[Congressional Record Volume 147, Number 28 (Tuesday, March 6, 2001)]
[Senate]
[Pages S1831-S1846]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
DISAPPROVAL OF DEPARTMENT OF LABOR ERGONOMICS RULE
The ACTING PRESIDENT pro tempore. The clerk will report the joint
resolution.
The legislative clerk read as follows:
A joint resolution (S.J. Res. 6) providing for
congressional disapproval of the rules submitted by the
Department of Labor under chapter 8 of title 5, United States
Code, relating to ergonomics.
The ACTING PRESIDENT pro tempore. The Senator from Oklahoma.
Mr. NICKLES. Mr. President, I yield to the Senator from Vermont such
time as he may desire.
The ACTING PRESIDENT pro tempore. The Senator from Vermont is
recognized.
Mr. JEFFORDS. Mr. President, I rise today to address S.J. Res. 6,
which provides for congressional disapproval of the Occupational Safety
and Health
[[Page S1832]]
Administration's recently promulgated ergonomics standard. This action
is being taken pursuant to the Congressional Review Act provisions
incorporated into the APA in 1996. If successful, it will be the first
time that the CRA has been used to invalidate an agency regulation. It
will send a strong message to Federal agencies that Congress is serious
that the intent of the CRA--that agencies issue more flexible and less
burdensome rules, and be more responsive, and open, to input from the
regulated public--is followed.
I will leave it to my colleagues to discuss the numerous problems
with the Clinton Administration's regulation, such as its flawed
rulemaking process, its extraordinary potential costs, its encroachment
on state administered workers compensation programs, and its
complexities and vagueness to the point of unworkability. I have to
note, however, that the ergonomics rule certainly qualifies as a
``midnight'' regulation, which is exactly the sort of rulemaking that,
in great part, led to enactment of the CRA. And I note further that the
CRA is not radical legislation. In fact, it passed with broad
bipartisan support, was signed by a Democratic President, and earlier
versions of the legislation twice passed the House and four times the
Senate.
Passage of the CRA was an exercise by Congress of its oversight and
legislative responsibility. It was intended to compel bureaucrats to
consider the economic effect of their regulations and to reclaim some
of Congress' policymaking authority which had been ceded to the
executive branch because of the increasing complexities of statutory
programs, and the resultant reliance on agency rulemaking. But my
purpose today is not to focus on the merits of the Congressional Review
Act.
OSHA has admitted that repetitive stress injuries have declined 22
percent over the last five years. This statistic proves two things:
One, that there is a musculoskeletal disorder problem in the workplace.
And two, that employers are cognizant of the problem, and addressing
it. Further, the dramatic reduction illustrates that there are ways to
reduce, and perhaps eradicate, MSDs in the workplace, in part by use of
the science of ergonomics. OSHA, unfortunately, has continued to ignore
these lessons and refuses to revise its approach that the stick is more
effective than the carrot. This is proven by the very standard that is
before us today.
Again, however, the most important fact that can be taken from the
employers' successes in combating repetitive stress injuries over the
past few years is that apparently there are methods available to attack
this severe problem. We must continue to encourage the development of
these innovative approaches. At the same time, we must not lose sight
of the fact that the administration and the Occupational Safety and
Health Administration have a role, and a responsibility, in leading the
attack on these crippling workplace injuries.
OSHA must not give up its place at the vanguard of the assault on
workplace MSDs because of the shortcomings of the Clinton
Administration's ergonomics standard. I urge Labor Secretary Chao, in
the strongest possible way, to investigate and consider all options,
including initiation of additional rulemaking, if warranted, as part of
an all out effort to seek solutions for this type of debilitating
injury. I have received a letter from Secretary Chao. I ask unanimous
consent that it be printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
Dear Chairman Jeffords: It is my understanding that the
Senate will soon consider a Joint Resolution of Disapproval
pertaining to the Occupational Safety and Health
Administration's (OSHA) ergonomics standard. As you are
aware, the Congressional Review Act of 1996 gives Congress
the authority to vitiate this standard and permanently
prevent OSHA from promulgating a rule in substantially the
same form.
Let me assure you that, in the event a Joint Resolution of
Disapproval becomes law, I intend to pursue a comprehensive
approach to ergonomics, which may include new rulemaking,
that addresses the concerns levied against the current
standards.
This approach will provide employers with achievable
measures that protect their employees before injuries occur.
Repetitive stress injuries in the workplace are an important
problem. I recognize this critical challenge and want you to
understand that the safety and health of our nation's
workforce will always be a priority during my tenure as
Secretary.
I look forward to working with each of you throughout the
entire 107th Congress.
Sincerely,
Elaine L. Chao,
Secretary of Labor.
Mr. JEFFORDS. I am heartened by the letter from the Secretary of
Labor. It indicates that the Administration recognizes there is a
problem and is committed to finding the answer. To this end, I am
dismayed by what appears to be a systematic campaign of misinformation,
and I would like to dispel the myth being perpetuated by those who
oppose enactment, that adoption of this Resolution of Disapproval will
sound the death knell for any future ergonomics regulation. That is not
accurate.
Contrary to the misinformation being circulated, passage of the
resolution of disapproval will not prevent OSHA from undertaking
rulemaking regarding repetitive stress injuries. As I have already
stated, I believe that rulemaking is an option that should be given
serious consideration by the Administration. Secretary Chao agrees. In
fact, by jettisoning this burdensome and unworkable standard, we will
be eliminating a roadblock to consideration of more responsible
approaches directed at resolving the workplace MSD puzzle. One approach
could well include promulgation of a more reasonable and workable ergo
standard.
The Congressional Review Act provides, in relevant part, that a rule
vitiated by enactment of a Joint Resolution of Disapproval ``. . . may
not be reissued in substantially the same form, and a new rule that is
substantially the same as such a rule may not be issued, unless the
reissued or new rule is specifically authorized by a law enacted after
the date of the joint resolution disapproving the original rule.''
While this language appears clear on its face, it is being
misinterpreted to mean that OSHA cannot regulate in the ``area''
covered by the disapproved rule.
There is no basis nor justification for this interpretation of the
CRA provision. Where I have seen it mentioned--for example, in a March,
1999 CRS report--there is no citation of authority to support that
interpretation. Indeed, it appears to have been created out of whole
cloth or thin air. The better--in fact, correct--interpretation,
provided by the actual language of the Statute is that a disapproved
rule cannot be issued ``in substantially the same form.''
The intent, and thrust, of this language is made clear in a joint
statement, by Senators Nickles, Reid of Nevada, and Stevens, submitted
for the Record on April 18, 1996. The purpose of the Joint Statement
was to provide a legislative history for guidance in interpreting the
terms of the Congressional Review Act. The Joint Statement indicates
that the ``substantially the same form'' language that I quoted above,
was ``necessary to prevent circumvention of a resolution [of]
disapproval.'' Thus, the concern clearly was that an agency should not
be able to reissue a disapproved rule merely by making minor changes,
thereby claiming that the reissued regulation was a different entity.
This interpretation is confirmed by further discussion in the joint
statement about the differing impact a disapproval would have depending
upon whether the law that authorized the disapproved rule provided
broad or narrow discretion to the issuing agency regarding the
substance of such rule. Where such underlying law provides broad
discretion, the agency would be able to exercise that discretion to
issue a substantially different rule, but where the discretion is
narrowly circumscribed, the disapproval might work to prevent issuance
of another rule.
OSHA, of course, has enormously broad regulatory authority. Section 6
of the OSH Act is a grant of broad authority to issue workplace safety
and health standards. To prove this point, one need look no farther
than the scope of the ergonomics regulation before us. OSHA, in fact,
considers its authority so broad that it ignored, in issuing its ergo
standard, the clear statutory mandate in section 4 of the OSH Act not
to regulate in the area of workmen's compensation law. And the
definition of ``occupational safety and
[[Page S1833]]
health standard,'' in section 3(8) of the Act, is further indicative of
the discretion granted to the agency. I am convinced that the CRA will
not act as an impediment to OSHA should the agency decide to engage in
ergonomics rulemaking.
Some might question why now utilize the Congressional Review Act
disapproval procedures instead of reviewing or amending the ergo
standard through other means, such as additional notice and comment
rulemaking, or by permitting the legal challenges to be brought to
conclusion. The answer is simple. The CRA is being used in precisely
the manner Congress intended.
As noted in the April 18, 1996 Joint Report, certain timing
provisions in the CRA were put in place ``. . . to try to provide
Congress with an opportunity to act on resolutions of disapproval
before regulated parties must invest the significant resources
necessary to comply with a major rule.'' And, I might add, scarce
agency resources are also a concern. The standard before us certainly
is a major rule, and the estimated compliance costs are huge.
For all of the reasons stated above, I believe that OSHA's ergonomics
standard presents the ideal case in which to exercise the disapproval
provisions of the Congressional Review Act. An over broad, vague, and
unworkable standard may act as a disincentive to development of
reasonable and rational approaches to a serious problem. In addition,
huge compliance costs do not encourage compliance and, in fact, may be
beyond the resources of many small businesses. This may be the case
where no standard is preferable to the standard promulgated by OSHA.
But I am convinced that this is not the bottom line. OSHA can issue
another ergonomics standard. I urge the secretary of Labor to consider
this option.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Oklahoma is
recognized.
Mr. NICKLES. Mr. President, I tell my friend from Massachusetts I
will be brief because he has a lengthy statement. Let me make a few
brief comments. We have 10 hours of debate on the issue under the
Congressional Review Act. I expect we will be going back and forth.
That is 5 hours on each side. We can have ample debate and discussion.
I think that is healthy and very good.
One of the reasons Senator Reid and I worked so hard and we passed
the Congressional Review Act was that Congress would review regulations
that had a negative impact or an impact on the economy in excess of
$100 million a year. That makes sense. The idea of, wait a minute,
should you have regulatory agencies passing measures that have a
profound impact on the economy without holding Congress accountable?
Congress should have some say. And sometimes do the regulatory agencies
go too far? Sometimes it is their own fault. Sometimes we tell them, to
pass some regulation and make the world safer, sounder, cleaner,
whatever, without considering the cost or impact. We have done that in
Congress.
What we did when we passed the Congressional Review Act was say we
should review those regulations if they have an economic impact in
excess of $100 million and find out how does this make sense. Is it a
good deal? Is it a good deal for the economy? Is it a good deal for
taxpayers to invest this kind of money? Congress should have a say.
The bureaucrats who write the regulations are not elected; we are.
That was the purpose of the Congressional Review Act. This is the first
time we will utilize that act. I believe in this case the regulation
promulgated by the Clinton administration in the Federal Register,
dated November 14, 2000, which is over 6,000 pages long, went too far.
All legislators who believe in division of power when reviewing this
regulation will say the Clinton administration, in its last 4 days,
went way too far and exceeded their constitutional authority. The
President is President; he is not chief legislator.
In this legislation, in this regulation, they went into legislating.
They went into devising a Federal system of workers compensation.
If Members want to pass a Federal workers compensation law, introduce
a bill. It would go, I assume, to the Education and Labor Committee. It
would be marked up. Have that process go forward if we are going to
pass Federal workers compensation.
I have asked a couple of former Governors on the Democrat side if
they knew there was Federal workers compensation in the ergonomic
standard. Do they know this has a compensation system that is much
greater than most State workers compensation laws? Most Senators
answered no.
This has Federal workers compensation that supersedes State worker
compensation laws. If you have any respect for the Constitution, if you
have any respect for Members as legislators, you should say no
bureaucrat, no official in the Department of Labor--who, incidentally,
is probably not there anymore--can make that kind of imposition. That
requires Federal legislative action. If someone wants to promulgate
that kind of rule, let them introduce this as a statute. Let's debate
it.
I don't think anyone will debate it. This is not defensible. How in
the world can you come up with a Federal workers comp law that
supersedes State law that is more generous? It might be proposed, but
my guess is it would never pass, nor should it.
Yet in this case we have unelected bureaucrats who say: Let's make
this the law of the land. Is he super Senator? Is he super legislator?
Where did he get this kind of authority?
