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Ergonomics Program

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AGENCY:

Occupational Safety and Health Administration (OSHA), Department of Labor.

ACTION:

Final rule.

SUMMARY:

The Occupational Safety and Health Administration is issuing a final Ergonomics Program standard (29 CFR 1910.900) to address the significant risk of employee exposure to ergonomic risk factors in jobs in general industry workplaces. Exposure to ergonomic risk factors on the job leads to musculoskeletal disorders (MSDs) of the upper extremities, back, and lower extremities. Every year, nearly 600,000 MSDs that are serious enough to cause time off work are reported to the Bureau of Labor Statistics by general industry employers, and evidence suggests that an even larger number of non-lost worktime MSDs occur in these workplaces every year.

The standard contains an “action trigger,” which identifies jobs with risk factors of sufficient magnitude, duration, or intensity to warrant further examination by the employer. This action trigger acts as a screen. When an employee reports an MSD, the employer must first determine whether the MSD is an MSD incident, defined by the standard as an MSD that results in days away from work, restricted work, medical treatment beyond first aid, or MSD symptoms or signs that persist for 7 or more days. Once this determination is made, the employer must determine whether the employee's job has risk factors that meet the standard's action trigger. The risk factors addressed by this standard include repetition, awkward posture, force, vibration, and contact stress. If the risk factors in the employee's job do not exceed the action trigger, the employer does not need to implement an ergonomics program for that job.

If an employee reports an MSD incident and the risk factors of that employee's job meet the action trigger, the employer must establish an ergonomics program for that job. The program must contain the following elements: hazard information and reporting, management leadership and employee participation, job hazard analysis and control, training, MSD management, and program evaluation. The standard provides the employer with several options for evaluating and controlling risk factors for jobs covered by the ergonomics program, and provides objective criteria for identifying MSD hazards in those jobs and determining when the controls implemented have achieved the required level of control.

The final standard would affect approximately 6.1 million employers and 102 million employees in general industry workplaces, and employers in these workplaces would be required over the ten years following the promulgation of the standard to control approximately 18 million jobs with the potential to cause or contribute to covered MSDs. OSHA estimates that the final standard would prevent about 4.6 million work-related MSDs over the next 10 years, have annual benefits of approximately $9.1 billion, and impose annual compliance costs of $4.5 billion on employers. On a per-establishment basis, this equals approximately $700; annual costs per problem job fixed are estimated at $250.

DATES:

This final rule becomes effective on January 16, 2001.

Compliance. Start-up dates for specific provisions are set in paragraph (w) of § 1910.900. However, affected parties do not have to comply with the information collection requirements in the final rule until the Department of Labor publishes in the Federal Register the control numbers assigned by the Office of Management and Budget (OMB). Publication of the control numbers notifies the public that OMB has approved these information collection requirements under the Paperwork Reduction Act of 1995.

ADDRESSES:

In compliance with 28 U.S.C. 2112(a), the Agency designates the Associate Solicitor for Occupational Safety and Health, Office of the Solicitor, Room S-4004, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210, as the recipient of petitions for review of the standard.

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FOR FURTHER INFORMATION CONTACT:

OSHA's Ergonomics Team at (202) 693-2116, or visit the OSHA Homepage at www.osha.gov.

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SUPPLEMENTARY INFORMATION:

Table of Contents

The preamble and standard are organized as follows:

I. Introduction

II. Events Leading to the Standard

III. Pertinent Legal Authority

IV. Summary and Explanation

V. Health Effects

VI. Risk Assessment

VII. Significance of Risk

VIII. Summary of the Final Economic Analysis and Final Regulatory Flexibility Analysis

IX. Unfunded Mandates Analysis

X. Environmental Impact Statement

XI. Additional Statutory Issues

XII. Procedural Issues

XIII. Federalism

XIV. State Plan States

XV. OMB Review under the Paperwork Reduction Act of 1995

XVI. List of Subjects in 29 CFR Part 1910

XVII. The Final Ergonomics Program Standard

References to documents, studies, and materials in the rulemaking record are found throughout the text of the preamble. Materials in the docket are identified by their Exhibit numbers, as follows: “Ex. 26-1” means Exhibit 26-1 in Docket S-777. A list of the Exhibits and copies of the Exhibits are available in the OSHA Docket Office.

I. Introduction

A. Overview

This preamble discusses the data and events that led OSHA to issue the final Ergonomics Program standard (Section II), and the Agency's legal authority for promulgating the rule (Section III). This discussion is followed by a detailed paragraph-by-paragraph summary and explanation of the final rule, including the Agency's reasons for including each provision and OSHA's responses to the many substantive issues that were raised in the proposal and during the rulemaking (Section IV).

The summary and explanation of the standard is followed by a lengthy discussion of the evidence on the health effects that are associated with worker exposure to MSD hazards (Section V). The next section discusses the nature and degree of ergonomic-related risks confronting workers in general industry jobs (Section VI), and assesses the significance of those risks (Section VII). The preamble also contains a summary of the Final Economic and Final Regulatory Flexibility Analysis (Section VIII). Finally, the preamble describes the information collections associated with the final standard (Section XV).

B. The Need for an Ergonomics Program Standard

Work-related musculoskeletal disorders (MSDs) currently account for one-third of all occupational injuries and illnesses reported to the Bureau of Labor Statistics (BLS) by employers every year. Although the number of MSDs reported to the BLS, like all occupational injuries and illnesses, has declined by more than 20% since 1992, Start Printed Page 68263these disorders have been the largest single job-related injury and illness problem in the United States for the last decade, consistently accounting for 34% of all reported injuries and illnesses. In 1997, employers reported a total of 626,000 lost worktime MSDs to the BLS, and these disorders accounted for $1 of every $3 spent for workers' compensation in that year. This means that employers are annually paying more than $15 billion in workers' compensation costs for these disorders, and other expenses associated with work-related MSDs, such as the costs of training new workers, may increase this total to $45 billion a year. Workers with severe MSDs often face permanent disability that prevents them from returning to their jobs or handling simple, everyday tasks like combing their hair, picking up a baby, or pushing a shopping cart. For example, workers who must undergo surgery for work-related carpal tunnel syndrome often lose 6 months or more of work.

Thousands of companies have taken action to address and prevent these problems. OSHA estimates that 46 percent of all employees but only 16 percent of all workplaces in general industry are already protected by an ergonomics program, because their employers have voluntarily elected to implement an ergonomics program. (The difference in these percentages shows that many large companies, who employ the majority of the workforce, already have these programs, and that many smaller employers have not yet implemented them.) Based on its review of the evidence in the record as a whole, OSHA concludes that the final standard is needed to protect employees in general industry workplaces who are at significant risk of incurring a work-related musculoskeletal disorder but are not currently protected by an ergonomics program.

C. The Science Supporting the Standard

A substantial body of scientific evidence supports OSHA's effort to provide workers with ergonomic protection (see the Health Effects, Risk Assessment, and Significance of Risk sections (Sections V, VI, and VII, respectively) of this preamble, below). This evidence strongly supports two basic conclusions: (1) There is a positive relationship between work-related musculoskeletal disorders and employee exposure to workplace risk factors, and (2) ergonomics programs and specific ergonomic interventions can substantially reduce the number and severity of these injuries.

In 1998, the National Research Council/National Academy of Sciences found a clear relationship between musculoskeletal disorders and work and between ergonomic interventions and a decrease in the number and severity of such disorders. According to the Academy, “Research clearly demonstrates that specific interventions can reduce the reported rate of musculoskeletal disorders for workers who perform high-risk tasks” (Work-Related Musculoskeletal Disorders: The Research Base, ISBN 0-309-06327-2 (1998)). A scientific review of hundreds of peer-reviewed studies involving workers with MSDs by the National Institute for Occupational Safety and Health (NIOSH 1997) also supports this conclusion.

The evidence, which is comprised of peer-reviewed epidemiological, biomechanical and pathophysiological studies as well as other published evidence, includes:

II. More than 2,000 articles on work-related MSDs and workplace risk factors;

II. A 1998 study by the National Research Council/National Academy of Sciences on work-related MSDs;

  • A critical review by NIOSH of more than 600 epidemiological studies addressing the effects of exposure to workplace risk factors (1997);
  • A 1997 General Accounting Office report of companies with ergonomics programs;

I. Other evidence and analyses in the Health Effects section of the preamble to the final rule;

II. Hundreds of case studies from companies with successful ergonomics programs; and

I. Testimony and evidence submitted to the record by expert witnesses, workers, safety and health professionals, and others, which is discussed throughout the preamble to the final rule.

Taken together, this evidence indicates that:

  • High levels of exposure to ergonomic risk factors on the job lead to an increased incidence of work-related MSDs among exposed workers;
  • Reducing exposure to physical risk factors on the job reduces the incidence and severity of work-related MSDs;
  • Many work-related MSDs are preventable; and
  • Ergonomics programs are demonstrably effective in reducing risk, decreasing exposure and protecting workers against work-related MSDs.

As with any scientific field, research in ergonomics is ongoing. The National Academy of Sciences is currently undertaking another review of the science in order to expand on its 1998 study. OSHA has examined all of the research results in the record of this rulemaking in order to ensure that the final Ergonomics Program standard is based on the best available and most current evidence. Although more research is always desirable, OSHA finds that more than enough evidence already exists to demonstrate the need for a final standard. In the words of the American College of Occupational and Environmental Medicine, the world's largest occupational medical society, “there is an adequate scientific foundation for OSHA to proceed * * * and, therefore, no reason for OSHA to delay the rulemaking process * * *.”

D. Information OSHA Is Providing To Help Employers Address Ergonomic Hazards

Much literature and technical expertise on ergonomics already exists and is available to employers, both through OSHA and a variety of other sources. For example:

  • Information is available from OSHA's ergonomics Web page, which can be accessed from OSHA's World Wide Web site at http://www.osha.gov by scrolling down and clicking on “Ergonomics”;
  • Many publications, informational materials and training courses, which are available from OSHA through Regional Offices, OSHA-sponsored educational centers, OSHA's state consultation programs for small businesses, and through the Web page;
  • Publications on ergonomics programs, which are available from NIOSH at 1-800-35-NIOSH. NIOSH's Web page is also “linked” to OSHA's ergonomics Web page;
  • OSHA's state consultation programs, which will provide free on-site consultation services to employers requesting help in implementing their ergonomics programs; and
  • OSHA-developed compliance assistance materials, which are available as non-mandatory appendices to the standard, electronic compliance assistance training materials (e-cats) on specific tasks (e.g., lifting) or work environments (e.g., nursing homes). OSHA is also making several publications available on the web, such as the Easy Ergonomics Booklet, Fact Sheets, and so on. These materials can be obtained by accessing OSHA's Internet home page at www.OSHA.gov.

II. Events Leading to the Development of the Final Standard

In this final standard, OSHA has relied on its own substantial experience with ergonomics programs, the Start Printed Page 68264experience of private firms and insurance companies, and the results of research studies conducted during the last 30 years. Those experiences clearly show that: (1) Ergonomics programs are an effective way to reduce occupational MSDs; (2) ergonomics programs have consistently achieved that objective; (3) OSHA's standard is consistent with these programs; and (4) the standard is firmly grounded in the OSH Act and OSHA policies and experience. The primary lesson to be learned is that employers with effective, well-managed ergonomics programs achieve significant reductions in the severity and number of work-related MSDs that their employees experience. These programs also generally improve productivity and employee morale and reduce employee turnover and absenteeism (see Section VI of this preamble, and Chapters IV (Benefits) and V (Costs of Compliance) of OSHA's Final Economic Analysis (Ex. 28-1)).

OSHA's long experience with ergonomics is apparent from the chronology below. As this table shows, the Agency has been actively involved in ergonomics for more than 20 years.

OSHA Ergonomics Chronology
March 1979OSHA hires its first ergonomist.
Early 1980sOSHA begins discussing ergonomic interventions with labor, trade associations and professional organizations. OSHA issues citations to Hanes Knitwear and Samsonite for ergonomic hazards.
August 1983The OSHA Training Institute offers its first course in ergonomics.
February 1986OSHA publishes “Working Safely with Video Display Terminals,” its first publication concerning ergonomics as it applies to the use of computer technology
May 1986OSHA begins a pilot program to reduce back injuries through review of injury records during inspections and recommendations for job redesign using NIOSH's Work Practices Guide for Manual Lifting.
October 1986The Agency publishes a Request for Information on approaches to reduce back injuries resulting from manual lifting. (57 FR 34192)
November 1988OSHA/Iowa Beef Processors reach first corporate-wide settlement to reduce ergonomic hazards at 8 IBP locations nationwide.
July 1990OSHA/UAW/Ford corporate-wide settlement agreement commits Ford to reduce ergonomic hazards in 96 percent of its plants through a model ergonomics program.
August 1990The Agency publishes “Ergonomics Program Management Guidelines for Meatpacking Plants.”
Fall 1990OSHA creates the Office of Ergonomics Support and hires more ergonomists.
November 1990OSHA/UAW/GM sign agreement bringing ergonomics programs to 138 GM plants employing more than 300,000 workers. Throughout the early 90s, OSHA signed 13 more corporate-wide settlement agreements to bring ergonomics programs to nearly half a million more workers.
July 1991OSHA publishes “Ergonomics: The Study of Work,” as part of a nationwide education and outreach program to raise awareness about ways to reduce musculoskeletal disorders.
July 1991More than 30 labor organizations petition Secretary of Labor to issue an Emergency Temporary Standard on ergonomics.
January 1992OSHA begins a special emphasis inspection program on ergonomic hazards in the meatpacking industry.
April 1992Secretary of Labor denies petition for an Emergency Temporary Standard but commits to moving forward with section 6 (b) rulemaking.
August 1992OSHA publishes an Advance Notice of Proposed Rulemaking on ergonomics.
1993OSHA conducts a major survey of general industry and construction employers to obtain information on the extent of ergonomics programs in industry and other issues.
March 1995OSHA begins a series of meetings with stakeholders to discuss approaches to a draft ergonomics standard.
January 1997OSHA/NIOSH conference on successful ergonomic programs held in Chicago.
April 1997OSHA introduces the ergonomics web page on the Internet.
February 1998OSHA begins a series of national stakeholder meetings about the draft ergonomics standard under development.
March 1998OSHA releases a video entitled “Ergonomic Programs That Work.”
February 1, 1999OSHA begins small business (Small Business Regulatory Enforcement Fairness Act (SBREFA) review of its draft ergonomics rule, and makes draft regulatory text available to the public.
March 1999OSHA/NIOSH/Institute of Industrial Engineers hold Applied Ergonomics Conference in Houston
April 30, 1999OSHA's Assistant Secretary receives the SBREFA report on the draft ergonomics program proposal, and the Agency begins to address the concerns raised in that report.
November 23, 1999OSHA publishes its proposed ergonomics program standard.
March 2000OSHA/NIOSH/Institute of Industrial Engineers hold Applied Ergonomics Conference in Los Angeles
March-May 2000OSHA holds 9 weeks of public hearings and receives 18,337 pages of testimony from 714 witnesses.
November 23, 1999 through August 10, 2000OSHA receives nearly 11,000 comments and briefs consisting of nearly 50,000 pages collectively, into the docket of the ergonomics rulemaking.
October 27, 2000The Occupational Safety and Health Review Commission finds that manual lifting of nursing home patients is a known and recognized risk factor for lower back pain.

A. Regulatory and Voluntary Guidelines Activities

In 1989, OSHA issued the Safety and Health Program Management Guidelines (54 FR 3904, Jan. 26, 1989), which are voluntary program management guidelines to assist employers in developing effective safety and health programs. These program management guidelines, which are based on the widely accepted safety and health principles of management commitment and employee involvement, worksite hazard analysis, hazard prevention and control, and employee training, also serve as the foundation for effective ergonomics programs. In August 1990, OSHA issued the Ergonomics Program Management Guidelines for Meatpacking Plants (Ex. 2-13), which utilized the four program components from the safety and health management guidelines, supplemented by other ergonomics-specific program elements (e.g., medical management). The ergonomic guidelines were based on the best available scientific evidence, the best practices of successful companies with these programs, advice from the National Institute for Occupational Safety and Health (NIOSH), the scientific literature, and OSHA's experience with enforcement Start Printed Page 68265actions. Many commenters in various industries have said that they have implemented their ergonomics programs primarily on the basis of the OSHA ergonomics guidelines (Exs. 3-50, 3-61, 3-95, 3-97, 3-113, 3-121, 3-125), and there has been general agreement among stakeholders that these program elements should be included in any OSHA ergonomics standard (Exs. 3-27, 3-46, 3-51, 3-61, 3-89, 3-95, 3-113, 3-119, 3-160, 3-184).

OSHA also has encouraged other efforts to address the prevention of work-related musculoskeletal disorders. For example, OSHA has actively participated in the work of the ANSI Z-365 Committee, which was entrusted with the task of developing a consensus standard for the control of cumulative trauma disorders. The Agency also has sponsored and participated in more than 11 Ergonomics Best Practices conferences.

1. Petition for Emergency Temporary Standard

On July 31, 1991, the United Food and Commercial Workers Union (UCFW), along with the AFL-CIO and 29 other labor organizations, petitioned OSHA to take immediate action to reduce the risk to employees of exposure to ergonomic hazards (Ex. 2-16). The petition requested that OSHA issue an emergency temporary standard (ETS) on “Ergonomic Hazards to Protect Workers from Work-Related Musculoskeletal Disorders (Cumulative Trauma Disorders)” under section 6(c) of the Act. The petitioners also requested, consistent with section 6(c), that OSHA promulgate, within 6 months of issuance of the ETS, a permanent standard to protect workers from cumulative trauma disorders in both general industry and construction.

Based on the statutory constraints and legal requirements governing issuance of an ETS, OSHA calculated that the basis to support issuance of an ETS was not sufficient. Accordingly, on April 17, 1992, OSHA decided not to issue an ETS on ergonomic hazards (Ex. 2-29). OSHA agreed with the petitioners, however, that available information, including the Agency's experience and information in the ETS petition and supporting documents, supported the initiation of a rulemaking, under section 6(b)(5) of the Act, to address ergonomic hazards.

2. Advance Notice of Proposed Rulemaking

At the time OSHA issued the Ergonomic Program Management Guidelines for Meatpacking Plants (Ex. 2-13), the Agency also indicated its intention to begin the rulemaking process by asking the public for information about musculoskeletal disorders (MSDs). The Agency indicated that this could be accomplished through a Request for Information (RFI) or an Advance Notice of Proposed Rulemaking (ANPR) consistent with the Administration's Regulatory Program. Subsequently, OSHA formally placed ergonomics rulemaking on the regulatory agenda (Ex. 2-17) and decided to issue an ANPR on this topic.

In June 1991, OSHA sent a draft copy of the proposed ANPR questions for comment to 232 parties, including OSHA's advisory committees, labor organizations (including the petitioners), trade associations, occupational groups, and members of the ergonomics community (Ex. 2-18). OSHA requested comments on what questions should be presented in the ANPR. OSHA received 47 comments from those parties. In addition, OSHA met with the Chemical Manufacturers Association, Organization Resources Counselors, Inc., the AFL-CIO and several of its member organizations. OSHA reviewed the comments and submissions received and incorporated relevant suggestions and comments into the ANPR.

On August 3, 1992, OSHA published the ANPR in the Federal Register (57 FR 34192), requesting information for consideration in the development of an ergonomics standard. OSHA received 290 comments in response to the ANPR. Those comments have been carefully considered by the Agency in developing the final ergonomics program standard.

3. Outreach to Stakeholders

In conjunction with the process of developing the proposed ergonomics rule, OSHA established various communication and outreach efforts. These efforts were initiated in response to requests by individuals who would be affected by the rule (stakeholders) that they be provided with the opportunity to present their concerns about an ergonomics rule and that they be kept apprized of the efforts OSHA was making in developing a proposed rule. For example, in March and April 1994, OSHA held meetings with industry, labor, professional and research organizations covering general industry, construction, agriculture, healthcare, and the office environment. A list of those attending the meetings and a record of the meetings has been placed in the public record of this rulemaking (Ex. 26-1370).

In March, 1995, OSHA provided a copy of an early draft proposed ergonomics rule and preamble to these same organizations. Thereafter, during April 1995, OSHA met again with these groups to discuss whether the draft proposed rule had accurately responded to the concerns raised earlier. A summary of the comments has been placed in the public record (Ex. 26-1370).

During 1998, OSHA met with nearly 400 stakeholders to discuss ideas for a proposed standard. The first series of meetings was held in February in Washington, D.C. and focused on general issues, such as the scope of the standard and what elements of an ergonomics program should be included in a standard. The second series of meetings, held in July in Kansas City and Atlanta, focused on what elements and activities should be included in an ergonomics program standard. The third set of meetings was held in September in Washington, D.C. and emphasized revisions to the elements of the proposal based on previous stakeholder input. A summary of those meetings was placed on the OSHA web site and in the public docket (Ex. 26-1370). OSHA solicited input from its stakeholders again the next year, when it posted a working draft of its ergonomics standard after its release for Small Business Regulatory Enforcement Fairness Act (SBREFA) Panel review.

4. Small Business Regulatory Enforcement Fairness Act (SBREFA) Panel

In accordance with SBREFA and to gain insight from employers with small businesses, OSHA, the Office of Management and Budget (OMB), and the Small Business Administration (SBA) created a Panel to review and comment on a working draft of the ergonomics program standard. As required by SBREFA, the Panel sought the advice and recommendations of potentially affected Small Entity Representatives (SERs). A total of 21 SERs from a variety of industries participated in the effort. The working draft and supporting materials (a brief summary of a preliminary economic analysis, the risk assessment, and other materials) were sent to the SERs for their review. On March 24-26, 1999, the Panel participated in a series of discussions with the SERs to answer questions and receive comments. The SERs also provided written comments, which served as the basis of the Panel's final report (Ex. 23). The final SBREFA Panel Report was submitted to the Assistant Secretary on April 30, 1999. The findings and recommendations made by the Panel are addressed in the proposed rule, preamble, and economic analysis (see the discussion in Section Start Printed Page 68266VIII, Summary of the Final Economic Analysis and Regulatory Flexibility Analysis).

5. Issuance of Proposed Rule

On November 23, 1999, OSHA published a proposed ergonomics program standard to address the significant risk of work-related musculoskeletal disorders (MSDs) confronting employees in various jobs in general industry workplaces (64 FR 65768). The proposed standard would have required general industry employers covered by the standard to establish an ergonomics program containing some or all of the elements typical of successful ergonomics programs: management leadership and employee participation, job hazard analysis and control, hazard information and reporting, training, MSD management, and program evaluation, depending on the types of jobs in their workplace and whether a musculoskeletal disorder covered by the standard had occurred. Employers whose employees perform manufacturing or manual handling jobs were required to implement a basic ergonomics program in those jobs.

The basic program would have included the following elements: management leadership and employee participation, and hazard information and reporting. If an employee in a manufacturing or manual handling job experienced an OSHA-recordable MSD determined by the employer to be covered by the standard, the employer would have been required to implement a full ergonomics program for that job and all other jobs in that establishment involving the same physical work activities. The full program would have included, in addition to the elements in the basic program, a hazard analysis of the job; the implementation of engineering, work practice or administrative controls to eliminate or substantially reduce the hazards identified in that job; training the employees and their supervisors in that job; and providing MSD management, including where appropriate, temporary work restrictions and access to a health care provider or other professional if a covered MSD occurred. General industry employees in jobs other than manufacturing or manual handling who experienced a covered MSD determined by the employer to be covered by the standard also would have been required by the proposal to implement an ergonomics program for those jobs.

6. Solicitation of Public Comment on the Proposed Rule

The notice of proposed rulemaking invited public comment on any aspects of the proposed ergonomics standard until the close of the comment period ending on February 1, 2000.

After receiving a number of requests for an extension of the written comment period, OSHA published a Federal Register notice (65 FR 4795) to extend the deadline for public, pre-hearing comments to March 2, 2000 and to reschedule the informal public hearings in Washington, D.C. to begin March 13, 2000 and run through April 7, 2000. Subsequently, the Agency published a Federal Register notice (65 FR 19702) to re-schedule and extend the hearings in Portland, OR by 2 days, from April 24, 2000 through May 3, 2000. In addition, a final week of informal public hearings (65 FR 13254) was scheduled to take place in Washington, D.C. from May 8, 2000 through May 12, 2000.

During the early stages of the public comment period, it was brought to OSHA's attention that the proposed ergonomics program standard published on November 23, 1999 (64 FR 65768) did not provide an analysis of the economic impacts of the rule on State and local governments, the United States Postal Service, or the railroads. To provide this additional information and analysis, OSHA published a supplement (65 FR 33263) to the Agency's Preliminary Economic Analysis and Initial Regulatory Flexibility Analysis (Ex. 28-1) of the economic impact of the Ergonomics Program Rule. OSHA also established pre-hearing and post-hearing comment periods ending June 22, 2000 and August 10, 2000, respectively, to address the analysis of economic impacts in those three industries. An informal public hearing was held in Atlanta, GA on July 7, 2000, to provide an opportunity for witnesses to question the OSHA Panel on the supplemental analysis.

Collectively, the public hearings concerning the proposed ergonomics program standard generated 18,337 pages of transcript based on testimony from 714 hearing witnesses, including those representing public entities, private industry, industry associations, labor unions and private individuals.

More than 5,900 pre-hearing comments were filed in response to the proposed ergonomics program standard. A 45-day post-hearing comment period and a 45-day summary and brief period were established, with final briefs due to be postmarked no later than August 10, 2000. A total of 240 post hearing submissions were received. Collectively, a total of nearly 11,000 exhibits consisting of nearly 50,000 pages were submitted over the whole period.

B. Other OSHA Efforts In Ergonomics

In 1996, OSHA developed a strategy to address ergonomics through a four-pronged program including training, education, and outreach activities; study and analysis of the work-related hazards that lead to MSDs; enforcement; and rulemaking.

1. Training, Education, and Outreach

a. Training. The OSHA ergonomics web page has been an important part of the Agency's education and outreach effort. Other OSHA efforts in training, education and outreach include the following:

  • Grants to train workers and employees about hazards and hazard abatement.
  • Three training courses in ergonomics through the OSHA Training Institute available for OSHA compliance officers, one of which is open to the public;
  • One day training for nursing home operators, at more than 500 nursing homes in each of seven targeted states;
  • Booklets on ergonomics, ergonomics programs, and computer workstations, such as “Ergonomics Program Management Guidelines for Meatpacking Plants” and “Ergonomics: the Study of Work,” both of which are available on OSHA's Website.
  • Videotapes on ergonomics programs in general industry and specifically in nursing homes.

OSHA has awarded almost $3 million for 25 grants addressing ergonomics, including lifting hazards in healthcare facilities and hazards in the red meat and poultry industries. These grants have enabled workers and employers to identify ergonomic hazards and implement workplace changes to abate these hazards.

Some grant program highlights follow:

  • The United Food and Commercial Workers International Union (UFCW) conducted joint labor-management ergonomics training at a meatpacking plant that resulted in a major effort at the plant to combat cumulative trauma disorders. The program was so successful that management asked the UFCW to conduct the ergonomics training and work with management at some of its other facilities.
  • The University of California at Los Angeles (UCLA) and the Service Employees International Union (SEIU) both had grants for preventing lifting injuries in nursing homes. SEIU developed a training program that was used by UCLA to train nursing home workers in California. UCLA also worked with some national back injury prevention Start Printed Page 68267programs. At least one of the nursing home chains has replicated the program in other states.
  • Mercy Hospital in Des Moines, Iowa, had a grant to prevent lifting injuries in hospitals. It trained over 3,000 hospital workers in Des Moines and surrounding counties. It had a goal of reducing lost work days by 15 percent. The goal was surpassed, and, six months after the training, none of those trained experienced a lost workday due to back injury.
  • Hunter College in New York City trains ergonomics trainers for the United Paperworkers International Union. The trainers then return to their locals and conduct ergonomics training for union members. As a result of this training, changes are being made at some workplaces. Examples include purchasing new equipment that eliminates or reduces workers' need to bend or twist at the workstation, rotating workers every two hours with a ten-minute break before each rotation, and modifying workstations to reduce worker strain.

b. Education and Outreach. To provide a forum to discuss ergonomic programs and to augment information in the literature with the experience of companies of different sizes and from a variety of industries, OSHA and NIOSH sponsored the first in a series of conferences that brought industry, labor, researchers, and consultants together to discuss what works in reducing MSDs. The 1997 OSHA and NIOSH conference was followed by 11 more regional conferences across the country. OSHA and NIOSH held the second national conference on ergonomics in March of 1999. More than 200 presentations were given at the conferences on how companies have successfully reduced MSDs. Presentations were made by personnel from large and small companies in many different industries.

Other examples of successful ergonomics programs have come from OSHA's Voluntary Protection Program (VPP). The VPP program was established by OSHA to recognize employers whose organizations have exemplary workplace safety health programs. Several sites that have been accepted into VPP have excellent ergonomics programs.

In addition to OSHA's enforcement efforts, the Agency's Ergonomics Program Management Guidelines for Meatpacking Plants (“Guidelines”) (Ex. 2-13) are viewed by many as essential to the implementation of successful workplace programs addressing ergonomic hazards. For example, in contrasting OSHA's proposal to the Guidelines, IBP Inc.'s Bob Wing acknowledged that the Guidelines had been successful (Ex. 30-4046, p.1). Similarly, the American Meat Institute (“AMI”), the main representative for the U.S. meat industry, including 276 meat packers and processors, who operate 559 facilities, acknowledged that the industry worked with OSHA on the Guidelines, and has been using them for nearly ten years (Ex. 30-3677, p.1). The AMI notes that the Guidelines work and that the industry has made substantial progress in addressing ergonomic issues since development of the Guidelines (id. at 1-4). The AMI recommended that the Guidelines be extended throughout general industry (id. at 4). The utility of OSHA's Guidelines also was hailed by the United Food and Commercial Workers' Union, which noted that upon publication of the Guidelines, industry began to respond both from the standpoint of technology as well as ergonomics programs (Ex. 32-210-2, pp. 25-26). The success of the Guidelines led to their use and acceptance in other industries. The poultry industry appears to have secured substantial reductions in chronic MSDs from adherence to the principles in the document (Ex. 30-3375, p.1.).

2. Ergonomics Best Practices Conferences

During the period from Sept. 17, 1997 through Sept. 29, 1999, OSHA and its Regional Education Centers co-sponsored 11 Ergonomics Best Practices Conferences. These Conferences were designed to provide good examples of practical and inexpensive ergonomics interventions implemented by local companies. The concept was that if OSHA and its Regional partners could initiate the development of a network of local employers, contractors, and educators to provide practical information to solve ergonomics problems, it would be assisting employers in providing a workplace for employees that would be “free of recognized safety and health hazards.” To date, attendance has exceeded 2,400 participants, including employers, contractors, and employees. Finally, OSHA has made hundreds of outreach presentations to labor, trade associations, large and small businesses, and professional organizations during the development of the proposed rule.

3. Enforcement

In the absence of a federal OSHA ergonomics standard, OSHA has addressed ergonomics in the workplace under the authority of section 5(a)(1) of the OSHAct. This section is referred to as the General Duty Clause and requires employers to provide work and a work environment free from recognized hazards that are causing or are likely to cause death or serious physical harm.

OSHA has successfully issued over 550 ergonomics citations under the General Duty Clause. In the majority of these cases, cited employers have recognized that the implementation of ergonomics programs is in their best interest and that of their employees. Examples of companies cited under the General Duty Clause for ergonomics hazards and which then realized a substantial reduction in injuries and illnesses after implementing ergonomics programs include: the Ford Motor Company, Empire Kosher Foods, Sysco Foods, and the Kennebec Nursing Home.

Two cases have been decided so far by the Occupational Safety and Health Review Commission.

In the first general duty clause case litigated by the Occupational Safety and Health Review Commission, Pepperidge Farm, the Review Commission recognized that excessive lifting and excessive repetitions were recognized ergonomic hazards that had caused and were likely to cause serious physical harm to employees whose work tasks required such activity. The Commission specifically noted that carpal tunnel syndrome and other soft tissue injuries found at the cited plant were caused by work tasks; the Commission relied principally on direct medical evidence, expert medical opinion, the incidence of injury, and the epidemiological studies and testimony in the record in reaching this finding. The Commission also agreed that an employer could be required to undertake a process-based, incremental approach to abating ergonomic hazards. The citations relating to the excessive lifting hazard were affirmed by the Commission, while those relating to the excessive repetitions were vacated based on a finding that the Secretary had failed to prove feasible means of abatement in addition to those found to have been undertaken by the company.

In the second general duty clause case litigated by the Commission, Beverly Enterprises, the Commission held that the company's practices for lifting patients in its nursing homes exposed its nursing assistants to a serious recognized hazard. Beverly's nursing assistants suffered a disproportionate number of cases of lower back pain, which was often so severe that the employee would be off work for long periods of time, in some cases six months to over a year. The Commission found that manual lifting of nursing home residents is a known and recognized risk factor for lower back pain and that the company recognized the hazard. Start Printed Page 68268

When serious physical harm cannot be documented in the work environment but hazards have been identified by OSHA, compliance officers both discuss the hazards with the employer during the closing conference of an inspection and write a letter to the employer. These letters are called “Ergonomic Hazard Alert Letters.” From fiscal year 1997 through October 3, 2000, approximately 498 such letters have been sent to public and private sector employers under Section 20 of the OSH Act. These letters involve no penalty and are strictly consultative in nature; they reflect OSHA's responsibility to provide consultation on ergonomics to employers. Ergonomic Hazard Alert Letters have been sent to employers in approximately 50% of OSHA's ergonomic inspections.

Since ergonomic solutions vary from one industry to another, OSHA has provided both general and industry-specific training to its compliance officers. Currently, the OSHA Training Institute (OTI) in Des Plaines, IL, offers three main ergonomic courses to OSHA compliance staff: Principles of Ergonomics Applied to Work-Related Musculoskeletal and Nerve Disorders (#225); Ergonomics Compliance (#325), an advanced ergonomics course; and Nursing Home Enforcement Training (#840). A fourth course, Healthcare (#336), has been in development and will be piloted on November 14, 2000 through November 17, 2000. That course will be designed to help OSHA compliance officers, as well as employers, to identify ergonomic and other hazards within healthcare facilities, with a specific emphasis on hospitals. Over 600 OSHA compliance staff members have been trained in these courses within the past three years alone. The courses typically cover three weeks of material.

Currently, the Principles of Ergonomics Applied to Work-Related Musculoskeletal and Nerve Disorders course also is open to the public through OTI's 12 Regional Education Centers throughout the United States. Since that course has been available nationwide, public interest has been high, and the Education Centers have been scheduling courses on a regular basis to meet the constant demand. Although the new Healthcare Course is available currently only to OSHA compliance officers, after the pilot period ends it will be open to the public on a limited basis.

In addition to education and training opportunities, OSHA has appointed one Regional Ergonomics Coordinator in each of OSHA's 10 regional offices, and one Area Office Ergonomics Coordinator in each area office. These coordinators meet on a monthly basis to discuss recent inspections, case developments, and scientific literature on ergonomics; to share knowledge of ergonomic solutions; and to ensure that enforcement resources are provided to compliance staff for enforcement. A PhD level, professionally certified ergonomist serves as the National Ergonomics Enforcement Coordinator in OSHA's Directorate of Compliance Programs.

4. Corporate-Wide Settlement Agreements

Among the companies that have been cited for MSD hazards, 13 companies covering 198 facilities agreed to enter into corporate-wide settlement agreements with OSHA. These agreements were primarily in the meat processing and auto assembly industries, but there also were agreements with telecommunications, textile, grocery warehousing, and paper companies. As part of these settlement agreements, the companies agreed to develop ergonomics programs based on OSHA's Meatpacking Guidelines (Ex. 2-13) and to submit information on the progress of their programs.

OSHA held a workshop in March 1999, in which 10 companies described their experience under their settlement agreement and with their ergonomics programs. All the companies that reported results to OSHA showed a substantially lower severity rate for MSDs since implementing their programs (Ex. 26-1420). In addition, most companies reported lower workers' compensation costs, as well as higher productivity and product quality. A report from the March 1999 workshop on corporate-wide settlement agreements summarizing the results achieved by the 13 companies involved has been placed in the docket (Ex. 26-1420). Only 5 of the 13 companies consistently reported the number of MSD cases or MSD case rates. All five companies that reported data on MSD-related lost workday rates showed a significant decline in the number of lost workdays. None of the companies that reported severity statistics showed an increase in lost workdays as a result of the ergonomics program.

Similarly, the success of OSHA enforcement coupled with settlements requiring comprehensive ergonomics programs was confirmed by the United Food and Commercial Workers International Union. The union recognized that “* * * [t]he majority of our successful programs in the meatpacking and poultry industries were propelled by OSHA enforcement. Ergonomic settlement agreements and corporate-wide settlement agreements (CWSAs) * * * demonstrate industry recognition of the existence of MSD hazards and the elements of a program to prevent worker injuries arising from exposure to these hazards” (Ex. 32-210-2, p. 5). The UFCW confirmed the efficacy of these agreements and resulting programs through a number of examples. One was that of IBP's Dakota City meatpacking plant that implemented a comprehensive program as a result of citations and subsequent settlement agreement. Cost savings attributed to the program “* * * were realized in the following areas: [employee] turnover was down significantly * * *; [MSD] incidence dropped dramatically; surgeries fell; [and] workers' compensation costs were reduced significantly” (id. at 9).

C. Summary

As this review of OSHA's activities in the last 20 years shows, the Agency has considerable experience in addressing ergonomics issues. OSHA also has used all of the tools authorized by the Act—enforcement, consultation, training and education, compliance assistance, the Voluntary Protection Programs, and the issuance of voluntary guidelines—to encourage employers to address musculoskeletal disorders, the single largest occupational safety and health problem in the United States today. These efforts, and the voluntary efforts of employers and employees, have led to the recent 5-year decline in the number of reported lost workday ergonomics injuries. However, in 1997, there were still more than 626,000 lost workday MSD injuries and illnesses reported.

Promulgation of an ergonomics program standard will add the only tool the Agency has so far not deployed against this hazard—a mandatory standard—to these other OSHA and employer-driven initiatives. Over the first 10 years of the standard's implementation, OSHA predicts that more than 3 million lost workday musculoskeletal disorders will be prevented in general industry. Ergonomics programs can lead directly to improved product quality by reducing errors and rejection rates. In an OSHA survey of more than 3,000 employers, 17 percent with ergonomics programs reported that their programs had improved product quality. In addition, a large number of case studies reported in the literature describe quality improvements. Thus, in addition to better safety and health for workers, the standard will save employers money, improve product quality, and Start Printed Page 68269reduce employee turnover and absenteeism.

Section III. Legal Authority

A. General Criteria for OSH Act Standards

The purpose of the Occupational Safety and Health Act (“OSH Act”) is “to assure so far as possible every working man and woman in the nation safe and healthful working conditions and to preserve our human resources.” 29 U.S.C. 651(b). To further this goal, Congress authorized the Secretary of Labor to promulgate and enforce occupational safety and health standards. Section 6(b) of the OSH Act, 29 U.S.C. 655(b) (authorizing promulgation of standards pursuant to notice and comment); 654(b) (requiring employers to comply with OSH Act standards). This standard is being issued pursuant to section 6(b).

The OSH Act defines an “occupational safety and health standard” as “a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” Section 3(8) of the Act, 29 U.S.C. 652(8).

A standard is “reasonably necessary or appropriate” within the meaning of section 3(8) if it (1) substantially reduces or eliminates a significant risk of material impairment to worker health, safety, or functional capacity; (2) is technologically and economically feasible to implement; (3) is cost effective; (4) is consistent with prior agency action or supported by a reasoned justification for departing from prior agency action; (5) is supported by substantial evidence; and (6) is at least as protective as any applicable national consensus standard. 58 FR 16612, 16614 (March 30, 1993). To fulfill the congressional purpose underlying the Act, all OSH Act standards must be highly protective. Id. at 16614-15.

OSHA's determination that a particular level of risk is “significant” is based largely on policy considerations. See Industrial Union Dep't, AFL-CIO v. Marshall, 448 U.S. 607, 656 n. 62 (1980) (Benzene). The factors that enter into such a determination include the seriousness of the injuries or illnesses a standard will prevent, the likelihood that a particular employee will contract such an injury or illness, and the total number of employees affected. Where the standard seeks to prevent fatal illnesses and injuries, OSHA has generally considered an excess risk of 1 death per 1000 workers over a 45-year working lifetime as clearly representing a significant risk. See Benzene, 448 U.S. at 646; UAW v. Pendergrass, 878 F.2d 389, 393 (D.C. Cir. 1989) (Formaldehyde); Building & Constr. Trades Dep't v. Brock, 838 F.2d 1258, 1264 (D.C. Cir. 1988) (Asbestos). But nonfatal injuries and illnesses are often disabling and debilitating, and death is clearly not a precondition to a finding of significant risk of material impairment. See American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 506 n. 25 (1981) (Cotton Dust) (upholding OSHA's finding that cotton dust exposure at levels that caused chronic and irreversible pulmonary disease presented a significant risk to workers); AFL-CIO v. OSHA, 965 F.2d 962, 975 (11th Cir. 1992) (upholding OSHA's finding that “there is a level at which [sensory] irritation becomes so severe that employee health and job performance are seriously threatened.”); Formaldehyde, 878 F.2d at 396-399 (upholding OSHA's finding that exposure limit of 1 ppm would eliminate significant risk of sensory irritation due to formaldehyde exposure); United Steelworkers v. Marshall, 647 F.2d 1189, 1245-51 (D.C. Cir. 1980), cert. denied, 453 U.S. 913 (1981) (Lead I) (upholding OSHA's determination that it was appropriate and necessary to lower lead exposures to reduce cases in which workers experience subclinical effects of lead exposure because such subclinical effects are precursors of serious, lead-related disease); Forging Indus. Ass'n v. Secretary of Labor, 773 F.2d 1436, 1444-46 (4th Cir. 1985) (en banc) (Noise) (upholding OSHA's significant risk finding that a substantial percentage of workers exposed to existing workplace noise levels would suffer material noise-induced hearing loss). See also American Dental Ass'n v. Martin, 984 F.2d 823, 826 (7th Cir.), cert. denied, 510 U.S. 859 (1993) (Bloodborne Pathogens) (noting that, in addition to causing death, AIDS and Hepatitis B cause protracted pain and disability).

A standard is technologically feasible if the protective measures it requires already exist, can be brought into existence with available technology, or can be created with technology that can reasonably be expected to be developed. See Cotton Dust, 452 U.S. at 513; Lead I, 647 F.2d at 1272; American Iron & Steel Inst. v. OSHA, 939 F.2d 975, 980 (D.C. Cir. 1991) (Lead II).

A standard is economically feasible if industry can absorb or pass on the costs of compliance without threatening the industry's long-term profitability or competitive structure. See Cotton Dust, 452 U.S. at 530 n. 55; Lead I, 647 F.2d at 1272; Lead II, 939 F.2d at 980.

A standard is cost effective if the protective measures it requires are the least costly of the available alternatives that achieve the same level of protection. Cotton Dust, 453 U.S. at 514 n. 32; UAW v. OSHA, 37 F.3d 665, 668 (D.C. Cir. 1994) (Lockout/Tagout II).

Within the framework of these principles, OSHA has considerable discretion (“virtually unlimited discretion,” in the words of the Lead I decision, 647 F.2d at 1230) in choosing the measures that are reasonably necessary or appropriate to reduce significant risk. A standard may address the hazards associated with an industry (e.g., logging, 29 CFR 1910.266), a kind of work (e.g., hazardous waste cleanup, 29 CFR 1910.120), a category of equipment (e.g., respirators, 29 CFR 1910.134); an environmental area (e.g., confined spaces, 29 CFR 1910.146), a lack of information (e.g., hazard communication, 29 CFR 1910.1200), a class of harmful agents (e.g., bloodborne pathogens, 29 CFR 1910.1030), or may require general measures reasonably necessary and appropriate for safety (e.g., safety and health programs for construction, 29 CFR 1926.20(b)). Depending on the nature of the safety and health issues, some standards require highly specific control measures. E.g., 29 CFR 1926.652 (excavations). Others require the employer to conduct a hazard assessment and establish measures meant to address the problems found. E.g., 29 CFR 1910.119 (process safety management). A typical standard for a toxic chemical will contain permissible exposure limits, a control hierarchy for reaching those limits, and provisions for assessing exposure, medical examinations, medical removal, and training. E.g., 29 CFR 1910.1025 (lead). Some toxic chemical standards also mandate specific work practices that must be used to control exposures. E.g., 29 CFR 1910.1029 (coke oven emissions); 29 CFR 1926.1101 (asbestos). Vaccination against Hepatitis B is one of the protective measures required by the bloodborne pathogens standard, 29 CFR 1910.1030. Medical removal protection benefits have been mandated when they are needed to encourage employees to participate in medical surveillance. 29 CFR 1910.1025 (lead); 29 CFR 1910.1027 (cadmium); 29 CFR 1910.1048 (formaldehyde); 29 CFR 1910.1052 (methylene chloride). Job hazard analysis and employee training are cornerstones of some OSHA standards. E.g., 29 CFR 1910.147 (lockout/tagout). Start Printed Page 68270

Section 6(b)(7) of the Act, 29 U.S.C. 665(b)(7), requires standards to include provisions warning employees of hazards, the means needed to protect themselves against those hazards, and, where appropriate, medical examinations or tests to determine whether the health of employees has been adversely affected:

Any standard promulgated under this subsection shall prescribe the use of labels or other appropriate forms of warning as are necessary to insure that employees are apprised of all hazards to which they are exposed, relevant symptoms and appropriate emergency treatment, and proper conditions and precautions of safe use or exposure. Where appropriate, such standard shall also prescribe suitable protective equipment and control or technological procedures to be used in connection with such hazards and shall provide for monitoring or measuring employee exposure at such locations, and in such manner as may be necessary for the protection of employees. In addition, where appropriate, any such standard shall prescribe the type and frequency of medical examinations or other tests which shall be made available, by the employer or at his cost, to employees exposed to such hazards in order to most effectively determine whether the health of such employees is adversely affected by such exposure.

