655 15TH ST, NW, SUITE 700 WASHINGTON, DC 20005 TELEPHONE: 202/452-8444 FAX: 202/429-4519

March 2, 2000

OSHA Docket Office
Docket No. S-777
U.S. Department of Labor
200 Constitution Avenue, N.W.
Room N-2625
Washington, D.C. 20210

Re: OSHA Docket No. S-777, Ergonomics Program Standard

Dear Sir or Madam:

These comments are submitted by the Food Marketing Institute (FMI), in response to the proposed Ergonomics Program rule published by the Occupational Safety and Health Administration (OSHA, or "the agency" 64 Fed. Reg. 65768 November 23, 1999) FMI's members, our nation's food retailers and wholesalers, are vehemently opposed to this proposed rule and we urge that it be withdrawn.

FMI is a nonprofit association that conducts programs in research, education, industry relations and public affairs on behalf of its 1,500 members and their subsidiaries. Our membership includes food retailers and wholesalers, as well as their customers, in the United States and around the world. FMI's domestic member companies operate approximately 21,000 retail food stores with a combined annual sales volume of $220 billion, which accounts for more than half of all grocery store sales in the United States. FMI's retail membership is composed of large multi-store chains, small regional firms, and independent supermarkets. Our international membership includes 200 members from 60 countries.

FMI is a member of the Steering Committee of the National Coalition on Ergonomics (NCE), a coalition of employers and employer organizations from a wide array of industries. We strongly support and endorse the comments filed on behalf of the NCE in this proceeding. We request that OSHA consider the views and arguments expressed in those comments to be FMI's as well.

The grocery industry is an integral part of every community in the country, providing our nation's consumers with a wide variety of safe and nutritious foods at the lowest possible prices. It employs more than 3.5 million Americans, providing them and their families with safe, good-paying, high-quality jobs that contribute to the well-being of towns and cities around the country. Our members are committed to providing a safe and healthy environment for their employees and customers and they are continually striving to improve all aspects of that environment.

FMI members believe that if this proposed ergonomics standard is adopted, it is likely to lead to significant changes in the way food and grocery products are distributed to consumers without any improvement in workplace safety. It is likely to cost jobs, reduce customer service and increase consumer prices. We recognize that these are strong statements, but we believe that they are justified and will be well-documented below.

PROCEDURAL ISSUES

Before commenting on the substance of the regulation, we would like to object strongly to the process OSHA is using in its attempt to push through a final regulation this year. Although the agency has been preparing an ergonomics regulation for many years, the proposal was not formally published until November 23, 1999. The public was initially only given 70 days to review the approximately 300-page proposal and its supporting materials (more than 50,000 pages). Just three business days before the close of the comment period, the agency announced a 30-day extension. This remains a woefully inadequate period of time to review and comment on such a massive collection of documents and on a proposal of greater magnitude and cost than any in recent memory.

This is especially true for food retailers and wholesalers. As OSHA has acknowledged, food distribution will be among the most affected industries by the proposed regulation; the rule affects every workplace and nearly every job in the industry. Yet, the public comment period began two days before Thanksgiving and ran through the Christmas and New Years holidays, the busiest time of the year for the supermarket industry. This time period was an especially trying one this year as considerable management time was devoted to Y2K preparations. As a result, there simply has not been enough time for our industry to fully analyze this proposed regulation and the supporting documents in the docket.

FMI has received copies of approximately 450 that our member companies and state grocers' associations faxed or mailed to Assistant Secretary Jeffress requesting an extension of the comment period. This massive response is unprecedented for our industry and represents our members' concerns about the substance of the rule and the agency's apparent disregard for fairness in its determination to promulgate a final rule this year. We believe that due process requires a real notice and comment period of 180 days, and further requires that the start of hearings be delayed until at least 90 days after the comment period has closed.

We are also concerned that OSHA is moving forward with a proposed regulation before the National Academy of Sciences (NAS) has completed the ergonomics study currently underway. FMI supported efforts in Congress to provide $1 million in funding for the NAS study with the hope that it would provide a comprehensive and objective evaluation of the scientific data on the causes of musculoskeletal disorders (MSDs), including repetitive-stress injuries. We are hopeful that the NAS study will help us all to gain a better understanding about the causes of MSDs and what can be done to alleviate them further.

