Ten years after the Occupational Safety and Health Administration (OSHA) set out to examine the question of whether it should regulate the ways and means by which people fit the jobs in which they are employed, it published a final standard on the subject on November 14, 2000, in the Federal Register at 65 FR pgs. 68261-68870. The regulatory language may be found at pages 68846-68870. The new standard will be codified in Part 29 of the Code of Federal Regulations in a new subpart at Section 1910.900. According to its terms, it takes effect on January 13, 2001.

The final standard (Ergo standard) is the single most far reaching rule ever published by OSHA. It applies to all of what OSHA characterizes as "general industry." This means that virtually all employments in the United States and its territories are covered by the Ergo standard. The only exemptions are employments which are covered by OSHA’s construction safety, maritime safety, agriculture safety standards, and some railroad operations. All other employments are covered including certain government employments and those construction, maritime, and agriculture employments that are not covered by the industry specific standards.

Despite the broad reach of the Ergo standard, the rulemaking proceeding was one of the shortest in terms of time in the history of OSHA. The proposed rule was published on November 23, 1999; the entire proceeding took just under a year from start to finish. The Ergo standard is also the most controversial standard OSHA has ever promulgated. It seems that every aspect of the Ergo standard is controversial, including the questions of whether there is any need for the standard, the truncated and to some extent arbitrary procedures by which it was adopted, its costs, and the terms used for the final regulatory language. Indeed, it was reported that the terms used in the Ergo standard are so imprecise that the College of Occupational Health and Environmental Physicians revoked its support and urged a revision by either OSHA or the courts.

It was a certainty that the Ergo standard would be challenged in court. The National Association of Manufacturing, the National Chamber of Commerce, the Ergonomics Coalition and the American Insurance Association all have filed petitions for review with U.S. courts of appeal. Other petitions for review are almost sure to be filed. Based on experience litigating cases of this kind, it is anticipated that one or more labor unions will file. Some states have opposed certain provisions of the standard and may, therefore, file petitions for review.

Furthermore, Congress is not yet out of the picture. As many readers know, the funding bill for the U.S. Department of Labor was not passed and enacted prior to the election. An important reason was the Ergo standard. The White House and Congress were at odds over how and to what extent a new administration might be involved in the implementation or the withdrawal of the Ergo standard. There has been some talk that politics might still play a part. However, some of the parties interested in the Ergo standard and representing employer interests suggested to the House and Senate leadership that political intervention at this stage would disrupt the litigation. Those persons also informed the leadership that the standard can only be changed at this point either by court order or by a new rulemaking proceeding. In our experience, that advice is accurate.

The next possible development of legal significance will occur in the courts. It is anticipated that those who challenge the Ergo standard, i.e., those who are against it entirely and those who are against significant parts, may file a motion to stay implementation of the standard. The word "may" is used because most of the important provisions of the standard do not take effect until October 15, 2001.

Paragraph c of the Ergo standard applies to employers with ergonomic programs as of November 14, 2000. Those employers who want to operate an ergonomic program under the grandfather provisions of this paragraph are required to make at least one review of the elements of their programs against the requirements of paragraph c no later than January 16, 2001.

All other covered employers must (1) provide employees with the information required by paragraph d of the standard by October 15, 2001, and (2) October 15, 2001 is also the start date for employers to react to employee complaints of musculoskeletal disorders or MSDs.

The Ergo standard requires that employers educate current employees by October 15, 2001 about MSDs. They must explain common MSDs, as well as the signs and symptoms of MSD injuries as OSHA defines signs and symptoms. Employees are to be informed of the ergonomic risk factors in their jobs and they are to be told how to report their MSD complaints. They are to be provided with a written short description of the requirements of the Ergo standard and a written summary of the standard. Employers may, if they choose, use Appendices A and B to fulfill the employee notice requirements of the Ergo standard. However, this shortcut may not be appropriate for individual employers.

The standard anticipates that employers will establish a communications system for employees to report their complaints of MSD injuries, signs and symptoms to management. Employee input and feedback to employees is also required. Moreover, a communications system of this kind is mandated if the employer experiences an MSD incident.

Employers are required to respond to reports of MSDs or reports of signs or symptoms of an MSD which persist for seven continuous days after the day the complaint is made. The acronym "MSD" is defined in the Ergo standard. Basically, "it is a disorder of the muscles, nerves, tendons, ligaments, joints, cartilage, blood vessels, or spinal discs," which is work-related and not the result of a traumatic injury. The terms "sign" and "symptom" of MSDs are also defined. For example, decreased range of motion is defined as a "sign" whereas a symptom may be persistent "pain" or "stiffness."

In the event the reported MSD is recordable on the OSHA 200 log and work-related or if the sign or symptom is work-related, then an MSD incident has occurred.

The employer must respond by looking at the complaining employee’s job to see if it contains risk factors for the reported MSD or signs or symptoms of an MSD which exceed the action level specified in Table W-1 of the standard. The Table specifies very low thresholds for the listed risk factors.

