Now Is the Time to Prepare for OSHA's Sweeping New Ergonomic Standard - United States. Occupational Safety and Health Administration

You may think that because your business is office-based--and word processors are your company's most common machinery--your interaction with the Occupational Safety and Health Administration is limited. That's no longer true. In November 2000, OSHA rolled out a sweeping ergonomics standard, and you have to be ready to roll with it by October. Donald Savelson, a partner and OSHA expert in 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 standard enacted?

The OSHA ergonomics standard was established on November 15, 2000. Before that, OSHA used a general provision that didn't specify ergonomics--it was called a general duty clause: "Employers are required to provide a place of employment that is free from recognized harm." OSHA had to litigate cases under that general standard, which got confusing. So they decided to make it specific for everyone with this new standard. Businesses have to be ready to comply by October 15 of this year.

This has extremely wide impact, correct?

It's the broadest-reaching standard now. It affects all employers regardless of size, except in four industries: construction, maritime, agriculture, and railroads. [It also does not affect home offices.]

And no one's particularly satisfied.

There are 18 different lawsuits--from both business and labor groups--challenging the standard. The suits are all now consolidated in the District of Columbia court, which will hear it. The lawsuits filed by organized labor claim that none of the four industries should be exempt. They also claim that there are weak spots in the final standard, which they want corrected--that there should be stiffer training required and less time given for employers to come into compliance. As for business coalitions, they're trying to get the ergonomics standard totally invalidated.

How should companies ready themselves for October 15 compliance to the ergonomics standard?

First, they're going to have to get a copy of the standard from OSHA and distribute this information. It explains the definition of ergonomics, the kinds of injuries and illnesses covered, and what's required if an employee reports an illness to the employer.

And what happens after October 15?

After October 15, employers have to respond to reports of musculoskeletal disorders, or MSDs--these include things like tendinitis, back injuries, carpal tunnel syndrome, and work-related illnesses from typing eight hours a day or running a checkout counter. If an employee reports an MSD, the employer then verifies that it qualifies for coverage. To qualify, the injury or illness must be determined to be work-related, and require days off, work restriction, or medical treatment.

If the condition qualifies, what does the employer do?

The employer has a choice at that point. If there's only been one employee incident in a specific type of job and two employee incidents in the entire company in the last 18 months, HR can implement a "quick fix." This means you may not have to put into effect an entire ergonomics program. If you're dealing with more than one person in a particular job or more than two people establishment-wide in the last 18 months, then you have to put in a full, comprehensive OSHA ergonomics program.

What does a comprehensive ergonomics program cover?

It requires, among other things, ergonomics management of the particular job [visit www.osha.gov for more details]. It also requires work-restriction protection for individuals--meaning if someone can't work in their job because of an MSD incident, they're going to be safeguarded for 90 days in their pay and benefits. If they transfer to another job, they transfer with this work-restriction protection as well.

What if the illness puts an employee out of a job permanently--say a secretary is diagnosed with carpal tunnel syndrome and can't type anymore?

Employers should be aware that some illnesses may trigger issues under the Americans with Disabilities Act. But under OSHA, you're not required to find this person another job. It's not like an ADA situation--although the ADA may be triggered, and the employee could need an accommodation. But under OSHA you're not required to place the person in a new job.

So what's actually safeguarded for employees during these 90 days after they've been diagnosed with a qualifying MSD?

Say their health-care provider determines that some work restrictions are necessary: they can't lift as much, or they can't do the job as long. The employer has to continue to pay them 100 percent of their earnings and maintain all their employment rights and 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 in there.

What about employers who already had an ergonomics program?

If you had a program in existence before November 2000, which was when the standard was published, then you'd possibly be allowed to grandfather it by doing a review of it and setting a timetable to make any necessary changes--but that had to be done by January 16, 2001.

And if you missed that deadline?

Wait and see. It may not be too late to grandfather your program with this new administration. There was a request already made of the Clinton administration to extend the date; it was denied in late December. But a new administration may reopen this. That means you're going to have to look at your program closely to see if it can meet the grandfathering. The advantage of that is you may not have to put into effect the entire OSHA ergonomics program. You may be able to use yours.

And in the meantime, what should employers do?

Look at your injury, illness, and disability records now. You're going to have to be up and running on October 15, which means you can't start getting prepared on October 14. Because when you get that first report of an MSD, you only have seven days after that to determine if you need to take further action. Plus you may want to take action 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, recently reported that there are over 1 million ergonomic work-related repetitive-stress injuries a year, accounting for an estimated $50 billion a year in compensation costs, lost wages, and lost productivity. So it may make good business sense to get moving before the October deadline.

COPYRIGHT 2001 ACC Communications Inc.
COPYRIGHT 2001 Gale Group