[Federal Register Volume 65, Number 220 (Tuesday, November 14, 2000)]
[Rules and Regulations]
[Pages 68262-68870]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-28854]
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Part II
Department of Labor
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Occupational Safety and Health Administration
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29 CFR Part 1910
Ergonomics Program; Final Rule
Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 /
Rules and Regulations
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1910
[Docket No. S-777]
RIN 1218-AB36
Ergonomics Program
AGENCY: Occupational Safety and Health Administration (OSHA),
Department of Labor.
ACTION: Final rule.
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SUMMARY: The Occupational Safety and Health Administration is issuing a
final Ergonomics Program standard (29 CFR 1910.900) to address the
significant risk of employee exposure to ergonomic risk factors in jobs
in general industry workplaces. Exposure to ergonomic risk factors on
the job leads to musculoskeletal disorders (MSDs) of the upper
extremities, back, and lower extremities. Every year, nearly 600,000
MSDs that are serious enough to cause time off work are reported to the
Bureau of Labor Statistics by general industry employers, and evidence
suggests that an even larger number of non-lost worktime MSDs occur in
these workplaces every year.
The standard contains an ``action trigger,'' which identifies jobs
with risk factors of sufficient magnitude, duration, or intensity to
warrant further examination by the employer. This action trigger acts
as a screen. When an employee reports an MSD, the employer must first
determine whether the MSD is an MSD incident, defined by the standard
as an MSD that results in days away from work, restricted work, medical
treatment beyond first aid, or MSD symptoms or signs that persist for 7
or more days. Once this determination is made, the employer must
determine whether the employee's job has risk factors that meet the
standard's action trigger. The risk factors addressed by this standard
include repetition, awkward posture, force, vibration, and contact
stress. If the risk factors in the employee's job do not exceed the
action trigger, the employer does not need to implement an ergonomics
program for that job.
If an employee reports an MSD incident and the risk factors of that
employee's job meet the action trigger, the employer must establish an
ergonomics program for that job. The program must contain the following
elements: hazard information and reporting, management leadership and
employee participation, job hazard analysis and control, training, MSD
management, and program evaluation. The standard provides the employer
with several options for evaluating and controlling risk factors for
jobs covered by the ergonomics program, and provides objective criteria
for identifying MSD hazards in those jobs and determining when the
controls implemented have achieved the required level of control.
The final standard would affect approximately 6.1 million employers
and 102 million employees in general industry workplaces, and employers
in these workplaces would be required over the ten years following the
promulgation of the standard to control approximately 18 million jobs
with the potential to cause or contribute to covered MSDs. OSHA
estimates that the final standard would prevent about 4.6 million work-
related MSDs over the next 10 years, have annual benefits of
approximately $9.1 billion, and impose annual compliance costs of $4.5
billion on employers. On a per-establishment basis, this equals
approximately $700; annual costs per problem job fixed are estimated at
$250.
DATES: This final rule becomes effective on January 16, 2001.
Compliance. Start-up dates for specific provisions are set in
paragraph (w) of Sec. 1910.900. However, affected parties do not have
to comply with the information collection requirements in the final
rule until the Department of Labor publishes in the Federal Register
the control numbers assigned by the Office of Management and Budget
(OMB). Publication of the control numbers notifies the public that OMB
has approved these information collection requirements under the
Paperwork Reduction Act of 1995.
ADDRESSES: In compliance with 28 U.S.C. 2112(a), the Agency designates
the Associate Solicitor for Occupational Safety and Health, Office of
the Solicitor, Room S-4004, U.S. Department of Labor, 200 Constitution
Avenue, NW., Washington, DC 20210, as the recipient of petitions for
review of the standard.
FOR FURTHER INFORMATION CONTACT: OSHA's Ergonomics Team at (202) 693-
2116, or visit the OSHA Homepage at www.osha.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
The preamble and standard are organized as follows:
I. Introduction
II. Events Leading to the Standard
III. Pertinent Legal Authority
IV. Summary and Explanation
V. Health Effects
VI. Risk Assessment
VII. Significance of Risk
VIII. Summary of the Final Economic Analysis and Final Regulatory
Flexibility Analysis
IX. Unfunded Mandates Analysis
X. Environmental Impact Statement
XI. Additional Statutory Issues
XII. Procedural Issues
XIII. Federalism
XIV. State Plan States
XV. OMB Review under the Paperwork Reduction Act of 1995
XVI. List of Subjects in 29 CFR Part 1910
XVII. The Final Ergonomics Program Standard
References to documents, studies, and materials in the rulemaking
record are found throughout the text of the preamble. Materials in the
docket are identified by their Exhibit numbers, as follows: ``Ex. 26-
1'' means Exhibit 26-1 in Docket S-777. A list of the Exhibits and
copies of the Exhibits are available in the OSHA Docket Office.
I. Introduction
A. Overview
This preamble discusses the data and events that led OSHA to issue
the final Ergonomics Program standard (Section II), and the Agency's
legal authority for promulgating the rule (Section III). This
discussion is followed by a detailed paragraph-by-paragraph summary and
explanation of the final rule, including the Agency's reasons for
including each provision and OSHA's responses to the many substantive
issues that were raised in the proposal and during the rulemaking
(Section IV).
The summary and explanation of the standard is followed by a
lengthy discussion of the evidence on the health effects that are
associated with worker exposure to MSD hazards (Section V). The next
section discusses the nature and degree of ergonomic-related risks
confronting workers in general industry jobs (Section VI), and assesses
the significance of those risks (Section VII). The preamble also
contains a summary of the Final Economic and Final Regulatory
Flexibility Analysis (Section VIII). Finally, the preamble describes
the information collections associated with the final standard (Section
XV).
B. The Need for an Ergonomics Program Standard
Work-related musculoskeletal disorders (MSDs) currently account for
one-third of all occupational injuries and illnesses reported to the
Bureau of Labor Statistics (BLS) by employers every year. Although the
number of MSDs reported to the BLS, like all occupational injuries and
illnesses, has declined by more than 20% since 1992,
[[Page 68263]]
these disorders have been the largest single job-related injury and
illness problem in the United States for the last decade, consistently
accounting for 34% of all reported injuries and illnesses. In 1997,
employers reported a total of 626,000 lost worktime MSDs to the BLS,
and these disorders accounted for $1 of every $3 spent for workers'
compensation in that year. This means that employers are annually
paying more than $15 billion in workers' compensation costs for these
disorders, and other expenses associated with work-related MSDs, such
as the costs of training new workers, may increase this total to $45
billion a year. Workers with severe MSDs often face permanent
disability that prevents them from returning to their jobs or handling
simple, everyday tasks like combing their hair, picking up a baby, or
pushing a shopping cart. For example, workers who must undergo surgery
for work-related carpal tunnel syndrome often lose 6 months or more of
work.
Thousands of companies have taken action to address and prevent
these problems. OSHA estimates that 46 percent of all employees but
only 16 percent of all workplaces in general industry are already
protected by an ergonomics program, because their employers have
voluntarily elected to implement an ergonomics program. (The difference
in these percentages shows that many large companies, who employ the
majority of the workforce, already have these programs, and that many
smaller employers have not yet implemented them.) Based on its review
of the evidence in the record as a whole, OSHA concludes that the final
standard is needed to protect employees in general industry workplaces
who are at significant risk of incurring a work-related musculoskeletal
disorder but are not currently protected by an ergonomics program.
C. The Science Supporting the Standard
A substantial body of scientific evidence supports OSHA's effort to
provide workers with ergonomic protection (see the Health Effects, Risk
Assessment, and Significance of Risk sections (Sections V, VI, and VII,
respectively) of this preamble, below). This evidence strongly supports
two basic conclusions: (1) There is a positive relationship between
work-related musculoskeletal disorders and employee exposure to
workplace risk factors, and (2) ergonomics programs and specific
ergonomic interventions can substantially reduce the number and
severity of these injuries.
In 1998, the National Research Council/National Academy of Sciences
found a clear relationship between musculoskeletal disorders and work
and between ergonomic interventions and a decrease in the number and
severity of such disorders. According to the Academy, ``Research
clearly demonstrates that specific interventions can reduce the
reported rate of musculoskeletal disorders for workers who perform
high-risk tasks'' (Work-Related Musculoskeletal Disorders: The Research
Base, ISBN 0-309-06327-2 (1998)). A scientific review of hundreds of
peer-reviewed studies involving workers with MSDs by the National
Institute for Occupational Safety and Health (NIOSH 1997) also supports
this conclusion.
The evidence, which is comprised of peer-reviewed epidemiological,
biomechanical and pathophysiological studies as well as other published
evidence, includes:
II. More than 2,000 articles on work-related MSDs and workplace risk
factors;
II. A 1998 study by the National Research Council/National Academy of
Sciences on work-related MSDs;
A critical review by NIOSH of more than 600
epidemiological studies addressing the effects of exposure to workplace
risk factors (1997);
A 1997 General Accounting Office report of companies with
ergonomics programs;
I. Other evidence and analyses in the Health Effects section of the
preamble to the final rule;
II. Hundreds of case studies from companies with successful ergonomics
programs; and
I. Testimony and evidence submitted to the record by expert witnesses,
workers, safety and health professionals, and others, which is
discussed throughout the preamble to the final rule.
Taken together, this evidence indicates that:
High levels of exposure to ergonomic risk factors on the
job lead to an increased incidence of work-related MSDs among exposed
workers;
Reducing exposure to physical risk factors on the job
reduces the incidence and severity of work-related MSDs;
Many work-related MSDs are preventable; and
Ergonomics programs are demonstrably effective in reducing
risk, decreasing exposure and protecting workers against work-related
MSDs.
As with any scientific field, research in ergonomics is ongoing.
The National Academy of Sciences is currently undertaking another
review of the science in order to expand on its 1998 study. OSHA has
examined all of the research results in the record of this rulemaking
in order to ensure that the final Ergonomics Program standard is based
on the best available and most current evidence. Although more research
is always desirable, OSHA finds that more than enough evidence already
exists to demonstrate the need for a final standard. In the words of
the American College of Occupational and Environmental Medicine, the
world's largest occupational medical society, ``there is an adequate
scientific foundation for OSHA to proceed * * * and, therefore, no
reason for OSHA to delay the rulemaking process * * *.''
D. Information OSHA Is Providing To Help Employers Address Ergonomic
Hazards
Much literature and technical expertise on ergonomics already
exists and is available to employers, both through OSHA and a variety
of other sources. For example:
Information is available from OSHA's ergonomics Web page,
which can be accessed from OSHA's World Wide Web site at http://www.osha.gov by scrolling down and clicking on ``Ergonomics'';
Many publications, informational materials and training
courses, which are available from OSHA through Regional Offices, OSHA-
sponsored educational centers, OSHA's state consultation programs for
small businesses, and through the Web page;
Publications on ergonomics programs, which are available
from NIOSH at 1-800-35-NIOSH. NIOSH's Web page is also ``linked'' to
OSHA's ergonomics Web page;
OSHA's state consultation programs, which will provide
free on-site consultation services to employers requesting help in
implementing their ergonomics programs; and
OSHA-developed compliance assistance materials, which are
available as non-mandatory appendices to the standard, electronic
compliance assistance training materials (e-cats) on specific tasks
(e.g., lifting) or work environments (e.g., nursing homes). OSHA is
also making several publications available on the web, such as the Easy
Ergonomics Booklet, Fact Sheets, and so on. These materials can be
obtained by accessing OSHA's Internet home page at www.OSHA.gov.
II. Events Leading to the Development of the Final Standard
In this final standard, OSHA has relied on its own substantial
experience with ergonomics programs, the
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experience of private firms and insurance companies, and the results of
research studies conducted during the last 30 years. Those experiences
clearly show that: (1) Ergonomics programs are an effective way to
reduce occupational MSDs; (2) ergonomics programs have consistently
achieved that objective; (3) OSHA's standard is consistent with these
programs; and (4) the standard is firmly grounded in the OSH Act and
OSHA policies and experience. The primary lesson to be learned is that
employers with effective, well-managed ergonomics programs achieve
significant reductions in the severity and number of work-related MSDs
that their employees experience. These programs also generally improve
productivity and employee morale and reduce employee turnover and
absenteeism (see Section VI of this preamble, and Chapters IV
(Benefits) and V (Costs of Compliance) of OSHA's Final Economic
Analysis (Ex. 28-1)).
OSHA's long experience with ergonomics is apparent from the
chronology below. As this table shows, the Agency has been actively
involved in ergonomics for more than 20 years.
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OSHA Ergonomics Chronology
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March 1979................... OSHA hires its first ergonomist.
Early 1980s.................. OSHA begins discussing ergonomic
interventions with labor, trade
associations and professional
organizations. OSHA issues citations to
Hanes Knitwear and Samsonite for
ergonomic hazards.
August 1983.................. The OSHA Training Institute offers its
first course in ergonomics.
February 1986................ OSHA publishes ``Working Safely with
Video Display Terminals,'' its first
publication concerning ergonomics as it
applies to the use of computer
technology
May 1986..................... OSHA begins a pilot program to reduce
back injuries through review of injury
records during inspections and
recommendations for job redesign using
NIOSH's Work Practices Guide for Manual
Lifting.
October 1986................. The Agency publishes a Request for
Information on approaches to reduce back
injuries resulting from manual lifting.
(57 FR 34192)
November 1988................ OSHA/Iowa Beef Processors reach first
corporate-wide settlement to reduce
ergonomic hazards at 8 IBP locations
nationwide.
July 1990.................... OSHA/UAW/Ford corporate-wide settlement
agreement commits Ford to reduce
ergonomic hazards in 96 percent of its
plants through a model ergonomics
program.
August 1990.................. The Agency publishes ``Ergonomics Program
Management Guidelines for Meatpacking
Plants.''
Fall 1990.................... OSHA creates the Office of Ergonomics
Support and hires more ergonomists.
November 1990................ OSHA/UAW/GM sign agreement bringing
ergonomics programs to 138 GM plants
employing more than 300,000 workers.
Throughout the early 90s, OSHA signed 13
more corporate-wide settlement
agreements to bring ergonomics programs
to nearly half a million more workers.
July 1991.................... OSHA publishes ``Ergonomics: The Study of
Work,'' as part of a nationwide
education and outreach program to raise
awareness about ways to reduce
musculoskeletal disorders.
July 1991.................... More than 30 labor organizations petition
Secretary of Labor to issue an Emergency
Temporary Standard on ergonomics.
January 1992................. OSHA begins a special emphasis inspection
program on ergonomic hazards in the
meatpacking industry.
April 1992................... Secretary of Labor denies petition for an
Emergency Temporary Standard but commits
to moving forward with section 6 (b)
rulemaking.
August 1992.................. OSHA publishes an Advance Notice of
Proposed Rulemaking on ergonomics.
1993......................... OSHA conducts a major survey of general
industry and construction employers to
obtain information on the extent of
ergonomics programs in industry and
other issues.
March 1995................... OSHA begins a series of meetings with
stakeholders to discuss approaches to a
draft ergonomics standard.
January 1997................. OSHA/NIOSH conference on successful
ergonomic programs held in Chicago.
April 1997................... OSHA introduces the ergonomics web page
on the Internet.
February 1998................ OSHA begins a series of national
stakeholder meetings about the draft
ergonomics standard under development.
March 1998................... OSHA releases a video entitled
``Ergonomic Programs That Work.''
February 1, 1999............. OSHA begins small business (Small
Business Regulatory Enforcement Fairness
Act (SBREFA) review of its draft
ergonomics rule, and makes draft
regulatory text available to the public.
March 1999................... OSHA/NIOSH/Institute of Industrial
Engineers hold Applied Ergonomics
Conference in Houston
April 30, 1999............... OSHA's Assistant Secretary receives the
SBREFA report on the draft ergonomics
program proposal, and the Agency begins
to address the concerns raised in that
report.
November 23, 1999............ OSHA publishes its proposed ergonomics
program standard.
March 2000................... OSHA/NIOSH/Institute of Industrial
Engineers hold Applied Ergonomics
Conference in Los Angeles
March-May 2000............... OSHA holds 9 weeks of public hearings and
receives 18,337 pages of testimony from
714 witnesses.
November 23, 1999 through OSHA receives nearly 11,000 comments and
August 10, 2000. briefs consisting of nearly 50,000 pages
collectively, into the docket of the
ergonomics rulemaking.
October 27, 2000............. The Occupational Safety and Health Review
Commission finds that manual lifting of
nursing home patients is a known and
recognized risk factor for lower back
pain.
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A. Regulatory and Voluntary Guidelines Activities
In 1989, OSHA issued the Safety and Health Program Management
Guidelines (54 FR 3904, Jan. 26, 1989), which are voluntary program
management guidelines to assist employers in developing effective
safety and health programs. These program management guidelines, which
are based on the widely accepted safety and health principles of
management commitment and employee involvement, worksite hazard
analysis, hazard prevention and control, and employee training, also
serve as the foundation for effective ergonomics programs. In August
1990, OSHA issued the Ergonomics Program Management Guidelines for
Meatpacking Plants (Ex. 2-13), which utilized the four program
components from the safety and health management guidelines,
supplemented by other ergonomics-specific program elements (e.g.,
medical management). The ergonomic guidelines were based on the best
available scientific evidence, the best practices of successful
companies with these programs, advice from the National Institute for
Occupational Safety and Health (NIOSH), the scientific literature, and
OSHA's experience with enforcement
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actions. Many commenters in various industries have said that they have
implemented their ergonomics programs primarily on the basis of the
OSHA ergonomics guidelines (Exs. 3-50, 3-61, 3-95, 3-97, 3-113, 3-121,
3-125), and there has been general agreement among stakeholders that
these program elements should be included in any OSHA ergonomics
standard (Exs. 3-27, 3-46, 3-51, 3-61, 3-89, 3-95, 3-113, 3-119, 3-160,
3-184).
OSHA also has encouraged other efforts to address the prevention of
work-related musculoskeletal disorders. For example, OSHA has actively
participated in the work of the ANSI Z-365 Committee, which was
entrusted with the task of developing a consensus standard for the
control of cumulative trauma disorders. The Agency also has sponsored
and participated in more than 11 Ergonomics Best Practices conferences.
1. Petition for Emergency Temporary Standard
On July 31, 1991, the United Food and Commercial Workers Union
(UCFW), along with the AFL-CIO and 29 other labor organizations,
petitioned OSHA to take immediate action to reduce the risk to
employees of exposure to ergonomic hazards (Ex. 2-16). The petition
requested that OSHA issue an emergency temporary standard (ETS) on
``Ergonomic Hazards to Protect Workers from Work-Related
Musculoskeletal Disorders (Cumulative Trauma Disorders)'' under section
6(c) of the Act. The petitioners also requested, consistent with
section 6(c), that OSHA promulgate, within 6 months of issuance of the
ETS, a permanent standard to protect workers from cumulative trauma
disorders in both general industry and construction.
Based on the statutory constraints and legal requirements governing
issuance of an ETS, OSHA calculated that the basis to support issuance
of an ETS was not sufficient. Accordingly, on April 17, 1992, OSHA
decided not to issue an ETS on ergonomic hazards (Ex. 2-29). OSHA
agreed with the petitioners, however, that available information,
including the Agency's experience and information in the ETS petition
and supporting documents, supported the initiation of a rulemaking,
under section 6(b)(5) of the Act, to address ergonomic hazards.
2. Advance Notice of Proposed Rulemaking
At the time OSHA issued the Ergonomic Program Management Guidelines
for Meatpacking Plants (Ex. 2-13), the Agency also indicated its
intention to begin the rulemaking process by asking the public for
information about musculoskeletal disorders (MSDs). The Agency
indicated that this could be accomplished through a Request for
Information (RFI) or an Advance Notice of Proposed Rulemaking (ANPR)
consistent with the Administration's Regulatory Program. Subsequently,
OSHA formally placed ergonomics rulemaking on the regulatory agenda
(Ex. 2-17) and decided to issue an ANPR on this topic.
In June 1991, OSHA sent a draft copy of the proposed ANPR questions
for comment to 232 parties, including OSHA's advisory committees, labor
organizations (including the petitioners), trade associations,
occupational groups, and members of the ergonomics community (Ex. 2-
18). OSHA requested comments on what questions should be presented in
the ANPR. OSHA received 47 comments from those parties. In addition,
OSHA met with the Chemical Manufacturers Association, Organization
Resources Counselors, Inc., the AFL-CIO and several of its member
organizations. OSHA reviewed the comments and submissions received and
incorporated relevant suggestions and comments into the ANPR.
On August 3, 1992, OSHA published the ANPR in the Federal Register
(57 FR 34192), requesting information for consideration in the
development of an ergonomics standard. OSHA received 290 comments in
response to the ANPR. Those comments have been carefully considered by
the Agency in developing the final ergonomics program standard.
3. Outreach to Stakeholders
In conjunction with the process of developing the proposed
ergonomics rule, OSHA established various communication and outreach
efforts. These efforts were initiated in response to requests by
individuals who would be affected by the rule (stakeholders) that they
be provided with the opportunity to present their concerns about an
ergonomics rule and that they be kept apprized of the efforts OSHA was
making in developing a proposed rule. For example, in March and April
1994, OSHA held meetings with industry, labor, professional and
research organizations covering general industry, construction,
agriculture, healthcare, and the office environment. A list of those
attending the meetings and a record of the meetings has been placed in
the public record of this rulemaking (Ex. 26-1370).
In March, 1995, OSHA provided a copy of an early draft proposed
ergonomics rule and preamble to these same organizations. Thereafter,
during April 1995, OSHA met again with these groups to discuss whether
the draft proposed rule had accurately responded to the concerns raised
earlier. A summary of the comments has been placed in the public record
(Ex. 26-1370).
During 1998, OSHA met with nearly 400 stakeholders to discuss ideas
for a proposed standard. The first series of meetings was held in
February in Washington, D.C. and focused on general issues, such as the
scope of the standard and what elements of an ergonomics program should
be included in a standard. The second series of meetings, held in July
in Kansas City and Atlanta, focused on what elements and activities
should be included in an ergonomics program standard. The third set of
meetings was held in September in Washington, D.C. and emphasized
revisions to the elements of the proposal based on previous stakeholder
input. A summary of those meetings was placed on the OSHA web site and
in the public docket (Ex. 26-1370). OSHA solicited input from its
stakeholders again the next year, when it posted a working draft of its
ergonomics standard after its release for Small Business Regulatory
Enforcement Fairness Act (SBREFA) Panel review.
4. Small Business Regulatory Enforcement Fairness Act (SBREFA) Panel
In accordance with SBREFA and to gain insight from employers with
small businesses, OSHA, the Office of Management and Budget (OMB), and
the Small Business Administration (SBA) created a Panel to review and
comment on a working draft of the ergonomics program standard. As
required by SBREFA, the Panel sought the advice and recommendations of
potentially affected Small Entity Representatives (SERs). A total of 21
SERs from a variety of industries participated in the effort. The
working draft and supporting materials (a brief summary of a
preliminary economic analysis, the risk assessment, and other
materials) were sent to the SERs for their review. On March 24-26,
1999, the Panel participated in a series of discussions with the SERs
to answer questions and receive comments. The SERs also provided
written comments, which served as the basis of the Panel's final report
(Ex. 23). The final SBREFA Panel Report was submitted to the Assistant
Secretary on April 30, 1999. The findings and recommendations made by
the Panel are addressed in the proposed rule, preamble, and economic
analysis (see the discussion in Section
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VIII, Summary of the Final Economic Analysis and Regulatory Flexibility
Analysis).
5. Issuance of Proposed Rule
On November 23, 1999, OSHA published a proposed ergonomics program
standard to address the significant risk of work-related
musculoskeletal disorders (MSDs) confronting employees in various jobs
in general industry workplaces (64 FR 65768). The proposed standard
would have required general industry employers covered by the standard
to establish an ergonomics program containing some or all of the
elements typical of successful ergonomics programs: management
leadership and employee participation, job hazard analysis and control,
hazard information and reporting, training, MSD management, and program
evaluation, depending on the types of jobs in their workplace and
whether a musculoskeletal disorder covered by the standard had
occurred. Employers whose employees perform manufacturing or manual
handling jobs were required to implement a basic ergonomics program in
those jobs.
The basic program would have included the following elements:
management leadership and employee participation, and hazard
information and reporting. If an employee in a manufacturing or manual
handling job experienced an OSHA-recordable MSD determined by the
employer to be covered by the standard, the employer would have been
required to implement a full ergonomics program for that job and all
other jobs in that establishment involving the same physical work
activities. The full program would have included, in addition to the
elements in the basic program, a hazard analysis of the job; the
implementation of engineering, work practice or administrative controls
to eliminate or substantially reduce the hazards identified in that
job; training the employees and their supervisors in that job; and
providing MSD management, including where appropriate, temporary work
restrictions and access to a health care provider or other professional
if a covered MSD occurred. General industry employees in jobs other
than manufacturing or manual handling who experienced a covered MSD
determined by the employer to be covered by the standard also would
have been required by the proposal to implement an ergonomics program
for those jobs.
6. Solicitation of Public Comment on the Proposed Rule
The notice of proposed rulemaking invited public comment on any
aspects of the proposed ergonomics standard until the close of the
comment period ending on February 1, 2000.
After receiving a number of requests for an extension of the
written comment period, OSHA published a Federal Register notice (65 FR
4795) to extend the deadline for public, pre-hearing comments to March
2, 2000 and to reschedule the informal public hearings in Washington,
D.C. to begin March 13, 2000 and run through April 7, 2000.
Subsequently, the Agency published a Federal Register notice (65 FR
19702) to re-schedule and extend the hearings in Portland, OR by 2
days, from April 24, 2000 through May 3, 2000. In addition, a final
week of informal public hearings (65 FR 13254) was scheduled to take
place in Washington, D.C. from May 8, 2000 through May 12, 2000.
During the early stages of the public comment period, it was
brought to OSHA's attention that the proposed ergonomics program
standard published on November 23, 1999 (64 FR 65768) did not provide
an analysis of the economic impacts of the rule on State and local
governments, the United States Postal Service, or the railroads. To
provide this additional information and analysis, OSHA published a
supplement (65 FR 33263) to the Agency's Preliminary Economic Analysis
and Initial Regulatory Flexibility Analysis (Ex. 28-1) of the economic
impact of the Ergonomics Program Rule. OSHA also established pre-
hearing and post-hearing comment periods ending June 22, 2000 and
August 10, 2000, respectively, to address the analysis of economic
impacts in those three industries. An informal public hearing was held
in Atlanta, GA on July 7, 2000, to provide an opportunity for witnesses
to question the OSHA Panel on the supplemental analysis.
Collectively, the public hearings concerning the proposed
ergonomics program standard generated 18,337 pages of transcript based
on testimony from 714 hearing witnesses, including those representing
public entities, private industry, industry associations, labor unions
and private individuals.
More than 5,900 pre-hearing comments were filed in response to the
proposed ergonomics program standard. A 45-day post-hearing comment
period and a 45-day summary and brief period were established, with
final briefs due to be postmarked no later than August 10, 2000. A
total of 240 post hearing submissions were received. Collectively, a
total of nearly 11,000 exhibits consisting of nearly 50,000 pages were
submitted over the whole period.
B. Other OSHA Efforts In Ergonomics
In 1996, OSHA developed a strategy to address ergonomics through a
four-pronged program including training, education, and outreach
activities; study and analysis of the work-related hazards that lead to
MSDs; enforcement; and rulemaking.
1. Training, Education, and Outreach
a. Training. The OSHA ergonomics web page has been an important
part of the Agency's education and outreach effort. Other OSHA efforts
in training, education and outreach include the following:
Grants to train workers and employees about hazards and
hazard abatement.
Three training courses in ergonomics through the OSHA
Training Institute available for OSHA compliance officers, one of which
is open to the public;
One day training for nursing home operators, at more than
500 nursing homes in each of seven targeted states;
Booklets on ergonomics, ergonomics programs, and computer
workstations, such as ``Ergonomics Program Management Guidelines for
Meatpacking Plants'' and ``Ergonomics: the Study of Work,'' both of
which are available on OSHA's Website.
Videotapes on ergonomics programs in general industry and
specifically in nursing homes.
OSHA has awarded almost $3 million for 25 grants addressing
ergonomics, including lifting hazards in healthcare facilities and
hazards in the red meat and poultry industries. These grants have
enabled workers and employers to identify ergonomic hazards and
implement workplace changes to abate these hazards.
Some grant program highlights follow:
The United Food and Commercial Workers International
Union (UFCW) conducted joint labor-management ergonomics training at
a meatpacking plant that resulted in a major effort at the plant to
combat cumulative trauma disorders. The program was so successful
that management asked the UFCW to conduct the ergonomics training
and work with management at some of its other facilities.
The University of California at Los Angeles (UCLA) and
the Service Employees International Union (SEIU) both had grants for
preventing lifting injuries in nursing homes. SEIU developed a
training program that was used by UCLA to train nursing home workers
in California. UCLA also worked with some national back injury
prevention
[[Page 68267]]
programs. At least one of the nursing home chains has replicated the
program in other states.
Mercy Hospital in Des Moines, Iowa, had a grant to
prevent lifting injuries in hospitals. It trained over 3,000
hospital workers in Des Moines and surrounding counties. It had a
goal of reducing lost work days by 15 percent. The goal was
surpassed, and, six months after the training, none of those trained
experienced a lost workday due to back injury.
Hunter College in New York City trains ergonomics
trainers for the United Paperworkers International Union. The
trainers then return to their locals and conduct ergonomics training
for union members. As a result of this training, changes are being
made at some workplaces. Examples include purchasing new equipment
that eliminates or reduces workers' need to bend or twist at the
workstation, rotating workers every two hours with a ten-minute
break before each rotation, and modifying workstations to reduce
worker strain.
b. Education and Outreach. To provide a forum to discuss ergonomic
programs and to augment information in the literature with the
experience of companies of different sizes and from a variety of
industries, OSHA and NIOSH sponsored the first in a series of
conferences that brought industry, labor, researchers, and consultants
together to discuss what works in reducing MSDs. The 1997 OSHA and
NIOSH conference was followed by 11 more regional conferences across
the country. OSHA and NIOSH held the second national conference on
ergonomics in March of 1999. More than 200 presentations were given at
the conferences on how companies have successfully reduced MSDs.
Presentations were made by personnel from large and small companies in
many different industries.
Other examples of successful ergonomics programs have come from
OSHA's Voluntary Protection Program (VPP). The VPP program was
established by OSHA to recognize employers whose organizations have
exemplary workplace safety health programs. Several sites that have
been accepted into VPP have excellent ergonomics programs.
In addition to OSHA's enforcement efforts, the Agency's Ergonomics
Program Management Guidelines for Meatpacking Plants (``Guidelines'')
(Ex. 2-13) are viewed by many as essential to the implementation of
successful workplace programs addressing ergonomic hazards. For
example, in contrasting OSHA's proposal to the Guidelines, IBP Inc.'s
Bob Wing acknowledged that the Guidelines had been successful (Ex. 30-
4046, p.1). Similarly, the American Meat Institute (``AMI''), the main
representative for the U.S. meat industry, including 276 meat packers
and processors, who operate 559 facilities, acknowledged that the
industry worked with OSHA on the Guidelines, and has been using them
for nearly ten years (Ex. 30-3677, p.1). The AMI notes that the
Guidelines work and that the industry has made substantial progress in
addressing ergonomic issues since development of the Guidelines (id. at
1-4). The AMI recommended that the Guidelines be extended throughout
general industry (id. at 4). The utility of OSHA's Guidelines also was
hailed by the United Food and Commercial Workers' Union, which noted
that upon publication of the Guidelines, industry began to respond both
from the standpoint of technology as well as ergonomics programs (Ex.
32-210-2, pp. 25-26). The success of the Guidelines led to their use
and acceptance in other industries. The poultry industry appears to
have secured substantial reductions in chronic MSDs from adherence to
the principles in the document (Ex. 30-3375, p.1.).
2. Ergonomics Best Practices Conferences
During the period from Sept. 17, 1997 through Sept. 29, 1999, OSHA
and its Regional Education Centers co-sponsored 11 Ergonomics Best
Practices Conferences. These Conferences were designed to provide good
examples of practical and inexpensive ergonomics interventions
implemented by local companies. The concept was that if OSHA and its
Regional partners could initiate the development of a network of local
employers, contractors, and educators to provide practical information
to solve ergonomics problems, it would be assisting employers in
providing a workplace for employees that would be ``free of recognized
safety and health hazards.'' To date, attendance has exceeded 2,400
participants, including employers, contractors, and employees. Finally,
OSHA has made hundreds of outreach presentations to labor, trade
associations, large and small businesses, and professional
organizations during the development of the proposed rule.
3. Enforcement
In the absence of a federal OSHA ergonomics standard, OSHA has
addressed ergonomics in the workplace under the authority of section
5(a)(1) of the OSHAct. This section is referred to as the General Duty
Clause and requires employers to provide work and a work environment
free from recognized hazards that are causing or are likely to cause
death or serious physical harm.
OSHA has successfully issued over 550 ergonomics citations under
the General Duty Clause. In the majority of these cases, cited
employers have recognized that the implementation of ergonomics
programs is in their best interest and that of their employees.
Examples of companies cited under the General Duty Clause for
ergonomics hazards and which then realized a substantial reduction in
injuries and illnesses after implementing ergonomics programs include:
the Ford Motor Company, Empire Kosher Foods, Sysco Foods, and the
Kennebec Nursing Home.
Two cases have been decided so far by the Occupational Safety and
Health Review Commission.
In the first general duty clause case litigated by the Occupational
Safety and Health Review Commission, Pepperidge Farm, the Review
Commission recognized that excessive lifting and excessive repetitions
were recognized ergonomic hazards that had caused and were likely to
cause serious physical harm to employees whose work tasks required such
activity. The Commission specifically noted that carpal tunnel syndrome
and other soft tissue injuries found at the cited plant were caused by
work tasks; the Commission relied principally on direct medical
evidence, expert medical opinion, the incidence of injury, and the
epidemiological studies and testimony in the record in reaching this
finding. The Commission also agreed that an employer could be required
to undertake a process-based, incremental approach to abating ergonomic
hazards. The citations relating to the excessive lifting hazard were
affirmed by the Commission, while those relating to the excessive
repetitions were vacated based on a finding that the Secretary had
failed to prove feasible means of abatement in addition to those found
to have been undertaken by the company.
In the second general duty clause case litigated by the Commission,
Beverly Enterprises, the Commission held that the company's practices
for lifting patients in its nursing homes exposed its nursing
assistants to a serious recognized hazard. Beverly's nursing assistants
suffered a disproportionate number of cases of lower back pain, which
was often so severe that the employee would be off work for long
periods of time, in some cases six months to over a year. The
Commission found that manual lifting of nursing home residents is a
known and recognized risk factor for lower back pain and that the
company recognized the hazard.
[[Page 68268]]
When serious physical harm cannot be documented in the work
environment but hazards have been identified by OSHA, compliance
officers both discuss the hazards with the employer during the closing
conference of an inspection and write a letter to the employer. These
letters are called ``Ergonomic Hazard Alert Letters.'' From fiscal year
1997 through October 3, 2000, approximately 498 such letters have been
sent to public and private sector employers under Section 20 of the OSH
Act. These letters involve no penalty and are strictly consultative in
nature; they reflect OSHA's responsibility to provide consultation on
ergonomics to employers. Ergonomic Hazard Alert Letters have been sent
to employers in approximately 50% of OSHA's ergonomic inspections.
Since ergonomic solutions vary from one industry to another, OSHA
has provided both general and industry-specific training to its
compliance officers. Currently, the OSHA Training Institute (OTI) in
Des Plaines, IL, offers three main ergonomic courses to OSHA compliance
staff: Principles of Ergonomics Applied to Work-Related Musculoskeletal
and Nerve Disorders (#225); Ergonomics Compliance (#325), an advanced
ergonomics course; and Nursing Home Enforcement Training (#840). A
fourth course, Healthcare (#336), has been in development and will be
piloted on November 14, 2000 through November 17, 2000. That course
will be designed to help OSHA compliance officers, as well as
employers, to identify ergonomic and other hazards within healthcare
facilities, with a specific emphasis on hospitals. Over 600 OSHA
compliance staff members have been trained in these courses within the
past three years alone. The courses typically cover three weeks of
material.
Currently, the Principles of Ergonomics Applied to Work-Related
Musculoskeletal and Nerve Disorders course also is open to the public
through OTI's 12 Regional Education Centers throughout the United
States. Since that course has been available nationwide, public
interest has been high, and the Education Centers have been scheduling
courses on a regular basis to meet the constant demand. Although the
new Healthcare Course is available currently only to OSHA compliance
officers, after the pilot period ends it will be open to the public on
a limited basis.
In addition to education and training opportunities, OSHA has
appointed one Regional Ergonomics Coordinator in each of OSHA's 10
regional offices, and one Area Office Ergonomics Coordinator in each
area office. These coordinators meet on a monthly basis to discuss
recent inspections, case developments, and scientific literature on
ergonomics; to share knowledge of ergonomic solutions; and to ensure
that enforcement resources are provided to compliance staff for
enforcement. A PhD level, professionally certified ergonomist serves as
the National Ergonomics Enforcement Coordinator in OSHA's Directorate
of Compliance Programs.
4. Corporate-Wide Settlement Agreements
Among the companies that have been cited for MSD hazards, 13
companies covering 198 facilities agreed to enter into corporate-wide
settlement agreements with OSHA. These agreements were primarily in the
meat processing and auto assembly industries, but there also were
agreements with telecommunications, textile, grocery warehousing, and
paper companies. As part of these settlement agreements, the companies
agreed to develop ergonomics programs based on OSHA's Meatpacking
Guidelines (Ex. 2-13) and to submit information on the progress of
their programs.
OSHA held a workshop in March 1999, in which 10 companies described
their experience under their settlement agreement and with their
ergonomics programs. All the companies that reported results to OSHA
showed a substantially lower severity rate for MSDs since implementing
their programs (Ex. 26-1420). In addition, most companies reported
lower workers' compensation costs, as well as higher productivity and
product quality. A report from the March 1999 workshop on corporate-
wide settlement agreements summarizing the results achieved by the 13
companies involved has been placed in the docket (Ex. 26-1420). Only 5
of the 13 companies consistently reported the number of MSD cases or
MSD case rates. All five companies that reported data on MSD-related
lost workday rates showed a significant decline in the number of lost
workdays. None of the companies that reported severity statistics
showed an increase in lost workdays as a result of the ergonomics
program.
Similarly, the success of OSHA enforcement coupled with settlements
requiring comprehensive ergonomics programs was confirmed by the United
Food and Commercial Workers International Union. The union recognized
that ``* * * [t]he majority of our successful programs in the
meatpacking and poultry industries were propelled by OSHA enforcement.
Ergonomic settlement agreements and corporate-wide settlement
agreements (CWSAs) * * * demonstrate industry recognition of the
existence of MSD hazards and the elements of a program to prevent
worker injuries arising from exposure to these hazards'' (Ex. 32-210-2,
p. 5). The UFCW confirmed the efficacy of these agreements and
resulting programs through a number of examples. One was that of IBP's
Dakota City meatpacking plant that implemented a comprehensive program
as a result of citations and subsequent settlement agreement. Cost
savings attributed to the program ``* * * were realized in the
following areas: [employee] turnover was down significantly * * *;
[MSD] incidence dropped dramatically; surgeries fell; [and] workers'
compensation costs were reduced significantly'' (id. at 9).
C. Summary
As this review of OSHA's activities in the last 20 years shows, the
Agency has considerable experience in addressing ergonomics issues.
OSHA also has used all of the tools authorized by the Act--enforcement,
consultation, training and education, compliance assistance, the
Voluntary Protection Programs, and the issuance of voluntary
guidelines--to encourage employers to address musculoskeletal
disorders, the single largest occupational safety and health problem in
the United States today. These efforts, and the voluntary efforts of
employers and employees, have led to the recent 5-year decline in the
number of reported lost workday ergonomics injuries. However, in 1997,
there were still more than 626,000 lost workday MSD injuries and
illnesses reported.
Promulgation of an ergonomics program standard will add the only
tool the Agency has so far not deployed against this hazard--a
mandatory standard--to these other OSHA and employer-driven
initiatives. Over the first 10 years of the standard's implementation,
OSHA predicts that more than 3 million lost workday musculoskeletal
disorders will be prevented in general industry. Ergonomics programs
can lead directly to improved product quality by reducing errors and
rejection rates. In an OSHA survey of more than 3,000 employers, 17
percent with ergonomics programs reported that their programs had
improved product quality. In addition, a large number of case studies
reported in the literature describe quality improvements. Thus, in
addition to better safety and health for workers, the standard will
save employers money, improve product quality, and
[[Page 68269]]
reduce employee turnover and absenteeism.
Section III. Legal Authority
A. General Criteria for OSH Act Standards
The purpose of the Occupational Safety and Health Act (``OSH Act'')
is ``to assure so far as possible every working man and woman in the
nation safe and healthful working conditions and to preserve our human
resources.'' 29 U.S.C. 651(b). To further this goal, Congress
authorized the Secretary of Labor to promulgate and enforce
occupational safety and health standards. Section 6(b) of the OSH Act,
29 U.S.C. 655(b) (authorizing promulgation of standards pursuant to
notice and comment); 654(b) (requiring employers to comply with OSH Act
standards). This standard is being issued pursuant to section 6(b).
The OSH Act defines an ``occupational safety and health standard''
as ``a standard which requires conditions, or the adoption or use of
one or more practices, means, methods, operations, or processes,
reasonably necessary or appropriate to provide safe or healthful
employment and places of employment.'' Section 3(8) of the Act, 29
U.S.C. 652(8).
A standard is ``reasonably necessary or appropriate'' within the
meaning of section 3(8) if it (1) substantially reduces or eliminates a
significant risk of material impairment to worker health, safety, or
functional capacity; (2) is technologically and economically feasible
to implement; (3) is cost effective; (4) is consistent with prior
agency action or supported by a reasoned justification for departing
from prior agency action; (5) is supported by substantial evidence; and
(6) is at least as protective as any applicable national consensus
standard. 58 FR 16612, 16614 (March 30, 1993). To fulfill the
congressional purpose underlying the Act, all OSH Act standards must be
highly protective. Id. at 16614-15.
OSHA's determination that a particular level of risk is
``significant'' is based largely on policy considerations. See
Industrial Union Dep't, AFL-CIO v. Marshall, 448 U.S. 607, 656 n. 62
(1980) (Benzene). The factors that enter into such a determination
include the seriousness of the injuries or illnesses a standard will
prevent, the likelihood that a particular employee will contract such
an injury or illness, and the total number of employees affected. Where
the standard seeks to prevent fatal illnesses and injuries, OSHA has
generally considered an excess risk of 1 death per 1000 workers over a
45-year working lifetime as clearly representing a significant risk.
See Benzene, 448 U.S. at 646; UAW v. Pendergrass, 878 F.2d 389, 393
(D.C. Cir. 1989) (Formaldehyde); Building & Constr. Trades Dep't v.
Brock, 838 F.2d 1258, 1264 (D.C. Cir. 1988) (Asbestos). But nonfatal
injuries and illnesses are often disabling and debilitating, and death
is clearly not a precondition to a finding of significant risk of
material impairment. See American Textile Mfrs. Inst. v. Donovan, 452
U.S. 490, 506 n. 25 (1981) (Cotton Dust) (upholding OSHA's finding that
cotton dust exposure at levels that caused chronic and irreversible
pulmonary disease presented a significant risk to workers); AFL-CIO v.
OSHA, 965 F.2d 962, 975 (11th Cir. 1992) (upholding OSHA's finding that
``there is a level at which [sensory] irritation becomes so severe that
employee health and job performance are seriously threatened.'');
Formaldehyde, 878 F.2d at 396-399 (upholding OSHA's finding that
exposure limit of 1 ppm would eliminate significant risk of sensory
irritation due to formaldehyde exposure); United Steelworkers v.
Marshall, 647 F.2d 1189, 1245-51 (D.C. Cir. 1980), cert. denied, 453
U.S. 913 (1981) (Lead I) (upholding OSHA's determination that it was
appropriate and necessary to lower lead exposures to reduce cases in
which workers experience subclinical effects of lead exposure because
such subclinical effects are precursors of serious, lead-related
disease); Forging Indus. Ass'n v. Secretary of Labor, 773 F.2d 1436,
1444-46 (4th Cir. 1985) (en banc) (Noise) (upholding OSHA's significant
risk finding that a substantial percentage of workers exposed to
existing workplace noise levels would suffer material noise-induced
hearing loss). See also American Dental Ass'n v. Martin, 984 F.2d 823,
826 (7th Cir.), cert. denied, 510 U.S. 859 (1993) (Bloodborne
Pathogens) (noting that, in addition to causing death, AIDS and
Hepatitis B cause protracted pain and disability).
A standard is technologically feasible if the protective measures
it requires already exist, can be brought into existence with available
technology, or can be created with technology that can reasonably be
expected to be developed. See Cotton Dust, 452 U.S. at 513; Lead I, 647
F.2d at 1272; American Iron & Steel Inst. v. OSHA, 939 F.2d 975, 980
(D.C. Cir. 1991) (Lead II).
A standard is economically feasible if industry can absorb or pass
on the costs of compliance without threatening the industry's long-term
profitability or competitive structure. See Cotton Dust, 452 U.S. at
530 n. 55; Lead I, 647 F.2d at 1272; Lead II, 939 F.2d at 980.
A standard is cost effective if the protective measures it requires
are the least costly of the available alternatives that achieve the
same level of protection. Cotton Dust, 453 U.S. at 514 n. 32; UAW v.
OSHA, 37 F.3d 665, 668 (D.C. Cir. 1994) (Lockout/Tagout II).
Within the framework of these principles, OSHA has considerable
discretion (``virtually unlimited discretion,'' in the words of the
Lead I decision, 647 F.2d at 1230) in choosing the measures that are
reasonably necessary or appropriate to reduce significant risk. A
standard may address the hazards associated with an industry (e.g.,
logging, 29 CFR 1910.266), a kind of work (e.g., hazardous waste
cleanup, 29 CFR 1910.120), a category of equipment (e.g., respirators,
29 CFR 1910.134); an environmental area (e.g., confined spaces, 29 CFR
1910.146), a lack of information (e.g., hazard communication, 29 CFR
1910.1200), a class of harmful agents (e.g., bloodborne pathogens, 29
CFR 1910.1030), or may require general measures reasonably necessary
and appropriate for safety (e.g., safety and health programs for
construction, 29 CFR 1926.20(b)). Depending on the nature of the safety
and health issues, some standards require highly specific control
measures. E.g., 29 CFR 1926.652 (excavations). Others require the
employer to conduct a hazard assessment and establish measures meant to
address the problems found. E.g., 29 CFR 1910.119 (process safety
management). A typical standard for a toxic chemical will contain
permissible exposure limits, a control hierarchy for reaching those
limits, and provisions for assessing exposure, medical examinations,
medical removal, and training. E.g., 29 CFR 1910.1025 (lead). Some
toxic chemical standards also mandate specific work practices that must
be used to control exposures. E.g., 29 CFR 1910.1029 (coke oven
emissions); 29 CFR 1926.1101 (asbestos). Vaccination against Hepatitis
B is one of the protective measures required by the bloodborne
pathogens standard, 29 CFR 1910.1030. Medical removal protection
benefits have been mandated when they are needed to encourage employees
to participate in medical surveillance. 29 CFR 1910.1025 (lead); 29 CFR
1910.1027 (cadmium); 29 CFR 1910.1048 (formaldehyde); 29 CFR 1910.1052
(methylene chloride). Job hazard analysis and employee training are
cornerstones of some OSHA standards. E.g., 29 CFR 1910.147 (lockout/
tagout).
[[Page 68270]]
Section 6(b)(7) of the Act, 29 U.S.C. 665(b)(7), requires standards
to include provisions warning employees of hazards, the means needed to
protect themselves against those hazards, and, where appropriate,
medical examinations or tests to determine whether the health of
employees has been adversely affected:
Any standard promulgated under this subsection shall prescribe
the use of labels or other appropriate forms of warning as are
necessary to insure that employees are apprised of all hazards to
which they are exposed, relevant symptoms and appropriate emergency
treatment, and proper conditions and precautions of safe use or
exposure. Where appropriate, such standard shall also prescribe
suitable protective equipment and control or technological
procedures to be used in connection with such hazards and shall
provide for monitoring or measuring employee exposure at such
locations, and in such manner as may be necessary for the protection
of employees. In addition, where appropriate, any such standard
shall prescribe the type and frequency of medical examinations or
other tests which shall be made available, by the employer or at his
cost, to employees exposed to such hazards in order to most
effectively determine whether the health of such employees is
adversely affected by such exposure.
B. Section 6(b)(5)
Standards dealing with ``toxic materials or harmful physical
agents'' must, in addition to meeting the ``reasonably necessary or
appropriate'' test of section 3(8), conform to section 6(b)(5) of the
Act, 29 U.S.C. 655(b)(5). That section provides:
The Secretary, in promulgating standards dealing with toxic
materials or harmful physical agents under this subsection, shall
set the standard which most adequately assures, to the extent
feasible, on the basis of the best available evidence, that no
employee will suffer material impairment of health or functional
capacity even if such employee has regular exposure to the hazard
dealt with by such standard for the period of his working life.
The standards that are governed by section 6(b)(5) are sometimes
referred to as ``health'' standards, while non-6(b)(5) standards are
often referred to as ``safety'' standards. In enacting section 6(b)(5),
Congress recognized ``that there were special problems in regulating
health risks as opposed to safety risks. In the latter case, the risks
are generally immediate or obvious, while in the former, the risks may
not be evident until a worker has been exposed for long periods of time
to particular substances. It was to ensure that the Secretary took
account of these long-term risks that Congress enacted Sec. 6(b)(5).''
Benzene, 448 U.S. at 649 n. 54. According to its legislative sponsor,
section 6(b)(5) is intended to require OSHA to take into account the
potential that an employee may be exposed to the hazard for his entire
working lifetime ``so that we can get at something which might not be
toxic now, if he works in it a very short time, but if he works in it
the rest of his life it might be very dangerous.'' (Remarks of Senator
Dominick in colloquy with Senator Williams, Leg. Hist. at 503).
Section 6(b)(5) directs OSHA to set the standard which will, to the
extent feasible, protect employees from material impairment to their
health even if they are exposed regularly to the toxic chemical or
harmful physical agent for their entire working life. Section 6(b)(5)
thus requires that any standard governed by that section must reduce
significant risk to the lowest feasible level. See Cotton Dust, 452
U.S. at 509. Safety standards, which are not governed by section
6(b)(5), need not reduce significant risk to the lowest feasible level
but must provide a high degree of employee protection to be consistent
with the purpose of the Act. 58 FR at 16614-15. Safety standards may
therefore ``deviate only modestly from the stringency required by
Sec. 6(b)(5) for health standards.'' Lockout/Tagout II, 37 F.3d at 669.
The most important consideration in construing the scope of section
6(b)(5), as with any statutory provision, is the language of the
statute itself. In many cases, it is obvious whether a hazard is a
``toxic material'' or ``harmful physical agent'' subject to section
6(b)(5). Other hazards are less clear cut. OSHA has looked to several
factors in determining whether a standard fits within section 6(b)(5).
These include: Is the hazard likely to cause harm promptly or after a
short period of exposure, or does harm occur only after a lengthy
period of exposure? Is the connection between exposure and harm
apparent, or is it hidden and subtle? Is the harm coincident with
exposure, or is there a latency period with harm frequently manifesting
itself long after exposure has ended? See Benzene, 448 U.S. at 649 n.
54; UAW v. OSHA, 938 F.2d 1310, 1313 (D.C. Cir. 1991) (Lockout/Tagout
I); National Grain & Feed Ass'n v. OSHA, 866 F.2d 717, 733 (5th Cir.
1989) (Grain Dust).
Because the hazardous exposures regulated by this standard cannot
be neatly categorized by the factors discussed above, whether this
standard is governed by section 6(b)(5) poses difficult legal issues.
Some commenters supported characterizing the rule as a section 6(b)(5)
rule (Ex. 32-339-1 at p. 15 (AFL-CIO), while others opposed it. Ex. 32-
368-1 at p. 41-44 (National Coalition on Ergonomics); Ex. 32-206-1 at
p. 32 (American Iron & Steel Institute); Ex. 22-337-1 at pp. 3-7
(Integrated Waste Service Association); Ex. 30-1722 at pp. 33-35
(Chamber of Commerce). For a variety of reasons, OSHA concludes that
the standard is not subject to section 6(b)(5).
First, the language of the statute itself suggests that this rule
is not governed by section 6(b)(5). That provision applies to ``toxic
materials or harmful physical agents.'' The ``toxic materials'' to
which section 6(b)(5) refers include chemicals that are harmful if
breathed and/or ingested, such as asbestos, lead, and mercury. S. Rep.
No. 91-1282, 91st Cong., 2d Sess. at 2, reprinted in Committee Print,
Legislative History of the Occupational Safety and Health Act of 1970,
(Leg. Hist.) at 142. Ergonomic risk factors are clearly not a toxic
material. The ``harmful physical agents'' to which Congress referred
include laser radiation, ultrasonic energy, ionizing radiation, noise,
and vibration. Id. at 142-43. Of the harmful physical agents mentioned
by Congress, only vibration is a risk factor addressed by the
ergonomics standard. The remaining risk factors addressed by this
standard--force, repetition, awkward postures, and contact stress---are
fundamentally dissimilar from the harmful physical agents discussed by
Congress in that they relate to the position, movement, and loading on
the tissues of a worker's body rather than an external agent acting on
the body. See Pulaski v. California Occupational Safety & Health
Standards Board, 90 Cal. Rptr. 2d 54, 66 (Cal. Ct. App. 1999) (``a
repetitive motion injury is neither a `toxic material' nor a `harmful
physical agent.' ''). Therefore, the language and legislative history
of the Act indicate that the majority of the risk factors addressed by
this rule are not the type of hazards Congress intended to regulate
under section 6(b)(5).
In addition, the hazards addressed by the rule differ from those
addressed by section 6(b)(5). A lengthy period of exposure--years,
decades, or a working lifetime--is not necessary to create a
substantial risk of MSDs. As discussed below, both acute and chronic
exposures to ergonomic risk factors can result in MSDs. And, although
MSDs frequently develop gradually as a result of exposure over time,
the period of time necessary can be days, weeks, or months, rather than
the working lifetime referred to in the text of section 6(b)(5).
Moreover, MSDs are unlike illnesses, such as cancer, damage to the
reproductive system, and kidney failure, that can result from exposure
to toxic chemicals and appear long after the
[[Page 68271]]
exposure ceased even though the exposure caused no overt symptoms while
it was occurring. An employee who is beginning to suffer a work-related
MSD will frequently recover fully after the exposure to ergonomic risk
factors ceases. For that reason, the standard requires that an employee
who develops a work-related MSD be restricted from participating in
work activities or removed from exposure that will worsen the
condition.