For example, the action level is exceeded if an employee who complains about persistent pain in the neck, shoulder or back for seven consecutive days and whose job requires one lift of more than 75 pounds. The action level is exceeded if an employee who complains about wrist pain uses a keyboard or mouse in a steady manner for more than four hours a day. Similarly, the action level is exceeded if it takes more than 20 pounds of initial pushing or pulling force more than 10 times a day and the complaining employee reports persistent pain in the neck/shoulder, hand/wrist/arm, back/trunk/hip, or leg/knee/ankle.

When a job exceeds the action levels, the compliance requirements of the Ergo standard apply to it. These requirements are, to use a word, onerous. They also are complex and numerous. The standard requires the employer to do the following:

• A job hazard analysis must be performed for each job in which the action level is exceeded;
• The complaining employee must be referred to a "health care professional" (HCP) at no cost to the employee;
• The employer must obtain a written opinion from the HCP and implement any work restriction recommended by the HCP;
• The complaining employee has the option to appeal the opinion of the HCP to a second HCP; in the event of a disagreement, a third HCP may be consulted;
• Employers must maintain the wages and benefits of employees on work restriction at 100% for at least 90 days if their signs, symptoms, or recordable MSD do not resolve, and at 90% for employees who are sent home;
• Employers must develop and institute an ergonomics program;
• Employers must abate (eliminate) the ergonomics hazard from the job of the complaining employee either by a "quick fix," if it is available, or by engineering controls to the extent they are feasible, or by administrative controls and personal protective equipment as a last resort;
• Employees must be involved at all stages of the ergonomics program including providing input and solving abatement problems for ergonomic hazards;
• All employees must receive ergonomics training if they are in jobs which have risk factors exceeding the action level, and training must be provided to their supervisors;
• Employers must make and maintain numerous records; and
• Employers must reevaluate their ergonomics program every three years.

Many of these tasks and requirements appear to be incapable of performance without the assistance of persons having expertise in ergonomics. For example, the job-hazard analysis required in the event a job exceeds the action level is a task for an expert. That is not to say employers cannot use self help to do the job. In this regard, OSHA has published Appendices D-1 and D-2 to provide assistance. However, quick reference to Appendix D-1 makes it apparent that the assistance of professionals in industrial hygiene and allied disciplines probably is necessary to do a proper job-hazard analysis.

Similarly, confusion almost certainly will be generated as to what constitutes a health care professional (HCP), particularly if different professionals are used in the HCP opinion review process. The term "health care professional" is defined to include "physicians, or other licensed health care professionals whose legally permitted scope of practice (e.g., license, registration or certification) allows them to provide independently or to be delegated the responsibility to carry out some or all of the MSD management requirements of this standard." It seems clear from the preamble of the final standard that the HCP can come from any of a number of occupations. Certainly, registered nurses, physicians assistants, and perhaps physical therapists, athletic trainers, and even ergonomists fit the definition.

As mentioned above, OSHA allows employer ergonomic programs existing on or before the final standard’s publication date to become grandfathered under the Ergo standard. Inasmuch as many employers have adopted such programs over the past decade, it may be worthwhile for them to examine paragraph c of the standard.

To qualify, the program of such employers must have been in writing as of November 14, 2000. It also must comply with the following:

• It must exhibit management leadership as demonstrated by an effective MSD reporting system;
• It must evince employee participation as shown by early reporting of MSDs and other active employee participation parameters;
• It must demonstrate job-hazard analysis and control;
• It must provide for training of employees, managers and supervisors;
• It must provide for evaluation of the program and periodic review; and
• By January 16, 2002, the provisions regarding work restrictions and pay retention must be implemented.

A program may be disqualified, however, if OSHA believes that it, or any other employer policy, discourages employee participation and reporting. In other words, OSHA retains a club by which it can, if it so chooses, disqualify any existing program based upon the whims of local compliance personnel.

OSHA’s final standard for ergonomic hazards is complex, costly and difficult to comprehend. The breadth of the scope of its application can be ascertained from pages 68275-68277 of the preamble to the final rule. The listing of industries and jobs included under the standard is extensive. The standard even covers the associations which are fighting it like the Chamber of Commerce and NAM. It covers industries as diverse as law, insurance, clerical, teaching, medical, dental, and funeral services.

We have been asked whether the standard will be sent back to OSHA by the courts. That is a question we cannot answer. However, if it is reviewed in the U.S. Court of Appeals for the District of Columbia, we can say that there is substantial precedent from that Court which favors many of the provisions of the standard, including wage retention and medical peer review. That court has also been very forgiving of OSHA’s procedural lapses during rulemaking.

It would be prudent, therefore, for employers who may have reason to believe that the standard will apply to them, or at least to some jobs in their workplaces, to begin planning for visits from OSHA compliance personnel shortly after October 14, 2001. Employers with existing programs may experience visits after January 16, 2001.