Introduction
Even before it was published in the Federal Register on Nov. 14, OSHA's final ergonomics program standard was under attack from a consortium of employer associations that branded the new standard overly intrusive and cost prohibitive. Labeled as even more onerous than the proposed standard published a year ago, the final standard applies to all employers except those in the construction, maritime, agriculture and railroad sectors. While OSHA estimates the annual cost to employers at around $4.5 billion, critics say the cost will be at least several times that figure.
This newsletter is a brief overview of the provisions of the new standard, including the compliance time frame for specific requirements of the standard. Keep in mind, however, that at least three lawsuits have been filed to stop OSHA from implementing the standard.
Background
Although critics of the new standard complain that the rulemaking was rused in order to take effect before a new administration is in place, ergonomics first became an issue for OSHA in 1979, when the first ergonomist joined the agency. Ergonomics itself is based on a principle that by fitting the job to the worker - either by adjusting a workstation, rotating between jobs or using mechanical assists - MSDs can be reduced and ultimately eliminated.
By mid-1987, OSHA began citing employers for ergonomic hazards, and in 1992 announced plans to make rule on ergonomics. Despite rulings from Congress forbidding the agency to issue ergonomics standards in 1997 and 1998, OSHA eventually released a proposed standard in November 1999. The final rule is the result of the reaction to that proposal, gathered from written comments and testimony at nationwide hearings.
The stated purpose of the standard is to reduce MSDs developed by "workers whose jobs involve repetitive motions, force, awkward postures, contact stress and vibration."
What Is Required
Employee Notification
Each of the 6.1 million places of employment covered by the standard must provide every current and new employee basic information about (1) the signs and symptoms of common musculoskeletal disorders (MSDs); (2) how to report such disorders and the importance of early reporting; (3) the risk factors associated with MSD hazards; and (4) the requirements in the standard.
The information must be provided to new employees within 14 days of being hired; current employees must have access to it in a conspicuous place in the workplace or, if all employees have access, through electronic posting.
Reporting an MSD
When an employee reports signs or symptoms of an MSD, you must determine whether those symptoms meet the definition of an MSD incident:
- That it is work-related and requires days away from work, restricted work or medical treatment beyond first aid; or
- The signs or symptoms are work-related and last for 7 consecutive days after an employee reports them.
Once you determine that a reported MSD qualifies as a work-related MSD incident under the standard, you must then determine within 7 days if the employee's job meets the standard's "Action Trigger"; that is, whether the employee's job routinely involves exposure to one or more relevant risk factors, i.e., repetition, force, awkward postures, contact stress or vibration. That evaluation may be done by using one of the hazard identification tools provided in the standard.
If the job meets the Action Trigger, and you do not already have an ergonomics program in place, you must develop and implement one that includes the following:
- Management leadership in assigning responsibility and authority for managing the program.
- Employee participation so that employees promptly report MSD signs, symptoms and hazards in the workplace and are involved in the development, implementation and evaluation of the program.
- MSD management that ensures the employee access to a health care professional, any necessary work restriction and evaluation and follow-up of the incident. This management process must begin within 30 days after you determine a job meets the Action Trigger.
- Job hazard analysis to determine whether a job that meets the Action Trigger poses an MSD hazard to employees in that job. That analysis must begin within 60 days after it is determined that a job meets the Action Trigger.
- Hazard reduction and control measures geared to reduce or eliminate MSD hazards in the job by appropriate work practice, engineering or administrative controls or a combination of them. Initial controls must be implemented within 90 days after you determine a job meets the Action Trigger. Permanent controls must be implemented within 2 years.
- Training of managers, supervisors and employees in the program and their role in it. Training for employees involved in setting up and managing the program must begin 45 days after a job is determined to meet the Action Trigger; training for current employees, supervisors or team leaders must begin within 90 days.
- Program evaluation every three years and/or when you believe that it may not be functioning properly.
Work Restriction Protection
Should an employee have an MSD job-related incident that meets the Action Trigger, you must provide the employee with any temporary work restrictions or time off work that either the health care professional or you deem necessary. Workers who require either limitations on the activities of their current job or a transfer to a temporary alternative position must retain their rights and benefits and 100 percent of their earnings for a maximum or 90 days. Workers who have to take time off work because of an ergonomic injury are entitled to 90 percent of their wages and 100 percent of their benefits for up to 90 days.
This provision of the standard has been among the most controversial and has provoked a lawsuit from an insurance association that says OSHA exceeded its statuatory authority by mandating compensation that the insurers say will interfere with state worker's compensation programs.
