An Overview of Initiative 841
Repeal of State Ergonomics Regulations
October 2003
Ballot Title: This measure would repeal existing state ergonomics regulations and would direct the Department of Labor and Industries not to adopt new ergonomics regulations unless a uniform federal standard is required.
On November 4th voters in Washington will be asked whether the state’s latest set of rules regulating the workplace, called the ergonomics rule, should be repealed. Unlike past ballot measures, Initiative 841 does not seek to make new law. Its goal is to reverse a regulatory action taken by a state agency without the specific direction of the legislature. This is the only statewide initiative that will appear on the ballot this year.
The term ergonomics derives from the Greek word for work. Strictly defined it means, “the applied science of equipment design, as for the workplace, intended to maximize productivity by reducing operator fatigue and discomfort.”[1] In applying the term to its newest workplace regulations, the Department of Labor and Industries uses the word in a slightly different sense. It defines “ergonomics” to mean, “designing jobs or workplaces to match the capability and limitations of the human body.”[2] Under this understanding the concept of maximizing productivity is discarded, in favor of a focus on limits placed on posture, movement and workloads.
Supporters of the ergonomics rule say it will reduce workplace injuries and save money through lower workers’ compensation claims. Opponents argue the rule is unnecessary because the number of ergonomic-related injuries is declining and that the complexity and cost of the rule will contribute to job losses and will damage Washington’s business climate.
The text of Initiative 841 is simple, but the issue it addresses is technical and complicated. This paper does not present an exhaustive examination of the subject – that would require a book-length publication. Instead, it presents a brief overview of the main points at issue to help voters make an informed decision on election day.
This study reviews the history of the ergonomics issue, examines trends in worker safety, describes laws that currently regulate the workplace, reviews the text of Initiative 841, and briefly summarizes the ergonomics rule voters are being asked to repeal.
In considering Initiative 841, voters may reasonably ask, “How did we get to this point?” The question of whether government should impose ergonomics regulations on businesses has been debated at the national and state levels for years. Following is a short historical timeline showing when the question of national ergonomics regulation was resolved by Congress, and how the state ergonomics rule ended up on the November 2003 ballot.
The National Ergonomics Rule
November 14, 2000 – The Clinton administration publishes the U.S. Department of Labor’s ergonomics regulation in the Federal Register, with the rules set to go into effect in October 2001. U.S. Senate opponents call it “one of the broadest and most expensive [rules] ever issued by the federal government.”[3] As published, a single copy of the rule requires 600 pages and weighs two pounds.
March 6, 2001 – The Senate, for the first time invoking the Congressional Review Act of 1996, votes 56-44 for Senate Joint Resolution 6 to repeal the federal ergonomics rule. The Act allows Congress to scrutinize all new regulations issued by federal agencies and, through a joint resolution approved by both houses, overrule a regulation.[4]
March 7, 2001 – The U.S. House of Representatives votes 223-206 for repeal.
March 20, 2001 – President Bush signs Senate Joint Resolution 6, repealing the ergonomics rule. Under the Congressional Review Act, the Department of Labor is barred from promulgating another ergonomics rule that would be “substantially similar” without direct congressional approval.[5]
The Washington State Ergonomics Rule
October 1998 – The Washington Department of Labor and Industries initiates the process for creating a state ergonomics rule by holding nine public Rule Development Conferences in seven cities around the state.
November 15, 1999 – The Department of Labor and Industries files the finished ergonomics rule with the state Code Reviser’s Office.
May 25, 2000 – Governor Locke asks the Director of Labor and Industries to establish a Blue Ribbon Panel on Ergonomics to assess whether four criteria were met during the rule-making process. The criteria were whether: demonstration projects were successful, educational materials were widely available, rule requirements were understandable, and enforcement policies and procedures were fair and consistent.
May 26, 2000 – The Department of Labor and Industries issues the ergonomics rule with phased-in enforcement scheduled to begin on July 1, 2002.
October 2001 – A coalition of business groups, Washington Employers Concerned About Regulating Ergonomics (WECARE), files suit in Thurston County Superior Court, requesting that the ergonomics rule be struck down.