We find it quite disturbing that OSHA is unwilling to review the results of this study before moving forward. We urge OSHA to withdraw the proposed regulation, and to refrain from any further efforts to move forward with a regulation until after the NAS study has been completed.

THE RULE IN GENERAL

The proposed Ergonomics Program rule is one of the most fundamentally misguided and ill-conceived rules ever proposed by any regulatory agency. It is unbelievably broad in scope and, at the same time, incredibly vague in its specifics. While purporting to be limited to jobs in manufacturing and manual handling, the expansive definition of the latter - along with the extension of the rule to any job where only a single MSD has been reported - means that just about every job and job site (even employees working at home, if OSHA has its way) will eventually be covered.

To fully understand the scope of the proposed rule, it is necessary to piece together the definitions of certain terms in the rule with the programmatic requirements. The proposal defines MSDs as "injuries and disorders of muscles, nerves, tendons, ligaments, joints, cartilage and spinal disc. . . .[not] caused by slips, trips, falls, or other similar accidents." MSD symptoms, according to the rule, include numbness, burning, pain, tingling, cramping, and stiffness.

Under the proposal, an MSD (e.g., joint pain or muscle stiffness) need not be caused by the job for the rule to be invoked; the job need only have "contributed to the MSD or aggravated a pre-existing condition." Thus, the proposal sets a very low threshold for when the rule is applicable.

Further, OSHA cites the following as ergonomic risk factors that must be considered as MSD hazards: force, repetition, awkward postures, static postures, contact stress, vibration and cold temperatures. Is there any job that does not include at least one of these factors? Therefore, once an employee complains, for example, of a backache or a sore shoulder, or knee or elbow, or any other sore muscle, joint or other body part, the rule inevitably will be triggered.

The implications for employers are monumental. While there are many elements to the required ergonomics program, the most fundamental one and the one that is most unrealistic and unfair is the requirement that the so-called "problem job" be fixed. The MSD hazard (repetition, awkward posture, static posture, etc.) must be eliminated, or at least materially reduced. An employer will only be deemed to have succeeded in fixing the "problem job" when no MSDs are reported in that or any similar jobs for three years. If at any time another MSD is reported, e.g., if another employee has an aching back or a strained shoulder, the employer must take further steps. It doesn't matter if that employee spent the weekend on the golf course or gardening or cutting vegetables or typing on a home computer; it doesn't matter if the employee has a genetic condition that causes the problem; and it doesn't matter if the workplace is exemplary and the injury rate is well below the industry average.

The zero tolerance for MSDs is perhaps the most outrageous aspect of the proposal. There are no concrete steps that can be taken to ensure compliance. The rule provides employers with no guidance on specific remedies for specific injuries. There are no specific abatement measures for compliance officers to impose. Employers are simply required to keep making changes in a mindless effort to eliminate MSDs, otherwise known as the aches and pains associated with the human condition.

OSHA HAS FAILED TO MEET ITS LEGAL BURDENS

While it is hard to imagine how a rule of this magnitude could ever be justified, OSHA has not come close to meeting its burden of demonstrating a need for the rule or for showing that alternative, less costly and less burdensome approaches would not achieve equivalent, if not better, results. FMI strongly endorses the comments of the NCE in this regard.

OSHA claims that the large number of MSDs requires that it take action. However, the agency has stacked the deck by defining MSDs in the broadest possible way, as noted above. Moreover, OSHA has lumped together all kinds of injuries that are completely unrelated to each other. Carpal tunnel syndrome developed by a meat cutter has no relationship to a sore back incurred by a beverage handler. An injury to an employee using a pneumatic power tool is not in any way analogous to a nurse's assistant's strained back.

If OSHA believes it has the scientific evidence to prove that certain factors related to particular jobs cause injuries and it has the scientific evidence to show that specific interventions will abate those injuries, then it should propose a rule that is rationally related to each of those specific problems. It is completely unreasonable to promulgate a rule that requires employers to eliminate all the strains and sprains and aches and pains in their workplace. And it is even more unreasonable to require this without telling employers how to do it.

In considering the need for this rule, OSHA has completely ignored the great strides that employers have made in reducing musculoskeletal and repetitive motion injuries and illnesses in the workplace. We are proud of the fact that the food distribution industry has led the way in this regard. According to the Bureau of Labor Statistics, grocery store injuries and illnesses have been reduced by 28 percent since 1989. This reduction is among the largest for all industries. According to the Bureau of Labor Statistics, repetitive trauma injuries among all industries have been reduced by 24 percent since 1994; they dropped 9.2 percent in 1998, alone, the most recent year reported. Repetitive motion injuries account for just 4 percent of the 5.9 million workplace injuries and illnesses.

