OSHA's Final Ergonomics Standard: A Heavy Load for Employers

Do you have employees with numb fingers, sore lower backs or tense tingly necks? Read on then, because OSHA's new ergonomics standard may apply to you.

Millions of U.S. companies in manufacturing, financial, service, education, and other general industry arenas must prepare to implement comprehensive ergonomics programs. The United States Occupational Safety and Health Administration (OSHA) published the final Ergonomics Standard ("Standard") on November 14, 2000¹. Barring successful legal challenges, the final rule becomes effective January 13, 2001, and employers must comply with the Standard's provisions by October 2001. The Ergonomics Standard obligates all U.S. employers² to control and/or reduce musculoskeletal disorders (MSDs), such as repetitive stress or carpal tunnel, in the workplace by following a comprehensive evaluation, education, and corrective action program in situations where at least two employees have complained of such incidents within an eighteen-month period. Further, under the Standard employers are required to provide financial and job protection for employees affected by MSDs. So be prepared to handle this heavy load!

Ergonomics Standard Defined

Ergonomics is the science of fitting jobs to the physical limits of the human body. The purpose of the standard is to reduce the number and severity of musculoskeletal disorders (MSDs) caused by exposure to a majority of job activities that involve reaching, bending over, lifting heavy objects, using continuous force, working with vibrating equipment, and doing repetitive motions.

A musculoskeletal disorder affects the muscles, nerves, tendons, ligaments, joints, cartilage, blood vessels, or spinal discs and, for the purpose of the Standard, only includes the following areas of the body associated with exposure to risk factors: neck, shoulder, elbow, forearm, wrist, hand, abdomen (hernia only), back, knee, ankle, and foot. MSDs may include such medical conditions as: low back pain, tension neck syndrome, carpal tunnel syndrome, rotator cuff syndrome, DeQuervains's syndrome, trigger finger, tarsal tunnel syndrome, sciatica, epicondylitis, tendonitis, Raynaud's phenomenon, hand-arm vibration syndrome (HAVS), carpet layer's knee, and herniated spinal disc. The standard does not address injuries caused by slips, trips, falls, vehicle accidents, or similar accidents.

The potential for developing MSDs exists if risk factors, such as repetition, forceful exertion, awkward posture, vibration, or contact stress, exist in the job and occur at a magnitude, duration or frequency such that medical treatment beyond first-aid and work restrictions result. Physical indications that an employee may be developing an MSD include symptoms of pain, numbness, tingling, burning, cramping, swelling and stiffness of the affected area. Objective physical signs of developing MSDs include decreased range of motion, deformity, decreased grip strength and loss of muscle function.

Employers should, and may be obligated to under the Standard, create work practice controls that change the way an employee performs certain physical work activities of a job that reduce or control exposure to MSD hazards. Examples of work practice controls for MSD hazards include neutral body postures such as straight wrists or lifting close to the body to perform tasks, two-person lift teams, and micro-breaks.

Employers' Obligations Under the Standard

Employee Communications

Employer's are required to post and provide information in electronic or written form to every employee regarding common MSDs and their signs and symptoms, how to report MSDs to the employer and the importance of early reporting, risks factors and the kinds of jobs and work activities associates with MSD hazards, and a summary of the OSHA Ergonomics Standard and its requirements. Beyond this initial disclosure, employers' further obligations depend on evaluation of employee MSD incidents. Employers with pre-existing ergonomics programs may be "grandfathered" provided the established programs contain all the mandatory elements.

MSD Incidents and Action Triggers

Once an employee reports an MSD, or MSD signs or symptoms, the employer must promptly determine whether it qualifies as an "MSD incident." An MSD incident occurs in two situations: (1) if the MSD is work-related and requires days away from work, restricted work, or medical treatment beyond first aid; or (2) the MSD signs or symptoms are work-related and last for seven consecutive days after the employee reports them to you. Assistance from a health care provider is recommended if an employer is attempting to determine whether an MSD incident exists. If the employee has experienced an MSD incident then the employer must determine whether the job meets the Standard's "Action Trigger."

The Standard states that a job meets the "Action Trigger" if an MSD incident has occurred in that job AND the employee's job routinely involves, on one or more days a week, exposure to one or more relevant risk factors at the minimally prescribed level outlined by OSHA in its Basic Screening Tool. The Basic Screening Tool is a checklist for employers' use in screening jobs in which an MSD incident has occurred. The results of the screening determine if the job has high enough ergonomic risk factors to warrant the employer to take further action.

If it is determined that the job meets the Action Trigger, then for the employee's job and all similar jobs in the establishment, the employer must implement either a "Quick Fix" or develop and implement a comprehensive ergonomics program that includes several mandatory elements.

