After years of debate that polarized Congress, organized labor and industry, OSHA published a proposed Ergonomics Program Standard in the Federal Register on Nov. 23.
Publication of the proposal marks the beginning of the official rulemaking process. OSHA planned to accept comments on the proposal until Feb. 1 and to hold at least three public hearings on the proposal -- in Washington, D.C., Portland, Ore., and Chicago.
The proposal is massive, and the legal, scientific and regulatory issues are numerous and complex, which precludes the presentation of a complete summary and analysis in one article. Accordingly, our goal in this article is to summarize the key provisions of the proposal, highlight several of the concerns about its potential impact and identify several key issues that are likely to arise during the rulemaking.
The proposed standard would apply to three job categories: "manufacturing jobs," "manual handling jobs" and jobs in which an employee reports a musculoskeletal disorder (MSD) that satisfies specific criteria established by OSHA. OSHA proposes to define these categories as follows:
"Manufacturing jobs" are production jobs that actually involve producing a product. To be distinguished from jobs that support production jobs (i.e., clerical, janitorial and warehousing jobs), manufacturing jobs typically involve machine operation, assembly line work that produces products, subassemblies, components and parts, and product inspection jobs.
"Manual handling jobs" are jobs in which the core elements of the employee's tasks include forceful lifting/lowering, pushing/pulling, or carrying. These jobs include package sorting, handling and delivering; warehouse manual picking and placing; and hand packing and packaging.
For jobs in which an employee reports an MSD, the following criteria must be satisfied before the standard will apply:
- The MSD is reported after the effective date of the standard;
- The MSD is required to be recorded on the employer's OSHA 200 log;
- The activities and conditions involved in performing the job are "reasonably likely" to cause or contribute to the type of MSD reported; and
- The activities and conditions are a "core element" of the job and/or make up a "significant amount" of the employee's work time.
How does OSHA define an "MSD"? An MSD is defined as an injury or disorder of the muscles, nerves, tendons, ligaments, joints, cartilage and spinal discs that may result in carpal tunnel syndrome, sciatica, tendinitis and/or low back pain. Covered MSDs do not include injuries caused by slips, trips, falls or other similar accidents.
When would the ergonomics standard "kick in"? The proposed standard establishes a two-tiered application scheme: it would apply to "manufacturing" and "manual" operations as soon as the standard is adopted and to any other workplace once a covered MSD is reported.
OSHA's proposed standard includes what is defined as a "full ergonomics program," which consists of six program elements. As discussed below, the standard does not require that all six program elements be implemented in every case.
The six elements of OSHA's "full ergonomics program":
Management leadership and employee participation. This two-part employer requirement mandates that employers not only set up and manage an ergonomics program, but find ways for employees to participate. OSHA details many specific requirements for both responsibilities, which include, but are not limited to:
Management Leadership. Requires that employers assign responsibilities for setting up and managing an ergonomics program and dedicate resources and training for doing so.
Employee Participation. Employers must find ways for employees to report MSD signs and symptoms (not just injuries) and to "be involved" in every stage of the process -- from the development to the implementation and evaluation of the ergonomics program.
Hazard information and reporting. Employers must find ways for employees to report MSD signs and symptoms (not just injuries) and must "identify at least one person" to receive and respond to these reports and to take action.
Job analysis and hazard control: Employers must eliminate MSD hazards, reduce them to the extent "feasible" or materially reduce them using the incremental abatement process.
Training. At least every three years, employers must train employees and supervisors in problem jobs and persons involved in setting up and managing the ergonomics program. Training topics should include information about MSD job hazards and the measures employees must follow to protect themselves.
MSD management. Whenever a covered MSD occurs, employers must respond by providing temporary work restrictions and/or access to a health care professional at no cost to the employee, where necessary. This requirement might also mandate that the employee be allowed to be removed from work entirely. During any of these restrictions, employers must maintain the employee's earnings (between 90 percent and 100 percent) and other benefits.