This is a tremendous success story, and it was accomplished by the voluntary efforts of management and employees, working together to make our businesses safer places to work. FMI and its members have been very aggressive in seeking to curb MSDs. A decade ago, FMI formed an ergonomics task force composed of retailers, wholesalers, suppliers and equipment manufacturers to investigate issues specific to our industry and to seek solutions. The task force cooperated with researchers from the National Institute for Occupational Safety and Health and separately engaged scientific experts from Ohio State University to study various aspects of the retail environment. These studies have proved invaluable in evaluating ergonomic stressors in stores.

FMI has developed training materials, including educational videos and manuals, drawing on the above-mentioned research. In addition, we have held Ergonomics and Workplace Safety Conferences and have conducted numerous workshops on this issue. We have also worked with other industry associations to develop guidelines relating to shipping container size and configuration and have encouraged industry members to follow those guidelines. All of this activity by our industry, and others, has been done voluntarily and has led to the reduction of injuries described above. We have every reason to believe that these voluntary efforts will continue to reduce the number of injuries reported by our members if they are continued. The onerous and meddlesom program proposed by OSHA would be a strong disincentive to companies to continue these voluntary programs and might, in some cases, prevent employers from continuing their efforts.

OSHA's own analysis of the benefits of the proposed rule demonstrates that the extremely costly and overly burdensome proposed Ergonomics Program is no more effective than employers' voluntary efforts. Specifically, OSHA believes that 26 percent of MSDs will be averted after the rule has been in place for 10 years. As noted above, even without the rule in place, industry's voluntary efforts have resulted in a 24 percent reduction in repetitive motion injuries in only the last five years. Based on these facts alone, OSHA has failed to justify this proposed rule.

COST/FEASIBILITY

OSHA has grossly underestimated the costs of this rule. We support the comments of the NCE and the economic analyses of the National Economic Research Associates in this regard. Our own analyses of the OSHA cost estimates for grocery retailers and wholesalers lead us to conclude that the estimates for our industry are so unreliable and incomplete as to raise serious questions about the validity of any of the estimates presented by OSHA's so-called experts.

OSHA estimates that the total first year costs for grocery stores will be more than $334 million, and more than $158 million for wholesalers. OSHA estimates that the regulation would additionally cost grocery stores $195 million every year. Grocery wholesalers would incur additional costs of $73 million per year. Even these costs, which, as discussed more fully below, are vastly underestimated, would have a huge impact on the industry and on consumers. Grocery retailing is a highly competitive, low-margin business with net, after-tax profits of a little more than a penny on the dollar. In other words, for every dollar of sales, the store makes one penny. In order to recoup $200 million in costs, the grocery industry would have to sell an additional $20 billion of groceries … or raise prices by that amount. If OSHA truly believes that this level of cost could simply be absorbed, the agency and its staff lack any real understanding of a competitive economy.

In reality the effect on food distribution would be even greater. The short comment period has prevented us from doing an in-depth analysis of OSHA's estimates because the industry-specific information is not published in the Federal Register. Instead, it is buried in the supporting documents in the docket, which have not been available to FMI members. Even a cursory review, however, reveals serious flaws in OSHA's methods and conclusions.

For example, OSHA estimates that of the 130,000 grocery stores in the country only 30,000 have manual-handling jobs and 75,000 would be covered in the first year. 64 Fed. Reg. at 65998. How can that be? Every single grocery store in the country has jobs that involve manual handling. Items do not magically appear on shelves. Employers with manual-handling jobs must immediately comply with the regulation. Thus, the estimated first year costs would need to be increased to reflect the additional 55,000 stores that would be covered. Based on OSHA's cost estimates, an additional 55,000 stores would increase the first year estimates alone by $245,000,000. Similarly OSHA concludes that only three-quarters of grocery warehouses have manual-handling jobs. Since grocery warehouses are in the business of handling cases of groceries, it is hard to imagine how any would not be covered by the rule.

