Legislature(2001 - 2002)
04/10/2002 08:35 AM Senate ARR
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
JOINT COMMITTEE ON ADMINISTRATIVE REGULATION REVIEW
April 10, 2002
8:35 a.m.
HOUSE MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Jeannette James
Representative Joe Hayes
HOUSE MEMBERS ABSENT
All House members present
SENATE MEMBERS PRESENT
Senator Robin Taylor, Vice Chair
SENATE MEMBERS ABSENT
Senator Lyda Green
Senator Georgianna Lincoln
COMMITTEE CALENDAR
Proposed Regulations on Occupational Safety and Health Including
Ergonomics
PREVIOUS ACTION
No previous action to record
WITNESS REGISTER
FRANK DILLION, Executive Vice President
Alaska Trucking Association
3443 Minnesota Drive
Anchorage, Alaska 99503
POSITION STATEMENT: Expressed the need for the Department of
Labor & Workforce Development to wait for the new federal
proposals and regulations before moving ahead with state action.
THYES SHAUB
National Federation of Independent Business
217 Second Street, Number 206
Juneau, Alaska 99801
POSITION STATEMENT: Testified in opposition to the proposed
draft regulations.
ED FLANAGAN, Commissioner
Department of Labor & Workforce Development
PO Box 21149
Juneau, Alaska 99802-1149
POSITION STATEMENT: Discussed the proposed draft regulations.
RICHARD MASTRIANO, Director
Division of Labor Standards & Safety
Department of Labor & Workforce Development
PO Box 107021
Anchorage, Alaska 99510-7021
POSITION STATEMENT: Provided additional information regarding
the proposed draft regulations.
NEIL MACKINNON, President
Alaska Laundry & Cleaners
1114 Glacier Avenue
Juneau, Alaska 99801
POSITION STATEMENT: Expressed concerns with the proposed draft
regulations.
PAM LaBOLLE, President
Alaska State Chamber of Commerce
217 2nd Street
Juneau, Alaska 99801
POSITION STATEMENT: Related the findings of a National Academy
of Sciences report.
KAY SLACK, Private Business Owner
(No address provided)
POSITION STATEMENT: Expressed concerns with the proposed
regulations.
MARY LOU JOVICH, Occupational Therapist;
Healthcare Professional
(No address provided)
POSITION STATEMENT: Indicated the need for these proposed
ergonomic regulations.
STEVE TROSPER, Safety Coordinator
Local 959, Teamsters;
Safety Representative, Alaska Petroleum Joint Crafts Council
(No address provided)
POSITION STATEMENT: Testified that these proposed regulations
would actually save businesses money.
SHAWN SMITH, McGee Industries
(No address provided)
POSITION STATEMENT: Expressed concerns with the proposed
ergonomic regulations.
MEERA KOHLER, President and CEO
Alaska Village Electric Co-op
(No address provided)
POSITION STATEMENT: Urged the committee to do what it could to
ensure that these regulations aren't implemented without a
comprehensive review as to whether these regulations are
necessary.
ACTION NARRATIVE
TAPE 02-4, SIDE A
Number 001
CHAIR LESIL MCGUIRE called the Joint Committee on Administrative
Regulation Review to order at 8:35 a.m. Representatives
McGuire, James, and Hayes were present at the call to order.
Senator Taylor arrived as the meeting was in progress.
PROPOSED REGULATIONS ON OCCUPATIONAL SAFETY AND HEALTH INCLUDING
ERGONOMICS
CHAIR McGUIRE announced that the committee would discuss the
proposed draft regulations on occupational safety and health,
including those pertaining to ergonomics. She informed everyone
that the committee has been approached by a number of concerned
individuals regarding these proposed draft regulations.
Therefore, the committee wanted to have the department update
the committee with regard to the process as well as have those
with concerns to articulate those concerns.
Number 0242
FRANK DILLION, Executive Vice President, Alaska Trucking
Association (ATA), testified via teleconference. He informed
the committee that ATA was founded 43 years ago to promote
trucking safety and productivity in Alaska, which continues to
be ATA's core mission. The association is responsible for the
adoption of the commercial driver's license law in Alaska as
well as for the implementation of the Federal Motor Carrier
regulations. Mr. Dillion said:
Trucking company owners do care about their employees'
health and safety. Having said that I must express
grave concerns on the part of the association's
membership concerning the preliminary draft
regulations on ergonomics, violence in the workplace,
and indoor air quality. Currently, Federal Motor
Carrier safety regulations require that every company
have a written safety program that is fully
implemented to protect workers in their workplace.