Quick Fix Option

The Quick Fix option applies ONLY if your employees have not experienced more than one MSD incident in that job and there have been no more than two MSD incidents in the workplace in the preceding 18 months. Even so, the Quick Fix option requires the employer to provide MSD management and observe the job to determine risk factors and talk to employees and representatives about the job tasks performed that relate to the MSD incident. Further, the employer must ask for recommendations from employees and their representatives regarding measures to reduce exposure to MSD hazards.

Controls must be implemented within 90 days of the Action Trigger to control or reduce MSD hazards. A review must be conducted within 30 days to determine if the controls have reduced the MSD hazard to the appropriate levels. Records must be kept of all Quick Fix processes for three years. Finally, if you have not reduced the MSD hazard to the specified level, then you must implement the full ergonomics program described below.

Ergonomics Program

A full ergonomics program must be implemented where two or more MSD incidents have occurred in the workplace in the past 18 months. The program must include management leadership action, employee participation, MSD management, job hazard analysis and reduction and control measures, and training as specified by the OSHA Standard. While some employers have implemented voluntary ergonomics programs in response to workers' comp or other issues, most have not dealt with ergonomics on a mass basis in their workplace. The states that have existing ergonomics standards, California and Washington, are expected to review and modify the plans as necessary to comply with or exceed the Federal Standard protections.

Management Leadership. Management leadership requires the employer to designate responsibilities for establishing and managing the ergonomics program, ensure that the policies and practices encourage, not discourage, early reporting of MSDs and employee participation, and communicate to all employees about the ergonomics program.

Employee Participation. Employee participation is a key element of the new Standard and requires that employees and their representatives have ways to promptly report MSDs³ and get involved in the development, implementation, and evaluation of the ergonomics program. Further, the employees must receive prompt responses to any MSD reports and must be provided with a summary of the Standard and your ergonomics program.

MSD Management. MSD Management requires employers to provide the following to each employee whose MSD incident meets the Action Trigger: access to a health care professional for evaluative purposes (but not medical treatment); any necessary work restrictions including recovery time off; work restriction protection; and evaluation and follow-up. The health care provider must provide a written report with a copy to the employee for each evaluation. Under the Standard, the health care provider's opinion is not permitted to include any findings or information that is not related to workplace exposure to risk factors.

Work Restriction Protection. Work Restriction Protection requires an employer to maintain the employee's employment rights and benefits and provide 100 percent of his or her earnings for up to 90 calendar days where the employee has work limitations or has been temporarily transferred. The employer must provide for employment rights, benefits, and 90 percent of salary where the employee must take time off of work.

Job Hazard Analysis. To determine whether a job that meets the Action Trigger poses an MSD hazard to employees in that job, you must conduct a job hazard analysis for the job. The job hazard analysis involves talking to the employees about the job tasks performed that may relate to MSDs and observing the job performance to identify and evaluate the risk factors. One of several methods or tools outlined by OSHA must be used to conduct the job hazard analysis.

A "problem job" exists where it is determined that a job contains an MSD hazard; however, if the MSD hazard poses a risk only to the reporting employee, you may limit the job controls, training and evaluation to only that employee's job.

Hazard Control and Reduction. Employers are required to reduce MSD hazards in problem jobs. OSHA has established hazard identification tools and employers must control or reduce MSD hazards in accordance with or to levels below those designated in the tools. If it is not possible to reduce the hazards, then employers must assess the job every three years and determine if additional feasible engineering, work practice, or administrative controls exist. If personal protective equipment is used to supplement other controls, it must be provided at no cost to the employees.

Once it is determined that the job meets the Action Trigger, an employer must implement initial controls within ninety days. Permanent controls that meet the levels specified by OSHA must be in place within two years. Employers must track their progress and ensure that the controls are working.

Training. Initial and follow-up training every three years is required for all employees in jobs that meet the Action Trigger, and their supervisors. In addition, specified training must occur for all those involved in setting up and managing the ergonomics program. The training must be understandable to all employees involved and must permit the participants to ask questions and receive answers.

Review and Recordkeeping

Ergonomics programs must be evaluated every three years. Employers with eleven or more employees, including part-time or temporary workers, must keep written or electronic records that include all employee reports of MSDs, responses to each report, job hazard analyses, hazard control measures, quick fix processes, ergonomics program evaluations, and health care provider opinions and work restrictions or time off.

Will it Stick? Views of Proponents and Opponents

OSHA represents that "good ergonomics is good economics" and states that musculoskeletal disorders cost the nation up to $50 billion a year. It is estimated that $1 out of every $3 spent on workers' compensation goes toward MSD-related claims and that sixty percent of all general industry employers have not yet addressed ergonomic risk factors. OSHA suggests that this new standard will prevent about 460,000 MSDs a year and will generate benefits of $9.1 billion a year in each of the first ten years it is in effect.