Program evaluation. Employers must evaluate the ergonomics program "periodically," or at least every three years, to ensure that it is in compliance with the standard.
When is implementation of some or all of the program elements required?
For "manufacturing" or "manual handling" jobs:
Employers must implement the first two program elements (management leadership and employee participation, and hazard information and reporting) even if no MSD has occurred in those jobs.
The other program elements must be implemented when either of the following occurs in those jobs:
- A covered MSD is reported; or
- "Persistent MSD symptoms are reported, plus all of the following occur: the employer "has knowledge" of an MSD hazard, physical work activities and conditions are "reasonably likely" to cause or contribute to the symptoms reported, and the activities and conditions are a "core element" of the job and/or make up a "significant amount" of the employee's work time.
For all other jobs in general industry, all of the program elements must be implemented when a covered MSD is reported.
OSHA's standard is job-based, not facility-based. The proposed standard does not apply to entire workplaces. Rather, it is "job-based" and only applies to manufacturing jobs, manual handling jobs and jobs with MSDs. As a result, employers may have "manufacturing jobs" to which only the management leadership and employee participation and hazard information and reporting elements are applicable, and "jobs with MSDs" in which a covered MSD has been reported and, thus, require a program with all six elements.
The "Quick Fix" Option. The proposed standard gives employers the option of using a "quick fix." By opting to use the quick fix, employers can fix a "problem job" quickly and completely, without implementing all of the program elements. A problem job is a job in which a covered MSD is reported or a job that involves the same physical work activities and conditions as the one in which the covered MSD is reported, even if the jobs have different titles or classifications. However, if the MSD hazards only pose a risk to the employee with the covered MSD, the employer may limit the quick fix to that individual employee's job.
To implement a quick fix, the employer must satisfy the following:
- Make available the MSD management required by the standard;
- Put in quick-fix controls within 90 days after the covered MSD is identified, and check the job within the next 30 days to determine whether the controls have eliminated the hazard;
- Keep a record of the quick-fix controls; and
- Provide the hazard information required by the standard to employee(s) in the problem job within the 90-day period.
If the quick-fix controls do not eliminate the MSD hazards within the quick-fix deadline (120 days after the MSD is identified) or another covered MSD is reported in that job within 36 months, a complete ergonomics program must be set up.
Grandfather clause. The proposed standard also purports to include a "grandfather" clause. Employers who already have an ergonomics program for the jobs the proposed standard covers may continue that program, even if it differs from that required by the proposed standard, provided that:
- The program satisfies the basic obligations section of each program element in the standard and the employer is in compliance with the recordkeeping requirements of the standard;
- The program and controls were implemented and evaluated before the effective date of the standard; and
- The evaluation indicates that the program elements are functioning properly and that the employer is in compliance with the control elements of the standard.
Many in industry are concerned that the relief provided by the proposed grandfather clause is illusory, because few current ergonomics programs are likely to satisfy the requirements of the standard.
Recordkeeping requirements. The recordkeeping requirements apply to employers with 10 or more employees.
Employee reports and employer responses must be kept for at least three years.
Job hazard analysis, hazard control records, quick-fix control records and ergonomics program evaluations must be kept for at least three years or until replaced by updated records, whichever comes first.
MSD management records must be kept for the duration of the injured employee's employment plus three years.
The number of complex issues raised by the proposal is staggering. We outline several such issues below and wish to emphasize that this is far from a complete list of issues raised by the proposal. Our intent is simply to illustrate the breadth and depth of the questions that this extraordinary proposal presents.
The science of ergonomics. The proposed ergonomics standard raises significant scientific and enforcement issues. Many industry experts argue that the scientific data does not support the conclusion that repetitive motions in the workplace, as opposed to nonwork-related activities, cause MSD injuries. Fundamentally, they contend that a "dose-response" relationship has not been shown, no evidence of the number of repetitions necessary to cause an injury is available, and OSHA is unable to prove that the requirements set out in the proposal will prevent or materially reduce ergonomic injuries. Thus, they contend, contrary to the requirements of the OSH Act as interpreted by the Supreme Court in the seminal "Benzene" case, there is no evidence that the standard will materially reduce or prevent a significant risk of material harm to employees.