The problem with these regulations is ... the details.
It appears, upon reading the draft of these
regulations, that most trucking operations would be
simply unable to comply because of the very nature of
freight handlings and the operations of trucks on the
highway. Driving an automobile or
truck is inherently dangerous, probably the most
dangerous activity that you're involved in. Alaska's
trucking industry, however, has an outstanding safety
record, even under the conditions we find ourselves in
of marginally maintained roads and adverse weather.
In fact, the industry was ... recently recognized by
the Commercial Vehicle Safety Alliance as having the
best safety record for commercial vehicle operations
of all 50 states.
After several years at the federal level, OSHA
[Occupational Safety and Health Organization] came to
the conclusion that the imposition of most of what is
being proposed in these state regulations simply
wouldn't work. Congress sent them back to completely
revamp and revise their proposal. That revision is
underway now. The implementation of these ergonomic
regulations could and certainly would effect many
trucking operations. I'm certain that you are aware
[that] the federal government is revisiting the entire
workplace ergonomic issue. It would, therefore, seem
prudent that the Department of Labor wait to see the
new federal proposals and regulations before they move
ahead with state action.
The sections on violence in the workplace seem to be
of very questionable value in preventing or stopping
the kinds of things that have recently made headlines
in workplace violence. No trucking business wants to
see violence in the workplace. In fact, I was unable
to find a single company in Alaska that had a policy
encouraging violence in the workplace. ATA members
have many questions about who would do the training,
what sort of certification would be necessary on the
staff for counseling, and truly how this would
effectively stop someone whose intent on coming to the
workplace and committing an act of violence ..., or
how it would prevent a spontaneous act of violence
from happening between employees and/or company
employees and customers. It would, therefore, appear
to be nothing more [than] a burdensome level of
recordkeeping with very little opportunity of
effectively solving what we do know and we do consider
a serious problem.
I've been working for years on the questions of
outdoor air quality. And chairing the Citizen's Air
Quality Advisory Board for the Municipality of
Anchorage, I know how expensive it is to monitor air
quality. I'm a little bit confused about the language
and requirements in the sections of the proposed
regulations concerning indoor air quality. If, in
fact, by monitoring indoor air quality, it is as
simple as the maintenance of the heating and air
conditioning systems on a regular basis and keeping
the records of that, that would seem reasonable. It
would also seem reasonable that in office space areas
the plug in type CO monitors ... [but] anything beyond
that would be both unreasonable and unnecessary.
Number 0672
THYES SHAUB, National Federation of Independent Business (NFIB),
informed the committee that NFIB has 2,500 members in Alaska and
the average NFIB employer has fewer than five employees.
Therefore, these are relatively small businesses. At the
federal level, NFIB has been actively involved in the ergonomics
issue. She pointed out that the committee packet should include
a chronology of recent ergonomic actions at the federal level.
The draft regulations for the Alaska Department of Labor &
Workforce Development are specific to what each business should
do. She noted that [the draft regulations] require many written
reports that are very expensive for small businesses to do.
While NFIB doesn't agree with additional mandates for any
business, NFIB is interested in working with the department in
regard to education that could be provided, she said. Ms. Shaub
also pointed out that the committee packet should include a
summary of the written requirements [per the proposed draft
regulations]. Ms. Shaub highlighted that the current workers'
compensation rules and regulations include safety rules that
could merely be provided to the businesses. Those businesses
that have continual workers' compensation claims for a
particular injury could be required to address it under the
current laws and regulations. In conclusion, Ms. Shaub
announced NFIB's opposition to the implementation of new state
regulations until the federal level review is complete.
Number 1077
ED FLANAGAN, Commissioner, Department of Labor & Workforce
Development (DLWD), stressed that [this meeting] is an effort to
obtain as much public input as possible before the formal
regulation process begins. He then turned to the issue of
ergonomics at the national level, which came to attention
through the U.S. Department of Labor's efforts to address
musculoskeletal disorders caused by postures or repetitive
motions in the workplace. This was initiated by the first Bush
Administration. The [federal] regulation that resulted was
announced late in the Clinton Administration. The regulation
was very proscriptive. Although the state's proposed draft
regulations are less proscriptive and intended to be user-
friendly, there are portions with which he has concern. For
instance, the requirements to remove an injured individual from
the workplace and allow 90-100 percent wages to continue is
concerning. Such situations seem to interfere with the workers'
compensation legislation.
