics, which stated, ``The Committee will 
refrain from further action to restrict OSHA's development, 
promulgation or issuance of an ergonomic standard after FY98.''

V. The medical experts support OSHA's rule

    Proponents of H.R. 987 also contend that we lack enough 
knowledge to regulate in the field of ergonomics. Experts in 
the field of ergonomics strongly disagree. The American 
Association of Occupational Nurses, the professional 
association for more than 13,000 occupational and environmental 
nurses, has stated, ``a standard designed to protect workers 
from musculoskeletal injuries and illnesses is consistent with 
supporting scientific evidence.'' The American College of 
Occupational and Environmental Medicine, the largest 
occupational medical society representing over 7,000 
physicians, has stated, ``there is adequate scientific 
foundation for OSHA to proceed * * * and no reason for OSHA to 
delay the rulemaking process while the National Academy of 
Science panel conducts its review.''
    The American Industrial Hygiene Association (AIHA), the 
professional association of industrial hygienists, has stated, 
``AIHA feels that enactment of H.R. 987 would unduly delay the 
process of moving forward with an ergonomics proposal.'' In a 
position paper on ergonomics, AIHA stated, ``there is a 
significant and growing body of knowledge related to the 
relationship between the physical work environment and 
musculoskeletal disorders.'' A press release dated February 22, 
1999 stated, ``The 60,000 members of the American Occupational 
Therapy Association feel strongly that the epidemic of work-
related injuries occurring today is a public policy and 
economic problem that needs to be addressed, and OSHA's draft 
ergonomics standard will focus public attention on the 
problem.''
    The American Public Health Association first stated its 
position in a 1997 resolution and reiterated it in 1999, 
``[s]cientific evidence has established a cause-and-effect 
relationship between poor ergonomics in the workplace and 
chronic musculoskeletal disorders.'' The American Society of 
Safety Engineers (ASSE) has stated, ``ASSE supports the concept 
of a federal standard addressing ergonomics'' and has also 
stated, ``ASSE believes there is enough science justifying the 
creation of such a standard.''
    The Human Factors and Ergonomics Society, the professional 
organization of ergonomists, has stated, ``[e]rgonomics is a 
globally-recognized science with a body of validated research 
findings and practices * * * Ergonomics applications--based on 
solid research findings--not only can improve the workplace, 
but can make products and processes more competitive in the 
world market.''
    The National Advisory Committee on Occupational Safety and 
Health: an advisory committee to the Secretary of Labor and the 
Secretary of Health and Human Services made up of safety and 
health experts from management, labor, the safety and health 
professions, and academia; has stated, ``Although some issues 
associated with ergonomics remain to be resolved, the science 
of ergonomics is strong and dates back at least fifty years 
and, in our view, is sufficient to move forward with a proposed 
OSHA ergonomics standard. Clear evidence of this assertion and 
testimony to the benefits of ergonomics is the fact that many 
countries and Fortune 500 companies are using ergonomics 
successfully to reduce workplace injuries.''

VI. Overwhelming scientific data supports OSHA's ergonomics rule

    The most comprehensive review to date of the scientific 
literature surrounding ergonomics was conducted by the National 
Institute on Occupational Safety and Health (NIOSH) in 1997. 
NIOSH reviewed 2,000 studies and conducted a detailed review of 
more than 600 occupational epidemiology studies. H.R. 987, at 
section 2(a)(2), totally mischaracterizes the results of that 
study:

          A July, 1998, report by the National Institute for 
        Occupational Safety and Health (NIOSH) reviewing 
        epidemiological studies that have been conducted of 
        ``work related musculoskeletal disorders of the neck, 
        upper extremity, and low back'' showed that there is 
        insufficient evidence to assess the level of risk to 
        workers from repetitive motions. Such characterization 
        would be necessary to write an efficient and effective 
        regulation.

