I-841 seeks to throw out ergonomics requirements

By Ralph Thomas
Seattle Times Olympia bureau

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But business leaders say state regulators have gone too far with their groundbreaking ways. Businesses large and small are waging an aggressive effort to block the Department of Labor and Industries' (L&I) ergonomics rule — the nation's first comprehensive regulation aimed at preventing workplace injuries caused by repetitive motions, heavy lifting and awkward working positions.

The rule would require all employers to identify all jobs that pose ergonomic hazards and then take whatever steps possible to reduce or eliminate those hazards. After failing to convince both the courts and the Legislature to spike it, business leaders have turned to voters.

Initiative 841, the only significant statewide measure on the Nov. 4 ballot, would repeal the rule and, just for good measure, bar the state from ever adopting another ergonomics rule unless required to by the federal government.

A business-led coalition called "Workers Against Job Killing Rules" will pour more than $1 million into its I-841 campaign. On the other side, labor unions — under the banner of "Working Families for Safer Jobs" — have spent more than $400,000 in their fight to defeat the initiative and save the ergonomics rule.

Initiative 841 What the initiative would do: A yes vote means no to the state ergonomics rule; a no vote means yes. If approved, I-841 would repeal the state's ergonomics rule and bar the state from adopting another rule unless required to by the federal government. What the rule says: The 18-page ergonomics rule requires all employers — public and private — to identify jobs that pose ergonomic hazards and then do whatever is "technologically and economically feasible" to eliminate those hazards. The state adopted its ergonomics rule but is not scheduled to start enforcing it for large companies in high-risk industries until July 2005. Most small companies have until 2008 to comply. A coalition of businesses sued to overturn the rule, but the lawsuit failed and is on appeal to the state Supreme Court. Who's for I-841? The initiative was sponsored by the Building Industry Association of Washington. Many other businesses and organizations are supporting the initiative, including the Association of Washington Business, the state Farm Bureau, Allied Daily Newspapers of Washington and the state Republican Party. Who's against I-841: The Washington State Labor Council and numerous local unions, Washington Association of Churches, numerous health-care professionals and the state Democratic Party.

The campaign has been contentious, with both sides accusing the other of distorting the facts or peddling outright lies about how the rule will work and how much it will cost. But what this really boils down to is a good old-fashioned tussle over government reach. Supporters of the ergonomics rule say it is needed because many employers are not doing enough on their own to protect workers.

"The only way we're going to get the building industry to do it is if they are forced to through a regulation," said Rick Bender, president of the Washington State Labor Council.

Every year in Washington, more than 50,000 people suffer work-related "musculoskeletal" injuries such as carpal-tunnel syndrome, shoulder tendinitis and back strain, according to the state. Such injuries account for an estimated 40 percent of all workers'-compensation costs.

"We know these injuries are preventable and we know how to prevent them," said Michael Silverstein, assistant director of L&I and one of the main architects of the new rule. "This is the right thing to do."

But opponents view the ergonomics rule as an extreme example of bureaucratic interference. They argue businesses should be allowed to craft their own ergonomics programs, and they warn that the cost of complying with the state rule will wipe out thousands of jobs.

"It's the worst rule I've ever seen," said Tom McCabe, executive vice president of the Building Industry Association of Washington (BIAW), the group leading the charge on I-841. "It's too complex, too vague and it gives the bureaucrats way too much authority."

Grocery industry

The ergonomics rule was intended to help people like Judy Middleton, a 60-year-old grocery checker from Kent. Middleton started working as a checker nearly 40 years ago and still puts in at least 80 hours a month to keep her health insurance.

With all of the bending, lifting and repetitive motions they have to do, grocery workers are among those most vulnerable to ergonomic hazards.

Over the past decade, Middleton said she has undergone surgeries for two hernias and for carpal-tunnel syndrome in both wrists. "My arms were sleeping and I wasn't," she said.

She had to miss six weeks of work for each of the carpal-tunnel operations.

Middleton, who until recently was oblivious to the fight over ergonomics, said she isn't sure whether it's something government should be trying to enforce. But she is convinced there are things grocery stores can do, such as better designs for check stands, to reduce the risk of injury.

At the QFC store where she works, checkers must lift items out of the customer's shopping cart and slide them across the scale or scanner. "All of it," she said. "The pumpkins, the turkeys, the watermelons, the six cases of beer. You ache when you go home."

Grocery-chain executives acknowledge there are ways to reduce injury risks. But they say it is unclear how the state's rule will apply to them, and they fear zealous government regulators will use it to force stores to install expensive new equipment.

"You're plunging into a world of uncertainty," said Michael Read, vice president of WinCo Foods, which has six stores in Washington. "I wish I could tell you what this rule will do to us, but nobody knows."

Efforts tried in the past

The state adopted its ergonomics rule in May 2000 and was to start enforcing it at large companies last July. But amid howls of protest from businesses, Gov. Gary Locke ordered a two-year delay. Now inspections and enforcement for large companies won't begin until July 2005, and most small employers have until 2008 to comply.

The federal government has tried twice in the past 10 years to adopt an ergonomics rule, but efforts were struck down in Congress. California is the only other state with a rule, but it is not a prevention-based rule like Washington's; it kicks in only after injuries occur.

A decade or so ago, being "ergonomically correct" meant doing things like stacking a couple of old phone books under your computer monitor so that you could avoid craning your neck to look at the screen.

The state's rule takes ergonomics to an entirely new level.

