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OSHA''s new workplace standard places troubling and enormous compliance burdens on U.S. employers of all sizes, according to management attorneys from the international law firm of Squire, Sanders & Dempsey LLP.
"The ergonomics standard will change the way a lot of companies do business, and, in the worst case, threatens to put people out of business," said Michael Hanna, the Squire Sanders partner based in Cleveland who leads the firm''s employment safety and health activities. "The standard is comprehensive in telling employers what to do, although it leaves a lot of uncertainty about exactly how to do it. OSHA calls it performance-oriented, but I call it vague."
The standard is scheduled to take effect Jan. 16, 2001.
Many of the key provisions come into full force and enforcement begins in October 2001, although any of the myriad of legal challenges could significantly delay the rule''s implementation.
Hanna said the only easy part of the standard for employers is determining that they''re covered, which is virtually everyone in general industry.
""The threshold for action, one incident of a musculoskeletal disorder, is low. And I don''t think there''s any doubt that, once this standard goes into full effect, it will be a routine part of every OSHA inspection," said Hanna.
Twenty-five states, including California, Michigan, Oregon, Texas and Washington, have permission from OSHA to operate their own OSHA programs.
In these states, state officials will decide how the standard is enforced and implemented on a daily basis, pointed out Michael Kelley, a Squire Sanders employment counseling attorney based in San Francisco and Palo Alto, Calif.
Kelly expects state and federal OSHA agencies to focus their enforcement resources on workplaces where there is significant manufacturing, material handing or assembly line work.
However, he predicted that OSHA will pursue high-profile cases in offices, high-tech manufacturing, transportation, health care and other industries that are not used to dealing with OSHA.
"Even employers who have only an office environment are right in the middle of this standard," said Kelley. "The VDT workstation checklist is one of the few forms in this standard. That indicates to me that OSHA is serious about office ergonomics, especially chairs and keyboards."
Based on his experience in litigating ergonomics cases where OSHA cited employers even without a standard, Hanna predicted that any fines for ergonomics non-compliance will be small compared to the cost to improve OSHA-identified "problem" jobs.
He recalled one case in which the employer chose not to contest a $1,500 fine. However, by not contesting, the employer was forced to spend $30,000 to redesign just a few secretarial workstations.
Hanna said the nature of the standard and the anticipated OSHA stance on enforcement have turned ergonomics, which many companies have addressed voluntarily, into a huge legal and labor relations issue.
"The consultants, plaintiffs'' attorneys and unions will love it," said Hanna. "It creates a roadmap for plaintiffs by identifying jobs with certain so-called risk factors as ''problem jobs.'' Who is going to want to do those jobs or assign people to do them? The potential for labor strife and litigation is immense. Beyond the typical legal disagreements between labor and management, companies are going to be suing each other over things such as product liability and temp workers'' injuries."
David Millstone, the firm''s labor and employment practice coordinator, said, "As a management attorney, I am urging clients to protect themselves and their workers by implementing best practices for compliance. However, with a standard of this magnitude, it is difficult to know for sure everything you have to do and when you have done enough. Those are legal questions that will be answered over time as the standard is challenged in court and enforced in the field."
by Virginia Sutcliffe