On July 2, 1999, the U.S. Occupational Safety and Health Administration forwarded a broad ergonomics proposal to the Office of Management and Budget for review, with plans to publish it in the Federal Register by the end of the year. The draft Ergonomics Standard would require any employer with one recordable musculoskeletal disorder (such as carpal tunnel syndrome, a back injury or even swelling) to set up a comprehensive ergonomics program. This complex, major new rule would extend OSHA's enforcement focus beyond manufacturing, to cover financial services and other white-collar office environments, as well as retail establishments and other service-related industry sectors.
OSHA is also pressing forward with a Safety and Health Programs (S&HP) Regulation that would require all general industry employers. including those with no work-related injuries or illnesses . to establish an even broader safety and health program "appropriate to workplace conditions." Together, these two new rules signal OSHA's increased focus on millions of employers who have up to now received little attention from the agency. All businesses, and especially those who have had little interaction with OSHA in the past, should understand the scope of these new mandates and the obligations they would impose.
The Draft Ergonomics Standard
Federal OSHA published the draft Ergonomics Standard on its website on February 19, 1999, four months after the expiration of a congressional ban that had prohibited the agency from issuing an Ergonomics Standard during fiscal years 1995, 1996 and 1998. Congressional action followed the release of a broadly-framed draft standard in 1995 that provoked intense opposition.
Since then, OSHA has said that it would narrow the standard to cover only manufacturing and manual handling operations, in which many musculoskeletal disorders (MSDs) occur and effective solutions are known. But OSHA expanded the February draft to cover any general industry employer who experiences one recordable work-related MSD, if a significant part of the affected employee's job involves exposure to ergonomic hazards reasonably likely to cause or contribute to the type of MSD reported. The standard would not apply to construction, maritime and agricultural employers. Thus, the draft rule would likely require an employer to implement a comprehensive workplace ergonomics program if it experiences a single case of carpal tunnel syndrome, a back injury, swelling or even a work-related MSD symptom (such as tingling or stiffness) if it is accompanied by medical treatment or lost worktime.
The draft standard would impose even broader obligations on employers with manufacturing or manual handling operations, by requiring them to set up a "mini-program" even if they have no MSDs. The mini-program would cover manufacturing production jobs, as well as those jobs requiring an employee to "lift, lower, push, pull or carry" material, where such work is routine and requires "substantial effort." The mini-program would include three elements:
- Management Leadership. The draft 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 draft would require employers to involve employees in establishing, implementing and evaluating the program, provide employees with access to relevant information, establish a way for employees to report signs and symptoms of MSDs as well as ergonomic hazards, and respond to employee complaints and recommendations.
- Hazard Identification and Information. The draft would require employers to provide information to employees so they can recognize and report ergonomic hazards. Employers would also have to review their records to identify MSDs and ergonomic hazards.
Employers in general industry (including manufacturing and manual handling operations) who experience one or more MSDs would have to establish a full program. The program would cover those job classifications in which an MSD was recorded, as well as other "problem jobs" identified through a job hazard analysis. 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 in the mini-program, plus the following:
- Job Hazard Analysis and Control. The draft proposal 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 and track progress in controlling the hazards. The draft states that engineering controls (such as redesigning work stations, processes or equipment) are "preferred" over administrative controls (such as job rotations) or personal protective equipment. Finally, if MSDs persist, the draft would require employers "to continue to look for solutions... and implement feasible ones as soon as possible."
- Employee Training. The draft 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.
- Medical Management. The draft would also require medical management following the identification of MSD signs and symptoms. For example, if an employee reported pain or swelling, the draft 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. Finally, the draft would require that the employer maintain the employee's salary and benefits if he or she is unable to work or can only perform restricted duty. 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. These obligations may conflict with other obligations employers may have under the Americans with Disabilities Act of 1990 or collective bargaining agreements. 42 U.S. Code section 12101 et seq.
- Program Evaluation. The draft 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.
The draft would require employers to maintain records if problem jobs are found at more than one worksite, or involve shift work, or if there is more than one level of supervision above the employees in such jobs. These records would include employee complaints, employer responses, job hazard analyses, hazard control plans, medical management records and program evaluations.
Implications of the Draft Ergonomics Standard
The draft Ergonomics Standard released by OSHA would impose a broad, new mandate on millions of U.S. employers, many of whom are in industries outside OSHA's traditional focus on manufacturing and construction. Notably, California has already issued an ergonomics standard, and state OSHA agencies in Washington, North Carolina, and other states are developing their own. Compared to Cal/OSHA's standard, however, Federal OSHA's draft standard would apply to far more employers, encompass a broader range of injuries, include a lower action threshold and require more preventive steps.
OSHA's program-based approach may well be preferable to dictating specific ergonomic solutions. But the draft contains many new obligations that may not be necessary in many workplaces. For example, the draft would require that a covered employer obtain a written opinion from a health care professional following an employee complaint of one MSD sign or symptom, such as tingling, aching, swelling or cramping, even if the condition does not persist.
OSHA intends the Standard to cover only work-related MSDs, but the agency chose not to offer employers any guidance in the draft 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. Employers will have difficulty fulfilling their obligations under the draft to determine the work-relatedness of MSDs.
As noted above, the draft would require that employers set up a comprehensive ergonomics program following the occurrence of one "recordable" MSD. Under OSHA's proposed recordkeeping revisions, an MSD is recordable if either a health care provider makes a diagnosis, or there are objective findings (such as observable physical conditions), or there are subjective symptoms (such as pain or numbness) coupled with medical treatment or lost or restricted workdays. Thus, when an employee has swelling or another MSD sign, or complains of numbness or another MSD symptom and takes sick leave, and the employer concludes that the condition is work-related, the employer must establish a comprehensive program. The recordability test was designed as an extremely wide net to allow effective early identification of potential MSDs. OSHA may have adopted it as a trigger for substantial new mandates without fully considering its suitability for such purposes.
