The New OSHA Ergonomics Program Standard
January 2001
OSHA has issued its long-awaited final rule
for an Ergonomics Program Standard, 29 CFR Part 1910.900. This new standard
contains stringent requirements for most nonconstruction employers to identify
and abate musculoskeletal disorders. This article examines the new standard
and the possible costs to implement the ergonomics requirements.
by Edwin G. Foulke Jr., Roger S. Kaplan, and Paul J. Siegel, Esq.
Jackson, Lewis,
Schnitzler & Krupman
The Occupational Safety and Health Administration (OSHA) has issued its long-awaited
final rule for an Ergonomics Program Standard, 29 CFR Part 1910.900. This new standard contains
stringent requirements for most nonconstruction employers to identify and abate
musculoskeletal disorders (MSDs). The costs to implement the ergonomics requirements
may be significant and, in some cases, result in severe financial hardship.
In the final rule are some surprising components that were not contained
in the proposed rule. For instance, full implementation of the required program
is now triggered by the activation of defined "action triggers" for at least
one of five specified MSD "risk factors." Also, the final rule contains substantially
expanded provisions addressing an employee's right to dispute the findings of
the initially consulted health care professional (HCP). Employers now face the
possibility and expense of as many as three separate HCP evaluations regarding
an alleged MSD.
One of the chief criticisms of the new standard is its potential for unfairly
saddling employers with responsibility for MSDs that are not caused by the job.
Although MSDs are defined as "work-related" disorders, the standard does not
necessarily exclude the potential for an MSD to become "work-related" where
circumstances outside the employer's control, such as personal activities like
tennis or weight lifting, or personal attributes, such as obesity, are contributing
factors.
The new standard will become effective 60 days after its publication date
(November 14, 2000). Employers should start assessing now what they must do
to be in full compliance as of that date. The following summary prepared by
the OSHA practice group of Jackson Lewis will assist employers in understanding
their new ergonomics obligations.
Scope of the Standard
Which jobs are covered? The standard applies
to all general industry jobs. Employment covered by OSHA's standards for the
construction, maritime, and agriculture industries, including directly related
office management and support services, are expressly excluded, as are railroad
operations. This is a substantial change from the proposed rule, which was limited
to "manufacturing jobs" and "manual handling jobs," or any general industry
job where an MSD actually occurs. Although the final standard has a broader
application, the requirement for full implementation of the entire ergonomics
program now depends entirely on the actual report of, or of the signs and symptoms
of, an MSD. Until such an occurrence, the final rule only requires employers
to provide all employees with initial, basic information addressing recognition
and reporting of MSDs.
What is a musculoskeletal disorder? The standard
defines musculoskeletal disorder as a disorder of the muscles, nerves, tendons,
ligaments, joints, cartilage, blood vessels, or spinal discs affecting the neck,
shoulder, elbow, forearm, wrist, hand, abdomen (hernia only), back, knee, ankle,
and foot. Excluded are injuries arising from slips, trips, falls, motor vehicle
accidents, or blunt trauma.
Examples of MSDs identified by OSHA include muscle strains and tears, ligament
sprains, joint and tendon inflammation, pinched nerves, and spinal disc degeneration.
The final rule also states that MSD injuries may be manifested by medical diagnoses
of low back pain, tension neck syndrome, carpal tunnel syndrome, rotator cuff
syndrome, DeQuervain's syndrome, trigger finger, tarsal tunnel syndrome, sciatica,
epicondylitis, tendinitis, Raynaud's phenomenon, hand-arm vibration syndrome,
carpet layer's knee, and herniated spinal disc.
MSDs most often develop as a result of repeated exposure to MSD "risk factors,"
however, exposure to only one MSD risk factor may be enough to cause an MSD.
The standard identifies five such risk factors, which are defined in terms of
"action triggers" based on duration of exposure to specified actions or conditions.