B. Section 6(b)(5)

Standards dealing with “toxic materials or harmful physical agents” must, in addition to meeting the “reasonably necessary or appropriate” test of section 3(8), conform to section 6(b)(5) of the Act, 29 U.S.C. 655(b)(5). That section provides:

The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life.

The standards that are governed by section 6(b)(5) are sometimes referred to as “health” standards, while non-6(b)(5) standards are often referred to as “safety” standards. In enacting section 6(b)(5), Congress recognized “that there were special problems in regulating health risks as opposed to safety risks. In the latter case, the risks are generally immediate or obvious, while in the former, the risks may not be evident until a worker has been exposed for long periods of time to particular substances. It was to ensure that the Secretary took account of these long-term risks that Congress enacted § 6(b)(5).” Benzene, 448 U.S. at 649 n. 54. According to its legislative sponsor, section 6(b)(5) is intended to require OSHA to take into account the potential that an employee may be exposed to the hazard for his entire working lifetime “so that we can get at something which might not be toxic now, if he works in it a very short time, but if he works in it the rest of his life it might be very dangerous.” (Remarks of Senator Dominick in colloquy with Senator Williams, Leg. Hist. at 503).

Section 6(b)(5) directs OSHA to set the standard which will, to the extent feasible, protect employees from material impairment to their health even if they are exposed regularly to the toxic chemical or harmful physical agent for their entire working life. Section 6(b)(5) thus requires that any standard governed by that section must reduce significant risk to the lowest feasible level. See Cotton Dust, 452 U.S. at 509. Safety standards, which are not governed by section 6(b)(5), need not reduce significant risk to the lowest feasible level but must provide a high degree of employee protection to be consistent with the purpose of the Act. 58 FR at 16614-15. Safety standards may therefore “deviate only modestly from the stringency required by § 6(b)(5) for health standards.” Lockout/Tagout II, 37 F.3d at 669.

The most important consideration in construing the scope of section 6(b)(5), as with any statutory provision, is the language of the statute itself. In many cases, it is obvious whether a hazard is a “toxic material” or “harmful physical agent” subject to section 6(b)(5). Other hazards are less clear cut. OSHA has looked to several factors in determining whether a standard fits within section 6(b)(5). These include: Is the hazard likely to cause harm promptly or after a short period of exposure, or does harm occur only after a lengthy period of exposure? Is the connection between exposure and harm apparent, or is it hidden and subtle? Is the harm coincident with exposure, or is there a latency period with harm frequently manifesting itself long after exposure has ended? See Benzene, 448 U.S. at 649 n. 54; UAW v. OSHA, 938 F.2d 1310, 1313 (D.C. Cir. 1991) (Lockout/Tagout I); National Grain & Feed Ass'n v. OSHA, 866 F.2d 717, 733 (5th Cir. 1989) (Grain Dust).

Because the hazardous exposures regulated by this standard cannot be neatly categorized by the factors discussed above, whether this standard is governed by section 6(b)(5) poses difficult legal issues. Some commenters supported characterizing the rule as a section 6(b)(5) rule (Ex. 32-339-1 at p. 15 (AFL-CIO), while others opposed it. Ex. 32-368-1 at p. 41-44 (National Coalition on Ergonomics); Ex. 32-206-1 at p. 32 (American Iron & Steel Institute); Ex. 22-337-1 at pp. 3-7 (Integrated Waste Service Association); Ex. 30-1722 at pp. 33-35 (Chamber of Commerce). For a variety of reasons, OSHA concludes that the standard is not subject to section 6(b)(5).

First, the language of the statute itself suggests that this rule is not governed by section 6(b)(5). That provision applies to “toxic materials or harmful physical agents.” The “toxic materials” to which section 6(b)(5) refers include chemicals that are harmful if breathed and/or ingested, such as asbestos, lead, and mercury. S. Rep. No. 91-1282, 91st Cong., 2d Sess. at 2, reprinted in Committee Print, Legislative History of the Occupational Safety and Health Act of 1970, (Leg. Hist.) at 142. Ergonomic risk factors are clearly not a toxic material. The “harmful physical agents” to which Congress referred include laser radiation, ultrasonic energy, ionizing radiation, noise, and vibration. Id. at 142-43. Of the harmful physical agents mentioned by Congress, only vibration is a risk factor addressed by the ergonomics standard. The remaining risk factors addressed by this standard—force, repetition, awkward postures, and contact stress—-are fundamentally dissimilar from the harmful physical agents discussed by Congress in that they relate to the position, movement, and loading on the tissues of a worker's body rather than an external agent acting on the body. See Pulaski v. California Occupational Safety & Health Standards Board, 90 Cal. Rptr. 2d 54, 66 (Cal. Ct. App. 1999) (“a repetitive motion injury is neither a ‘toxic material’ nor a ‘harmful physical agent.’ ”). Therefore, the language and legislative history of the Act indicate that the majority of the risk factors addressed by this rule are not the type of hazards Congress intended to regulate under section 6(b)(5).

In addition, the hazards addressed by the rule differ from those addressed by section 6(b)(5). A lengthy period of exposure—years, decades, or a working lifetime—is not necessary to create a substantial risk of MSDs. As discussed below, both acute and chronic exposures to ergonomic risk factors can result in MSDs. And, although MSDs frequently develop gradually as a result of exposure over time, the period of time necessary can be days, weeks, or months, rather than the working lifetime referred to in the text of section 6(b)(5). Moreover, MSDs are unlike illnesses, such as cancer, damage to the reproductive system, and kidney failure, that can result from exposure to toxic chemicals and appear long after the Start Printed Page 68271exposure ceased even though the exposure caused no overt symptoms while it was occurring. An employee who is beginning to suffer a work-related MSD will frequently recover fully after the exposure to ergonomic risk factors ceases. For that reason, the standard requires that an employee who develops a work-related MSD be restricted from participating in work activities or removed from exposure that will worsen the condition.

The ability of employers and employees to generally recognize a cause-and-effect relationship between ergonomic risk factors and many MSDs also indicates that this final standard is a non-6(b)(5) rule. In recent years, as both employers and employees have become more aware of the connection between workplace risk factors and MSDs (see Tr. 5817-19), employers have reported over 600,000 work-related MSDs that result in lost workdays each year (64 FR at 65931). Employees themselves are often able to recognize when MSDs result from exposure to risk factors in the workplace. As OSHA noted in the proposal: “Many employers have told OSHA that talking with employees is a quick and easy way to find out what kind of problems are in the job. They said that talking with employees is often the best way to identify the causes of the problem and to identify the most cost-effective solutions to it.” 64 FR at 65805 (citing Ex. 26-1370). Testimony at the public hearing made the same point. Dr. Suzanne Rodgers, a physiologist with 32 years' experience in industrial ergonomics, testified that the companies she had worked with learn about ergonomic problems by having employees tell them when a problem exists. (Tr. 2144). Similarly, David Alexander, a certified professional ergonomist with more than 25 years experience, testified that encouraging employees to report early signs and symptoms of developing MSDs was a key feature of a successful ergonomics program. (Tr. 2145-46).

Further, Congress provided for special treatment of health hazards in section 6(b)(5) because it recognized that employers had little incentive to control exposures to toxic chemicals and harmful physical agents when there is a long period between exposure to a hazard and the manifestation of an illness. “In such instances a particular employer has no economic incentive to invest in current precautions, not even in the reduction of workmen's compensation costs, because he seldom will have to pay for the consequences of his own neglect.” Leg. Hist. at 144. However, in this respect too, the ergonomics standard is more like a typical safety standard than a health standard because many of the costs of such injuries in terms of workers' compensation claims and lost productivity are borne by employers as MSDs occur. Thus, the ergonomics standard does not implicate section 6(b)(5)'s concern about hazardous exposures that lead to illnesses after lengthy exposure and therefore require special attention because employers can defer or avoid the costs associated with such illnesses.

Finally, the type of information on which this standard is based is far more characteristic of a safety standard than a section 6(b)(5) health standard. The risk assessment for this standard, as for a typical safety standard, is based on the number of injuries that have resulted from past exposures to the hazard being regulated and the percentage of those injuries that are preventable. By contrast, for a typical health standard, the risk assessment is based on mathematical projections to determine the significance of the risk at various levels of exposure. See, e.g., Formaldehyde, 878 F.2d at 392-96 (discussing OSHA's quantitative risk assessment for formaldehyde exposure). In the proposal, OSHA recognized that the risk assessment methodology for this standard was similar to that for a safety standard rather than a typical health standard:

There is no need, in the case of musculoskeletal disorders, for OSHA to engage in risk modeling, low-dose extrapolation, or other techniques of projecting theoretical risk to identify the magnitude of the risk confronting workers exposed to ergonomic risk factors. The evidence of significant risk is apparent in the annual toll reported by the Bureau of Labor Statistics, the vast amount of medical and indemnity payments being made to injured workers and others every year * * * and the lost production to the U.S. economy imposed by these disorders.

64 FR at 65979.

In the NPRM, OSHA preliminarily concluded that the proposed ergonomics standard was a section 6(b)(5) standard. The NPRM stated that MSDs are caused by chronic and not by short-term exposures. 64 FR at 66057. Some commenters contended that this statement was inconsistent with OSHA's proposed definition of MSD and the inclusion of “traumatic” injuries in its risk assessment. Ex. 22-337-1 at p. 7 (Integrated Waste Service Association); Ex. 32-241-4 at pp. 197-99 (Anheuser-Busch & United Parcel Service); Ex. 32-300-1 at pp. 15-16 (Edison Electric Institute). The proposed definition of MSD included musculoskeletal disorders other than those caused by accidents and was intended to include, e.g., back injuries caused by lifting (for employees for whom manual handling is a core job element) without regard to whether the injury resulted from a particular exertion or the cumulative effect of numerous lifting exertions. As OSHA elsewhere explained:

The pathogenesis of work-related MSDs can refer to either single, point-in-time injuries, associated with work tasks that result in activities in which tissue tolerance is acutely exceeded, or circumstances in which the performance of specific work tasks or combinations in which the performance of specific work tasks or combinations of tasks over a prolonged period of time result in small and repeated tissue damage.

64 FR at 65900.

Moreover, the BLS injury and illness data on which OSHA based its proposed risk assessment (see 64 FR at 65931, Table VI-3) indicates that many of the injuries considered MSDs resulted from short-term rather than chronic exposures. OSHA has reexamined its reasoning in light of these comments and agrees that the acute-chronic distinction it drew in the proposal is inappropriate when describing MSDs and therefore does not afford a proper basis for classifying this rule as a section 6(b)(5) standard.

As discussed in more detail in the risk assessment section, the injury and illness data reported by BLS categorizes each incident by type of injury or illness and the nature of the exposure event leading to the injury or illness (BLS 1992, Ex. 26-1372). Under the BLS data collection system, employers are instructed to report musculoskeletal injuries and illnesses under various codes, some of which represent musculoskeletal system and connective tissue diseases and disorders that result from repetitive activity and some of which represent other types of exposure events. The BLS category that accounts for most of the reported injuries and illnesses, 021, includes sprains, strains, and tears of muscles, joints, tendons, and ligaments. The category is described as representing traumatic injuries, which generally result from a single event or exposure. Ex. 26-1372 (BLS Occupational Injury and Illness Classification Manual).

In its preliminary risk assessment, the agency closely examined the BLS data, excluded from its analysis injuries caused by accidents (i.e., slips, trips, falls, and being struck by objects), and included those codes that predominantly represented work-related MSDs, including 021, that were reported under the exposure event categories Start Printed Page 68272most closely representing ergonomic risk factors. 64 FR at 65928. The largest number of these injuries were classified under the exposure category for “overexertion,” which includes primarily lifting, lowering, pushing, pulling, and carrying. 64 FR at 65932. OSHA has followed this same approach in its final rule and in the supporting risk assessment, i.e., excluding musculoskeletal injuries due to accidents but including those resulting from ergonomic risk factors. In OSHA's view, when MSDs result from exposure to ergonomic risk factors, any distinction between acute and chronic exposures is unimportant. OSHA notes that the classification of these disorders as traumatic is in part a convention of the recordkeeping system. OSHA's general recordkeeping guidelines for back disorders instruct that because the specific event causing such a disorder cannot always be pinpointed, to keep recordkeeping determinations as simple and equitable as possible, all back disorders should be classified as (traumatic) injuries rather than (cumulative exposure) illnesses. BLS, Recordkeeping Guidelines for Occupational Injuries and Illnesses (April 1986), at p. 38. Similarly, OSHA's Ergonomics Program Management for Meatpacking Plants states that all back cases are to be classified as injuries even though some back conditions may be triggered by an instantaneous event and others develop as a result of repeated trauma. Ex. 32-210-2-2 at p. 14. Moreover, a number of experts testified in the hearings that a substantial part of the MSD injuries classified under the BLS system as traumatic in fact represent cumulative exposure. (Tr. 2175-77; 2236-44; 5802-04). In short, even though an MSD may be classified as “traumatic” in origin, it will often be the case that, while the onset of the injury was sudden, the cause was exposure to ergonomic risk factors over some period of time. However, it is neither necessary nor meaningful to limit the standard's reach to MSDs that only occur because of exposures that take place over some period of time. The purpose of this standard is to reduce the number and severity of MSDs by protecting workers against excessive exposure to ergonomic risk factors and MSD hazards, and for that purpose it is irrelevant whether those excessive exposures are “acute” or “chronic.”

On reflection, OSHA has determined that other considerations relied on in the NPRM are likewise unpersuasive. Although the standard protects against one risk factor—vibration—that qualifies as a “harmful physical agent,” OSHA does not believe that factor alone makes this a section 6(b)(5) standard. The standard is not a “vibration” standard but one that addresses the multifactorial causes of MSDs. The risk factors that are not “harmful physical agents”—force, repetition, awkward posture, and contact stress—together contribute substantially more to the vast majority of MSDs than does vibration.

Similarly, that a provision in OSHA's standard governing access to employee exposure and medical records (29 CFR 1910.1020(c)(13)) defines “toxic substance or harmful physical agent” as including “repetitive motion” does not establish that repetitive motion is a harmful physical agent within the meaning of section 6(b)(5). See Ex. 32-339-1 at p. 15 (AFL-CIO). Whether repetitive motion is a harmful physical agent was not central to that rulemaking, which dealt with the access of employees and OSHA personnel to employee records and did not regulate particular hazards. In that rulemaking, interested parties had no reason to argue whether a standard that regulates repetitive motion is a section 6(b)(5) standard, and OSHA had no occasion to address that issue. Moreover, the records access rule was not issued under section 6(b)(5) but under OSHA's general authority to issue standards (section 6(b)) and regulations (section 8(g)). And it was upheld in court as a section 8(g) regulation rather than a section 6(b) standard. Louisiana Chem. Ass'n v. Bingham, 731 F.2d 280 (5th Cir. 1984), aff'g 550 F. Supp. 1136 (W.D. La. 1982). Therefore, the fact that the records access rule applies to repetitive motion cannot be regarded as establishing an OSHA policy that repetitive motion is a harmful physical agent for purposes of section 6(b)(5).

C. This Final Rule Does Not Regulate non-Workplace Activities

Some commenters have pointed out that MSDs can result from personal activities as well as from workplace exposures. Ex. 32-368-1 at p. 40 (National Coalition on Ergonomics); Ex. 32-241-4 at p. 49 (Anheuser-Busch & United Parcel Service). They argue that OSHA is attempting through this rule to regulate the nonwork activities that may contribute to MSDs and that the rule is therefore outside OSHA's authority. However, the rule regulates only conditions or activities in workplaces, and OSHA clearly has the authority to issue the rule.

Many adverse health conditions can be caused or aggravated by both work and nonwork exposures. For example, exposures to high noise levels both inside and outside the workplace can contribute to a worker's hearing loss. Nevertheless, OSHA has the authority to regulate harmful noise levels in the workplace as long as the workplace exposures create a significant risk of material impairment of health. Forging Indus. Ass'n v. Secretary of Labor, 773 F.2d 1436, 1442 (4th Cir. 1985) (en banc) (Noise).

Noise dealt with a challenge to the Hearing Conservation Amendment to OSHA's occupational noise standard. That amendment establishes certain requirements that must be met to reduce the incidence of and/or prevent hearing impairment due to occupational noise exposure. Before issuing the amendment, OSHA found that 10-15% of workers exposed to noise levels below the permissible exposure limit (PEL) would suffer material hearing impairment. 773 F.2d at 1443. OSHA based this finding on a “panoply of scientific reports and studies,” including studies done by the National Institute for Occupational Safety and Health (NIOSH) and the Environmental Protection Agency (EPA). Id. OSHA also found that those employees who had suffered a hearing decrement of 10 decibels in either ear faced a greater risk from continued exposure to high levels of workplace noise than workers whose hearing was unimpaired. Id. OSHA's Hearing Conservation Amendment provided hearing-endangered workers with protection in the workplace in order to decrease the risk of hearing impairment.

The Forging Industry Association (FIA) argued that “because hearing loss may be sustained as a result of activities which take place outside the workplace—such as listening to loud music, age, or engaging in certain recreational activities—OSHA acted beyond its statutory authority by regulating non-occupational conditions or causes.” Noise, 773 F.2d at 1442. The court found “no merit” in FIA's argument. The court ruled that OSHA properly relied on “the extensive and thorough research of several scientific institutions in defining the problems related to industrially-caused hearing loss in designing its proposal.” Id. at 1443. The court also stressed that OSHA excluded non-occupational hearing loss from the rule. Id. at 1444 (“To be sure, some hearing loss occurs as a part of the aging process and can vary according to non-occupational noise to which employees are exposed. The amendment, however, is concerned with occupational noise—a hazard of the workplace.”). The court ruled that the fact that non-occupational hazards may contribute to hearing loss does not mean that OSHA should refrain from Start Printed Page 68273regulating workplace conditions that are shown to cause such loss:

The amendment provides that non-occupationally caused hearing loss be excluded from its regulation. See 29 CFR 1910.95(g)(8)(ii), 1910.95(g)(10)(ii) (1984). Assuming, however, that some loss caused by aging or smaller amounts of noise sustained for shorter periods also aggravates the hearing loss incurred by an individual employed in a high noise-producing industry, that is scant reason to characterize the primary risk factor as non-occupational. Breathing automobile exhaust and general air pollution, for example, is damaging to lungs, whether healthy or not. The presence of unhealthy lungs in the workplace, however, hardly justifies failure to regulate noxious workplace fumes. Nor would there be logic to characterizing regulation of the fumes as non-occupational because the condition inflicted is aggravated by outside irritants.

Noise, 773 F.2d at 1444.

Like the Hearing Conservation Amendment to the Noise standard, this final ergonomics rule regulates workplace hazards. As discussed in the health effects section of this preamble, this rule addresses only exposure to ergonomic risk factors that occurs in the workplace. The MSDs that trigger action under the rule must be work-related and they must have occurred in workers whose jobs place them at a heightened risk of incurring a MSD because they are exposed to risk factors at the levels in the Basic Screening Tool.

A decision by the Occupational Safety and Health Review Commission supports OSHA's conclusion that the Act can properly address work-related ergonomic hazards even though employees can also be exposed to such hazards outside the workplace. In Pepperidge Farm, Inc., 17 O.S.H. Cas. (BNA) 1993 (1997), the Commission held that where work was shown to be a substantial contributing factor to MSDs, the fact that non-work factors may also play a role did not preclude OSHA from requiring the employer to abate the workplace hazards. In that case, Pepperidge Farm contested a number of citations for ergonomic violations that OSHA had issued under section 5(a)(1) of the Act. In order to prove a section 5(a)(1) violation, OSHA had to show that a condition or activity in the employer's workplace presents a “hazard to employees.” 17 O.S.H. Cas. (BNA) at 2009 (emphasis added). The company argued that section 5(a)(1) should not apply to MSD workplace hazards because, among other things, “non-workplace factors may cause or contribute to the illnesses at issue and that individuals differ in their susceptibility to potential causal factors.” Id. at 2013. The Commission held that such factors should not “ipso facto” preclude the possibility of enforcement under section 5(a)(1). Id. The Commission also analyzed a significant amount of evidence that showed a causal relationship between MSDs and workplace hazards, including testimony from medical personnel who examined injured workers, epidemiological data, and injury incidence at a Pepperidge Farm plant. Id. at 2020-26. The Commission ultimately found that there was a causal connection:

We therefore conclude that the Secretary has established on this record a causal connection between [MSDs] affecting the employees at Downington [a Pepperidge Farm plant] and their work on the biscuit lines. In doing so, we are mindful that many of these injuries may have had more than one causal factor and of the experts who contend that the specific cause of such injuries is, essentially, unknowable or presently unknown. As is the case with many occupational ills with multiple possible causes, employees are more or less susceptible to injury on the job because of the individual attributes and backgrounds they bring to the workplace. As with these other ills, the Secretary is not thus foreclosed from attempting to eliminate or significantly reduce the hazard by regulating what is shown to be a substantial contributing factor to the worker injuries.

17 O.S.H. Cas. (BNA) at 2029.

The Commission's holding in Pepperidge Farm that the susceptibility of some employees to a particular ailment does not preclude OSHA from regulating workplace conditions or practices that cause or contribute to that type of ailment is supported by other cases. In the asbestos rulemaking, OSHA based its significant risk determination, in part, on epidemiologic studies that included workers who smoked and were therefore significantly more likely to contract cancer than those who did not. Asbestos, 838 F.2d at 1265. The court held that OSHA was justified in doing so. Smokers were not, the court said, “so far beyond the pale as to require OSHA to ignore them in computing the risks of asbestos.” Id. (emphasis added). See also Reich v. Arcadian Corp., 110 F.3d 1192, 1198 (5th Cir. 1997) (Congress intended Act's general duty clause to protect all employees, including those who are especially susceptible). Thus, workers who engage in activities outside the workplace that expose them to ergonomic risk do not thereby forfeit on-the-job protection against exposure to excessive ergonomic risk factors.

IV. Summary and Explanation

(a) What Is the Purpose of This Rule?

The first paragraph of the final standard sets out the purpose of this ergonomics program standard. OSHA did not propose a purpose paragraph, and thus no comments on this topic were received. OSHA has decided to include a purpose statement in the final rule to clearly indicate the goal of the standard and to differentiate between those musculoskeletal disorders (MSDs) that are covered by the standard and those that are not. It clarifies that the standard's purpose is to reduce the number and severity of MSDs that are caused by occupational exposure to ergonomic risk factors (also called “ergonomic stressors”) on the job.

As discussed in more detail below, the disorders addressed by this rule include those of the muscles, nerves, tendons, ligaments, joints, cartilage, blood vessels, and spinal discs occurring in the neck, shoulder, forearm, wrist, hand, abdomen (hernias only), back, knee, ankle, and foot. They include conditions classified by the Bureau of Labor Statistics in its Annual Survey as illnesses (e.g., carpal tunnel syndrome) and as injuries (e.g., low back pain), because MSDs include many different disorders, affect many tissues and areas of the body, and may be described by a wide range of medical diagnoses.

The terms used to describe this group of conditions have varied over time and geographic region. For example, in Australia, MSDs are often called “Occupational Overuse Syndrome” injuries. Other frequently used terms include “repetitive stress injuries,” “cumulative trauma disorders,” and “soft tissue injuries.” In recent years, however, the term “musculoskeletal disorders” has gained widespread acceptance by the scientific community, and OSHA uses this term, or its abbreviation, MSD, throughout the regulatory text and supporting analyses.

Paragraph (a) makes explicit that OSHA's ergonomics program standard does not apply to injuries or illnesses caused by motor vehicle accidents, slips, trips, falls, or similar accidents that result in traumatic injuries on the job. By “other similar accidents,” OSHA means, for example, caught in or caught between injuries or other accidents resulting in blunt trauma. (Throughout this notice, OSHA uses the terms “work-related,” “caused by,” “musculoskeletal disorders,” “risk factors,” and “exposure.” For a detailed discussion of these terms, see the relevant sections of the Health Effects (Section V of the preamble), Summary and Explanation (Section XI), and Legal Authority (Section III) sections of this preamble.)

As stated in paragraph (a), the purpose of this standard is to reduce the number and severity of MSDs caused by Start Printed Page 68274workplace exposure to ergonomic risk factors, such as force, awkward postures, or repetition, either alone or in combination. The standard requires employers to implement an ergonomics program to address risk factors in jobs that pose an MSD hazard to the employees in those jobs. As discussed in detail in Section VI of the preamble, Risk Assessment, ergonomics programs have been shown to reduce the number and severity of MSDs in old and new facilities, in large and small workplaces, and in a wide variety of jobs ranging from computer use to solid waste handling, from assembly line operations to patient handling, and from beverage distribution to meat processing.

Reducing the number and severity of MSDs in the workplace is the goal of successful ergonomics programs everywhere. As the more detailed discussions in this preamble and in the Agency's economic analysis will show, this goal cannot be achieved overnight, although positive results are generally observed soon after program implementation. One effect of a new ergonomics program, which at first glance may not appear to be a positive one, is that the number of MSDs and MSD signs and symptoms reported in the first months after the implementation of the program may actually increase. This initial increase in the number of MSD reports reflects the heightened awareness of ergonomics, the importance of early reporting, and the value of conservative treatment that routinely accompanies program implementation. In most workplaces, this increase is short-lived, generally lasting less than a year and almost never more than two years. The severity of the MSDs reported, however, generally decreases in the first few months after program initiation and declines steadily thereafter, before leveling off as the program matures. Thus, OSHA intends and expects the final rule to reduce the number and severity of MSDs in the workplaces covered by the standard over the first few years after the standard is fully in effect; OSHA is aware that the standard's purpose will not be fully achieved in the short run. When ergonomic programs mature, they continue to demonstrate ongoing reductions in the number of MSDs caused by workplace risk factors and in the severity of those MSDs that do occur.

The standard's purpose paragraph also reflects OSHA's awareness that work-related MSDs will continue to occur in many workplaces even after implementation of an effective ergonomics program that complies fully with this final rule. The standard being issued today is thus not a “zero-risk” standard. It recognizes that substantially reducing the number and severity of these disorders is possible in most, if not all workplaces, although many establishments may not be able to eliminate MSDs completely. (For a discussion of OSHA's analysis of the standard's projected effectiveness, see the Risk Assessment section of the preamble (Section VI) and Chapter IV, Benefits, of the Final Economic and Regulatory Flexibility Analysis.)

Paragraph (b)—Does This Standard Apply To Me? (Scope and Application)

Discussion of the scope and application of the final rule is divided into three parts. Part I discusses which employers and operations the standard covers. Part II explains the exclusions from coverage of the rule and OSHA's authority to limit the standard's coverage to general industry. Part III addresses other scope and application issues raised during the rulemaking.

Part I—Scope and Application of Standard to General Industry Employers

A. Scope of Coverage

Paragraph (b) states that the standard applies to general industry employment, which means all employment except for railroads and employment covered by OSHA's agriculture, construction, and maritime standards. Unlike other OSHA general industry standards, however, this standard does not cover general industry work performed incidentally to or in support of construction, maritime, or agricultural employment or railroad operations. This means that functions such as office work, management and support services are not covered by the standard, and that, for example, a construction company office or a marine terminal cafeteria would not be covered. However, a construction company real estate division engaged in selling the finished properties would not be performing functions directly in support of the construction operations and would be within the scope of the standard.

The final rule thus imposes coverage based on the business category in which the employer belongs, e.g., general industry as opposed to construction. This marks a departure from the Agency's past practice of imposing coverage based solely on the job that an employee is performing. The approach adopted in this standard, i.e., basing coverage on the industry classification of the employer, is appropriate here because of the unique nature of ergonomic problems and solutions. The requirement to implement an entire program when an MSD incident occurs in a job that meets the Action Trigger is more practical administratively if employers are required to take this broad approach.

Moreover, the standard does not apply to jobs or operations that are normally covered exclusively by the construction, agriculture and maritime standards, even if those operations are performed in a general industry establishment or for a general industry employer. Thus a construction crew whose sole job is to build in-plant structures in a steel mill is engaged in construction and is not covered by this standard, even though the steel mill itself is a general industry operation. This is consistent with the operation of other OSHA standards.

Although the proposal also applied only in general industry, its scope provision stated that coverage was further limited to general industry manufacturing jobs, manual handling jobs, and jobs with MSDs. Manufacturing jobs were defined as “production jobs” in which the activities of producing a product made up a “significant amount” of the employee's worktime. Manual handling jobs were those in which the employee performed “forceful” lifting (i.e., lifting or lowering, pushing or pulling, or carrying) and the forceful lifting tasks were a “core element” of the employee's job. Jobs with MSDs were defined as jobs in which an OSHA recordable MSD occurred in a job in which the physical work activities and conditions were reasonably likely to cause that type of MSD, and the activities were a core element of the job or accounted for a significant amount of the employee's worktime (64 FR 65779-82).

The proposal explained that OSHA was focusing on general industry in this first ergonomics rulemaking because the problems in general industry are particularly severe and the solutions are well-understood (64 FR 65776). Some commenters agreed with the proposed rule's scope, and its emphasis on manufacturing and manual handling jobs (Exs. 31-3, 31-71, 31-180, 31-252, 31-284, 32-300). More, however, argued either that the rule should not exempt construction, maritime and agricultural employment (Exs. 30-400, 30-1294, 31-14, 31-105, 31-143, 31-156, 31-345, 31-352, 32-198-4, 32-210, 32-359-1, 32-461-1, 30-1294, 500-218), or that the rule should exempt even more industries or jobs (Exs. 30-372, 30-494, 1-248, 31-280, 32-77-2, 32-78, 32-234, 30-2208, 30-3167, 32-77-2, 601-X-1, Tr. 3126). Start Printed Page 68275

Many of the commenters who believed that the scope of the proposed rule was too broad argued that it incorporated a “one size fits all” approach that was inappropriate for the wide variety of operations found in general industry (Ex. 30-494, see also Exs. 30-380, 30-372, 30-531, 30-3167, Tr. 3126, 3332). Some of these commenters pointed out that there was great variation in MSD rates, prevalence of ergonomic risk factors, and levels of exposure to those risk factors across general industry (Exs. 30-541, 30-3167). Others pointed out that jobs differed greatly within and across industries, and claimed that OSHA did not have enough information about effective controls in all industries (Exs. 30-425, 30-3167, 32-77, 32-211-1, 32-2208). The focus of both these groups of comments was that OSHA did not have enough knowledge or evidence to find that the same approach to controlling ergonomic hazards would be appropriate in all of these disparate circumstances.

A number of commenters suggested ways to limit the standard's scope. Some urged OSHA to focus the rule more narrowly on those jobs or industries with the highest MSD rates or those deemed to have high risk potential (Exs. 30-13, 30-425, 30-2208, 30-3167, 31-248, 31-280, 32-78, 32-234, Tr. 2729-30). For example, Larry Leahy of Ruth Constant & Associates, a home health care service agency, questioned why OSHA was covering all of general industry when 60 percent of the MSDs occurred in industries representing a fairly small percentage of the national workforce (Ex. 30-611). Todd McCracken, of National Small Business United, argued:

There is a need to focus on particular types of jobs . . . There are specific types of jobs in specific industries where MSDs are much more likely to occur (Tr. 2729-30).

Similarly, Organization Resources Counselors, Inc. (ORC) recommended that the rule only cover high risk occupations or employers whose MSD incident rates were above the national background level (Ex. 32-78; see also Tr. 10633-35). The Small Business Administration's Office of Advocacy suggested covering only manual handling jobs, which it claimed accounted for 78 percent of all MSDs (Ex. 601-X-1).

As discussed in detail throughout this preamble, OSHA believes that the record supports coverage of all of general industry within the overall scope of the standard. The final standard does not, however, prescribe a one-size-fits-all solution for a wide range of problems in diverse jobs and industries. Even in those situations where significant ergonomic hazards exist, the commonality of the response required by this standard is to implement an ergonomics program. The specific focus of that program will be targeted to the particular hazards and conditions at each workplace. The control strategies for ergonomic hazards will be targeted even more specifically to the needs of each workplace. And the extent of each employer's compliance obligation will be determined by the extent of the problem at that employer's workplace. Thus the fact that the rule applies to a variety of hazards at differing workplaces does not in any way mean that the employers in all of those workplaces need to take the same actions.

Work-related MSDs are widespread throughout general industry. They occur in every single sector within general industry, according to the Bureau of Labor Statistics (BLS). In 1996, according to BLS, there was no industry sector that did not report the occurrence of at least several hundred work-related MSDs, with a large number of industries reporting tens of thousands of work-related MSDs. Moreover, high concentrations of work-related MSDs are reported in a wide variety of occupations that are found throughout general industry establishments. BLS data for 1996 show that general industry truck drivers, laborers, and janitors, occupations found widely dispersed throughout general industry sectors, experienced more than 48,000, 38,000 and 15,000 lost workday (LWD) MSDs, respectively. (See Section VII (Risk Assessment) of this preamble.)

Evidence submitted by rulemaking participants confirms the broad distribution of MSDs and MSD hazards throughout general industry. For example, the Service Employees International Union (SEIU) submitted evidence that union members working in a variety of health care settings (e.g., hospitals, nursing homes, private homes, pharmacies) have suffered MSDs (Ex. 32-311-1). These health care workers include registered nurses, licensed practical nurses, nurses' aides, orderlies, physical therapists, radiology technicians, housekeepers (maids and housemen), laundry workers, laundry machine operators, maintenance workers, kitchen and food preparation workers, central supply workers, and janitors and cleaners. In addition, SEIU said that other union members such as janitors and cleaners working in a variety of other industries, including hotels/motels, restaurants, offices have also experienced MSDs (Ex. 32-311-1).

At the rulemaking hearing, many employees testified that they had suffered serious work-related MSDs. Occupations in which these employees were working when they became injured include:

  • Nurse
  • Home health care aide
  • Nurses' aide
  • Package delivery
  • Package sorting
  • Meatpacking and poultry processing
  • Office clerical worker
  • Internet publishing
  • Machinists
  • Sewing machine operator
  • Truck driver
  • Food warehousing and distribution
  • Grocery store cashier
  • Physical therapist
  • Mail carrier
  • Letter sorter
  • Teacher
  • Teachers' aide
  • Auto assembly
  • Molding and casting machine operator
  • Reporter
  • Grocery shelf stocker
  • Sonographer
  • Television film editor
  • Electrical workers

(Exs. 30-4200, 32-185-3, 32-210-2, 32-198-3, 32-311, 500-218, Tr. 4009-10, 4235, 4240, 4234, 6004, 6009, 6319, 6321-22, 6333, 7320-21, 7335-37, 7341-42, 17950).

Doctors and other health care professionals (HCPs) also testified that they had treated employees in many different jobs and industries for work-related MSDs (Exs. 37-12, 37-28, Tr. 14973, 15045-46, 16819, 16829). Dr. Robert Harrison testified that, in his research and practice, he had diagnosed and treated over 1,000 patients with work-related MSDs from a wide variety of industries and occupations, including (Ex. 37-12):

  • Postal workers
  • Materials handlers
  • Computer operators
  • Grocery checkout clerks
  • Meat processors
  • Assemblers
  • Seamstresses
  • Telephone operators
  • Pipefitters
  • Customer service agents
  • Machine operators
  • Automotive manufacturing workers
  • Aircraft manufacturing workers
  • Optical scanners
  • Graphic artists
  • Restaurant workers
  • Bakers
  • Plumbers
  • Letter sorters Start Printed Page 68276

Dr. Robin Herbert, the medical co-director of the Mt. Sinai Center for Occupational and Environmental Medicine, testified that she had treated or supervised the treatment of more than 2,000 patients with upper extremity MSDs in the past 12 years:

My patients have included journalists, computer graphic artists, health care workers, technicians for telephone companies, automobile manufacturing workers, cashiers, garment workers, meat wrappers, dental hygienists, secretaries, and chefs. Industries from which I have seen patients include publishing, journalism, entertainment, manufacturing, health care, transportation, and telecommunications (Ex. 37-28).

Dr. George Piligian, who also works at the Mount Sinai Center, testified about finding and treating MSDs in dancers, musicians, editors, secretaries, telephone operators, sewing machine operators and hospital workers (Tr. 7813-20).

Similarly, insurance companies, employers and trade associations representing the following industries testified about the implementation of ergonomics interventions and programs because work-related MSDs were occurring among workers in the following environments:

  • Chemical manufacturing
  • Pharmaceutical manufacturing
  • Automotive manufacturing
  • Automotive repair
  • Boat manufacturing
  • Textile manufacturing
  • Clothing manufacturing
  • Printing
  • Dental
  • Meatpacking
  • Electric utility
  • Hospitals
  • Office workers
  • Hotel/motel
  • Emergency medical services
  • Furniture manufacturing
  • Oil and gas drilling
  • Moving and storage
  • Fabricare
  • Nursing homes
  • Telephone operation and installation
  • Funeral and cemetery
  • Insurance
  • Solid waste removal and recycling
  • Paint manufacturing
  • Poultry processing
  • Food warehousing and distribution
  • Beverage delivery
  • Assembly line
  • Grocery store
  • Retail clothing
  • Foundry

(see, e.g., Tr. 3337-9, Tr. 5104, Tr. 8458-8480, Tr. 16553-57).

Finally, several of the ergonomists who appeared as OSHA's expert witnesses, including David Alexander (Ex. 37-7), David Caple (Ex. 37-20), Dennis Mitchell (Ex. 37-11), Maurice Oxenburgh (Ex. 37-24), Suzanne Rodgers (Ex. 37-25), and John Rosecrance (Ex. 37-26), testified that employers in the following different industries had hired them to help reduce the incidence of work-related MSDs among employees:

  • Newspaper
  • Luggage manufacturing
  • Meatpacking
  • Packaging
  • Papermaking
  • Plumbing supply
  • Route sales and delivery
  • Film products manufacturing
  • Hospitals
  • Heavy appliance manufacturing
  • Automobile manufacturing and subassembly
  • Furniture manufacturing
  • Paper and pulp products
  • Forest products
  • Food service
  • Clerical
  • Electronics
  • Clothing and textile manufacturing
  • Baking
  • Restaurant
  • Home and office furniture manufacturing
  • Hospitality—hotel/motel
  • Fiber manufacturing
  • Logistic and supply warehousing
  • Telecommunication
  • Textile and apparel manufacturing
  • Metal forging and cast metals
  • Electronics manufacturing
  • Health care
  • Petroleum
  • Electrical manufacturing
  • Airline freight handling
  • Steel manufacturing
  • Fishing
  • Aircraft manufacturing
  • Gas and electric utility
  • Flooring products
  • Computer and computer accessory manufacturing
  • Plumbing fixtures manufacturing
  • Food products manufacturing and processing
  • Chemical manufacturing
  • Printing
  • Waste treatment
  • Plastic manufacturing
  • Clothing retail
  • Power plants
  • Research laboratories
  • Transportation
  • Printing
  • Upholstery
  • Rubber manufacturing
  • Welding
  • Mail sorting and delivery
  • Transportation
  • Electronics
  • Medical products manufacturing

All of this evidence supports OSHA's decision to provide the protections of this standard to all general industry employees. On the other hand, OSHA recognizes that there may be some general industry employers with few or no MSD hazards. Until an MSD is reported, the employer's obligation is limited to distributing the information in paragraph (d).

B. Application of Requirements

Unlike the proposal, this final standard does not differentiate among general industry employers. Under the proposal, employers of employees engaged in manufacturing or manual handling would have been required to implement some elements of an ergonomics program whether or not their employees had suffered any MSDs. Other general industry employers would not have had to take any action until a “covered MSD” occurred, and a covered MSD was defined differently for them than for manufacturing and manual handling employers (64 FR 65782-84, 65791). In this final standard all general industry employers are required, as specified in paragraph (d), to provide basic information on ergonomics and the standard to their employees. The employer has no further obligation until the employee reports an MSD or the signs or symptoms of an MSD (see paragraph (e)).

OSHA developed its bifurcated proposal because about 60 percent of all reported MSDs occurred in manufacturing and manual handling jobs, even though those jobs accounted for less than 30 percent of general industry employment. Although some commenters agreed that this might justify a focus on manufacturing and manual handling (Ex. 30-4837), very few expressed satisfaction with the proposed approach (Exs. 30-400, 31-78, 32-198, 32-210, 32-461, 500-218, Tr. 3224). Many commenters said that manufacturing and manual handling jobs should not be singled out because MSD hazards were present and MSD rates were high in other jobs and industries (Exs. 30-626, 30-2208, 31-156, 500-218). For example, participants said that there were many MSD hazards and MSDs in “any job involving regular computer use,” therefore, programming, journalism, data entry, system administration, accounting, analysis, and insurance jobs should have been included by name (Exs. 30-49, 30-400, 31-3, 31-12, Tr. 2783, 2932). Likewise, other commenters argued that custodians and supermarket employees including cashiers, bakery personnel, baggers and Start Printed Page 68277stockers should be treated on par with manufacturing and manual handling jobs because they involved the same hazards (Ex. 31-23, 32-210; see also Exs. 30-400, 31-78, 32-198, 32-210, 32-461, 500-218, Tr. 3224).

Another group of commenters opposed requiring any employers to take any type of action before a work-related MSD is reported (Ex. 30-240, 32-300, 30-542, 601-X-1) on the grounds that it was a “waste of resources” to require a basic program for employers with manufacturing and manual handling jobs that have no MSDs (Ex. 30-542). For example, one said:

If an employer is in one of the targeted industries but has not had MSDs, why force the bureaucracy of program implementation upon him or her * * * (Ex. 30-240).

And while some participants found the definitions of manufacturing and manual handling jobs adequate to identify whether a particular job was covered (Exs. 30-3934, 30-4837, 31-38, 31-36, 31-113, 31-173, 31-205, 31-229, 31-347), most disagreed (Exs. 30-5, 30-46, 30-75, 30-293, 30-1722, 30-3032, 30-3853, 31-4, 31-27, 31-92, 31-106, 31-125, 31-135, 31-211, 31-245, 31-246, 32-78, 32-300, 32-337). Many said that the definitions, particularly the definition of manual handling jobs, were too vague (Exs. 30-137, 30-425, 30-1722, 30-3167, 31-77, 31-180, 31-225, 31-227, 31-248, 31-260, 31-342, 32-78, 32-300, 32-337, Tr. 3255-56). For example, one commenter said:

The definitions of manufacturing and manual handling jobs covered by the standard are guaranteed to leave employers as much in the dark as they are now. What constitutes “forceful” manual handling? How much force must be involved to be covered? Should the strength capabilities of individual employees be considered? (Ex. 31-211)

Others were concerned that the definitions were too broad and could include any job or “almost every employer” (Exs. 31-135, 31-180, 31-342).

Many participants told OSHA that they did not know what the terms used in the definitions (“forceful” lifting, “core element,” and “significant amount” of worktime) meant (Exs. 30-46, 30-293, 30-300, 30-3032, 30-3853, 30-4837, 31-187, 31-202, 31-223, 31-260, 31-289, 32-337, Tr. 3337). For example:

How much is significant? 6 hours per 8-hr shift? 4 hours per 8-hr. shift? 2 hours per 8-hr. shift? Or 2 2-hr. periods per 8-hr. shift? (Ex. 30-4837)

Moreover, commenters did not find the examples of manufacturing and manual handling jobs to be of use:

[T]he examples of jobs are not very helpful. A careless reader could conclude that the lists were exhaustive and, not seeing the jobs in this workplace named, decide he had to do nothing. A more thorough reader would note the disclaimer to the effect that “* * * each job must be considered on the basis of its actual physical work condition * * *” and correctly conclude that there is no standard against which to compare the actual physical work conditions” (Ex. 31-211).

(See also Exs. 30-3032, 30-3853, 32-300.)

OSHA is accounting for these concerns in this restructuring of the standard's scope and application provisions. This final rule applies to all general industry employers, but no employer is required to evaluate or implement control measures or MSD management until an MSD incident occurs in a job that involves exposure to risk factors at levels meeting those in the Basic Screening Tool in Table 1. The only obligation employers have until that point is to provide information about ergonomics and the standard to their employees. And, as explained in the discussion of paragraph (d) below, OSHA is providing that information in Appendices A and B and on its website.