    The Director of NIOSH, Dr. Linda Rosenstock, in response to 
an inquiry from Representative Clay, has stated:

          The statement in finding (2) of H.R. 987 
        misrepresents the conclusions of the 1997 NIOSH study. 
        In fact, the NIOSH report--which finalized its review 
        of over 600 occupational epidemiology studies after 
        extensive external peer review by experts--found that a 
        substantial body of credible epidemiologic research 
        provides strong evidence of an association between 
        musculoskeletal disorders and work factors (such as 
        routine heavy lifting, daily exposure to whole-body 
        vibration, routine overhead work, work with the neck in 
        chronic flexion position, or performance of repetitive 
        forceful tasks). This is particularly true when workers 
        are exposed to several work factors simultaneously. In 
        addition, NIOSH concluded that all musculoskeletal 
        disorders canbe caused by non-work exposures, but this 
does not negate association with work. (Emphasis in the original.)
          NIOSH does find an adequate science base for OSHA to 
        initiate rulemaking for an ergonomics standard. 
        Although some gaps in our knowledge exist, as they do 
        in virtually any medical condition when looking at 
        etiology, the scientific evidence is overwhelmingly 
        clear concerning work exposure and musculoskeletal 
        disorders. We know enough to prevent or reduce the 
        severity of many of these disorders now. Further 
        reviews of the same literature will not alter this 
        mainstream scientific opinion.
          There are numerous examples of public health actions 
        that were appropriately and successfully taken when 
        there was enough information to act, even though 
        information was incomplete. For example, public health 
        actions against cigarette smoking were made without 
        waiting for every carcinogenic agent in tobacco smoke 
        to be identified. Actions to prevent the transmission 
        of the Human Immunodeficiency Virus were taken before 
        the virus itself was isolated and the thalidomide 
        disaster was averted in this country on the basis of 
        incomplete science. Likewise, four of the most 
        important OSHA health standards from the 1970's--lead, 
        benzene, asbestos, and cotton dust--were all attacked 
        at the time for being based on inadequate science. 
        Today, exposures in the workplace to these four hazards 
        are definitely lower and additional scientific 
        information has continued to accumulate, demonstrating 
        their hazardous nature at even lower levels of exposure 
        than originally appreciated.