I appeal to my colleagues, Democrat or Republican, review the
contents of this legislation. See how extensive and expensive it is.
This is probably the most expensive, intrusive regulation ever
promulgated, certainly by the Department of Labor--maybe by any
department. It deals with the issue of repetitive motion injuries. It
is wide open. It could be somebody typing at a desk, somebody standing
at a checkout line, somebody stacking groceries, somebody moving things
on trucks. It could apply to almost any job in America. It can be
enormously expensive.
Federal bureaucrats are saying you can do this; you can't do that.
You can only move 25 pounds 25 times a day. A grocery store may have to
hire 10 times as many people to stock the grocery store. A moving
company has to move a lot of things. Employees would say: I have to
stop; it is 8:25, but I have already moved 25 things. Time out. Hire
more people. Oops, can't do that; we need more people; we need to hire
more people. Oops, we have to go out of business because we cannot
comply with this rule.
There is no way in the world a lot of companies can comply with this
rule. We would be putting them out of work or out of compliance,
certainly liable for a lot of money and expense for a regulation that
goes way too far.
My primary argument to my colleagues is nobody in OSHA was elected to
legislate. We are elected to legislate. We, Members of Congress, are
the legislative branch. Read the Constitution. Article I says Congress
shall enact all laws. It does not say: unelected bureaucrats, you write
a law, try and get it enacted, try and get it passed by legislation.
On January 16, in the last couple of days of the Clinton
administration, this was a major gift to organized labor, saying, go
ahead and legislate the last couple days.
No, we are the legislative body. If we want to legislate in this
area, introduce a bill and we will consider it. Let's not have, as in
the last couple of days of the Clinton administration, a regulation
with costs ranging in excess of $100 billion a year. Let's not let that
happen. Let's not supersede State worker compensation laws.
It will be interesting to see how former State Governors and State
officials vote on this issue. Do they really want the Federal
Government to supersede State workers compensation laws? I say the
answer is no.
I urge all my colleagues, especially colleagues on the Democrat
side--my colleagues on the Republican side are perhaps more familiar
with this issue--I urge my colleagues on the Democrat side to review
this. Do you really want to have a Federal workers compensation law
passed by regulation superseding State worker compensation laws? I
think not. I certainly hope not. If that is the case, we have delegated
so much power to the regulatory agencies we should be ashamed of
ourselves.
[[Page S1834]]
I urge my colleagues to review this statute. That is what the
Congressional Review Act is all about. Let's review it. Let's talk
about it today. Let's find out how intrusive it is, today. Let's find
out if it really is the Federal Government taking the place of Congress
in the legislative field. I believe they went way too far. We did
introduce a bill 4 or 5 years ago, Senator Reid and myself, and it
passed both Houses of Congress overwhelmingly, signed by President
Clinton. It is a good law. It was written for such items as this. This
is an excellent time to review this regulation and stop it.
Does that mean we are for ergonomic injuries? No. Does that mean we
shouldn't be taking action in Congress and/or in the Department of
Labor to try and minimize ergonomic injuries? No. Let's figure out what
can we do that is affordable, that is doable, that doesn't cost jobs,
that does improve worker safety, that does reduce or minimize worker
injury. Let's work on that together. Let's not accept a regulation
crammed through in the last couple of days of the Clinton
administration that has economic costs in excess, maybe, of $100
billion.
One might ask, where do you get that figure? OSHA says it might cost
$4.5 billion. The Clinton administration's Small Business
Administration said it could cost up to 15 times that amount. That is
up to $60 billion a year. Business groups having to comply with this
say it may well be in excess of $100 billion. There is no way to know
how much this would cost. It would cost plenty. It would cost jobs.
Again, this is something that needs to be reviewed by Congress and
needs to be stopped by Congress. I urge my colleagues to support this
resolution.
For the information of my colleagues, the 10-hour clock is running.
My guess is we can have a vote this evening, or we will have a vote
tomorrow morning. People should be on alert we may well work into the
evening today. Be on guard to expect rollcall votes to occur later this
evening or tomorrow morning.
I yield the floor.
Mr. WELLSTONE. Are we going to alternate back and forth?
Mr. NICKLES. As manager, I will designate Senator Hutchinson and
Senator Enzi to manage on our time. We are happy to alternate back and
forth. We are happy to accommodate our colleagues in any way.
Mr. WELLSTONE. I ask unanimous consent I be allowed to follow Senator
Kennedy on our side.
Mr. NICKLES. I reserve that. Let's not do that just yet.
The ACTING PRESIDENT pro tempore. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, this is a matter of enormous importance
and consequence to America's workers. It will be the first time in the
history of OSHA that Congress has taken action that will effectively
terminate the ability of OSHA to protect American workers. It is in an
area in which there is a growing problem and a growing concern because
of the increased numbers of ergonomic injuries. In a period of some 10
hours we are going to undermine the efforts of the Department of Labor
and OSHA over a period of 10 years. Some have made the comments, rather
cavalierly, that this is a offhand rule that was developed in the final
hours of the Clinton administration. Of course that is a complete
distortion and a complete misrepresentation, as are a number of the
other recent comments I have heard. I will respond to them in some
detail at this time.
It is important to note there has been due process. There are those
who have differed with the rules and regulations. You would listen to
this part of the debate and think that those who are against the rules
and regulations never had an opportunity to make their case during the
process. Of course that is basically hogwash because they did have that
opportunity.
We can also listen to those who say we have to eliminate these
regulations. Of course there is a process and procedure by which the
President can modify these rules and regulations, if he doesn't like
them. That is not the path those who are seeking to overturn these
regulations are taking. The President of the United States can just
file, in the Federal Register, a resolution, effectively, of
disapproval, and wait 60 days and those regulations are effectively
suspended.
The Department of Labor could then go about the process through
public hearings and alter the regulations. So for those who want to
bring some modification and change, who think there ought to be some
opportunity to do something different, that power and authority is
there today. But that is being rejected by those who want to overturn
any opportunity to provide any protection for the millions of Americans
who have been adversely affected, impacted, and injured by ergonomics
injuries over the past several years. That is what we are looking at.
With all the talk we have heard already this morning, and we will
hear later on, we could still have the opportunity to modify and change
and adjust and go back and trim the regulations. It is a simple
process. But, no, that technique is being rejected. They are coming in
here with a blunderbuss and saying, ``We have the votes, we are playing
hardball''; effectively, ``we are going to give short shrift to the
American workers''--primarily women because they are the ones most
adversely impacted. We all have a responsibility to them.
I mention to my good friend, when he talks about 400 pages of
regulations--there are 8 pages of regulations; not 400, 8 pages of
regulations. It is right in here. If the Senator would want to look
through them, I will be glad to spend some time. Eight pages of
regulations--it might take someone 20 minutes to read through them.
Eight pages of regulations--the rest is support.
It is not the Department of Labor talking about $4 billion of
expenditures. It is the Department of Labor talking about $4 billion of
savings. It is a big difference. We have to get our facts straight.
The same applies to the workers compensation provision. This does not
undermine States' workers compensation. It has virtually nothing to do
with workers compensation, other than what has been done traditionally
with other kinds of OSHA rules and regulations such as for cadmium and
lead.
There has not been an uproar from the States. I don't hear any. If
the Senator will have some letters from Governors who talk about how
their workers compensation has been destroyed, uprooted in ways, we
would welcome them. We have not seen them. We have not heard from them.
I ask our Members to pay close attention. What is really at risk here
is enormously important.
First of all, we don't have to be here dealing with this issue. We
could be debating the bankruptcy issue. If we want to be doing that--we
will have a chance and opportunity to do that --but, nonetheless, one
of the first orders of business we are coming up to is not to look out
after minimum wage workers or an increase in the minimum wage. No. We
don't have that out here. We are not debating a Patients' Bill of
Rights. It has been before the Congress for 5 years. We are not doing
that on the floor of the Senate. No, we are not going to consider that.
We are not debating prescription drugs in the Senate.
What are we doing? For the first time in the history of the Senate,
we are talking about repealing protections for workers who are out
there in the workforce of America with a blunderbuss kind of technique
that says, ``We have the votes, we are going to repeal it, and as a
result of that repeal and the statutory provisions, you will not be
able to have any kind of ergonomic protection for American workers.''
We have the alternative of trying to change this in a responsible way
but, oh, no, we are going to show a contemptible attitude, an arrogant,
contemptible attitude towards the American workers by this blunderbuss
technique that is being proposed by our colleagues on the other side of
the aisle.
I listened when Senator Reid's name was mentioned. He supported the
concept of CRA, but he is strongly opposed to the actions being
recommended by the Republican leadership.
We all have a responsibility to protect the safety and health of
workers on the job. Today the most significant safety and health
problems that workers face are debilitating and career-ending ergonomic
injuries. Millions of workers and their families suffer needlessly.
These injuries can be prevented by simple, inexpensive changes in the
workplace. This rule is about prevention, preventing the injury. That
is
[[Page S1835]]
what this rule is about. We know the injuries are out there. We know
what can be done in order to diminish the number of injuries and that
is what this rule targets.
The Department of Labor's solution to this problem has been sound,
sensible, and necessary. It is flexible and cost-effective for
businesses, and it is overwhelmingly based upon scientific evidence. It
has the support of virtually every health science professional group
and their representatives. Every one of them has supported this
proposal, every one of them--but not the Chamber of Commerce and the
National Association of Manufacturers.
But if you are talking about protecting workers and you are talking
about the medical implications and the health implications, every
organization that is concerned with that supports these proposals.
If people have differences about the specifics of this solution, we
can work them out in a bipartisan way. The President can stop this
regulation and issue a new one if he doesn't like it. But in 10 hours
of debate today, the Republicans intend to destroy this crucial
protection that was begun over 10 years ago by the Secretary of Labor,
Elizabeth Dole.
In the 30 years that the job safety laws have been in effect,
Congress has never taken away a protection for workers. Listen to me.
In the 30 years the job safety law has been in effect, Congress has
never taken away protection for workers. This could be the first.
``Don't alter it, don't change it, don't modify it--eliminate it. We
have the votes. That is what we are going to do.'' This is a
contemptible attitude towards the working families in this country.
One of the most essential roles of government is to protect its
citizens. We protect public safety by providing a police force. We
protect public health by regulating prescription drugs and food safety
by rules and regulations by the FDA. Maybe there are those who want to
eliminate all the rules and regulations.
The FDA isn't elected either, but they have rules and regulations to
ensure safety and efficacy. We gave them that power. We gave them that
responsibility. Are we suggesting now, since they are not elected to
the Senate of the United States, how outrageous that they look out
after protecting America from the scourge of different diseases that
have ravaged our civilizations in the past--hoof and mouth disease, mad
cow disease? Let's get those professionals out. They are not elected.
Let's just free ourselves from regulations. It may cost the meat
manufacturers and producers a few more bucks because they have to be
inspected. Let's free ourselves from those matters. These are the same
issues--health and safety. The same issues.
We are protecting workers on the job today. If they are going to
eliminate those protections today, what regulations are they going to
eliminate tomorrow? We came very close to it 3, 4 years ago,
eliminating protective regulations in food safety--the elimination of
the Delaney clause--and many others. We came within a vote or two of
eliminating those. The same forces are out there.
Today it is the safety in the workforce. Tomorrow it is going to be
food, health, and well-being, and the air that we breathe and the water
that we drink. Make no mistake about it. The greed is unbelievable.
That is what it is all about. What do you think this is about? It is
about bucks. It is about money. It is money on the one side; what the
Chamber of Commerce and the National Association of Manufacturers want
versus trying to invest and protect American workers. It is greed. It
is money. It says that we are not really interested in safety. If they
were interested in it, they would want to be responsible. Why do they
drop this in the middle of the night? We found out in the magazines and
newspapers on Sunday that this technique was going to be used now. Why
not mention it and try to work this out? Is this the beginning of the
process or the end of the process?
Why not bring up the Patients' Bill of Rights? Why not, even though
the President indicated a month ago that he wanted to work this out? We
said fine; we will try to work it out. A month has passed. Are we
bringing that up? No. Not the Republican leadership. No. Oh, no. They
are just dropping this right out here. ``We have the votes. We have the
votes and are going to pursue it.'' So they do.