Proponents of the Standard, primarily health associations and unions, feel that an ergonomics standard is desperately necessary and this rule is a historic victory for worker safety. John Sweeny, President, AFL-CIO, touts OSHA's final ergonomics standard as the "most important worker safety action developed in the agency's history." He is quoted as stating, "Ten years in the making, the new standard will prevent hundreds of thousands of crippling repetitive strain injuries each year . . . Workers in poultry plants, meat packing, and auto assembly, along with computer operators, nurse's aides, cashiers and others in high risk jobs will finally have much-needed protection. Since the passage of OSHA in 1970, the job fatality rate has been cut by 75 percent—saving more than 220,000 lives. Job injury rates have been lowered by 39 percent. With this rule, even greater progress will be made in reducing injuries."⁴

Opponents find the rule far-reaching, confusing, and bureaucratic. The arguments weighing against this Standard include the "complex bureaucratic maze" that millions of U.S. employers will have to follow in creating a comprehensive ergonomics program if just two employees claim to have experienced signs or symptoms of an MSD⁵. Further, the Standard's complex processes and undefined terms will create uncertainty and confusion for employers and OSHA inspectors. In addition, the cost of implementing the Standard is estimated by the business community at $18 to $125 billion per year, versus the $4.5 billion stated by OSHA.

Business groups are mounting legal challenges for at least three reasons: (1) the rule's hasty publication process; (2) the complicated substantive provisions; and (3) the claim that OSHA exceeded its rule making authority with provisions that appear to conflict with the ADA, FMLA, and state workers' compensation systems. First, OSHA issued the final rule only twelve months after the proposed standard and in the midst of debate in the United States Congress over legislation to postpone publication of the standard until October of 2001. The final Standard currently takes effect on January 13, 2001. Next, the confusing provisions and ill-defined terms create a standard that may cause irreparable harm to businesses. Difficult issues, such as determining MSD work-relatedness or causation or the required employer obligations, will likely confuse both employers and OSHA investigators and cause inconsistent handling of such issues in the workplace. Finally, OSHA may have exceeded its rule-making authority in developing provisions that are inconsistent with the ADA, FMLA and state workers' compensation systems. For example, the Ergonomics Standard calls for wage replacement or "work restriction protection" for employees unable to work their regular jobs due to an MSD incident, despite the exclusive remedy for workplace injuries provided for under workers' compensation law.

Organizations, such as the Society for Human Resource Management (SHRM), are filing for a stay of the standard with OSHA but no action will be taken until the Bush administration takes over.⁶ If granted, implementation of the Standard would be delayed until the court rules on the legality of the Standard. In addition, employers and organizations can lobby to pique the interest of the upcoming 107th Congress. Under the Congressional Review Act, the rule can be nullified if both houses of Congress pass a resolution of disapproval that is then signed by the President.

In the meantime, employers cannot escape the tangled regulatory web spun by OSHA. The organizational implications are enormous. All must prepare to implement ergonomics programs in the workplace. Proper evaluation, training and communication will be critical to complying with the Standard. Further, companies must consider the interplay between the HR and safety/risk management functions, as well as the implications of this Standard with pre-established ADA, FMLA, and Workers' Comp plans. Employment Practices Solutions, L.L.C. can assist with any evaluation of ergonomics programs and related policies and practices. Even if you are hesitant to sponsor a full-fledged ergonomics plan at this time, your company must develop reporting, monitoring, and escalation procedures now to avoid employee concerns later

Similar to the ADA, this new Ergonomics Standard has the potential to generate an explosion of administrative and legal challenges. So get your feet planted firmly under you, shoulders square, and prepare to lift this new heavy employer burden—act early, find experts to assist you, and stay ahead of the curve.

1. The complete regulatory text as well as other comprehensive Ergonomics Standard information can be found on OSHA's web site at www.osha-slc.gov.
2. The Standard applies essentially to all U.S. employers except those in construction, maritime, railroad or agriculture.
3. Employee Hotlines may be an excellent reporting mechanism. Please refer to EPS's November Newsletter or website at www.epexperts.com for the article entitled "Batman Has One, The President Has One: Who Else Needs a ‘Hotline?'" By Amy Nickell Jacobs.
4. Quoted from the U.S. Department of Labor's OSHA publication "What Others Are Saying About OSHA's Final Ergonomics Standard."
5. See, for example, Gregory R. Watchman, "OSHA Issues Final Ergonomics Standard: Broad rule imposes bureaucratic maze, requires comprehensive ergonomics programs," published by the Society for Human Resource Management as a white paper on November 14, 2000.
6. Contact SHRM at www.shrm.org to join their effort.