New Federal OSHA Standards Could Impact Occupational Disease Claims

July, 2000

The Federal Government’s Occupational Safety & Health Administration (“OSHA”) issued proposed regulations in November of 1999 dealing with alleged repetitive motion disorders and ergonomics. If adopted, these regulations would require many employers to establish comprehensive plans geared toward ending what OSHA refers to as work-related “musculoskeletal disorders” (“MSD”). Application of this plan would impact numerous employers who were not previously subject to OSHA scrutiny, even if they never had a reported “MSD” claim.

If implemented, the plan would require employers to establish an onsite “mini” ergonomics program consisting of three elements. The first phase is “management leadership.” Under the proposed regulations, an employer must assign managers and supervisors to be responsible for creating an ergonomically safe work environment, train other managers to detect problems, and grant them the authority and resources to make any necessary changes to comply with the guidelines. Phase two of the OSHA plan is “employee participation” and, phase three requires the employer to identify “hazards information” and reporting of these hazards. In the event an employer receives a report of one recordable “MSD” that is significantly likely to have been caused by the employee’s job, then the employer would further be required to implement a “comprehensive plan,” which has four additional requirements. First, the employer must investigate workplace hazards, which would require employee interviews and surveys, with the goal of identifying jobs posing the greatest risks and developing measures to control the risks and record progress in handling the hazards. Second, the employer must train employees at least one time at the outset of the plan, and then at least once every three years. Third, the employer must engage in “medical management,” which requires the enlistment of a health professional to render an opinion as to the nature of the injury and prescribe appropriate work restrictions. Finally, every three years, the employer must re-evaluate its ergonomic program to ensure that it complies with OSHA standards. The proposed regulations require employers to pay wages, up to six months, to employees who are unable to work due to alleged “MSD” conditions. How this would impact on workers’ compensation benefits is not specified./p>

OSHA’s proposed regulations reflect a new approach to government regulation, wherein the employer is charged with enforcement of appropriate workplace standards. Given OSHA’s past practice of stern compliance and its willingness to devote enormous resources to enforcement, this new approach could subject employers to potentially significant liability due to the lack of clarity of the OSHA requirements.

In addition to the potential for confusion and liability, the OSHA plan would provide additional workplace regulations and added costs, in an area in which there is a definite lack of scientific evidence establishing a causal relationship between specific work activities and the development of alleged occupational diseases. Some analysts have suggested that the regulations will give rise to another “victim” group – the “ergonomically challenged.”

Originally, OSHA directed that comments in the proposed “MSD” regulations be submitted by 2/1/00. This has now been extended to 3/1/00. For more information on this matter, check out the Internet web site of the National Association of Manufacturers, located at http://www.nam.org.