We protect the public safety by a police force, the public health by
regulating prescription drugs and food safety. We require seatbelts in
automobiles. When Americans are at risk, it is the duty of government
to do whatever we can to protect them. That is our job. That is our
responsibility as public servants. That is why we have laws and
regulations to protect our citizens in the workplace.
I was in the Senate during the years when we heard the same voices we
are hearing from that side of the aisle opposing the OSHA program. I
will tell you this. OSHA has reduced the number of deaths in the
workplace by half over the period of the last 27 or 28 years. It has
saved an enormous number of lives, and it has protected health and
well-being. But we heard at that time: Why are we going to do that?
That is going to interfere with American business and their ability to
produce American goods. Don't you think American industry is concerned
about those workers? Of course they said they passed it.
Sure, there have been some actions OSHA has taken with which we don't
all agree. But, nonetheless, if you look, particularly in the last
several years, the record in terms of the number of lives that have
been saved as compared to other times has been credible and defensible.
Over our history, and in the early years of the last century, we have
fought long battles for the safety of factory workers. We struggled
long and hard to improve the working conditions of our mine workers--
one of the most dangerous jobs in America. We took steps to guard
against child labor and other abusive practices.
Over the past 10 years, America has taken the next important step to
protect workers against the kinds of injuries that occur in the modern
workplace--so-called ergonomic injuries.
Yesterday, workers lost their limbs in factories. Today's workers
suffer crippling pain in their wrists and in their hands because of
computer keyboards. That is an ergonomic injury.
Yesterday, workers were burned in steel mills. Today's workers
develop chronic back injuries from standing too long behind the lunch
counter, carrying heavy trays of food, and sitting for long hours in
their offices and chairs that harm their backs. Those are ergonomic
injuries.
The resolution before us today is a complete about-face in the long
march of protecting our workers. In a single vote, we will tell
millions of Americans--mostly women--that their work doesn't matter.
This resolution is antiworker, antiwoman, antifamily, and it deserves
to be soundly defeated.
We all know what is going on. We could have sat down and worked this
out in a bipartisan way. If President Bush disagrees with this current
regulation, he could issue a new one. But, instead, our Republican
friends took the course that hurt workers the most--banishing this
important safety initiative to the dungeon.
If you do not like the last administration's approach to worker
safety, Mr. President, then change it. Don't destroy it--because the
health and safety of millions of American workers is at stake.
Otherwise, this may well mean that all the talk about a new civility in
Washington is just a hoax. Instead of helping hard-working families,
this resolution is a big ``thank you'' to big business for all their
support. It is politics at its worst.
It leaves the average American worker defenseless against today's
workplace injuries. With Republicans in control of Congress and the
White House, it is trample-down economics for American workers. Let
American workers be on guard. Your rights and your dignity and your
hard work are no longer respected. Today your safety is on the chopping
block. Tomorrow it is going to be your medical leave or your ability to
spend more time with your families, for our Republican friends can act
today on this issue with such disregard for your labors, your hard-won
workers' rights, your safety.
The Department of Labor's ergonomics rule is sound, sensible, and
necessary. I strongly oppose this resolution of disapproval. If
Congress passes this resolution, it will have destroyed in 10 hours
what it took the
[[Page S1836]]
Occupational Safety and Health Administration 10 painstaking years to
create and will deprive workers of all of the protections from the No.
1 risk to health and safety in the workplace.
I have both good news and bad news today. The bad news is that
ergonomic injuries are painful and often debilitating. They are common
and they are caused by workplace practices.
The good news is that these injuries are readily preventable, and the
ergonomics rule offers an effective way to address workplace hazards.
The worst news is that Congress today will prevent OSHA from
implementing this or any other rule that will protect workers from
these significant risks to their health and to their safety.
My colleagues should make no mistake about the result of the
resolution of disapproval that is before us. It is an atom bomb for the
ergonomics rule.
Supporters of this resolution insist they can use it to fix the
ergonomics rule and send it back to the drawing board. They are wrong.
The language of the resolution is clear and nonamendable and will
eliminate the rule altogether.
Until Congress gives it permission, OSHA will be powerless to adopt
an ergonomics rule that, like this one, truly solves the problem. If
the resolution's supporters have their way, all of this will be done
today without any opportunity for committee input or for reasoned
consideration on the Senate floor.
Our debate is limited to a maximum of 10 hours. This resolution is
not subject to motions to amend, to postpone, to move to other
business, or to recommit to committee. All points of order are waived,
and appeals from decisions of the Chair are nondebatable.
This expedited process will not be used to disapprove a rule that an
agency clearly lacks authority to issue. It will not be used to
disapprove a rule that lacks any basis in scientific evidence. It will
not be used to disapprove a rule that was adopted without adequate
opportunity for public notice and comment. Instead, this fast-track
procedure will be used to eliminate a rule that goes to the heart of
the Federal Government's mission to protect workers' safety and
health. That is supported by thousands of scientific studies. And that
is the product of 10 years of study, 9 weeks of public hearings, and 11
best practice conferences all over the country, bringing employers and
workers together to try to describe what is and isn't working. That's
11 conferences all over the Nation, 9 weeks of public hearings, and
close to 4 months of opportunity for written comment from the public.
This is an unprecedented attack on our workers' fundamental right to
safe workplaces.
As long ago as 1990, Secretary of Labor Elizabeth Dole called
ergonomic injuries ``one of the nation's most debilitating across-the-
board worker safety and health illnesses.'' I wish we heard from the
other side at least some recognition, some understanding, some
awareness, some sensitivity to the workers who are being injured by
ergonomic injuries every single day in America. But we do not. It is
all technical language: ``We don't want to interfere with workers'
compensation. There are 400 pages in this book over here. The
Department of Labor says X, Y, and Z.''
We are talking about family members. We are talking about workers who
are providing for their families, who are playing by the rules, trying
to put in a good day's work in order to provide for their families.
They ought to be given the assurances about preventing these kinds of
injuries if we have the knowledge, the awareness, and understanding,
and we can do it in an affordable way.
We will come back in a few moments and get into the costs on these
issues. It is quite clear, if we are able to have an effective rule,
this will actually save money and increase productivity and lower the
cost of workers' compensation.
Now this is what Secretary Elizabeth Dole said in 1990:
We must do our utmost to protect workers from these
hazards.
She also said:
By reducing repetitive motion injuries, we will increase
both the safety and productivity of America's workforce.
As all the study, data, and personal experience since have amply
shown, she was right.
Each year, over 1.8 million workers report that they have suffered
from ergonomic injuries. Another 1.8 million incur ergonomic injuries
that they do not report. What this means is simple: Over the 10 years
of study OSHA devoted to this rule, America's working men and women
endured over 18 million unnecessary injuries.
The average cost of these injuries--severe injuries--is anywhere from
$25,000 to $27,000. I do not know what the value is in terms of denying
someone their opportunity to use their hands, use their arms. What is
the cost if they cannot use their fingers, cannot use their wrists, not
only in the workplace but in terms of being able to pick up a child or
be able to walk with a child or play with a child when they are growing
up--all of the personal kinds of important opportunities in life that
give individuals a sense of the joy of life?
What does it cost here? That is what we are debating. The Chamber of
Commerce says it is too much. But 10 years of studies, evaluations, and
best practices said that this can be done, and done in a way that will
save money for American business.
You have two entirely different viewpoints. Do we have a chance to
examine them? No. They say: ``We have the votes.'' We have how many
hours left now? Nine more hours left? Nine more hours left until we can
finish this rule off? That is the attitude of those who want to repeal
this rule.
The statistics also show how serious this problem is. More than
600,000 workers lose a day or more from work each year because of these
injuries. Indeed, the Academy of Sciences estimates this number is even
higher, that over 1 million workers lose time at work because of their
ergonomic injuries.
This is the Academy of Sciences. No, they are not elected to
anything. But they are the Academy of Sciences, universally respected.
And that is what they found, I say to Senators--1 million a year. And
in 10 hours we are throwing out rules that can provide protection for
these workers.
Ergonomic injuries account for over one-third of all serious job-
related injuries and over two-thirds of all job-related illnesses. The
injuries are costly. In a definitive study released only 6 weeks ago,
the National Academy of Sciences estimated ergonomic injuries cost the
Nation $50 billion annually in workers compensation costs--$50 billion
now annually today if we do nothing. That isn't the Senator from
Massachusetts saying that. That is the National Academy of Sciences
saying that: $50 billion if we do nothing, in terms of workers
compensation, absenteeism, and lost productivity.
In fact, ergonomic injuries account for $1 in every $3 that employers
spend for workers' compensation costs. That is a cost of $15 to $18
billion every year in workers' compensation costs.
These injuries are painful and often crippling. They range from
carpal tunnel syndrome, to severe back injuries, to disorders of the
muscles and nerves. Carpal tunnel syndrome keeps workers off the job
longer than any other workplace injury. This injury alone causes
workers to lose an average of more than 25 days, compared to 17 days
for fractures and 20 days for amputations.
These injuries affect all of us. Carpal tunnel syndrome afflicts
nurses. It hurts truck drivers and cooks. It affects secretaries,
cashiers, and hairdressers. It threatens any of us who use a computer
or lift heavy objects or bend to pick things up. We are all at risk.
And even if each of us individually has not yet suffered a repetitive
stress injury, we all know people who have. They are mothers, fathers,
brothers, sisters, sons, daughters, and neighbors--and they deserve our
help. But contrary to what the good Senator from Oklahoma says, there
are broad industries which are left out. This rule is a rather
reasonable rule and quite narrow. It does not affect agriculture. It
does not affect the maritime industry, railroads, or construction.
Those industries are left out. They are left out for other reasons. I
can come back to them later.
So this idea of what is going to happen to workers' compensation and
the number of pages of the rule, and what is the cost going to be, and
about all the industry affected, we have to get down to the real facts.
[[Page S1837]]
Women are disproportionately harmed by ergonomic hazards. Women make
up 47 percent of the overall workforce, but in 1998 they accounted for
64 percent of the repetitive motion injuries and 71 percent of the
carpal tunnel cases.
I will show you this chart very quickly. I see others on the floor,
Senator Feinstein and others, who will speak to this in greater detail.
Women are 47 percent of the total workforce. Of the total number of
injured workers, they are only 33 percent. But if you are looking at
ergonomic hazards, lost work time from repetitive motion injuries, in
1998, women accounted for 64 percent of those who had repetitive motion
injuries and 71 percent of those who lost time for carpal tunnel
injuries. This is a rule about protecting women in the workforce,
because of changes in terms of our new economy primarily, and for other
reasons as well.
These women are not faceless numbers. We are talking about workers
such as Beth Piknick from Massachusetts, who was an intensive care
nurse for 21 years before a preventable back injury required her to
undergo a spinal fusion operation and spend 2 years in rehabilitation.
Although she wants to work, she can no longer do so. In her own words:
The loss of my ability to take care of patients led to a
clinical depression . . . My ability to take care of
patients--the reason I became a nurse--is gone. My injury--
and all the losses it has entailed--were preventable.
We are talking about workers such as Elly Leary, an auto assembly
person at the now-closed General Motors assembly plant in Framingham,
MA. Like many, many of her coworkers, she suffered a series of
ergonomic injuries--including carpal tunnel syndrome and tendonitis.
Like others, she tried switching hands to do the job. She tried varying
the sequence of the routine. She even bid on other jobs. But nothing
helped. Today, years after her injury, when she wakes up in the
morning, her hands are in a claw-like shape. To get them to open, she
has to run hot water on them.
We are talking about workers such as Charley Richardson, a shipfitter
at General Dynamics in Quincy, MA, in the mid-1980s. He suffered a
career-ending back injury when he was told to install a 75-pound piece
of steel to reinforce a deck. Although he continued to try to work, he
found that on many days he could not endure the lifting and the use of
heavy tools. For years afterwards, his injury prevented him from
participating in basic activities. But the loss that hurt the most was
having to tell his children they could not sit on his lap for more than
a few minutes because it was too painful. To this day, he cannot sit
for long without pain.
