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Where Is OSHA Headed With Ergonomics?

In the USA, the ergonomics profession is as torn by the concept of an "ergonomics standard" as is general industry, the target of any such rule-making. You will not find consensus, and are likely to encounter widely differing views, when it comes to regulating work-related MSDs (WRMSDs). There is even debate over OSHA’s use of the term "ergonomics", because dealing with WRMSDs is only a subset within the field of ergonomics, by far not its only purpose and benefit. The issue is so controversial, most people I discuss the topic with prefer to remain anonymous. It was one such conversation that spurred me to write this article.

"I still blame OSHA for setting ergonomics back at least ten years," a colleague recently said. Other colleagues assign blame to specific ergonomists, researchers, labor activists, and even a University program for pushing OSHA regulations under the name of ergonomics, giving the field a "bad name."

Equally divisive comments come from the other side of the political question. "Protecting human wellbeing is a core principle in ergonomics, and industry won’t do it unless they’re forced," says one colleague. "Ergonomists that don’t support a regulation are not being true to their field," says another.

No matter where you stand on the political question, understanding where OSHA might be headed is worth the time and effort, because it could have a major impact on the practice of ergonomics, as well as the public’s understanding of the nature and value of ergonomics.

 

A Brief (and Incomplete) History of OSHA and Ergonomics

OSHA’s first significant foray into ergonomics resulted in the 1991 publication of the Ergonomics Program Management Guidelines For Meatpacking Plants, a document that still provides a decent blueprint for an ergonomics program in any industry, not just meatpacking.

The next significant effort came in former President Clinton’s first term in office, during the mid-1990’s. About the same time that Hillary Clinton was attempting major healthcare reform, OSHA was working on a draft ergonomics standard. The draft was roughly 285 pages long, if memory serves me correctly, and was specification oriented. That draft was abandoned after political backlash.

A new effort took place during Clinton’s second term in the late 1990’s, which culminated in the 2001 Ergonomics Program Standard. That standard was OSHA’s first attempt at a program/process standard, as opposed to the specification style standards that make up the bulk of OSHA’s rules. However, the new congress, supported by the incoming Bush administration, quickly overturned the standard before it went into effect.

The Bush administration then stepped back from regulation and enforcement activities, and instead published voluntary guidelines in cooperation with industry.

Meanwhile, throughout this timeline, OSHA occasionally issued citations under the General Duty Clause. Essentially, the General Duty Clause, also referred to as Section 5A(1), states that whether or not there is a specific standard, employers "shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees." According to insiders, OSHA has had a difficult time making MSD related citations stick under this clause, especially if the employer appealed the citations.

This is not a complete history, but these are the primary activities to date.

 

Where to from Here?

The only constant in the history of OSHA and ergonomics is that each new administration sets yet another new agenda. With President Obama’s first term well under way, and OSHA Administrator David Michaels at the helm, we’re starting to see a new direction take shape. Under Obama, OSHA has stated it will pursue the following strategic activities:

  • Strengthen enforcement capabilities – target the most egregious and persistent violators.
  • Strengthen regulatory capabilities.
  • Increase OSHA’s presence in the workplace.
  • Protect workers in high-hazard occupations.
  • Protect vulnerable and hard-to-reach worker populations.
  • Review and restructure penalties to ensure that penalties imposed are consistent with the seriousness of the violation and act as effective deterrence to violators.
  • Maintain a strong outreach and education program.
  • Enhance and strengthen compliance assistance program for small businesses.

Will there be an attempt to promulgate a new ergonomics standard? You can find opinions across the spectrum, of course, but it appears that doing so could be a daunting challenge. The Congressional Review Act, which is the law congress used to repeal the 2001 Clinton era rule, states that once repealed, a rule "may not be reissued in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule." So, any new rule would either need to be "substantially" different, or congress would first need to pass a law authorizing a new rule that might be "substantially" similar.

My gut feel, and the opinions of insiders I’ve spoken with, is that the Obama administration is not likely, at least at this point, to pursue a new ergonomics or WRMSD prevention regulation. They have, on the other hand, pursued the addition of a column to capture MSDs on the OSHA 300 Log, a move that some interpret as a "first shot across the bow" toward the pursuit of a new standard. OSHA officials participated in a live web chat on April 7, 2010, and ergonomics was brought up several times by stakeholders. All of the quotes that follow are from that OSHA web chat.

Regarding the addition of an MSD column to the OSHA 300 Log:
 
Dorothy Doughtery: Our goal is to issue the rule in time to implement the new requirements on January 1, 2011, when the next annual reporting cycle would begin. The comment period, which was initially scheduled to close on March 15, 2010, was extended to March 30, 2010, in order to provide stakeholders with additional time to submit their comments. OSHA is currently reviewing the comments and has begun work on drafting the rule.