COMMISSIONER FLANAGAN turned to the Governor's Safety and Health
Conference that occurred in March. During that meeting,
Commissioner Flanagan said that he mentioned the need for Alaska
to develop its own standard to address ergonomic injuries in the
workplace. Interest in that was expressed by those in the
business community. Finally, in October it was decided that a
pre-proposal would be appropriate. Commissioner Flanagan
pointed out that there are other components to the program
beyond ergonomics such as the written safety and health program,
which really restores what has been state law for probably 20
years. He recalled when the department moved to the federal
regulations by adopting them by reference with some state
specific standards. However, one of the state standards that
wasn't maintained, but should've been, was the written safety
and health program. Currently, all construction workers are
required, per the federal law, to have a written safety and
health program. He pointed out that the written safety and
health programs can be fairly simple and basic documents.
COMMISSIONER FLANAGAN explained that many of the initial
comments were taken and there were meetings with some labor
folks. Also, the department ran some display advertisements and
a press release noting the scheduled meetings. There were many
comments from those and he responded to many of them.
Commissioner Flanagan stated that there is a win-win situation
with these regulations, although he acknowledged that it may be
a difficult road to achieving it. He encouraged those with an
interest to remain involved. He announced that the comments
from today will be taken and there will be a significant rewrite
of the regulations. He acknowledged that many employers confuse
the need to identify whether an activity exists at a specified
rate versus a limit. Furthermore, most employers are already
doing this in order to be enlightened.
Number 1922
CHAIR McGUIRE interjected and turned to the [regulations] that
specify that certain repetitious activities can only be done
certain amounts of time.
COMMISSIONER FLANAGAN clarified that the [regulations] are such
that if [a business has employees] that perform one of the
listed tasks for more than the specified time, the employee is
in the caution zone for that activity. Commissioner Flanagan
held up the State of Washington's [regulations] as a good
[model]. Furthermore, the State of Washington, since it is the
workers' compensation insurer for the state, has empirical data
to specify the costs. He acknowledged that it may be
challenged.
CHAIR McGUIRE asked if Commissioner Flanagan is aware of what
was happening in the State of Washington -- that businesses are
packing up and leaving.
COMMISSIONER FLANAGAN pointed out that the ergonomic regulations
in the State of Washington don't go into effect until at least
another year. Therefore, there is more going on with regard to
the economy in the State of Washington [than these health and
safety regulations].
CHAIR McGUIRE related that most small businesses would
characterize the State of Washington as one of the most onerous
states with regard to ergonomics regulations.
COMMISSIONER FLANAGAN reiterated that the State of Washington's
regulations have delayed enforcement dates, which Alaska would
certainly have. He suggested that the earliest enforcement in
Alaska would be six months to a year after the regulations are
promulgated. If there was any enforcement at six months, it
would be for the State of Alaska alone and then other employers
would be phased in.
Number 2089
CHAIR McGUIRE asked if Commissioner Flanagan believes that the
current OSHA standards aren't adequate enough to protect the
safety and health of the employees in the State of Alaska.
COMMISSIONER FLANAGAN related his belief that the state could do
better, which he says means he believes that those OSHA
standards aren't adequate. In further response to Chair
McGuire, Commissioner Flanagan noted that lost workday incidents
per worker are declining. However, there are many complaints
with regard to indoor air quality. [These proposed draft
regulations] provide things for the employer to do [by providing
a standard]. With regard to ergonomics, there are many
ergonomic injuries. Commissioner Flanagan said, "As long as we
don't have a standard, we're not doing as much as we can."
CHAIR McGUIRE asked if there was a model used in the development
of these proposed draft regulations.
COMMISSIONER FLANAGAN explained that before the federal standard
there was a standard in North Carolina, which offers a guideline
that is an enforceable standard. He wasn't sure where the
caution zone concept came from, the State of Washington or North
Carolina.
CHAIR McGUIRE directed attention to pages 6-10 of the proposed
draft regulations and inquired as to how the timelines specified
were chosen for various activities.
COMMISSIONER FLANAGAN, before deferring to Mr. Mastriano,
emphasized that those aren't prohibitions or limitations of the
activities.
