Navigating Osha's Ergonomics Rules

Timothy S. Bland

JUMPING THROUGH THESE HOOPS--AGAIN AND AGAIN--COULD BE ENOUGH TO GIVE YOU A MUSCULOSKELETAL DISORDER.

If you love checklists and decision trees, then the final ergonomics rules from the Occupational Safety and Health Administration (OSHA) will be like manna from heaven for you.

For more than a decade, OSHA has been examining how to deal with potentially dangerous ergonomic conditions in the workplace. This past November, over the protest of many groups, OSHA issued its final ergonomics standard.

The purpose of the standard is to reduce the number and severity of musculoskeletal disorders (MSDs) arising in the workplace. But the number of hoops employers may need to jump through to comply with the regulations could cause them, not employees, to suffer a repetitive stress injury.

What Is Covered

The new regulations cover MSDs, which include disorders affecting the muscles, nerves, tendons, ligaments, joints, cartilage, blood vessels and spinal discs. These conditions can occur in the neck, shoulder, forearm, wrist, hand, abdomen (hernias only), back, knee, ankle and foot.

MSDs do not include injuries arising from slips and falls, motor vehicle accidents or blunt trauma.

Who Is Covered

The new standard applies to all employers except those:

* Engaged in the construction, maritime, agriculture or railroad industries.

* Not normally subject to OSHA jurisdiction (i.e., because they fall under the OSHA exemption as a "political subdivision of a state").

The final standard is broader than the proposed standard, which initially applied only to jobs involving manufacturing or material handling, or to any industry job in which an MSD had actually occurred.

State vs. Federal Jurisdiction

In states where OSHA jurisdiction has been given to the state OSHA office, the new ergonomics standard will be incorporated into the state's requirements and enforced by the state agency.

As a result, employers with worksites in multiple states may fall under the jurisdiction of federal OSHA in one state, and a state OSHA office in another state. This scenario is entirely likely given that in almost half of the states, OSHA is administered at the state--not the federal--level. (See "Areas with Local OSHA Jurisdiction" on this page.)

Step by Step

Employers subject to the new regulations may face two slightly different sets of requirements, depending on whether or not they had an ergonomics plan in place before OSHA's regulations were published.

Employers that did not previously have an ergonomics program in place must abide by the following multi-step process to gain compliance. (For information relating to employers that had an ergonomics program in place, see "Opting Out" on page 64)

Step No. 1: Notifying employees. Employers must provide current and new employees with the following ergonomics information:

* A copy of the new OSHA standard.

* A short description of the standard's requirements.

* Information about MSDs and their signs and symptoms.

* Information stressing the importance of promptly reporting MSDs, or their signs and symptoms.

* Information showing how to report MSDs and their signs and symptoms.

* Information on the consequences of failing to promptly report MSDs.

* The risk factors, jobs and work activities associated with MSD hazards.

This information must be provided to all employees in written form. It may be distributed electronically if all employees have such access.

Current employees must receive this information by Oct. 14, 2001-11 months after the publication date of the standard. Employees who are hired after Oct. 14 must receive this information within 14 days of hire.

The information also must be posted in a conspicuous place in the workplace. To comply with this requirement, employers may use Appendix A to the standard and the summary sheet in Appendix B. The appendices (along with the standard) are available from OSHA or online.

Step No. 2: Responding to complaints. After Oct. 14, 2001, whenever employees report an MSD (or its signs or symptoms), employers must promptly respond and determine if an "MSD Incident" has occurred. An MSD Incident is defined as:

* An actual MSD that is work-related and requires time away from work, restricted work duties or medical treatment beyond first aid.

* Work-related MSD signs and symptoms that last seven consecutive days after the employee reports them.

If employers determine that an MSD Incident has not occurred, they are not required to take further action.

If an MSD Incident has occurred, and if the employee suffered the incident while performing his or her job, the employer must look closely at the nature of the employee's job. The employer may be required to take steps to prevent additional similar incidents if the employee's job routinely involves, on one or more days of the week, exposure to certain relevant risk factors, including any of the following:

* Engaging in repetitive motions or a cycle of motions involving the injured body part.

* Using a computer mouse or keyboard for more than four hours per day.

* Lifting more than 75 pounds at one time or lesser amounts several times per day.

* Pushing or pulling heavy objects for more than two hours per day.

* Maintaining an awkward position, such as squatting, for more than two hours per day.

* Using vibrating equipment for more than 30 minutes to two hours per day, depending on the amount of vibration produced by the equipment.

(Note: These criteria are broad enough -- particularly the standard regarding computer use -- that they likely will apply to a large number of jobs. OSHA estimates that, overall, the standard will protect 102 million workers at 6.1 million worksites.)

If the job at issue does not regularly involve any of these functions, the employer has no further obligations. However, if the job does require these functions (which OSHA refers to as "Action Triggers") the employer must either comply with the standard's "Quick Fix" option, or implement a full ergonomics program.

The Quick Fix option is available only in limited circumstances. It applies only to jobs in which, in the previous 18 months, employees at the worksite experienced no more than one MSD, and where there have been no more than two MSD incidents at the entire worksite.