OSHA believes that these changes respond to most complaints about the scope and application provisions of the proposal. By eliminating the additional requirements for manufacturing and manual handling employment, OSHA is eliminating both the need to define those terms and much of the complexity and vagueness commenters found in the proposal. By limiting employers' obligations in establishments that have not experienced MSD incidents, OSHA is also taking account of the facts that not all manufacturing and manual handling jobs involve more significant ergonomic hazards than do other general industry jobs, and that some of those other jobs are also hazardous.

The minimal burden in paragraph (d) for all general industry employers to disseminate information is necessary so that employees will know how and when to report MSDs. Given the importance of providing information at the earliest possible point and the minimal burden this requirement will impose, OSHA believes that it is appropriate to apply the initial requirement to all general industry employers. (The issue of the need for information is discussed in more detail below in the summary and explanation on paragraph (d)).

II. Industries/Employment/Operations Excluded From the Final Rule

Like the proposal, the final standard does not cover construction, agriculture, and maritime employment. Although many participants agreed with this exclusion (Exs. 30-3032, 30-3752, 31-68, 31-160, 31-187, 31-207, 31-219, 31-245, 31-252, 31-259, 32-300), a number favored expanding the scope of the rule to cover all industries regulated by OSHA (Exs. 30-400, 30-428, 30-1294, 32-210, 500-218, Tr. 2859, 3224, 5592, 9080, 13445, 113745, 14002, 17362, 17652). Their arguments fell into three categories.

First, many of these commenters pointed to the high number and rate of MSDs, especially back injuries, occurring in industries excluded from the proposed rule (Exs. 30-626, 30-2208, 31-156, 31-183, 31-225, 500-218). The Mount Sinai Center for Occupational and Environmental Medicine Construction Hygiene and Ergonomics Program (CHEP) pointed out that, aside from the transportation industry, construction has the highest rate of back injury of any industry:

Every year 1 in 100 construction workers will miss between 7 and 30 days of work due to back injuries * * * At one surveyed worksite all wallcoverers who had worked 15 years or more in the trade had required surgery or medical intervention for problems including carpal tunnel syndrome, pain in the neck, shoulder and back, and knee problems (Ex. 31-183).

Some commenters also favored expanding coverage because they said that employees in construction, agriculture and maritime are exposed to the same risk factors and MSD hazards as are employees in general industry (Exs. 30-626, 31-22, 31-183, 31-263, 31-303, 500-218). They said there was no reason to distinguish coverage by industries if the rule was also incorporating an MSD trigger because, as one put it, “[a]n injury is an injury, and I have no doubt there are always ways to handle these jobs just as safely as any others” (Ex. 31-19).

A number of commenters said that at least jobs in construction, agriculture and maritime that are essentially the same as in general industry, primarily manual handling jobs, should be added to the rule (Exs. 31-14, 31-19, 31-65, 31-98, 31-192, 31-219, 31-307, Tr. 2850-51). For example:

Many jobs, especially manual handling jobs, have similar if not identical hazards to that of general industry. If an employee is performing lifting that requires excessive force it does not matter in which industry he is performing the lifting. The actions to reduce the risk of injury would be similar for each industry (Ex. 31-307).

See also (Ex. 31-19; 31-65).

Another group of participants said that the record contains sufficient Start Printed Page 68278evidence on the availability and effectiveness of ergonomic interventions to support expanding the rule to the construction, agriculture and maritime industries (Exs. 31-183, Tr. 2849-51, 7478-80, 7482, 7485, 15761-71, 17540-41, 17561). Members of this group pointed to a number of articles and studies about effective controls in those industries, especially construction (Tr. 15761-71). For example, Nancy Clark, co-director of Mt. Sinai CHEP, said:

Practical interventions are available for many identified risk factors. Many workers devise quick fix, homemade solutions to reduce the impact of musculoskeletal stress and promote self-preservation. They use team lifting, mechanized material handlers when available, floor padding for kneeling and standing on, stacking supplies to bring the work closer, and alternating work tasks or body position (Ex. 31-183)

Scott Schneider, director of occupational safety and health for the Laborers Health and Safety Fund of North America, testified:

[T]here have been many tool manufacturers who have jumped on the ergonomic bandwagon and hired ergonomists to develop better and safer tool designs, from ergonomic hammers with more comfortable shock-absorbing handles to pliers with soil handles and spring returns to reduce the stress of opening them after each use. The use of portable power tools has increased dramatically in construction as batteries have gotten lighter and more powerful. Cordless screw guns have become commonplace in construction over the past few years, reducing the repetitive use of screwdrivers by hand and the force that had to be used. There are simple pieces of equipment, like drywall carrying handles, which I have here, and a mortar-pan stand to raise the height of the pan, which cost less than $50 and can make the work much easier. A D-handle attachment for a shovel, which I have here, costs less than $20, and has been shown to reduce awkward postures during shoveling. There are simple carts for moving glass or drywall, vibration-dampened jackhammers and equipment for moving them on and off of trucks. (Tr. 15762-63).

These commenters also pointed out that many of the controls used in general industry, such as manual handling aids, were applicable or readily adaptable to construction, agriculture and maritime industries (Ex. 31-183). Moreover, tool and equipment interventions are becoming more widely available “as manufacturers are responding to the need for better ergonomically designed tools” (Ex. 3-183; see also Tr. 15761-62, 17561).

Finally, several participants were concerned that OSHA's stated intent to promulgate an ergonomics standard for the excluded industries in the future would never come to fruition:

OSHA's standard-setting history during the past 30 years raises serious doubt that workers excluded from this standard will ever have legal protection from MSD hazards. When OSHA has excluded workers from coverage under a promulgated standard, only in two cases has the Agency followed up to extend coverage to those workers—Hazard Communication and Construction. But those actions were as the result of a court decisions and order (hazard communication) * * * or legislative mandate by Congress (lead) (Ex. 500-218, p. 132-33).

These participants said that if OSHA does not cover construction, agriculture and maritime in the current rulemaking, the Agency should begin further rulemaking immediately and even establish a deadline for completing that project (Exs. 30-400, 30-576, 30-4837, 31-12, 31-263).

OSHA is aware that there is significant evidence in the record indicating that work-related MSDs exist in operations and employment beyond general industry (Exs. 31-183, 500-218, Tr. 7475, 7484-85, 17538-39). Indeed, the problem appears to exist in virtually every industry. Nonetheless, for several reasons OSHA believes its decisions to regulate MSD hazards through sequential rulemaking proceedings, and to limit the first proceeding to general industry, is appropriate and supported by the record.

A primary basis for the Agency's decision to limit the scope of this rulemaking to general industry is that most of the available evidence and data relating to ergonomic interventions addresses general industry. For example, the vast majority of the studies reviewed in both the NIOSH and NAS reports pertained to general industry (Exs. 26-1, 26-37). Similarly, the majority of case studies on the effectiveness of ergonomics programs and control interventions that OSHA had gathered focused on general industry (64 FR 65954-75). Although some participants submitted evidence on ergonomics programs and controls in the excluded industries, mostly in construction (Exs. 32-339-1-25, 32-3888, 38-65, 38-66, 500-210), most of the available evidence continues to pertain to general industry jobs, operations and workplaces.

If it included construction, agriculture and maritime within the scope of this rule, OSHA would have had to delay issuing the rule for general industry while it gathered and analyzed the necessary evidence. Because it is likely that the rule would have a significant impact on small employers in construction, agriculture and maritime, OSHA would also have had to convene a small business review panel pursuant to SBREFA. Further, in order to include construction, agriculture, and maritime in its final rule, OSHA, in the interest of fair notice, would have had to amend the ergonomics proposal or re-propose to include these industries and hold additional hearings. Expanding the rule to cover agriculture, construction and maritime would seriously delay addressing the urgent need for protection for general industry employees, who work in the jobs in which more than 90 percent of MSDs are reported.

In addition, as the proposal pointed out, work conditions and factors present in agricultural, construction and maritime employment often differ from those in general industry. OSHA listed a number of aspects of construction work to illustrate this statement (64 FR 65787):

  • They consist primarily of jobs of short duration,
  • Employees work under a variety of adverse environmental and workplace conditions (e.g., cold, heat, confined spaces, heights),
  • At non-fixed workstations or non-fixed work sites,
  • On multi-employer work sites,
  • They involve the use of “day laborers” and other short-term “temporary workers,'
  • Involve situations in which employees provide their own tools and equipment, and
  • Involve employees who may be trained by unions or other outside certifying organizations, rather than by the employer.

OSHA did not mean to imply that the mere existence of any of these factors, alone or in combination, would be enough to justify excluding an entire industry from the rule. This fact was apparently not clear to some commenters, however, who argued that the presence of some of the listed factors in their industries meant that they too should be excluded from the standard (Exs. 30-297, 30-626, 31-147, 32-234, 32-300). For example, Broccolo Tree and Lawn Care Inc., pointed out that landscaping jobs involve short-duration tasks and no fixed workstations (Ex. 31-147). The National Solid Waste Management Association (NSWMA) said that its employees are also exposed to adverse environmental conditions and work at non-fixed work sites (Ex. 32-234, p. 6-7).

In the proposal, OSHA discussed its discretion to set appropriate rulemaking priorities, and to promulgate standards applicable to less than all of American industry. 64 FR 65786-65788. General industry accounts for more than 90 percent of the more than 620,000 LWD MSDs reported each year. By Start Printed Page 68279promulgating a standard addressing general industry first, OSHA is giving “due regard to the urgency of the need” for a standard to protect general industry employees. 29 U.S.C. 655(b)(7). OSHA has thus ensured that the greatest number of MSD hazards will be addressed by this final rule, while the Agency determines appropriate regulatory approaches for other industries. For example, OSHA has been working closely with NIOSH on a study of ergonomic hazards and solutions in the maritime industry. In addition, OSHA recently published an ergonomics best practices guide for the construction industry on its Web page. OSHA has also provided training grant money targeted to ergonomic hazards in the construction industry.

OSHA intends to develop ergonomics rules that can be tailored to the conditions that are unique to the firms in these industries. OSHA agrees with commenters who have said that the experience the Agency gains from this first phase will provide valuable assistance in developing an effective ergonomics rule for the construction, agriculture, and maritime industries (see, e.g., Ex. 31-252).

As noted earlier, OSHA has decided that the final standard should not cover work performed by persons employed incidentally to or in support of construction, agriculture and maritime operations, regardless of what type of activity they perform. To illustrate, the standard does not cover employees of a residential home building company performing office work in support of construction activities, even though office work is a general industry operation under other OSHA standards. Similarly, the final rule does not cover janitorial workers employed by a shipyard or employees performing regular maintenance on power industrial trucks in a marine terminal. Applying the rule to general industry jobs of a construction employer (the office manager of a construction company, for example) would present the employer with logistical difficulties. Requiring construction, agriculture and maritime employers to set up an ergonomics program for the few general industry employees performing ancillary functions in their workplaces would not be an efficient allocation of safety and health resources. Several commenters have told OSHA that it is most efficient to set up an ergonomics program on a company-wide basis (see, e.g., Exs. 26-1370). Doing so allows employers to implement program elements such as providing employee information and training more efficiently.

B. Railroad Work

Paragraph (b)(3) states that this standard does not cover railroad work. Although some railroad operations are normally covered by OSHA general industry standards, other railroad work is regulated by the Federal Railway Administration (FRA) and not by OSHA. 29 U.S.C. 653(b)(4). In addition, the Preliminary Economic Analysis indicated that the standard would not cover any railroad employment, and this statement caused some uncertainty among affected parties as to the Agency's intent (Ex. 28-1, chapter II, p.3).

In a May 23, 2000 Federal Register notice (65 FR 33263), OSHA provided an analysis of the economic impacts of the proposed rule on railroads. On July 7, 2000, OSHA also held a supplemental hearing on this economic analysis, in which the Association of American Railroads (AAR) participated. AAR's comments and testimony, however, highlighted the complexity of the OSHA/FRA jurisdictional issues (Ex. 703-3, Tr. 18272, 18313-16, 18321). OSHA has determined that it needs to gather additional information and conduct further analysis on these issues before it can decide whether and how to address ergonomic hazards in the railroad industry. Therefore, OSHA has decided not to cover any aspect of railroad work at this time.

C. Other Exemptions Requested.

A number of other rulemaking participants also requested that certain jobs, industries or employers be excluded from this rule (e.g., ambulances, landscaping, transfer and storage, petroleum and chemical industries, forging industry). Many requesting exemptions did not provide any reasons why they should be excluded (see, e.g., Exs. 30-303, 30-491, 30-2102, 30-3005, 30-4439, 30-4444, 30-4598, 601-X-1163, 601-X-1438). Some merely said they had “many work conditions and factors present in the industries OSHA has chosen to exempt,” but did not discuss either what those factors were or why they supported an exclusion (see, e.g., Exs. 30-2348, 30-3005, 30-3186, 30-3311 30-3462, 30-3482, 30-3582, 33-1181). OSHA does not find any basis for excluding those industries from this rule.

A few requests that included more discussion supporting an exemption are discussed individually:

1. Solid Waste Management

The National Solid Waste Management Association (NSWMA) urged OSHA to exempt the trash collection industry from the standard (Ex. 32-234). NSWMA said an exemption was warranted because, like the construction industry, its working conditions include non-fixed worksites, limited supervisory oversight, adverse environmental conditions, and high employee turnover. In addition, according to NSWMA, “uncontrollable” factors, such as variable load weights, municipal regulations, and its members' lack of control over the location of the garbage they collect, also support an exemption. Finally, NSWMA also argued that there is little available information about health effects and effective solutions in the industry. The West Coast Refuse and Recycling Coalition and the Municipal Waste Management Association (MWMA), representing municipal solid waste agencies in larger cities, requested an exemption for some of the same reasons (Ex. OR 323, Tr. 17972-73). Although OSHA recognizes that employers in this industry face particular challenges in implementing some types of ergonomic controls, it does not believe that the arguments presented compel exemption of the solid waste and recycling industry from this standard.[1]

As noted above, OSHA does not believe that the fact that some aspects of an industry's working conditions are similar to some of the conditions in exempted industries necessarily warrants exempting those industries. In any event, the working conditions in the solid waste industry differ significantly from those in construction. In the solid waste industry employees repeat the same routes every week or more frequently. The route is a fixed worksite that the employee gets to know. Because the route is fixed, the employer is able to anticipate and plan for the hazards that the employees might encounter. Likewise, the fixed routes enable employers to plan for how the changing seasons will affect collection on the route. NSWMA's testimony that a “vast majority * * * if not all” of its member Start Printed Page 68280companies have safety and health programs that include addressing ergonomic hazards on a “day to day” basis indicates that most industry employers already are taking these steps (Tr. 18074).

Although NSWMA argued that high turnover in the industry supports exemption in the same way that the use of “day laborers” in the construction industry does, NSWMA did not provide any evidence on turnover rates in its industry, or on how those rates compare to other industries this rule covers. Nor did NSWMA explain why high turnover rates pose the same issues as day laborers. Other solid waste associations and employers did not indicate that high turnover rates are a problem in the industry. The solid waste industry has the opportunity to train its workers; in fact NSWMA and MWMA testified that their members already provide training (Tr. 13404-405, 18079). It explained that this training is the most effective way to deal with the fact that its workers are often unsupervised:

MR. BEDERMAN: No, the most important way to monitor this type of thing is actually not to monitor it, but * * * actually good training (Tr. 18079).

The record also does not support industry claims that solid waste industry employers have little control over their employees' working conditions. For example, NSWMA said that, because of municipal ordinances, its members have no control over the weight and location of the garbage they collect and that municipalities were “very hesitant” to make changes (Ex. 32-234-2, Tr. 18041). But 60 percent of residential collection is privately controlled (Tr. 18046). For the 40 percent of trash collection that is under the control of municipalities, as noted below, the testimony of NSWMA and MWMA suggest there is not a significant problem.

NSWMA testified that a majority of municipalities have already implemented container requirements (Tr. 18071; see also Tr. 13402). Both NSWMA and MWMA testified that the growing trend is toward requiring customers to place garbage containers at the curbside (to eliminate the need for employees to carry heavy containers) and limiting container size (to reduce injury associated with heavy lifting) (Tr. 18070-71, 13402-3; see also Tr. 12019). Bruce Walker, of Portland's solid waste and recycling agency, said that such weight limits had been positively received in that city (Tr. 12014-15). NSWMA, MWMA and Mr. Walker also said that employers are instructing their employees not to lift containers that exceed the weight limits (Tr. 12014, 13404-06, 18073). In addition, container size and location issues are regularly addressed as part of contract negotiations between private collectors and municipalities (Tr. 18041). All of this evidence suggests that solid waste employers should not have difficulties continuing to negotiate contracts that will assist them in complying with this final standard.

And contrary to NSWMA's argument, the record contains abundant evidence on MSD hazards and ergonomic solutions in this industry (Ex. 32-234-2). The industry recognizes that lifting heavy loads creates a hazard for employees (Tr. 13406, 13413, 18009). Industry representatives testified that their workers experience work-related MSDs, particularly MSDs of the lower back (Tr. 13379, 13396, 13412, 18009). In fact, NSWMA submitted a manual of recommended ergonomic practices developed by Environmental Industry Associations (EIA), NSWMA's parent organization, that identified lifting bulky loads and twisting and carrying loads as risk factors for the industry and identified back pain, hernias and strains, sprains and tears as common MSDs in the industry (Ex. 32-234-2-1). EIA also recommended that employers establish ergonomics programs for trash collection and recycle operations (Ex. 32-234-2-1).

The record also includes evidence on a wide range of controls that are successfully in use in the industry. The EIA manual on ergonomic practices said the industry “has many options” for addressing ergonomic hazards, including weight limits built into residential contracts, the use of lifting devices, and training (Ex. 32-234-2-1). The record indicates that the following controls are also in use in the industry:

  • Mechanical container lifts,
  • Limits on container size and weight and requirements for container handles,
  • Carts, dollies and other mechanical assists for pushing, carrying and lifting containers,
  • Collection trucks designed for use in narrow alleys and streets to eliminate carrying containers long distances,
  • Changes in municipal collection regulations to reduce lifting hazards (e.g., curbside service, container size and weight limits, reduction in loads through increases in collections per week, separate collections for large bulky items),
  • Training in proper lifting techniques,
  • Work practice controls (e.g., training not to lift overweight loads),
  • Changes in compensation systems to eliminate incentives for hazardous work speed and lifting (Tr. 12017, 13402-06, 17969, 18212).

John Legler, of Waste Equipment Technology Association, added that garbage trucks are being retrofitted with mechanical lifts “quite regularly” (Tr. 18012-13). Bruce Walker, of Portland's residential solid waste and recycling agency, testified that enforcing container weight limits had been established had led to low MSD rates (Tr. 11968-70).

This evidence not only does not support exemption, it is clear evidence that effective ergonomic programs and controls are technologically and economically feasible for the industry as a whole. OSHA recognizes that some of the hazards facing waste industry employees cannot be eliminated completely. But the standard only requires employers to control MSD hazards “to the extent feasible.” It expects NSWMA's member companies to continue to implement the type of safety programs they are already using, and to continue improving those programs as knowledge and technology advance.

2. Utility Workers

Utility companies asked OSHA to exempt utility line workers and power plant maintenance workers from the standard for two reasons. First, they pointed out that line workers face some of the same conditions as construction, agriculture and maritime (e.g., adverse environmental conditions). They also argued that these jobs involve both general industry and construction activities because utility line workers not only maintain and repair utility lines, a general industry activity, but also they install, alter, and improve lines, activities which are governed by OSHA construction standards (Exs. 30-3853, 32-300, Tr. 2893-95). Edison Electric Institute (EEI) testified:

As you know, a line worker working on a pole may at one moment be engaged in what is considered to be construction work under 1910.12(b) and under 1926(b) and at the next moment be engaged in what is considered to be general industry work under 1910.269. That is to say that if a person is doing work for the improvement of the facility, that is construction as defined by OSHA and the Review Commission. And if not, then general maintenance (Tr. 97-98).

EEI also pointed out that it would not be practical for its employees to be covered by the standard for only some of their tasks:

EEI recommends that OSHA clarify that to perform a job hazard analysis means to analyze a job, not a task. A job may not involve only one task, but may involve multiple tasks depending upon the nature of Start Printed Page 68281the work on that given day (Ex. 32-300, p. 29).

OSHA agrees with EEI that determining whether a job exposes an employee to an MSD hazard requires looking at all of the tasks and activities that comprise that job. That is what this job-based standard requires. But as EEI itself pointed out, some utility companies already have programs in place for analyzing and controlling MSD hazards (Ex. 30-2725, Tr. 2384, 2396-98). Presumably, these companies analyzed the entire jobs of utility line workers and power plant maintenance personnel rather than just the general industry tasks in those jobs. None of the utility companies indicated that construction activities constitute the primary operations of utility companies. Thus, including all rather than part of the tasks of these jobs in the ergonomics program this rule requires should not impose a substantial additional burden for utility companies. OSHA requires utility companies to protect their employees, including those that spend part of their days performing construction work.

3. Building Materials Distributors

A number of building materials distributors argued that they should be exempted because a large portion of their business involves delivering supplies to construction sites and to various places on construction sites (Exs. 30-541, 30-4267, 30-4351). Because of this, they said, their employees are exposed to the same ergonomic risk factors and adverse working conditions that justified an exclusion for the construction industry. OSHA has never excluded general industry employers from standards because they provide equipment or materials for exempted industries. Thus, while marine terminals are excluded from this standard, manufacturers and transportation companies that deliver new equipment to marine terminals are still covered.

In addition, almost every comment received from building materials distributors indicated that the industry has already taken substantial steps to control MSD hazards. For example, Panther Building Materials, Inc., said that it provides hydraulics crane, carts and other material handling equipment in order to safely deliver supplies (Ex. 30-4351). It also provide at least two employees per truck crew in order to minimize carrying.

4. Home Health Care.

The American Association for Homecare (AAHomecare), asked that the home health care industry be exempted from the standard because home health care employees perform work in private homes that are not under the employer's control.

AAHomecare said its industry should be exempted because OSHA has indicated that it will not impose OSHA standards on private homes, unless they are being used as part of the “manufacturing process” (Ex. 30-3862). But the OSHA policy AAHomecare refers to only addresses work that employees perform in their own homes.

AAHomecare also argues that the court in the Bloodborne Pathogens decision (American Dental Association. v. Martin, 994 F.2d 823 (7th Cir. 1993)), held that the OSH Act “does not authorize OSHA to impose work-site related standards on home work sites that are not under the employers control” and that the Agency's directive limiting the application of the Bloodborne Pathogens rule at home-based worksites (CPL 2-2.44D) should apply to this standard as well (Ex. 30-3862). But the Seventh Circuit did not make as broad a holding as AAHomecare suggests. The court said only that OSHA has an “obligation to consider such questions and the general issue that they present before imposing” a standard. American Dental Assn., 984 F.2d at 830.

In this case, OSHA is considering these issues and addressing them here. In general, employers sending their employees to work at sites they do not control are required to do everything within their control to protect those employees, but will not be held liable for the existence of conditions they cannot control. Thus home health care agencies must provide their employees with the information required by paragraph (d), provide those employees with MSD management where an MSD incident occurs in a job that meets the levels in the Basic Screening Tool, and perform job hazard analyses when necessary. In addition, they must comply with the other programmatic elements of the standard, in particular providing the employees with necessary training and equipment to minimize ergonomic hazards.

But employers' control obligations will be limited by the control they have over their employees' actual working conditions. Thus an employee who is expected to move patients in their own homes should be taught how to do so as safely as possible. For example, evidence was submitted to the record that portable lifting devices and other control measures are available for use in home settings (Ex. 37-4, Tr. 11743-45). According to witnesses, some portable lifting devices have been designed especially for home settings (Tr. 11743-45). The witnesses said that these devices allow mechanical transfer in and out of bed, onto a toilet, and even into a tub (Tr. 11745). Other control measures described in the record include friction reduction sheets, gait belts, toilet and shower chairs, slide boards, and convertible chairs and wheelchairs (Ex. 37-4). To the extent these controls are feasible, and employers find them to be effective, employers could provide them to their home health worker employees. But an employer is not expected to change the configuration of a patient's bedroom or bathroom, although it must provide the worker with the training and controls necessary to allow him or her work as safely as possible in that location.

5. Small Businesses

A number of commenters said OSHA should exempt small businesses because compliance would be too burdensome (Ex. 30-3167, Tr. 3126-27, 3332). They said that small businesses do not have the knowledge or resources to hire outside experts to help identify and address MSD hazards (Tr. 3127). They also said that MSD rates were low for small businesses (Exs. 30-3167, 600-X-1, Tr. 3332). National Small Business United (NSBU) said that for the majority of small businesses the occurrence of an MSD was rare (Ex. 30-3167). By contrast, another participant (Ex. 26-1370) at OSHA's stakeholder meetings for Ergonomics Program Standard Development specifically supported the inclusion of small employers in the rule, saying that the rule was particularly needed in these facilities because they were less likely already to have either an ergonomics or a safety and health program (Exs. 26-1370).

OSHA considered whether to apply alternative regulatory provisions to small employers as part of the analysis required by SBREFA and the Regulatory Flexibility Act (64 FR 66040-53). OSHA does not believe the record supports such an approach for small business. First, employees who work for small businesses are experiencing work-related MSDs, and they need the protection this standard will provide. According to BLS, employees in establishments of all sizes have reported MSDs that are serious enough to involve days away from work.

In a number of industries comprised predominantly of small businesses, the risk of MSDs is particularly high. This is especially true in the health care industry. For example, many medical sonographers are employed by small businesses. Joan Baker, of the Society of Diagnostic Medical Sonographers, Start Printed Page 68282testified that the MSD prevalence rate among sonographers exceeds 80 percent and that the frequency and severity of these MSDs appears to be increasing (Tr. 11881-82). Dr. Linda Morse, chief of occupational medicine at Kaiser San Francisco, said that the injury rate among ultrasound technicians in Northern California was almost 100 percent (Tr. 15045). Many nurses, nurses' aides, and orderlies are also employed by small businesses, including small nursing homes and small health care agencies. According to BLS, in 1996 about 15 percent (more than 103,000) of all MSDs resulting in days away from work were reported by health care workers. In addition, the American Nurses Association and the Service Employees International Union, among others, testified that the occurrence of MSDs among home health workers is particularly high (Exs. 32-274-1, 502-215).

OSHA does not believe this standard will be too burdensome for small businesses. The record shows that many small businesses have successfully implemented ergonomics programs (see, e.g., Exs. DC 66, 500-208-3, Tr. 17350-17355). These programs have paid for themselves in terms of reductions in medical costs, lost workdays and product reject rates (Tr. 17354). Moreover, if small businesses have low rates of MSDs, the obligations for those employers will be commensurately small (Ex. 30-3167). The only obligation that many small employers will have is a one-time requirement to provide basic information to their employees. And these employers can satisfy that burden by copying, distributing, and posting the information sheets in Appendices A and B.

The record shows that small businesses are easily able to get the information they need to address MSD hazards. A number of organizations have developed and are providing model programs, checklists, “best practices” guides and control information to small businesses (see, e.g., Exs. 32-234-2-1, OR 351). A number of organizations have developed and are providing model programs, checklists, “best practices” guides and control information (Exs. 32-234-2-1, OR 351 ). For example, the American Dental Association and state affiliates, such as the Oregon Dental Association, have developed and disseminated information on ergonomics for its members and held a “Dental Ergonomics Summit Conference” this year (Ex. OR 351). A number of trade associations are also providing ergonomics training for small businesses (Ex. 37-25, OR 351). For example, Suzanne Rodgers, an ergonomist with 32 years of experience assisting a wide range of companies in addressing MSD hazards, said that she has provided training to small businesses at various conferences organized by the Chamber of Commerce (Ex. 37-25).

There are also other sources of information and assistance for small employers. OSHA and NIOSH provide free hazard evaluation services for small employers. OSHA will be providing additional information in the appendices to this final rule and other materials on the OSHA Webpage (www.osha.gov). Many other Internet sites also provide free ergonomics information.

III. Other Scope and Application Issues

A. Jobs Involving Both General Industry and Non-General Industry Tasks

Several commenters raised questions about whether this standard applies when an employee's job involves both general industry and non-general industry activities (Exs. 30-3853, 32-300, Tr. 2893-95). As explained above in reference to utility workers, because this is a job-based standard, OSHA intends employers to include all employees who perform general industry work within this standard, even if those employees also perform some work that may be classified as construction, agriculture, or maritime. Thus, employers engaged in landscaping or lawn and garden services, a general industry classification, are covered by this standard even if their employees' jobs include some harvesting of sod or trees, an agricultural classification. On the other hand, nurseries and tree farms, which are agricultural classifications, need not comply with the standard even if their employees perform some minor landscaping or horticultural services. Comments by the AFL-CIO best sum up the need for defining the application of the standard in this way:

Since this is a job-based standard, it is important that jobs in fact are covered. To apply the standard in some aspects of a job and not others would leave workers without protection and make compliance and enforcement confusing and difficult (Ex. 500-218, p. 133).

In addition, as stated in the discussion of utility line workers, the only way an employer can determine whether a job exposes an employee to an MSD hazard is to look at all the tasks and activities that comprise that job. Eliminating some tasks from this analysis may prevent identification of risk factors that are causing or contributing to the hazard. If employers do not have that information, the controls they implement may not be successful. Therefore, in order to ensure that an employee is protected from MSD hazards while performing the general industry tasks, it may be necessary to control risk factors for the job as a whole.

B. Multiple Employer Worksites and Contract or Shared Employee Situations

A number of participants asked how the standard would apply at multi-employer worksites. Similar situations arise under many standards, and OSHA has published a “Multi-Employer Citation Policy” that discusses the allocation of responsibility among various categories of employers. CPL-0.124 (Eff. Dec, 10, 1999). OSHA has not historically discussed the operation of this policy in rulemaking documents, viewing it as an enforcement issue. In a challenge to OSHA's Bloodborne Pathogens standard, however, the United States Court of Appeals for the Seventh Circuit held that, where parties to a rulemaking raise issues about the application of the standard in this circumstance, OSHA should discuss the application of this policy. American Dental Ass'n. v. Martin, 984 F.2d 823 (7th Cir. 1993). Such a discussion is particularly useful with respect to some of the issues raised by this standard.

Under the multi-employer worksite policy, employers are generally required to take whatever steps are within their power to protect their own employees, and also to abate hazards within their control when other employees are exposed to those hazards. This means that an employer whose employees are working at a location controlled by another employer, for example a temporary services agency, must provide its employees with the information required by paragraph (d). Both employers will need to know if an employee reports an MSD, and must implement measures to share this information. They should consult to determine whether the report qualifies as an MSD incident under this standard, but the employer with control over the workplace must screen the job to determine whether further action is required. If so, the employer with control over the workplace must also implement the program elements required by this standard. And if such an employer hires a temporary worker to work in a job for which an ergonomics program under this standard is already in place, that employer must provide the temporary employee with any necessary training. The employing agency, however, will necessarily be responsible for providing the employee Start Printed Page 68283with any necessary MSD management, including WRP. OSHA believes that this is basically how businesses are currently operating. OSHA expects that they may pay more attention to these issues and address them explicitly in their contracts after the standard is in effect.

C. United States Postal Service

Questions were also raised as to the effect of this standard on the United States Postal Service. In 1998, Congress amended Section 3(5) of the OSH Act to include the United States Postal Service within the Act's definition of employer. 29 U.S.C. 652(5). Postal Service Enhancement Act, P.L. 105-241. As a result, this standard applies to all USPS operations that are not construction, agriculture or maritime operations.

D. Municipalities

A number of municipalities asked whether the standard applies to local governments. States and their political subdivisions are not employers under the OSH Act, and they are not covered by this final rule or any other federal OSHA standards. However, the 23 States and 2 Territories with approved State Plans are required by Section 18(c)(2) of the OSH Act to issue standards that are “at least as effective” as Federal standards. 29 U.S.C. 667. Therefore, State Plan States must adopt ergonomics program standard within six months of the publication of this standard. Under Section 18(c)(6), State Plan States must apply such standards to State employees and to employee's of the State's political subdivisions. (See State Plan States section of this preamble for the list of State plan States.)

Industries and Jobs This Standard Covers

  • Agricultural services
  • Soil preparation and crop services, including crop planting, cultivating and protecting
  • Crop harvesting
  • Veterinary services
  • Lawn and garden services
  • Ornamental shrub and tree service
  • Tree trimming
  • Landscaping and horticultural services
  • Oil and gas drilling/extraction operations
  • Health care employees
  • Truck driving
  • Office workers employed by general industry establishments
  • Office workers employed by agricultural services establishments
  • Utility line operations including maintenance, repair, installation, construction, alteration and improvement operations
  • Power plant maintenance operations including repair, alteration and improvements
  • Boat building and repair
  • Airline baggage handlers
  • Airline reservation and ticket agents
  • Airline maintenance crews
  • Railroad equipment building and rebuilding
  • Maintenance of equipment or structures
  • Forestry services
  • Forestry nurseries and gathering of forest products
  • Commercial fishing
  • Fish hatcheries and preserves
  • Hunting and trapping
  • Game propagation
  • State and municipal employees (in State Plan States) performing general industry operations
  • U.S. Postal Service
  • Federal government employees performing general industry operations

Industries and Jobs This Standard Does Not Cover

  • Construction employment and operations
  • Agriculture employment and operations
  • Farm labor and management services
  • Livestock and animal specialty services
  • Maritime employment and operations
  • Ship building and repair
  • Longshoring
  • Office workers employed by construction, agriculture or maritime establishments
  • Maintenance workers employed by construction, agriculture or maritime establishments
  • Work at the employee's own home
  • Railroad work
  • Railroad terminal and switching
  • Airline attendants
  • Airline pilots

Paragraph (c)—How Does This Standard Apply if I Already Have an Ergonomics Program in Place When the OSHA Ergonomics Program Standard Becomes Effective?

Paragraph (c) of the final standard is a grandfather clause, which, under certain conditions, permits an employer who has already implemented and evaluated his or her ergonomics program by the date on which the final rule becomes effective to continue that program instead of complying with the OSHA standard. This paragraph permits employers to do this only if the program: is in writing, contains the core elements of basic ergonomics programs, and is demonstrably effective. The criteria for judging whether an employer's program adequately addresses the core elements are contained in paragraphs (c)(1)(i) through (v). Examples of criteria for judging the effectiveness of the program are contained in paragraph (c)(1)(v). Paragraph (c)(2) requires that, within 1 year of the standard's effective date, grandfathered programs have in place an MSD management policy that meets the requirements of paragraphs (p) through (s) of the final rule. Final paragraph (c)(3) denies grandfather status to employers who have policies or procedures that discourage employees from participating in the program or reporting signs or symptoms of MSDs or the presence of MSD hazards in the workplace.

In the final rule, OSHA is requiring that grandfathered programs be in writing. The final rule's grandfather clause requires the employer to demonstrate program effectiveness and, like the proposal, to have a program that includes the core elements of effective programs. The Agency believes that this can best be accomplished with a written program. Further, both OSHA and the employer will find compliance with the grandfather clause easier to demonstrate if the program is written. By “written,” OSHA also intends that the program can be maintained electronically.

Final paragraph (c)(1) requires grandfathered programs to include the core elements of effective ergonomics programs: management leadership and employee involvement; job hazard analysis and control; training; and program evaluation. This paragraph also indicates the subelements within each core element that OSHA believes are essential to the proper functioning of that core element. These subelements are stated broadly. For example, a subelement of management leadership (paragraph (c)(1)(i)) that OSHA considers essential is the establishment of an effective reporting system that permits employees to report the signs and symptoms of MSDs and to receive prompt responses to their reports. The employer's program must include all of the subelements of the core elements to qualify for grandfather status.

The following discussion explains the subelements comprising each of the core elements. Employers are free to include additional elements or subelements in their program, and doing so will not interfere with the program's grandfather status, provided that the program includes the core elements identified by paragraphs (c)(1)(i) through (v), and the subelements associated with them.

The proposed rule would have required an existing program to meet a “basic obligation” provision for each core element. Basic obligations, which were intended to capture the essence of the more detailed subelements proposed for each core element, were proposed for each program element. Table 1 compares the proposed rule's basic obligations sections with the corresponding subelements of the final rule's grandfather clause. The following discussion also explains OSHA's Start Printed Page 68284reasons for revising the basic obligations proposed.

Final paragraph (c)(1)(i) states that grandfathered programs must include management leadership and identifies the subelements for that core element. Employers are required to demonstrate management leadership of their ergonomics program through the following subelements: an effective MSD reporting system and prompt responses to employee reports, the assignment of clear program responsibilities, and regular communication with employees about the ergonomics program. OSHA's experience has shown that, to be effective, management leadership must be active rather than passive. Leadership that is limited to a “paper program” with written policies and procedures but is not translated into practice by management would not meet the intent of this provision. On the other hand, management leadership that is known throughout the organization because of management's active engagement in the ergonomics process and appropriate follow-through on commitments would clearly fulfill this intent. The final rule's management leadership subelements are equivalent to those of the proposed basic obligation for this core element, except that OSHA has added “regular communication with employees” and “prompt” responses to reports to the subelements of the final rule's grandfather clause. The Agency has added these subelements to make sure that management leadership is responsive to employee reports and that management's commitment to the ergonomics program is communicated from top management down to the employees performing the work and implementing the program. Taken as a whole, OSHA believes that the subelements in final paragraph (c)(1)(i) will ensure that grandfathered programs have active rather than passive management leadership.

Final paragraph (c)(1)(ii) requires that grandfathered programs include employee involvement, as demonstrated by the early reporting of MSDs and active employee involvement in the implementation, evaluation, and future development of the employer's ergonomics program. OSHA has vigorously advocated employee participation in workplace safety and health issues for many years and is pleased by the growing recognition of the importance of employee participation on the part of private-sector companies, trade associations, safety and health professionals, and employees themselves. OSHA supports employee participation because employees have the most direct interest in their safety and health on the job, they have an in-depth knowledge of the tasks they conduct at the worksite, they often have excellent ideas on how to solve ergonomic problems, and their interest in the program is vital to its success. If employees do not report their MSD signs and symptoms or MSD hazards, any ergonomics program will fail. OSHA has specifically included in paragraph (c)(1)(ii) a provision that employees be involved in the implementation, evaluation, and future development of grandfathered programs to make it clear that employee involvement extends to every element of the program, including program evaluation and future modifications to the program to reflect changes over time.

Final paragraph (c)(1)(iii) requires grandfathered programs to contain job hazard analysis and control, as demonstrated by a process for identifying, analyzing, prioritizing (if necessary), and controlling MSD hazards in affected jobs and following up to ensure control effectiveness. This is the heart of any ergonomics program. For employees to be protected from MSD hazards, it is obvious that those hazards must be eliminated or controlled. A note following this paragraph explains that personal protective equipment (PPE) may be used as a supplement to engineering, work practice, and administrative controls. The employer may only use PPE alone where other controls are not feasible. In addition, the note explains that, if PPE is used, the employer must provide it at no cost to employees.

As can readily be seen from Table 1, this provision has been changed substantially from the corresponding requirement in the proposal. The job hazard analysis and control subelements in the final rule's grandfather clause are designed to be less prescriptive and more flexible than those proposed and to fit better with the way rulemaking participants (see, e.g., Ex. 32-77, Tr. 14723, Tr. 4973) described this process in their existing ergonomics programs.

The final rule's grandfather clause requires employers to use a process for identifying, analyzing, and controlling MSD hazards in problem jobs. Employers may also prioritize jobs identified as having MSD hazards and then follow their prioritization scheme when controlling these hazards. Employers with grandfathered programs must also follow up on their hazard control measures to ensure that the controls implemented are effective. This is the process that participants in the rulemaking told OSHA they use in their existing ergonomics programs. Companies like the Dow Chemical Company (Ex. 32-77; Tr. 5297), Levi Strauss (Tr. 14723, 14736, 14746), the Consolidated Edison Company of New York (Tr. 4644), and IBP, Inc. (Tr. 4973) described a process that includes these job hazard analysis features.

As discussed in the summary and explanation for the standard's job hazard analysis and control requirements (paragraphs (j) through (m)) later in this section of the preamble, the rulemaking record demonstrates that, currently, employers with existing programs do not always fix all problem jobs, nor do they eliminate all MSDs. To address these facts, the final rule's grandfather clause (1) permits employers to bring all problem jobs into their programs, and (2) acknowledges that employers will not eliminate all MSDs. Employers with grandfathered programs must, however, implement controls that (1) control the MSD hazards, (2) reduce MSD hazards to the levels specified in Appendix D, or (3) reduce MSD hazards to the extent feasible. These are the same compliance endpoints specified in paragraph (k)(1) of the final rule. These endpoints are explained in the summary and explanation for that paragraph.

Thus, the grandfather clause in the final rule will enable employers with existing programs that only address certain jobs to qualify for the grandfather clause if they include all problem jobs in their program before the standard's effective date. Thus, even programs that do not currently address all problem jobs would not be precluded from qualifying for grandfather status, providing that they revise their approach to include all such jobs before the standard is in effect.

Final rule paragraph (c)(1)(iv) requires grandfathered programs to provide for the training of managers, supervisors, and employees in the employer's ergonomics program and their role in it; the recognition of MSD signs and symptoms; the importance of early reporting; the identification of MSD hazards, and methods that the employer is using to abate them. Training is to be provided at no cost to the employees trained. Training is necessary to ensure that employees in problem jobs, their supervisors, and the individuals who set up and manage the ergonomics program are provided with the knowledge and skills necessary to recognize MSD signs, symptoms, and hazards in their workplace and to effectively participate in the ergonomics program. These individuals also need to be trained in the need for early reporting. The length and frequency of training is determined Start Printed Page 68285by the needs of the workplace. Periodic training is necessary to address new developments in the workplace and to reinforce and retain the knowledge already acquired in previous training, but to make this element as flexible as possible, OSHA is not specifying the frequency with which training must be provided.

Final rule paragraph (c)(1)(v) requires grandfathered programs to include evaluations of the program, as demonstrated by regular reviews of the elements of the program, the effectiveness of the program as a whole, and the correction of identified deficiencies. This means that employers must, at a minimum, assess the functioning of their ergonomics program, compare its provisions to the elements and subelements specified in the grandfather clause, identify any deficiencies in the program, and correct them. Employers are required to make sure that the ergonomics program they have implemented is eliminating or controlling the MSD hazards in jobs in their workplace. A program designed for a large site with many different jobs, for example, is likely to be more formal and extensive than one designed for a small site with one or two high-risk jobs. Similarly, an ergonomics program that fits a manufacturing facility may not be appropriate for a work environment in the service sector. To make the evaluation requirements for grandfathered programs as flexible as possible, OSHA is not specifying the frequency with which evaluations must be conducted. However, employers do need to reevaluate their programs periodically to ensure that they are performing up to expectations.

Final rule paragraph (c)(1)(v) also requires the program evaluation to review the effectiveness of the program, using such measures as: reductions in the number or severity of MSDs, increases in the number of jobs in which ergonomic hazards have been controlled, reductions in the number of jobs posing MSD hazards to employees, or any other measure that demonstrates program effectiveness.

Lastly, final rule paragraph (c)(1)(v) requires the employer to conduct at least one review of the elements and effectiveness of the program before January 16, 2001. This provision, which is discussed in detail below, ensures that only effective programs are grandfathered. Although paragraph (c)(1)(v) requires employers to correct deficiencies in the program, OSHA would not consider an employer who uncovers major deficiencies in the program elements or whose evaluation does not demonstrate the overall effectiveness of the program to be in compliance with this paragraph. Requiring any program that is grandfathered to be demonstrably effective is basic to employee protection and to ensuring that grandfathered programs are at least as effective as the programs required by the standard OSHA is promulgating for all general industry employers and employees.

The final rule's grandfather clause does not identify specific rates of MSDs or other similar measures of effectiveness that a grandfathered program must achieve because OSHA is aware that the programs grandfathered in will be at many different stages of program development and because OSHA wishes to recognize as wide a range of existing effective programs as possible. Although the grandfather clause does not set a specific reduction goal, employers are required by paragraph (c)(1)(v) to demonstrate the effectiveness of their programs.

Paragraph (c)(2) of the final rule requires employers with grandfathered programs to institute an MSD management policy (including work restriction protection) that meets paragraphs (p) through (s) of the final rule within 12 months of the effective date of the standard. Thus, the final rule's grandfather clause is designed to recognize existing ergonomics programs that are effective even if they do not have an MSD management policy until a year after the effective date of the standard.

OSHA believes that all successful ergonomics programs depend on the early reporting of and intervention with regard to MSD signs and symptoms; this is as true for grandfathered programs as for those that are not grandfathered. As discussed at length in connection with paragraph (r), OSHA has found, both on this record and in the records of many other OSHA standards, that wage and benefit protection is essential to early reporting and employee participation in the employer's program. Without such protection, employees fear economic loss and often simply do not report their signs and symptoms until the injury has progressed to the point where work (and perhaps full recovery) is no longer possible. In addition, as fully explained in the summary and explanation for paragraphs (p) through (s) of the final rule, when an employee reports an MSD, early intervention is required to ensure appropriate treatment, work restrictions, and follow up. OSHA anticipates that many existing programs will be able to meet the requirements of paragraph (s) by use of the dispute resolution mechanisms described in paragraph (s)(5).

