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OSHA Ergonomics Enforcement: Draft of First Industry Guidelines Released

  • September 13, 2002

On August 29th, 2002, OSHA released the first set of draft guidelines developed under OSHA's "four-point ergonomics plan," - the agency's new strategy for addressing workplace musculoskeletal disorders (MSDs). The document, which is entitled "Ergonomics for the Prevention of Musculoskeletal Disorders: Guidelines for Nursing Homes," is available from the agency's website. Public comment is invited through October 30, 2002.

The agency's development of "voluntary" industry or task-specific ergonomic program guidelines is a key element of the four-point plan, which was first announced last April. OSHA has abandoned a one-standard-fits-all approach that would simultaneously impose an ergonomics regulatory structure upon a broad range of industries. OSHA's new plan calls for a "worst-first" strategy that prioritizes the agency's focus on industries with statistically high rates of ergonomics-related injuries. Nursing homes, retail grocers, and poultry processors are among the first industries targeted for guideline development. While the first set of guidelines is designed for the nursing home industry, it may provide insights into the structure and basic elements likely to appear in subsequent guidelines for other industries. A brief summary of the Guidelines follows.

Introduction

The Introduction discusses statistical, practical, and economic justifications for implementation of an ergonomics program by nursing home employers. These include the industry's relatively high rates of lifting-related injuries, the direct workers' compensation and healthcare costs associated with such injuries, and the more indirect costs of reduced productivity, efficiency, and staff morale. The Introduction specifies five "ergonomic stressors" in the nursing home workplace - force, repetition, awkward postures, vibration, and contact stress - and identifies several commonly resulting injuries (muscle strain, ligament tears, pinched nerves, etc.).

Program Element I: Management Practices

This is the first substantive section of the Guidelines. It is divided into four sub-elements:

Management Commitment and Employee Participation. Among other things, management commitment involves assigning responsibilities for program elements, including identifying a program administrator, and allocating adequate resources and conducting "frequent" follow-up. Employee participation includes frequent consultation with employees regarding identification of MSD stressors and solicitation of their suggestions for correcting these problems.

Training. An effective ergonomic training plan requires, at a minimum, instruction on: (1) how to recognize MSD signs and symptoms; (2) how to identify jobs or tasks subject to ergonomic stressors; and (3) how to control ergonomic stressors. The degree of detail within these categories, however, will vary depending upon the degree of program responsibility for the managers or employees to be trained and the nature of the ergonomic stressors associated with the particular job duties. The Guidelines include a "matrix" of nine topics and six categories of employees that identifies topics which should be covered with each category of employees.

MSD Management. Effective management of MSD injuries involves four elements: (1) procedures facilitating prompt reporting of MSD signs and symptoms; (2) provisions that allow a trained and licensed health care professional (HCP) to promptly assess, treat, and follow-up reported MSD injuries; (3) clear procedures for returning injured employees to work; and (4) recordkeeping and documentation procedures that facilitate effective program evaluation. The Guidelines require employers (and employees) to follow work restrictions designated by the evaluating HCP.

Program Evaluation. Effective program evaluation requires the implementation of procedures designed to "determine whether the management system .... adequately addresses ergonomic stressors." The Guidelines suggest evaluation should include review and analysis of what it calls "leading" and "trailing" indicators. Leading indicators measure the employer's success in following its guidelines, including the number and quality of worksite analyses, frequency of ergonomic interventions, adherence to reporting mechanisms, among others. Trailing indicators measure empirical results and include before-and-after comparison of OSHA recordable injury rates, total incidence rates, the lost-time incidence rate, and the workers' compensation experience modifier rate. Program evaluation should be conducted, at a minimum, once every three years.

Program Element II: Worksite Analysis

Worksite analysis represents the nuts and bolts methodologies utilized to evaluate job functions for ergonomic stressors. The Guidelines call this element "the process of identifying where and how job requirements exceed the physical capabilities of workers." To determine whether employees are exposed to the risk of pain or injury, effective methods of analysis must evaluate the duration, frequency, and magnitude of exposures to the specific ergonomic stressors of the nursing home work environment.

The Guidelines divide the analysis process into two broad categories - jobs involving resident handling tasks and those that do not. As resident handling is the source of most nursing home employee MSD injuries, the Guidelines focus most thoroughly upon that category. It includes a set of task-based "algorithms" for assessing relevant criteria and variables associated with resident-handling tasks (moving from bed to stretcher, from bed to examination table, from chair to toilet, repositioning within bed or chair, etc.) and recommending alternative procedures, controls, and lifting aids, as appropriate for the circumstances. Analysis methods for other tasks - such as cleaning, waste collection, pushing carts, lifting and carrying supplies, etc. - are much more generic, and can be summarized in the last sentence of the relevant section of the Guidelines: "Once information is obtained and problems identified, suitable improvements can be implemented."

Program Element III: Control Methods

Control methods are the range of choices for changes in equipment, work practices, and work methods to reduce injury levels associated with identified ergonomic hazards associated with particular tasks. The Guidelines state that, while worksite analysis will provide guidance for appropriate corrective alternatives, the actual corrections implemented in a particular situation will vary according to several factors, including the number of residents, state of existing equipment, staffing issues, and other projects and obligations competing for the employer's resources.

The Guidelines include 49 specific, illustrated control methods for tasks ranging from basic resident lifting to mopping the floors. Each control consists of five components: "Activity" - which identifies the general category of work or task addressed by the control; "Description" - which identifies and explains the work methods and/or equipment to be utilized; "When To Use" - which describes appropriate conditions for the particular control; "Points to Remember" - which documents significant considerations, such as safe and effective use; and "References" - which identifies the source of information used to develop the control. This section also contains considerations affecting the choice of equipment suppliers.

The Bottom Line

Despite the mandatory language used in the Guidelines, the draft begins with a conspicuous "Disclaimer" emphasizing that the Guidelines are intended to be "advisory" and "informational." According to the Disclaimer, and consistent with the agency's stated intentions with respect to the issuance of voluntary guidelines, the failure to implement any particular "advice" contained in the Guidelines will not be considered a violation of the OSH Act. Nevertheless, the Disclaimer also is careful to point out the employer's "general duty to provide ... employees with a workplace free from recognized hazards likely to cause death or serious physical harm."

Therefore, while nursing home employers will not be required to correct or prevent MSD hazards in the manner suggested by the final Guidelines, the hazards which the Guidelines identify still must be effectively prevented or corrected. Compliance with the final Guidelines may afford employers a defense to an ergonomics citation issued by OSHA under the "general duty clause" of the OSH Act, which mandates that employers provide their employees with employment and a place of employment free from serious recognized hazards. Therefore, employers who choose not to follow the final Guidelines should be prepared to demonstrate to OSHA that they have implemented an effective alternative approach.

©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.

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