    In 1998, the National Academy of Sciences received $490,000 
from the National Institutes of Health at the request of 
Representative Bonilla and Representative Livingston to review 
the scientific evidence on the work-relatedness of 
musculoskeletal disorders. A steering committee of scientific 
and medical experts was chosen to organize a workshop, select 
leading researchers to participate, and to prepare a report of 
findings and conclusions based upon the papers and discussions 
from the workshop. NAS brought together more than 65 of the 
leading national and international scientific and medical 
experts to review the scientific evidence for the work 
relationship of ergonomic disorders and to assess whether 
interventions at the workplace were effective in reducing 
ergonomic hazards. NAS concluded:
          1. the musculoskeletal disorders are a serious 
        national problem;
          2. scientific literature clearly demonstrates that 
        musculoskeletal disorders in workers are caused by 
        exposure to ergonomic hazards at work;
          3. scientific research clearly demonstrates that 
        effective work place interventions are available which 
        can reduce ergonomic hazards and prevent 
        musculoskeletal disorders; and
          4. there is evidence that interventions are cost-
        beneficial for employers.
    Expert witnesses may be found to represent virtually any 
point of view. However, in this case there is no question as to 
what the overwhelming view of most experts is.
    There is even more compelling evidence for the efficacy of 
issuing an ergonomics standard, and that is experience. 
Businesses across the country in all types of industries have 
individually and voluntarily taken steps to address the problem 
of ergonomic injuries and illnesses. The record of their 
success in dealing with these problems is proof that workplace 
interventions will prevent or reduce their severity.
    During Committee consideration of H.R. 987, Representative 
Kildee described how Mazda Motor Manufacturing Company had 
reduced ergonomic injuries and illnesses by 40 percent and how 
Consumers Power had reduced such injuries and illnesses among 
their employees by 60 percent. Mr. Roemer told of a Connecticut 
company that reduced injuries by 90 percent and reduced the 
costs of back injury claims from $88,000 to $8,700. He also 
told of a banking company that reduced ergonomic injuries and 
illnesses by 50 percent, and of a computer graphics company 
that reduced musculoskeletal disorders by 41 percent from 1994 
to 1995, and by 50 percent from 1995 to 1996.
    Navistar International Corporation, one of the nation's 
largest manufacturers of medium and heavy trucks, school buses, 
and mid-range diesel engines implemented aggressive safety and 
ergonomic-related programs and closely coordinated case-
management efforts. The company reduced its workers' 
compensation costs from more than $500,000 in 1991 to 
approximately $176,000 in 1997.
    A 1990 corporate analysis of 3M's injury and illness data 
showed that 35 percent of all OSHA-recordable cases were 
related to work-related musculoskeletal disorders and 53 
percent of all lost-time cases were related to such disorders. 
After implementing ergonomics programs in several demonstration 
plants, 3M implemented a company-wide program in 1991. Over the 
next five years, 3M reduced its OSHA-recordable cases by 22 
percent and reduced lost-time cases by 58 percent. Within 
office settings, 3M's program included training and 
evaluations, work station adjustments, and installation of 
ergonomically correct equipment. Follow-up surveys of 
individuals with work-related musculoskeletal disorders showed 
that approximately 90 percent had improved or completely 
recovered.
    A Fieldcrest-Cannon plant in Columbus, Georgia was found by 
OSHA to be in violation to the general duty clause of the 
Occupational Safety and Health Act for ergonomic related 
conditions. In response, Fieldcrest-Cannon established joint 
labor-management committees to design programs to reduce 
injuries and illnesses related to repetitive stress. As a 
consequence, back injuries at the Columbus plant were reduced 
from 19 injuries, including 17 lost days and 292 restricted 
duty days in 1993, to 1 injury in 1997, including no lost days 
or restricted duty days. While the OSHA settlement agreement 
applied only to the Columbus plant, the company has implemented 
similar programs with similar results at two other similar 
facilities.
    Red Wing Shoes has reduced its workers compensation costs 
by 75 percent over four years, from more than $4,000,000 in 
1991-92 to approximately $1,000,000 in 1995-96, despite the 
addition of two new plants. The company attributes the 
reduction to the adoption of a newphilosophy--modifying 
equipment to fit the worker rather than forcing the worker to fit the 
equipment. Red Wing's program was not inexpensive and included 
significant work station modifications. However, the program has 
significantly decreased employee injuries and workers' compensation 
costs and improved worker morale and productivity.
    In the late 1980's, the Fresno Bee recognized it had an 
ergonomics problem. The company invested $800,000 in their 
ergonomics program and, as a result, has achieved a 20 percent 
reduction in medical costs and temporary disability pay. 
According to company management, that reduction has more than 
offset the total cost of implementing the ergonomics program.
    The poultry processing industry has historically been among 
the highest hazard industries in terms of lost time illnesses 
and injuries and work-related musculoskeletal disorders are a 
major source of such injuries and illnesses. In 1991, Perdue 
Farms implemented an ergonomics program for its employees. In 
1996, Perdue had six plants that recorded no lost-time 
illnesses or accidents in more than a million hours worked.

VII. Leadership on ergonomics by other jurisdictions

    OSHA is not alone in its efforts to develop and issue a 
standard to prevent ergonomic injuries and illnesses. In 1997, 
the state of California issued a workplace ergonomics standard 
in response to a 1993 mandate by the state legislature. The 
states of Washington and North Carolina are also in the process 
of developing workplace ergonomic regulations.
    Other countries are far ahead of the United States in their 
efforts to prevent ergonomic injuries and illnesses. The 
European Community has had a directive on manual handling to 
prevent back injuries (Council Directive 90/269/EEC) and a 
directive on video display terminal use (Council Directive 90/
270/EEC) since 1990 which have been adopted as regulations by 
the member states. Regulations to prevent back injuries and/or 
upper extremity injuries have also been adopted in British 
Columbia, Australia, New Zealand, and Sweden.
    In addition, voluntary standards organizations are moving 
to address this significant problem. In 1998, the American 
National Standards Institute (ANSI) issued a standard for Human 
Factors Engineering of Video Display Terminal Workstations 
(ANSI/HFS 100-1988). ANSI is now in the final stages of 
developing a standard on the Control of Work-Related Cumulative 
Trauma Disorders (ANSI Z-365).