Final rule paragraph (c)(3) states that an ergonomics program of an employer who has policies or procedures that discourage employee from participating in the program or reporting the signs or symptoms of MSDs or the presence of MSD hazards in the workplace does not qualify for grandfather status. This provision, which is equivalent to paragraph (h)(3) of the final rule, ensures that employees are as free to participate fully in grandfathered programs as employees in programs that are not grandfathered. As discussed at length in connection with paragraph (h)(3), OSHA has found that employee participation is essential to a program's effectiveness and that a prohibition on policies that inhibit that participation is warranted.

Table 1—Comparison of Proposed Basic Obligations with Final Grandfather Clause Program Element Core Elements and Subelements

Proposed basic obligationCorresponding core elements and subelements of the final grandfather clause
Proposed Management Leadership ObligationFinal § 1910.900(c)(1)(i) and (ii) and (c)(3): [Your program must contain the following elements:]
You must demonstrate management leadership of your ergonomics program. Employees (and their designated representatives) must have ways to report MSD signs and MSD symptoms; get responses to reports; and be involved in developing, implementing and evaluating each element of your program. You must not have policies or practices that discourage employees from participating in the program or from reporting MSD signs or symptoms(c)(1)(i) Management leadership, as demonstrated by an effective MSD reporting system and prompt responses to reports, clear program responsibilities, and regular communication with employees about the program; (c)(3) An employer who has policies or procedures that discourage employees from participating in the program or reporting the signs or symptoms of MSDs or the presence of MSD hazards in the workplace does not qualify under paragraph (c) of this section.
Start Printed Page 68286
Proposed Employee Participation Obligation:
You must set up a way for employees to report MSD signs and symptoms and to get prompt responses. You must evaluate employee reports of MSD signs and symptoms to determine whether a covered MSD has occurred. You must periodically provide information to employees that explains how to identify and report MSD signs and symptoms(c)(1)(ii) Employee participation, as demonstrated by the early reporting of MSDs and active involvement by employees and their representatives in the implementation, evaluation, and future development of your program; [See also paragraph (c)(1)(iv).]
Proposed Job Hazard Analysis and Control Obligation:Final § 1910.900(c)(1)(iii): [Your program must contain the following elements:]
You must analyze the problem job to identify the ergonomic risk factors that result in MSD hazards. You must eliminate the MSD hazards, reduce them to the extent feasible, or materially reduce them using the incremental abatement process in this standard. If you show that the MSD hazards only pose a risk to the employee with the covered MSD, you may limit the job hazard analysis and control to that individual employee's jobJob hazard analysis and control, as demonstrated by a process that identifies, analyzes, and uses feasible engineering and administrative controls to control MSD hazards or to reduce MSD hazards to the levels specified in Appendix D or to the extent feasible, and evaluates controls to assure that they are effective. Note to Paragraph (c)(1)(iii): Personal protective equipment (PPE) may be used to supplement engineering and administrative controls, but you may only use PPE alone where other controls are not feasible. Where PPE is used you must provide it at no cost to employees.
Proposed Training Obligation:Final § 1910.900(c)(1)(iv): [Your program must contain the following elements:]
You must provide training to employees so they know about MSD hazards and your ergonomics program and measures for eliminating or materially reducing the hazards. You must provide training initially, periodically, and at least every 3 years at no cost to employeesTraining of managers, supervisors, and employees (at no cost to these employees) in your ergonomics program and their role in it; the recognition of MSD signs and symptoms; the importance of early reporting; the identification of MSD hazards in jobs in your workplace; and the methods you are taking to control them.
Proposed MSD Management Obligation:Final § 1910.900(c)(2): [Your program must contain the following elements:]
You must make MSD management available promptly whenever a covered MSD occurs. You must provide MSD management at no cost to employees. You must provide employees with the temporary “work restrictions” and “work restriction protection (WRP)” this standard requiresBy January 16, 2002, you must have implemented a policy that provides MSD management as specified in paragraphs (p), (q), (r) and (s) of this section.
Proposed Program Evaluation Obligation:Final § 1910.900(c)(1)(v): [Your program must contain the following elements:]
You must evaluate your ergonomics program periodically, and at least every 3 years, to ensure that it is in compliance with this standardProgram evaluation, as demonstrated by regular reviews of the elements of the program; regular reviews of the effectiveness of the program as a whole, using such measures as reductions in the number and severity of MSDs, increases in the number of jobs in which ergonomic hazards have been controlled, or reductions in the number of jobs posing MSD hazards to employees; and the correction of identified deficiencies in the program. At least one review of the elements and effectiveness of the program must have taken place prior to [insert date 60 days after the publication date of this standard].

The following paragraphs discuss the comments, evidence and testimony received on the proposed grandfather clause and present OSHA's reasons for accepting or rejecting the rulemaking participants' suggestions and for including the final rule's grandfather clause requirements.

1. Whether the Proposed Standard Would Recognize Existing Effective Programs

Many rulemaking participants said that the proposed rule's grandfather clause would not, as drafted, recognize existing effective programs (see, e.g., Exs. 30-574, 30-973, 30-1722, 30-3765, 30-3813, 30-3815, 30-3845, 30-3853, 30-3934, 30-3956, 30-4185, 31-297, 32-141; 500-188; Tr. 3320, 4137, 11265, 11290, 11615). Most of these commenters argued that the proposed standard would only permit existing programs that already met all of the details of the program required by OSHA's standard to be grandfathered (see, e.g., Exs. 30-1722, 30-3853, 30-3934, 30-3956, 32-141; Tr. 11265, Tr. 11290, Tr. 11615). According to these commenters, the basic obligation OSHA proposed for each core element would in actuality have required an employer to meet each of the proposed subrequirements under that core element. Thus, they reasoned that the proposed grandfather clause would only recognize existing programs that already met all of the particulars of the program envisioned by OSHA's proposed standard even in cases where the employer's program had been demonstrated to be effective in preventing MSDs. For example, the U.S. Chamber of Commerce stated this view as follows:

OSHA claims that employers who already have ergonomics programs in place “may continue that program, even if it differs from the one [the proposed] standard requires” if the program meets certain requirements * * *. The Proposed Rule requires that ergonomics programs that were implemented and evaluated before the effective date of the Proposed Rule must, among other things, (1) satisfy the “basic obligation” of each of the standard's six program elements; and (2) demonstrate that the elements of the preexisting program are “functioning properly * * *.” This provision is completely inadequate to assist employers with preexisting programs. The qualifications Start Printed Page 68287written in to this provision essentially require that employers reconstruct their existing programs, even if any given program is effective in addressing supposed “MSD hazards,” so that it mirrors the Proposed Rule's notion of an appropriate ergonomics program.

[A]n employer is supposed to ensure that his program satisfies the “basic obligation” of each program element. The “basic obligation” of each [proposed] element is so broadly written that it encompasses all requirements enumerated under that particular element. Thus, employers, including those Chamber members who have [spent] a great deal of effort and money to establish voluntary ergonomics programs, will be forced to [alter] their preexisting programs to comply with the Proposed Rule (Ex. 30-1722).

Edison Electric Institute's (EEI's) comments were similar:

EEI supports the concept of a “grandfather” clause. However, the proposed version is more illusory than real, for it appears to require that all newly proposed controls be put in place before the effective date of the standard. It is unrealistic and unfair to “grandfather” only those programs that track the proposed standard. It is as if OSHA is saying, “You don't have to do anything, provided that you have done everything.” A true “grandfather” provision would give credit for effective past programs, regardless of whether those programs conform to the scheme of the proposed program (Ex. 30-3853).

The American Hotel and Motel Association gave examples of how an effective existing program might fail OSHA's proposed grandfather test:

OSHA does not allow for any variation from OSHA's regulation if a [company's] ergonomics program does not satisfy “the basic obligation section of each program element in this standard.” An ergonomics program that is proven to be 100 percent effective would fail if it only offered, for example, training every five years. An ergonomics program also would likely fail if it provided program evaluation only upon a report of an ergonomic injury yet did not have a reportable injury in less than three years (Ex. 30-3233).

The Center for Office Technology noted that none of the exemplary ergonomics programs that have won the Center's ergonomics award have requirements for work restriction protection, which would have been required by the proposed standard to be in place by the standard's effective date in order for a program to be grandfathered (Ex. 30-2208). Thus, the Center pointed out that these very good programs would not meet OSHA's proposed grandfather clause. The Center recommended that OSHA include in the final rule a grandfather clause that would allow any program to be grandfathered in that was reducing MSD incidence and severity rates and educating employees about how to minimize discomfort on and off the job.

The National Association of Manufacturers (NAM) and others noted that some companies have adopted effective ergonomics programs under OSHA's Voluntary Protection Program (VPP) or through corporate settlement agreements (see, e.g., Exs. 30-3392, 30-3815, 30-3819, 30-4499). These rulemaking participants observed that these ergonomics programs would not be acceptable under the proposed grandfather clause even though they have been recognized as effective by the Agency in the past. NAM urged OSHA in the final rule to grant employers' existing ergonomics programs greater acceptance for grandfather status based on the results they achieve.

Similarly, Organization Resources Counselors, Inc. (ORC) noted that a recent General Accounting Office (GAO) study recommended that OSHA adopt a flexible approach in its ergonomics standard (Ex. 500-214). ORC argued that OSHA ignored this GAO recommendation in drafting the proposed grandfather clause. As evidence, ORC pointed out that even the best ergonomics programs would not qualify for status under the proposal's grandfather clause, stating:

OSHA has predicated its proposed Ergonomics Program Standard on its observations that many businesses are successfully addressing ergonomics issues using similar approaches. In recognition of this conclusion and in order to focus its own scarce resources on the areas of greatest need, OSHA has proposed a “limited grandfather clause” for employers with existing ergonomics programs that meet certain criteria. OSHA's proposal made numerous references to the 1997 General Accounting Office (GAO) study of several companies with ergonomics programs which found that the companies' programs reduced work-related MSDs and associated costs, and that the programs and controls selected by employers to address ergonomic hazards in the workplaces were not necessarily costly or complex. As a result, OSHA said, “GAO recommended that OSHA use a flexible regulatory approach in its ergonomics standard that would enable employers to develop their own effective programs.” OSHA claimed that the standard it proposed reflects this recommendation and “builds on the successful programs that thousands of proactive employers have found successful in dealing with their ergonomic problems'' (64 FR 65770). Unfortunately, in crafting the proposed grandfather clause, OSHA ignored a major finding of the GAO report: that although there were common elements in each of the employer's programs studied, there was significant variety in the way each program element was implemented (GAO/HEHS-97163, page 4). There was no evidence in the GAO study that one method of implementation was better than another, yet OSHA has drafted a rule that makes only one program approach—OSHA's—acceptable.

* * * [A]s written, virtually no employer would qualify under [the proposed grandfather clause's] terms, rendering it a nullity. As was attested to by several industry representatives during the public hearings, even those programs that OSHA has acknowledged as being among the best in industry today would not be in compliance with the proposal. As pointed out in ORC's oral testimony, it is unlikely that any of the approximately 150 member companies of ORC's occupational safety and health groups, whose safety and health programs are among the most sophisticated and effective in the world, would meet the criteria under section 908 of the proposal. This is because of the proposed requirement that an employer must meet all of the “basic obligation” sections of each program element. Virtually all of the proposed “basic obligations” are too prescriptive and should be simplified as described more fully in ORC's written comments. In particular, many ORC employers would not meet the provisions of [proposed] sections 911, 917, 923 or 929, individually, and almost none would meet all four (Ex. 500-214).

Summing up the concerns of commenters wanting a more flexible grandfather clause, the American Dental Association argued that the proposal would reject alternative programs that might be equally or even more effective (Ex. 32-141). The Association recommended that OSHA establish a standard based on objective measures or performance and leave the methods of achieving those objectives to employers.

Several employer representatives illustrated how various effective existing ergonomics programs would fail to meet the proposed grandfather clause (see, e.g., Ex. 30-4185; Tr. 8634, 9181, 11265). For example, IBP, Inc., which has a corporate-wide ergonomics settlement agreement with OSHA, identified several aspects of the proposed program that their program does not address: responses to every MSD symptom, communication with the health care provider, and WRP (Tr. 4929, Tr. 5041). In the hearings, an IBP representative stated that its program would not meet the grandfather clause because of proposed requirements in these three areas (Tr. 5041). Many other employer representatives also noted that their programs did not include provisions providing for work restriction protection and, consequently, would not qualify under the grandfather clause (Tr. 8634, Tr. 9181).

Constangy, Brooks and Smith stated that their clients could not meet the hazard control endpoints in the proposed standard (Ex. 30-4185). They argued that, as drafted, the proposal Start Printed Page 68288would mean that the occurrence of even a single MSD would require their clients to implement new engineering controls. Consequently, they believed that their clients' programs would not qualify under the proposed grandfather clause. Other commenters also noted that their, their members', or their clients' programs would not meet the proposed standard's grandfather clause for similar reasons (see, e.g., Exs. 30-3344, 30-3347, 30-3368, 30-3845, 30-4137).

One witness at the hearing, Thomas J. Durbin of PPG Industries, noted that since no one would benefit from the grandfather clause as it was proposed, OSHA should either put in a true grandfather clause that recognizes programs containing the six core elements or eliminate it altogether (Tr. 3135, Tr. 3147). In questioning, he stated that he interpreted the proposal to require the full program as long as MSDs continued to occur (Tr. 3140).

The Boeing Company argued that the restrictive nature of the proposal's grandfather clause ran counter to the intent of the OSH Act (Ex. 30-1547). In support of their position, they pointed to section 6(d) of the Act, which provides for a variance procedure to recognize alternative approaches to compliance with OSHA standards, provided that the alternative provides equivalent employee protections. Boeing was particularly concerned that the standard, as proposed, would deny grandfather status to an employer who had a program but who had not yet completed the implementation of all of the control measures required by the proposal.

On the other hand, many rulemaking participants indicated that the proposed standard's grandfather clause would allow ineffective programs to be grandfathered (see, e.g., Exs. 30-4200, 32-111, 32-182, 32-198, 32-210, 32-339; Tr. 3477). For example, the United Steelworkers of America and others were concerned that employers whose program evaluations failed to identify deficiencies simply because the evaluations were not done properly could be grandfathered in under the proposed standard (see, e.g., Exs. 32-111, 32-182). They recommended that OSHA develop additional regulatory text to strengthen the program evaluation provisions. The Union of Needletrades, Industrial and Textile Employees (UNITE) was also very concerned that the proposed grandfather clause would inadequately protect employees (Ex. 32-198), stating:

The acceptability of existing programs depends largely on the criteria used to determine acceptability. Therefore, the correctness of the current criteria—compliance solely with the “basic obligation” provisions—is critical to the protection of workers from OSHA's approval of programs which are in fact ineffective. For the reasons [summarized by OSHA] below, UNITE does not believe that these criteria will provide the appropriate level of workers protection (Ex. 32-198).

Several unions, including UNITE and the United Food and Commercial Workers International Union (UFCW), gave the following reasons why the proposal's grandfather clause was inadequate:

  • The detailed provisions implementing each of the proposed program elements, which would not be required for grandfathered programs, are necessary for adequate protection of employees. UNITE pointed to OSHA's extensive justification for each of these proposed provisions in the preamble and indicated that the justification applied just as well to programs in existence before the rule becomes effective as to programs implemented afterward (Ex. 32-198).
  • The proposed basic obligation sections for the management leadership and training elements, which would be the only requirements employers with grandfathered programs would have to meet, would allow poorly trained managers to make determinations that their program complies with the standard. The unions noted that training for managers was not included as part of the proposed basic obligation for these elements. They were particularly concerned that inadequate training of managers would result in improper program evaluations (see, e.g., Exs. 30-4200, 32-198, 32-210, 32-421).
  • Job hazard analysis and control and quick fixes could be performed without the input of employees because employee participation is not a part of the proposed basic obligation of those provisions.[2] The unions argued that, without feedback from employees, a provision not addressed in the proposed basic obligation for the job hazard analysis section, employers would be likely to improperly identify risk factors or select improper hazard controls (see, e.g., Exs. 30-4200, 32-198, 32-210, 32-461).
  • The proposed MSD management basic obligation is missing a requirement for health care professionals to be provided with information about the workplace and the employee's job (Ex. 32-198). According to UNITE, which has had first-hand experience with programs that do not require such information sharing, this omission would result in ill-conceived recommendations from the health care professional (Ex. 32-198).
  • The basic obligation for the proposed job hazard analysis and control section omitted requirements that limited the use of personal protective equipment and mandated that employers provide it at no cost to employees (Ex. 32-210).
  • The proposal's requirements for program evaluation were inadequate and would allow employers to overlook serious program deficiencies (see, e.g., Exs. 30-4200, 32-198, 32-210). The unions believed that, because the rule's evaluation provisions are the primary means for determining the acceptability of an existing program under the grandfather clause, these provisions should be revised in the final rule to prevent employers from inappropriately approving unacceptably weak programs for grandfather status. (Also see the summary and explanation for paragraph (u), later in this section of the preamble.)

The International Brotherhood of Teamsters (IBT) observed that the proposed standard would consider any new ergonomics program coming into effect to comply with the standard as deficient if the new program did not meet one or more of the standard's requirements (Exs. 30-4200, 32-461). The IBT argued that existing programs should be held to the same standard:

Any program grandfathered under this proposal would essentially be judged by a different set of criteria than a program developed after the effective date. The grandfathered program would be considered to be in compliance despite having missing components, provided that the [proposed] basic obligations as currently defined, are met. An identical program, that was developed after the effective date and was not grandfathered would not be considered to be fully in compliance and would be cited by compliance officers for each component of the standard that was lacking, despite meeting the very same basic obligations that the grandfathered program met. This weakness can not be used as an argument that compliance is too difficult to determine, but rather must be viewed as an argument that the grandfathering provision, as it currently stands, has serious flaws and must be significantly improved such that every worker is provided the same protections under this standard (Ex. 32-461).

At the hearing, OSHA stated that the Agency's intent in the proposal was to include a grandfather provision that recognized existing effective ergonomics programs:

Other requirements of the proposal that OSHA has designed to be flexible include a grandfather clause that permits employers who have already implemented an Start Printed Page 68289Ergonomics Program to continue to operate that program as long as it meets minimal requirements (Tr. 19).

It is readily apparent from the rulemaking record that very few, if any, existing ergonomics programs would be able to fulfill the requirements of the proposed grandfather clause. Although OSHA drafted the language in the proposed standard generally and in the grandfather clause specifically to be flexible, the Agency recognizes that the grandfather clause, as proposed, was not sufficiently flexible to allow existing programs that are effective in protecting employees from MSD hazards to be grandfathered in. On the other hand, OSHA agrees with many of the union comments, discussed above, that it is important that the grandfather clause not recognize programs that are ineffective in protecting employees from MSD hazards. OSHA has structured the final rule's grandfather clause to strike an appropriate balance between flexibility, on the one hand, and program effectiveness, on the other.

In drafting the proposed and final rules, OSHA has relied heavily on the Agency's experience with effective ergonomics programs that proactive employers have implemented; in fact, the final rule is modeled after such programs. OSHA has concluded that it is reasonable for the Agency to include in the final rule a grandfather clause that is less prescriptive than the one proposed and is more closely focused on the effectiveness of existing programs. The Agency has made several changes to the final rule's grandfather clause to achieve this end. First, OSHA has streamlined the subelements (called “basic obligations” in the proposed rule) under each core element and has removed some of the more prescriptive requirements. For example, the final rule has not carried forward the proposal's provision that periodic training and program evaluations in grandfathered programs be conducted at intervals of no more than 3 years. Second, OSHA is permitting employers to add or strengthen elements of their programs, provided that they do so, and evaluate the program at least once, before the effective date of this rule. Third, because so many commenters with otherwise effective programs reported that their program would not qualify for grandfather status solely because it did not have a WRP component, the final rule gives employers a year from the effective date of the standard to add such protections (which are a part of MSD management) to their existing programs. Fourth, OSHA has included, in the final rule, examples of some of the specific measures that employers may use to demonstrate that their programs are effective. These changes will enable more employers' programs to qualify for the grandfather clause but will also ensure that only effective existing programs are recognized. The changes also shift the focus from compliance with the rule to effectiveness in preventing MSDs. Although OSHA believes that having all six elements is vital to qualify a program for grandfather status, OSHA is not interested in technical compliance but in real effectiveness.

2. Whether Effectiveness of an Ergonomics Program Is All That Matters

Many rulemaking participants believed that it would be more appropriate for the standard to simply accept proven, effective programs than to require that grandfathered programs also include the core elements of successful programs (see, e.g., Exs. 30-523, 30-1090, 30-1901, 30-1722, 30-2208, 30-3211, 30-3765, 30-3813, 30-3934, 30-3956; Tr. 3319, 15657). In their view, effectiveness is the only part of the program that matters, and therefore any existing program that is effective should be grandfathered. Doerle Food Services, Inc., exemplified many of these comments:

OSHA has made its position clear, at 64 Fed. Reg. 65791, in which it states that the agency believes “enforcement of the standard will be more consistent and more equitable * * * if the test of an employer's program is whether it contains the core elements, rather than whether it is effective.” This is, we submit, an incredible statement, and reflects OSHA's devotion to its mandated program and “control” strategy, as opposed to actual effective programs. It is this outlook which is at the core of the “grandfather” provision, since it does not accord recognition in any meaningful way to a pre-existing effective program that can be shown to have minimized the conditions that are at issue. This portion of the standard clearly needs to be reconsidered and expanded (Ex. 30-523).

The Washington Aviation Group gave examples of how an employer's ergonomics program might be effective without meeting the proposal's grandfather criteria:

There are a variety of reasons why a company might experience few or no ergonomics problems. The business owner may have an intuitive sense of how to promote comfort among the employees that has a beneficial effect on ergonomics issues. The nature of the work might be such that it does not lend itself to repetitive motion disorders or other ergonomics problems. Management may have established an effective rapport with the employees that is sufficiently responsive so that potential problems are generally resolved in an expedient manner before they represent hazards. While all of these are approaches that can support safety in an effective and expedient manner, none of these would represent sufficient ergonomics programs under the proposal; and that is part of the problem with the proposal: it discounts systems that work, but that are not as comprehensive or well-documented as the proposal (Ex. 30-3849).

Some rulemaking participants recommended that programs be grandfathered based solely on one or more measures of effectiveness (see, e.g., Exs. 30-1901, 30-3211, 30-3344, 30-3348, 30-3361). For example, Armstrong World, Inc., recommended accepting for grandfather status programs based on the employer's injury incidence rates:

Employers should be exempt from any proposed standard based on their performance in preventing such injuries. We would suggest using 50% of the employers' industry's respective SIC Code rates for Total Recordable Cases and Cases With Days Away From Work as a meaningful measure of accepting existing employer ergonomics processes as they are (Ex. 30-1901).

Other rulemaking participants also recommended using injury rates, either in absolute terms or in terms of showing a reduction, as a measure of effectiveness and qualification for grandfather status (see, e.g., Exs. 30-3344, 30-3348, 30-3361). For example, the Exxon Mobil Production Company suggested that the standard grandfather a program if the employer's records demonstrate that the program is preventing MSDs and is managing ergonomic concerns (Ex. 30-2433). John W. Braddock suggested that employers be permitted to produce evidence that the existing program was working and that there is an effective early reporting mechanism in place and to qualify for grandfather status on this basis (Ex. 30-4301).

ORC argued that there are a number of ways to measure program effectiveness, which should be the true gauge of the worthiness of any ergonomics program (Ex. 30-3813; Tr. 4112). They suggested several possible ways to measure effectiveness:

OSHA might place the initial burden of demonstrating effectiveness of the program on the employer and include in a non-mandatory appendix a number of types of performance measures and approaches that OSHA would consider appropriate. OSHA mentions some in the preamble, e.g., decreases in the numbers or rates of MSDs and decreases in severity. Other measures might include reduced workers' compensation claims for MSDs, use by the employer of periodic symptoms surveys and other indicia of effective early reporting, or Start Printed Page 68290demonstration that risk factors have been reduced and/or tools and equipment have been modified. An employer might demonstrate effectiveness based on periodic program evaluation that measures effectiveness based on an internal “score card” that looks at a number of appropriate effectiveness measures.

* * * * *

ORC believes strongly that OSHA should be focusing its attention on results or performance, not methodology (Ex. 30-3813).

However, even though ORC objected to the proposed grandfather clause's emphasis on core elements and their basic obligations, they did agree with OSHA that there is a need to ensure that any demonstration of effectiveness that relies on numbers or rates of MSDs not mask any underreporting of MSDs (Exs. 30-3813, 32-78).

Unisea, Inc. suggested the following language for OSHA to use in the final rule to recognize existing ergonomics programs based on effectiveness:

If a company is able to show by operation redesign with ergonomics considerations made, or injury records or near-miss reports that a reduction of reported MSD's has occurred, that company shall be considered in compliance of the standard and its intent.

OR, If a company is able to show a steady overall reduction of injuries, either by total number or incident rate, that company shall be considered in compliance of the standard and its intent (Ex. 500-158).

Abbott Laboratories argued along similar lines and submitted data in support of its position. According to a comment in the record, Abbott Laboratories instituted ergonomics programs at three laboratories in the late 1980's (Ex. 500-153). Abbott's comment presented the OSHA-recordable illness rates at those facilities over the last 9 years. These data are shown in Table 2. Abbott states that the fall in rates over that period reflected ergonomic improvements made at each facility and should qualify these establishments for grandfather status.

Table 2.—OSHA Recordable Illness Case Rates at Three Abbott Laboratories Plants

YearPlant APlant BPlant C
19991.031.441.46
19980.471.902.87
19971.021.812.50
19960.431.002.30
19950.713.272.74
19942.693.133.47
19933.704.274.51
19923.252.526.68
19914.414.547.06
Source: Ex. 500-153.

Another point raised by commenters concerned the proposed requirement that grandfathered programs must be in place and be judged effective by the time the standard is effective in order to be grandfathered. The Departments of Defense and Navy recommended that the standard provide employers wishing to grandfather their programs in with sufficient time to conduct a statistically significant evaluation of the effectiveness of the program even if the evaluation did not take place until after the effective date (Ex. 30-3818; Tr. 3228). They were concerned that it would not be possible to perform such an evaluation before the effective date of the standard, as the proposal required. In addition, they suggested that the standard clarify what effectiveness measures or evaluation points OSHA would accept for each program element in grandfathered programs (Ex. 30-3818; Tr. 3228).

Other commenters suggested a variety of indicators of program effectiveness. For example, the American Industrial Hygiene Association (Ex. 32-133) stressed measures of effectiveness other than injury rates:

OSHA needs to be more specific on what constitutes an equivalent program so that mediocre programs do not pass compliance, but programs showing improvements will have a reasonable chance to be considered acceptable. The evaluation of quality of the program should rely on real evidence of hazards identified and risk reduction. Specifically, have physical risk factors been reduced and have ergonomics improvements been made? Indeed, this is the “bottom line.” Other things to look at include whether training has been done, and if there is a reduction in MSDs and associated workers' compensation costs (Ex. 32-133).

Herman Miller, Inc., listed several measures that employers could use to measure effectiveness: “Reduction in MSD hazards, MSD severity rates, lost workdays or benchmarked improvements in employee satisfaction rates” [Ex. 30-518]. They suggested leaving the specific protocol to the discretion of the employer and noted that OSHA compliance officers would need to be given proper training and tools so that they could make logical and qualitative assessments of ergonomics programs and determine whether they were effective enough to qualify for grandfather status.

Dennis Morikawa, testifying on behalf of Morgan, Lewis and Bockius, did not specify a particular measure of effectiveness but recommended instead that OSHA make the grandfather clause widely available to employers to encourage as many of them as possible to adopt programs before the final rule's effective date (Tr. 15657). He argued that this approach would further OSHA's real goal: The reduction in the number of MSDs experienced by workers.

In their post-hearing submission, the U.S. Chamber of Commerce criticized the proposed grandfather clause's reliance on the proposed core elements' basic obligations instead of effectiveness:

The Agency claims that existing programs will be evaluated upon the existence of the core elements rather than a program's effectiveness * * * because it will make such evaluation “less time-consuming” and “administratively simpler” for both OSHA and the employers. 64 Fed. Reg. at 65791. Of course, the real reason that the Agency has chosen to focus on content is that OSHA simply cannot judge effectiveness and has no idea what it means to be an effective program. Indeed, in order to qualify under the Grandfather Clause, an employer's existing program must not only contain the core elements of the Proposed Rule, but must also be “functioning properly.” And although according to the Preamble “effectiveness” is not a measure of whether or not the program is “functioning properly,” 64 Fed. Reg. at 65791, Marthe Kent testified to precisely the opposite effect:

And further [proposed 1910.908], which says the evaluation indicates that the program elements are functioning properly, what we mean there is [that the elements] are effective. I mean, you cannot have a program with the elements functioning properly and it not be effective.

Tr. at 1-182. Thus, not only can the Agency not determine what “effectiveness” means, it also apparently cannot decide whether or not “effectiveness” means the same thing as “functioning properly.” Until the Agency sorts out this conundrum in some understandable way, there can be no real Grandfather Clause in the Proposed Rule (Ex. 500-188).

OSHA did not propose a grandfather clause that relied heavily on injury rate goals to demonstrate effectiveness because, as the Agency noted in the proposal (see 64 FR 65980 et seq.), MSDs are currently substantially underreported, and relying on reported rates would therefore, in many cases, overstate effectiveness. Some commenters, however, argued that MSD rates were appropriate for this purpose (see, e.g., Exs. 30-2989, 30-3845). For example, the Forum for a Responsible Ergonomics Standard stated:

If OSHA is concerned with how to measure “effectiveness,” it can prescribe the manner in which effectiveness is to be measured, such as reductions in the number and severity of MSDs. OSHA contends, however, that most means of measuring “effectiveness” have built-in incentives to discourage reporting. See id. This contention ignores the fact that companies are subject to regulatory requirements in the proposed rule, backed up by OSHA fines and penalties, to facilitate employee reporting (Ex. 30-3845).

Start Printed Page 68291

A. O. Smith Corporation commented that, in its experience, few employers discourage reporting of workplace injuries:

The provisions in the standard that allude to the employer having programs in place that discourage the reporting of MSD injuries tends to suggest that entire safety and health awareness and accident prevention programs would be construed as disincentives to reporting. We do not accept this premise and find that most employers work hard at making sure their employees are provided a safe work environment and a mechanism to report injuries should they occur (Ex. 30-2989).

Other rulemaking participants agreed with the approach taken in OSHA's proposal and opposed basing the grandfather clause solely on a measure of the reduction in the number of MSDs in a workplace (see, e.g., Exs. 30-2387, 32-339, 500-207). For example, the AFL-CIO stated that the elements that OSHA included in the proposal's grandfather clause are widely recognized as the basic elements of an effective program (Ex. 32-339). The International Brotherhood of Teamsters argued that, to be grandfathered, an existing program needed to be comprehensive and to provide workers and their representatives with full information and rights of participation in addition to being effective in reducing the number of MSDs (Ex. 500-207).

In response to these comments, OSHA finds that the record evidence demonstrates that the Agency should emphasize the effectiveness of grandfathered programs much more in the final rule than it did in the proposal. Record evidence also demonstrates that the core elements are essential to effectiveness (see the discussion of the core elements below). If a program is not demonstrably effective in protecting employees from MSD hazards, OSHA believes that such a program should not qualify for grandfather status and should instead have to comply with all the requirements of the final rule. On the other hand, if an existing ergonomics program has the core elements and is truly effective in protecting employees, it merits grandfather status. The central question then becomes how to measure effectiveness; if effectiveness measures are not carefully chosen, ineffective programs will be grandfathered in and the employees in the establishments covered by such ineffective programs will be inadequately protected.

One widely used method of measuring effectiveness is the tracking of MSD incidence and severity rates. However, MSD incidence and severity rates can be misleading if efforts are not made to ensure that the rates reported are accurate and that the use of such rates is appropriate for the workplace. Some of the problems with various objective measures of effectiveness are described below.

(a) Incidence rates are dependent on accurate reporting. An employer's recordkeeping system must accurately count work-related MSDs if incidence rates are to be a meaningful index of effectiveness. An employer whose employees are reluctant to report, or one who does not record all MSDs, will appear to have a lower incidence rate than a comparable employer with an accurate recordkeeping system, and the incidence rate in the first employer's establishment will bear no relationship to program effectiveness. There are many reasons why MSDs are underreported (see the discussion of this issue in the summary and explanation for MSD management). If there are disincentives to reporting, employees may not report all MSDs. If an employee is not well informed about MSD signs and symptoms, he or she probably will not realize that the signs and symptoms of an MSD are work-related and will fail to report them. Employees also fail to report MSDs in some cases because they do not want to submit a claim to the workers' compensation system. Thus, incidence rates must be used with care.

(b) Severity rates are dependent on consistency in return-to-work policies. Severity rates are typically measured in terms of days away from work or days on restricted duty. Changes in how employers treat injured workers can affect severity rates. For example, if an employer who has traditionally measured severity in terms of lost workdays institutes a new policy of placing employees with MSDs on restricted duty rather than removing the employee from work, the number of days away from work will decrease. Thus, severity rates must also be used carefully to ensure that they are not reflecting a change in the employer's MSD management process rather than a true decrease in MSD severity.

(c) The randomness inherent in injury and illness statistics may make incidence rates an unreliable indicator of effectiveness. Injuries and illnesses are events that occur based on probability. In other words, hazards do not automatically lead to injuries or illnesses; the presence of hazards simply increases the probability that an injury or illness will occur. Just as a coin flipped 10 times will not automatically land heads up 5 times, a workplace with an average MSD incidence rate of 19.3 per 1000 employees [3] will experience an MSD incidence rate that varies about that number from year to year. If employee exposure to MSD hazards at this workplace remains relatively constant, the actual incidence rate in any one year (assuming that the number of employees and other factors also remain constant) will probably be reasonably close to that value. In one year, for example, 17 of the 1000 employees could suffer an MSD, while in the next year, 21 might be injured. This variability can be seen in the Abbott Laboratories data in Table 2, especially in the last 5 years, after the program had matured.

Variability is even more pronounced in a workplace with few employees. If the employer in the earlier example had 10 full-time employees and the same overall average MSD incidence rate, the establishment could be expected to have 0, 1, or 2 MSDs in a given year.[4] The corresponding incidence rates per 1000 employees, however, would be 0, 100, and 200. If incidence rates alone were used as the measure of effectiveness at such a facility, the program would be rated very effective in one year and in need of major correction in the other years.

In the context of the grandfather clause, this year-to-year variability poses problems for OSHA and for employers. If the final rule were to identify a specific rate as the sole criterion for grandfathering existing programs, then an employer whose program was acceptable one year might be unacceptable the next simply as a result of this variability. For example, suppose that the final rule selected 1.45 as the maximum acceptable incidence rate for a grandfathered program. Abbott Laboratories Plant A (from Table 2) would have had an acceptable program in terms of grandfathering since 1995 (Ex. 500-153). Abbott's Plant C program (from Table 2) would never have met the incidence rate limit in this period and would therefore have had to comply with the ergonomics standard. Abbott's Plant B (from Table 2) could have had its program grandfathered in 1996 and 1999, but would have had to comply with the standard in 1997 and 1998. From this example, it can be seen that some employers' programs, after initially qualifying for the grandfather Start Printed Page 68292clause, would subsequently be required to comply with the ergonomics standard in at least some years.[5] This “sometimes in and sometimes out” phenomenon is not what OSHA or employers with existing ergonomics programs want from a grandfather clause.

Alternatively, the final rule could mandate that, to be grandfathered, the employer's MSD incidence rates had to decrease over time, as suggested by some rulemaking participants (see, for example, the comments of Unisea, Inc., Ex. 500-158, above). Again, the Abbott Laboratories data in Table 2 show that this approach would also be problematic (Ex. 500-153). All three of Abbott Laboratories' plants experienced increasing rates in some years in the period reported. Although the overall trend over the full 9-year period is downward for all of the Abbott plants, this is not the case for all time periods. For example, Plant C's incidence rates went up over the 4-year period from 1995 to 1998 (see Table 2). In fact, OSHA's experience is that, as an employer's ergonomics program matures, incidence rates begin to level off, albeit at a much lower rate than before the program was established (see Chapter IV of the Economic Analysis).

Other “objective” measures of effectiveness recommended by rulemaking participants (see e.g., Ex. 30-3813; Tr. 4112) pose similar problems. Decreases in the rate of workers' compensation claims have the same problems as incidence rates when they are used as effectiveness measures. Symptom surveys, although valuable as an early reporting tool, vary from one workplace to another and therefore cannot be used for different sites. Reductions in employee exposure to MSD hazards is a good measure of whether an ergonomics program is working but, OSHA has no benchmark that adequately describes the performance of an effective program. Without a benchmark, reductions in employee exposure to MSD hazards cannot be used as the sole criterion for grandfathering programs at different sites.

In addition, OSHA has concluded that the core elements (management leadership and employee participation, hazard identification and assessment, hazard prevention and control, MSD management, training, and evaluation) are essential to a properly functioning ergonomics program. These elements are included in the safety and health programs recommended or used by many different organizations (the ergonomics standard uses slightly different terminology for some of these elements):

  • OSHA's VPP, SHARP, and consultation programs;
  • The safety and health programs mandated by 18 states;
  • The safety and health programs recommended by insurance companies for their insureds (many of which give premium discounts for companies that implement these programs or impose surcharges on those that do not);
  • The safety and health programs recommended by the National Federation of Independent Business, the Synthetic Organic Chemical Manufacturers Association, the Chemical Manufacturers Association, the American Society of Safety Engineers, and many others;
  • The strong recommendations of OSHA's Advisory Committees (NACOSH, ACCSH, and MACOSH), which consider these program elements essential to effective worker protection programs.

OSHA also is including WRP, or equivalent protections against wage loss, as a requirement for all programs (both those that are grandfathered and those complying with the standard) because, without it, OSHA believes that many employees will be reluctant to report their MSDs because they fear economic loss. There is strong evidence that such underreporting is currently taking place, as well as evidence that protecting workers from wage loss increases reporting (see the discussion of underreporting in the summary and explanation for MSD management). OSHA's purpose in including a WRP provision, both in the grandfather clause and in the standard, is to ensure employee participation and free and full reporting of MSDs and MSD hazards. Effective ergonomics programs depend on such reporting, and the standard also depends on employee reporting for its effectiveness. Absent such reporting, no ergonomics program will achieve its worker protection goals.

For these reasons, OSHA has concluded that quantitative effectiveness measures alone cannot be the sole basis for judging whether an employer's program should be grandfathered. The Agency's experience over the last two decades, and that of private industry and insurance companies, is that safety and health programs, and ergonomics programs, containing the core elements are effective in lowering injury and illness rates. These programs work because they involve everyone in the organization in finding and fixing hazards. They also establish two-way communication in the form of reporting and response systems. OSHA finds that the core elements are essential to effective ergonomics programs, and the record provides ample evidence of this (see the discussion below on whether the core elements are necessary). Employee participation, for example, is a prominent component of the programs of many leading companies (see, e.g., Exs. 32-77, 32-185, 32-210; Tr. 4973, Tr. 5339). The core elements also help to ensure that employees are reporting their MSDs, that management is responding to these reports, that jobs are being analyzed and fixed, and that the program is functioning as it should. The core elements thus help to ensure that programs are not focusing too heavily on quantitative measures of effectiveness, which, as the discussion above shows, are often misleading.

OSHA agrees, however, that effectiveness measures can be useful in determining the degree to which an ergonomics program is working. Employers and authors of effectiveness studies routinely rely on them as evidence that an ergonomics program is having a positive effect. Of the measures available, incidence and severity rates are most commonly used and were most often recommended in the rulemaking record (see, e.g., Exs. 30-1901, 30-2208, 30-3344, 30-3348, 30-3361). If one of these measures is used, the employer must take care to ensure that the calculated incidence or severity rate accurately reflects conditions at the workplace. First, the effectiveness measure chosen must be appropriate for the size and nature of the workforce and the employer's MSD experience. For example, as explained earlier, an employer with few employees will not find incidence rates useful to measure effectiveness. Instead, such employers could examine whether employee exposure to MSD hazards has been reduced. Second, the employer must check to ensure that some MSDs are not going unreported. If employees are failing to report MSDs, the employer's calculated incidence and severity rates will not accurately reflect the injury experience at the workplace. Third, the employer should check rates over a variety of periods to ensure an overall downward trend in the data. Looking at data over a single period can be misleading.

OSHA finds, based on the evidence in the record as a whole, that reliance on both qualitative (the core elements) and quantitative (effectiveness measures) components will best assure that any program that is grandfathered deserves this status and will continue to operate Start Printed Page 68293effectively in the future. Consequently, the final rule's grandfather clause requires that grandfathered programs contain the core elements of effective ergonomics and be demonstrably effective. Employers may use any of a broad range of measures, including reductions in the number or severity of MSDs, increases in the number of jobs in which ergonomic hazards have been controlled, reductions in the number of jobs posing MSD hazards to employees, or any other measure that demonstrates program effectiveness to meet the grandfather clause's requirement for a demonstration of program effectiveness.

3. Whether the Core Elements Are Necessary

Some industry representatives objected to the proposed requirement that grandfathered programs contain all the core elements of the proposed standard (see, e.g., Exs. 30-1722, 30-3853, 30-3956; Tr. 5699). They argued that any program that was effective in reducing MSD rates should be accepted for grandfather status, even if it did not include all the core elements.

For example, the Washington Legal Foundation was particularly concerned that employee participation was proposed as a required component of grandfathered programs and of the program required by the standard (Tr. 11265). They argued against mandatory employee participation:

OSHA's proposed ergonomic standard perhaps more so than any other standard mandates full employee involvement in every aspect of its requirements.

In many ways, the proposed standard places employees in the driver's seat.

Certainly many companies have determined that a [cooperative] relationship with their employees is beneficial on both a safety and a production level.

Other companies, however, have reached a different conclusion. And certainly, the conclusion to be reached may differ depending on the type of work involved, the size of the company, the characteristics of the work force, and other factors.

The Washington Legal Foundation does not believe that it is its place to determine that some of these [employers] are right and others are wrong nor is it the place of the federal government to mandate a specific mode of employer/employee relations (Tr. 11265).

On the other hand, some union representatives argued strongly in favor of the core elements (see, e.g., Exs. 32-210, 32-461, 500-218). The International Brotherhood of Teamsters noted that they had worked with various employers through the collective bargaining process to address ergonomic hazards and that some employers' programs took a piecemeal rather than comprehensive approach to the problem and should therefore not be granted grandfather status (Exs. 30-4200, 32-461). The UFCW argued that the proposed core elements are recognized as the basic elements of a good ergonomics program (Ex. 32-210). They presented their experience with successful ergonomics programs as follows:

The six elements OSHA is proposing in the ergonomics program standard are included in all successful company programs! Further, the experience of the myriad of companies who have successfully tackled the problem through these elements attests to the feasibility of the methods. The settlement agreements OSHA has entered into with IBP, Sara Lee, Cargill, ConAgra Poultry, John Morrell & Co., Empire Kosher, Marshall Durbin Companies, National Beef, Worthington Packing and Tyson Foods contain these six elements—all work, and all are feasible. Many of the companies used ergonomists, they analyzed the jobs and developed engineering solutions to address the most egregious jobs. They developed medical protocols so that workers can get to treatment early rather than waiting until they were crippled and needed surgery. They protect workers wages and benefits when they report MSDs. And in our represented companies, all this included the union in a fundamental way. In order to be effective, ergonomics programs by their very nature must be participatory and include workers at many levels, including those that do the problem jobs (Ex. 32-210).

Mr. Bawan Saravana-Bawan, a representative from the Canadian province of British Columbia, described how that province handled existing programs when its ergonomics standard came into effect (Tr. 14260). He stated that existing programs needed to incorporate any missing elements in order to be accepted. On the basis of his experience, he stated that any ergonomics program needed to have all the core elements (management leadership and employee participation, information dissemination, hazard identification, hazard assessment and control, training, and program evaluation) to be successful.

The Department of Defense (DoD) also argued that the program elements are essential. The DoD noted that the success of their program is due to the elements of the program, including, in particular, management leadership, employee participation, hazard prevention and control, and monitoring injury records and responding to potential problem areas (Ex. 30-3826).

OSHA has concluded that it is essential for ergonomics programs, whether grandfathered or not, to address all of the core elements: Management leadership and employee participation, hazard information and reporting, job hazard analysis and control, training, MSD management, and program evaluation. (The Agency has presented evidence supporting each of these core elements in the summary and explanation for the corresponding provisions of the standard, below.) Further, the Agency finds that it is as important for a grandfathered program to include all of the core elements as it is for a program brought into existence to comply with the final rule to include these elements. Although some commenters, as discussed above, argued that a program could be effective without all of the core elements, OSHA finds their arguments unpersuasive, based both on the record and the Agency's own experience with successful programs.