The ability of employers and employees to generally recognize a
cause-and-effect relationship between ergonomic risk factors and many
MSDs also indicates that this final standard is a non-6(b)(5) rule. In
recent years, as both employers and employees have become more aware of
the connection between workplace risk factors and MSDs (see Tr. 5817-
19), employers have reported over 600,000 work-related MSDs that result
in lost workdays each year (64 FR at 65931). Employees themselves are
often able to recognize when MSDs result from exposure to risk factors
in the workplace. As OSHA noted in the proposal: ``Many employers have
told OSHA that talking with employees is a quick and easy way to find
out what kind of problems are in the job. They said that talking with
employees is often the best way to identify the causes of the problem
and to identify the most cost-effective solutions to it.'' 64 FR at
65805 (citing Ex. 26-1370). Testimony at the public hearing made the
same point. Dr. Suzanne Rodgers, a physiologist with 32 years'
experience in industrial ergonomics, testified that the companies she
had worked with learn about ergonomic problems by having employees tell
them when a problem exists. (Tr. 2144). Similarly, David Alexander, a
certified professional ergonomist with more than 25 years experience,
testified that encouraging employees to report early signs and symptoms
of developing MSDs was a key feature of a successful ergonomics
program. (Tr. 2145-46).
Further, Congress provided for special treatment of health hazards
in section 6(b)(5) because it recognized that employers had little
incentive to control exposures to toxic chemicals and harmful physical
agents when there is a long period between exposure to a hazard and the
manifestation of an illness. ``In such instances a particular employer
has no economic incentive to invest in current precautions, not even in
the reduction of workmen's compensation costs, because he seldom will
have to pay for the consequences of his own neglect.'' Leg. Hist. at
144. However, in this respect too, the ergonomics standard is more like
a typical safety standard than a health standard because many of the
costs of such injuries in terms of workers' compensation claims and
lost productivity are borne by employers as MSDs occur. Thus, the
ergonomics standard does not implicate section 6(b)(5)'s concern about
hazardous exposures that lead to illnesses after lengthy exposure and
therefore require special attention because employers can defer or
avoid the costs associated with such illnesses.
Finally, the type of information on which this standard is based is
far more characteristic of a safety standard than a section 6(b)(5)
health standard. The risk assessment for this standard, as for a
typical safety standard, is based on the number of injuries that have
resulted from past exposures to the hazard being regulated and the
percentage of those injuries that are preventable. By contrast, for a
typical health standard, the risk assessment is based on mathematical
projections to determine the significance of the risk at various levels
of exposure. See, e.g., Formaldehyde, 878 F.2d at 392-96 (discussing
OSHA's quantitative risk assessment for formaldehyde exposure). In the
proposal, OSHA recognized that the risk assessment methodology for this
standard was similar to that for a safety standard rather than a
typical health standard:
There is no need, in the case of musculoskeletal disorders, for
OSHA to engage in risk modeling, low-dose extrapolation, or other
techniques of projecting theoretical risk to identify the magnitude
of the risk confronting workers exposed to ergonomic risk factors.
The evidence of significant risk is apparent in the annual toll
reported by the Bureau of Labor Statistics, the vast amount of
medical and indemnity payments being made to injured workers and
others every year * * * and the lost production to the U.S. economy
imposed by these disorders.
64 FR at 65979.
In the NPRM, OSHA preliminarily concluded that the proposed
ergonomics standard was a section 6(b)(5) standard. The NPRM stated
that MSDs are caused by chronic and not by short-term exposures. 64 FR
at 66057. Some commenters contended that this statement was
inconsistent with OSHA's proposed definition of MSD and the inclusion
of ``traumatic'' injuries in its risk assessment. Ex. 22-337-1 at p. 7
(Integrated Waste Service Association); Ex. 32-241-4 at pp. 197-99
(Anheuser-Busch & United Parcel Service); Ex. 32-300-1 at pp. 15-16
(Edison Electric Institute). The proposed definition of MSD included
musculoskeletal disorders other than those caused by accidents and was
intended to include, e.g., back injuries caused by lifting (for
employees for whom manual handling is a core job element) without
regard to whether the injury resulted from a particular exertion or the
cumulative effect of numerous lifting exertions. As OSHA elsewhere
explained:
The pathogenesis of work-related MSDs can refer to either
single, point-in-time injuries, associated with work tasks that
result in activities in which tissue tolerance is acutely exceeded,
or circumstances in which the performance of specific work tasks or
combinations in which the performance of specific work tasks or
combinations of tasks over a prolonged period of time result in
small and repeated tissue damage.
64 FR at 65900.
Moreover, the BLS injury and illness data on which OSHA based its
proposed risk assessment (see 64 FR at 65931, Table VI-3) indicates
that many of the injuries considered MSDs resulted from short-term
rather than chronic exposures. OSHA has reexamined its reasoning in
light of these comments and agrees that the acute-chronic distinction
it drew in the proposal is inappropriate when describing MSDs and
therefore does not afford a proper basis for classifying this rule as a
section 6(b)(5) standard.
As discussed in more detail in the risk assessment section, the
injury and illness data reported by BLS categorizes each incident by
type of injury or illness and the nature of the exposure event leading
to the injury or illness (BLS 1992, Ex. 26-1372). Under the BLS data
collection system, employers are instructed to report musculoskeletal
injuries and illnesses under various codes, some of which represent
musculoskeletal system and connective tissue diseases and disorders
that result from repetitive activity and some of which represent other
types of exposure events. The BLS category that accounts for most of
the reported injuries and illnesses, 021, includes sprains, strains,
and tears of muscles, joints, tendons, and ligaments. The category is
described as representing traumatic injuries, which generally result
from a single event or exposure. Ex. 26-1372 (BLS Occupational Injury
and Illness Classification Manual).
In its preliminary risk assessment, the agency closely examined the
BLS data, excluded from its analysis injuries caused by accidents
(i.e., slips, trips, falls, and being struck by objects), and included
those codes that predominantly represented work-related MSDs, including
021, that were reported under the exposure event categories
[[Page 68272]]
most closely representing ergonomic risk factors. 64 FR at 65928. The
largest number of these injuries were classified under the exposure
category for ``overexertion,'' which includes primarily lifting,
lowering, pushing, pulling, and carrying. 64 FR at 65932. OSHA has
followed this same approach in its final rule and in the supporting
risk assessment, i.e., excluding musculoskeletal injuries due to
accidents but including those resulting from ergonomic risk factors. In
OSHA's view, when MSDs result from exposure to ergonomic risk factors,
any distinction between acute and chronic exposures is unimportant.
OSHA notes that the classification of these disorders as traumatic is
in part a convention of the recordkeeping system. OSHA's general
recordkeeping guidelines for back disorders instruct that because the
specific event causing such a disorder cannot always be pinpointed, to
keep recordkeeping determinations as simple and equitable as possible,
all back disorders should be classified as (traumatic) injuries rather
than (cumulative exposure) illnesses. BLS, Recordkeeping Guidelines for
Occupational Injuries and Illnesses (April 1986), at p. 38. Similarly,
OSHA's Ergonomics Program Management for Meatpacking Plants states that
all back cases are to be classified as injuries even though some back
conditions may be triggered by an instantaneous event and others
develop as a result of repeated trauma. Ex. 32-210-2-2 at p. 14.
Moreover, a number of experts testified in the hearings that a
substantial part of the MSD injuries classified under the BLS system as
traumatic in fact represent cumulative exposure. (Tr. 2175-77; 2236-44;
5802-04). In short, even though an MSD may be classified as
``traumatic'' in origin, it will often be the case that, while the
onset of the injury was sudden, the cause was exposure to ergonomic
risk factors over some period of time. However, it is neither necessary
nor meaningful to limit the standard's reach to MSDs that only occur
because of exposures that take place over some period of time. The
purpose of this standard is to reduce the number and severity of MSDs
by protecting workers against excessive exposure to ergonomic risk
factors and MSD hazards, and for that purpose it is irrelevant whether
those excessive exposures are ``acute'' or ``chronic.''
On reflection, OSHA has determined that other considerations relied
on in the NPRM are likewise unpersuasive. Although the standard
protects against one risk factor--vibration--that qualifies as a
``harmful physical agent,'' OSHA does not believe that factor alone
makes this a section 6(b)(5) standard. The standard is not a
``vibration'' standard but one that addresses the multifactorial causes
of MSDs. The risk factors that are not ``harmful physical agents''--
force, repetition, awkward posture, and contact stress--together
contribute substantially more to the vast majority of MSDs than does
vibration.
Similarly, that a provision in OSHA's standard governing access to
employee exposure and medical records (29 CFR 1910.1020(c)(13)) defines
``toxic substance or harmful physical agent'' as including ``repetitive
motion'' does not establish that repetitive motion is a harmful
physical agent within the meaning of section 6(b)(5). See Ex. 32-339-1
at p. 15 (AFL-CIO). Whether repetitive motion is a harmful physical
agent was not central to that rulemaking, which dealt with the access
of employees and OSHA personnel to employee records and did not
regulate particular hazards. In that rulemaking, interested parties had
no reason to argue whether a standard that regulates repetitive motion
is a section 6(b)(5) standard, and OSHA had no occasion to address that
issue. Moreover, the records access rule was not issued under section
6(b)(5) but under OSHA's general authority to issue standards (section
6(b)) and regulations (section 8(g)). And it was upheld in court as a
section 8(g) regulation rather than a section 6(b) standard. Louisiana
Chem. Ass'n v. Bingham, 731 F.2d 280 (5th Cir. 1984), aff'g 550 F.
Supp. 1136 (W.D. La. 1982). Therefore, the fact that the records access
rule applies to repetitive motion cannot be regarded as establishing an
OSHA policy that repetitive motion is a harmful physical agent for
purposes of section 6(b)(5).
C. This Final Rule Does Not Regulate non-Workplace Activities
Some commenters have pointed out that MSDs can result from personal
activities as well as from workplace exposures. Ex. 32-368-1 at p. 40
(National Coalition on Ergonomics); Ex. 32-241-4 at p. 49 (Anheuser-
Busch & United Parcel Service). They argue that OSHA is attempting
through this rule to regulate the nonwork activities that may
contribute to MSDs and that the rule is therefore outside OSHA's
authority. However, the rule regulates only conditions or activities in
workplaces, and OSHA clearly has the authority to issue the rule.
Many adverse health conditions can be caused or aggravated by both
work and nonwork exposures. For example, exposures to high noise levels
both inside and outside the workplace can contribute to a worker's
hearing loss. Nevertheless, OSHA has the authority to regulate harmful
noise levels in the workplace as long as the workplace exposures create
a significant risk of material impairment of health. Forging Indus.
Ass'n v. Secretary of Labor, 773 F.2d 1436, 1442 (4th Cir. 1985) (en
banc) (Noise).
Noise dealt with a challenge to the Hearing Conservation Amendment
to OSHA's occupational noise standard. That amendment establishes
certain requirements that must be met to reduce the incidence of and/or
prevent hearing impairment due to occupational noise exposure. Before
issuing the amendment, OSHA found that 10-15% of workers exposed to
noise levels below the permissible exposure limit (PEL) would suffer
material hearing impairment. 773 F.2d at 1443. OSHA based this finding
on a ``panoply of scientific reports and studies,'' including studies
done by the National Institute for Occupational Safety and Health
(NIOSH) and the Environmental Protection Agency (EPA). Id. OSHA also
found that those employees who had suffered a hearing decrement of 10
decibels in either ear faced a greater risk from continued exposure to
high levels of workplace noise than workers whose hearing was
unimpaired. Id. OSHA's Hearing Conservation Amendment provided hearing-
endangered workers with protection in the workplace in order to
decrease the risk of hearing impairment.
The Forging Industry Association (FIA) argued that ``because
hearing loss may be sustained as a result of activities which take
place outside the workplace--such as listening to loud music, age, or
engaging in certain recreational activities--OSHA acted beyond its
statutory authority by regulating non-occupational conditions or
causes.'' Noise, 773 F.2d at 1442. The court found ``no merit'' in
FIA's argument. The court ruled that OSHA properly relied on ``the
extensive and thorough research of several scientific institutions in
defining the problems related to industrially-caused hearing loss in
designing its proposal.'' Id. at 1443. The court also stressed that
OSHA excluded non-occupational hearing loss from the rule. Id. at 1444
(``To be sure, some hearing loss occurs as a part of the aging process
and can vary according to non-occupational noise to which employees are
exposed. The amendment, however, is concerned with occupational noise--
a hazard of the workplace.''). The court ruled that the fact that non-
occupational hazards may contribute to hearing loss does not mean that
OSHA should refrain from
[[Page 68273]]
regulating workplace conditions that are shown to cause such loss:
The amendment provides that non-occupationally caused hearing
loss be excluded from its regulation. See 29 CFR 1910.95(g)(8)(ii),
1910.95(g)(10)(ii) (1984). Assuming, however, that some loss caused
by aging or smaller amounts of noise sustained for shorter periods
also aggravates the hearing loss incurred by an individual employed
in a high noise-producing industry, that is scant reason to
characterize the primary risk factor as non-occupational. Breathing
automobile exhaust and general air pollution, for example, is
damaging to lungs, whether healthy or not. The presence of unhealthy
lungs in the workplace, however, hardly justifies failure to
regulate noxious workplace fumes. Nor would there be logic to
characterizing regulation of the fumes as non-occupational because
the condition inflicted is aggravated by outside irritants.
Noise, 773 F.2d at 1444.
Like the Hearing Conservation Amendment to the Noise standard, this
final ergonomics rule regulates workplace hazards. As discussed in the
health effects section of this preamble, this rule addresses only
exposure to ergonomic risk factors that occurs in the workplace. The
MSDs that trigger action under the rule must be work-related and they
must have occurred in workers whose jobs place them at a heightened
risk of incurring a MSD because they are exposed to risk factors at the
levels in the Basic Screening Tool.
A decision by the Occupational Safety and Health Review Commission
supports OSHA's conclusion that the Act can properly address work-
related ergonomic hazards even though employees can also be exposed to
such hazards outside the workplace. In Pepperidge Farm, Inc., 17 O.S.H.
Cas. (BNA) 1993 (1997), the Commission held that where work was shown
to be a substantial contributing factor to MSDs, the fact that non-work
factors may also play a role did not preclude OSHA from requiring the
employer to abate the workplace hazards. In that case, Pepperidge Farm
contested a number of citations for ergonomic violations that OSHA had
issued under section 5(a)(1) of the Act. In order to prove a section
5(a)(1) violation, OSHA had to show that a condition or activity in the
employer's workplace presents a ``hazard to employees.'' 17 O.S.H. Cas.
(BNA) at 2009 (emphasis added). The company argued that section 5(a)(1)
should not apply to MSD workplace hazards because, among other things,
``non-workplace factors may cause or contribute to the illnesses at
issue and that individuals differ in their susceptibility to potential
causal factors.'' Id. at 2013. The Commission held that such factors
should not ``ipso facto'' preclude the possibility of enforcement under
section 5(a)(1). Id. The Commission also analyzed a significant amount
of evidence that showed a causal relationship between MSDs and
workplace hazards, including testimony from medical personnel who
examined injured workers, epidemiological data, and injury incidence at
a Pepperidge Farm plant. Id. at 2020-26. The Commission ultimately
found that there was a causal connection:
We therefore conclude that the Secretary has established on this
record a causal connection between [MSDs] affecting the employees at
Downington [a Pepperidge Farm plant] and their work on the biscuit
lines. In doing so, we are mindful that many of these injuries may
have had more than one causal factor and of the experts who contend
that the specific cause of such injuries is, essentially, unknowable
or presently unknown. As is the case with many occupational ills
with multiple possible causes, employees are more or less
susceptible to injury on the job because of the individual
attributes and backgrounds they bring to the workplace. As with
these other ills, the Secretary is not thus foreclosed from
attempting to eliminate or significantly reduce the hazard by
regulating what is shown to be a substantial contributing factor to
the worker injuries.
17 O.S.H. Cas. (BNA) at 2029.
The Commission's holding in Pepperidge Farm that the susceptibility
of some employees to a particular ailment does not preclude OSHA from
regulating workplace conditions or practices that cause or contribute
to that type of ailment is supported by other cases. In the asbestos
rulemaking, OSHA based its significant risk determination, in part, on
epidemiologic studies that included workers who smoked and were
therefore significantly more likely to contract cancer than those who
did not. Asbestos, 838 F.2d at 1265. The court held that OSHA was
justified in doing so. Smokers were not, the court said, ``so far
beyond the pale as to require OSHA to ignore them in computing the
risks of asbestos.'' Id. (emphasis added). See also Reich v. Arcadian
Corp., 110 F.3d 1192, 1198 (5th Cir. 1997) (Congress intended Act's
general duty clause to protect all employees, including those who are
especially susceptible). Thus, workers who engage in activities outside
the workplace that expose them to ergonomic risk do not thereby forfeit
on-the-job protection against exposure to excessive ergonomic risk
factors.
IV. Summary and Explanation
(a) What Is the Purpose of This Rule?
The first paragraph of the final standard sets out the purpose of
this ergonomics program standard. OSHA did not propose a purpose
paragraph, and thus no comments on this topic were received. OSHA has
decided to include a purpose statement in the final rule to clearly
indicate the goal of the standard and to differentiate between those
musculoskeletal disorders (MSDs) that are covered by the standard and
those that are not. It clarifies that the standard's purpose is to
reduce the number and severity of MSDs that are caused by occupational
exposure to ergonomic risk factors (also called ``ergonomic
stressors'') on the job.
As discussed in more detail below, the disorders addressed by this
rule include those of the muscles, nerves, tendons, ligaments, joints,
cartilage, blood vessels, and spinal discs occurring in the neck,
shoulder, forearm, wrist, hand, abdomen (hernias only), back, knee,
ankle, and foot. They include conditions classified by the Bureau of
Labor Statistics in its Annual Survey as illnesses (e.g., carpal tunnel
syndrome) and as injuries (e.g., low back pain), because MSDs include
many different disorders, affect many tissues and areas of the body,
and may be described by a wide range of medical diagnoses.
The terms used to describe this group of conditions have varied
over time and geographic region. For example, in Australia, MSDs are
often called ``Occupational Overuse Syndrome'' injuries. Other
frequently used terms include ``repetitive stress injuries,''
``cumulative trauma disorders,'' and ``soft tissue injuries.'' In
recent years, however, the term ``musculoskeletal disorders'' has
gained widespread acceptance by the scientific community, and OSHA uses
this term, or its abbreviation, MSD, throughout the regulatory text and
supporting analyses.
Paragraph (a) makes explicit that OSHA's ergonomics program
standard does not apply to injuries or illnesses caused by motor
vehicle accidents, slips, trips, falls, or similar accidents that
result in traumatic injuries on the job. By ``other similar
accidents,'' OSHA means, for example, caught in or caught between
injuries or other accidents resulting in blunt trauma. (Throughout this
notice, OSHA uses the terms ``work-related,'' ``caused by,''
``musculoskeletal disorders,'' ``risk factors,'' and ``exposure.'' For
a detailed discussion of these terms, see the relevant sections of the
Health Effects (Section V of the preamble), Summary and Explanation
(Section XI), and Legal Authority (Section III) sections of this
preamble.)
As stated in paragraph (a), the purpose of this standard is to
reduce the number and severity of MSDs caused by
[[Page 68274]]
workplace exposure to ergonomic risk factors, such as force, awkward
postures, or repetition, either alone or in combination. The standard
requires employers to implement an ergonomics program to address risk
factors in jobs that pose an MSD hazard to the employees in those jobs.
As discussed in detail in Section VI of the preamble, Risk Assessment,
ergonomics programs have been shown to reduce the number and severity
of MSDs in old and new facilities, in large and small workplaces, and
in a wide variety of jobs ranging from computer use to solid waste
handling, from assembly line operations to patient handling, and from
beverage distribution to meat processing.
Reducing the number and severity of MSDs in the workplace is the
goal of successful ergonomics programs everywhere. As the more detailed
discussions in this preamble and in the Agency's economic analysis will
show, this goal cannot be achieved overnight, although positive results
are generally observed soon after program implementation. One effect of
a new ergonomics program, which at first glance may not appear to be a
positive one, is that the number of MSDs and MSD signs and symptoms
reported in the first months after the implementation of the program
may actually increase. This initial increase in the number of MSD
reports reflects the heightened awareness of ergonomics, the importance
of early reporting, and the value of conservative treatment that
routinely accompanies program implementation. In most workplaces, this
increase is short-lived, generally lasting less than a year and almost
never more than two years. The severity of the MSDs reported, however,
generally decreases in the first few months after program initiation
and declines steadily thereafter, before leveling off as the program
matures. Thus, OSHA intends and expects the final rule to reduce the
number and severity of MSDs in the workplaces covered by the standard
over the first few years after the standard is fully in effect; OSHA is
aware that the standard's purpose will not be fully achieved in the
short run. When ergonomic programs mature, they continue to demonstrate
ongoing reductions in the number of MSDs caused by workplace risk
factors and in the severity of those MSDs that do occur.
The standard's purpose paragraph also reflects OSHA's awareness
that work-related MSDs will continue to occur in many workplaces even
after implementation of an effective ergonomics program that complies
fully with this final rule. The standard being issued today is thus not
a ``zero-risk'' standard. It recognizes that substantially reducing the
number and severity of these disorders is possible in most, if not all
workplaces, although many establishments may not be able to eliminate
MSDs completely. (For a discussion of OSHA's analysis of the standard's
projected effectiveness, see the Risk Assessment section of the
preamble (Section VI) and Chapter IV, Benefits, of the Final Economic
and Regulatory Flexibility Analysis.)
Paragraph (b)--Does This Standard Apply To Me? (Scope and Application)
Discussion of the scope and application of the final rule is
divided into three parts. Part I discusses which employers and
operations the standard covers. Part II explains the exclusions from
coverage of the rule and OSHA's authority to limit the standard's
coverage to general industry. Part III addresses other scope and
application issues raised during the rulemaking.
Part I--Scope and Application of Standard to General Industry
Employers
A. Scope of Coverage
Paragraph (b) states that the standard applies to general industry
employment, which means all employment except for railroads and
employment covered by OSHA's agriculture, construction, and maritime
standards. Unlike other OSHA general industry standards, however, this
standard does not cover general industry work performed incidentally to
or in support of construction, maritime, or agricultural employment or
railroad operations. This means that functions such as office work,
management and support services are not covered by the standard, and
that, for example, a construction company office or a marine terminal
cafeteria would not be covered. However, a construction company real
estate division engaged in selling the finished properties would not be
performing functions directly in support of the construction operations
and would be within the scope of the standard.
The final rule thus imposes coverage based on the business category
in which the employer belongs, e.g., general industry as opposed to
construction. This marks a departure from the Agency's past practice of
imposing coverage based solely on the job that an employee is
performing. The approach adopted in this standard, i.e., basing
coverage on the industry classification of the employer, is appropriate
here because of the unique nature of ergonomic problems and solutions.
The requirement to implement an entire program when an MSD incident
occurs in a job that meets the Action Trigger is more practical
administratively if employers are required to take this broad approach.
Moreover, the standard does not apply to jobs or operations that
are normally covered exclusively by the construction, agriculture and
maritime standards, even if those operations are performed in a general
industry establishment or for a general industry employer. Thus a
construction crew whose sole job is to build in-plant structures in a
steel mill is engaged in construction and is not covered by this
standard, even though the steel mill itself is a general industry
operation. This is consistent with the operation of other OSHA
standards.
Although the proposal also applied only in general industry, its
scope provision stated that coverage was further limited to general
industry manufacturing jobs, manual handling jobs, and jobs with MSDs.
Manufacturing jobs were defined as ``production jobs'' in which the
activities of producing a product made up a ``significant amount'' of
the employee's worktime. Manual handling jobs were those in which the
employee performed ``forceful'' lifting (i.e., lifting or lowering,
pushing or pulling, or carrying) and the forceful lifting tasks were a
``core element'' of the employee's job. Jobs with MSDs were defined as
jobs in which an OSHA recordable MSD occurred in a job in which the
physical work activities and conditions were reasonably likely to cause
that type of MSD, and the activities were a core element of the job or
accounted for a significant amount of the employee's worktime (64 FR
65779-82).
The proposal explained that OSHA was focusing on general industry
in this first ergonomics rulemaking because the problems in general
industry are particularly severe and the solutions are well-understood
(64 FR 65776). Some commenters agreed with the proposed rule's scope,
and its emphasis on manufacturing and manual handling jobs (Exs. 31-3,
31-71, 31-180, 31-252, 31-284, 32-300). More, however, argued either
that the rule should not exempt construction, maritime and agricultural
employment (Exs. 30-400, 30-1294, 31-14, 31-105, 31-143, 31-156, 31-
345, 31-352, 32-198-4, 32-210, 32-359-1, 32-461-1, 30-1294, 500-218),
or that the rule should exempt even more industries or jobs (Exs. 30-
372, 30-494, 1-248, 31-280, 32-77-2, 32-78, 32-234, 30-2208, 30-3167,
32-77-2, 601-X-1, Tr. 3126).
[[Page 68275]]
Many of the commenters who believed that the scope of the proposed
rule was too broad argued that it incorporated a ``one size fits all''
approach that was inappropriate for the wide variety of operations
found in general industry (Ex. 30-494, see also Exs. 30-380, 30-372,
30-531, 30-3167, Tr. 3126, 3332). Some of these commenters pointed out
that there was great variation in MSD rates, prevalence of ergonomic
risk factors, and levels of exposure to those risk factors across
general industry (Exs. 30-541, 30-3167). Others pointed out that jobs
differed greatly within and across industries, and claimed that OSHA
did not have enough information about effective controls in all
industries (Exs. 30-425, 30-3167, 32-77, 32-211-1, 32-2208). The focus
of both these groups of comments was that OSHA did not have enough
knowledge or evidence to find that the same approach to controlling
ergonomic hazards would be appropriate in all of these disparate
circumstances.
A number of commenters suggested ways to limit the standard's
scope. Some urged OSHA to focus the rule more narrowly on those jobs or
industries with the highest MSD rates or those deemed to have high risk
potential (Exs. 30-13, 30-425, 30-2208, 30-3167, 31-248, 31-280, 32-78,
32-234, Tr. 2729-30). For example, Larry Leahy of Ruth Constant &
Associates, a home health care service agency, questioned why OSHA was
covering all of general industry when 60 percent of the MSDs occurred
in industries representing a fairly small percentage of the national
workforce (Ex. 30-611). Todd McCracken, of National Small Business
United, argued:
There is a need to focus on particular types of jobs . . . There
are specific types of jobs in specific industries where MSDs are
much more likely to occur (Tr. 2729-30).
Similarly, Organization Resources Counselors, Inc. (ORC)
recommended that the rule only cover high risk occupations or employers
whose MSD incident rates were above the national background level (Ex.
32-78; see also Tr. 10633-35). The Small Business Administration's
Office of Advocacy suggested covering only manual handling jobs, which
it claimed accounted for 78 percent of all MSDs (Ex. 601-X-1).
As discussed in detail throughout this preamble, OSHA believes that
the record supports coverage of all of general industry within the
overall scope of the standard. The final standard does not, however,
prescribe a one-size-fits-all solution for a wide range of problems in
diverse jobs and industries. Even in those situations where significant
ergonomic hazards exist, the commonality of the response required by
this standard is to implement an ergonomics program. The specific focus
of that program will be targeted to the particular hazards and
conditions at each workplace. The control strategies for ergonomic
hazards will be targeted even more specifically to the needs of each
workplace. And the extent of each employer's compliance obligation will
be determined by the extent of the problem at that employer's
workplace. Thus the fact that the rule applies to a variety of hazards
at differing workplaces does not in any way mean that the employers in
all of those workplaces need to take the same actions.
Work-related MSDs are widespread throughout general industry. They
occur in every single sector within general industry, according to the
Bureau of Labor Statistics (BLS). In 1996, according to BLS, there was
no industry sector that did not report the occurrence of at least
several hundred work-related MSDs, with a large number of industries
reporting tens of thousands of work-related MSDs. Moreover, high
concentrations of work-related MSDs are reported in a wide variety of
occupations that are found throughout general industry establishments.
BLS data for 1996 show that general industry truck drivers, laborers,
and janitors, occupations found widely dispersed throughout general
industry sectors, experienced more than 48,000, 38,000 and 15,000 lost
workday (LWD) MSDs, respectively. (See Section VII (Risk Assessment) of
this preamble.)
Evidence submitted by rulemaking participants confirms the broad
distribution of MSDs and MSD hazards throughout general industry. For
example, the Service Employees International Union (SEIU) submitted
evidence that union members working in a variety of health care
settings (e.g., hospitals, nursing homes, private homes, pharmacies)
have suffered MSDs (Ex. 32-311-1). These health care workers include
registered nurses, licensed practical nurses, nurses' aides, orderlies,
physical therapists, radiology technicians, housekeepers (maids and
housemen), laundry workers, laundry machine operators, maintenance
workers, kitchen and food preparation workers, central supply workers,
and janitors and cleaners. In addition, SEIU said that other union
members such as janitors and cleaners working in a variety of other
industries, including hotels/motels, restaurants, offices have also
experienced MSDs (Ex. 32-311-1).
At the rulemaking hearing, many employees testified that they had
suffered serious work-related MSDs. Occupations in which these
employees were working when they became injured include:
Nurse
Home health care aide
Nurses' aide
Package delivery
Package sorting
Meatpacking and poultry processing
Office clerical worker
Internet publishing
Machinists
Sewing machine operator
Truck driver
Food warehousing and distribution
Grocery store cashier
Physical therapist
Mail carrier
Letter sorter
Teacher
Teachers' aide
Auto assembly
Molding and casting machine operator
Reporter
Grocery shelf stocker
Sonographer
Television film editor
Electrical workers
(Exs. 30-4200, 32-185-3, 32-210-2, 32-198-3, 32-311, 500-218, Tr.
4009-10, 4235, 4240, 4234, 6004, 6009, 6319, 6321-22, 6333, 7320-21,
7335-37, 7341-42, 17950).
Doctors and other health care professionals (HCPs) also testified
that they had treated employees in many different jobs and industries
for work-related MSDs (Exs. 37-12, 37-28, Tr. 14973, 15045-46, 16819,
16829). Dr. Robert Harrison testified that, in his research and
practice, he had diagnosed and treated over 1,000 patients with work-
related MSDs from a wide variety of industries and occupations,
including (Ex. 37-12):
Postal workers
Materials handlers
Computer operators
Grocery checkout clerks
Meat processors
Assemblers
Seamstresses
Telephone operators
Pipefitters
Customer service agents
Machine operators
Automotive manufacturing workers
Aircraft manufacturing workers
Optical scanners
Graphic artists
Restaurant workers
Bakers
Plumbers
Letter sorters
[[Page 68276]]
Dr. Robin Herbert, the medical co-director of the Mt. Sinai Center for
Occupational and Environmental Medicine, testified that she had treated
or supervised the treatment of more than 2,000 patients with upper
extremity MSDs in the past 12 years:
My patients have included journalists, computer graphic artists,
health care workers, technicians for telephone companies, automobile
manufacturing workers, cashiers, garment workers, meat wrappers,
dental hygienists, secretaries, and chefs. Industries from which I
have seen patients include publishing, journalism, entertainment,
manufacturing, health care, transportation, and telecommunications
(Ex. 37-28).
Dr. George Piligian, who also works at the Mount Sinai Center,
testified about finding and treating MSDs in dancers, musicians,
editors, secretaries, telephone operators, sewing machine operators and
hospital workers (Tr. 7813-20).
Similarly, insurance companies, employers and trade associations
representing the following industries testified about the
implementation of ergonomics interventions and programs because work-
related MSDs were occurring among workers in the following
environments:
Chemical manufacturing
Pharmaceutical manufacturing
Automotive manufacturing
Automotive repair
Boat manufacturing
Textile manufacturing
Clothing manufacturing
Printing
Dental
Meatpacking
Electric utility
Hospitals
Office workers
Hotel/motel
Emergency medical services
Furniture manufacturing
Oil and gas drilling
Moving and storage
Fabricare
Nursing homes
Telephone operation and installation
Funeral and cemetery
Insurance
Solid waste removal and recycling
Paint manufacturing
Poultry processing
Food warehousing and distribution
Beverage delivery
Assembly line
Grocery store
Retail clothing
Foundry
(see, e.g., Tr. 3337-9, Tr. 5104, Tr. 8458-8480, Tr. 16553-57).
Finally, several of the ergonomists who appeared as OSHA's expert
witnesses, including David Alexander (Ex. 37-7), David Caple (Ex. 37-
20), Dennis Mitchell (Ex. 37-11), Maurice Oxenburgh (Ex. 37-24),
Suzanne Rodgers (Ex. 37-25), and John Rosecrance (Ex. 37-26), testified
that employers in the following different industries had hired them to
help reduce the incidence of work-related MSDs among employees:
Newspaper
Luggage manufacturing
Meatpacking
Packaging
Papermaking
Plumbing supply
Route sales and delivery
Film products manufacturing
Hospitals
Heavy appliance manufacturing
Automobile manufacturing and subassembly
Furniture manufacturing
Paper and pulp products
Forest products
Food service
Clerical
Electronics
Clothing and textile manufacturing
Baking
Restaurant
Home and office furniture manufacturing
Hospitality--hotel/motel
Fiber manufacturing
Logistic and supply warehousing
Telecommunication
Textile and apparel manufacturing
Metal forging and cast metals
Electronics manufacturing
Health care
Petroleum
Electrical manufacturing
Airline freight handling
Steel manufacturing
Fishing
Aircraft manufacturing
Gas and electric utility
Flooring products
Computer and computer accessory manufacturing
Plumbing fixtures manufacturing
Food products manufacturing and processing
Chemical manufacturing
Printing
Waste treatment
Plastic manufacturing
Clothing retail
Power plants
Research laboratories
Transportation
Printing
Upholstery
Rubber manufacturing
Welding
Mail sorting and delivery
Transportation
Electronics
Medical products manufacturing
All of this evidence supports OSHA's decision to provide the
protections of this standard to all general industry employees. On the
other hand, OSHA recognizes that there may be some general industry
employers with few or no MSD hazards. Until an MSD is reported, the
employer's obligation is limited to distributing the information in
paragraph (d).
B. Application of Requirements
Unlike the proposal, this final standard does not differentiate
among general industry employers. Under the proposal, employers of
employees engaged in manufacturing or manual handling would have been
required to implement some elements of an ergonomics program whether or
not their employees had suffered any MSDs. Other general industry
employers would not have had to take any action until a ``covered MSD''
occurred, and a covered MSD was defined differently for them than for
manufacturing and manual handling employers (64 FR 65782-84, 65791). In
this final standard all general industry employers are required, as
specified in paragraph (d), to provide basic information on ergonomics
and the standard to their employees. The employer has no further
obligation until the employee reports an MSD or the signs or symptoms
of an MSD (see paragraph (e)).
OSHA developed its bifurcated proposal because about 60 percent of
all reported MSDs occurred in manufacturing and manual handling jobs,
even though those jobs accounted for less than 30 percent of general
industry employment. Although some commenters agreed that this might
justify a focus on manufacturing and manual handling (Ex. 30-4837),
very few expressed satisfaction with the proposed approach (Exs. 30-
400, 31-78, 32-198, 32-210, 32-461, 500-218, Tr. 3224). Many commenters
said that manufacturing and manual handling jobs should not be singled
out because MSD hazards were present and MSD rates were high in other
jobs and industries (Exs. 30-626, 30-2208, 31-156, 500-218). For
example, participants said that there were many MSD hazards and MSDs in
``any job involving regular computer use,'' therefore, programming,
journalism, data entry, system administration, accounting, analysis,
and insurance jobs should have been included by name (Exs. 30-49, 30-
400, 31-3, 31-12, Tr. 2783, 2932). Likewise, other commenters argued
that custodians and supermarket employees including cashiers, bakery
personnel, baggers and
[[Page 68277]]
stockers should be treated on par with manufacturing and manual
handling jobs because they involved the same hazards (Ex. 31-23, 32-
210; see also Exs. 30-400, 31-78, 32-198, 32-210, 32-461, 500-218, Tr.
3224).
Another group of commenters opposed requiring any employers to take
any type of action before a work-related MSD is reported (Ex. 30-240,
32-300, 30-542, 601-X-1) on the grounds that it was a ``waste of
resources'' to require a basic program for employers with manufacturing
and manual handling jobs that have no MSDs (Ex. 30-542). For example,
one said:
If an employer is in one of the targeted industries but has not
had MSDs, why force the bureaucracy of program implementation upon
him or her * * * (Ex. 30-240).
And while some participants found the definitions of manufacturing
and manual handling jobs adequate to identify whether a particular job
was covered (Exs. 30-3934, 30-4837, 31-38, 31-36, 31-113, 31-173, 31-
205, 31-229, 31-347), most disagreed (Exs. 30-5, 30-46, 30-75, 30-293,
30-1722, 30-3032, 30-3853, 31-4, 31-27, 31-92, 31-106, 31-125, 31-135,
31-211, 31-245, 31-246, 32-78, 32-300, 32-337). Many said that the
definitions, particularly the definition of manual handling jobs, were
too vague (Exs. 30-137, 30-425, 30-1722, 30-3167, 31-77, 31-180, 31-
225, 31-227, 31-248, 31-260, 31-342, 32-78, 32-300, 32-337, Tr. 3255-
56). For example, one commenter said:
The definitions of manufacturing and manual handling jobs
covered by the standard are guaranteed to leave employers as much in
the dark as they are now. What constitutes ``forceful'' manual
handling? How much force must be involved to be covered? Should the
strength capabilities of individual employees be considered? (Ex.
31-211)
Others were concerned that the definitions were too broad and could
include any job or ``almost every employer'' (Exs. 31-135, 31-180, 31-
342).
Many participants told OSHA that they did not know what the terms
used in the definitions (``forceful'' lifting, ``core element,'' and
``significant amount'' of worktime) meant (Exs. 30-46, 30-293, 30-300,
30-3032, 30-3853, 30-4837, 31-187, 31-202, 31-223, 31-260, 31-289, 32-
337, Tr. 3337). For example:
How much is significant? 6 hours per 8-hr shift? 4 hours per 8-
hr. shift? 2 hours per 8-hr. shift? Or 2 2-hr. periods per 8-hr.
shift? (Ex. 30-4837)
Moreover, commenters did not find the examples of manufacturing and
manual handling jobs to be of use:
[T]he examples of jobs are not very helpful. A careless reader
could conclude that the lists were exhaustive and, not seeing the
jobs in this workplace named, decide he had to do nothing. A more
thorough reader would note the disclaimer to the effect that ``* * *
each job must be considered on the basis of its actual physical work
condition * * *'' and correctly conclude that there is no standard
against which to compare the actual physical work conditions'' (Ex.
31-211).
(See also Exs. 30-3032, 30-3853, 32-300.)
OSHA is accounting for these concerns in this restructuring of the
standard's scope and application provisions. This final rule applies to
all general industry employers, but no employer is required to evaluate
or implement control measures or MSD management until an MSD incident
occurs in a job that involves exposure to risk factors at levels
meeting those in the Basic Screening Tool in Table 1. The only
obligation employers have until that point is to provide information
about ergonomics and the standard to their employees. And, as explained
in the discussion of paragraph (d) below, OSHA is providing that
information in Appendices A and B and on its website.
OSHA believes that these changes respond to most complaints about
the scope and application provisions of the proposal. By eliminating
the additional requirements for manufacturing and manual handling
employment, OSHA is eliminating both the need to define those terms and
much of the complexity and vagueness commenters found in the proposal.
By limiting employers' obligations in establishments that have not
experienced MSD incidents, OSHA is also taking account of the facts
that not all manufacturing and manual handling jobs involve more
significant ergonomic hazards than do other general industry jobs, and
that some of those other jobs are also hazardous.
The minimal burden in paragraph (d) for all general industry
employers to disseminate information is necessary so that employees
will know how and when to report MSDs. Given the importance of
providing information at the earliest possible point and the minimal
burden this requirement will impose, OSHA believes that it is
appropriate to apply the initial requirement to all general industry
employers. (The issue of the need for information is discussed in more
detail below in the summary and explanation on paragraph (d)).
II. Industries/Employment/Operations Excluded From the Final Rule
Like the proposal, the final standard does not cover construction,
agriculture, and maritime employment. Although many participants agreed
with this exclusion (Exs. 30-3032, 30-3752, 31-68, 31-160, 31-187, 31-
207, 31-219, 31-245, 31-252, 31-259, 32-300), a number favored
expanding the scope of the rule to cover all industries regulated by
OSHA (Exs. 30-400, 30-428, 30-1294, 32-210, 500-218, Tr. 2859, 3224,
5592, 9080, 13445, 113745, 14002, 17362, 17652). Their arguments fell
into three categories.
First, many of these commenters pointed to the high number and rate
of MSDs, especially back injuries, occurring in industries excluded
from the proposed rule (Exs. 30-626, 30-2208, 31-156, 31-183, 31-225,
500-218). The Mount Sinai Center for Occupational and Environmental
Medicine Construction Hygiene and Ergonomics Program (CHEP) pointed out
that, aside from the transportation industry, construction has the
highest rate of back injury of any industry:
Every year 1 in 100 construction workers will miss between 7 and
30 days of work due to back injuries * * * At one surveyed worksite
all wallcoverers who had worked 15 years or more in the trade had
required surgery or medical intervention for problems including
carpal tunnel syndrome, pain in the neck, shoulder and back, and
knee problems (Ex. 31-183).
Some commenters also favored expanding coverage because they said
that employees in construction, agriculture and maritime are exposed to
the same risk factors and MSD hazards as are employees in general
industry (Exs. 30-626, 31-22, 31-183, 31-263, 31-303, 500-218). They
said there was no reason to distinguish coverage by industries if the
rule was also incorporating an MSD trigger because, as one put it,
``[a]n injury is an injury, and I have no doubt there are always ways
to handle these jobs just as safely as any others'' (Ex. 31-19).
A number of commenters said that at least jobs in construction,
agriculture and maritime that are essentially the same as in general
industry, primarily manual handling jobs, should be added to the rule
(Exs. 31-14, 31-19, 31-65, 31-98, 31-192, 31-219, 31-307, Tr. 2850-51).
For example:
Many jobs, especially manual handling jobs, have similar if not
identical hazards to that of general industry. If an employee is
performing lifting that requires excessive force it does not matter
in which industry he is performing the lifting. The actions to
reduce the risk of injury would be similar for each industry (Ex.
31-307).
See also (Ex. 31-19; 31-65).
Another group of participants said that the record contains
sufficient
[[Page 68278]]
evidence on the availability and effectiveness of ergonomic
interventions to support expanding the rule to the construction,
agriculture and maritime industries (Exs. 31-183, Tr. 2849-51, 7478-80,
7482, 7485, 15761-71, 17540-41, 17561). Members of this group pointed
to a number of articles and studies about effective controls in those
industries, especially construction (Tr. 15761-71). For example, Nancy
Clark, co-director of Mt. Sinai CHEP, said:
Practical interventions are available for many identified risk
factors. Many workers devise quick fix, homemade solutions to reduce
the impact of musculoskeletal stress and promote self-preservation.
They use team lifting, mechanized material handlers when available,
floor padding for kneeling and standing on, stacking supplies to
bring the work closer, and alternating work tasks or body position
(Ex. 31-183)
Scott Schneider, director of occupational safety and health for the
Laborers Health and Safety Fund of North America, testified:
[T]here have been many tool manufacturers who have jumped on the
ergonomic bandwagon and hired ergonomists to develop better and
safer tool designs, from ergonomic hammers with more comfortable
shock-absorbing handles to pliers with soil handles and spring
returns to reduce the stress of opening them after each use. The use
of portable power tools has increased dramatically in construction
as batteries have gotten lighter and more powerful. Cordless screw
guns have become commonplace in construction over the past few
years, reducing the repetitive use of screwdrivers by hand and the
force that had to be used. There are simple pieces of equipment,
like drywall carrying handles, which I have here, and a mortar-pan
stand to raise the height of the pan, which cost less than $50 and
can make the work much easier. A D-handle attachment for a shovel,
which I have here, costs less than $20, and has been shown to reduce
awkward postures during shoveling. There are simple carts for moving
glass or drywall, vibration-dampened jackhammers and equipment for
moving them on and off of trucks. (Tr. 15762-63).
These commenters also pointed out that many of the controls used in
general industry, such as manual handling aids, were applicable or
readily adaptable to construction, agriculture and maritime industries
(Ex. 31-183). Moreover, tool and equipment interventions are becoming
more widely available ``as manufacturers are responding to the need for
better ergonomically designed tools'' (Ex. 3-183; see also Tr. 15761-
62, 17561).
Finally, several participants were concerned that OSHA's stated
intent to promulgate an ergonomics standard for the excluded industries
in the future would never come to fruition:
OSHA's standard-setting history during the past 30 years raises
serious doubt that workers excluded from this standard will ever
have legal protection from MSD hazards. When OSHA has excluded
workers from coverage under a promulgated standard, only in two
cases has the Agency followed up to extend coverage to those
workers--Hazard Communication and Construction. But those actions
were as the result of a court decisions and order (hazard
communication) * * * or legislative mandate by Congress (lead) (Ex.
500-218, p. 132-33).
These participants said that if OSHA does not cover construction,
agriculture and maritime in the current rulemaking, the Agency should
begin further rulemaking immediately and even establish a deadline for
completing that project (Exs. 30-400, 30-576, 30-4837, 31-12, 31-263).
OSHA is aware that there is significant evidence in the record
indicating that work-related MSDs exist in operations and employment
beyond general industry (Exs. 31-183, 500-218, Tr. 7475, 7484-85,
17538-39). Indeed, the problem appears to exist in virtually every
industry. Nonetheless, for several reasons OSHA believes its decisions
to regulate MSD hazards through sequential rulemaking proceedings, and
to limit the first proceeding to general industry, is appropriate and
supported by the record.
A primary basis for the Agency's decision to limit the scope of
this rulemaking to general industry is that most of the available
evidence and data relating to ergonomic interventions addresses general
industry. For example, the vast majority of the studies reviewed in
both the NIOSH and NAS reports pertained to general industry (Exs. 26-
1, 26-37). Similarly, the majority of case studies on the effectiveness
of ergonomics programs and control interventions that OSHA had gathered
focused on general industry (64 FR 65954-75). Although some
participants submitted evidence on ergonomics programs and controls in
the excluded industries, mostly in construction (Exs. 32-339-1-25, 32-
3888, 38-65, 38-66, 500-210), most of the available evidence continues
to pertain to general industry jobs, operations and workplaces.
If it included construction, agriculture and maritime within the
scope of this rule, OSHA would have had to delay issuing the rule for
general industry while it gathered and analyzed the necessary evidence.
Because it is likely that the rule would have a significant impact on
small employers in construction, agriculture and maritime, OSHA would
also have had to convene a small business review panel pursuant to
SBREFA. Further, in order to include construction, agriculture, and
maritime in its final rule, OSHA, in the interest of fair notice, would
have had to amend the ergonomics proposal or re-propose to include
these industries and hold additional hearings. Expanding the rule to
cover agriculture, construction and maritime would seriously delay
addressing the urgent need for protection for general industry
employees, who work in the jobs in which more than 90 percent of MSDs
are reported.
In addition, as the proposal pointed out, work conditions and
factors present in agricultural, construction and maritime employment
often differ from those in general industry. OSHA listed a number of
aspects of construction work to illustrate this statement (64 FR
65787):
They consist primarily of jobs of short duration,
Employees work under a variety of adverse environmental
and workplace conditions (e.g., cold, heat, confined spaces, heights),
At non-fixed workstations or non-fixed work sites,
On multi-employer work sites,
They involve the use of ``day laborers'' and other short-
term ``temporary workers,'
Involve situations in which employees provide their own
tools and equipment, and
Involve employees who may be trained by unions or other
outside certifying organizations, rather than by the employer.
OSHA did not mean to imply that the mere existence of any of these
factors, alone or in combination, would be enough to justify excluding
an entire industry from the rule. This fact was apparently not clear to
some commenters, however, who argued that the presence of some of the
listed factors in their industries meant that they too should be
excluded from the standard (Exs. 30-297, 30-626, 31-147, 32-234, 32-
300). For example, Broccolo Tree and Lawn Care Inc., pointed out that
landscaping jobs involve short-duration tasks and no fixed workstations
(Ex. 31-147). The National Solid Waste Management Association (NSWMA)
said that its employees are also exposed to adverse environmental
conditions and work at non-fixed work sites (Ex. 32-234, p. 6-7).
In the proposal, OSHA discussed its discretion to set appropriate
rulemaking priorities, and to promulgate standards applicable to less
than all of American industry. 64 FR 65786-65788. General industry
accounts for more than 90 percent of the more than 620,000 LWD MSDs
reported each year. By
[[Page 68279]]
promulgating a standard addressing general industry first, OSHA is
giving ``due regard to the urgency of the need'' for a standard to
protect general industry employees. 29 U.S.C. 655(b)(7). OSHA has thus
ensured that the greatest number of MSD hazards will be addressed by
this final rule, while the Agency determines appropriate regulatory
approaches for other industries. For example, OSHA has been working
closely with NIOSH on a study of ergonomic hazards and solutions in the
maritime industry. In addition, OSHA recently published an ergonomics
best practices guide for the construction industry on its Web page.
OSHA has also provided training grant money targeted to ergonomic
hazards in the construction industry.
OSHA intends to develop ergonomics rules that can be tailored to
the conditions that are unique to the firms in these industries. OSHA
agrees with commenters who have said that the experience the Agency
gains from this first phase will provide valuable assistance in
developing an effective ergonomics rule for the construction,
agriculture, and maritime industries (see, e.g., Ex. 31-252).
As noted earlier, OSHA has decided that the final standard should
not cover work performed by persons employed incidentally to or in
support of construction, agriculture and maritime operations,
regardless of what type of activity they perform. To illustrate, the
standard does not cover employees of a residential home building
company performing office work in support of construction activities,
even though office work is a general industry operation under other
OSHA standards. Similarly, the final rule does not cover janitorial
workers employed by a shipyard or employees performing regular
maintenance on power industrial trucks in a marine terminal. Applying
the rule to general industry jobs of a construction employer (the
office manager of a construction company, for example) would present
the employer with logistical difficulties. Requiring construction,
agriculture and maritime employers to set up an ergonomics program for
the few general industry employees performing ancillary functions in
their workplaces would not be an efficient allocation of safety and
health resources. Several commenters have told OSHA that it is most
efficient to set up an ergonomics program on a company-wide basis (see,
e.g., Exs. 26-1370). Doing so allows employers to implement program
elements such as providing employee information and training more
efficiently.
B. Railroad Work
Paragraph (b)(3) states that this standard does not cover railroad
work. Although some railroad operations are normally covered by OSHA
general industry standards, other railroad work is regulated by the
Federal Railway Administration (FRA) and not by OSHA. 29 U.S.C.
653(b)(4). In addition, the Preliminary Economic Analysis indicated
that the standard would not cover any railroad employment, and this
statement caused some uncertainty among affected parties as to the
Agency's intent (Ex. 28-1, chapter II, p.3).
In a May 23, 2000 Federal Register notice (65 FR 33263), OSHA
provided an analysis of the economic impacts of the proposed rule on
railroads. On July 7, 2000, OSHA also held a supplemental hearing on
this economic analysis, in which the Association of American Railroads
(AAR) participated. AAR's comments and testimony, however, highlighted
the complexity of the OSHA/FRA jurisdictional issues (Ex. 703-3, Tr.
18272, 18313-16, 18321). OSHA has determined that it needs to gather
additional information and conduct further analysis on these issues
before it can decide whether and how to address ergonomic hazards in
the railroad industry. Therefore, OSHA has decided not to cover any
aspect of railroad work at this time.
C. Other Exemptions Requested.
A number of other rulemaking participants also requested that
certain jobs, industries or employers be excluded from this rule (e.g.,
ambulances, landscaping, transfer and storage, petroleum and chemical
industries, forging industry). Many requesting exemptions did not
provide any reasons why they should be excluded (see, e.g., Exs. 30-
303, 30-491, 30-2102, 30-3005, 30-4439, 30-4444, 30-4598, 601-X-1163,
601-X-1438). Some merely said they had ``many work conditions and
factors present in the industries OSHA has chosen to exempt,'' but did
not discuss either what those factors were or why they supported an
exclusion (see, e.g., Exs. 30-2348, 30-3005, 30-3186, 30-3311 30-3462,
30-3482, 30-3582, 33-1181). OSHA does not find any basis for excluding
those industries from this rule.
A few requests that included more discussion supporting an
exemption are discussed individually:
1. Solid Waste Management
The National Solid Waste Management Association (NSWMA) urged OSHA
to exempt the trash collection industry from the standard (Ex. 32-234).
NSWMA said an exemption was warranted because, like the construction
industry, its working conditions include non-fixed worksites, limited
supervisory oversight, adverse environmental conditions, and high
employee turnover. In addition, according to NSWMA, ``uncontrollable''
factors, such as variable load weights, municipal regulations, and its
members' lack of control over the location of the garbage they collect,
also support an exemption. Finally, NSWMA also argued that there is
little available information about health effects and effective
solutions in the industry. The West Coast Refuse and Recycling
Coalition and the Municipal Waste Management Association (MWMA),
representing municipal solid waste agencies in larger cities, requested
an exemption for some of the same reasons (Ex. OR 323, Tr. 17972-73).
Although OSHA recognizes that employers in this industry face
particular challenges in implementing some types of ergonomic controls,
it does not believe that the arguments presented compel exemption of
the solid waste and recycling industry from this standard.\1\
---------------------------------------------------------------------------
\1\ A number of participants who argued that compliance with an
ergonomics standard would be infeasible in their industries also
submitted examples of industry ``best practice'' guidelines and
similar recommendations to the record. The participants said that
even these ``best practices'' do not result in enough of a reduction
in employee exposure to MSD hazards that further MSDs are
``unlikely.'' OSHA recognizes that some industries will not be able
to control exposures completely. OSHA also, however, approves of the
steps these industries are taking to control MSD hazards to the
extent they can, and commits to working with the industries in the
future. This type of arrangement will help provide employees in
these industries with as much protection as possible, while
reassuring their employers that OSHA understands the limits of their
capabilities.
---------------------------------------------------------------------------
As noted above, OSHA does not believe that the fact that some
aspects of an industry's working conditions are similar to some of the
conditions in exempted industries necessarily warrants exempting those
industries. In any event, the working conditions in the solid waste
industry differ significantly from those in construction. In the solid
waste industry employees repeat the same routes every week or more
frequently. The route is a fixed worksite that the employee gets to
know. Because the route is fixed, the employer is able to anticipate
and plan for the hazards that the employees might encounter. Likewise,
the fixed routes enable employers to plan for how the changing seasons
will affect collection on the route. NSWMA's testimony that a ``vast
majority * * * if not all'' of its member
[[Page 68280]]
companies have safety and health programs that include addressing
ergonomic hazards on a ``day to day'' basis indicates that most
industry employers already are taking these steps (Tr. 18074).
Although NSWMA argued that high turnover in the industry supports
exemption in the same way that the use of ``day laborers'' in the
construction industry does, NSWMA did not provide any evidence on
turnover rates in its industry, or on how those rates compare to other
industries this rule covers. Nor did NSWMA explain why high turnover
rates pose the same issues as day laborers. Other solid waste
associations and employers did not indicate that high turnover rates
are a problem in the industry. The solid waste industry has the
opportunity to train its workers; in fact NSWMA and MWMA testified that
their members already provide training (Tr. 13404-405, 18079). It
explained that this training is the most effective way to deal with the
fact that its workers are often unsupervised:
MR. BEDERMAN: No, the most important way to monitor this type of
thing is actually not to monitor it, but * * * actually good
training (Tr. 18079).
