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February 2001
OSHA’S Ergonomics Standard
By Jonathan A. Wexler, Esq.
On Nov. 14, 2000, the Occupational Safety and Health Administration
(OSHA) finalized its Ergonomics Program Standard (the standard). The goal
of the standard is to reduce the number and severity of employment-related
musculoskeletal disorders (MSDs). Although the standard became effective
on Jan. 16, 2001, employers covered by the standard need only provide
basic information to employees about MSDs—including
1) their signs, symptoms, and causes,
2) to whom to report them, and
3) a summary of the basic provisions of the standard—before Oct. 15,
2001.
Employers Must Act When an Employee Reports an MSD
Employers that did not have an ergonomics program in place as of Nov.
14, 2000, are required to receive and respond to employee reports of MSD
symptoms beginning Oct. 15, 2001. Upon receipt of an employee report,
the employer is required first to determine whether the report constitutes
a work-related “MSD incident.” If not, the employer need not take further
action. However, if the employee report does constitute an MSD incident,
the employer must, within seven days after the employee’s report, determine
whether the employee’s job meets the standard’s “action trigger.” A job
meets the action trigger if it involves exposure to one or more of the
five risk factors: repetition, force, awkward postures, contact stress,
or vibration. If the employer determines that the job meets the action
trigger, it has two options: develop a complete ergonomics program for
that job or implement a “quick fix,” if the employer qualifies.
The Elements of an Ergonomics Program
A complete ergonomics program has the following seven elements:
Management leadership. Employers must assign responsibilities
and allocate resources for setting up and managing the ergonomics program
and ensure that policies and practices encourage employee participation
in the program as well as the early reporting of MSD signs, symptoms,
and hazards. Management leadership must be initiated within 30 days after
the employer determines that a job meets the action trigger.
Employee participation. The employer is required to ensure that
basic information set forth in the standard is transmitted to employees
and that the program contains procedures for receipt of employee reports,
management responses, and employee involvement in development, implementation,
and evaluation of the program. Employee participation must also be initiated
within 30 days after the employer determines that a job meets the action
trigger.
Job hazard analysis. Within 60 days after determining that a
job meets the action trigger, the employer is required to perform a job
hazard analysis. Such an analysis involves talking with a representative
sample of employees in the job, observing the job to identify risk factors,
and evaluating the risk factors to determine whether they pose a hazard
to employees in that job.
Hazard reduction and control. Once a job hazard analysis has
been performed, the standard requires employers to either control MSD
hazards or reduce MSD hazards to levels at or below those established
in the standard. OSHA defines “control” as reducing MSD hazards “to the
extent that they are no longer reasonably likely to cause MSDs that result
in work-related medical treatment beyond first aid.” The employer is required
to implement initial controls within 90 days after it determines that
the job meets the action trigger.
MSD management. Within seven days after an employer determines
that a job meets the action trigger (i.e., not more than 14 days after
an employee initially reports an MSD), the employer must provide the reporting
employee with MSD management, which consists primarily of two elements
which are to be provided to the employee at no cost:
1) access to a health care professional (HCP) for written evaluation
of the employee’s medical condition and recommendations for work restrictions,
including time off, if necessary; and
2) work restriction protection (WRP), which guarantees the employee
all benefits and (i) 100% of the employee’s salary, during periods
of restricted work activity, and (ii) 90% of salary, during time off
for recovery.
The employer is required to maintain WRP only until the employee is
able to resume work without restrictions or for 90 days, whichever is
earlier. In addition, the employer’s financial obligations may be offset
by other coverage, such as any workers’ compensation benefits the employee
receives. Employers may also require employees to exhaust sick or similar
paid leave. Finally, an employer may, at its cost, challenge the findings
of an HCP by getting a second and third opinion.
Training. The standard prescribes initial training and follow-up
training every three years for: 1) each employee in a job that meets the
action trigger (within 90 days after the trigger), 2) each of their supervisors
or team leaders (within 90 days after the trigger), and 3) each employee
involved in setting up and managing the ergonomics program (within 45
days after the trigger).
Periodic program evaluation. The employer is required to evaluate
its ergonomics program in accordance with the standard at least every
three years, or sooner if the employer has reason to believe that the
program is not functioning properly.
Qualifying for a Quick Fix
As an alternative to implementation of a full ergonomics program,
an employer may respond to an MSD incident by implementing a “quick
fix.” A quick fix is an option for only those employers that have experienced
no more than one MSD incident in the job at issue and for whom there
have been no more than two reported MSD incidents in the past 18 months.
To use a quick fix, the employer must promptly provide MSD management
to the reporting employee, talk to the employees in the same job about
the tasks they perform, observe them performing those tasks to identify
risk factors, solicit employee suggestions to reduce those risk factors,
and implement controls which reduce those hazards. The quick fix option
must be implemented within 90 days of the employee’s report, and the
controls implemented must be reviewed not more than 30 days later to
determine whether hazards have been reduced to the levels specified
in the standard. Like a full ergonomics program, a quick fix must be
implemented not only for a specific job in question, but for all jobs
that are the same (i.e., that have the same physical work activities
or tasks, even if the jobs have different titles or classifications).
Recordkeeping Obligations
Employers with 11 or more employees are required to maintain for three
years, in either written or electronic form, and provide to OSHA upon
request the following records:
employee reports of MSDs, MSD signs and symptoms, and hazards
employer responses to such reports
job hazard analyses
hazard control measures
quick fix process
ergonomics program evaluations
work restrictions, time off work, and HCP opinions.
OSHA’s ergonomics standard has been quite controversial, and industry
groups have challenged it in court. It is possible that a federal court
may issue a stay of the implementation and enforcement of the standard.
Jonathan A. Wexler is an attorney in the New York office of Vedder
Price Kaufman & Kammholz, where he practices labor and employment law.
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