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Thelen Reid Brown Raysman & Steiner LLP
The
Occupational Safety and Health Administration's new Ergonomic
Program Standards, published at 29 CFR §1910.900 on
November 14, 2000, went into effect on January 16, 2001.
The regulations require businesses to use ergonomic standards
to improve the health and welfare of their employees. The
new rule, which fills more than 800 pages, sets up specific
guidelines requiring employers to inform employees of their
rights and duties under the ergonomic regulations and to
implement remedial ergonomic programs. The regulations are
complicated and will require each business to tailor implementation
to its particular industry and experience.
With
the exception of construction, agriculture, maritime and
railroad workers, this regulation applies to all businesses
with 11 or more employees, including part-time or temporary
employees. Business groups estimate compliance costs at
between $18 billion and $125.6 billion a year. For example,
the United Parcel Service estimates that the cost of compliance
for its operations alone will exceed $5 billion. Regardless
of the actual cost to business, it is important that companies
take steps proactively to comply with these regulations.
If they do not, they may face enforcement actions or litigation.
Penalties can reach $7,000 per violation for "serious"
problems and up to $70,000 per violation for willful or
repeat violations.
The
regulations are less than clear in setting out their applicability
to the construction industry. They state at 29 CFR §1910.900
(b): "This standard does not apply to employment covered
by the following OSHA standards, or to employment such as
office management and support services directly related
to the employment: (i) OSHA's construction standards in
Part 1926 of this chapter...." [emphasis added]
Use
of the phrase "directly related" to construction
employment covered by special OSHA regulations raises questions
about whether home office personnel are excluded from the
new ergonomic regulations. To the extent they provide necessary
support services to field work, they appear to be excluded.
However, regulators also could assert that only management
and support staff in the field are excluded from
the new ergonomic regulations.
The
regulations state that "functions such as office work,
management and support functions are not covered by the
[ergonomics] standard and that, for example, a construction
company office or a marine terminal cafeteria would not
be covered." See, Ergonomics Program, Introduction,
65 Fed. Reg. 68274 (Nov. 14, 2000) (to be codified at 29
CFR §1910). That statement would seem to exclude home
office workers from the new ergonomics regulations.
Engineering
and architecture firms and offices do appear to be covered
by the new ergonomic regulations and appear not to be covered
by the construction safety standard at 29 CFR Part 1926,
though the regulations do not explicitly address this issue.
Engineers, architects and their employees may be excluded
from the new ergonomic regulations to the extent that they
provide direct support to construction activities, such
as serving as field liaisons or inspectors. However, absent
a definitive statement from regulators, engineering and
architecture firms would be well-advised to comply with
the new ergonomic regulations.
To
comply initially, employers must adequately educate their
employees regarding ergonomic injuries, the symptoms of
them and the types of jobs and activities that can cause
such disorders. Employees also should be given procedures
for reporting injuries and should be informed of the need
for prompt attention to any injury. All such information
must be conspicuously posted, and employees also should
receive a copy of the OSHA regulation. Current employees
must receive this training by October 2001, and new
hires must receive the training within 14 days of
hiring.
OSHA
states that the new standards are designed "to reduce
the number and severity of musculoskeletal disorders (MSDs)
caused by exposure to risk factors in the workplace."
An MSD is broadly defined as "a disorder of the muscles,
nerves, tendons, ligaments, joints, cartilage, blood vessels,
or spinal discs." Well-known MSDs include carpal tunnel
syndrome and back injuries. Once there is a report of, signs
of and/or symptoms of an MSD, the regulations impose additional
requirements. The employer must investigate the report thoroughly,
which may require the involvement of a health care professional.
The
regulation defines certain "triggers" that establish
an objective tie between the employee's workplace responsibilities
and his/her MSD. For example, if an employee lifts more
than 75 pounds at any one time or uses an input device,
such as a keyboard or mouse, in a steady manner for more
than four hours total in any workday, the employee's conduct
meets the action trigger. Thus, virtually any sort of injury
related to "force, awkward posture, repetition, vibration,
and contact stress" could be covered by the regulation.
There are few, if any, blue collar or white collar positions
that do not involve these potential injuries on a daily
basis. For example, employees could develop an ergonomic
problem from sitting in a poorly designed chair or using
a telephone, computer screen, mouse and/or keyboard repetitively
or in an awkward manner. Even the lighting of an office
could be considered a risk.
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For more information about the issues covered in this report, please contact Linda S. Husar in our Los Angeles office at 213-576-8017 or at lshusar@thelen.com or contact your Thelen attorney. For more information about Thelen's Construction and Government Contracts Department, click here.
©2001 Thelen Reid Brown Raysman & Steiner LLP
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