STATEMENT OF SECRETARY ELAINE CHAO
U.S. DEPARTMENT OF LABOR
BEFORE
THE SUBCOMMITTEE ON LABOR, HEALTH AND HUMAN SERVICES,
AND EDUCATION OF THE
SENATE APPROPRIATIONS COMMITTEE
APRIL 26, 2001

Mr. Chairman, Members of the Subcommittee, thank you for inviting me to testify about the need to reduce musculoskeletal disorders in America's workforce. With me today is Joseph Woodward, Associate Solicitor for Occupational Safety and Health.

When I testified before the Senate Health, Education, Labor, and Pensions Committee at my confirmation hearing three months ago, I spoke about the challenges of preparing America's workforce for the emerging realities of the 21^st Century workplace. The Department of Labor must remain in step with the dramatic changes in our economy to fulfill its responsibilities to our workforce.

To meet this goal I have established five priorities for the Department:

• to ensure the safety of every workplace;
   
• to guarantee an honest day's pay for an honest day's work;
   
• to fight discrimination;
   
• to protect workers from coercion and intimidation; and
   
• to make sure workers' pensions are protected.

That first goal listed above, to ensure the safety and health of every workplace, is my top priority; it will remain so throughout my tenure as Secretary of Labor. But I am also committed to bringing the workforce of the 21^st century in step with the needs and the realities of our modern economy. It is clear that the workplace of today is so very different from the workplace as it existed when the Department of Labor was created in 1913. Today's employees are better compensated, better treated, and work fewer hours. They are also better trained, more productive, and more knowledgeable. We must continue training a more productive workforce in order to continue producing a better-compensated workforce. In that vein, I cannot resist a brief commercial for the Department's upcoming 21^st Century Workforce summit, to be held at the MCI Center on Wednesday, June 20 of this year. You are all invited to join us at what promises to be an extremely productive and rewarding day.

The workforce of the 21^st century is not only better off financially today than it was a century ago; it is also far better off from a safety perspective. In 1913, the year the Department was founded, BLS documented 23,000 industrial deaths among a workforce of 38 million people -- equivalent to a shocking 61 deaths per 100,000 workers. In 1999, the latest year for which figure are available, BLS reported 6,023 deaths, among a workforce of 134 million people, or fewer than 5 deaths per 100,000. Fewer, but still too many.

These numbers demonstrate that we have made great strides in improving worker safety over the last century. The Department of Labor, as well as our nation as a whole, should be commended for its commitment to improving worker safety. But these improvements also demonstrate that the new century, and the new workforce, require a new approach to the safety needs of the American labor force, an approach based on cooperation and prevention, rather than the antiquated, adversarial approach of years past.

OSHA has a finite budget of $425.4 million in FY 2001. Securing the cooperation of employers and employees can help us to realize a substantial return on our resources. For example, several employers recently shared with me how they have implemented their own ergonomics program - some with the assistance of OSHA's consultative services. The Administration asks that OSHA place a greater emphasis on preventing injuries through compliance assistance and cooperation, such as education, training and technical assistance programs, rather than relying on command-and-control enforcement.

Because we are in a new century and facing new kinds of workforce issues, it is very important that the Department of Labor proceed very carefully on the ergonomics question. As we begin this new century, it is important to bring the stakeholders together, work on creating a common knowledge base and a clear recognition of the need for a consensus approach to this issue.

Timeline

Since the Department has seemingly been looking into this issue for so long, it might be useful to lay out some of the history, to give everyone, the Congress and the American people a sense of the timeline, the controversy, and the activities over the last twenty years. As you all know, last month, under the Congressional Review Act, Congress repealed OSHA's ergonomics standard. In signing the repeal, the President emphasized that this Administration supports activities that will address the critical challenge of reducing musculoskeletal disorders.

The repeal is only the latest action in the Department's two-decade history with this issue, dating back to the hiring of the Department's first ergonomics specialist back in 1979. You may be interested to know that that individual remains a valued Department of Labor employee.

Since then, OSHA has been working steadily to determine the best possible position for the Department of Labor to adopt in order to ensure the health and safety of the American worker. As the history shows, the Department and Congress have been operating on a collision course for a number of years now, and this movement forward without a consensus has put us in the predicament we are in today. At this point it would be appropriate to submit into the record a timeline covering some of this history.

The timeline I have just submitted is very useful in laying out the history of the ergonomics standard. This history helps demonstrate why the original standard failed - the rush to action, the lack of consensus, and the continual forward movement despite repeated congressional expressions of disapproval. This history makes it clear why we need to take our time and to achieve a greater level of consensus before proceeding.

