Mr. Terry Miller
Secretariat, ANSI ASC Z-365
National Safety Council
1121 Spring Lake Drive
Itasca, Illinois 60143

Dear Mr. Miller:

The Food Marketing Institute (FMI) is submitting these comments in response to the most recent draft standard to manage musculoskeletal disorders (MSDs) developed by the ANSI Accredited Standards Committee Z365. FMI opposes and disapproves the draft standard because it is not supported by sound scientific evidence and because it clearly does not reflect a consensus of all materially affected parties as required by ANSI.

The Food Marketing Institute (FMI) is a nonprofit association conducting programs in research, education, industry relations and public affairs on behalf of its 1,500 members including their subsidiaries – food retailers and wholesalers and their customers in the United States and around the world. FMI’s domestic member companies operate approximately 21,000 retail food stores with a combined annual sales volume of $220 billion – more than half of all grocery store sales in the United States. FMI’s retail membership is composed of large multi-store chains, small regional firms and independent supermarkets.

FMI and its members are committed to the health and safety of our employees. We believe that the development and use of voluntary standards can play an important role in workplace safety. These standards must, however, be based on sound scientific evidence and on successful, real world experience. The proposed standard falls short on both counts.

ANSI requires that its accredited committees publish “consensus” standards, meaning that “substantial agreement has been reached by directly and materially affected interest groups.” The draft standard is not a “consensus” based standard. It can’t be, because consensus does not exist on the subject of the standard.

There is no consensus on the science of ergonomics and its impact on musculoskeletal disorders. There is no consensus on the dose-response relationship between occupational (and other) factors and specific disorders. There is no consensus that specified workplace actions will result in the elimination of, or even a reduction in, specific disorders. And, there is no consensus in the scientific or employer community that this standard will reduce MSD’s to any measurable degree. To the contrary, employers are united to an unusual extent in the belief that the draft standard is misguided and that the costs and efforts associated with compliance would be better spent in other ways.

As noted above, an ANSI standard must reflect “substantial agreement … by directly and materially affected interest groups.” (Emphasis added.) Employers clearly are the most directly affected interest group. Indeed we would submit that employers are the only interest group directly affected.1

Employers will be the only ones that have to comply with the standard. As the standard itself notes in the very first section, Section 1.1 Purpose and Intended Audience. “It is intended for Management.” (Emphasis added.)

And it is not just a few employers who will be impacted. The standard is so broad that every employer and every workplace will potentially be covered, without limitation to size or industry. Work related MSDs are defined as “…disorders that may be … aggravated by work. (Emphasis added.) MSDs are defined as “… an abnormal condition of muscle, tendon, tendon sheath, nerve, bursa, blood vessel, bone, joint, or ligament resulting in altered structure or impaired motor or sensory function.” Essentially, this means any ache or pain in an upper extremity.

Section 1.2 defines the scope of the standard as addressing “musculoskeletal disorders arising from or associated with work.” (Emphasis added.) No job or workplace is exempt from this language. No employer can escape the requirements of the standard regardless of safety and health history.

The controversy over the need for an ergonomics standard is not a new one. The subject is so controversial that for many years OSHA was prohibited by Congress from publishing its own proposed standard. It was during those years that many of the same interests that were frustrated in their attempts to achieve an OSHA standard began using the ANSI process to achieve their goal (in some cases, by active involvement on the Z365 Committee).

Any doubt about the lack of consensus concerning this subject should have been dispelled this week when Congress for the first time used the Congressional Review Act to repeal OSHA’s ergonomics standard. This repeal was supported by a broad coalition of industry groups representing large and small businesses of all types.2   More than one hundred of these associations and employers also were challenging the OSHA regulation in the courts.

The draft standard is in many respects the equivalent of the OSHA standard that was rejected by Congress. The draft is not a statement of goals, principles and best practices. It is a programmatic standard, written in a regulatory fashion, presenting employers with a series of specific tasks to be followed and actions to be accomplished. It requires management to implement an elaborate process which, among other things, includes training, job surveillance, evaluation and management of cases, job analysis and job redesign.

As with the OSHA regulations, data or scientific documentation justifying the specific requirements of the standard is lacking. Many of the specific requirements are the same as, or equivalent to, those in the rejected OSHA standard.

The so-called “voluntary” nature of this standard is illusory and provides no comfort to employers. The standard is intended to, and will, become a standard of care for use in regulatory proceedings and civil litigation. It is a backdoor way to achieve what OSHA cannot. Employers will place themselves at serious risk if they fail to adhere to the standard. This is not idle speculation. Even before publication, the initial draft standard was cited in articles and as part of expert testimony in civil litigation.3   

We note that this draft standard differs in certain respects from the first draft published two and one half years ago. These changes are not responsive to many of the comments filed in response to the first draft, including FMI’s. A copy of FMI’s prior comment is attached as Appendix I. Most of the specific objections raised in that comment are still relevant to this draft. Many of the changes that have been made are editorial or superficial. In certain cases provisions have been modified in an attempt to make them more workable. The Committee has abandoned the term “cumulative trauma disorder” in favor of the OSHA favored “musculoskeletal disorders.” But the bottom line is the same. The massive requirements will impose huge burdens on employers. All based on subjective observations and opinions, not on scientific cause-and-effect relationships.

Conclusion

Voluntary “consensus” standards must reflect principles and practices that are commonly accepted as ones that have been successfully applied in real world situations. The Z365 standard falls far short of these criteria.

It attempts to regulate in a highly prescriptive manner the practices of every employer in the country to address a problem of indeterminable scope. In the name of ergonomics, the standard intrudes into all aspects of the workplace, from training to job design to organization structure to pay and benefits to labor management relations. In no way can this be justified by current science. In no way can it be legitimately argued that there is a consensus on this issue or on this standard. Therefore, the integrity of ANSI’s processes requires that this draft be rejected.

We appreciate this opportunity to express our views.
     
Respectfully submitted,

George Green
Vice President
General Counsel


1   There are certainly other interested parties: consultants who may see an increased use of their services; academics who will get to see if their theories will work; regulators who will be able to use the standard in enforcement proceedings; and representatives of employees who hope for improved worker safety and who will benefit from the labor relations provisions in the standard. These groups dominate the Z365 Committee. But they are not the parties “directly and materially affected” by the standard.

2   The front page story in the March 8 Washington Post began “Rarely has American Business been as united in a cause … .”

3   In fact, it was members of the Z365 Committee who cited the draft in this inappropriate fashion. This was one of the factors noted in the appeal filed by FMI and six other groups seeking decertification of the Committee for failure to adhere to ANSI procedures. The use of the ANSI name in connection with the draft document drew a stern rebuke from ANSI’s general counsel.