OSHA has also taken a new view of the Voluntary Protection Program (VPP), a cornerstone of the previous Bush administration’s approach:

Kim Locey: We are not eliminating the VPP, but due to budgetary issues we are using our limited resources where they are most needed by focusing on employers that do not do a good job protecting their employees. We are looking for non-government funded ways to continue the program.

Speaking directly to the question of ergonomics:

David Michaels: Until recently, enforcement around ergonomic hazards languished. We recognize that thousands of workers annually suffer from musculoskeletal conditions associated with ergonomic hazards and OSHA must do more. OSHA’s field staff will be looking for ergonomic hazards in their inspections and we will be providing them with the support and back-up they need to enforce under the general duty clause. In addition, we will be examining employer logs to see if MSDs are accurately reported.

Jordan Barab: The strategic plan consists of general goals. In order to reach these goals we will be addressing a number of work place hazards including ergonomics. For example, we will be adding a musculoskeletal disorder column to the OSHA log next year, and we will be increasing our enforcement activities addressing ergonomic issues … enforcement will be done under general duty clause. We are currently working this process more effective.

Tom Galassi: Enforcement is not left to the discretion of the inspector. In order to document a general duty clause violation for ergonomics, among other things, the agency would have to demonstrate industry recognition and feasible ways to abate the hazard.
 
There’s one other reason I think OSHA’s pursuit of an ergonomics specific standard is not likely, which is again supported by conversations with insiders. There has been talk for years about promulgating an Injury and Illness Prevention Program standard (also referred to as the i2p2 standard). Recall that the 2001 Ergonomics Protection Standard was the first time OSHA attempted a program standard, as opposed to a specification compliance standard. With the inclusion of MSDs on the OSHA 300 Log, it seems they would necessarily be included under any such programmatic standard. Here’s what OSHA lead David Michaels had to say about a program standard during an April 26, 2010 web chat:
 
OSHA has set an ambitious Spring Agenda that includes 24 regulatory projects, two of which are new, high priority actions. These items are Injury and Illness Prevention Programs and Recordkeeping-Modernizing OSHA’s Reporting Systems.
 
Injury tracking and analysis are important tools for employers, workers, and OSHA. They help identify the causes of injuries and therefore are very important in injury prevention. Currently, OSHA only requires recording injuries on paper. We believe that moving to a more modern, electronic system will provide information to employers and workers that can be used in real time to investigate and prevent injuries. It will also help OSHA target those workplaces where workers are at greatest risk for injury.

In addition to adding an MSDS column to the 300 log, OSHA will be increasing its enforcement of ergonomic hazards under its General Duty Clause. We are continuing to consider additional approaches to addressing ergonomic hazards.

The Labor Department’s new enforcement strategy – Plan, Prevent, Protect – is an effort designed to expand and strengthen worker protections through a new OSHA standard that would require each employer to implement an Injury and Illness Prevention Program tailored to the actual hazards in that employer’s workplace. Instead of waiting for an OSHA inspection or a workplace incident to address workplace hazards, employers would be required to create a plan for identifying and correcting hazards, and then implement this plan. Workers would participate in developing and implementing such a plan. This common sense rule will be asking employers to find the hazards present in their worksites that may injure or kill workers and then fix those hazards.

Requiring employers to "find and fix" the hazards in their workplaces does represent a major paradigm shift for OSHA. I believe it is long overdue. At the OSHA Listens session that we held in March, we heard from employers, unions, and safety and health professionals that a program standard is badly needed. Unfortunately, the administrative requirements that we must meet to put out any new standard are cumbersome and extensive. As much as we would like to go more quickly, it will still require many months of work to issue the standard. Our first step is a series of stakeholder meetings and we hope to gain insight and input from all interested parties.

The i2p2 standard is not a substitute for other OSHA standards. It provides a mechanism to achieve the culture change needed in this country to effectively address workplace safety and health issues. It will be the employer’s responsibility to identify all hazards in their workplace, which may include ergonomics, falls, amputations, electrocutions, work-related respiratory disease (such as occupational asthma), etc. The i2p2 standard simply provides a mechanism for employers to identify hazards; however, the control of those hazards will be required by existing OSHA standards and the general duty clause, as is currently the case.
 
This i2p2 standard sounds a lot like a typical ergonomics program standard. With the inclusion of MSDs as a recordkeeping requirement, and the well established General Duty Clause as an enforcement mechanism, it appears ergonomics issues would automatically be included within the scope of an i2p2 standard.
 
 

 

This article originally appeared in The Ergonomics Report™ on 2010-06-02.