RICHARD MASTRIANO, Director, Division of Labor Standards &
Safety, Department of Labor & Workforce Development, said that
these standards were taken from the federal standards as well as
those from North Carolina and the State of Washington.
CHAIR McGUIRE inquired as to the science behind these standards.
MR. MASTRIANO answered that the science comes from the injuries.
CHAIR McGUIRE asked that the [scientific] information be
provided to the committee. She pointed out that regulations do
impact businesses and sometimes result in an unfunded mandate on
private business. If there is science behind the regulations,
let's discuss that because it will enable negotiations with
regard to the threshold.
Number 2440
REPRESENTATIVE JAMES inquired as to the status of ergonomic
claims in the state.
COMMISSIONER FLANAGAN explained that Alaska's lost workday
injuries are declining across all industries. Information has
been extrapolated for the national body for workers'
compensation. He doubted that [the department] has specific
data with regard to the reduction of ergonomic injuries other
than trends extrapolated from national data. However, there is
a figure for back injuries, which amount to about 20 percent of
the claims in the state. Although all of those claims may be
caused by something other than an ergonomic situation, there's a
compensable state injury. The aforementioned is the reason some
employers support this.
REPRESENTATIVE JAMES highlighted that musculoskeletal problems
may be related to what an individual has done in the past rather
than their current activity. [In those cases] she didn't know
that [these proposed draft regulations] would help.
Representative James inquired as to the time and cost spent on
these regulations thus far.
COMMISSIONER FLANAGAN said that the [department] has tried to do
this cheaply and thus far has had only the cost for the display
advertisements, holding meetings, and mailings. He noted that
the cost for developing the regulations is yet to come.
REPRESENTATIVE JAMES related her feeling that perhaps spending
all of this money isn't relevant. She said that she has yet to
be convinced of the need to go into depth with this issue.
COMMISSIONER FLANAGAN stated, "If I thought this was
unnecessary, we, obviously, wouldn't be undertaking it." He
mentioned that he checked with industry folks to determine
whether they thought this was worth doing and some did.
Commissioner Flanagan noted his responsibility to the workers
and employers of this state regardless of the federal issues and
agendas.
REPRESENTATIVE JAMES pointed out that Alaska has a lot of small
business, which can't be swept into everything and thus small
businesses have faced more restrictions and difficulties. These
difficulties result in people doing things illegally, she
posited. Therefore, she agreed with Ms. Shaub's suggestion of
providing [these small businesses] with educational materials.
Representative James announced her opposition to the written
statement of health. However, she expressed support of bullet-
points that businesses could choose to fit their situation.
COMMISSIONER FLANAGAN explained: "That's basically what we did,
in large part, ... with our consultation programs when we did
have the requirement, until '96, for a written safety and health
program." There are models with components that can be adjusted
to fit the size of the business. He said that [the department]
is aware that 80 percent of the state's employers have less than
ten employees. He stressed that [the proposed draft
regulations] need a lot of work. Commissioner Flanagan said
that there is a place for safety regulations with a healthy dose
of consultation.
REPRESENTATIVE JAMES indicated that the best place to spend the
money [is the consultation and education piece].
TAPE 02-4, SIDE B
REPRESENTATIVE JAMES expressed concern with those employees who
have injuries generated from activities that aren't related to
work, but the injury is reported as work related. "I just think
we're just howling at the moon in this particular case and think
we're not having to go this far yet on this issue," she said.
Number 2955
SENATOR TAYLOR related his understanding that lost workdays have
declined over a period of time.
COMMISSIONER FLANAGAN agreed with that understanding. In
further response to Senator Taylor, he said that lost workdays
have experienced a significant decline when one goes back to the
start of the OSHA program in 1973. He attributed this decline
to the OSHA program as well as the efforts of employers and
labor organizations.
SENATOR TAYLOR charged:
So, now, during the entire period that you've folks
have been here, seven-and-a-half years, you've watched
these numbers come down. And, now, with about six
months left in this administration, you launch into a
whole new program on ergonomics. I think that's
fascinating to me that all of a sudden, out of the
blue, we've got a real concern for ergonomics that you
just have to put in place before you leave office.
COMMISSIONER FLANAGAN reiterated his earlier testimony that the
federal government dominated the issue of ergonomics until
January 2001. In March 2001, the governor's safety conference
met and suggested that it might be time to address ergonomics,
in a state-specific way, since the federal government doesn't
seem to be moving forward. At that meeting, interest by
industry was expressed. Since that time, the department has met
with industry. Commissioner Flanagan also reiterated that these
are [proposed draft regulations] for people to consider.
