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(December 2000)
New OSHA Ergonomics Standards
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January 16,
2001.
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Most employers
in “interstate commerce;” possibly all California employers
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For the past decade, employers
have been hearing about the on-again, off-again attempts
by OSHA to promulgate binding standards regarding ergonomic
safety in the workplace. On November 14, 2000, in the
midst of all of the wrangling over the federal budget
impass and the presidential election gridlock, OSHA rushed
to conclude its rule making process and issued its new
ergonomic standards. The new Ergonomics Standard (to
be codified at 29 C.F.R. § 1910.900) is estimated to
be the broadest, most expensive safety and health standard
yet for OSHA.
The rules are intended to protect against workplace injuries
for more than 100 million workers who perform repetitive
functions such as typing, working on an assembly line,
sliding groceries past scanners or lifting heavy loads.
OSHA estimates that the new regulations would cost industry
about $4.5 billion per year — and would actually end up
saving businesses money due to reduced workers’ compensation
costs and improved productivity over time. Industry groups
said OSHA’s standards are arbitrary, and that OSHA grossly
underestimated the cost of the regulations. According to
one industry study, the new rules would cost U.S. businesses
more than $90 billion a year.
The Ergonomics Standard contains numerous terms that are
broad, vague and ambiguous. The debate and inevitable litigation
over the meaning of these terms will only add to the cost
and difficulty imposed by these regulations. Essentially,
they will apply to all employers covered by the Occupational
Safety and Health Act — a very broad category encompassing
most employers engaged in a business affecting "interstate
commerce" as that term is very broadly defined—except certain
specified segments. Excluded (for now) from OSHA's ergonomics
requirements are construction operations, maritime activities,
agriculture, and railroads.The impact on preexisting California
regulation of ergonomics remains unclear. A Cal-OSHA regulation
must be "at least as effective" as a Fed/OSHA regulation
on the same subject. 29 U.S.C. § 667(c)(2). The Fed/OSHA
standard is clearly more onerous. This does not, however,
mean it is more effective. However, Cal-OSHA will be under
tremendous pressure from proponents of ergonomics to either
adopt the federal standard or make their preexisting requirements
even more onerous. If it does, then such standards essentially
would apply to all California employers. |
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What
the Regulations Require
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Communication: There
is a major new communication requirement contained in
the Standard regarding all current and new employees.
Covered employers must provide such individuals with
basic information about common "musculoskeletal
disorders" (MSDs) including their signs or symptoms,
the importance of early reporting of such conditions,
and their signs or symptoms. In addition, employees must
be told how to report MSDs in the workplace; the kind
of risk factors, jobs, and work activities that are associated
with these hazards; and a short description of the requirements
of the Ergonomics Standard. This information is to be
provided in written form or—if all employees have access—in
electronic form. This information is to be provided to
employees within 14 days of hiring and must be posted
in a conspicuous place in the workplace.
Obligations Upon
Report of MSD or
MSD Symptoms: If
employees report
that they are experiencing
an MSD or the signs
and symptoms of an
MSD, the employer
must promptly determinate
if it qualifies as
an "MSD incident" OSHA
defines that term
as an MSD that is "work-related" and
requires days away
from work, restricted
work, or medical
treatment beyond
first aid, or—alternatively—signs
or symptoms that
are work-related
and that last for
seven or more consecutive
days after the employee
reports them to the
employer.
If an MSD incident has occurred, the employer is required
to determine if the job meets OSHA's "Action Trigger," i.e.,
if the job routinely involves exposure to certain risk
factors identified by OSHA. If so, an employer then must
either comply with the Standard's "Quick Fix" option, or
it must develop and implement a full ergonomics program.
The "Quick Fix" will come into play only in limited circumstances,
including those involving jobs in which employees have
not experienced more than one MSD incident, and where there
have not been two MSD incidents in the employer's entire
establishment in the preceding 18 months. If it may apply,
the employer must act promptly to implement certain controls
and to review the effectiveness of hazard reduction efforts
for that job. If the Action Trigger is met, and the Quick
Fix does not apply, a full ergonomics program must be implemented
(at least as to the reported job and all other jobs in
that establishment that are the same). Such a program includes:
Job hazard analysis; hazard reduction and control measures;
a training program with a 3-year cycle; management leadership;
and full employee participation.
