On November 22, 1999, the U.S. Occupational Safety and Health Administration issued a far-reaching Proposed Ergonomics Standard that would apply to manufacturing facilities, "manual handling" operations and virtually any general industry workplace in which one employee has experienced a sign or symptom of a musculoskeletal disorder (MSD). OSHA published the Proposed Standard in the Federal Register on November 23, 1999. 64 Fed. Reg. 65767. This complex, major new rule would require thousands, perhaps millions of U.S. employers to make engineering modifications, change the pace of work or production, and implement comprehensive ergonomics programs. OSHA's proposal covers manufacturing firms, but would also extend OSHA's enforcement focus to financial services and other white-collar office environments, as well as retail establishments and other service-related industry sectors.
In other recent developments, a California state appellate court upheld California OSHA's ergonomics standard, but nullified the standard's small business exemption. In addition, Washington OSHA has issued a broad proposed ergonomics standard for employers operating in that state. Each of these developments is discussed in this Client Alert.
Together, these developments signal an increasing focus by federal and state OSHA agencies on white-collar employers who previously have received little attention. The new regulatory standards will force many of these employers to undertake costly hazard prevention efforts, even when the available solutions are untested and unproven. All businesses, and especially those that have had little interaction with OSHA in the past, should understand the scope of these new mandates and the obligations they may impose.
Federal OSHA's Proposed Ergonomics Standard
The Proposed Ergonomics Standard would require millions of general industry employers to work through a complex matrix of regulatory analysis and interpretation, compliance decision-making, and hazard control obligations (including engineering, administrative and other workplace modifications). The standard would not apply to construction, maritime and agricultural employers. Small employers would have a particularly difficult time understanding and implementing the new requirements. Notably, state OSHA agencies, such as California OSHA, would have six months after a final national rule is issued to adopt their own comparable ergonomics standards.
Manufacturing and Manual Handling Operations. The proposed standard would require all employers with manufacturing or manual handling operations to set-up an ergonomics program. The program would cover manufacturing production jobs, as well as those jobs where "forceful lifting, lowering, pushing, pulling or carrying" is a "core element."
The program would include three elements:
- Management Leadership. The Proposed Standard would require employers to establish program responsibilities, provide managers and employees with the authority, training and resources to carry them out, and identify at least one manager to receive complaints and respond to them.
- Employee Participation. The Proposed Standard would require employers to involve employees in establishing, implementing and evaluating the program, and provide employees with access to relevant information.
- Hazard Information and Reporting. The Proposed Standard would require employers to provide information to employees so they can recognize and report ergonomic hazards. Employers also would be required to establish a way for employees to report signs and symptoms of MSDs as well as ergonomic hazards, and respond to employee complaints and recommendations.
General Industry Employers. The Proposed Ergonomics Standard would also apply to any general industry worksite, where one employee experiences one "recordable" work-related MSD. Notably, the Proposed Rule would not apply to certain incidental MSDs caused by activities that do not represent a core element of the employee's job and that do not involve a significant amount of the employee's worktime. Thus, for example, if an employee tripped on a staircase, the incident might result in a recordable MSD but it would probably not trigger the application of the Proposed Standard. This trigger is met if:
- a health care provider diagnoses an MSD;
- an employee reports an objective MSD symptom (such as redness or swelling); or
- an employee reports a subjective symptom (such as tingling, numbness or pain) that is accompanied by medical treatment, a job transfer, or lost or restricted work time.
Employers in general industry (including manufacturing and manual handling operations) who experience one recordable MSD would have two options: implement either a) a "quick-fix," or b) a comprehensive ergonomics program. The Proposed Standard would also require employers with manufacturing or manual handling operations to implement a quick-fix or comprehensive program following the reporting of "persistent" MSD symptoms, regardless of whether the symptoms are accompanied by medical treatment or lost or restricted work time, if the employer "has knowledge" that an MSD hazard exists in the job in question. Employers that experience more than one recordable MSD would have to establish a comprehensive program.
The "quick-fix" option would require the employer to provide medical management to the affected employee, perform a detailed job hazard analysis on all jobs within the employee's job classification, identify methods of controlling ergonomics hazards, implement such methods within 90 days of the first report of the MSD and prevent the recurrence of any MSD signs or symptoms.
The "comprehensive program" would cover those job classifications where an MSD was recorded. Employers would have to maintain the program until they have not had a recordable MSD for the previous three years. The full program would include the three elements described above for manufacturing and manual handling operations, plus the following:
- Job Hazard Analysis and Control. The Proposed Standard would require that employers perform job hazard analyses for a representative sample of jobs. The analyses would include employee interviews or surveys, and an evaluation of job factors likely to cause MSDs. Once "problem jobs" have been identified, employers would be required to implement feasible control measures that materially reduce MSD hazards. The Proposed Standard states that engineering controls (such as redesigning work stations, processes or equipment) are "preferred" over administrative controls (such as job rotations or changes in the pace of work). Personal protective equipment should be used only if other control methods are not feasible. Finally, if MSDs persist, the Proposed Standard would require employers to continue to implement an "incremental abatement process" using additional feasible controls.
