Regulation of Workplace Ergonomics Programs (Part I)

  

This is the first in a series of posts that will discuss various regulatory considerations surrounding workplace ergonomics programs. Readers are encouraged to comment on each post with questions or requests and suggestion for future posts.

The United States Occupational Safety and Health Administration does not currently have an ergonomics standard. However, there are several regulatory and legal schema that include rules relevant, both directly and indirectly, to an enterprise’s identification and mitigation of ergonomics hazards and the consequences thereof. While many safety managers are loath to admit it, safety programs tend to be built around OSHA regulations. While the necessity of compliance is broadly accepted, most recognize that too much focus on regulation results in a program that, while “compliant”, is woefully insufficient to accomplish the true goal: Preventing workplace injury and illness. However, a “safe workplace” can be a hard concept to define, let alone measure and manage. So, the discrete rules prescribed by governmental agencies can provide an alluring point of reference. Additionally, while the financial benefits of a well-designed safety program can be hard to quantify (how does one value an injury that doesn’t occur?), an OSHA citation places a discrete value on noncompliance. Because ergonomics is merely a component of a well-designed safety program, it is easy to point to the lack of a federal standard as a reason to downplay its importance. However, it may be short-sighted to conclude the lack of an OSHA standard equates to the lack of regulation.

Fed OSHA

In discussing OSHA ergonomics rules, some in the safety community may recall that OSHA had an ergonomic standard. OSHA’s Ergonomics Program Standard went into effect in January 2001, but was almost immediately removed by Congress under the Congressional Review Act of 1996 and OSHA was barred from issuing a substantially similar rule. If this Act sounds familiar, it should. The same Act was recently used to repeal the Interior Department’s Stream-Protection Rule, which prevented coal operations from dumping tailings into stream valleys, and the FCC’s Broadband-Privacy Rule, which required ISPs to obtain permission before selling a subscriber’s data. Following the repeal, OSHA encouraged the states to implement their own programs, which met with mixed success. The California rule will be discussed in future posts, while other state efforts (notably Washington and Michigan) suffered similar fates to the federal standard. However, OSHA continues to demonstrate an interest in promoting ergonomically sound practices and has published several industry specific guidelines that, while not enforceable, provide an indication of the practices the regulator considers appropriate (www.osha.gov/SLTC/ergonomics).

It is also imperative to note that, while OSHA is barred from issuing a rule substantially similar to the prescriptive Ergonomics Program Standard, they remain able to regulate safety practices in general, including ergonomics. The General Duty Clause requires employers to provide a workplace free from recognized hazards which have or are likely to cause serious injury to employees. OSHA has explicitly stated this rule gives them the ability to enforce ergonomic practices if they are necessary to provide a safe workplace. Further, OSHA’s recording, reporting, anti-retaliation, and other injury related requirements apply to ergonomic related injuries and musculoskeletal disorders the same as other types of industrial injury or disease. While not explicitly prescribing ergonomics programs, in conjunction with the other regulations outlined below, these standards contribute to a patchwork of rules that could be considered to establish an implied federal requirement for an ergonomics program.
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