The Agency believes that the core elements provide assurance that the program will work as intended—management leadership will ensure that the program has the continued backing of management, which is essential to continued success; employee participation in the program will help ensure that ergonomic hazards do not go undetected; hazard information and reporting will ensure that employees are informed about MSD symptoms and how to report them so that work-related MSDs are not ignored; work restriction protection helps to ensure that workers report signs and symptoms as early as possible; job hazard analysis and control are needed to ensure that ergonomic hazards are found and abated; MSD management is necessary so that MSDs are managed appropriately and injured employees get well as soon as possible; and program evaluation is necessary for the correction of deficiencies in the program. Without the checks and balances the core elements provide, OSHA believes that ineffective programs may be judged effective on the basis of an inappropriate measure, and once-successful ergonomics programs could deteriorate over time and leave employees unprotected.

Some rulemaking participants agreed that grandfathered programs should include the core elements but argued that compliance with the proposed basic obligation sections for each core element was not essential to having an effective program (see, e.g., Exs. 30-1294, 30-3813, 30-3723, 30-3765). These commenters believe that many employers have effective programs that would not be recognized by the proposed standard because they would not meet the proposed basic obligation sections. ORC reflected the thrust of these comments as follows:

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Equally important, contrary to OSHA's contention in the preamble, the ability of an employer to continue applying an existing program should not be based on whether the “basic obligation section of each program element in this standard” is satisfied. OSHA has provided no objective evidence that the requirements of the proposed standard will be any more effective than other programs already in place. There is certainly no basis for compelling an employer to rework an effective program to force it to meet the specifics even of the proposed basic obligations (Ex. 30-3813).

Dow, ORC, and others suggested that OSHA simply require grandfathered programs to address the six basic elements of the program instead of requiring them to meet the proposal's full basic obligation for each core element (see, e.g., Exs. 30-2134, 30-2725, 30-3171, 30-3765, 30-3813, 32-77). ORC noted that the proposed work restriction protection requirements were particularly troublesome, since “[v]irtually none of ORC's member companies, whose ergonomics programs are among the most sophisticated and effective in the country, would meet this requirement * * *” (Ex. 30-3813). Dow was concerned that the language in the proposal would not recognize their program, which is tailored to fit their management structure. They stated:

The so-called Grandfather clause that OSHA has proposed is so demanding in its requirements that companies that have existing and successful ergonomics programs, such as Dow, will not be able to take advantage of this provision to maintain their current programs. The Grandfather clause is so limited that already functioning and successful programs, tailored to the needs of a particular company, business or workplace, will not be able to satisfy the requirement. For example, in Dow's case, we would not be able to satisfy the extensive recordkeeping requirements or elements of the WRP section (since it goes beyond that required by Workers' Compensation laws.) Similarly, given Dow's management structure, we would not satisfy OSHA's communication and training requirements wherein they intend a more archaic management structure, such as one having “supervisors” and the like, than what Dow utilizes. So even though Dow has had a successful ergonomics program for years and has a lower than average MSD incidence rate, we would have to scrap our efforts and use a program which will not fit our needs or management structure, just to comply with this standard. Dow believes this is unacceptable.

Instead, Dow urges OSHA to delete the proposed Grandfather clause and replace it with a provision that allows for an “acceptable” or “appropriate equivalent” program. Such a concept is not foreign to OSHA or the regulated community as other OSHA standards, such as the Process Safety Management (“PSM”) standard, utilize this concept so that companies that have existing programs that are functioning successfully can continue to use them. This concept also allows companies who may not yet have an existing program to create one tailored to their own needs, rather than use a more “one size fits all” program as envisioned by this proposal. “Acceptable (or appropriate) Equivalence” would include those programs who have the basic elements of a program, but not all the mandated details or documentation. Such a concept embodies “performance-oriented mandates” at their best as they allow an employer to employ those methods of prevention that best meets the needs of its particular workforce and/or workplace. OSHA should only be concerned with the results (i.e. lower injury rates) rather than the methodology a particular employer used to obtain that goal (Ex. 30-3765).

At the hearing and in their notice of intention to appear at the public hearing, Dow described their ergonomics program and detailed how they believe their program would fall short of the proposal's requirements (Ex. 32-77; Tr. 5339). Dow expressed concern that, although their program meets the spirit of the proposed standard, it would not meet the letter of the law.

In response to Dow's concern, OSHA reviewed the perceived discrepancies between the proposed rule and Dow's description of their program. In every respect except one, Dow's program would have satisfied the proposed grandfather clause; the discrepancies Dow was concerned about were apparently the result of misinterpretation rather than deficiencies on the part of Dow's program. For example, Dow stated that, in its program, employees report MSDs using the company's existing injury and illness reporting system rather than a separate system set up just for MSDs; Dow evidently believed that a separate system would have been required by the proposal (Ex. 32-77; Tr. 5340). However, the proposed standard would not have required employers to set up a separate system for reporting MSDs as long as their existing system included a system for the reporting of MSDs. On the other hand, Dow was correct in stating that their program did not include the proposed work restriction protection provisions and would therefore not have been eligible for grandfather status under the proposed rule.

In its post-hearing submission, Edison Electric Institute argued that the specificity of the proposal's basic obligations is counter to the goal of flexibility, and the Institute recommended that the final rule reduce the detail in the basic obligation sections to allow employers greater latitude (Ex. 500-33).

The Mead Corporation suggested that, if the Agency's safety and health program rule was not promulgated before the ergonomics rule, OSHA should alter the grandfather clause in the ergonomics rule in one of two ways: (1) Make the basic obligations less prescriptive and detail acceptable alternatives for prevention-oriented programs, or (2) permit employers with effective programs to maintain them without making sweeping changes (Ex. 30-2216).

On the other hand, the AFL-CIO argued that the standard should require employers to meet the proposed basic obligations for each core element before being grandfathered in (Ex. 32-339; Tr. 3477). The AFL-CIO pointed out, however, that the basic obligation sections for several of the proposed core elements left out important requirements that were included under the core elements:

The AFL-CIO believes that employers with existing programs should be permitted to continue with these programs if they are comprehensive, provide workers and their representatives full information and rights of participation, and are effectively reducing MSDs and exposure to hazards. However, as proposed, the “grandfather” provisions are deficient in a number of respects and will permit employers to continue programs that do not provide adequate protection.

First, the [proposed] basic obligation requirements which all programs must meet, exclude a number of elements that in our view are essential for an effective program. For example:

  • The [proposed] basic obligation section for Hazard Information and Reporting * * * does not [include] any requirement to provide employees information about MSD hazards.
  • The [proposed] basic obligation on training * * * excludes any requirement for training supervisors or individuals responsible for the ergonomics program, thus permitting programs to be “grandfathered” even if persons responsible for the program do not have the necessary training. The basic obligation for training also fails to provide for job specific training on MSD hazards and control measures.
  • The [proposed] basic obligation for Medical Management * * * does not require that medical evaluations be conducted by a health care provider.
  • The [proposed] basic obligation for Program Evaluation * * * does not require consultation with employees in problem jobs or their designated representatives to determine their views on the effectiveness of the program (Ex. 32-339).

As noted earlier, other rulemaking participants also urged OSHA to strengthen the proposed basic obligations sections (see, e.g., Exs. 30-4200, 32-198, 32-210, 32-461). These commenters criticized the proposed rule's lack of basic obligation Start Printed Page 68295requirements for the training of managers and for employee participation in job hazard analysis and control. UNITE decried the omission from the proposal of a requirement for the health care provider to be furnished with information about the workplace and the employee's job (Ex. 32-198). Another commenter objected to the omission from the proposal of requirements that limited the use of personal protective equipment and required employers to provide it at no cost to employees (Ex. 32-210).

Another group of commenters were particularly concerned about the fact that the proposal would not have permitted their otherwise excellent programs from being grandfathered because they did not have work restriction protections now (see, e.g., Ex. 30-3723, 30-3765, 30-3813). SBC Communications, Inc., represented those who opposed the proposed grandfather clause's requirement for work restriction protection:

In order to meet the grandfather clause, a company must have a “functioning properly” Wage Protection Program. Through our extensive research and benchmarking, no company has this element to their ergonomics program. Nor did OSHA provide any evidence of the Wage Protection Program being trialed, researched, and/or tested at a company. OSHA has made it nearly impossible for any company to meet the requirements of the grandfather clause (Ex. 30-3723).

On the other hand, the AFL-CIO noted that the hearing testimony demonstrates that some employers do currently provide wage protection for employees who suffer MSDs:

The hearing record shows that some employers indeed are maintaining the full wages of workers who are put on medical restrictions as a result of MSDs (Tr. 16014, Tr. 14357) (Ex. 500-218).

The General Electric Company argued that employers who have employee involvement and an environment free of barriers to reporting should not be required to follow the rule's requirements for WRP (Ex. 30-1071). Novartis Corporation went further, suggesting that the entire MSD management element be removed from the standard (Ex. 30-3092). They also recommended that compliance with the endpoint provisions not be a condition for grandfathering existing programs.

The AFL-CIO recommended that OSHA permit existing programs without work restriction protection to be grandfathered as long as the employer incorporates such protections into the ergonomics program before the effective date of the standard (Ex. 500-218). They believed that this would help alleviate the concerns of employers whose programs were missing only that one element.

Although the AFL-CIO provided evidence that some employers do provide wage protection for their employees, OSHA believes, based on the record, that very few employers' existing ergonomics programs incorporate work restriction protection in the form required by the proposed standard. Despite the fact that many employers have policies (such as sick leave, short-term disability, and so on) that assure employees that they will not experience economic loss if they are injured, the record of this rulemaking indicates that many workers fear they will lose wages and benefits if they report their injuries (see the detailed discussion of the record in the summary and explanation for paragraph (r) below). The Agency therefore concludes that grandfathered programs must protect against such loss if they are to achieve the early reporting that is essential to program success. Consequently, in paragraph (c)(2) of the final rule, OSHA is allowing existing ergonomics programs that otherwise meet the criteria of the grandfather clause up to an additional 12 months to adopt an MSD management policy, including work restriction protection. The MSD management policy must meet paragraphs (p) through (s) of the final rule. The MSD management requirements in the final rule contain many inter-related provisions that are key to a successful ergonomics program. (See the summary and explanation for paragraphs (p) through (s) of the final rule.) The Agency has concluded that, because of the many interdependencies in final rule paragraphs (p) through (s), employers need to follow all of the detailed requirements of those paragraphs. However, to ensure that existing programs will still be able to qualify for grandfather status even if they do not meet the final rule's MSD management requirements, OSHA is allowing employers up to a year to meet those provisions.

Based on a review of the evidence in the record, OSHA has concluded that the proposed standard's basic obligation requirements failed to provide employers with effective existing programs sufficient flexibility with regard to grandfather status. Accordingly, in paragraph (c)(1) of the final rule, OSHA has not carried forward the proposed requirement that employers' programs satisfy the basic obligation of each element and instead requires that those programs simply contain the core elements and certain subelements, which the Agency has pared to the minimum necessary to ensure the continued effectiveness of grandfathered programs. In particular, OSHA has streamlined and made more flexible the provisions that rulemaking participants claimed were most problematic such as the employee participation and WRP provisions. OSHA also has placed the required subelements in the text of the grandfather clause itself rather than in the basic obligations sections for each of the core elements, as proposed. OSHA believes that these changes will make the core elements that grandfathered programs must currently have as flexible as possible while still ensuring that the basic components that make each core element effective are present.

In addition to considering the comments of industry representatives objecting to the core elements and their subelements, OSHA has reviewed the list of subelements that several labor organizations believed were essential to determine whether they should be included in the final rule's grandfather clause requirements (Exs. 32-198, 32-339; Tr. 3477). The Agency has included several improvements in the final rule's grandfather clause as a result of this review. First, the grandfather clause's training element now contains a requirement that employees be trained in MSD risk factors (see paragraph (c)(1)(iv)). This provision ensures that employees will be informed of MSD hazards in their workplace. Second, OSHA has added a requirement for the training of managers and supervisors to this core element. Third, OSHA has included language specifically requiring employees to be involved in program evaluation to the core element for employee participation (see paragraph (c)(1)(ii)). These additions will help ensure that ineffective programs are not accepted under the grandfather clause.

The remaining suggestions from these commenters, such as UNITE's recommendation to include a requirement for the health care provider to be furnished with information about the workplace and the employee's job (Ex. 32-198), have been accommodated by paragraph (c)(2) of the final rule. Existing programs need not currently have MSD management as a core element in order to qualify for grandfather status. However, grandfathered programs will need to add an MSD management element meeting paragraphs (p) through (s) within 1 year after the final standard's effective date. Thus, grandfathered programs will have to meet the same MSD management requirements as programs that are not grandfathered. Start Printed Page 68296

4. Whether the Language of the Grandfather Clause Is Vague

Some rulemaking participants argued that the language in the proposed grandfather clause was vague (see, e.g., Exs. 30-494, 30-2208, 30-3922, 30-4467; Tr. 16470). They thought that this language would make it difficult for an employer to determine if he or she qualified under the grandfather clause. For example, Dennis Morikawa of Morgan, Lewis, and Bockius stated:

These vague requirements do not inform employers which ergonomic programs OSHA would accept. Specifically, OSHA does not explain what a “basic obligation” is; nor does the Proposed Rule specify the level of detail employers must achieve when they attempt to comply with a basic obligation. Moreover, the grandfather clause does not make clear whether an effective, existing program without a single-incident trigger would be acceptable. For example, if programs that satisfy the CAL/OSHA standard discussed above would be accepted under the grandfather clause, then most companies would seek to design and install ergonomics programs before the effective date of the new Proposed Rule. But if a two-incident trigger would not satisfy a “basic obligation,” employers would be forced to re-design existing programs in order to meet the Proposed Rule, thereby creating a double standard of compliance. This, of course, would effectively eviscerate the notion of a grandfather clause. OSHA needs to specify which aspects of the Proposed Rule would be considered basic obligations, and the amount of attention to detail that employers must pay when adhering to these basic obligations. Without an assurance from the agency that an adherence to basic obligations would not require major overhauls of effective programs, the grandfather clause is illusory (Ex. 30-4467, p. 13).

Some rulemaking participants stated that the vagueness of the grandfather clause would force employers to refer to the more detailed provisions of the standard to understand their compliance obligations (see, e.g., Exs. 30-494, 30-4340). They argued that the effect of this vagueness would be that employers would be forced to comply with the entire standard, which would render the grandfather clause useless.

Even some of those who supported OSHA's proposal in general agreed that the proposed grandfather clause was vague (see, e.g., Exs. 30-4538, 32-210). These rulemaking participants and others urged the Agency to provide compliance assistance material, such as flowcharts, checklists, and other tools, to help employers determine whether their programs qualified under the grandfather clause (see, e.g., Exs. 30-4538, 32-210, 32-339, 500-207). For example, the International Brotherhood of Teamsters stated:

[W]e strongly urge OSHA to provide checklists and evaluation tools to assist employers with the evaluation of their programs. Employers who want to take advantage of the “grandfather” provisions should be required to use a checklist based on objective criteria to demonstrate that their program is effectively reducing exposures to ergonomic risk factors, reducing the incidence and severity of musculoskeletal disorders, and complies with the standard's basic obligations. These materials are currently used by many ergonomics programs and could be made available by OSHA through its website (Ex. 500-207).

OSHA believes that the grandfather clause in the final standard is clear. For example, the training element requires the training of managers, supervisors, and employees in: (1) The employer's ergonomics program and their role in it; (2) the recognition of MSD signs and symptoms; (3) the importance of early reporting; (4) the identification of MSD risk factors and methods that may be used to abate them; and (5) the risk factors in problem jobs in the workplace and methods of controlling them. To provide employers flexibility, the standard does not address the details of how that training is provided, but it is clear about the topics the training must cover.

Other elements provide clear direction about how an employer is to demonstrate compliance. For example, the employer must evaluate the program, as demonstrated by regular reviews of the elements of the program, the effectiveness of the program as a whole, and the correction of identified deficiencies. Again, this language provides clear criteria that employers' evaluations must meet in order to be grandfathered in.

There are two aspects to Mr. Morikawa's comments (Ex. 30-4467) about the acceptability for grandfather clause status of programs meeting the California standard's two-incident trigger. The first relates to Federal OSHA's acceptance of the California ergonomics rule under the Act's provisions for ensuring that state standards developed by the State Plan States are as effective as the Federal standard. OSHA will, after it promulgates this final ergonomics program standard, evaluate the ergonomic standards developed by State Plan States (such as California and Washington) to determine whether they are “as effective as” the Federal standard. OSHA clearly could not have made such a determination at the time of the proposal, as Mr. Morikawa suggests, because the form and content of the final OSHA rule could not be known at that time. However, OSHA is unlikely to find any standard that delays protection to employees, including those in small firms, or that provides less protection to employees overall, as effective as the final rule.

The second relates to the details of grandfathered programs. Paragraph (c) of the final rule does not attempt to dictate precisely what form a grandfathered program must have, beyond stating that it must have the core elements of successful programs, be demonstrably effective, and be evaluated and in place by the final rule's effective date. OSHA has not mandated such program specifics because grandfathered programs will take many different forms, be at many different stages of development, and be taking various approaches to achieving success. The grandfather clause thus insists on the fundamentals but leaves the specifics to employers.

The final standard also requires the employer to demonstrate that an existing program is effective before that program qualifies under the grandfather clause (see paragraph (c)(1)(v)). The employer is free to use one of the measures specified in the standard itself (that is, reductions in the number or severity of MSDs, increases in the number of jobs in which ergonomic hazards have been controlled, reductions in the number of jobs posing MSD hazards to employees) or any other valid measure that the employer chooses to evaluate the program and demonstrate effectiveness. The Agency currently provides some compliance assistance materials that include ways to measure the effectiveness of ergonomic interventions. For example, the “Ergonomic Program Management Guidelines for Meatpacking Plants” (Ex. 2-13) provides a method for monitoring trends in cumulative trauma disorders that may be used for this purpose. OSHA's 1989 Voluntary Safety and Health Program Management Guidelines (Ex. 2-12) also describe effective program evaluations. These documents are available on OSHA's Website ­(http://www.osha.gov). OSHA also intends, as resources permit, to provide additional compliance assistance materials that will help employers determine whether or not their programs are effectively addressing MSDs.

In sum, OSHA believes that the final grandfather clause provides sufficient information for employers to determine if their programs qualify for the grandfather clause. OSHA compliance officers also will be able to assess whether the employer's program qualifies for grandfather status. OSHA will include directions on how this is to be done in a compliance directive to be Start Printed Page 68297issued soon after promulgation of the final rule.

5. Alternatives and Revisions to the Grandfather Clause

Several rulemaking participants suggested approaches that would permit alternative programs developed after the standard is in effect to be followed by employers in lieu of compliance with the standard (see, e.g., Exs. 30-2216, 30-3765; 30-3813, 32-339, 500-44; Tr. 3477). Many of these commenters argued that their recommendations would address the previously discussed concerns with the proposed rule's grandfather clause—concerns such as the perceived illusory nature, vagueness, and subjectivity of the proposed grandfather clause. The alternatives or revisions to the proposed grandfather clause suggested by these commenters included:

  • Revising the clause to allow programs that are incomplete at the time of the effective date to be grandfathered (see, e.g., Ex. 30-3813; Tr. 4111);
  • Revising the clause to make clear that a company whose program had been grandfathered could extend that program (and grandfather status) to establishments newly built or owned, or acquired through mergers or acquisitions (see, e.g., Exs. 30-3813, 30-3922, 32-78; Tr. 5538);
  • Revising the clause to allow any program developed by an employer at any time, including after the standard has become effective, to be implemented without fear of citation for noncompliance with the OSHA standard (see, e.g., 30-429, 30-1090; Tr. 15657);
  • Revising the clause to specify that OSHA will certify or approve employers' programs as qualified for grandfather status (see, e.g., Ex. 32-133, 500-139);
  • Revising the clause to recognize for grandfather status any program that complies with either the Washington State or the California standard (see, e.g., Exs. 30-429, 30-434, 30-973, 30-1090, 30-1547, 30-1671, 30-2835, 30-3813, 30-4134, 31-337, 32-311);
  • Delete the grandfather clause and substitute instead provisions giving employers credit for already having performed some of the required elements, such as training, before the effective date (see, e.g., Exs. 30-1547, 32-185, 32-311, 32-339, 32-461, 500-207; Tr. 6423, 11129, 13092).

For example, ORC made several suggestions along these lines (Ex. 30-3813; Tr. 4111). First, they recommended that OSHA rename this section “Alternative Programs Provision.” They also suggested that, as a stimulus to innovation, OSHA allow employers who do not now have fully developed programs to qualify for grandfather status in the future when they do have such programs. DuPont SHE Excellence Center made a similar recommendation:

[One] improvement in the flexibility would be to allow whichever elements that have been put in place to be grandfathered and those which are not in place to be added. The grandfather clause should not be an “all-or-nothing” clause (Ex. 30-2134).

In addition, ORC, along with other rulemaking participants, recommended allowing an employer's program to be grandfathered after the effective date of the standard, which would permit employers involved in mergers and acquisitions to put their already grandfathered programs into place in new establishments (see, e.g., Exs. 30-3813, 30-3922, 32-78; Tr. 5538). ORC also recommended that OSHA permit employers to extend existing grandfathered programs to new establishments operated by the same employer (Ex. 500-214).

The rulemaking participants who recommended that the standard permit future alternative ergonomics programs to be grandfathered did not address how an employer might avoid noncompliance while developing the program or in the period before the employer had demonstrated the effectiveness of the new program. OSHA does not believe that such an approach would be workable. First, it would be administratively difficult (if not impossible) to enforce. Second, OSHA is issuing a final standard addressing ergonomic injuries because the varied approaches and often isolated interventions that many employers have adopted have not effectively addressed the problem, and a uniform and comprehensive approach to this most serious of occupational safety and health issues is clearly necessary. The approach recommended by the commenters would mean that, while employers try different programmatic approaches, employees would continue to be exposed to ergonomic hazards with no guarantee that the employers would ever qualify for “grandfather” status. Third, OSHA is loathe to require the expenditure of resources to make existing, effective programs containing all the core elements meet all the requirements being imposed by the full ergonomics standard. Employers without programs and employers with ineffective programs or programs missing key elements would need to expend resources to meet whatever requirements OSHA imposed on alternative programs. The Agency believes that these resources should be expended to meet the final standard in all its details so as to ensure adequate protection for employees.

OSHA agrees, however, that a company that meets the rigorous standards of paragraph (c) and thus qualifies for grandfather status should be permitted to apply the same excellent program that was grandfathered to new plants it builds or acquires by merger or acquisition. OSHA believes that permitting a grandfathered program to be extended in this way makes sense from two perspectives: first, it ensures that the new establishments will benefit from the expertise in ergonomics programs that the parent company brings, and, second, it ensures that the company will have a single, cohesive corporate ergonomics program. For these reasons, OSHA has decided to extend grandfather status to the programs implemented in newly acquired or built plants of a corporation that already has a grandfathered program.

The American Industrial Hygiene Association (Ex. 32-133) recommended that employers formally request OSHA to recognize their programs:

As the standard puts much of the burden on employers to adapt the program to their own needs, it would be appropriate for OSHA to say that employers can ask to have their program “grandfathered”. This would require them to formally document their program and compare it with the OSHA requirements. This should not be a problem if the company has a functional program (Ex. 32-133).

Kaiser Permanente made the same recommendation in their post-hearing comments (Ex. 500-139).

However, OSHA's resources do not permit it to evaluate employers' programs for grandfather status; in addition, a “paper” review of a program is not adequate to determine how it is working in practice. OSHA continues to believe that employers are in the best position to determine whether their programs qualify for grandfather status.

The Eastman Kodak Company (Exs. 30-429, 30-1090) suggested that the Agency adopt a flexible grandfather clause that recognizes good faith on the part of employers:

We believe that what OSHA needs is a “good faith” grandfather clause that recognizes employers for a positive effort and ongoing solutions. We believe that it should be sufficient for an employer to have a written active program and show intent, to be compliant. The existing program rule (WAC 296-62-05110) of the Washington State proposed standard is better suited to this end and is recommended for incorporation (Ex. 30-429).

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Other rulemaking participants also recommended that OSHA adopt the proposed Washington State approach towards existing programs (see, e.g., Exs. 30-434, 30-2835, 30-3813, 30-4134, 31-337, 32-311). They argued that Washington's approach, which accepts alternative programs when the employer can demonstrate that the alternate methods taken as a whole are as effective as the requirements of the standard, would grandfather far more effective programs than OSHA's proposal. They also noted that this approach would focus the Agency's efforts on results rather than on details they perceived as minor.

The Washington State standard's grandfather clause reads as follows:

WAC 296-62-05110 When Do Employers' Existing Ergonomics Activities Comply With This Rule?

Employers may continue to use effective alternative methods established before this rule's adoption date. If used, the employer must be able to demonstrate that the alternative methods, taken as a whole, are as effective as the requirements of this rule in reducing the WMSD hazards of each job and providing for employee education, training and participation (Ex. 500-71).

Other commenters (see, e.g., Ex. 30-4467) urged OSHA to accept compliance with the California ergonomics standard as constituting acceptance under the grandfather clause.

Again, as discussed above, formal recognition of the “as effective as” status of these two State-plan State standards must await a formal determination by Federal OSHA. However, since acceptance under the final rule's grandfather clause depends on program effectiveness, confirmation of that effectiveness through evaluation, and the inclusion in the program of the core elements, many proactive California and Washington employers' programs are likely to meet the final standard's requirements for grandfather status. The programs of many employers in these states may not meet these requirements, however, since neither State standard requires all of the core elements.

The AFL-CIO, the International Brotherhood of Teamsters, and others suggested that OSHA give employers credit for steps, such as training and job hazard analysis, they have taken toward controlling ergonomic hazards or for controlling hazards in problem jobs in their workplaces (see, e.g., Exs. 30-1547, 32-185, 32-311, 32-339, 32-461, 500-207; Tr. 6423, Tr. 11129, Tr. 13092). These commenters believed that such credit could substitute for a true grandfather clause.

The final ergonomics standard does give credit to employers who have already carried out certain procedures or voluntarily complied with portions of the standard. For example, employers who have already performed job hazard analysis in some jobs would not have to re-analyze those jobs (see paragraph (j)(1) of the final rule). Likewise, employers who have already trained their employees in the ergonomic control measures they instituted would not have to duplicate that training (see paragraph (t)(5) of the final rule).

Some rulemaking participants suggested that OSHA recognize for grandfather status any ergonomics program in effect at the time the final rule becomes effective (see, e.g., Exs. 30-494, 30-2989, 30-3781, 500-213; Tr. 10089). These commenters believe that these employers should be rewarded for their proactive stance toward ergonomics. For example, the National Council of Agricultural Employers said, “a grandfather clause should recognize and exempt forward-thinking employers that have already implemented an ergonomics program” [Ex. 30-3781]. The National Association of Convenience Stores went further to suggest that OSHA also grandfather trade-association-provided programs: “OSHA [should] consider grandfathering existing risk management programs or industry-specific programs which trade associations may be able to provide to their members' (Tr. 10089). The Air Conditioning Contractors of America recommended that OSHA recognize virtually any existing ergonomics program under the grandfather clause (Ex. 500-53). It said that OSHA could require grandfathered programs to be improved at such time in the future as MSD hazards became better understood.

As explained earlier, OSHA believes that it is essential for grandfathered ergonomics programs to include all of the core elements of successful ergonomics programs and to meet demonstrable effectiveness criteria. OSHA agrees that employers who have already adopted existing programs are proactive; however, some of these employers are likely to have programs that are not as protective as the program OSHA is requiring or programs that do not include those elements shown to be essential to program effectiveness. It would therefore be inappropriate for OSHA to grandfather these programs.

Several hearing participants provided OSHA with alternative regulatory language for the grandfather clause in their post-hearing submissions (Exs. 500-44, 500-78, 500-80). Southwestern Bell recommended the following language (Ex. 500-78):

How does this standard apply if I already have an ergonomics program?

If you already have an ergonomics program for the jobs this standard covers, you may continue that program provided:

(a) You have a written program that contains:

(i) Defined roles and responsibilities;

(ii) Training on the prevention of work-related MSD's; and

(iii) Procedures for completing job hazard analysis for work-related MSD's.

(b) The controls implemented are intended to reduce or eliminate risk factors for work-related MSD's;

(c) You have a program evaluation process; and you have implemented your program before the effective date of the final rule (Ex. 500-78).

OSHA has considered Southwestern Bell's suggested language but has rejected it because the programs that would be grandfathered in by such language would be missing several important elements—employee participation, hazard information and reporting, and MSD management, for example. As explained earlier, OSHA considers these elements essential to any successful ergonomics program. In addition, Southwestern Bell's approach does not contain any requirement that the program be effective, be achieving positive results, or be reducing the number of MSDs.

The American Petroleum Institute (API) proposed language that would accept an employer's existing program if it contained the following seven elements: (1) Management leadership and employee participation, (2) hazard information and reporting, (3) job hazard analysis and control, (4) training, (5) MSD management, (6) program evaluation, and (7) recordkeeping (Ex. 500-80). API's proposal also would require grandfathered programs to contain subelements under each element. For example, under job hazard analysis and control, API's language included the following provisions: “Jobs in the workplace must be assessed to identify the potential for MSD hazards. Consistent with the job assessment, an action plan is developed to control identified or potential MSD hazards determined to present a significant risk.” Their language also suggested that grandfathered programs demonstrate effectiveness via measures such as the following: Decreases in the frequency of reported MSDs, decreases in the severity of MSDs, reduced workers' compensation claims related to MSDs, symptoms surveys, and a reduction of MSD risk factors. API did not include Start Printed Page 68299work restriction protection among the elements grandfathered programs must have.

API's suggested grandfather clause had two other features. First, it specifically recognized any program meeting the requirements of an employer's State OSHA ergonomics standard. Second, it recognized existing programs in both existing workplaces and newly acquired or built plants of a corporation that has a grandfathered program (Ex. 500-80).

API's approach is similar to the one OSHA is taking in the final standard's grandfather clause. The final standard includes all of API's recommended elements, and also requires the employer to demonstrate that the ergonomics program is effective. API's suggested criteria for determining effectiveness are also similar to those listed as examples in the final standard. Further, the final rule permits employers with grandfathered programs to extend those programs to new corporate plants.

On the other hand, OSHA is not, as discussed above, automatically grandfathering in employers' programs that comply with State-plan State ergonomics programs. In addition, API's suggested regulatory text would not require employers to provide WRP to employees who suffer work-related MSDs. As discussed earlier, OSHA has concluded that WRP is an essential part of any ergonomics program whether it is grandfathered or not.

The Dow Chemical Company also provided alternative language for a grandfather clause (Ex. 500-44). Their alternative provided criteria for seven core elements that ergonomics programs would have to meet to be grandfathered: hazard communication, MSD reporting, hazard identification, hazard evaluation and prioritization, risk mitigation or control, appropriate knowledge and skills (that is, training), and program evaluation. Dow included specific criteria for each of these elements and an explanation of how the criteria could be met for each of the elements. Dow likened their proposal to OSHA's Process Safety Management Standard (§ 1910.119), which sets the basic elements of a process safety management program and requires the employer to spell out the details.

However, OSHA is not adopting Dow's alternative grandfather clause approach in the final rule, for several reasons. First, Dow's language does not address several elements of ergonomics programs that OSHA considers essential, including management leadership, employee participation, and MSD management. Second, Dow's alternative is overly detailed. For example, the hazard communication element incorporates separate provisions on general information regarding MSDs and general information on warning signs associated with MSDs. It also includes a provision for providing specific information on potential ergonomic hazards in an employee's work area. Third, Dow's suggested grandfather clause appears to be designed to tightly match the company's own program rather than to fit a more widely recognized model ergonomics program, such as that in OSHA's meatpacking guidelines, a program lauded by many rulemaking participants who had experience with ergonomics programs (see, e.g., Exs. 30-1294, 30-2216, 30-3046, 30-3677, 32-185; Tr. 14713). OSHA believes that more employers with effective existing programs will be able to qualify under OSHA's final grandfather clause, which is modeled after the Meatpacking Guidelines program, than those required by Dow's alternative.

Dow also commented on the enforcement implications of a performance-based grandfather clause:

The verification of compliance to a performance language regulation is most effectively achieved when the method used for prescriptive regulation compliance verification is modified. The method used by Compliance Officers for a prescriptive regulation is based on the Officer's knowledge of what is specified by the regulation to be the practice, i.e. guard rail specification. However, for performance language regulations, such as the Process Safety Management regulation and the language suggested by Dow for this proposed regulation. The Compliance Officer only knows what elements are to be addressed by an employer's program: They will not know what to expect for practices. The means to address those elements are left to the employer so that they can use whatever means best match their workplace needs and the local culture. The Compliance Officer can only gain an understanding of that workplace program from the employer. This, we believe, is where the modification in approach should occur (Ex. 500-44).

OSHA believes that, like a true performance standard, the final grandfather clause is not prescriptive in nature and leaves the details of compliance to employers to determine. OSHA compliance personnel will look first to the employer's demonstration that the program includes the core elements and subelements and second that the program is effectively addressing MSDs. Compliance officers also may assess whether the employer's program in practice matches the written program that the employer has developed.

Magnus Farley, Inc., did not provide alternative language for the grandfather clause; however, they did recommend that OSHA develop revised language and publish it for comment before adopting a final rule (Ex. 500-102). They argued that this would give industry time to evaluate the new provision and respond to it. OSHA finds a re-proposal unnecessary, because participants had ample opportunity to provide comments on the proposed grandfathered clause. The sheer volume of comments received on this topic provides evidence of this fact. Further the final rule's grandfather clause is a logical outgrowth of the proposal. In fact, the final rule responds to the overwhelming public comment that OSHA should focus on effectiveness and recognize existing programs that do not look exactly like the one required by the rule.

Some rulemaking participants supported the proposal's approach toward existing programs with only minor modification (see, e.g., Exs. 30-973, 30-1547, 30-2387, 30-3748, 32-85, 32-111, 32-339, 500-207; Tr. 15893). For example, the American Association of Occupational Health Nurses supported the proposed grandfather clause, but recommended that OSHA provide guidance for employers to use in evaluating their programs (Ex. 30-2387). The American Nurses Association supported the proposed requirement that existing program meet the basic obligation of each of the core elements of an ergonomics program (Ex. 30-3686). They did, however, recommend allowing employers up to 6 months to modify their programs so that they meet these basic obligations.

As noted earlier, program evaluation guidance is already available from the Agency. In addition, OSHA will be providing additional compliance assistance materials in the period following publication of the final rule. These materials will help employers judge whether their programs are effective and whether they qualify for grandfather status.

The final grandfather clause essentially accommodates the American Nursing Association's suggestion. Employers who, through one of the measures given in paragraph (c)(1)(v), can demonstrate that their programs are effective are free to add features that will bring them into compliance with the criteria given in paragraph (c)(1) any time before the effective date of the final standard. In addition, employers are given an extra 12 months to incorporate work restriction protection into their programs. Start Printed Page 68300

The Eastman Kodak Company argued that the proposal's grandfather clause would have required employers to fix all problem jobs before their programs were recognized (Exs. 30-429, 30-1090). The Boeing Company also noted that employers may have an acceptable program that covers some, but not all, of the jobs covered by the standard (Exs. 30-973, 30-1547). Boeing suggested allowing employers up to 2 years after the effective date to cover all such jobs.

As noted earlier, the final grandfather clause would permit employers to extend an ergonomics program that was successful in addressing some problem jobs to all problem jobs. In addition, because the final rule's compliance endpoints do not contain a set compliance deadline, employers may prioritize jobs for analysis and control if all jobs could not be controlled by the final rule's effective date.[6] Thus, the final standard addresses the concerns of these two rulemaking participants.

Some rulemaking participants suggested making the grandfather provisions more comprehensive (see, e.g., Exs. 32-182, 32-198, 32-210, 32-339, 32-461). First, as noted earlier, the AFL-CIO and others recommended strengthening the basic obligations for four of the six core elements (see, e.g., Exs. 32-198, 32-210, 32-339). Second, some participants urged OSHA to develop and publish checklists and evaluation tools to assist employers with the evaluation of their programs (see, e.g., Exs. 32-85, 32-210, 32-339). Without these tools, they argued, an employer's program could be grandfathered without any solid demonstration that it is effective. The AFL-CIO argued that the standard should be as protective as, and consistent with, existing effective ergonomics programs, OSHA general duty clause settlement agreements, and OSHA and NIOSH recommended practice (Ex. 32-339). In keeping with this goal, they developed principles that they believe should guide OSHA in casting the final standard:

The standard should codify and reflect the good industry practices and programs implemented by employers who have effectively addressed ergonomic hazards. It should build on the agency's enforcement actions and settlement agreements on ergonomic hazards under the general duty clause. The standard also should be consistent with the measures used in other agency standards on toxic substances and physical agents such as the lead and formaldehyde standards and those which follow a programmatic approach, such as the Process Safety Management and Hazard Communication Standards (Ex. 32-339).

OSHA believes that the final rule's grandfather clause is comprehensive enough to ensure that inadequate programs do not qualify and is flexible enough to permit many different kinds of effective programs to qualify. As explained previously, the Agency believes that requiring programs to meet a combination of essential program elements and recognized effectiveness measures will prevent inadequate ergonomics programs from achieving grandfather status. On the other hand, OSHA does not agree that it is necessary to codify the precise practices used in the most effective programs, as the AFL-CIO suggests. Doing so would unnecessarily limit an employer's flexibility in complying with the final standard. The Agency believes that the final rule has achieved a balance between flexibility and comprehensiveness that will recognize effective ergonomics programs and deny grandfather status to inadequate ones.

6. Other Comments on the Proposed Grandfather Clause

The National Soft Drink Association objected to the requirement that the employer's program be evaluated and found to be functioning properly before the effective date of the standard (Ex. 30-3368). The trade association argued that a thorough evaluation of any program will probably uncover areas that could be improved. Other rulemaking participants also recommended that the standard allow employers to modify their programs so that they could be improved (see, e.g., Exs. 30-1547, 30-3765, 30-4130, 30-4537). For example, the Boeing Company was concerned that an employer would not be able to improve an existing program without falling out of compliance with the grandfather clause (Ex. 30-1547). In response, OSHA recognizes that all ergonomics programs will need to be modified over time to correct deficiencies. The standard not only accommodates this, but requires it in paragraph (c)(1)(v).

Some commenters stated that the proposed grandfather clause would force existing programs to include the six core elements if they wished to be grandfathered even if the employer did not have an employee with an MSD that triggered the standard (see, e.g., Exs. 30-715, 30-3678). In response, OSHA considers it most unlikely that an employer with an effective existing program would not have employees experiencing MSDs.

Some rulemaking participants suggested that OSHA strengthen the grandfather clause in various ways (see, e.g., Exs. 30-2039, 30-4538, 32-182, 32-185). For example, the American Federation of Government Employees recommended that employers have a documented program in place for at least 2 years before being eligible and that a grandfathered program be required to comply with the full standard if any MSDs occur (Ex. 30-4538). They also urged OSHA to require that, in evaluating the program, the employer determine that it is effective in addition to functioning properly. The American Federation of State, County, and Municipal Employees recommended that OSHA require that all elements of an employer's ergonomic program be effective before the employer is eligible under the grandfather clause (Ex. 32-182). Mr. Howard Egerman was concerned that having the employer evaluate its own program was bound to be ineffective because the employer could not be disinterested (Ex. 30-115). Communication Workers of America Local 2222 recommended that the standard require employees to agree with the employer's evaluation before an existing program would be acceptable and that OSHA mediate any disputes (Ex. 30-2039).

OSHA believes that the grandfather clause in the final rule will be protective of employees' safety and health without the addition of these suggestions. The Agency is therefore not setting a minimum time period that an employer's program must have been in place to be judged effective to qualify for the grandfather clause. The final grandfather clause requires the employer to be able to demonstrate that the program is effective and to evaluate its elements and correct any deficiencies identified before the effective date. [7] This will ensure that only relatively mature programs qualify for grandfathering.

Many rulemaking participants testified that MSDs still occur in workplaceswith the best ergonomics programs in place (Exs. 30-3765; 30-4046; Tr. 14730). OSHA agrees that this is often the case, and the final rule specifically notes that the occurrence of MSDs does not constitute a violation of Start Printed Page 68301the standard (see the note to paragraph (k)).

Although the employer will be evaluating the program, OSHA believes that Mr. Egerman's concern is unfounded, because paragraph (c)(1)(v) requires the employer to be able to demonstrate that the program is effective. This provision, and the inclusion of the core elements, should ensure that the evaluation is appropriate. In addition, the final grandfather clause requires qualifying programs to include employee participation in program evaluation. This will also act as a check on the accuracy of the evaluation process. For these reasons, the Agency believes that the grandfather clause in the final ergonomics standard will provide an appropriate level of protection for employees.

Some rulemaking participants objected to language in the proposal that required the employer to show that their program complies with the basic obligations and is functioning properly (see, e.g., Exs. 30-541, 30-562, 30-1355, 30-1547, 30-3117, 30-3783, 30-4607). They argued that the burden should be on OSHA's compliance staff to address ergonomic hazards rather than on the employer to demonstrate that its program qualifies. Some of these rulemaking participants argued that placing the burden on employers to demonstrate program effectiveness would disproportionately affect small employers, who do not have the resources of larger ones (see, e.g., Exs. 30-3117, 30-3783). Caterpillar, Inc. stated that the subjective nature of the grandfather clause would lead to uneven enforcement across employer groups and across the nation (Ex. 30-4607).

The American Apparel Manufacturers Association also was concerned about enforcement and gave the following example of how an employer's interpretation of what constitutes a problem job could differ from that of an OSHA compliance officer:

An apparel manufacturer may see two sewing jobs as extremely different, involving different activities and physical requirements, but an OSHA inspector with no experience in the apparel industry may well see them as the same. This ambiguity of language may cause penalties against companies who believed they were, in good faith, running a successful ergonomics program (Ex. 30-4470).

The Boeing Company was also concerned about being second guessed by OSHA enforcement personnel (Exs. 30-973, 30-1547). They recommended that the standard unambiguously recognize programs addressing the basic obligations. In particular, Boeing urged OSHA to clarify that an employer who is complying with a written program that meets the grandfather clause is in compliance with the standard (Ex. 30-1547). They argued as follows:

Where employers are already undertaking what can reasonably be done in good faith to minimize problem jobs, they should be protected from second-guessing by inspectors. OSHA's limited resources are better used focusing on worksites where ergonomic hazards have yet to be addressed, not on worksites which have already implemented effective ergonomics programs (Ex. 30-1547).

Others believed that it is appropriate for OSHA to require employers to demonstrate the effectiveness of their programs (see, e.g., Exs. 30-429, 30-2835, 30-3813, 30-4134, 31-337, 500-214). These commenters argued that this was the approach taken by Washington State in its ergonomics standard, and they believed that it was reasonable.

OSHA finds, based on a review of the evidence in the record as a whole, that the final grandfather clause is not likely to lead to uneven enforcement. It is true that employers will need some method of assuring themselves that their ergonomics program qualifies for the grandfather clause, and the method chosen also will be useful to OSHA compliance personnel. However, OSHA will not cite employers who make an adequate demonstration [8] that their programs are effective and include the elements and subelements in paragraph (c)(1). However, if the Agency finds objective evidence that the employer is basing the demonstration on inaccurate information, OSHA will not consider that employer's program as qualifying for grandfather status.

OSHA also believes that it is reasonable and appropriate to place the burden of demonstrating that their programs qualify for grandfather status on employers because grandfathered programs are the “exception” to the standard. Employers who choose to take advantage of using a program that is not required to meet the full ergonomics standard in all its details can reasonably be expected to produce evidence that their programs qualify for the grandfather clause. OSHA needs assurance that employees in workplaces with grandfathered programs will be adequately protected by these programs. For these reasons, the final grandfather clause requires the employer to demonstrate that their programs qualify for grandfather status.

Some rulemaking participants complained that the proposal would require employers wanting to take advantage of the grandfather provision to keep unnecessary records (see, e.g., Exs. 30-2645, 30-2815, 30-2835, 30-4628). For example, the Chemical Manufacturers Association and others stated that an unwarranted paperwork burden would be forced on an employer because it would have to document that the program met the basic obligations and that the program is functioning properly (see, e.g., Exs. 30-2835, 30-3356, 30-4628).

The final grandfather clause does not require the employer to maintain any records. In fact, the final standard does not require employers whose programs are grandfathered to maintain any of the records required by the full standard in paragraph (v). Some employers may choose to maintain certain records to facilitate their demonstration of effectiveness. However, some effectiveness measures require no records. For example, the Dow Chemical Company, whose program involves the evaluation of all tasks in high risk jobs and control of all ergonomic hazards in those jobs, would need only show that adequate controls are in place to demonstrate effectiveness. (They also would need to show that their program includes the elements and subelements given in paragraph (c)(1).) In addition, most employers with existing programs are already required, under 29 CFR Part 1904, to maintain injury and illness records. Employers should be able to use those records, with little or no modification, to demonstrate effectiveness. Thus, OSHA has concluded that comments that the grandfather clause would create an unwarranted paperwork burden are unfounded.

