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JUST WHEN YOU THOUGHT IT WAS SAFE … OSHA'S NEW ERGONOMICS STANDARD CREATES SERIOUS LIABILITY RISKS
Ergonomics, sometimes referred to as "human engineering," is the science of fitting people to their jobs safely and efficiently. Like so many things that spring from Washington, the pursuit of ergonomic safety and efficiency may be a laudable goal, but translating it into laws and regulations is fraught with unintended consequences. Effective January 16, 2001, the Occupational Safety and Health Administration (OSHA) enacted its "Final Ergonomics Program Standard" and, pardon the metaphor, it can only be described as a major pain in the neck to employers of all sizes.
Companies are not required to take any formal action to comply with the Standard until October 14, 2001. At that time, however, all covered employers must be geared up and ready to deal with the Standard, or face substantial penalties. We strongly recommend that preparations begin now. What follows is an extremely broad and generalized summary of what you will need to consider. The Standard and all its emoluments consume more than 700 regulatory pages. Take this as a synopsis only, and seek competent counsel.
One proviso: various interest groups have already sued in various federal courts seeking a stay on the new Standard. Labor wants it to be more stringent; management wants it to be less stringent. There has also been some talk that the Bush administration may place a hold on the Standard for the time being. Nothing has happened yet, however, and nothing is likely to happen on either of those fronts for some time, if ever.
Does The Ergonomics Program Standard Apply To Me?
For now, all general industry employers are covered, notwithstanding size or number of employees. However, OSHA has recognized that certain industries - construction, maritime, agricultural and railroad - will require a unique approach and are already heavily burdened with their own OSHA standards, and thus the current Standards do not apply to those industries...yet. OSHA estimates that 90% of MSDs occur in general industry, and has opined that this approach will eliminate or control the greatest number of MSD hazards. In addition, small companies (defined as fewer than 11 employees) are covered, but for such companies OSHA has relaxed certain of the record keeping obligations imposed on larger companies.
What's It All About, and What Do I Have To Do Now?
The Standard is designed to search out and prevent employee "musculoskeletal disorders" (MSDs, in OSHA-speak) caused by exposure to risk factors in the work place. An MSD is defined as a physical disorder stemming from one or more employment-related risk factors, such as force, awkward posture, repetition, vibration, and contact stress. MSDs include such problems as muscle and joint tears, sprains and inflammation, pinched nerves, back pain, carpal tunnel syndrome, sciatica, and so on. Injuries arising from slips, trips, falls and accidents are not considered MSDs.
By October 14, all employers covered by the Standard must provide each current and each new employee certain written information about MSDs, the importance of reporting MSDs, how to report MSDs, the kinds of risk factors associated with MSD hazards, a short description of OSHA's Standard, and a lot more.
After I Provide The Information, What Next?
An employer does not have to do anything further unless and until an employee reports what OSHA calls an "MSD incident." An MSD incident is a condition that is work-related, and it must be of sufficient severity to require time off from work, restricted work or medical treatment, or it must involve symptoms that last at least seven consecutive days. An employer may seek the assistance of a health care professional to make these determinations. Remember: if it is not work-related, or if it is not of sufficient severity, it is not an MSD incident.
Since all of this is so new, none of it is fleshed out. Suppose you see your secretary taking a pill, and in small talk you ask her if everything is OK. She tells you that she's taking some pain relievers because "my knee really bothers me when I have to get files out of the bottom drawer." MSD incident? Suppose an employee you use to carry boxes or move equipment asks to leave an hour early to go to a chiropractor for his back pain. MSD incident?
The "Action Trigger"
Once an employer has concluded that an employee has suffered an MSD incident, the employer is then obligated to analyze, in detail, the employee's job to see if it meets the Standard's "Action Trigger" (more OSHA-speak). Basically, this requires a precise analysis of whether the employee's job routinely involves, on one or more days a week, exposure to one or more relevant risk factors as defined in an analytical tool that OSHA refers to as the "Basic Screening Tool" (even more OSHA lingo).
If that analysis reveals what OSHA calls a "problem job," the employer is required to take specific actions. If, however, the job analysis does not satisfy the Action Trigger, then no further action need be taken . . . but as noted below, you better be sure.
It Can Get Expensive
Once a problem job has been identified, OSHA offers basically two alternatives: what it calls a "Quick Fix"; or the development of a complete Ergonomics Program.
An employer can use the Quick Fix option if there has been no more than one prior MSD incident in a particular job, and if there has been no more than two MSD incidents in the place of employment, in the preceding 18 months. The Quick Fix option is, however, a serious misnomer. It requires substantial employer involvement - the company must provide the employee with access to a healthcare professional, it must impose all necessary work restrictions and time off that the employee may need to recover, it must evaluate and follow-up, and lots more. The company is also required to monitor other employees performing the same functions and attempt to develop ways to reduce hazards to acceptable levels, which may require training and other remedial measures. All of these efforts must be documented and records maintained for three years. OSHA has published potential solutions, some of which are as simple as allowing for rest time, re-arranging work stations or replacing telephone receivers with headsets.
If the employer is not eligible for the Quick Fix option or it does not work, OSHA requires that the employer implement a comprehensive Ergonomics Program. Unless the employer has an ergonomics expert on staff, this could get expensive and complex. In addition to the elements of the Quick Fix program, the comprehensive Ergonomics Program requires specified and demonstrative "management leadership" (a defined term in the Standard), employee participation mechanisms, job hazard analysis of similar job categories using a trained ergonomist, and much, much more. The upshot of all of this must be the application of feasible engineering, work practice or administrative controls, or any combination of such measures, to reduce MSD hazards on the job. There are many additional training, record keeping and other complicated and interrelated requirements that are a part of the process.
And That's Not All . . . A New Form of Worker's Compensation?
For employees who miss time from work, the Standard also requires employers to make up wage losses and to provide medical benefits to the extent such items are not paid by worker's compensation. Open question: when will you be able to insure against these losses, and how much will it cost?
What About Violations?
Violations can trigger a $7,000 fine. Repeated or willful offenses can lead to fines of up to $70,000. "Egregious" violations can result in multiplying such fines by the number of incidents involved.
What Does It Mean?
OSHA estimates that it will cost employers $4.5 billion in the first year to comply with the Standard. Other industry groups, such as the Employment Policy Foundation, have estimated the first year costs at $100 billion. These kinds of numbers are as speculative as they are heart-stopping, but what is undeniable is that to prevent lawsuits and liabilities, all companies will be required to commit substantial resources to a battery of new procedures, a new way of thinking, and a lot of management training. The Standard is new and complex, and it requires that still another layer of caution, sensitivity and know-how be inserted into the supervisory practices of all management employees. We were beginning to feel that, through our training firm, we were making substantial inroads in our efforts to train our clients' managers to react to routine situations in ways that do not violate the ADA, the FMLA, the new definitions of sexual harassment and the various laws that pertain to age, race, gender, pregnancy and other forms of prohibited discrimination. Add the Ergonomics Standard to the list. We will all need to confront how all of this multitude of laws will work together. For instance, when an employee with an MSD requires time off, where does the concept of unpaid FMLA leave come into the mix? When an MSD also qualifies as a "disability" under the ADA, what happens then?
We are in the process of finalizing the training programs, forms and procedures for use by our clients who are interested in avoiding the potential liabilities that will result from violations, however innocent they may be. Feel free to contact us if we can be of any help.
Powell, Trachtman, Logan, Carrle & Lombardo, P.C. is a full service law firm with offices in suburban Philadelphia, PA, Harrisburg, PA and Cherry Hill, NJ. Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com.