Furthermore, the administration still has a job to do and that's
what is happening.
SENATOR TAYLOR said, "I sometimes wonder what that job is that
you think you're doing." He then directed attention to page 9
(4)(B) of the draft regulations, which refers to "gripping an
unsupported object weighing 10 or more pounds per hand, or
gripping with a force of 10 or more pounds per hand, more than
two hours total per day (comparable to clamping light duty
automotive jumper cables onto a battery)". Senator Taylor
likened this description to bowling. He turned to page 9
(5)(A), which he said sounds like golf. "Somehow these are
standards that if you set them and someone exceeds them, we know
have a compensable injury and we have a way of tracing it back -
some ergonomically stressed muscle - ... and fault can be
established with the employer. In fact, no fault is necessary,"
he charged.
COMMISSIONER FLANAGAN said that's incorrect. Commissioner
Flanagan emphasized that the [proposed draft regulations]
pertain to the specified actions in the workplace. "We know
these injuries happen," he said. Therefore, doing the specified
activity may lead to an injury in some people. Commissioner
Flanagan clarified that these proposed draft regulations are not
a prohibition or limitation on the specified activities but
rather the regulations identify a caution zone. He explained
that if employees are doing some of the listed activities, then
the employer needs to do an assessment. If there are changes
that could be done economically, then some action should be
taken. With regard to the claim, Commissioner Flanagan stated
that the claim is already present. If an employee has an
injury, whether from bowling or a work-related activity, the
workers' compensation board will sort out whether there is a
claim. Establishing regulations doesn't establish [an
entitlement to compensation] or claims.
SENATOR TAYLOR interjected that the claims aren't present and
recalled Commissioner Flanagan's earlier remarks that claims,
lost workdays, have been significantly decreasing for years.
Senator Taylor said, "In fact, you've not only seen the lost
workdays going down, you've seen a significant decrease in these
types of claims. So, you see, there isn't a claim there."
COMMISSIONER FLANAGAN specified that there is no data to
illustrate a decline or increase in these [ergonomic] claims.
"We know there are still a significant amount of potentially
musculoskeletal disorders," he explained. Lost workdays
incidents have decreased across the aggregate of industries and
all occupations and all types of injuries.
Number 2621
SENATOR TAYLOR surmised that Commissioner Flanagan is viewing
the situation as one in which the glass is half full, the number
of injuries. However, the statistics and testimony presented by
Commissioner Flanagan indicate that the glass is half empty, and
therefore the volume of injuries is decreasing significantly.
"The fact that you have failed to be able to discern which are
ergonomic injuries and which are not is absolutely no
justification. In fact, if anything, it's the opposite until
such time as you can establish that there is some increase in
ergonomic injuries that we should be assisting and protecting
both employees and employers from the claims of." He questioned
why the department would launch an effort to protect everyone
from something that is experiencing fewer claims. Senator
Taylor expressed the possibility of studying this issue first in
order to determine whether the ergonomic claims have increased.
Furthermore, he expressed the need [for the department] to show
that there is a "war" that needs to be won. He indicated that
the current regulations may already have won the war.
COMMISSIONER FLANAGAN expressed the need to do better and
attempt to reach a minimum of lost workdays. He reiterated that
this is the beginning of the regulatory process.
Number 2495
CHAIR McGUIRE inquired as to the fiscal note these regulations
would generate for the state and private business.
COMMISSIONER FLANAGAN answered that he didn't have any
information on that. In further response to Chair McGuire, he
said that the intention is that [these regulations] wouldn't
cost a lot. [The low cost] would be achieved by having the
regulations be close to a guideline. Furthermore, safety could
result in savings in workers' compensation.
CHAIR McGUIRE reiterated her request to have the department
explain the science behind these proposed draft regulations.
Additionally, she requested that a fiscal note for these
regulations be presented.
CHAIR McGUIRE recalled Commissioner Flanagan's testimony
regarding delayed enforcement of the regulations. She related
her belief that it sounds as if [the department] has a course
that it is following. She asked if Commissioner Flanagan
intended for these proposed draft regulations to be promulgated
at some point. If that is the case, when would that occur, she
asked. She predicted that the regulations would be promulgated
in October.