Under the rule, employers are required to identify "caution-zone jobs," those that exceed one of 14 activity thresholds identified by the state.

For instance, caution-zone jobs include any where you work with your hands above your head or work with your neck or back bent more than 30 degrees for more than two hours per day; perform "intensive" keying for more than four hours per day; or use high-vibration tools such as carpet strippers, jackhammers or chain saws for more than 30 minutes per day.

Based on demonstration projects with a variety of employers, L&I estimates as many as 30 percent of all jobs in the state are in the caution zone.

For workers in caution-zone jobs, employers must provide basic ergonomics-awareness training. Employers then have to take a closer look at all caution-zone jobs to see which ones pose hazards that need to be addressed.

The rule includes a six-page, illustrated checklist to help employers identify hazards that might cause "work-related musculoskeletal disorders."

For example, the rule deems it hazardous for people to work with their hands above their head or with their neck bent more than 45 degrees for more than four hours total per day, or to work with their wrist bent forward 30 degrees for more than three hours total per day.

The state estimates about 12 percent of all jobs exceed one or more of the hazard standards. "Those are the jobs that are going to have to be fixed," said L&I's Silverstein.

The rule essentially leaves it up to employers to figure out how to fix hazards, though L&I inspectors will offer suggestions. During the department's demonstration projects, regulators suggested solutions such as rotating people to different jobs, using more than one person to perform heavy or frequent lifts and using machines instead of people for certain tasks.

BIAW's McCabe calls the rules "Kafka-esque." He envisions managers standing around with stopwatches, trying to figure out exactly how much time each worker spends bending, squatting or working with his or her wrists at a certain angle.

He particularly likes to poke fun at a worksheet employers must use for any job that involves lifting more than 10 pounds. The worksheet, which resembles a cross between an IRS tax form and a page out of Gray's Anatomy, has diagrams, charts and equations that employers must use to calculate whether an employee is lifting too much weight, too often.

Mark Shaffer, a BIAW member who owns a drywall company in Lacey, Thurston County, figures all of the jobs that his 32 employees perform will be considered hazardous under the rule. In a typical day, for instance, one worker might install 25 panels of wallboard, lifting each panel two or three times. A panel of the thickest type of wallboard weighs 110 pounds.

Shaffer said he spent more than two years working with L&I on a demonstration project but still has "no idea" how he will be able to comply and still turn a profit. He said his employees all perform specific trades, so job rotation is not an option. And he said no one has come up with a "robot" for putting up Sheetrock.

Shaffer said he trains employees how to "work smart" and has some who have been doing the job 20 years or more.

"You're bound to pull a muscle now and then, you're bound to get a kink in your neck every once in a while," said Shaffer. "Because you're actually doing work."

What is feasible?

In their campaign to persuade voters to toss out the rule, businesses have frequently warned that they will be forced to cut many employees to part time to comply with the state's time limits for certain tasks. Last spring, one I-841 campaign worker even suggested that Mariners catcher Dan Wilson would exceed the rule's squatting limit.

Defenders of the ergonomics rule label such arguments blatant scare tactics.

The rule states that employers must reduce hazards, but only to the degree that is "technologically and economically feasible." If employers have exhausted all options, the rule says they cannot be required to reduce their employees' hours.

Of course, determining what is "technologically and economically feasible" could get dicey.

Silverstein said it will be the "employer's call" whether a fix is feasible. And if the department decides to challenge that call, he said, the state bears the burden of proof.

"What does that mean?" replied Read, the WinCo Foods executive. "Do we have to open our books to them? Will they say, 'You've got this pot of money and, instead of adding three new stores and creating 600 jobs, we want you to spend it this way'?"

Business leaders say the rule will cost employers more than $725 million a year. It's a number Silverstein and others challenge as a wild exaggeration.

The $725 million figure came from a study commissioned three years ago by the Association of Washington Business, a study the state contends was rife with faulty assumptions.

According to a cost-benefit analysis by the state, it will cost employers about $80 million to comply. But those costs would be more than offset because the rule would generate $340 million in savings due to fewer injuries, the analysis concluded.

Navy models Washington

While business leaders say the ergonomics rule is based on shaky science, supporters — who see it differently — got a boost late last week after learning the Navy has adopted Washington's ergonomics standard.

The state's worksheets for identifying caution-zone jobs and reducing hazards are included almost verbatim in the Navy's workplace-safety manual.

"It's a good tool," said Cathy Rothwell, an ergonomics program manager with the Navy. "We've gotten a lot of positive feedback from the field. They find that it's pretty easy to use and it's much better than what we had before."

Many Washington businesses are sold on the importance of ergonomics as a way to prevent injuries and cut costs. Boeing, for instance, has had a formal ergonomics program for more than 10 years.

But you'll be hard-pressed to find many business people who will speak in favor of the state's rule.

Chuck Cadena, a spokesman for Boeing, said his company's ergonomics program is tailored for airplane building and he doubts it would be of much use to other industries.

"One has to ask how the state can mandate an ergonomics program for industries as diverse as aerospace, software and agriculture," he said.

But Kate Stewart, co-owner of the Northwest's largest ergonomics-consulting firm, said many companies will continue to do nothing unless forced to by the state. She said sometimes the government has to step in to protect people, as it did when it began requiring everyone to wear seat belts.

"What if half the population had just said, 'I'm not going to do that'?" asked Stewart. "Without regulation, we would have had a lot more deaths on the highways."

Ralph Thomas: 360-943-9882 or rthomas@seattletimes.com

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