To provide just one real-world example of the gross underestimation OSHA has made of the true cost of implementing this regulation, FMI asked a member company that operates retail grocery stores and approximately a dozen distribution centers to estimate the costs it would incur in order for the distribution centers alone to attempt to come into compliance with the proposed standard. The company estimated that their worst-case costs would be $518,140,000; under the best-case scenario, the company estimated their costs would be $129,200,000. These are only costs for distribution centers and do not consider the additional costs to be incurred at retail grocery stores for this company. Perhaps most notably, this company and its consultants estimated that the effect of the proposed regulation would be to reduce productivity by 25 percent, not to mention the impact on consumers. This cost estimate, from just one company, clearly demonstrates the gross inadequacy of OSHA's annual cost estimate of $195,000,000 for the entire grocery industry.

The cost burden on small independently owned supermarkets will be particularly devastating. As mentioned above, retail grocery stores typically operate on a profit margin of about 1 percent. Small companies must be particularly efficient, cost-effective, and customer-friendly to compete successfully. OSHA estimates that 31,000 small firms in the grocery industry will be "affected" by the rule 64 Fed. Reg.at 66024 (Table VIII-5). For the reasons set forth above, we believe this is a gross underestimate. OSHA estimates that the annualized costs of the proposed standard for those 31,000 grocery stores will be 35.70 percent of their profits. In other words, more than one-third of these small stores' profits will be eaten up by compliance costs. This astonishing fact is acknowledged in OSHA's own documents and dismissed as unimportant. In reality, these costs would mean that many family-owned grocery stores would be forced to close their doors as a direct result of this rule. Retail grocers, especially small companies, simply cannot afford these regulatory costs. The result will be less competition, fewer shopping choices for consumers and fewer jobs. And because the true costs and the number of stores covered will be much higher than OSHA's estimates, the magnitude of the impact will also be greater.

FMI has received copies of numerous comment letters filed with OSHA from independently owned supermarkets throughout the country. These companies are strongly opposed to the proposed standard because of their concerns about the cost impact and what it will mean for the future of their businesses and their customers. We strongly urge that OSHA more closely consider the impact this regulation will have on these businesses, their employees and the communities they serve.

The most significant compliance costs will come from the ergonomic job interventions or job fixes. It appears that OSHA and its designated consultants have arbitrarily determined an average cost for job interventions for specific occupational groups and then in some fashion converted those costs into industry totals.

It is obvious that the estimates for job fixes in our industry bear little relationship to reality. Because just about every single job in grocery retailing and wholesaling involves risk factors, we believe every job will need to be fixed. And the jobswill need to be fixed repeatedly because there is almost no likelihood that MSDs as defined by OSHA will be completely eliminated in any job category. So OSHA's cost estimates, which are based on one fix per problem job, need to be multiplied by a factor of x, depending on how many times the job will need to be fixed.

In estimating the costs of job fixes, OSHA relies on the estimates of costs and productivity effects of scenarios described in its chapter on Technological Feasibility. Although OSHA's Expert Ergonomics Panel believed those scenarios would overstate costs and to understate labor savings, our review of the scenarios that apply to the food distribution industry leads us to the opposite conclusion. The costs are ludicrously underestimated and the savings are a fantasy. The suggestions in some cases are totally impractical. We believe a close analysis of these scenarios and the discussion of the conclusions of the so-called Expert Panel raise serious questions about this panel. Are these individuals reliable? Are their conclusions based on real-world experience? Do they have a vested interest in the outcome of this rule? These are questions that must be resolved before OSHA or a court can rely on its conclusions.

Turning to some specific OSHA scenarios, Scenario No. MH-69 addresses baggers in grocery stores. The scenario suggests two controls to reduce MSD hazards: raising the bagging stand and limiting the weight of bags to 15 pounds. The scenario suggests a cost of $50 for each of these controls, which will be $100 per check stand. There are approximately 300,000 check stands in supermarkets around the nation. Assuming arguendo that OSHA's cost estimates are accurate, the total industrywide costs would be $30 million simply for two controls for one job category.

The scenario estimates that these changes would increase worker productivity by 7.5 percent because of reduced fatigue. This is an astonishingly high number and it is impossible to determine how it was developed. In reality, the limit on the weight in bags would reduce productivity considerably and would reduce customer service.