Many contend that the causes and, especially, the effectiveness of the abatement are unproven and do not justify a federal standard that has the force of law. For example, it is not clear why some employees develop symptoms in the presence of certain working conditions, while many other employees do not. It is also not clear what measures are reasonably likely to reduce or eliminate physical symptoms. There are also many confounding factors outside the workplace that contribute to physical symptoms.
Congress had urged OSHA to wait to issue a proposed standard until a National Academy of Sciences (NAS) study on the issue is completed in January 2001. Congress appropriated $890,000 for the NAS study last year. When OSHA indicated it would not wait until the NAS work was completed, the House passed a bill prohibiting OSHA from issuing a proposed standard until the study was completed and reviewed by Congress. A similar bill was introduced but not voted on in the Senate, and the Senate leadership decided not to include any kind of ergonomics prohibition in OSHA's fiscal 2000 funding.
Cost of OSHA's standard. Industry vigorously disputes OSHA's estimate of the costs of an ergonomics standard. OSHA claims that the standard would cover approximately 5.9 million establishments and present annualized costs of $4.2 billion. This is an average cost of $711 per facility. Industry claims that these are gross underestimates. The Small Business Administration's Office of Advocacy strongly disputes these numbers, as well. Food Distributors International (FDI) estimates that the costs for the food distribution industry alone could reach $21 billion the first year. When questioned about the FDI report, OSHA spokesperson Michael Fluharty said that he did not know "where [OSHA] is getting those numbers" of $4 billion, but that OSHA has "solid numbers" in its proposal.
Would the proposal regulate more than safety and health? The proposed standard would inject OSHA into a broad range of business matters that, at best, are only tangentially related to ergonomics and that are beyond OSHA's authority and expertise. For example, in the interest of ensuring that employees are not subjected to a form of systemic discrimination that would inhibit their willingness to report problems, OSHA proposes to review management "practices and policies" such as safety incentive and award programs, and even accident- or injury-driven substance abuse testing.
The one-instance trigger. For jobs outside manual handling or manufacturing, coverage of the standard would be triggered by the diagnosis of a single MSD. Many argue that a one-instance trigger for a simple job not otherwise covered by the standard is arbitrary and irrational. This requirement, it is argued, impermissibly delegates to a private health care professional the determination of whether the regulatory requirements of the standard are applicable to particular jobs. Moreover, the standard provides no means of challenging that determination short of contesting a citation. Further, the finding of one musculoskeletal disorder in a job arguably could trigger the application of the standard's requirements to countless other employees of a large employer who perform the same job.
Is the standard a "safety" or "health" standard, and what difference does it make? OSHA has characterized the proposal as a health rather than safety standard. It claims that the standard would regulate "toxic substances or harmful physical agents." It cites noise, vibration and cold as examples of harmful physical agents that the rule would regulate. However, others argue that the rule would really regulate safety hazards such as lifting, bending and even "hard work." The practical difference is that, under Section 6(b)(5) of the OSH Act, under which health standards are developed, OSHA must eliminate hazards to the extent it is "feasible" to do so. The courts have given OSHA considerable latitude under this test. Economically, such a standard must be merely achievable for affected industries, but OSHA must show that a safety standard is "reasonably necessary and appropriate" under Section 3(8). To meet this test, OSHA must satisfy an economic test that is somewhere between feasibility and a strict cost benefit analysis. While the test remains murky, it is generally regarded as requiring OSHA to sustain the more difficult burden of showing there is a reasonable relationship between the cost and benefit of the standard.