These risk factors are:
- Repetition
- Force
- Awkward postures
- Contact stress
- Vibration
What is the first action employers must take? The standard imposes one initial responsibility on all covered employers: to
supply all employees with basic MSD information. This information must educate
employees regarding the common MSDs and their signs and symptoms, as well as
the kinds of jobs and activities associated with MSD hazards. Employees must
receive information on how to report MSDs, with an emphasis on the importance
of prompt reporting and the consequences of delayed reporting. Employees also
must receive a summary of the OSHA standard. Current employees must receive
this initial training within 11 months after the standard's publication date,
and new hires within 14 days of hiring. This information also must be conspicuously
posted.
When must full implementation of the entire ergonomics
program occur? The final rule requires employers to conduct a prompt
investigation upon receiving any employee report of signs and symptoms of an
MSD. If the report involves an event or condition that qualifies as an "MSD
incident," as defined by the standard, and if any of the five MSD risk factors
are manifested in the associated job function in excess of a specified "action
trigger" threshold, the employer must then implement the complete ergonomics
program. In some cases, employers may be able to avoid full implementation if
they qualify for the standard's "Quick Fix" option.
What is an "action trigger"? The final rule
contains a "Basic Screening Tool" that establishes defined thresholds, or "action
triggers," for each of five primary MSD risk factors. If the job involves any
of the activities specified in the Basic Screening Tool in excess of the maximum
duration established for the activity, employers must proceed with a detailed
evaluation—a "job hazard analysis." The results of this evaluation determine
whether or not there is a "problem job," i.e., a job that poses a potential
MSD hazard.
Regardless of the results of the job hazard analysis, the employer will have
to fully implement his ergonomics program (absent availability of the "Quick
Fix" option). The job hazard analysis only determines the scope of implementation.
If there is a problem job, all employees in that job must be included in the
program. Otherwise, the employer may limit implementation to the employee involved
in the MSD incident.
What are the primary elements of a complete ergonomics
program? Listed below are the primary elements of a complete ergonomics
program:
- Management leadership
- Employee participation
- MSD management
- Job hazard analysis
- Hazard reduction and control
- Training
The "Quick Fix" option may be available as an alternative to implementation
of the full program under certain conditions. If the employer is eligible to
utilize this option, the employer must take steps to eliminate or reduce the
identified MSD hazard within 90 days according to specific criteria set out
in the standard.
Management Leadership
This program element measures the employer's dedication to an effective program.
To meet this obligation the employer must do the following.
- Assign and communicate the responsibilities for setting up and managing
the program.
- Ensure each responsible person has the necessary authority, resources,
and information to meet his assigned responsibilities.
- Ensure company practices encourage, and do not discourage, prompt reporting
of MSDs and employee participation in the program.
- Periodically communicate with employees about the program and any employee
MSD concerns.
Employee Participation
This program element reflects OSHA's firm belief that employee interest and
involvement is vital to the success of the ergonomics program. It is based on
the premise that employees have the most direct interest in their own safety
and health on the job and that they have an in-depth knowledge of the operations
and tasks they perform.
To comply with this program element, employers must establish mechanisms
for employee reporting of MSDs, respond promptly to employee reports, and involve
employees in the development, implementation, and evaluation of the program.
(Such participation, however, must be consistent with limitations on the use
of labor management committees imposed by the National Labor Relations Act,
according to the Preamble to the proposed rule). Employees must also receive
a summary of the requirements of the standard and have ready access to the standard,
the employer's program, and general MSD information.
MSD Management
The term "MSD management" refers to the employer's collective obligations
to employees who have sustained a confirmed MSD injury. In addition to appropriate
temporary work restrictions, this obligation includes ensuring employees receive
prompt and effective medical evaluation and follow-up of their MSD and recovery
by a health care professional (HCP), all at no cost to the employee. The final
rule provides an affected employee with the right to obtain a second and even
a third HCP opinion, if necessary, regarding his or her condition, all at the
employer's expense. This last provision was entirely absent from the proposed
rule.
MSD management also includes the requirement for "work restriction protection"
(WRP) for up to 90 days. Basically, WRP means maintaining 100 percent of wages
for employees assigned to light duty or 90 percent of wages where total removal
from the workplace occurs. WRP also guarantees no reduction in employment rights
or benefits, including seniority, insurance programs, or retirement and savings
plans.