We are talking about workers such as Wendy Scheinfeld of Brighton,
MA, a model employee in the insurance industry. Colleagues say she
often put in extra hours to ``get the job done.'' As a result, Wendy
has lost the use of her hands, and is now permanently unable to do her
job, drive a car, play the cello, or shop for groceries.
The ergonomics rule was too late to help Beth, Elly, Charley, and
Wendy. And there will be many, many more like them if Congress takes
away the protections of the rule now.
This is because there is now conclusive, indisputable evidence that
workplace practices cause ergonomic injuries. Dr. Jeremiah Barondess,
the chair of the panel of experts that conducted the comprehensive
study of the ergonomics issue for the National Academy of Sciences, has
pointedly stated that there is a ``clear causal relationship'' between
working conditions and ergonomic injuries.
And in case anyone has forgotten, this NAS study was the very study
that opponents of the ergonomics rule said would inform their views on
the issue. Time and time again, my colleagues across the aisle urged us
to wait for more evidence that ergonomic injuries were a problem, that
workplace practices were responsible for these injuries, that these
injuries could be prevented. These were unjustified delaying tactics.
But if anyone thought there was any doubt at all about these issues,
they now have their answer. To suggest that these issues are debatable
is, quite simply, preposterous.
Mr. President, I will come back later on. There are other points I
wish to make. I note a number of my colleagues on the floor.
I underscore a very simple and basic thought: This rule has been in
the making 10 years, weeks of hearings and examination and evaluation,
studied by the Academy of Sciences and by every scientific group,
supported by virtually all of the health community that has expertise
in these areas. There was a simple technique by which this rule could
have been altered or changed, a very simple technique. That is being
rejected. If you are for some modification, any modification at all,
you ought to reject this proposal. That way, it will still be possible
to bring about some changes in the ergonomic rules.
But instead, what we are being asked to do is to accept lock, stock,
and barrel that we are going to reject this rule that will effectively
close out any opportunity to protect these workers for the first time
in 30 years.
I cannot think of many health and safety rules and regulations which
the Chamber of Commerce or the National Association of Manufacturers
has supported to protect American workers. If there are some, I hope we
have the chance to hear it from the other side. They have been
basically opposed to these regulations. They think they have the votes
now not only to modify it but to end this rule, which addresses the No.
1 health and safety issue for American workers today. That is basically
wrong. It was recognized as being a major problem by the wife of our
former Republican majority leader, Elizabeth Dole, over 10 years ago.
There has been nothing that has happened since that time to indicate to
the contrary.
On the contrary, there is constant scientific evidence to demonstrate
that this is a problem, that this rule has been carefully considered
and, finally, that this rule, when it is implemented, will actually
save money because it will reduce workers' compensation, reduce
absenteeism, and increase productivity. That is why the Department of
Labor in its evaluation finds that instead of this problem costing $50
billion a year, we will actually save more than $4 billion a year.
I reserve my time.
The PRESIDING OFFICER (Mr. Hutchinson). The Senator from Wyoming.
Mr. ENZI. Mr. President, I thank the Chair for the opportunity to
comment, and I thank the Senator from Massachusetts for so well setting
up the comments I have.
There was a reason for the Congressional Review Act being passed, a
good reason for it. You could even assume there was a good reason on
the basis that it was passed in a very bipartisan way. First,
cosponsors of it were Mr. Nickles, the Senator from Oklahoma, and Mr.
Reid, the Senator from Nevada--one from each side. How good of a job
did they do of persuading you that this was a good law to put in place?
I am not sure what precipitated it. I assume that some agency jerked
the Congress around, and Congress believed it was time to jerk them
back to reality. Not one of you voted against the CRA.
There is a need to have an act such as the CRA. That need exists when
an agency fails to listen to a single comment on the work they are
doing, when they are so sure of their work that they will not listen to
hearings; that they will not listen to Congress; that they will not
listen to experts; that they continue to do exactly the same thing they
did before. Wait a minute. No, they did make some changes. They made it
far worse. They took the comments they got, and they opposed everything
and incorporated things in this that were worse than in the law that
was passed.
We can't have agencies taking that kind of action. We know this is a
divided Congress. My bet is that there will still be a very bipartisan
action to pass this resolution we are voting on today to eliminate the
rule as was proposed, as was printed, as is now in effect.
There has been a suggestion that we should trim it. I could go along
with that. But where would you start? I am holding 600 pages of stuff
that the average American businessman cannot understand. Yes, he can
hire technical experts who will help him with it at great expense. But
even the technical experts are divided.
[[Page S1838]]
This little document includes by reference eight more documents. This
isn't the whole load that a small businessman has to carry around this
country. Let me ask you if you have received those eight documents and
read those eight documents. I can tell you conclusively, you have not.
One of those documents isn't even available. The people, when you call
them and ask for the document, say: Don't bother us anymore.
This is ridiculous. One document referred to in this rule you can't
even get. Some of my colleagues say the rule is really a short rule. Is
it 400 pages? Is it six pages? Is it eight pages? Is it 20 pages? You
can argue for all of those numbers. You can argue for 800 pages. But if
you really count what the small businessmen in America are going to
have to read, you will find that it is 800 pages. To say that this
document is eight pages is statistically impossible.
If you agree this document is eight pages long, you think that the
income tax forms you fill out only require reading two pages of
material. That is exactly the same thing. When you fill out your income
tax form, there are two pertinent pages to fill out, but there is a
little manual that comes with them. If you don't pay attention to that
manual, you will mess up your taxes. You will be fined. Maybe you will
be thrown in jail. So you can't just look at the two pages, even if
they are the only ones you fill out.
So let's not argue about 8 pages, 20 pages, 400 pages, 600 pages, 800
pages. Ask the small businessman how much he wants to read, and then
take a look at how much he is going to have to read.
Now, you and I can look through this, or we can have our staffs look
through it, and decide what we think is pertinent. I tell you, the
small businessman out there doesn't have that luxury. He can't say,
``Somebody just show me the couple of paragraphs that affect my
business.'' He can't do that because this affects his business--this
and eight more manuals, only seven of which are available at a cost of
$220.90.
That is a lot of work for a small businessman. Trim it? Why didn't
OSHA trim it. California has a one-page ergonomics rule. Why not OSHA?
Why is this rule bad? This rule was written for the people who are
bad to the bone. You and I both know that in any profession, in any
business, and even with groups of employees, there are going to be
about 5 percent of the people who are ethically challenged. Five
percent look for ways not to do exactly what they ought to do. That is
both the businessmen and the employees. Out of that 5 percent, you will
find that there are about 3 percent--this is included in that 5
percent--the reason they are ethically challenged is that they don't
care. No matter what you put in their manual, they don't care; they are
going to do business as usual. Out of that 3 percent, there is about
one-tenth of a percent of people who are bad to the bone. That is on
both sides. That isn't just businessmen or employees. It might even be
a smaller number than that.
This rule is written punishing 99.9 percent of the people in this
country--businesses and employees--to take care of one-tenth of 1
percent of the people who are bad to the bone. That is not the way we
are supposed to do these rules. That isn't the right way to do it.
We have a little conflict in some of our laws. One of the conflicts
we have is that it is difficult to talk to the worker. You will hear
examples throughout the day of terrible things being done to workers. I
know of some of them. I have heard the speeches before on a lot of
them. I have even looked into some of them. I have talked to some of
these workers. Do you know we have a law that prohibits management from
talking to the employee about how his job could be more ergonomically
sound, unless he is in a union?
Now, there is a little catch there. Actually, the employer still
doesn't get to talk to the worker who is doing the job because he is
represented. It is the representative that they have to talk to. So
they don't get to listen to a worker who is doing the job. I listen to
them in Wyoming almost every weekend--they know how this job ought to
be done. And they have some of the simplest solutions. But they are not
able to talk to employers about it because of the National Labor
Relations Act. But this rule doesn't incorporate the solutions for the
kinds of problems that you are going to hear today in a way that the
small businessman can handle them.
Last July we had this debate and we passed an amendment, in a
bipartisan way, that was avoided by the administration, pressed by the
agency, and circumvented by the agency so this could be put into place.
I will have some more words about how that was achieved.
I wish to make it perfectly clear that this vote is not about whether
we should have ergonomics protection. It isn't about that. Let me
repeat that. This vote is not about whether we should have ergonomics
protection. Of course we should. Of course we need it.
Have each of you worked in your offices to handle some of the
ergonomics problems there? I have. It is a necessity right where we
work. Does this rule work for us? No. And we have lots of staff. It is
just the other people, just the small businessmen who have to memorize
the manual themselves.
My colleagues and I strongly believe in protecting the workers,
protecting the employees against musculoskeletal injuries--there is one
of those $50 words from OSHA. We are not trying to kill ergonomics
protection. In fact, you heard my colleague from Vermont earlier say
that the Congressional Review Act clearly permits OSHA to issue another
ergonomics rule, and you have heard the words of the Secretary of Labor
who said she will continue to look at this issue and consider all the
best options for protecting worker safety, including a new rulemaking.
I look forward to engaging in that process with Secretary Chao. As
chairman of the subcommittee dealing with work safety, I feel a special
responsibility to help employers protect American workers. I have no
interest in killing the ergonomics protection, and I would not vote to
do that. In fact, one of the highlights of last weekend was my meeting
with the Service Employees International Union in Wyoming and receiving
a certificate from them, on a national basis, for the work that I did
on safety with needle sticks--something that was extremely important in
this country, something that had been worked on for at least a decade.
Senator Kennedy and I, and Senator Jeffords, and others, talked about
some reasonable improvements that could be made. We got together on a
bill. We put it together as a bill--not as a rulemaking by a bunch of
unelected bureaucrats, not something as long as this rule. We agreed on
it. Do you know what happened. It passed both bodies by unanimous
consent. It went to the President and, of course, the President signed
it.
After years of working on it, we sat down and worked it out. I am
saying that we can work out ergonomics legislation so it will be
beneficial to everyone, particularly the ones doing the work. That is
how we are supposed to go about doing things, not through the process I
am going to describe to you that OSHA went through and wound up with
this huge rule.
But we are not voting on the value of ergonomics protection today; we
are voting on one thing, and one thing only, and that is this Clinton
ergonomics rule. This rule cannot be allowed to stand. If this were
allowed to stand, it would not be of benefit to people who are working.
It was issued as a last political hurrah for the former administration.
It is the product of a rushed and flawed rulemaking, and it will not
protect workers.
The power for OSHA to write this rule did not materialize out of thin
air. We in Congress did give that authority to OSHA, and it is time for
us to take some responsibility for what OSHA has done this time. The
Congressional Review Act gives us special procedures to do just that,
and I am proud to be a part of today's historic innovation of the act.
I thank my colleague, Senator Nickles, for passing the bipartisan
Congressional Review Act, along with Senator Reid, and for his hard
work on the ergonomics issue. I also thank my colleagues, Senator Bond,
Senator Hutchinson, and Senator Thompson, for their hard work on this
issue.
This ergonomics rule is such an overbroad, overblown bureaucratic
mess that I cannot imagine any action more in need of being taken than
congressional intervention.
[[Page S1839]]
I am sure by the time we have had our 10 hours of debate, this rule
will be indefensible.
Many of my Democrat colleagues are criticizing the effort to overturn
the ergonomics rule. I wonder if any have actually read this gorilla of
a rule. Have they tried to understand it? Have they tried to implement
it in their offices? Have they asked the small business people in their
States whether they will be able to implement it? Of course they
haven't. If they had, there is no possible way they would want this
rule to remain in effect.
Let me explain specifically why Congress must act to revoke the
ergonomics rule. This rule violates sound principles of State and
Federal law and, more importantly, common sense. I will talk more about
that later, as will my colleagues.
First, I will talk about how we got here and then we will better
understand why this rule is so bad and needs to go. Simply put, OSHA
rushed through the rulemaking process. Worse yet, they stacked the
evidentiary evidence. They ignored criticisms--worse than that, they
paid people to rip the criticisms apart. They changed the rules in the
middle of the game.