How would these changes affect consumers? Would lines slow down as baggers weigh items as they go into bags? Will alarms go off when bags get too heavy? How much time will it take to unload overweight bags, and how much will that slow down the speed of checkout lines? What will baggers do with a 20 pound turkey or a 30 pound box of cat litter? We believe some stores would conclude that the lost efficiency, the hassle and the potential for fines would not be worth it, and they would tell customers to bag their own groceries.

FMI requested feedback from our member companies on the requirements suggested by MH-69. Following is one typical response:

Likely raising the bag stand would require raising the entire check stand, which would not be favorable to the customer, nor comply with the ADA [Americans with Disabilities Act]. Since the product is gravity-fed to the bagging accumulation area, it would be necessary to raise the front belt. The front belt is at a comfortable height for the customer at the present time. Replacement of the check stand would likely be necessary. The estimated cost per workstation is understated. If replacement is required, the cost could be as much as $3,000 per workstation plus installation costs.

Scenario No. MH-71 addresses front-end checkers in food stores. It also suggests two controls to reduce MSD hazards. These are to raise check stands and place keyboards on adjustable pedestals and to install adjustable grocery bag wells. The scenario suggests a cost of $500 for the first control and $250 for the second. Again assuming for arguments' sake that these estimates are accurate, the total industry cost for these modifications would be $225 million (300,000 check stands x $500+$250 ).

Together with the controls suggested in the bagging scenario, total industry costs for these so-called modest changes to check stands are $255 million. Remember, that OSHA estimates total grocery store compliance costs for the entire rule to be $195 million per year.

This scenario also does not address the feasibility of these changes in the real world. Raising the check stands might reduce the reach for some workers, but what about customers, especially disabled individuals. The ADA requires that counters be accessible to customers in wheel chairs. Would these modifications run afoul of the ADA?

One of FMI's member companies stated that "the estimated cost for check stand modifications and installation of adjustable bag wells is understated. I would estimate $1,000 per work station would be required," in addition to the $3,000 per check stand replacement cost noted under MH-69. We received similar comments from other companies.

Scenario No. MH-29 suggests that to limit the forceful exertions of selectors in grocery warehouses, heavy wooden pallets should be replaced with lightweight composite pallets. The scenario estimates a cost of $20 per pallet. That sounds modest. But this scenario and cost estimate is an excellent example of the failure of OSHA to understand the implications of what it is suggesting. While some pallets remain in one location, many pallets do not stay in one facility. Grocery products move by truck around the nation from manufacturing facilities to distribution centers to stores. Most of these products are shipped on pallets to facilitate handling. If OSHA is going to require the elimination of wooden pallets, it will mean a massive upheaval affecting every company in every segment of the grocery industry. The costs would be huge. And there would be other effects as well, ranging from serious fire-protection issues to environmental issues that would be raised by this change. Perhaps all this would be worth the effort if significant reductions in injuries would result. But would they?

FMI identified a member company that shifted from wooden pallets to plastic pallets in 1996-97. We requested input on that company's experience with this change. The company reports that this change did not result in a reduction in MSDs and in fact resulted in increased injuries. Following is part of the response we received:

Overall, the migration to plastic pallets has not been a benefit from an injury standpoint. At face level, the idea seems sound. However, the entire distribution system has been affected negatively by this control measure as demonstrated by the actual outcomes:

1. Increase in driver injuries.
   
2. Elimination of jobs in the pallet repair area.
   
3. Increase in collisions in the warehousing area.
   

Based upon the outcomes, OSHA is significantly understating the economic and noneconomic costs to employees and the organization. The $20 figure modifications, loss of productivity (restacking unstable loads) and injuries from other job functions.

The warehouse re-engineering modifications include the following:

1. Water/snow accumulation mitigation efforts in the warehouse. This has included renting additional storage trailers to keep plastic pallets dry.
2. Modification of pallet dispensers from wood to plastic.
3. Modification of forks to handle plastic pallets in a frozen environment. (Plastic pallets slide off forks in the frozen environment.)
4. Support straps had to be added to all trailers to add load stability so that plastic pallets won't fall over.
5. Additional shrink wrapping to counteract the load instability.

Taken to its logical conclusion, the proposed regulation would require the complete revamping of our nation's grocery distribution system. A study done for the Food Distributors International (FDI) estimates that the cost to restructure its members' distribution centers could be as much as $26 billion. The costs of remodeling the distribution centers run by supermarkets and the stores themselves would be far beyond that. And the costs to consumers would be intolerable. In sum, compliance with the proposed Ergonomics Program standard is not feasible for our industry or for our nation's consumers.