Some rulemaking participants argued that companies would be forced to alter their existing safety and health programs to meet the OSHA ergonomics standard, forcing them to inefficiently allocate resources away from their safety and health programs (see, e.g., Exs. 30-2216, 30-3845, 30-4818, 31-310; Tr. 11379, 11403). These commenters apparently believe that two separate and incompatible programs would be required or that grandfathering would require major restructuring of their current ergonomics program. For example, the Forum for a Responsible Ergonomics Standard recommended that OSHA recognize existing programs that met the goal of reducing or eliminating MSD hazards regardless of whether or not they met the technical specifications of the six proposed program elements (Ex. 30-3845). Start Printed Page 68302Otherwise, they argued, the standard would not only upset the performance of existing programs but would result in poor allocation of risk control resources. They gave examples of what they believed might occur:

[O]ne Forum member, CCE, has spent millions of dollars researching and developing methods to reduce injuries related to various warehousing and delivery activities, such as improving new order fulfillment systems. In this respect, CCE is pioneering achievements that likely will eventually be adopted throughout its industry. However, particularly with respect to employee participation in developing safety programs, CCE is unlikely to meet the strict requirements for grandfathering. As a result, CCE anticipates that many of its current efforts will be derailed as resources, especially the time of its highly trained staff, will have to be diverted to ensuring compliance with the OSHA standard. Instead of developing fixes that will prevent injuries, these resources will be directed towards “fixing” the administrative structure of its program.

Similarly, many NACS members (convenience store operators and petroleum marketers) incorporate MSD prevention and ergonomics issues into their general worker safety programs that cover a wide range of issues, from dealing with slips and falls to robbery deterrents to customer safety issues. These programs have been extremely effective in reducing MSD injuries. If not grandfathered, implementing OSHA's proposed standard would require upsetting and dramatically changing these already effective programs (Ex. 30-3845).

Mead Corporation (Ex. 30-2216) made a similar comment:

Responsible employers would be forced to alter achieving programs and pursue measures that we know are not as effective as what we are already doing. The resources that are focused on MSD prevention would be shifted toward less meaningful activities. A new infusion of MSDs may result at many workplaces that have effectively controlled these types of accidents to date because of the shift in emphasis brought on by compliance demands.

Consider:

  • Many companies utilize periodic risk assessments to update priorities for ergonomics projects. Risk assessments commonly include a survey of the workplace, discussions with employees about potential concerns, and analysis of MSDs. Priorities are established and incorporated into a work plan for the site's ergonomics/safety team.
  • When ergonomics teams in Mead conduct analyses of jobs, they are encouraged to identify as many opportunities for continuous improvement (potential risk factors) as possible and then to prioritize based upon risk. Action plans are developed for high risk concerns. Lower priorities are not addressed at the time unless they are low cost. Teams maintain documentation of these items and may revisit them in the future once higher priority items are resolved

In each of these examples, employers are pursuing activities that should be recognized as meaningful and exceeding the level of protection OSHA is currently seeking for the control of MSDs. With the proposed standard, however:

  • When persistent symptoms develop at a job considered to be moderate priority for continuous improvement, higher priority changes would be delayed, placing more employees at higher risk for developing MSDs;
  • Similarly, when partial work aggravation associated with a low risk task triggers a manufacturing job, high priority changes recommended by the ergonomics team based upon comprehensive analysis will be delayed; and
  • Documentation of MSD prevention activities will be increasingly scrutinized and restricted due to concerns over how OSHA would interpret the information (Ex. 30-2216).

On the other hand, the American Society of Safety Engineers stated that ergonomics programs fit easily into existing safety and health programs:

The establishment of basic ergonomic management programs, increasing employee awareness and involvement on these issues is not a burden to employers when compared to other safety and health compliance requirements.

In fact, most efficient and effective ergonomic initiatives will usually dovetail with other existing safety and health programs (Tr. 11611).

The final rule in general, and the grandfather clause in particular, will not, in OSHA's view, require an inefficient reallocation of resources. In fact, because MSDs are the leading cause of on-the-job injuries and illnesses, OSHA believes that the final rule will ensure that resources will be devoted to areas where significant improvement in injury and illness rates can be realized.

OSHA agrees with the American Society of Safety Engineers that ergonomics programs fit well as part of comprehensive workplace safety and health programs. The final grandfather clause does not require employers to divorce ergonomics from their existing safety and health programs. Thus, employers who address ergonomics in existing effective safety and health programs typically will not need to reinvent their ergonomics program just to qualify for the grandfather clause.

In addition, as noted earlier, the final rule accommodates prioritization of the implementation of permanent controls, as Mead Corporation is doing, where the employer cannot fix all problem jobs at once. Therefore, OSHA does not believe that the final rule's grandfather clause will be disruptive or result in an unwarranted reallocation of resources.

Union Carbide recommended that the standard not require employee participation in the development of existing programs that would otherwise qualify under the grandfather clause (Ex. 30-3784). ORC also identified employee participation in the development of each element of the program as one area that few of its member companies could comply with (Tr. 4135).

OSHA agrees with these rulemaking participants that employee participation in the development of ergonomics programs is not necessary where an existing program that qualifies for the grandfather clause is at issue. The primary purpose of the grandfather clause is to recognize ergonomics programs that employers have already put into place, i.e., that are already well past the developmental stage. According to ORC, some of these programs have not involved employees in the past development, implementation, or evaluation of the program. As drafted in the final rule, employee participation in these stages of program implementation is required as appropriate, from this time forward. In other words, OSHA is not requiring employee participation in the past development of a program as a condition of the grandfather clause; it is requiring employee participation in the implementation, evaluation, and future development of grandfathered programs, however.

Alcoa, Inc., recommended that, for existing capital-intensive industries and equipment, OSHA allow employers additional time to come into compliance with the grandfather clause (Ex. 30-3922). They argued that the implementation of permanent controls within 2 years, as proposed, was neither realistic nor economically feasible for some employers. The final rule's grandfather clause allows an employer to have a process for identifying, analyzing, and controlling MSD hazards in problem jobs and following up to ensure control effectiveness. Through a prioritization process, an employer may choose to temporarily implement interim controls. Although the employer is expected to institute permanent controls as soon as possible, the final rule does not provide a date when this must be accomplished. Thus, employers in all industries with qualifying programs will be able to prioritize their jobs for control in a rational manner that permits them to take advantage of the capital involvement and replacement schedules of their industries. Start Printed Page 68303

Paragraph (d)—What Information Must I Provide to my Employees?

Paragraph (d) of the final rule requires employers to provide their employees with basic information about five items:

(i) Common musculoskeletal disorders (MSDs) and their signs and symptoms;

(ii) The importance of reporting MSDs and their signs and symptoms early and the consequences of failing to report them early;

(iii) How to report MSDs and their signs and symptoms in the workplace;

(iv) The kinds of risk factors, jobs and work activities associated with MSD hazards; and

(v) A description of the requirements of OSHA's ergonomics program standard.

This information must be provided to new employees within 14 days of hiring, and must be posted conspicuously in the workplace. Consistent with applicable law, information may be posted or provided electronically to employees who have electronic access. To assist employers in meeting their obligation under this paragraph, OSHA has included nonmandatory Appendices A and B, which contain all the information needed to comply with this paragraph, except for the workplace-specific information on reporting MSDs and their signs and symptoms.

The proposed rule also would have required employers to provide employees with information on how to recognize MSDs (and their signs and symptoms); on the importance of early reporting of MSDs; and on how to report MSDs at their workplace. It also would have required employees to establish a reporting system for MSDs. These provisions in the proposed rule, however, would only have applied to manufacturing and manual handling employers. OSHA expected the provisions to serve three purposes: to facilitate employees' active participation in their employers' ergonomics programs; to promote early reporting so that MSDs could be treated most effectively; and to assure prompt identification of MSD hazards so that the incident trigger of the standard would work properly.

There was a great deal of support, in general, for requiring employers to provide hazard and reporting information to employees (see, e.g., Exs. 30-2116, 30-3813, 30-3748, 30-3765, 30-3934, 32-339-1, 32-111-4, 32-185-3, 30-3686, 32-461, 32-210-2, 30-3826, 30-3686, 32-182-1, 30-2116, 30-3748, 30-4564, 32-198-2, 500-33, 32-21-1, 32-450-1, 30-4247 and 32-450-1). Mr. Mark Davidson, Risk Manager for Safeway Stores testified (Tr. 13674, 13658) that he adamantly supported pre-injury efforts to train and evaluate people. He stated the fact that Safeway had produced a video to educate employees on symptoms of soft tissue injury and had merely shown it to employees across the United States. Both Akers Logging (Tr. 12325) and Swift Company Timber Management (Tr. 12315-16) believed that this information could be incorporated into regular safety meetings, and Mr. Swift testified that the cost would be nominal, if anything.

In fact, a number of participants urged OSHA to go even further and require employers to survey their employees to identify existing signs and symptoms (see, e.g., Exs. 31-113, 31-150, 30-4538, 31-243, 31-186, 30-2387, 31-156, 31-125, 31-105, 31-43, 31-23, and Tr. 4732-33). One commenter (Ex. 31-186) said that, as well as promoting the early detection of MSDs, thereby saving employers money and lost work time, surveys also send the message that the employer cares about employee health and safety. The American Association of Occupational Health Nurses (AAOHN) (Ex. 30-2387) also said that MSD symptoms surveys should be strongly encouraged, if not required.

Other commenters argued that the benefits of this information provision should not be limited to jobs involving manufacturing and materials handling (Ex. 30-3826). Since implementation of any ergonomics program outside manufacturing and manual handling would have been based on the occurrence of an OSHA-recordable MSD, it made little sense, these commenters felt, not to provide employees in other jobs with information on what and how to report:

Employees cannot be expected to report early if they are not educated on what signs and symptoms of MSDs are and if the employer is not communicating with them the importance of reporting early. Also, if employees are not aware of, or do not know the mechanism of reporting, than it is surely less likely that they will report * * *. This will be a great disincentive for reporting (Ex. 32-210-2, pg. 130).

See also, e.g., Exs. 500-126, 32-85-3, 30-4538, 32-198-4, 30-2387.

Some commenters, however, objected that employers should not be required to provide hazard and reporting information before an MSD occurred (see, e.g., 30-3723, 30-3867, 30-3086, 30-4465, 30-4607, 30-1012). These commenters argued that providing the information would be an unjustified consumption of resources, infrastructure capacity, and support, adding overhead and cost with no potential benefit. The General Electric Company (Ex. 30-1071) felt that an employer proactively identifying ergonomic issues would likely unearth complaints of MSD signs and symptoms. The American Iron and Steel Institute (AISI) (Ex. 32-206-1) stated:

The provisions in proposed Sections 1910.914 and 1910.916 requiring the employer * * * to inform workers of the signs and symptoms of MSDs and how to report them would create an enormous potential for abuse of the system. The manner in which OSHA is expected to enforce those provisions will only exacerbate the problem (Ex. 32-206-1, pg. 40).

Other participants also expressed concern that providing employees with additional information about MSDs will cause workers to misattribute benign symptoms to serious injury or disease, thereby heightening symptoms and distress, or otherwise to make false reports (Exs. 32-241-3-2, 30-3716, 30-3000, 30-4843, Tr.16087, Tr. 10445-6). Omni Services Incorporated (Ex. 30-4496-35) believes it would be easy for employees to report almost any ache or pain as work-related and get paid time off until they feel better.

The Painting and Decorating Contractors of America (Ex. 30-3716) voiced concern that the information presented to employees about MSD signs and symptoms and the importance of reporting them early would not only require employers to develop expertise in ergonomics-related injuries, but would encourage employees to classify almost any job-related ache or pain as an MSD. The Plastics Engineering Company (Ex. 30-2435) stated that the requirements would encourage employees to report both real and phoney or exaggerated MSDs. The American Road and Transportation Builders Association (Ex. 30-4676) argued that the number of work-related MSD claims, and the number determined to be work-related, would significantly increase. See also Exs. 500-127, 31-106, 31-344, 32-82-1, 30-3749, 30-3336, 30-3367. The AAOHN (Ex. 30-2387), however, pointed out that often, after ergonomic training, employers experience an increase in MSD complaints and should be prepared for this eventuality. As noted elsewhere in the Preamble, these are not “new” MSDs, but instead the expected earlier reporting of MSDs that are already occurring.

OSHA does not find evidence that encouraging early reporting of MSDs promotes abuse. Evidence discussed in other sections of this Preamble indicates that programs that encourage early reporting of MSDs, so that employees Start Printed Page 68304can enter an MSD management program, actually reduce the time employees are subject to work restrictions. OSHA also has analogous requirements in other standards, for example, the Bloodborne Pathogens standard (29 CFR 1910.1030) and several of its chemical exposure standards (Cadmium, 29 CFR 1910.1027; 1,3-Butadiene, 29 CFR 1910.1051; Methylene Chloride, 29 CFR 1910.1052), and has seen no evidence that the provisions are abused. These provisions simply require that the employer provide basic information to employees; have a system in place for employees to report possible injuries, illnesses, and exposures; and evaluate and respond to these reports. As is discussed more fully in connection with paragraphs (e) and (f), a report of an MSD does not impose any obligations on employers unless the employer determines that the MSD is work related and meets the severity criteria, and the job itself meets the levels of the Basic Screening Tool in Table 1.

OSHA also agrees with the comments discussed above urging that all general industry employees be provided with this information. It believes the incident trigger in the standard can only be fully effective if all employees have basic information about MSDs and how and why to report them promptly. This means that some general industry employers, who under the proposal would have had no obligations at all until receiving a report of an MSD, will now have to provide this information. OSHA emphasizes, however, the minimal nature of the burden imposed by this paragraph. All of the information, except that on how to report MSDs and signs and symptoms to a particular employer, is contained in Appendices A and B to this standard, and will also be posted on OSHA's website. Employers need only copy or download the information for distribution to their employees. This responds to a number of comments asking OSHA to provide materials to assist employers in providing information to employees (see, e.g., Exs. 30-429, 30-4492, 30-2987, 30-3232, 30-3853, 32-337-1, 32-210-2, 32-461-1, 32-461-1, 30-3826, 30-4538, 30-3686, 30-2387).

The requirement that employees be given information on how to report MSDs and their signs and symptoms is also necessary to ensure the effectiveness of the standard's exposure trigger. This requirement is even more basic than that contained in the proposed rule. It does not require employers to set up any particular reporting system, only that employees know how to report their MSDs or signs and symptoms. Particularly for a very small employer, this could be as basic as telling them to report them to a supervisor or safety official. Larger employers may use their existing reporting systems (Ex. 30-3826). Although OSHA intended this option also to be available under the proposed rule, several commenters interpreted the proposal as requiring a reporting system specific to MSD signs and symptoms (Exs. 31-78, 30-240, 30-3723, 30-3765, 32-77-2, Tr. 5340, 30-3853, 32-337-1, 30-716, 30-2215, 500-127). In light of the revised language in the final standard, these comments are now moot.

Other commenters, however, urged OSHA to adopt a more elaborate MSD reporting system. The American Federation of Teachers (Ex. 32-326-1) urged OSHA to strengthen the reporting requirements by stipulating that employers document a method for encouraging employees to report. Morgan, Lewis, and Bockius (Ex. 30-4467) expressed concern that employers would have no sure way of knowing whether a reporting system would satisfy an OSHA compliance officer's interpretation of the standard's requirements. OSHA does not agree that more detail is necessary in this provision.

The final standard allows employers extensive flexibility to tailor reporting systems to the demands of individual workplaces. Variations among employers (e.g., size, management structure, number and type of facilities) could lead to some types of reporting systems being more effective than others for different employers. Some may choose written reporting systems, while others may feel that an oral system is a “better fit” for their particular situation. OSHA demands only that, whatever approach is used, it must be accessible and carried out in an orderly way that is recognized and understood by the involved parties.

A few commenters questioned the requirement to provide employees with a summary of the standard (see, e.g., Exs. 30-3765, 30-1336, 30-3782-12, 30-2836, 30-2940, 30-240). The G. Leblanc Corporation (Ex. 30-4837) stated that, with the exception of this item, the information to be provided to employees would be very helpful in making the reporting/response system successful. It also felt that inclusion of the summary resulted in additional cost and expertise necessary for providing the information. The Dow Chemical Company (Ex. 30-3765) also commented that, while it supports telling employees about MSD hazards, signs and symptoms, the importance of reporting them early, and the mechanics of how to report them and uses a program that emphasizes the information envisioned by this provision, it does not support providing a summary of the requirements of the standard. The Edison Electric Institute (Ex. 32-300-1) also objected to the requirement that supervisors and employees be trained in the requirements of the standard.

Some of these commenters (see, e.g., Exs. 30-1336, 30-2836, 30-2940) voiced concern about not knowing how many pages of information were sufficient to comply with this requirement, while others (see, e.g., Ex. 30-3782-12) felt that how to interpret a “summary of the standard” and how to provide this to the employee was left to the employer's imagination. These concerns are addressed by the inclusion of nonmandatory Appendix B to the standard.

On the other hand, several commenters stated that employees should receive even more information (Exs. 30-4538, 31-242, 32-461-1, 32-210-2, 32-182-1, 32-111-4, 32-339-1, 500-218, Tr. 3481-82, 500-126, 31-280, Tr. 4542-43). For example, the AFL-CIO recommended that the hazard information and training requirements be restructured to move some of the training requirements up-front and stated:

Specifically, we recommend that the Hazard Information and Reporting section require information and awareness initial training on the following:

1. Common MSD hazards;

2. The signs and symptoms of MSDs and the importance of recognizing and reporting them early;

3. How to report MSDs, signs and symptoms of MSDs, and MSD hazards and the prohibition against discouraging employee reports;

4. An explanation of this standard, including ways for employees to participate and how to get a copy of the standard;

5. An explanation of MSD management, including temporary work restrictions and work restriction protection; and

6. The principles for controlling common MSD hazards. (Ex. 32-339-1, pgs. 32-33)

Other commenters suggested that additional topics such as employee rights to job protection, right to report reporting procedures, symptom reporting procedures and training be included (see, e.g., Exs. 32-461-1, 30-4538, 30-3686, 32-198-4, 32-198-4-1, 32-198-4-13)

OSHA has considered these comments and incorporated some of the suggestions. Other topics are addressed in the context of ergonomics program training under paragraph (t). The information requirement in this Start Printed Page 68305paragraph (d), however, is intended to provide employees with the minimum amount of information they need to perform their function under the standard: recognizing and reporting MSDs and their signs and symptoms, and doing so as early as possible. Employers are free to provide additional information (e.g., explaining their particular ergonomics program), but OSHA does not believe that more detailed information is necessary before any MSD hazards have been found. As previously discussed, the Agency has attached an information sheet for the employer to use in providing the required information.

Finally, the issue of the posting of this information was also raised by several commenters (see, e.g., Exs. 31-70, 31-342, 30-240, 30-1726, 30-1104, Tr. 10586). One commenter (Ex. 31-70) stated that the final standard should require mandatory posting of information for employees. Similarly, another commenter (Ex. 31-342) commented that there should be a requirement to either post a notice that employees should report possible MSDs promptly or inform employees in another effective manner. The National Association of Orthopaedic Nurses (Ex. 30-1104, Tr. 10586) supported a readily identifiable posting of MSD signs and symptoms, who to report to, and how to report. In addition, the University of Wisconsin Extension (Ex. 30-1726) urged OSHA to develop “more boilerplate” on a policy that encourages reporting and to require that this policy be posted in the workplace. On the other hand, August Mack Environmental (Ex. 30-240) argued that posting was redundant, unnecessary and posed a problem due to often limited space available for postings. It felt that the currently required OSHA poster already contains information on how to get additional information about OSHA standards.

Paragraph (d)(2) of the final standard requires that the information provided to employees must also be posted in a conspicuous place. In addition to an employee bulletin board, such places may be the employee locker room, lunch room, or near the time clock. Electronic posting is also permissible where all employees have access. While the Agency realizes that these options are not available in all facilities, most employers have some area, recognized by employees, where the employer posts company announcements and information. OSHA believes the posting requirement is necessary because many employees may not have immediate access to their original information sheet when they are beginning to develop an MSD.

In conclusion, OSHA has considered all of the comments and testimony received on the proposed provisions requiring employers to provide hazard information and reporting. It has decided to retain the requirement that employers covered by the final rule to provide minimal information to employees before an MSD incident occurs. OSHA believes the final rule provision is adequate without requiring additional measures such as surveying employees to identify signs and symptoms of MSDs.

Paragraph (e)—When Must I Take Further Action?

A. Introduction

The final rule incorporates a two-stage action trigger. It requires further action when (1) an employee experiences a work-related MSD involving either one or more days away from work, one or more days of limitations on the work activities of the employee, medical treatment beyond first aid, or 7 days of persistent MSD signs or symptoms (2) in a job with exposures to risk factors that meet the Basic Screening Tool in Table 1. Unless both stages of this action trigger are reached, the standard does not require employers to take any action beyond providing the information in paragraph (d) to their employees.

The action trigger in this standard serves a purpose analogous to that served by action levels in OSHA standards regulating exposures to air contaminants. Those standards generally require that airborne levels of the contaminant be kept below a permissible exposure level (PEL). At a much lower level, however, employers are required to take actions such as conducting air monitoring and providing training and medical surveillance to exposed employees, although they do not actually need to implement controls to reduce exposures to the regulated substance. Similarly, in this standard, once a job meets the action trigger, the employer must implement an ergonomics program that includes job hazard analysis, training, and MSD management (for the injured employee), although it may not actually be necessary to control or reduce the MSD hazard.

This concept is similar to the approach OSHA took in the proposed rule. In the proposal, an employer was required to take further action if an OSHA-recordable MSD occurred in a job meeting certain “screening criteria,” i.e., the job involved physical work activities and conditions that were reasonably likely to result in the MSD, and those activities were either a “core element” of the job or accounted for a “significant amount” of the employee's worktime. In manufacturing and manual handling jobs, an OSHA-recordable MSD was not necessary if an employee reported persistent symptoms and the employer had knowledge of problems in the job.

OSHA received a large number of comments about the proposal's triggering mechanism. These comments fell into several categories. Many parties objected that the single MSD incident trigger included in the proposal was either too sensitive or not protective enough. Others objected to the use of an OSHA-recordable MSD, often pointing out that OSHA has proposed to amend its recordkeeping regulation, and that those amendments could also affect this ergonomic standard. In addition, commenters complained that the proposed standard's screening criteria would be extremely difficult to apply in practice, pointing in particular to the terms “core element,” “substantial part of the workday,” and “reasonably likely to result in the MSD.”

As explained below, OSHA has made a number of changes in response to these comments. The triggering mechanism in the final rule has more precisely defined elements, and OSHA believes it should be much easier to apply.

A job meets the action trigger in the final standard based on two criteria. The first is what has been called the “single-incident trigger.” Under this criterion, an employee working in the job must have incurred either a work-related MSD severe enough to result in a work restriction, medical treatment beyond first aid, or MSD signs or symptoms lasting at least 7 consecutive days after being reported to the employer. A work restriction is defined in the standard as one or more days away from work, one or more days of limitations on the work activities of the employee's current job, or one or more days of temporary transfer to alternative duty (see paragraph (z)). Under the final rule, an MSD meeting this description is an “MSD incident.” The employer's first duty, after receiving a report of an MSD or MSD signs or symptoms, is to determine whether the report constitutes an MSD incident.

The second step of the action trigger, which must only be addressed after an MSD incident occurs, is based on the employee's exposures to ergonomic risk factors. If the employee is exposed to one or more of the risk factors described in the Basic Screening Tool in Table 1 for longer than the time listed for that Start Printed Page 68306risk factor, then the job meets the screen.

B. MSD Incident Trigger

1. Incident-Based Approach

The proposed standard also included a single-incident trigger. Under the proposal, employers of workers engaged in manufacturing and manual handling would have been required to implement some elements of an ergonomics program standard soon after the standard took effect, whether or not MSDs had occurred in their jobs. Once a “covered MSD” meeting the screening criteria occurred, those employers would have been required to adopt a full ergonomics program. Other employers would not be required to take any action before a “covered MSD” meeting the screening criteria occurred, but once that happened, they also were required to adopt the full program. In this final rule, OSHA has clarified that the only action explicitly triggered by an MSD incident is to apply the Table 1 screen. OSHA finds that the record supports using an MSD incident for this purpose.

A number of participants objected to the proposal's incident trigger on the basis that it was reactive and appeared inconsistent with OSHA's mission “to prevent the first injury” (Ex. 500-218, Tr. 9071, 9156, 12277, 12477). A number of labor organizations favored a proactive approach because, according to the International Chemical Workers' Union, “[w]aiting for a covered MSD or persistent MSD symptoms to arise, versus evaluation and prevention, is a lose-lose proposition” (Ex. 32-198-4, 32-461-1, 500-137; see also Ex. 500-218, Tr. 12365, 17543). The Farm Workers Justice Fund urged OSHA to adopt a hazard-based approach because in many workplaces employees experience a great deal of pressure not to report injuries (Tr. 17515).

Some employers and representatives of employers also supported a hazard-based rather than an incident-based rule (Ex. 30-1294, DC67, Tr. 9070-74, 12277, 13633, 10631, 10636). Mark Davidson, of the Oregon Self Insurance Association, preferred a proactive approach because:

If the goal is to cut down on the occurrence of MSD complaints, shouldn't the regulatory effort [focus on] preventing the occurrence rather than punish it (Tr. 13633).

Anthony Barsotti, of Hoffman Construction Company, said that an incident-based approach was “heading backwards in terms of prevention” versus reaction:

[H]aving the standard be triggered by the injuries seems inconsistent with where we have been going, both as a safety profession and as a society in terms of identifying hazards, developing systems and processes to control them. And then, kind of when those systems fail and we have an injury, then what are our back-up systems and our approaches? (Tr. 12277).

See also (Tr. 9115-16).

OSHA has carefully considered these comments. In response, it has added a proactive element to the definition of an MSD incident. MSD signs and symptoms that last for 7 consecutive days since first reported to the employer are considered MSD incidents under this standard. Several health care professionals testified that, in most cases, MSD signs and symptoms are completely reversible when they are caught at such an early stage (see, e.g., Exs. 37-1; 37-2, pp. 14-15; 37-12, p. 5; 37-16, p. 8; 37-17, p. 4; Tr. 7687-88, 9884, 13397-98, 13410). Thus, OSHA has concluded that its incident-based approach can prevent employees from experiencing permanent damage or disability, while at the same time minimizing burdens for employers who have few or no ergonomics problems (Ex. 16969-70).

Where employers have provided their employees with appropriate information to allow the employees to recognize MSDs and MSD signs and symptoms, and have also instituted good reporting systems, and employees still are not reporting MSDs, a full ergonomics program may not be necessary. OSHA agrees with commenters who said that a purely hazard-based approach, which would require all employers to analyze all jobs, regardless of whether those jobs have ever caused an MSD, might result in an inefficient use of resources (Exs. 500-1-329, 500-75, Tr. 3095).

This is particularly true because the vast majority of employers will not have an MSD incident reported in their workplace during any given year (Exs. 30-542, 30-3167, 500-1-128, Tr. 2980, 3073, 3096). One report prepared for the Small Business Administration's Office of Advocacy estimated that as many as 75 percent of manufacturers employing fewer than 11 employees are not likely to experience any MSD incident for up to six years. (Ex. 30-542). (See also Ex. 500-67; Final Economic Analysis, chapters II and IV). The testimony of a number of hearing participants representing small businesses confirmed this (Exs. 30-3167, 500-1-128). They told OSHA that they had never had a report of an MSD in their workplace (Tr. 2980), did not have MSDs every year, or had only isolated or few occurrences (Tr. 3073, 3096). Small employers comprise 75 percent of all private industry establishments (Final Economic Analysis, Industry Profile, chapter II), and the incident trigger ensures that most of these employers will have only minimal obligations under the final rule.

The record also shows that an incident trigger is a reasonable proxy for an increased risk of exposure to MSD hazards. For example, some employers with successful ergonomics or safety and health programs use reports of MSD symptoms or symptom surveys to identify jobs posing MSD hazards (Ex. 37-2, Tr. 5503, 5358; Tr. 14707, 14723-26). Dr. Frederick Gerr, Associate Professor of Environmental and Occupational Health at the Rollins School of Public Health at Emory University, testified:

The use of reported cases of illness, such as MSDs, to trigger investigation into potentially excessive exposure to known MSD hazards is a well-established method of protecting others with similar exposures (Ex. 37-2, p. 15).

Many employers also use MSD reports as a way to prioritize their control activities (Tr. 10631, 14723, 14746). Sean Cady, of Levis Strauss & Co., testified:

If we have repetitive motion injuries or musculoskeletal disorders on various jobs that occur at the same time how do we prioritize which jobs we select for job modification, because we don't have unlimited resources in the company. So what we do is we review many factors of that job and we qualitatively prioritize jobs. And we review things like the number of symptoms reported on a job, possibly the number of injuries, or the severity of injuries on a job (Tr. 14723-24).

OSHA has made clear throughout this rulemaking that a portion of its intent is to require more employers to implement the kinds of effective programs that are already in place in many industries (64 FR 65770). Incorporating an approach already in wide use is consistent with this purpose, and will reduce employer burden while increasing compliance with the standard.

Other commenters were concerned that OSHA's use of an incident trigger would doom those preexisting programs that involve what these participants view as a more proactive method of identifying ergonomic hazards (Ex. 500-1-452, Tr. 9070-74, 10630-32). But nothing in this rule prohibits employers from taking action, analyzing jobs or setting up an ergonomics program before MSD incidents are reported. And the grandfather clause in paragraph (c) of this standard specifically allows qualifying employers to continue their preexisting programs. Based on the record, OSHA expects that many employers who have established Start Printed Page 68307ergonomics programs that do not rely on MSD reports to identify MSD hazards will maintain those programs (Tr. 3130-33, 5539, 9070-74, 10631).

2. One MSD Trigger

A separate group of rulemaking participants complained that the single-incident trigger in the proposal was too sensitive (Exs. 30-2208, 31-324, 500-1-27, 500-1-28, 500-1-45, 500-1-128, 500-52, 500-75, Tr. 5506-07). For instance, the Association of Independent Corrugated Converters said that the “one-incident threshold makes full coverage a virtual certainty for virtually every sizable employer, and for the vast majority of small employers” (Ex. 500-1-128, Tr. 16930-31). The National Tooling and Machining Association also said that a single MSD incident was too low a threshold:

On its own, a single reported MSD might not be statistically significant to warrant the corrective measures required by the proposed regulation. NTMA contends that a trigger mechanism of at least two MSDs should be the minimum threshold for the full program, especially for small businesses (Ex. 500-2).

Jack Pohlman, of the American Foundryman's Society, added that a report of one MSD “is simply not indicative of systematic problems” (Tr. 5636). Marathon Ashland Petroleum agreed, saying that a single incident “is not reflective of the true nature of risk that exists in a given facility” (Tr. 5540). And the National Paint and Coating Association complained that a one MSD trigger was biased against large employers (Ex. 30-4340).

A number of commenters said that a one MSD trigger also would unduly burden employers by requiring them to respond to “every ache and pain” an employee reports (Exs. 30-4340, 500-1-18 (“a single complaint of pain”), 500-1-385, 500-1-386, Tr. 8772 (“perceived minor problems”), 12256). The National Telecommunications Safety Panel testified:

Extremely minor conditions with little or no connection to the workplace may trigger the standard in many facilities (Tr. 8774).

Several commenters said that the one MSD trigger ignores that “unique physical characteristics” or “predisposing medical conditions” of the worker may be involved (Exs. 30-328, 30-1651, 30-2208, Tr. 5560-61). James Haney, of Wisconsin Manufacturers & Commerce, said:

Thus, the most injury- or illness-prone employee becomes the benchmark for implementing the proposed standard's requirements (Ex. 500-1-27).

Finally, some commenters argued that imposing a one MSD trigger would be very costly for employers (Exs. 30-2208, 30-4340, 500-1-26, Tr. 8772). David Potts of the National Electrical Contractors Association testified:

[B]ecause [of] the broad scope of what constitutes an MSD, the program standard's coverage will be easily activated. As such, an employer could be required to institute costly job analysis and corrective actions as a result of a single injury illness to an overly susceptible employee while all other employees in the same operation or job location has no discernable adverse reaction. Considering this hair trigger and that the Agency has only offered general remediation measures in the proposed rule, small business will surely face burdensome compliance responsibilities and stressful decisions including where to best place their limited resources (Tr. 5645).

These commenters urged the Agency to adopt a MSD trigger having a higher threshold. A number of commenters urged OSHA to increase the trigger to two or more MSDs (Ex. 30-3731-1, 500-2, 601-X-1). Other commenters said that incidence rates should be used to trigger action (Exs. 30-3845, 30-3853, 30-4137, 32-77-2, 500-1-128, Tr. 5370, 8842). Several commenters recommended that the trigger be a “pattern” or “cluster” of MSDs or MSD reports (Ex. 32-330-1, 500-23-1, 500-92). Paul Adams, director of ergonomics at Owens-Corning, suggested that OSHA should adopt a set of alternative triggers from which employers could choose (Tr. 10630, 10633).

OSHA believes many of these concerns resulted from a misunderstanding of the screening criteria in the proposal. However, the Agency also recognizes the validity of the concerns that those screening criteria were not clear enough to provide adequate assistance to employers trying to screen out non-work-related MSDs (Exs. 30-1722, 30-3956, 500-18, Tr. 8847, 16969-70). OSHA has addressed these concerns through the new definition of “MSD incident” in paragraph (e)(1) and the Basic Screening Tool in Table 1. The result is a single-incident trigger that is only half of the standard's action trigger and does not, by itself, require employers to implement a full ergonomics program or impose other substantial obligations on them.

A single-MSD trigger is appropriate for this purpose. Most important, a one MSD trigger is necessary to prevent the occurrence of serious and disabling MSDs. There is abundant record evidence that early detection and intervention can halt the progression of most MSDs, and reduce their severity (Tr. 7687-88, Ex. 32-450-1). On the other hand, where medical treatment and ergonomic interventions are delayed, it is more likely that conservative treatment will be less effective or will not even be an available option, or that the MSD condition will not be reversible and the employee will be permanently disabled (Ex. 38-285). For example, if carpal tunnel syndrome and other nerve-related MSDs go untreated long enough, damage to the nerves will be irreversible (Ex. 37-17, Tr. 13349 (the nerve dies)). If OSHA included a multiple-incident trigger, the first employee to be injured could become permanently disabled while waiting for other MSDs to trigger the employer's obligations to provide MSD management and ergonomic intervention. This would be particularly likely in small businesses and in workplaces where relatively few people perform the same job (Ex. 32-450-1). In addition, not acting on the first MSD may discourage other employees from reporting their MSD signs and symptoms (Ex. 32-450-1).

The use of a single MSD trigger is also consistent with employer practice. Many employers testified that they respond to all employee reports of injury or illness, including MSDs (Ex. 37-2, Tr. 5358, 5359-60, 5503, 5539, 14707, 14739, 17312-13). Even employers who recommended that OSHA adopt a multiple-incident trigger testified that they themselves conduct investigations of every report of injury, including MSD signs and symptoms (Tr. 2920, 5503, 5358). For example, James Lancour, safety and health regulatory consultant with Southern Company Services, testifying on behalf of Edison Electric Institute, said:

[We] have a reporting mechanism where signs and symptoms are reported. Then we have, it's turned over to the industrial hygiene group to go out and do a job assessment. And, again, depending upon what they find out it may be something that can be unique to that particular person or workstation, et cetera, or it may require more in-depth analysis. So basically depending upon the job they take a look at what they're trying to determine how simple or complex the problem might be, and then go through and develop an assessment protocol based on that operation (Tr. 2920).

When questioned, no employer testified that it was company policy to wait until a second or third employee gets hurt in a job before investigating the first injury. This suggests that employers understand the importance of responding to each report of injury and, in practice, do not consider it appropriate to ignore individual reports of injury.

Other evidence in the record also shows that a one MSD trigger should not Start Printed Page 68308impose an undue burden on employers. As discussed above, most small manufacturing establishments do not experience any injuries or illnesses in any given year (Exs. 30-542, 30-3167, 500-1-128, Tr. 2980, 3073, 3096). In fact, many establishments do not experience any injuries or illnesses over a considerable period. According to a report prepared for the Small Business Administration Office of Advocacy, 75 percent of manufacturing establishments with fewer than 11 employees, 50 percent with 11-50 employees, and 25 percent of those with 50-249 employees would experience almost no MSD incidents in any given 6-year period. (See also Economic Analysis, chapters III and IV.) If this standard were to adopt a multiple MSD requirement, particularly one requiring at least two MSDs in the same job during a single year, injured employees in many establishments might never be provided with needed medical intervention or protection from additional injuries because it would take so long for the triggering event to occur.

The changes in the definition of “MSD incident,” and the new Basic Screening Tool, both discussed below, will also help to address the concerns of some commenters that significant employer action will be triggered by the report of “any ache or pain,” whether or not it is work related (Exs. 30-1722, 30-2208, 30-3956, 500-52). P.J. Edington, executive director of the Center for Office Technology, said:

OSHA assumes any discomfort on the job is work-related. That leaves all employers in a continuous and costly cycle of trying to eliminate all “signs and symptoms” of MSDs (Ex. 30-2208).

But employers have the right under this final rule to make reasonable determinations that particular MSDs are not work related. And only MSDs severe enough to require medical treatment or a job restriction, or signs and symptoms persistent enough to last for seven consecutive days, have any triggering effect. Moreover, the standard's Basic Screening Tool establishes specific thresholds for the duration, magnitude and frequency of exposure to risk factors that a job must involve in order for an MSD incident in that job to be one that triggers the standard's program requirements.

The final rule also takes into account the concerns of commenters that a single incident trigger ignores the fact that an MSD may be related to the “unique physical characteristics” of the worker (Exs. 30-328, 30-1651, 30-2208, 500-1-27, Tr. 5660-61). For example, where the employer has reason to believe that only the injured employee is exposed to awkward postures because he or she is very tall or very short, the employer can limit the response to that individual employee's job or workstation. See paragraph (j), below.

3. Definition of “MSD Incident”

In this standard, the term “MSD incident” means either an MSD that is work-related and:

  • Involves a work restriction, or
  • Requires medical treatment beyond first aid, or
  • Involves MSD signs or symptoms that are work-related and persist for 7 or more consecutive days after the employee reports them to the employer.

Work restriction is defined to mean one or more days away from work, one or more days of limitations on the work activities of the employee's current job or temporary transfer to alternative duty. Reducing an employee's work requirements in a new job to reduce muscle soreness from the use of muscle in an unfamiliar way is not considered a work restriction under this final rule. Also, the day an employee first reports an MSD is not considered a day away from work or a work restriction even if the employee is temporarily removed from work to recover.

Relationship to Recordkeeping Rule. The proposed rule defined a “covered MSD” as an OSHA recordable MSD that occurred in a job in which the physical work activities and conditions were reasonably likely to cause or contribute to that type of MSD, and those activities and conditions were a core element or took up a significant amount of the employee's worktime. In this final rule OSHA has changed the term “covered MSD” to “MSD incident” to dispel any implication that any such MSD immediately triggers a full ergonomics program. Although some participants found the definition of covered MSD to be “relatively clear” (Exs. 30-3934, 30-4837; 31-173, 31-186, 31-205, 31-229, 31-347), many more objected that it covered too many MSDs, was too vague, or was improperly linked to OSHA's recordkeeping rule (Exs. 30-1364, 30-1722, 30-2088, 30-3167, 30-3845, 30-3956, 500-73, 500-104, 32-337-1, Tr. 4366, 8226, 10000, 12797, 15977). The new definitions of MSD and Action Trigger in this standard address these concerns.

OSHA received a great deal of comment on the proposal's use of an OSHA-recordable MSD, i.e., an MSD required by 29 CFR Part 1904 to be recorded on the employer's injury/illness log, as a trigger for further action. Many of these comments pointed out potential problems that could be caused by linking an employer's obligations under this standard to obligations and interpretations contained in a separate rule (Exs. 30-3853, 30-4137, 32-77-2, Tr. 10632). This problem was highlighted by the facts that OSHA has proposed to amend its recordkeeping rule, so that it has not been clear at any stage of this ergonomics rulemaking what the definition of an OSHA-recordable MSD would be, and that OSHA incorrectly described the recordability of one class of MSDs in the proposal (Exs. 30-3853, 32-78-1, 32-300-1). Moreover, according to commenters, linking the definition of MSD incident to the recordkeeping regulations would give employers a strong incentive to underreport MSDs or would punish employers who already have effective early intervention programs (Exs. 30-46, 30-75, 30-137, 30-1294, 30-1902, 30-4137, Tr. 8848, 10630-32).

OSHA agrees that these concerns, particularly those related to the ongoing recordkeeping rulemaking, outweigh any potential benefit employers would gain from being able to use recordability criteria to determine whether an MSD report triggers further action under this standard. Therefore, in this final standard, OSHA has dropped any reference to the recordkeeping rule's recordability criteria. Although the definition of an MSD incident in this standard uses criteria similar to those used in determining recordability, each of the criteria used in this rule is supported by evidence in this rulemaking record. This has also allowed OSHA to tailor the definition of an MSD incident so that it more closely corresponds with the purposes of this standard.

Definition of “musculoskeletal disorder.” For purposes of this rule, an MSD is a disorder of the soft tissues, specifically of the muscles, nerves, tendons, ligaments, joints, cartilage, blood vessels and spinal discs that is not caused by a slip, trip, fall, or motor vehicle accident. See paragraph (z). This standard covers MSDs affecting the neck, shoulder, elbow, forearm, wrist, hand, back, knee, ankle, and foot as well as abdominal hernias. It does not, however, cover eye disorders, even when associated with jobs involving computer monitors.

Although some commenters recommended that the standard address conditions resulting from slips, trips, and falls (Ex. DC 58, DC 405), those injuries are not caused by exposure to the risk factors this standard covers. For the same reason the final rule does not cover computer-related eyestrain, which Start Printed Page 68309is caused by factors such as glare from lights and windows, computer flicker and other monitor resolution problems, and by not blinking or looking away from the screen (Tr. 16159-66).

“Work-related.” In paragraph (z), “work-related,” is defined to mean that a workplace exposure caused or contributed to an MSD incident or significantly aggravated a pre-existing MSD. This is a change from the proposal, which would have considered an MSD work-related if physical work activities and conditions caused or contributed to an MSD or aggravated a pre-existing one. Many commenters complained that the proposed definition of work-related, in essence, established a presumption of work-relatedness (Exs. 30-1722, 30-3934, 30-3956, DC65, 500-1-28). The Chamber of Commerce said that the rule should not cover “minimal workplace exposure that merely aggravates non-work exposures” (Ex. 30-1722, p. 62). Mike Edmunds, corporate safety director for Tyson Foods, said:

Even if upper extremity musculoskeletal pain (e.g., wrist pain) arises solely as a result of non-work-related activities, it is virtually impossible for an employer or physician to establish that subsequent work activities did not in some minor way ‘aggravate’ or ‘contribute’ in some way to the condition—regardless of the job (Ex. 30-4137).

To address this concern, a number of commenters recommended incorporating language from various State workers' compensation regulations so that an MSD would be considered work-related only where work was the predominant cause of the injury or was more than 50 percent responsible for the injury (Exs. 30-3934, 32-77-2, Tr. 5507). Others recommended that OSHA adopt the definition of work-relatedness from California's ergonomics standard, i.e., that work must be 51 percent responsible for the MSD (Ex. 32-300-1). Several suggested that the MSD incident not include pre-existing MSDs (Tr. 3097-98).

OSHA believes that some of these concerns resulted from a misunderstanding about what “contribute to” means. It does not mean that an MSD is considered to be work-related if work contributes in some de minimis (e.g., “1% contribution” (Ex. 30-3934)) or vague way. Rather, work contributes to an MSD if a specific physical work activity or condition can be identified as having contributed in some discernable way to the onset of the MSD or the signs or symptoms of an MSD. If nothing specific can be identified as a factor, then work is not considered to have contributed to the MSD.

OSHA also has responded to concerns that, once an employee has an MSD, minor aggravations of the MSD can occur very easily (Tr. 3315). In the final rule, only “significant” aggravation of a pre-existing MSD is considered to be an MSD incident. “Significant aggravation” occurs only when risk factor exposures in the workplace aggravate a pre-existing MSD to the extent that it results in an outcome that it would not otherwise have caused. For example, workplace exposure is considered to have significantly aggravated an employee's pre-existing MSD if the MSD would have resolved on its own or with only first aid, but because of the employee's exposure to identified risk factors in the workplace, the MSD has progressed to the extent that medical treatment is now necessary. On the other hand, if an employee experiences more pain when at work, simply because the employee is using an injured body part, that extra pain does not constitute significant aggravation. In addition, workplace exposure aggravates an MSD only where a specific physical work activity or condition can be identified as a factor in the progression of the pre-existing MSD.

Although the employer is ultimately responsible for determining whether an MSD is work-related, employers may consult with others, such as HCPs or safety and health personnel at the workplace, in making that determination. Where an employer uses an HCP to provide assistance in determining the work-relatedness of an MSD, the HCP must use the definition of work-related in this final rule and not criteria for determining work-relatedness under workers' compensation.

