United States: OSHA Issues A Final Ergonomics Standard

Despite strong opposition from various industry groups, OSHA issued a final Ergonomics Standard on November 13, 2000. The Ergonomics Standard is OSHA's attempt to reduce the number and severity of musculoskeletal disorders ("MSDs") caused by exposure to ergonomic risk factors in the workplace. Many critics, however, believe the Standard is burdensome, vague, expensive and may not significantly reduce MSDs. Numerous industry representatives have pledged to block the Standard with lawsuits. While it is likely that the effective date of the Standard will be postponed, at this point, the Standard has been issued as final and the effective date is January 16, 2001. Employers will have until October 2001 to comply. Hence, covered employers must take the time now to focus on the Standard and begin thinking about compliance.

The Standard, as written, applies to employers with operations in general industry and specifically excludes employers covered by OSHA's construction, maritime, agriculture or railroad standards. The Standard covers more than 100 million workers in approximately 6.1 million work sites. While OSHA estimates the cost to employers to be under $5 billion dollars a year, various other entities, including the National Coalition on Ergonomics, believe the cost to employers will range from $90 billion to $125 billion dollars a year.

The Standard requires that all covered employers provide each current and each new employee with basic information about: common musculoskeletal disorders (MSDs), including signs and symptoms; the importance of reporting MSDs and the consequences of failing to report MSDs early; how to report workplace MSDs, risk factors and work activities associated with MSD hazards, and a brief description of the requirements of OSHA's Ergonomics Standard.

According to the Standard, once an employee reports an MSD or the signs or symptoms of an MSD, employers will need to determine (with the assistance of a healthcare professional, if desired) whether the reported MSD or MSD signs or symptoms qualify as an "MSD incident." A report is considered to be an MSD incident if the MSD is work-related and requires days away from work, restricted work, or medical treatment beyond first aid or if the MSD signs or symptoms last for seven consecutive days after the employee reports them to his/her employer. (If the employee has not experienced an MSD incident, employers need not take further action).

If an employee has experienced an MSD incident, employers must determine whether the injured employee's job meets the Standard's "Action Trigger." A job meets the Action Trigger if an MSD incident has occurred in that job and if the employee's job routinely involves exposure to one or more relevant risk factors (repetition, force, awkward postures, contact stress and vibration).

If the employee's job meets the Action Trigger for the employee's job and all jobs in the establishment that are the same as that job, employers will be required to comply with the Standard's "Quick Fix" option (if the Quick Fix option is permitted under the Standard) or develop and implement an ergonomics program that includes a number of specific elements. The requirements of a full ergonomics program include management leadership, employee participation, MSD management, job hazard analysis, and hazard reduction and control measures, if the job hazard analysis determines that the job presents an MSD hazard.

The Standard is significantly different from OSHA's proposed rule in many areas. For example, the Standard requires covered employers to pay covered employees who cannot work due to ergonomic injuries 90% of their pre-injury earnings and full (100%) benefits for as long as ninety (90) days (this is a compromise from the proposed rule which required up to six months of pay to be given to employees with ergonomic injuries). In addition, according to the final Standard, employees put on light duty need to be paid 100% of their wages, as well as full benefits. The Final Standard does allow employers to pay an employee by making the employee use paid time off or disability leave time. In addition, the 90% pay requirement can be offset by workers' compensation, if applicable.

Also, the final Standard provides a screening tool for employers to use to determine job relatedness when an MSD or the signs or symptoms of an MSD are reported. The check list is very detailed compared to the "complex criteria" mentioned in the original proposal.

In addition, unlike the proposed standard which had no such procedure, the final Standard gives employees the right to seek a second opinion, at the employer's cost, if there is a conflict of opinion after an employer-selected healthcare provider has made a determination.

This summary only skims the surface of the provisions of OSHA's Ergonomics Standard. The Standard is detailed and will require covered employers to spend time, energy and money to comply. While the Standard becomes effective on January 16, 2001, as with most other new OSHA standards, there are numerous effective dates for the specific requirements of the Standard. For instance, employers are required to begin to distribute information on the Standard to employees and begin receiving reports of MSD injuries no later than October 14, 2001.

We will keep you apprised of other developments regarding the Standard, including the suit filed in federal court by the National Chamber Litigation Center, which charges that OSHA's Ergonomics Standard is incomprehensible and unconstitutional. In the meantime, if you would like a copy of OSHA's Ergonomics Standard or if you have questions, please contact Jodi Plavner (215-977-2172 or jplavner@wolfblock.com) or any member of Wolf, Block's Employment Services Group.