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New Ergonomics Standard Substantially Broadens OSHA’s Reach After months of political wrangling, OSHA outmaneuvered its Congressional opposition to issue a new wide-reaching ergonomics standard. Find out how its extensive requirements will affect your operations. By now, you probably are aware that the Occupational Safety and Health Administration (OSHA) issued its final ergonomics standard. But what you may not realize is just how much these regulations expand OSHA’s coverage and how significantly your organization will be affected. At first glance, the regulations seem relatively easy to live with: they don’t require employers to create an ergonomic prevention program until an employee actually experiences a musculoskeletal disorder (MSD). However, the extremely broad definition of MSDs used by the standard practically guarantees that most employers will have an employee with an MSD and, therefore, will be required to implement a full-scale ergonomics program. This new reality will be a shock to many employers that have not previously had to spend time on OSHA compliance. To help ensure that you aren’t caught by surprise, we have analyzed your obligations under the new standard and point out several potential pitfalls in compliance. Two-Phase Process Includes Communication, Correction, Prevention As a practical matter, the ergonomics standard will end up impacting most employers. Specifically, it covers all employers in general industry that are subject to the Occupational Safety and Health Act (the Act). (Interestingly, the standard currently excludes employers engaged in construction, maritime, agriculture, and railroad operations; however, OSHA has indicated that it is still considering whether those already heavily regulated industries should be covered at a later point.) The language of the Act itself does not specify a particular number of employees an employer must have in order to trigger coverage. Thus, if you only have one employee, you can be subject to the Act’s coverage. The new standard imposes two levels of compliance. The first level is fairly easy and requires employers to provide employees with a summary of the ergonomics standard and with information about common MSDs, MSD signs or symptoms, and the importance of early reporting of MSDs. As part of the standard, OSHA has provided sample forms that may be used to comply with this requirement. (Copies of the forms are available on the Personnel Policy Service web site; see "For More Information," below.) The second level requires much more involvement by the employer and begins when an employee reports either an MSD or the signs or symptoms of having an MSD. An MSD is defined very broadly to cover a wide range of physical problems, including any disorder of the muscles, nerves, tendons, ligaments, joints, cartilage, blood vessels, or spinal discs that occur in the neck, shoulder, elbow, forearm, wrist, hand, abdomen (hernia only), back, knee, ankle, and foot. Examples of MSDs include muscle strains and tears, ligament sprains, joint and tendon inflammation, pinched nerves, low back pain, and carpal tunnel syndrome. Conditions that specifically are not covered include those resulting from slips, trips, falls, car accidents, or similar accidents. MSD "signs" include decreased range of motion, deformity, decreased grip strength, and loss of muscle function, while MSD "symptoms" include pain, numbness, tingling, burning, cramping, and stiffness. Once an employee reports any of the above problems, a complex analysis is triggered based on the nature and extent of the MSD that will likely end up requiring you to create and monitor a formal ergonomics program. You can determine the extent of your organization’s obligations by working through the following steps: • Step 1: Determine if the employee’s problem involves an "MSD incident." An MSD incident is defined as an MSD that is work-related and results in days away from work, restricted work, or medical treatment beyond first aid. Alternatively, MSD symptoms or signs that persist for seven or more days also can qualify as an MSD incident. If the problem does not meet the definition, no further action is required. • Step 2: Determine if the job exposes the worker to risk factors that could meet the "Action Trigger." The standard requires employers to analyze the job in question using its Basic Screening Tool. The Tool measures the job’s exposure to five risk factors: repetition, awkward posture, force, vibration, and contact stress. If the risk factors on the job exceed the exposure level threshold set by the Tool, the job will meet the Action Trigger, and the employer will be required to go to the next step. If the job does not meet the Action Trigger, no further action is required. • Step 3: Establish an ergonomics program for that job. The employer may be eligible to implement a somewhat abbreviated program under the standard’s "Quick Fix" option. This shortcut is available if the employer has not had more than one MSD incident in that particular job and has had no more than two MSD incidents overall in the previous 18 months. If the employer is not eligible for the Quick Fix, it must implement a complete ergonomics program that includes the following features: An MSD management process to address the employee’s injuries. This process must provide the employee access to a health care professional to assess the MSD (including second and third opinions), any necessary work restrictions (such as light duty or time off to recover), work restriction protection, and evaluation of and follow-up to the MSD incident. The work restriction protection requires the employer to maintain the employee’s rights, benefits, and pay for up to 90 days. In particular, the employee is entitled to 100% of pay if placed on light duty or transferred, or 90% of pay during a leave of absence. Any employer-provided paid leave (including paid sick time and short-term disability) can be used to offset these pay requirements. Management leadership. The employer must create an MSD reporting and response system and designate leaders who have the necessary authority, resources, and information to support the ergonomics program. Employee participation. Employees and their representatives must be able to make timely reports of MSDs, MSD signs or symptoms, and MSD hazards and must receive prompt responses to their complaints. In addition, they