COMMISSIONER FLANAGAN expressed hope that there would be some
agreement with the regulations amongst industry and the private
sector.
CHAIR McGUIRE interjected her belief that if there isn't
agreement, the regulations would be promulgated anyway.
COMMISSIONER FLANAGAN disagreed and mentioned the possibility
that no regulations will be promulgated. Furthermore, the
delayed enforcement allows the consultation section to train and
for employers to obtain resources.
Number 2262
CHAIR McGUIRE surmised, "So, you really are giving it a good
faith effort to put it out there? And if you find that they're
onerous, as many people have said to you, there's a possibility
you won't do it?"
COMMISSIONER FLANAGAN replied, "That is a distinct possibility."
CHAIR McGUIRE said that she doubted that to be the case.
COMMISSIONER FLANAGAN noted his resentment of that statement.
CHAIR McGUIRE related her belief that the department will find a
few people who will agree with the regulations, which will be
enough to establish a middle ground. In that case, when would
the regulations be promulgated, she asked.
COMMISSIONER FLANAGAN responded that he didn't know. He
mentioned that October might be optimistic. In further response
to Chair McGuire, Commissioner Flanagan said that any later than
October would be problematic, however, "because we're not going
to be around much longer than that."
SENATOR TAYLOR stressed, "The timing is literally based
politically on what's going to occur this fall. And it's a joke
to suggest that it's anything other than that." He predicted
that Lieutenant Governor Fran Ulmer would be signing these
regulations two days before she walks out the door. Therefore,
the next administration will be hamstrung with a set of OSHA
regulations that can be utilized by some members of industry as
leverage for state contracts. Senator Taylor charged: "That's
where the interest is, that's what the political motivation is.
And this administration didn't want to have to, over the last
seven years, negotiate contracts with a set of regs like this to
be available ..."
COMMISSIONER FLANAGAN interjected, "That assertion is
ludicrous."
Number 2121
REPRESENTATIVE JAMES suggested that many of the items in the
regulations make sense as guidelines. However, she said she
didn't believe having these regulations in law is appropriate.
COMMISSIONER FLANAGAN disagreed. He explained that [the
department] believes that there should be some enforcement
mechanism.
Number 2018
NEIL MACKINNON, President, Alaska Laundry & Cleaners, informed
the committee that in December he was visited by an OSHA
inspector for five consecutive days. That visit resulted in
having to update his musculoskeletal disorders (MSDs); to
rewrite his hazardous communication plan that includes a
personal protective equipment assessment plan; [to write] a
hazardous assessment of the entire operation, an asbestos
assessment, a respirator plan, and a blood-borne pathogen plan.
Those are just the beginning. These are not basic and simple
documents. Mr. MacKinnon pointed out that he had canned plans
from the laundry association and the hospital association, but
the OSHA inspector said that the plans had to be tailored to the
specific business. He said that he couldn't estimate the costs
for such plans because for plans such as the asbestos assessment
plan an outside consultant is required.
MR. MACKINNON turned to the ergonomic part of [the regulations]
and said that he couldn't afford it. He said that most of the
[activities required of his employees] fall under these
regulations and he said he didn't know how to get around it.
Mr. MacKinnon identified the problem with ergonomics as the lack
of a defined accident. For instance, someone could complain of
back pain and relate it to their job. He suggested that doctors
who place patients on workers' compensation receive a blank
check. Mr. MacKinnon related his experiences with workers'
compensation claims and informed the committee that of the four
claims [files at his business], three went to the same doctor
and one claim [could be related to a defined accident]. Mr.
MacKinnon informed the committee that when he had a skiing
accident he went to the same doctor used in three of the four
workers' compensation claims at his business. Three times in
his first meeting with the doctor, the doctor asked if his
injury could be work related. He reiterated that the lack of a
defined injury in ergonomics is the problem and employees and
doctors take advantage of it.
Number 1662
PAM LaBOLLE, President, Alaska State Chamber of Commerce, began
by associating herself with Ms. Shaub's testimony. Ms. LaBolle
turned to ergonomics and mentioned the National Academy of
Sciences (NAS) report entitled, "Musculoskeletal Disorders and
the Workplace". She said that the premise of the report is that
one must deal with the whole person when diagnosing causes and
cures for MSDs. She said:
NAS believes that the factors are inextricably bound
and that an effective response must include an
integrated program considering work procedures and
organizational characteristics as well as
biomechanical factors. However, in light of the
uncertainty about the interrelationship and relative
contribution of these factors, NAS also demanded more
research on these complicated factors and their
interrelationship. The recommendations of NAS, to a
great extent, is what caused Congress to overturn the
regulations promulgated.
