On November 14, 2000, the Occupational Safety and Health Administration (OSHA) issued its standard intended to address work-related musculoskeletal disorders (MSDs) such as back injuries and carpal tunnel syndrome. This long-expected final ergonomics standard was issued as a follow-up to the proposed standard issued on November 23, 1999.
OSHA's standard on ergonomics ("Ergonomics standard" or "the standard") is now in final form and takes effect on January 16, 2001, although employers need not implement its central requirements until October 2001. The standard is being challenged in court by a broad range of industry groups and trade associations because of its anticipated significant impact. Aside from the economic ramifications of developing and implementing ergonomics programs required by the standard, the standard is especially controversial because it supersedes state workers' compensation laws as to the amount of pay injured employees will receive. Congressional action concerning the standard also cannot be ruled out given the contentious history of its development. On at least three occasions Congress has prohibited OSHA from working on or issuing such a standard, and it has been a subject of discussion during budget negotiations in the fall of 2000.
All General Industry Employees Covered. The standard covers all general industry worksites. This includes such diverse industries as nursing homes, package delivery, grocery stores, meat cutting, and clothing manufacture. It does not cover the construction industry, maritime industries, railroads, or agriculture. The coverage is broader than the standard proposed in 1999.
The Standard Requires Adoption of Ergonomics Programs. The standard requires all employers to inform workers about common musculoskeletal disorders, signs and symptoms and the importance of early reporting of such signs and symptoms.
A second set of requirements is triggered when an employer has an employee who reports signs or symptoms of a musculoskeletal disorder. When a worker reports such signs or symptoms, the employer must determine whether the injury is a "musculoskeletal disorder incident." A musculoskeletal disorder incident is defined as:
- a work-related musculoskeletal disorder that requires medical treatment beyond first aid;
- assignment to a light duty job or temporary removal from work to recover; or
- work-related musculoskeletal disorder signs or symptoms that last for seven or more consecutive days.
In the final standard, unlike the proposed standard, OSHA has provided guidance as to how to tell if the disorder is work-related.
If the report is determined to be a musculoskeletal disorder incident, the employer must check the job, using OSHA's criteria, to determine whether the job exposes the worker to risk factors that could trigger musculoskeletal disorder problems. If the risk factors on the job meet the levels of exposure in OSHA's criteria, then the job will have met what OSHA calls an "action trigger."
If the job meets the action trigger, the employer must either comply with a "quick fix" option or must implement an ergonomic program. The quick fix only applies if there is no more than one musculoskeletal disorder in the specific job and there have been no more than two such incidents in the facility in the last 18 months. A full program includes the following elements:
- Management Leadership and Employee Participation: The employer must set up a musculoskeletal disorder reporting and response system and an ergonomics program and provide supervisors with the responsibility and resources to run the program. The employer also must assure that policies encourage employee participation in the program, and the reporting of musculoskeletal disorders, musculoskeletal disorder signs and symptoms, and musculoskeletal disorder hazards. Employees also must be given the opportunity to participate in the development, implementation, and evaluation of the ergonomics program.
- Job Hazard Analysis and Control: The employer must conduct a job hazard analysis to determine whether musculoskeletal disorder hazards exist in the job. If hazards are found, the employer must implement control measures to reduce the hazards. Employees must be involved in the identification and control of hazards.
- Training: The employer must provide training to employees in jobs that meet the action trigger, their supervisors or team leaders and other employees involved in setting up and managing the ergonomics program.
- Musculoskeletal Disorder Management: Employees must be provided, at no cost, with prompt access to a Health Care Professional, evaluation and follow-up of a musculoskeletal disorder incident, and must be granted any temporary work restrictions that the employer or the health care professional determines to be necessary. Temporary work restrictions include limitations on the work activities of the employee in his or her current job, transfer of the employee to a temporary alternative duty job, or temporary removal from work.
- Work Restriction Protection: Employers must provide Work Restriction Protection to employees who receive temporary work restrictions. This means maintaining 100% of earnings and full benefits for employees who receive limitations on the work activities in their current job or transfer to a temporary alternative duty job, and 90% of earnings and full benefits to employees who are removed from work. Such protection exists for 90 days, or until the employee is able to return safely to the job, or until a health care professional determines that the employee is too disabled to ever return to the job, whichever comes first. The standard also contains a process permitting the employee to use his or her own health care professional as well as the employer's health care professional to determine whether work restrictions are required. A third health care professional may be chosen by the employee and the employer if the first two disagree.
- Program Evaluation: The employer must evaluate the ergonomics program to make sure it is effective and includes employees in this process.
- Recordkeeping: Employers with 11 or more employees, including part-time employees, must keep records of employee reports of musculoskeletal disorders; signs and symptoms of such disorders and hazards involving such disorders; responses to such reports; job hazard analyses; hazard control measures; ergonomics program evaluations; and records of work restrictions and the health care professionals' written opinions. Employees and their representatives must be provided access to these records.
When Will the Standard Become Effective? If the standard survives possible congressional intervention and numerous pending challenges by industry groups, it will have a four-year phase in period. Even though the standard has been challenged in court, it may go into effect unless a stay is granted.
Employers must begin to distribute information, and receive and respond to employee reports by October 15, 2001. Employers must implement permanent controls by January, 2005 or two years following determination that a job meets the action trigger, whichever comes later. Interim controls must be implemented within 90 days after the employer determines that the job meets the action trigger.
What Should Employers Do? There have been challenges to the standard, and OSHA has even provided for public hearings on the standard. But employers would be well advised, if they have not already done so, to evaluate their workplaces to determine the potential for musculoskeletal disorders and to evaluate the impact of the standard and the steps necessary for compliance.
*article courtesy of R. Henry Moore of Buchanan Ingersoll & Rooney, PC, moorerh@bipc.com