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Ergonomics: OSHA "Drops the Other Shoe"

By Robert M. Wood
  • April 30, 2002

When Congress repealed OSHA's final ergonomics rule in March of last year, the Department of Labor came under immediate and intense pressure from labor organizations, as well as from powerful figures in Congress, to develop an effective alternative plan for reducing workplace injuries related to poor ergonomic design or work practices. After months of criticism, which included more than one public scolding of Secretary Chao, herself, in Congressional hearings, the agency has finally come forward with a game-plan.

On April 5, 2002, the Occupational Safety and Health Administration announced that it would pursue a flexible approach to the problem that would not, for the time-being at least, incorporate new rule-making. The new plan, which Secretary Chao has called OSHA's "four-point ergonomics plan," integrates four parallel strategies for attacking this problem. While the details of the plan remain sketchy, we have drawn the following summarizations from recent OSHA news releases:

Element 1: Voluntary Industry Guidelines. OSHA plans to develop a series of "industry-or-task-specific guidelines" for "select" industries aimed at correcting or minimizing the effect of work-practices or equipment design likely to contribute to musculoskeletal disorders (MSDs). OSHA defines a guideline as a voluntary "tool to assist employers in recognizing and controlling hazards." OSHA insists that an employer's failure to implement a specific guideline, alone, will not subject the employer to enforcement action. In fact, as OSHA will not be providing guidelines for all types of employment anytime soon, employers and industry groups will be encouraged to develop their own guidelines. The order of guideline development at OSHA will follow a "worst-first" approach, focusing on those SIC codes with the most significant incident rates for relevant injuries, such as carpal tunnel syndrome and back strains and sprains. On April 18, 2002, OSHA announced that the first set of industry guidelines would be developed for nursing homes. OSHA expects to have the first draft ready for public comment later this year.

Element 2: Focused, Coordinated Enforcement. According to Secretary Chao, "strong" enforcement is a key element in the agency's comprehensive plan. Enforcement will be pursued under the umbrella of OSHA's General Duty Clause. Because general duty violations can be more difficult to prove than specific standard violations, OSHA will work with Department of Labor attorneys to develop a focused inspection strategy that capitalizes on past ergonomics-related prosecution successes. OSHA will field specially trained inspection teams under the direction of an ergonomics coordinator. A coordinator will be designated for each of the ten federal OSHA regions. The inspection teams will conduct investigations specifically designed to ensure the greatest degree of prosecutorial success.

Element 3: Outreach and Assistance. OSHA will develop programs and strategies to assist employers, especially small businesses, to "proactively address ergonomic issues in the workplace." This effort will include training and advice for successful implementation of an ergonomics program. OSHA plans to offer "a complete and comprehensive set of compliance assistance tools, including Internet-based training and information, to support understanding of guidelines and how to proactively define and address ergonomic problems." Because immigrants often work in industries with high ergonomic hazard rates, OSHA's outreach strategy also includes plans for a special effort focusing on protections for this particular employee population, especially for those with limited proficiency in English.

Element 4: Research. OSHA plans to act as a "catalyst" to encourage studies to fill in the gaps in ergonomics science. In addition to working closely with the National Institute of Occupational Safety and Health (NIOSH) in matters of research, OSHA plans to implement an advisory committee that will identify areas where additional research is needed.

OSHA's new plan drew immediate condemnation from the labor sector and only faint praise from industry leaders. Senator Edward Kennedy, who chairs the Senate Health, Education, Labor, and Pensions Committee, called the effort a collection of "small symbolic gestures" designed to protect big business. The U.S. Chamber of Commerce, while mildly supportive of the plan, expressed reservations regarding the emphasis on enhanced enforcement efforts. Likewise, the President of the National Association of Manufacturers expressed concern about the plan's "potential for overzealous enforcement and unwarranted litigation."

In fact, despite Senator Kennedy's charges, there is genuine cause for concern that the new plan may be no less problematic for business than the repealed rule would have been. First, the repealed rule applied only to employers in "general industry." There is no such limitation now: construction and all other covered industries will be expected to engage in ergonomics safety evaluations and, where warranted, to develop appropriate ergonomics programs. Secondly, the most onerous aspects of the repealed rule did not come into play for an individual employer until there was a confirmed manifestation of an MSD injury in the employer's workplace. The new plan will require all covered employers to develop a more comprehensive preventative program. As Secretary Chao commented: "This plan is a major improvement over the rejected old rule because it will prevent ergonomics injuries before they occur and reach a much larger number of at-risk workers."

Another significant problem for business is that OSHA appears as far away as ever from developing a consensus definition for a bona fide ergonomic injury. In the "Frequently Asked Questions" section of OSHA's webpage, the agency vaguely suggests that the definition adopted by OSHA may vary according to the (as yet undefined) "context:"

Ergonomic injuries are often described by the term "musculoskeletal disorders" or "MSDs." This is the term of art in scientific literature that refers collectively to a group of injuries and illnesses that affect the musculoskeletal system; there is no single diagnosis for MSDs. As OSHA develops guidance material for specific industries, the agency may narrow the definition as appropriate to address the specific workplace hazards covered.

Finally, the structure of the repealed rule included built-in delays that phased employers into full coverage over a fairly significant period. It appears there will be no similar grace period for OSHA's new plan, other than the time it will take for the agency to fully mobilize its enforcement strategy. Already, OSHA has put employers on notice that the absence of specific OSHA guidelines for a particular employer's industry will provide no excuse for failure to implement a program:

Even if there are no guidelines specific to your industry, as an employer you still have an obligation under the General Duty Clause, Section 5(a)(1) to keep your workplace free from recognized serious hazards, including ergonomic hazards. ... A great deal of information is currently available from OSHA, NIOSH, and various industry and labor organizations on how to establish an effective ergonomics program, and OSHA urges employers to avail themselves of these resources.

Given organized labor's steady condemnation of OSHA's response to workplace ergonomic hazards, there is considerable danger OSHA will feel pressured to demonstrate that it has not surrendered to industry opposition. Vigorous enforcement and prosecution is the obvious solution to this image problem. Employers should be prepared to demonstrate to OSHA that they have made a good faith effort to comply with their obligations under the General Duty Clause. If you have any questions regarding this significant development, Jackson Lewis invites you to contact a member of its OSHA Practice Group or any of the attorneys in one of our twenty offices around the nation.

If you would like more information, please contact the Jackson Lewis partner with whom you regularly work, or members of the Jackson Lewis OSHA Practice Group.

©2002 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm that built its reputation on providing workplace law representation to management. Founded in 1958, the firm has grown to more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries including government relations, healthcare and sports law. More information about Jackson Lewis can be found at www.jacksonlewis.com.

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