December 11, 2001 – Governor Locke’s Competitiveness Council recommends “delaying the implementation of the ergonomics rule until the issues raised by business about its cost and necessity are addressed more fully.”[6]
March 1, 2002 – The Blue Ribbon Panel on Ergonomics publishes its final report, stating that all criteria set forth by the Governor were met.
March 5, 2002 – Governor Locke announces that enforcement of the ergonomics rule will be delayed for two years, until July 2004. On the same day the Governor announces, “one or more bills are under consideration in the legislature that would repeal the Department’s new ergonomics rule. I oppose such bills and will veto any that reaches my desk.”[7]
July 12, 2002 - Thurston County Superior Court Judge Paula Casey rules to uphold the ergonomics rule. The case is currently on appeal to the State Supreme Court.[8]
January 29, 2003 - The Building Industry Association of Washington (BIAW) files an initiative to the people, Initiative 841, to repeal the rule and begins gathering signatures to qualify it for the November 2003 ballot.
July 1, 2003 - BIAW submits a request asking the Department of Labor and Industries to withdraw the ergonomics rule. BIAW argues the rule is "too costly and has never been clearly promulgated" and that "Congress and other states have repealed similar ergonomic rules as unnecessary and unduly burdensome to business."[9] The group presents five reasons it believes the rule should be withdrawn:
July 30, 2003 - The Department of Labor and Industries denies BIAW's request, saying that correct procedures for rulemaking were followed and that the rule "will accomplish the intended prevention of significant numbers of work-related musculoskeletal disorders."[11] The Department's letter gives specific responses to each objection raised in the petition.
August 6, 2003 - After reviewing signatures submitted by BIAW, Secretary of State Sam Reed announces that "Initiative 841 has sufficient valid signatures [197,734] to qualify for a spot on the statewide ballot in November."[12]
The stated intent of the ergonomics rule is to improve health and safety for workers, so it is important to assess its claims in the context of what is already happening in workplace safety.
Workplace safety, both in Washington and nationally, has improved dramatically over the years. In the 1930s, injuries on the job killed 38 workers per 100,000 people employed. Today, workplace fatalities have been reduced by 90%. The lower fatality rate is part of a broad downward trend, especially in recent years, in all types of work-related injuries. In particular, injury and illness related to musculoskeletal disorders consistently declined in the last decade, even though there was no mandatory government regulation addressing them. Nationally, workplace musculoskeletal disorders have fallen 26% since 1992.[13] From 1992 to 1999:[14]
Voluntary industry-specific guidelines have produced impressive results. In the meat products industry, for example, the overall injury rate has fallen 62% since 1992.[15] From 1992 to 1999:[16]
Similarly, many businesses in Washington have adopted voluntary ergonomics programs, and across the state the rate of musculoskeletal, on-the-job injuries has fallen more than 24% since 1996.[17] In Washington state, for the period 1991 to 1999:[18]
The dramatic reductions in ergonomic-related injuries, absent additional mandatory government regulation, is not surprising. In a competitive marketplace, employers have strong incentives to constantly improve working conditions. Examples of the benefits a business gains from reducing worker injuries are reduced time away from the job, lower workers' compensation costs (through a better experience rating with the state), and better continuity and quality of service to customers. In a modern economy, it is common business practice for employers to be sensitive to the health and well-being of their workers.
The state ergonomics rule represents a significant expansion of government regulation. The question of whether the new ergonomics rule is necessary, or is unneeded and counterproductive, as it critics contend, must be judged in light of how current law addresses workplace safety.
The existing legal code sets specific standards for workplace safety. Thirty-eight separate sections in Title 49, Chapter 17 of the Revised Code of Washington lay out everything from the purpose of the law, to definitions of safety, to the rights of employees and the penalties imposed on employers for not maintaining a safe workplace. Every employer is required under the General Duty clause to "furnish to each of his employees a place of employment free from recognized hazards that are causing or likely to cause serious injury or death."[19]
The law on occupational safety was created in part because worker injuries and illnesses "impose a substantial burden upon employers and employees."[20] The goal of the code is to prevent injuries and to "assure…safe and healthful working conditions for every man and woman working in Washington State."[21] Consequently, ergonomics injuries are covered by the existing code in the same manner as other workplace risks.
