PROPOSED PETITION DECISION OF THE
OCCUPATIONAL SAFETY AND HEALTH STANDARDS BOARD
(PETITION FILE NO. 430)
The Occupational Safety and Health Standards Board (Board) received a petition on
February 28, 2001 from Margaret Robbins, Director of Safety and Health, of the California Federation of Labor, AFL-CIO (Petitioner). The Petitioner requests the Board to amend Title 8, California Code of Regulations, Section 5110 to incorporate the elements of the former federal Ergonomics Program Standard, 29 CFR 1910.900.
Labor Code Section 142.2 permits interested persons to propose new or revised regulations concerning occupational safety and health, and requires the Board to consider such proposals, and render a decision no later than six months following receipt. Further, as required by Labor Code Section 147, any proposed occupational safety or health standard received by the Board from a source other than the Division of Occupational Safety and Health (Division) must be referred to the Division for evaluation, and the Division has 60 days after receipt to submit a report on the proposal.
In her February 23, 2001 letter to the Standards Board, the Petitioner states the following:
"The Occupational Safety and Health Standards Board currently has on its rulemaking calendar for 2001 to modify CCR Title 8, Section 5110, presumably to incorporate the new federal OSHA Ergonomics Standard. Regardless of the outcome of the current deliberations in Congress or Executive Branch in Washington DC, we petition the Occupational Safety and Health Standards Board to proceed with rulemaking in this area. Specifically, we petition the Board to revisit CCR Title 8, Section 5110, Repetitive Motion Injuries, and replace it with a more sound and protective standard containing the elements of 29 CFR 1910.900, Ergonomics Program Standard, promulgated on November 14, 2000."
The Division's evaluation report dated June 21, 2001 states the Division believes the path suggested in Petition 430, for a number of reasons, is not the optimal one for achieving the common goal of preventing musculoskeletal disorders of a repetitive nature. The Division further stated that a discretionary review of the California Repetitive Motion Injury (RMI) standard would have a better chance of succeeding if it were not coupled to consideration of the former federal standard as a model or precedent.
The Division evaluation of Petition 430 was quite extensive and provided a detailed background and history of both the California and federal OSHA experience in promulgating an ergonomic standard and the legal framework for such adoptions at the state and federal levels.
That summary notes that had the federal Ergonomic Program Standard not been repealed, California would have needed to adopt an equivalent standard by May 14, 2001 to meet the six-month requirement for adopting state standards equivalent to federal standards. In discussing legal remedies for parties adversely affected by the regulation, the Division pointed out that over thirty parties, including employer organizations, labor unions and insurer associations, filed petitions for judicial review of the federal Ergonomics Program Standard in various federal courts.
The Division noted some of the issues mentioned publicly by parties adverse to the former federal standard included procedural objections such as federal OSHA's use of paid consultants as expert witnesses during public hearings, OSHA's failure to notice some elements of the former 29 CFR 1910.900, and OSHA's failure to consider some types of fiscal impacts of the final standard. Also, the aggrieved parties cited various substantive objections to elements of the standard itself, including the view that action triggers in the standard were not protective enough, that OSHA had no authority to regulate injuries aggravated, but not caused by work, and that OSHA's Work Restriction Protection provision conflicted with states' workers' compensation law.
The Division's evaluation covered the events last March regarding the congressional review of the former 29 CFR 1910.900 beginning with the introduction of a Joint Resolution of Disapproval of Ergonomics Regulation (S.J. Res 6) in the U.S. Senate under the provisions of the Congressional Review Act (CRA) of 1996. It was noted that under the CRA, if Congress passes a joint resolution of disapproval, a rule shall not take effect. S. J. Res 6 passed both houses of Congress and was then signed by the President on March 20, 2001. The Division reported that on March 21, 2001 federal OSHA notified the states of the cancellation of the requirement to adopt an ergonomic standard comparable to the federal standard.