Where the Quick Fix option is available, the employer must act promptly to implement controls and to review the effectiveness of hazard reduction efforts for that job.

The Full Program

Where the Quick Fix option is not available, employers must develop and implement a full ergonomics program. The standard requires the following components in a full ergonomics program:

Management leadership. Employers must assign and communicate responsibilities for setting up and managing the ergonomics program. They must provide designated persons with the authority, resources and information necessary to comply with the OSHA standard.

Employers also must ensure that their policies and practices do not discourage employees from participating in the ergonomics program, or from reporting MSD hazards or signs and symptoms of MSDs.

Finally, employers must communicate periodically with employees about the ergonomics program and employees' concerns about MSDs.

Employee participation. Employers must provide employees with ways to promptly report MSDs, MSD hazards and MSD signs and symptoms in the workplace. Employers must respond promptly to employee reports of MSDs.

Employers also must provide employees with a summary of the standard; ready access to a copy of the standard; information about MSDs; information about MSD signs, symptoms and hazards; and information about the employer's ergonomics program.

OSHA does not provide any detail on the role of unions in implementing the standard. However, because the standard requires employee participation and input, it is likely that OSHA will require that union representatives be part of the process.

MSD management. The standard provides a fairly complex regimen for MSD management. Some of the more Important aspects include:

* Providing employees suffering from an MSD with free access to health care professionals for evaluation and treatment (including the right to obtain a second and even third medical opinion, if necessary, at the employer's expense).

* Complying with any necessary work restrictions caused by the MSD, including time off for recovery and "work restriction protection."

"Work restriction protection " involves maintaining employees' earnings and benefits at 100 percent of their normal levels while they perform light duty work. Such protection normally exists until one of the following three events occurs:

* Employees are able to resume their former work without endangering themselves.

* A health care professional determines employees can never resume their former work.

* Ninety calendar days have passed.

Job hazard analysis and control. Employers must conduct a job hazard analysis for the job in which the MSD has occurred. The analysis includes:

* Talking with employees about job tasks.

* Observing employees performing the job to identify risk factors and to evaluate the magnitude and frequency of exposure to risk factors.

* Using an "occupational specific hazard-identification tool," as identified by OSHA.

The analysis must include all employees who perform the same job, or a sample of employees in that job who have the greatest exposure to the relevant risk factors. Generally, hazards must be either completely eliminated or reduced to acceptable levels, as defined by the standard.

Hazard reduction and control measures. Employers must control MSD hazards using feasible engineering, work practice or administrative controls--or any combination thereof. The standard states that engineering controls are the preferred method for controlling MSDs.

Employers also may use personal protective equipment to supplement hazard control measures; such equipment must be provided at no cost to employees.

Training. Employers must provide initial training to employees on matters such as MSDs, the OSHA ergonomics standard and the employer's own ergonomics programs. Employers also must provide follow-up training every three years for:

* All employees in a job that meets the "Action Trigger" criteria.

* The supervisors or team leaders for these employees.

* Other employees involved in setting up and managing the employer's ergonomics program.

Program evaluation. Finally, the standard requires employers to evaluate their ergonomics program at least once every three years to make sure it is effective and complies with the standard.

Timothy S. Bland, SPHR, is an attorney with the Memphis office of Ford & Harrison LLP, a national law firm exclusively representing management in labor and employment matters. He is a member of SHRM's national Workplace Diversity committee. Pedro P. Forment is an attorney with the Miami office of Ford & Harrison LLP. Formerly, he was an attorney with the Solicitor's Department of the U.S. Department of Labor, counsel to OSHA.

Areas with Local OSHA Jurisdiction

The following 24 states and territories operate their own occupational safety and health agencies under approval of the federal agency:

Alaska

California

Connecticut

Hawaii

Indiana

Iowa

Kentucky

Maryland

Michigan

Minnesota

Nevada

New Mexico

New York

North Carolina

Oregon

Puerto Rico

South Carolina

Tennessee

Utah

Vermont

Virgin Islands

Virginia

Washington

Wyoming

Opting Out

Employers that already had an ergonomics program in place prior to publication of the new OSHA standard may continue implementing their program in lieu of some of the standard's requirements.

Practically speaking, however, this option doesn't really offer employers much of an "out." Employers may continue using their own programs only if those programs meet specific criteria (which most programs will not). Specifically, the employer's program must:

* Have been written and enacted prior to publication of the standard.

* Contain a management leadership component.

* Have included active employee participation and involvement.

* Provide for job hazard analysis and control.

Even if the programs do meet all these requirements, employers still don't get much of a break. The four requirements discussed above are essentially the same requirements facing employers that did not have a pre-existing ergonomics program. And, in addition to the pre-existing ergonomics program, employers with pre-existing policies will need to add a policy by Nov. 14, 2001, that provides for musculoskeletal disorder management.

COPYRIGHT 2001 Society for Human Resource Management
COPYRIGHT 2001 Gale Group