And another point: the OSHA's legally required
significant risk finding, NAS countered by describing
the host of flaws with the statistics that ... OSHA
acquired. First, there are no comprehensive national
data sources capturing medically determined
musculoskeletal disorders. Almost all the data
regarding these MSDs are based on individual self-
reports and surveys. Thirdly, the survey data does
not and cannot distinguish MSDs that may be associated
with work from those likely not associated with work.
And without the statistical refinements sought by NAS,
including efforts to capture demographics and other
details necessary to intelligently review the role of
nonoccupational influences, the Bureau of Labor
Standards' statistics cannot [lend] support for any
rules, and particularly for one that focuses single-
mindedly on biomechanical factors. So, this is what
the National Academy of Sciences had to say: The
science is not there to support the ergonomic
regulations strictly associated with biomechanical
activities.
SENATOR TAYLOR asked if Ms. LaBolle found it fascinating and
coincidental that the Clinton Administration waited a full
seven-and-a-half years before attempting to implement ergonomics
and leave it for the next administration. He likened that
pattern to what is happening now in Alaska.
MS. LaBOLLE said she found that interesting.
Number 1406
KAY SLACK, Private Business Owner, testified via teleconference.
Ms. Slack pointed out that businesses are motivated by cost
savings, even workers' compensation policies will offer a
discount for written safety programs. All businesses looking
for cost savings will take advantage of that. She noted her
appreciation of Senator Taylor pointing out that [these
regulations] may be motivated by other reasons. Ms. Slack
suggested that those people Commissioner Flanagan said were
interested in the regulations are probably training
professionals who would benefit from these regulations due to
increased business for them. She questioned how these
regulations will be enforced. The enforcement of the current
regulations isn't necessarily done in a timely fashion, except
when there is a complaint against an employer. She told the
committee that when she served on the task force for the
Department of Labor when it reviewed possible cost savings, she
was told that the department is "very slim" in enforcement
employees.
MS. SLACK recalled Commissioner Flanagan's testimony denouncing
those who, after the state chamber announced that these
regulations were in the works, made a public outreach. She
expressed frustration that after she made a comment she was told
that she didn't know what she was talking about. Ms. Slack
noted that she is deeply disturbed by these regulations.
Furthermore, the cost to the business community will be
outrageous and the written plans are onerous on the private
business community in particular.
Number 1153
MARY LOU JOVICH, Occupational Therapist; Healthcare
Professional, testified via teleconference. Ms. Jovich reviewed
her work history as a contractor for some of the oil industries'
large contractors, the federal government, and one of the
largest hospitals in the state. She noted that her background
is from her time working with the State of Washington's
Department of Labor & Industries during the state's development
of ergonomic standards. Therefore, she heard the pros and cons
of the standards being proposed in [the State of Washington].
As a healthcare professional in Alaska, Ms. Jovich related her
observation that injuries, many of which are unnecessary, still
occur. Ms. Jovich informed the committee that there are large
and small employers in the State of Alaska that have developed
good ergonomic programs and thus have reduced their industrial
insurance rates, workers' compensation claims, et cetera. Those
employers have reduced their employees' exposure to getting
hurt, which she saw as the bottom line. With regard to the
discussion that there has been a decrease in the number of lost
work days, Ms. Jovich questioned whether it's acceptable for 500
people to have back problems versus 1,000 people.
MS. JOVICH informed the committee that there is a science behind
ergonomics. The National Institute of Occupational Safety and
Health has performed studies [that have lead] to vibration
standards for the whole body and the hand. She explained how
these standards were derived from placing force needles
measuring force in cadavers to taking force measurements from
healthy human workers. Ms. Jovich stressed that there are
standards, permissible exposure limits, threshold limits, et
cetera. These standards provide a basis from which she can
determine whether a job is hazardous or not and provide low-cost
solutions. She pointed out that ergonomics doesn't mean high
costs. Ms. Jovich suggested that the state send this
information to new businesses when they receive their business
license. She pointed out that businesses can avail themselves
of DLWD's free consultation services.
CHAIR McGUIRE asked if this has to be mandated in law.
