Ergonomics regulations should get employer's attention

During the last few years, the Occupational Safety and Health Administration has attempted to introduce regulations for certain work-related injuries such as back injuries and carpal tunnel syndrome. However, Congress has successfully blocked OSHA's rulemaking process to introduce such measures.

Yet, the proposed regulations were publicly announced Nov. 22, after the U.S. Senate failed to obtain a vote to again preclude their formal introduction by the Department of Labor.

The proposed regulations address ergonomics in the workplace, such as repetitive motions, which may cause musculoskeletal disorders (MSDs). OSHA claims that MSDs cause one-third of all occupational injuries and cost employers billions of dollars each year. Employer groups complain that the proposed regulations, which are approximately 1,000 pages long, would be too costly to employers, are too comprehensive, and lack the consensus of the scientific and medical communities on the causes of MSDs to justify such a large-scale rule. In particular, these groups feel that OSHA should wait until a congressionally funded ergonomic study by the National Academy of Science is completed next year.

Why all the fuss and concern? Primarily, employer groups argue that OSHA's measures are too burdensome. These regulations would require employers to implement certain ergonomics programs which include reporting requirements, job-hazard analysis, and training, as well as the development of ergonomic policies and procedures for MSD injuries.

These requirements would apply to employers of all sizes. The only industries exempt, at this time, are agriculture, construction and maritime.

The proposed regulations are directed to three generally described job classifications:

Manufacturing jobs such as machine operators or factory line workers

Manual handling jobs such as beverage deliverers or baggage handlers

A catchall category described as "any other job in which an employee reports an MSD caused by a job activity that comprises a significant part of that employer's regular job duties."

Of particular concern is the last category, as it could result in these regulations applying to technical and clerical workers as well.

For manufacturing jobs and manual handling jobs, OSHA requires that employers automatically participate in its basic program. This program would require employers to establish an MSD reporting system and to disseminate ergonomic information. However, a single report by a worker in any of the job classifications of a work-related MSD may cause the employer to implement the full program.

Under this program, employers would be required to develop an MSD management plan, additional training programs, implementation of engineering or administrative controls to eliminate or reduce MSD hazards, and guidelines to evaluate and monitor the MSD program at least once every three years.

There is also a quick-fix program which would prevent implementation of a full ergonomics program if, within 90 days of the identification of the MSD, the employer places controls to solve the problem and verifies that the solution worked over an additional 30-day period. However, records must be kept regarding the quick fix, and hazard information must be provided to the employees in the program within 90 days.

The employer must establish the full program if the quick fix does not eliminate the MSD hazard within 120 days or there is a reoccurrence of the hazard within three years.

The regulations also provide additional job-protected leave and compensation guarantees to injured employees. Essentially, employers are required to pay for medical expenses and to provide full pay and benefits to employees who are on light duty; workers unable to work would receive 90 percent of pay and 100 percent of benefits. These benefits could last up to six months.

Employers should be wary of the overlap of these benefits which will complicate the job-protected leave issues created by the Family Medical Leave Act and the Americans with Disabilities Act.

Although written comment to these proposed regulations ended on Feb. 1, public hearings by OSHA will commence Feb. 22. However, OSHA expects the final regulations will be completed by the end of the year.

(Bob Lawson Jr. practices labor and employment law representing management with the law firm of Blackwell Sanders Peper Martin LLP in Springfield.)