OSHA would ban cookie-lifting

By Vin Suprynowiz
web posted June 19, 2000

In what is being called a "defining test of House sentiment on the issue," the House of Representatives voted 220-203 on June 8 to block the Occupational Safety and Health Administration from instituting new proposed "ergonomics" regulations -- rules which would require workplaces throughout the nation to be redesigned on the theory that typing causes carpal tunnel syndrome, and so forth.

The vote split largely on partisan lines, with most Republicans voting to bar OSHA from putting the proposed new rules into effect, while most Democrats want OSHA to go to town.

"Maybe the Republicans would recognize ergonomics injuries if we applied them to tennis and golf," sneered Rep. George Miller, D-Calif.

President Clinton could still veto the "cease and desist" order. But to do so the president would have to reject the entire $339.5 billion health, education, and welfare spending bill to which it is attached.

The Labor Department estimates 1.8 million workers each year suffer injuries related to overexertion or repetitive motion -- and that a third of those are injured seriously enough to be forced to take time off from work.

The proposed federal rules would cover an estimated 27 million workers. Advocates argue the government needs to take a larger role in preventing repetitive-motion injuries, "ailments that force thousands of American workers off the job with aching muscles, tendons and joints."

And as was the case when the workplace police were lobbying for the Americans with Disabilities Act a few years back, administration officials insist many of the proposed fixes -- "some as simple as adjusting the height of a desk or a chair" -- would be quick and cheap.

Business owners reply the regulations could cost employers uncounted billions while giving government too much power to meddle in key business decisions.

Fortunately, OSHA has already brought some court cases which provide concrete examples against which to measure these conflicting claims.

In the Beverly Enterprise case, OSHA sought to prevent nursing home employees from lifting patients. "Despite a month-long trial and a parade of OSHA experts, a judge found that 'There is no reliable epidemiological evidence establishing lifting as a cause of [lower back pain]' and that 'Science has not been successful in showing when and under what circumstances lifting presents significant risks of harm,' " writes Eugene Scalia, a labor and employment attorney in Washington D.C. and author of the Cato Institute policy analysis "OSHA's Ergonomics Litigation Record: Three Strikes and It's Out."

Seeking to correlate repetitive motion with injuries in a 1992 study of a major telecommunications firm, the government actually found complaints went down among workers who worked more overtime. "In other words, more repetitive motion meant fewer complaints," attorney Scalia reports.

In a 1998 decision in the Dayton Tire case, a judge found OSHA's expert witnesses failed to account for other possible causes of workers' reported ailments, such as sports. "The judge deemed OSHA's methods 'junk science' by the standards established in the Supreme Court's 1993 Daubert decision, and also found repeated inconsistencies among OSHA's own witnesses: Each of OSHA's supposed experts had a different theory about what made a job dangerous and what would fix it," Scalia reports.

OSHA looked even sillier in the 1997 Pepperidge Farm case. In that case, Mr. Scalia writes, "OSHA alleged that workers faced 'death or serious physical harm' from lifting the top of a sandwich cookie from one assembly line and placing it on the bottom of the cookie on another assembly line.

OSHA also said it was dangerous to use one's thumb to flick a paper cup onto a conveyor belt and then place a cookie in the cup. It ordered the company to increase staffing, slow assembly line speeds, increase rest periods or simply automate the entire operation."

(Paging Alexis Herman; paging John Sweeney -- Mr. Sweeney, please pick up Line 1.)

"But at trial OSHA could not demonstrate that any of those measures was a feasible and effective means of reducing musculoskeletal disorders at the worksite."

Now, "instead of backing down after those embarrassing losses, OSHA wants to entrench the questionable science of ergonomics as a permanent rule," Mr. Scalia concludes. "But no agency should be permitted to impose on the entire American economy a costly rule premised on 'science' so mysterious that the agency itself cannot fathom it."

"When OSHA says 'Trust us, we'll enforce it reasonably,' -- well, we don't trust them," agrees Randel Johnson, a vice president of the U.S. Chamber of Commerce.

Come now, boys, haven't you learned by now? They're from the government ... and they're here to help.

Vin Suprynowicz is assistant editorial page editor of the Las Vegas Review-Journal. His book, "Send in the Waco Killers: Essays on the Freedom Movement, 1993-1998," is available at $24.95 postpaid by dialing 1-800-244-2224; or via web site http://www.thespiritof76.com/wacokillers.html.

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