The record also does not support industry claims that solid waste
industry employers have little control over their employees' working
conditions. For example, NSWMA said that, because of municipal
ordinances, its members have no control over the weight and location of
the garbage they collect and that municipalities were ``very hesitant''
to make changes (Ex. 32-234-2, Tr. 18041). But 60 percent of
residential collection is privately controlled (Tr. 18046). For the 40
percent of trash collection that is under the control of
municipalities, as noted below, the testimony of NSWMA and MWMA suggest
there is not a significant problem.
NSWMA testified that a majority of municipalities have already
implemented container requirements (Tr. 18071; see also Tr. 13402).
Both NSWMA and MWMA testified that the growing trend is toward
requiring customers to place garbage containers at the curbside (to
eliminate the need for employees to carry heavy containers) and
limiting container size (to reduce injury associated with heavy
lifting) (Tr. 18070-71, 13402-3; see also Tr. 12019). Bruce Walker, of
Portland's solid waste and recycling agency, said that such weight
limits had been positively received in that city (Tr. 12014-15). NSWMA,
MWMA and Mr. Walker also said that employers are instructing their
employees not to lift containers that exceed the weight limits (Tr.
12014, 13404-06, 18073). In addition, container size and location
issues are regularly addressed as part of contract negotiations between
private collectors and municipalities (Tr. 18041). All of this evidence
suggests that solid waste employers should not have difficulties
continuing to negotiate contracts that will assist them in complying
with this final standard.
And contrary to NSWMA's argument, the record contains abundant
evidence on MSD hazards and ergonomic solutions in this industry (Ex.
32-234-2). The industry recognizes that lifting heavy loads creates a
hazard for employees (Tr. 13406, 13413, 18009). Industry
representatives testified that their workers experience work-related
MSDs, particularly MSDs of the lower back (Tr. 13379, 13396, 13412,
18009). In fact, NSWMA submitted a manual of recommended ergonomic
practices developed by Environmental Industry Associations (EIA),
NSWMA's parent organization, that identified lifting bulky loads and
twisting and carrying loads as risk factors for the industry and
identified back pain, hernias and strains, sprains and tears as common
MSDs in the industry (Ex. 32-234-2-1). EIA also recommended that
employers establish ergonomics programs for trash collection and
recycle operations (Ex. 32-234-2-1).
The record also includes evidence on a wide range of controls that
are successfully in use in the industry. The EIA manual on ergonomic
practices said the industry ``has many options'' for addressing
ergonomic hazards, including weight limits built into residential
contracts, the use of lifting devices, and training (Ex. 32-234-2-1).
The record indicates that the following controls are also in use in the
industry:
Mechanical container lifts,
Limits on container size and weight and requirements for
container handles,
Carts, dollies and other mechanical assists for pushing,
carrying and lifting containers,
Collection trucks designed for use in narrow alleys and
streets to eliminate carrying containers long distances,
Changes in municipal collection regulations to reduce
lifting hazards (e.g., curbside service, container size and weight
limits, reduction in loads through increases in collections per week,
separate collections for large bulky items),
Training in proper lifting techniques,
Work practice controls (e.g., training not to lift
overweight loads),
Changes in compensation systems to eliminate incentives
for hazardous work speed and lifting (Tr. 12017, 13402-06, 17969,
18212).
John Legler, of Waste Equipment Technology Association, added that
garbage trucks are being retrofitted with mechanical lifts ``quite
regularly'' (Tr. 18012-13). Bruce Walker, of Portland's residential
solid waste and recycling agency, testified that enforcing container
weight limits had been established had led to low MSD rates (Tr. 11968-
70).
This evidence not only does not support exemption, it is clear
evidence that effective ergonomic programs and controls are
technologically and economically feasible for the industry as a whole.
OSHA recognizes that some of the hazards facing waste industry
employees cannot be eliminated completely. But the standard only
requires employers to control MSD hazards ``to the extent feasible.''
It expects NSWMA's member companies to continue to implement the type
of safety programs they are already using, and to continue improving
those programs as knowledge and technology advance.
2. Utility Workers
Utility companies asked OSHA to exempt utility line workers and
power plant maintenance workers from the standard for two reasons.
First, they pointed out that line workers face some of the same
conditions as construction, agriculture and maritime (e.g., adverse
environmental conditions). They also argued that these jobs involve
both general industry and construction activities because utility line
workers not only maintain and repair utility lines, a general industry
activity, but also they install, alter, and improve lines, activities
which are governed by OSHA construction standards (Exs. 30-3853, 32-
300, Tr. 2893-95). Edison Electric Institute (EEI) testified:
As you know, a line worker working on a pole may at one moment
be engaged in what is considered to be construction work under
1910.12(b) and under 1926(b) and at the next moment be engaged in
what is considered to be general industry work under 1910.269. That
is to say that if a person is doing work for the improvement of the
facility, that is construction as defined by OSHA and the Review
Commission. And if not, then general maintenance (Tr. 97-98).
EEI also pointed out that it would not be practical for its employees
to be covered by the standard for only some of their tasks:
EEI recommends that OSHA clarify that to perform a job hazard
analysis means to analyze a job, not a task. A job may not involve
only one task, but may involve multiple tasks depending upon the
nature of
[[Page 68281]]
the work on that given day (Ex. 32-300, p. 29).
OSHA agrees with EEI that determining whether a job exposes an
employee to an MSD hazard requires looking at all of the tasks and
activities that comprise that job. That is what this job-based standard
requires. But as EEI itself pointed out, some utility companies already
have programs in place for analyzing and controlling MSD hazards (Ex.
30-2725, Tr. 2384, 2396-98). Presumably, these companies analyzed the
entire jobs of utility line workers and power plant maintenance
personnel rather than just the general industry tasks in those jobs.
None of the utility companies indicated that construction activities
constitute the primary operations of utility companies. Thus, including
all rather than part of the tasks of these jobs in the ergonomics
program this rule requires should not impose a substantial additional
burden for utility companies. OSHA requires utility companies to
protect their employees, including those that spend part of their days
performing construction work.
3. Building Materials Distributors
A number of building materials distributors argued that they should
be exempted because a large portion of their business involves
delivering supplies to construction sites and to various places on
construction sites (Exs. 30-541, 30-4267, 30-4351). Because of this,
they said, their employees are exposed to the same ergonomic risk
factors and adverse working conditions that justified an exclusion for
the construction industry. OSHA has never excluded general industry
employers from standards because they provide equipment or materials
for exempted industries. Thus, while marine terminals are excluded from
this standard, manufacturers and transportation companies that deliver
new equipment to marine terminals are still covered.
In addition, almost every comment received from building materials
distributors indicated that the industry has already taken substantial
steps to control MSD hazards. For example, Panther Building Materials,
Inc., said that it provides hydraulics crane, carts and other material
handling equipment in order to safely deliver supplies (Ex. 30-4351).
It also provide at least two employees per truck crew in order to
minimize carrying.
4. Home Health Care.
The American Association for Homecare (AAHomecare), asked that the
home health care industry be exempted from the standard because home
health care employees perform work in private homes that are not under
the employer's control.
AAHomecare said its industry should be exempted because OSHA has
indicated that it will not impose OSHA standards on private homes,
unless they are being used as part of the ``manufacturing process''
(Ex. 30-3862). But the OSHA policy AAHomecare refers to only addresses
work that employees perform in their own homes.
AAHomecare also argues that the court in the Bloodborne Pathogens
decision (American Dental Association. v. Martin, 994 F.2d 823 (7th
Cir. 1993)), held that the OSH Act ``does not authorize OSHA to impose
work-site related standards on home work sites that are not under the
employers control'' and that the Agency's directive limiting the
application of the Bloodborne Pathogens rule at home-based worksites
(CPL 2-2.44D) should apply to this standard as well (Ex. 30-3862). But
the Seventh Circuit did not make as broad a holding as AAHomecare
suggests. The court said only that OSHA has an ``obligation to consider
such questions and the general issue that they present before
imposing'' a standard. American Dental Assn., 984 F.2d at 830.
In this case, OSHA is considering these issues and addressing them
here. In general, employers sending their employees to work at sites
they do not control are required to do everything within their control
to protect those employees, but will not be held liable for the
existence of conditions they cannot control. Thus home health care
agencies must provide their employees with the information required by
paragraph (d), provide those employees with MSD management where an MSD
incident occurs in a job that meets the levels in the Basic Screening
Tool, and perform job hazard analyses when necessary. In addition, they
must comply with the other programmatic elements of the standard, in
particular providing the employees with necessary training and
equipment to minimize ergonomic hazards.
But employers' control obligations will be limited by the control
they have over their employees' actual working conditions. Thus an
employee who is expected to move patients in their own homes should be
taught how to do so as safely as possible. For example, evidence was
submitted to the record that portable lifting devices and other control
measures are available for use in home settings (Ex. 37-4, Tr. 11743-
45). According to witnesses, some portable lifting devices have been
designed especially for home settings (Tr. 11743-45). The witnesses
said that these devices allow mechanical transfer in and out of bed,
onto a toilet, and even into a tub (Tr. 11745). Other control measures
described in the record include friction reduction sheets, gait belts,
toilet and shower chairs, slide boards, and convertible chairs and
wheelchairs (Ex. 37-4). To the extent these controls are feasible, and
employers find them to be effective, employers could provide them to
their home health worker employees. But an employer is not expected to
change the configuration of a patient's bedroom or bathroom, although
it must provide the worker with the training and controls necessary to
allow him or her work as safely as possible in that location.
5. Small Businesses
A number of commenters said OSHA should exempt small businesses
because compliance would be too burdensome (Ex. 30-3167, Tr. 3126-27,
3332). They said that small businesses do not have the knowledge or
resources to hire outside experts to help identify and address MSD
hazards (Tr. 3127). They also said that MSD rates were low for small
businesses (Exs. 30-3167, 600-X-1, Tr. 3332). National Small Business
United (NSBU) said that for the majority of small businesses the
occurrence of an MSD was rare (Ex. 30-3167). By contrast, another
participant (Ex. 26-1370) at OSHA's stakeholder meetings for Ergonomics
Program Standard Development specifically supported the inclusion of
small employers in the rule, saying that the rule was particularly
needed in these facilities because they were less likely already to
have either an ergonomics or a safety and health program (Exs. 26-
1370).
OSHA considered whether to apply alternative regulatory provisions
to small employers as part of the analysis required by SBREFA and the
Regulatory Flexibility Act (64 FR 66040-53). OSHA does not believe the
record supports such an approach for small business. First, employees
who work for small businesses are experiencing work-related MSDs, and
they need the protection this standard will provide. According to BLS,
employees in establishments of all sizes have reported MSDs that are
serious enough to involve days away from work.
In a number of industries comprised predominantly of small
businesses, the risk of MSDs is particularly high. This is especially
true in the health care industry. For example, many medical
sonographers are employed by small businesses. Joan Baker, of the
Society of Diagnostic Medical Sonographers,
[[Page 68282]]
testified that the MSD prevalence rate among sonographers exceeds 80
percent and that the frequency and severity of these MSDs appears to be
increasing (Tr. 11881-82). Dr. Linda Morse, chief of occupational
medicine at Kaiser San Francisco, said that the injury rate among
ultrasound technicians in Northern California was almost 100 percent
(Tr. 15045). Many nurses, nurses' aides, and orderlies are also
employed by small businesses, including small nursing homes and small
health care agencies. According to BLS, in 1996 about 15 percent (more
than 103,000) of all MSDs resulting in days away from work were
reported by health care workers. In addition, the American Nurses
Association and the Service Employees International Union, among
others, testified that the occurrence of MSDs among home health workers
is particularly high (Exs. 32-274-1, 502-215).
OSHA does not believe this standard will be too burdensome for
small businesses. The record shows that many small businesses have
successfully implemented ergonomics programs (see, e.g., Exs. DC 66,
500-208-3, Tr. 17350-17355). These programs have paid for themselves in
terms of reductions in medical costs, lost workdays and product reject
rates (Tr. 17354). Moreover, if small businesses have low rates of
MSDs, the obligations for those employers will be commensurately small
(Ex. 30-3167). The only obligation that many small employers will have
is a one-time requirement to provide basic information to their
employees. And these employers can satisfy that burden by copying,
distributing, and posting the information sheets in Appendices A and B.
The record shows that small businesses are easily able to get the
information they need to address MSD hazards. A number of organizations
have developed and are providing model programs, checklists, ``best
practices'' guides and control information to small businesses (see,
e.g., Exs. 32-234-2-1, OR 351). A number of organizations have
developed and are providing model programs, checklists, ``best
practices'' guides and control information (Exs. 32-234-2-1, OR 351 ).
For example, the American Dental Association and state affiliates, such
as the Oregon Dental Association, have developed and disseminated
information on ergonomics for its members and held a ``Dental
Ergonomics Summit Conference'' this year (Ex. OR 351). A number of
trade associations are also providing ergonomics training for small
businesses (Ex. 37-25, OR 351). For example, Suzanne Rodgers, an
ergonomist with 32 years of experience assisting a wide range of
companies in addressing MSD hazards, said that she has provided
training to small businesses at various conferences organized by the
Chamber of Commerce (Ex. 37-25).
There are also other sources of information and assistance for
small employers. OSHA and NIOSH provide free hazard evaluation services
for small employers. OSHA will be providing additional information in
the appendices to this final rule and other materials on the OSHA
Webpage (www.osha.gov). Many other Internet sites also provide free
ergonomics information.
III. Other Scope and Application Issues
A. Jobs Involving Both General Industry and Non-General Industry Tasks
Several commenters raised questions about whether this standard
applies when an employee's job involves both general industry and non-
general industry activities (Exs. 30-3853, 32-300, Tr. 2893-95). As
explained above in reference to utility workers, because this is a job-
based standard, OSHA intends employers to include all employees who
perform general industry work within this standard, even if those
employees also perform some work that may be classified as
construction, agriculture, or maritime. Thus, employers engaged in
landscaping or lawn and garden services, a general industry
classification, are covered by this standard even if their employees'
jobs include some harvesting of sod or trees, an agricultural
classification. On the other hand, nurseries and tree farms, which are
agricultural classifications, need not comply with the standard even if
their employees perform some minor landscaping or horticultural
services. Comments by the AFL-CIO best sum up the need for defining the
application of the standard in this way:
Since this is a job-based standard, it is important that jobs in
fact are covered. To apply the standard in some aspects of a job and
not others would leave workers without protection and make
compliance and enforcement confusing and difficult (Ex. 500-218, p.
133).
In addition, as stated in the discussion of utility line workers,
the only way an employer can determine whether a job exposes an
employee to an MSD hazard is to look at all the tasks and activities
that comprise that job. Eliminating some tasks from this analysis may
prevent identification of risk factors that are causing or contributing
to the hazard. If employers do not have that information, the controls
they implement may not be successful. Therefore, in order to ensure
that an employee is protected from MSD hazards while performing the
general industry tasks, it may be necessary to control risk factors for
the job as a whole.
B. Multiple Employer Worksites and Contract or Shared Employee
Situations
A number of participants asked how the standard would apply at
multi-employer worksites. Similar situations arise under many
standards, and OSHA has published a ``Multi-Employer Citation Policy''
that discusses the allocation of responsibility among various
categories of employers. CPL-0.124 (Eff. Dec, 10, 1999). OSHA has not
historically discussed the operation of this policy in rulemaking
documents, viewing it as an enforcement issue. In a challenge to OSHA's
Bloodborne Pathogens standard, however, the United States Court of
Appeals for the Seventh Circuit held that, where parties to a
rulemaking raise issues about the application of the standard in this
circumstance, OSHA should discuss the application of this policy.
American Dental Ass'n. v. Martin, 984 F.2d 823 (7th Cir. 1993). Such a
discussion is particularly useful with respect to some of the issues
raised by this standard.
Under the multi-employer worksite policy, employers are generally
required to take whatever steps are within their power to protect their
own employees, and also to abate hazards within their control when
other employees are exposed to those hazards. This means that an
employer whose employees are working at a location controlled by
another employer, for example a temporary services agency, must provide
its employees with the information required by paragraph (d). Both
employers will need to know if an employee reports an MSD, and must
implement measures to share this information. They should consult to
determine whether the report qualifies as an MSD incident under this
standard, but the employer with control over the workplace must screen
the job to determine whether further action is required. If so, the
employer with control over the workplace must also implement the
program elements required by this standard. And if such an employer
hires a temporary worker to work in a job for which an ergonomics
program under this standard is already in place, that employer must
provide the temporary employee with any necessary training. The
employing agency, however, will necessarily be responsible for
providing the employee
[[Page 68283]]
with any necessary MSD management, including WRP. OSHA believes that
this is basically how businesses are currently operating. OSHA expects
that they may pay more attention to these issues and address them
explicitly in their contracts after the standard is in effect.
C. United States Postal Service
Questions were also raised as to the effect of this standard on the
United States Postal Service. In 1998, Congress amended Section 3(5) of
the OSH Act to include the United States Postal Service within the
Act's definition of employer. 29 U.S.C. 652(5). Postal Service
Enhancement Act, P.L. 105-241. As a result, this standard applies to
all USPS operations that are not construction, agriculture or maritime
operations.
D. Municipalities
A number of municipalities asked whether the standard applies to
local governments. States and their political subdivisions are not
employers under the OSH Act, and they are not covered by this final
rule or any other federal OSHA standards. However, the 23 States and 2
Territories with approved State Plans are required by Section 18(c)(2)
of the OSH Act to issue standards that are ``at least as effective'' as
Federal standards. 29 U.S.C. 667. Therefore, State Plan States must
adopt ergonomics program standard within six months of the publication
of this standard. Under Section 18(c)(6), State Plan States must apply
such standards to State employees and to employee's of the State's
political subdivisions. (See State Plan States section of this preamble
for the list of State plan States.)
Industries and Jobs This Standard Covers
Agricultural services
Soil preparation and crop services, including crop
planting, cultivating and protecting
Crop harvesting
Veterinary services
Lawn and garden services
Ornamental shrub and tree service
Tree trimming
Landscaping and horticultural services
Oil and gas drilling/extraction operations
Health care employees
Truck driving
Office workers employed by general industry
establishments
Office workers employed by agricultural services
establishments
Utility line operations including maintenance, repair,
installation, construction, alteration and improvement operations
Power plant maintenance operations including repair,
alteration and improvements
Boat building and repair
Airline baggage handlers
Airline reservation and ticket agents
Airline maintenance crews
Railroad equipment building and rebuilding
Maintenance of equipment or structures
Forestry services
Forestry nurseries and gathering of forest products
Commercial fishing
Fish hatcheries and preserves
Hunting and trapping
Game propagation
State and municipal employees (in State Plan States)
performing general industry operations
U.S. Postal Service
Federal government employees performing general
industry operations
Industries and Jobs This Standard Does Not Cover
Construction employment and operations
Agriculture employment and operations
Farm labor and management services
Livestock and animal specialty services
Maritime employment and operations
Ship building and repair
Longshoring
Office workers employed by construction, agriculture or
maritime establishments
Maintenance workers employed by construction,
agriculture or maritime establishments
Work at the employee's own home
Railroad work
Railroad terminal and switching
Airline attendants
Airline pilots
Paragraph (c)--How Does This Standard Apply if I Already Have an
Ergonomics Program in Place When the OSHA Ergonomics Program Standard
Becomes Effective?
Paragraph (c) of the final standard is a grandfather clause, which,
under certain conditions, permits an employer who has already
implemented and evaluated his or her ergonomics program by the date on
which the final rule becomes effective to continue that program instead
of complying with the OSHA standard. This paragraph permits employers
to do this only if the program: is in writing, contains the core
elements of basic ergonomics programs, and is demonstrably effective.
The criteria for judging whether an employer's program adequately
addresses the core elements are contained in paragraphs (c)(1)(i)
through (v). Examples of criteria for judging the effectiveness of the
program are contained in paragraph (c)(1)(v). Paragraph (c)(2) requires
that, within 1 year of the standard's effective date, grandfathered
programs have in place an MSD management policy that meets the
requirements of paragraphs (p) through (s) of the final rule. Final
paragraph (c)(3) denies grandfather status to employers who have
policies or procedures that discourage employees from participating in
the program or reporting signs or symptoms of MSDs or the presence of
MSD hazards in the workplace.
In the final rule, OSHA is requiring that grandfathered programs be
in writing. The final rule's grandfather clause requires the employer
to demonstrate program effectiveness and, like the proposal, to have a
program that includes the core elements of effective programs. The
Agency believes that this can best be accomplished with a written
program. Further, both OSHA and the employer will find compliance with
the grandfather clause easier to demonstrate if the program is written.
By ``written,'' OSHA also intends that the program can be maintained
electronically.
Final paragraph (c)(1) requires grandfathered programs to include
the core elements of effective ergonomics programs: management
leadership and employee involvement; job hazard analysis and control;
training; and program evaluation. This paragraph also indicates the
subelements within each core element that OSHA believes are essential
to the proper functioning of that core element. These subelements are
stated broadly. For example, a subelement of management leadership
(paragraph (c)(1)(i)) that OSHA considers essential is the
establishment of an effective reporting system that permits employees
to report the signs and symptoms of MSDs and to receive prompt
responses to their reports. The employer's program must include all of
the subelements of the core elements to qualify for grandfather status.
The following discussion explains the subelements comprising each
of the core elements. Employers are free to include additional elements
or subelements in their program, and doing so will not interfere with
the program's grandfather status, provided that the program includes
the core elements identified by paragraphs (c)(1)(i) through (v), and
the subelements associated with them.
The proposed rule would have required an existing program to meet a
``basic obligation'' provision for each core element. Basic
obligations, which were intended to capture the essence of the more
detailed subelements proposed for each core element, were proposed for
each program element. Table 1 compares the proposed rule's basic
obligations sections with the corresponding subelements of the final
rule's grandfather clause. The following discussion also explains
OSHA's
[[Page 68284]]
reasons for revising the basic obligations proposed.
Final paragraph (c)(1)(i) states that grandfathered programs must
include management leadership and identifies the subelements for that
core element. Employers are required to demonstrate management
leadership of their ergonomics program through the following
subelements: an effective MSD reporting system and prompt responses to
employee reports, the assignment of clear program responsibilities, and
regular communication with employees about the ergonomics program.
OSHA's experience has shown that, to be effective, management
leadership must be active rather than passive. Leadership that is
limited to a ``paper program'' with written policies and procedures but
is not translated into practice by management would not meet the intent
of this provision. On the other hand, management leadership that is
known throughout the organization because of management's active
engagement in the ergonomics process and appropriate follow-through on
commitments would clearly fulfill this intent. The final rule's
management leadership subelements are equivalent to those of the
proposed basic obligation for this core element, except that OSHA has
added ``regular communication with employees'' and ``prompt'' responses
to reports to the subelements of the final rule's grandfather clause.
The Agency has added these subelements to make sure that management
leadership is responsive to employee reports and that management's
commitment to the ergonomics program is communicated from top
management down to the employees performing the work and implementing
the program. Taken as a whole, OSHA believes that the subelements in
final paragraph (c)(1)(i) will ensure that grandfathered programs have
active rather than passive management leadership.
Final paragraph (c)(1)(ii) requires that grandfathered programs
include employee involvement, as demonstrated by the early reporting of
MSDs and active employee involvement in the implementation, evaluation,
and future development of the employer's ergonomics program. OSHA has
vigorously advocated employee participation in workplace safety and
health issues for many years and is pleased by the growing recognition
of the importance of employee participation on the part of private-
sector companies, trade associations, safety and health professionals,
and employees themselves. OSHA supports employee participation because
employees have the most direct interest in their safety and health on
the job, they have an in-depth knowledge of the tasks they conduct at
the worksite, they often have excellent ideas on how to solve ergonomic
problems, and their interest in the program is vital to its success. If
employees do not report their MSD signs and symptoms or MSD hazards,
any ergonomics program will fail. OSHA has specifically included in
paragraph (c)(1)(ii) a provision that employees be involved in the
implementation, evaluation, and future development of grandfathered
programs to make it clear that employee involvement extends to every
element of the program, including program evaluation and future
modifications to the program to reflect changes over time.
Final paragraph (c)(1)(iii) requires grandfathered programs to
contain job hazard analysis and control, as demonstrated by a process
for identifying, analyzing, prioritizing (if necessary), and
controlling MSD hazards in affected jobs and following up to ensure
control effectiveness. This is the heart of any ergonomics program. For
employees to be protected from MSD hazards, it is obvious that those
hazards must be eliminated or controlled. A note following this
paragraph explains that personal protective equipment (PPE) may be used
as a supplement to engineering, work practice, and administrative
controls. The employer may only use PPE alone where other controls are
not feasible. In addition, the note explains that, if PPE is used, the
employer must provide it at no cost to employees.
As can readily be seen from Table 1, this provision has been
changed substantially from the corresponding requirement in the
proposal. The job hazard analysis and control subelements in the final
rule's grandfather clause are designed to be less prescriptive and more
flexible than those proposed and to fit better with the way rulemaking
participants (see, e.g., Ex. 32-77, Tr. 14723, Tr. 4973) described this
process in their existing ergonomics programs.
The final rule's grandfather clause requires employers to use a
process for identifying, analyzing, and controlling MSD hazards in
problem jobs. Employers may also prioritize jobs identified as having
MSD hazards and then follow their prioritization scheme when
controlling these hazards. Employers with grandfathered programs must
also follow up on their hazard control measures to ensure that the
controls implemented are effective. This is the process that
participants in the rulemaking told OSHA they use in their existing
ergonomics programs. Companies like the Dow Chemical Company (Ex. 32-
77; Tr. 5297), Levi Strauss (Tr. 14723, 14736, 14746), the Consolidated
Edison Company of New York (Tr. 4644), and IBP, Inc. (Tr. 4973)
described a process that includes these job hazard analysis features.
As discussed in the summary and explanation for the standard's job
hazard analysis and control requirements (paragraphs (j) through (m))
later in this section of the preamble, the rulemaking record
demonstrates that, currently, employers with existing programs do not
always fix all problem jobs, nor do they eliminate all MSDs. To address
these facts, the final rule's grandfather clause (1) permits employers
to bring all problem jobs into their programs, and (2) acknowledges
that employers will not eliminate all MSDs. Employers with
grandfathered programs must, however, implement controls that (1)
control the MSD hazards, (2) reduce MSD hazards to the levels specified
in Appendix D, or (3) reduce MSD hazards to the extent feasible. These
are the same compliance endpoints specified in paragraph (k)(1) of the
final rule. These endpoints are explained in the summary and
explanation for that paragraph.
Thus, the grandfather clause in the final rule will enable
employers with existing programs that only address certain jobs to
qualify for the grandfather clause if they include all problem jobs in
their program before the standard's effective date. Thus, even programs
that do not currently address all problem jobs would not be precluded
from qualifying for grandfather status, providing that they revise
their approach to include all such jobs before the standard is in
effect.
Final rule paragraph (c)(1)(iv) requires grandfathered programs to
provide for the training of managers, supervisors, and employees in the
employer's ergonomics program and their role in it; the recognition of
MSD signs and symptoms; the importance of early reporting; the
identification of MSD hazards, and methods that the employer is using
to abate them. Training is to be provided at no cost to the employees
trained. Training is necessary to ensure that employees in problem
jobs, their supervisors, and the individuals who set up and manage the
ergonomics program are provided with the knowledge and skills necessary
to recognize MSD signs, symptoms, and hazards in their workplace and to
effectively participate in the ergonomics program. These individuals
also need to be trained in the need for early reporting. The length and
frequency of training is determined
[[Page 68285]]
by the needs of the workplace. Periodic training is necessary to
address new developments in the workplace and to reinforce and retain
the knowledge already acquired in previous training, but to make this
element as flexible as possible, OSHA is not specifying the frequency
with which training must be provided.
Final rule paragraph (c)(1)(v) requires grandfathered programs to
include evaluations of the program, as demonstrated by regular reviews
of the elements of the program, the effectiveness of the program as a
whole, and the correction of identified deficiencies. This means that
employers must, at a minimum, assess the functioning of their
ergonomics program, compare its provisions to the elements and
subelements specified in the grandfather clause, identify any
deficiencies in the program, and correct them. Employers are required
to make sure that the ergonomics program they have implemented is
eliminating or controlling the MSD hazards in jobs in their workplace.
A program designed for a large site with many different jobs, for
example, is likely to be more formal and extensive than one designed
for a small site with one or two high-risk jobs. Similarly, an
ergonomics program that fits a manufacturing facility may not be
appropriate for a work environment in the service sector. To make the
evaluation requirements for grandfathered programs as flexible as
possible, OSHA is not specifying the frequency with which evaluations
must be conducted. However, employers do need to reevaluate their
programs periodically to ensure that they are performing up to
expectations.
Final rule paragraph (c)(1)(v) also requires the program evaluation
to review the effectiveness of the program, using such measures as:
reductions in the number or severity of MSDs, increases in the number
of jobs in which ergonomic hazards have been controlled, reductions in
the number of jobs posing MSD hazards to employees, or any other
measure that demonstrates program effectiveness.
Lastly, final rule paragraph (c)(1)(v) requires the employer to
conduct at least one review of the elements and effectiveness of the
program before January 16, 2001. This provision, which is discussed in
detail below, ensures that only effective programs are grandfathered.
Although paragraph (c)(1)(v) requires employers to correct deficiencies
in the program, OSHA would not consider an employer who uncovers major
deficiencies in the program elements or whose evaluation does not
demonstrate the overall effectiveness of the program to be in
compliance with this paragraph. Requiring any program that is
grandfathered to be demonstrably effective is basic to employee
protection and to ensuring that grandfathered programs are at least as
effective as the programs required by the standard OSHA is promulgating
for all general industry employers and employees.
The final rule's grandfather clause does not identify specific
rates of MSDs or other similar measures of effectiveness that a
grandfathered program must achieve because OSHA is aware that the
programs grandfathered in will be at many different stages of program
development and because OSHA wishes to recognize as wide a range of
existing effective programs as possible. Although the grandfather
clause does not set a specific reduction goal, employers are required
by paragraph (c)(1)(v) to demonstrate the effectiveness of their
programs.
Paragraph (c)(2) of the final rule requires employers with
grandfathered programs to institute an MSD management policy (including
work restriction protection) that meets paragraphs (p) through (s) of
the final rule within 12 months of the effective date of the standard.
Thus, the final rule's grandfather clause is designed to recognize
existing ergonomics programs that are effective even if they do not
have an MSD management policy until a year after the effective date of
the standard.
OSHA believes that all successful ergonomics programs depend on the
early reporting of and intervention with regard to MSD signs and
symptoms; this is as true for grandfathered programs as for those that
are not grandfathered. As discussed at length in connection with
paragraph (r), OSHA has found, both on this record and in the records
of many other OSHA standards, that wage and benefit protection is
essential to early reporting and employee participation in the
employer's program. Without such protection, employees fear economic
loss and often simply do not report their signs and symptoms until the
injury has progressed to the point where work (and perhaps full
recovery) is no longer possible. In addition, as fully explained in the
summary and explanation for paragraphs (p) through (s) of the final
rule, when an employee reports an MSD, early intervention is required
to ensure appropriate treatment, work restrictions, and follow up. OSHA
anticipates that many existing programs will be able to meet the
requirements of paragraph (s) by use of the dispute resolution
mechanisms described in paragraph (s)(5).
Final rule paragraph (c)(3) states that an ergonomics program of an
employer who has policies or procedures that discourage employee from
participating in the program or reporting the signs or symptoms of MSDs
or the presence of MSD hazards in the workplace does not qualify for
grandfather status. This provision, which is equivalent to paragraph
(h)(3) of the final rule, ensures that employees are as free to
participate fully in grandfathered programs as employees in programs
that are not grandfathered. As discussed at length in connection with
paragraph (h)(3), OSHA has found that employee participation is
essential to a program's effectiveness and that a prohibition on
policies that inhibit that participation is warranted.
Table 1--Comparison of Proposed Basic Obligations with Final Grandfather
Clause Program Element Core Elements and Subelements
------------------------------------------------------------------------
Corresponding core elements and
Proposed basic obligation subelements of the final
grandfather clause
------------------------------------------------------------------------
Proposed Management Leadership Final Sec. 1910.900(c)(1)(i)
Obligation and (ii) and (c)(3): [Your
program must contain the
following elements:]
You must demonstrate management (c)(1)(i) Management
leadership of your ergonomics leadership, as demonstrated by
program. Employees (and their an effective MSD reporting
designated representatives) must system and prompt responses to
have ways to report MSD signs and reports, clear program
MSD symptoms; get responses to responsibilities, and regular
reports; and be involved in communication with employees
developing, implementing and about the program;
evaluating each element of your (c)(3) An employer who has
program. You must not have policies or procedures that
policies or practices that discourage employees from
discourage employees from participating in the program
participating in the program or or reporting the signs or
from reporting MSD signs or symptoms of MSDs or the
symptoms. presence of MSD hazards in the
workplace does not qualify
under paragraph (c) of this
section.
[[Page 68286]]
Proposed Employee Participation
Obligation:
You must set up a way for employees (c)(1)(ii) Employee
to report MSD signs and symptoms participation, as demonstrated
and to get prompt responses. You by the early reporting of MSDs
must evaluate employee reports of and active involvement by
MSD signs and symptoms to employees and their
determine whether a covered MSD representatives in the
has occurred. You must implementation, evaluation,
periodically provide information and future development of your
to employees that explains how to program;
identify and report MSD signs and [See also paragraph
symptoms. (c)(1)(iv).]
Proposed Job Hazard Analysis and Final Sec.
Control Obligation: 1910.900(c)(1)(iii): [Your
program must contain the
following elements:]
You must analyze the problem job to Job hazard analysis and
identify the ergonomic risk control, as demonstrated by a
factors that result in MSD process that identifies,
hazards. You must eliminate the analyzes, and uses feasible
MSD hazards, reduce them to the engineering and administrative
extent feasible, or materially controls to control MSD
reduce them using the incremental hazards or to reduce MSD
abatement process in this hazards to the levels
standard. If you show that the MSD specified in Appendix D or to
hazards only pose a risk to the the extent feasible, and
employee with the covered MSD, you evaluates controls to assure
may limit the job hazard analysis that they are effective.
and control to that individual Note to Paragraph (c)(1)(iii):
employee's job. Personal protective equipment
(PPE) may be used to
supplement engineering and
administrative controls, but
you may only use PPE alone
where other controls are not
feasible. Where PPE is used
you must provide it at no cost
to employees.
Proposed Training Obligation: Final Sec. 1910.900(c)(1)(iv):
[Your program must contain the
following elements:]
You must provide training to Training of managers,
employees so they know about MSD supervisors, and employees (at
hazards and your ergonomics no cost to these employees) in
program and measures for your ergonomics program and
eliminating or materially reducing their role in it; the
the hazards. You must provide recognition of MSD signs and
training initially, periodically, symptoms; the importance of
and at least every 3 years at no early reporting; the
cost to employees. identification of MSD hazards
in jobs in your workplace; and
the methods you are taking to
control them.
Proposed MSD Management Obligation: Final Sec. 1910.900(c)(2):
[Your program must contain the
following elements:]
You must make MSD management By January 16, 2002, you must
available promptly whenever a have implemented a policy that
covered MSD occurs. You must provides MSD management as
provide MSD management at no cost specified in paragraphs (p),
to employees. You must provide (q), (r) and (s) of this
employees with the temporary section.
``work restrictions'' and ``work
restriction protection (WRP)''
this standard requires.
Proposed Program Evaluation Obligation: Final Sec. 1910.900(c)(1)(v):
[Your program must contain the
following elements:]
You must evaluate your ergonomics Program evaluation, as
program periodically, and at least demonstrated by regular
every 3 years, to ensure that it reviews of the elements of the
is in compliance with this program; regular reviews of
standard. the effectiveness of the
program as a whole, using such
measures as reductions in the
number and severity of MSDs,
increases in the number of
jobs in which ergonomic
hazards have been controlled,
or reductions in the number of
jobs posing MSD hazards to
employees; and the correction
of identified deficiencies in
the program. At least one
review of the elements and
effectiveness of the program
must have taken place prior to
[insert date 60 days after the
publication date of this
standard].
------------------------------------------------------------------------
The following paragraphs discuss the comments, evidence and
testimony received on the proposed grandfather clause and present
OSHA's reasons for accepting or rejecting the rulemaking participants'
suggestions and for including the final rule's grandfather clause
requirements.
1. Whether the Proposed Standard Would Recognize Existing Effective
Programs
Many rulemaking participants said that the proposed rule's
grandfather clause would not, as drafted, recognize existing effective
programs (see, e.g., Exs. 30-574, 30-973, 30-1722, 30-3765, 30-3813,
30-3815, 30-3845, 30-3853, 30-3934, 30-3956, 30-4185, 31-297, 32-141;
500-188; Tr. 3320, 4137, 11265, 11290, 11615). Most of these commenters
argued that the proposed standard would only permit existing programs
that already met all of the details of the program required by OSHA's
standard to be grandfathered (see, e.g., Exs. 30-1722, 30-3853, 30-
3934, 30-3956, 32-141; Tr. 11265, Tr. 11290, Tr. 11615). According to
these commenters, the basic obligation OSHA proposed for each core
element would in actuality have required an employer to meet each of
the proposed subrequirements under that core element. Thus, they
reasoned that the proposed grandfather clause would only recognize
existing programs that already met all of the particulars of the
program envisioned by OSHA's proposed standard even in cases where the
employer's program had been demonstrated to be effective in preventing
MSDs. For example, the U.S. Chamber of Commerce stated this view as
follows:
OSHA claims that employers who already have ergonomics programs
in place ``may continue that program, even if it differs from the
one [the proposed] standard requires'' if the program meets certain
requirements * * *. The Proposed Rule requires that ergonomics
programs that were implemented and evaluated before the effective
date of the Proposed Rule must, among other things, (1) satisfy the
``basic obligation'' of each of the standard's six program elements;
and (2) demonstrate that the elements of the preexisting program are
``functioning properly * * *.'' This provision is completely
inadequate to assist employers with preexisting programs. The
qualifications
[[Page 68287]]
written in to this provision essentially require that employers
reconstruct their existing programs, even if any given program is
effective in addressing supposed ``MSD hazards,'' so that it mirrors
the Proposed Rule's notion of an appropriate ergonomics program.
[A]n employer is supposed to ensure that his program satisfies
the ``basic obligation'' of each program element. The ``basic
obligation'' of each [proposed] element is so broadly written that
it encompasses all requirements enumerated under that particular
element. Thus, employers, including those Chamber members who have
[spent] a great deal of effort and money to establish voluntary
ergonomics programs, will be forced to [alter] their preexisting
programs to comply with the Proposed Rule (Ex. 30-1722).
Edison Electric Institute's (EEI's) comments were similar:
EEI supports the concept of a ``grandfather'' clause. However,
the proposed version is more illusory than real, for it appears to
require that all newly proposed controls be put in place before the
effective date of the standard. It is unrealistic and unfair to
``grandfather'' only those programs that track the proposed
standard. It is as if OSHA is saying, ``You don't have to do
anything, provided that you have done everything.'' A true
``grandfather'' provision would give credit for effective past
programs, regardless of whether those programs conform to the scheme
of the proposed program (Ex. 30-3853).
The American Hotel and Motel Association gave examples of how an
effective existing program might fail OSHA's proposed grandfather test:
OSHA does not allow for any variation from OSHA's regulation if
a [company's] ergonomics program does not satisfy ``the basic
obligation section of each program element in this standard.'' An
ergonomics program that is proven to be 100 percent effective would
fail if it only offered, for example, training every five years. An
ergonomics program also would likely fail if it provided program
evaluation only upon a report of an ergonomic injury yet did not
have a reportable injury in less than three years (Ex. 30-3233).
The Center for Office Technology noted that none of the exemplary
ergonomics programs that have won the Center's ergonomics award have
requirements for work restriction protection, which would have been
required by the proposed standard to be in place by the standard's
effective date in order for a program to be grandfathered (Ex. 30-
2208). Thus, the Center pointed out that these very good programs would
not meet OSHA's proposed grandfather clause. The Center recommended
that OSHA include in the final rule a grandfather clause that would
allow any program to be grandfathered in that was reducing MSD
incidence and severity rates and educating employees about how to
minimize discomfort on and off the job.
The National Association of Manufacturers (NAM) and others noted
that some companies have adopted effective ergonomics programs under
OSHA's Voluntary Protection Program (VPP) or through corporate
settlement agreements (see, e.g., Exs. 30-3392, 30-3815, 30-3819, 30-
4499). These rulemaking participants observed that these ergonomics
programs would not be acceptable under the proposed grandfather clause
even though they have been recognized as effective by the Agency in the
past. NAM urged OSHA in the final rule to grant employers' existing
ergonomics programs greater acceptance for grandfather status based on
the results they achieve.
Similarly, Organization Resources Counselors, Inc. (ORC) noted that
a recent General Accounting Office (GAO) study recommended that OSHA
adopt a flexible approach in its ergonomics standard (Ex. 500-214). ORC
argued that OSHA ignored this GAO recommendation in drafting the
proposed grandfather clause. As evidence, ORC pointed out that even the
best ergonomics programs would not qualify for status under the
proposal's grandfather clause, stating:
OSHA has predicated its proposed Ergonomics Program Standard on
its observations that many businesses are successfully addressing
ergonomics issues using similar approaches. In recognition of this
conclusion and in order to focus its own scarce resources on the
areas of greatest need, OSHA has proposed a ``limited grandfather
clause'' for employers with existing ergonomics programs that meet
certain criteria. OSHA's proposal made numerous references to the
1997 General Accounting Office (GAO) study of several companies with
ergonomics programs which found that the companies' programs reduced
work-related MSDs and associated costs, and that the programs and
controls selected by employers to address ergonomic hazards in the
workplaces were not necessarily costly or complex. As a result, OSHA
said, ``GAO recommended that OSHA use a flexible regulatory approach
in its ergonomics standard that would enable employers to develop
their own effective programs.'' OSHA claimed that the standard it
proposed reflects this recommendation and ``builds on the successful
programs that thousands of proactive employers have found successful
in dealing with their ergonomic problems'' (64 FR 65770).
Unfortunately, in crafting the proposed grandfather clause, OSHA
ignored a major finding of the GAO report: that although there were
common elements in each of the employer's programs studied, there
was significant variety in the way each program element was
implemented (GAO/HEHS-97163, page 4). There was no evidence in the
GAO study that one method of implementation was better than another,
yet OSHA has drafted a rule that makes only one program approach--
OSHA's--acceptable.
* * * [A]s written, virtually no employer would qualify under
[the proposed grandfather clause's] terms, rendering it a nullity.
As was attested to by several industry representatives during the
public hearings, even those programs that OSHA has acknowledged as
being among the best in industry today would not be in compliance
with the proposal. As pointed out in ORC's oral testimony, it is
unlikely that any of the approximately 150 member companies of ORC's
occupational safety and health groups, whose safety and health
programs are among the most sophisticated and effective in the
world, would meet the criteria under section 908 of the proposal.
This is because of the proposed requirement that an employer must
meet all of the ``basic obligation'' sections of each program
element. Virtually all of the proposed ``basic obligations'' are too
prescriptive and should be simplified as described more fully in
ORC's written comments. In particular, many ORC employers would not
meet the provisions of [proposed] sections 911, 917, 923 or 929,
individually, and almost none would meet all four (Ex. 500-214).
Summing up the concerns of commenters wanting a more flexible
grandfather clause, the American Dental Association argued that the
proposal would reject alternative programs that might be equally or
even more effective (Ex. 32-141). The Association recommended that OSHA
establish a standard based on objective measures or performance and
leave the methods of achieving those objectives to employers.
Several employer representatives illustrated how various effective
existing ergonomics programs would fail to meet the proposed
grandfather clause (see, e.g., Ex. 30-4185; Tr. 8634, 9181, 11265). For
example, IBP, Inc., which has a corporate-wide ergonomics settlement
agreement with OSHA, identified several aspects of the proposed program
that their program does not address: responses to every MSD symptom,
communication with the health care provider, and WRP (Tr. 4929, Tr.
5041). In the hearings, an IBP representative stated that its program
would not meet the grandfather clause because of proposed requirements
in these three areas (Tr. 5041). Many other employer representatives
also noted that their programs did not include provisions providing for
work restriction protection and, consequently, would not qualify under
the grandfather clause (Tr. 8634, Tr. 9181).
Constangy, Brooks and Smith stated that their clients could not
meet the hazard control endpoints in the proposed standard (Ex. 30-
4185). They argued that, as drafted, the proposal
[[Page 68288]]
would mean that the occurrence of even a single MSD would require their
clients to implement new engineering controls. Consequently, they
believed that their clients' programs would not qualify under the
proposed grandfather clause. Other commenters also noted that their,
their members', or their clients' programs would not meet the proposed
standard's grandfather clause for similar reasons (see, e.g., Exs. 30-
3344, 30-3347, 30-3368, 30-3845, 30-4137).
One witness at the hearing, Thomas J. Durbin of PPG Industries,
noted that since no one would benefit from the grandfather clause as it
was proposed, OSHA should either put in a true grandfather clause that
recognizes programs containing the six core elements or eliminate it
altogether (Tr. 3135, Tr. 3147). In questioning, he stated that he
interpreted the proposal to require the full program as long as MSDs
continued to occur (Tr. 3140).
The Boeing Company argued that the restrictive nature of the
proposal's grandfather clause ran counter to the intent of the OSH Act
(Ex. 30-1547). In support of their position, they pointed to section
6(d) of the Act, which provides for a variance procedure to recognize
alternative approaches to compliance with OSHA standards, provided that
the alternative provides equivalent employee protections. Boeing was
particularly concerned that the standard, as proposed, would deny
grandfather status to an employer who had a program but who had not yet
completed the implementation of all of the control measures required by
the proposal.
On the other hand, many rulemaking participants indicated that the
proposed standard's grandfather clause would allow ineffective programs
to be grandfathered (see, e.g., Exs. 30-4200, 32-111, 32-182, 32-198,
32-210, 32-339; Tr. 3477). For example, the United Steelworkers of
America and others were concerned that employers whose program
evaluations failed to identify deficiencies simply because the
evaluations were not done properly could be grandfathered in under the
proposed standard (see, e.g., Exs. 32-111, 32-182). They recommended
that OSHA develop additional regulatory text to strengthen the program
evaluation provisions. The Union of Needletrades, Industrial and
Textile Employees (UNITE) was also very concerned that the proposed
grandfather clause would inadequately protect employees (Ex. 32-198),
stating:
The acceptability of existing programs depends largely on the
criteria used to determine acceptability. Therefore, the correctness
of the current criteria--compliance solely with the ``basic
obligation'' provisions--is critical to the protection of workers
from OSHA's approval of programs which are in fact ineffective. For
the reasons [summarized by OSHA] below, UNITE does not believe that
these criteria will provide the appropriate level of workers
protection (Ex. 32-198).
Several unions, including UNITE and the United Food and Commercial
Workers International Union (UFCW), gave the following reasons why the
proposal's grandfather clause was inadequate:
The detailed provisions implementing each of the proposed
program elements, which would not be required for grandfathered
programs, are necessary for adequate protection of employees. UNITE
pointed to OSHA's extensive justification for each of these proposed
provisions in the preamble and indicated that the justification applied
just as well to programs in existence before the rule becomes effective
as to programs implemented afterward (Ex. 32-198).
The proposed basic obligation sections for the management
leadership and training elements, which would be the only requirements
employers with grandfathered programs would have to meet, would allow
poorly trained managers to make determinations that their program
complies with the standard. The unions noted that training for managers
was not included as part of the proposed basic obligation for these
elements. They were particularly concerned that inadequate training of
managers would result in improper program evaluations (see, e.g., Exs.
30-4200, 32-198, 32-210, 32-421).
Job hazard analysis and control and quick fixes could be
performed without the input of employees because employee participation
is not a part of the proposed basic obligation of those provisions.\2\
The unions argued that, without feedback from employees, a provision
not addressed in the proposed basic obligation for the job hazard
analysis section, employers would be likely to improperly identify risk
factors or select improper hazard controls (see, e.g., Exs. 30-4200,
32-198, 32-210, 32-461).
---------------------------------------------------------------------------
\2\ UNITE also noted that the proposed quick fix section had no
basic obligation section at all.
---------------------------------------------------------------------------
The proposed MSD management basic obligation is missing a
requirement for health care professionals to be provided with
information about the workplace and the employee's job (Ex. 32-198).
According to UNITE, which has had first-hand experience with programs
that do not require such information sharing, this omission would
result in ill-conceived recommendations from the health care
professional (Ex. 32-198).
The basic obligation for the proposed job hazard analysis
and control section omitted requirements that limited the use of
personal protective equipment and mandated that employers provide it at
no cost to employees (Ex. 32-210).
The proposal's requirements for program evaluation were
inadequate and would allow employers to overlook serious program
deficiencies (see, e.g., Exs. 30-4200, 32-198, 32-210). The unions
believed that, because the rule's evaluation provisions are the primary
means for determining the acceptability of an existing program under
the grandfather clause, these provisions should be revised in the final
rule to prevent employers from inappropriately approving unacceptably
weak programs for grandfather status. (Also see the summary and
explanation for paragraph (u), later in this section of the preamble.)
The International Brotherhood of Teamsters (IBT) observed that the
proposed standard would consider any new ergonomics program coming into
effect to comply with the standard as deficient if the new program did
not meet one or more of the standard's requirements (Exs. 30-4200, 32-
461). The IBT argued that existing programs should be held to the same
standard:
Any program grandfathered under this proposal would essentially
be judged by a different set of criteria than a program developed
after the effective date. The grandfathered program would be
considered to be in compliance despite having missing components,
provided that the [proposed] basic obligations as currently defined,
are met. An identical program, that was developed after the
effective date and was not grandfathered would not be considered to
be fully in compliance and would be cited by compliance officers for
each component of the standard that was lacking, despite meeting the
very same basic obligations that the grandfathered program met. This
weakness can not be used as an argument that compliance is too
difficult to determine, but rather must be viewed as an argument
that the grandfathering provision, as it currently stands, has
serious flaws and must be significantly improved such that every
worker is provided the same protections under this standard (Ex. 32-
461).
At the hearing, OSHA stated that the Agency's intent in the
proposal was to include a grandfather provision that recognized
existing effective ergonomics programs:
Other requirements of the proposal that OSHA has designed to be
flexible include a grandfather clause that permits employers who
have already implemented an
[[Page 68289]]
Ergonomics Program to continue to operate that program as long as it
meets minimal requirements (Tr. 19).
It is readily apparent from the rulemaking record that very few, if
any, existing ergonomics programs would be able to fulfill the
requirements of the proposed grandfather clause. Although OSHA drafted
the language in the proposed standard generally and in the grandfather
clause specifically to be flexible, the Agency recognizes that the
grandfather clause, as proposed, was not sufficiently flexible to allow
existing programs that are effective in protecting employees from MSD
hazards to be grandfathered in. On the other hand, OSHA agrees with
many of the union comments, discussed above, that it is important that
the grandfather clause not recognize programs that are ineffective in
protecting employees from MSD hazards. OSHA has structured the final
rule's grandfather clause to strike an appropriate balance between
flexibility, on the one hand, and program effectiveness, on the other.
In drafting the proposed and final rules, OSHA has relied heavily
on the Agency's experience with effective ergonomics programs that
proactive employers have implemented; in fact, the final rule is
modeled after such programs. OSHA has concluded that it is reasonable
for the Agency to include in the final rule a grandfather clause that
is less prescriptive than the one proposed and is more closely focused
on the effectiveness of existing programs. The Agency has made several
changes to the final rule's grandfather clause to achieve this end.
First, OSHA has streamlined the subelements (called ``basic
obligations'' in the proposed rule) under each core element and has
removed some of the more prescriptive requirements. For example, the
final rule has not carried forward the proposal's provision that
periodic training and program evaluations in grandfathered programs be
conducted at intervals of no more than 3 years. Second, OSHA is
permitting employers to add or strengthen elements of their programs,
provided that they do so, and evaluate the program at least once,
before the effective date of this rule. Third, because so many
commenters with otherwise effective programs reported that their
program would not qualify for grandfather status solely because it did
not have a WRP component, the final rule gives employers a year from
the effective date of the standard to add such protections (which are a
part of MSD management) to their existing programs. Fourth, OSHA has
included, in the final rule, examples of some of the specific measures
that employers may use to demonstrate that their programs are
effective. These changes will enable more employers' programs to
qualify for the grandfather clause but will also ensure that only
effective existing programs are recognized. The changes also shift the
focus from compliance with the rule to effectiveness in preventing
MSDs. Although OSHA believes that having all six elements is vital to
qualify a program for grandfather status, OSHA is not interested in
technical compliance but in real effectiveness.
2. Whether Effectiveness of an Ergonomics Program Is All That Matters
Many rulemaking participants believed that it would be more
appropriate for the standard to simply accept proven, effective
programs than to require that grandfathered programs also include the
core elements of successful programs (see, e.g., Exs. 30-523, 30-1090,
30-1901, 30-1722, 30-2208, 30-3211, 30-3765, 30-3813, 30-3934, 30-3956;
Tr. 3319, 15657). In their view, effectiveness is the only part of the
program that matters, and therefore any existing program that is
effective should be grandfathered. Doerle Food Services, Inc.,
exemplified many of these comments:
OSHA has made its position clear, at 64 Fed. Reg. 65791, in
which it states that the agency believes ``enforcement of the
standard will be more consistent and more equitable * * * if the
test of an employer's program is whether it contains the core
elements, rather than whether it is effective.'' This is, we submit,
an incredible statement, and reflects OSHA's devotion to its
mandated program and ``control'' strategy, as opposed to actual
effective programs. It is this outlook which is at the core of the
``grandfather'' provision, since it does not accord recognition in
any meaningful way to a pre-existing effective program that can be
shown to have minimized the conditions that are at issue. This
portion of the standard clearly needs to be reconsidered and
expanded (Ex. 30-523).
The Washington Aviation Group gave examples of how an employer's
ergonomics program might be effective without meeting the proposal's
grandfather criteria:
There are a variety of reasons why a company might experience
few or no ergonomics problems. The business owner may have an
intuitive sense of how to promote comfort among the employees that
has a beneficial effect on ergonomics issues. The nature of the work
might be such that it does not lend itself to repetitive motion
disorders or other ergonomics problems. Management may have
established an effective rapport with the employees that is
sufficiently responsive so that potential problems are generally
resolved in an expedient manner before they represent hazards. While
all of these are approaches that can support safety in an effective
and expedient manner, none of these would represent sufficient
ergonomics programs under the proposal; and that is part of the
problem with the proposal: it discounts systems that work, but that
are not as comprehensive or well-documented as the proposal (Ex. 30-
3849).
Some rulemaking participants recommended that programs be
grandfathered based solely on one or more measures of effectiveness
(see, e.g., Exs. 30-1901, 30-3211, 30-3344, 30-3348, 30-3361). For
example, Armstrong World, Inc., recommended accepting for grandfather
status programs based on the employer's injury incidence rates:
Employers should be exempt from any proposed standard based on
their performance in preventing such injuries. We would suggest
using 50% of the employers' industry's respective SIC Code rates for
Total Recordable Cases and Cases With Days Away From Work as a
meaningful measure of accepting existing employer ergonomics
processes as they are (Ex. 30-1901).
