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Keller and Heckman LLP

MEMORANDUM

TO: National Coalition on Ergonomics

FROM: David G. Sarvadi
Lawrence P. Halprin

DATE: December 8, 1999

RE: Proposed OSHA Ergonomics Standard

I. Summary of Preamble

The extremely lengthy Preamble to the proposed ergonomics standard is essentially OSHA's attempt to justify its own proposed standard. The Preamble discusses, from OSHA's perspective, among other things, the data and events leading to the proposed standard and the Agency's legal authority for proposing the standard. The Preamble also contains a summary of the Preliminary Economic and Initial Regulatory Flexibility Analysis, a summary of OSHA's responses to the findings and recommendations of the Small Business Regulatory Fairness Enforcement Act Panel and OSHA's rationale for each provision of the proposed standard.

The Preamble relies upon substantially the same scientific studies and injury and illness data that OSHA relied upon in developing its 1995 draft proposed standard, supplemented by the more recent injury and illness reports from the Bureau of Labor Statistics, the 1997 NIOSH study, and the 1998 report from the National Research Council/National Academy of Sciences. Based upon the "best currently available evidence", OSHA concludes that the proposed ergonomics standards are "reasonably necessary and appropriate to provide adequate protection from hazards that are reasonably likely to cause or contribute to work-related musculoskeletal disorders."

The Preamble also discusses how to set up an ergonomics program, the elements of an ergonomics program, how the standard would be applied if an employer already has an ergonomics program in effect, the concept of a "quick fix", how to conduct a job hazard analysis and controlling the identified hazards. The Preamble also describes what OSHA views as the relevant risk factors and their potential interaction, and provides examples of activities that could be ergonomically hazardous to employees performing various functions. Various charts of physical work conditions, alleged risk factors and controls are also provided.

The Preamble discusses the controversial "Work Restriction Protection" provision in detail, including OSHA's justification for including the provision in the proposed standard. It also incorporates "Cost of Compliance" and "Economic Impact" charts into the discussion.

In addition to other comments on the proposal, OSHA specifically requests comments on 45 questions regarding (a) the scope of the proposed rule, (b) the use of a single MSD as a trigger to implement the full program, (c) the "grandfather" clause, (d) the quick fix option, (e) hazard information and reporting, (f) job hazard analysis and control, (g) MSD management, (h) compliance deadlines, (i) the program's approach, and (j) economic impact analysis.

II. Legal Issues

Generally, the legal issues to be addressed include:

1. Whether OSHA has adequately identified the conditions of concern with the term MSD as defined by the draft standard;

1. Whether the current exposure levels to the identified hazards pose a significant risk of harm (injury or illness);

1. Whether the proposed requirements would significantly reduce the risk posed by current exposure levels to the identified hazards;

2. Whether the proposed requirements are technically and economically feasible;

3. Whether the identified hazards are "harmful physical agents" under Section 6(b)(5) of the OSH Act and, if so, whether each of the covered MSDs represents a material impairment of health or functional capacity";

4. Whether the OSH Act permits OSHA to adopt a program standard to identify and control hazards in the absence of the kind of data needed to establish scientifically defensible permissible exposure limits;

5. Whether the proposed requirements, as well as the triggers and scope of application, represent the most cost-effective approach for achieving the reduction in risk allegedly posed by the identified hazards;

6. Whether the "Work Restriction Protection" provisions exceed OSHA's authority under the OSH Act;

7. Whether the language and terminology of the standard are so ambiguous as to fail to provide employers with adequate notice as to what is required; and

8. Whether the time permitted for public participation in this rule making is inadequate to allow for meaningful discussion and examination of the issues raised by this proposal. III. Section by Section Summary of the Draft Ergonomics Standard

¡1910.901- ¡1910.904 Applicability

The agency's use of "plain English" can easily mislead the reader into overlooking the fact that the regulatory text is laced with highly technical, complex and poorly understood terminology. As a practical matter, it appears that the proposed standard applies to each general industry employer with: 1) manufacturing operations, 2) manual handling operations, or 3) an employee who reports an OSHA-recordable MSD.

¡1910.905 - ¡1910.910 Employer Obligations

The elements of a complete ergonomics program are: 1) management leadership and employee participation; 2) hazard information and reporting; 3) job hazard analysis and control; 4) training; 5) MSD (medical) management; and 6) program evaluation. Employers with manufacturing and manual handling jobs will be required to implement the first two program elements even if no MSD is reported. Except when a "Quick Fix" is implemented, as described below, a full program is required under the following circumstances: 1) whenever an employee in a manufacturing or manual handling job reports an OSHA-recordable MSD or work-related MSD symptom that persists for 7 consecutive days; or 2) an employee in any other general industry job reports an OSHA-recordable MSD. Furthermore, at a minimum, some investigation will be required whenever any condition resembling an MSD or a persistent MSD symptom is reported, if only to determine that a triggering event has not occurred.