Is it any wonder this flawed process produced a flawed rule? Use
spoiled milk, you get a spoiled milkshake. Let's look at some examples.
Since 1988, the average time OSHA has spent per rule has been 4 years.
Yet the ergonomics regulation was finalized in under 1 year by OSHA
despite the fact it generated more public comment than any other prior
OSHA rule. Why the rush? The answer is clear: The history books were
closing on the Clinton Presidency so OSHA rushed to publish its final
rule on one of the last possible days before the new administration to
ensure that the new administration would have no recourse. The rule was
published on November 16, put into effect on January 16. Is it any
coincidence that the inauguration was January 20? That is by
constitutional law. Everybody knew when the inauguration would be, when
the opportunity would come for a new administration to take a look at
what has happened. This has been a rush. No, they rushed forward in
spite of the fact that both the Senate and the House voted to impose a
1-year delay on the rulemaking in a bipartisan way, in a civil way.
Responsible rulemaking or political posturing? What was the agency
doing and thinking?
My Democrat colleagues love to say this rulemaking has been a 10-year
process started by Republican Elizabeth Dole. Let's be perfectly clear.
No matter how long an issue is out there, the public has no way of
knowing how OSHA will handle it, what OSHA will require, what OSHA is
going to do, until OSHA actually publishes a proposed rule. That is the
beginning of the rule debate. We have all known there have been
ergonomics problems--ergonomics problems at work, at home, ergonomics
problems with our recreation. Something needs to be done in all of
those areas to eliminate the pain and suffering people go through. We
have all recognized that.
When did OSHA actually do something? They did it a little less than a
year before the final rule. In the case of ergonomics, OSHA let us in
on their plan a mere 358 days before they made it the law of the land,
one-quarter of the time they typically take.
Let's break it down even further. After the public comment period
closed on August 10, 2000, OSHA received over 7,000 comments with 800
volumes of exhibits comprised of over 19,000 separate documents, each
ranging in size up to 700 pages. Say the average size of these
documents is just 100 pages; that comes to 1.9 million pages of
material. That is pretty close to 2 million pages. But there were only
94 days between the end of the public comment period and the date of
the OSHA-published rue.
How can the American people possibly have confidence that OSHA truly
read, understood, analyzed, correlated, and responded to the 2 million
pages of material in 94 days? That is 20,000 pages a day, steady,
consolidated. Even if they don't consider it--which we know they
didn't--it takes a long time to get through 2 million pages of work.
Maybe that is where they saved time because there isn't a single bit of
evidence that a single concern made it to the final rule. In fact, the
rule got worse. They didn't listen; they made it worse.
Maybe OSHA didn't think it needed to pay any attention to these
comments because it could get all the information it wanted from its
hired guns. Yes, hired guns. At a most conservative estimate, OSHA paid
over 70 contractors a total of $1.75 million to help it with ergonomics
rulemaking. In particular, OSHA paid some 20 contractors $10,000 each
to testify on the proposed rule. They not only testified on it; they
had their testimony edited by the Department. Does that show concern
for the problems of America? They brought them in for special sessions
so they would be prepared for the same kind of atmosphere they would be
in when they were presenting their testimony. They practiced these
people, which also made sure the testimony they were giving was the
testimony OSHA wanted given.
Then--and this is the worst part of it all--they paid those witnesses
to tear apart the testimony of the other folks who were testifying, at
their own expense.
Not being paid $10,000 by their government, coming to Washington
wanting to testify on a rule, or sending their comments to Washington
expecting their comments to be read and considered: not much to ask of
a citizen, is it?
What does our government do? They pay contractors to rip apart the
testimony. These may be the same contractors who helped compile these 2
million pages of documents to see if there was anything worth putting
into the rule. That is not how our government ought to work. OSHA
assisted the contractors with preparation of their testimony; they made
suggestions to them about what they should say; they held practice
sessions to prepare them.
Regardless of whether these tactics actually violate any law, it
clearly paints OSHA as a zealous advocate, not an impartial
decisionmaker. That is what we expect of our government: impartial
decisions--not rabid, zealous advocates.
OSHA should be weighing all of the evidence and making the best
decision for workplace safety, not blindly defending its own position
at all costs--literally all costs, your costs and my costs, paying
people to present the testimony.
How can the American people have any confidence that the outcome of
this rulemaking was fair and unbiased? Look at the evidence. They
can't.
This perception is also strengthened by the fact that OSHA completely
ignored the many criticisms of the proposed rule and actually made it
worse. For example, I held two hearings on OSHA's proposed rule last
year. Yesterday, I brought in a volume that included that, with lots of
testimony, lots of information, lots of letters.
During the first hearing, we examined a provision that requires
employers to compensate certain injured employees at 90 percent to 100
percent of their salary. OSHA calls this requirement a ``work
restriction protection,'' or WRP. But this provision sounds an awful
lot like Federal workers compensation, doesn't it?
At the hearing, we heard testimony from a State workers compensation
administrator and two experts in insurance and workers compensation. We
also received written testimony from a large group of insurance
companies. All of this testimony unequivocally showed that this
provision will wreak havoc with the State workers compensation systems.
All 50 States have intricate workers compensation systems that strike
a delicate balance between the employer and the employee. When I was in
the State legislature in Wyoming, that took up a good deal of the time
we spent in the Labor Committee, working on all of the history of
workers comp. It is decades old, and there are thousands of
administrators who have worked on this for years. OSHA doesn't have
anybody who has worked on it for years. OSHA doesn't have anything in
place to take care of the kinds of things that are going to happen when
this rule starts generating workers comp payments.
All 50 States do have intricate workers compensation systems, and
they strike a delicate balance. Each party gives up certain rights in
exchange for certain benefits. An employer gives up his ability to
argue that a workplace accident was not its fault in exchange
[[Page S1840]]
for a promise that the employee will not pursue other remedies against
it.
Each State has reached its own balance through years of experience,
trial and error. Significantly, Congress has never taken this autonomy
away from the States by mandating Federal workers compensation
requirements before. The ergonomics rule destroys the State's balance
and completely overrides the State's rights to make an independent
determination about what constitutes a work-related injury and what
level of compensation injured workers should receive.
OSHA doesn't have the mechanisms or the manpower to decide the
numerous disputes that will inevitably arise because of the WRP
provision. All of a sudden, OSHA will have to decide disputes over the
existence of medical conditions, the causation, and the right to
compensation. What is going to happen to workplace safety and health
while OSHA is busy being a workers compensation administration? Do you
think they are going to need some additional help on that? You bet they
will.
In addition, under WRP, employers must pay immediately and employees
can keep both the WRP payment and the workers compensation payment
unless the employer sues the employee to recoup the double payment. Do
you think the employee will have the money to pay back the double
payment?
What we mentioned in committee, and I have mentioned this personally
to the people who were working on this rule, that it was set up so an
employee could be paid twice for being injured--I ask you, if you can
make more money by not showing up for work than you can by showing up
for work, would your boss expect you to be there? Even for the best
intentioned person, this is a great temptation. And what we are hearing
from the businessmen across this country. How do we administer this?
How do we make sure we are not doing double payments to employees? How
do we make sure that our workforce isn't being paid not to work? We
want to do what is right, but we do need workers.
Employees will be making more money by staying home than coming to
work, and without any medical diagnosis.
The rule is triggered with no medical diagnosis. Worse yet, under the
WRP, the employer cannot get information from the doctor about how the
accident happened? He can't get advice from the doctor who actually
looked at the patient, to see how to solve the problem. That is illegal
under the rule. If we really want to solve the problem for the person,
why can't they talk to each other under this rule? Talking to people is
the way to get the solution, and OSHA prohibit it because they think
all those employers out there are bad to the bone. They wrote this rule
for the one-tenth of 1 percent of the people in this country who will
not be affected by the rule one bit.
It is no surprise that this WRP provision was vigorously opposed by
the Western Governors' Association, the Tennessee Legislature, the New
York Department of Labor, the Pennsylvania Department of Labor, and
many others. All these complaints are on top of the fact that WRPs
violate the OSH Act, a little problem OSHA chose to ignore.
Thirty years ago when Congress wrote the Occupational Safety and
Health Act, it made an explicit statement about OSHA and workers
compensation. I will quote the act.
. . . supersede or in any manner affect any workmen's
compensation law or to enlarge or diminish or affect in any
other manner the common law or statutory rights, duties, or
liabilities of employers and employees under any law with
respect to injuries, diseases, or death of employees arising
out of, or in the course of, employment.
This is almost as if to say: What part of ``no'' don't you
understand? ``Nothing in this chapter shall be construed''--``in any
other manner''--there are so many words in here that say you can't do
workers comp.
You will hear the other side mention a couple of areas where there
have been some WRP payments. You will find that those are instances
where they can test for substances that can be isolated at the
workplace, where there was virtually no other possibility of them
getting the contamination somewhere else. They are in the cotton dust
and the lead provision. These are very special cases where the exposure
can only happen at those workplaces.
That is not like this one, where the accident can happen--it happens
over a period of time; it happens as a result of an accumulated effect,
and, according to the National Academy of Sciences study, it is even
based on attitude at the moment. I would like to see people measure
that one.
Twice the provision uses the broad phrase ``shall not affect in any
manner'' to describe what OSHA should not do to workers compensation.
As someone with the privilege of being one of the country's lawmakers,
it is hard for me to imagine how Congress could have drafted a broader
or more explicit prohibition of OSHA's interference with State workers
compensation.
But did OSHA heed these numerous complaints and the potential
illegality and the constant mention that has been made of it during the
entire process, in comment letters, in hearings, and remove the rule?
No, it did not. They are all right here. It is on page 6885-4--I love
the numbering of the Federal documents--of the final rule.
In our second hearing, we examined the devastating effect the rule
would have on patients and facilities dependent upon Medicaid and
Medicare. Testimony at that hearing demonstrated that the rule forces
these facilities to violate the law and could force them out of
business. In 1987, Congress passed the Nursing Home Act, recognizing
the importance of human dignity--the importance of patient dignity--the
importance of permitting patients to choose how they are moved and how
they receive certain types of care.
This act and corresponding regulations mandate this important freedom
of choice for patients. The ergonomics rule, on the other hand, imposes
many requirements on all health care facilities and providers
concerning patient care and movement. Thus, these facilities and
providers may be forced to choose between violating the ergonomics rule
or violating both the Nursing Home Act and patient dignity. We asked
them to come up with some kind of solution for that problem in the
hearing.
Moreover, OSHA's rule forces impossible choices about resource
allocation between patient care versus employee care. The only way for
businesses to absorb the cost of this rule is to pass the cost along to
consumers. However, some consumers are patients dependent on Medicaid
and Medicare--very important people we cannot leave out. The Federal
Government sets an absolute cap on what these individuals can pay for
medical services. Thus, the facilities that provide care for these
patients simply cannot charge a higher cost. They have to absorb the
cost of the rule.
Simply put, these facilities and providers are unable to absorb the
cost of the ergonomics rule. And there is no question these facilities
will face a cost. OSHA's own estimate of the cost of compliance in the
first year will total $526 million for nursing and personal care
facilities and residential care. The industry is already having
trouble. The industry estimates that the per-facility cost for a
typical nursing home will be $60,000.
But my issue with this rule is not that it will cost these facilities
so much. It is that it will cost elderly and poor patients access to
quality care. The new expenses this rule will add simply cannot be
passed on to the patients who depend on this program, and a cut in
service will be the only option. We have already seen what is
happening, particularly with rural medical practice costs of providing
the treatments that are limited. They are going out of business in my
State.
Did OSHA do anything to address this problem? Did it resolve the
legal conflict? Did it explain how these facilities can comply without
sacrificing quality of care and quantity of care? No. In fact, OSHA's
own estimate of the cost of compliance with the final rule actually
increased over the proposed rule. And they stuck in a couple more
things. OSHA actually made this situation worse rather than listening
to these vulnerable facilities.
This really disappoints me.