- Employee Training. The Proposed Standard would require that employers train employees in problem jobs at the outset of the program and at least every three years thereafter. The subject matter would include the program, MSD hazards employees may be exposed to, corrective steps the employer is taking, the OSHA Ergonomics Standard, and how to recognize and report MSD signs and symptoms. Initial training would not be required for employees who have already been trained on the covered subjects within the preceding three years.
- MSD Management. The Proposed Standard also would require prompt medical management following the identification of MSD signs and symptoms. For example, if an employee reported pain or swelling, the Proposed Standard would require that the employer obtain a written opinion from a health care professional. The employer would be required to comply with any recommended work restrictions and provide periodic follow-up evaluations.
- Medical Removal Protection. The Proposed Standard would require employers to pay temporarily disabled employees their full salary and benefits if they are on restricted duty (90 percent if they cannot work at all). The employer would have to maintain such medical removal payments until the employee returns to his or her job, or is deemed permanently unable to return, up to a maximum of six months.
- Program Evaluation. The Proposed Standard would require that employers use both activity and outcome measures to evaluate the effectiveness of their programs at least every three years. Employers would have to correct any identified deficiencies.
- Record-keeping. The Proposed Standard would require employers with 10 or more employees to maintain records. These records would include employee complaints, employer responses, job hazard analyses, hazard control plans, medical management records and program evaluations.
An Ill-Conceived Exercise in Regulatory Overkill
Prior to its publication, the Proposed Standard was subjected to months of discussions with the regulated community and "scrubbing" by agency staff, as well as more than three months of review by the Office of Management and Budget. Although OSHA made many changes to the proposal, it remains seriously flawed.
The Scope Is Too Broad. Federal OSHA mistakenly claims that the Proposed Standard "focuses on jobs where problems are severe and solutions well understood." In reality, it would require thousands, perhaps millions of employers with manufacturing or "manual handling" operations to establish ergonomics programs regardless of whether their workers were at risk. The latter category is so broad on its face that it would appear to include office services employees, domestic service workers, bartenders and wait staff, sales workers, and a host of other positions not previously targeted by OSHA regulations.
The Trigger Is Too Low. OSHA mistakenly claims that it "is using actual injuries to trigger the requirements of the standard." In reality, the agency is using MSD "signs or symptoms" (under its broad definition of a "recordable" MSD) to force many employers to undertake costly, broad-scale hazard prevention and control efforts in response to actual (or perceived) minor problems. The recordability test was designed as an extremely wide net to allow effective early identification of potential MSDs, not as a threshold for substantial new mandates.
The Proposed Standard would require a comprehensive program if two employees experience swelling, redness or another MSD sign over a three-year period. Similarly, a full program would be required if, within a three-year period, two workers experience numbness, tingling or another MSD symptom coupled with sick leave, a job transfer or medical treatment. In many cases the signs or symptoms would disappear in a few hours, but these employers would have to maintain their ergonomics programs for at least three years.
Thus, for example, an employer that proactively seeks to prevent MSDs by transferring workers to light duty jobs at the first hint of an MSD sign or symptom would be required to implement a comprehensive program as a result of such responsible prevention efforts. Alternatively, if one worker reported back pain for a few hours while at work, took muscle relaxers and never had any recurrence, the employer would be required to implement a "quick-fix" (which could entail substantial cost and disruption of operations) or a comprehensive program.
OSHA Doesn't "Say When." Under the Proposed Standard's hazard prevention and control requirement, employers must take unspecified remedial measures that "materially reduce" MSD hazards. This provision allows employers to determine the solutions most appropriate to the problems in their workplaces, but how will an employer know that it has sufficiently controlled MSD hazards? Even in the absence of continued MSDs, OSHA could conclude that an employer's remedial approach was insufficient. As written, this provision would leave both employers and OSHA inspectors uncertain as to when an employer has taken sufficient remedial steps to meet its obligations.
Moreover, if MSD signs and symptoms continue to occur, even on a sporadic basis, an employer must continue to implement additional abatement measures indefinitely, even if such measures have little impact in reducing MSD hazards. This obligation ceases only when an employer has exhausted all feasible controls.
Overwhelming Small Businesses. OSHA estimates that the Proposed Standard will apply to 1.3 million small business owners. The vast majority of them lack safety and health expertise, and will have extreme difficulty deciphering this complex, often confusing proposal. It took OSHA years to develop the rule, and more than 300 pages of the Federal Register to explain it. Small business owners will struggle to define such terms as "MSD," "manual handling" and "feasible," and to conduct job hazard analyses; ultimately, they will be hard-pressed to identify and comprehend their obligations under the rule's provisions.