A limited and fairly meaningless "grandfather clause" provides that an existing ergonomics program will be deemed acceptable if the employer proves that it contained all of the 6 core elements and was fully implemented when the standard went into effect.

The proposed standard would permit an employer to implement a Quick Fix solution without setting up a full ergonomics program if the Quick Fix can be implemented within 90 days and determined to be effective in eliminating the hazard within the following 30 days. Under those circumstances, it appears that the additional program elements required of the employer would be Hazard Information and Reporting, Job Hazard Analysis and Control, MSD Management and creating and maintaining a record of the Quick Fix controls. A full program would be required if you determine that the "Quick Fix" did not eliminate the ergonomic hazard within 120 days or another MSD is caused by the same activity and conditions within 36 months.

¡1910.911 - ¡1910.913 Management Leadership and Employee Participation

Management leadership involves the process of establishing and maintaining an ergonomics program. To satisfy this element, an ergonomics program must (1) assign responsibility for setting up and managing the program; (2) delegate the necessary authority to administer the program; (3) identify a person to be the ergonomics contact; (4) communicate with employees about the program; (5) provide adequate resources for the program to be effective; and (6) avoid policies or practices that would discourage employee participation or reporting of injuries (e.g., award programs based on low or reduced injury rates, drug testing every employee who reports an injury, routinely withholding overtime work from anyone who reports an MSD sign or symptom).(1)

Employee participation includes the participation of organized labor in union shops. This section requires that employees be able to report ergonomics injuries or suspected injuries and to participate in ergonomic solutions and training.

¡1910.914 - ¡1910.916 Hazard Information and Reporting

An employer must establish a reporting system and provide information on the following topics to employees: common ergonomic hazards; signs and symptoms of ergonomic injuries; the importance of early reporting; how to report signs and symptoms of ergonomic injuries; and a summary of the requirements of the standard (this last item can be accomplished by posting a copy of the standard in the workplace).

¡1910.917 - ¡1910.922 Job Analysis and Control

If an employee reports an OSHA-recordable MSD or (in manufacturing or manual handling jobs) an MSD symptom that persists for 7 days, the employer must perform a job hazard analysis covering the "problem job". This means analyzing 1) all employees doing the same job and 2) all employees in any other job at that site that "involves the same work activities and conditions" unless the employer can prove the problem is limited to the injured employee due to some factor unique to that employee. The vague definition of "problem job" is written so broadly as to cover any job which OSHA, with the benefit of 20-20 hindsight and the aid of a video camera deems similar to the job associated with the reported MSD, based on the type of risk factors and exposure levels involved. As helpful guidance on this point, OSHA noted that "VDT users may not be considered to be in the same job where one user does inputting for more than 4 hours a day at a modular workstation and the other uses the VDT on the desk only to read and send e-mail messages." This is the type of requirement that is likely to force many employers to hire expensive outside consultants to determine what activities are encompassed within the definition of "problem job" and to appropriately document that determination, possibly with the assistance of legal counsel.

Once a problem job has been identified, employers must eliminate or "materially reduce" the identified MSD hazards through the use of "feasible" engineering, work practice and/or administrative controls on an interim (where appropriate) and long term basis. Because there are no scientifically validated threshhold data to objectively determine what constitutes a material reduction, OSHA defines that effort as reducing the frequency, duration or magnitude of the exposure to one or more risk factors in a way which is reasonably expected to significantly reduce the likelihood of an MSD. In other words, the employer must make a defensible guess, and again may find it necessary to retain outside consultants for assistance.

OSHA acknowledges that in some cases the remedy might be as limited as short-term medical removal, followed by recovery and a muscle conditioning program. The use of personal protective equipment would be allowed only as an interim control or where it is the only feasible measure (e.g., warm clothing when it is necessary to work in a cold environment?) and would have to be paid for by the employer.

OSHA provides limited practical guidance on what constitutes a "material reduction" in the hazard. Simply reducing a repetitive lift from 100 pounds to 90 pounds would not qualify; As a general proposition, reducing a repetitive lift from 50 to 25 pounds without increasing the frequency of the lift is likely to be deemed a material reduction in risk. Unlike the prior draft, the proposed standard does effectively provide for an incremental improvement process. Another occurrence of an MSD in a previously identified problem job would not be a violation of the standard as long as the previously attempted incremental fix was reasonably anticipated to significantly reduce the likelihood of another MSD. Where it is determined that there are no feasible control measures for a particular hazard, this section requires the employer to conduct an on-going review of the state of the art and to implement any additional control measures that subsequently become feasible.

Unlike any other OSHA standard, this standard would appear to determine feasibility on a site-by-site basis or an employer-by-employer basis rather than by identifying the required control measures and determining that they are feasible for each industrial segment.

¡1910.923-928 Training

Employees exposed to ergonomic hazards, their supervisors and persons involved in the establishment and maintenance of an employer's ergonomics program must be trained on the following topics: ergonomic hazards; the employer's ergonomics program; and control measures that have been implemented as a part of the ergonomics program. Training must be provided by the employer initially, whenever warranted by a change in conditions, and at least every 3 years..