Job Hazard Analysis
This element is the core of the ergonomics program. If an action trigger
is activated, job hazard analysis is the step that determines whether the employer
has a "problem job" on his hands. This determination is not a simple matter.
OSHA has incorporated by reference several professional treatises, studies,
and papers that address detailed methods for ergonomic analysis of work functions.
These are referred to as "hazard identification tools."
Appendix D-1 to the standard provides some information about these incorporated
"tools," but employers will have to obtain their own copies to determine how
to use these resources in a job hazard analysis. (Appendix D-2 is a self-contained
"occupation-specific" hazard identification tool respecting video display terminal
(VDT) workstations.) Employers also have the option of retaining the services
of trained ergonomics professionals or using any other "reasonable" method that
is appropriate to the job and relevant to the specific risk factors.
Hazard Reduction and Control
This element refers to the employer's obligation to eliminate or materially
reduce the identified hazards to the extent feasible, using engineering, administrative,
and/or work practice controls, and as a last resort, personal protective equipment
(excluding back belts/braces and waist braces/splints). In other words, this
element constitutes the acceptable goals of an ergonomics program.
In the standard, the word "control" is a term of art that effectively means
complete elimination of a hazard. Absent complete control, identified hazards
must be reduced to acceptable levels as defined by the hazard identification
tools in Appendix D. Accomplishing either of these goals eventually may permit
the employer to reduce the scope of its ergonomics program to the maintenance
of controls and related training necessary to prevent a recurrence of the MSD.
If neither preferred goal is achievable, the employer must reduce the hazard
to the extent feasible and reassess the situation every three years to determine
whether new solutions may be available.
Training
As discussed above, all employees must
receive basic MSD training. However, more detailed and specific training is
required for employees in jobs where the action trigger has been activated,
for their supervisors and team leaders, and for the employees involved in the
set up and continuing management of the program. This focused training must
include a re-emphasis of the MSD basic training, supplemented with information
about specific MSD hazards and risk factors present in the relevant job.
The training must also address the employer's ergonomics program and the
roles the respective trainees play in the program. Finally, the training must
include details about the employer's plan and timetable for correction of the
hazards, as well as instruction regarding the employee's role in evaluating
the effectiveness of the chosen controls.
Program Evaluation
Employers have a basic obligation to evaluate the ergonomics program periodically,
i.e., at least every 3 years, to ensure it is effective and in compliance with
the standard. This means the following.
- Consulting with employees in the program to assess their views on the
program's effectiveness and to identify any deficiencies.
- Evaluating the elements of the program to be sure they are functioning
properly.
- Ensuring that the program is achieving positive results, i.e., eliminating
or materially reducing MSD hazards.
Record Keeping
Employers are required to keep records if they have 11 or more employees,
including part-time or temporary employees. Records that must be kept by the
employer are:
- Employee reports and employer responses
- Job hazard analyses
- Hazard control records
- Quick fix control records
- Ergonomics program evaluations
- MSD management records (work restrictions, time off, HCP opinions)
These records must be made available to employees, their designated representatives,
and OSHA representatives upon appropriate request. In most cases, records must
be kept for 3 years.
Sanctions and Penalties
As with all alleged violations of safety and health standards, OSHA can issue
proposed penalties as part of the citation process. Penalties can range from
zero for "other than serious" violations, to $7,000 per violation for "serious"
violations, and up to $70,000 per violation for willful or repeat violations.
It is unclear what impact this new standard will have on other federal or
state laws, such as the Americans With Disabilities Act, the Family and Medical
Leave Act, or state workers compensation statutes. It is also unknown whether
employees can claim retaliation under Section 11(c) of the Act for denial of
work removal protection in violation of the standard.
For a copy of our comprehensive analysis of OSHA's final rule on ergonomics
or for other information on this or other workplace health and safety issues,
please contact our OSHA practice group leaders: Ed Foulke: Washington, DC (202)
347-5200, and Greenville, SC (864) 232-7000, , and
Roger Kaplan: Long Island, NY (516) 364-0404, . For
more information about Jackson Lewis, please visit their Web site: www.jacksonlewis.com.
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