Other rulemaking participants also recommended using injury rates,
either in absolute terms or in terms of showing a reduction, as a
measure of effectiveness and qualification for grandfather status (see,
e.g., Exs. 30-3344, 30-3348, 30-3361). For example, the Exxon Mobil
Production Company suggested that the standard grandfather a program if
the employer's records demonstrate that the program is preventing MSDs
and is managing ergonomic concerns (Ex. 30-2433). John W. Braddock
suggested that employers be permitted to produce evidence that the
existing program was working and that there is an effective early
reporting mechanism in place and to qualify for grandfather status on
this basis (Ex. 30-4301).
ORC argued that there are a number of ways to measure program
effectiveness, which should be the true gauge of the worthiness of any
ergonomics program (Ex. 30-3813; Tr. 4112). They suggested several
possible ways to measure effectiveness:
OSHA might place the initial burden of demonstrating
effectiveness of the program on the employer and include in a non-
mandatory appendix a number of types of performance measures and
approaches that OSHA would consider appropriate. OSHA mentions some
in the preamble, e.g., decreases in the numbers or rates of MSDs and
decreases in severity. Other measures might include reduced workers'
compensation claims for MSDs, use by the employer of periodic
symptoms surveys and other indicia of effective early reporting, or
[[Page 68290]]
demonstration that risk factors have been reduced and/or tools and
equipment have been modified. An employer might demonstrate
effectiveness based on periodic program evaluation that measures
effectiveness based on an internal ``score card'' that looks at a
number of appropriate effectiveness measures.
* * * * *
ORC believes strongly that OSHA should be focusing its attention
on results or performance, not methodology (Ex. 30-3813).
However, even though ORC objected to the proposed grandfather clause's
emphasis on core elements and their basic obligations, they did agree
with OSHA that there is a need to ensure that any demonstration of
effectiveness that relies on numbers or rates of MSDs not mask any
underreporting of MSDs (Exs. 30-3813, 32-78).
Unisea, Inc. suggested the following language for OSHA to use in
the final rule to recognize existing ergonomics programs based on
effectiveness:
If a company is able to show by operation redesign with
ergonomics considerations made, or injury records or near-miss
reports that a reduction of reported MSD's has occurred, that
company shall be considered in compliance of the standard and its
intent.
OR, If a company is able to show a steady overall reduction of
injuries, either by total number or incident rate, that company
shall be considered in compliance of the standard and its intent
(Ex. 500-158).
Abbott Laboratories argued along similar lines and submitted data
in support of its position. According to a comment in the record,
Abbott Laboratories instituted ergonomics programs at three
laboratories in the late 1980's (Ex. 500-153). Abbott's comment
presented the OSHA-recordable illness rates at those facilities over
the last 9 years. These data are shown in Table 2. Abbott states that
the fall in rates over that period reflected ergonomic improvements
made at each facility and should qualify these establishments for
grandfather status.
Table 2.--OSHA Recordable Illness Case Rates at Three Abbott
Laboratories Plants
------------------------------------------------------------------------
Year Plant A Plant B Plant C
------------------------------------------------------------------------
1999...................................... 1.03 1.44 1.46
1998...................................... 0.47 1.90 2.87
1997...................................... 1.02 1.81 2.50
1996...................................... 0.43 1.00 2.30
1995...................................... 0.71 3.27 2.74
1994...................................... 2.69 3.13 3.47
1993...................................... 3.70 4.27 4.51
1992...................................... 3.25 2.52 6.68
1991...................................... 4.41 4.54 7.06
------------------------------------------------------------------------
Source: Ex. 500-153.
Another point raised by commenters concerned the proposed
requirement that grandfathered programs must be in place and be judged
effective by the time the standard is effective in order to be
grandfathered. The Departments of Defense and Navy recommended that the
standard provide employers wishing to grandfather their programs in
with sufficient time to conduct a statistically significant evaluation
of the effectiveness of the program even if the evaluation did not take
place until after the effective date (Ex. 30-3818; Tr. 3228). They were
concerned that it would not be possible to perform such an evaluation
before the effective date of the standard, as the proposal required. In
addition, they suggested that the standard clarify what effectiveness
measures or evaluation points OSHA would accept for each program
element in grandfathered programs (Ex. 30-3818; Tr. 3228).
Other commenters suggested a variety of indicators of program
effectiveness. For example, the American Industrial Hygiene Association
(Ex. 32-133) stressed measures of effectiveness other than injury
rates:
OSHA needs to be more specific on what constitutes an equivalent
program so that mediocre programs do not pass compliance, but
programs showing improvements will have a reasonable chance to be
considered acceptable. The evaluation of quality of the program
should rely on real evidence of hazards identified and risk
reduction. Specifically, have physical risk factors been reduced and
have ergonomics improvements been made? Indeed, this is the ``bottom
line.'' Other things to look at include whether training has been
done, and if there is a reduction in MSDs and associated workers'
compensation costs (Ex. 32-133).
Herman Miller, Inc., listed several measures that employers could
use to measure effectiveness: ``Reduction in MSD hazards, MSD severity
rates, lost workdays or benchmarked improvements in employee
satisfaction rates'' [Ex. 30-518]. They suggested leaving the specific
protocol to the discretion of the employer and noted that OSHA
compliance officers would need to be given proper training and tools so
that they could make logical and qualitative assessments of ergonomics
programs and determine whether they were effective enough to qualify
for grandfather status.
Dennis Morikawa, testifying on behalf of Morgan, Lewis and Bockius,
did not specify a particular measure of effectiveness but recommended
instead that OSHA make the grandfather clause widely available to
employers to encourage as many of them as possible to adopt programs
before the final rule's effective date (Tr. 15657). He argued that this
approach would further OSHA's real goal: The reduction in the number of
MSDs experienced by workers.
In their post-hearing submission, the U.S. Chamber of Commerce
criticized the proposed grandfather clause's reliance on the proposed
core elements' basic obligations instead of effectiveness:
The Agency claims that existing programs will be evaluated upon
the existence of the core elements rather than a program's
effectiveness * * * because it will make such evaluation ``less
time-consuming'' and ``administratively simpler'' for both OSHA and
the employers. 64 Fed. Reg. at 65791. Of course, the real reason
that the Agency has chosen to focus on content is that OSHA simply
cannot judge effectiveness and has no idea what it means to be an
effective program. Indeed, in order to qualify under the Grandfather
Clause, an employer's existing program must not only contain the
core elements of the Proposed Rule, but must also be ``functioning
properly.'' And although according to the Preamble ``effectiveness''
is not a measure of whether or not the program is ``functioning
properly,'' 64 Fed. Reg. at 65791, Marthe Kent testified to
precisely the opposite effect:
And further [proposed 1910.908], which says the evaluation
indicates that the program elements are functioning properly, what
we mean there is [that the elements] are effective. I mean, you
cannot have a program with the elements functioning properly and it
not be effective.
Tr. at 1-182. Thus, not only can the Agency not determine what
``effectiveness'' means, it also apparently cannot decide whether or
not ``effectiveness'' means the same thing as ``functioning
properly.'' Until the Agency sorts out this conundrum in some
understandable way, there can be no real Grandfather Clause in the
Proposed Rule (Ex. 500-188).
OSHA did not propose a grandfather clause that relied heavily on
injury rate goals to demonstrate effectiveness because, as the Agency
noted in the proposal (see 64 FR 65980 et seq.), MSDs are currently
substantially underreported, and relying on reported rates would
therefore, in many cases, overstate effectiveness. Some commenters,
however, argued that MSD rates were appropriate for this purpose (see,
e.g., Exs. 30-2989, 30-3845). For example, the Forum for a Responsible
Ergonomics Standard stated:
If OSHA is concerned with how to measure ``effectiveness,'' it
can prescribe the manner in which effectiveness is to be measured,
such as reductions in the number and severity of MSDs. OSHA
contends, however, that most means of measuring ``effectiveness''
have built-in incentives to discourage reporting. See id. This
contention ignores the fact that companies are subject to regulatory
requirements in the proposed rule, backed up by OSHA fines and
penalties, to facilitate employee reporting (Ex. 30-3845).
[[Page 68291]]
A. O. Smith Corporation commented that, in its experience, few
employers discourage reporting of workplace injuries:
The provisions in the standard that allude to the employer
having programs in place that discourage the reporting of MSD
injuries tends to suggest that entire safety and health awareness
and accident prevention programs would be construed as disincentives
to reporting. We do not accept this premise and find that most
employers work hard at making sure their employees are provided a
safe work environment and a mechanism to report injuries should they
occur (Ex. 30-2989).
Other rulemaking participants agreed with the approach taken in
OSHA's proposal and opposed basing the grandfather clause solely on a
measure of the reduction in the number of MSDs in a workplace (see,
e.g., Exs. 30-2387, 32-339, 500-207). For example, the AFL-CIO stated
that the elements that OSHA included in the proposal's grandfather
clause are widely recognized as the basic elements of an effective
program (Ex. 32-339). The International Brotherhood of Teamsters argued
that, to be grandfathered, an existing program needed to be
comprehensive and to provide workers and their representatives with
full information and rights of participation in addition to being
effective in reducing the number of MSDs (Ex. 500-207).
In response to these comments, OSHA finds that the record evidence
demonstrates that the Agency should emphasize the effectiveness of
grandfathered programs much more in the final rule than it did in the
proposal. Record evidence also demonstrates that the core elements are
essential to effectiveness (see the discussion of the core elements
below). If a program is not demonstrably effective in protecting
employees from MSD hazards, OSHA believes that such a program should
not qualify for grandfather status and should instead have to comply
with all the requirements of the final rule. On the other hand, if an
existing ergonomics program has the core elements and is truly
effective in protecting employees, it merits grandfather status. The
central question then becomes how to measure effectiveness; if
effectiveness measures are not carefully chosen, ineffective programs
will be grandfathered in and the employees in the establishments
covered by such ineffective programs will be inadequately protected.
One widely used method of measuring effectiveness is the tracking
of MSD incidence and severity rates. However, MSD incidence and
severity rates can be misleading if efforts are not made to ensure that
the rates reported are accurate and that the use of such rates is
appropriate for the workplace. Some of the problems with various
objective measures of effectiveness are described below.
(a) Incidence rates are dependent on accurate reporting. An
employer's recordkeeping system must accurately count work-related MSDs
if incidence rates are to be a meaningful index of effectiveness. An
employer whose employees are reluctant to report, or one who does not
record all MSDs, will appear to have a lower incidence rate than a
comparable employer with an accurate recordkeeping system, and the
incidence rate in the first employer's establishment will bear no
relationship to program effectiveness. There are many reasons why MSDs
are underreported (see the discussion of this issue in the summary and
explanation for MSD management). If there are disincentives to
reporting, employees may not report all MSDs. If an employee is not
well informed about MSD signs and symptoms, he or she probably will not
realize that the signs and symptoms of an MSD are work-related and will
fail to report them. Employees also fail to report MSDs in some cases
because they do not want to submit a claim to the workers' compensation
system. Thus, incidence rates must be used with care.
(b) Severity rates are dependent on consistency in return-to-work
policies. Severity rates are typically measured in terms of days away
from work or days on restricted duty. Changes in how employers treat
injured workers can affect severity rates. For example, if an employer
who has traditionally measured severity in terms of lost workdays
institutes a new policy of placing employees with MSDs on restricted
duty rather than removing the employee from work, the number of days
away from work will decrease. Thus, severity rates must also be used
carefully to ensure that they are not reflecting a change in the
employer's MSD management process rather than a true decrease in MSD
severity.
(c) The randomness inherent in injury and illness statistics may
make incidence rates an unreliable indicator of effectiveness. Injuries
and illnesses are events that occur based on probability. In other
words, hazards do not automatically lead to injuries or illnesses; the
presence of hazards simply increases the probability that an injury or
illness will occur. Just as a coin flipped 10 times will not
automatically land heads up 5 times, a workplace with an average MSD
incidence rate of 19.3 per 1000 employees \3\ will experience an MSD
incidence rate that varies about that number from year to year. If
employee exposure to MSD hazards at this workplace remains relatively
constant, the actual incidence rate in any one year (assuming that the
number of employees and other factors also remain constant) will
probably be reasonably close to that value. In one year, for example,
17 of the 1000 employees could suffer an MSD, while in the next year,
21 might be injured. This variability can be seen in the Abbott
Laboratories data in Table 2, especially in the last 5 years, after the
program had matured.
---------------------------------------------------------------------------
\3\ This is the overall MSD incidence rate for SIC 283.
---------------------------------------------------------------------------
Variability is even more pronounced in a workplace with few
employees. If the employer in the earlier example had 10 full-time
employees and the same overall average MSD incidence rate, the
establishment could be expected to have 0, 1, or 2 MSDs in a given
year.\4\ The corresponding incidence rates per 1000 employees, however,
would be 0, 100, and 200. If incidence rates alone were used as the
measure of effectiveness at such a facility, the program would be rated
very effective in one year and in need of major correction in the other
years.
---------------------------------------------------------------------------
\4\ It would take 100 years for this firm to have 1000 employee-
years of experience. If the employer had an incidence rate of 17
MSDs per 1000 full-time employees, the employer would see 17
incidents over 100 years. Over that period, in most years, no MSDs
would occur. In other years, one or maybe two MSDs would occur.
---------------------------------------------------------------------------
In the context of the grandfather clause, this year-to-year
variability poses problems for OSHA and for employers. If the final
rule were to identify a specific rate as the sole criterion for
grandfathering existing programs, then an employer whose program was
acceptable one year might be unacceptable the next simply as a result
of this variability. For example, suppose that the final rule selected
1.45 as the maximum acceptable incidence rate for a grandfathered
program. Abbott Laboratories Plant A (from Table 2) would have had an
acceptable program in terms of grandfathering since 1995 (Ex. 500-153).
Abbott's Plant C program (from Table 2) would never have met the
incidence rate limit in this period and would therefore have had to
comply with the ergonomics standard. Abbott's Plant B (from Table 2)
could have had its program grandfathered in 1996 and 1999, but would
have had to comply with the standard in 1997 and 1998. From this
example, it can be seen that some employers' programs, after initially
qualifying for the grandfather
[[Page 68292]]
clause, would subsequently be required to comply with the ergonomics
standard in at least some years.\5\ This ``sometimes in and sometimes
out'' phenomenon is not what OSHA or employers with existing ergonomics
programs want from a grandfather clause.
---------------------------------------------------------------------------
\5\ Using a rolling average incidence rate would help smooth
out, but would not eliminate the year-to-year variability.
---------------------------------------------------------------------------
Alternatively, the final rule could mandate that, to be
grandfathered, the employer's MSD incidence rates had to decrease over
time, as suggested by some rulemaking participants (see, for example,
the comments of Unisea, Inc., Ex. 500-158, above). Again, the Abbott
Laboratories data in Table 2 show that this approach would also be
problematic (Ex. 500-153). All three of Abbott Laboratories' plants
experienced increasing rates in some years in the period reported.
Although the overall trend over the full 9-year period is downward for
all of the Abbott plants, this is not the case for all time periods.
For example, Plant C's incidence rates went up over the 4-year period
from 1995 to 1998 (see Table 2). In fact, OSHA's experience is that, as
an employer's ergonomics program matures, incidence rates begin to
level off, albeit at a much lower rate than before the program was
established (see Chapter IV of the Economic Analysis).
Other ``objective'' measures of effectiveness recommended by
rulemaking participants (see e.g., Ex. 30-3813; Tr. 4112) pose similar
problems. Decreases in the rate of workers' compensation claims have
the same problems as incidence rates when they are used as
effectiveness measures. Symptom surveys, although valuable as an early
reporting tool, vary from one workplace to another and therefore cannot
be used for different sites. Reductions in employee exposure to MSD
hazards is a good measure of whether an ergonomics program is working
but, OSHA has no benchmark that adequately describes the performance of
an effective program. Without a benchmark, reductions in employee
exposure to MSD hazards cannot be used as the sole criterion for
grandfathering programs at different sites.
In addition, OSHA has concluded that the core elements (management
leadership and employee participation, hazard identification and
assessment, hazard prevention and control, MSD management, training,
and evaluation) are essential to a properly functioning ergonomics
program. These elements are included in the safety and health programs
recommended or used by many different organizations (the ergonomics
standard uses slightly different terminology for some of these
elements):
OSHA's VPP, SHARP, and consultation programs;
The safety and health programs mandated by 18 states;
The safety and health programs recommended by insurance
companies for their insureds (many of which give premium discounts for
companies that implement these programs or impose surcharges on those
that do not);
The safety and health programs recommended by the National
Federation of Independent Business, the Synthetic Organic Chemical
Manufacturers Association, the Chemical Manufacturers Association, the
American Society of Safety Engineers, and many others;
The strong recommendations of OSHA's Advisory Committees
(NACOSH, ACCSH, and MACOSH), which consider these program elements
essential to effective worker protection programs.
OSHA also is including WRP, or equivalent protections against wage
loss, as a requirement for all programs (both those that are
grandfathered and those complying with the standard) because, without
it, OSHA believes that many employees will be reluctant to report their
MSDs because they fear economic loss. There is strong evidence that
such underreporting is currently taking place, as well as evidence that
protecting workers from wage loss increases reporting (see the
discussion of underreporting in the summary and explanation for MSD
management). OSHA's purpose in including a WRP provision, both in the
grandfather clause and in the standard, is to ensure employee
participation and free and full reporting of MSDs and MSD hazards.
Effective ergonomics programs depend on such reporting, and the
standard also depends on employee reporting for its effectiveness.
Absent such reporting, no ergonomics program will achieve its worker
protection goals.
For these reasons, OSHA has concluded that quantitative
effectiveness measures alone cannot be the sole basis for judging
whether an employer's program should be grandfathered. The Agency's
experience over the last two decades, and that of private industry and
insurance companies, is that safety and health programs, and ergonomics
programs, containing the core elements are effective in lowering injury
and illness rates. These programs work because they involve everyone in
the organization in finding and fixing hazards. They also establish
two-way communication in the form of reporting and response systems.
OSHA finds that the core elements are essential to effective ergonomics
programs, and the record provides ample evidence of this (see the
discussion below on whether the core elements are necessary). Employee
participation, for example, is a prominent component of the programs of
many leading companies (see, e.g., Exs. 32-77, 32-185, 32-210; Tr.
4973, Tr. 5339). The core elements also help to ensure that employees
are reporting their MSDs, that management is responding to these
reports, that jobs are being analyzed and fixed, and that the program
is functioning as it should. The core elements thus help to ensure that
programs are not focusing too heavily on quantitative measures of
effectiveness, which, as the discussion above shows, are often
misleading.
OSHA agrees, however, that effectiveness measures can be useful in
determining the degree to which an ergonomics program is working.
Employers and authors of effectiveness studies routinely rely on them
as evidence that an ergonomics program is having a positive effect. Of
the measures available, incidence and severity rates are most commonly
used and were most often recommended in the rulemaking record (see,
e.g., Exs. 30-1901, 30-2208, 30-3344, 30-3348, 30-3361). If one of
these measures is used, the employer must take care to ensure that the
calculated incidence or severity rate accurately reflects conditions at
the workplace. First, the effectiveness measure chosen must be
appropriate for the size and nature of the workforce and the employer's
MSD experience. For example, as explained earlier, an employer with few
employees will not find incidence rates useful to measure
effectiveness. Instead, such employers could examine whether employee
exposure to MSD hazards has been reduced. Second, the employer must
check to ensure that some MSDs are not going unreported. If employees
are failing to report MSDs, the employer's calculated incidence and
severity rates will not accurately reflect the injury experience at the
workplace. Third, the employer should check rates over a variety of
periods to ensure an overall downward trend in the data. Looking at
data over a single period can be misleading.
OSHA finds, based on the evidence in the record as a whole, that
reliance on both qualitative (the core elements) and quantitative
(effectiveness measures) components will best assure that any program
that is grandfathered deserves this status and will continue to operate
[[Page 68293]]
effectively in the future. Consequently, the final rule's grandfather
clause requires that grandfathered programs contain the core elements
of effective ergonomics and be demonstrably effective. Employers may
use any of a broad range of measures, including reductions in the
number or severity of MSDs, increases in the number of jobs in which
ergonomic hazards have been controlled, reductions in the number of
jobs posing MSD hazards to employees, or any other measure that
demonstrates program effectiveness to meet the grandfather clause's
requirement for a demonstration of program effectiveness.
3. Whether the Core Elements Are Necessary
Some industry representatives objected to the proposed requirement
that grandfathered programs contain all the core elements of the
proposed standard (see, e.g., Exs. 30-1722, 30-3853, 30-3956; Tr.
5699). They argued that any program that was effective in reducing MSD
rates should be accepted for grandfather status, even if it did not
include all the core elements.
For example, the Washington Legal Foundation was particularly
concerned that employee participation was proposed as a required
component of grandfathered programs and of the program required by the
standard (Tr. 11265). They argued against mandatory employee
participation:
OSHA's proposed ergonomic standard perhaps more so than any
other standard mandates full employee involvement in every aspect of
its requirements.
In many ways, the proposed standard places employees in the
driver's seat.
Certainly many companies have determined that a [cooperative]
relationship with their employees is beneficial on both a safety and
a production level.
Other companies, however, have reached a different conclusion.
And certainly, the conclusion to be reached may differ depending on
the type of work involved, the size of the company, the
characteristics of the work force, and other factors.
The Washington Legal Foundation does not believe that it is its
place to determine that some of these [employers] are right and
others are wrong nor is it the place of the federal government to
mandate a specific mode of employer/employee relations (Tr. 11265).
On the other hand, some union representatives argued strongly in
favor of the core elements (see, e.g., Exs. 32-210, 32-461, 500-218).
The International Brotherhood of Teamsters noted that they had worked
with various employers through the collective bargaining process to
address ergonomic hazards and that some employers' programs took a
piecemeal rather than comprehensive approach to the problem and should
therefore not be granted grandfather status (Exs. 30-4200, 32-461). The
UFCW argued that the proposed core elements are recognized as the basic
elements of a good ergonomics program (Ex. 32-210). They presented
their experience with successful ergonomics programs as follows:
The six elements OSHA is proposing in the ergonomics program
standard are included in all successful company programs! Further,
the experience of the myriad of companies who have successfully
tackled the problem through these elements attests to the
feasibility of the methods. The settlement agreements OSHA has
entered into with IBP, Sara Lee, Cargill, ConAgra Poultry, John
Morrell & Co., Empire Kosher, Marshall Durbin Companies, National
Beef, Worthington Packing and Tyson Foods contain these six
elements--all work, and all are feasible. Many of the companies used
ergonomists, they analyzed the jobs and developed engineering
solutions to address the most egregious jobs. They developed medical
protocols so that workers can get to treatment early rather than
waiting until they were crippled and needed surgery. They protect
workers wages and benefits when they report MSDs. And in our
represented companies, all this included the union in a fundamental
way. In order to be effective, ergonomics programs by their very
nature must be participatory and include workers at many levels,
including those that do the problem jobs (Ex. 32-210).
Mr. Bawan Saravana-Bawan, a representative from the Canadian
province of British Columbia, described how that province handled
existing programs when its ergonomics standard came into effect (Tr.
14260). He stated that existing programs needed to incorporate any
missing elements in order to be accepted. On the basis of his
experience, he stated that any ergonomics program needed to have all
the core elements (management leadership and employee participation,
information dissemination, hazard identification, hazard assessment and
control, training, and program evaluation) to be successful.
The Department of Defense (DoD) also argued that the program
elements are essential. The DoD noted that the success of their program
is due to the elements of the program, including, in particular,
management leadership, employee participation, hazard prevention and
control, and monitoring injury records and responding to potential
problem areas (Ex. 30-3826).
OSHA has concluded that it is essential for ergonomics programs,
whether grandfathered or not, to address all of the core elements:
Management leadership and employee participation, hazard information
and reporting, job hazard analysis and control, training, MSD
management, and program evaluation. (The Agency has presented evidence
supporting each of these core elements in the summary and explanation
for the corresponding provisions of the standard, below.) Further, the
Agency finds that it is as important for a grandfathered program to
include all of the core elements as it is for a program brought into
existence to comply with the final rule to include these elements.
Although some commenters, as discussed above, argued that a program
could be effective without all of the core elements, OSHA finds their
arguments unpersuasive, based both on the record and the Agency's own
experience with successful programs.
The Agency believes that the core elements provide assurance that
the program will work as intended--management leadership will ensure
that the program has the continued backing of management, which is
essential to continued success; employee participation in the program
will help ensure that ergonomic hazards do not go undetected; hazard
information and reporting will ensure that employees are informed about
MSD symptoms and how to report them so that work-related MSDs are not
ignored; work restriction protection helps to ensure that workers
report signs and symptoms as early as possible; job hazard analysis and
control are needed to ensure that ergonomic hazards are found and
abated; MSD management is necessary so that MSDs are managed
appropriately and injured employees get well as soon as possible; and
program evaluation is necessary for the correction of deficiencies in
the program. Without the checks and balances the core elements provide,
OSHA believes that ineffective programs may be judged effective on the
basis of an inappropriate measure, and once-successful ergonomics
programs could deteriorate over time and leave employees unprotected.
Some rulemaking participants agreed that grandfathered programs
should include the core elements but argued that compliance with the
proposed basic obligation sections for each core element was not
essential to having an effective program (see, e.g., Exs. 30-1294, 30-
3813, 30-3723, 30-3765). These commenters believe that many employers
have effective programs that would not be recognized by the proposed
standard because they would not meet the proposed basic obligation
sections. ORC reflected the thrust of these comments as follows:
[[Page 68294]]
Equally important, contrary to OSHA's contention in the
preamble, the ability of an employer to continue applying an
existing program should not be based on whether the ``basic
obligation section of each program element in this standard'' is
satisfied. OSHA has provided no objective evidence that the
requirements of the proposed standard will be any more effective
than other programs already in place. There is certainly no basis
for compelling an employer to rework an effective program to force
it to meet the specifics even of the proposed basic obligations (Ex.
30-3813).
Dow, ORC, and others suggested that OSHA simply require
grandfathered programs to address the six basic elements of the program
instead of requiring them to meet the proposal's full basic obligation
for each core element (see, e.g., Exs. 30-2134, 30-2725, 30-3171, 30-
3765, 30-3813, 32-77). ORC noted that the proposed work restriction
protection requirements were particularly troublesome, since
``[v]irtually none of ORC's member companies, whose ergonomics programs
are among the most sophisticated and effective in the country, would
meet this requirement * * *'' (Ex. 30-3813). Dow was concerned that the
language in the proposal would not recognize their program, which is
tailored to fit their management structure. They stated:
The so-called Grandfather clause that OSHA has proposed is so
demanding in its requirements that companies that have existing and
successful ergonomics programs, such as Dow, will not be able to
take advantage of this provision to maintain their current programs.
The Grandfather clause is so limited that already functioning and
successful programs, tailored to the needs of a particular company,
business or workplace, will not be able to satisfy the requirement.
For example, in Dow's case, we would not be able to satisfy the
extensive recordkeeping requirements or elements of the WRP section
(since it goes beyond that required by Workers' Compensation laws.)
Similarly, given Dow's management structure, we would not satisfy
OSHA's communication and training requirements wherein they intend a
more archaic management structure, such as one having
``supervisors'' and the like, than what Dow utilizes. So even though
Dow has had a successful ergonomics program for years and has a
lower than average MSD incidence rate, we would have to scrap our
efforts and use a program which will not fit our needs or management
structure, just to comply with this standard. Dow believes this is
unacceptable.
Instead, Dow urges OSHA to delete the proposed Grandfather
clause and replace it with a provision that allows for an
``acceptable'' or ``appropriate equivalent'' program. Such a concept
is not foreign to OSHA or the regulated community as other OSHA
standards, such as the Process Safety Management (``PSM'') standard,
utilize this concept so that companies that have existing programs
that are functioning successfully can continue to use them. This
concept also allows companies who may not yet have an existing
program to create one tailored to their own needs, rather than use a
more ``one size fits all'' program as envisioned by this proposal.
``Acceptable (or appropriate) Equivalence'' would include those
programs who have the basic elements of a program, but not all the
mandated details or documentation. Such a concept embodies
``performance-oriented mandates'' at their best as they allow an
employer to employ those methods of prevention that best meets the
needs of its particular workforce and/or workplace. OSHA should only
be concerned with the results (i.e. lower injury rates) rather than
the methodology a particular employer used to obtain that goal (Ex.
30-3765).
At the hearing and in their notice of intention to appear at the
public hearing, Dow described their ergonomics program and detailed how
they believe their program would fall short of the proposal's
requirements (Ex. 32-77; Tr. 5339). Dow expressed concern that,
although their program meets the spirit of the proposed standard, it
would not meet the letter of the law.
In response to Dow's concern, OSHA reviewed the perceived
discrepancies between the proposed rule and Dow's description of their
program. In every respect except one, Dow's program would have
satisfied the proposed grandfather clause; the discrepancies Dow was
concerned about were apparently the result of misinterpretation rather
than deficiencies on the part of Dow's program. For example, Dow stated
that, in its program, employees report MSDs using the company's
existing injury and illness reporting system rather than a separate
system set up just for MSDs; Dow evidently believed that a separate
system would have been required by the proposal (Ex. 32-77; Tr. 5340).
However, the proposed standard would not have required employers to set
up a separate system for reporting MSDs as long as their existing
system included a system for the reporting of MSDs. On the other hand,
Dow was correct in stating that their program did not include the
proposed work restriction protection provisions and would therefore not
have been eligible for grandfather status under the proposed rule.
In its post-hearing submission, Edison Electric Institute argued
that the specificity of the proposal's basic obligations is counter to
the goal of flexibility, and the Institute recommended that the final
rule reduce the detail in the basic obligation sections to allow
employers greater latitude (Ex. 500-33).
The Mead Corporation suggested that, if the Agency's safety and
health program rule was not promulgated before the ergonomics rule,
OSHA should alter the grandfather clause in the ergonomics rule in one
of two ways: (1) Make the basic obligations less prescriptive and
detail acceptable alternatives for prevention-oriented programs, or (2)
permit employers with effective programs to maintain them without
making sweeping changes (Ex. 30-2216).
On the other hand, the AFL-CIO argued that the standard should
require employers to meet the proposed basic obligations for each core
element before being grandfathered in (Ex. 32-339; Tr. 3477). The AFL-
CIO pointed out, however, that the basic obligation sections for
several of the proposed core elements left out important requirements
that were included under the core elements:
The AFL-CIO believes that employers with existing programs
should be permitted to continue with these programs if they are
comprehensive, provide workers and their representatives full
information and rights of participation, and are effectively
reducing MSDs and exposure to hazards. However, as proposed, the
``grandfather'' provisions are deficient in a number of respects and
will permit employers to continue programs that do not provide
adequate protection.
First, the [proposed] basic obligation requirements which all
programs must meet, exclude a number of elements that in our view
are essential for an effective program. For example:
The [proposed] basic obligation section for Hazard
Information and Reporting * * * does not [include] any requirement
to provide employees information about MSD hazards.
The [proposed] basic obligation on training * * *
excludes any requirement for training supervisors or individuals
responsible for the ergonomics program, thus permitting programs to
be ``grandfathered'' even if persons responsible for the program do
not have the necessary training. The basic obligation for training
also fails to provide for job specific training on MSD hazards and
control measures.
The [proposed] basic obligation for Medical Management
* * * does not require that medical evaluations be conducted by a
health care provider.
The [proposed] basic obligation for Program Evaluation
* * * does not require consultation with employees in problem jobs
or their designated representatives to determine their views on the
effectiveness of the program (Ex. 32-339).
As noted earlier, other rulemaking participants also urged OSHA to
strengthen the proposed basic obligations sections (see, e.g., Exs. 30-
4200, 32-198, 32-210, 32-461). These commenters criticized the proposed
rule's lack of basic obligation
[[Page 68295]]
requirements for the training of managers and for employee
participation in job hazard analysis and control. UNITE decried the
omission from the proposal of a requirement for the health care
provider to be furnished with information about the workplace and the
employee's job (Ex. 32-198). Another commenter objected to the omission
from the proposal of requirements that limited the use of personal
protective equipment and required employers to provide it at no cost to
employees (Ex. 32-210).
Another group of commenters were particularly concerned about the
fact that the proposal would not have permitted their otherwise
excellent programs from being grandfathered because they did not have
work restriction protections now (see, e.g., Ex. 30-3723, 30-3765, 30-
3813). SBC Communications, Inc., represented those who opposed the
proposed grandfather clause's requirement for work restriction
protection:
In order to meet the grandfather clause, a company must have a
``functioning properly'' Wage Protection Program. Through our
extensive research and benchmarking, no company has this element to
their ergonomics program. Nor did OSHA provide any evidence of the
Wage Protection Program being trialed, researched, and/or tested at
a company. OSHA has made it nearly impossible for any company to
meet the requirements of the grandfather clause (Ex. 30-3723).
On the other hand, the AFL-CIO noted that the hearing testimony
demonstrates that some employers do currently provide wage protection
for employees who suffer MSDs:
The hearing record shows that some employers indeed are
maintaining the full wages of workers who are put on medical
restrictions as a result of MSDs (Tr. 16014, Tr. 14357) (Ex. 500-
218).
The General Electric Company argued that employers who have
employee involvement and an environment free of barriers to reporting
should not be required to follow the rule's requirements for WRP (Ex.
30-1071). Novartis Corporation went further, suggesting that the entire
MSD management element be removed from the standard (Ex. 30-3092). They
also recommended that compliance with the endpoint provisions not be a
condition for grandfathering existing programs.
The AFL-CIO recommended that OSHA permit existing programs without
work restriction protection to be grandfathered as long as the employer
incorporates such protections into the ergonomics program before the
effective date of the standard (Ex. 500-218). They believed that this
would help alleviate the concerns of employers whose programs were
missing only that one element.
Although the AFL-CIO provided evidence that some employers do
provide wage protection for their employees, OSHA believes, based on
the record, that very few employers' existing ergonomics programs
incorporate work restriction protection in the form required by the
proposed standard. Despite the fact that many employers have policies
(such as sick leave, short-term disability, and so on) that assure
employees that they will not experience economic loss if they are
injured, the record of this rulemaking indicates that many workers fear
they will lose wages and benefits if they report their injuries (see
the detailed discussion of the record in the summary and explanation
for paragraph (r) below). The Agency therefore concludes that
grandfathered programs must protect against such loss if they are to
achieve the early reporting that is essential to program success.
Consequently, in paragraph (c)(2) of the final rule, OSHA is allowing
existing ergonomics programs that otherwise meet the criteria of the
grandfather clause up to an additional 12 months to adopt an MSD
management policy, including work restriction protection. The MSD
management policy must meet paragraphs (p) through (s) of the final
rule. The MSD management requirements in the final rule contain many
inter-related provisions that are key to a successful ergonomics
program. (See the summary and explanation for paragraphs (p) through
(s) of the final rule.) The Agency has concluded that, because of the
many interdependencies in final rule paragraphs (p) through (s),
employers need to follow all of the detailed requirements of those
paragraphs. However, to ensure that existing programs will still be
able to qualify for grandfather status even if they do not meet the
final rule's MSD management requirements, OSHA is allowing employers up
to a year to meet those provisions.
Based on a review of the evidence in the record, OSHA has concluded
that the proposed standard's basic obligation requirements failed to
provide employers with effective existing programs sufficient
flexibility with regard to grandfather status. Accordingly, in
paragraph (c)(1) of the final rule, OSHA has not carried forward the
proposed requirement that employers' programs satisfy the basic
obligation of each element and instead requires that those programs
simply contain the core elements and certain subelements, which the
Agency has pared to the minimum necessary to ensure the continued
effectiveness of grandfathered programs. In particular, OSHA has
streamlined and made more flexible the provisions that rulemaking
participants claimed were most problematic such as the employee
participation and WRP provisions. OSHA also has placed the required
subelements in the text of the grandfather clause itself rather than in
the basic obligations sections for each of the core elements, as
proposed. OSHA believes that these changes will make the core elements
that grandfathered programs must currently have as flexible as possible
while still ensuring that the basic components that make each core
element effective are present.
In addition to considering the comments of industry representatives
objecting to the core elements and their subelements, OSHA has reviewed
the list of subelements that several labor organizations believed were
essential to determine whether they should be included in the final
rule's grandfather clause requirements (Exs. 32-198, 32-339; Tr. 3477).
The Agency has included several improvements in the final rule's
grandfather clause as a result of this review. First, the grandfather
clause's training element now contains a requirement that employees be
trained in MSD risk factors (see paragraph (c)(1)(iv)). This provision
ensures that employees will be informed of MSD hazards in their
workplace. Second, OSHA has added a requirement for the training of
managers and supervisors to this core element. Third, OSHA has included
language specifically requiring employees to be involved in program
evaluation to the core element for employee participation (see
paragraph (c)(1)(ii)). These additions will help ensure that
ineffective programs are not accepted under the grandfather clause.
The remaining suggestions from these commenters, such as UNITE's
recommendation to include a requirement for the health care provider to
be furnished with information about the workplace and the employee's
job (Ex. 32-198), have been accommodated by paragraph (c)(2) of the
final rule. Existing programs need not currently have MSD management as
a core element in order to qualify for grandfather status. However,
grandfathered programs will need to add an MSD management element
meeting paragraphs (p) through (s) within 1 year after the final
standard's effective date. Thus, grandfathered programs will have to
meet the same MSD management requirements as programs that are not
grandfathered.
[[Page 68296]]
4. Whether the Language of the Grandfather Clause Is Vague
Some rulemaking participants argued that the language in the
proposed grandfather clause was vague (see, e.g., Exs. 30-494, 30-2208,
30-3922, 30-4467; Tr. 16470). They thought that this language would
make it difficult for an employer to determine if he or she qualified
under the grandfather clause. For example, Dennis Morikawa of Morgan,
Lewis, and Bockius stated:
These vague requirements do not inform employers which ergonomic
programs OSHA would accept. Specifically, OSHA does not explain what
a ``basic obligation'' is; nor does the Proposed Rule specify the
level of detail employers must achieve when they attempt to comply
with a basic obligation. Moreover, the grandfather clause does not
make clear whether an effective, existing program without a single-
incident trigger would be acceptable. For example, if programs that
satisfy the CAL/OSHA standard discussed above would be accepted
under the grandfather clause, then most companies would seek to
design and install ergonomics programs before the effective date of
the new Proposed Rule. But if a two-incident trigger would not
satisfy a ``basic obligation,'' employers would be forced to re-
design existing programs in order to meet the Proposed Rule, thereby
creating a double standard of compliance. This, of course, would
effectively eviscerate the notion of a grandfather clause. OSHA
needs to specify which aspects of the Proposed Rule would be
considered basic obligations, and the amount of attention to detail
that employers must pay when adhering to these basic obligations.
Without an assurance from the agency that an adherence to basic
obligations would not require major overhauls of effective programs,
the grandfather clause is illusory (Ex. 30-4467, p. 13).
Some rulemaking participants stated that the vagueness of the
grandfather clause would force employers to refer to the more detailed
provisions of the standard to understand their compliance obligations
(see, e.g., Exs. 30-494, 30-4340). They argued that the effect of this
vagueness would be that employers would be forced to comply with the
entire standard, which would render the grandfather clause useless.
Even some of those who supported OSHA's proposal in general agreed
that the proposed grandfather clause was vague (see, e.g., Exs. 30-
4538, 32-210). These rulemaking participants and others urged the
Agency to provide compliance assistance material, such as flowcharts,
checklists, and other tools, to help employers determine whether their
programs qualified under the grandfather clause (see, e.g., Exs. 30-
4538, 32-210, 32-339, 500-207). For example, the International
Brotherhood of Teamsters stated:
[W]e strongly urge OSHA to provide checklists and evaluation
tools to assist employers with the evaluation of their programs.
Employers who want to take advantage of the ``grandfather''
provisions should be required to use a checklist based on objective
criteria to demonstrate that their program is effectively reducing
exposures to ergonomic risk factors, reducing the incidence and
severity of musculoskeletal disorders, and complies with the
standard's basic obligations. These materials are currently used by
many ergonomics programs and could be made available by OSHA through
its website (Ex. 500-207).
OSHA believes that the grandfather clause in the final standard is
clear. For example, the training element requires the training of
managers, supervisors, and employees in: (1) The employer's ergonomics
program and their role in it; (2) the recognition of MSD signs and
symptoms; (3) the importance of early reporting; (4) the identification
of MSD risk factors and methods that may be used to abate them; and (5)
the risk factors in problem jobs in the workplace and methods of
controlling them. To provide employers flexibility, the standard does
not address the details of how that training is provided, but it is
clear about the topics the training must cover.
Other elements provide clear direction about how an employer is to
demonstrate compliance. For example, the employer must evaluate the
program, as demonstrated by regular reviews of the elements of the
program, the effectiveness of the program as a whole, and the
correction of identified deficiencies. Again, this language provides
clear criteria that employers' evaluations must meet in order to be
grandfathered in.
There are two aspects to Mr. Morikawa's comments (Ex. 30-4467)
about the acceptability for grandfather clause status of programs
meeting the California standard's two-incident trigger. The first
relates to Federal OSHA's acceptance of the California ergonomics rule
under the Act's provisions for ensuring that state standards developed
by the State Plan States are as effective as the Federal standard. OSHA
will, after it promulgates this final ergonomics program standard,
evaluate the ergonomic standards developed by State Plan States (such
as California and Washington) to determine whether they are ``as
effective as'' the Federal standard. OSHA clearly could not have made
such a determination at the time of the proposal, as Mr. Morikawa
suggests, because the form and content of the final OSHA rule could not
be known at that time. However, OSHA is unlikely to find any standard
that delays protection to employees, including those in small firms, or
that provides less protection to employees overall, as effective as the
final rule.
The second relates to the details of grandfathered programs.
Paragraph (c) of the final rule does not attempt to dictate precisely
what form a grandfathered program must have, beyond stating that it
must have the core elements of successful programs, be demonstrably
effective, and be evaluated and in place by the final rule's effective
date. OSHA has not mandated such program specifics because
grandfathered programs will take many different forms, be at many
different stages of development, and be taking various approaches to
achieving success. The grandfather clause thus insists on the
fundamentals but leaves the specifics to employers.
The final standard also requires the employer to demonstrate that
an existing program is effective before that program qualifies under
the grandfather clause (see paragraph (c)(1)(v)). The employer is free
to use one of the measures specified in the standard itself (that is,
reductions in the number or severity of MSDs, increases in the number
of jobs in which ergonomic hazards have been controlled, reductions in
the number of jobs posing MSD hazards to employees) or any other valid
measure that the employer chooses to evaluate the program and
demonstrate effectiveness. The Agency currently provides some
compliance assistance materials that include ways to measure the
effectiveness of ergonomic interventions. For example, the ``Ergonomic
Program Management Guidelines for Meatpacking Plants'' (Ex. 2-13)
provides a method for monitoring trends in cumulative trauma disorders
that may be used for this purpose. OSHA's 1989 Voluntary Safety and
Health Program Management Guidelines (Ex. 2-12) also describe effective
program evaluations. These documents are available on OSHA's Website
(http://www.osha.gov). OSHA also intends, as resources permit, to
provide additional compliance assistance materials that will help
employers determine whether or not their programs are effectively
addressing MSDs.
In sum, OSHA believes that the final grandfather clause provides
sufficient information for employers to determine if their programs
qualify for the grandfather clause. OSHA compliance officers also will
be able to assess whether the employer's program qualifies for
grandfather status. OSHA will include directions on how this is to be
done in a compliance directive to be
[[Page 68297]]
issued soon after promulgation of the final rule.
5. Alternatives and Revisions to the Grandfather Clause
Several rulemaking participants suggested approaches that would
permit alternative programs developed after the standard is in effect
to be followed by employers in lieu of compliance with the standard
(see, e.g., Exs. 30-2216, 30-3765; 30-3813, 32-339, 500-44; Tr. 3477).
Many of these commenters argued that their recommendations would
address the previously discussed concerns with the proposed rule's
grandfather clause--concerns such as the perceived illusory nature,
vagueness, and subjectivity of the proposed grandfather clause. The
alternatives or revisions to the proposed grandfather clause suggested
by these commenters included:
Revising the clause to allow programs that are incomplete
at the time of the effective date to be grandfathered (see, e.g., Ex.
30-3813; Tr. 4111);
Revising the clause to make clear that a company whose
program had been grandfathered could extend that program (and
grandfather status) to establishments newly built or owned, or acquired
through mergers or acquisitions (see, e.g., Exs. 30-3813, 30-3922, 32-
78; Tr. 5538);
Revising the clause to allow any program developed by an
employer at any time, including after the standard has become
effective, to be implemented without fear of citation for noncompliance
with the OSHA standard (see, e.g., 30-429, 30-1090; Tr. 15657);
Revising the clause to specify that OSHA will certify or
approve employers' programs as qualified for grandfather status (see,
e.g., Ex. 32-133, 500-139);
Revising the clause to recognize for grandfather status
any program that complies with either the Washington State or the
California standard (see, e.g., Exs. 30-429, 30-434, 30-973, 30-1090,
30-1547, 30-1671, 30-2835, 30-3813, 30-4134, 31-337, 32-311);
Delete the grandfather clause and substitute instead
provisions giving employers credit for already having performed some of
the required elements, such as training, before the effective date
(see, e.g., Exs. 30-1547, 32-185, 32-311, 32-339, 32-461, 500-207; Tr.
6423, 11129, 13092).
For example, ORC made several suggestions along these lines (Ex.
30-3813; Tr. 4111). First, they recommended that OSHA rename this
section ``Alternative Programs Provision.'' They also suggested that,
as a stimulus to innovation, OSHA allow employers who do not now have
fully developed programs to qualify for grandfather status in the
future when they do have such programs. DuPont SHE Excellence Center
made a similar recommendation:
[One] improvement in the flexibility would be to allow whichever
elements that have been put in place to be grandfathered and those
which are not in place to be added. The grandfather clause should
not be an ``all-or-nothing'' clause (Ex. 30-2134).
In addition, ORC, along with other rulemaking participants,
recommended allowing an employer's program to be grandfathered after
the effective date of the standard, which would permit employers
involved in mergers and acquisitions to put their already grandfathered
programs into place in new establishments (see, e.g., Exs. 30-3813, 30-
3922, 32-78; Tr. 5538). ORC also recommended that OSHA permit employers
to extend existing grandfathered programs to new establishments
operated by the same employer (Ex. 500-214).
The rulemaking participants who recommended that the standard
permit future alternative ergonomics programs to be grandfathered did
not address how an employer might avoid noncompliance while developing
the program or in the period before the employer had demonstrated the
effectiveness of the new program. OSHA does not believe that such an
approach would be workable. First, it would be administratively
difficult (if not impossible) to enforce. Second, OSHA is issuing a
final standard addressing ergonomic injuries because the varied
approaches and often isolated interventions that many employers have
adopted have not effectively addressed the problem, and a uniform and
comprehensive approach to this most serious of occupational safety and
health issues is clearly necessary. The approach recommended by the
commenters would mean that, while employers try different programmatic
approaches, employees would continue to be exposed to ergonomic hazards
with no guarantee that the employers would ever qualify for
``grandfather'' status. Third, OSHA is loathe to require the
expenditure of resources to make existing, effective programs
containing all the core elements meet all the requirements being
imposed by the full ergonomics standard. Employers without programs and
employers with ineffective programs or programs missing key elements
would need to expend resources to meet whatever requirements OSHA
imposed on alternative programs. The Agency believes that these
resources should be expended to meet the final standard in all its
details so as to ensure adequate protection for employees.
OSHA agrees, however, that a company that meets the rigorous
standards of paragraph (c) and thus qualifies for grandfather status
should be permitted to apply the same excellent program that was
grandfathered to new plants it builds or acquires by merger or
acquisition. OSHA believes that permitting a grandfathered program to
be extended in this way makes sense from two perspectives: first, it
ensures that the new establishments will benefit from the expertise in
ergonomics programs that the parent company brings, and, second, it
ensures that the company will have a single, cohesive corporate
ergonomics program. For these reasons, OSHA has decided to extend
grandfather status to the programs implemented in newly acquired or
built plants of a corporation that already has a grandfathered program.
The American Industrial Hygiene Association (Ex. 32-133)
recommended that employers formally request OSHA to recognize their
programs:
As the standard puts much of the burden on employers to adapt
the program to their own needs, it would be appropriate for OSHA to
say that employers can ask to have their program ``grandfathered''.
This would require them to formally document their program and
compare it with the OSHA requirements. This should not be a problem
if the company has a functional program (Ex. 32-133).
Kaiser Permanente made the same recommendation in their post-hearing
comments (Ex. 500-139).
However, OSHA's resources do not permit it to evaluate employers'
programs for grandfather status; in addition, a ``paper'' review of a
program is not adequate to determine how it is working in practice.
OSHA continues to believe that employers are in the best position to
determine whether their programs qualify for grandfather status.
The Eastman Kodak Company (Exs. 30-429, 30-1090) suggested that the
Agency adopt a flexible grandfather clause that recognizes good faith
on the part of employers:
We believe that what OSHA needs is a ``good faith'' grandfather
clause that recognizes employers for a positive effort and ongoing
solutions. We believe that it should be sufficient for an employer
to have a written active program and show intent, to be compliant.
The existing program rule (WAC 296-62-05110) of the Washington State
proposed standard is better suited to this end and is recommended
for incorporation (Ex. 30-429).
[[Page 68298]]
Other rulemaking participants also recommended that OSHA adopt the
proposed Washington State approach towards existing programs (see,
e.g., Exs. 30-434, 30-2835, 30-3813, 30-4134, 31-337, 32-311). They
argued that Washington's approach, which accepts alternative programs
when the employer can demonstrate that the alternate methods taken as a
whole are as effective as the requirements of the standard, would
grandfather far more effective programs than OSHA's proposal. They also
noted that this approach would focus the Agency's efforts on results
rather than on details they perceived as minor.
The Washington State standard's grandfather clause reads as
follows:
WAC 296-62-05110 When Do Employers' Existing Ergonomics Activities
Comply With This Rule?
Employers may continue to use effective alternative methods
established before this rule's adoption date. If used, the employer
must be able to demonstrate that the alternative methods, taken as a
whole, are as effective as the requirements of this rule in reducing
the WMSD hazards of each job and providing for employee education,
training and participation (Ex. 500-71).
Other commenters (see, e.g., Ex. 30-4467) urged OSHA to accept
compliance with the California ergonomics standard as constituting
acceptance under the grandfather clause.
Again, as discussed above, formal recognition of the ``as effective
as'' status of these two State-plan State standards must await a formal
determination by Federal OSHA. However, since acceptance under the
final rule's grandfather clause depends on program effectiveness,
confirmation of that effectiveness through evaluation, and the
inclusion in the program of the core elements, many proactive
California and Washington employers' programs are likely to meet the
final standard's requirements for grandfather status. The programs of
many employers in these states may not meet these requirements,
however, since neither State standard requires all of the core
elements.
The AFL-CIO, the International Brotherhood of Teamsters, and others
suggested that OSHA give employers credit for steps, such as training
and job hazard analysis, they have taken toward controlling ergonomic
hazards or for controlling hazards in problem jobs in their workplaces
(see, e.g., Exs. 30-1547, 32-185, 32-311, 32-339, 32-461, 500-207; Tr.
6423, Tr. 11129, Tr. 13092). These commenters believed that such credit
could substitute for a true grandfather clause.
The final ergonomics standard does give credit to employers who
have already carried out certain procedures or voluntarily complied
with portions of the standard. For example, employers who have already
performed job hazard analysis in some jobs would not have to re-analyze
those jobs (see paragraph (j)(1) of the final rule). Likewise,
employers who have already trained their employees in the ergonomic
control measures they instituted would not have to duplicate that
training (see paragraph (t)(5) of the final rule).
Some rulemaking participants suggested that OSHA recognize for
grandfather status any ergonomics program in effect at the time the
final rule becomes effective (see, e.g., Exs. 30-494, 30-2989, 30-3781,
500-213; Tr. 10089). These commenters believe that these employers
should be rewarded for their proactive stance toward ergonomics. For
example, the National Council of Agricultural Employers said, ``a
grandfather clause should recognize and exempt forward-thinking
employers that have already implemented an ergonomics program'' [Ex.
30-3781]. The National Association of Convenience Stores went further
to suggest that OSHA also grandfather trade-association-provided
programs: ``OSHA [should] consider grandfathering existing risk
management programs or industry-specific programs which trade
associations may be able to provide to their members' (Tr. 10089). The
Air Conditioning Contractors of America recommended that OSHA recognize
virtually any existing ergonomics program under the grandfather clause
(Ex. 500-53). It said that OSHA could require grandfathered programs to
be improved at such time in the future as MSD hazards became better
understood.
As explained earlier, OSHA believes that it is essential for
grandfathered ergonomics programs to include all of the core elements
of successful ergonomics programs and to meet demonstrable
effectiveness criteria. OSHA agrees that employers who have already
adopted existing programs are proactive; however, some of these
employers are likely to have programs that are not as protective as the
program OSHA is requiring or programs that do not include those
elements shown to be essential to program effectiveness. It would
therefore be inappropriate for OSHA to grandfather these programs.
Several hearing participants provided OSHA with alternative
regulatory language for the grandfather clause in their post-hearing
submissions (Exs. 500-44, 500-78, 500-80). Southwestern Bell
recommended the following language (Ex. 500-78):
How does this standard apply if I already have an ergonomics
program?
If you already have an ergonomics program for the jobs this
standard covers, you may continue that program provided:
(a) You have a written program that contains:
(i) Defined roles and responsibilities;
(ii) Training on the prevention of work-related MSD's; and
(iii) Procedures for completing job hazard analysis for work-
related MSD's.
(b) The controls implemented are intended to reduce or eliminate
risk factors for work-related MSD's;
(c) You have a program evaluation process; and you have implemented
your program before the effective date of the final rule (Ex. 500-78).
OSHA has considered Southwestern Bell's suggested language but has
rejected it because the programs that would be grandfathered in by such
language would be missing several important elements--employee
participation, hazard information and reporting, and MSD management,
for example. As explained earlier, OSHA considers these elements
essential to any successful ergonomics program. In addition,
Southwestern Bell's approach does not contain any requirement that the
program be effective, be achieving positive results, or be reducing the
number of MSDs.
The American Petroleum Institute (API) proposed language that would
accept an employer's existing program if it contained the following
seven elements: (1) Management leadership and employee participation,
(2) hazard information and reporting, (3) job hazard analysis and
control, (4) training, (5) MSD management, (6) program evaluation, and
(7) recordkeeping (Ex. 500-80). API's proposal also would require
grandfathered programs to contain subelements under each element. For
example, under job hazard analysis and control, API's language included
the following provisions: ``Jobs in the workplace must be assessed to
identify the potential for MSD hazards. Consistent with the job
assessment, an action plan is developed to control identified or
potential MSD hazards determined to present a significant risk.'' Their
language also suggested that grandfathered programs demonstrate
effectiveness via measures such as the following: Decreases in the
frequency of reported MSDs, decreases in the severity of MSDs, reduced
workers' compensation claims related to MSDs, symptoms surveys, and a
reduction of MSD risk factors. API did not include
[[Page 68299]]
work restriction protection among the elements grandfathered programs
must have.
API's suggested grandfather clause had two other features. First,
it specifically recognized any program meeting the requirements of an
employer's State OSHA ergonomics standard. Second, it recognized
existing programs in both existing workplaces and newly acquired or
built plants of a corporation that has a grandfathered program (Ex.
