After years of intense controversy, Congressional action and vigorous debate among regulatory officials, unions, occupational health experts and employers-the Occupational Safety and Health Administration of the U.S. Department of Labor (OSHA) recently published a proposed rule to establish a general industry standard on workplace ergonomics programs. The rulemaking initiative, which OSHA Administrator Charles Jeffress vows to complete in 2000 (before the Clinton Administration leaves office), long has been a principal regulatory priority of organized labor, and has been opposed just as vigorously by most employers and industry groups.
Even prior to the development of this new rule, OSHA has been investigating working conditions that appear to trigger "musculoskeletal disorders" for many years, and has cited employers (often through "egregious", sizeable penalties) under the "General Duty Clause" of the Occupational Safety and Health Act ("OSH Act") found at Section 5 (a)(1) of that statute. Although OSHA has had difficulty in successfully prosecuting contested ergonomics cases, it entered into a series of widely publicized settle-ment agreements, some of which covered all of a cited corporation's facilities, rather than the single site subject to inspection and citation. These agreements have imposed substantial financial penalties, and have required adoption of detailed workplace ergonomics programs.
Intense controversy has surrounded the development of ergonomics rules. Employers often argue that not enough is known about the role of work and other identified "risk factors" in the development of targeted health problems to warrant regulation. They also note that such regulatory requirements will impose very substantial costs without any clear or demonstrable benefit (due to the absence of clear and predictable "cause and effect" relationships between stressors and individual injuries). Unions, some academics and some regulators feel that adequate science and real-world experience demonstrate the clear connection between the identified stressors and employee injury. Congress, which had previously blocked regulatory action by OSHA in this area, has appropriated funds for a National Academy of Sciences study of the existing scientific literature on these points. A House-passed bill, the "Workplace Preservation Act", would block OSHA's final action on this rulemaking until that study is complete.
Basic Coverage Provisions
The regulation proposed by OSHA would apply automatically to employers with employees who work in "manufacturing" or "manual handling" jobs, as those terms are defined by the rule. In addition, the regulation would apply to other employers whose employees report one musculoskeletal disorder (MSD) after the rule's effective date, where the physical activities and conditions on the job are "reasonably likely to cause or contribute to" the condition, and where those activities and conditions are either a core element of the job, or require a significant amount of the employee's worktime. While the rule incorporates a job-based "trigger" (meaning that it only applies to the jobs in which such conditions exist, rather than an entire company or worksite), the broad definitions are expected to entail coverage for employers in a wide range of industries. (Agricultural, construction and maritime operations are excluded from this proposal.)
OSHA proposes to define MSDs as injuries and disorders of the muscles, nerves, tendons, ligaments, joints, cartilage and spinal discs. Examples of MSDs given in the proposed standard include carpal tunnel syndrome, rotator cuff syndrome, De Quervain's disease, trigger finger, tarsal tunnel syndrome, sciatica, epicondylitis, tendinitis, Raynaud's phenomenon, carpet layers' knee, herniated spinal disc, and low back pain. However, MSDs would not include injuries caused by slips, trips, falls, or other similar accidents.
Program Elements
Employers whose employees work in manufacturing or manual handling jobs will be required to implement two elements of the ergonomics program ("Management Leadership and Employee Participation," and "Hazard Information and Reporting"), even if no MSD has occurred in those jobs. In other employment positions, employers must comply with a series of program elements if a covered MSD is reported or if the employer is aware of an ergonomic hazard, unless the MSD hazards are eliminated using a "Quick Fix" option, discussed below.
Employers would be able to continue their existing ergonomics programs if they can show that those programs satisfy the basic requirements of each program element in the proposed standard. Employers would be required to be in compliance with the recordkeeping requirements of the proposed standard and would need to show that they have implemented and evaluated an effective program and appropriate control measures before the effective date of the proposed standard. These employers would have to perform a program evaluation that shows their ergonomics programs are functioning properly and are in compliance with hazard controls described in the proposed standard.
Basic Programs
The proposed standard would require employers with manual handling or manufacturing production jobs to assign and communicate responsibilities for setting up and managing the ergonomics program so managers, supervisors and employees know what is expected of them and how they will be held accountable for meeting those responsibilities. These assigned employees must be given the authority, "resources," information and training necessary to meet their responsibilities. Employers would also be required to provide employees (and their designated representatives) with ways to report "MSD signs" and "MSD symptoms;" get responses to reports, and be involved in developing, implementing and evaluating each element of the program. Employers would be prohibited from policies or practices that discourage employee participation in the program or discourage reporting MSDs signs or symptoms.
