Workers' Compensation Newsletter
OSHA and Ergonomics Regulation
According to the International Ergonomics Association, ergonomics is the study of interactions between humans and physical objects in order to optimize performance and comfort. Specifically, “ergonomists contribute to the design and evaluation of tasks, jobs, products, environments and systems in order to make them compatible with the needs, abilities and limitations of people.”
The purpose of “ergonomics” is to reduce the number of injuries caused by repetitive motion tasks, especially musculoskeletal disorders (MSDs). The Federal Occupational Safety and Health Administration (OSHA) first addressed the subject of ergonomics in 1987. Five years later it began a related rule-making process and on November 4, 2000, OSHA issued its Ergonomics Program Standard (the Program) to address MSDs in the workplace. This Program was subsequently repealed on March 20, 2001 by the Bush administration, due, in part, to its incompatibility with state Workers’ Compensation laws.
Some organizations criticized the plan, noting that it required employers to pay workers who suffer ergonomics-related injuries at least 90 percent of their salary while they recover; whereas most Workers’ Compensation insurance programs paid only 2/3 of their salary. Moreover, the Standard Program proposed a completely different benefit-system for MSDs, containing different requirements from Workers’ Compensation.
Insurance companies and other groups such as the American Dental Association (ADA), and many others, applauded the repeal of the Program, believing that OSHA had failed to identify specific scientific evidence linking specific jobs to specific injuries. In addition, others indicated their lack of approval of the regulation, noting that certain vital aspects had not been addressed.
Comprehensive Plan on Ergonomics
Despite the initial repeal of the proposed regulations, on April 5, 2002, OSHA announced an alternative plan called the Comprehensive Plan on Ergonomics (the Plan) as a way to reducing MSDs in the workplace. Unlike the repealed Ergonomics Program Standard, however, the new guidelines are voluntary. This Plan has four parts: guidelines, enforcement, outreach and assistance, and research.
- Guidelines: OSHA has set out to create industry-specific guidelines in order to tailor ergonomics regulations appropriately. Such guidelines will be based on “current incidence rates and available information about effective and feasible solutions.”
- Enforcement: Although the Plan guidelines are voluntary, OSHA maintains that under the “general duty” clause, OSH may enforce its guidelines where “ergonomic hazards exist and employers are not making good-faith efforts to prevent injuries.” OSHA claims that this authority is derived from two OSH review Commission decisions, Pepperidge Farm and Beverly Enterprises. In connection to its enforcement mission, OSHA has employed ergonomic coordinators in each of its 10 regional offices.
- The outreach and assistance components provide, among other things, OSHA-sponsored classes on ergonomics and a program addressing the needs of Hispanic workers. Specifically, OSHA employs cooperative programs to “support ergonomic outreach and assistance programs.” OSHA has formed partnerships with at least 25 organizations with an emphasis on ergonomics. Such employers are subject to OSHA guidelines enforcement. In addition, the OSHA Web site includes numerous other resources with respect to industry-specific assistance. Moreover, OSHA has signed memorandums of understanding with numerous small business organizations allowing OSHA to distribute ergonomics related guidance.
- OSHA created the 15-member National Advisory Committee on Ergonomics (NACE) in order to assess the research needs and outreach efforts of OSHA. The committee members were selected from 250 nominees of members of numerous industries. Several meetings took place in 2003 and 2004, with the final meeting to taking place in November 2004.
Criticism of Subsequent Plan
The Comprehensive Plan was initially challenged by legislation introduced by Senator John Breaux (D-LA), (the Breaux-Specter Bill). His proposed legislation would have required the Secretary of Labor to issue a final ergonomics rule within two years of enactment. In addition, the Bill called for an emphasis on preventive measures and demanded increased clarity for employers about when action was necessary in order to be in compliance. The Breaux-Specter Bill would also prohibit OSHA from expanding the application of state Workers’ Compensation laws. The Bill, however, was never passed in the 107th Congress, and apparently, was not subsequently re-introduced.
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