Editor’s Note – Mark Lies, II, is a partner in the Chicago, IL, law firm of Seyfarth, Shaw, Fairweather and Geraldson, who specializes in labor and employment law as well as occupational safety and health. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.
As most employers are aware, the ergonomic standard issued by the U.S. Occupational Safety and Health Administration (OSHA) in the waning days of the Clinton administration was vacated in March 2001 by a Congressional Resolution of Disapproval under the Congressional Review Act (CRA). This was the first instance where the CRA was utilized to overturn action by a federal agency.
Since this occurrence, there has been considerable dispute between employers and organized labor over what action, if any, the agency should take regarding promulgating another standard, and if so, what should be the appropriate scope. Several members of Congress have demanded that OSHA establish a timetable to issue another standard within two years. Several labor groups have threatened lawsuits to compel the agency to issue a standard.
Current Employer Liability
Under the so-called “general duty” clause, OSHA has always had the authority to issue citations for injuries caused by repetitive stress work activities. OSHA has, in fact, issued substantial citations in the past to employers in the meatpacking, automotive, food handling, and certain other manufacturing industries.
With the demise of the OSHA ergonomic standard, the agency can be expected to fall back upon the general duty clause to issue such citations. Thus, in order to avoid regulatory citations and, more importantly, potentially costly worker’s compensation claims that may also involve Family and Medical Leave Act and Americans with Disabilities Act issues, the employer should seriously consider developing such a program.
Further, if and when OSHA develops another standard, it is highly likely to contain a “grandfather” clause that may allow an employer with a functioning program to avoid having to adopt an onerous program under a regulation.
Elements of a Program
The elements of a program are not difficult to identify and should include the following:
• Management commitment to the development of a program to identify and manage ergonomic related hazards;
• Training of appropriate managers in ergonomic hazards and how to address such hazards;
• Review of existing company records, such as OSHA logs, worker’s compensation;
• Analyze the particular jobs or tasks which have resulted in the repetitive stress injuries that are reflected on the OSHA 200 Log or worker’s compensation claims to determine whether such jobs or tasks contain any of the risk factors which may be the cause of such injuries, including force, awkward postures, repetition, vibration, or contact stress.
After identifying the potential risks factors, the employer’s ergonomic team should analyze this data to determine whether the job or task can be modified to reduce or eliminate such risk factors.
In order for the employer’s ergonomic team to conduct a meaningful job analysis, it will be necessary to include a wide range of skills including human resources, engineering, maintenance, medical, and legal.
In addition to conducting job analyses, the employer should develop a training program to inform employees about the causes of repetitive stress injuries and how to identify the signs and symptoms which the employees may be experiencing.
The employer should also develop a medical management program that seeks to provide timely intervention when employees report repetitive stress injury signs and symptoms and competent evaluation whether such signs and symptoms are related to a repetitive stress injury or to an unrelated health condition.
The employer should seek to identify competent medical professionals as an essential component of the job hazard analysis as well as the medical management program; particularly, such professionals should have demonstrated experience with treatment of repetitive stress injuries on behalf of other employers.
The employer should document its efforts to develop its ergonomic program, including creation of a written program and supporting documentation for the various elements of the program, as well as employee training and participation.
Conclusion
If the employer develops a plan of action that addresses the foregoing elements, he will realize the benefits of reduced worker’s compensation claims and regulatory liability.
Labor and the Law - October 2001 Render