The Division evaluation detailed the events following the nullification of 29 CFR 1910.900 and pointed out that to proceed with any future ergonomic rulemaking, the CRA requires that Congress write an "ergonomics rulemaking prescription" for OSHA to follow. The Division noted that such legislation is yet to be enacted and stated that there are two bills currently being considered in Congress, S. 598 and H.R. 1241, that would provide OSHA with the required ergonomics rulemaking prescription. The Division evaluation also noted that the Executive Branch is considering rulemaking in the area of ergonomics and referenced comments by Secretary of Labor Elaine Chao before the Subcommittee on Labor, Health and Human Services and Education of the Senate Appropriations Committee. Secretary Chao said that "…We should agree on general principles that the Department will follow in creating a new ergonomics approach …" and outlined six principles that she believes would provide a common starting point for common understanding, i.e. prevention, sound science, incentive driven, flexibility, feasibility and clarity. Given this activity, the Division noted that the federal government could move toward additional ergonomics rulemaking in the near future and noted that such rulemaking will be subject to mandatory adoption by the states.
The next topic the Division evaluation covered was the discretionary adoption of a former federal standard by a State Plan State and reported that such an action would be unprecedented. The Division stated that it is unaware of any State Plan Program which has adopted, or plans to adopt, former 29 CFR 1910.900. The Division noted that this does not preclude the Standards Board from considering adoption of the repealed federal ergonomics standard on a discretionary basis, but stated that any such process should consider the interests of all stakeholders in California's ergonomics regulation.
The Division evaluation then traced the extended history and the considerable effort of adopting the current California ergonomics standard. This history included the judicial review that took place during and after the standard became effective on July 3, 1997. The Division pointed out that litigation over California's ergonomic regulation concluded approximately two and one-half years after the standard was adopted. The Division further pointed out that in 1999, as part of Assembly Bill 1127, the Legislature enacted Labor Code Section 6719 and reaffirmed its continuing concern over the prevalence of repetitive motion injuries in California.
The Division next discussed its consultative and enforcement activities and the resources it has devoted to Section 5110 since its adoption. The Division provided the following summary of its activities:
The Division report also provided statistical data on the numbers of repeated trauma or repetitive motion injuries. The report stated that from 1982 through 1994, the number of Repeated Trauma Disorders increased tenfold from a low of 3,000 in 1982 to 31,800 in 1994. The report further stated that in 1995, California experienced a decrease to 28,600 in the number of Disorders Associated with Repeated Trauma and has remained relatively constant the last four years at approximately 32,000 cases per year.
The Division evaluation next discussed the difficulties involved in making comparative analysis of the elements of the former 29 CFR 1910.900 and Section 5110. The Division noted that the two standards reflect two fundamentally different regulatory approaches; specification-oriented versus performance oriented. The Division further noted that a side-by-side comparison is very difficult, since the two standards represent "apples and oranges" regulatory approaches. The Division made this observation first hand when it recently attempted a side-by-side comparison of the two standards.
The Division evaluation maintains that any discretionary review of Section 5110 based on Petition 430 would require a process for determining which provisions of 29 CFR 1910.900 would be "more sound and protective" than those found in Section 5110. The evaluation points out that Petition 430 does not suggest a process for determining which elements of Section 5110 are to be replaced with a comparative element found in the federal ergonomics standard, nor does the Petition suggest a process for weighing the relative merits of each comparative element. The Division believes this is important in that some elements of the federal standard are not found in Section 5110 at all, other elements of the federal standard are found in Section 5110, but differ qualitatively or quantitatively from a similar element in the federal standard, and other elements of the federal standard are arguably found in sections of Title 8 other than 5110. The Division believes that the complexities involved in conducting an elemental analysis of these different kinds of federal and state standards could be significant and would be further complicated by determining what standard of review should be used.
The Division evaluation points out that "replacement" of some provisions of Section 5110 with the elements of the 29 CFR 1919.900 would seem to have the opposite effect sought by the Petitioner, i.e. making the California standard "more sound and protective". The Division provides a few examples of this, such as the limitations in the former 29 CFR 1910.900 scope and application where Section 5110 contains no equivalent industry-specific exclusions, nor exclusionary limitations on the types of musculoskeletal injuries covered.
In the final section of the Division evaluation report, Recommendations, the Division stated that it considers prevention of musculoskeletal disorders of a repetitive nature to be one of the most important of the Division's Performance Goals in its Five Year Strategic plan. The Division points out the Division's 2001 Performance Plan specifically includes the prevention of repetitive motion injuries as Performance Goal 2.1 to which it has devoted considerable resources.