500-80).
API's approach is similar to the one OSHA is taking in the final
standard's grandfather clause. The final standard includes all of API's
recommended elements, and also requires the employer to demonstrate
that the ergonomics program is effective. API's suggested criteria for
determining effectiveness are also similar to those listed as examples
in the final standard. Further, the final rule permits employers with
grandfathered programs to extend those programs to new corporate
plants.
On the other hand, OSHA is not, as discussed above, automatically
grandfathering in employers' programs that comply with State-plan State
ergonomics programs. In addition, API's suggested regulatory text would
not require employers to provide WRP to employees who suffer work-
related MSDs. As discussed earlier, OSHA has concluded that WRP is an
essential part of any ergonomics program whether it is grandfathered or
not.
The Dow Chemical Company also provided alternative language for a
grandfather clause (Ex. 500-44). Their alternative provided criteria
for seven core elements that ergonomics programs would have to meet to
be grandfathered: hazard communication, MSD reporting, hazard
identification, hazard evaluation and prioritization, risk mitigation
or control, appropriate knowledge and skills (that is, training), and
program evaluation. Dow included specific criteria for each of these
elements and an explanation of how the criteria could be met for each
of the elements. Dow likened their proposal to OSHA's Process Safety
Management Standard (Sec. 1910.119), which sets the basic elements of a
process safety management program and requires the employer to spell
out the details.
However, OSHA is not adopting Dow's alternative grandfather clause
approach in the final rule, for several reasons. First, Dow's language
does not address several elements of ergonomics programs that OSHA
considers essential, including management leadership, employee
participation, and MSD management. Second, Dow's alternative is overly
detailed. For example, the hazard communication element incorporates
separate provisions on general information regarding MSDs and general
information on warning signs associated with MSDs. It also includes a
provision for providing specific information on potential ergonomic
hazards in an employee's work area. Third, Dow's suggested grandfather
clause appears to be designed to tightly match the company's own
program rather than to fit a more widely recognized model ergonomics
program, such as that in OSHA's meatpacking guidelines, a program
lauded by many rulemaking participants who had experience with
ergonomics programs (see, e.g., Exs. 30-1294, 30-2216, 30-3046, 30-
3677, 32-185; Tr. 14713). OSHA believes that more employers with
effective existing programs will be able to qualify under OSHA's final
grandfather clause, which is modeled after the Meatpacking Guidelines
program, than those required by Dow's alternative.
Dow also commented on the enforcement implications of a
performance-based grandfather clause:
The verification of compliance to a performance language
regulation is most effectively achieved when the method used for
prescriptive regulation compliance verification is modified. The
method used by Compliance Officers for a prescriptive regulation is
based on the Officer's knowledge of what is specified by the
regulation to be the practice, i.e. guard rail specification.
However, for performance language regulations, such as the Process
Safety Management regulation and the language suggested by Dow for
this proposed regulation. The Compliance Officer only knows what
elements are to be addressed by an employer's program: They will not
know what to expect for practices. The means to address those
elements are left to the employer so that they can use whatever
means best match their workplace needs and the local culture. The
Compliance Officer can only gain an understanding of that workplace
program from the employer. This, we believe, is where the
modification in approach should occur (Ex. 500-44).
OSHA believes that, like a true performance standard, the final
grandfather clause is not prescriptive in nature and leaves the details
of compliance to employers to determine. OSHA compliance personnel will
look first to the employer's demonstration that the program includes
the core elements and subelements and second that the program is
effectively addressing MSDs. Compliance officers also may assess
whether the employer's program in practice matches the written program
that the employer has developed.
Magnus Farley, Inc., did not provide alternative language for the
grandfather clause; however, they did recommend that OSHA develop
revised language and publish it for comment before adopting a final
rule (Ex. 500-102). They argued that this would give industry time to
evaluate the new provision and respond to it. OSHA finds a re-proposal
unnecessary, because participants had ample opportunity to provide
comments on the proposed grandfathered clause. The sheer volume of
comments received on this topic provides evidence of this fact. Further
the final rule's grandfather clause is a logical outgrowth of the
proposal. In fact, the final rule responds to the overwhelming public
comment that OSHA should focus on effectiveness and recognize existing
programs that do not look exactly like the one required by the rule.
Some rulemaking participants supported the proposal's approach
toward existing programs with only minor modification (see, e.g., Exs.
30-973, 30-1547, 30-2387, 30-3748, 32-85, 32-111, 32-339, 500-207; Tr.
15893). For example, the American Association of Occupational Health
Nurses supported the proposed grandfather clause, but recommended that
OSHA provide guidance for employers to use in evaluating their programs
(Ex. 30-2387). The American Nurses Association supported the proposed
requirement that existing program meet the basic obligation of each of
the core elements of an ergonomics program (Ex. 30-3686). They did,
however, recommend allowing employers up to 6 months to modify their
programs so that they meet these basic obligations.
As noted earlier, program evaluation guidance is already available
from the Agency. In addition, OSHA will be providing additional
compliance assistance materials in the period following publication of
the final rule. These materials will help employers judge whether their
programs are effective and whether they qualify for grandfather status.
The final grandfather clause essentially accommodates the American
Nursing Association's suggestion. Employers who, through one of the
measures given in paragraph (c)(1)(v), can demonstrate that their
programs are effective are free to add features that will bring them
into compliance with the criteria given in paragraph (c)(1) any time
before the effective date of the final standard. In addition, employers
are given an extra 12 months to incorporate work restriction protection
into their programs.
[[Page 68300]]
The Eastman Kodak Company argued that the proposal's grandfather
clause would have required employers to fix all problem jobs before
their programs were recognized (Exs. 30-429, 30-1090). The Boeing
Company also noted that employers may have an acceptable program that
covers some, but not all, of the jobs covered by the standard (Exs. 30-
973, 30-1547). Boeing suggested allowing employers up to 2 years after
the effective date to cover all such jobs.
As noted earlier, the final grandfather clause would permit
employers to extend an ergonomics program that was successful in
addressing some problem jobs to all problem jobs. In addition, because
the final rule's compliance endpoints do not contain a set compliance
deadline, employers may prioritize jobs for analysis and control if all
jobs could not be controlled by the final rule's effective date.\6\
Thus, the final standard addresses the concerns of these two rulemaking
participants.
---------------------------------------------------------------------------
\6\ Even though the final rule's grandfather clause does not
contain a fixed deadline for implementing controls for a problem
job, an employer with a grandfathered program is expected to
institute permanent controls as soon as possible. An employer who
postponed the control of MSD hazards beyond a reasonable amount of
time would have difficulty demonstrating the effectiveness of the
program.
---------------------------------------------------------------------------
Some rulemaking participants suggested making the grandfather
provisions more comprehensive (see, e.g., Exs. 32-182, 32-198, 32-210,
32-339, 32-461). First, as noted earlier, the AFL-CIO and others
recommended strengthening the basic obligations for four of the six
core elements (see, e.g., Exs. 32-198, 32-210, 32-339). Second, some
participants urged OSHA to develop and publish checklists and
evaluation tools to assist employers with the evaluation of their
programs (see, e.g., Exs. 32-85, 32-210, 32-339). Without these tools,
they argued, an employer's program could be grandfathered without any
solid demonstration that it is effective. The AFL-CIO argued that the
standard should be as protective as, and consistent with, existing
effective ergonomics programs, OSHA general duty clause settlement
agreements, and OSHA and NIOSH recommended practice (Ex. 32-339). In
keeping with this goal, they developed principles that they believe
should guide OSHA in casting the final standard:
The standard should codify and reflect the good industry
practices and programs implemented by employers who have effectively
addressed ergonomic hazards. It should build on the agency's
enforcement actions and settlement agreements on ergonomic hazards
under the general duty clause. The standard also should be
consistent with the measures used in other agency standards on toxic
substances and physical agents such as the lead and formaldehyde
standards and those which follow a programmatic approach, such as
the Process Safety Management and Hazard Communication Standards
(Ex. 32-339).
OSHA believes that the final rule's grandfather clause is
comprehensive enough to ensure that inadequate programs do not qualify
and is flexible enough to permit many different kinds of effective
programs to qualify. As explained previously, the Agency believes that
requiring programs to meet a combination of essential program elements
and recognized effectiveness measures will prevent inadequate
ergonomics programs from achieving grandfather status. On the other
hand, OSHA does not agree that it is necessary to codify the precise
practices used in the most effective programs, as the AFL-CIO suggests.
Doing so would unnecessarily limit an employer's flexibility in
complying with the final standard. The Agency believes that the final
rule has achieved a balance between flexibility and comprehensiveness
that will recognize effective ergonomics programs and deny grandfather
status to inadequate ones.
6. Other Comments on the Proposed Grandfather Clause
The National Soft Drink Association objected to the requirement
that the employer's program be evaluated and found to be functioning
properly before the effective date of the standard (Ex. 30-3368). The
trade association argued that a thorough evaluation of any program will
probably uncover areas that could be improved. Other rulemaking
participants also recommended that the standard allow employers to
modify their programs so that they could be improved (see, e.g., Exs.
30-1547, 30-3765, 30-4130, 30-4537). For example, the Boeing Company
was concerned that an employer would not be able to improve an existing
program without falling out of compliance with the grandfather clause
(Ex. 30-1547). In response, OSHA recognizes that all ergonomics
programs will need to be modified over time to correct deficiencies.
The standard not only accommodates this, but requires it in paragraph
(c)(1)(v).
Some commenters stated that the proposed grandfather clause would
force existing programs to include the six core elements if they wished
to be grandfathered even if the employer did not have an employee with
an MSD that triggered the standard (see, e.g., Exs. 30-715, 30-3678).
In response, OSHA considers it most unlikely that an employer with an
effective existing program would not have employees experiencing MSDs.
Some rulemaking participants suggested that OSHA strengthen the
grandfather clause in various ways (see, e.g., Exs. 30-2039, 30-4538,
32-182, 32-185). For example, the American Federation of Government
Employees recommended that employers have a documented program in place
for at least 2 years before being eligible and that a grandfathered
program be required to comply with the full standard if any MSDs occur
(Ex. 30-4538). They also urged OSHA to require that, in evaluating the
program, the employer determine that it is effective in addition to
functioning properly. The American Federation of State, County, and
Municipal Employees recommended that OSHA require that all elements of
an employer's ergonomic program be effective before the employer is
eligible under the grandfather clause (Ex. 32-182). Mr. Howard Egerman
was concerned that having the employer evaluate its own program was
bound to be ineffective because the employer could not be disinterested
(Ex. 30-115). Communication Workers of America Local 2222 recommended
that the standard require employees to agree with the employer's
evaluation before an existing program would be acceptable and that OSHA
mediate any disputes (Ex. 30-2039).
OSHA believes that the grandfather clause in the final rule will be
protective of employees' safety and health without the addition of
these suggestions. The Agency is therefore not setting a minimum time
period that an employer's program must have been in place to be judged
effective to qualify for the grandfather clause. The final grandfather
clause requires the employer to be able to demonstrate that the program
is effective and to evaluate its elements and correct any deficiencies
identified before the effective date. \7\ This will ensure that only
relatively mature programs qualify for grandfathering.
---------------------------------------------------------------------------
\7\ However, as explained earlier, the final grandfather clause
does permit an employer to incorporate work restriction protection
in the ergonomics program within 12 months of the effective date.
---------------------------------------------------------------------------
Many rulemaking participants testified that MSDs still occur in
workplaceswith the best ergonomics programs in place (Exs. 30-3765; 30-
4046; Tr. 14730). OSHA agrees that this is often the case, and the
final rule specifically notes that the occurrence of MSDs does not
constitute a violation of
[[Page 68301]]
the standard (see the note to paragraph (k)).
Although the employer will be evaluating the program, OSHA believes
that Mr. Egerman's concern is unfounded, because paragraph (c)(1)(v)
requires the employer to be able to demonstrate that the program is
effective. This provision, and the inclusion of the core elements,
should ensure that the evaluation is appropriate. In addition, the
final grandfather clause requires qualifying programs to include
employee participation in program evaluation. This will also act as a
check on the accuracy of the evaluation process. For these reasons, the
Agency believes that the grandfather clause in the final ergonomics
standard will provide an appropriate level of protection for employees.
Some rulemaking participants objected to language in the proposal
that required the employer to show that their program complies with the
basic obligations and is functioning properly (see, e.g., Exs. 30-541,
30-562, 30-1355, 30-1547, 30-3117, 30-3783, 30-4607). They argued that
the burden should be on OSHA's compliance staff to address ergonomic
hazards rather than on the employer to demonstrate that its program
qualifies. Some of these rulemaking participants argued that placing
the burden on employers to demonstrate program effectiveness would
disproportionately affect small employers, who do not have the
resources of larger ones (see, e.g., Exs. 30-3117, 30-3783).
Caterpillar, Inc. stated that the subjective nature of the grandfather
clause would lead to uneven enforcement across employer groups and
across the nation (Ex. 30-4607).
The American Apparel Manufacturers Association also was concerned
about enforcement and gave the following example of how an employer's
interpretation of what constitutes a problem job could differ from that
of an OSHA compliance officer:
An apparel manufacturer may see two sewing jobs as extremely
different, involving different activities and physical requirements,
but an OSHA inspector with no experience in the apparel industry may
well see them as the same. This ambiguity of language may cause
penalties against companies who believed they were, in good faith,
running a successful ergonomics program (Ex. 30-4470).
The Boeing Company was also concerned about being second guessed by
OSHA enforcement personnel (Exs. 30-973, 30-1547). They recommended
that the standard unambiguously recognize programs addressing the basic
obligations. In particular, Boeing urged OSHA to clarify that an
employer who is complying with a written program that meets the
grandfather clause is in compliance with the standard (Ex. 30-1547).
They argued as follows:
Where employers are already undertaking what can reasonably be
done in good faith to minimize problem jobs, they should be
protected from second-guessing by inspectors. OSHA's limited
resources are better used focusing on worksites where ergonomic
hazards have yet to be addressed, not on worksites which have
already implemented effective ergonomics programs (Ex. 30-1547).
Others believed that it is appropriate for OSHA to require
employers to demonstrate the effectiveness of their programs (see,
e.g., Exs. 30-429, 30-2835, 30-3813, 30-4134, 31-337, 500-214). These
commenters argued that this was the approach taken by Washington State
in its ergonomics standard, and they believed that it was reasonable.
OSHA finds, based on a review of the evidence in the record as a
whole, that the final grandfather clause is not likely to lead to
uneven enforcement. It is true that employers will need some method of
assuring themselves that their ergonomics program qualifies for the
grandfather clause, and the method chosen also will be useful to OSHA
compliance personnel. However, OSHA will not cite employers who make an
adequate demonstration \8\ that their programs are effective and
include the elements and subelements in paragraph (c)(1). However, if
the Agency finds objective evidence that the employer is basing the
demonstration on inaccurate information, OSHA will not consider that
employer's program as qualifying for grandfather status.
---------------------------------------------------------------------------
\8\ An adequate demonstration is one that touches on all
subelements spelled out in paragraph (c)(1) and that shows
effectiveness using an appropriate measure of effectiveness.
---------------------------------------------------------------------------
OSHA also believes that it is reasonable and appropriate to place
the burden of demonstrating that their programs qualify for grandfather
status on employers because grandfathered programs are the
``exception'' to the standard. Employers who choose to take advantage
of using a program that is not required to meet the full ergonomics
standard in all its details can reasonably be expected to produce
evidence that their programs qualify for the grandfather clause. OSHA
needs assurance that employees in workplaces with grandfathered
programs will be adequately protected by these programs. For these
reasons, the final grandfather clause requires the employer to
demonstrate that their programs qualify for grandfather status.
Some rulemaking participants complained that the proposal would
require employers wanting to take advantage of the grandfather
provision to keep unnecessary records (see, e.g., Exs. 30-2645, 30-
2815, 30-2835, 30-4628). For example, the Chemical Manufacturers
Association and others stated that an unwarranted paperwork burden
would be forced on an employer because it would have to document that
the program met the basic obligations and that the program is
functioning properly (see, e.g., Exs. 30-2835, 30-3356, 30-4628).
The final grandfather clause does not require the employer to
maintain any records. In fact, the final standard does not require
employers whose programs are grandfathered to maintain any of the
records required by the full standard in paragraph (v). Some employers
may choose to maintain certain records to facilitate their
demonstration of effectiveness. However, some effectiveness measures
require no records. For example, the Dow Chemical Company, whose
program involves the evaluation of all tasks in high risk jobs and
control of all ergonomic hazards in those jobs, would need only show
that adequate controls are in place to demonstrate effectiveness. (They
also would need to show that their program includes the elements and
subelements given in paragraph (c)(1).) In addition, most employers
with existing programs are already required, under 29 CFR Part 1904, to
maintain injury and illness records. Employers should be able to use
those records, with little or no modification, to demonstrate
effectiveness. Thus, OSHA has concluded that comments that the
grandfather clause would create an unwarranted paperwork burden are
unfounded.
Some rulemaking participants argued that companies would be forced
to alter their existing safety and health programs to meet the OSHA
ergonomics standard, forcing them to inefficiently allocate resources
away from their safety and health programs (see, e.g., Exs. 30-2216,
30-3845, 30-4818, 31-310; Tr. 11379, 11403). These commenters
apparently believe that two separate and incompatible programs would be
required or that grandfathering would require major restructuring of
their current ergonomics program. For example, the Forum for a
Responsible Ergonomics Standard recommended that OSHA recognize
existing programs that met the goal of reducing or eliminating MSD
hazards regardless of whether or not they met the technical
specifications of the six proposed program elements (Ex. 30-3845).
[[Page 68302]]
Otherwise, they argued, the standard would not only upset the
performance of existing programs but would result in poor allocation of
risk control resources. They gave examples of what they believed might
occur:
[O]ne Forum member, CCE, has spent millions of dollars researching
and developing methods to reduce injuries related to various
warehousing and delivery activities, such as improving new order
fulfillment systems. In this respect, CCE is pioneering achievements
that likely will eventually be adopted throughout its industry.
However, particularly with respect to employee participation in
developing safety programs, CCE is unlikely to meet the strict
requirements for grandfathering. As a result, CCE anticipates that
many of its current efforts will be derailed as resources,
especially the time of its highly trained staff, will have to be
diverted to ensuring compliance with the OSHA standard. Instead of
developing fixes that will prevent injuries, these resources will be
directed towards ``fixing'' the administrative structure of its
program.
Similarly, many NACS members (convenience store operators and
petroleum marketers) incorporate MSD prevention and ergonomics
issues into their general worker safety programs that cover a wide
range of issues, from dealing with slips and falls to robbery
deterrents to customer safety issues. These programs have been
extremely effective in reducing MSD injuries. If not grandfathered,
implementing OSHA's proposed standard would require upsetting and
dramatically changing these already effective programs (Ex. 30-
3845).
Mead Corporation (Ex. 30-2216) made a similar comment:
Responsible employers would be forced to alter achieving
programs and pursue measures that we know are not as effective as
what we are already doing. The resources that are focused on MSD
prevention would be shifted toward less meaningful activities. A new
infusion of MSDs may result at many workplaces that have effectively
controlled these types of accidents to date because of the shift in
emphasis brought on by compliance demands.
Consider:
Many companies utilize periodic risk assessments to
update priorities for ergonomics projects. Risk assessments commonly
include a survey of the workplace, discussions with employees about
potential concerns, and analysis of MSDs. Priorities are established
and incorporated into a work plan for the site's ergonomics/safety
team.
When ergonomics teams in Mead conduct analyses of jobs,
they are encouraged to identify as many opportunities for continuous
improvement (potential risk factors) as possible and then to
prioritize based upon risk. Action plans are developed for high risk
concerns. Lower priorities are not addressed at the time unless they
are low cost. Teams maintain documentation of these items and may
revisit them in the future once higher priority items are resolved
In each of these examples, employers are pursuing activities that
should be recognized as meaningful and exceeding the level of
protection OSHA is currently seeking for the control of MSDs. With the
proposed standard, however:
When persistent symptoms develop at a job considered to
be moderate priority for continuous improvement, higher priority
changes would be delayed, placing more employees at higher risk for
developing MSDs;
Similarly, when partial work aggravation associated
with a low risk task triggers a manufacturing job, high priority
changes recommended by the ergonomics team based upon comprehensive
analysis will be delayed; and
Documentation of MSD prevention activities will be
increasingly scrutinized and restricted due to concerns over how
OSHA would interpret the information (Ex. 30-2216).
On the other hand, the American Society of Safety Engineers stated
that ergonomics programs fit easily into existing safety and health
programs:
The establishment of basic ergonomic management programs,
increasing employee awareness and involvement on these issues is not
a burden to employers when compared to other safety and health
compliance requirements.
In fact, most efficient and effective ergonomic initiatives will
usually dovetail with other existing safety and health programs (Tr.
11611).
The final rule in general, and the grandfather clause in
particular, will not, in OSHA's view, require an inefficient
reallocation of resources. In fact, because MSDs are the leading cause
of on-the-job injuries and illnesses, OSHA believes that the final rule
will ensure that resources will be devoted to areas where significant
improvement in injury and illness rates can be realized.
OSHA agrees with the American Society of Safety Engineers that
ergonomics programs fit well as part of comprehensive workplace safety
and health programs. The final grandfather clause does not require
employers to divorce ergonomics from their existing safety and health
programs. Thus, employers who address ergonomics in existing effective
safety and health programs typically will not need to reinvent their
ergonomics program just to qualify for the grandfather clause.
In addition, as noted earlier, the final rule accommodates
prioritization of the implementation of permanent controls, as Mead
Corporation is doing, where the employer cannot fix all problem jobs at
once. Therefore, OSHA does not believe that the final rule's
grandfather clause will be disruptive or result in an unwarranted
reallocation of resources.
Union Carbide recommended that the standard not require employee
participation in the development of existing programs that would
otherwise qualify under the grandfather clause (Ex. 30-3784). ORC also
identified employee participation in the development of each element of
the program as one area that few of its member companies could comply
with (Tr. 4135).
OSHA agrees with these rulemaking participants that employee
participation in the development of ergonomics programs is not
necessary where an existing program that qualifies for the grandfather
clause is at issue. The primary purpose of the grandfather clause is to
recognize ergonomics programs that employers have already put into
place, i.e., that are already well past the developmental stage.
According to ORC, some of these programs have not involved employees in
the past development, implementation, or evaluation of the program. As
drafted in the final rule, employee participation in these stages of
program implementation is required as appropriate, from this time
forward. In other words, OSHA is not requiring employee participation
in the past development of a program as a condition of the grandfather
clause; it is requiring employee participation in the implementation,
evaluation, and future development of grandfathered programs, however.
Alcoa, Inc., recommended that, for existing capital-intensive
industries and equipment, OSHA allow employers additional time to come
into compliance with the grandfather clause (Ex. 30-3922). They argued
that the implementation of permanent controls within 2 years, as
proposed, was neither realistic nor economically feasible for some
employers. The final rule's grandfather clause allows an employer to
have a process for identifying, analyzing, and controlling MSD hazards
in problem jobs and following up to ensure control effectiveness.
Through a prioritization process, an employer may choose to temporarily
implement interim controls. Although the employer is expected to
institute permanent controls as soon as possible, the final rule does
not provide a date when this must be accomplished. Thus, employers in
all industries with qualifying programs will be able to prioritize
their jobs for control in a rational manner that permits them to take
advantage of the capital involvement and replacement schedules of their
industries.
[[Page 68303]]
Paragraph (d)--What Information Must I Provide to my Employees?
Paragraph (d) of the final rule requires employers to provide their
employees with basic information about five items:
(i) Common musculoskeletal disorders (MSDs) and their signs and
symptoms;
(ii) The importance of reporting MSDs and their signs and symptoms
early and the consequences of failing to report them early;
(iii) How to report MSDs and their signs and symptoms in the
workplace;
(iv) The kinds of risk factors, jobs and work activities associated
with MSD hazards; and
(v) A description of the requirements of OSHA's ergonomics program
standard.
This information must be provided to new employees within 14 days
of hiring, and must be posted conspicuously in the workplace.
Consistent with applicable law, information may be posted or provided
electronically to employees who have electronic access. To assist
employers in meeting their obligation under this paragraph, OSHA has
included nonmandatory Appendices A and B, which contain all the
information needed to comply with this paragraph, except for the
workplace-specific information on reporting MSDs and their signs and
symptoms.
The proposed rule also would have required employers to provide
employees with information on how to recognize MSDs (and their signs
and symptoms); on the importance of early reporting of MSDs; and on how
to report MSDs at their workplace. It also would have required
employees to establish a reporting system for MSDs. These provisions in
the proposed rule, however, would only have applied to manufacturing
and manual handling employers. OSHA expected the provisions to serve
three purposes: to facilitate employees' active participation in their
employers' ergonomics programs; to promote early reporting so that MSDs
could be treated most effectively; and to assure prompt identification
of MSD hazards so that the incident trigger of the standard would work
properly.
There was a great deal of support, in general, for requiring
employers to provide hazard and reporting information to employees
(see, e.g., Exs. 30-2116, 30-3813, 30-3748, 30-3765, 30-3934, 32-339-1,
32-111-4, 32-185-3, 30-3686, 32-461, 32-210-2, 30-3826, 30-3686, 32-
182-1, 30-2116, 30-3748, 30-4564, 32-198-2, 500-33, 32-21-1, 32-450-1,
30-4247 and 32-450-1). Mr. Mark Davidson, Risk Manager for Safeway
Stores testified (Tr. 13674, 13658) that he adamantly supported pre-
injury efforts to train and evaluate people. He stated the fact that
Safeway had produced a video to educate employees on symptoms of soft
tissue injury and had merely shown it to employees across the United
States. Both Akers Logging (Tr. 12325) and Swift Company Timber
Management (Tr. 12315-16) believed that this information could be
incorporated into regular safety meetings, and Mr. Swift testified that
the cost would be nominal, if anything.
In fact, a number of participants urged OSHA to go even further and
require employers to survey their employees to identify existing signs
and symptoms (see, e.g., Exs. 31-113, 31-150, 30-4538, 31-243, 31-186,
30-2387, 31-156, 31-125, 31-105, 31-43, 31-23, and Tr. 4732-33). One
commenter (Ex. 31-186) said that, as well as promoting the early
detection of MSDs, thereby saving employers money and lost work time,
surveys also send the message that the employer cares about employee
health and safety. The American Association of Occupational Health
Nurses (AAOHN) (Ex. 30-2387) also said that MSD symptoms surveys should
be strongly encouraged, if not required.
Other commenters argued that the benefits of this information
provision should not be limited to jobs involving manufacturing and
materials handling (Ex. 30-3826). Since implementation of any
ergonomics program outside manufacturing and manual handling would have
been based on the occurrence of an OSHA-recordable MSD, it made little
sense, these commenters felt, not to provide employees in other jobs
with information on what and how to report:
Employees cannot be expected to report early if they are not
educated on what signs and symptoms of MSDs are and if the employer
is not communicating with them the importance of reporting early.
Also, if employees are not aware of, or do not know the mechanism of
reporting, than it is surely less likely that they will report * *
*. This will be a great disincentive for reporting (Ex. 32-210-2,
pg. 130).
See also, e.g., Exs. 500-126, 32-85-3, 30-4538, 32-198-4, 30-2387.
Some commenters, however, objected that employers should not be
required to provide hazard and reporting information before an MSD
occurred (see, e.g., 30-3723, 30-3867, 30-3086, 30-4465, 30-4607, 30-
1012). These commenters argued that providing the information would be
an unjustified consumption of resources, infrastructure capacity, and
support, adding overhead and cost with no potential benefit. The
General Electric Company (Ex. 30-1071) felt that an employer
proactively identifying ergonomic issues would likely unearth
complaints of MSD signs and symptoms. The American Iron and Steel
Institute (AISI) (Ex. 32-206-1) stated:
The provisions in proposed Sections 1910.914 and 1910.916
requiring the employer * * * to inform workers of the signs and
symptoms of MSDs and how to report them would create an enormous
potential for abuse of the system. The manner in which OSHA is
expected to enforce those provisions will only exacerbate the
problem (Ex. 32-206-1, pg. 40).
Other participants also expressed concern that providing employees
with additional information about MSDs will cause workers to
misattribute benign symptoms to serious injury or disease, thereby
heightening symptoms and distress, or otherwise to make false reports
(Exs. 32-241-3-2, 30-3716, 30-3000, 30-4843, Tr.16087, Tr. 10445-6).
Omni Services Incorporated (Ex. 30-4496-35) believes it would be easy
for employees to report almost any ache or pain as work-related and get
paid time off until they feel better.
The Painting and Decorating Contractors of America (Ex. 30-3716)
voiced concern that the information presented to employees about MSD
signs and symptoms and the importance of reporting them early would not
only require employers to develop expertise in ergonomics-related
injuries, but would encourage employees to classify almost any job-
related ache or pain as an MSD. The Plastics Engineering Company (Ex.
30-2435) stated that the requirements would encourage employees to
report both real and phoney or exaggerated MSDs. The American Road and
Transportation Builders Association (Ex. 30-4676) argued that the
number of work-related MSD claims, and the number determined to be
work-related, would significantly increase. See also Exs. 500-127, 31-
106, 31-344, 32-82-1, 30-3749, 30-3336, 30-3367. The AAOHN (Ex. 30-
2387), however, pointed out that often, after ergonomic training,
employers experience an increase in MSD complaints and should be
prepared for this eventuality. As noted elsewhere in the Preamble,
these are not ``new'' MSDs, but instead the expected earlier reporting
of MSDs that are already occurring.
OSHA does not find evidence that encouraging early reporting of
MSDs promotes abuse. Evidence discussed in other sections of this
Preamble indicates that programs that encourage early reporting of
MSDs, so that employees
[[Page 68304]]
can enter an MSD management program, actually reduce the time employees
are subject to work restrictions. OSHA also has analogous requirements
in other standards, for example, the Bloodborne Pathogens standard (29
CFR 1910.1030) and several of its chemical exposure standards (Cadmium,
29 CFR 1910.1027; 1,3-Butadiene, 29 CFR 1910.1051; Methylene Chloride,
29 CFR 1910.1052), and has seen no evidence that the provisions are
abused. These provisions simply require that the employer provide basic
information to employees; have a system in place for employees to
report possible injuries, illnesses, and exposures; and evaluate and
respond to these reports. As is discussed more fully in connection with
paragraphs (e) and (f), a report of an MSD does not impose any
obligations on employers unless the employer determines that the MSD is
work related and meets the severity criteria, and the job itself meets
the levels of the Basic Screening Tool in Table 1.
OSHA also agrees with the comments discussed above urging that all
general industry employees be provided with this information. It
believes the incident trigger in the standard can only be fully
effective if all employees have basic information about MSDs and how
and why to report them promptly. This means that some general industry
employers, who under the proposal would have had no obligations at all
until receiving a report of an MSD, will now have to provide this
information. OSHA emphasizes, however, the minimal nature of the burden
imposed by this paragraph. All of the information, except that on how
to report MSDs and signs and symptoms to a particular employer, is
contained in Appendices A and B to this standard, and will also be
posted on OSHA's website. Employers need only copy or download the
information for distribution to their employees. This responds to a
number of comments asking OSHA to provide materials to assist employers
in providing information to employees (see, e.g., Exs. 30-429, 30-4492,
30-2987, 30-3232, 30-3853, 32-337-1, 32-210-2, 32-461-1, 32-461-1, 30-
3826, 30-4538, 30-3686, 30-2387).
The requirement that employees be given information on how to
report MSDs and their signs and symptoms is also necessary to ensure
the effectiveness of the standard's exposure trigger. This requirement
is even more basic than that contained in the proposed rule. It does
not require employers to set up any particular reporting system, only
that employees know how to report their MSDs or signs and symptoms.
Particularly for a very small employer, this could be as basic as
telling them to report them to a supervisor or safety official. Larger
employers may use their existing reporting systems (Ex. 30-3826).
Although OSHA intended this option also to be available under the
proposed rule, several commenters interpreted the proposal as requiring
a reporting system specific to MSD signs and symptoms (Exs. 31-78, 30-
240, 30-3723, 30-3765, 32-77-2, Tr. 5340, 30-3853, 32-337-1, 30-716,
30-2215, 500-127). In light of the revised language in the final
standard, these comments are now moot.
Other commenters, however, urged OSHA to adopt a more elaborate MSD
reporting system. The American Federation of Teachers (Ex. 32-326-1)
urged OSHA to strengthen the reporting requirements by stipulating that
employers document a method for encouraging employees to report.
Morgan, Lewis, and Bockius (Ex. 30-4467) expressed concern that
employers would have no sure way of knowing whether a reporting system
would satisfy an OSHA compliance officer's interpretation of the
standard's requirements. OSHA does not agree that more detail is
necessary in this provision.
The final standard allows employers extensive flexibility to tailor
reporting systems to the demands of individual workplaces. Variations
among employers (e.g., size, management structure, number and type of
facilities) could lead to some types of reporting systems being more
effective than others for different employers. Some may choose written
reporting systems, while others may feel that an oral system is a
``better fit'' for their particular situation. OSHA demands only that,
whatever approach is used, it must be accessible and carried out in an
orderly way that is recognized and understood by the involved parties.
A few commenters questioned the requirement to provide employees
with a summary of the standard (see, e.g., Exs. 30-3765, 30-1336, 30-
3782-12, 30-2836, 30-2940, 30-240). The G. Leblanc Corporation (Ex. 30-
4837) stated that, with the exception of this item, the information to
be provided to employees would be very helpful in making the reporting/
response system successful. It also felt that inclusion of the summary
resulted in additional cost and expertise necessary for providing the
information. The Dow Chemical Company (Ex. 30-3765) also commented
that, while it supports telling employees about MSD hazards, signs and
symptoms, the importance of reporting them early, and the mechanics of
how to report them and uses a program that emphasizes the information
envisioned by this provision, it does not support providing a summary
of the requirements of the standard. The Edison Electric Institute (Ex.
32-300-1) also objected to the requirement that supervisors and
employees be trained in the requirements of the standard.
Some of these commenters (see, e.g., Exs. 30-1336, 30-2836, 30-
2940) voiced concern about not knowing how many pages of information
were sufficient to comply with this requirement, while others (see,
e.g., Ex. 30-3782-12) felt that how to interpret a ``summary of the
standard'' and how to provide this to the employee was left to the
employer's imagination. These concerns are addressed by the inclusion
of nonmandatory Appendix B to the standard.
On the other hand, several commenters stated that employees should
receive even more information (Exs. 30-4538, 31-242, 32-461-1, 32-210-
2, 32-182-1, 32-111-4, 32-339-1, 500-218, Tr. 3481-82, 500-126, 31-280,
Tr. 4542-43). For example, the AFL-CIO recommended that the hazard
information and training requirements be restructured to move some of
the training requirements up-front and stated:
Specifically, we recommend that the Hazard Information and
Reporting section require information and awareness initial training
on the following:
1. Common MSD hazards;
2. The signs and symptoms of MSDs and the importance of
recognizing and reporting them early;
3. How to report MSDs, signs and symptoms of MSDs, and MSD
hazards and the prohibition against discouraging employee reports;
4. An explanation of this standard, including ways for employees
to participate and how to get a copy of the standard;
5. An explanation of MSD management, including temporary work
restrictions and work restriction protection; and
6. The principles for controlling common MSD hazards. (Ex. 32-
339-1, pgs. 32-33)
Other commenters suggested that additional topics such as employee
rights to job protection, right to report reporting procedures, symptom
reporting procedures and training be included (see, e.g., Exs. 32-461-
1, 30-4538, 30-3686, 32-198-4, 32-198-4-1, 32-198-4-13)
OSHA has considered these comments and incorporated some of the
suggestions. Other topics are addressed in the context of ergonomics
program training under paragraph (t). The information requirement in
this
[[Page 68305]]
paragraph (d), however, is intended to provide employees with the
minimum amount of information they need to perform their function under
the standard: recognizing and reporting MSDs and their signs and
symptoms, and doing so as early as possible. Employers are free to
provide additional information (e.g., explaining their particular
ergonomics program), but OSHA does not believe that more detailed
information is necessary before any MSD hazards have been found. As
previously discussed, the Agency has attached an information sheet for
the employer to use in providing the required information.
Finally, the issue of the posting of this information was also
raised by several commenters (see, e.g., Exs. 31-70, 31-342, 30-240,
30-1726, 30-1104, Tr. 10586). One commenter (Ex. 31-70) stated that the
final standard should require mandatory posting of information for
employees. Similarly, another commenter (Ex. 31-342) commented that
there should be a requirement to either post a notice that employees
should report possible MSDs promptly or inform employees in another
effective manner. The National Association of Orthopaedic Nurses (Ex.
30-1104, Tr. 10586) supported a readily identifiable posting of MSD
signs and symptoms, who to report to, and how to report. In addition,
the University of Wisconsin Extension (Ex. 30-1726) urged OSHA to
develop ``more boilerplate'' on a policy that encourages reporting and
to require that this policy be posted in the workplace. On the other
hand, August Mack Environmental (Ex. 30-240) argued that posting was
redundant, unnecessary and posed a problem due to often limited space
available for postings. It felt that the currently required OSHA poster
already contains information on how to get additional information about
OSHA standards.
Paragraph (d)(2) of the final standard requires that the
information provided to employees must also be posted in a conspicuous
place. In addition to an employee bulletin board, such places may be
the employee locker room, lunch room, or near the time clock.
Electronic posting is also permissible where all employees have access.
While the Agency realizes that these options are not available in all
facilities, most employers have some area, recognized by employees,
where the employer posts company announcements and information. OSHA
believes the posting requirement is necessary because many employees
may not have immediate access to their original information sheet when
they are beginning to develop an MSD.
In conclusion, OSHA has considered all of the comments and
testimony received on the proposed provisions requiring employers to
provide hazard information and reporting. It has decided to retain the
requirement that employers covered by the final rule to provide minimal
information to employees before an MSD incident occurs. OSHA believes
the final rule provision is adequate without requiring additional
measures such as surveying employees to identify signs and symptoms of
MSDs.
Paragraph (e)--When Must I Take Further Action?
A. Introduction
The final rule incorporates a two-stage action trigger. It requires
further action when (1) an employee experiences a work-related MSD
involving either one or more days away from work, one or more days of
limitations on the work activities of the employee, medical treatment
beyond first aid, or 7 days of persistent MSD signs or symptoms (2) in
a job with exposures to risk factors that meet the Basic Screening Tool
in Table 1. Unless both stages of this action trigger are reached, the
standard does not require employers to take any action beyond providing
the information in paragraph (d) to their employees.
The action trigger in this standard serves a purpose analogous to
that served by action levels in OSHA standards regulating exposures to
air contaminants. Those standards generally require that airborne
levels of the contaminant be kept below a permissible exposure level
(PEL). At a much lower level, however, employers are required to take
actions such as conducting air monitoring and providing training and
medical surveillance to exposed employees, although they do not
actually need to implement controls to reduce exposures to the
regulated substance. Similarly, in this standard, once a job meets the
action trigger, the employer must implement an ergonomics program that
includes job hazard analysis, training, and MSD management (for the
injured employee), although it may not actually be necessary to control
or reduce the MSD hazard.
This concept is similar to the approach OSHA took in the proposed
rule. In the proposal, an employer was required to take further action
if an OSHA-recordable MSD occurred in a job meeting certain ``screening
criteria,'' i.e., the job involved physical work activities and
conditions that were reasonably likely to result in the MSD, and those
activities were either a ``core element'' of the job or accounted for a
``significant amount'' of the employee's worktime. In manufacturing and
manual handling jobs, an OSHA-recordable MSD was not necessary if an
employee reported persistent symptoms and the employer had knowledge of
problems in the job.
OSHA received a large number of comments about the proposal's
triggering mechanism. These comments fell into several categories. Many
parties objected that the single MSD incident trigger included in the
proposal was either too sensitive or not protective enough. Others
objected to the use of an OSHA-recordable MSD, often pointing out that
OSHA has proposed to amend its recordkeeping regulation, and that those
amendments could also affect this ergonomic standard. In addition,
commenters complained that the proposed standard's screening criteria
would be extremely difficult to apply in practice, pointing in
particular to the terms ``core element,'' ``substantial part of the
workday,'' and ``reasonably likely to result in the MSD.''
As explained below, OSHA has made a number of changes in response
to these comments. The triggering mechanism in the final rule has more
precisely defined elements, and OSHA believes it should be much easier
to apply.
A job meets the action trigger in the final standard based on two
criteria. The first is what has been called the ``single-incident
trigger.'' Under this criterion, an employee working in the job must
have incurred either a work-related MSD severe enough to result in a
work restriction, medical treatment beyond first aid, or MSD signs or
symptoms lasting at least 7 consecutive days after being reported to
the employer. A work restriction is defined in the standard as one or
more days away from work, one or more days of limitations on the work
activities of the employee's current job, or one or more days of
temporary transfer to alternative duty (see paragraph (z)). Under the
final rule, an MSD meeting this description is an ``MSD incident.'' The
employer's first duty, after receiving a report of an MSD or MSD signs
or symptoms, is to determine whether the report constitutes an MSD
incident.
The second step of the action trigger, which must only be addressed
after an MSD incident occurs, is based on the employee's exposures to
ergonomic risk factors. If the employee is exposed to one or more of
the risk factors described in the Basic Screening Tool in Table 1 for
longer than the time listed for that
[[Page 68306]]
risk factor, then the job meets the screen.
B. MSD Incident Trigger
1. Incident-Based Approach
The proposed standard also included a single-incident trigger.
Under the proposal, employers of workers engaged in manufacturing and
manual handling would have been required to implement some elements of
an ergonomics program standard soon after the standard took effect,
whether or not MSDs had occurred in their jobs. Once a ``covered MSD''
meeting the screening criteria occurred, those employers would have
been required to adopt a full ergonomics program. Other employers would
not be required to take any action before a ``covered MSD'' meeting the
screening criteria occurred, but once that happened, they also were
required to adopt the full program. In this final rule, OSHA has
clarified that the only action explicitly triggered by an MSD incident
is to apply the Table 1 screen. OSHA finds that the record supports
using an MSD incident for this purpose.
A number of participants objected to the proposal's incident
trigger on the basis that it was reactive and appeared inconsistent
with OSHA's mission ``to prevent the first injury'' (Ex. 500-218, Tr.
9071, 9156, 12277, 12477). A number of labor organizations favored a
proactive approach because, according to the International Chemical
Workers' Union, ``[w]aiting for a covered MSD or persistent MSD
symptoms to arise, versus evaluation and prevention, is a lose-lose
proposition'' (Ex. 32-198-4, 32-461-1, 500-137; see also Ex. 500-218,
Tr. 12365, 17543). The Farm Workers Justice Fund urged OSHA to adopt a
hazard-based approach because in many workplaces employees experience a
great deal of pressure not to report injuries (Tr. 17515).
Some employers and representatives of employers also supported a
hazard-based rather than an incident-based rule (Ex. 30-1294, DC67, Tr.
9070-74, 12277, 13633, 10631, 10636). Mark Davidson, of the Oregon Self
Insurance Association, preferred a proactive approach because:
If the goal is to cut down on the occurrence of MSD complaints,
shouldn't the regulatory effort [focus on] preventing the occurrence
rather than punish it (Tr. 13633).
Anthony Barsotti, of Hoffman Construction Company, said that an
incident-based approach was ``heading backwards in terms of
prevention'' versus reaction:
[H]aving the standard be triggered by the injuries seems
inconsistent with where we have been going, both as a safety
profession and as a society in terms of identifying hazards,
developing systems and processes to control them. And then, kind of
when those systems fail and we have an injury, then what are our
back-up systems and our approaches? (Tr. 12277).
See also (Tr. 9115-16).
OSHA has carefully considered these comments. In response, it has
added a proactive element to the definition of an MSD incident. MSD
signs and symptoms that last for 7 consecutive days since first
reported to the employer are considered MSD incidents under this
standard. Several health care professionals testified that, in most
cases, MSD signs and symptoms are completely reversible when they are
caught at such an early stage (see, e.g., Exs. 37-1; 37-2, pp. 14-15;
37-12, p. 5; 37-16, p. 8; 37-17, p. 4; Tr. 7687-88, 9884, 13397-98,
13410). Thus, OSHA has concluded that its incident-based approach can
prevent employees from experiencing permanent damage or disability,
while at the same time minimizing burdens for employers who have few or
no ergonomics problems (Ex. 16969-70).
Where employers have provided their employees with appropriate
information to allow the employees to recognize MSDs and MSD signs and
symptoms, and have also instituted good reporting systems, and
employees still are not reporting MSDs, a full ergonomics program may
not be necessary. OSHA agrees with commenters who said that a purely
hazard-based approach, which would require all employers to analyze all
jobs, regardless of whether those jobs have ever caused an MSD, might
result in an inefficient use of resources (Exs. 500-1-329, 500-75, Tr.
3095).
This is particularly true because the vast majority of employers
will not have an MSD incident reported in their workplace during any
given year (Exs. 30-542, 30-3167, 500-1-128, Tr. 2980, 3073, 3096). One
report prepared for the Small Business Administration's Office of
Advocacy estimated that as many as 75 percent of manufacturers
employing fewer than 11 employees are not likely to experience any MSD
incident for up to six years. (Ex. 30-542). (See also Ex. 500-67; Final
Economic Analysis, chapters II and IV). The testimony of a number of
hearing participants representing small businesses confirmed this (Exs.
30-3167, 500-1-128). They told OSHA that they had never had a report of
an MSD in their workplace (Tr. 2980), did not have MSDs every year, or
had only isolated or few occurrences (Tr. 3073, 3096). Small employers
comprise 75 percent of all private industry establishments (Final
Economic Analysis, Industry Profile, chapter II), and the incident
trigger ensures that most of these employers will have only minimal
obligations under the final rule.
The record also shows that an incident trigger is a reasonable
proxy for an increased risk of exposure to MSD hazards. For example,
some employers with successful ergonomics or safety and health programs
use reports of MSD symptoms or symptom surveys to identify jobs posing
MSD hazards (Ex. 37-2, Tr. 5503, 5358; Tr. 14707, 14723-26). Dr.
Frederick Gerr, Associate Professor of Environmental and Occupational
Health at the Rollins School of Public Health at Emory University,
testified:
The use of reported cases of illness, such as MSDs, to trigger
investigation into potentially excessive exposure to known MSD
hazards is a well-established method of protecting others with
similar exposures (Ex. 37-2, p. 15).
Many employers also use MSD reports as a way to prioritize their
control activities (Tr. 10631, 14723, 14746). Sean Cady, of Levis
Strauss & Co., testified:
If we have repetitive motion injuries or musculoskeletal
disorders on various jobs that occur at the same time how do we
prioritize which jobs we select for job modification, because we
don't have unlimited resources in the company. So what we do is we
review many factors of that job and we qualitatively prioritize
jobs. And we review things like the number of symptoms reported on a
job, possibly the number of injuries, or the severity of injuries on
a job (Tr. 14723-24).
OSHA has made clear throughout this rulemaking that a portion of its
intent is to require more employers to implement the kinds of effective
programs that are already in place in many industries (64 FR 65770).
Incorporating an approach already in wide use is consistent with this
purpose, and will reduce employer burden while increasing compliance
with the standard.
Other commenters were concerned that OSHA's use of an incident
trigger would doom those preexisting programs that involve what these
participants view as a more proactive method of identifying ergonomic
hazards (Ex. 500-1-452, Tr. 9070-74, 10630-32). But nothing in this
rule prohibits employers from taking action, analyzing jobs or setting
up an ergonomics program before MSD incidents are reported. And the
grandfather clause in paragraph (c) of this standard specifically
allows qualifying employers to continue their preexisting programs.
Based on the record, OSHA expects that many employers who have
established
[[Page 68307]]
ergonomics programs that do not rely on MSD reports to identify MSD
hazards will maintain those programs (Tr. 3130-33, 5539, 9070-74,
10631).
2. One MSD Trigger
A separate group of rulemaking participants complained that the
single-incident trigger in the proposal was too sensitive (Exs. 30-
2208, 31-324, 500-1-27, 500-1-28, 500-1-45, 500-1-128, 500-52, 500-75,
Tr. 5506-07). For instance, the Association of Independent Corrugated
Converters said that the ``one-incident threshold makes full coverage a
virtual certainty for virtually every sizable employer, and for the
vast majority of small employers'' (Ex. 500-1-128, Tr. 16930-31). The
National Tooling and Machining Association also said that a single MSD
incident was too low a threshold:
On its own, a single reported MSD might not be statistically
significant to warrant the corrective measures required by the
proposed regulation. NTMA contends that a trigger mechanism of at
least two MSDs should be the minimum threshold for the full program,
especially for small businesses (Ex. 500-2).
Jack Pohlman, of the American Foundryman's Society, added that a report
of one MSD ``is simply not indicative of systematic problems'' (Tr.
5636). Marathon Ashland Petroleum agreed, saying that a single incident
``is not reflective of the true nature of risk that exists in a given
facility'' (Tr. 5540). And the National Paint and Coating Association
complained that a one MSD trigger was biased against large employers
(Ex. 30-4340).
A number of commenters said that a one MSD trigger also would
unduly burden employers by requiring them to respond to ``every ache
and pain'' an employee reports (Exs. 30-4340, 500-1-18 (``a single
complaint of pain''), 500-1-385, 500-1-386, Tr. 8772 (``perceived minor
problems''), 12256). The National Telecommunications Safety Panel
testified:
Extremely minor conditions with little or no connection to the
workplace may trigger the standard in many facilities (Tr. 8774).
Several commenters said that the one MSD trigger ignores that ``unique
physical characteristics'' or ``predisposing medical conditions'' of
the worker may be involved (Exs. 30-328, 30-1651, 30-2208, Tr. 5560-
61). James Haney, of Wisconsin Manufacturers & Commerce, said:
Thus, the most injury- or illness-prone employee becomes the
benchmark for implementing the proposed standard's requirements (Ex.
500-1-27).
Finally, some commenters argued that imposing a one MSD trigger
would be very costly for employers (Exs. 30-2208, 30-4340, 500-1-26,
Tr. 8772). David Potts of the National Electrical Contractors
Association testified:
[B]ecause [of] the broad scope of what constitutes an MSD, the
program standard's coverage will be easily activated. As such, an
employer could be required to institute costly job analysis and
corrective actions as a result of a single injury illness to an
overly susceptible employee while all other employees in the same
operation or job location has no discernable adverse reaction.
Considering this hair trigger and that the Agency has only offered
general remediation measures in the proposed rule, small business
will surely face burdensome compliance responsibilities and
stressful decisions including where to best place their limited
resources (Tr. 5645).
These commenters urged the Agency to adopt a MSD trigger having a
higher threshold. A number of commenters urged OSHA to increase the
trigger to two or more MSDs (Ex. 30-3731-1, 500-2, 601-X-1). Other
commenters said that incidence rates should be used to trigger action
(Exs. 30-3845, 30-3853, 30-4137, 32-77-2, 500-1-128, Tr. 5370, 8842).
Several commenters recommended that the trigger be a ``pattern'' or
``cluster'' of MSDs or MSD reports (Ex. 32-330-1, 500-23-1, 500-92).
Paul Adams, director of ergonomics at Owens-Corning, suggested that
OSHA should adopt a set of alternative triggers from which employers
could choose (Tr. 10630, 10633).
OSHA believes many of these concerns resulted from a
misunderstanding of the screening criteria in the proposal. However,
the Agency also recognizes the validity of the concerns that those
screening criteria were not clear enough to provide adequate assistance
to employers trying to screen out non-work-related MSDs (Exs. 30-1722,
30-3956, 500-18, Tr. 8847, 16969-70). OSHA has addressed these concerns
through the new definition of ``MSD incident'' in paragraph (e)(1) and
the Basic Screening Tool in Table 1. The result is a single-incident
trigger that is only half of the standard's action trigger and does
not, by itself, require employers to implement a full ergonomics
program or impose other substantial obligations on them.
A single-MSD trigger is appropriate for this purpose. Most
important, a one MSD trigger is necessary to prevent the occurrence of
serious and disabling MSDs. There is abundant record evidence that
early detection and intervention can halt the progression of most MSDs,
and reduce their severity (Tr. 7687-88, Ex. 32-450-1). On the other
hand, where medical treatment and ergonomic interventions are delayed,
it is more likely that conservative treatment will be less effective or
will not even be an available option, or that the MSD condition will
not be reversible and the employee will be permanently disabled (Ex.
38-285). For example, if carpal tunnel syndrome and other nerve-related
MSDs go untreated long enough, damage to the nerves will be
irreversible (Ex. 37-17, Tr. 13349 (the nerve dies)). If OSHA included
a multiple-incident trigger, the first employee to be injured could
become permanently disabled while waiting for other MSDs to trigger the
employer's obligations to provide MSD management and ergonomic
intervention. This would be particularly likely in small businesses and
in workplaces where relatively few people perform the same job (Ex. 32-
450-1). In addition, not acting on the first MSD may discourage other
employees from reporting their MSD signs and symptoms (Ex. 32-450-1).
The use of a single MSD trigger is also consistent with employer
practice. Many employers testified that they respond to all employee
reports of injury or illness, including MSDs (Ex. 37-2, Tr. 5358, 5359-
60, 5503, 5539, 14707, 14739, 17312-13). Even employers who recommended
that OSHA adopt a multiple-incident trigger testified that they
themselves conduct investigations of every report of injury, including
MSD signs and symptoms (Tr. 2920, 5503, 5358). For example, James
Lancour, safety and health regulatory consultant with Southern Company
Services, testifying on behalf of Edison Electric Institute, said:
[We] have a reporting mechanism where signs and symptoms are
reported. Then we have, it's turned over to the industrial hygiene
group to go out and do a job assessment. And, again, depending upon
what they find out it may be something that can be unique to that
particular person or workstation, et cetera, or it may require more
in-depth analysis. So basically depending upon the job they take a
look at what they're trying to determine how simple or complex the
problem might be, and then go through and develop an assessment
protocol based on that operation (Tr. 2920).
When questioned, no employer testified that it was company policy to
wait until a second or third employee gets hurt in a job before
investigating the first injury. This suggests that employers understand
the importance of responding to each report of injury and, in practice,
do not consider it appropriate to ignore individual reports of injury.
Other evidence in the record also shows that a one MSD trigger
should not
[[Page 68308]]
impose an undue burden on employers. As discussed above, most small
manufacturing establishments do not experience any injuries or
illnesses in any given year (Exs. 30-542, 30-3167, 500-1-128, Tr. 2980,
3073, 3096). In fact, many establishments do not experience any
injuries or illnesses over a considerable period. According to a report
prepared for the Small Business Administration Office of Advocacy, 75
percent of manufacturing establishments with fewer than 11 employees,
50 percent with 11-50 employees, and 25 percent of those with 50-249
employees would experience almost no MSD incidents in any given 6-year
period. (See also Economic Analysis, chapters III and IV.) If this
standard were to adopt a multiple MSD requirement, particularly one
requiring at least two MSDs in the same job during a single year,
injured employees in many establishments might never be provided with
needed medical intervention or protection from additional injuries
because it would take so long for the triggering event to occur.
The changes in the definition of ``MSD incident,'' and the new
Basic Screening Tool, both discussed below, will also help to address
the concerns of some commenters that significant employer action will
be triggered by the report of ``any ache or pain,'' whether or not it
is work related (Exs. 30-1722, 30-2208, 30-3956, 500-52). P.J.
