On January 16, 2001, the ergonomics standard went into effect for employers covered by the federal Occupational Safety and Health Act. Under the standard, employers must begin to comply with its requirements by October 15, 2001. Those states, such as Michigan, which have their own state plan have six months to adopt the federal standard or develop an ergonomics standard of their own. In Michigan, it appears that the state will be adopting by reference the federal standard.
So does this mean that in six months employers in Michigan will need to start complying with the ergonomics standard? Unfortunately, the answer to this question is not clear. Numerous court actions have been filed challenging the federal standard. In addition, it is unclear if President Bush will try to take any action regarding the ergonomics standard.
Despite the uncertainty, the standard currently is in effect at the federal level and it is important for employers to understand why they should be concerned.
1. The Standard Covers a Broad Number of Employers
All employers, regardless of size, will be required to comply with some or all of the provisions of the ergonomics standard unless they fall under one of the listed exceptions. The exceptions include employers covered by the construction standards, the maritime standards and the agricultural standards. There also is an exception for railroad operations. In addition, there is an exception for certain employment, such as office management and support services directly related to one of these exempt categories.
2. The Standard Is Complicated
Although the Occupational Safety and Health Administration has published a document with frequently asked questions about the ergonomics standard, the standard is still complicated. For example, employees covered by "work restriction protection" are entitled to 90% or 100% of "earnings." Yet, the standard does not define how "earnings" are to be computed. Therefore, employers will not know how and whether employers should account for overtime earnings, which may vary on a weekly basis. This is just one of many questions that is unclear.
3. The Standard Will Be Costly
While OSHA estimates that the cost for all affected parties will be $4.5 billion per year, some business groups have estimated that the ergonomics standard will cost between $20 billion and $100 billion each year. The Occupational Safety and Health Administration believes that the standard will be the most costly to the following industries: hospitals, eating and drinking places, trucking and courier services, and grocery stores.
4. Compliance With the Standard Will Be Time Consuming
While the initial requirement to provide basic training to all employees may not be that difficult, once an employee reports a sign or symptom of a musculoskeletal disorder ("MSD"), an employer must take a number of time-consuming steps to determine what action, if any, is required under the standard.
The employer must determine if the MSD sign or symptom is an MSD incident. An MSD incident is an MSD sign or symptom that is work related and requires days away from work, restricted work or medical treatment beyond first aid. If it does not meet this requirement, it may still be an MSD incident if the MSD signs or symptoms are work related and last for seven consecutive days after the employee reports them to the employer.
If the MSD sign or symptom is an MSD incident, an employer must determine whether the job meets the "action trigger." A job meets the action trigger if an MSD incident has occurred in that job and the employee's job routinely involves one or more days a week of exposure to one or more relevant risk factors at the level described in the "Basic Screening Tool" (which is attached to the standard).
If these two criteria have been met, an employer must then comply with the Quick Fix option, if available, or implement a full ergonomics program. Unfortunately, most employers will not be able to use the Quick Fix option because it may be used only if an employer has no more than one MSD incident in that job and not more than two MSD incidents in its establishment.
Because of the restrictions for using the Quick Fix process, most employers must implement a full ergonomics program. An ergonomic program must have the following elements: management leadership, employee participation, MSD management, job hazard analysis, hazard reduction and control measures, and training. In addition, employers will be required to maintain specific records associated with their full ergonomics program.
5. Employers Need to Read the Preamble to Comply With the Standard
The preamble to the standard is almost six hundred pages. Yet, for an employer to understand the standard, it may be necessary for an employer to read the preamble. There are some issues that are not addressed in the standard that employers will need to be aware of to comply with the standard. For example, the standard does not address how it will be enforced in the context of multiemployer work sites. This issue, however, is addressed in the preamble.
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Karen J. VanderWerff is a partner specializing in the area of Occupational Health and Safety with Warner Norcross & Judd LLP. She holds degrees in chemistry and criminalistics. Warner Norcross & Judd is a full-service law firm with offices in Grand Rapids, Muskegon, Holland and Southfield. Karen may be reached in the Grand Rapids office at 616.752.2183. Because each business situation is different, this information is intended for general information purposes only and is not intended to provide legal advice.