Nonetheless, the Division stated that the path suggested in Petition No. 430 is not the optimal one for achieving the common goal of preventing musculoskeletal disorders of a repetitive nature. The Division stated that it believes, due to a number of considerations, that a discretionary review of the California RMI standard would have a better chance of succeeding if it were not coupled to consideration of the former federal standard as a model or precedent. The Division discussed three of the most significant factors that support this belief:
1. The challenge to adopt changes to Section 5110 that would be easy to understand, easy to implement and easy to enforce would be significant if former 29 CFR 1910.900 were to be used as a comparative template. The Division stated that federal OSHA has been historically perceived by many as having a tendency to adopt unnecessarily complex regulations and the former federal ergonomic standard did not seem to overcome this tendency in the eyes of some observers.
2. Engaging in a review of the relative merits of the former federal ergonomics standard and the existing California standard will not be possible without a substantial expenditure of internal and external resources by the Standards Board, the Division, and the many stakeholders who will want to participate. It is worth considering whether these resources might be more productively employed by directing them toward a more modest, manageable, and well-defined review process, or perhaps toward responding to any future federal ergonomics rulemaking.
3. It is worth considering whether a resolution of the opposing, but strongly-held views on the merits of the former 29 CFR 1910.900 would be any more achievable at the state level than it was at the federal level. The Division further postulated that initiating that same debate here in California will only serve to import into California the legal arguments, pro and con, that were to be aired by the more than 30 petitions for judicial review that were filed in response to the federal ergonomics standard.
The Division concludes its evaluation report by stating that given the above considerations, the Division does not oppose the concept of utilizing an advisory committee process to consider the need for improvements in the California RMI standard. The Division further stated that such a process should be carried out consistent with Labor Code Section 6719, in which the Legislature reaffirms the Standard's Board's continuing duty to carry out the mandate of Labor Code Section 6357. The Division further recommended that such a process not be carried out without input from the stakeholders in California and stated that an informal public advisory process is virtually the only effective mechanism that exists to solicit stakeholder input.
The Division's evaluation concludes by identifying itself as a stakeholder and believes that its ongoing monitoring of the effectiveness of Section 5110 is an essential component of its enforcement of the standard and should be an essential consideration in any rulemaking process involving Section 5110. Although the Division notes the previously mentioned concerns with the Petitioner's recommendation, and stated that their proposal is not the "optimal" approach, the Division offers no direct opinion or recommendation to the Standards Board on whether the Board should grant or deny Petition 430.
Board staff prepared an evaluation dated June 22, 2001 which shares some of the concerns raised in the Division's evaluation about using the former federal Ergonomic Program Standard as a framework or model for replacing California's current standard.
Board staff observes that the degree of controversy generated as a result of the adoption of the federal Ergonomic Program Standard was quite significant and resulted in the filing of over thirty lawsuits. The opponents of the standard contested both the manner in which the standard was implemented procedurally and a number of provisions contained in the regulation itself. Board staff cautioned against incorporating such problems into California and provided a number of specific examples of potential concerns:
- Providing worker benefits that conflict with state worker's compensation laws and whether the Board has the authority to adopt regulations providing such benefits.
- Because the federal standard required employers to address musculoskeletal injuries where a workplace exposure caused, contributed to, or significantly aggravated a pre-existing injury, it required an employer to act in response to a musculoskeletal injury irrespective of the degree to which workplace conditions caused the injury and noted that if workplace factors contributed to 10% of the injury and personal activities contributed 90%, revamping the workplace could have little or no effect on the injury or its cause.
- Unanswered questions regarding how the worker restriction protection benefits (WRPB) interact with current state worker compensation benefits.
- The omission of coverage in the federal standard for agricultural, construction, maritime and railroad workers, including the employees who work in management or support services in those industries. Board staff noted that all California employees covered by the Occupational Safety and Health Act receive the same protections of Section 5110 and strongly advised against removing these protections from employees working in covered industries or maintaining a separate standard for them.
- The federal regulation encompassed most parts of the body, but unlike California's Section 5110, the federal standard failed to cover the entire body.