¡1910.929-935 Management of Ergonomic Injuries

Employers would be required to provide temporary work restrictions for employees reporting an ergonomic injury. This section further requires that, where necessary, employees be provided access to a health care professional for evaluation, management, and "follow-up" treatment. The health care professional must be given access to information necessary for the management of the ergonomic injury and the employer must obtain a written opinion from the health care professional which must be provided to the employee.

Employers would be required to provide injured employees with "work restriction protection" until: 1) the employee is able to return to the job; 2) the ergonomic hazard has been eliminated or materially reduced and no longer poses a hazard to the employee; or 3) 6 months have passed. The term "work restriction protection" means maintaining 1)100% of after-tax compensation and 100% of benefits for employees working at the site in a limited duty job, and 2) 90% of after-tax compensation and 100% of benefits for employees who are out for what might be described as temporary disability leave. The employer's obligation is generally offset by amounts received from workers' compensation, insurance programs or an interim job with another employer.

¡1910.936 - ¡1910.938 Program Evaluation

Employers would be required to evaluate their ergonomics program at least every 3 years. Evaluations must include: consultation with employees; review of program management, and review of the program's effectiveness.

¡1910.939 - ¡1910.940 Recordkeeping

Employers with 10 or more employees, including part-time employees, on any one day in the preceding calender year, must keep records of their ergonomics program, including: employee reports and employer responses (for 3 years); job hazard analysis (for 3 years or until updated); hazard control records (for 3 years or until updated); quick fix control records (for 3 years or until updated); ergonomics program evaluation (for 3 years or until updated); and ergonomic injury management records ( for the duration of the injured employee's employment plus 3 years).

¡1910.941 - ¡1910.944 Implementation Dates

The standard would become effective 60 days after publication of the final rule. With the exception of the requirement for MSD management promptly following a reported MSD, the standard would provide deferred compliance deadlines for the initial program start-up over a 1 to 3 year period. Should an employer become subject to the requirements of this standard after the effective date and initial implementation period, there is a much more abbreviated phase-in period..

How and When Do I Get Out from Under the Standard? NEVER!

The standard would allow for the discontinuance of an ergonomics program with respect to a particular job if the ergonomic hazards associated with that job are eliminated or materially reduced and no MSD (or persistent MSD symptom) is reported on that job for 3 years. Even in the highly unlikely situation where no such MSDs are reported at the entire facility for 3 years, employers with manufacturing or manual handling jobs must still maintain a sizeable portion of their programs.

¡1910.945 Definitions

This section defines some of the terms incorporated into the proposed standard. Some of the more controversial terms are:

1. Musculoskeletal disorders (MSDs) [ergonomic injuries]: This section defines MSDs as "injuries and disorders of the muscles, nerves, tendons, ligaments, joints, cartilage and spinal discs," excluding injuries caused by slips, trips, falls, or other accidents. It also says "exposure to physical work activities and conditions that involve risk factors may cause or contribute to MSDs.

2. Covered MSD: A "Covered MSD" is a reported OSHA-recordable MSD that occurred in a job in which "the physical work activities and conditions are reasonably likely to cause or contribute to the type of MSD reported" and "these activities and conditions are a core element of the job or make up a significant amount of the employee's work time." The phrases "core element" and "significant amount of the employee's work time" are wide open to interpretation and OSHA is likely to read them broadly.

3. Problem job: previously discussed.

4. Manual Handling Jobs: jobs in which employees perform forceful lifting/lowering, pushing/pulling, or carrying. It appears that OSHA is giving this ambiguous term a far broader definition than would generally be anticipated. The term forceful lifting/lowering apparently includes a mechanic who removes a 50 pound motor from its mounting to make a repair. The term forceful pushing/pulling also includes a mechanic forcefully pushing or pulling on a wrench to turn a bolt in connection with a repair. IV. Projected Path for the Coalition

Based upon the current rulemaking deadlines, we would suggest the following activities and timetable for the Coalition and its members: A. During the week of December 13, 1999, the Coalition should organize and conduct initial meetings of the task forces;

B. File notices of intent to appear at hearings well before January 24, 2000;

C. During the week of January 1, 2000, we should conduct a seminar to assist Coalition members in preparing their own comments to the proposed standard;

D. By January 20, 1999, draft comments should be prepared and circulated to Coalition members for review and comment;

E. Final comments and written testimony must be filed by February 1, 2000; and

F. During the following three weeks, members should prepare to testify at the public hearings and coordinate testimony.

1. In response to industry comments that disciplinary action would also have this prohibited effect, OSHA revised its draft Safety and Health Program Rule to exempt disciplinary action from a virtually identical provision. This was accomplished through a provision explicitly subjecting employers to citation for failing to take appropriate disciplinary action against employees at all levels. In other words, while the OSH Act does not allow OSHA to issue citations and penalties to management, the agency will try to do indirectly what it is not permitted to do directly.