must be involved in the development, implementation, and evaluation of the ergonomics program. Job hazard analysis and control. The employer must determine if MSD hazards exist in the job and, if so, implement a plan to reduce them. The standard refers to several "job hazard analysis tools" available from researchers, professional associations, and government agencies for employers to use to conduct an ergonomic analysis. It does not, however, provide any information on how to use the tools. The standard also includes a video display terminal (VDT) workstation checklist to help employers identify and address MSD hazards caused by VDTs. Although the standard specifically indicates that an employer does not have to eliminate MSDs entirely to be in compliance, the employer must have a specific process in place to address and reduce problems quickly. Steps the employer can take to reduce job hazards include using engineering, administrative, and work practice controls. Training. Training must be given initially when the program is implemented, and then every three years, to employees in any job that meets the Action Trigger, to their supervisors, and to other employees involved in setting up and managing the ergonomics program. This training should include information about the standard’s requirements, the employer’s ergonomics program, signs and symptoms of MSDs, ways to report MSDs, and risk factors in the job. • Step 4: Evaluate the program every three years. You must review the elements of the program to see if they are functioning properly and determine whether the program is achieving positive results, such as the reduction in the number and severity of MSDs. In addition, employees should have input about the effectiveness of the program and any problems. The standard also provides a "grandfather clause" for employers with ergonomics programs already in place. You may not have to create a new ergonomics program if you have a current program that was written and implemented prior to November 14, 2000, and that contains most of the same elements required by the standard. Standard Raises Potential Conflicts, Creates Problems Like many new laws and regulations, the purpose of the ergonomics standard is well intended. Most employers would like to reduce employee illnesses and injuries related to ergonomic risk factors in the workplace. However, the standard raises many questions about its interaction with other federal laws and will likely create numerous compliance problems for employers. Here are some particular trouble spots to watch for: 1. The standard now must be integrated into your leave and disability policies. The "Bermuda Triangle" caused by the interaction of the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and state workers’ compensation laws just turned into a rectangle. For example, an MSD covered by the ergonomics standard also may be a "serious health condition" under the FMLA and/or a "disability" under the ADA, and typically also will be a work-related injury covered by workers’ compensation. Thus, anytime you are faced with an MSD, you must make sure your response is consistent not only with the ergonomics standard, but also with these other laws. 2. The employee participation requirements may conflict with your obligations under the National Labor Relations Act (NLRA). The NLRA guarantees employees the right to self-organize and prohibits employers from dominating or assisting labor organizations. Recent decisions by the National Labor Relations Board (NLRB) have found employee safety committees to be illegal employer-dominated labor organizations when they involved employees in the decisionmaking process. Since the ergonomics standard requires employees to be involved in the development, implementation, and evaluation of any ergonomics program, these actions could be in conflict with the NLRB interpretations. 3. The broad definition of MSDs makes it difficult to distinguish between work-related and nonwork-related injuries. Even though this standard ostensibly covers only work-related MSDs, the definition of "work-related" appears to cover both MSDs specifically caused by the employee’s job and those that are merely aggravated by the job. To be work-related, the MSD only has to have been "contributed to" by the job. As a result, it is likely that many employees will be entitled to the standard’s protections even though their MSDs were initially caused by nonwork-related activities. 4. Once you implement an ergonomics program, discontinuing it will be hard. The standard allows employers to "discontinue" their ergonomics program when the risk factor exposure levels for the job fall below those levels described in the Basic Screening Tool. However, you must still maintain any controls you implemented in the job to prevent MSDs and must continue training employees regarding the controls. Thus, some of your obligations will continue even after you have eliminated the MSD hazards. Legal Challenges May Bring Relief The ergonomics standard becomes effective on January 16, 2001, although it provides a nine-month grace period before you have to begin implementing its provisions. Specifically, you have until October 15, 2001, to distribute the required information to employees and to begin responding to employee MSD reports. Many legal experts, however, are predicting that the standard still may be overturned before employers have to begin complying with it. Several business groups, including the U.S. Chamber of Commerce and the National Association of Manufacturers, have gone to court challenging both the substantive requirements of the standard and the legality of the regulatory process that preceded its issuance. While these challenges may ultimately provide relief for employers, the most prudent course in the interim is to assume that the new standard will be implemented. Thus, you should start your compliance efforts now and get familiar with the standard’s requirements. OSHA ergonomics standard, notices, and decisionmaking chart, available on the Personnel Policy Service Web site at www.ppspublishers.com/ergonomics.htm. OSHA ergonomics compliance information, available on the OSHA Web site at www.osha-slc.gov/ergonomics-standard/index.html. This article is not intended as legal advice. Readers are encouraged to seek appropriate legal or other professional advice. For more articles please click here.
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