After the hearings were over, I met with the former Assistant
Secretary for OSHA and talked to him about my concerns. Mr. Ballinger
made efforts in North Carolina in ergonomics and saw
[[Page S1841]]
a reasonable approach to it, and even recommended him to be the
Assistant Secretary for OSHA. I was there at the nomination process and
the confirmation hearing. I asked questions about this. I thought we
had a person who was reasonable and who would listen. Perhaps he did.
Perhaps the bureaucracy took control of him.
But I met with him after we had the hearings and before the rule went
into effect. I pleaded with him to solve the problems created by the
proposed rule. And he said he would make significant changes. But it
was clear that he thought OSHA was an advocate for their original
version rather than an impartial decisionmaker weighing all the
evidence fairly.
Now that I have seen the final rule, it is clear that OSHA saw blind
advocacy as more important than its duty to craft the best possible
rule. I see no indication that he took my subcommittee's work or any of
the public comments to heart.
Perhaps more disturbing than OSHA's disregard for public comment is
its denial of public opportunity to accept only certain elements of the
final rule--another drastic attack on the American people. OSHA made
significant substantial changes to the final rule without giving the
public an opportunity to comment on them.
What this could lead to if we don't reverse the rule today is the
agency saying: Let's see. The easiest way to do this would be to leave
things out of the proposal and then hold the hearings and take the
testimony. And, when we are finished, we will do the final rule the way
we want to.
That is what OSHA did. The starting point wasn't so popular and it
drew significant adverse comment. But they didn't address it. They just
went on to another publication--one that was more stringent than with
what they started.
The worst of these changes is OSHA's addition of eight new job hazard
analysis tools.
I can almost see your eyes starting to glaze over. If I started to
read all of these additional pages to you, they would. But remember
that the small businessman has to take these into consideration. The
guy out there who doesn't have the specialized staff that OSHA has is
going to have to know these because they have included them in the
rule.
OSHA's rule says to employers: If you want to be assured of avoiding
fines and penalties, you have to reduce the ergonomic hazards in your
workplace below the level specified in one of eight tools contained in
mandatory appendix D-1.
Doesn't that get you excited? The tool you use is dependent on the
type of work your business performs. But you have to figure out which
one for yourself.
Here are a couple of them.
We have the ACGIH hand-arm vibration--actually sharing a summary with
the small businessmen. It may be some help to them but not much.
GM-UAW risk factor checklist: Sounds like the kind of study you would
want to read to keep your mind active.
The push-pull hazard table, and the rapid upper limb assessment--do
those sound a little difficult? Yes; they are. They were written by
ergonomists for ergonomists. None of them were written for small
businessmen. But the small businessman still has to understand them.
These tools are actually eight separate documents that were not
written by OSHA, and they were not mandated in the proposed rule--only
the final rule. No member of the scientific community and none of the
regulated public had an opportunity to comment on whether mandating
compliance with these tools is a good idea.
Adding insult to injure, as far as I can tell, OSHA does not provide
these documents. Instead, OSHA tells employers: You are on your own. Go
ask the publishers, the trade association, and the private companies
that wrote these tools to give them to you. So we gave it a shot.
Let me tell you it wasn't easy. It took three of my staff several
days, and there was still one document they were not able to obtain at
all. Remember, these weren't free.
As for the rest of them, one of the documents is 164 pages long. That
is in addition to the rule. It all depends on how thick the paper is.
The Government didn't use good paper. That probably saved us a little
bit of money. Not doing the rule would save us a lot more.
So let's see what the local bakery has to comply with. I am going to
read from The American Conference of Governmental Industrial Hygenists
Hand/Arm (Segmental) Vibration Threshold Limit Value (or TLV). This is
straight from the range of pages cited by OSHA in the mandatory
appendix:
For each direction being measured, linear integration
should be employed for vibrations that are of extremely short
duration or vary substantially in time. If the total daily
vibration exposure in a given direction is composed of
several exposures at different rms accelerations, then the
equivalent, frequency-weighted component acceleration in that
direction should be determined in accordance with the
following equation.
As for the rest of them: One of these documents is one hundred sixty-
four pages long. For at least five others, there are separate monetary
charges--that's right, businesses have to pay to be able to read these
federally mandated documents. And several of these documents are
articles in scientific journals written for ergonomists and engineers.
But the corner convenience store, local newspaper and your favorite
bakery must comply with them all the same.
That is something we deal with on the floor of the Senate every
single day, isn't it? I mean, why wouldn't our small businessmen be
able to take this simple--simple?--calculus formula and figure out if
their employees were getting too much vibration on the job?
It would be a lot simpler if they asked the employees if they were
having vibration problems. But the law makes that difficult.
You cannot talk to the guy with the problem and say: Are the
vibrations bothering you? What can we do to eliminate some of the
vibrations? No. Instead, we have this thing about RMS accelerations,
with equivalent, frequency-weighted component acceleration, determined
in conjunction with this very simple formula.
Now, I am sure everybody in Congress is going to be proud to go to
their baker and say: We know you run some equipment that has
vibrations. I want to help you understand this formula. Yes. It is not
going to happen. When your baker sees this thing, I will tell you what
he will think you ought to do with this rule. There really ought not to
be anybody who votes for this rule, not the way it has been messed up
through a process that ought to be helping people.
Do you see any evidence there was any attempt to help people? All we
built in was cost. We did not build in care. We did not take care of
the people of America. We did not save them from their ergonomics
problems. We put so much garbage out there that the businessman is
simply not going to be able to comply.
This isn't the kind of thing any of us ever anticipated we would be
thrusting on the small businessmen of this country. In fact, it isn't
even what we thought we would be thrusting on the workers of this
country. Do you know what is going to happen in a bunch of businesses
in this country. Instead of asking that employee what could be done,
instead of asking him how to solve the problem, they are going to hire
somebody who will automate the plant. People will lose their jobs. Yes,
we may hire somebody to run the automation, but that is not going to
take care of jobs in this country, the jobs of people who work hard
every day and know what they are doing and know the simple ways that
the process could be improved.
I tell you, not one of them is going to read this; not one of them
needs to read this. You do not need to read this to solve the problems
in the workplace. There are none of us who do not want to see the
ergonomics problems reduced and eliminated. I tell you, business has
been doing that. Yes, according to OSHA, over the last 5 years business
has reduced the number of ergonomics accidents by 22 percent. The
Bureau of Labor Statistics gives business a lot more credit than OSHA
for these numbers.
What would improve ergonomics in this country? I tell you, if we had
the same number of people working with businesses suggesting things
that would help the people in that business, instead of spending their
time writing
[[Page S1842]]
this kind of stuff, we would have a lot more of the problems solved.
I am willing to work on coming up with an ergonomics rule that will
work to reduce injuries. I am not interested in seeing an ergonomics
rule that is for the benefit of the jobs of bureaucrats. That is not
going to help us.
I ask you, how in the world is any small business or any businessman,
for that matter, supposed to figure out all this stuff? They can't.
Businesses simply will not be able to comply with the requirements. But
OSHA has not heard their stories because it deprived the American
people of the opportunity to comment on the requirements.
Rest assured, these problems are just the tip of the iceberg. You
will be hearing about more flaws from my colleagues in the coming
hours. But if even one of these issues that I have raised troubles
you--and I think they should all trouble you deeply--then you must
recognize the desperate need for congressional intervention. That is
why a bipartisan act years ago set up this process, so that Congress
could jerk an agency back to reality that has not been paying
attention. There is a desperate need for congressional intervention.
I urge my colleagues to vote in favor of this resolution. Let's show
the country that although Congress delegated rulemaking authority to
OSHA, we have not abdicated our responsibility to the American people.
I will watch out for the American people. I know my colleagues will,
too.
Mr. President, I reserve the remainder of my time and yield the
floor.
Mr. WELLSTONE addressed the Chair.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. WELLSTONE. Mr. President, first of all, let me say to my
colleague from Wyoming--he chairs the committee with jurisdiction over
workplace safety, and I am the ranking minority member--I appreciate
him as a Senator. There is a different version of those hearings and a
different version about what is the right thing for us to do. I would
like to speak to that.
Each year, there are 1.8 million workers who suffer from ergonomics
disorders. Mr. President, 600,000 men and women have injuries so severe
they are forced to take off work. Obviously, there is a problem. If it
is your son or your daughter or your brother or your sister or your
husband or your wife, it is very personal to you.
I think this is a class issue. I said it yesterday on the floor of
the Senate--and I have to say it again--I think precious few Senators
really understand what these statistics mean in personal terms because,
frankly, we are talking about a part of the population that is not well
represented in the Congress, not well represented in the Senate. We are
talking about working-class people. I do not think most Senators have
loved ones who are doing this work, whether it is blue-collar work or
white-collar work.
As I say, 1.8 million workers every year suffer from work-related
ergonomics disorders--many of them women. I must say, I think some of
the discussion on the floor trivializes these injuries, trivializes
this pain, and trivializes the need for protection for people.
I do not know how many times I have heard from my colleagues that, of
course, there should be ergonomics protection, that, of course, we
should do something--but it is never this rule; it is never that rule;
it is never the next rule. Frankly, there are interests that for 10
years have done everything they could to oppose any kind of rule
providing people at the workplace with this protection. That is what
this resolution is about. That is what this debate is about.
Keta Ortiz is a sewing machine operator in New York City. She was 52
when her whole life came crashing down. She ended up with cramps in her
hands so severe that when she woke up, they were frozen like claws. She
had to soak her hands in hot water just to be able to move her fingers.
This went on for 5 years. Terrified of losing her job, she suffered
agony beyond measure, beyond any measure most Senators know. Finally,
she had to give up her job. It took 2 years for her to get her first
workers comp check. She lost hers and her family's health insurance,
and she now tries to get by on $120 a week in workers comp payments.
Shirley Mack from Spring Lake, NC, is a single parent with four
children. Let's talk about people. You can put charts up, and you can
make fun of rules, and you can trivialize what this is all about, but
let's talk about people's lives.
Shirley Mack has worked since she was 5 and tried very hard to stay
off public assistance. Her job was splitting chicken breasts in a
poultry plant, working 8 or 9 hours a day, 5 days a week. I doubt
whether very many Senators have done that. I have not. Maybe some have,
not too many, though.
I am on safe ground, aren't I, colleagues, in saying that not too
many Senators have ever done this kind of work? She says she was one of
the faster workers but then her hands started hurting and going numb.
To avoid losing her job, she continued working, but then her hand
stopped working. Her finger locked. Her hand grew numb and cold, and
her arm stopped working. After a few days in the plant of not being
able to work, she was fired.
I quote from her:
Now I go to bed in pain and I wake up with pain. It hurts
to hold my new grandson. I can't fix a big meal like I used
to or hang clothes or do yard work at all. I can't go to the
grocery store by myself anymore because I can't push the
cart. I can only really use my left hand so lots of things
like doing my hair and driving take longer and really hurt. .
. . I didn't want to go on assistance, but I am now disabled.
This carpal tunnel syndrome is very real.
Some of us are being very generous with the suffering of others. That
is what this rule was all about--lessening the suffering of a whole lot
of people in the workforce of the United States of America. Now with
this resolution, we are going to wipe out that rule, wipe out that
protection.
It is interesting: We are in this intense debate--or will be soon--on
the education bill regarding accountability for our schools, but when
it comes to worker safety, all of a sudden accountability and standards
go out the window.
My colleagues have been holding up the Federal Register. They have
been talking about the rule. The rule is eight pages. The rule is eight
pages. There is background; there is context; there are reasons for
doing it. This is the rule, eight pages. This whole book is not the
rule; it is a lot of good background information on the rule.
I will discuss what this rule is about, 8 pages, 10 years in the
making, starting with Elizabeth Dole, and now in 10 hours we are going
to overturn it. By the way, for all my colleagues who say they are
committed to doing something, they will do something, time is not
neutral for these workers. These injuries are debilitating. It is a
life of hell. It is a life of pain. Now in 10 hours we are going to
overturn this rule.
These standards, eight pages of a rule, represent a sound,
reasonable, sensible approach. What does the rule basically say? After
10 years of diligent work, initiated by Elizabeth Dole when she was
Secretary of Labor, right up to now, what do we have? We have state-of-
the-art, flexible, commonsense rules for employers, helping them to
deal with this vexing problem of ergonomic disorders.