Superseding State Workers' Compensation Systems. Section 4(b)(4) of the Occupational Safety and Health Act provides that "[n]othing in this Act shall be construed to supersede or in any manner affect any workmen's compensation law." Yet the Proposed Ergonomics Standard would do just that, by requiring employers to pay temporarily disabled workers their full salary and benefits for up to six months, substantially more than state workers' compensation systems would provide. This "work restriction protection" exceeds OSHA's standard-setting authority.
Leaving Employers To Solve the Work-Relatedness Dilemma. OSHA intends the Standard to cover only work-related MSDs, but the agency chose not to offer employers any guidance in the Proposed Standard as to how it will determine work-relatedness. As a general rule, the agency takes the position that an injury is work-related if working conditions contributed to it, even if other non-work factors also contributed. Although many studies have linked working conditions to MSDs, many questions remain unanswered, such as the role of stress or other psycho-social factors. Back injuries, for example, are extremely common among working Americans but, in many cases, tracing the causes of such injuries is all but impossible. Employers will have difficulty fulfilling their obligations under the draft to determine the work-relatedness of MSDs.
Questionable Cost Assumptions. Federal OSHA's cost estimate $4.2 billion per year may be unrealistic. OSHA estimates that it will cost an average of only $150 for an employer to eliminate ergonomic hazards at an employee's work station. While some "fixes" such as raising or lowering a work station may prove cheaper, many will require engineering modifications, new equipment or other expenditures costing thousands of dollars.
An Illusory Grandfather Clause. The Proposed Standard includes a grandfather clause for employers with effective ergonomics programs that do not comply with the rule. But in order to qualify, an employer's program must satisfy the basic obligation of each required program element. In short, nearly full compliance is a prerequisite to relief from full compliance. Few if any employers would benefit from this illusory grandfather clause.
What Should Employers Do Now?
Employers should not wait until Federal OSHA issues a Final Ergonomics Standard to assess whether ergonomic hazards may be present at their worksites. California is already enforcing its own ergonomics standard (see discussion below), and Federal OSHA will continue penalizing employers for ergonomics violations under the Occupational Safety & Health Act's General Duty Clause. 29 U.S.C. sec. 654(c)(1) (requiring each covered employer to furnish to each of his employees a workplace "free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees").
If they have not done so, employers should undertake an ergonomic hazard assessment to determine whether any jobs pose a significant risk of musculoskeletal disorders, and whether workers are suffering or may suffer on-the-job injuries as a result.
Risk factors that may suggest an ergonomic hazard include repetitive motion, awkward posture, heavy lifting and the use of force. Ergonomic hazards are particularly likely to be present when two or more of these factors are present in a job.
A thorough assessment will include a physical assessment of the workplace, a review of safety and health records and consultations with employees. If ergonomic hazards are identified, employers should identify and implement appropriate remedial measures, train employees as to how to avoid injury and address any injuries that occur promptly before they become serious or disabling.
California Court Upholds Cal/OSHA's Ergonomics Standard
On October 29, 1999, in Pulaski v. Cal. Occup. Safety & Health Std. Bd., 90 Cal. Rptr. 2d 54 (1999), the California Court of Appeal upheld California's ergonomics standard. In the process, the court repealed a small business exemption that previously had excluded employers with fewer than 10 employees from coverage under the standard. Following Pulaski, all California employers now are obligated to comply with California's ergonomics standard.
Cal/OSHA's Standard. California's ergonomics standard took effect in July 1997. Nevertheless, because of ongoing legal challenges, many California employers remain unaware of the standard and have not taken the necessary steps to ensure compliance. The standard requires an employer to institute a program designed to minimize repetitive motion injuries ("RMIs") in the workplace whenever two or more of its employees performing similar repetitive tasks have reported RMIs within a 12-month time span. Cal. Code Regs. Tit. 8 § 5110(a)-(b). These so-called "triggering" RMIs must be:
- predominantly work-related;
- caused by "identical work activity," meaning the same repetitive motion, such as word processing or assembly; and
- objectively identified and diagnosed by a licensed physician. Id. at § 5110(a).
In Pulaski, the court suggested that the determination as to whether an RMI is predominantly work-related should be made by the physician, not the employer, although it did not definitively rule on this issue. 90 Cal. Rptr. 2d at 66. In upholding the "objectively identified" requirement, the court noted that the Cal-OSHA Standards Board included the requirement to ensure that a diagnosis of an RMI "is done on measurable and observable signs and symptoms [and] not on just a subjective identification based on an employee's description of symptoms." Id. at 68.