SPECIFIC PROVISIONS

Because of the limited amount of time we have had to review the proposed regulation, our members have not been able to perform a complete analysis of its impact. We do offer the following preliminary comments on some of the specific provisions in the proposed regulation.

As noted above, the proposal covers any employer whose employees work in "manual handling jobs." These are defined in Section 1910.901 as "jobs in which employees perform forceful lifting/lowering, pushing/pulling, or carrying," and in which "forceful manual handling is a core element of the employee's job." This definition is likely to involve most jobs in a typical supermarket, including warehouse lifting and retrieving; loading and unloading in the transportation of food products; stocking shelves, produce bins and refrigeration units in a retail store; scanning groceries at the checkout lane; bagging groceries, etc. Although the proposed regulation includes short lists of jobs that are or are not considered manual handling jobs, the proposed definition remains extremely vague. Individual companies are left to determine which jobs are covered because manual handling is a "significant part" of the employee's duties or because they "involve exertion of considerable force…." In practice, this definition will mean whatever OSHA compliance personnel say it means.

We strongly object to the fact that under the proposed regulation companies must establish a complete ergonomics program (as defined by OSHA) for each of these "manual handling jobs" whether or not there is evidence of an unusual level of injuries afflicting employees in these jobs. The regulation does not allow a company to consider whether the injuries that do occur are caused by job functions. In reality, MSDs are often caused by factors outside the workplace. For example, raking and bagging leaves at home over the weekend may cause an employee's back to ache. If the employee is in pain the next day as a result of raking leaves and, therefore, can't perform the usual shelf-stocking duties, the employer would still be required to redesign its ergonomic program and to take steps to "fix" the job. The regulation does not allow the employer to take the outside factor into account.

Many other provisions in the proposal are equally vague and ambiguous, leaving employers with little choice but to guess at how best to comply. Employers will have to take their best guess and hope that, if an OSHA inspector visits the business to review their ergonomics program, the company's interpretation of its responsibilities under the regulation will not differ from those of the inspector. Below are further examples of how the proposed regulation leaves food distribution companies and others uncertain about their obligations under the regulation. This is by no means a comprehensive or complete summary of the difficulties our industry will face, and, if given a reasonable comment period, we could provide a great many more examples. Clearly the ambiguity and resulting discretionary power left with compliance personnel fails to meet constitutional due process requirements.

Section 1910.908 purports to allow companies with an existing ergonomics program to "grandfather" their programs under the regulation. Unfortunately, most existing programs would not be able to qualify for this provision because the section requires that an existing ergonomics program meet essentially every requirement of the proposed regulation. For example, most existing programs do not contain the extensive record keeping required by the proposed regulation or the extensive training requirements.

Similarly, the so-called "Quick Fix" provision in Section 1910.909 does little to relieve employers from the burden of the proposed regulation. This section purports to allow employers to avoid setting up a complete ergonomics program if the employer is able to "eliminate MSD hazards" in a problem job by putting a control in place within 90 days and meeting a series of consultation and record keeping requirements. If the "quick fix" has not eliminated the "MSD hazards" within 120 days, the employer must set up a full ergonomics program. Further, if another MSD is reported within 36 months, the employer must set up a full program as outlined by the proposed regulation. In sum, to use this option, the employer must meet a stringent set of requirements, closely monitor the job for any possibility of further injury, and then hope that no further injuries occur within 36 months. As is the case with the underlying program, this section does not allow the employer to consider whether the second injury was caused by factors outside the workplace. In actual practice, employers are unlikely to find this option of any use.

Section 1910.912 is the Management Leadership and Employee Participation provision. It requires that employers communicate "periodically" with employees about the ergonomics program. This section is also very vague and once again leaves an employer in the position of not knowing when it is in compliance. Suppose, for example, that an employer distributes an annual ergonomics bulletin. How will the employer know whether an OSHA inspector will demand more frequent communication, such as once a week or once a month? Will it be acceptable to include the ergonomics information in a general health and safety bulletin or must it be a separate publication? This section also requires employers to provide those managing the ergonomics program with the "resources" necessary to develop, implement and maintain an effective ergonomics program. An employer may believe that it has provided adequate resources necessary for such an effort, but it will have no way of knowing whether OSHA will agree. The lack of objective, attainable standards in this section leaves employers at the mercy of OSHA inspectors. This section also states that the employer's policies should not discourage reporting MSD signs and symptoms. This broad principle sounds reasonable. But what does OSHA mean by this? In the preamble, OSHA cites examples of policies that may discourage reporting. These include a policy that requires rest at home without pay for those who report an injury; drug testing of employees who report injuries (although the agency states this is not in and of itself a violation); the withholding of overtime from those who report symptoms; and an incentive award program focused on low numbers of MSDs.

