American Trucking Associations

Federal OSHA's Proposed Ergonomics Standard
(Issues and Concerns)

On November 23, the Occupational safety and Health Administration (OSHA) proposed its long-awaited ergonomics program standard.  The following summarizes some of the issues and concerns surrounding the proposal:

The proposed ergonomics program standard would require millions of general industry employers to work through a complex matrix of regulatory analysis and interpretation, compliance decision making and hazard control obligations (including engineering, administrative and other workplace modifications).  Small employers would have a particularly difficult time understanding and implementing the new requirements.  Notably, state OSHA agencies, such as California OSHA, would have six months after a final national rule is issued to adopt their own comparable standards.

Manufacturing and Manual Handling Operations.  The proposed standard would require all employers with manufacturing or manual handling operations to set up an ergonomics program.  The program would cover manufacturing production jobs, as well as those jobs where "forceful lifting, lowering, pushing, pulling or carrying" is a "core element."

The program would include three elements:

• Management Leadership. The proposed standard would require employers to establish program responsibilities, provide managers and employees with the authority, training and resources to carry them out, and identify at least one manager to receive complaints and respond to them.

• Employee participation. The proposed standard would require employers to involve employees in establishing, implementing, and evaluating the program, and provide employees with access to relevant information.

• Hazard Information and Reporting. The proposed standard would require employers to provide information to employees so they can recognize and report ergonomic hazards. Employers also would be required to establish a way for employees to report signs and symptoms of MSDs as well as ergonomic hazards, and respond to employee complaints and recommendations.

General Industry Employers.  The proposed ergonomics standard would apply would also apply to any general industry worksite, where an employee experiences one "recordable" work-related MSD.  This trigger is met if, 1) a health care provider diagnoses an MSD; 2) an employee reports an objective symptom (such as tingling, numbness or pain) that is accompanies by medical treatment, a job transfer, or lost or restricted work time.

Employers in general industry (including manufacturing and manual handling operations) who experience on recordable MSD would have two options: implement either a) a "quick fix," or b) a comprehensive ergonomics program.  The "quick fix" option would require the employer to provide medical management to the affected employee, perform a detailed job hazard analysis, on all jobs within the employer's job classification, identify methods of controlling ergonomics hazards, implement such methods within 90 days of the first report of the MSD and prevent the recurrence of any MSD signs or symptoms.

The "comprehensive program would cover those job classifications where an MSD was recorded.  Employers would have to maintain the program until they have not had a recordable MSD for the previous three years.  The full program would include the three elements described above for manufacturing and materials handling operations, plus the following:

• Job Hazard Analysis and Control. The proposed standard would require that employers perform job hazard analyses for a representative sample of jobs. The analyses would include employee interviews or surveys, and an evaluation of job factors likely to cause MSDs. Once "problem jobs" have been identified, employers would be required to implement feasible control measures that materially reduce MSD hazards. Once "problem jobs" have been identified, employers would be required to implement feasible control measures that materially reduce MSD hazards. The proposed standard states that engineering controls (such as redesigning workstations, processes or equipment) are "preferred over administrative controls (such as job rotations or changes in the pace of work). Personal protective equipment should only be used only if other control methods are not feasible. Finally, if MSDs persist, the proposed standard would require employers to continue to implement an "incremental abatement process" using additional feasible controls.

• Employee Training. The proposed standard would require that employers train employees in problem jobs at the outset of the program and at least every three years thereafter. The subject matter would include the program, MSD hazards employees may be exposed to, corrective steps the employer is taking, the OSHA ergonomics Standard, and how to recognize and report MSD signs and symptoms. Initial training would not be required for employees who have already been trained on the covered subjects within the preceding three years.

• MSD Management. The proposed standard also would require prompt medical management following the identification of MSD signs and symptoms. For example, if an employee reports pain or swelling, the proposed standard would require that the employer obtain a written opinion from a health care professional. The employer would be required to comply with any recommended work restrictions and provide periodic follow-up evaluations.

• Medical Removal Protection. The proposed standard would require employers to pay temporarily disabled employees their full salary and benefits if they are on restricted duty (90 percent if they could not work at all). The employer would have to maintain such medical removal payments until the employee returns to his or her job, or is deemed permanently unable to return, up to a maximum of six months.

• Program Evaluation. The proposed standard would require that employers use both activity and outcome measures to evaluate the effectiveness of their programs at least every three years. Employers would have to correct any identified deficiencies.

• Recordkeeping. The proposed standard would require employers with 10 or more employees to maintain records. These records would include employee complaints, employer responses, job hazard analyses, hazard control plans, medical management records and program evaluations.

An Ill-Conceived Exercise in Regulatory Overkill.  Prior to its publication, the proposed standard was subjected to months of discussions with the regulated community and "scrubbing" by agency staff, as well as more than three months of review by the Office of Management and Budget.  Although OSHA made many changes to the proposal, it remains seriously flawed.