Edington, executive director of the Center for Office Technology, said:
OSHA assumes any discomfort on the job is work-related. That
leaves all employers in a continuous and costly cycle of trying to
eliminate all ``signs and symptoms'' of MSDs (Ex. 30-2208).
But employers have the right under this final rule to make
reasonable determinations that particular MSDs are not work related.
And only MSDs severe enough to require medical treatment or a job
restriction, or signs and symptoms persistent enough to last for seven
consecutive days, have any triggering effect. Moreover, the standard's
Basic Screening Tool establishes specific thresholds for the duration,
magnitude and frequency of exposure to risk factors that a job must
involve in order for an MSD incident in that job to be one that
triggers the standard's program requirements.
The final rule also takes into account the concerns of commenters
that a single incident trigger ignores the fact that an MSD may be
related to the ``unique physical characteristics'' of the worker (Exs.
30-328, 30-1651, 30-2208, 500-1-27, Tr. 5660-61). For example, where
the employer has reason to believe that only the injured employee is
exposed to awkward postures because he or she is very tall or very
short, the employer can limit the response to that individual
employee's job or workstation. See paragraph (j), below.
3. Definition of ``MSD Incident''
In this standard, the term ``MSD incident'' means either an MSD
that is work-related and:
Involves a work restriction, or
Requires medical treatment beyond first aid, or
Involves MSD signs or symptoms that are work-related and
persist for 7 or more consecutive days after the employee reports them
to the employer.
Work restriction is defined to mean one or more days away from
work, one or more days of limitations on the work activities of the
employee's current job or temporary transfer to alternative duty.
Reducing an employee's work requirements in a new job to reduce muscle
soreness from the use of muscle in an unfamiliar way is not considered
a work restriction under this final rule. Also, the day an employee
first reports an MSD is not considered a day away from work or a work
restriction even if the employee is temporarily removed from work to
recover.
Relationship to Recordkeeping Rule. The proposed rule defined a
``covered MSD'' as an OSHA recordable MSD that occurred in a job in
which the physical work activities and conditions were reasonably
likely to cause or contribute to that type of MSD, and those activities
and conditions were a core element or took up a significant amount of
the employee's worktime. In this final rule OSHA has changed the term
``covered MSD'' to ``MSD incident'' to dispel any implication that any
such MSD immediately triggers a full ergonomics program. Although some
participants found the definition of covered MSD to be ``relatively
clear'' (Exs. 30-3934, 30-4837; 31-173, 31-186, 31-205, 31-229, 31-
347), many more objected that it covered too many MSDs, was too vague,
or was improperly linked to OSHA's recordkeeping rule (Exs. 30-1364,
30-1722, 30-2088, 30-3167, 30-3845, 30-3956, 500-73, 500-104, 32-337-1,
Tr. 4366, 8226, 10000, 12797, 15977). The new definitions of MSD and
Action Trigger in this standard address these concerns.
OSHA received a great deal of comment on the proposal's use of an
OSHA-recordable MSD, i.e., an MSD required by 29 CFR Part 1904 to be
recorded on the employer's injury/illness log, as a trigger for further
action. Many of these comments pointed out potential problems that
could be caused by linking an employer's obligations under this
standard to obligations and interpretations contained in a separate
rule (Exs. 30-3853, 30-4137, 32-77-2, Tr. 10632). This problem was
highlighted by the facts that OSHA has proposed to amend its
recordkeeping rule, so that it has not been clear at any stage of this
ergonomics rulemaking what the definition of an OSHA-recordable MSD
would be, and that OSHA incorrectly described the recordability of one
class of MSDs in the proposal (Exs. 30-3853, 32-78-1, 32-300-1).
Moreover, according to commenters, linking the definition of MSD
incident to the recordkeeping regulations would give employers a strong
incentive to underreport MSDs or would punish employers who already
have effective early intervention programs (Exs. 30-46, 30-75, 30-137,
30-1294, 30-1902, 30-4137, Tr. 8848, 10630-32).
OSHA agrees that these concerns, particularly those related to the
ongoing recordkeeping rulemaking, outweigh any potential benefit
employers would gain from being able to use recordability criteria to
determine whether an MSD report triggers further action under this
standard. Therefore, in this final standard, OSHA has dropped any
reference to the recordkeeping rule's recordability criteria. Although
the definition of an MSD incident in this standard uses criteria
similar to those used in determining recordability, each of the
criteria used in this rule is supported by evidence in this rulemaking
record. This has also allowed OSHA to tailor the definition of an MSD
incident so that it more closely corresponds with the purposes of this
standard.
Definition of ``musculoskeletal disorder.'' For purposes of this
rule, an MSD is a disorder of the soft tissues, specifically of the
muscles, nerves, tendons, ligaments, joints, cartilage, blood vessels
and spinal discs that is not caused by a slip, trip, fall, or motor
vehicle accident. See paragraph (z). This standard covers MSDs
affecting the neck, shoulder, elbow, forearm, wrist, hand, back, knee,
ankle, and foot as well as abdominal hernias. It does not, however,
cover eye disorders, even when associated with jobs involving computer
monitors.
Although some commenters recommended that the standard address
conditions resulting from slips, trips, and falls (Ex. DC 58, DC 405),
those injuries are not caused by exposure to the risk factors this
standard covers. For the same reason the final rule does not cover
computer-related eyestrain, which
[[Page 68309]]
is caused by factors such as glare from lights and windows, computer
flicker and other monitor resolution problems, and by not blinking or
looking away from the screen (Tr. 16159-66).
``Work-related.'' In paragraph (z), ``work-related,'' is defined to
mean that a workplace exposure caused or contributed to an MSD incident
or significantly aggravated a pre-existing MSD. This is a change from
the proposal, which would have considered an MSD work-related if
physical work activities and conditions caused or contributed to an MSD
or aggravated a pre-existing one. Many commenters complained that the
proposed definition of work-related, in essence, established a
presumption of work-relatedness (Exs. 30-1722, 30-3934, 30-3956, DC65,
500-1-28). The Chamber of Commerce said that the rule should not cover
``minimal workplace exposure that merely aggravates non-work
exposures'' (Ex. 30-1722, p. 62). Mike Edmunds, corporate safety
director for Tyson Foods, said:
Even if upper extremity musculoskeletal pain (e.g., wrist pain)
arises solely as a result of non-work-related activities, it is
virtually impossible for an employer or physician to establish that
subsequent work activities did not in some minor way `aggravate' or
`contribute' in some way to the condition--regardless of the job
(Ex. 30-4137).
To address this concern, a number of commenters recommended
incorporating language from various State workers' compensation
regulations so that an MSD would be considered work-related only where
work was the predominant cause of the injury or was more than 50
percent responsible for the injury (Exs. 30-3934, 32-77-2, Tr. 5507).
Others recommended that OSHA adopt the definition of work-relatedness
from California's ergonomics standard, i.e., that work must be 51
percent responsible for the MSD (Ex. 32-300-1). Several suggested that
the MSD incident not include pre-existing MSDs (Tr. 3097-98).
OSHA believes that some of these concerns resulted from a
misunderstanding about what ``contribute to'' means. It does not mean
that an MSD is considered to be work-related if work contributes in
some de minimis (e.g., ``1% contribution'' (Ex. 30-3934)) or vague way.
Rather, work contributes to an MSD if a specific physical work activity
or condition can be identified as having contributed in some
discernable way to the onset of the MSD or the signs or symptoms of an
MSD. If nothing specific can be identified as a factor, then work is
not considered to have contributed to the MSD.
OSHA also has responded to concerns that, once an employee has an
MSD, minor aggravations of the MSD can occur very easily (Tr. 3315). In
the final rule, only ``significant'' aggravation of a pre-existing MSD
is considered to be an MSD incident. ``Significant aggravation'' occurs
only when risk factor exposures in the workplace aggravate a pre-
existing MSD to the extent that it results in an outcome that it would
not otherwise have caused. For example, workplace exposure is
considered to have significantly aggravated an employee's pre-existing
MSD if the MSD would have resolved on its own or with only first aid,
but because of the employee's exposure to identified risk factors in
the workplace, the MSD has progressed to the extent that medical
treatment is now necessary. On the other hand, if an employee
experiences more pain when at work, simply because the employee is
using an injured body part, that extra pain does not constitute
significant aggravation. In addition, workplace exposure aggravates an
MSD only where a specific physical work activity or condition can be
identified as a factor in the progression of the pre-existing MSD.
Although the employer is ultimately responsible for determining
whether an MSD is work-related, employers may consult with others, such
as HCPs or safety and health personnel at the workplace, in making that
determination. Where an employer uses an HCP to provide assistance in
determining the work-relatedness of an MSD, the HCP must use the
definition of work-related in this final rule and not criteria for
determining work-relatedness under workers' compensation.
Another frequent objection to the proposed definition was that it
did not establish an adequate severity threshold and, as a result,
would have captured all the ``aches and pains of life'' that employees
experience while performing work activities (Ex. 30-3956, see also Exs.
30-1722, 30-2208, Tr. 9824). The Chamber of Commerce said that MSD was
``so loosely defined as to cover unverified complaints of pain rather
than just objectively verifiable medical conditions'' (Ex. 30-1722, p.
61). The severity criteria in the final rule address this complaint. In
deciding to include within its definition only those MSDs resulting in
a work restriction, in medical treatment beyond first aid, and in MSD
signs or symptoms lasting at least 7 days after being reported to the
employer, OSHA is adopting appropriate medical severity thresholds.
Work restriction. A work restriction in this context means at least
one full day when the injured employee either must take off the entire
work day for recuperation or medical treatment, or is able to work for
only a portion of the workday or to perform only some job functions,
either regular or alternative tasks, during the recovery period. The
latter category includes job transfer, light duty jobs, and alternative
duty jobs. Employees who cannot work regularly scheduled or mandatory
overtime during the recovery period are also considered to be on work
restriction. Neither the initial day on which the MSD is reported or
occurred, nor any day on which the employee is not scheduled to work,
is counted as a day of work restriction.
On the other hand, the standard now makes clear that work
restrictions do not include situations where an employer adjusts the
work assignments to deal with the temporary muscle soreness that an
employee may experience as a result of starting a job that requires the
use of muscles in an unfamiliar way (paragraph (z)). The record
indicates that some employers have ``conditioning'' programs, most
often lasting about two weeks, to help employees adjust to this type of
new job assignment (64 FR 65955 (Case Study No. 2), (Exs. 26-1175, 30-
4340, Tr. 9225, 9403, 13589). These programs recognize that it is not
uncommon for employees to experience pain or stiffness when they begin
exercising muscle groups in new or more strenuous ways (Exs. 26-1175,
30-4340). In these situations, pain or soreness may not indicate the
presence of an MSD hazard. In most cases these symptoms resolve as the
employee becomes accustomed to the physical activities of the job (Ex.
26-1175). They do not indicate that a hazard needing to be controlled
may exist. OSHA believes that this clarification will help alleviate
the concerns of some commenters that the single-incident trigger would
not only trigger coverage of passing aches and pains, but could also
trigger WRP obligations for employees who experience symptoms while
they are becoming accustomed to a new job (Ex. 30-4340, Tr. 4316-17).
Medical conditions that result in work restrictions are widely
recognized as serious (Exs. 26-1039, 37-1, 37-12, 37-28). Repeatedly,
physicians and other HCPs testified that they consider MSDs that rise
to this level to warrant both medical evaluation and intervention and
job interventions (Exs. 37-1, 37-12, 37-28). Accepted standards of
clinical practice, reflected in guidelines published by medical
associations, also recommend intervention at least at this stage (Exs.
37-12, 500-34, 26-1039). For
[[Page 68310]]
example, guidelines on low back disorders (developed by a panel of
private sector clinicians for the Agency for Health Care Policy and
Research that recommend strategies for assessing and treating low back
problems) defined low back problems as ``activity intolerance due to
low back symptoms,'' such as pain (Ex. 26-1039, p. 1).
The insurance industry also considers conditions that are severe
enough to require work restrictions to constitute medical disability
(Exs. 37-1, 37-6, 37-12, 37-28). These conditions are often compensable
through workers' compensation, and insurance companies consider them to
be serious (Ex. 37-6). According to Stover Snook, former director of
the Ergonomics Laboratories at Liberty Mutual Insurance Company who
conducted ergonomics research at the company for more than 30 years,
the accepted definition of ``low back disability'' in the insurance
industry is ``lost time or restricted duty that results from low back
pain'' (Ex. 37-6, p. 3).
Medical treatment beyond first aid. The definition of MSD incident
includes MSD signs and symptoms that require medical treatment beyond
first aid. This is a familiar concept that is also used in OSHA's
recordkeeping regulation. It also makes no difference whether an
employee obtains medical treatment from his or her own HCP or one
selected by the employer; or whether the employee obtains medical
treatment before or after reporting the MSD signs or symptoms to the
employer. Physicians and other HCPs testified that MSDs that require
medical treatment such as physical therapy, prescription medication or
surgery are more serious than conditions where resting the injured body
area is enough to allow the injury to heal (Exs. 37-1, 37-12, 37-16,
37-17, 37-28).
Persistent MSD signs or symptoms. The third type of MSD incident is
MSD signs or symptoms that persist for at least 7 days after being
reported to the employer. ``MSD signs'' are defined in paragraph (z) as
objective physical findings that an employee may be developing an MSD.
MSD signs include deformity, decreased grip strength or range of
motion, and loss of function. Some signs are readily observable, for
instance, loss of function when an employee with carpal tunnel syndrome
cannot hold a powered hand tool because of muscle atrophy in the hand.
Other signs, commenters said, may not be as observable to non-HCPs (Tr.
7677). For this and other reasons, MSD signs are treated in the same
way as MSD symptoms in the final rule. Under the proposed rule, any MSD
sign would have been a ``covered MSD'' because it is a recordable event
under OSHA's recordkeeping rule. This raised concerns for a number of
commenters, who pointed out that some signs, such as redness, may be
mild and transitory, not warranting a full program response (Exs. 30-
3344, 30-3749, 30-4674, 32-211).
``MSD symptoms,'' as defined in paragraph (z), are other physical
indications that an employee may be developing an MSD. Symptoms include
pain, numbness, tingling, burning, cramping, and stiffness. The
proposed rule would only have addressed persistent symptoms in
manufacturing and manual handling jobs, and then only if the employer
knew that an MSD hazard existed in the injured employee's job.
A number of commenters opposed the proposal's inclusion of
persistent symptoms in its trigger mechanism (Exs. 30-623, 30-898, 30-
1722, 30-4777, 30-4821, 32-78, Tr. 10634). Some recommended at least
limiting the types of symptoms included in the definition of an MSD
incident (Ex. 32-78, Tr. 10634). For example, ORC said:
At a minimum, * * * OSHA must limit coverage to those symptoms
that can be medically verified and that fall somewhere in the
severity range between minor/transient and severe enough to
interfere materially with job performance (Ex. 32-78, p. 17).
Other commenters, however, agreed with the inclusion of persistent
symptoms in the incident trigger (Ex. 500-218, Tr. 12295), and
virtually all of those urged OSHA to extend this criterion to all jobs,
not just those in manufacturing and manual handling (Exs. 32-198, 500-
218). A number of HCPs were among those supporting, including
persistent signs and symptoms in the MSD incident trigger (Exs. 37-1,
37-12, 37-28, Tr. 7660, 13349). They said that persistent signs and
symptoms should be evaluated because, left untreated, they often
progress into more serious disorders and permanent damage (Tr. 7660,
7884, see also Ex. 32-450-1). One study has shown that employees
experiencing MSD symptoms alone are at approximately 2 to 4 times the
risk of being off work as employees without such symptoms (Ex. 500-71-
27). A number of employers now encourage employees to report signs and
symptoms to prevent such results and related costs (Tr. 5539, 5550,
14707, 14739).
The record establishes clearly that MSD signs and symptoms that
persist uninterrupted warrant further investigation (Ex. 30-4468, 500-
71-27, 37-12, Tr. 1531, 13382, 1763-65). Sound medical judgment
supports intervening when an employee has experienced at least a week
of MSD signs or symptoms. Dr. Bradley Evanoff, Assistant Professor of
Medicine at Washington University School of Medicine specializing in
research and clinical practice addressing occupational MSDs, testified:
I think whatever the occupation, whatever the type of work, if
someone has had persistent musculoskeletal symptoms for some period
[of] time, and I think a week is a reasonable period of time, then
they should be evaluated to see if they have a musculoskeletal
disorder (Tr. 1531).
Dr. Robin Herbert, medical director of the Mount Sinai Center for
Occupational and Environmental Medicine, testified that providing early
intervention for employees whose symptoms persist beyond a few days is
``consistent with accepted medical practice'' (Tr. 1653). In fact,
according to ACOEM, such intervention is ``essential'' (Ex. 30-4468).
Dr. Robert Harrison, who has treated more than 1,000 patients with
work-related MSDs over the past 20 years, and has also conducted
research in the area of work-related MSDs, testified that there is
``broad consensus among the medical profession that effective treatment
and prevention of MSDs relies on early reporting of symptoms. * * *''
(Ex. 37-12). He also summed up why 7 days is an appropriate threshold:
[S]even days is early enough to catch the symptoms early but is
late enough so that transient symptoms that may last only two or
three days don't come through as a reportable symptom to a health
care provider. I think it's a reasonable line (Tr. 1764).
The record shows that where signs and symptoms persist beyond a few
days, they are likely to indicate that an MSD has occurred. Dr. Gary
Franklin confirmed that MSDs can develop in a very short period of
time:
If I was taking the history of the person and getting these
kinds of symptoms of numbness and tingling and burning particularly
at night, it would not matter to me whether it was two days or seven
days or 14 days, if I thought clinically the symptoms were correct.
I have seen patients that developed [carpal tunnel syndrome] in a
day or two (Tr. 13382).
HCPs also testified that employees who have had MSD signs or symptoms
for only a short period of time can already be experiencing physiologic
changes or damage (Ex. 37-16). For instance, Dr. Evanoff testified:
I think people who have prolonged symptoms, lasting more than a
few days * * * if you want to use the cut off of a week
[[Page 68311]]
or more, I think that that's very likely to represent some
underlying tissue damage. * * * (Tr. 1563).
Peter Boyle, former professor of orthopedic physical therapy, agreed:
A large amount of force in a short time could create a
pathoanatomic injury causing disruption, and [tissue] failure (Tr.
2797-98).
In addition, persistent signs and symptoms can themselves be severe
enough to interfere significantly with major life activities (Tr.
13356. 13360, 13373). Dr. Connell testified:
A typical carpal tunnel patient would come in complaining of
numbness and tingling in the distribution of the median nerve.
Typically it occurs initially at night and wakes one out of a sleep
for some reason--4 a.m. seems to be the magic number (Tr. 2817).
Moreover, the persistence of signs and symptoms can be an
indication that an MSD is worsening, and early detection and
intervention are ``critical to prevention of more serious disorders,''
in the words of Dr. Robert McCunney, president of the American College
of Occupational and Environmental Medicine (ACOEM) (Tr. 7660). Dr. Marc
Connell, an orthopedic surgeon at Georgetown University Hospital,
added: ``I think that's common medical sense that the earlier the
treatment is rendered the less severe will be the MSD'' (Tr. 2833). Dr.
Edward Bernacki, vice-president of ACOEM, said:
Obviously, the earlier you pick up a problem, the more
reversible it is, so obviously, the encouragement of employees to
come in at the first signs of a problem, so that we could work it
up, and then basically start treating the illness when it is
reversible, in other words, if you have irreversible nerve damage,
that is basically too late. Then, you need surgical intervention.
However, for example, in carpal tunnel early on when the disease is
reversible, mere splinting and restriction of activities are fine,
it takes care of the problem, it disappears (Tr. 7687-88).
(See also Exs. 26-1367, 32-450-1, 37-24, Tr. 1530, 1697-98, 2853, 2833,
7649-50, 7687-88, 7883-84, 9831.)
In addition to reducing the severity of MSDs, early intervention
has been shown to reduce MSD rates and associated medical costs (Exs.
32-12, 32-339-1-87, 32-399-1-4, 32-450-1 (citing Hales et al. 1993)).
Dr. Bernacki described a study of the effect on 22,000 employees at
Johns Hopkins Hospital and University of an ergonomics program that
stressed early reporting of MSD signs and symptoms (Ex. 32-399-1-4, Tr.
7691-92). The study reported an 80 percent reduction in MSDs after the
program and early intervention were implemented.
Early intervention also increases the availability and
effectiveness of conservative therapy. Several HCPs told OSHA that,
when MSDs are treated early, symptoms ``have been completely resolved
with a brief period of restricted work activities'' (Ex. 37-12, Tr.
13345-46). Dr. Harrison said:
Employees often rapidly and completely recover from their MSD
with simple modification of the work process or change of job duties
to minimize or reduce exposure to ergonomic risk factors (Ex. 37-12,
p. 5).
Dr. Franklin added that where employees with carpal tunnel syndrome are
provided with early intervention they should be able to return right
away to modified work and that work restrictions should not be needed
for a prolonged period of time (Tr. 13345-46). Dr. Bernacki testified
that, as a result of the early reporting and intervention program at
Johns Hopkins, there had been only one surgery for work-related carpal
tunnel syndrome during the past 5 years, compared with 26 such
surgeries in the previous three years (Exs. 32-399-1-4, p. 7-8).
Early intervention also is likely to be more effective in helping
patients recover fully (Exs. 37-12, 38-222, 38-451, 500-71-57). Dr.
Harrison said:
At an early stage of symptom management, treatment with anti-
inflammatory medications, splints, and rest of the affected body
part often results in complete clinical improvement without any
permanent injury (Ex. 37-12, p. 5).
Dr. Michael Erdil, medical director of the Connecticut Occupational
Health Network, said that both scientific evidence and his own clinical
experience show that conservative therapy is much more likely to be
effective as an early intervention (Ex. 37-16, citing Kruger et al.
(1991) (Ex. 26-910), Gelberman et al. (Ex. 26-916) (1980), Quebec
(1987), Zigenfus et al. (2000) (Ex. 38-285). Zigenfus found that
patients with low back injuries who were provided with medical
treatment earlier (i.e., less than 8 days after injury) required fewer
days away from work and restricted work and had shorter case duration
(Ex. 38-285). Dr. Evanoff explained that the medical literature
consistently shows that:
[C]onservative management of MSDs is most effective when begun
in early stages of these disorders, and that patients who are
treated only after a prolonged symptomatic period are less likely to
respond favorably than those treated earlier (Ex. 37-1, citing
Dellon (1989), Stern (1990), Rystrom & Eversman (1991)).
Similarly, Dr. McCunney of ACOEM testified that:
ACOEM supports the requirement of a mechanism for employees to
report MSD signs and symptoms since early detection is critical * *
* [M]y colleague and I can regale you with all sorts of anecdotes
about people who have waited too long to seek medical treatment, and
then once they come for medical treatment, the treatment is not as
effective as it could have been were they to have come earlier (Tr.
7649-50).
Dr. Harrison discussed the case of one worker who did not receive early
intervention:
[A] twenty-five year old machine operator recently came into my
office for treatment of severe hand pain and swelling. She had
worked 9 months in a job that required her to use excessive force to
press a lever over 20,000 times per day, using her hands in a pinch
grip with her wrist in an awkward posture. She had developed
symptoms after three months of work, but had not seen a health care
provider after her supervisor told her that she would ``feel
better'' after she ``got used to the job.'' By the time she finally
came to see me, she was unable to drive her car, shake my hand or
open a door. My examination showed marked swelling and redness of
the right wrist, and the pain was so severe she cried [at] my touch
or gentle movement. My diagnosis was chronic, stenosing
tenosynovitis. I had little option but to remove her from work
completely for four weeks to let the hand rest. Unfortunately, she
was unable to return to work in spite of corticosteroid injections,
splints, analgesic medication and physical therapy. She required
surgery to release the tendon, and is now in a prolonged
rehabilitation program.
This case is not unusual. (Ex. 37-12).
By including persistent signs and symptoms within the standard's
definition of an MSD incident, OSHA assures that early intervention can
occur and that medical outcomes like that described by Dr. Harrison
will not occur.
For these reasons, a number of HCPs and employers said that they
investigate MSD signs or symptoms as soon as they are reported (Exs.
30-390, 30-398, 500-218, Tr. 5539, 5550, 9906, 13382). Dr. Franklin
stated:
If I was taking the history from the person and getting these
kinds of symptoms of numbness and tingling and burning particularly
at night, it would not matter to me whether it was two days or seven
days or 14 days, if I thought clinically the symptoms were correct.
I have seen patients that developed [carpal tunnel] in a day or two
(Tr. 13382).
Several employers said that their standard response is to investigate
any report of MSD signs or symptoms (Tr. 5539, 5550, 14715-16). Sean
Cady, of Levi Straus & Co., said:
Well we believe that symptoms could be precursors to a possible
repetitive motion injury. And therefore if we know about a symptom
early we can evaluate a job for ergonomic risk factors and possibly
modify that job to reduce risk factors prior to the
[[Page 68312]]
possible occurrence of an injury. And also, early reporting of
symptoms is a trigger for our quick response system or quick
response process (Tr. 14715-16).
Some employers provide restricted work when an employee reports MSD
signs or symptoms to let the symptoms resolve quickly without medical
treatment, and to allow the employer to examine the job (Ex. 26-1370).
Other employers said their standard practice is to send any employee
who reports MSD signs or symptoms to an HCP immediately (Tr. 3867).
These employers told OSHA that their early intervention programs,
particularly restricted work and light duty, have proven to reduce the
severity and costs of MSDs significantly (Ex. 30-4137). Even after the
rule becomes effective, OSHA believes that employers who have seen the
advantage and effectiveness of such intervention programs will continue
to follow them rather than delaying intervention while they wait to see
whether the employee's MSD signs or symptoms persist. However, for
those employers who have not yet implemented early intervention
programs, including the persistent signs and symptoms criterion in the
final rule will help to ensure that employees are provided with
appropriate MSD management and work restrictions while their condition
is still reversible.
This evidence is part of the reason that OSHA does not agree with
the commenters who argued that signs and symptoms are too subjective
and difficult to verify to be an appropriate trigger for action under
this standard (Exs. 30-1722, 30-3345, 30-4340, 500-1-23, 500-1-117, Tr.
5507). Other evidence establishes that MSD signs are often easily
observable (Tr. 2828). For example, an employee's decreased range of
motion can be identified by the employee's inability to raise his arms
above his shoulders or to bend over to lift an object. Objective
physical findings also include positive results on medical tests such
as nerve conduction velocity tests, CT scans, or x-rays.
The presence of MSD symptoms can also be confirmed through physical
examination by an HCP (Ex. 37-12, 37-28, Tr. 13404). Dr. Robert
Harrison testified that there are several ways to confirm the presence
of both MSD signs and symptoms, including palpation or movement of the
affected body part during the physical examination (Ex. 37-12). Dr.
Gary Franklin, of the University of Washington School of Public Health
and Community Medicine, testified that symptoms of carpal tunnel
syndrome, for instance, can be verified through absence of reflexes and
nerve conduction tests and even the Katz hand paint diagram (Tr. 13380,
13404). According to Dr. Franklin, the best case definition of carpal
tunnel syndrome is the presence of symptoms plus a positive nerve
conduction test. However, Dr. Franklin also said that in some
circumstances HCPs can reliably determine, based on symptoms alone,
whether a patient has carpal tunnel syndrome: ``one could make a
reasonable determination based on symptoms alone if you thought it was
possible that somebody had carpal tunnel syndrome.'' (Tr. 13384-88).
Dr. Margit Bleecker, Director of the Center for Occupational and
Environmental Neurology at Johns Hopkins University, testified:
I think as somebody who has worked many years in this area, you
certainly can diagnose carpal tunnel syndrome by the history and the
physical examination. The only time that you absolutely need to have
the EMG is if you're considering surgery (Tr. 16901).
Dr. George Piligian, who is with the Mount Sinai Center for
Occupational and Environmental Medicine and for the past 10 years has
been treating workers with MSDs, added:
We use principles in medicine, and as you may or may not know,
80 percent of medical diagnoses, all medical diagnoses, not just
work-related ones, are arrived at by history and complaints. Then,
we add to them, the physical diagnosis, and finally, the testing.
This has been the way medicine has gone on for ages, and those who
have written the most respectable textbooks say that, and many
doctors who go right to the objective number, which they worship,
and leave out those 80 percent arrive at the wrong diagnosis, and
thereby give the wrong treatment. So, it is still seeing, listening,
recording, putting it all together that arrives at the medical
diagnosis, and they can be arrived at (Tr. 7851-52).
OSHA has, however, responded to the comments that certain MSD
signs, such as redness, may be transient or may be a sign of something
other than an MSD (Tr. 5507). As mentioned, in this final rule, MSD
signs are treated the same way as MSD symptoms, so that only those
signs that persist for 7 days after being reported to the employer or
that meet the other severity criteria require further action. The
proposal would have required action whenever an employee reported an
MSD sign because all positive signs must be recorded under OSHA's
recordkeeping rule. OSHA has also eliminated the reference in the
proposal to Finkelstein's, Phalen's and Tinel's tests as examples of
the kinds of positive tests that would constitute MSD signs. The record
shows that these tests are not considered reliable by a growing number
of HCPs and, in any event, have been replaced with other medical tests
such as nerve conduction tests (Ex. 37-2, Tr. 13363, 13375).
Other differences between the proposed definition of a ``covered
MSD'' and this final standard's definition of an ``MSD incident''
further show OSHA's intent not to address the type of minor and
transient symptoms that can be expected to resolve spontaneously in a
matter of days even without intervention. The final rule, unlike the
proposal, does not include the diagnosis of an MSD in the definition of
MSD incident. As mentioned, the standard also now makes clear that an
MSD is not work-related unless workplace exposures caused or
contributed to it, or were responsible for a significant aggravation of
a preexisting injury. These changes respond to comments that the
proposal could have required a full ergonomics program in situations
where workplace exposures contributed only trivially to the employee's
condition (Exs. 30-1722, 30-3934, 30-3956, 500-73, Tr. 3097-98).
Clearly, MSDs qualifying as MSD incidents under the definition in
the final rule are the types of conditions that OSHA may act to
prevent. See Occupational Noise Exposure (29 CFR 1910.95, 46 FR 46236),
Occupational Exposure to Formaldehyde (29 CFR 1910.1048, 52 FR 46168,
46234-37), and Section VII (Significance of Risk) of the Preamble. It
is even more clearly within OSHA's authority to require employees to
investigate them further to determine whether they were caused by
hazards that this standard addresses.
Paragraph (f)--How Do I Determine Whether the Employee's Job Meets the
Action Trigger?
Paragraph (f) tells employers how to determine whether a job where
an MSD incident has occurred meets the standard's two-part Action
Trigger. According to paragraph (f)(1)(i), the first part of the Action
Trigger is a determination that an MSD incident has occurred. Paragraph
(f)(1)(ii) states that the second step is a determination that the
injured employee's job meets the Basic Screening Tool in Table 1 of
this standard. Paragraph (f)(2) explains that if the job does not meet
the Action Trigger, the employer has no further obligations with
respect to that job.
The second step of the action trigger requires application of the
Basic Screening Tool in Table 1 to the injured employee's job. A job is
screened in, i.e., is determined to meet the levels in the Basic
Screening Tool, if it regularly involves exposure to one or more of the
risk factors in the Basic Screening Tool at levels above those
specified in the tool. Only where the job is screened in
[[Page 68313]]
does the employer have further obligations under the standard.
The proposed rule also included an exposure screen. The proposed
screen would have ruled out jobs where the ``physical work activities
and conditions'' in the job were not associated with the ``type of MSD
reported,'' or were not ``reasonably likely'' to cause or contribute to
an MSD. It also would have ruled out jobs in which the employee's
exposure to the risk factors was not a ``core'' element of his or her
job, or did not make up a ``significant'' amount of the employee's
workday.
Thus, the proposed standard contained performance-oriented language
(``core element,'' ``significant amount'' of time) to define the terms
of the screening criteria. In the preamble to the proposal, OSHA also
used performance-oriented language in discussing the meaning of core
element, describing the term as a ``regular and routine exposure.'' On
the whole, most commenters supported the concept of an exposure screen,
but many said that OSHA had not provided enough guidance for them to
understand when a nexus existed between an MSD and a job or what the
exposure severity threshold was for a job. For example, they complained
that the terms were too vague and undefined to answer those questions
(see, e.g., Exs. 30-1722, 30-3032, 30-3853, 30-3956, 30-4340, 30-4837,
31-92, 31-125, 31-223, 31-225, 31-260, 31-307, 30-300, 32-337, DC66,
Tr. 3337, 8849, 8850).
The following comments are representative:
The terms ``core element'' and ``significant amount'' are not
clear. While extreme examples can be easily defined, extreme
examples are few and far between in the real world. Most of the
time, examples fall into ``grey'' areas. These terms either need
specific definitions or should be replaced with other terms (Ex. 30-
4837).
Does [core element] indicate that the employee will be required
to perform a manual handling task some time during his/her shift,
i.e., one 50-lb. Lift throughout an 8-hour work shift, or does it
indicate that some repetition is involved with the manual handling
portion of the task, i.e., lifting 20 10-lb. packages per hour for 8
hours? (Ex. 30-4837).
How much is significant? 6 hours per 8-hr shift? 4 hours per 8-
hr. shift? 2 hours per 8-hr. shift? Or 22-hr. periods per 8-hr.
shift? (Ex. 30-4837).
The Rohm and Haas Company said:
[I]t is unclear what OSHA means by the subjective terms used as
shown below. ``* * * significant amount of their worktime * * *'' *
* * [and] ``* * * core element of the employee's job.'' It is
unclear how OSHA would be able to determine consistently the
applicability of the standard in specific situations in the absence
of a criteria to guide decision-making on whether the work time was
significant, the applied force was forceful, or whether the material
handling was a core element of the employee's job. * * * In the
absence of an explanation of what OSHA intends these subjective
terms to mean, it is unclear how to decide whether a particular
activity fits the definitions and therefore whether it is covered by
the standard. (Ex. 31-289)
National Small Business United testified that:
The employers, especially the smaller employer, * * * needs more
specific guidance in terms of the types of jobs to be looking at and
specifically as the types of activities in those jobs and how much
of what kind of activities is too much for what type of person. (Tr.
2746)
Con Ed stated:
Throughout the standard, OSHA uses terms that are vague and open
to interpretation such as: reasonably likely, core job element and
other similar terms. These terms require clarification so OSHA and
employers interpret them consistently. (Tr. at 4628)
In addition, ORC added that:
The proposed trigger simply does not fulfill OSHA's
responsibility to provide adequate guidance with respect to
employer's obligations. * * * OSHA must do a better job of defining
a point at which an employer's obligations are triggered and do a
better job in establishing more objective criteria. (Tr. at 4097)
Similar comments were submitted by EEI (Ex. 32-300-1); Chamber of
Commerce (Ex. 500-188; Tr. at 3044), Color Works (Tr. at 10069),
Indiana Chamber of Commerce (Tr. at 3335), National Roofing Contractors
Association (Tr. at 4905), Food Distributors International (Tr. at
5634-35), and many others.
Commenters further recommended that the screening criteria should
include specific, exposure-based criteria (Ex. 500-218; Ex. 500-214,
Tr. at 17905-6). In particular, ORC stated that:
In place of the proposed screening criteria of section 902, OSHA
would set forth flexible, but objective, risk-based criteria * * *
(Ex. 500-214)
ORC added that such criteria are already contained in the record and
that ``a number of models to define at-risk conditions and work
routines are available in the literature and are cited by OSHA in its
preamble.'' (Ex. 32-78-1)
Similarly, the AFL-CIO stated:
While we believe the content and intent of OSH's proposed
screening criteria were clear from the text and Preamble of the
proposed rule, the AFL-CIO has several recommendations for ways in
which OSHA can respond to industry's requests for more specific
guidance and definitions. We recommend two possible approaches. The
first is to incorporate a list of risk factors and criteria similar
to the ``caution zone job'' criteria included in the state of
Washington's Ergonomic Standard (WAC 296-62-0515) which serve a
similar purpose as the screening criteria in the federal OSHA
proposal. These ``caution zone job'' criteria provide more specific
definitions of risk factors and the amount of time or frequency that
must be exceeded for these risk factors to be covered by the
standard. (Ex. 500-218)
ORC also expressed qualified support for using the state of
Washington's ``caution zone job'' criteria:
Although the Washington State proposal itself contains
significant deficiencies, ORC believes its approach to providing
quantified alternative triggers is a rational one that could be
considered by OSHA. (Ex. 32-78-1)
See also Tr. 9071-74.
A preliminary exposure-based assessment as a trigger for further
actions is also widely used by participants in the rulemaking who
provided testimony on the specifics of their own ergonomics programs
(see, e.g., Ex. 32-300-1, Tr. at 2920-2927; Tr. at 5302, Tr. at 10802;
Tr. at 14142; Ex. 32-339-1-4, Tr. at 16839; Tr. at 4643-4647; Tr. at
5539-5540, 5566-5567, Tr. at 14801; Tr. at 14715). Many of these
commenters use a checklist format which contained specific descriptions
of risk factors. The Dow Chemical Company, for example, uses a short
checklist printed on a pocket size card that contains descriptions of
specific risk factors along with a duration/timing component (see,
e.g., Tr. 5311-5312, 5359, Ex. 32-77-2-1). NIOSH's Elements of an
Ergonomics Program (Ex. 26-2), also contains checklists that have
specific descriptions of risk factors, some with a duration component.
A number of other participants also suggested that OSHA adopt
quantitative methods of defining the screen (Ex. 30-46, 30-75, 30-137,
30-293, 30-328, 30-3032, 30-3284, 30-4837, 31-23, 31-27, 31-95, 31-137,
31-187, 31-31-202, 31-301, 31-307, 31-337). Specific suggestions
included defining a core element of manual handling jobs in terms of
frequency rates for lifts (Ex. 31-337), or saying lifting was a core
element of a job that required one lift per hour (Ex. 31-259).
Suggestions for a definition of the term ``significant amount of
worktime'' included 50 percent or more of the employee's worktime,
Southern California Edison (Ex. 31-23), more than 2 hours a day, UNITE
(Ex. 32-198), or routine performance of the same task 4 hours or more
per shift or 2 hours or more
[[Page 68314]]
continuously per shift, Monsanto (Ex. 30-434).
Some commenters thought that the screen would require them to
conduct a job hazard analysis every time an MSD was reported, just to
know whether the MSD was reasonably likely to have been caused by the
job. Rodney Smith of Freeborn & Peters said:
Identifying ergonomic risk factors is difficult due to the
vagueness of their definition [in the proposed rule]. But how in the
world does my employer tell whether those risk factors constitute a
hazard, as that term has been defined in the standard. That is, risk
factors reasonably likely to cause or contribute to a covered MSD
(Tr. 8850).
Others also complained that it would be virtually impossible for them
ever to establish that it was not reasonably likely that exposure to
risk factors in a job could cause MSDs, when at least one MSD would
have already occurred (Ex. 30-1722, 30-4137, DC 65). In addition,
several commenters found the crucial terms ``extremely subjective,''
and believed they would be ``open to the individual interpretation of
OSHA inspectors'' (Ex. 30-3032, 31-22, 31-303, 31-307, 32-337).
In response to those and other comments, OSHA has further clarified
and operationalized the proposed exposure screen, or severity
threshold. Once the employer determines that an MSD incident has
occurred in a job, the employer must screen the job to determine
whether it meets criteria requiring a job hazard analysis to determine
the potential hazard associated with exposure to risk factors. For ease
of use, the criteria are presented in a ``Basic Screening Tool,'' which
is a chart that contains specific descriptions of the risk factors
covered in the final rule along with duration specifications and
illustrations (see Table 1 of the regulatory text). In jobs where an
MSD incident has occurred and employee exposure to risk factors meets
the criteria laid out in the screen, the employer must proceed with the
program requirements in paragraph (g) of the standard.
Employers with employees who report MSDs in jobs that do not meet
the specific screening criteria are not required to proceed with any of
the remaining requirements of the standard. This could include jobs
that do not involve the risk factors this standard covers or where the
injured employee's work activities do not involve the injured body
area. The screen also allows employers to screen out jobs in which the
employee's work activities do not involve enough exposure to risk
factors to require further action under this standard. In these cases,
the employer need not perform a job hazard analysis, eliminate or
control any MSD hazards, or provide training or MSD management. Where
application of the screening tool results in a job being screened in,
however, employers must implement the ergonomics program described in
paragraph (g).
The Basic Screening Tool has been designed to minimize employer
burdens in screening jobs. It is similar to a number of screening tools
that are already in use (Exs. 26-1008 (Snook Push/Pull Tables), 32-77-
1-2 and Tr. 5336-37 (Dow Chemical), 502-12 (NIOSH Lifting Equation),
502-35 (GM-UAW checklist)). It is limited to five risk factors and, to
streamline the screening process, the tool applies the same duration
criteria to almost every risk factor/activity.
The Basic Screening Tool in the final standard serves the same
function as the screen in the proposed rule, but, instead of
performance language, it contains specific definitions of the risk
factors and exposure durations that define a job requiring further
analysis. The definitions used in this chart are consistent with a
number of approaches and screening tools contained in the rulemaking
record, including the state of Washington's Ergonomic Standard's
``caution zone job'' checklist (Ex. 500-41); the checklists contained
in the NIOSH Elements of an Ergonomics Program (Ex. 26-2); the
checklist developed by tripartite committee of employer, employees and
government representatives for use in conducting a preliminary job
analysis under the British Columbia Ergonomics Standard (Ex. OR-388);
and others (Exs. 500-108; 32-77-2-1, 26-2, OR-348-1; 502-67)
By utilizing language from programs and checklists that have been
used successfully by both employers and employees for many years, OSHA
fully anticipates that employers will have no difficulty in determining
whether a job meets the standard's Action Trigger. Further, as with the
proposed rule, OSHA expects that employers will be able to determine,
quickly and efficiently, if the job activities of any employee
reporting a MSD meet or exceed the criteria of the screen.
Similar to the concept expressed in the proposed rule, the basic
screening tool in the final standard, when coupled with the occurrence
of an MSD incident in a specific job, represents an exposure-based
``action trigger'', that requires the employer to proceed with some
other provisions of the standard (in particular, job hazard analysis
and MSD management). However, jobs where the employer has determined
that an MSD incident occurred and that meet the screening criteria do
not necessarily require corrective action; the need for corrective
action is based on the results of a more detailed job hazard analysis
(see Summary and Explanation, Job Hazard Analysis section). In this
way, the screening criteria concept is similar to action levels
contained in OSHA's health standards (e.g., Benzene, 29 CFR 190.1028;
Ethylene Oxide, 29 CFR 1910.1047; Formaldehyde, 1910.1048.) In those
standards, as in the final ergonomic program standard, the inclusion of
an action level is used to differentiate between more hazardous and
less hazardous work operations, and to identify those operations where
the employer needs to focus resources.
The screening criteria in the final standard consist of the five
risk factors that are covered in the final rule: repetition, force,
awkward postures, contact stress, and vibration. Most of the screening
tools submitted to the record contained similar risk factors. For
example, the screening tools submitted by NIOSH (Ex. 32-30-1-45), UFCW
(Ex. IL-228), the AFL-CIO (Ex. 500-71-70), the Worker's Compensation
Board of British Columbia (Ex. 500-142-12), the UAW/General Motors (Ex.
Or 348-1), Dow (Ex. 502-77-2-1), and the Washington State Department of
Labor and Industries (Ex. 502-313-6) included these same five risk
factors as specific risk categories in their screens or included
narrative questions directly related to or incorporating these same
risk factors. In addition, these are the risk factors addressed in the
epidemiological literature on ergonomics and discussed in the Health
Effects section (Section V) of this preamble.
The proposal also included static postures, whole body vibration,
and cold in the list of risk factors. The evidence discussed in the
Health Effects section of this Preamble has convinced OSHA that these
risk factors should no longer be addressed independently. Static
postures will be covered to some extent by the awkward postures element
of the screen, and employers should be aware that cold temperatures may
aggravate the effects of other risk factors.
To give further guidance to employers, each risk factor in the
chart is clearly described (i.e., descriptions of specific job or task
activities) and includes specific duration, frequency. and magnitude
components. In the chart, repetition includes a separate description
for keyboarding/mouse use; force is broken down into lifting, pushing/
pulling, and pinching and gripping unsupported objects of specified
weights; awkward postures are defined by specific postures, as well as
[[Page 68315]]
pictures; and vibration includes a description for both high vibration
levels from equipment such as chainsaws, and moderate vibration levels
from equipment such as jigsaws, grinders or sanders.
In addition, the chart contains a simple grid for employers to use
in relating the body area affected by an MSD incident to a relevant
risk factor. Thus, the grid serves to further simplify this initial
determination by assisting the employer in focusing on only those risk
factors that have a clear nexus with the MSD incident that triggered
the use of the screening tool; this also reflects OSHA's intent in the
proposal. For example, if an MSD of the back or lower extremity is
reported, the employer, when evaluating the risk factor for repetition,
would focus only on job or task activities where the employee is
performing the same motions every few seconds or repeating a cycle of
motions involving the affected body part more than twice per minute for
more than 2 consecutive hours in a workday. The employer would not need
to consider use of a keyboard and/or mouse in steady manner (the shaded
portion of the chart under the risk factor repetition). Similarly, for
a reported MSD affecting the back or lower extremity, the employer,
when evaluating the risk factor for force, would only need to focus on
job or task activities involving lifting or pushing/pulling and not on
work tasks involving pinching or gripping.
Each job or task activity also includes a duration/frequency limit.
In selecting the duration limit for the risk factors, OSHA based its
decision on balancing the weight of the scientific evidence against the
need for the screening tool to be clear and easy to use. For many items
in the chart, the agency has chosen to use more than 2 hours total per
day as an exposure duration that triggers jobs for job hazard analysis;
this determination is based on an analysis of relevant epidemiological
data contained in the rulemaking record.
Many studies in the epidemiological literature clearly demonstrate
that the incidence of MSDs increase with increased duration of exposure
to certain risk factors or a combination of risk factors. Table IV--
SCREEN lists studies that included duration, either qualitatively or
quantitatively, as a component of the investigation. These studies
reflect a subset of the many studies identified by the Agency that
demonstrate positive exposure-response relationships between the
intensity and/or duration of exposure to biomechanical risk factors and
the prevalence or incidence of MSDs. The results of these studies show
increases in odds ratios or other risk measures with increases in the
daily or weekly duration of exposure for a number of risk factors such
as repetitive precision movements, awkward postures (e.g., hands above
the shoulders, kneeling, stooping), gripping, lifting, and carrying.
For example, Ekberg et al. (Ex. 26-1238) reported that the risk of MSDs
of the neck and shoulder increased with the hours per day that
repetitive precision movements were performed and that arms were lifted
above the head. Similarly, Kelsey et al. (Ex. 26-709) reported an
increased risk of prolapsed lumbar disc when the frequency of lifting
or carrying loads greater than approximately 25 pounds increased from 0
to more than 25 times per day. Similar dose-response observations were
reported by Latza et al. (Ex. 38-424), Matsui et al. (Ex. 26-309),
Smedley et al. (Ex. 500-41-40) and Tola et al. (Ex. 26-1018).
OSHA's review of the studies that quantified duration of exposure
indicate that, in general, the MSD risk in exposed groups of workers
increases above that in unexposed groups when the duration of exposure
to certain risk factors or combinations of risk factors comprises about
one-fourth to one-half of the workday or workweek. For example,
Holmstrom et al. (Exs. 26-1231, 26-36) studied workers using awkward
positions such as stooping, kneeling, and raising the hands above the
shoulder and found an increased risk of low back pain (Odds Ratio of
1.4, 1.9, and 1.5 for stooping, kneeling and hands above the shoulder,
respectively) with 1 to 4 hours per day of exposure. Similarly,
Nordstrom et al. (Ex. 26-900) observed that the risk of carpal tunnel
syndrome began to increase among workers whose jobs involved wrist
bending or twisting after exposures of 3.5 hours compared to groups
exposed for less than 3 hours (Odds Ratios of 1.34 with 0.25-1.75 hours
exposure, 1.23 with 2-3 hours exposure, and 2.33 with 3.5-6 hours of
exposure). Similar quantitative observations were reported by deKrom
(Ex. 26-102) for wrist flexion, Baron et al. (Ex. 26-697) for grocery
checking, and Xu et al. (Ex. 500-71-53) for frequent twisting and
bending and for physically hard work (see Table IV--SCREEN). Other
studies reported results using qualitative ordinal scales that indicate
that risks increase, sometimes substantially, with exposure to risk
factors of one-half a day or more. Ekberg et al. (Ex. 26-1238) reported
ORs of 3.8 and 2.4 for neck/shoulder disorders that were associated
with a ``medium'' duration (in hours per day) of repetitive precision
movement or arms lifted, respectively, compared to workers with ``low''
exposure in terms of daily duration. Stetson et al.(Ex. 26-1221) found
an increased prevalence (65%) of hand/wrist symptoms among workers
using a high grip force (> 6 pounds) for more than half of a shift
(defined as ``frequently'' in the study), compared to the prevalence in
workers with ``some'' (40%) or no (41%) exposure. A study by Viikari-
Juntura et al. (Ex. 500-41-50) of trunk twisting reported a non-
statistically significant elevation in risk of neck disorders (OR =
1.3) among workers having ``little'' exposure (in hours per day), and
statistically significant increases in risk among workers with
``moderate'' (OR=1.9) and ``much'' (OR = 2.3) exposure.
However, there were also studies that showed increased risk of MSDs
associated with exposures of less than 2 hours daily. For example,
Vingard et al. (Ex. 500-41-51) showed an increased risk MSDs of low
back area among workers in jobs involving forward bending for
approximately 1 hour per day (statistically significant for male
workers, but not for female workers). Holmstrom et al. (Ex. 26-36)
found a significantly increased OR (2.4) for severe low back pain with
impairment for less than 1 hour per day of kneeling). DeKrom et al.
(Ex. 26-102) reported a significantly increased OR (1.4) for carpal
tunnel syndrome among workers having 1 to 7 hours per week of wrist
flexion; 1 to 7 hours per week of wrist extension was also associated
with an elevated OR for CTS (1.4), but that result was not
statistically significant. Latza et al. (Ex. 38-24) reported an
increase (not statistically significant) in low-back pain among workers
laying sandstone for less than 2 hours per day compared to unexposed
workers. English et al. (Ex. 26-848) found positive exposure-response
relationships where ORs for carpal tunnel syndrome or hand/wrist
disorders increased by 1.8 and 1.6 per hour worked per day,
respectively, for workers performing tasks involving shoulder rotation
once per minute. These studies, taken as a whole, demonstrate that for
the risk factors listed in the basic screening tool, the risk of MSDs
increased with daily duration of exposure.
The studies described above and contained in Table IV--SCREEN show
that, where researchers have investigated relationships between MSD
risk and daily duration of exposure, the risk of MSDs has been
consistently elevated in groups of workers exposed for half of the
workshift or more (Exs. 26-1238, 26-697, 26-1221, 38-428, 26-
[[Page 68316]]
1231, 26-36, 26-1018, 500-41-50, 26-102, 26-900, 26-58, 500-71-53). For
exposure durations of one-fourth to one-half of the shift, or durations
described as ``some'' or ``moderate,'' several studies showed
statistically significant increases in MSD risk (e.g., Exs. 26-697, 38-
428, 26-1231, 26-36, 500-41-50, 26-102) and others reported increased
ORs that were not statistically significant (e.g., Exs. 26-1018, 500-
41-50, 26-102, 26-58). For exposures of less than 2 hours daily
duration, results from these studies are more equivocal; some reported
significantly increased ORs (e.g., Exs. 500-41-51, 26-848, 26-102, 26-
36) while several found non-statistically significant increases in ORs
(e.g., Exs. 500-41-50, 26-102, 500-41-51, 26-36, 26-1231, 38-24). Based
on these studies, OSHA finds it reasonable to trigger jobs for job
hazard analysis where employees are exposed to the risk factors
indicated on the screen for more than 2 hours during the work shift.
OSHA believes that a 2-hour duration criterion for the screen will
capture those exposure situations where the epidemiological evidence
indicates that MSD risk is most likely to be elevated (i.e., jobs
involving more than 4 hours per day of exposure) as well as those jobs
involving 2 to 4 hours of exposure during the shift where the evidence
suggests that the risk may already be increased, at least in some
situations. The 2-hour trigger will exclude those jobs where the
evidence has been less consistent in finding an elevated risk of MSDs
(i.e., jobs involving less than 2 hours of exposure). This is
consistent with OSHA's statutory mandate to be protective of workers.
However, because the screen does not necessarily trigger an obligation
to control a job, OSHA also is not imposing unnecessary costs on
employers.
In using this 2-hour cutpoint, OSHA does not intend to imply that
all workers will experience significant adverse effects after 2 hours
or more of exposure. Rather, OSHA is using this cutpoint in the screen
criteria to give employers guidance about which jobs might involve a
sufficient duration of exposure such that the job warrants closer
examination. In addition to being supported by the scientific
literature, this value is also administratively simple for employers to
use, thus allowing the screening tool to be used quickly and
consistently for a number of different jobs.
For repetitive motion other than use of a keyboard or mouse, the
screen triggers jobs into the requirements of the standard only if the
exposure occurs for more than 2 consecutive hours in a workday, as
opposed to more than two hours total per day. This reflects OSHA's
belief, based on the health evidence, that 2 hours of repetitive motion
will be less hazardous if spread out over the workday because
musculoskeletal tissue will have an adequate opportunity to recover. By
capturing only those jobs that involve more than 2 consecutive hours of
repetitive motion, the standard will not capture those jobs where
employees change tasks during the day, even if the repetitive motion
occurs for a total of 2 hours over the work shift.
The screening tool departs from the 2-hour duration criterion for a
few items. These include the following: For use of keyboard and mouse
in a steady manner, the duration is set at 4 hours total per workday;
for lifting, the screen sets weight and frequency criteria; and for use
of tools or equipment that typically have high vibration levels (such
as chainsaws, jack hammers, percussive tools, riveting or chipping
hammers) the duration is set at 30 minutes total per day.
For use of a keyboard or mouse in a steady manner, OSHA has set the
duration for more than four hours total per day. In this case, OSHA has
chosen more than four hours based on the epidemiological evidence that
demonstrates that, in general, the risk of MSDs for workers performing
keying activities begins to increase after four hours of exposure (see
Table IV--SCREEN). For example, Bernard et al. (Ex. 26-842) studied
workers typing at video display units and reported an increased risk of
hand/wrist MSDs for exposures of 4 four to six hours. Oxenburgh (Ex.
26-1367), observed an increased prevalence of hand, wrist, forearm and/
or elbow MSDs after 4 hours per day at a keyboard. Similarly, Polanyi
et al. (Ex. 38-3) studied keyboard workers and observed that upper
extremity MSDs significantly increased after exposure durations of
approximately four hours per day. Based on this evidence, OSHA has
determined that it is appropriate to deviate from the 2 hour duration
criterion set for other job or task activities, and to set a greater
than four hours total per day for the use of a keyboard or mouse in a
steady manner.