We submit that the policies that OSHA claims would discourage MSD reporting are all reasonable, appropriate policies and programs that are aimed at reducing injuries and protecting those who have them and their co-workers. A rule that discourages these policies will be counterproductive and is likely to lead to increased injuries. In truth, we cannot fathom how a rule aimed at reducing ergonomic injuries could even suggest that these programs are inappropriate.

Sections 1910.914-916 require "Hazard Information and Reporting." These provisions are among the vaguest in the proposed regulation and are certain to generate controversy and litigation about their meaning. Among other things, these sections require employers to provide current and new employees with "a summary of the requirements of this standard." Is a one-page summary adequate? Five pages? Ten? This section also could lead to extensive record keeping. Employers will be forced to maintain a detailed written record of every report of an injury, ache or pain, and how the employer responded in order to ensure that a complete record exists in the event an OSHA inspector asks to see such records.

Sections 1910.917-922 require "Job Hazard Analysis and Control." These provisions are the heart of the regulation and, along with the work-restriction protection, the most troublesome. In a nutshell, these provisions require employers to eliminate MSDs. While the specific terms in these provisions suffer from the same ambiguity as the rest of the regulation, the intent is clear. Employers must identify "ergonomic risk factors" and eliminate them by using "any combination of engineering, administrative and/or work-practice controls." These "risk factors" include such things as force, awkward postures, repetition, cold temperatures, vibration, static postures, etc. One of the more noteworthy examples is "sitting for a long time," which the regulation indicates could have such risk factors as awkward posture, static postures and contact stress. Does this mean that a company should require employees to get out of their chairs every 15 minutes to avoid the risk factor? How would such a requirement be enforced? Would the employer need to sound a bell every quarter hour to tell employees it was time to stand up? Or perhaps the employer should hire a monitor to walk the aisles to ensure that each employee stands at the appointed time?

One work activity listed is "vertical reach below knees or above the shoulders." The ergonomic risk factors listed for this activity are force, repetition, awkward postures, static postures and contact stress. If a company is expected to eliminate the possibility of these factors contributing to an injury, it could have a profound effect on the food distribution industry. For example, if a company is expected to eliminate any reaching below the knees, it would affect most distribution centers and stores where the bottom shelves are frequently below knee level and employees frequently reach down to pick up boxes. Conceivably, the proposal could require every grocery store and warehouse to remodel to eliminate the bottom shelf. While ludicrous on its face, the terms of this provision could force such an unimaginable result. Of course, an alternative to redesigning stores and warehouses would be mechanization. It would be far less expensive and more efficient for food distributors to replace workers with machines and to further mechanize their operations.

Another suspect work activity is "bending or twisting during manual handling;" the associated risk factors are force, repetition, awkward postures and static postures. In a grocery store, this is likely to affect those stocking shelves and bagging groceries, among many other jobs. As noted, the proposed regulation does not provide any specific guidance on how much repetition is too much. For example, should a company limit employees to bending to lift a box 25 times per hour? Fifteen? If fifteen is deemed to be the appropriate limit, what science is available to support the inherent assertion that lifting a box 16 times causes MSD's while lifting one only 15 times does not? And isn't it possible that one employee can lift a box 25 times per hour without risk of injury, but another might be at risk when lifting a box just 20 times per hour? The proposed regulation does not allow an employer to take into account strength and endurance differences among individuals.

The above discussion about only a few jobs in the food distribution industry represents a small sample of the dilemmas and problems food distributors will have with this regulation. A great many more jobs would be just as dramatically affected. We could outline the effects on these jobs if we had been provided with a reasonable amount of time to analyze the proposal in its entirety.