The requirements are not complicated: One, the standard simply calls
for employers to provide employees with basic information about
ergonomic disorders so that if you are working and you are experiencing
these symptoms, you know what is happening to you before it is too
late. Then the employer need not do anything more, that is it, unless a
worker or an employee reports a disorder or a symptom which is a sign
of the disorder. The worker says: I can barely move my wrist; my
fingers are swelling; I am in pain. Then there is a problem.
First the employer lets the workers know, gives them information so
people can understand what might be happening to them. That is a
terrible idea?
Then if the employee should come to the employer and say, I have a
problem, it is up to the employer to determine whether or not what has
been reported is an ergonomic incident. There are clear criteria laid
out. If that threshold is reached, then the employer is obliged to work
with his or her employees to identify and analyze the hazards and
develop a program to deal with those hazards.
We would think, from hearing some of the Senators on the floor of the
Senate, that OSHA has done a terrible
[[Page S1843]]
thing by promulgating a rule, based on 10 years of work, to provide
some protection for well over a million and a half workers every year
who face these disabling injuries, 600,000 of whom are not even able to
work part of the time because of these injuries.
Are these rigid, onerous, arbitrary rules? No, they are not. A lot of
smart businesspeople are already utilizing these standards. Tom Albin,
who is an ergonomist at 3M in St. Paul, MN, had this to say about what
3M does in my State:
Our experience has shown that incorporating good ergonomics
into our manufacturing and administrative processes can be
effective in reducing the number and severity of work-related
musculoskeletal disorders, which not only benefits our
employee, but also makes good business sense.
Tom Albin is right; it is good business sense.
3M's evolving ergonomics process has been effective at
reducing the impact of these disorders on our employees and
our business. From 1993 to 1997 we have experienced a 50
percent reduction in ergonomics-related OSHA recordables and
70 percent reduction in ergonomics-related lost time OSHA
recordables.
In other words, paying attention to ergonomics makes good business
sense. It is cost effective. Estimates are that the $4.5 billion
annually it will take to implement these standards will result in $9.1
billion annually of savings which are recouped from the lost
productivity, lost tax payments, administrative costs, and workers
comp. You do the prevention. We have this rule. You have this standard.
You prevent injuries. You have more productivity. Workers are not
absent from work, and you have fewer workers comp claims. We have also
lived to our values: We have provided protection for hard-working
people.
When my colleagues come to the floor and talk about this standard as
if it is arbitrary and capricious, they leave out a little bit of the
history of this. The fact is, many companies are saying, yes, we need
to do this. Good businesspeople are saying, yes, we need to do this. It
is preventative, and it saves money.
The results are not surprising. The National Academy of Sciences and
the Institute of Medicine report, which was requested by industry
groups and opponents of these standards--I haven't heard any discussion
about this--finds scientific support that, one, exposure to ergonomic
hazards in the workplace causes ergonomic disorders; and, two, these
injuries can be prevented.
This is the report. If I were to list--and I don't have time because
other colleagues will speak--the panel composition, it extends from
internal medicine to nursing to physiology to biomechanics to human
factors engineering, a most distinguished panel of men and women. The
National Academy of Sciences found a strong and persistent pattern,
both on the basis of epidemiological studies and biomechanical studies,
that indeed there was a huge problem in the workplace. Repetitive
stress injuries are for real. People are disabled.
They also found that in fact if we want, we can take action to reduce
this pain and agony. We could change the design of tools and work
stations, rotate jobs, lift tables, have vibration-dampening seating
devices. There are a whole set of ergonomic principles which can be
used to reduce exposure to risk factors and, as a result, mean less
pain for many women and men in the workforce.
I have not heard my colleagues talk about this study. I know
sometimes facts are stubborn things. I know sometimes we don't want to
know what we don't want to know. The NAS report goes on to affirm the
basic elements of the OSHA standard: management, leadership, employee
participation, job hazard analysis and control, training, and medical
management. So my second point is that the case for these standards is
strong and unassailable.
My last point has to do with the rush to judgment that we are
witnessing today: Ten years of work, countless studies, untold time and
effort overturned after 10 hours of debate. This resolution of
disapproval wasn't sent to committee, and this, despite the fact that
we have a new study hundreds of pages long, commissioned by the
opponents of this rule that supports the essential elements of what
OSHA ordered. This is the problem my colleagues have. They are doing
the bidding of some very greedy folks who say they don't want to have
to spend any more money.
How generous we are with the suffering of others. So we had 10 years
of study and the opponents wanted the National Academy of Sciences to
give us their best judgment. Well, they ended up supporting basically
the rules that OSHA ordered, which was what the opponents were opposed
to. So now Senators don't have the study; they don't have the research;
they don't have the evidence. But I will tell you what they do have.
This is what they do have. They could come to the floor of the Senate.
The administration could do the same thing. The administration could
stay OSHA's rule. The administration could reopen the rulemaking
process, call for further studies; they could let the court processes
unwind.
Instead, this effort is to kill the rule. This is scorched earth
policy to prevent OSHA from ever issuing a rule in ``substantially the
same form, unless specifically authorized by a subsequent act of the
Congress.'' That is what this is all about.
Let me be clear about this. My colleagues are not interested in
making any kind of accommodation. That is not what this is about. They
are not interested in saying, yes, there are some parts in this rule we
don't like; let's see if we can fix them. What they want to do is avoid
accountability for worker safety. That is what this is all about--that
we will avoid accountability. That is what is so egregious. That is
what is so egregious about what is happening.
I finish this way. This is one interesting and telling week for--
sometimes you speak on the floor of the Senate and you somehow hope you
get the attention of people, and you almost hope people listen and you
can connect with the people in the country to somehow follow debate, or
they hear one thing you say.
I certainly wish to say this: For working people, for people who are
not the heavy hitters, not the big players, not the investors, don't
have all of the economic clout, don't lobby here every day in
Washington, who are doing the work, who are faced with these kinds of
injuries and this kind of pain, these kinds of disabilities, men and
women--but probably the majority are women--this is not a good week for
them because this resolution overturns 10 years of hard, diligent work
to finally write a rule that will give working men and women some
protection in the workplace. And then if you can't work because you are
disabled by this injury--remember, a lot of people have no other
choice. A lot of people work at these jobs because they have no other
choice. They don't work at these jobs for the fun of it. We have
options. We can go to other work. They don't.
And then what we are going to do, starting tomorrow, assuming this
resolution passes, is we are also going to say to the same people, now
we have overturned the rule, now we have moved away from protection--
although Senators are saying, of course, we are concerned. Your concern
doesn't mean much because time is not neutral, and for a whole lot of
folks the injuries are now.
I keep hearing we are for another rule, another time, another place;
but every time big economic interests say, oh, no, we can't afford it.
My colleague from Wyoming, whom I respect, talked about nursing
homes. I hope that the choice is not between nursing homes or hospitals
saying, look, in order for us to be able to make it economically--I
agree they have gotten the short end of the stick when it comes to
reimbursement. We have our health care providers saying the only way
they can survive economically is for the workforce to work jobs that
are unsafe and continue to suffer and struggle with disabling injuries.
That should not be the tradeoff.
Does anybody wonder why we have a 40-percent turnover in nursing
homes every year? Part of it is the low wages and part of it is
outrageous working conditions, taking care of our mothers and fathers
who built the country on their backs. One would think we would do well
for parents and grandparents and for the human service workers who take
care of them. We don't do well for the men and women who take care of
our parents and our grandparents in nursing homes or in home health
care
[[Page S1844]]
when we do not take action to protect them and make sure they are safe.
I can only say that the supreme irony of this week is that now that
we take away the protection, if you are disabled and you can no longer
work, then what we are going to do, starting tomorrow, is pass the
bankruptcy bill that is going to make it impossible for most people in
the country to any longer file chapter 7 and rebuild their lives.
Incredibly harsh. Great for the credit card companies. It doesn't hold
them accountable for their predatory policies, for pumping these credit
cards on our children and grandchildren. But, boy, when it comes to
families that find themselves in terrible economic circumstances
because of a major medical bill, or because of the loss of a job, or
because of a divorce, it is going to be practically impossible for
people to rebuild their lives.
So I say that working families get the shaft on the floor of the
Senate this week and next week as well. I say that is a shame. But I
say that I believe in the intelligence of people, and my guess is that
citizens in the country will figure this out and they will have a
pretty good sense of who gets represented well here and who is left
out.
I will finish with this sentence. I think, unfortunately, that even
though I don't believe it is intended, because Senators on the other
side of this debate are good people--we just disagree--I think the
effect of this resolution overturning 10 years of work, overturning
this rule, so important to protecting men and women in the workplace--
the effect is to make many working Americans, men and women,
expendable. We are making them expendable. We are saying to many
working class people in the country that you are expendable Americans.
I am in profound opposition to that statement.
I yield the floor.
Mr. ENZI. Mr. President, I yield such time as the Senator from
Tennessee may use.
The PRESIDING OFFICER. The Senator from Tennessee is recognized.
Mr. THOMPSON. Mr. President, I rise in support of the proposition
that in a democratic republic it is entirely appropriate for elected
representatives to have some say-so when a bureaucracy produces a rule
that so greatly affects people's lives.
As we get into our discussion, we can discuss some of these broad,
powerful, greedy interests that have been referred to, and we can
discuss exactly who is affected by this rule and whether or not all
these people fit that definition that our previous speaker has just
cast on everyone who comes to us with concern about this rule.
I rise in support of the resolution of disapproval of OSHA's
ergonomics regulation. I do not make this decision lightly, but this
regulation is so unworkable, and the process under which it was issued
so unsound, I believe I have no choice but to support its disapproval.
This regulation is a perfect illustration of how political
gamesmanship can subvert rational policymaking.
At the outset, I will address some of the claims made about this
resolution of disapproval. Some assert that this resolution is an
attack on worker safety. Some may even claim this resolution will bar
OSHA from addressing the problem of musculoskeletal disorders. The
truth is, none of us oppose worker safety. Many of us have worked on
those assembly lines we hear so much about. Some have firsthand
experience with such matters.
This resolution prevents an irresponsible and unworkable regulation
from taking effect. OSHA will still retain the freedom to address the
problem of musculoskeletal disorders, including through the use of its
general enforcement authority or by reissuing a reasonable regulation.
Just because something has been worked on for many years does not mean
the final product produced at the last minute is a reasonable product.
Perhaps a lot of good work went into this over the last 10 years, but
what counts, as we have learned in so many other areas, is what
happened as it went out the door.
There is not enough time to discuss all of the flaws and problems
with this regulation. Many of my colleagues have discussed, and
undoubtedly will discuss, some of these problems. They will show this
regulation is the product of an unfair, biased process. The rule will
unfairly burden businesses all across America, especially small
businesses. Beyond the private sector burdens, this regulation will
cost the U.S. Postal Service over $3.4 billion, plus $1.5 billion
annually thereafter. My colleagues will also show this regulation is
incomprehensible. This regulation is unworkable. All of this is cause
for concern. I am particularly concerned about the burden this
regulation imposes on businesses in Tennessee. But I will not rehash
all of these arguments in the limited time I have today. Instead, I
want to focus on how the Clinton ergonomics regulation would harm State
and local governments and violate principle of federalism.
As chairman of the Governmental Affairs Committee, I have the
responsibility to oversee Federal-State relations. Over the past
several years, I have struggled with the Clinton administration over
its federalism policy. This ergonomics regulation is consistent with
their disrespect for the principle of federalism. By many measures,
this would be the most burdensome regulation ever imposed by OSHA. It
would amount to an enormous unfunded mandate. It would preempt
traditional State and local authority. It could seriously impair State
and local governments across our country, and certainly in Tennessee.
It could hit hardest in many small and poor communities where local
governments struggle to meet the needs of their citizens already.
Yet until the 11th hour, OSHA neglected to consider how its
regulation would burden State and local governments and erode their
traditional authority. OSHA failed to properly consult concerned local
representatives or to fully explain the potential effect on State and
local employers.