The second element of a basic program would require employers to periodically provide information to employees explaining the contents of the OSHA standard, ergonomic risk factors, signs and symptoms of MSDs and the importance of early reporting of MSDs. The employer would also be required to evaluate employee reports of MSD signs and symptoms to determine whether a covered MSD has occurred.
The "Quick Fix" Option
The "Quick Fix" alternative described in the proposed standard is intended to address situations that can be remedied immediately. Employers would be required to provide prompt care for injured employees and to work with employees to implement corrective measures within 90 days of an MSD. The employer would then be required to evaluate the effectiveness of their corrective measures within 30 days after implementation of those measures. The evaluation and implementation of corrective measures must be documented and the employer must implement a full ergonomics program if the remedies fail or if another MSD of the same type occurs in the same job within 36 months.
Full Program Elements
Employers with covered MSDs as described in the proposed standard would be required to implement additional elements of a full ergonomics program, including job hazard analysis, control and employee training. These would include analyzing problem work tasks for ergonomic risk factors and working with employees to minimize risks using engineering, administrative and/or work practice controls. Use of personal protective equipment (PPE) by employers is primarily intended to supplement these other controls; PPE can be utilized by itself solely in circumstances in which other controls are not feasible. The full program must also include a mechanism to track progress and to identify and evaluate MSD hazards whenever new or modified tasks are introduced.
A full ergonomics program would include training for employees in positions with covered MSDs, their supervisors and staff responsible for the ergonomics program.
Training content would include recognition of MSD hazards, contents of the site-specific ergonomics program and control measures used to reduce hazards. Employers would be required to provide initial training and refreshers at least every three years at no cost to employees and in a language the employees understand.
For workers with covered MSDs, a full ergonomics program would include prompt response to injury reports and access to healthcare professionals for evaluation and follow-up care at no cost to the employees. Employers would be required to provide information to healthcare professionals about specific job tasks and MSD hazards, as well as the contents of the OSHA standard.
A particularly controversial aspect of the proposal are requirements governing protection and compensation for employees facing limitations due to a MSD. Additionally, employers would be required to comply with necessary work restrictions and work restriction protection (WRP) during the recovery period (100% pay and benefits for employees put on light duty; 90% pay and 100% benefits for employees who must be removed from work). WRP benefits would last until the employee can return to work or the MSD hazards are fixed or six months have passed-- whichever comes first. WRP could be offset by workers' compensation or similar benefits. These particular provisions are likely to generate additional opposition to OSHA's initiative, due to their impact on employer costs and their overlap with the current framework of state workers' compensation laws.
Employers would be required to evaluate their full programs at least every three years, including consultation with affected employees and correction of any identified deficiencies. For employers with ten employees or more, records of the ergonomics program would be retained for at least three years. Again, existing ergonomics programs could be "grand-fathered" if the employers can demonstrate that those programs meet the basic obligations and recordkeeping requirements, were implemented and effective before the proposed standard, and are controlling or eliminating MSD hazards. Employers would be deemed to be in substantial compliance with the proposed standard when their controls eliminated or materially reduced MSD hazards.
Discontinuing an Ergonomics Program
If MSD hazards are eliminated or materially reduced and no covered MSD is reported for three years, employers may stop all but the following aspects of their ergonomics programs under the proposed standard:
For manufacturing or manual handling jobs:
- Management leadership and employee participation
- Hazard information and reporting
- Maintenance of implemented controls and training related to those controls
For other general industry jobs where a covered MSD had been reported, employers could stop maintenance of controls and training related to those controls.
Effective Dates of Key Provisions
The Ergonomics Program Standard would become effective 60 days after publication of the final rule. Individual provisions would be phased in as follows. One year after the effective date, management leadership, employee participation, hazard information and reporting must be in place. Two years after effective date, job hazard analysis, training and interim controls must be completed. Three years after the effective date, employers must have permanent controls and program evaluations in place.
Outlook for Final Agency Action
OSHA's leadership has committed the agency to move with the regulatory equivalent of the "speed of light" on the ergonomics standard. They have a goal of going from a proposed standard to final agency action in one year. Most standards take the agency several years (or longer) to finalize, even from the point of the rule's formal proposal. This emphasis on speedy action is derived from the perception of OSHA's leadership that this is a critical area of workplace safety and health that must be addressed, the push that comes from the Administration's supporters in organized labor, and concerns about the priorities of new agency leaders after the 2000 Presidential election. Given the high stakes associated with this regulatory proposal, the policy debate and the political battle that will unfold over the coming months will be of great interest to all employers.
*article courtesy of Peter A. Susser, Jeffrey M. Tannenbaum, and Cheryl A. Grede of Littler Mendelson P.C., info@littler.com