Purpose and costs to employers. The Occupational
Safety and Health Administration (OSHA) has issued its long-awaited final rule for
an Ergonomics Program Standard, 29 CFR 1910.900. This new standard contains stringent
requirements for most nonconstruction employers to identify and abate musculoskeletal
disorders (MSDs). The costs to implement the ergonomics requirements may be significant
and, in some cases, may result in severe financial hardship. In the final rule are
some surprising components that were not contained in the proposed rule. For instance,
full implementation of the required program is now activated by defined "action
triggers" for at least one of five specified MSD "risk factors." Also,
the final rule contains substantially expanded provisions addressing an employee's
right to dispute the findings of the initially consulted health care professional
(HCP). Employers now face the possibility - and expense - of as many as three separate
HCP evaluations regarding an alleged MSD.
Potential for saddling employers with responsibility for MSDs not caused by the
job. One of the chief criticisms of the new standard is its potential for unfairly
saddling employers with responsibility for MSDs that are not caused by the job. Although
MSDs are defined as "work-related" disorders, the standard does not necessarily
exclude the potential for an MSD to become " work-related" where circumstances
outside the employer's control, such as personal activities like tennis or weight
lifting, or personal attributes, such as obesity, are contributing factors.
Effective date. The new standard will become effective 60 days after its publication
date (November 14, 2000). Employers should start assessing now what they must do
to be in full compliance as of that date. The following summary prepared by the OSHA
practice groupo of Jackson Lewis will assist employers in understanding their new
Scope of Standard
Which jobs are covered? The standard applies to all
general industry jobs. Employment covered by OSHA's standards for the construction,
maritime, and agriculture industries, including directly related office management
and support services, are expressly excluded, as are railroad operations. Although
the final standard has a broader application, the requirement for full implementation
of the entire ergonomics program now depends entirely upon the actual report of,
or of the signs and symptoms of, an MSD. Until such an occurrence, the final rule
only requires employers to provide all employees with initial, basic information
addressing recognition and reporting of MSDs.
What is a Musculoskeletal Disorder? The standard defines MSDs as a disorder
of the muscles, nerves, tendons, ligamenst, joints, cartilage, blood vessels, or
spinal discs affecting the neck, shoulder, elbow, forearm, wrist, hand, abdomen (hernia
only), back, knee, ankle, and foot. Excluded are injuries arising from slips, trips,
falls, motor vehicle accidents, or blunt trauma.
Examples of MSDs identified by OSHA include muscle strains and tears, ligament sprains,
joint and tendon inflammation, pinched nerves, and spinal disc degeneration. The
final rule also states that MSD injuries may be manifested by medical diagnoses of
low back pain, tension neck syndrome, carpal tunnel syndrome, rotator cuff syndrome,
DeQuervain's syndrome, trigger finger, tarsal tunnel syndrome, sciatica, epicondylitis,
tendinitis, Raynaud's phenomenon, hand-arm vibration syndrome, carpet layer's knee,
and herniated spinal disc.
MSDs most often develop as a result of repeated exposure to MSD "risk factors,"
however, exposure to only one MSD risk factor may be enough to cause an MSD. The
standard identifies five such risk factors, which are defined in terms of "action
triggers" based upon duration of exposure to specified actions or conditions.
These risk factors are:
- Awkward Postures
- Contact stress
What is the first action employers must take? The
standard imposes one initial responsibility on all covered employers: to supply all
employees with basic MSD information. This information must educate employees regarding
the common MSDs and their signs and symptoms, as well as the kinds of jobs and activities
associated with MSD hazards. Employees must receive information on how to report
MSDs, with an emphasis on the importance of prompt reporting and the consequences
of delayed reporting. Employees also must receive a summary of the OSHA standard.
Current employees must receive this initial training within 11 months after the standard's
publication date, and new hires within 14 days of hiring. This information also must
be conspicuously posted.
When must full implementation of the entire ergonomics program occur? The
final rule requires employers to conduct a prompt investigation upon receiving any
employee report of signs and symptoms of an MSD. If the report involves an event
or condition that qualifies as an "MSD incident," as defined by the standard,
and if any of the five MSD risk factors are manifested in the associated job function
in excess of a specified "action trigger" threshold, the employer must
then implement the complete ergonomics program. In some cases, employers may be able
to avoid full implementation if they qualify for the standard's "Quick Fix"
What is an "action trigger"? The final rule contains a "Basic
Screening Tool" that establishes defined thresholds, or "action triggers,"
for each of five primary MSD risk factors. If the job involves any of the activities
specified in the Basic Screening Tool in excess of the maximum duration established
for the activity, employers must proceed with a detailed evaluation -- a "job
hazard analysis." The results of this evaluation determine whether or not there
is a "problem job," i.e., a job that poses a potential MSD hazard.
Regardless of the results of the job hazard analysis, the employer will have to fully
implement his ergonomics program (absent availability of the "Quick Fix"
option). The job hazard analysis only determines the scope of implementation. If
there is a problem job, all employees in that job must be included in the program.
Otherwise, the employer may limit implementation to the employee involved in the
What are the primary elements of a complete ergonomics program? Listed below
are the primary elements of a complete ergonomics program:
- Management Leadership;
- Employee Participation;
- MSD Management;
- Job Hazard Analysis;
- Hazard Reduction and Control
The "Quick Fix" option may be available
as an alternative to implementation of the full program under certain conditions.
If the employer is eligible to utilize this option, the employer must take steps
to eliminate or reduce the identified MSD hazard within 90 days according to specific
criteria set out in the standard.