For using tools or equipment that typically have high vibration
levels (such as chainsaws, jack hammers, percussive tools, riveting or
chipping hammers) OSHA has set the duration at 30 minutes total per
day. This level is based on a time-energy equivalent exposure
determination. For example, the time duration for using tools or
equipment that have moderate vibration levels (such as jig saws,
grinders, or sanders) is set at 2 hours total per day. Vibration level
can be expressed as the amount of energy transmitted by the tool over a
certain period of time (e.g., m/s\2\). OSHA assumes that a moderate
vibration level is approximately 2.5m/s\2\. The duration for moderate
vibration level is more than 2 hours total per day. Assuming that a
high vibration level is approximately 10m/s\2\ (4 times the moderate
vibration), the time-energy equivalent exposure duration level at which
risk is increased for activities involving high vibration levels would
be 30 minutes (i.e., \1/4\ of 2 hours). That is, risks for activities
at four times the vibration level would occur \1/4\ the amount of time.
For lifting, the chart contains specific weight limits, coupled
with a specific limit on the number of times per day the weight can be
lifted. Weight limits are specified for weights lifted from below the
knee, above the shoulder and at arm's length. The limits specified are
as follows: lifting more than 75 pounds at any one time; more than 55
pounds more than 10 times per day; or more than 25 pounds below the
knees, above the shoulder, or at arms' length more than 25 times per
day. OSHA has based these limits on recommendation found in other
screening tools as well as evidence in the epidemiological literature
that shows increased risk of low back disorders when lifting certain
weights at certain frequencies or postures. For example, Arad and Ryan
(Ex. 500-41-7) and Smedley et al. (Ex. 1249) reported an increase in
risk low back MSDs among healthcare workers lifting one to four
patients per day. Kelsy et al. (Ex. 500-41-73) reported increased risks
of lumbar disorder among workers in jobs requiring lifting more than 25
pounds more than 25 times per day compared to workers who did not lift
these weight. Similar findings were reported by Macfarlane et al.(Ex.
500-41).
OSHA finds that the weight of evidence clearly demonstrates that
heavy, frequent or awkward lifting increases the risks for MSDs.
Particular studies, such as those described above, provide support for
the specific weight criteria used in OSHA's screening tool for the
final standard. Washington State has used similar data to support its
``caution zone job criteria'' for lifting (Ex. 500-313-6). OSHA
believes that these are reasonable criteria to use for the screening
purposes of this standard and that, in general, these criteria reflect
the evidence in the record.
The exposure screen also contains an entry for activities involving
pushing and pulling. In a questionnaire survey of insurance company
policyholders,
[[Page 68317]]
Snook et al.(1978) found 9% of low back injuries to be associated with
pushing and 9% to be associated with pulling (Ex. 26-35). NIOSH (1981)
cited evidence that 20% of overexertion incidents involve pushing and
pulling objects (Ex. 26-393). Thus, OSHA finds that it is appropriate
to include pushing and pulling on the screen as a specific exposure
criterion.
For job activities involving pushing or pulling, the chart
specifies 20 pounds of initial force as the trigger criterion. To
provide a basis for determining appropriate workloads for these
activities, Snook and Ciriello (1991) developed tables of maximum
acceptable forces for pushing and pulling (Ex. 26-1008). Maximum
acceptable forces were expressed in terms of the percentage of the
industrial population capable of performing the task. Data were
presented separately for males or females either pushing or pulling,
and were given for both initial forces (the force required to get an
object in motion) and sustained forces (the force required to keep an
object in motion). Variables included frequency, distance, and height
(vertical distance from floor to hands).
The tables were developed based on experiments employing a
psychophysical methodology (Ex. 37-6). This approach assumes that
workers are able to determine with some accuracy their highest
acceptable workload. Subjects were given a task with a set frequency,
distance, and height and were allowed to control the amount of force
used. Subjects were instructed to work as hard as they could without
straining themselves or becoming unusually tired, weakened, overheated,
or out of breath.
Although acute fatigue was the basis of the limitations established
by this series of experiments, the results have been shown to predict
the risk of developing MSDs. Snook et al.(1978) reported that workers
performing manual handling tasks that less than 75% of workers are
capable of performing without overexertion are three times more likely
to suffer from low back injuries than those workers performing manual
handling tasks that more than 75% of workers are capable of performing
(Ex. 26-35).
Other research has also supported a relationship between
psychophysically derived exposure levels and risk of MSDs. Using an
index derived from the tables developed by Snook and applying it to
6,912 workers in 55 industrial jobs, Herrin et al.(1986) found that the
number of overexertion incidents was related to the psychophysical
stress of the job. The severity of these incidents as measured by lost
or restricted work days was also found to be associated with
psychophysical stress (Ex. 26-961). Additionally, Park and Punnett
found psychophysical ratings of ergonomic stressors to predict the
incidence of in-plant medical visits for MSDs among 1064 workers in two
automobile manufacturing plants (Ex. 38-160).
Based on the reported association between pushing and pulling and
the development of MSDs, and the evidence of a relationship between
psychophysically derived exposure limits and reported injuries, OSHA
concludes that an exposure criterion based on psychophysically derived
limits will serve as a reasonable basis for determining when a hazard
analysis is necessary for jobs involving pushing and pulling
activities.
The 20-pound force criterion for pushing and pulling will capture
all jobs that are designed such that less than 75% of workers (male or
female) are capable of performing them without experiencing
overexertion. As explained above, lifting jobs that cannot accommodate
at least 75-percent of the working population's physical capacity have
been associated with a three-fold higher risk of low back disorders.
This suggests that jobs should be subject to more detailed hazard
analysis if an initial screen indicates that a task involving pushing
or pulling is not designed within 75-percent of the working
population's physical capacity.
While the screening threshold for pushing and pulling forces is
based upon an exposure level that is protective of 75 percent of the
industrial population based on psychophysical measurements relating to
overexertion, this should not be construed as an endorsement by the
Agency of exposure to ergonomic risk factors based on what is
considered to be an acceptable level for any given percentage of the
population. The level chosen in this instance resulted from the fact
that the evidence in the record indicates that an increased risk of
developing MSDs exists among workers who perform pushing or pulling
activities at levels above those found to be acceptable to 75 percent
of the industrial population based on psychophysical measurements
relating to overexertion, not because any particular proportion of the
exposed population was considered to be protected from developing MSDs.
The 20-pound force criterion for pushing and pulling tasks is
consistent with the OSHA ``safe harbor'' for pushing/pulling, which is
based on the 90th-percentile values for female workers. Using 20 pounds
as screening criteria will help to ensure that employers are not
screening in jobs for which they have already implemented controls
based on the safe harbor value, but instead are screening in those jobs
where risks may begin to occur and for which a job hazard analysis is
appropriate.
For performing activities that require pinching or gripping
unsupported objects, the chart specifies weights of two pounds or more
per hand for pinching and 10 pounds or more per hand for gripping.
These values are generally supported by studies such as those by Chiang
et al. (Ex. 500-41-25), Stetson (Ex. 500-41-44), English (Ex. 500-41-
30) and Roquelaure et al. (Ex. 500-41-112). These investigators
reported increased risks of carpal tunnel syndrome, thumb disorders,
shoulder disorders, and nerve abnormalities among workers repetitively
pinching objects approximately in the range of two pounds or gripping
objects approximately in the range of 10 pounds. OSHA believes that the
weights specified represent reasonable screening criteria for
identifying conditions likely to cause the type of MSDs reported and
are similar to values recommended in other screening tools. While there
may be more precise ways of measuring force associated with pinching or
gripping, OSHA believes that using the weight of objects handled is
more administratively simple for employers to use and thus will enable
employers to more quickly and consistently evaluate jobs.
Similarly for contact stress, OSHA has specified a frequency of 10
times per hour when using the hand or knee as a hammer. OSHA believes
that this value is also administratively simple and reasonable to use
for the screening purposes of this standard. Studies have shown
increased risk in MSDs among workers using the hand or knee as a hammer
(e.g., Little and Ferguson, Ex. 26-1144 and Thun, Ex. 26-60). However,
little data is available that quantifies the frequency of exposure at
which increased risks are observed. Washington State chose a value of
10 times per hour for their ``caution zone job'' criteria. OSHA
believes that this is a reasonable value to use for screening purposes
and that it gives the employer guidance in identifying work activities
likely to contribute to the type of MSDs reported.
In summary, the specific description of risk factors contained in
the screen, coupled with the duration specifications, all have a
sufficient degree of risk to trigger some simple additional
requirements (job hazard analysis, MSD management, training and
evaluation). It should be kept in
[[Page 68318]]
mind however, that these are not intended to imply that a hazard exists
and requires control be instituted. There is substantial evidence in
the record that supports the agency's choice of risk factors and
duration levels. As with ``action levels''' contained in other health
standards, the duration levels were set at levels where the risk begins
to rise and additional, simple steps are necessary.
The purpose of this screen is to focus on those jobs that are
likely to have caused or contributed to the MSDs that are reported. In
general, activities causing or contributing to such MSDs are more
likely to be ones that make up significant amounts of the employee's
worktime and represent a core element of the employee's job. As such,
these activities are likely to be a foreseeable part of the job that
can be reasonably predicted and thus can be taken into account when
designing an ergonomics program. These are the types of jobs that OSHA
seeks to capture under the final standard so that programs can be put
in place to prevent further MSDs from occurring.
In order to better enable employers to capture such jobs, OSHA is
setting a minimum frequency for job or task activities that must occur
as a part of the screening tool. OSHA is setting this frequency at one
day per week or more. Obviously, there are numerous values that could
be chosen. However, OSHA believes that this value can reasonably be
used to determine those job or task activities that are core element of
an employee's job, and are foreseeable or reasonably predictable. In
addition, a frequency of once a week or more is likely to capture many
work activities that are an element of an employee's job that occur on
a weekly basis (e.g., deliveries or maintenance activities). To meet
the screen, a job must ``routinely'' involve tasks that meet the
designated criterion at least one day a week. This value will also
provide guidance in that it can be used to rule out job or task
activities that are rare occurrences, that are not predictable, or that
result from unusual work circumstances.
In conclusion, in response to the comments received on the proposed
standard, OSHA has developed a screening tool that will provide
employers with quantitative guidance for determining work activities
and conditions that are likely to cause or contribute to MSDs and that
are a core element of a job or make up a significant amount of the
employee's worktime. This screening tool includes specific descriptions
of tasks and durations that will enable employers to evaluate jobs,
quickly and consistently, at their worksites. To the extent possible,
these descriptions and durations were developed using to the extent
possible using the best available epidemiological literature as well as
expert opinion from other groups who have developed very similar
screening tools. This screen is intended to be used in conjunction with
the event of an MSD incident to identify work conditions where exposure
risks may exist such that a job analysis must be conducted to determine
whether job controls are quickly and consistently necessary.
Paragraph (g)--What Actions Must I Take if the Employee's Job Meets the
Action Trigger?
Paragraph (g) of the final rule defines the actions that employers
must take if an employee with an MSD incident is employed in a job that
meets or exceeds the action trigger. The paragraph requires that the
employer must either implement the Quick Fix option in paragraph (o) of
the final rule, or develop and implement an ergonomics program that
includes the following elements:
(i) Management leadership as specified in paragraph (h) of this
section;
(ii) Employee participation as specified in paragraph (i) of this
section;
(iii) MSD management as specified by paragraphs (p), (q), (r), and
(s) of this section;
(iv) Job hazard analysis as specified by paragraph (j) of this
section;
(v) Hazard reduction and control measures as specified in
paragraphs (k), (l), and (m) of this section, and evaluations as
specified in paragraph (u) of this section, if the job hazard analysis
determines that the job presents an MSD hazard;
(vi) Training as specified in paragraph (t) of this section.
A few commenters suggested that the effectiveness of ergonomics
programs in reducing workplace MSD hazards was not demonstrated for the
proposed rule. For example, the post hearing brief submitted on behalf
of the U.S. Chamber of Commerce stated:
None of this ``evidence'' * * * begins to support the
proposition that an Ergonomics Program Standard such as the one
contained in the Proposed Rule will reduce at all the incidence of
workplace musculoskeletal complaints. [Ex. 500-188]
In contrast, the use of ergonomics programs as an effective method for
addressing workplace MSD hazards was endorsed by the vast majority of
commenters in the rulemaking record (see, e.g. Exs. 30-3855, 32-185,
500-209, Tr. 4940, Tr. 1491). For example, Mr. McCauseland,
representing the American Meat Institute (AMI), testified during the
rulemaking hearing: So what has happened in the 10 years since the meat
packing guidelines were issued? Well, a number of things. In our
industry, reduced levels of injuries and illnesses have been
approximately one third of all incidents. Nearly one-half of lost time
incidents have been reduced as well. * * * The guidelines have fostered
proactive efforts to eliminate ergonomic risks and hazards in a wide
ranging number of applications [Tr. 4940].
A complete discussion of the widespread support for the proposition
that ergonomics programs are effective is contained in Chapter III of
the Final Economic Analysis for the final rule. In that chapter, OSHA
discusses the history of successful ergonomics programs and describes
the extensive use of ergonomic programs throughout broad sectors of
industry. In fact, the number, longevity, and extensive use of
ergonomic programs that are similar to those required by OSHA's final
rule clearly validate the Agency's regulatory approach, as well as
demonstrating the inherent feasibility of the standard for covered
employers who establish such programs.
Many of these programs have most or all of the program elements
required by paragraph (g) of the final rule. The wide use of these
elements in current programs is evidence that employers believe them to
be essential, workable concepts. The program elements contained in the
final rule are summarized and explained in other sections of this
preamble and therefore will be discussed only briefly here in the
context of the overall program requirement.
Paragraph (g) of the final rule specifies that if an employee's job
exceeds the action trigger, the employer may implement a quick fix
option for that job under paragraph (o). An employer who qualifies for
the quick fix option does not need to establish an ergonomics program,
although he or she must follow all of the quick fix procedures.
However, if the employer cannot or does not implement a quick fix, then
the standard requires an ergonomics program with the following
elements:
Management leadership,
Employee participation,
MSD management,
Job hazard analysis,
Hazard reduction and control,
Training, and
Evaluation.
Management leadership is critical to the successful implementation
and operation of ergonomics programs.
[[Page 68319]]
Management leadership provides the focus and direction of the program's
effort as well as the needed resources in terms of both personnel
commitment and funding. The requirements for management leadership are
described in the summary and explanation for paragraph (h).
Employee participation is equally important. Employees are
essential sources of information about MSDs, risk factors, and MSD
hazards in their work areas. They have valuable insights into effective
control measures that can be used to reduce risk factors inherent in
their jobs. The requirements for employee participation are described
in the summary and explanation for paragraph (i).
MSD management provides for prompt and appropriate management when
an employee has experienced an MSD incident. MSD management includes
access to a health care professional, work restrictions as needed, work
restriction protection, and evaluation and follow-up of the MSD
incident. MSD management is important largely because it helps ensure
that employees promptly report MSDs and signs and symptoms of MSDs.
This, in turn, ensures that jobs that present MSD hazards will be
included in the ergonomics program. The requirements for MSD management
are described in the summary and explanation for paragraphs (p), (q),
(r) and (s).
Job hazard analysis provides for the identification of the risk
factors for jobs that meet the action trigger. The job hazard analysis
provides a systematic approach to identifying and addressing the risk
factors in the job. The requirements for job hazard analysis are
described in the summary and explanation for paragraph (j).
Hazard reduction and control is the heart of the ergonomics
program. Under this program element, employers control the risk factors
in problem jobs identified during the job hazard analysis. The
requirements for hazard reduction and control are described in the
summary and explanation for paragraphs (k), (l), and (m).
Training provides employees with the information and understanding
that they need to participate effectively in the ergonomics program. In
addition, the training required by the final rule provides the more
detailed information that supervisors, team leaders and other employees
involved in setting up and managing ergonomics programs need to carry
out their program-related responsibilities effectively. The training
requirements are described in the summary and explanation for paragraph
(t).
Evaluation is the process employers use to ensure that the program
they have established is functioning as intended. Employers are
required to evaluate their programs every three years and at other
times if they have reason to beleive that the program is not
functioning properly. The requirements for program evaluation are found
in paragraph (a).
In summary, ergonomic programs similar to OSHA's in structure have
been effectively reducing the incidence and/or the severity of MSDs for
at least 10 years throughout the vast majority of general industry
sectors. Model programs that contain OSHA's program elements have been
implemented by a wide range of employers, such as large and small
manufacturing establishments, utilities, and government agencies (see,
e.g., Exs. 32-185, 500-108, 38-50, Tr. 4693, Tr. 5696, Tr. 6310, Tr.
5931, Tr. 7031, Tr. 7068, Tr. 7074, Tr.7918, Tr. 7934, Tr. 7937, Tr.
7963, Tr.7948, Tr. 7999, Tr. 8826, Tr. 14707, Tr. 17350)
Paragraph (h)--Management Leadership
Paragraph (h) contains the final rule's requirements for management
leadership. It requires that employers assign and communicate
responsibilities for setting up and managing the ergonomics program;
provide the authority, resources, and information necessary to meet
those responsibilities; ensure that existing policies and practices
encourage and do not discourage reporting and participation in the
ergonomics program; and communicate periodically with employees about
the program and their concerns about MSDs.
Paragraph (h) of the final rule is nearly identical in content to
the proposed management leadership section (Section 1910.912). OSHA has
elected to retain the management leadership requirements as proposed
due to evidence in the record that supports the need for management
commitment in any effective ergonomics program. Minor changes have been
made to clarify the provision regarding the assignment and
communication of responsibilities and to allow for more concise
application of the subelement relating to the encouragement of
reporting and participation.
OSHA proposed to require management leadership because the
literature on ergonomics programs consistently cites management
commitment as a vital component of an effective program (see, e.g.,
Exs. 2-13, 26-2, 26-5, 26-9, 26-10, 26-13, 26-14, 26-17, 26-18, 26-22,
26-27). The need for management commitment was also supported by a
number of responses to the ANPR (see, e.g., Exs. 3-27, 3-124, 3-173).
The elements of the proposed and final management leadership
requirements are based on the concept of management leadership
expressed in the literature. OSHA considers the proposed and final
management leadership provisions to be necessary to the exercise of
leadership of the ergonomics program.
Responses to the proposed management leadership provisions
indicated general support for the concept of management leadership.
Comment on the provisions pertaining to the assignment and
communication of responsibilities; provision of authority, resources,
and information; and periodic communication focused on the
interpretation, rather than the concept, and often criticized the
proposal as vague. Comments regarding policies and practices that
discourage reporting and participation revealed sharply divided opinion
on the merits of the proposed provision.
The importance of management leadership as a component of an
effective ergonomics program was supported in a number of comments on
the proposed rule (see, e.g., Exs. 30-2387, 30-3745, 30-3765, 32-78-1,
32-85-3, 32-182-1, 32-198-4, 32-339-1, 30-428, 30-3860, 30-4333, Tr.
3479, Tr. 3565, 32-450-1-18-1, Tr. 8004, Tr. 1496, Tr. 9070). David
LeGrande of the Communications Workers of America, for example, when
asked to indicate what characteristics distinguished successful
ergonomics programs from those that fail, explained that the commitment
of management is the primary factor in determining if a program will
succeed (Tr. 9018).
The inclusion of a distinct requirement for management leadership
in the proposed ergonomics standard, however, was considered by some
parties to be inappropriate (see, e.g., Exs. 32-78-1, 30-2830, 30-3853,
30-3765, 32-368-1, 500-223, 30-3426). Mandating the assignment of
responsibilities and provision of authority, resources, and
information, it was argued, is so vague as to lead to uneven
enforcement by OSHA personnel, according to these commenters (see,
e.g., Exs. 30-74, 30-240, 30-1336, 30-3284, 30-3336, 30-3344, 30-3367,
30-3763, 30-3782, 30-3849, 30-3951, 30-4496, 30-4674, 30-4837, 30-
4247). The Ameren Corporation, for example, stated:
Whether an employer has committed enough ``resources'', has
``ensured'' that they have encouraged their employees to report or
participate, or is communicating often
[[Page 68320]]
enough are all highly subjective judgement calls which cannot be
consistently made by OSHA (Ex. 30-4247).
Bruno's Supermarkets and others (see, e.g., Exs. 30-2836, 30-2837, 30-
2828, 30-2839, 30-2840, 30-2841, 30-2842, 30-2843, 30-2844, 30-2940)
concurred with this assessment, stating:
[The proposed standard] requires that employers communicate
``periodically'' with employees about the ergonomics program.
Suppose, for example, that an employer distributes an annual
ergonomics bulletin. How will the employer know whether an OSHA
inspector will expect us to communicate more frequently, such as
once a week or once a month? This section also requires employers to
provide those managing the ergonomics program with ``resources,''
which are vaguely and broadly defined as ``the provisions necessary
to develop, implement, and maintain an effective ergonomics
program,'' including money, etc. We may feel that we have provided
adequate resources necessary for such an effort, but we will have no
way of knowing whether the OSHA inspector will agree. The lack of
objective, attainable standards will leave employers at the whims of
OSHA inspection personnel. (Ex. 30-2836)
The term ``periodically'' was specifically cited by a number of parties
as being unduly subjective and open to interpretation (see, e.g., Exs.
30-1101, 30-1336, 30-3826, 32-337-1, 30-1671, 30-3336, 30-3367, 30-
3782, 30-4674, 30-3512). Some commenters said that determinations about
the delegation of authority and assignment of resources were outside of
OSHA's expertise and created excessive administrative burdens on
employers (see, e.g., Exs. 32-78-1, Tr. 12250). Such mandates were
believed by some to be beyond the Agency's authority (see, e.g., Exs.
30-2914, 30-4335).
OSHA has decided to retain a requirement for management leadership
in the final rule. Management leadership is widely believed to be one
of the core elements of any effective safety and health (including
ergonomics) program. If no individuals in a given workplace have been
assigned responsibilities for the ergonomics program, it is clearly
unreasonable to expect that a successful program will somehow emerge.
Likewise, if responsibilities are assigned but no authority is granted
and no resources are provided, an ergonomics program is destined to
fail. For example, if an individual is assigned responsibility for
training workers in a problem job, that person needs access to relevant
information about the MSD hazards and controls in the job, sufficient
time to administer the training, and a suitable location for the
training to take place. Communicating periodically with employees about
the program and their concerns about MSDs is similarly essential to
creating an environment where both the employer and employees are fully
aware of issues relating to the ergonomics program. If a regular, two-
way exchange does not take place, it would be impossible for employees
to keep abreast of changes in the ergonomics program, or for the
employer to receive feedback regarding the program. Without full
knowledge, the benefits of the program will be diminished. The
endorsement of management leadership in comments and the incorporation
of this element in successful ergonomics programs supports OSHA's
conviction that management leadership is a critical component of an
ergonomics program.
Those who expressed the sentiment that the management leadership
requirements of the proposal were vague or burdensome appeared to
believe that OSHA compliance personnel would arbitrarily decide if the
authority, resources, and information provided were satisfactory, or if
the frequency of communication was adequate. OSHA reaffirms its belief,
expressed in the proposal, that employers should retain broad
discretion in deciding who should bear responsibility for the various
components of the ergonomics program, and what authority, resources,
and information are necessary and appropriate to meet the assigned
responsibilities in a given workplace.
The frequency of communication with employees is also subject to
wide latitude in order to account for the needs of different
workplaces. The term ``periodically'' is used in the standard to
indicate that communication must be performed on a regular basis that
is appropriate for the conditions in the workplace. A rigid schedule,
however, is not specified, in order to provide flexibility to account
for the circumstances found in different workplaces and even at
different times in the same workplace. Additional discussion of this
topic can be found in the section of this preamble devoted to
additional statutory issues (see Section XII of the preamble).
The general requirements in paragraph (h) of the final rule for the
assignment of responsibilities and provision of authority, resources
and information are designed to complement the more specific
requirements for action found elsewhere in the standard. For instance,
under paragraph (i) of this final rule, employees must receive prompt
responses to reports of MSDs. It is the duty of the employer to assign
the responsibility for providing those responses and to provide the
necessary authority, resources, and information needed to do so. If a
prompt, correct response is given to the employee, then the employer's
assignment of responsibility and provision of authority, resources, and
information will clearly have been satisfactory.
The final rule does not describe how responsibility is to be
allocated or how individuals will be held accountable for their
responsibilities. This is to allow employers the greatest possible
flexibility in adapting the program to their particular situation. A
concern was registered that the proposed requirement for assigning
responsibility would conflict with a management structure that did not
include supervisors (see, e.g., Ex. 30-3765). OSHA does not intend to
prescribe what program responsibilities are vested in any party. An
employer may choose to designate and empower front line employees with
any responsibility associated with the program, so long as the
authority, resources, and information necessary to meet those
responsibilities are provided.
The role that contractors, consultants, and other outside parties
may play in an ergonomics program has also been recognized by the
Agency. Although not required by the standard, OSHA is aware that
outside expertise may be beneficial in some instances. Accordingly, the
final rule allows the employer to chose who is designated with regard
to the assignment of responsibility. Ergonomists, safety professionals,
industrial hygienists, and others may be involved in the employer's
program.
Several commenters suggested that OSHA place requirements on
employees as well as employers in the final rule (see, e.g., Exs. 30-
3765, 30-584, 30-3368). These commenters believe that employees must
take responsibility for their actions. OSHA agrees that active employee
involvement in the ergonomics program is essential to program
effectiveness but does not believe that this principle should be stated
in the standard, for a number of reasons. First, the OSH Act itself, at
Section 5(b), states that ``Each employee shall comply with
occupational safety and health standards and all rules, regulations,
and orders issued pursuant to the OSH Act which are applicable to his
own actions and conduct.'' However, the courts have repeatedly held
that employers are responsible under Section 5(a)(2) of the Act for
ensuring worker protection. For example, the court in Brock v. City Oil
Well Service Co., 795 F. 2d 507, 511 (5th Cir. 1986) held, ``it is the
employer's responsibility to ensure that the
[[Page 68321]]
employees are protected. It may accomplish this objective through
others if it chooses, but the duty to provide the protection remains
the employer's.'' If, for example, an employer has determined that
lifting an 80-pound box poses an MSD hazard to employees, the employer
can establish a policy of requiring employees to use a mechanical lift
to raise such a box and train employees how to do this. The employer
could then hold the employee accountable for adhering to this policy in
the same manner as other policies or rules are enforced.
In addition to providing authority, resources, and information, the
proposed management leadership section included a requirement to
provide the training necessary to meet assigned responsibilities.
Because training for those responsible for setting up and managing the
program is addressed in paragraph (t) of this final rule, training has
been deleted from this paragraph in order to avoid potential confusion.
Some commenters expressed the belief that management leadership is
implicit in an effective ergonomics program, and an independent
requirement for management leadership is therefore unwarranted (see,
e.g., Exs. 30-3765, 30-1293). Dow Chemical, for example, while strongly
supporting the need for management leadership in safety and health
activities, expressed the view that it is not appropriate for OSHA to
attempt to regulate and enforce leadership. By establishing and
evaluating the effectiveness of an ergonomics program, Dow argued, the
employer has in effect demonstrated leadership (Ex. 30-3765).
In a similar vein, some parties argued that the requirements for
management leadership were largely redundant with other sections of the
proposal. They pointed out, for example, that communicating
periodically with employees about the ergonomics program and their
concerns about MSDs was part of the proposed management leadership
provision, while separate, specific requirements for communication with
employees were proposed as part of the provisions pertaining to quick
fix, employee participation, hazard information and reporting, job
hazard analysis and control, training, MSD management, and program
evaluation. This ``duplication,'' it was argued, could subject
employers to being cited twice for a single violation (see, e.g., Exs.
30-3344, 30-4674).
OSHA believes that there is little, if any, overlap with other
parts of this standard. The management leadership and employee
participation elements of the final rule should be considered the
overall conceptual foundation of an effective ergonomics program and a
vital part of the organizational framework of an effective program. By
fully understanding the importance of management leadership and
employee participation, it is expected that program managers will
determine how best to apply these concepts in a particular workplace
and how the individual subelements will work most efficiently in their
environment. Even where some overlap could be perceived, it is not
OSHA's policy to issue duplicate citations for a single violation.
The management leadership element also includes requirements unique
to this paragraph, such as the requirement in paragraph (h)(3). That
requirement specifies that the employer must ensure that their policies
and practices encourage and do not discourage reporting or
participation in the program. OSHA believes that applying this
provision in an ergonomics program is a logical component of
management's effort to direct the ergonomics program in a manner that
will be protective of employee health.
OSHA's proposed requirement for employers to ensure that their
existing policies and practices encourage and do not discourage
reporting and participation in the ergonomics program elicited a
substantial volume of comment. As explained in the preamble of the
proposal, this proposed provision was intended to encourage the early
reporting of MSDs and meaningful employee participation in the
ergonomics program. OSHA believes that employees in all workplaces
should be encouraged by their employers to report injuries, illnesses,
and hazards of all kinds--not just those related to ergonomic issues--
because only full and frank reporting allows employers to identify
hazards and do something about them.
Particular attention was paid by participants regarding the
requirement that employers ensure that their policies and practices do
not discourage reporting and participation in the program, and the
effect of this provision on existing employer programs, including
safety incentive programs and employee drug testing programs.
Policies and practices given in the preamble to the proposal as
examples of those that may discourage reporting included:
Programs that reward or punish employees on the basis of
injury or illness reports by offering incentives or awards based on low
numbers or rates of reported MSDs.
Policies that require every employee reporting an MSD or
MSD signs and symptoms to submit to a drug or alcohol test.
Direct or reasonably perceived threats of retaliation,
including firing or suspension, withholding overtime work for anyone
who reports MSD signs or symptoms, (even from jobs that do not involve
exposure to risk factors), prohibiting the use of sick leave for a
work-related injury; and sending every employee who reports MSD signs
and symptoms home without pay.
Expressed or implied warnings of retaliation for reporting MSDs,
MSD signs and symptoms, or MSD hazards would clearly be considered a
practice that would discourage reporting. If, for example, a supervisor
were to inform employees working the day shift that reporting MSD signs
and symptoms would automatically result in transfer to the night shift,
this action could be reasonably anticipated to suppress reporting. An
example of a situation similar to this was described by the UFCW. The
union explained that employees were reluctant to report injuries in
this situation due to the consequences they would face:
[The company] had established a special ``C'' shift--the
graveyard shift--for employees suffering from work-related injuries,
many of which were cumulative trauma disorders. The purported
purpose of the C shift crew was to assist injured workers with long
term medical restrictions in returning to regular duty. In fact,
however, a number of employees assigned to the crew were taken off
regular duty jobs which they had been performing successfully with
their restrictions. They were then isolated and segregated on the C
shift and assigned degrading, demeaning, make-work tasks such as
picking up cigarette butts in the parking lot at night with
flashlights or scraping rust off of pipes in the rendering
department (Ex. 32-210-2).
Some employers have taken this a step further, pursuing policies
that discipline workers for reporting injuries, without considering the
cause of those injuries. When rewards or punishment are linked to the
reporting of MSDs or MSD signs and symptoms, employee reporting
behavior can clearly be influenced. Punishment for reporting in the
form of wage reductions, loss of overtime, reprimands, suspensions, or
other means can be expected to discourage reporting.
An example of this approach is a system of imposing progressively
more severe penalties when injuries are reported, such as a written
reprimand for the first incident, followed by suspension, and finally
termination (see, e.g., Exs. 32-298-2). Another example is a system
that assigns a point
[[Page 68322]]
value to an incident based on factors such as the cost of the incident
to the employer or whether lost workdays were involved. Progressive
levels of punishment are meted out based upon the number of points that
an employee accumulates (see, e.g., Ex. 500-111-1). Kathy Saumier of
the United Steelworkers described such a program and its results in the
plastics plant where she worked:
The company had a policy to give out points if an employee
missed work even due to work related injury. After an employee
accumulated seven points, the company reduced the employees' pay by
50 cents per hour. If the employee accumulated 15 points an employee
was then terminated. This system caused many workers to go to work
injured for fear of pay reduction or termination (Tr. 10992).
The record also included many instances where, intentionally or
inadvertently, employer policies and practices were said to discourage
employees from reporting MSDs (see, e.g., Exs. 20-626, 32-111-4, 32-
198-4-1, 32-198-4-2, 32-210-2, 32-298-2, Tr. 5598, Tr. 6980, Tr. 7715,
Tr. 7729, Tr. 7387, Tr. 7730, Tr. 8041, Tr. 10153, Tr. 10230, Tr.
10763, Tr. 13870, Tr. 14535, Tr. 15131, Tr. 15453, Tr. 16766).
Incentive programs that offer rewards to employees or groups of
employees based on a low number of reported injuries were also
mentioned as factors inhibiting the reporting of MSDs. Bill Byington of
the IBT described how employees in his workplace were being taken to a
baseball game for completing a month of work without a reported injury;
he was aware, however, that at least one of the members of the group
had sustained an injury and not reported it (Tr. 15453). Sandy Brooks
of the United Steelworkers related her experience with a ``safety
bingo'' program, where employees receive a bingo number each day, and
the employee who wins the bingo game receives cash, weekend trips, and
dinners as prizes. The bingo game ends for all employees, however, when
an OSHA recordable injury is reported. Ms. Brooks was also aware of
workers who did not report injuries because of the incentive program
(Tr. 7703).
An additional factor in group incentive programs that can serve to
coerce employees to refrain from reporting MSDs is the peer pressure
that can be exerted when group awards are at stake. Joe Enos of the UAW
described the result of an incentive program that offered a microwave
oven to a team of workers if they reduced reported injuries 25% from
the previous year:
The group had achieved that goal going into November and they
still had a month to go. And one of the workers got hurt. And the
rest of his coworkers told him, ``Hey, you go to medical, there goes
the microwave.'' And this guy realized that his health was more
important than some microwave. But a good many of his coworkers
wouldn't even talk to him for a couple of weeks as a result of that
(Tr. 15453).
Dr. Richard Bunch of the Industrial Safety and Rehabilitation Institute
told of an injury sustained but not reported early, in order to
preserve workers' chances of winning a barbeque pit:
One company was giving a barbeque pit as a prize if you went so
many months without reporting an injury. And one gentleman had a
back problem and did not report it because the other six members on
his team threatened him with violence. So in that case, he did not
report it, but ended up going to a full blown frank rupture of the
disc (Tr. 11638).
These accounts of individuals support the impression that incentive
programs that tie rewards or punishment to the report of an injury may
result in reductions in reported injuries and illnesses, at least in
part due to lack of reporting rather than an actual reduction in the
number of injuries that occur. Nancy Lessin of the Massachusetts AFL-
CIO espoused this view:
Workers can not control the conditions which lead to most work-
related injuries and illnesses. They can control whether or not they
report an injury or illness. Safety incentive programs manipulate
the thing workers can control--the reporting of workplace injuries
and illnesses * * * (Ex. 32-298-2).
The United Steelworkers concurred with that assessment:
We know better than to believe that worker behavior is the
primary cause of most workplace accidents. We know that exposure to
workplace hazards causes injuries and illness and exposure to
ergonomic hazards causes MSDs. Ergonomic hazards need to be
controlled to eliminate MSDs in the same manner that we address any
workplace hazard. Incentive programs based on injury rates, and
behavior-based safety programs do not correct hazards. In fact,
these programs can make a bad situation worse by diverting attention
from correctable hazards, and promoting the under reporting of
injuries (Ex. 32-111-4).
Several commenters argued that OSHA had not made a determination
that incentive programs result in the underreporting of MSDs (see,
e.g., Exs. 30-4185, 30-1070, 30-3347, 30-4185). The Synthetic Organic
Chemical Manufacturers Association suggested that OSHA obtain data to
support its position, stating:
If OSHA believes that employers are not properly reporting
injuries and illnesses, it should address this issue by gathering
the data to substantiate its position. OSHA should not discourage
employers from utilizing all necessary injury/illness prevention
tools. There is no basis for the proposed Ergonomics Standard to
suggest that these effective programs should be subject to further
scrutiny (Ex. 30-3843).
Sufficient evidence has already been entered in the record,
however, for OSHA to reach the conclusion that MSDs are substantially
underreported (see the discussion of underreporting in the Significance
of Risk section of this preamble as well as the Benefits chapter of the
Final Economic Analysis). Evidence also supports the belief that
employer policies and practices often contribute to this underreporting
by discouraging the reporting of MSDs.
A review of the literature on safety incentives commissioned by
OSHA and published in 1998 divided incentive programs into two
categories based on the behavior they reward. The review found that the
literature strongly indicates that programs that measure safe work
practices, such as wearing safety glasses for eye protection or using a
seat belt when driving, may increase the frequency of such practices.
The literature review further disclosed that incentive programs that
focus on reductions in the number of injuries and illnesses reported do
not improve safety practices. No scientific studies were found
indicating that such programs had either a positive or a negative
impact (Ex. 502-281).
Some policies and practices can affect employee participation in
the ergonomics program, as well as employees' incentive to report.
Employees who are punished or discouraged from reporting MSDs or MSD
signs and symptoms, may also feel discouraged from participating in any
meetings or discussions about ergonomic problems in the workplace and
how to address them. If a worker is threatened with retaliation for
pointing out hazards or for participating in a job hazard analysis,
that worker and his or her co-workers are unlikely to take part in this
activity or future activities. Employees are likely to be discouraged
from requesting information to which they may be entitled, such as
training materials or information about this standard, if they fear
retaliation or if obtaining the information is made inconvenient.
Likewise, if employees in a problem job are asked for recommendations
about eliminating or controlling MSD hazards, but are required to
attend a meeting at an unreasonable time in an inconvenient place, or
that may involve loss of pay in order to submit those recommendations,
the likelihood of those employees
[[Page 68323]]
participating in the process would be diminished.
Some commenters were concerned that a wide variety of employer
policies and practices could have the potential to impact employee
participation and reporting of injuries; even a review of a manager's
or supervisor's performance could be found to constitute a violation of
the standard when performance criteria in that review include the
number of injuries and illnesses recorded by employees under his or her
supervision (Ex. 30-4185).
OSHA is concerned with the effect of a policy on employees'
participation in the ergonomics program and whether the program or
policy discourages reporting. In some cases, making the number of
injuries and illnesses recorded a part of a manager's performance
review can result in a policy the discourages reporting. Larry Hall of
the United Food and Commercial Workers described such a situation.
One of the things that happens with the [manager] bonuses is the
worker reports a problem, and the manager immediately tells them how
that is going to affect their bonus. If you are working for me and I
say, ``Gee, that is going to really affect my bonus. So, for the
rest of your life, you get to work nights,'' these people write
their schedules. They control their lives. If you are going to
displease me and take money out of my pocket, I can really do a lot
to you and stay within the union contract. (Tr 14538)
OSHA finds that the evidence strongly demonstrates that employer
policies and practices that reward non-reporting and punish, threaten,
or otherwise discourage employee reporting of MSD incidents have the
effect, in many instances, of suppressing incident reports. This
conclusion is based on the strong record presented by witnesses and
documentary submissions as well as on the logic that providing
incentives to not report accidents or illnesses is likely to reduce the
number of such reports, but unless the cause of those incidents is
addressed, it is unreasonable to believe that MSD incidents themselves
will be reduced in number. The litany of case reports in the record
where employer policies and practices were said to deter reporting
reinforce this position. The concealment of MSD incidents would in fact
have an effect directly opposed to the purpose of this standard.
Hazards that would otherwise be identified and eliminated or controlled
would remain and continue to threaten employees. MSD incidents that, if
reported, could be limited in severity through rest or treatment would
instead be allowed to progress.
In contrast to the comments describing the pressures on employees
not to report MSDs, a number of parties were concerned that the
proposed prohibition on policies or practices could inadvertently
eliminate widely accepted, sensible, and successful safety practices.
Many commenters indicated concern that the proposed prohibition on
policies or practices that discourage worker reporting could be
interpreted to eliminate demonstrably successful employee incentive
programs (see, e.g., Exs. 30-3765, 32-368-1, 30-656, 30-1048, 30-1070,
30-1349, 30-1551, 30-1567, 30-1616, 30-1652, 30-1671, 30-1901, 30-2038,
30-2050, 30-2061, 30-2499, 30-2514, 30-2799, 30-2811, 30-2812, 30-2814,
30-2815, 30-2846, 30-2988, 30-2990, 30-3086, 30-3174, 30-3177, 30-3336,
30-3349, 30-3353, 30-3354, 30-3678, 30-3721, 30-3736, 30-3745, 30-3819,
30-3848, 30-3951, 30-4122, 30-4185, 30-4334, 30-4496, 30-4540, 30-4607,
30-4674, 30-4702, 30-4818, 30-4822, 30-4839, 30-4843, 31-310, 32-21-1,
32-82-1, 32-120-1, Tr. 10445, Tr. 11502, Tr. 12857, Tr. 16924, Tr.
17461, Tr. 17483, 30-4340, 500-1-28, 500-1-29, 500-1-42, 500-1-69, 500-
1-70, 500-1-79, 500-1-86, 500-1-95, 500-1-106, 500-1-112, 500-1-113,
500-1-114, 500-1-136, 500-1-147, 500-1-181, 500-1-117, 500-1-119, 500-
1-121, 500-1-124, 500-1-125, 500-1-127, 500-1-135, 500-1-137, 500-1-
152, 500-1-193, 500-1-442, 32-258-2, 30-911, 30-1942, 30-3236, 30-3339,
500-219, 601-x-1710, 601-x-1711, 30-4527, 30-980, 30-2668, 30-4565, 30-
3847, 30-2684, L30-4985, 30-4029, 30-4335, 30-4443, 30-1004, 30-1010,
30-1017, 30-1025, 30-1027, 30-1035, 30-1038, 30-1042, 30-1044, 30-1045,
30-1079, 30-1080, 30-1089, 30-1099, 30-1163, 30-1164, 30-1401, 30-1403,
30-1423, 30-1424, 30-1436, 30-1440, 30-1455, 30-1460, 30-1463, 30-1495,
30-1497, 30-1566, 30-1658, 30-1659, 30-1674, 30-1675, 30-1682, 30-1684,
30-1685, 30-1686, 30-1687, 30-1688, 30-1689, 30-1690, 30-1691, 30-1916,
30-2124, 30-2126, 30-2234, 30-2235, 30-2236, 30-2237, 30-2275, 30-2279,
30-2311, 30-2369, 30-2376, 30-2588, 30-2673, 30-2674, 30-2768, 30-2850,
30-2925, 30-3002, 30-3042, 30-3044, 30-3080, 30-3083, 30-3087, 30-3229,
30-3380, 30-344, 30-346, 30-3822, 30-3985, 30-3988, 30-4037, 30-4059,
30-4507, 30-4770, 30-4841, 30-5044, 30-5106, 30-634, 30-636, 30-638,
30-643, 30-649, 30-871, 30-883, 30-891, 30-903, 30-905, 30-918, 30-978,
30-994, 30-995, 600-x-10, 600-x-11, 600-x-12, 600-x-13, 600-x-45, 600-
x-46, 600-x-5, 600-x-6, 600-x-7, 600-x-9, 601-x-1358, 601-x-1363, 601-
x-1364, 601-x-1365, 601-x-1366, 601-x-1367, 30-1416, 30-1453, 30-1457,
30-1616, 30-1998, 30-1999, 30-2131, 30-2142, 30-2184, 30-2233, 30-2250,
30-2304, 30-2395, 30-2396, 30-2423, 30-2431, 30-2736, 30-2829, 30-2889,
30-2891, 30-2992, 30-3003, 30-3254, 30-3334, 30-3393, 30-3551, 30-3597,
30-3791, 30-3882, 30-3936, 30-3944, 30-3974, 30-3977, 30-3999, 30-4464,
30-4532, 30-4539, 30-4544, 30-4629, 30-4657, 30-4667, 30-4669, 30-4980,
30-5034, 30-5076, 30-5095, 30-5101, L30-4952, L30-4953, L30-5096).
Caterpillar Inc., for instance, attested to the favorable impact of
incentive programs in that firm:
Incentive programs have always been an excellent vehicle to
raise awareness, communicate various issues throughout the workplace
and show employer concern about employee safety. While OSHA
considers these programs to be disincentives [to the reporting of
MSDs and MSD signs and symptoms], our experience shows that they
have positive benefits. By increasing awareness and rewarding safe
behaviors through incentive programs, employers have seen a
reduction in all injury categories (Ex. 30-4607).
Nothing in this final rule would prohibit incentive or award
programs. The obligation that an employer would have, should they chose
to adopt an incentive program, would be to ensure that the incentive
program did not discourage the reporting of MSDs, MSD signs and
symptoms, or MSD hazards, or discourage participation in the ergonomics
program. As explained previously, OSHA's concern is that discouraging
full reporting and participation in the ergonomics program will
diminish the effectiveness of the program.
Although incentive programs that are successful in promoting
workplace safety can be expected to result in a reduction in the number
of injuries reported, an unsuccessful program that does not improve
workplace safety can also result in fewer reported injuries. When the
yardstick for measuring the success of the program is only the number
of injuries reported, the program can distort the true state of affairs
and preclude early intervention by inducing employees to avoid
reporting their injuries. This problem is particularly critical with
regard to MSD signs and symptoms, where early intervention can be of
great importance. OSHA encourages employers to focus any incentives on
safe work practices, active participation in safety programs, and
identification of hazards in the workplace. By doing so, the root
causes of injuries and illnesses can be addressed, and a safer
workplace can be
[[Page 68324]]
created. The Incentive Federation described the types of activities
that a safety incentive program can target, rather than using the
number or rate of reported injuries as its objective:
* * * a good safety incentive program often focuses on proactive
behavior. For example, it might encourage employees to make safety
suggestions, attend safety meetings, promote safety awareness,
participate in safety inspections, report safe behavior, report near
misses, and so forth. In addition, self-directed safety teams, where
employees observe each other at work and report good and bad safety
conduct (without necessarily using the names of the specific
employees), encourage safe behavior. Encouraging this type of
employee participation is extremely useful, because employees are
reasonably objective in observing their peers, and they report good
and bad behavior. The conduct observed can then be included in
periodic reports or reviewed in safety meetings to stress safe
behavior. (Ex. 30-1100).
Drug testing programs, when applied to all workers who report MSDs,
were also said to hinder full reporting of injuries. Chuck Monohan of
the International Brotherhood of Electrical Workers explained that a
fear of false positive results was responsible for non-reporting (Tr.
7378). Other commenters also discussed the chilling effect that drug
testing programs can have on reporting injuries (Tr. 5997, Tr. 13869,
Tr. 17509)
A large number of commenters expressed concern that the proposed
prohibition on policies or practices that discourage worker reporting
could be interpreted to eliminate widely accepted drug testing policies
(see, e.g., Exs. 30-536, 30-2208, 32-368-1, 30-3765, 30-419, 30-519,
30-1012, 30-1048, 30-1070, 30-1261, 30-1332, 30-1348, 30-1349, 30-1358,
30-1536, 30-1551, 30-1567, 30-1616, 30-1652, 30-1671, 30-1901, 30-2050,
30-2061, 30-2499, 30-2514, 30-2645, 30-2675, 30-2799, 30-2811, 30-2812,
30-2814, 30-2815, 30-2988, 30-2990, 30-3174, 30-3177, 30-3348, 30-3349,
30-3353, 30-3356, 30-3359, 30-3721, 30-3723, 30-3736, 30-3745, 30-3819,
30-3951, 30-4046, 30-4122, 30-4567, 30-4607, 30-4628, 30-4674, 30-4702,
30-4713, 30-4818, 30-4822, 30-4839, 30-4844, 31-282, 31-298, 31-310,
32-335, Tr. 4335, Tr. 4909, Tr. 6112, Tr. 8350, Tr. 9190, Tr. 10444,
Tr. 12857, Tr. 12958, Tr. 15621, Tr. 15644, Tr. 15976, Tr. 17461, Tr.
17483, 30-3725, 30-4340, 30-4146, 500-1-28, 500-1-42, 500-1-69, 500-1-
70, 500-1-79, 500-1-86, 500-1-95, 500-1-106, 500-1-112, 500-1-113, 500-
1-114, 500-1-136, 500-1-140, 500-1-147, 500-1-181, 500-1-185, 500-1-
117, 500-1-119, 500-1-121, 500-1-124, 500-1-125, 500-1-127, 500-1-135,
500-1-137, 500-1-152, 500-1-193, 500-1-411, 500-1-384, 500-1-385, 500-
1-386, 500-1-413, 500-1-423, 500-1-442, 500-16, 500-52, 500-23-1, 32-
258-2, 30-904, 30-911, 30-1942, 30-3236, 30-3339, 500-219, 30-4550,
601-x-1711, 30-1363, 30-4248, 30-4778, 30-2455, 30-4527, 30-2668, 30-
4565, 30-3847, 30-2684, L30-4985, 30-3472, 30-3582, 30-4029, 30-4335,
30-4443, 30-4475, 30-4528, 30-4688, 30-1004, 30-1010, 30-1017, 30-1025,
30-1027, 30-1035, 30-1038, 30-1042, 30-1044, 30-1045, 30-1079, 30-1080,
30-1089, 30-1099, 30-1163, 30-1164, 30-1401, 30-1403, 30-1423, 30-1424,
30-1436, 30-1440, 30-1455, 30-1460, 30-1463, 30-1495, 30-1497, 30-1566,
30-1658, 30-1659, 30-1674, 30-1675, 30-1682, 30-1684, 30-1685, 30-1686,
30-1687, 30-1688, 30-1689, 30-1690, 30-1691, 30-1916, 30-2124, 30-2126,
30-2234, 30-2235, 30-2236, 30-2237, 30-2275, 30-2279, 30-2311, 30-2369,
30-2376, 30-2588, 30-2673, 30-2674, 30-2768, 30-2850, 30-2925, 30-3002,
30-3042, 30-3044, 30-3080, 30-3083, 30-3087, 30-3229, 30-3380, 30-344,
30-346, 30-3822, 30-3985, 30-3988, 30-4037, 30-4059, 30-4507, 30-4770,
30-4841, 30-5044, 30-5106, 30-634, 30-636, 30-638, 30-643, 30-649, 30-
871, 30-883, 30-891, 30-903, 30-905, 30-918, 30-978, 30-994, 30-995,
600-x-10, 600-x-11, 600-x-12, 600-x-13, 600-x-45, 600-x-46, 600-x-5,
600-x-6, 600-x-7, 600-x-9, 601-x-1358, 601-x-1363, 601-x-1364, 601-x-
1365, 601-x-1366, 601-x-1367, 30-2410, 30-2289, 30-3877, 30-2601, 30-
3160, 30-3598, 30-2912, 30-1332, L30-5025, 30-4280, 30-1416, 30-1453,
30-1457, 30-1616, 30-1998, 30-1999, 30-2131, 30-2142, 30-2184, 30-2233,
30-2250, 30-2304, 30-2395, 30-2396, 30-2423, 30-2431, 30-2736, 30-2829,
30-2889, 30-2891, 30-2992, 30-3003, 30-3254, 30-3334, 30-3393, 30-3551,
30-3597, 30-3791, 30-3882, 30-3936, 30-3944, 30-3974, 30-3977, 30-3999,
30-4464, 30-4532, 30-4539, 30-4544, 30-4629, 30-4657, 30-4667, 30-4669,
30-4980, 30-5034, 30-5076, 30-5095, 30-5101, L30-4952, L30-4953, L30-
5096).
The sentiment that the contribution of drug-testing programs to
workplace safety should not be compromised by the requirements of the
ergonomics standard was expressed by Food Distributors International:
In the view of FDI and its members, the possibility that some
individuals will feel constrained to avoid reporting workplace
injuries or accidents because of a drug test requirement that might
be triggered is not an overriding concern. These fears largely will
relate only to those whose drug use may be discovered, and their
protection should not be the goal of a major OSHA regulatory scheme.
In addition, any such inhibiting effect is more than outweighed by
the workplace accidents and injuries that are avoided through
maintenance of an effective drug-free workplace program (Ex. 30-
3819)
OSHA is not aware of any basis for concluding that the development
of MSDs is in any way associated with the use of drugs or alcohol. The
reporting of MSDs or MSD signs and symptoms covered under this rule,
therefore, cannot be considered by itself to provide any justification
for testing. Although subjecting all parties reporting injuries or all
OSHA recordable cases to testing has sometimes been used by employers
as a matter of administrative convenience in identifying individuals
for testing, the lack of a relationship between drug or alcohol use and
the MSDs covered by this rule, along with the detrimental effect on
reporting behavior that testing can have, combine to make this an
inappropriate practice where MSDs are concerned.
Furthermore, there is no evidence that drug tests discourage
workers from reporting injuries only if they fear that drug use will be
discovered. Adrienne Markowitz of the UFCW described a poultry
processing plant where workers who reported pain in the hands and
wrists were required to be tested for illegal drugs:
This is a church going and religious community. Most people were
not worried that drugs would be found because they didn't take them.
But they weren't happy with having to suffer the indignities of
having someone watch them urinate, were afraid that inaccurate
testing and laboratory practices [would erroneously indicate illegal
drug use], were concerned that the medications they took would show
up as illegal drugs, and [were] fearful that the company supervisors
would doctor the records. Many, for the reasons I have just stated,
refused to take the test and were fired. And many others just never
reported their illnesses (Tr. 5998).
This rule does not in any way prevent an employer from conducting
testing if it is required by law, is based on reasonable suspicion, is
part of the job application process, is part of routine fitness-for
duty examination, is done as follow-up after entering an employee
assistance or drug rehabilitation program, or is administered to assist
in post-accident investigation. A blanket policy that requires all
employees reporting MSDs or signs and symptoms of MSDs to submit to
drug or alcohol testing, however, would hinder the effectiveness of the
ergonomics program if such a policy results in underreporting.
Nor is the fear that a back injury or other MSD may be the result
of an accident caused by drug or alcohol use
[[Page 68325]]
a reason for testing employees for drugs when reporting an MSD or MSD
signs or symptoms. As stated in paragraph (a), this standard does not
address injuries caused by slips, trips, falls, vehicle accidents, or
other similar accidents. The standard addresses injuries that are the
result of exposure to force, repetition, awkward postures, vibration,
and contact stress. Injuries covered by the standard are commonly
associated with prolonged or excessive exposures to these ergonomic
risk factors. There is no reason to believe that drugs or alcohol have
any relevance to the development of these conditions and certainly no
evidence that impairment at the time of reporting has any relevance.
Simply reporting MSD signs and symptoms therefore cannot be viewed as a
legitimate reason to suspect drug or alcohol abuse.
Some commenters argued that if an ergonomics standard did restrict
drug testing programs, this could conflict with regulatory requirements
of the Department of Transportation or Nuclear Regulatory Commission,
or with policies established through collective bargaining (see, e.g.,
Exs. 30-3853, 30-3765, 30-1070, 30-1332, 30-1671, 30-3284, 30-3359, 32-
335, Tr. 15621, 500-1-28, 30-4527, 30-4029, 30-4475, 30-4248).
Restrictions on drug testing were also said to conflict with
requirements for companies with government contracts (see, e.g., Exs.
601-x-1711, 30-4475).
Language in the proposal that could affect certain employer drug
testing policies was said to conflict with state workers' compensation
laws, and thus violate Section 4(b)(4) of the Occupational Safety and
Health Act. State workers' compensation laws, it was said, may require
drug testing in certain instances, allow reduced insurance premiums for
those employers with testing programs, or allow impairment to be used
as a defense in contesting compensation claims (see, e.g., Exs. 500-
104, 500-104-1).
