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Now Is the Time to Prepare for OSHA's Sweeping New Ergonomic Standard

March 14, 2001
You may think that because yourbusiness is office-based - and word processors are your company's most commonmachinery - your interaction with the Occupational Safety and HealthAdministration is limited. That's no longer true.

   InNovember 2000, OSHA rolled out a sweeping ergonomics standard, and you have tobe ready to roll with it by October 2001. Donald Savelson, a partner and OSHA expertin the New York City law office of Proskauer Rose LLP, details the new standard,its deadlines - and what it all means to HR.

When and why was the new standardenacted?
The OSHA ergonomics standard wasestablished on November 15, 2000. Before that, OSHA used a general provisionthat didn't specify ergonomics - it was called a general duty clause:"Employers are required to provide a place of employment that is freefrom recognized harm." OSHA had to litigate cases under that generalstandard, which got confusing. So they decided to make it specific foreveryone with this new standard. Businesses have to be ready to comply byOctober 15 of this year.
 
This has extremely wide impact,correct?
It's the broadest-reaching standardnow. It affects all employers regardless of size, except in four industries:construction, maritime, agriculture, and railroads. [It also does not affecthome offices.]
 
And no one's particularlysatisfied.
There are 18 different lawsuits -from both business and labor groups - challenging the standard. The suitsare all now consolidated in the District of Columbia court, which will hearit. The lawsuits filed by organized labor claim that none of the fourindustries should be exempt. They also claim that there are weak spotsin the final standard, which theywant corrected - that there should be stiffer training required and lesstime given for employers to come into compliance. As for businesscoalitions, they're trying to get the ergonomics standard totallyinvalidated.
 
How should companies readythemselves for October 15 compliance to the ergonomics standard?
First, they're going to have to geta copy of the standard from OSHA and distribute this information. Itexplains the definition of ergonomics, the kinds of injuries and illnessescovered, and what's required if an employee reports an illness to theemployer.
 
And what happens after October15?
After October 15, employers have torespond to reports of musculoskeletal disorders, or MSDs - these includethings like tendinitis, back injuries, carpal tunnel syndrome, andwork-related illnesses from typing eight hours a day or running a checkoutcounter. If an employee reports an MSD, the employer then verifies that itqualifies for coverage. To qualify, the injury or illness must be determinedto be work-related, and require days off, work restriction, or medicaltreatment.
 
If the condition qualifies, whatdoes the employer do?
The employer has a choice at thatpoint. If there's only been one employee incident in a specific type of joband two employee incidents in the entire company in the last 18 months, HRcan implement a "quick fix." This means you may not have to putinto effect an entire ergonomics program. If you're dealing with more thanone person in a particular job or more than two people establishment-wide inthe last 18 months, then you have to put in a full, comprehensive OSHAergonomics program.
 
What does a comprehensiveergonomics program cover?
It requires, among other things,ergonomics management of the particular job [visit www.osha.govfor more details]. It also requires work-restriction protection forindividuals - meaning if someone can't work in their job because of an MSDincident, they're going to be safeguarded for 90 days in their pay andbenefits. If they transfer to another job, they transfer with thiswork-restriction protection as well.
 
What if the illness puts anemployee out of a job permanently - say a secretary is diagnosed with carpaltunnel syndrome and can't type anymore?
Employers should be aware that someillnesses may trigger issues under the Americans with Disabilities Act. Butunder OSHA, you're not required to find this person another job. It's notlike an ADA situation - although the ADA may be triggered, and the employeecould need an accommodation. But under OSHA you're not required to place theperson in a new job.
 
So what's actually safeguardedfor employees during these 90 days after they've been diagnosed with aqualifying MSD?
Say their health-care providerdetermines that some work restrictions are necessary: they can't lift asmuch, or they can't do the job as long. The employer has to continue to paythem 100 percent of their earnings and maintain all their employment rightsand benefits up to 90 calendar days. That work restriction is, of course,the biggest economic burden. A lot of employers feel it shouldn't be inthere.
 
What about employers who alreadyhad an ergonomics program?
If you had a program in existencebefore November 2000, which was when the standard was published, then you'dpossibly be allowed to grandfather it by doing a review of it and setting atimetable to make any necessary changes - but that had to be done by January16, 2001.
 
And if you missed that deadline?
Wait and see. It may not be too lateto grandfather your program with this new administration. There was arequest already made of the Clinton administration to extend the date; itwas denied in late December. But a new administration may reopen this. Thatmeans you're going to have to look at your program closely to see if it canmeet the grandfathering. The advantage of that is you may not have to putinto effect the entire OSHA ergonomics program. You may be able to useyours.
 
And in the meantime, what shouldemployers do?
Look at your injury, illness, anddisability records now. You're going to have to be up and running on October15, which means you can't start getting prepared on October 14. Because whenyou get that first report of an MSD, you only have seven days after that todetermine if you need to take further action. Plus you may want to takeaction before October 15 if you find a rash of ergonomic hazards.
 
The National Academy of Sciences,through its National Research Council and Institute of Medicine, recentlyreported that there are over 1 million ergonomic work-relatedrepetitive-stress injuries a year, accounting for an estimated $50 billion ayear in compensation costs, lost wages, and lost productivity. So it maymake good business sense to get moving before the October deadline.