However, the most controversial element of the full program
is the requirement of "MSD management." This includes:
Access to a health care professional; accommodation of
necessary work restrictions, including time off for recovery; "work
restriction protection"—which means maintenance of earnings
and benefits, including 100 percent of an employee's normal
earnings and benefits for up to 90 days for light-duty
work, and 90 percent of an employee's normal earnings and
full benefits if the employee is unable to work; and evaluation
and follow-up of the MSD incident.
Other General
Requirements: The
Standard requires
employers to evaluate
their ergonomics
programs at least
every three years.
That assessment must
consider the elements
of the program, whether
MSD hazards are being
effectively identified
and addressed, and
whether the program
is achieving positive
results, as shown
through reduced numbers
and severity of MSDs.
Consultation with
employees and their
representatives about
program effectiveness
and any problems
is mandated by the
federal agency. The
Ergonomics Program
Standard also has
detailed specifications
about maintenance
of records generated
under its requirements,
and includes the
obligation of employers
to make virtually
all program materials
available upon request
to employees and
their representatives,
as well as OSHA.
OSHA cautions employers against policies or procedures
that discourage employees from reporting the signs or symptoms
of MSDs or the existence of MSD hazards in the workplace.
This concept also triggered much controversy, as OSHA has
a different and broader view than most employers as to
what might discourage such participation by employees (e.g.,
certain safety incentive programs or certain approaches
to workplace drug testing).
Dealing With Doctors: The
final Standard contains
additional detail
regarding employers'
dealings with health
care providers (HCPs).
It provides that
whenever an employee
consults an HCP for
the purpose of MSD
management, the provider
must be given a description
of the employee's
job and physical
work activities,
risk factors, and
MSD hazards in the
job, a copy of the
OSHA Standard, and
a listing of information
that must be included
in a written opinion.
That opinion must
contain the HCP's
assessment of the
employee's condition
as it relates to
the physical work
activities, risk
factors and hazards,
and any recommended
work restrictions.
The HCP is required
to inform the employee
about his or her
evaluation and other
facts relating to
his or her condition,
risk factors, MSD
hazards, and related
activities. Additional
provisions relate
to obtaining and
using second and
third opinions. |
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| The Standard takes effect
on January 16, 2001. Covered employers initially must
satisfy their broad communication obligations by October
15, 2001. After that date, many of the other obligations
of the Standard may become applicable in short order,
following an employer's determination that an MSD incident
has occurred. Determination that a job meets an Action
Trigger under the Standard will start the clock for obligations
of job hazard analysis, controls, training, MSD management,
and other key requirements. At the same time, many of
the other broad obligations of the Standard will keep
employers very busy with ergonomics compliance requirements
in advance of those dates. |
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OSHA placed its work on
the proposed standard on the fastest track imaginable.
With Congress attempting to block this rule through the
appropriations process and a possible shift in the Executive
Branch, OSHA's publication of the rule on November 14
ensures that it will take effect before Inauguration
Day 2001, unless it is blocked by litigation or legislative
review mechanisms.
Virtually every major OSHA standard has been challenged
in the federal appellate courts by industry groups, labor
unions, various other interest groups, or all three. The
Ergonomics Standard will be no exception. The National
Association of Manufacturers, the U.S. Chamber of Commerce,
the National Coalition on Ergonomics, and other interested
parties already have announced their legal challenges to
the agency's new requirements. In addition, the AFL-CIO
and the voices of others with varying perspectives—together
with the voluminous record developed during the rulemaking
and the fundamental debate over the science and economics
behind the rule—ensure that the appellate court proceeding
will be among the most contentious in OSHA's history.
Unless and until the federal courts, Congress and/or a
potential (as of this writing) Bush Administration intervene,
it is likely that employers across the country will be
required to quickly familiarize themselves with the multi-faceted
requirements of the OSHA Ergonomics Program Standard and
its potential application to their operations. Given the
sheer volume and complexity of the requirements, employers
should immediately begin this process.
This bulletin is
a general overview of the subject matter, and is
not meant to provide professional opinions regarding
any specific case, matter, or set of facts, or
to substitute for the professional advice of Waag
and Co. Instead, please contact Susan S. Waag,
Esq. for additional information.
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