VIII. OSHA rule is flexible

    The Majority views contend that before we may successfully 
establish an ergonomic standard we must be able to answer such 
questions as, ``How many repetitions are too many for our 
landscape maintenance people raking leaves? How heavy is too 
heavy for teachers to lift a box of school supplies? How many 
hours at the computer is too many for the data entry clerk?'' 
They argue that there must be a single answer to each of these 
questions that all employers may uniformly apply, and that 
until there is, we do not know enough to issue an ergonomics 
rule. This, of course, is a standard that can never be met.
    As Charles Jeffress, the Assistant Secretary for 
Occupational Safety and Health stated in a speech before the 
National Coalition on Ergonomics, the industry coalition that 
is leading the effort to prevent OSHA from proceeding with the 
development of an ergonomic rule:

          One size does not fit all. That is why OSHA has 
        decided on the program approach. That's also why no one 
        will ever be able to say that X number of repetitions 
        or lifting X pounds will result in an injury or 
        conversely that Y number of repetitions or Y pounds 
        will definitely not result in an injury for anyone, 
        anytime, anywhere. However, many employers have proven 
        that establishing a systematic program to address 
        issues as repetition, excessive force, awkward postures 
        and heavy lifting, results in fewer injuries to 
        workers.
          * * * a program approach offers employers the 
        framework for addressing specific high risk areas and 
        then handling other problems as they arise. It's the 
        right way to go to provide needed protection for 
        workers while providing maximum flexibility for 
        employers.

    OSHA has developed a draft ergonomic proposal that has been 
publicly available on OSHA's website since early spring. OSHA's 
draft rule provides a flexible framework that enables employers 
to address work-related musculoskeletal disorders in a 
sensible, practical manner. OSHA recognizes that there are a 
variety of solutions to most ergonomic problems and the draft 
rule permits employers to choose those solutions that are best 
for their workplace. OSHA's draft rule does not require 
companies to automate, nor does it require companies with 
effective existing ergonomic programs to change those programs.
    The requirements that the draft rule imposes on employers 
are minimal. In manufacturing and manual handling operations, 
where ergonomic injuries are most likely to occur, the draft 
rule requires that management establish procedures to recognize 
and report ergonomic hazards and ensure that employees are 
aware of and able to report problems. If no ergonomic problems 
are reported the employer has met its full obligation. Where 
problems are identified, employers must implement measures to 
eliminate or control the problem to the extent feasible, must 
educate workers regarding the hazard and the employer's program 
to control it, must make available prompt access to treatment 
and provide working conditions that comply with that treatment 
during the recovery period, and must periodically evaluate the 
controls and programs to ensure they remain effective. Where an 
employer's ergonomic problems are limited, its ergonomic 
program may be limited accordingly. This is the nature of the 
burdensome requirements that are going to bankrupt the country 
that OSHA is seeking to impose.
    The OSHA Act prevents OSHA from issuing a standard that is 
not both technically and economically feasible. If a standard 
does not meet both tests, it will be struck down. Requirements 
that would significantly impair the long-term profitability or 
competitive structure of an industry, for example, would not be 
feasible.
    OSHA already enforces the General Duty Clause, the duty 
imposed on employers by sections 5(a)(1) of the OSH Act to 
provide a workplace free of recognized hazards, including 
ergonomic hazards, that are likely to cause serious harm. 
According to the Occupational Safety and Health Review 
Commission, it is not enough for OSHA to show, as the Majority 
argues, that a requirement will not force ``an entire industry 
to shut down.'' Rather, to prove a violation by an employer who 
has an ergonomics program, OSHA must prove that the requirement 
was feasible for the particular employer and that the employer 
failed to adopt a measure that was technically possible and 
likely to reduce materially the ergonomic hazard.
    In any event, the draft rule provided to the SBREFA panel 
does not require employers ``to slow the speed of production or 
to implement costly job rotation'' as the Majority claims. It 
provides that an employer may use any combination of 
engineering, work practice, or administrative controls to 
control ergonomic hazards and that employers may install 
controls incrementally rather than all at once. If raising the 
employee's chair controls the hazard, the employer need do no 
more.
    The OSHA draft rule is a flexible, program approach, drawn 
heavily from the best practices of employers. The draft rule 
does not ``lock employers into old technologies,'' ``freeze out 
innovation'' or otherwise prevent employers from developing and 
implementing new and better strategies for preventing ergonomic 
injuries and illnesses. The rule does not specify any 
particular technology. Nor does the draft rule preclude or 
prevent us from benefiting from the results of the NAS study. 
It is important to understand the endeavor that the NAS is 
actually undertaking. The NAS is conducting a review of 
existing literature. The NAS is not conducting primary research 
or developing ``new'' science. Rather, it is conducting the 
third major literature review to be conducted in three years. 
Every study the NAS is reviewing is already available for use 
during OSHA's rulemaking. Employers will be able to use the 
study's results to develop their own control strategy. Finally, 
the experience of companies that have already implemented 
similar programs has not been that such programs are expensive 
or provide only dubious benefits. In fact, these programs have 
significantly reduced injuries and have cut costs rather than 
increasing them.
    The following quote, from June 8, 1999 edition of The 
Charlotte Observer, was made in the context of unsuccessful 
efforts by some in North Carolina to prevent that State's 
Department of Labor from issuing an ergonomic standard. In our 
view, it applies equally to H.R. 987:

