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Thelen Reid Brown Raysman & Steiner LLP In
the closing days of the Clinton administration, the Occupational Safety and Health
Administration promulgated ergonomic standards intended to reduce workplace injuries.
These standards focused on musculoskeletal disorders ("MSDs"), such
as carpal tunnel syndrome and back injuries. Employers' groups claimed compliance
with the regulations would be extremely expensive and fought their implementation.
Congress subsequently passed legislation that rescinded the standard and prohibited
OSHA from issuing new regulations imposing substantially the same requirements.
Shortly after the Bush administration took office, Labor Sec. Elaine
Chao vowed to revisit this issue and to develop a comprehensive approach to ergonomics.
On
April 8, 2002, OSHA issued its new strategy for dealing with ergonomic issues.
OSHA stated that workplace MSDs are decreasing and that "OSHA's goal is to
accelerate that decline." After three public hearings, in which the agency
heard more than 100 speakers and collected more than 350 written comments, it
developed a four-pronged approach. This approach was based on Sec. Chao's objectives
of preventing injuries, relying on solid science, providing incentives for cooperation
between employers and OSHA, ensuring clarity and maximizing flexibility.
First: OSHA proposed specific guidelines for certain industries, which
will be selected by their incident rate. The guidelines will rely on industry
standards and best practices already in place. OSHA cited its 1990 Meatpacking
Guidelines as an example of the type of standard it intends to create. OSHA did
not identify all of the industries that would be covered but stated that it would
initiate a National Emphasis Program in the nursing home industry to focus on
the risk of injury arising from patient lifting. OSHA also stated that it would
continue to evaluate injuries in the construction industry through targeted inspections
and responses to worker complaints. The agency also will work with industries
that will not be covered by specific guidelines to help them develop appropriate
ergonomic standards.
On April 26, 2002, OSHA Administrator John Henshaw
announced the agency's first steps to target the construction industry. OSHA soon
will begin to collect data from 13,000 construction employers. Henshaw stated
that after OSHA learns more about the injuries and illnesses from these employers,
it will be able to identify the most hazardous worksites and focus its inspection
efforts.
Second: OSHA focused on enforcement. The new standards
are published as a guideline, and compliance is, therefore, voluntary. Failure
to comply is not, in itself, a violation of the Occupational Safety and Health
Act. However, under the General Duty Clause, employers must keep their workplaces
free of serious hazards, including ergonomic risks. Thus, OSHA will continue to
conduct inspections and will issue citations under the General Duty Clause when
dangerous conditions exist. OSHA also will issue ergonomic hazard alert letters
when appropriate. Companies that receive such letters will be subject to follow-up
inspections or investigations within 12 months. OSHA
plans to establish special ergonomics inspection teams that will work with Labor
Department attorneys and experts to prosecute cases. According to OSHA's Web site,
"for the first time, inspections will be coordinated with a legal strategy
developed by DOL attorneys that is based on prior successful ergonomics cases
and is designed to maximize successful prosecutions." OSHA already has identified
10 regional ergonomic coordinators to help direct these efforts. Third:
OSHA will engage in outreach and assistance. OSHA plans to provide advice, training
and assistance to employers, particularly small businesses, to help them develop
and implement successful ergonomics programs. OSHA also will target its current-year
training grants at this subject to help develop training materials to promote
an understanding of ergonomic risks. OSHA also plans to improve its recognition
program, which identifies and publicizes companies that take exceptional or unique
approaches to ergonomic problems. OSHA
has given priority to efforts to reach Hispanic and other immigrant workers. The
agency stated that these employees often work in industries with higher-than-average
risk for ergonomic injuries. Therefore, it is making special efforts to reach
non-English speaking employees to ensure that they are aware of ergonomic risks
and are trained to take appropriate precautions.
Fourth: The OSHA
program will include research. According to the agency, although researchers have
devoted considerable efforts to ergonomic issues, numerous gaps remain. OSHA intends
to take active steps to encourage additional research. As part of this effort,
OSHA plans to work closely with the National Institute for Occupational Safety
and Health.
Employers need to remain vigilant for ergonomic risks. This
issue clearly is important to OSHA and will be a priority during upcoming inspections.
Companies need to take steps now to identify and eliminate ergonomic hazards.
At a minimum, employers should develop programs to reduce ergonomic risk factors.
OSHA has stated that 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. Thus, early attention to this issue is important
to help employers avoid sanctions in the future.
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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.
©2002 Thelen Reid Brown Raysman & Steiner LLP
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