Current law requires the state to maintain occupational safety standards that "equal or exceed the standards prescribed by the (federal) Occupational Safety and Health Act of 1970."[22] Employers are required to keep safety records and to share them with the Department of Labor and Industries. State inspectors are authorized to conduct workplace inspections at any time with little or no advance warning. Employers with unsafe workplaces may be fined penalties ranging from $5,000 to $70,000.[23]
Workers also play an important role in maintaining safe workplaces and they are granted express protection under existing law to encourage their participation and vigilance. Employees may, while remaining anonymous to their employers, request inspections of workplaces they believe are unsafe, file complaints with the agency and testify against employers. Under the law, employees cannot be discriminated against for their participation in these actions.[24]
The text of Initiative 841 contains four sections. Section 1 provides that it is state policy to aid businesses in creating new jobs. It states that the Governor’s Competitiveness Council recommended repealing the ergonomics regulations as a top priority for improving the business climate. It notes that members of both parties in the legislature have introduced bills for repeal, and predicts that Initiative 841 will "aid in creating jobs and employing the people of Washington."
Section 2 provides that state ergonomics regulations, identified as Washington Administrative Code 296-62-05101 through 296-62-05176, are repealed. It further provides that the Director of the Department of Labor and Industries shall not have the authority to issue new ergonomic rules except if necessary to carry out a uniform federal standard.
Sections 3 and 4 provide direction to the courts on how the new law is to be interpreted. They state that the initiative is to be "liberally construed to effectuate the intent, policies and purposes of this act," and that if any provision is struck down, the remaining provisions remain in force. The full text of the initiative, along with the official summary and ballot title, is shown on the next page.
| Initiative 841
Official Ballot Title: This measure would repeal existing state ergonomics regulations and would direct the department of labor and industries not to adopt new ergonomics regulations unless a uniform federal standard is required. Shall this measure be enacted into law? ? Yes ? No Official Ballot Summary: This measure would declare that the state’s ergonomics regulations, promulgated by the Department of Labor and Industries, are immediately repealed. The measure would specifically include those rules adopted by the Department of Labor and Industries on May 26, 2000, codified as WAC 296-62-05101 through 296-62-05176. Further, the Department would be directed not to adopt any new regulations relating to ergonomics unless it becomes necessary for the state to meet a uniform federal standard. Complete Text of Initiative 841: AN ACT Relating to repealing state ergonomics regulations unless a uniform federal standard is required; adding new sections to chapter 49.17 RCW; and creating a new section. BE IT ENACTED BY THE PEOPLE OF THE STATE OF WASHINGTON: NEW SECTION. Sec. 1. A new section is added to chapter 49.17 RCW to read as follows: Washington must aid businesses in creating new jobs. Governor Locke’s competitiveness council has identified repealing the state ergonomics regulations as a top priority for improving the business climate and creating jobs in Washington state. A broad coalition of Democrats and Republicans have introduced bills repeatedly to bring legislative oversight to this issue. This measure will repeal an expensive, unproven rule. This measure will aid in creating jobs and employing the people of Washington. NEW SECTION. Sec. 2. A new section is added to chapter 49.17 RCW to read as follows: For the purposes of this section, “state ergonomics regulations” are defined as the rules addressing musculoskeletal disorders, adopted on May 26, 2000, by the Director of the Department of Labor and Industries, and codified as WAC 296-62-05101 through 296-62-05176. The state ergonomics regulations, filed on May 26, 2000, by the Director and codified as WAC 296-62-05101 through 296-62-05176 are repealed. The Director shall not have the authority to adopt any new or amended rules dealing with musculoskeletal disorders, or that deal with the same or similar activities as these rules being repealed, until and to the extent required by Congress or the federal Occupational Safety and Health Administration. NEW SECTION. Sec. 3. The provisions of this act are to be liberally construed to effectuate the intent, policies, and purposes of this act. NEW SECTION. Sec. 4. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act of the application of the provision to other persons or circumstances is not affected. |
||
It is interesting to note that the ban on promulgating any new ergonomics rules, except to comply with a uniform federal standard, applies to the Director of Labor and Industries. This could mean that under the initiative the legislature is free to grant such authority to the agency any time it likes. If, however, the provision is interpreted as imposing a restraint on the legislature as well as the agency head, such a ban would only be in place for two years. At that time the legislature could amend this part of the initiative and permit the Department to issue ergonomics rules. Alternatively, the legislature could at any time enact its own ergonomics rule and instruct the Department of Labor and Industries to enforce it.