Another frequent objection to the proposed definition was that it did not establish an adequate severity threshold and, as a result, would have captured all the “aches and pains of life” that employees experience while performing work activities (Ex. 30-3956, see also Exs. 30-1722, 30-2208, Tr. 9824). The Chamber of Commerce said that MSD was “so loosely defined as to cover unverified complaints of pain rather than just objectively verifiable medical conditions” (Ex. 30-1722, p. 61). The severity criteria in the final rule address this complaint. In deciding to include within its definition only those MSDs resulting in a work restriction, in medical treatment beyond first aid, and in MSD signs or symptoms lasting at least 7 days after being reported to the employer, OSHA is adopting appropriate medical severity thresholds.

Work restriction. A work restriction in this context means at least one full day when the injured employee either must take off the entire work day for recuperation or medical treatment, or is able to work for only a portion of the workday or to perform only some job functions, either regular or alternative tasks, during the recovery period. The latter category includes job transfer, light duty jobs, and alternative duty jobs. Employees who cannot work regularly scheduled or mandatory overtime during the recovery period are also considered to be on work restriction. Neither the initial day on which the MSD is reported or occurred, nor any day on which the employee is not scheduled to work, is counted as a day of work restriction.

On the other hand, the standard now makes clear that work restrictions do not include situations where an employer adjusts the work assignments to deal with the temporary muscle soreness that an employee may experience as a result of starting a job that requires the use of muscles in an unfamiliar way (paragraph (z)). The record indicates that some employers have “conditioning” programs, most often lasting about two weeks, to help employees adjust to this type of new job assignment (64 FR 65955 (Case Study No. 2), (Exs. 26-1175, 30-4340, Tr. 9225, 9403, 13589). These programs recognize that it is not uncommon for employees to experience pain or stiffness when they begin exercising muscle groups in new or more strenuous ways (Exs. 26-1175, 30-4340). In these situations, pain or soreness may not indicate the presence of an MSD hazard. In most cases these symptoms resolve as the employee becomes accustomed to the physical activities of the job (Ex. 26-1175). They do not indicate that a hazard needing to be controlled may exist. OSHA believes that this clarification will help alleviate the concerns of some commenters that the single-incident trigger would not only trigger coverage of passing aches and pains, but could also trigger WRP obligations for employees who experience symptoms while they are becoming accustomed to a new job (Ex. 30-4340, Tr. 4316-17).

Medical conditions that result in work restrictions are widely recognized as serious (Exs. 26-1039, 37-1, 37-12, 37-28). Repeatedly, physicians and other HCPs testified that they consider MSDs that rise to this level to warrant both medical evaluation and intervention and job interventions (Exs. 37-1, 37-12, 37-28). Accepted standards of clinical practice, reflected in guidelines published by medical associations, also recommend intervention at least at this stage (Exs. 37-12, 500-34, 26-1039). For Start Printed Page 68310example, guidelines on low back disorders (developed by a panel of private sector clinicians for the Agency for Health Care Policy and Research that recommend strategies for assessing and treating low back problems) defined low back problems as “activity intolerance due to low back symptoms,” such as pain (Ex. 26-1039, p. 1).

The insurance industry also considers conditions that are severe enough to require work restrictions to constitute medical disability (Exs. 37-1, 37-6, 37-12, 37-28). These conditions are often compensable through workers' compensation, and insurance companies consider them to be serious (Ex. 37-6). According to Stover Snook, former director of the Ergonomics Laboratories at Liberty Mutual Insurance Company who conducted ergonomics research at the company for more than 30 years, the accepted definition of “low back disability” in the insurance industry is “lost time or restricted duty that results from low back pain” (Ex. 37-6, p. 3).

Medical treatment beyond first aid. The definition of MSD incident includes MSD signs and symptoms that require medical treatment beyond first aid. This is a familiar concept that is also used in OSHA's recordkeeping regulation. It also makes no difference whether an employee obtains medical treatment from his or her own HCP or one selected by the employer; or whether the employee obtains medical treatment before or after reporting the MSD signs or symptoms to the employer. Physicians and other HCPs testified that MSDs that require medical treatment such as physical therapy, prescription medication or surgery are more serious than conditions where resting the injured body area is enough to allow the injury to heal (Exs. 37-1, 37-12, 37-16, 37-17, 37-28).

Persistent MSD signs or symptoms. The third type of MSD incident is MSD signs or symptoms that persist for at least 7 days after being reported to the employer. “MSD signs” are defined in paragraph (z) as objective physical findings that an employee may be developing an MSD. MSD signs include deformity, decreased grip strength or range of motion, and loss of function. Some signs are readily observable, for instance, loss of function when an employee with carpal tunnel syndrome cannot hold a powered hand tool because of muscle atrophy in the hand. Other signs, commenters said, may not be as observable to non-HCPs (Tr. 7677). For this and other reasons, MSD signs are treated in the same way as MSD symptoms in the final rule. Under the proposed rule, any MSD sign would have been a “covered MSD” because it is a recordable event under OSHA's recordkeeping rule. This raised concerns for a number of commenters, who pointed out that some signs, such as redness, may be mild and transitory, not warranting a full program response (Exs. 30-3344, 30-3749, 30-4674, 32-211).

“MSD symptoms,” as defined in paragraph (z), are other physical indications that an employee may be developing an MSD. Symptoms include pain, numbness, tingling, burning, cramping, and stiffness. The proposed rule would only have addressed persistent symptoms in manufacturing and manual handling jobs, and then only if the employer knew that an MSD hazard existed in the injured employee's job.

A number of commenters opposed the proposal's inclusion of persistent symptoms in its trigger mechanism (Exs. 30-623, 30-898, 30-1722, 30-4777, 30-4821, 32-78, Tr. 10634). Some recommended at least limiting the types of symptoms included in the definition of an MSD incident (Ex. 32-78, Tr. 10634). For example, ORC said:

At a minimum, * * * OSHA must limit coverage to those symptoms that can be medically verified and that fall somewhere in the severity range between minor/transient and severe enough to interfere materially with job performance (Ex. 32-78, p. 17).

Other commenters, however, agreed with the inclusion of persistent symptoms in the incident trigger (Ex. 500-218, Tr. 12295), and virtually all of those urged OSHA to extend this criterion to all jobs, not just those in manufacturing and manual handling (Exs. 32-198, 500-218). A number of HCPs were among those supporting, including persistent signs and symptoms in the MSD incident trigger (Exs. 37-1, 37-12, 37-28, Tr. 7660, 13349). They said that persistent signs and symptoms should be evaluated because, left untreated, they often progress into more serious disorders and permanent damage (Tr. 7660, 7884, see also Ex. 32-450-1). One study has shown that employees experiencing MSD symptoms alone are at approximately 2 to 4 times the risk of being off work as employees without such symptoms (Ex. 500-71-27). A number of employers now encourage employees to report signs and symptoms to prevent such results and related costs (Tr. 5539, 5550, 14707, 14739).

The record establishes clearly that MSD signs and symptoms that persist uninterrupted warrant further investigation (Ex. 30-4468, 500-71-27, 37-12, Tr. 1531, 13382, 1763-65). Sound medical judgment supports intervening when an employee has experienced at least a week of MSD signs or symptoms. Dr. Bradley Evanoff, Assistant Professor of Medicine at Washington University School of Medicine specializing in research and clinical practice addressing occupational MSDs, testified:

I think whatever the occupation, whatever the type of work, if someone has had persistent musculoskeletal symptoms for some period [of] time, and I think a week is a reasonable period of time, then they should be evaluated to see if they have a musculoskeletal disorder (Tr. 1531).

Dr. Robin Herbert, medical director of the Mount Sinai Center for Occupational and Environmental Medicine, testified that providing early intervention for employees whose symptoms persist beyond a few days is “consistent with accepted medical practice” (Tr. 1653). In fact, according to ACOEM, such intervention is “essential” (Ex. 30-4468). Dr. Robert Harrison, who has treated more than 1,000 patients with work-related MSDs over the past 20 years, and has also conducted research in the area of work-related MSDs, testified that there is “broad consensus among the medical profession that effective treatment and prevention of MSDs relies on early reporting of symptoms. * * *” (Ex. 37-12). He also summed up why 7 days is an appropriate threshold:

[S]even days is early enough to catch the symptoms early but is late enough so that transient symptoms that may last only two or three days don't come through as a reportable symptom to a health care provider. I think it's a reasonable line (Tr. 1764).

The record shows that where signs and symptoms persist beyond a few days, they are likely to indicate that an MSD has occurred. Dr. Gary Franklin confirmed that MSDs can develop in a very short period of time:

If I was taking the history of the person and getting these kinds of symptoms of numbness and tingling and burning particularly at night, it would not matter to me whether it was two days or seven days or 14 days, if I thought clinically the symptoms were correct. I have seen patients that developed [carpal tunnel syndrome] in a day or two (Tr. 13382).

HCPs also testified that employees who have had MSD signs or symptoms for only a short period of time can already be experiencing physiologic changes or damage (Ex. 37-16). For instance, Dr. Evanoff testified:

I think people who have prolonged symptoms, lasting more than a few days * * * if you want to use the cut off of a week Start Printed Page 68311or more, I think that that's very likely to represent some underlying tissue damage. * * * (Tr. 1563).

Peter Boyle, former professor of orthopedic physical therapy, agreed:

A large amount of force in a short time could create a pathoanatomic injury causing disruption, and [tissue] failure (Tr. 2797-98).

In addition, persistent signs and symptoms can themselves be severe enough to interfere significantly with major life activities (Tr. 13356. 13360, 13373). Dr. Connell testified:

A typical carpal tunnel patient would come in complaining of numbness and tingling in the distribution of the median nerve. Typically it occurs initially at night and wakes one out of a sleep for some reason—4 a.m. seems to be the magic number (Tr. 2817).

Moreover, the persistence of signs and symptoms can be an indication that an MSD is worsening, and early detection and intervention are “critical to prevention of more serious disorders,” in the words of Dr. Robert McCunney, president of the American College of Occupational and Environmental Medicine (ACOEM) (Tr. 7660). Dr. Marc Connell, an orthopedic surgeon at Georgetown University Hospital, added: “I think that's common medical sense that the earlier the treatment is rendered the less severe will be the MSD” (Tr. 2833). Dr. Edward Bernacki, vice-president of ACOEM, said:

Obviously, the earlier you pick up a problem, the more reversible it is, so obviously, the encouragement of employees to come in at the first signs of a problem, so that we could work it up, and then basically start treating the illness when it is reversible, in other words, if you have irreversible nerve damage, that is basically too late. Then, you need surgical intervention. However, for example, in carpal tunnel early on when the disease is reversible, mere splinting and restriction of activities are fine, it takes care of the problem, it disappears (Tr. 7687-88).

(See also Exs. 26-1367, 32-450-1, 37-24, Tr. 1530, 1697-98, 2853, 2833, 7649-50, 7687-88, 7883-84, 9831.)

In addition to reducing the severity of MSDs, early intervention has been shown to reduce MSD rates and associated medical costs (Exs. 32-12, 32-339-1-87, 32-399-1-4, 32-450-1 (citing Hales et al. 1993)). Dr. Bernacki described a study of the effect on 22,000 employees at Johns Hopkins Hospital and University of an ergonomics program that stressed early reporting of MSD signs and symptoms (Ex. 32-399-1-4, Tr. 7691-92). The study reported an 80 percent reduction in MSDs after the program and early intervention were implemented.

Early intervention also increases the availability and effectiveness of conservative therapy. Several HCPs told OSHA that, when MSDs are treated early, symptoms “have been completely resolved with a brief period of restricted work activities” (Ex. 37-12, Tr. 13345-46). Dr. Harrison said:

Employees often rapidly and completely recover from their MSD with simple modification of the work process or change of job duties to minimize or reduce exposure to ergonomic risk factors (Ex. 37-12, p. 5).

Dr. Franklin added that where employees with carpal tunnel syndrome are provided with early intervention they should be able to return right away to modified work and that work restrictions should not be needed for a prolonged period of time (Tr. 13345-46). Dr. Bernacki testified that, as a result of the early reporting and intervention program at Johns Hopkins, there had been only one surgery for work-related carpal tunnel syndrome during the past 5 years, compared with 26 such surgeries in the previous three years (Exs. 32-399-1-4, p. 7-8).

Early intervention also is likely to be more effective in helping patients recover fully (Exs. 37-12, 38-222, 38-451, 500-71-57). Dr. Harrison said:

At an early stage of symptom management, treatment with anti-inflammatory medications, splints, and rest of the affected body part often results in complete clinical improvement without any permanent injury (Ex. 37-12, p. 5).

Dr. Michael Erdil, medical director of the Connecticut Occupational Health Network, said that both scientific evidence and his own clinical experience show that conservative therapy is much more likely to be effective as an early intervention (Ex. 37-16, citing Kruger et al. (1991) (Ex. 26-910), Gelberman et al. (Ex. 26-916) (1980), Quebec (1987), Zigenfus et al. (2000) (Ex. 38-285). Zigenfus found that patients with low back injuries who were provided with medical treatment earlier (i.e., less than 8 days after injury) required fewer days away from work and restricted work and had shorter case duration (Ex. 38-285). Dr. Evanoff explained that the medical literature consistently shows that:

[C]onservative management of MSDs is most effective when begun in early stages of these disorders, and that patients who are treated only after a prolonged symptomatic period are less likely to respond favorably than those treated earlier (Ex. 37-1, citing Dellon (1989), Stern (1990), Rystrom & Eversman (1991)).

Similarly, Dr. McCunney of ACOEM testified that:

ACOEM supports the requirement of a mechanism for employees to report MSD signs and symptoms since early detection is critical * * * [M]y colleague and I can regale you with all sorts of anecdotes about people who have waited too long to seek medical treatment, and then once they come for medical treatment, the treatment is not as effective as it could have been were they to have come earlier (Tr. 7649-50).

Dr. Harrison discussed the case of one worker who did not receive early intervention:

[A] twenty-five year old machine operator recently came into my office for treatment of severe hand pain and swelling. She had worked 9 months in a job that required her to use excessive force to press a lever over 20,000 times per day, using her hands in a pinch grip with her wrist in an awkward posture. She had developed symptoms after three months of work, but had not seen a health care provider after her supervisor told her that she would “feel better” after she “got used to the job.” By the time she finally came to see me, she was unable to drive her car, shake my hand or open a door. My examination showed marked swelling and redness of the right wrist, and the pain was so severe she cried [at] my touch or gentle movement. My diagnosis was chronic, stenosing tenosynovitis. I had little option but to remove her from work completely for four weeks to let the hand rest. Unfortunately, she was unable to return to work in spite of corticosteroid injections, splints, analgesic medication and physical therapy. She required surgery to release the tendon, and is now in a prolonged rehabilitation program.

This case is not unusual. (Ex. 37-12).

By including persistent signs and symptoms within the standard's definition of an MSD incident, OSHA assures that early intervention can occur and that medical outcomes like that described by Dr. Harrison will not occur.

For these reasons, a number of HCPs and employers said that they investigate MSD signs or symptoms as soon as they are reported (Exs. 30-390, 30-398, 500-218, Tr. 5539, 5550, 9906, 13382). Dr. Franklin stated:

If I was taking the history from the person and getting these kinds of symptoms of numbness and tingling and burning particularly at night, it would not matter to me whether it was two days or seven days or 14 days, if I thought clinically the symptoms were correct. I have seen patients that developed [carpal tunnel] in a day or two (Tr. 13382).

Several employers said that their standard response is to investigate any report of MSD signs or symptoms (Tr. 5539, 5550, 14715-16). Sean Cady, of Levi Straus & Co., said:

Well we believe that symptoms could be precursors to a possible repetitive motion injury. And therefore if we know about a symptom early we can evaluate a job for ergonomic risk factors and possibly modify that job to reduce risk factors prior to the Start Printed Page 68312possible occurrence of an injury. And also, early reporting of symptoms is a trigger for our quick response system or quick response process (Tr. 14715-16).

Some employers provide restricted work when an employee reports MSD signs or symptoms to let the symptoms resolve quickly without medical treatment, and to allow the employer to examine the job (Ex. 26-1370). Other employers said their standard practice is to send any employee who reports MSD signs or symptoms to an HCP immediately (Tr. 3867).

These employers told OSHA that their early intervention programs, particularly restricted work and light duty, have proven to reduce the severity and costs of MSDs significantly (Ex. 30-4137). Even after the rule becomes effective, OSHA believes that employers who have seen the advantage and effectiveness of such intervention programs will continue to follow them rather than delaying intervention while they wait to see whether the employee's MSD signs or symptoms persist. However, for those employers who have not yet implemented early intervention programs, including the persistent signs and symptoms criterion in the final rule will help to ensure that employees are provided with appropriate MSD management and work restrictions while their condition is still reversible.

This evidence is part of the reason that OSHA does not agree with the commenters who argued that signs and symptoms are too subjective and difficult to verify to be an appropriate trigger for action under this standard (Exs. 30-1722, 30-3345, 30-4340, 500-1-23, 500-1-117, Tr. 5507). Other evidence establishes that MSD signs are often easily observable (Tr. 2828). For example, an employee's decreased range of motion can be identified by the employee's inability to raise his arms above his shoulders or to bend over to lift an object. Objective physical findings also include positive results on medical tests such as nerve conduction velocity tests, CT scans, or x-rays.

The presence of MSD symptoms can also be confirmed through physical examination by an HCP (Ex. 37-12, 37-28, Tr. 13404). Dr. Robert Harrison testified that there are several ways to confirm the presence of both MSD signs and symptoms, including palpation or movement of the affected body part during the physical examination (Ex. 37-12). Dr. Gary Franklin, of the University of Washington School of Public Health and Community Medicine, testified that symptoms of carpal tunnel syndrome, for instance, can be verified through absence of reflexes and nerve conduction tests and even the Katz hand paint diagram (Tr. 13380, 13404). According to Dr. Franklin, the best case definition of carpal tunnel syndrome is the presence of symptoms plus a positive nerve conduction test. However, Dr. Franklin also said that in some circumstances HCPs can reliably determine, based on symptoms alone, whether a patient has carpal tunnel syndrome: “one could make a reasonable determination based on symptoms alone if you thought it was possible that somebody had carpal tunnel syndrome.” (Tr. 13384-88). Dr. Margit Bleecker, Director of the Center for Occupational and Environmental Neurology at Johns Hopkins University, testified:

I think as somebody who has worked many years in this area, you certainly can diagnose carpal tunnel syndrome by the history and the physical examination. The only time that you absolutely need to have the EMG is if you're considering surgery (Tr. 16901).

Dr. George Piligian, who is with the Mount Sinai Center for Occupational and Environmental Medicine and for the past 10 years has been treating workers with MSDs, added:

We use principles in medicine, and as you may or may not know, 80 percent of medical diagnoses, all medical diagnoses, not just work-related ones, are arrived at by history and complaints. Then, we add to them, the physical diagnosis, and finally, the testing. This has been the way medicine has gone on for ages, and those who have written the most respectable textbooks say that, and many doctors who go right to the objective number, which they worship, and leave out those 80 percent arrive at the wrong diagnosis, and thereby give the wrong treatment. So, it is still seeing, listening, recording, putting it all together that arrives at the medical diagnosis, and they can be arrived at (Tr. 7851-52).

OSHA has, however, responded to the comments that certain MSD signs, such as redness, may be transient or may be a sign of something other than an MSD (Tr. 5507). As mentioned, in this final rule, MSD signs are treated the same way as MSD symptoms, so that only those signs that persist for 7 days after being reported to the employer or that meet the other severity criteria require further action. The proposal would have required action whenever an employee reported an MSD sign because all positive signs must be recorded under OSHA's recordkeeping rule. OSHA has also eliminated the reference in the proposal to Finkelstein's, Phalen's and Tinel's tests as examples of the kinds of positive tests that would constitute MSD signs. The record shows that these tests are not considered reliable by a growing number of HCPs and, in any event, have been replaced with other medical tests such as nerve conduction tests (Ex. 37-2, Tr. 13363, 13375).

Other differences between the proposed definition of a “covered MSD” and this final standard's definition of an “MSD incident” further show OSHA's intent not to address the type of minor and transient symptoms that can be expected to resolve spontaneously in a matter of days even without intervention. The final rule, unlike the proposal, does not include the diagnosis of an MSD in the definition of MSD incident. As mentioned, the standard also now makes clear that an MSD is not work-related unless workplace exposures caused or contributed to it, or were responsible for a significant aggravation of a preexisting injury. These changes respond to comments that the proposal could have required a full ergonomics program in situations where workplace exposures contributed only trivially to the employee's condition (Exs. 30-1722, 30-3934, 30-3956, 500-73, Tr. 3097-98).

Clearly, MSDs qualifying as MSD incidents under the definition in the final rule are the types of conditions that OSHA may act to prevent. See Occupational Noise Exposure (29 CFR 1910.95, 46 FR 46236), Occupational Exposure to Formaldehyde (29 CFR 1910.1048, 52 FR 46168, 46234-37), and Section VII (Significance of Risk) of the Preamble. It is even more clearly within OSHA's authority to require employees to investigate them further to determine whether they were caused by hazards that this standard addresses.

Paragraph (f)—How Do I Determine Whether the Employee's Job Meets the Action Trigger?

Paragraph (f) tells employers how to determine whether a job where an MSD incident has occurred meets the standard's two-part Action Trigger. According to paragraph (f)(1)(i), the first part of the Action Trigger is a determination that an MSD incident has occurred. Paragraph (f)(1)(ii) states that the second step is a determination that the injured employee's job meets the Basic Screening Tool in Table 1 of this standard. Paragraph (f)(2) explains that if the job does not meet the Action Trigger, the employer has no further obligations with respect to that job.

The second step of the action trigger requires application of the Basic Screening Tool in Table 1 to the injured employee's job. A job is screened in, i.e., is determined to meet the levels in the Basic Screening Tool, if it regularly involves exposure to one or more of the risk factors in the Basic Screening Tool at levels above those specified in the tool. Only where the job is screened in Start Printed Page 68313does the employer have further obligations under the standard.

The proposed rule also included an exposure screen. The proposed screen would have ruled out jobs where the “physical work activities and conditions” in the job were not associated with the “type of MSD reported,” or were not “reasonably likely” to cause or contribute to an MSD. It also would have ruled out jobs in which the employee's exposure to the risk factors was not a “core” element of his or her job, or did not make up a “significant” amount of the employee's workday.

Thus, the proposed standard contained performance-oriented language (“core element,” “significant amount” of time) to define the terms of the screening criteria. In the preamble to the proposal, OSHA also used performance-oriented language in discussing the meaning of core element, describing the term as a “regular and routine exposure.” On the whole, most commenters supported the concept of an exposure screen, but many said that OSHA had not provided enough guidance for them to understand when a nexus existed between an MSD and a job or what the exposure severity threshold was for a job. For example, they complained that the terms were too vague and undefined to answer those questions (see, e.g., Exs. 30-1722, 30-3032, 30-3853, 30-3956, 30-4340, 30-4837, 31-92, 31-125, 31-223, 31-225, 31-260, 31-307, 30-300, 32-337, DC66, Tr. 3337, 8849, 8850).

The following comments are representative:

The terms “core element” and “significant amount” are not clear. While extreme examples can be easily defined, extreme examples are few and far between in the real world. Most of the time, examples fall into “grey” areas. These terms either need specific definitions or should be replaced with other terms (Ex. 30-4837).

Does [core element] indicate that the employee will be required to perform a manual handling task some time during his/her shift, i.e., one 50-lb. Lift throughout an 8-hour work shift, or does it indicate that some repetition is involved with the manual handling portion of the task, i.e., lifting 20 10-lb. packages per hour for 8 hours? (Ex. 30-4837).

How much is significant? 6 hours per 8-hr shift? 4 hours per 8-hr. shift? 2 hours per 8-hr. shift? Or 22-hr. periods per 8-hr. shift? (Ex. 30-4837).

The Rohm and Haas Company said:

[I]t is unclear what OSHA means by the subjective terms used as shown below. “* * * significant amount of their worktime * * *” * * * [and] “* * * core element of the employee's job.” It is unclear how OSHA would be able to determine consistently the applicability of the standard in specific situations in the absence of a criteria to guide decision-making on whether the work time was significant, the applied force was forceful, or whether the material handling was a core element of the employee's job. * * * In the absence of an explanation of what OSHA intends these subjective terms to mean, it is unclear how to decide whether a particular activity fits the definitions and therefore whether it is covered by the standard. (Ex. 31-289)

National Small Business United testified that:

The employers, especially the smaller employer, * * * needs more specific guidance in terms of the types of jobs to be looking at and specifically as the types of activities in those jobs and how much of what kind of activities is too much for what type of person. (Tr. 2746)

Con Ed stated:

Throughout the standard, OSHA uses terms that are vague and open to interpretation such as: reasonably likely, core job element and other similar terms. These terms require clarification so OSHA and employers interpret them consistently. (Tr. at 4628)

In addition, ORC added that:

The proposed trigger simply does not fulfill OSHA's responsibility to provide adequate guidance with respect to employer's obligations. * * * OSHA must do a better job of defining a point at which an employer's obligations are triggered and do a better job in establishing more objective criteria. (Tr. at 4097)

Similar comments were submitted by EEI (Ex. 32-300-1); Chamber of Commerce (Ex. 500-188; Tr. at 3044), Color Works (Tr. at 10069), Indiana Chamber of Commerce (Tr. at 3335), National Roofing Contractors Association (Tr. at 4905), Food Distributors International (Tr. at 5634-35), and many others.

Commenters further recommended that the screening criteria should include specific, exposure-based criteria (Ex. 500-218; Ex. 500-214, Tr. at 17905-6). In particular, ORC stated that:

In place of the proposed screening criteria of section 902, OSHA would set forth flexible, but objective, risk-based criteria * * * (Ex. 500-214)

ORC added that such criteria are already contained in the record and that “a number of models to define at-risk conditions and work routines are available in the literature and are cited by OSHA in its preamble.” (Ex. 32-78-1)

Similarly, the AFL-CIO stated:

While we believe the content and intent of OSH's proposed screening criteria were clear from the text and Preamble of the proposed rule, the AFL-CIO has several recommendations for ways in which OSHA can respond to industry's requests for more specific guidance and definitions. We recommend two possible approaches. The first is to incorporate a list of risk factors and criteria similar to the “caution zone job” criteria included in the state of Washington's Ergonomic Standard (WAC 296-62-0515) which serve a similar purpose as the screening criteria in the federal OSHA proposal. These “caution zone job” criteria provide more specific definitions of risk factors and the amount of time or frequency that must be exceeded for these risk factors to be covered by the standard. (Ex. 500-218)

ORC also expressed qualified support for using the state of Washington's “caution zone job” criteria:

Although the Washington State proposal itself contains significant deficiencies, ORC believes its approach to providing quantified alternative triggers is a rational one that could be considered by OSHA. (Ex. 32-78-1)

See also Tr. 9071-74.

A preliminary exposure-based assessment as a trigger for further actions is also widely used by participants in the rulemaking who provided testimony on the specifics of their own ergonomics programs (see, e.g., Ex. 32-300-1, Tr. at 2920-2927; Tr. at 5302, Tr. at 10802; Tr. at 14142; Ex. 32-339-1-4, Tr. at 16839; Tr. at 4643-4647; Tr. at 5539-5540, 5566-5567, Tr. at 14801; Tr. at 14715). Many of these commenters use a checklist format which contained specific descriptions of risk factors. The Dow Chemical Company, for example, uses a short checklist printed on a pocket size card that contains descriptions of specific risk factors along with a duration/timing component (see, e.g., Tr. 5311-5312, 5359, Ex. 32-77-2-1). NIOSH's Elements of an Ergonomics Program (Ex. 26-2), also contains checklists that have specific descriptions of risk factors, some with a duration component.

A number of other participants also suggested that OSHA adopt quantitative methods of defining the screen (Ex. 30-46, 30-75, 30-137, 30-293, 30-328, 30-3032, 30-3284, 30-4837, 31-23, 31-27, 31-95, 31-137, 31-187, 31-31-202, 31-301, 31-307, 31-337). Specific suggestions included defining a core element of manual handling jobs in terms of frequency rates for lifts (Ex. 31-337), or saying lifting was a core element of a job that required one lift per hour (Ex. 31-259). Suggestions for a definition of the term “significant amount of worktime” included 50 percent or more of the employee's worktime, Southern California Edison (Ex. 31-23), more than 2 hours a day, UNITE (Ex. 32-198), or routine performance of the same task 4 hours or more per shift or 2 hours or more Start Printed Page 68314continuously per shift, Monsanto (Ex. 30-434).

Some commenters thought that the screen would require them to conduct a job hazard analysis every time an MSD was reported, just to know whether the MSD was reasonably likely to have been caused by the job. Rodney Smith of Freeborn & Peters said:

Identifying ergonomic risk factors is difficult due to the vagueness of their definition [in the proposed rule]. But how in the world does my employer tell whether those risk factors constitute a hazard, as that term has been defined in the standard. That is, risk factors reasonably likely to cause or contribute to a covered MSD (Tr. 8850).

Others also complained that it would be virtually impossible for them ever to establish that it was not reasonably likely that exposure to risk factors in a job could cause MSDs, when at least one MSD would have already occurred (Ex. 30-1722, 30-4137, DC 65). In addition, several commenters found the crucial terms “extremely subjective,” and believed they would be “open to the individual interpretation of OSHA inspectors” (Ex. 30-3032, 31-22, 31-303, 31-307, 32-337).

In response to those and other comments, OSHA has further clarified and operationalized the proposed exposure screen, or severity threshold. Once the employer determines that an MSD incident has occurred in a job, the employer must screen the job to determine whether it meets criteria requiring a job hazard analysis to determine the potential hazard associated with exposure to risk factors. For ease of use, the criteria are presented in a “Basic Screening Tool,” which is a chart that contains specific descriptions of the risk factors covered in the final rule along with duration specifications and illustrations (see Table 1 of the regulatory text). In jobs where an MSD incident has occurred and employee exposure to risk factors meets the criteria laid out in the screen, the employer must proceed with the program requirements in paragraph (g) of the standard.

Employers with employees who report MSDs in jobs that do not meet the specific screening criteria are not required to proceed with any of the remaining requirements of the standard. This could include jobs that do not involve the risk factors this standard covers or where the injured employee's work activities do not involve the injured body area. The screen also allows employers to screen out jobs in which the employee's work activities do not involve enough exposure to risk factors to require further action under this standard. In these cases, the employer need not perform a job hazard analysis, eliminate or control any MSD hazards, or provide training or MSD management. Where application of the screening tool results in a job being screened in, however, employers must implement the ergonomics program described in paragraph (g).

The Basic Screening Tool has been designed to minimize employer burdens in screening jobs. It is similar to a number of screening tools that are already in use (Exs. 26-1008 (Snook Push/Pull Tables), 32-77-1-2 and Tr. 5336-37 (Dow Chemical), 502-12 (NIOSH Lifting Equation), 502-35 (GM-UAW checklist)). It is limited to five risk factors and, to streamline the screening process, the tool applies the same duration criteria to almost every risk factor/activity.

The Basic Screening Tool in the final standard serves the same function as the screen in the proposed rule, but, instead of performance language, it contains specific definitions of the risk factors and exposure durations that define a job requiring further analysis. The definitions used in this chart are consistent with a number of approaches and screening tools contained in the rulemaking record, including the state of Washington's Ergonomic Standard's “caution zone job” checklist (Ex. 500-41); the checklists contained in the NIOSH Elements of an Ergonomics Program (Ex. 26-2); the checklist developed by tripartite committee of employer, employees and government representatives for use in conducting a preliminary job analysis under the British Columbia Ergonomics Standard (Ex. OR-388); and others (Exs. 500-108; 32-77-2-1, 26-2, OR-348-1; 502-67)

By utilizing language from programs and checklists that have been used successfully by both employers and employees for many years, OSHA fully anticipates that employers will have no difficulty in determining whether a job meets the standard's Action Trigger. Further, as with the proposed rule, OSHA expects that employers will be able to determine, quickly and efficiently, if the job activities of any employee reporting a MSD meet or exceed the criteria of the screen.

Similar to the concept expressed in the proposed rule, the basic screening tool in the final standard, when coupled with the occurrence of an MSD incident in a specific job, represents an exposure-based “action trigger”, that requires the employer to proceed with some other provisions of the standard (in particular, job hazard analysis and MSD management). However, jobs where the employer has determined that an MSD incident occurred and that meet the screening criteria do not necessarily require corrective action; the need for corrective action is based on the results of a more detailed job hazard analysis (see Summary and Explanation, Job Hazard Analysis section). In this way, the screening criteria concept is similar to action levels contained in OSHA's health standards (e.g., Benzene, 29 CFR 190.1028; Ethylene Oxide, 29 CFR 1910.1047; Formaldehyde, 1910.1048.) In those standards, as in the final ergonomic program standard, the inclusion of an action level is used to differentiate between more hazardous and less hazardous work operations, and to identify those operations where the employer needs to focus resources.

The screening criteria in the final standard consist of the five risk factors that are covered in the final rule: repetition, force, awkward postures, contact stress, and vibration. Most of the screening tools submitted to the record contained similar risk factors. For example, the screening tools submitted by NIOSH (Ex. 32-30-1-45), UFCW (Ex. IL-228), the AFL-CIO (Ex. 500-71-70), the Worker's Compensation Board of British Columbia (Ex. 500-142-12), the UAW/General Motors (Ex. Or 348-1), Dow (Ex. 502-77-2-1), and the Washington State Department of Labor and Industries (Ex. 502-313-6) included these same five risk factors as specific risk categories in their screens or included narrative questions directly related to or incorporating these same risk factors. In addition, these are the risk factors addressed in the epidemiological literature on ergonomics and discussed in the Health Effects section (Section V) of this preamble.

The proposal also included static postures, whole body vibration, and cold in the list of risk factors. The evidence discussed in the Health Effects section of this Preamble has convinced OSHA that these risk factors should no longer be addressed independently. Static postures will be covered to some extent by the awkward postures element of the screen, and employers should be aware that cold temperatures may aggravate the effects of other risk factors.

To give further guidance to employers, each risk factor in the chart is clearly described (i.e., descriptions of specific job or task activities) and includes specific duration, frequency. and magnitude components. In the chart, repetition includes a separate description for keyboarding/mouse use; force is broken down into lifting, pushing/pulling, and pinching and gripping unsupported objects of specified weights; awkward postures are defined by specific postures, as well as Start Printed Page 68315pictures; and vibration includes a description for both high vibration levels from equipment such as chainsaws, and moderate vibration levels from equipment such as jigsaws, grinders or sanders.

In addition, the chart contains a simple grid for employers to use in relating the body area affected by an MSD incident to a relevant risk factor. Thus, the grid serves to further simplify this initial determination by assisting the employer in focusing on only those risk factors that have a clear nexus with the MSD incident that triggered the use of the screening tool; this also reflects OSHA's intent in the proposal. For example, if an MSD of the back or lower extremity is reported, the employer, when evaluating the risk factor for repetition, would focus only on job or task activities where the employee is performing the same motions every few seconds or repeating a cycle of motions involving the affected body part more than twice per minute for more than 2 consecutive hours in a workday. The employer would not need to consider use of a keyboard and/or mouse in steady manner (the shaded portion of the chart under the risk factor repetition). Similarly, for a reported MSD affecting the back or lower extremity, the employer, when evaluating the risk factor for force, would only need to focus on job or task activities involving lifting or pushing/pulling and not on work tasks involving pinching or gripping.

Each job or task activity also includes a duration/frequency limit. In selecting the duration limit for the risk factors, OSHA based its decision on balancing the weight of the scientific evidence against the need for the screening tool to be clear and easy to use. For many items in the chart, the agency has chosen to use more than 2 hours total per day as an exposure duration that triggers jobs for job hazard analysis; this determination is based on an analysis of relevant epidemiological data contained in the rulemaking record.

Many studies in the epidemiological literature clearly demonstrate that the incidence of MSDs increase with increased duration of exposure to certain risk factors or a combination of risk factors. Table IV—SCREEN lists studies that included duration, either qualitatively or quantitatively, as a component of the investigation. These studies reflect a subset of the many studies identified by the Agency that demonstrate positive exposure-response relationships between the intensity and/or duration of exposure to biomechanical risk factors and the prevalence or incidence of MSDs. The results of these studies show increases in odds ratios or other risk measures with increases in the daily or weekly duration of exposure for a number of risk factors such as repetitive precision movements, awkward postures (e.g., hands above the shoulders, kneeling, stooping), gripping, lifting, and carrying. For example, Ekberg et al. (Ex. 26-1238) reported that the risk of MSDs of the neck and shoulder increased with the hours per day that repetitive precision movements were performed and that arms were lifted above the head. Similarly, Kelsey et al. (Ex. 26-709) reported an increased risk of prolapsed lumbar disc when the frequency of lifting or carrying loads greater than approximately 25 pounds increased from 0 to more than 25 times per day. Similar dose-response observations were reported by Latza et al. (Ex. 38-424), Matsui et al. (Ex. 26-309), Smedley et al. (Ex. 500-41-40) and Tola et al. (Ex. 26-1018).

OSHA's review of the studies that quantified duration of exposure indicate that, in general, the MSD risk in exposed groups of workers increases above that in unexposed groups when the duration of exposure to certain risk factors or combinations of risk factors comprises about one-fourth to one-half of the workday or workweek. For example, Holmstrom et al. (Exs. 26-1231, 26-36) studied workers using awkward positions such as stooping, kneeling, and raising the hands above the shoulder and found an increased risk of low back pain (Odds Ratio of 1.4, 1.9, and 1.5 for stooping, kneeling and hands above the shoulder, respectively) with 1 to 4 hours per day of exposure. Similarly, Nordstrom et al. (Ex. 26-900) observed that the risk of carpal tunnel syndrome began to increase among workers whose jobs involved wrist bending or twisting after exposures of 3.5 hours compared to groups exposed for less than 3 hours (Odds Ratios of 1.34 with 0.25-1.75 hours exposure, 1.23 with 2-3 hours exposure, and 2.33 with 3.5-6 hours of exposure). Similar quantitative observations were reported by deKrom (Ex. 26-102) for wrist flexion, Baron et al. (Ex. 26-697) for grocery checking, and Xu et al. (Ex. 500-71-53) for frequent twisting and bending and for physically hard work (see Table IV—SCREEN). Other studies reported results using qualitative ordinal scales that indicate that risks increase, sometimes substantially, with exposure to risk factors of one-half a day or more. Ekberg et al. (Ex. 26-1238) reported ORs of 3.8 and 2.4 for neck/shoulder disorders that were associated with a “medium” duration (in hours per day) of repetitive precision movement or arms lifted, respectively, compared to workers with “low” exposure in terms of daily duration. Stetson et al. (Ex. 26-1221) found an increased prevalence (65%) of hand/wrist symptoms among workers using a high grip force (> 6 pounds) for more than half of a shift (defined as “frequently” in the study), compared to the prevalence in workers with “some” (40%) or no (41%) exposure. A study by Viikari-Juntura et al. (Ex. 500-41-50) of trunk twisting reported a non-statistically significant elevation in risk of neck disorders (OR = 1.3) among workers having “little” exposure (in hours per day), and statistically significant increases in risk among workers with “moderate” (OR=1.9) and “much” (OR = 2.3) exposure.

However, there were also studies that showed increased risk of MSDs associated with exposures of less than 2 hours daily. For example, Vingard et al. (Ex. 500-41-51) showed an increased risk MSDs of low back area among workers in jobs involving forward bending for approximately 1 hour per day (statistically significant for male workers, but not for female workers). Holmstrom et al. (Ex. 26-36) found a significantly increased OR (2.4) for severe low back pain with impairment for less than 1 hour per day of kneeling). DeKrom et al. (Ex. 26-102) reported a significantly increased OR (1.4) for carpal tunnel syndrome among workers having 1 to 7 hours per week of wrist flexion; 1 to 7 hours per week of wrist extension was also associated with an elevated OR for CTS (1.4), but that result was not statistically significant. Latza et al. (Ex. 38-24) reported an increase (not statistically significant) in low-back pain among workers laying sandstone for less than 2 hours per day compared to unexposed workers. English et al. (Ex. 26-848) found positive exposure-response relationships where ORs for carpal tunnel syndrome or hand/wrist disorders increased by 1.8 and 1.6 per hour worked per day, respectively, for workers performing tasks involving shoulder rotation once per minute. These studies, taken as a whole, demonstrate that for the risk factors listed in the basic screening tool, the risk of MSDs increased with daily duration of exposure.

The studies described above and contained in Table IV—SCREEN show that, where researchers have investigated relationships between MSD risk and daily duration of exposure, the risk of MSDs has been consistently elevated in groups of workers exposed for half of the workshift or more (Exs. 26-1238, 26-697, 26-1221, 38-428, 26-Start Printed Page 683161231, 26-36, 26-1018, 500-41-50, 26-102, 26-900, 26-58, 500-71-53). For exposure durations of one-fourth to one-half of the shift, or durations described as “some” or “moderate,” several studies showed statistically significant increases in MSD risk (e.g., Exs. 26-697, 38-428, 26-1231, 26-36, 500-41-50, 26-102) and others reported increased ORs that were not statistically significant (e.g., Exs. 26-1018, 500-41-50, 26-102, 26-58). For exposures of less than 2 hours daily duration, results from these studies are more equivocal; some reported significantly increased ORs (e.g., Exs. 500-41-51, 26-848, 26-102, 26-36) while several found non-statistically significant increases in ORs (e.g., Exs. 500-41-50, 26-102, 500-41-51, 26-36, 26-1231, 38-24). Based on these studies, OSHA finds it reasonable to trigger jobs for job hazard analysis where employees are exposed to the risk factors indicated on the screen for more than 2 hours during the work shift. OSHA believes that a 2-hour duration criterion for the screen will capture those exposure situations where the epidemiological evidence indicates that MSD risk is most likely to be elevated (i.e., jobs involving more than 4 hours per day of exposure) as well as those jobs involving 2 to 4 hours of exposure during the shift where the evidence suggests that the risk may already be increased, at least in some situations. The 2-hour trigger will exclude those jobs where the evidence has been less consistent in finding an elevated risk of MSDs (i.e., jobs involving less than 2 hours of exposure). This is consistent with OSHA's statutory mandate to be protective of workers. However, because the screen does not necessarily trigger an obligation to control a job, OSHA also is not imposing unnecessary costs on employers.

In using this 2-hour cutpoint, OSHA does not intend to imply that all workers will experience significant adverse effects after 2 hours or more of exposure. Rather, OSHA is using this cutpoint in the screen criteria to give employers guidance about which jobs might involve a sufficient duration of exposure such that the job warrants closer examination. In addition to being supported by the scientific literature, this value is also administratively simple for employers to use, thus allowing the screening tool to be used quickly and consistently for a number of different jobs.

For repetitive motion other than use of a keyboard or mouse, the screen triggers jobs into the requirements of the standard only if the exposure occurs for more than 2 consecutive hours in a workday, as opposed to more than two hours total per day. This reflects OSHA's belief, based on the health evidence, that 2 hours of repetitive motion will be less hazardous if spread out over the workday because musculoskeletal tissue will have an adequate opportunity to recover. By capturing only those jobs that involve more than 2 consecutive hours of repetitive motion, the standard will not capture those jobs where employees change tasks during the day, even if the repetitive motion occurs for a total of 2 hours over the work shift.

The screening tool departs from the 2-hour duration criterion for a few items. These include the following: For use of keyboard and mouse in a steady manner, the duration is set at 4 hours total per workday; for lifting, the screen sets weight and frequency criteria; and for use of tools or equipment that typically have high vibration levels (such as chainsaws, jack hammers, percussive tools, riveting or chipping hammers) the duration is set at 30 minutes total per day.

For use of a keyboard or mouse in a steady manner, OSHA has set the duration for more than four hours total per day. In this case, OSHA has chosen more than four hours based on the epidemiological evidence that demonstrates that, in general, the risk of MSDs for workers performing keying activities begins to increase after four hours of exposure (see Table IV—SCREEN). For example, Bernard et al. (Ex. 26-842) studied workers typing at video display units and reported an increased risk of hand/wrist MSDs for exposures of 4 four to six hours. Oxenburgh (Ex. 26-1367), observed an increased prevalence of hand, wrist, forearm and/or elbow MSDs after 4 hours per day at a keyboard. Similarly, Polanyi et al. (Ex. 38-3) studied keyboard workers and observed that upper extremity MSDs significantly increased after exposure durations of approximately four hours per day. Based on this evidence, OSHA has determined that it is appropriate to deviate from the 2 hour duration criterion set for other job or task activities, and to set a greater than four hours total per day for the use of a keyboard or mouse in a steady manner.

