OSHA Issues Final Ergonomics Rule
On November 13, 2000, the Occupational Safety and Health Administration (OSHA) issued its final ergonomics program standard. The rule will take effect on January 16, 2001 and will apply to all employers except those covered by OSHA's construction, maritime, and agricultural standards, and railroad industries. The purpose of the rule is to prevent musculoskeletal disorders (MSDs), such as carpal tunnel syndrome and back injuries, developed by workers whose jobs involve repetitive motions, force, awkward postures, contact stress, and vibration. The following is a summary of the key provisions of the standard.
The standard requires employers to inform workers about the following: (1) common MSDs, MSD signs and symptoms; (2) the importance of reporting MSDs and the consequences of failing to report them early; (3) how to report MSDs and their signs and symptoms; (4) the kinds of risk factors, jobs and work activities associated with MSD hazards; and (5) a short description of the requirements of OSHA's ergonomics program standards.
Employers must begin to distribute this information, and receive and respond to employee reports of MSDs by October 14, 2001. This information must be distributed in written form or, if all employees have access, in electronic form. The information must also be posted in a conspicuous place (e.g., an employee bulletin board or, if all employees have access, electronic posting).
Analysis of MSDs and Establishment of Ergonomics Program
The standard imposes various obligations on an employer whenever a worker reports signs or symptoms of an MSD. First, the employer must determine whether the report qualifies as an "MSD incident," which the standard defines as a work-related MSD that (a) requires days away from work, restricted work, or medical treatment beyond first aid, or (b) has MSD signs or symptoms that last for seven (7) or more consecutive days. If the report is an "MSD incident" the employer must then analyze the job using a "Basic Screening Tool" (specific thresholds as to the duration, magnitude, and frequency of the risks existing in the job) to determine whether the risk factors of the job qualify as an "Action Trigger." If the job meets the rule's Action Trigger, the employer must develop an ergonomics program.
The key elements of a required ergonomics program are as follows:
Management Leadership and Employee Participation: Within 30 days after the employer determines that a job meets an Action Trigger, the employer must set up an MSD reporting and response system and must assign and communicate responsibilities for establishing and managing the ergonomics program.
Job Hazard Analysis and Control: Within sixty (60) days after the employer determines that a job meets an Action Trigger. the employer must conduct a job hazard analysis to determine whether MSD hazards exist in the job. If hazards are found, the employer must control or reduce the hazards through engineering, work practices, or administrative controls. Specially, the employer is obligated to (1) identify and implement initial controls within ninety (90) days after the employer has determined that a job meets an Action Trigger; (2) identify and implement permanent controls within two years after the employer determines that a job meets an Action Trigger (or by January 18, 2005, whichever is later); and (3) track the employer's progress and ensure that its controls are working and have not created new MSD hazards.
Training: Within ninety (90) days after the employer determines that a job meets an Action Trigger, the employer must train employees in that job as well as their supervisors. Within forty-five (45) days after determining that a job meets an Action Trigger, the employer must train employees involved in setting up and managing the ergonomics program.
MSD Management: Within seven (7) days after an employer determines that a job meets an Action Trigger, the employer must initiate MSD Management. Specifically, employees must be provided, at no cost, with prompt access to a Health Care Professional (who will evaluate the employee and issue a written opinion), evaluation and follow-up of an MSD incident, and any temporary work restrictions that the employer or the Health Care Professional determine are necessary. Temporary work restrictions may include limitations on the work activities of the employee in his or her current job, transfer of the employee to a temporary alternative job, or temporary removal from work. (Although an employer is required to provide access to an Health Care Professional for an evaluation at no cost, the employer is not required to pay for medical treatment).
Work Restriction Protection: - If an employee experiences an MSD incident in a job that meets an Action Trigger, the employee must be provided with work restriction protection. Work restriction protection means maintenance of the earnings and other employment benefits of employees who are on temporary work restrictions. Specifically, the standard provides that the employer must maintain 100% of earnings and full benefits for employees who receive limitations on work activities in their current job or who transfer to a temporary alternative job, and 90% of earnings and full benefits to employees who are removed from work. Such protection must be provided for ninety (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 unable to ever return to work, whichever comes first.
Evaluation of the Program: Within three (3) years after an employer determines that a job meets an Action Trigger, the employer must evaluate its ergonomics program (i.e., consult with employees about the effectiveness of the program; determine whether MSD hazards are being identified and addressed, and whether the program is achieving positive results). If the evaluation reveals deficiencies, the employer must promptly correct the deficiencies.
Quick Fix Option and Grandfather Clause
Under the standard, an employer whose workers have experienced a few isolated MSDs may be able to use a "Quick Fix" option under which the employer may avoid some of the rule's more onerous requirements. Employers may use a "Quick Fix" for a job if its employees have experienced no more than one (1) MSD incident in that job, and there have been no more than two MSD incidents in its establishment in the preceding eighteen (18) months. Under the Quick Fix option, if an employer can quickly identify a risk factor and remove it, the employer will be exempt from many of the management participation, training, and evaluation requirements of a full ergonomics program.
In addition, employers who already have existing ergonomics programs may be able to "grandfather" in such programs. Specifically, employers can continue existing ergonomics programs if they can show that they have a program which was (1) implemented and evaluated before January 16, 2001; (2) contains the core elements of the standard's required ergonomics program (i.e., management leadership, employee participation, etc.) and (3) has been demonstrated to be effective. In addition, in order to take advantage of the grandfather cause an employer must comply with the standard's recordkeeping requirements.
The rule establishes several recordkeeping requirements. Employers with 11 or more employees, including part-time employees, must keep written or electronic records of employee reports of MSDs, 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.
Possible Legal Challenges
Prior to the issuance of the final rule, business groups stated that they planned to challenge the validity of the rule. Such challenges may focus on the apparent vagueness of some of the provisions and the fact that the rule focuses more on management practices than on actual conditions in the workplace that contribute to injuries. It remains to be seen whether such challenges will occur and whether they will succeed. In the meantime, all employers should begin preparing for the implementation of the new standard.