The Quick Fix
If your employees have experienced no more than one MSD incident in the job in question, and your entire establishment has not had more than two incidents int he preceding 18 months, you may use a Quick Fix instead of setting up a full ergonomics plan. The name may be a misnomer in that you still have to:
- Provide the MSD management required under the standard;
- Talk with employees in their job;
- Observe employees as they perform the job to identify risk factors;
- Ask the employees doing the job to recommend measures to reduce exposure to identified hazards;
- Implement controls;
- Evaluate the job; and
- Keep a record of the Quick Fix process for each job to which it is applied. Those records must be kept for 3 years.
Additionally, once the risk factor exposure levels in a particular job go below those described in the Basic Screening Tool included in the standard, the ergonomics program for that job may be discontinued as long as the implemented controls and employee training related to that job are maintained.
Recordkeeping Requirements
All employers with 11 or more employees, including part-time or temporary employees, must keep written or electronic records of:
- Employee reports of MSD incidents, symptoms and hazards;
- The employer's response to such reports;
- Job hazard analyses;
- Hazard control measures;
- Quick Fix process;
- Program evaluations; and
- Work restrictions, time off work and the opinions of health care providers.
All records, except the provider opinions, must be kept for 3 years or until they are replaced by updated records. Provider opinions for all employees whose length of employment is longer than one year must be kept for the duration of employment plus three years.
Compliance Deadline
You must provide the required basic information to employees by October 14, 2001. After that, you must begin receiving and responding to employee reports of MSD signs and symptoms.
Employers who have an ergonomics program in place before November 14, 2000, may continue to implement their program as long as it contains management leadership, employee participation, job hazard analysis and control, training and evaluation as part of the program.
The complete ergonomics standard and a number of frequently asked questions about it may be obtained from OSHA's web site at http://www.osha.gov.
Policy
At a minimum, an employer's policy and complaint procedure should contain:
- A clear statement that the employer will not tolerate harassment of any kind and that it will stop harassment before it rises to the level of a violation of the law;
- An assurance that employees who make complaints will be protected against retaliation;
- A clearly described complaint process that provides accessible avenues of complaint;
- An assurance from the employer that the confidentiality of harassment complaints will be protected to the greatest extent possible while it conducts its investigation;
- A mechanism for a prompt, thorough, and impartial investigation with an investigator well-trained in the skills of interviewing;
- An assurance that the employer will take immediate and appropriate corrective action should it determine that harassment has occurred.
Other Steps
An employer also has the duty to instruct all of its managers and supervisors to report all complaints of harassment, whether or not the complaint conformed to established procedure. Unwelcome conduct or harassment should be corrected regardless of whether a complaint has been filed.
An affirmative action defense has to show that the employee unreasonably failed to use any complaint procedure provided by the employer. Proving that the employee's failure to complain was unreasonable is the burden of the employer, and that determination depends on the particular circumstances and information available to the employee at that time. For example, an employee might reasonably ignore a small number of incidents, hoping that the harassment might stop, before complaining to management. However, if the harassment persists, then further delay in complaining on the part of the employee could be considered unreasonable.
The employee also might fail to use the complaint process because of a perception that:
- There was a risk of retaliation;
- There were obstacles to complaints; or
- That the process was ineffective.
Again, the employer must prove that such a perception is unreasonable.
Other Efforts
A complaint made directly to the EEOC or to a state fair employment practices agency while the harassment is ongoing could be considered an effort to avoid harm sufficient to deny the employer an affirmative defense. The timing of the complaint could affect liability or damages: if the employee could have avoided some of the harm by complaining earlier, damages would be adjusted accordingly.
Conclusion
Despite the best efforts of both employer and employee, unlawful harassment may occur and harm may result. An employer who immediately took corrective action after a prompt claim of harassment may succeed in preventing future harm but may not be able to correct the harm as employee has already suffered. The guidance points out that harassment is the only type of discrimination carried out by a supervisor for which an employer can avoid liability, but only under limited circumstances, provided both prongs to the affirmative defense are met. In other words, if both parties exercise reasonable care, the affirmative defense will fail.
Although EEOC's policy guidance does not have the force of law, courts frequently cite the agency's interpretation in their rulings. While many employers take great care to inform employees about their policies on sexual harassment, they not should make sure that their policies explicitly address all forms of harassment and that all employees know and understand what those policies say.
For more information on OSHA, ergonomics or any of Krukowski & Costello's services, please call (414) 423-1330 or e-mail dlk@kclegal.com.
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