The draft represents perhaps the most complex rulemaking the agency has undertaken. For example, under the draft's hazard prevention and control requirement, employers must take unspecified remedial measures. 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" a problem job? 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.
The Draft Safety and Health Programs Regulation
In December 1998, OSHA posted a Draft Proposed Safety and Health Programs (S&HP) Regulation on the agency's internet website. OSHA's goal is to issue a relatively short, plain language rule that will require managers and workers to establish a worksite-specific system to find and fix hazards on an ongoing basis. The draft S&HP Regulation covers ergonomic hazards, and thus may overlap with the Ergonomics Standard. At present, the agency intends that in such cases employers will set up comprehensive ergonomics programs consistent with the Ergonomics Standard, as part of an overall safety and health program.
The agency believes that safety and health programs represent the most effective means of protecting workers, and cites evidence that such programs have reduced injuries and illnesses, and in some cases reduced costs, improved morale and increased productivity.
The draft S&HP Regulation would apply to all general industry employers, including maritime employers, regardless of their injury and illness rates. (The agency is developing a separate safety and health programs rule for construction.) Notably, OSHA is likely to face substantial pressure to exempt low-hazard industries. Numerous state OSHA agencies have already issued safety and health program requirements, and most of these states have exempted low-hazard employers.
Each covered employer would be required to establish a safety and health program "appropriate to conditions in the workplace" to protect workers from hazards covered by existing OSHA standards or by Section 5(a)(1) of the OSH Act (the "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"). The program would have to include six elements, including management commitment, employee participation, hazard identification and assessment, hazard prevention and control, employee training, and periodic program evaluation. These elements closely track those included in the draft Ergonomics Standard.
The agency's statutory bases for the regulation are Sections 6 and 8 of the Occupational Safety and Health Act of 1970, which give the agency broad authority to issue standards and regulations, and specifically authorize OSHA to issue regulations "requiring employers to conduct periodic inspections." OSHA's critics claim that the rule is a standard rather than a regulation, and that it should be subject to much more stringent regulatory criteria. Before issuing a standard, OSHA must demonstrate that workers are exposed to a significant risk, that the proposed standard would reduce that risk, and that the proposed standard's requirements are both economically and technologically feasible. The agency is not required to meet these tests when issuing generic regulations such as recordkeeping.
OSHA recently conducted a Small Business Regulatory Review Panel on the draft S&HP Regulation, receiving input from a range of small business owners. Their principal concern was that OSHA had substantially underestimated the rule's costs, which would include recordkeeping, training and hiring consultants. While OSHA's draft proposed rule makes two small adjustments for the very smallest employers, these changes are not likely to soften opposition to the rule from the small business community. Those employers with fewer than 10 employees would not be required to keep hazard assessment and control records, and would have double the time periods to come into compliance with the rule.
OSHA included a "grandfather clause" in both the draft S&HP and the Ergonomic Rules, for existing programs that differ from the rules. The clause would have limited impact, however, because it would require that these existing programs include each of the core elements set forth in the rule. Minor variations would be allowed if an employer's alternative mechanisms were as effective as those set forth in the rules.
OSHA will have to address a number of key issues in the Safety and Health Programs Rulemaking. For example, OSHA intends this regulation to leave employers with significant flexibility to tailor their programs to their specific needs. But how will concepts like "management commitment" and "employee involvement" be measured? Similarly, training and program evaluation must be conducted "as often as necessary," and the program must be "appropriate" to workplace conditions. How will OSHA assess compliance with these requirements?
OSHA has stated that it would cite employers for systemic safety and health program violations, rather than for an individual violation of another standard. The agency has also indicated that it would assess penalties for violations of the S&HP Regulation only if the agency also found a pattern of hazards at the workplace. Many employers worry that the draft S&HP Regulation would give too much discretion to OSHA inspectors who as of now have little training in program evaluation.
OSHA expects to publish the Proposed Safety and Health Programs Regulation in the next few months, conduct hearings and written comment periods, and issue a final rule in 2000. The Ergonomics Standard is a few months behind, with publication of a Proposed Standard expected later this year.
Business opposition to both rules is likely to be intense. In addition, Congress is closely following the two rulemakings, and will likely hold hearings on them in the coming months. Notably, Congress banned the ergonomics standard in 1995, 1996 and 1998. In August, the U.S. House of Representatives passed legislation prohibiting a final Ergonomics Standard until the National Academy of Sciences completes a two-year ergonomics study. The Senate will consider the measure this Fall.
Although the formal rulemaking process for each of these two rules (involving written comment periods and hearings) will not commence until OSHA publishes a Proposed Standard in the Federal Register, the agency wants feedback. Employers should submit comments to the agency either individually or through their trade associations, to communicate their views and ensure that OSHA understands the practical implications of the draft Ergonomics Standard.
Ultimately, OSHA will face a difficult political battle to issue final rules on Safety and Health Programs and Ergonomics, and the approaching election year will only make the challenge greater. The success of the agency's effort may depend on its ability to win support from segments of the business community or from moderate Republicans and Democrats in the Congress. If OSHA succeeds in issuing these two rules, it will likely have to defend them against subsequent legal challenges.
*article courtesy of Gregory R. Watchman of Paul, Hastings, Janofsky & Walker LLP.