Employer Bulletin No. 328
November 2000

OSHA'S New Ergonomics Program Standard

OSHA's new, but long-debated standard was published November 14, 2000, and goes into effect January 16, 2001.  A Summary of the Standard and a Compliance Schedule are provided on pages 2 and 3 of this Bulletin.  At the outset, it is important to note that the future of this controversial standard is very much in doubt.  It will be subject to challenge both in the courts as well as in the U.S. Congress.  We believe that it is likely that these challenges will result in delays in the implementation of the standard, as well as in changes to some of its provisions.

We are still in the process of evaluating the entire standard, and clients who may be interested in that detailed analysis should contact us.  In the interim, however, clients should be aware that even if the application of the standard is not delayed by Congress, the courts or the Administration, there is a long lead time for most of the requirements of the standard.

As a  result, we recommend that our clients first concentrate on three issues:

After a client has developed information on these three areas, it will be in a position to fully assess how the new standard will apply and what changes may have to be made to its program or, in the alternative, whether a program must be developed.  This should also permit the client to assess the potential financial impact of the standard.  Constangy attorneys in the OSHA section are available to assist in making this determination or in the development of the information in each of the three areas.  We have very extensive experience with respect to recordkeeping and ergonomics, developed over the past ten years.  If we can be of assistance, please contact your Constangy attorney or any of us:  Melisa J. Anderson, William K. Principe, David L. Smith, Patrick R. Tyson, or Neil H. Wasser
 at (404) 525-8622.


 OSHA Ergonomics Program Standard

SUMMARY AND STATUS

The new Standard applies to all general industry employers and any general industry jobs, not just "manufacturing production" and "manual handling" jobs as in the proposed rule.  The requirements are to be phased in over time, with the earliest deadline for employer action being October 14, 2001.  By that date, employers must have provided their employees certain basic information about musculoskeletal disorders (MSDs), the signs and symptoms of MSDs, how to report MSDs in their particular workplace, and the requirements of the new standard.  After that date, employers must begin receiving and responding to reports of MSDs and to signs and symptoms of MSDs. 

If, after October 14, 2001, an employee reports a MSD sign or symptom ("I hurt"), employers must first determine if the case is OSHA recordable or if the employee's MSD signs or symptoms persist for 7 consecutive days after reporting them to the employer.  If there has been such a MSD incident reported, the employer must determine if the employee's job exposes the employee to risk factors sufficient to meet the "Action Trigger."  A job meets the "Action Trigger" if the job "routinely involves" exposure to any of the risk factors described in the Standard.  For example, a job that "routinely involves" using an input device, such as a keyboard or mouse, in a steady manner for 4 hours total in a workday meets one of the "Action Triggers," as does kneeling or squatting more than 2 hours total per day.  If the job meets the "Action Trigger," then the employer must develop and implement an Ergonomics Program consisting of six required elements - Management Leadership, Employee Participation, MSD Management, Job Hazard Analysis, Hazard Reduction and Control Measures, and Training.  Although there is a "grandfather" clause in the new Standard that would allow employers with existing ergonomics programs to continue to implement those programs without complying with the new Standard, as a practical matter employers must comply with the Standard as long as they continue to have jobs reasonably likely to cause MSDs.

Among other significant changes from the proposed rule is the reduction from 6 months to 90 days for the maximum period of time during which employers must provide employees with pay and benefits while recuperating from a MSD.  Moreover, unlike in the proposed rule, the final Standard gives an employee the right to obtain a second opinion, at no cost, from his or her own health care provider and provides for a third medical opinion to resolve differences. The controversial requirement that full benefits be continued during that period and that pay be continued at 100% for restricted duty and 90% for time off is the same as in last year's proposal.

While labor unions are defending the new Standard, both the U.S. Chamber of Commerce and the National Association of Manufacturers (NAM) have already filed suit to block it, alleging that the Standard is unconstitutional, unscientific and unworkable.  The Chamber was joined in its lawsuit by the Society for Human Resource Management (SHRM), the Labor Policy Association (LPA), and the National Beer Wholesalers Association.  Moreover, the Standard will be subject to Congressional review to determine its compliance with the small business protections contained in the Small Business Regulatory Enforcement Fairness Act (SBREFA).  Under  SBREFA, Congress could legislatively override the standard, although such an override has never been attempted in the short history of the law.  If Governor Bush becomes President, there is also the possibility that OSHA itself may administratively stay all or parts of the Standard.  The outcome of the election thus could be key.

The text of the final standard can be obtained on OSHA's website (www.osha.gov), along with various background and compliance assistance materials.


Compliance Schedule for New Ergonomics Program Standard

The first compliance requirements are due on October 14, 2001, when you have to post Appendices A and B of the Standard.  These Appendices advise employees about the importance of reporting MSDs, set up a reporting procedure, and summarize the provisions of the Standard.

Beginning October 14, 2001, if an employee reports an MSD sign or symptom, you have to:

• Determine if it is OSHA-recordable within six (6) work days;
• If so, determine if it meets the Action Trigger within seven (7) calendar days of determining OSHA recordability;
• If it meets the Action Trigger, you have to implement an Ergonomics Program.
• The Program would be developed over a period of time.
• If an MSD were reported on October 14, then:
• MSD Management within 7 days after determination of Action Trigger
• Management leadership/employee participation within 30 calendar days of Action Trigger
• Train leaders of Ergonomics Program within 45 calendar days of Action Trigger
• Train current employees and supervisors within 90 calendar days of Action Trigger
• Job Hazard Analysis initiated within 60 calendar days of Action Trigger
• Initial Controls implemented within 90 calendar days of Action Trigger
• Implement Permanent Controls by January 16, 2005
• Program Evaluation within three years of Action Trigger