February 16, 2000
Docket No. S-777
OSHA Docket Office
Occupational Safety and Health Administration
Department of Labor
200 Constitution Avenue, N.W., Room N-2625
Washington, D.C. 20210

The Society of the Plastics Industry, Inc. (SPI) submits these comments in response to the Occupational Safety and Health Administration’s (OSHA) proposed Ergonomics Program Standard. 64 Fed. Reg. 65768 (Nov. 23, 1999); 64 Fed. Reg. 73448 (Dec. 30, 1999). SPI and its members recognize the importance of maintaining a safe workplace for employees and appreciate the opportunity to provide input on this proposal.

Founded in 1937, SPI is the national trade association of the plastics industry. SPI’s 2,000 members include processors and manufacturers of plastics and plastics products, suppliers of raw materials, processors and converters of plastics resins, and manufacturers of accessory equipment for the plastics industry. As an industry employing 1.3 million persons at over 20,000 locations throughout the nation, SPI and its members have a significant interest in the subject matter of the proposed rule.

The proposed ergonomics standard would apply to a job category upon the occurrence of a single report of a covered musculoskeletal disorder (MSD). SPI and its members believe that applying a "single-MSD" trigger approach to all employers, regardless of the nature of the industry, the size of the facility, or the number of employees is arbitrary, not based on the principles of statistics or tenets of sound science, and not reasonably related to the goal of providing employees a safe workplace. A single MSD incident has very different implications if it occurs at small company with 12 office workers, as opposed to a large company employing hundreds or thousands of persons in the same job category. A more reasonable approach would be to have a trigger that is statistically rational and weighted in proportion to the size of the job category. In addition, the scope of jobs that become subject to the standard should also be carefully delineated. It is unreasonable and unnecessary to subject the entire facility to the ergonomics standard upon the occurrence of an MSD hazard in a single job category within that facility. Only the job category that has been shown to pose an MSD hazard should be subject to the standard.

It is unclear in the proposed standard who should make the MSD diagnosis. The language on these points in the current proposal is far too broad and leaves these questions open to a range of interpretations. As to who should make the diagnosis, the proposed standard leaves this up to any "health care provider (HCP)," without specifying the qualifications an HCP must possess. An HCP could be a family doctor, nurse, physical therapist, or chiropractor. We believe that the standard should dictate that a physician rather than any health care provider should be required to make this difficult diagnosis. At a minimum, the draft standard should follow the definitions in workers compensation laws, many of which use the term "physician" rather than HCP. Further, we think that the standard should require a physician who is practicing in the appropriate field make this diagnosis.

Assuring that an MSD is accurately diagnosed is also critically important. Aside from the question of whether an MSD, as defined in the standard, is capable of being objectively diagnosed, it is unclear who has the final say in making such diagnoses. May the employee select their own HCP to make the diagnosis, and if so, what opportunity does the employer have to review and/or contest such diagnoses? In most workers compensation programs, the burden of proof is on the employee to show that their injury was incurred in the course and scope of their work. Similarly, under the proposed standard, employers should have some say in the choice of the health care provider, there should be a means provided for adjudicating disputes over MSD diagnoses, and the employee should have the burden of proof to show that their injury was in fact work-related, covered MSD.

OSHA states that the costs of the proposed standard to industry are minimal and will be offset by the savings to accrue from avoided ergonomic injuries. Regarding the costs to industry, OSHA states that "fixing a workstation" will cost $150. SPI and its members believe that OSHA grossly underestimates the cost of compliance, particularly with respect to small businesses.

A survey of SPI members on the cost to "fix a workstation" indicates that the expected fiscal impact would be more than three-times that estimated by the agency. While the actual fiscal impact may not seem exorbitant, the practical effect upon a small business would be noticed. For a small company with fewer than 100 employees, as in the case with most plastics processors, the cost of several thousand dollars to "fix" a problem that may or may not need fixing may be a misplaced expenditure.

In prioritizing safety resources (including money and people), rates of injuries are most commonly used as the trigger for allocation of resources such rates are those used by OSHA in their Site Specific Targeting Inspection Programs. These programs target worksites with high injury and illness rates, using established methodology developed by the Bureau of Labor Statistics.

We are concerned that the report of one MSD, and the subsequent chain of events required to established a corrective program, could be detrimental to a company's overall safety management efforts as limited resources are diverted from other safety efforts, which may be more of a hazard to employees, such as Lockout/Tagout, Machine Guarding.

It is critical that small businesses address safety problems in as cost-effective manner as possible, lest they are unable to address them at all. This circumstance, combined with the previously discussed impact of the "single-MSD" trigger approach, could result in the unintended consequence of discouraging some small companies from being diligent in addressing all workplace safety issues.

We urge OSHA to rethink the level of requirements contemplated to be imposed upon small companies by this proposed rule so that it does not have the effect of discouraging compliance and thus ultimately harm efforts to improve workplace safety.