It was argued that restrictions on drug testing programs could
result in liability claims against those employers whose employees
acted in an unsafe manner due to impairment. The New Mexico Self
Insurers Fund stated:
OSHA may have had the best intentions when writing the preamble,
however if state and local government municipal employers were to
neglect the possibility that alcohol and drug use was a factor in an
injury, whether or not it is an MSD, municipal liability would rise
exponentially. The bottom line is that many local governments would
not be immune from lawsuits where gross negligence is alleged. It
would be easy to show negligence on the part of a local government
that allowed ``waivers'' of its alcohol and drug testing ordinances
for employees in order to permit full and free reporting of MSDs
(Ex. 30-4810).
OSHA's concern is that testing not be conducted in a manner that
penalizes individuals reporting MSDs or participating in ergonomics
programs. This final rule does not restrict employers' drug or alcohol
testing policies where such policies are authorized by state or federal
law. It should be noted, however, that DOT regulations, which require
post accident testing and testing of safety sensitive employees and
under certain other circumstances, do not require drug testing when
MSDs or any other type of injury or illness is reported.
Workers compensation and other state and federal laws that require
drug testing following a traffic or other accident, are also not
generally relevant to the application of this standard, because as
explained above, MSDs resulting from accidents, slips, trips and falls
are specifically exempted from this rule.
A number of employee representatives expressed the opinion that
policies or practices that can discourage worker participation in the
ergonomics program, such as incentive programs and post-injury drug
testing, should be explicitly prohibited in the rule (see, e.g., Exs.
32-339-1, 32-111-4, 32-198-4, 32-210-2, 500-50). Absent such a
prohibition, it was argued, an ergonomics standard triggered by
employee reports of injury would be undermined by employers who would
pressure employees to avoid reporting injuries. These commenters argued
that the case-by-case determination approach described in the preamble
to the proposal would be inadequate to deter practices that discourage
participation and reporting, and a blanket prohibition in the rule
itself is necessary.
Some parties indicated that they did not find the proposal
sufficiently clear in indicating what policies or practices would be
considered by OSHA to discourage worker participation in the ergonomics
program (see, e.g., Exs. 30-3853, 30-4185, 32-337-1, 30-653, 30-1350,
30-2216, 30-3233, 30-3344, 32-82-1, 30-1101, 500-33). Concern was
expressed that compliance would be dependent upon whether or not
employees feel discouraged, and would thus be determined by the
subjective perceptions of employees (see, e.g., Ex. 30-3853, 30-4247,
500-33, 32-266-1). TXU Business Services, for example, stated:
Any regulation that has provisions for employees ``not feeling
discouraged'' would be impossible to enforce fairly. For example,
identical employer conduct could be legal in one plant, or part of a
plant, and illegal in another and the employer might never know it
(Ex. 500-1-28).
In order to provide an objective basis for enforcement of this
provision, OSHA has concluded that a pattern of underreporting must be
evident in the workplace before a determination will be made that any
given employer policy or practice discourages reporting of MSDs or
signs and symptoms of MSDs. If underreporting or discouragement of
employee participation in the ergonomics program is found at a
particular establishment as a result of a records review or employee
interviews, OSHA will evaluate the situation to determine if employer
policies and practices have had the effect of discouraging reporting or
participation in the ergonomics program. OSHA's position is that these
policies and procedures are not per se illegal, but they can clearly
discourage reporting and participation. If an employer has policies or
procedures with this potential, the employer must ensure that these
policies and procedures are not actually discouraging reporting or
participation.
OSHA expects that employers will have ample opportunity to discover
whether employees are being discouraged through the periodic
communication that will take place under the standard. If policies and
practices are determined to discourage reporting or participation,
employers would need to take action to remedy this situation.
OSHA considers it important that the employer not only not
discourage, but actively encourage reporting and participation in the
ergonomics program. The Agency believes that this goal can be
accomplished by providing information to employees about the importance
of early reporting in accordance with paragraph (d), along with
effective training on reporting and the ergonomics program in
accordance with paragraph (t) of this final rule.
Several parties asked whether the proposed prohibition on policies
or practices that discourage reporting would apply to an employer's
decision as to whether or not an employee can work overtime (see, e.g.,
Exs. 32-368-1, 30-2208, 30-3765, 30-1671, 30-2050, 30-2499, 30-3344,
30-3348, 30-3356, 30-4628, 30-4674, 500-1-140). Withholding overtime,
it was argued, may be based on a desire to prevent aggravation of the
potential MSD, and limiting the employer's ability to restrict
[[Page 68326]]
overtime would thus conflict with provisions in the proposed standard
that allow employers to use administrative controls (Ex. 30-1671). The
Association of Independent Corrugated Converters stated:
While some employers do not choose to impose such restrictions,
it seems unfathomable that involuntary restrictions on some overtime
work would be deemed an inappropriate management step, both before
and after symptoms reported by employees are analyzed by a health
care provider. The essence of some MSDs, at least in OSHA's own
construct of such conditions, is that overuse in the form of
``excessive'' repeated exposure is the source of problems in many
circumstances. It seems oddly inconsistent that on the one hand, the
overall thrust of the ``incremental abatement'' and job re-design
obligation of OSHA's full ergonomics program will focus on avoiding
or reducing exposures, while on the other, an employer's judgement
to limit additional exposure is retaliatory or aimed at discouraging
reporting (Ex. 500-1-140).
As with incentive programs and drug and alcohol testing policies,
OSHA's concern about withholding overtime is based on the
discriminatory application of this practice to discourage reporting or
participation in the ergonomics program. The Agency realizes that work
restrictions, including limitations on the number of hours worked, are
often necessary to prevent an injured employee's condition from
worsening and to allow damaged tissues to recover. The provision of
work restrictions, however, must be viewed separately from the
reporting of MSDs and MSD signs and symptoms.
If overtime is withheld as a matter of policy simply because a
report of an MSD has been made, this could have the effect of
discouraging reporting. An example of such a situation would be an
employee who uses a keyboard in a steady manner for eight hours per
day, then works an additional two hours as a receptionist and does not
perform any work involving typing or hand activity during that two
hours. If this employee were to report the signs and symptoms of an MSD
of the wrist, and as a matter of policy was denied the opportunity to
work overtime as a receptionist but continued working eight hours at a
keyboard, the effect would be to discourage reporting and would be
evaluated by OSHA as described above.
OSHA does not include production incentives in the category of
policies and practices that may discourage reporting or participation
in the program. Mosely and Associates registered concern as to how such
systems would be viewed, and expressed concern that plants may lose
their competitiveness if piece rate compensation systems or production
incentives are abandoned (Ex. 30-4362).
OSHA recognizes that these systems sometimes cause employees to
expose themselves to MSD hazards in order to achieve higher rates of
compensation. Because piece rate incentives are not directly tied to
reporting or participation in the ergonomics program, however, the
Agency does not view them as potential sources of discouragement to
reporting and participation. With full participation in the ergonomics
program, employees compensated under these systems will be provided
with the protections of the ergonomics standard, including the
information and training that will confer with it the ability to
recognize the potential causes of MSDs and knowledge of the importance
of early intervention.
Several commenters (see, e.g., Exs. 30-3853, 30-4247) argued that
subjecting an employer to citation for maintaining policies or
practices that discourage worker participation would be contrary to the
intent of Congress. These commenters argued that, by placing a
discrimination provision in Section 11(c) of the OSH Act, Congress had
made clear that anti-discrimination provisions should not be included
in standards. These commenters therefore believe it inappropriate for
OSHA to include a discrimination provision in an ergonomics standard.
Paragraph (h)(3) of the final rule is intended to prevent employers
not only from discriminating against employees for reporting and
participating in the ergonomics program, but also to prevent employers
from having policies that discourage employees from reporting and
participating, even where no discrimination has taken place. Paragraph
(h)(3) thus has a different scope than section 11(c). In addition,
insofar as paragraph (h)(3) addresses discrimination, it does so as
part of a broader standard that is reasonably necessary and appropriate
to address a serious hazard . Nothing in Section 11(c) indicates that a
standard issued in accordance with Section 6(b) may not include such a
provision. Provides a different enforcement mechanism than section
11(c), and nothing in section 11(c) indicates that it is the exclusive
means of addressing discriminatory policies.
Paragraph (i)--Employee Participation
Paragraph (i) sets forth the final rule's provisions regarding
employee participation. It requires that employers ensure that
employees and their representatives, if the employees are represented
by a recognized or certified collective bargaining agent, have ways to
report MSDs, MSD signs and symptoms, and MSD hazards; that employees
receive prompt responses to those reports when they are made; that
access to the standard and to information about MSDs and the ergonomics
program be provided to employees; and that employees have ways to be
involved in the development, implementation, and evaluation of the
ergonomics program.
The requirements of paragraph (i) closely correspond with the
requirements of the proposed employee participation section. This
reflects OSHA's determination, based on evidence in the record, that
the involvement of employees and their representatives in an ergonomics
program is critical to the effectiveness of the program. It also
reflects the support for the proposed employee participation provisions
expressed by commenters.
The proposed employee participation requirements were designed to
cover those circumstances where the involvement of workers was
essential to the success of an ergonomics program. The duty to
establish a means of reporting and to provide prompt responses to
reports was included because of the vital importance of an effective
reporting system to the proper function of the injury-based trigger of
the standard. Access to the standard and information about the
ergonomics program was considered by the Agency to be necessary for
employees to participate effectively in the ergonomics program.
Employee input into the development, implementation, and evaluation of
ergonomic programs was considered critical to program success because
of the first-hand knowledge that employees could offer regarding
potential solutions to MSD hazards, the appropriate content and level
of training, and the effectiveness of control measures.
The proposed provisions for employee participation generated a
considerable volume of comment. Support for the concept of involving
employees in the ergonomics program was widespread among commenters,
and few disagreed with the proposed requirements pertaining to
reporting, providing responses, and furnishing access to the standard
and to information. Comment on these provisions in the context of
employee participation was primarily limited to requests for
clarification about how the provisions would apply in practice.
Substantial differences were expressed, however, concerning the level
of employee involvement appropriately included in a final standard.
[[Page 68327]]
The importance of employee participation in the successful
implementation of an ergonomics program was stressed in a number of
comments (see, e.g., Exs. 30-276, 30-428, 30-651, 30-3860, 30-4333, 30-
4468, 32-21-1-2, 32-82-1,Tr. 3479, Tr. 6930, Tr. 3565, Tr. 5596-5597,
Tr. 10202, 32-450-1-18-1, Tr. 11182, Tr. 11380, Tr. 12947, Tr. 14479,
Tr. 14902, Tr. 16526, Tr. 12366, 500-29, 500-117-2, 500-177-2, 500-220,
500-215, 601-x-1587, 20-605). Mark Catlin of the Alice Hamilton
Occupational Health Center, for example, stated:
Our experience has been * * * that when there is true employee
involvement from beginning to end, especially in the development of
solutions, that can be a great benefit in coming up with a program
that works for that specific site that is cost effective and will be
maintained after it is initially set up (Tr. 5597).
The advantages that the knowledge and skills of employees have lent
to successful ergonomics programs were remarked upon by a number of
commentors (see, e.g., Tr. 4084, Tr. 4697, Tr. 6188, Tr. 7011, Tr.
7111, Tr. 7135, Tr. 7142, Tr. 9489, Tr. 10224, Tr. 10547, Tr. 11076,
Tr. 12366, Tr. 12297, Tr. 13004, Tr. 14248, Tr. 14320, 20-406, Tr.
17623). For instance, Dr. Robert McCunney of the American College of
Occupational and Environmental Medicine stated:
In my experience as a physician, I have been impressed with the
knowledge that a lot of workers have about their jobs and the
recommendations that can be made to improve it and reduce factors
associated with illness * * * [Tr. 17633].
One aspect of employee participation included in the proposal was a
means for the employee to inform the employer when MSDs or MSD signs
and symptoms occur. Reporting is essential to allow the employer to
become aware of those job situations where further action is necessary.
For example, if an employee experiences pain and stiffness in the
shoulders and believes this to be the result of workplace factors, the
employer cannot be expected to make changes to the workplace to
mitigate the risk factors unless the employer is aware of the existence
of a problem.
Belief in the importance of employee reporting of MSDs and their
signs and symptoms was expressed in a number of comments on the
proposed rule (see, e.g., Exs. 30-240, 30-1104, 30-2116, 30-2215, 30-
2387, 30-2809, 30-3686, 30-3765, 32-77-2, 30-3813, 30-3826, 30-3849,
30-3859, 30-4185, 30-4468, 30-4538, 30-4548, 30-4562, 30-4564, 30-4837,
31-78, 31-174, 31-192, 31-227, 31-303, 31-353, 32-82-1, 32-85-3, 32-
461-1, 32-111-4, 32-210-2, 32-339-1, 500-33). For example, Shipman and
Goodwin LLP, on behalf of an unnamed client, stated:
Requesting that employees report signs and symptoms encourages
the success of any early intervention program (Ex. 30-2215).
Comments received on this issue are presented in greater detail in
the discussion of paragraph (d), which includes a requirement that
employers provide information to their employees on how to report MSDs
and their signs and symptoms. The ability of employees to report MSDs
and MSD signs and symptoms depends upon their understanding of the
reporting mechanism, and knowledge of what constitutes a possible MSD
or MSD sign or symptom.
The final rule, at paragraph (h), adds ``MSD hazards'' to the list
of things employers must ensure that employees report. OSHA believes
that trained employees will be able to identify MSD hazards in their
workplace before they cause MSDs, and this will result, in turn, in
steps by proactive employers to protect workers at risk even before
they suffer an MSD incident. The reporting of MSD hazards has therefore
been added to paragraph (i)(2) of the final rule.
The specific process employers must establish for reporting MSDs,
their signs and symptoms, and MSD hazards is not prescribed in this
final rule. OSHA anticipates that the process will vary from workplace
to workplace, based on the size and nature of the workplace. A large
facility with an on-site health care professional (HCP), for example,
may choose to handle reports through the HCP. Smaller facilities may
elect to have reports made directly to supervisors. The method of
submitting a report is likewise not specified. Employers may chose to
adopt written, electronic, or other systems for receiving reports.
(Note, however, that employers are required by paragraph (v) to keep
records of employee reports, primarily for evaluation purposes.)
The final rule requires the employer to ensure that employees have
ways ``to promptly report'' their MSDs, signs and symptoms, and
hazards. OSHA received many comments on its use of the word ``prompt''
in the proposed rule (see, e.g., Exs. 30-3826, 30-3853, 30-4467, 30-
3284, 30-3367, 30-4674). These commenters asked OSHA to clarify what
was meant by ``prompt.'' OSHA is using the word to indicate that timely
reporting is required; the effectiveness of the standard and the
employer's program would clearly be compromised if employees did not
report their problems quickly, at a time when preventive action can
still be taken. A rigid time frame, however, is not specified in the
rule, because the Agency recognizes that some flexibility is needed to
account for the circumstances found in different workplaces. In
general, OSHA believes that reports should be received within a few
days in almost all cases, and the Agency expects employers to inform
their employees about the importance of early reporting, as required by
paragraph (d).
OSHA proposed that employers provide prompt responses to employee
reports of MSD signs and symptoms to encourage reporting and provide
feedback. OSHA's reasons for proposing that employer responses to
reports be made promptly was that timely and good faith responses are
essential to reinforcing the information exchange process. Several
commenters asked for clarification of this proposed provision (see,
e.g., Exs. 30-3344, 30-3367, 30-249, 30-3749). The Society for Human
Resources Management, for example, asked OSHA to specify what it would
consider an adequate response. The Society questioned whether OSHA
would consider acknowledgment of receipt of the report, evaluation of
the report, or action to prevent the condition from worsening as
responses to the report. Others asked whether the response must be in
writing or whether alternative methods of communication (e.g., oral)
would be acceptable (see, e.g., Exs. 30-3344, 30-3367, 30-3826).
If an employee experiences persistent MSD symptoms and reports that
condition to the employer but receives no response, that employee is
likely to consider the ergonomics program ineffective. Such a loss of
confidence in the program would clearly discourage future reporting and
participation. If the employer communicates the results of evaluations
made based on the report, or informs the employee of any actions that
are being taken as a result, the reporting employee will better
understand the process and will be more likely to participate in the
future. OSHA also recognizes that employers will sometimes inform the
employee that a given report requires no action, e.g., when an MSD
hazard turns out, on closer examination, not to warrant further action.
OSHA continues to believe that prompt responses to reports are an
essential part of the communication that must occur between employers
and employees in a functioning ergonomics program, and final paragraph
(i)(2) reflects this conviction.
In order to provide flexibility to employers to tailor
communication
[[Page 68328]]
methods to the needs of a particular workplace, the method of providing
a response to employees who report is not specified. Employers may
chose to adopt written, electronic, or other systems for providing
responses, although a record of the response must be maintained, as
required by paragraph (v).
OSHA proposed to require the employer to grant employees access to
the standard and to include information about the ergonomics program.
OSHA proposed this requirement to ensure that employees understood what
the OSHA standard required and how the employer's program worked. The
program was to include assignment of responsibilities in the ergonomics
program; job hazard analysis results; hazard control plans; records of
the occurrence of MSDs and reports of MSD hazards; ergonomic program
evaluation results; and lists of alternative duty jobs, according to
the preamble to the proposed rule [64 FR65799]. This provision
recognized that information is important to full employee understanding
of and participation in the ergonomics program.
OSHA was requested by commenters to define more clearly what was
meant by ``access'' to the standard (Ex. 32-337-1). The Dow Chemical
Company, for example (Ex. 30-3765) felt that employers should not be
required to provide employees access to the standard. Dow argued that
employers were required to comply with the provisions of the rule but
should not be additionally burdened by providing access to the
standard. In Dow's view, employees could be confused by receiving
information both on the employer's ergonomics program and the standard.
The National Coalition on Ergonomics (Ex. 32-368-1) expressed
concern that the employee participation provisions of the proposed
standard would require employers to provide employees with access to
the employer's confidential documents, which might address personnel
issues, financial issues, or safety audits. If this were the case, the
Coalition argued, employees with grudges or those involved in labor
disputes would be able to harass their employer by disclosing or
threatening to disclose proprietary information out of context or in a
fashion that might have an adverse impact on the employer. The
Coalition argued that this would discourage employers from performing
audits with appropriate depth and thoroughness. Concern was also
expressed that employee access might jeopardize medical
confidentiality. (Ex. 500-1-116).
OSHA does not believe that providing employee access to the
ergonomics standard is an unreasonable burden on employers, nor that
providing the standard will confuse employees. Employee access to OSHA
standards that affect them is a longstanding OSHA practice (see, for
example, OSHA's rule's governing lead exposure, noise exposure, and so
on). Access to the standard can be provided in several forms. A printed
copy of the standard may be made available, or an electronic version
may be provided on CD or via internet access to OSHA's web site if
employees have access to a computer. OSHA believes that the standard
will not be confusing to employees because they will be trained to
understand the ergonomics program in their workplace and their role in
it, in accordance with paragraph (t) of the final rule. OSHA does not
believe that employees will flood their employees with requests to
obtain and review the final standard; instead, the Agency believes that
the standard is likely to be used primarily as a reference to compare
the functioning of their workplace ergonomics program with the
provisions of the standard to assure that the program is functioning
properly and is in compliance.
Because of the importance OSHA attaches to employee access to the
standard, and the relative ease of providing it, the final rule adds
the term ``ready'' to the original access provision. This means that
whenever an employee requests access to the standard, the employer must
assure that ready access is provided, i.e., that access is provided
within a reasonable time and place.
Because of the importance OSHA places on employees being able to
easily understand the requirements of the standard, the final rule
requires employers to provide employees with a copy of the summary of
the standard that is required to be made accessible in paragraph (d).
Although the employer is required in paragraph (d) to make this
information available to employees when they start a job, the employee
should receive the summary at the time the program is implemented due
to the fact that the exposures in the employees job have now been shown
to exceed the levels in the Basic Screening Tool and considerable time
may have passed since the employee was informed that he or she had
access to this information. The summary sheet provided in Appendix B
may be used for this purpose.
The Agency is also not persuaded by arguments that confidential
company information or medical records would be distributed if
employers provide employee access to information about the ergonomics
program. The proposal specifically stated [64 FR 65799], and OSHA
reiterates here, that information of a personal nature such as the
medical records of other employees, is not included in the information
to which employees are required to have access. Records of the
occurrence of MSDs, for example, can be presented in a general form and
do not need to include personal details. General injury and illness
information is already available to employees under the provisions of
29 CFR 1904.7 with regard to the Log and Summary of recordable
occupational injuries and illnesses.
OSHA also is not convinced by comments suggesting that proprietary
information would be revealed if employees have access to program
information. The information required to be made available, on request,
is general information. For example, although an employee's detailed
process and production plans might be trade secrets, the information
required by this provision relates only to the control of ergonomic
hazards. Technical information regarding machinery or production
methods is clearly not required to be provided. Reports of MSD hazards
and job hazard analysis results are not confidential and are critical
information for employees if they are to participate meaningfully in
the ergonomics program.
Providing employees with basic information about the common kinds
of MSDs and their signs and symptoms is required by paragraph (d) of
the final rule. The comments pertaining to this paragraph can be found
in the summary and explanation for paragraph (d). OSHA has decided that
information on MSDs and their signs and symptoms is so basic, and so
important to employees, that it must be provided as part of employee
participation as well. The final rule's employee participation
provisions are only triggered when MSD incidents have been reported in
a job that meets the action trigger. This means that the employees
covered by final paragraph (i) are those who work in higher-risk jobs;
these employees clearly need to be informed about MSDs and their signs
and symptoms. Thus paragraph (i)(3) requires employers to inform their
employees with, at a minimum, the information sheet in non-mandatory
Appendix A. OSHA believes that most employers will choose to provide
more detailed and specific information, such as information about the
MSDs and signs and symptoms occurring among employees in jobs in their
establishment.
[[Page 68329]]
The fourth component of the proposed employee participation section
was a broad requirement that ``ways to be involved in developing,
implementing and evaluating each element of the ergonomics program'' be
provided to employees. This component, as explained in the preamble to
the proposal, was designed to allow employers to take advantage of the
knowledge, skills, and abilities that workers could contribute to the
ergonomics program.
The United Steelworkers concurred with OSHA's initial assessment
that employee involvement in each element of the ergonomics program was
appropriate. The union stated:
Workers and their representatives have to be involved in all
aspects of the introduction and implementation of an ergonomics
program in [the] workplace. After all, it is their bodies and lives
that are on the line (Ex. Tr. 11047).
Vagueness was a concern of some commenters. A number of interested
parties indicated that they did not understand what level of employee
involvement would be required under the proposed standard (see, e.g.,
Exs. 30-3344, 30-3848, 30-4607, 30-4674, 30-4713, Tr. 4372). These
commenters stated that the proposal did not make it clear whether an
employer would have unlawfully limited employee participation if, for
example, employee suggestions for ergonomics improvements were rejected
(see, e.g., Exs. 32-78-1, 30-4467, 30-541, 30-627, 30-652, 30-1355, 30-
1697, 30-1717, 30-4843, 601-x-1710). These participants argued that
employers should not be required to follow the recommendations of
employees or obtain their concurrence on a course of action, and should
retain the authority to make all final decisions about compliance with
the requirements of the standard (see, e.g., Exs. 30-3934, 30-2208).
Some industry representatives stated that the level of employee
involvement proposed by the requirement that employers involve
employees in developing, implementing and evaluating each element of
the program was excessive (see, e.g., Exs. 32-368-1, 32-78-1, 30-4467,
30-240, 30-276, 30-368, 30-429, 30-434, 30-541, 30-562, 30-652, 30-
1070, 30-1294, 30-1671, 30-2830, 30-2846, 30-2991, 30-3344, 30-3348,
30-3784, 30-3951, 30-4185, 30-4713, 32-21-1, 32-120-1, Tr. 11679, 500-
33, 30-3744). In the view of these commenters, OSHA did not demonstrate
that this level of employee involvement was necessary for an effective
ergonomics program (see, e.g., Exs. 32-78-1, 30-4467, 30-541, 30-627,
30-1355, 30-1545, 30-1697, 30-1717, 30-2830). Employee involvement,
although commonly acknowledged as often beneficial, was not needed in
every situation, and should therefore not be mandated, according to
these commenters. For example, Dr. Kurt Hegmann stated:
Hazard remediation efforts are frequently enhanced and
accelerated with employee participation since the ones doing the
work 40 hours a week have often thought of the most effective
solution. Yet, requiring employee participation in this and other
aspects of the rule is inappropriate, as these assumptions are not
always true [Ex. 30-4779].
Employee involvement in supervisory training or the evaluation of
management leadership, for example, were cited as program elements
where employee involvement was not considered necessary (Ex. 32-78-1).
In its comments on employee participation, the American College of
Occupational and Environmental Medicine stated:
* * * employee participation in the design, modification, and
evaluation of all aspects of an employer's operation is unnecessary.
In most facilities, manufacturing or industrial engineers
effectively perform many aspects of their jobs without employee
participation. OSHA's requirement for employee participation should
be limited to participation on ergonomics teams and participation in
the job-specific problem solving process [Ex. 30-4468].
Another commenter with a similar view argued that an employer who
is able to eliminate MSD hazards without employee participation should
not be required to consult employees (Ex. 30-4467).
Several practical problems about how the proposed requirements
would actually work in different situations were also raised. Union
Carbide Corporation indicated that such involvement would be difficult
to implement when the ergonomics program is developed on a corporate
level:
Large employers such as Union Carbide develop their ergonomic
programs on a corporate basis using professional staff. Of
necessity, they rely on employees to assist in implementing the
program, and employee evaluation of the program is always welcome.
But where programs are developed on a corporate basis, it is
sometimes difficult to involve employees in that development [Ex.
30-3784].
The Whirlpool Corporation believes that adhering to the
requirements of the standard would hinder the company's ability to
respond to ergonomic hazards when they are first identified. Safety
teams that are trained to quickly identify, assess, and fix a hazard
would be supplanted by the more cumbersome process required by the
standard. Whirlpool believes that the standard requires the employer to
obtain input from people who may have nothing to add to the process,
which would increase the time and expense involved without providing
any assurance that a better solution would be found (Ex. 30-4779).
Some employers interpreted the proposed requirement that employees
be involved in developing the program to mean that, where a current
ergonomics program already exists, the employer would be required to
develop a new program (Ex. 30-3765). The Edison Electric Institute
stated that it is impossible to consistently include employee
involvement in all elements of the ergonomics program, and therefore
recommended that the final rule allow greater flexibility to employers
and only require that employees ``be provided adequate, regular
opportunities to be involved in developing, implementing and evaluating
appropriate elements of the program'' (Ex. 500-33).
The Northwest Food Processors Association expressed concern that
engaging employees and their designated representatives in the
ergonomics program could be inappropriate in some cases because the
ergonomic interventions they suggested might result in the elimination
of jobs or otherwise negatively impact employment opportunities. The
association stated that employers should be given flexibility in the
final rule to determine the appropriate approach to such situations
(see, e.g., Tr. 12198).
Some employers were concerned that employees could disrupt the
program or decline to participate in it. These commenters believe that
employee representatives may attempt to use the standard as a way to
force unnecessary or costly changes for reasons unrelated to safety
(see, e.g., Exs. 30-2208, 30-1294, 30-3348). The Nabisco Company was
concerned that requirements for employee participation could not be met
if employees were unwilling to participate in the program. The company
stated:
Nabisco strongly supports the concept of employee involvement
and encourages participation of employees at all levels of our
organization. However, this requirement assumes that employees and
their representatives will readily volunteer to participate in a
management program. It has been the experience within some of our
locations that union representatives do not
[[Page 68330]]
always encourage employee participation in management programs [Ex.
30-4201].
A common concern expressed by employers with unionized employees
was that the requirements of the proposed standard for employee
involvement could serve to disrupt established collective bargaining
relationships (see, e.g., Exs. 30-3853, 30-3765, 32-337-1, 30-323, 30-
345, 30-538, 30-574, 30-1022, 30-1113, 30-1349, 30-1567, 30-1616, 30-
1652, 30-2426, 30-2725, 30-2773, 30-3086, 30-3184, 30-3284, 30-3344,
30-3951, 31-332, 500-1-128, 32-266-1, 30-3841). Many companies and
their unions, according to these commenters, have well-established
contractual mechanisms for addressing employee safety and health
issues. A typical example is a contract provision establishing a joint
labor-management safety committee. According to the views of these
commenters, requiring the employer to engage individual employees in
the ergonomics program would stimulate resentment and conflict by
forcing the employer to circumvent the union. PEPCO, for example,
expressed this view:
PEPCO, like most utility companies, has a long-established
relationship with a collective-bargaining agent that represents most
of our employees (International Brotherhood of Electrical Workers,
AFL-CIO). PEPCO has well-established contractual mechanisms for
addressing employee safety and health issues. We have joint labor-
management safety committees and include our union in accident
investigations. The proposal would interfere in established
relationships such as these, for in several instances, it would
require the employer to deal with or involve not just the employee
designated representative, but also the individual unionized
employee. This places the employer in the position of having to deal
apart from, or even circumventing, the union in order to avoid the
risk of citation [Ex. 31-332].
Consolidated Edison Company of New York urged OSHA to address this
issue by indicating that the obligations for employee involvement in
the final rule could be met by affording those rights to the union (Ex.
30-2816). Alan Ferranto of the National Association of Letter Carriers,
however, did not believe that collective bargaining relationships would
be affected by the proposed rule:
Inevitably, when a proposal of this nature is put forth, there
are those who will argue that collective bargaining will be
affected. As the safety and health officer for a union which
represents almost a quarter million postal employees, I'm here to
say that this proposal will not affect our collective bargaining
agreement with the postal service. In fact, we are satisfied that
the employee involvement envisioned under OSHA's proposed ergonomic
standard will complement the already agreed-upon procedures in place
to address safety and health issues [Tr. 3570].
A number of labor representatives felt that the proposed
requirement to involve employees and their designated representatives
in developing, evaluating and implementing each element of the
ergonomics program should be modified. Some parties expressed the
opinion that the standard should be revised to add employee
representatives to each provision where rights are granted to
employees. For example, the proposed job hazard analysis provision
would require the employer to ask employees whether performing the job
poses physical difficulties; in the view of these commenters, this
should be changed so that employees and their designated
representatives should be consulted. The unions also suggested that the
proposed control obligation section be revised to add designated
representatives to the requirement to ask employees for control
recommendations (see, e.g., Exs. 32-339-1, 32-182-1, 32-198-4, 32-210-
2, Tr. 3566).
Another commonly expressed concern of the employer community was
that the proposed provision that employers provide employees ways to be
involved in developing, implementing and evaluating each element of the
ergonomics program would conflict with provisions of the National Labor
Relations Act (NLRA) or with state laws addressing labor relations
(see, e.g., Exs. 30-296, 30-323, 30-328, 30-345, 30-368, 30-377, 30-
397, 30-523, 30-532, 30-536, 30-380, 30-538, 30-540, 30-541, 30-562,
30-574, 30-589, 30-594, 30-598, 30-627, 30-630, 30-632, 30-648, 30-688,
30-1022, 30-1113, 30-1131, 30-1216, 30-1294, 30-1296, 30-1332, 30-1349,
30-1355, 30-1356, 30-1357, 30-1358, 30-1367, 30-1370, 30-1413, 30-1545,
30-1551, 30-1552, 30-1567, 30-1584, 30-1616, 30-1652, 30-1683, 30-1697,
30-1717, 30-1727, 30-1898, 30-1901, 30-2049, 30-2050, 30-2054, 30-2061,
30-2062, 30-2133, 30-2134, 30-2427, 30-2499, 30-2506, 30-2645, 30-2773,
30-2799, 30-2811, 30-2812, 30-2813, 30-2814, 30-2824, 30-2830, 30-2896,
30-2990, 30-3061, 30-3062, 30-3086, 30-3095, 30-3131, 30-3174, 30-3177,
30-3210, 30-3231, 30-3233, 30-3284, 30-3336, 30-3344, 30-3716, 30-3745,
30-3765, 30-3845, 30-3853, 32-337-1, 32-368-1, 30-3349, 30-3353, 30-
3356, 30-3364, 30-3367, 30-3473, 30-3513, 30-3622, 30-3723, 30-3728,
30-3819, 30-3849, 30-4122, 30-4143, 30-4153, 30-4158, 30-4167, 30-4187,
30-4355, 30-4499, 30-4607, 30-4628, 30-4674, 30-4702, 30-4818, 30-4843,
31-266, 31-310, 31-332, 32-211-1, 32-234-2, Tr. 4320, Tr. 4908, Tr.
15537, Tr. 8896-8897, 30-3345, 500-1-27, 500-1-28, 500-1-29, 500-1-42,
500-1-79, 500-1-86, 500-1-106, 500-1-112, 500-1-113, 500-1-114, 500-1-
116, 500-1-181, 500-1-117, 500-1-124, 500-1-125, 500-1-193, 500-1-248,
500-1-249, 500-1-307, 500-1-329, 500-1-331, 500-1-411, 500-1-423, 500-
1-442, 500-177-2, 30-1942, 30-3236, 30-3339, 30-4535, 30-2600, 30-2592,
30-2577, 30-2583, 30-2256, 30-2259, 30-2201, 30-2243, 30-2260, 30-2272,
30-3428, 30-3157, 30-3158, 30-3196, 30-3623, 30-2550, 30-2543, 30-2529,
30-2535, 30-4583, 30-2896, 30-2894, 30-2886, 30-2868, 30-2863, 30-2862,
30-2854, 30-4668, 30-4302, 30-2106, 30-2404, 30-2405, 30-2407, 30-2406,
30-2412, 30-2292, 30-2293, 30-2300, 30-2287, 30-2447, 30-2370, 30-2605,
30-2614, 30-2772, 30-2791, 30-2793, 30-2828, 30-2831, 30-4058, 30-2474,
30-2487, 600-x-34, 600-x-36, 30-4762, 30-2901, 30-5036, 30-4566, 30-
1971, 30-1972, 30-1973, 30-2571, 30-4541, 30-4786, 30-5027, 601-x-1370,
601-x-1698, 601-x-1712, 601-x-1439, 601-x-1440, 601-x-1441, 601-x-1442,
601-x-1444, 601-x-212, 601-x-213, 601-x-1368, 500-1-397, 30-3839, 30-
4247, 30-4486, 601-x-1711, 601-x-1360, 30-3858, 30-3923, 30-4778, 30-
2432, 30-3850, 30-2593, 30-3728, 30-2270, 30-1995, 30-2209, 30-3036,
30-2832, 30-2472, 30-2439, 30-2438, 30-2397, 30-2389, 30-4300, 30-4326,
30-1076, 30-4712, 30-2103, 30-3806, 30-1730, 30-1446, 30-3220, 30-3235,
30-4335, 30-4337, 30-4362, 30-4394, 30-4443, 30-4528, 30-4709, 30-1651,
30-2410, 30-2289, 30-3877, 30-2601, 30-3160, 30-3598, 30-2912, 30-1332,
L30-5025, 30-4280, 30-1416, 30-1453, 30-1457, 30-1616, 30-1998, 30-
1999, 30-2131, 30-2142, 30-2184, 30-2233, 30-2250, 30-2304, 30-2395,
30-2396, 30-2423, 30-2431, 30-2736, 30-2829, 30-2889, 30-2891, 30-2992,
30-3003, 30-3254, 30-3334, 30-3393, 30-3551, 30-3597, 30-3791, 30-3882,
30-3936, 30-3944, 30-3974, 30-3977, 30-3999, 30-4464, 30-4532, 30-4539,
30-4544, 30-4629, 30-4657, 30-4667, 30-4669, 30-4980, 30-5034, 30-5076,
30-5095, 30-5101, L30-4952, L30-4953, L30-5096, 30-3497, 30-1938, 30-
1989, 30-2217, 30-2384, 30-2403, 30-2403, 30-2416, 30-2480, 30-2486,
30-2555, 30-2556, 30-2607, 30-2639, 30-2734, 30-2735, 30-2873, 30-2878,
30-3578, 30-3742, 30-3776, 30-4325, 30-4452, 30-4790, L30-4998). A
discussion of the relationship between the requirements of this final
rule and the NLRA can be found in the Legal Issues section of this
preamble.
[[Page 68331]]
As has already been discussed, the potential value of employee
contributions to the development, implementation, and evaluation of an
ergonomics program is well-established. The intent of the proposed
requirement that employees have ways to be involved in developing,
implementing, and evaluating each program element was to allow
employers to take advantage of this potential value to construct and
administer the most effective program possible.
A requirement that employees be involved in the program in no way
abrogates the authority of the employer to manage the workplace or
administer the ergonomics program. Regarding employee suggestions, this
general requirement of the final rule for employee involvement requires
only that employers provide a reasonable opportunity for employees to
be heard, for them to be involved, and for their suggestions to be
fairly considered. An employee recommendation made as part of this
process, in and of itself, does not oblige the employer to take action.
For example, if an employer asks employees in a problem job for
recommendations about eliminating or controlling MSD hazards, the
employer is not compelled to adopt any of the suggestions that the
employees may make. Rather, this is an opportunity for the employer to
draw on the knowledge of these workers in identifying and examining
alternative approaches to addressing hazards. The suggestions of
employees may be used to supplement those of professional staff or
consultants.
Along with the authority for making decisions, the employer retains
the responsibility for ensuring the effectiveness of the program. If
consultation with employees about the effectiveness of the program
reveals, for example, that training has not been understood, then this
deficiency must be promptly corrected (see paragraph (u) of the final
rule).
OSHA realizes that the input of employees will not in every
instance prove to be beneficial to the ergonomics program.
Nevertheless, the evidence in the record shows that contributions to
the success of ergonomics programs have consistently been made by
participating employees. The involvement of employees need not be
cumbersome or time-consuming. Brief discussions are often sufficient to
elicit employee input.
The proposal would have required that employees have ways to be
involved in developing, implementing, and evaluating each element of
the ergonomics program. The final rule requires that employees be
involved in developing, implementing, and evaluating the program;
however, reference to ``each element'' of the program has been deleted.
This change has been made to grant the employer flexibility to adapt
employee involvement to the circumstances in a given workplace. OSHA is
convinced that the proposed level of employee involvement is not
practical or justified in every instance. The Agency never intended for
employee involvement to pervade every aspect of the program. As
explained in the preamble to the proposal, the ``elements'' referred to
were the broad ergonomics program elements (e.g. training, program
evaluation). A requirement for employee participation in each component
of these elements, such as supervisory training, was not envisioned.
OSHA considers, however, that even greater latitude is appropriate in
order to allow the employer to most effectively construct and
administer the ergonomics program. For example, a small employer could
adopt a training presentation developed by a trade association even if
employees in that workplace did not participate in the development of
the presentation. The Agency believes, however, that such circumstances
are the exception rather than the rule, and has retained the
requirement for employee participation in the development,
implementation, and evaluation of the ergonomics program due to the
evidence of the value of worker involvement in each of these stages in
the administration of the program.
OSHA considers that the development of an ergonomics program is not
an event, but a continuing process. The work environment is rarely
static; work methods and equipment often change over time, and as a
result the physical demands upon workers and associated MSD hazards can
change as well. Likewise, hazard control methods and training
procedures can evolve over time. Changes in the workforce can also
impact the effectiveness of an ergonomics program. The program may
require adjustments to account for these changes. For example, if
ergonomics training is conducted in English in a workplace where the
employees speak and understand English, it may be effective. If that
employer subsequently hires employees who do not understand English, an
adjustment would be necessary to provide the training in a language the
employees understand. Similarly, if new equipment is brought into a
workplace, modifications to the ergonomics program may be necessary to
control MSD hazards related to use of the new equipment or to provide
appropriate training. It is in these types of situations, as well as in
the initial creation of the ergonomics program, where the record
demonstrates that the involvement of employees can prove invaluable.
In response to those employers who were concerned that the proposed
standard would necessitate discontinuation of successful programs that
did not incorporate employee involvement in their development, OSHA
does not intend for the requirement in the final rule for employee
participation in the development of ergonomics programs to apply
retroactively to programs that have already been established. The
Agency believes that such a requirement would result in an unnecessary
expenditure of resources to duplicate the existing program. Rather,
OSHA believes that the evaluation of the effectiveness of the existing
program will result in the identification and correction of any
deficiencies which may currently exist, and that employee involvement
in the ongoing development of the program will result in continuous
improvement in the program over time. Moreover, OSHA anticipates that
the grandfather clause in paragraph (c) of this final rule will apply
to many existing programs.
A successful ergonomics program also requires employee involvement
in its implementation. Clearly, hazard controls cannot be effective if
workers do not use them, and MSD management cannot be effective if
injured workers do not report their injuries. A program cannot fulfill
its objectives if it exists only on paper, and is not applied in the
workplace. Ample opportunity is provided to demonstrate employee
involvement in the implementation of the program through compliance
with the specific requirements of the standard. For example, if a job
has been found to be an MSD hazard due to repetition, and the
appropriate control method has been determined to be rotating jobs so
that no single employee spends more than three hours per day in that
job, the employer must ensure that employees carry out the job rotation
in order for it to be effective as a control measure.
Employee involvement in the evaluation of the ergonomics program is
also needed to assure program effectiveness. For instance, workers in
problem jobs are in the best position to determine if control measures
are successfully controlling MSD hazards, or if new hazards have been
created. Employees are also best able to recognize when training is
inadequate
[[Page 68332]]
or when opportunities for reporting of MSD hazards or MSD signs and
symptoms are unsatisfactory. As with employee involvement in the
implementation of the program, opportunities to demonstrate employee
involvement in the evaluation of the program can be found in the
specific requirements for evaluation found in the standard, such as the
requirement of paragraph (m)(4) for consultation with employees
regarding the effectiveness of controls and the requirement of
(u)(1)(i) for consultation with employees on effectiveness and problems
with the program.
OSHA does not believe that employee participation in the ergonomics
program under this final rule will result in adverse repercussions on
collective bargaining relationships. The final rule also does not
require employers in any way to circumvent any process that may
currently exist for employer communication with the employee. The rule
does not specify a precise mechanism that must be used for employee
participation. Where a system is already in place, such as a union/
management safety and health committee, nothing in this rule prohibits
an employer from using that system to meet its employee participation
obligations.
Paragraph (j)--What Must I Do To Determine Whether a Job That Meets
That Action Trigger Poses an MSD Hazard to Employees in That Job?
This paragraph addresses the job hazard analyses employers must
perform to identify those MSD hazards that must be controlled under
this final standard. Paragraph (j)(1) of the final standard requires
employers with jobs that meet the standard's two-part action trigger--
i.e., who have employees who have experienced an MSD incident and who
work in jobs that have risk factors present at levels that meet the
screen in Table W-1--to conduct a job hazard analysis of the job to
determine whether it presents an MSD hazard to employees. (Employers
who qualify for and choose to use the Quick Fix option contained in
paragraph (o) of the standard must follow the procedures of that
paragraph and are not required to conduct the job hazard analysis
specified in this paragraph (j).)
Paragraph (j)(2) tells employers what steps they must include in a
job hazard analysis, and paragraph (j)(3) lists the methods of job
hazard analysis that are acceptable under the rule, including referring
to a number of tools, included in Appendices D-1 and D-2 of the
standard, that employers can use to conduct their analyses. Paragraph
(j)(4) explains that if the job hazard analysis shows that hazards need
to be reduced, the job is terms a ``problem job'' under this standard.
The proposal's job hazard analysis provisions listed the steps
required to analyze a job, and contained a list of 20 physical work
activities and conditions associated with particular risk factors. The
proposal did not provide specific guidance on how to determine whether
the risk factors presented an MSD hazard in any particular case.
Several commenters argued that the proposal's approach was vague and
asked for more specific measures for identifying MSD hazards (see,
e.g., Exs. 500-197, 30-2435, 30-973, 30-1274, 30-2426, 30-1350, 30-
2428, 30-2986, 30-3000, 30-3086, 30-3853, 30-326, 30-546, 30-4189).
Others (e.g., Ex. 30-3593) thought that the requirements in the
proposed job hazard analysis section were too specific, and still
others stated that the table oversimplified the complex interactions
between various risk factors in a job and urged OSHA to eliminate the
table of physical work activities from the final rule (see, e.g., Ex.
30-3436). The argument made by several commenters was that the work
activities and risk factors included in the table in the proposal would
be hard for employers to identify in the workplace (see, e.g., Exs.
500-197, p. III-12, 30-3745, 30-2134, 30-2426, 30-2919).
Although some provisions in final paragraph (j) are essentially the
same as the corresponding sections of the proposed rule, several have
been revised in response to comments that the proposal did not provide
enough information on how employers could determine whether MSD hazards
were present. In particular, the inclusion of the tools in this rule
provides employers with much more assistance in compliance than the job
hazard analysis provisions in the proposal (proposed sections 1910.917
and 1910.918) would have, while preserving a high degree flexibility
for employers who do not choose to use any of the listed tools. In
addition, the final rule has been modified to allow employers
additional flexibility in several aspects of the job hazard analysis
process. The following discussion describes each provision of paragraph
(j) of the final rule and OSHA's responses to the comments received on
the proposed job hazard analysis provisions.
Paragraph (j)(1)
Paragraph (j)(1) of the final rule states that employers must
conduct a job hazard analysis to determine whether a job that meets the
action trigger presents an MSD hazard to employees in that job. This
requirement is essentially identical to the job hazard analysis
obligation in Section 1910.917 of the proposed rule. Like the proposal,
the final rule does not require the employer to perform a job hazard
analysis for every reported MSD, but only for those that meet screening
criteria. Unlike proposed Section 1910.917, however, Paragraph (j)(1)
also permits an employer to rely on a job hazard analysis that was
conducted previously for the job, provided that the analysis was
performed in accordance with the procedures of this paragraph (j) and
is still relevant to the job (i.e., the job has not been altered in the
meantime in a way likely to change or increase exposure).
The purpose of job hazard analysis is threefold: (1) To identify
all the ergonomic risk factors that are associated with the job being
analyzed; (2) to measure the duration, frequency and magnitude of
employee exposure to these risk factors; and (3) to evaluate the risk
factors identified, individually and in combination. This analysis
allows employers to determine if the job poses an MSD hazard to
employees, i.e., is a ``problem job,'' as that term is used in the
standard. The results of the job analysis, which identify the extent of
the risk factors present in the job, can later be used as the benchmark
against which to measure the effectiveness of controls.
The NIOSH publication, Elements of Ergonomics Programs (Ex. 26-2),
describes a job hazard analysis as an examination of the workplace
conditions and individual elements or tasks of a job to identify and
assess the risk factors that are reasonably likely to be causing or
contributing to the reported MSDs. OSHA received many comments
supporting its proposed approach to job hazard analysis (see, e.g., Tr.
5342, Tr. 8978, Exs. 37-1, 37-25, 500-218, 500-137-1-1). OSHA thus
believes that the requirements of paragraph (j) are consistent with the
objectives and steps of job hazard analysis as the process is currently
applied by employers with effective ergonomics programs.
The quality of the job hazard analysis performed is critical to the
success of the entire ergonomics program, as the United Auto Workers
noted:
The heart of an ergonomics program is the measurement of risk
factors on jobs. The presence of risk factors demonstrates that a
reported MSD is related to a job or workstation, while their absence
suggests the MSD arose from other causes. Risk factors predict MSDs
will arise in the future, even if none are currently reported. And,
reductions in risk factors indicate that a job has been improved
(Ex. 500-220).
[[Page 68333]]
A job hazard analysis can also rule out jobs that do not need to be
controlled, and can provide employers with the information they need to
prioritize their efforts on the most hazardous jobs or tasks that pose
the most severe problems. Similarly, a job hazard analysis is an
efficient way to help employers focus their resources on the most
likely causes of a problem. For example, after analyzing a job, the
employer may find that the amount of repetition is acceptable if the
force and awkward posture in the job can be controlled sufficiently.
Despite these benefits, several commenters (see, e.g., Exs. 30-
1393, 30-1275, 30-3061, 30-3062) were concerned that the standard's
requirements for job hazard analysis would be too costly. Typical of
these comments was one from the Navy Federal Credit Union:
The requirement for employers to perform job hazard analyses is
extremely onerous and costly. It requires every employer to perform
hazard analyses on the same or similar jobs within their industry.
OSHA has already amassed a substantial amount of data on the likely
causes and remedies of MSDs that occur in the workplace. The
ergonomics standard should permit employers to rely on OSHA's
identification of hazards and possible remedies for problem
occupations (Ex. 30-1273).
Other employers, such as August Mack Environmental, Inc., disagreed,
however:
I do agree that conducting a hazard analysis, if done properly
and very objectively, requires significant resources. However, if
the result were to find that MSD risk factors were not prevalent,
and the need for full implementation of a comprehensive ergonomics
program were eliminated, this [expense] could easily be justified.
This is due to the estimated amount of resources required for the
hazard analysis compared to the resources required to implement a
formalized ergonomics program and maintain it over time (Ex. 30-
240).
Other record evidence also makes clear that the cost of MSDs far
exceeds the costs of controlling MSD hazards (Tr. 7122, Tr. 10225, Tr.
4811).
Similarly, some commenters also expressed concern that performing
job hazard analysis could be too difficult for small companies (see,
e.g., Exs. 601-x-1, 30-3469, 30-2846). However, OSHA's experience is
that small companies can and do conduct these analyses effectively. For
example, Wood Pro Industries in Cabool, Missouri is a VPP employer with
only 100 employees. Its safety director (David Carroll, who also wears
a number of other hats) began a safety and health program that
identified and controlled ergonomic risk factors several years ago. The
program has resulted in a decrease of almost 40% in workers'
compensation costs (mostly due to reductions in MSD hazards), with
premium costs declining from $103,824 to $61,000, which Mr. Carroll
described as ``not chicken feed for a small company'' (Ex. 502-17).
Based on this record, OSHA agrees with those who commented that an
appropriate job hazard analysis actually limits MSD hazard control
costs, either by determining that no MSD hazard is present or by
identifying risk factors that, in turn, allow the company to focus on
the activities that are associated with the MSD incident.
The UAW also has experience with small companies that have
implemented ergonomics programs:
Employers in the many small facilities have voluntarily or
through the collective bargaining process, adopted a common approach
to preventing ergonomic injuries and abating ergonomic risk factors
in the workplace. The program includes all components established in
the proposed standard, except appropriate medical management and
that can be established without hindering the established processes
at the facilities (Ex. 500-220).
Other commenters argued that the proposed approach to job hazard
analysis would require the employer to hire a consultant (see, e.g.,
Exs. 30-3783, 30-2810, 30-3336, 30-715, 30-2834). For example, the
Texas Association of Business and Chamber of Commerce stated:
Because the proposed standard inadequately defines the alleged
``risk factors'' or ``conditions or activities'' or even to provide
a complete list of the ``conditions or activities'' during which the
``MSD hazards'' allegedly occur, small employers will be forced to
seek assistance--at substantial cost--from those with experience and
knowledge in the ergonomics field. In addition, the proposed
standard does not adequately explain which controls will abate
particular hazards and they will again be forced, and as encouraged
by OSHA, to seek expensive outside help (Ex. 30-2810).
But contrary evidence is also in the record:
I am not an ergonomist and I do not believe you need an
ergonomist to do a general check on the risk factors of most jobs,
that most workers, especially if you give them a framework for
thinking about and analyzing their own job, can tell you where those
risk factors are present, where they're not present, where they're
present in large quantities versus small quantities. You do not need
to be an ergonomist to do that. Many workers are extremely capable,
if you give them a framework for analyzing their own jobs * * * (Tr.
13764).
A recent study in the record (Ex. 500-71-64) reports that trained
workers were able, in 65 to 85% of cases, to identify the same risk
factors as hired ergonomists and to successfully identify solutions.
The job hazard analysis required by Paragraph (j) of the final rule
serves a very different function from the Basic Screening Tool in Table
W-1 of the standard. The Basic Screening Tool is a simple hazard
identification tool that can be used to identify jobs with the
potential to expose workers in them to ergonomic risk factors at levels
that may pose an MSD hazard. It cannot take the place of a job hazard
analysis. It can only point to possible problems with the job; it takes
a job hazard analysis to determine whether controls are actually
necessary. A job hazard analysis identifies specific risk factors, or
combinations of risk factors, that need to be controlled.
Paragraph (j)(1) also allows employers to rely on a previously
conducted analysis of a job if it was performed in accord with the
requirements of this paragraph, and the analysis is still relevant.
This provision responds to concerns expressed by some participants that
employers that the standard would require significant action every time
a new MSD occurred, even if a job hazard analysis that complied with
the standard had already shown that no additional controls are
necessary (e.g., Ex. 30-3956). To take advantage of this provision, the
employer must confirm that the job is still being performed in the same
way, and that the same risk factors are still present. Any changes to
the work methods or equipment may have introduced new MSD hazards, and
a new job hazard analysis would then be required. Additionally, if new
employees are present, the employer must make sure that no new employee
is performing the job in a different way or has physical
characteristics that expose that employee to risk factors not present
for others. For example, a particularly tall or short employee might
need to work in a more awkward position, or reach further than others
in order to perform the same tasks. If that is true, the employer must
analyze the job to identify the risk factors affecting that employee.
The ``new employee'' situation described above is one of the
scenarios addressed by the Note to paragraph (j). That note allows the
employer to limit the job hazard analysis (and response) to the
employee who reported the MSD incident when the MSD hazard is limited
only to that employee. Evidence in the record points to situations in
which the physical work activities or conditions of a job pose a risk
to only a single employee (see, e.g., Exs. 30-
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4709, p. 6, 500-145, 30-2208). For example, a five-foot tall employee
in a commercial bakery may report a back or shoulder MSD related to
extended reaches involved in sorting rolls. However, other, taller,
employees who have performed the job for several years do not have (and
never have had) difficulty performing the physical work activities of
the job. In this case, the employer could conclude, based on the job
hazard analysis, that the problem is limited to the injured employee.
The employer then may limit the further action required by the standard
(e.g., analysis, control, training, recordkeeping, evaluation) to that
employee's workstation.
A similar situation could occur where one employee is much taller
than others in the same job. The tall employee reports persistent back
pain that rises to the level of an MSD incident, and the employer
observes that having to bend much further than the other employees to
work at the work surface is likely to have caused the back problem.
Allowing employers to limit the analysis and control to a single
employee if the analysis reveals that the problem is unique to that
employee is consistent with the approach taken by several commenters
who have successful ergonomics programs (see, e.g., Exs. 30-1071, 30-
3755, 30-3745). As one of these commenters reported, ``we have often
modified the job to fit that one individual--however, modification was
not needed for co-workers at similar or identical duty stations'' (Ex.
30-1071).
Paragraph (j)(2)
Paragraph (j)(2) of the final rule describes the steps the employer
must take in performing the job hazard analysis. Paragraph (j)(2)(i)
states that the employer must talk to the employees who perform the
job, and their representatives, about tasks that may relate to the MSD
incident. Paragraph (j)(2)(ii) requires the employer to observe the
employees performing the job to identify the risk factors and assess
the extent of their exposure (its magnitude, frequency, and duration)
to those risk factors. The employer must include all of the employees
performing the job, or a sample of those with the greatest exposure to
risk factors, in this analysis.
According to the record (see, e.g., Exs. 26-2, 26-5, 26-1370, 37-1,
37-25) effective job hazard analyses have the following steps or
activities in common:
Obtaining information about the specific tasks or actions
the job involves;
Obtaining information about the job and problems in it
from employees who perform the job;