          In a blatant display of micromanagement and disregard 
        for working people, the N.C. House last week approved a 
        budget amendment that would delay the State Department 
        of Labor's adoption of new rules to prevent 
        musculoskeletal disorder injuries and illnesses in the 
        workplace.
          * * * The cost in lost wages and lost productivity is 
        staggering. So is the House's presumption in seeking to 
        impose a two-year delay on consideration of the rules, 
        known as the ergonomic standards.
          * * * By interfering with adoption of the ergonomic 
        rules, the House not only ignores the [administrative 
        review] process it set up in 1995, it also insults tens 
        of thousands of working people whose livelihoods are 
        threatened--and often halted--by workplace injuries and 
        illnesses.
          To quote from another newspaper, the July 25, 1999 
        edition of the Chicago Tribune: ``Almost a decade ago, 
        then-Labor Secretary Elizabeth Dole said the government 
        would set down rules to help protect workers from 
        debilitating workplace injuries caused by such 
        activities as lifting, pushing, pulling, and repetitive 
        motion. Nothing ever came of Dole's vow.'' * * *

    It is past time to fulfill that vow. Today, more than 
500,000 people continue to be injured on the job each year, and 
ergonomic injuries and illnesses are still the single largest 
source of lost-workday injuries. Ergonomic injuries and 
illnesses continue to cost between $15 and $20 billion a year 
in direct workers' compensation costs. The total costs of such 
injuries and illnesses, including lost income and productivity, 
may be as high as $60 billion a year. Clearly there are 
substantial benefits to be gained for workers, businesses, and 
the nation in proceeding with the development of an ergonomic 
standard.

                                   W.L. Clay.
                                   Dale E. Kildee.
                                   Major R. Owens.
                                   Patsy T. Mink.
                                   Tim Roemer.
                                   Lynn Woolsey.
                                   Chaka Fattah.
                                   Carolyn McCarthy.
                                   Ron Kind.
                                   Harold E. Ford, Jr.
                                   David Wu.
                                   George Miller.
                                   Matthew G. Martinez.
                                   Donald M. Payne.
                                   Robert E. Andrews.
                                   Bobby Scott.
                                   Carlos Romero-Barcelo.
                                   Ruben Hinojosa.
                                   John F. Tierney.
                                   Loretta Sanchez.
                                   Dennis J. Kucinich.
                                   Rush Holt.