• The Scope is Too Broad. Federal OSHA mistakenly claims that the proposed standard  "focuses on jobs where problems are sever and solutions well understood."  In reality, it would require thousands, perhaps millions of employers with manufacturing or "manual handling" operations to establish ergonomics programs regardless of whether their workers were at risk.  The latter category is so broad on its face that it would appear to include office service employees, domestic service workers, bartenders and wait staff, sales workers, and a host of other positions not previously targeted by OSHA regulations.
  
  The Trigger is Too Low.  OSHA mistakenly claims that it is using actual injuries to trigger the requirements of the standard."  In reality the agency is using MSD "signs or symptoms" (under its broad definition of recordable MSD) to force many employers to undertake costly, broad-scale hazard prevention and control efforts in response to actual (or perceived) minor problems.  The recordability test was designed as an extremely wide net to allow effective early identification of potential MSDs, not as a substantial threshold for new mandates. 
  
  The proposed standard would require a comprehensive program if two employees experience swelling, redness or another MSD sign over a three-year period.  Similarly, a full would be required if, within a three-year period, two workers experience numbness, tingling or another MSD symptom coupled with sick leave, a job transfer or medical treatment.  In many cases the signs or symptoms would disappear in a few hours, but these employers would have to maintain their ergonomics programs for at least three years.
  
  For example, an employer that proactively seeks to prevent MSDs by transferring workers to light duty jobs at the first hint of an MSD signs or symptom would be required to implement a comprehensive program as a result of such responsible prevention efforts.  Alternatively, if one worker reported back pain for a few hours while at work, took muscle relaxers and never had an occurrence, the employer would be required to implement a "quick fix" (which could entail substantial cost and disruption of operations) or a comprehensive program.
   

• OSHA Doesn't "Say When". Under the proposed standard's hazard prevention and control requirement, employers must take unspecified remedial measures that "materially reduce" MSD hazards.  This provision allows employers to determine the solutions most appropriate to the problems in their workplaces, but how will an employer know that it has sufficiently controlled MSDs hazards?  Even in the absence of continued MSDs, OSHA could conclude that the employer's remedial approach was insufficient.  As written, this provision would leave both employers and OSHA inspectors uncertain as to when an employer has taken sufficient steps remedial steps to meet its obligations.

  Moreover, if MSD signs or symptoms continue to occur, even on a sporadic basis, an employer must continue to implement additional abatement measures indefinitely, even if such measures have little impact in reducing MSD hazards.  This obligation ceases only when an employer has exhausted all feasible controls.
   

• Overwhelming Small Business.  OSHA estimates that the proposed standard will apply to 1.3 million small business owners.  The vast majority of them lack safety and health expertise, and will have extreme difficulty deciphering this complex, often confusing standard. It took OSHA years to develop the rule, and more than 300 pages of Federal register to explain it…not to mention over 1,100 pages of additional supporting documentation.  Small business owners will struggle to define such terms as "MSD," "manual handling" and "feasible," and to conduct job hazard analyses; ultimately, they will be hard-pressed to identify and comprehend their obligations under the rule's provisions.
   

• Superseding Workers' Compensation.  Section 4(b)4 of the Occupational Safety and Health Act provides that "[n]othing in this Act shall be construed to supercede in any manner affect any workers' compensation law." Yet the proposed ergonomics standard would do just that, by requiring employers to pay temporary disabled workers their full salary and benefits for up to six months, substantially more that state workers' compensation systems would provide.  The "work restriction protection" exceeds OSHA's standard-setting authority.
   

• Leaving Employers to Solve the Work-Relatedness Dilemma. OSHA intends the standard to cover only work-related MSDs, but the agency chose not to offer employers any guidance in the proposed standard as to how it will determine work-relatedness.  As a general rule, the agency takes the position that an injury is work-related if working conditions contribute to it, or even if other non-work factors also contributed.  Many questions regarding causation of MSDs remain unanswered, such as the role of stress, or other psycho-social factors.  Back injuries, for example, are extremely common among working Americans, but in many cases, tracing the causes of such injuries is all but impossible.  Employers will have difficulty fulfilling their obligations under the proposed standard to determine work-relatedness of MSDs.
   

• Questionable Cost Assumptions. OSHA's cost estimate --$4.2 billion per year -- may be unreasonable.  OSHA estimates that it will cost an average of only $150 for an employer to eliminate ergonomic hazards at an employee's work station.  While some "fixes" such as raising or lowering may prove cheaper, many will require engineering modifications, new equipment or other expenditures costing thousands of dollars.
   

• Illusionary Grandfather Clause.  The proposed standard includes a grandfather clause for employers with effective ergonomics programs that do not comply with the rule.  But in order to qualify, an employer's program must satisfy the basic obligation of each required element.
   

• What Should Employers Do Now? OSHA has set a short time limit on submitting comments to the proposed ergonomics standard.  Comments must be submitted by February 1, 2000. Employers should determine the impact that this proposal would have on their organizations and let their voices be known via written comments.