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.
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,
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,