ConvoTracker: Ergonomics: On the Horizon?

Editor’s Note: Each Tuesday we feature “the ConvoTracker”, a guestpost from someone answering the question ‘What’s an important issue in the news and why?” This week The Conversationalist is proud to have Michigan Review editor-at-large Jonathan Slemrod.

Jonathan Slemrod is the Editor-at-Large of The Michigan Review, the conservative/libertarian journal of campus affairs on campus, where he writes on Congress and regulation.

There are plenty of reasons for the business community to be wary of Washington these days: employer mandates in the recently-signed health care bill, the Employee Free Choice Act which rearranges the rules of union organization in the workplace, and regulation of carbon dioxide through the Clean Air Act, which could subject millions of small businesses to expensive permitting processes. Add another one to the list: the release of a federal “ergonomics” standard.

Ergonomics standards are intended to reduce musculoskeletal disorders (MSDs), defined by the Occupational Safety and Health Administration (OSHA) as “an injury or disorder of the muscles, nerves, tendons, joints, and cartilage and spinal discs.” Think of industries with repetitive-stress motions like meat processing, poultry, and grocery stores. With an ergonomics standard, employers are liable for MSDs caused in the workplace. Just one complaint triggers a re-design of the workplace based on strict OSHA guidelines. The difficulty, of course, is in determining how much of an MSD was caused in the workplace, and not by something genetic or an activity outside of work.

The Clinton administration tried to play the ergonomics game before and failed. In fact, one of President George W. Bush’s first moves in office was to sign a repeal of the Clinton-era standard through the Congressional Review Act, a 1996 law which gives Congress an expedited path to reconsider agency-level regulation. The battle was a classic lobbying saga between big business and big labor, with business groups retaining high-profile lawyers like Eugene Scalia (son of Supreme Court Justice Antonin Scalia), and the AFL-CIO launching a grassroots “Hands Off the Ergo Standard” campaign. In the end, six Senate Democrats joined Republicans in voting for repeal, some of whom are still around: Max Baucus (MT), Blanche Lincoln (AR), and Mary Landrieu (LA).

The Obama administration hasn’t yet released an ergonomics standard. But some worry that a recent revision to annual employer surveys requiring that employers record MSDs is the first step in a piecemeal approach towards top-down regulation.

The president is going to need the support of both the business community and moderate Democrats for much of his agenda. He would be wise to consider the effect that pushing new OSHA ergonomics mandates would have on his relationship with these key constituencies. It’s safe to say they won’t be happy.

–Jonathan Slemrod