This program element measures the employer's dedication
to an effective program. To meet this obligation the employer must:
- assign and communicate the responsibilities for setting
up and managing the program;
- ensure each responsible person has the necessary authority,
resources, and information to meet his assigned responsibilities;
- ensure company practices encourage, and do not discourage,
prompt reporting of MSDs and employee participation in the program;
- periodically communicate with employees about the program
and any employee MSD concerns.
To comply with this program element, employers must establish
mechanisms for employee reporting of MSDs, respond promptly to employee reports,
and involve employees in the development, implementation, and evaluation of the program.
(Such participation, however, must be consistent with limitations on the use of labor
management committees imposed by the National Labor Relations Act, according to the
Preamble to the proposed rule). Employees must also receive a summary of the requirements
of the standard and have ready access to the standard, the employer's program, and
general MSD information.
The term "MSD management" refers to the employer's
collective obligations to employees who have sustained a confirmed MSD injury. In
addition to appropriate temporary work restrictions, this obligation includes ensuring
employees receive prompt and effective medical evaluation and follow-up of their
MSD and recovery by a health care professional (HCP), all at no cost to the employee.
The final rule provides an affected employee with the right to obtain a second and
even a third HCP opinion, if necessary, regarding his or her condition, all at the
employer's expense. This last provision was entirely absent from the proposed rule.
MSD management also includes the requirement for "work restriction protection"
(WRP) for up to 90 days. Basically, WRP means maintaining 100% of wages for employees
assigned to light duty, or 90% of wages where total removal from the work place occurs.
WRP also guarantees no reduction in employment rights or benefits, including seniority,
insurance programs, or retirement and savings plans.
Job Hazard Analysis
This element is the core of the ergonomics program. If an
action trigger is activated, job hazard analysis is the step that determines whether
or not the employer has a "problem job" on his hands. This determination
is not a simple matter. OSHA has incorporated by reference several professional treatises,
studies, and papers that address detailed methods for ergonomic analysis of work
functions. These are referred to as "hazard identification tools." Appendix
D-1 to the standard provides some information about these incorporated "tools,"
but employers will have to obtain their own copies to determine how to use these
resources in a job hazard analysis. (Appendix D-2 is a self-contained "occupation-specific"
hazard identification tool respecting VDT workstations.) Employers also have the
option of retaining the services of trained ergonomics professionals, or using any
other "reasonable" method that is appropriate to the job and relevant to
the specific risk factors.
Hazard Reduction and Control
This element refers to the employer's obligation to eliminate
or materially reduce the identified hazards to the extent feasible, using engineering,
administrative and/or work practice controls, and as a last resort, personal protective
equipment (excluding back belts/braces and waist braces/splints). In other words,
this element constitutes the acceptable goals of an ergonomics program.
In the standard, the word "control" is a term of art that effectively means
complete elimination of a hazard. Absent complete control, identified hazards must
be reduced to acceptable levels as defined by the hazard identification tools in
Appendix D. Accomplishing either of these goals eventually may permit the employer
to reduce the scope of its ergonomics program to the maintenance of controls and
related training necessary to prevent a recurrence of the MSD. If neither preferred
goal is achievable, the employer must reduce the hazard to the extent feasible and
reassess the situation every three years to determine whether new solutions may be
As discussed above, all employees must receive basic MSD
training. However, more detailed and specific training is required for employees
in jobs where the action trigger has been activated, for their supervisors and team
leaders, and for the employees involved in the set up and continuing management of
the program. This focused training must include a re-emphasis of the MSD basic training,
supplemented with information about specific MSD hazards and risk factors present
in the relevant job. The training must also address the employer's ergonomics program
and the roles the respective trainees play in the program. Finally, the training
must include details about the employer's plan and timetable for correction of the
hazards, as well as instruction regarding the employee's role in evaluating the effectiveness
of the chosen controls.
Employers have a basic obligation to evaluate the ergonomics
program periodically, i.e., at least every three years, to ensure it is effective
and in compliance with the standard. This means:
- Consulting with employees in the program to assess their
views on the program's effectiveness and to identify any deficiencies;
- Evaluating the elements of the program to be sure they
are functioning properly; and
- Ensuring that the program is achieving positive results,
i.e., eliminating or materially reducing MSD hazards.
Employers are required to keep records if they have 11 or
more employees, including part-time or temporary employees. Records that must be
kept by the employer are:
- Employee reports and employer responses;
- Job hazard analyses;
- Hazard control records;
- Quick Fix control records;
- Ergonomics program evaluations; and
- MSD management records (work restrictions, time off, HCP
These records must be made available to employees, their
designated representatives, and OSHA representatives upon appropriate request. In
most cases, records must be kept for three years.
Sanctions and Penalties
As with all alleged violations of safety and health standards,
OSHA can issue proposed penalties as part of the citation process. Penalties can
range from zero for "other than serious" violations, to $7,000 per violation
for "serious" violations, and up to $70,000 per violation for willful or
It is unclear what impact this new standard will have on other federal or state laws,
such as the Americans With Disabilities Act, the Family and Medical Leave Act, or
state worker's compensation statutes. It is also unknown whether employees can claim
retaliation under Section 11(c) of the Act for denial of work removal protection
in violation of the standard.
For a copy of Jackson Lewis' comprehensive analysis of OSHA's final rule on ergonomics
or for other information on this or other workplace health and safety issues, please
contact Jackson Lewis' OSHA practice group leaders: