March 2001

Legislative Watch

By George G. Olsen, JD, and Karina V. Lynch, JD

A Bottom-Line Boost or Bomb?

OSHA’s ergonomic rule affects rehab providers twofold—as employers and as experts in the field.

The Occupational Safety and Health Administration (OSHA) issued its final ergonomics program standard in the November 14, 2000 Federal Register. The highly controversial rule became effective January 16, 2001. According to OSHA, it will affect 6.1 million employers and 102 million employees in general industry.

While labor unions have strongly supported the rule, employers and businesses are attempting to block it through lawsuits and Congressional action. This rule will affect rehabilitation service providers in two ways. First, as employers rehabilitation providers must be aware of the rule’s requirements because at least some of their activities will raise compliance issues. Second, as caregivers and experts in rehabilitation, providers may be presented with new business opportunities.

Musculoskeletal Disorders

Under the rule, a musculoskeletal disorder (MSD) is defined as “a disorder of the muscles, nerves, tendons, ligaments, joints, cartilage, blood vessels, or spinal discs.” According to OSHA, workplace MSDs are caused by “exposure to the following risk factors: repetition, force, awkward postures, contact stress, and vibration.” The regulation mandates that employees be informed about MSDs, the signs and symptoms of MSDs, how to report MSDs, the risk factors associated with MSDs, and the requirements of OSHA’s ergonomics program standard.

If an employee reports an MSD or signs of an MSD, the employer must determine whether the report constitutes an “MSD incident.” A report is considered an incident if it is work-related and requires days away from work, restricted work, or medical treatment beyond first aid, or if the MSD signs are work-related and last for 7 consecutive days after they are reported. In the final rule, OSHA makes it clear that it “does not require the employer to provide medical treatment to injured employees.” It states in pertinent part, “while specific medical treatment may be appropriate, such as medicines, physical therapy, chiropractic care, or even surgery, the final rule does not require the employer to provide such services. The rule requires the employer to provide access to a health care provider, provide needed restrictions, and provide information to health care providers and employees...but the standard does not address the medical treatment afforded employees. Therefore, if an injured employee needs medical treatment, the employer is not required to pay for them.”

The Time frame

There are additional effective dates for specific requirements of the standard. Employers are required to begin to distribute information on the rule to workers and begin receiving and responding to reports of injuries no later than October 15, 2001. The final rule also stipulates that an employer must determine an “action trigger” within 7 calendar days after an employee has experienced an MSD. Once an employer determines that an injured employee’s job meets the criteria for an action trigger, the clock starts for employers to meet the following deadlines:
7 days: MSD management, which must include employee access to a health care professional; any necessary work restriction, including time off work to recover; work restriction protection; and evaluation and follow-up of the MSD incident.
30 days: Management leadership and employee participation.
45 days: Train workers in setting up and managing program.
60 days: Job hazard analyses.
90 days: Train current employees, supervisors, or team leaders.
3 years: Program evaluation.
January 18, 2005: Implement permanent controls.

OSHA is required to conduct a regulatory flexibility analysis for rulemaking to determine whether alternative regulatory approaches might be less costly for employers, particularly small businesses. OSHA’s review of those options is important because under the Regulatory Flexibility Act of 1980, small businesses can later sue OSHA and other regulatory agencies if employers believe alternative approaches were not fully considered. According to the regulatory flexibility analysis contained in the OSHA rule, small companies expressed concerns over the cost of hiring consultants or ergonomic experts and noted that, unlike larger organizations, small employers are not likely to employ a health and safety manager to develop an ergonomics program in compliance with the standard. According to OSHA, the standard was designed to outline the basic elements of a required ergonomics program, leaving employers free to provide the details.

Determining Risk

Unlike the proposed rule, OSHA’s final rule contains a two-step action trigger. The first stage involves determining whether an employee has experienced a work-related MSD (MSD incident) involving 1 or more days away from work, 1 or more days of work limitations, medical treatment beyond first aid, or 7 days of persistent MSD signs or symptoms. The second stage involves determining whether the injured worker’s job has defined ergonomic risk factors. Only when both conditions are met are employers required to take further action. Once an employer has determined that an employee has experienced an MSD incident, he or she must determine whether the employee’s job regularly involves exposure to one or more risk factors in a new “basic screening tool.”

The rule contains specific definitions of the risk factors and exposure durations that define a job requiring further analysis. For example, the tool would show that the standard is not triggered for an employee with work-related back pain whose job primarily involves using a keyboard and a mouse. OSHA placed an exposure level of at least 2 hours in the risk factor screen because the evidence showed that MSD risks most likely would be elevated above that limit. The 2-hour level is used to “give employers guidance about which jobs might involve a sufficient duration of exposure such that the job warrants closer examination.”

The standard does not apply to construction, maritime, agriculture, or railroad industries. However, it does cover all general industry employers and 6.1 million general industry work sites with more than 102 million workers. Additionally, according to the final rule, firms with fewer than 11 employees do not have to keep records.

The business community strongly opposes this rule on the grounds that it will be extremely expensive and difficult to comply with. Numerous lawsuits have been filed throughout the country challenging the regulation. Furthermore, efforts were made during the appropriations battles in Congress at the end of last year to have the rule rescinded or delayed.

While these efforts were unsuccessful, new attempts will undoubtedly be initiated, especially since the Clinton Administration that championed the rule is no longer in power. It would be wise for rehabilitation providers to begin assessing the rule not only in terms of its effect on their operations as employers and businesses but also for new business opportunities. If the rule continues to be in effect, businesses of virtually all types will be searching for experts in ergonomics and likely rehabilitation to help them develop compliance programs.

George G. Olsen, JD, is a partner and Karina V. Lynch, JD, is an associate attorney at Williams & Jensen, PC, Washington, DC. Olsen is also legal counsel for the National Association of Rehabilitation Awareness.

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