ERGONOMICS 101: OSHA ISSUES PROPOSED SAFETY STANDARD FOR MUSCULOSKELETAL INJURIES

By December 2000, you may be required by law to develop a comprehensive ergonomic safety program if one of your employees develops carpal tunnel syndrome from using the computer all day. In addition, you may have to pay that employee 90% of his or her net wages and benefits while he or she is out recovering.

On November 22, 1999, when the Occupational Safety and Health Administration ("OSHA") released its long-awaited, proposed ergonomic safety standard, some said "Big Brother" went too far. The proposed standard is designed to reduce the occurrence of musculoskeletal injuries and disorders in the workplace by requiring employers to reduce the risk factors that lead to such injuries. The regulations may apply to conditions such as carpal tunnel syndrome and soft tissue back injuries. If adopted, the safety standard will have a wide-ranging impact on almost all employers. Employers that engage in manufacturing and material handling are required to implement ergonomic safety programs immediately. Employers in other industries must adopt an ergonomic safety program if one employee develops a musculoskeletal disorder. The standard also requires employers to provide:

1) compensation and benefit continuation to employees who develop musculoskeletal disorders from workplace conditions and;

2) where feasible, light duty positions to employees who develop musculoskeletal disorders.

Employers in the agriculture, maritime and construction industries are exempt from the standard.

The Ergonomic Safety Program

The elements of an ergonomic safety program include job hazard analysis and hazard control; training for employees, supervisors and staff with respect to ergonomic safety in jobs that pose a high risk of musculoskeletal injury; injury management for employees with musculoskeletal disorders; program evaluation; and record keeping. Employers will be required to implement a formal system for employees to report musculoskeletal disorders and to address these employee reports promptly. An employer also must make available to its employees the OSHA ergonomic standard, information regarding its ergonomic safety program, and information on how the employee may become involved in developing, implementing and evaluating each element of the employer’s program. Although the standard does not require the employer to eliminate all occurrences of musculoskeletal disorders in the workplace, employers are required to reduce materially hazards that may result in musculoskeletal disorders. When an employer cannot reduce such hazards materially, it must reduce the hazards to the extent "feasible."

Wide Range of Employers Covered by the Standard

Although OSHA safety regulations historically have focused on employers in the manufacturing, chemical and construction industries, the proposed ergonomic safety standard will impact almost all employers because of the broad range of job activities that OSHA believes present a risk of musculoskeletal injury. Job activities that may present ergonomic risk factors include sitting for long periods of time (office and clerical positions), repetition, force or awkward postures (computer operators and health care positions), and using bulky hand and power tools or gloves that do not fit properly (manufacturing and health care positions). Many of the tasks employees perform in the modern workplace pose some level of ergonomic risk under the proposed standard.

Federal Workers’ Compensation

One of the more controversial provisions of the proposed standard would require employers to provide compensation and benefits continuation to employees who develop musculoskeletal disorders. Likewise, employers may be required to make light duty positions available if feasible. OSHA states that these provisions are designed to promote early reporting of ergonomic injuries, by removing the financial disincentives that discourage employees from reporting injuries.

Consider this summary of OSHA’s proposed compensation scheme. An employee who suffers from a musculoskeletal disorder must receive 100% of his or her net wages and fringe benefits if that employee performs temporary light duty while recovering from an injury. An employee who is not able to work due to a musculoskeletal disorder must receive 90% of his or her net wages and full fringe benefits.

The compensation scheme proposed by OSHA provides a much higher level of compensation to employees than many state workers’ compensation systems. State workers’ compensation statutes typically provide for payment of up to two-thirds of an employee’s pre-tax wages, and weekly benefits capped at $500 to $600 per week. In contrast, the OSHA plan does not place any cap on weekly benefit levels. However, an employer may offset the compensation due under the safety standard with monies the employee receives under the state workers’ compensation statute or other short-term disability payment plans.

Limitations on the Standard

While many industry groups voiced strong opposition to the proposed regulations, the standard does provide several safe harbor provisions that allow employers to avoid implementation of a comprehensive ergonomics program. The "quick fix" option allows employers to avoid implementing a program if, following a report of a musculoskeletal disorder, the employer:

(1) provides prompt care for the injured employee;

(2) works with its employees to eliminate the hazard that caused the injury;

(3) verifies that the "quick fix" eliminated the hazard; and

(4) monitors the fix to ensure its continuing effectiveness. If the "quick fix" does not work, or if another injury of the same type occurs within 36 months, the employer then must implement a comprehensive ergonomics program.

The proposed standard also exempts employers who have implemented an ergonomic safety program before the standard becomes effective, provided that the program satisfies the basic obligations of the ergonomic standard and materially reduces the risk of musculoskeletal injury.

Employment Law Practice

At Stradley Ronon, we believe that our clients are best served when they receive labor and employment law advice before a crisis occurs. At the first sign of an employment-related issue, we provide direction and practical step-by-step advice to help manage the problem. If the issue turns into a dispute, our attorneys assist at every stage – investigation, communication, negotiation, and, if necessary, litigation. We regularly represent our clients in federal and state courts and agencies that have jurisdiction over labor and employment law cases. We also frequently appear before arbitration tribunals. Our practice covers: employment discrimination, sexual harassment, employment contracts and non-compete agreements, employee discipline and/or discharge, employee privacy, drug testing, family and medical leave, personnel policies and procedures, employee benefits, wage and hour requirements, wrongful discharge, and union issues.

For more information about employment policies and practices, call:

Sandra A. Girifalco

215-564-8064

Thomas J. Renehan, Jr.

215-564-8044

Ellen Rosen Rogoff

215-564-8058

Jonathan F. Bloom

215-564-8065

John F. Licari

215-564-8076

Francis X. Manning

609-482-7871

Nicholas Deenis

215-564-8142

Robert J. Haurin

215-564-8051

Tracey E. Diamond

215-564-8002

Employee Benefits:

John J. Hunter

215-564-8072

James F. Podheiser

215-564-8111

Information contained in this publication should not be construed as legal advice or opinion, or as a substitute for the advice of counsel. The enclosed materials may have been abridged from other sources. They are provided for educational and informational purposes for the use of clients and others who may be interested in the subject matter.