Does "work restriction protection" interfere with state workers' compensation laws and create other issues? In the proposed standard, OSHA has defined "work restriction protection" as guaranteeing employees the "maintenance of [their] earnings and other employment rights and benefits." Under section 4(b)(4) of the OSH Act, OSHA may not take actions that supersede or affect state workers compensation laws. There is a question of whether the proposed "work restriction provisions" exceed OSHA's authority under the OSH Act, because they would provide a federal remedy for employees who suffer on-the-job injuries or illnesses. Also, the highpercentage of wage protection that the standard would require could create anomalous results, such as 90 percent or 100 percent protection for a back strain under the OSHA standard, but significantly less than that under state laws for a far more severe and permanent injury, such as a severed finger.
Also, apart from workers' compensation, the requirement to hold a position open while an employee is on "work restriction" could exacerbate nationwide labor shortage problems, particularly in industries or locales where employee turnover is high or employment is seasonal.
Vagueness and enforcement problems. The proposed standard raises important enforcement issues. The proposed standard is a performance standard in that it purposes not to dictate in detail what employers must do to comply. OSHA claims that performance standards are beneficial to employers because they allow flexibility in compliance, making industrywide standards possible and lessening the problems inherent in the "one-size-fits-all" rules consistently derided by congressional Republicans and industry. The downside of performance standards, however, is that they may leave employers without notice of what is required to achieve compliance, especially when second-guessed by an OSHA compliance officer.
The proposed standard contains vague or ambiguous terms that may make it difficult for employers to determine their compliance obligations. The ambiguous language permeates even the terms that dictate the application of the standard.
For example, an MSD is deemed covered by the standard if, in addition to being a recordable condition, "the physical work activities and conditions in the job are reasonably likely to cause or contribute to the type of MSD reported" and "these activities and conditions are a core element of the job and/or make up a significant amount of the employee's work time."
The determination that a workplace hazard is "reasonably likely to cause or contribute" to the MSD and involves a "core element" of the employee's job duties is a difficult one, particularly because of medical uncertainty as to what activities cause particular injuries. Employers may believe that they have correctly evaluated the issue, but OSHA compliance officers may interpret the requirements differently. As a result, compliance is difficult to gauge.
Impact on collective bargaining and obligations under the National Labor Relations Act. The proposal could interfere with established collective-bargaining relationships. For example, the proposal would require employers to directly "involve" individual employees in discussions about their working conditions. This creates potential conflict with the exclusive bargaining authority of recognized unions under the National Labor Relations Act. Also, the requirements for consultation could conflict with recent NLRB rulings that preclude employers from using techniques such as employee committees lest they be accused of setting up company-dominated unions. Finally, the "work restriction" requirement to preserve an employee's employment "rights" could contravene collective-bargaining agreement provisions on "light duty" assignments, seniority and "bumping" rights.
Impact on state plans. If a final standard is promulgated, under Section 18 of the OSH Act, all states having approved state OSHA plans will be required within six months thereafter to adopt standards that are "at least as effective" in protecting workers.
Even those states, such as California and perhaps Washington, that may have promulgated a state ergonomics standard by that time may be required to amend such standards if they are less protective than an eventual federal standard. It is a large, unanswered question of whether state plan states will be prepared politically and financially to adopt and enforce an ergonomics standard. Thus, long after a federal standard would be adopted, the states may become the next major battleground over an ergonomics regulation.
Few would confidently forecast what the future holds for OSHA's proposed ergonomics standard. Some are convinced that the proposal is so extraordinary that it cannot be adopted or survive judicial review in anything resembling its current form. There are so many issues raised by the rule that it is difficult to foresee how it could survive in its entirety if the proposal were adopted as final and subjected to judicial scrutiny. OSHA's current political will to proceed, however, seems likely to keep the proposal at the center of safety and health regulatory debate for the foreseeable future. All who are interested are well-advised to pay attention and to participate in the process.
Stephen C. Yohay and Mark S. Dreux are partners in the OSHA Practice Group of McDermott, Will & Emery in the firm's Washington, D.C., office. Both are contributing editors of Occupational Hazards. The authors thank Melissa A. Bailey and Jennifer S. Woodbury, associates in the OSHA Practice Group at McDermott, Will & Emery, for their significant contributions to this article.