Why Ergonomics Failed

It is vitally important that we avoid a repeat of the last ergonomics standard. It would be wise to consider the factors that preceded last month's vote by Congress before charting a new course. OSHA should not rush when producing a new, comprehensive approach to ergonomics. Last year, OSHA was asked to complete promulgation of the previous standard in an unreasonable period of time. Many have stated that this was a standard that began in the late 1980's under former Secretary of Labor Elizabeth Dole. Now, we know that the Department actually began looking at this issue in 1979. We also know, however, that the new proposed rulemaking was announced in November 1999 and made final in November 2000. Within that same 12-month period, OSHA received over 11,000 written comments on this rule, making up 188,547 pages. Piled on top of each other, these comments and supporting documents would be 78 and a half feet high. In fact, standing on top of this stack without a safety harness would probably constitute an OSHA violation.

These thousands of pages of documents include complex scientific and mathematical analyses that only experts can understand. As you can see, this display illustrates just how complex this issue really is, and how much interest was generated by the last proposal. The rush to make the standard final, however, forced OSHA to rely heavily on contractors to assist in the review of these documents. The government has a responsibility to listen to the people, especially the regulated community.

Cost, scope of coverage and state jurisdiction were also concerns of the previous standard. The disparity between OSHA and private sector cost estimates approached $100 billion. As a result, the Department will consider having future cost estimates reviewed by an independent entity. The previous standard attempted to cover a large number of businesses. The Department could help lower the overall cost by focusing on high-risk occupations. State jurisdiction should also be preserved by permitting States to administer workers' compensation programs without federal intervention by OSHA.

Department Activities Since CRA

In determining how best to proceed from this point, it is best to take advantage of the expertise and experience of all parties involved in the issue. Since becoming Secretary, representatives of unions, employers, safety and health professionals, Congress, and members of the medical and scientific communities have all come to the Department to share their thoughts on how to develop an effective strategy to further reduce -- and eventually eliminate -- these injuries. The OSHA career staff also provided a brief on the tools currently available under the Occupational Safety and Health Act. I look forward to continuing discussions about the best method for balancing the needs and concerns of management and labor while improving the health and safety of America's workers.

Some of the groups with whom we have met regarding this issue during my short tenure as Secretary of Labor include:

• The president & workers from the United Commercial and Food Workers Union
   
• The AFL-CIO
   
• The Service Employees International Union
   
• The United Brotherhood of Carpenters & Joiners
   
• The United Brotherhood of Teamsters
   
• The Hotel Employees & Restaurant Employees International Union
   
• The Frozen Food Association
   
• The American Occupational Therapy Association
   
• The Food Marketing Institute
   
• The American College of Occupational and Environmental Medicine
   
• The American Society of Safety Engineers

In addition, we have also had extensive and multiple briefings with the dedicated career staff at OSHA to discuss the Department's activities and options on ergonomics.

Finally, I would add that I am especially pleased to appear here before you today. I consider meeting with Congress to be an important part of listening and learning process on this subject.

One thing is clear from these meetings: there is no consensus on the ergonomics issue. The stakeholders who have come to the Department of Labor to discuss ergonomics are coming from completely different positions, ranging from those who want no action to those who thought that the previous rule did not go far enough. In fact, after my testimony, you will hear from a number of other witnesses who I expect will demonstrate the full range of these widely divergent points of view. And therein lies the problem. This diversity of opinion suggests that precipitous action is not the wisest course at this time. If we want to find more common ground on this issue, we will need to engage in more discussion and analysis, and we will need more data.

Principles

That said, we still do know a lot, and enough to begin thinking about the kinds of approaches that could work, and more importantly, the starting point from which we want to launch further activities. If we are to find common ground, it is important that there is at least general agreement on certain facts and philosophies before we reengage in the process that was reversed last month with the passage of the CRA resolution. A great deal of resources, both in and outside the Department, went into creating the ergonomics standard. Under the CRA, the Department is now precluded from producing any standard that would be "substantially the same." Before we expend valuable - and limited - resources on a new effort, we should agree on general principles that the Department will follow in creating a new ergonomics approach that fits the new 21^st century workforce. These principles will provide a vital starting point for common understanding, a point from which we can hope to find common ground:

1. Prevention - Everyone can agree that reducing occupational injuries is our top priority. Fortunately, there is good news on this front. Recently, the Bureau of Labor Statistics (BLS) released new data on job-related injuries and illnesses for 1999. The data show that there has been a continuing decline in musculoskeletal disorders that result in employees missing time from work. Employers reported 582,300 such injuries in 1999, down from 592,500 in 1998 and from more than 763,000 in 1993. This 25 percent decline has occurred even though more Americans were in the workforce. While I'm encouraged by this progress, I also recognize that musculoskeletal disorders remain nearly one-third of all work-related injuries. The Department should examine why these rates continue to decline, even in the absence of a specific ergonomics standard and while the number of annual OSHA inspections remains steady.

