Excerpts from The Employers' Liability Newsletter

The Employers' Liability Newsletter is a quarterly publication of Juge, Napolitano, Guilbeau, Ruli & Frieman. The content of the newsletter consists of such topics as current Workers' Compensation news in Louisiana, national news, and recent case summaries. A complete and updated newsletter can be found on the client toolbox page.

4th QUARTER 1999
OSHA Opens Pandora's Box

For ten years the Occupational Safety and Health Administration (OSHA) has been fixated with the dream of creating federal regulations to cure the perceived problem of musculoskeletal disorders (MSDs) in the workplace. On November 22, 1999 OSHA released its proposed ergonomics standard which was published in the Federal Register on November 23, 1999. Business advocates and employer groups were incensed by the proposed standard which many see as a vague rule lacking a scientific basis and including burdensome requirements that could cost employers billions of dollars. Despite Business and Congressional opposition, OSHA is steadfast in pushing the proposal toward a final rule.

Injuries treated as MSDs under the proposal would include any diagnosed injury of the muscles, tendons, ligaments, joints, cartilage, or spinal discs attributable to activities that form the core or significant part of a worker's job. [This should account for about 90% of the work injuries.] Employers in construction, agriculture, and maritime industries would be exempt under the rule. But if that includes your business, you should not take too much comfort in this exemption as AFL-CIO President John Sweeney is calling for the final rule to remove this exemption. It is also likely that once OSHA has brought all other businesses within this rule, they will move to remove the exemptions.

What does this new regulation do?

The OSHA standard would require employers to participate in a "basic" program. The program would require employers to:

1. Assign someone to be responsible for an ergonomic initiative and ensure that company policies do not discourage employees from reporting ergonomic-related problems;
2. Set up an MSD reporting system as well as periodically provide employees with information on ergonomic risk factors, signs and symptoms of musculoskeletal disorders, and the requirements under the standard.

Once a covered MSD is reported by a worker the employer would be required to participate in a "full program":

1. Require a job hazard analysis and control, including an analysis of problem jobs for ergonomic risks, instituting the use of personal protective equipment and using engineering or administrative controls to reduce MSD hazards;
2. Training of employees (at least once every three years) in ergonomic safety;
3. Work Restriction Protection - Requiring 100% pay and benefits for employees put on light duty as a result of an MSD and 90% pay and 100% benefits for employees who must be removed from work;
4. Program benefits would continue until the employee can return to work, the MSD hazards have been fixed, or six months have passed, whichever comes first.

OSHA would allow the state's workers' compensation benefits to be used as an offset, but these benefits are usually fixed at 66 2/3 of the employee's average weekly wage (subject to a maximum limit). Since the OSHA benefits are 90% of the pay (no maximum limit), there would be little incentive for the worker to "recover". When OSHA was confronted with the obvious difference in the benefit levels for state workers' compensation claims and the OSHA program, OSHA spokesperson Susan Hall Fleming responded that the work restriction protection payments are "intended to encourage workers to report early"[lawnewsnetwork.com News Item November 29, 1999].

For employers under the full program, reporting, recordkeeping, and program evaluation would be required for three years and would include correction of any workplace hazards or deficiencies.

Opponents of the rule complain that OSHA rushed the proposal to publication without awaiting the result of a congressionally funded ergonomics study by the National Academy of Science. Results of that study are expected sometime in 2001. Critics also point out that there is a lack of consensus in the scientific and medical communities on the causes of MSDs . Employers are particularly concerned about the single MSD claim that can require an employer to participate in the "full program".

While the Labor Department estimated the cost to industry at $4.2 billion annually, Food Distributors International, which represents food wholesalers and distributors, said the rules could cost its members alone as much as $26 billion the first year and $6 billion annually after that [The Times-Picayune 11/25/99 page C3]. Business and congressional opposition has not tempered the attitude of Labor Secretary Alexis Herman who has maintained that the ergonomics rule would be a "done deal" by the conclusion of next year.

If you would like to send OSHA your thoughts on this proposal, you are invited to do so but no later than February 1, 2000 and it must be submitted "in duplicate" to the OSHA Docket Office, Docket No. S-777, Room N-2625, U.S. Department of Labor, 200 Constitution Ave., N.W., Washington, D.C. 20210.