Information Paper

The Issue

The Occupational Safety and Health Administration (OSHA) published a proposed rule on an Ergonomics Standard to address the significant risk of work related musculoskeletal (MSD) injuries and illnesses confronting employees in the workplace. The Federal Register notice became available on November 23, 1999 at 64 FR 65768-66078. This ergonomics rule provides a sweeping set of standards designed to reduce stress-related injuries and illnesses in the workplace. This proposed rule has been greeted with opposition by the U.S. Chamber of Commerce and business groups. It has been estimated by OSHA that work-related MSDs account for 1/3 of all occupational injuries and illnesses, allegedly the largest job-related problem in the USA. OSHAÌs two basic conclusions are that 1) there is a positive relationship between work-related MSD disorders and work-place risk factors, and 2) ergonomic programs can reduce these injuries.

MSD is defined as injury or illness to muscles, tendons, joints, spinal discs, nerves, ligaments and cartilage. This proposed standard does not cover injuries from falls, slips, or being struck by an object. Many ergonomic risk factors can combine to create an MSD hazard. This proposed rule deals with problems known and alleged by OHSA to be severe in the general workplace. The agency believes that there are solutions that are well understood to control or reduce the MSD problem from re-occurring.

Emphasis has been placed on three specific aspects of the general industry. These are 1) manufacturing production jobs, 2) manual handling jobs, and 3) other jobs where recordable MSDs have been reported. Manufacturing production jobs (involving repetition of the same task throughout the workday without much variation) relate to assembly line, production line, or other factory jobs. All manufactured home producers and most product suppliers would fall under this category. Manual handling jobs are those that require forceful lifting, lowering, pushing, pulling, and carrying of materials or equipment. Use of forklifts and mechanical lifting devices fall under this category. Manufactured home producers and suppliers have some areas of the workplace which fall into this category. Jobs where OSHA-reported MSDs occur include carpal tunnel syndrome, lower back pain, carpet layers knee and possibly tendinitis. This category also affects manufacturers, suppliers, retailers and community owners in the workplace environment, such as administrative office employees. It is apparent from review of the proposed rule that installers are not included, since this part of the industry is associated with the construction industry, that is not covered by the proposed rule.

The proposed rule is job-related, not the entire workplace related. Employers may not have to apply the proposed rule corporate-wide, unless they identify the same MSD illness in another subsidiary or plant facility. If the employer has an ergonomic-related standard in place, the employer may continue to use that program provided it satisfies the basic obligation section of each program element contained in the proposed rule. The existing program must be evaluated before the final rule effective date.

If the proposed rule is implemented, there are broad-reaching compensation requirements for workers who experience MSD injuries or illnesses. For workers who are injured and cannot work, the employer would pay 90 percent of the workers wages and 100 percent of any benefits. For workers who are transferred to other light-duty jobs, employers would pay 100 percent of the wages of the actual workerÌs job and not the pay scale of the job transferred to. Wages and benefits would continue to be paid until the worker can return to the job, the hazard is eliminated, or six months, whichever comes first. Workers compensation or similar benefits may offset some of the employer costs but depends on the State worker compensation program requirements.

MHI began efforts to oppose the finalization and implementation of the proposed OSHA ergonomics rule. MHI retained a safety consultant in the ergonomics field to assist in developing a synopsis of the proposed rule and how it affects our industry, as well as preparation of comments and possible testimony to OSHA expressing our concerns. MHI also joined a national coalition of affected parties (the National Coalition on Ergonomics), to fight the proposed rule finalization and implementation.

MHI submitted comments concerning the OSHA Ergonomics Proposed Rule on February 25, 2000. MHI also initiated a twelve-question survey of the Manufacturers Division to determine the current status of the manufactured housing industry concerning the MSD ergonomics issue. MHI needed this information to determine if work-related MSD injuries do occur in the industry, to what extent any such injuries relate to lost work hours for all manufacturers, and determine if current safety programs implemented by manufacturer members could satisfy the OSHA ergonomics proposed rule.

MHI presented testimony before the OSHA Ergonomics panel on May 9, 2000 at the Department of Labor. The major points raised at that time were as follows:

1. Challenged the assertion that all MSDs are work-related and that by controlling repetitive action in the workplace, MSDs can be eliminated.
2. There is virtually no manner to completely eliminate the hazards associated with repetition, vibration and physical force required in manufactured home production facilities.
3. OSHA chose not to regulate the construction industry, whereas the only difference between site-built homes and manufactured homes is that our homes are built under one roof.
4. Actual costs for implementing the ergonomics program will far exceed any estimation by OSHA for our industry since all production facilities use assembly line techniques and manual lifting jobs.
5. There is not agreement in the scientific community on the causation and correction to regulate MSDs.
6. Employers will have to examine every workstation in manufactured home production, in other words, a full-blown ergonomics program will result.
7. There is no proof that the proposed ergonomics program will result in fewer MSD complaints.
8. OSHA is attempting to preempt State worker’s compensation laws in that an employer must pay 90% of wages and 100% of benefits for a six-month period.
9. Discrepancies can exist when an employer’s health care provider and the employee’s health care provider do not agree on the work-related MSD diagnosis and who makes the final decision.

According to the April 24, 2000 federal Semiannual Regulatory Agenda, OSHA is anticipating publishing a final ergonomics rule by December 2000. At the present time, the U.S. Chamber of Commerce (USCC) is reviewing possible avenues to eliminate any ergonomics intervention in the general industry workplace environment. The USCC solicited at least one member manufacturer to provide funding towards the participation by the UDCC in the development and preparation of testimony during the rulemaking and public comment stage of the Ergonomics Standard. It has been estimated that the total cost of this effort would be approximately $800,000, since they retained a lawyer (Willis Goldsmith) to handle all the ergonomics related activities. The USCC has raised nearly $450,000 towards this goal. Our industry has been asked to contribute to the USCC cause. Since the two-month long public comment stage ended on May 12, 2000, time is of the essence if the manufactured housing industry wishes to participate in the USCC quest. MHI was informed by Mr. Steve Bokat of Jones, Day, Reevis and Polk, the law firm handling the ergonomics issue for the USCC, that a lawsuit looms on the horizon should OSHA publish any final rule on the ergonomics issue.