Employer Obligations. Once the two-injury threshold is met, the employer is required to "establish and implement" a program designed to minimize RMIs. The program must have three components:
- a worksite evaluation to determine how the particular job, process or operation caused the RMIs;
- correction or control of the hazard that caused the RMIs; and
- training of employees regarding RMIs. Cal. Code Regs. Tit. 8 § 5110(b).
With respect to corrective actions, the standard states that the cause of the triggering RMIs "shall, in a timely manner, be corrected or if not capable of being corrected . . . minimized to the extent feasible." Employers are obligated to consider engineering controls (such as work station redesign or adjustable fixtures) and administrative controls (such as job rotation or work breaks) in assessing appropriate corrective actions. Training of employees must include an explanation of:
- the employer's ergonomics program;
- the exposures that the employer has determined are associated with the reported RMIs;
- the symptoms and consequences of injuries caused by repetitive motion;
- the importance of reporting symptoms and injuries to the employer; and
- methods used by the employer to minimize RMIs. Cal. Code Regs. Tit. 8 § 5110(b).
An employer who takes the foregoing steps to evaluate and correct RMIs and to train employees is deemed to be in compliance with the ergonomics standard, "unless it is shown that a measure known to but not taken by the employer is substantially certain to cause a greater reduction in such [RMIs] and that this alternative measure would not impose additional unreasonable costs." Cal. Code Regs. Tit. 8 § 5110(c). This is the so-called "safe harbor provision" of the standard. The Court of Appeal in Pulaski explicitly upheld the safe harbor provision, noting that it is intended "to grant protections to employers undertaking good-faith programs aimed at solving RMI problems, so long as more effective measures that would not entail unreasonable costs were not known to them." 90 Cal. Rptr. 2d at 64. The Court explicitly rejected a requirement that employers reduce RMIs "to the greatest extent feasible." Id.
Many Ambiguities Remain. In the wake of the Pulaski decision, it is likely that Cal-OSHA will begin to more vigorously enforce California's ergonomic standard. Unfortunately, the standard raises more question than it answers. For example, the term "identical work activity" is undefined. It appears, but is far from clear, that any employees who engage in word processing, even at different locations and on different types of keyboards, participate in "identical work activity." Similarly, it is unclear when an employee is deemed to have "reported" an RMI to the employer. For example, if an employee complains of joint pain but does not present a physician's diagnosis that the pain is an RMI or is predominantly work-related, it is unclear whether or how the employer is obligated to follow through on the complaint. Other examples of the standard's ambiguity include the steps required to "evaluate" an RMI hazard or to "minimize to the extent feasible" exposures that cause RMIs. Such questions likely will be answered only as employers challenge Cal-OSHA's efforts to enforce the standard.
In the meantime, employers who have not already done so should determine, to their best of their ability, whether two RMIs arising out of "identical work activity" have been "reported by . . . employees to the employer" within a 12-month span. If so, the employer should, at minimum, take the evaluation, correction/control and training measures outlined in the standard to ensure it falls within the standard's safe harbor provision. If the employer is aware of other measures that are substantially certain to cause a greater reduction in the RMIs, it must determine whether taking such measures would impose "additional unreasonable costs." Although the latter determination can be made only on a case-by-case basis, Cal-OSHA is likely to construe the term "unreasonable costs" very narrowly.
Even if an employer determines that the California ergonomics standard has not been triggered, it would be wise to take any reported RMI seriously. By preventing a second identical RMI from occurring within a 12-month period, the employer can avoid altogether the broad but uncertain obligations imposed by California's standard.
Notably, when Federal OSHA issues a Final Ergonomics Standard, California and other states with their own OSHA agencies will be required to adopt comparable ergonomics standards within six months. California likely will have to broaden its own standard substantially at that point.
Washington State Issues Ergonomics Proposal
On November 15, 1999, Washington OSHA issued a proposed ergonomics standard that would require Washington State employers to perform job hazard analyses, provide employee training and implement measures to control ergonomic hazards. North Carolina OSHA also has issued a proposed ergonomics standard. The North Carolina proposal would require employers to provide employee training, medical management and hazard control measures if MSD symptoms occur. The rule would cover "caution zone" jobs in which the typical work involves ergonomic risk factors such as awkward postures, repetitive motion or heavy lifting.
Employers would be required to provide "ergonomics awareness education" to workers in caution zone jobs at least once every three years. In addition, employers would have to assess whether each caution zone job involves an MSD hazard, defined as "a physical risk factor that by itself or in combination with other physical risk factors has a sufficient level of intensity, duration or frequency to cause a substantial risk of [MSDs.]" Most employers would be forced to hire an ergonomist to conduct this level of analysis. If MSD hazards are identified, the employer would be required to correct them through feasible engineering or administrative measures. The proposed standard would be phased in over six years.
*article courtesy of Gregory R. Watchman and John C. Oakes of Paul, Hastings, Janofsky & Walker LLP.