Although OSHA has proposed certain exemptions for small businesses, such as reduced record keeping requirements, these limited provisions will do little to ease the burden on most small businesses. We request that OSHA expand the exemptions for small businesses, and include a small business compliance package in any ergonomics standard that the agency eventually makes applicable to small businesses.

The Work Restriction Protection (WRP) provisions of the proposed standard are not reasonable and conflict unnecessarily with existing state workers compensation laws. As proposed, the WRP provisions would allow employees with covered musculoskeletal disorders (MSD) who are removed from the workplace to retain 90% of their earnings and full rights and benefits for six months. However, under existing workers’ compensation programs in most states, injured employees who are off work generally receive 66% of their base salary. Therefore, the WRP provisions create a "preferred" class of injuries that would be more highly compensated than other "traditional" forms of work-related injury. The illogical result is that an employee who is badly maimed and loses an arm in an industrial accident would receive only 60% of her salary, while an employee who is off work for tendinitis would get 90% of his or her base pay.

We are also concerned that the WRP provisions would also make compensation programs grossly susceptible to fraudulent claims, by creating an enormous incentives for employees to characterize injuries as MSD to take advantage of the higher level of compensation provided for ergonomics injuries. Increased absenteeism will result in enormous increases in operating costs for our members, problems maintaining necessary staffing levels, and reduced workplace morale and productivity overall. Ergonomics programs should focus on addressing the causes of injury and encouraging employees to get treatment and return to the workforce as soon as possible - not provide them with paid vacations.

We also question as a matter of law whether OSHA has the statutory authority to promulgate the WRP provisions. Specifically, section 4(b)(4) of the OSH Act that prohibits interference with workers compensation law or other statutory obligations of employers and employees in connection with work-related injuries and illnesses. As discussed above, the WRP provisions would be greatly disruptive of existing state statutory workers compensation programs. These provisions have no precedent under the OSHA Act, and go far beyond the medical removal provisions previously adopted by the Agency. The WRP provisions are outside the scope of authority provided to OSHA under the OSH Act. OSHA should remove these provisions from the proposed standard and defer to existing state law regarding to the level of compensation provided to employees for work-related injuries.

OSHA failed to place the underlying technical and economic data on which it relied in the public docket in a timely manner so that interested parties could examine the agency’s analyses and methodology. SPI submitted a request on November 24^th for a CD-ROM version of a portion of the supporting documents, as OSHA itself offers on its website, but to date OSHA has failed to provide it.

A fundamental requirement of due process is to provide interested parties the opportunity to participate in a meaningful way in the administrative rulemaking process. According to well-established precedent, "it is especially important for the agency to identify and make available technical studies and data that it has employed in reaching decisions to impose particular rules. An agency commits serious procedural error when it fails to reveal portions of the technical basis for a proposed rule in time to allow meaningful commentary." It is not possible to understand and comment fully on this proposal without being given the opportunity to review the underlying economic and technical data.

We also object to the severely limited time constraints that OSHA imposed on the comment period. We believe that OSHA has failed to provide interested parties with the adequate time for meaningful participation in the rulemaking. In spite of the request of SPI and numerous other parties, OSHA arbitrarily refused to grant an extension on the deadline for comments until January 28^th, two days before comments were due to the Agency. Particularly in light of the massive size of the proposal itself (310 pages of Federal Register text) and the volume of information in the docket (now totaling over 50,000 pages), it is unreasonable to expect interested parties to review the record, conduct independent analyses of the complex scientific, technical, economic and legal issues surrounding the proposal, and prepare comments for the agency within a 60-day period. Therefore, SPI and its members have been denied the opportunity to comment in violation of constitutional due process and the rules of administrative procedure.

According to OSHA’s Regulatory Agenda, in April of 2000, the agency plans to release a notice of proposed rulemaking regarding the Safety and Health Program, a program that is similar to but much broader in scope than the current proposal on ergonomics. SPI and its members believe that it is unnecessarily duplicative, costly and burdensome on industry to impose these separate and potentially conflicting requirements on industry in two separate rulemakings. As the scope of the Safety and Health Program is larger than the ergonomics standard, we feel that the ergonomics standard should be integrated into this Program, and the current rulemaking deferred until such a time as the two programs can be combined and reissued together. One of SPI’s members has commented that even assuming ergonomics injuries need to be addressed, what we must avoid is duplicative regulations that only create more paperwork and more expense, without any real benefit to workers. Such an approach would be consistent with the spirit of President Clinton's Executive Order 12866. Consolidating the various occupational safety and health regulations to which industry is subject would go a long way toward this goal.

On behalf of SPI and its members, we appreciate the opportunity to provide you with our views on this matter, and thank the Agency in advance for its consideration of these comments. SPI and its members are committed to the challenge of maintaining a safe and productive workplace for the 1.3 million persons employed by our industry, and remains willing to assist OSHA in developing and implementing standards that serve this laudable goal.

Should you have any questions regarding these comments, or if we can be of assistance in providing you with further information, please do not hesitate to contact us.

Sincerely,

Lewis R. Freeman, Jr.

Vice President
Government Affairs

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