Clearly, more needs to be done to address the hazards that cause these injuries. My goal is for the Department to develop an approach that will focus efforts on preventing injuries before they occur, rather than simply reacting after workers are hurt. We would much rather prevent an injury than fine an employer in the aftermath of that injury.

OSHA has a finite budget of $425.4 million in FY 2001. It is impossible to inspect every workplace with this limited budget. This money is more effectively spent, and protects more workers, if it is focused on prevention efforts. Prevention, education and training are the most effective methods for providing the maximum amount of protection to the greatest number of workers.

2.   Sound Science - Any Departmental action should be based on the best available science and research. In the previous Administration's rush to issue an ergonomics standard, they acted before the completion of a National Academy of Science study that would have provided all stakeholders with more information on the ergonomics standard. In the future, the Department should make sure that it makes determinations based on the best available science.

3.   Incentive-Driven - OSHA has stated that 95 percent of employers are acting in good faith. Employers understand that best safety practices are good for business and are in the best interests of their workers. Any approach should be centered on cooperation between OSHA and employers, rather than an adversarial relationship.

OSHA's efforts with the meatpacking industry over the last 10 years demonstrate how successful a voluntary approach to ergonomics can be. In 1990, OSHA published ergonomics guidelines for the red meat industry, "Ergonomics Program Management Guidelines for Meatpacking Plants." One of the reasons the Agency chose to publish guidelines for this industry was the unacceptably high injury rate to its workers -- 20.2 cases per 100 employees. Many of these injuries were musculoskeletal disorders.

Many firms in the meatpacking industry used these guidelines and voluntarily implemented programs in an attempt to decrease ergonomic injuries and lower their annual workers' compensation premiums. Over the last 10 years, the case rate of total recordable injury cases dropped 39%, from 20.2 cases per 100 full time workers in 1989 to 12.3 per 100 full-time workers in 1999. The case rate for injuries involving days away from work also dropped substantially over this period, from 6.5 per 100 full-time workers to 2.0 - a decrease of 70%.

Although these guidelines initially arose from an OSHA enforcement action, this experience does demonstrate the potential effectiveness of voluntary, industry-specific ergonomics suggestions, especially in industries where the prevalence of musculoskeletal disorders is greatest.

4.   Flexibility - We must recognize the unique nature of individual workplaces -- avoiding an unworkable one-size-fits-all approach. The comments DOL has received demonstrate that one of the biggest weaknesses of the failed standard was its universal nature. Every workplace is different and will need different tools and approaches to prevent ergonomic injuries.

5.   Feasibility - Small businesses complained that the cost of the previous standard, estimated by the Department at upwards of $4 billion, and by private sources at up to $100 billion, would have imposed a crushing burden on them. Small businesses need the Department to recognize the costs of compliance and the economic constraints faced by small business.

6.   Clarity - The ergonomics standard took up over 600 pages, including preambles and appendices in the Federal Register. While the standard represented only a portion of these, small business owners faced with the entire 600 pages of supporting documents were understandably frightened. Small business owners lack the legal resources to understand what is required to comply with complex regulations. As a result, any approach to ergonomics must include short, simple, and common sense instructions for employers and their employees.

What's Next?

The Department of Labor understands that there is some Congressional interest in addressing ergonomic injuries through legislation. We ask for your patience. This is a new Administration. We have made it our priority to review and understand this issue by taking the time to meet with stakeholders, listen carefully to their concerns and construct principles that guide us to a comprehensive resolution. While the Department is making significant progress, it will take time for us to effectively complete our goal.

Defining the best, comprehensive approach for ergonomic injuries is not a simple process. Occupational physicians explain that ergonomics involves soft tissue - including tears, scarring or inflammations, which can all be generated in places other than the workplace. While the Department is focused on addressing ergonomic injuries acquired on the job, determining where a worker developed a tissue strain is still subject to much debate. There is no set formula. No table exists. There is no equation that permits us to simply plug in a worker's injury and instantly determine its history. Because of the great difficulty of identifying many ergonomic injuries and establishing causality, these kinds of cases can require more investigative resources than traditional workplace injury cases.

The Department of Labor wants to work with Congress in charting the best course of action. The Department is here today because it is committed to providing necessary protections to workers against ergonomic injuries. We applaud you, Mr. Chairman, for holding this hearing, and look forward to working with you and hearing any suggestions you have for providing a sufficient remedy.