Pursuant to this section of the regulation, when an MSD is reported, the employer would have to analyze not only the injured employee's job or workstation, but the workstations for everyone doing that job and of those exposed to the same hazards. For a supermarket operator with several stores and hundreds or thousands of employees, this process is likely to be ongoing and never-ending. OSHA purports to limit the scope of this analysis by stating that not every job needs to be reviewed, but that the jobs analyzed must "represent the range of physical capabilities of the employees in the job." This means, for example, that if a cashier reports an MSD, the employer would need to look at the tallest and shortest worker doing that job. It would have to examine workers who wear glasses, perhaps even those who wear bifocals as well. Would the range of physical activities also include looking for the strongest and weakest employees? Will employee privacy rights be violated by these inquiries?

Once hazards are identified, employers must implement "feasible" controls. OSHA's discussion of this term in the preamble provides no meaningful guidance to employers. If the technology is available and it won't bring the company or industry to economic ruin, it is deemed "feasible." It is likely that the work practice or administrative controls would always seem feasible to the agency. So if a 15-minute break every hour doesn't completely eliminate MSDs, then the employer will have to try a 20-minute break and so on, until there are zero MSDs or zero work is being done, whichever comes first.

The "incremental abatement process" outlined in Section 1910.922, like the "quick fix" provision discussed above, does not mitigate the zero-tolerance approach of the regulations in any meaningful way. It requires the company take steps to materially reduce MSD hazards whenever an MSD occurs. Then, if any additional MSD hazard occurs in that job, further changes must be made. Every time an MSD occurs, new steps must be taken to "fix" the job. This will result in a constant, never-ending cycle in which employers are forever "fixing" jobs in a futile attempt to find the perfect environment in which no possibility exists for injury. This is a futile exercise to achieve an unattainable, if not fictional, goal.

We also have strong concerns about the formal ergonomics training program required in Sections 1910.923-928. These requirements are highly prescriptive, mandating that employers train workers in "problem jobs" on an extensive series of issues relating to potential MSD problems in their job, controls the employer has taken, etc. The focus here seems to be more on bureaucracy and paperwork than on real efforts to reduce injuries. Employers may be forced to design expensive manuals or booklets, arrange formal meetings and keep track of each employee's training history for the sole purpose of satisfying OSHA inspectors.

Under Sections 1910.929-935 "MSD Management," employers must, among other things, provide employees with access to a health care professional "when necessary" following the occurrence of an MSD. "When necessary" is another vague term that we fully expect will be interpreted by OSHA as meaning that treatment must be provided whenever a symptom is reported. This section is also unnecessarily prescriptive, outlining the specific information the employer must provide to the health care professional, the information the doctor must provide in writing, etc.

Pursuant to Sections 1910.934 and 1910.935, employers would be required to provide work-restriction protection, including up to six months of paid work leave, to employees suffering from MSDs. This has huge potential cost implications to both employers and the workers' compensation programs. Because the proposed regulation allows for no consideration concerning whether the MSD is a direct result of workplace functions, we believe this provision will lead to a dramatic increase in the reported number of MSD injuries that are not truly work-related, and this will drive up employers' compensation costs. This will also cause a dramatic shift of health care system costs to the employee compensation system. FMI joins in NCE's comments that address the unlawfulness and the inappropriateness of these provisions in detail.

The program evaluation povisions (Sections 1910.936-938) and the record keeping provisions (Sections 1910.939-941) seem to focus mostly on creating a paper trail and on making inspector's jobs easier rather than on making the workplace safer. Employers' time and attention would be better spent on actually addressing the needs of workers.

CONCLUSION

In summary, FMI strongly objects to the proposed regulation, and we urge that it be withdrawn. OSHA has failed to meet any of the statutory requirements necessary to promulgate a standard of this type. It has not shown the need for a regulation of such broad scope. It has not shown that the proposed regulation will reduce specific injuries. It has not shown that the regulation is feasible. It has not shown that the costs are outweighed by the benefits. And, it has not shown that alternative approaches cannot address the perceived problems at least equally as well. In fact, the regulation is not needed; it is not feasible; it will not reduce injuries; and it will impose huge costs that far outweigh any possible benefits to employees or society as a whole.

If OSHA can identify specific jobs with specific risk factors and with scientifically sound abatement procedures that have been proven to reduce injuries, it should issue a proposed regulation aimed at such specific situations. It should not attempt to proceed with this unprecedentedly broad, vague and unenforceable rule.

Sincerely,

Tim Hammonds
President and CEO