Warning: OSHA's Proposed Ergonomic Standard May Be Hazardous to Your Company's Health
On November 23, 1999, the Occupational Safety and Health Administration (OSHA) announced that it intends to regulate "ergonomic injuries" in the workplace. See 64 Fed. Reg. 65767-66078 (November 23, 1999) (Proposed Rule). If promulgated, the Proposed Rule will regulate musculoskeletal disorders (MSDs). An MSD is an injury or disorder of the muscles, tendons, ligaments, joints, cartilage or spinal discs. Employers covered by the Proposed Rule would be required to establish and maintain a comprehensive Ergonomics Program, the elements of which are described briefly below. As proposed, the Rule circumvents Pennsylvania's Worker Compensation laws in that covered employers must provide, for up to six months, 90 to 100 percent of after-tax earnings and benefits to employees with MSDs.
OSHA has estimated that the Proposed Rule will affect only 25 percent of the nation's employers and will cost those employers $4.2 billion. Both estimates, however, are likely to be optimistically low on OSHA's part. The Proposed Rule is designed to cover employers with workers involved in "manual handling or manufacturing production jobs." (Interestingly, the Proposed Rule does not, at this time, apply to the construction industry.) However, any employer (with one or more workers), even if not within the group described above, will become subject to regulation if such employer experiences a single work-related MSD claim after the effective date of the Proposed Rule.
Note that even if the employee's job does not cause, but only contributes to the MSD, the employee may nevertheless be eligible for paid leave at 90 percent of his or her normal wage, or "light duty" at 100 percent of normal wage. Although there must be a diagnosis of an MSD by a health care provider (HCP), the Proposed Rule prohibits the HCP from disclosing non-work-related MSD hazards to the employer. In other words, if the employee discloses to the HCP that he or she is routinely exposed to numerous MSD hazards outside work (e.g., sewing, weight lifting, video games, home carpentry, etc.), the HCP cannot inform the employer of those facts. Despite the potential for MSDs as a result of the worker's recreational activities, if the worker's job is "reasonably likely to contribute" to an MSD, the worker is eligible for benefits.
To be considered covered, an MSD injury must be:
- diagnosed by a health care professional, result in a positive finding or serious enough to require medical treatment, days away from work or assignment to light duty work - i.e., an "OSHA recordable injury"
- directly related to the employee's job
- specifically connected to activities that form the core or a significant part of the worker's job.
OSHA contemplates requiring covered employers to provide an Ergonomics Program including the following elements: Management Leadership and Employee Participation; Hazard Information and Reporting; Job Hazard Analysis and Control; Training; MSD Management; Program Evaluation; and Recordkeeping.
In implementing the Ergonomics Program, each covered employer must, among other things, provide employees with a description of the "signs and symptoms" of MSDs and encourage employees to come forward to report any such signs or symptoms. The employer will then be required to "promptly respond" to the employee's complaint and, if the employee is diagnosed with an MSD, to provide full wages and benefits to the injured employee.
OSHA will accept public comment on the Proposed Rule until February 1, 2000 (written comments must be postmarked by that date). Gregory Narsh in our Harrisburg office has considerable experience with OSHA matters at all stages, including compliance, enforcement and appeals.
OSHA Client Alert is a publication of Pepper Hamilton LLP. The materials contained herein are based on laws, court decisions, administrative rulings, and congressional materials and should not be construed as legal advice or legal opinions on specific facts. Copyright 2000 Pepper Hamilton LLP. All rights reserved.