Board staff states that since the federal regulation was repealed before any of the more than thirty lawsuits it produced were resolved, it is impossible to know what the terms of the federal rule would ultimately have been following judicial review. Board staff postulated that if the Board were to incorporate the now defunct federal standard into California's Title 8 regulations it might simply be dismantled by California courts, and this would serve the interests of no one.
Board staff noted that the Board would be remiss in its duties if it shied away from controversial or contentious issues, but it would be equally remiss to import into California the degree of confusion and litigation spawned by the former federal standard. Board staff stated that a decision to grant Petition 430 would divert untold Board, Division and Board staff resources from other more effective rulemaking efforts.
Board staff points out that the federal government has been active in the ergonomics arena since the repeal of the federal standard last March. Board staff notes that the President, in signing the repeal of the federal standard, issued a statement indicating his intent to pursue a comprehensive approach to ergonomics. In addition, Secretary of Labor Elaine Chao issued public statements committing federal OSHA to work with stakeholders to develop an effective strategy to reduce injuries and find a solution that works. Staff further notes that Secretary Chao scheduled three national forums (one forum will be convened in California) this month to begin developing an approach to the ergonomic problem in the workplace.
Board staff further noted that members in both houses of Congress stated their interest in implementing a new approach to addressing ergonomic injuries and introduced similar bills, S. 598 and H.R. 1241, to set the parameters for a new ergonomics regulation.
Board staff stated that, given the commitment expressed on this issue at the federal level, and the lengthy rulemaking process that would be required to make significant changes to Section 5110, this may not be the best time to modify the state standard as the timing may be premature. Board staff pointed out that the resources needed to amend Section 5110 might be largely wasted if federal OSHA promulgated its own regulation shortly after California amended its own rule, because California very likely would then have to consider another ergonomics rulemaking proposal to be as effective as the federal standard.
Board staff stated that while it is mindful of the Board's continuing responsibility to carry out the Labor Code Section 6357 mandate to reduce repetitive motion injuries in the workplace, a duty affirmed in Labor Code Section 6719, it cannot agree that the repealed federal standard serves as a strong template for action in this area, nor can it agree that this is an appropriate time to significantly alter Section 5110. Board staff further noted that the four states that did adopt the federal ergonomics standard have since rescinded the adoption. The Board staff evaluation suggested that Board staff, in conjunction with the Division, will continue to closely monitor developments in the ergonomic arena, will continue to assess the effectiveness of Section 5110 and will propose any changes it or the Division deems appropriate when they arise.
CONCLUSION AND ORDER
The Occupational Safety and Health Standards Board has considered the petition of Margaret Robbins, Director of Safety and Health, AFL-CIO, to make recommended changes to Section 5110 to incorporate the elements of the former federal Ergonomics Program Standard, 29 CFR 1910.900. The Board has also considered the recommendations of the Division and Board staff.
The Board agrees with the Division that using the former federal Ergonomics Program Standard as a model or template for amending Section 5110 is not the optimal approach for achieving the common goal of preventing musculoskeletal disorders of a repetitive nature based on the considerations outlined in their evaluation. Those considerations are: (1) the complexity of the federal regulation and the challenge to adopt a standard easy to understand, implement and enforce if 29 CFR 1910.900 were used as a model, (2) the substantial expenditure of resources that would be required to undertake this effort, and (3) whether a resolution of the opposing, but strongly held views on 29 CFR 1910.900 would be any more achievable at the state level than it was at the federal level.
The Board further agrees with the Board's staff assertion that, rather than amend Section 5110 to incorporate the elements of the former federal Ergonomics Standard, that the Board and the Division should continue to monitor developments in the area of ergonomics and adopt sound and effective solutions to workplace repetitive motion injuries as they arise. The federal standard produced a destructive degree of litigation, appears to exceed the Board's authority, excludes large groups of employees and raises as many questions as it answers. The Board does not believe that the federal model offers a sound approach for revising California's ergonomic standard and believes any revisions to Section 5110 at this juncture would be untimely given the activity occurring on this issue at the federal level.
For reasons stated in this proposed decision, including those contained in the Division and Board staff evaluations, the Petition is hereby DENIED.