Groups not bent out of shape over OSHA plan

 - May 15, 2008, 11:38 AM

“Targeted guidelines” and “tough enforcement” are two key elements of a comprehensive voluntary plan from the Occupational Safety and Health Administration (OSHA) “to dramatically reduce ergonomic injuries,” according to Labor Secretary Elaine Chao. “This plan is a major improvement over the rejected old rule because it will prevent ergonomics injuries before they occur and reach a much larger number of at-risk workers.”

Early last year Congress repealed a set of ergonomics rules that were put into effect in the final weeks of the Clinton Administration. Those rules drew strong criticism from business interests, including the National Air Transportation Association. NATA and other trade groups had fought the rule from the start on the basis that its requirements would place a severe financial and administrative burden on small businesses, such as aircraft repair stations, and the cost of compliance would be far more than its safety benefits were worth.

Unlike the rule that was eventually repealed, NATA is pleased with this approach because it’s a voluntary program. “And that’s exactly what we were seeking,” said an NATA spokesman. OSHA expects to begin releasing guidelines ready for application in selected industries this year.

For the first time, OSHA said it will have an enforcement process designed from the start to “target prosecutable ergonomic violations” and to “maximize successful prosecutions.”

OSHA Administrator John Henshaw said his agency will immediately begin developing industry and task-specific guidelines to reduce and prevent ergonomic injuries, often called musculoskeletal disorders (MSDs), that occur in the workplace. In addition to the guidelines, OSHA will also encourage businesses and industries immediately to develop additional guidelines of their own. The agency’s ergonomics enforcement plan will crack down on violators “by coordinating inspections with a legal strategy designed for successful prosecution,” Chao emphasized.

Target: High-risk Injuries

The Department of Labor will place special emphasis on industries with the serious ergonomics problems that OSHA and department attorneys have successfully addressed in prior cases. Currently, FBOs and repair stations (which fall under OSHA’s Standard Industrial Classification Code 4581) are not considered high-risk industries. OSHA will have special ergonomics inspection teams that, from the earliest stages, will work closely with Labor Department attorneys and “experts to successfully bring prosecutions.” The new ergonomics plan also calls for compliance assistance tools to help workplaces reduce and prevent ergonomic injuries. OSHA said it will provide specialized training and information on guidelines and the implementation of successful ergonomics programs.

The plan also includes the announcement of a national advisory committee; part of its task will be to advise OSHA on research gaps. In concert with the National Institute for Occupational Safety and Health, OSHA said it will stimulate and encourage needed research in this area.

While the Bureau of Labor Statistics data shows that musculoskeletal disorders are already on the decline, OSHA believes this plan will accelerate that decline “as quickly as possible,” said OSHA’s Henshaw. “Thousands of employers are already working to reduce ergonomic risks without government mandates. We want to work with them to continuously improve workplace safety and health. We will go after those who refuse to take care of their workers.”

OSHA conducted three public forums around the country last July, collecting 368 written comments and listening to 100 speakers; met with stakeholder groups and individuals to discuss various views on the issue; analyzed the comments and recommendations; reviewed relevant and helpful information from other sources, including the past ergonomics docket; studied the various options; and researched various alternative approaches. Out of that work, OSHA developed this plan.

Now that Congress has prohibited OSHA from issuing a rule that is substantially the same as the one repealed, OSHA has completely abandoned the idea of another. “There are a number of reasons why guidelines are preferable to doing a rule,” said the agency. “OSHA must follow certain criteria in doing a rule–any rule. In terms of ergonomics, there are factors that make doing a rule very difficult.”

There are a variety of different hazards and combinations of different hazards to be addressed: exposure to the hazards is not readily measured in some cases; the exposure-response relationship is not well understood; cost and feasibility of abatement measures may be uncertain and may be high in some cases; and it is difficult, except in the most general terms, to prescribe remedies for abating such hazards in a single rule.

These considerations make it difficult to develop simple criteria for compliance that can apply to a broad range of industries. On the other hand, OSHA said, “industry and task-specific guidelines can be developed more quickly and are more flexible, and they can provide specific and helpful guidance for abatement to assist employees and employers in minimizing injuries.”

Violations Will Bring Penalties

Rule or no rule, these guidelines will carry penalties and provide for enforcement action and prosecution of violators. Employers must keep their workplaces free from recognized serious hazards under the OSHA’s General Duty Clause, which includes ergonomic hazards. OSHA said it will not focus its enforcement efforts on employers who have “implemented effective ergonomic programs or who are making good-faith efforts to reduce ergonomic hazards.”

OSHA will conduct inspections for ergonomic hazards and issue citations under the agency’s General Duty Clause and issue ergonomic hazard alert letters where appropriate. OSHA will also conduct follow-up inspections or investigations within 12 months of certain employers who receive ergonomic hazard alert letters. In addition, the agency will conduct specialized training of appropriate staff on ergonomic hazards and abatement methods and designate 10 regional ergonomic coordinators and involve them in enforcement and outreach.

But how do you determine whether MSDs are work-related? The determination of whether any particular MSD is work related may require the use of different approaches tailored to specific workplace conditions and exposures, the agency advises. Broadly speaking, establishing the work relatedness of a specific case may include taking a careful history of the patient and the illness; conducting a thorough medical examination; and characterizing factors on and off the job that may have caused or contributed to the MSD.

A guideline is a tool to assist employers in recognizing and controlling hazards. However, it is voluntary. Failure to implement a guideline is not itself a violation of OSHA’s General Duty Clause. Guidelines that OSHA develops will provide information to help employers identify ergonomic hazards in their workplaces and implement feasible measures to control those hazards.

Even if there are no guidelines specific to a particular industry, an employer is obliged, under the agency’s General Duty Clause, to keep its workplace free from recognized serious hazards, including ergonomic hazards. OSHA will cite for ergonomic hazards under the General Duty Clause or issue ergonomic hazard letters where appropriate as part of its overall enforcement program.

OSHA will develop guidelines for a select number of industries, taking into account injury and illness incidence rates, as well as available information on what is known to work. These guidelines will be developed with input from others, said the agency. “As specific guidelines are drafted, we will make public announcements and share the information as broadly as possible.”