MS. JOVICH replied yes. She informed the committee that the
reason employers are doing this now is to be grandfathered in
when the new ergonomic regulations come into effect.
Number 0730
STEVE TROSPER, Safety Coordinator, Local 959, Teamsters; Safety
Representative, Alaska Petroleum Joint Crafts Council, testified
via teleconference. He informed the committee that he has been
in his current occupational safety and health position for 12
years. Mr. Trosper turned to the requirement for a written
safety and health program and echoed earlier testimony that this
has been in place for some time. This requirement works well
and isn't onerous on small businesses because there are an
infinite number of safety program models available to be
tailored to a specific workplace. As a safety [coordinator],
Mr. Trosper said that it's absolutely imperative that there be a
written program that can be tracked and used to train employees.
MR. TROSPER acknowledged that the ergonomic standard appears to
be the most controversial standard. However, he said that he
didn't see anything onerous with the ergonomic standard. There
seems to be a general fear of ergonomic standards because people
see them as [costs]. Mr. Trosper informed the committee that
there is empirical evidence that those companies who have
adopted and implemented good ergonomic programs have saved money
in workers' compensation, lost time, and training costs. The
[ergonomic injuries] generally effect the oldest employees,
which are typically the most experienced employees. Therefore,
he surmised that a cost-benefit analysis would illustrate a cost
savings. Furthermore, the numbers represent real people. Mr.
Trosper pointed out that Alaska is the worst performing state
for workplace fatalities and injuries. Moreover, Alaska has an
aging workforce. Therefore, Mr. Trosper predicted that
[ergonomic] injuries will likely increase as time passes.
MR. TROSPER turned to the workplace violence and indoor air
quality standards. He noted the problems with indoor air
quality in Alaska because of winters and the tight buildings.
With regard to workplace violence, Mr. Trosper pointed out that
by tracking behavior the worker-on-worker violence can be
prevented. Again, these [standards] will save money.
Number 0361
SHAWN SMITH, McGee Industries, testified via teleconference. He
provided the following testimony:
The one feeling gets from reading the new proposed
ergonomic regulation is that employers have all the
time in the world to monitor employee work habits.
The proposed regulations have tremendous assumptions
and potentials for economic loss for the construction
industry and of the State of Alaska. We already have
a problem with employees abusing the workers' comp
insurance laws; they are written liberally enough to
allow for bogus claims. We have laws that make it
easy for employees to get medical treatment for free
whether the job caused the injury or not. Now you
want to adopt a regulation that will further add to
the medical insurance costs and make it even easier to
file for claims. When and where will we draw the
line? The employer can't be held responsible for the
employees outside of work, and distinguishing injuries
caused on the job and ones outside will be impossible.
And an injury due to ergonomic issues will certainly
always be the employer's fault the way the workers'
comp laws are written.
Number 0234
MEERA KOHLER, President and CEO, Alaska Village Electric Co-op,
testified via teleconference. Ms. Kohler expressed the need for
caution for the hundreds of rural Alaskan employers who haven't
been represented during today's process or in the past. Ms.
Kohler said she didn't believe these proposed regulations have
been transmitted to all businesses registered with the
Department of Community & Economic Development, as should have
been the case. Most of the village employers are unaware that
these regulations are looming. She informed the committee that
most businesses in rural Alaska have one to three employees,
with the primary employee owning the business. With regard to
the need for written plans, Ms. Kohler expressed the need to
recognize that the primary language in rural Alaska isn't
English. Furthermore, the daily inspections [are impossible for
rural Alaska]. Ms. Kohler related her belief that these
regulations are going to provide the opportunity for harassment
in the workplace. Therefore, she urged the committee to do what
it could to ensure that these regulations aren't implemented
without a comprehensive review as to whether these regulations
are necessary. She pointed out that before the federal OSHA
implemented regulations with regard to electrical workers, it
performed a study across the nation for five years. A broad-
blanket application, as is the case with these regulations, is
poorly thought out and unnecessary.
TAPE 02-5, SIDE A
SENATOR TAYLOR related his belief that the chair intended to
work with the department to ensure that any regulations that are
promulgated have some basis in fact and science and comport with
the law. He reiterated his suspicion that similar tactics were
used at the end of the Clinton Administration for the same
regulations.
ADJOURNMENT
There being no further business before the committee, the Joint
Committee on Administrative Regulation Review meeting was
adjourned at 10:16 a.m.
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