By any measure the state ergonomics rule is extremely complicated. The Concise Explanatory Statement alone is 126 pages, plus three appendices. To describe fully the rule and its impact on the business climate would require extensive analysis and is beyond the scope of this overview. To help the reader understand what Initiative 841 seeks to repeal, however, this section presents a brief outline of the rule and its main requirements.
The rule states that it "applies to all industries and workplaces of all sizes, but specific employers are covered only where defined exposures are found." All workplaces in the state are potentially covered, so all employers must be aware of and comply with the ergonomics rule. Because of the rule’s pervasive nature, inspection and enforcement must necessarily be selective and is solely at the discretion of the Department of Labor and Industries. While the rule will not apply in many work situations, in practice employers can never be sure just when or how strictly it may be enforced in their particular place of business.
The rule contains eight main elements:
"Caution zone jobs," are defined as jobs that require work activities more than one day a week involving such motions as lifting, bending, squatting, kneeling, bending the head or wrist, high hand or arm vibration, or lifting arms above the head or shoulders.
Employers with "caution zone jobs" must identify those having work-related musculoskeletal disorder (WMSD) hazards that must be reduced. The Department defines a WMSD hazard as "a physical risk factor that by itself or in combination with other physical risk factors has a sufficient level of intensity, duration or frequency to cause a substantial risk of WMSDs."
In order for employers to ensure they will not be subject to penalties under the rule, they must reduce or remove any WMSD physical risk factors that apply to a "caution zone job." This requires placing limits on the movement and duration required for certain tasks. For example, to insure avoidance of a WMSD hazard, employers must make sure workers do not:
Based on these limitations, many employees may only be allowed to work three or four hours a day, resulting in a significant reduction in their personal income.
Appendix B of the rule requires employers to use a "Job Strain Index" for each job to assess “posture, force, repetition, repeated impacts, vibration, duration, work pace, task variability and recovery cycles.” The rule also requires employers to map work areas and precisely measure "reaches, heights, seating, surfaces, load size, shape, weight and packaging." A typical instruction to employers says, “Find out how many times each employee lifts per minute.”
If enforcement begins in July 2004 as scheduled, the consequences to employers for violating the ergonomics rule will be severe. The Department will weigh the seriousness of each violation based on a nine-point scale. For an ordinary violation penalties range up to $7,000. For violations the Department determines are "repeat, willful, egregious or a failure-to-comply," penalties range up to $70,000 per infraction.
While the rule states it must be implemented "to the degree feasible," this will not provide a legal defense to employers who are found in violation. The law says state regulators, not employers, will decide what is feasible.
The Department of Labor and Industries estimates the ergonomics rule "will prevent 40% of WMSDs and 50% of WMSD costs once all the elements of the rule are fully effective." The Department’s cost/benefit analysis estimates compliance will cost $80.4 million a year, and that benefits will be worth $340.7 million, resulting in an assumed 424% return on the "investment" toward reducing workplace injuries. The term investment is not used accurately in this case, however. For employers, the ergonomics rule is not a voluntary outlay based on accepting a reasonable risk today in return for a future reward. It is a government mandate whose costs must be borne immediately, whether or not any future benefit actually results.
Opponents say the rule will bring no savings at all and will in fact cost Washington businesses hundreds of millions of dollars a year. They estimate, for example, that the rule will require the average grocery store to make $673,970 worth of improvements, and that it will add $2,408 to the cost of building a $200,000 home.[26]
The current national and state trends toward increased workplace safety indicates that, even in the absence mandatory ergonomics rules, employers increasingly recognize it is good business to prevent workplace injuries. The trend is driven by the reality of today's business world. To attract and retain the best workers, employers must maintain a safe workplace, and, consequently, employers with poor safety records are unlikely to attract good employees. In addition, ergonomic-related injuries are already covered under existing law, which itself has contributed to employers' awareness and concern for worker safety.
