OSHA remains committed to imposing new and additional regulations on employers under its Working Draft of a Proposed Ergonomics Program Standard ("Standard") published in March of this year.
Establishing rules to require employers to adopt and implement an Ergonomics Program Standard is one of the two top priorities of the Assistant Secretary of Labor for Occupational Safety and Health, Charles N. Jeffress, before he leaves office. Jeffress reaffirmed that commitment in a July 21, 1999 speech to the OSHA Policy Subcommittee of the National Association of Manufacturers. However, on June 23, 1999 the Committee on Education and the Work Force voted to require OSHA to delay publication of its Ergonomics Standard until the National Academy of Sciences completes its ongoing research project, which is projected to be sometime during 2001. Secretary of Labor Alexis M. Herman was "deeply disappointed" by the Committee's vote. In a statement issued on the day of the Committee's vote, Secretary Herman pledged that "if Congress passes this bill I will urge the President to veto it."
There are many important aspects of the proposed Standard. Rudman & Winchell will address these issues in upcoming issues of this newsletter. This article will focus on the Standard's provision for medical management for mandatory accommodation of work related musculoskeletal disorders.
While the timing and ultimate fate of OSHA's Standard is uncertain, several of the policies championed by OSHA in its Standard would greatly increase the scope and nature of an employer's affirmative obligation to provide alternate duty to virtually any employee who suffers from a musculoskeletal disorder. Under the guise of "ergonomics," which OSHA has described as "...the science of fitting the job to the worker," any individual, and OSHA itself, would have the right (power) to compel an employer to do all of the following for any of its employees for whom the employee's health care professional has recommended work restrictions:
- Ensure that the work restrictions recommended for the employee are provided during the recovery period;
- Maintain the employee's total normal earnings, seniority, rights and benefits when work restrictions are prescribed or voluntarily provided; and
- Ensure that the health care provider periodically follows up on the employee during the recovery period.
The employer must provide these at no cost to the employee. "No cost to employees" means that training, medical management and other requirements of the Standard are to be provided to employees free of charge and while they are "on the clock."
OSHA's Standard would apply to employees regardless of whether they had a "disability," as that term is defined under the ADA, and regardless of whether they had a "serious medical condition," as that term is defined by the Family Medical Leave Act. Similarly, compliance with the OSHA Standard would be required even for employees whose musculoskeletal disorder did not arise out of and during the course of their employment, which is the requisite threshold for establishing a compensable (work related) injury under Maine Workers' Compensation Laws.
Also masquerading under the "medical management" rubric of OSHA's proposed Standard are obligations imposed upon employers to provide employees free access to prompt and effective evaluation, treatment and follow-up by health care professionals; and the standard dictates the process by which an employer will be permitted to communicate with health care professionals concerning an employee who has a musculoskeletal disorder.
OSHA's policies concerning the relationship between employers and health care professionals heralded by these provisions will be addressed in our next issue.