On November 23, 1999, the Occupational Safety and Health Administration issued a proposed rule intended to address work - related musculoskeletal disorders such as back injuries and carpal tunnel syndrome. This long - expected proposed ergonomics rule was issued as a follow - up to the draft rule issued in February 1999.
The rule will not be issued in final form for at least a year, if not longer. The comment period on the rule ends February 1, 2000 and informal public hearings around the country begin on February 22, 2000. Even when the rule is published in final form, it is expected to be challenged in court by a broad range of industry groups and trade associations because of the significant impact of the rule. Aside from the economic impact of developing ergonomic programs, the proposed rule will be especially controversial because it attempts to supersede state workmen's compensation laws as to the amount of pay injured employees will receive. Congressional action concerning the rule also cannot be ruled out given the contentious history of the development of the proposed rule. On at least three occasions Congress has prohibited OSHA from working on or issuing such a rule.
More Than 1.6 Million Worksites Covered
The proposed rule covers approximately 1.6 million general industry worksites with workers involved in manual handling or manufacturing production. This includes such diverse industries as nursing homes, package delivery, grocery stores, meat cutting, and clothing manufacture.
The proposed rule also covers all general industry employers with one or more workers who experience work - related musculoskeletal disorders. The proposed rule provides that the occurrence of a single such disorder will trigger application of the full rule to an employer. The rule defines such a disorder as one diagnosed by a health professional as serious enough to be an "OSHA - recordable" injury, i.e., one requiring medical treatment, days away from work or assignment to light duty. To qualify the injury must be directly related to the employee's job and must be specifically connected to activities that form the core or a significant part of the worker's job. This trigger for application of the rule has the potential to affect almost all industries.
The Proposed Rule Requires Adoption of Ergonomics Programs
The proposed rule establishes three levels of programs. Employers involved in manual handling or manufacturing production will be required to implement a basic program to train employees about musculoskeletal disorders and to encourage them to report such disorders. A second level program is triggered when an employer has an employee who experiences a musculoskeletal disorder. Then the employer can attempt to perform what OSHA calls a "quick - fix" to eliminate the hazard and verify that the remedy worked. A third level requires the employer to implement a full ergonomics program, if the quick fix does not work or another musculoskeletal disorder in the same job is experienced.
A full program includes more extensive training of employees than the basic program, job hazard analysis, control of hazards with engineering, administrative and/or work practice controls, use of personal protective equipment, management of the disorder in conjunction with health care professionals, program evaluation and recordkeeping. This portion of the rule also requires employers to pay employees on light duty because of musculoskeletal disorders, 100% of their pay and benefits and employees who must be removed from work, 90% of their pay and 100% of their benefits for six months.
Employers who have already developed ergonomics programs will still be required to meet the basic obligations and recordkeeping requirements of the standard and to demonstrate that their programs eliminate or materially reduce the hazard of musculoskeletal disorders.
When Will the Rule Become Effective
The proposed rule provides for a three - year phase in period after it becomes final.
What Should Employers Do
There are substantial opportunities to provide comments on the proposed rule to OSHA and employers in affected industries would be well advised to do so, either as individual or through trade associations. Employers would also be well advised, if they have not already done so, to evaluate their workplaces to determine the potential for musculoskeletal disorders both because of the potential for compensable injuries and enforcement by OSHA under its general duty clause should a pattern of such disorders occur.