One risk a complex and costly ergonomics rule is that it will disrupt the current positive trend in workplace safety by signaling to employers that their own initiatives will be replaced by a government mandate. It is not clear, however, that replacing current voluntary incentives with a command-and-control approach will produce better results. Once in place and fully enforced, government regulations are not subject to easy correction or amendment.
Government regulations often produce unexpected and undesirable outcomes. The ergonomics rule represents a vast increase in the regulation of business, and it will be up to voters to decide whether the potential benefit outweighs their cost and complexity.
About the Author
Click here to read more about the author Paul Guppy.
Allison Demeritt provided valuable research and drafting assistance to this project as part of her work with Washington Policy Center's Visiting Scholars program. She is a graduate of Princeton University and has worked as a public finance analyst for a Seattle-based investment bank and as a product manager at Amazon.com.
[1] The American Heritage Dictionary of the English Language, Houghton Mifflin Company, Boston, MA, 2003 edition.
[2] "Ergonomics Homepage," Washington Department of Labor and Industries, at www.ini.wa.gov/wisha/ergo/default.htm, September 2003.
[3] "Legislative Notice," United States Senate Republican Policy Committee, March 6, 2001.
[4] Public Law 104-121, Title 5, United States Code, Section 801.
[5] ibid, Section 802.
[6] "Challenge to L&I's Ergonomics Rule," Section 3.3.11, Final Report, Washington Competitiveness Council, December 11, 2001, at www.governor.wa.gov/wcc/final.pdf.
[7] "Locke directs state to implement ergonomics rule with delayed penalties," press release, Office of Governor Gary Locke, March 5, 2002.
[8] Washington Employers Concerned About Regulating Ergonomics, et al., v. Department of Labor and Industries, et al., No. 73020-2, Thurston County Superior Court, and "Judge rejects challenge to ergonomics rules," by Paul Nyhan and Angela Galloway, Seattle Post-Intelligencer, July 13, 2002.
[9] Letter from Timothy D. Ford, Legal Counsel, Building Industry Association of Washington, to Paul Trause, Director, Washington Department of Labor and Industries, July 1, 2003.
[10] "Petition for Adoption, Amendment, or Repeal of a State Administrative Rule," (RCW 34.05.330), Office of Financial Management, submitted by Building Industry Association of Washington, July 1, 2003.
[11] Letter from Paul Trause to Timothy D. Ford, July 30, 2003.
[12] "Initiative 841 qualifies to ballot," News Release, Office of the Secretary of State, August 6, 2003, at www.secstate.wa.gov/office/news.aspx?news_id=208.
[13] Testimony of Elaine L. Chao, Secretary of Labor, Committee on Health, Education, Labor and Pensions, United States Senate, April 18, 2002.
[14] "Effective Ergonomics - Strategy for Success," Occupational Safety and Health Administration (OSHA), U.S. Department of Labor, at www.osha.gov/ergonomics/FAQs-external.html, September 2003.
[15] ibid.
[16] ibid.
[17] "Occupational Injuries and Illnesses," Injury/Illness Rates in Washington State 1996-2001, Bureau of Labor Statistics Data Queries, U.S. Department of Labor.
[18] "Health of Washington State Report," chapter on "Work-Related Musculoskeletal Disorders," Washington State Department of Health, July 23, 2002, at www.doh.wa.gov/HWS/doc/OH/OCC_WMD.
DOC.
[19] Revised Code of Washington, 49.17.060.
[20] Revised Code of Washington, 49.17.010.
[21] ibid.
[22] ibid.
[23] Revised Code of Washington, 49.17.180 and 49.17.070.
[24] Revised Code of Washington, 49.17.160.
[25] All references in this section are taken from "Executive Summary, Concise Explanatory Statement," (RCW 34.05.325.6a) WAC 296-62-051, Ergonomics, Department of Labor and Industries, May 25, 2000.
[26] "Yes on 841," Workers Against Job Killing Rules, Olympia, Washington, September 2003, at www.yes841.com.