Expert Commentary

The Ergonomics Regulation Roller Coaster

This article reviews OSHA's efforts to implement ergonomic regulations, presents details on the current proposed voluntary program, supplies information on a new legislative challenge, and discusses a recent study dealing with the causes of loss in the workplace.


Workers Compensation Issues
June 2002

The 15-year-old effort by the Occupational Safety and Health Administration (OSHA) to reduce musculoskeletal disorders (MSDs) in the workplace continues on its bumpy roller-coaster ride. This article will provide a short review of the efforts made by OSHA to implement ergonomic regulations for the workplace, present details on the current proposed voluntary program, supply information on the legislative challenge that has been initiated against the proposed program, and discuss an interesting finding about MSDs from a recent study dealing with the causes of loss in the workplace.

A Brief History

Brief is probably not a good word choice when discussing the long and tortuous route that has been taken by OSHA in the crafting of an ergonomic standard for use in the workplace. In 1987 OSHA issued its first directive on the subject of ergonomics. Five years later in 1992, it began the rule-making process, and in 1995 started drafting the ergonomics standard. Five short years later, OSHA issued its Ergonomics Program Standard on November 4, 2000, which became effective on January 16, 2001. However, its implementation was cut short when President George W. Bush signed Senate Joint Resolution 6 repealing it on March 20, 2001.

What led to its repeal after all the time and research effort by OSHA that went into it? The repealed standard generally affected three types of employers: manufacturers, employers with manual handling jobs, and any other jobs where musculoskeletal disorders (MSDs) were reported after the standard took effect. Certain industry segments (maritime, construction, and agriculture) were excluded from the standard. Employers with existing successful programs were to be allowed to continue to use those programs even if they were not in compliance with the OSHA standard.

Much of the opposition surrounding the repealed standard was driven by two factors: compliance was mandatory and it encroached on existing state workers compensation statutes and systems. The standard challenged the exclusive remedy provision of state statutes by proposing an entirely separate benefit system for MSDs. Additionally, the eligibility for compensation available under this system had a different set of requirements that did not correspond to the compensability requirements under the various state workers compensation laws. Although a provision existed in the standard that allowed for an offset of workers compensation benefits when a worker was entitled to both types of benefits, imagine the bureaucratic nightmare that could have developed from trying to coordinate between the federal government and the various state agencies. (See Ergonomics and New OSHA Ergonomics Program Standard on IRMI.com for more in-depth information on the repealed standard.)

Current Proposed Program

With a change in the presidency in 2002 came a pro-business-oriented administration. As noted earlier, this led to a repeal of the Ergonomic Program Standard in March of 2001. Since that time, OSHA has been researching an alternate approach to reducing MSDs in the workplace. On April 5, 2002, OSHA announced its Comprehensive Plan on Ergonomics.

The proposed program consists of four parts: guidelines, enforcement, outreach and assistance, and research. The industry or task specific guidelines signal a very different approach to MSDs than that under the repealed program since guidelines are voluntary, and rules are mandatory.

Using its Meatpacking Guidelines issued in 1990 as a template, OSHA will promulgate guidelines for use in specific industries. The first guidelines are expected to be released before the end of the year. The enforcement arm of the program will consist of many elements but the major punch will be delivered by OSHA inspections for ergonomic hazards, with violators being issued citations under the General Duty Clause of the OSHA Act.

Some of the components of the outreach and assistance aspect of the program are: the development of compliance assistance tools by OSHA, OSHA sponsored courses on ergonomics, and a program targeted at addressing the ergonomic needs of the Hispanic worker.

OSHA's National Advisory Committee on Ergonomics will be the foundation of OSHA's ergonomics research efforts. The Committee will consist of 15 members who are ergonomics experts. Their focus will be on identifying gaps in ergonomics research. To read more about the new OSHA ergonomics program, visit OSHA's ergonomics website.

Legislative Challenge

Within 2 weeks of OSHA's introduction of its Comprehensive Plan on Ergonomics, it was challenged by legislation introduced in the U.S. Senate by Senator John Breaux (D-LA). Backed by the Senate's pro-labor faction, Senate Bill 2814 requires the Secretary of Labor to promulgate and issue a final rule relating to ergonomics within 2 years of the enactment of the law. The standard is to be based on the findings gleaned from information gathered for the development of the repealed ergonomics standard as well as from workplace practices that have proven effective in preventing ergonomic injuries. The bill also contains a provision that it may not expand the application of the individual state workers compensation laws. Currently, the bill is still in committee.

MSDs as a Workplace Cause of Loss: Perception versus Reality

In its just released second annual 2002 Safety Index, Liberty Mutual took a look at the causes of loss in the workplace. Its study found that 86 percent of the payments made (both lost wage and medical) to workers in 1999 for an estimated total of $40 billion could be traced to 10 causes of injury. The survey was based only on disabling injuries, defined as those where 5 or more workdays were lost. Leading the list as the top causes of injury were: overexertion (defined as injuries caused by excessive lifting, pushing, pulling, holding, carrying, or throwing an object) at 25.5 percent, falls on the same level at 11.5 percent, and bodily reaction (defined as injuries resulting from a single incident of free body motion) at 9.4 percent.

Note that repetitive motion injuries were not in the top three. MSDs were actually sixth on the list, accounting for 6.7 percent of the disabling injuries. As part of the study, Liberty Mutual asked business leaders to rank the causes of workplace losses. An interesting revelation coming from the study was that there was a definite gap between the actual causes of injury in the workplace and those perceived by industry leaders as the causes of workers compensation losses. Repetitive motion finished at the top of the poll.

In reality, as noted earlier, repetitive motion was number 6 on the index with only 6.7 percent of the disabling injuries. Falls on the same level that was number 2 cause on the index was only number 7 on the list assembled from the responses of the business leaders polled. This gap in perception versus reality is likely due to the huge volume of press that has been accorded the efforts of OSHA to develop an ergonomics standard for the workplace.

Conclusion

What becomes apparent from the circuitous path that OSHA has found itself on in trying to design and implement a program to reduce MSDs in the workplace is that ergonomics is a deeply divisive battlefield with labor and business squaring off against each other. Lost in this fray is the well-being of the worker employed in an occupation susceptible to MSDs.

Regardless of whether the OSHA ergonomics program eventually implemented is voluntary or mandatory, employers should act now to assure that their employees are working in environments where the potential for repetitive motion injuries are kept to a minimum. The prevention of losses is the surest way to reduce workers compensation costs and, in this hard market, becomes absolutely essential for survival.


Opinions expressed in Expert Commentary articles are those of the author and are not necessarily held by the author's employer or IRMI. Expert Commentary articles and other IRMI Online content do not purport to provide legal, accounting, or other professional advice or opinion. If such advice is needed, consult with your attorney, accountant, or other qualified adviser.

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