After spending years to study the impact of this mega-regulation,
OSHA neglected to consider the economic impact of its proposed
regulation on State and local governments. This is not a small
oversight, to say the least. When OSHA published its proposed
ergonomics standard in November of 1999, OSHA claimed ``few if any of
the affected employers are State, local, or tribal governments.'' Then
OSHA heard the howls of protest and conceded that the regulation
certainly was going to impose very large and real burdens on these
groups.
Such small inconvenience did not slow OSHA's rush to ram out this
regulation in final form in the last days of the Clinton
administration. OSHA simply cranked out a perfunctory economic analysis
last May and provided State and local governments a grossly inadequate
30-day period to comment on OSHA's slipshod economic analysis. OSHA
also moved its July 7 hearing to consider the economic impact on these
parties from Washington, DC, to Atlanta, GA, during a time when there
was a huge convention in Atlanta and rooms were scarce. Many interested
parties, including representatives of local government, were not even
able to attend due to the expense and inconvenience involved.
When it issued the final rule, OSHA admitted there would, indeed, be
economic burdens for State and local governments--to the tune of about
$558 million each year. Other estimates are much higher. The Heritage
Foundation estimated that the cost of the ergonomics proposal on State
and local government would be about $1.7 billion.
When OSHA proposed this regulation, it claimed that the Unfunded
Mandates Reform Act did not apply. In the preamble to its final rule,
OSHA does not deny that the ergonomics regulation would impose an
enormous unfunded mandate. But it glibly claims that the final rule is
the most cost-effective alternative. We have already seen many
instances where the Clinton administration thumbed its nose at the
Unfunded Mandates Act. A GAO report I requested a couple of years ago
concluded that the Unfunded Mandates Act has had little effect on
agency rulemaking. I think this episode cries out for reexamining the
Unfunded Mandates Act.
I am concerned that many governmental entities--towns, water
districts, volunteer fire departments, and so on--will not be able to
sustain the cost of this unfunded mandate without increasing taxes or
cutting vital services. Local governments simply do not have adequate
resources to meet these far-reaching mandates from OSHA. This is true
both in Tennessee and across America.
[[Page S1845]]
According to the National League of Cities, out of 36,000 cities and
towns in America, 91 percent have populations of fewer than 10,000. The
average annual budget of these small towns and cities is about $1.6
million. At the end of the day, there is simply no money for lawyers
and ergonomics experts.
But the story does not end there. This standard preempts an area of
traditional State authority. State workers' compensation systems are
based on decades of experience and careful deliberation. We talk about
10 years working on this rule. What about the many more years it has
taken to develop State workers' compensation laws that are totally
abrogated by this rule?
In one fell swoop, OSHA would overturn the careful policy choices of
the States. This regulation supersedes existing State workers'
compensation programs despite the fact that the Occupational Safety and
Health Act makes clear that OSHA may not supersede or in any way affect
any workers' compensation law.
The rule's work restriction protection provisions, which require
employers to pay 90 percent of earnings and 100 percent of benefits to
employees unable to work, would effectively create a Federal system of
workers' compensation. The rule would also allow employees to bypass
the system of medical treatment provided by State law for workers'
compensation injuries and seek diagnosis and treatment from any
licensed health care provider.
Did Congress intend to delegate the authority to the bureaucracy to
establish a Federal workers' compensation law in this area and to
preempt State laws that were formulated over the last decades? I don't
think so. By interjecting a special Federal compensation system for
ergonomic injuries into State compensation programs, the work
restriction protection provisions would provide preferential treatment
for people with musculoskeletal disorders as opposed to every other
job-related injury or illness.
Some local representatives have argued that the work restriction
protection provisions could provide an employee who hurts his wrist
playing tennis more money in benefits than current benefits provide a
laborer who loses his arm.
To make matters worse, the work restriction protection provisions
double the opportunity for fraud by failing to provide employers any
recourse for recovering workers' compensation payments from employees
who have already received their earnings and benefits through the work
restriction protection provisions. The double payment would take more
money away from people with real injuries who have legitimate claims.
My concerns are shared by many State and local governments that face
this unfunded mandate and the erosion of their traditional authority.
Both houses of the legislature of my home State of Tennessee are
controlled by the Democratic Party.
The Tennessee Legislature passed a resolution calling on Congress
``to take all necessary measures to prevent the ergonomics regulation
from taking effect.'' They are concerned that the ergonomics rule will
preempt Tennessee's workers' compensation system, impose drastic
requirements on the state government, and cause hardship for many
Tennessee businesses. I agree, and I wish the Clinton Administration
had listened to the representatives of the people of Tennessee.
The concerns raised by Tennessee are shared by many other state and
local governments. The National League of Cities, the largest and
oldest organization representing the nation's cities and towns, has
opposed the regulation from the beginning. The Western Governors'
Association passed a resolution detailing how the regulation would
supersede the entire complex of state workers' compensation provisions
and conflict with state laws.
Mr. President, a couple of years ago, I fought the Clinton
Administration's attempt to repeal President Reagan's Executive Order
on Federalism and to replace it with a new Order that would have
created new excuses for federal meddling in state and local affairs.
Ironically, the Clinton Administration tried to issue this executive
order, which called for more consultation with state and local
government, without consulting with state and local governments at all.
A firestorm of protest from state and local officials led the White
House to adopt a new federalism order that mimicked the Reagan Order.
The Clinton Administration promised to consult more with state and
local officials. But a year later, on the most burdensome regulation
ever proposed by OSHA, the Clinton Administration did not address the
problems raised by state and local officials, did not seriously
consider the enormous impact of this unfunded mandate, and did not
trouble itself with the rule's disruption of complex areas
traditionally regulated by the states.
I ask unanimous consent that the resolution of the Tennessee
legislature, a letter from Tennessee Governor Don Sundquist, and the
letters from Mayor Victor Ashe of Knoxville and Mayor Charles Farmer of
Jackson, be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Senate Joint Resolution 610
Whereas, Tennessee has enacted a comprehensive workers'
compensation system with incentives to employers to maintain
a safe workplace, to work with employees to prevent workplace
injuries, and to compensate employees for injuries that
occur; and
Whereas, Section 4(b)(4) of the federal Occupational Safety
and Health Act, 29 U.S.C. Sec. 653(b)(4), provides that
``Nothing in this chapter shall be construed to supersede or
in any manner affect any workmen's compensation law or to
enlarge or diminish or affect in any other manner the common
law or statutory rights, duties or liabilities of employers
and employees under any law with respect to injuries,
diseases, or death of employees arising out of, or in the
course of, employment.''; and
Whereas, the Occupational Safety and Health Administration
(``OSHA''), notwithstanding this statutory restriction and
the constitutional, traditional and historical role of the
states in providing compensation for injuries in the
workplace, has nevertheless published a proposed rule that,
if adopted, would substantially displace the role of the
states in compensating workers for musculoskeletal injuries
in the workplace and would impose far-reaching requirements
for implementation of ergonomics programs; and
Whereas, the proposed rule creates in effect a special
class of workers compensation benefits for ergonomic
injuries, requiring payment of up to six months of wages at
ninety percent (90%) of take-home pay and one hundred percent
(100%) of benefits for absence from work; and
Whereas, the proposed rule would allow employees to bypass
the system of medical treatment provided by Tennessee law for
workers' compensation injuries and to seek diagnosis and
treatment from any licensed health care provider paid by the
employer; and
Whereas, the proposed rule would require employers to treat
ergonomic cases as both workers' compensation cases and OSHA
cases and to pay for medical treatment under both; and
Whereas, the proposed rule could force all manufacturers to
alter workstations, redesign facilities or change tools and
equipment, all triggered by the report of a single injury;
and
Whereas, the proposed rule would require all American
businesses to become full-time experts in ergonomics, a field
for which there is little if any credible evidence and as to
which there is an ongoing scientific debate; and
Whereas, the proposed rule would cause hardship on
businesses and manufacturers with costs of compliance as high
as eighteen billion dollars ($18,000,000,000) annually,
without guaranteeing the prevention of a single injury; and
Whereas, the proposed rule may force businesses to make
changes that would impair efficiency in distribution centers;
and
Whereas, this proposed rule is premature until the science
exists to understand the root cause of musculoskeletal
disorders, OSHA should not rush to make rules that are likely
to result in a loss of jobs without consensus in the
scientific and medical communities as to what causes
repetitive-stress injuries, and medical researchers must
answer fundamental questions surrounding ergonomics before
government regulators impose a one-size-fits-all solution;
now, therefore,
Be it Resolved by the Senate of the One Hundred First
General Assembly of the State of Tennessee, the House of
Representatives concurring, That this General Assembly hereby
memorializes the United States Congress to take all necessary
measures to prevent the proposed ergonomics rule from taking
effect.
Be it further Resolved, That an enrolled copy of this
resolution be transmitted to the Speaker and the Clerk of the
United States House of Representatives; the President and the
Secretary of the United States Senate; and to each member of
the Tennessee Congressional delegation.
[[Page S1846]]
____
State of Tennessee,
Nashville, TN, March 5, 2001.
Hon. Fred Thompson,
Dirksen Senate Office Building,
Washington, DC.
Dear Senator Thompson: I'd like to offer you my support for
Senate Joint Resolution 6, which disapproves the ergonomics
rule submitted by the Department of Labor.
I oppose unfunded federal mandates and believe in each
state's right to set workplace laws. The Ergo Rule is too
complex, too unworkable and would be far too costly for state
and local governments at a time when most state and local
governments are working to cut costs in an effort to continue
to provide quality, effective services without overburdening
taxpayers.
In addition, the ergonomics legislation would negatively
impact hundreds of Tennessee businesses. For these reasons, I
join you and the Tennessee Association of Business, the
Tennessee Apparel Corporation, the Tennessee Grocers
Association, the Tennessee Automotive Association, the
Tennessee Malt Beverage Association, the Tennessee Health
Care Association and Chattanooga Bakery Inc. in support of
Senate Joint Resolution 6.
If I can be of further assistance on this or other matters
please don't hesitate to call.
Sincerely,
Don Sundquist.
____
The City of Knoxville,
Knoxville, TN, March 5, 2001.
Hon. Fred Thompson,
U.S. Senate,
Washington, DC.
Dear Fred: I am writing to advise you that I fully support
S.J.R. 6.
This regulation regarding ergonomics is ill advised and
will adversely impact local governments. It will, in fact,
impose another unfunded mandate on local governments that
would prove to be extremely costly for our taxpayers. It
would eventually result in reduced services and/or a property
tax increase.
This regulation is complex and unworkable. It is unclear
how state and local governments will be affected. In
addition, there can be no alternative position established
for personnel such as firefighters and police officers.
I am hopeful your efforts to stop this regulation from
taking effect will meet with success.
Sincerely yours,
Victor Ashe,
Mayor.
____
City of Jackson,
Jackson, TN, March 5, 2001.
Re S.J. Resolution 6.
Senator Fred Thompson,
Committee on Governmental Affairs,
Washington, DC.
Dear Senator Thompson: I urge you to support S.J.
Resolution 6 which allows for disapproval of the rule
submitted by the Department of Labor relating to ergonomics
regulation for the following reasons:
Tennessee has already enacted a comprehensive and effective
workers' compensation system that encourages employers to
provide a safe working environment and to compensate
employees for injuries that occur.
The proposed rule would displace the role of states in
compensating workers for musculoskeletal injuries in the
workplace.
It would require employers to compensate workers for
medical treatment under both the existing workers'
compensation rules and OSHA rules.
The rule would force manufacturers to unnecessarily alter
workstations and redesign facilities, which could cause undue
financial hardships on businesses without guaranteeing the
prevention of a single injury.
In some work environments such as fire fighting and police
activity it would be impossible to alter the components of
their job and remain effective.
It is unclear how state and local government employees will
be affected by the rule.
OSHA did not conduct a cost-benefit analysis revealing the
fiscal impact of the rule.
The rule is an unfunded mandate thereby placing the burden
of funding on states and cities.
In short the rule is costly and unworkable.
Thank you for your attention to this matter. Please advise
as to how I can provide further assistance of information.
Yours truly,
Charles H. Farmer,
Mayor.
____________________