For using tools or equipment that typically have high vibration levels (such as chainsaws, jack hammers, percussive tools, riveting or chipping hammers) OSHA has set the duration at 30 minutes total per day. This level is based on a time-energy equivalent exposure determination. For example, the time duration for using tools or equipment that have moderate vibration levels (such as jig saws, grinders, or sanders) is set at 2 hours total per day. Vibration level can be expressed as the amount of energy transmitted by the tool over a certain period of time (e.g., m/s2). OSHA assumes that a moderate vibration level is approximately 2.5m/s2. The duration for moderate vibration level is more than 2 hours total per day. Assuming that a high vibration level is approximately 10m/s2 (4 times the moderate vibration), the time-energy equivalent exposure duration level at which risk is increased for activities involving high vibration levels would be 30 minutes (i.e., 1/4 of 2 hours). That is, risks for activities at four times the vibration level would occur 1/4 the amount of time.

For lifting, the chart contains specific weight limits, coupled with a specific limit on the number of times per day the weight can be lifted. Weight limits are specified for weights lifted from below the knee, above the shoulder and at arm's length. The limits specified are as follows: lifting more than 75 pounds at any one time; more than 55 pounds more than 10 times per day; or more than 25 pounds below the knees, above the shoulder, or at arms' length more than 25 times per day. OSHA has based these limits on recommendation found in other screening tools as well as evidence in the epidemiological literature that shows increased risk of low back disorders when lifting certain weights at certain frequencies or postures. For example, Arad and Ryan (Ex. 500-41-7) and Smedley et al. (Ex. 1249) reported an increase in risk low back MSDs among healthcare workers lifting one to four patients per day. Kelsy et al. (Ex. 500-41-73) reported increased risks of lumbar disorder among workers in jobs requiring lifting more than 25 pounds more than 25 times per day compared to workers who did not lift these weight. Similar findings were reported by Macfarlane et al. (Ex. 500-41).

OSHA finds that the weight of evidence clearly demonstrates that heavy, frequent or awkward lifting increases the risks for MSDs. Particular studies, such as those described above, provide support for the specific weight criteria used in OSHA's screening tool for the final standard. Washington State has used similar data to support its “caution zone job criteria” for lifting (Ex. 500-313-6). OSHA believes that these are reasonable criteria to use for the screening purposes of this standard and that, in general, these criteria reflect the evidence in the record.

The exposure screen also contains an entry for activities involving pushing and pulling. In a questionnaire survey of insurance company policyholders, Start Printed Page 68317Snook et al. (1978) found 9% of low back injuries to be associated with pushing and 9% to be associated with pulling (Ex. 26-35). NIOSH (1981) cited evidence that 20% of overexertion incidents involve pushing and pulling objects (Ex. 26-393). Thus, OSHA finds that it is appropriate to include pushing and pulling on the screen as a specific exposure criterion.

For job activities involving pushing or pulling, the chart specifies 20 pounds of initial force as the trigger criterion. To provide a basis for determining appropriate workloads for these activities, Snook and Ciriello (1991) developed tables of maximum acceptable forces for pushing and pulling (Ex. 26-1008). Maximum acceptable forces were expressed in terms of the percentage of the industrial population capable of performing the task. Data were presented separately for males or females either pushing or pulling, and were given for both initial forces (the force required to get an object in motion) and sustained forces (the force required to keep an object in motion). Variables included frequency, distance, and height (vertical distance from floor to hands).

The tables were developed based on experiments employing a psychophysical methodology (Ex. 37-6). This approach assumes that workers are able to determine with some accuracy their highest acceptable workload. Subjects were given a task with a set frequency, distance, and height and were allowed to control the amount of force used. Subjects were instructed to work as hard as they could without straining themselves or becoming unusually tired, weakened, overheated, or out of breath.

Although acute fatigue was the basis of the limitations established by this series of experiments, the results have been shown to predict the risk of developing MSDs. Snook et al. (1978) reported that workers performing manual handling tasks that less than 75% of workers are capable of performing without overexertion are three times more likely to suffer from low back injuries than those workers performing manual handling tasks that more than 75% of workers are capable of performing (Ex. 26-35).

Other research has also supported a relationship between psychophysically derived exposure levels and risk of MSDs. Using an index derived from the tables developed by Snook and applying it to 6,912 workers in 55 industrial jobs, Herrin et al. (1986) found that the number of overexertion incidents was related to the psychophysical stress of the job. The severity of these incidents as measured by lost or restricted work days was also found to be associated with psychophysical stress (Ex. 26-961). Additionally, Park and Punnett found psychophysical ratings of ergonomic stressors to predict the incidence of in-plant medical visits for MSDs among 1064 workers in two automobile manufacturing plants (Ex. 38-160).

Based on the reported association between pushing and pulling and the development of MSDs, and the evidence of a relationship between psychophysically derived exposure limits and reported injuries, OSHA concludes that an exposure criterion based on psychophysically derived limits will serve as a reasonable basis for determining when a hazard analysis is necessary for jobs involving pushing and pulling activities.

The 20-pound force criterion for pushing and pulling will capture all jobs that are designed such that less than 75% of workers (male or female) are capable of performing them without experiencing overexertion. As explained above, lifting jobs that cannot accommodate at least 75-percent of the working population's physical capacity have been associated with a three-fold higher risk of low back disorders. This suggests that jobs should be subject to more detailed hazard analysis if an initial screen indicates that a task involving pushing or pulling is not designed within 75-percent of the working population's physical capacity.

While the screening threshold for pushing and pulling forces is based upon an exposure level that is protective of 75 percent of the industrial population based on psychophysical measurements relating to overexertion, this should not be construed as an endorsement by the Agency of exposure to ergonomic risk factors based on what is considered to be an acceptable level for any given percentage of the population. The level chosen in this instance resulted from the fact that the evidence in the record indicates that an increased risk of developing MSDs exists among workers who perform pushing or pulling activities at levels above those found to be acceptable to 75 percent of the industrial population based on psychophysical measurements relating to overexertion, not because any particular proportion of the exposed population was considered to be protected from developing MSDs.

The 20-pound force criterion for pushing and pulling tasks is consistent with the OSHA “safe harbor” for pushing/pulling, which is based on the 90th-percentile values for female workers. Using 20 pounds as screening criteria will help to ensure that employers are not screening in jobs for which they have already implemented controls based on the safe harbor value, but instead are screening in those jobs where risks may begin to occur and for which a job hazard analysis is appropriate.

For performing activities that require pinching or gripping unsupported objects, the chart specifies weights of two pounds or more per hand for pinching and 10 pounds or more per hand for gripping. These values are generally supported by studies such as those by Chiang et al. (Ex. 500-41-25), Stetson (Ex. 500-41-44), English (Ex. 500-41-30) and Roquelaure et al. (Ex. 500-41-112). These investigators reported increased risks of carpal tunnel syndrome, thumb disorders, shoulder disorders, and nerve abnormalities among workers repetitively pinching objects approximately in the range of two pounds or gripping objects approximately in the range of 10 pounds. OSHA believes that the weights specified represent reasonable screening criteria for identifying conditions likely to cause the type of MSDs reported and are similar to values recommended in other screening tools. While there may be more precise ways of measuring force associated with pinching or gripping, OSHA believes that using the weight of objects handled is more administratively simple for employers to use and thus will enable employers to more quickly and consistently evaluate jobs.

Similarly for contact stress, OSHA has specified a frequency of 10 times per hour when using the hand or knee as a hammer. OSHA believes that this value is also administratively simple and reasonable to use for the screening purposes of this standard. Studies have shown increased risk in MSDs among workers using the hand or knee as a hammer (e.g., Little and Ferguson, Ex. 26-1144 and Thun, Ex. 26-60). However, little data is available that quantifies the frequency of exposure at which increased risks are observed. Washington State chose a value of 10 times per hour for their “caution zone job” criteria. OSHA believes that this is a reasonable value to use for screening purposes and that it gives the employer guidance in identifying work activities likely to contribute to the type of MSDs reported.

In summary, the specific description of risk factors contained in the screen, coupled with the duration specifications, all have a sufficient degree of risk to trigger some simple additional requirements (job hazard analysis, MSD management, training and evaluation). It should be kept in Start Printed Page 68318mind however, that these are not intended to imply that a hazard exists and requires control be instituted. There is substantial evidence in the record that supports the agency's choice of risk factors and duration levels. As with “action levels”' contained in other health standards, the duration levels were set at levels where the risk begins to rise and additional, simple steps are necessary.

The purpose of this screen is to focus on those jobs that are likely to have caused or contributed to the MSDs that are reported. In general, activities causing or contributing to such MSDs are more likely to be ones that make up significant amounts of the employee's worktime and represent a core element of the employee's job. As such, these activities are likely to be a foreseeable part of the job that can be reasonably predicted and thus can be taken into account when designing an ergonomics program. These are the types of jobs that OSHA seeks to capture under the final standard so that programs can be put in place to prevent further MSDs from occurring.

In order to better enable employers to capture such jobs, OSHA is setting a minimum frequency for job or task activities that must occur as a part of the screening tool. OSHA is setting this frequency at one day per week or more. Obviously, there are numerous values that could be chosen. However, OSHA believes that this value can reasonably be used to determine those job or task activities that are core element of an employee's job, and are foreseeable or reasonably predictable. In addition, a frequency of once a week or more is likely to capture many work activities that are an element of an employee's job that occur on a weekly basis (e.g., deliveries or maintenance activities). To meet the screen, a job must “routinely” involve tasks that meet the designated criterion at least one day a week. This value will also provide guidance in that it can be used to rule out job or task activities that are rare occurrences, that are not predictable, or that result from unusual work circumstances.

In conclusion, in response to the comments received on the proposed standard, OSHA has developed a screening tool that will provide employers with quantitative guidance for determining work activities and conditions that are likely to cause or contribute to MSDs and that are a core element of a job or make up a significant amount of the employee's worktime. This screening tool includes specific descriptions of tasks and durations that will enable employers to evaluate jobs, quickly and consistently, at their worksites. To the extent possible, these descriptions and durations were developed using to the extent possible using the best available epidemiological literature as well as expert opinion from other groups who have developed very similar screening tools. This screen is intended to be used in conjunction with the event of an MSD incident to identify work conditions where exposure risks may exist such that a job analysis must be conducted to determine whether job controls are quickly and consistently necessary.

Paragraph (g)—What Actions Must I Take if the Employee's Job Meets the Action Trigger?

Paragraph (g) of the final rule defines the actions that employers must take if an employee with an MSD incident is employed in a job that meets or exceeds the action trigger. The paragraph requires that the employer must either implement the Quick Fix option in paragraph (o) of the final rule, or develop and implement an ergonomics program that includes the following elements:

(i) Management leadership as specified in paragraph (h) of this section;

(ii) Employee participation as specified in paragraph (i) of this section;

(iii) MSD management as specified by paragraphs (p), (q), (r), and (s) of this section;

(iv) Job hazard analysis as specified by paragraph (j) of this section;

(v) Hazard reduction and control measures as specified in paragraphs (k), (l), and (m) of this section, and evaluations as specified in paragraph (u) of this section, if the job hazard analysis determines that the job presents an MSD hazard;

(vi) Training as specified in paragraph (t) of this section.

A few commenters suggested that the effectiveness of ergonomics programs in reducing workplace MSD hazards was not demonstrated for the proposed rule. For example, the post hearing brief submitted on behalf of the U.S. Chamber of Commerce stated:

None of this “evidence” * * * begins to support the proposition that an Ergonomics Program Standard such as the one contained in the Proposed Rule will reduce at all the incidence of workplace musculoskeletal complaints. [Ex. 500-188]

In contrast, the use of ergonomics programs as an effective method for addressing workplace MSD hazards was endorsed by the vast majority of commenters in the rulemaking record (see, e.g. Exs. 30-3855, 32-185, 500-209, Tr. 4940, Tr. 1491). For example, Mr. McCauseland, representing the American Meat Institute (AMI), testified during the rulemaking hearing: So what has happened in the 10 years since the meat packing guidelines were issued? Well, a number of things. In our industry, reduced levels of injuries and illnesses have been approximately one third of all incidents. Nearly one-half of lost time incidents have been reduced as well. * * * The guidelines have fostered proactive efforts to eliminate ergonomic risks and hazards in a wide ranging number of applications [Tr. 4940].

A complete discussion of the widespread support for the proposition that ergonomics programs are effective is contained in Chapter III of the Final Economic Analysis for the final rule. In that chapter, OSHA discusses the history of successful ergonomics programs and describes the extensive use of ergonomic programs throughout broad sectors of industry. In fact, the number, longevity, and extensive use of ergonomic programs that are similar to those required by OSHA's final rule clearly validate the Agency's regulatory approach, as well as demonstrating the inherent feasibility of the standard for covered employers who establish such programs.

Many of these programs have most or all of the program elements required by paragraph (g) of the final rule. The wide use of these elements in current programs is evidence that employers believe them to be essential, workable concepts. The program elements contained in the final rule are summarized and explained in other sections of this preamble and therefore will be discussed only briefly here in the context of the overall program requirement.

Paragraph (g) of the final rule specifies that if an employee's job exceeds the action trigger, the employer may implement a quick fix option for that job under paragraph (o). An employer who qualifies for the quick fix option does not need to establish an ergonomics program, although he or she must follow all of the quick fix procedures. However, if the employer cannot or does not implement a quick fix, then the standard requires an ergonomics program with the following elements:

  • Management leadership,
  • Employee participation,
  • MSD management,
  • Job hazard analysis,
  • Hazard reduction and control,
  • Training, and
  • Evaluation.

Management leadership is critical to the successful implementation and operation of ergonomics programs. Start Printed Page 68319Management leadership provides the focus and direction of the program's effort as well as the needed resources in terms of both personnel commitment and funding. The requirements for management leadership are described in the summary and explanation for paragraph (h).

Employee participation is equally important. Employees are essential sources of information about MSDs, risk factors, and MSD hazards in their work areas. They have valuable insights into effective control measures that can be used to reduce risk factors inherent in their jobs. The requirements for employee participation are described in the summary and explanation for paragraph (i).

MSD management provides for prompt and appropriate management when an employee has experienced an MSD incident. MSD management includes access to a health care professional, work restrictions as needed, work restriction protection, and evaluation and follow-up of the MSD incident. MSD management is important largely because it helps ensure that employees promptly report MSDs and signs and symptoms of MSDs. This, in turn, ensures that jobs that present MSD hazards will be included in the ergonomics program. The requirements for MSD management are described in the summary and explanation for paragraphs (p), (q), (r) and (s).

Job hazard analysis provides for the identification of the risk factors for jobs that meet the action trigger. The job hazard analysis provides a systematic approach to identifying and addressing the risk factors in the job. The requirements for job hazard analysis are described in the summary and explanation for paragraph (j).

Hazard reduction and control is the heart of the ergonomics program. Under this program element, employers control the risk factors in problem jobs identified during the job hazard analysis. The requirements for hazard reduction and control are described in the summary and explanation for paragraphs (k), (l), and (m).

Training provides employees with the information and understanding that they need to participate effectively in the ergonomics program. In addition, the training required by the final rule provides the more detailed information that supervisors, team leaders and other employees involved in setting up and managing ergonomics programs need to carry out their program-related responsibilities effectively. The training requirements are described in the summary and explanation for paragraph (t).

Evaluation is the process employers use to ensure that the program they have established is functioning as intended. Employers are required to evaluate their programs every three years and at other times if they have reason to beleive that the program is not functioning properly. The requirements for program evaluation are found in paragraph (a).

In summary, ergonomic programs similar to OSHA's in structure have been effectively reducing the incidence and/or the severity of MSDs for at least 10 years throughout the vast majority of general industry sectors. Model programs that contain OSHA's program elements have been implemented by a wide range of employers, such as large and small manufacturing establishments, utilities, and government agencies (see, e.g., Exs. 32-185, 500-108, 38-50, Tr. 4693, Tr. 5696, Tr. 6310, Tr. 5931, Tr. 7031, Tr. 7068, Tr. 7074, Tr.7918, Tr. 7934, Tr. 7937, Tr. 7963, Tr.7948, Tr. 7999, Tr. 8826, Tr. 14707, Tr. 17350)

Paragraph (h)—Management Leadership

Paragraph (h) contains the final rule's requirements for management leadership. It requires that employers assign and communicate responsibilities for setting up and managing the ergonomics program; provide the authority, resources, and information necessary to meet those responsibilities; ensure that existing policies and practices encourage and do not discourage reporting and participation in the ergonomics program; and communicate periodically with employees about the program and their concerns about MSDs.

Paragraph (h) of the final rule is nearly identical in content to the proposed management leadership section (Section 1910.912). OSHA has elected to retain the management leadership requirements as proposed due to evidence in the record that supports the need for management commitment in any effective ergonomics program. Minor changes have been made to clarify the provision regarding the assignment and communication of responsibilities and to allow for more concise application of the subelement relating to the encouragement of reporting and participation.

OSHA proposed to require management leadership because the literature on ergonomics programs consistently cites management commitment as a vital component of an effective program (see, e.g., Exs. 2-13, 26-2, 26-5, 26-9, 26-10, 26-13, 26-14, 26-17, 26-18, 26-22, 26-27). The need for management commitment was also supported by a number of responses to the ANPR (see, e.g., Exs. 3-27, 3-124, 3-173).

The elements of the proposed and final management leadership requirements are based on the concept of management leadership expressed in the literature. OSHA considers the proposed and final management leadership provisions to be necessary to the exercise of leadership of the ergonomics program.

Responses to the proposed management leadership provisions indicated general support for the concept of management leadership. Comment on the provisions pertaining to the assignment and communication of responsibilities; provision of authority, resources, and information; and periodic communication focused on the interpretation, rather than the concept, and often criticized the proposal as vague. Comments regarding policies and practices that discourage reporting and participation revealed sharply divided opinion on the merits of the proposed provision.

The importance of management leadership as a component of an effective ergonomics program was supported in a number of comments on the proposed rule (see, e.g., Exs. 30-2387, 30-3745, 30-3765, 32-78-1, 32-85-3, 32-182-1, 32-198-4, 32-339-1, 30-428, 30-3860, 30-4333, Tr. 3479, Tr. 3565, 32-450-1-18-1, Tr. 8004, Tr. 1496, Tr. 9070). David LeGrande of the Communications Workers of America, for example, when asked to indicate what characteristics distinguished successful ergonomics programs from those that fail, explained that the commitment of management is the primary factor in determining if a program will succeed (Tr. 9018).

The inclusion of a distinct requirement for management leadership in the proposed ergonomics standard, however, was considered by some parties to be inappropriate (see, e.g., Exs. 32-78-1, 30-2830, 30-3853, 30-3765, 32-368-1, 500-223, 30-3426). Mandating the assignment of responsibilities and provision of authority, resources, and information, it was argued, is so vague as to lead to uneven enforcement by OSHA personnel, according to these commenters (see, e.g., Exs. 30-74, 30-240, 30-1336, 30-3284, 30-3336, 30-3344, 30-3367, 30-3763, 30-3782, 30-3849, 30-3951, 30-4496, 30-4674, 30-4837, 30-4247). The Ameren Corporation, for example, stated:

Whether an employer has committed enough “resources”, has “ensured” that they have encouraged their employees to report or participate, or is communicating often Start Printed Page 68320enough are all highly subjective judgement calls which cannot be consistently made by OSHA (Ex. 30-4247).

Bruno's Supermarkets and others (see, e.g., Exs. 30-2836, 30-2837, 30-2828, 30-2839, 30-2840, 30-2841, 30-2842, 30-2843, 30-2844, 30-2940) concurred with this assessment, stating:

[The proposed standard] requires that employers communicate “periodically” with employees about the ergonomics program. Suppose, for example, that an employer distributes an annual ergonomics bulletin. How will the employer know whether an OSHA inspector will expect us to communicate more frequently, such as once a week or once a month? This section also requires employers to provide those managing the ergonomics program with “resources,” which are vaguely and broadly defined as “the provisions necessary to develop, implement, and maintain an effective ergonomics program,” including money, etc. We may feel that we have provided adequate resources necessary for such an effort, but we will have no way of knowing whether the OSHA inspector will agree. The lack of objective, attainable standards will leave employers at the whims of OSHA inspection personnel. (Ex. 30-2836)

The term “periodically” was specifically cited by a number of parties as being unduly subjective and open to interpretation (see, e.g., Exs. 30-1101, 30-1336, 30-3826, 32-337-1, 30-1671, 30-3336, 30-3367, 30-3782, 30-4674, 30-3512). Some commenters said that determinations about the delegation of authority and assignment of resources were outside of OSHA's expertise and created excessive administrative burdens on employers (see, e.g., Exs. 32-78-1, Tr. 12250). Such mandates were believed by some to be beyond the Agency's authority (see, e.g., Exs. 30-2914, 30-4335).

OSHA has decided to retain a requirement for management leadership in the final rule. Management leadership is widely believed to be one of the core elements of any effective safety and health (including ergonomics) program. If no individuals in a given workplace have been assigned responsibilities for the ergonomics program, it is clearly unreasonable to expect that a successful program will somehow emerge. Likewise, if responsibilities are assigned but no authority is granted and no resources are provided, an ergonomics program is destined to fail. For example, if an individual is assigned responsibility for training workers in a problem job, that person needs access to relevant information about the MSD hazards and controls in the job, sufficient time to administer the training, and a suitable location for the training to take place. Communicating periodically with employees about the program and their concerns about MSDs is similarly essential to creating an environment where both the employer and employees are fully aware of issues relating to the ergonomics program. If a regular, two-way exchange does not take place, it would be impossible for employees to keep abreast of changes in the ergonomics program, or for the employer to receive feedback regarding the program. Without full knowledge, the benefits of the program will be diminished. The endorsement of management leadership in comments and the incorporation of this element in successful ergonomics programs supports OSHA's conviction that management leadership is a critical component of an ergonomics program.

Those who expressed the sentiment that the management leadership requirements of the proposal were vague or burdensome appeared to believe that OSHA compliance personnel would arbitrarily decide if the authority, resources, and information provided were satisfactory, or if the frequency of communication was adequate. OSHA reaffirms its belief, expressed in the proposal, that employers should retain broad discretion in deciding who should bear responsibility for the various components of the ergonomics program, and what authority, resources, and information are necessary and appropriate to meet the assigned responsibilities in a given workplace.

The frequency of communication with employees is also subject to wide latitude in order to account for the needs of different workplaces. The term “periodically” is used in the standard to indicate that communication must be performed on a regular basis that is appropriate for the conditions in the workplace. A rigid schedule, however, is not specified, in order to provide flexibility to account for the circumstances found in different workplaces and even at different times in the same workplace. Additional discussion of this topic can be found in the section of this preamble devoted to additional statutory issues (see Section XII of the preamble).

The general requirements in paragraph (h) of the final rule for the assignment of responsibilities and provision of authority, resources and information are designed to complement the more specific requirements for action found elsewhere in the standard. For instance, under paragraph (i) of this final rule, employees must receive prompt responses to reports of MSDs. It is the duty of the employer to assign the responsibility for providing those responses and to provide the necessary authority, resources, and information needed to do so. If a prompt, correct response is given to the employee, then the employer's assignment of responsibility and provision of authority, resources, and information will clearly have been satisfactory.

The final rule does not describe how responsibility is to be allocated or how individuals will be held accountable for their responsibilities. This is to allow employers the greatest possible flexibility in adapting the program to their particular situation. A concern was registered that the proposed requirement for assigning responsibility would conflict with a management structure that did not include supervisors (see, e.g., Ex. 30-3765). OSHA does not intend to prescribe what program responsibilities are vested in any party. An employer may choose to designate and empower front line employees with any responsibility associated with the program, so long as the authority, resources, and information necessary to meet those responsibilities are provided.

The role that contractors, consultants, and other outside parties may play in an ergonomics program has also been recognized by the Agency. Although not required by the standard, OSHA is aware that outside expertise may be beneficial in some instances. Accordingly, the final rule allows the employer to chose who is designated with regard to the assignment of responsibility. Ergonomists, safety professionals, industrial hygienists, and others may be involved in the employer's program.

Several commenters suggested that OSHA place requirements on employees as well as employers in the final rule (see, e.g., Exs. 30-3765, 30-584, 30-3368). These commenters believe that employees must take responsibility for their actions. OSHA agrees that active employee involvement in the ergonomics program is essential to program effectiveness but does not believe that this principle should be stated in the standard, for a number of reasons. First, the OSH Act itself, at Section 5(b), states that “Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to the OSH Act which are applicable to his own actions and conduct.” However, the courts have repeatedly held that employers are responsible under Section 5(a)(2) of the Act for ensuring worker protection. For example, the court in Brock v. City Oil Well Service Co., 795 F. 2d 507, 511 (5th Cir. 1986) held, “it is the employer's responsibility to ensure that the Start Printed Page 68321employees are protected. It may accomplish this objective through others if it chooses, but the duty to provide the protection remains the employer's.” If, for example, an employer has determined that lifting an 80-pound box poses an MSD hazard to employees, the employer can establish a policy of requiring employees to use a mechanical lift to raise such a box and train employees how to do this. The employer could then hold the employee accountable for adhering to this policy in the same manner as other policies or rules are enforced.

In addition to providing authority, resources, and information, the proposed management leadership section included a requirement to provide the training necessary to meet assigned responsibilities. Because training for those responsible for setting up and managing the program is addressed in paragraph (t) of this final rule, training has been deleted from this paragraph in order to avoid potential confusion.

Some commenters expressed the belief that management leadership is implicit in an effective ergonomics program, and an independent requirement for management leadership is therefore unwarranted (see, e.g., Exs. 30-3765, 30-1293). Dow Chemical, for example, while strongly supporting the need for management leadership in safety and health activities, expressed the view that it is not appropriate for OSHA to attempt to regulate and enforce leadership. By establishing and evaluating the effectiveness of an ergonomics program, Dow argued, the employer has in effect demonstrated leadership (Ex. 30-3765).

In a similar vein, some parties argued that the requirements for management leadership were largely redundant with other sections of the proposal. They pointed out, for example, that communicating periodically with employees about the ergonomics program and their concerns about MSDs was part of the proposed management leadership provision, while separate, specific requirements for communication with employees were proposed as part of the provisions pertaining to quick fix, employee participation, hazard information and reporting, job hazard analysis and control, training, MSD management, and program evaluation. This “duplication,” it was argued, could subject employers to being cited twice for a single violation (see, e.g., Exs. 30-3344, 30-4674).

OSHA believes that there is little, if any, overlap with other parts of this standard. The management leadership and employee participation elements of the final rule should be considered the overall conceptual foundation of an effective ergonomics program and a vital part of the organizational framework of an effective program. By fully understanding the importance of management leadership and employee participation, it is expected that program managers will determine how best to apply these concepts in a particular workplace and how the individual subelements will work most efficiently in their environment. Even where some overlap could be perceived, it is not OSHA's policy to issue duplicate citations for a single violation.

The management leadership element also includes requirements unique to this paragraph, such as the requirement in paragraph (h)(3). That requirement specifies that the employer must ensure that their policies and practices encourage and do not discourage reporting or participation in the program. OSHA believes that applying this provision in an ergonomics program is a logical component of management's effort to direct the ergonomics program in a manner that will be protective of employee health.

OSHA's proposed requirement for employers to ensure that their existing policies and practices encourage and do not discourage reporting and participation in the ergonomics program elicited a substantial volume of comment. As explained in the preamble of the proposal, this proposed provision was intended to encourage the early reporting of MSDs and meaningful employee participation in the ergonomics program. OSHA believes that employees in all workplaces should be encouraged by their employers to report injuries, illnesses, and hazards of all kinds—not just those related to ergonomic issues—because only full and frank reporting allows employers to identify hazards and do something about them.

Particular attention was paid by participants regarding the requirement that employers ensure that their policies and practices do not discourage reporting and participation in the program, and the effect of this provision on existing employer programs, including safety incentive programs and employee drug testing programs.

Policies and practices given in the preamble to the proposal as examples of those that may discourage reporting included:

  • Programs that reward or punish employees on the basis of injury or illness reports by offering incentives or awards based on low numbers or rates of reported MSDs.
  • Policies that require every employee reporting an MSD or MSD signs and symptoms to submit to a drug or alcohol test.
  • Direct or reasonably perceived threats of retaliation, including firing or suspension, withholding overtime work for anyone who reports MSD signs or symptoms, (even from jobs that do not involve exposure to risk factors), prohibiting the use of sick leave for a work-related injury; and sending every employee who reports MSD signs and symptoms home without pay.

Expressed or implied warnings of retaliation for reporting MSDs, MSD signs and symptoms, or MSD hazards would clearly be considered a practice that would discourage reporting. If, for example, a supervisor were to inform employees working the day shift that reporting MSD signs and symptoms would automatically result in transfer to the night shift, this action could be reasonably anticipated to suppress reporting. An example of a situation similar to this was described by the UFCW. The union explained that employees were reluctant to report injuries in this situation due to the consequences they would face:

[The company] had established a special “C” shift—the graveyard shift—for employees suffering from work-related injuries, many of which were cumulative trauma disorders. The purported purpose of the C shift crew was to assist injured workers with long term medical restrictions in returning to regular duty. In fact, however, a number of employees assigned to the crew were taken off regular duty jobs which they had been performing successfully with their restrictions. They were then isolated and segregated on the C shift and assigned degrading, demeaning, make-work tasks such as picking up cigarette butts in the parking lot at night with flashlights or scraping rust off of pipes in the rendering department (Ex. 32-210-2).

Some employers have taken this a step further, pursuing policies that discipline workers for reporting injuries, without considering the cause of those injuries. When rewards or punishment are linked to the reporting of MSDs or MSD signs and symptoms, employee reporting behavior can clearly be influenced. Punishment for reporting in the form of wage reductions, loss of overtime, reprimands, suspensions, or other means can be expected to discourage reporting.

An example of this approach is a system of imposing progressively more severe penalties when injuries are reported, such as a written reprimand for the first incident, followed by suspension, and finally termination (see, e.g., Exs. 32-298-2). Another example is a system that assigns a point Start Printed Page 68322value to an incident based on factors such as the cost of the incident to the employer or whether lost workdays were involved. Progressive levels of punishment are meted out based upon the number of points that an employee accumulates (see, e.g., Ex. 500-111-1). Kathy Saumier of the United Steelworkers described such a program and its results in the plastics plant where she worked:

The company had a policy to give out points if an employee missed work even due to work related injury. After an employee accumulated seven points, the company reduced the employees' pay by 50 cents per hour. If the employee accumulated 15 points an employee was then terminated. This system caused many workers to go to work injured for fear of pay reduction or termination (Tr. 10992).

The record also included many instances where, intentionally or inadvertently, employer policies and practices were said to discourage employees from reporting MSDs (see, e.g., Exs. 20-626, 32-111-4, 32-198-4-1, 32-198-4-2, 32-210-2, 32-298-2, Tr. 5598, Tr. 6980, Tr. 7715, Tr. 7729, Tr. 7387, Tr. 7730, Tr. 8041, Tr. 10153, Tr. 10230, Tr. 10763, Tr. 13870, Tr. 14535, Tr. 15131, Tr. 15453, Tr. 16766).

Incentive programs that offer rewards to employees or groups of employees based on a low number of reported injuries were also mentioned as factors inhibiting the reporting of MSDs. Bill Byington of the IBT described how employees in his workplace were being taken to a baseball game for completing a month of work without a reported injury; he was aware, however, that at least one of the members of the group had sustained an injury and not reported it (Tr. 15453). Sandy Brooks of the United Steelworkers related her experience with a “safety bingo” program, where employees receive a bingo number each day, and the employee who wins the bingo game receives cash, weekend trips, and dinners as prizes. The bingo game ends for all employees, however, when an OSHA recordable injury is reported. Ms. Brooks was also aware of workers who did not report injuries because of the incentive program (Tr. 7703).

An additional factor in group incentive programs that can serve to coerce employees to refrain from reporting MSDs is the peer pressure that can be exerted when group awards are at stake. Joe Enos of the UAW described the result of an incentive program that offered a microwave oven to a team of workers if they reduced reported injuries 25% from the previous year:

The group had achieved that goal going into November and they still had a month to go. And one of the workers got hurt. And the rest of his coworkers told him, “Hey, you go to medical, there goes the microwave.” And this guy realized that his health was more important than some microwave. But a good many of his coworkers wouldn't even talk to him for a couple of weeks as a result of that (Tr. 15453).

Dr. Richard Bunch of the Industrial Safety and Rehabilitation Institute told of an injury sustained but not reported early, in order to preserve workers' chances of winning a barbeque pit:

One company was giving a barbeque pit as a prize if you went so many months without reporting an injury. And one gentleman had a back problem and did not report it because the other six members on his team threatened him with violence. So in that case, he did not report it, but ended up going to a full blown frank rupture of the disc (Tr. 11638).

These accounts of individuals support the impression that incentive programs that tie rewards or punishment to the report of an injury may result in reductions in reported injuries and illnesses, at least in part due to lack of reporting rather than an actual reduction in the number of injuries that occur. Nancy Lessin of the Massachusetts AFL-CIO espoused this view:

Workers can not control the conditions which lead to most work-related injuries and illnesses. They can control whether or not they report an injury or illness. Safety incentive programs manipulate the thing workers can control—the reporting of workplace injuries and illnesses * * * (Ex. 32-298-2).

The United Steelworkers concurred with that assessment:

We know better than to believe that worker behavior is the primary cause of most workplace accidents. We know that exposure to workplace hazards causes injuries and illness and exposure to ergonomic hazards causes MSDs. Ergonomic hazards need to be controlled to eliminate MSDs in the same manner that we address any workplace hazard. Incentive programs based on injury rates, and behavior-based safety programs do not correct hazards. In fact, these programs can make a bad situation worse by diverting attention from correctable hazards, and promoting the under reporting of injuries (Ex. 32-111-4).

Several commenters argued that OSHA had not made a determination that incentive programs result in the underreporting of MSDs (see, e.g., Exs. 30-4185, 30-1070, 30-3347, 30-4185). The Synthetic Organic Chemical Manufacturers Association suggested that OSHA obtain data to support its position, stating:

If OSHA believes that employers are not properly reporting injuries and illnesses, it should address this issue by gathering the data to substantiate its position. OSHA should not discourage employers from utilizing all necessary injury/illness prevention tools. There is no basis for the proposed Ergonomics Standard to suggest that these effective programs should be subject to further scrutiny (Ex. 30-3843).

Sufficient evidence has already been entered in the record, however, for OSHA to reach the conclusion that MSDs are substantially underreported (see the discussion of underreporting in the Significance of Risk section of this preamble as well as the Benefits chapter of the Final Economic Analysis). Evidence also supports the belief that employer policies and practices often contribute to this underreporting by discouraging the reporting of MSDs.

A review of the literature on safety incentives commissioned by OSHA and published in 1998 divided incentive programs into two categories based on the behavior they reward. The review found that the literature strongly indicates that programs that measure safe work practices, such as wearing safety glasses for eye protection or using a seat belt when driving, may increase the frequency of such practices. The literature review further disclosed that incentive programs that focus on reductions in the number of injuries and illnesses reported do not improve safety practices. No scientific studies were found indicating that such programs had either a positive or a negative impact (Ex. 502-281).

Some policies and practices can affect employee participation in the ergonomics program, as well as employees' incentive to report. Employees who are punished or discouraged from reporting MSDs or MSD signs and symptoms, may also feel discouraged from participating in any meetings or discussions about ergonomic problems in the workplace and how to address them. If a worker is threatened with retaliation for pointing out hazards or for participating in a job hazard analysis, that worker and his or her co-workers are unlikely to take part in this activity or future activities. Employees are likely to be discouraged from requesting information to which they may be entitled, such as training materials or information about this standard, if they fear retaliation or if obtaining the information is made inconvenient. Likewise, if employees in a problem job are asked for recommendations about eliminating or controlling MSD hazards, but are required to attend a meeting at an unreasonable time in an inconvenient place, or that may involve loss of pay in order to submit those recommendations, the likelihood of those employees Start Printed Page 68323participating in the process would be diminished.

Some commenters were concerned that a wide variety of employer policies and practices could have the potential to impact employee participation and reporting of injuries; even a review of a manager's or supervisor's performance could be found to constitute a violation of the standard when performance criteria in that review include the number of injuries and illnesses recorded by employees under his or her supervision (Ex. 30-4185).

OSHA is concerned with the effect of a policy on employees' participation in the ergonomics program and whether the program or policy discourages reporting. In some cases, making the number of injuries and illnesses recorded a part of a manager's performance review can result in a policy the discourages reporting. Larry Hall of the United Food and Commercial Workers described such a situation.

One of the things that happens with the [manager] bonuses is the worker reports a problem, and the manager immediately tells them how that is going to affect their bonus. If you are working for me and I say, “Gee, that is going to really affect my bonus. So, for the rest of your life, you get to work nights,” these people write their schedules. They control their lives. If you are going to displease me and take money out of my pocket, I can really do a lot to you and stay within the union contract. (Tr 14538)

OSHA finds that the evidence strongly demonstrates that employer policies and practices that reward non-reporting and punish, threaten, or otherwise discourage employee reporting of MSD incidents have the effect, in many instances, of suppressing incident reports. This conclusion is based on the strong record presented by witnesses and documentary submissions as well as on the logic that providing incentives to not report accidents or illnesses is likely to reduce the number of such reports, but unless the cause of those incidents is addressed, it is unreasonable to believe that MSD incidents themselves will be reduced in number. The litany of case reports in the record where employer policies and practices were said to deter reporting reinforce this position. The concealment of MSD incidents would in fact have an effect directly opposed to the purpose of this standard. Hazards that would otherwise be identified and eliminated or controlled would remain and continue to threaten employees. MSD incidents that, if reported, could be limited in severity through rest or treatment would instead be allowed to progress.

In contrast to the comments describing the pressures on employees not to report MSDs, a number of parties were concerned that the proposed prohibition on policies or practices could inadvertently eliminate widely accepted, sensible, and successful safety practices. Many commenters indicated concern that the proposed prohibition on policies or practices that discourage worker reporting could be interpreted to eliminate demonstrably successful employee incentive programs (see, e.g., Exs. 30-3765, 32-368-1, 30-656, 30-1048, 30-1070, 30-1349, 30-1551, 30-1567, 30-1616, 30-1652, 30-1671, 30-1901, 30-2038, 30-2050, 30-2061, 30-2499, 30-2514, 30-2799, 30-2811, 30-2812, 30-2814, 30-2815, 30-2846, 30-2988, 30-2990, 30-3086, 30-3174, 30-3177, 30-3336, 30-3349, 30-3353, 30-3354, 30-3678, 30-3721, 30-3736, 30-3745, 30-3819, 30-3848, 30-3951, 30-4122, 30-4185, 30-4334, 30-4496, 30-4540, 30-4607, 30-4674, 30-4702, 30-4818, 30-4822, 30-4839, 30-4843, 31-310, 32-21-1, 32-82-1, 32-120-1, Tr. 10445, Tr. 11502, Tr. 12857, Tr. 16924, Tr. 17461, Tr. 17483, 30-4340, 500-1-28, 500-1-29, 500-1-42, 500-1-69, 500-1-70, 500-1-79, 500-1-86, 500-1-95, 500-1-106, 500-1-112, 500-1-113, 500-1-114, 500-1-136, 500-1-147, 500-1-181, 500-1-117, 500-1-119, 500-1-121, 500-1-124, 500-1-125, 500-1-127, 500-1-135, 500-1-137, 500-1-152, 500-1-193, 500-1-442, 32-258-2, 30-911, 30-1942, 30-3236, 30-3339, 500-219, 601-x-1710, 601-x-1711, 30-4527, 30-980, 30-2668, 30-4565, 30-3847, 30-2684, L30-4985, 30-4029, 30-4335, 30-4443, 30-1004, 30-1010, 30-1017, 30-1025, 30-1027, 30-1035, 30-1038, 30-1042, 30-1044, 30-1045, 30-1079, 30-1080, 30-1089, 30-1099, 30-1163, 30-1164, 30-1401, 30-1403, 30-1423, 30-1424, 30-1436, 30-1440, 30-1455, 30-1460, 30-1463, 30-1495, 30-1497, 30-1566, 30-1658, 30-1659, 30-1674, 30-1675, 30-1682, 30-1684, 30-1685, 30-1686, 30-1687, 30-1688, 30-1689, 30-1690, 30-1691, 30-1916, 30-2124, 30-2126, 30-2234, 30-2235, 30-2236, 30-2237, 30-2275, 30-2279, 30-2311, 30-2369, 30-2376, 30-2588, 30-2673, 30-2674, 30-2768, 30-2850, 30-2925, 30-3002, 30-3042, 30-3044, 30-3080, 30-3083, 30-3087, 30-3229, 30-3380, 30-344, 30-346, 30-3822, 30-3985, 30-3988, 30-4037, 30-4059, 30-4507, 30-4770, 30-4841, 30-5044, 30-5106, 30-634, 30-636, 30-638, 30-643, 30-649, 30-871, 30-883, 30-891, 30-903, 30-905, 30-918, 30-978, 30-994, 30-995, 600-x-10, 600-x-11, 600-x-12, 600-x-13, 600-x-45, 600-x-46, 600-x-5, 600-x-6, 600-x-7, 600-x-9, 601-x-1358, 601-x-1363, 601-x-1364, 601-x-1365, 601-x-1366, 601-x-1367, 30-1416, 30-1453, 30-1457, 30-1616, 30-1998, 30-1999, 30-2131, 30-2142, 30-2184, 30-2233, 30-2250, 30-2304, 30-2395, 30-2396, 30-2423, 30-2431, 30-2736, 30-2829, 30-2889, 30-2891, 30-2992, 30-3003, 30-3254, 30-3334, 30-3393, 30-3551, 30-3597, 30-3791, 30-3882, 30-3936, 30-3944, 30-3974, 30-3977, 30-3999, 30-4464, 30-4532, 30-4539, 30-4544, 30-4629, 30-4657, 30-4667, 30-4669, 30-4980, 30-5034, 30-5076, 30-5095, 30-5101, L30-4952, L30-4953, L30-5096).

Caterpillar Inc., for instance, attested to the favorable impact of incentive programs in that firm:

Incentive programs have always been an excellent vehicle to raise awareness, communicate various issues throughout the workplace and show employer concern about employee safety. While OSHA considers these programs to be disincentives [to the reporting of MSDs and MSD signs and symptoms], our experience shows that they have positive benefits. By increasing awareness and rewarding safe behaviors through incentive programs, employers have seen a reduction in all injury categories (Ex. 30-4607).

Nothing in this final rule would prohibit incentive or award programs. The obligation that an employer would have, should they chose to adopt an incentive program, would be to ensure that the incentive program did not discourage the reporting of MSDs, MSD signs and symptoms, or MSD hazards, or discourage participation in the ergonomics program. As explained previously, OSHA's concern is that discouraging full reporting and participation in the ergonomics program will diminish the effectiveness of the program.

Although incentive programs that are successful in promoting workplace safety can be expected to result in a reduction in the number of injuries reported, an unsuccessful program that does not improve workplace safety can also result in fewer reported injuries. When the yardstick for measuring the success of the program is only the number of injuries reported, the program can distort the true state of affairs and preclude early intervention by inducing employees to avoid reporting their injuries. This problem is particularly critical with regard to MSD signs and symptoms, where early intervention can be of great importance. OSHA encourages employers to focus any incentives on safe work practices, active participation in safety programs, and identification of hazards in the workplace. By doing so, the root causes of injuries and illnesses can be addressed, and a safer workplace can be Start Printed Page 68324created. The Incentive Federation described the types of activities that a safety incentive program can target, rather than using the number or rate of reported injuries as its objective:

* * * a good safety incentive program often focuses on proactive behavior. For example, it might encourage employees to make safety suggestions, attend safety meetings, promote safety awareness, participate in safety inspections, report safe behavior, report near misses, and so forth. In addition, self-directed safety teams, where employees observe each other at work and report good and bad safety conduct (without necessarily using the names of the specific employees), encourage safe behavior. Encouraging this type of employee participation is extremely useful, because employees are reasonably objective in observing their peers, and they report good and bad behavior. The conduct observed can then be included in periodic reports or reviewed in safety meetings to stress safe behavior. (Ex. 30-1100).

Drug testing programs, when applied to all workers who report MSDs, were also said to hinder full reporting of injuries. Chuck Monohan of the International Brotherhood of Electrical Workers explained that a fear of false positive results was responsible for non-reporting (Tr. 7378). Other commenters also discussed the chilling effect that drug testing programs can have on reporting injuries (Tr. 5997, Tr. 13869, Tr. 17509)

A large number of commenters expressed concern that the proposed prohibition on policies or practices that discourage worker reporting could be interpreted to eliminate widely accepted drug testing policies (see, e.g., Exs. 30-536, 30-2208, 32-368-1, 30-3765, 30-419, 30-519, 30-1012, 30-1048, 30-1070, 30-1261, 30-1332, 30-1348, 30-1349, 30-1358, 30-1536, 30-1551, 30-1567, 30-1616, 30-1652, 30-1671, 30-1901, 30-2050, 30-2061, 30-2499, 30-2514, 30-2645, 30-2675, 30-2799, 30-2811, 30-2812, 30-2814, 30-2815, 30-2988, 30-2990, 30-3174, 30-3177, 30-3348, 30-3349, 30-3353, 30-3356, 30-3359, 30-3721, 30-3723, 30-3736, 30-3745, 30-3819, 30-3951, 30-4046, 30-4122, 30-4567, 30-4607, 30-4628, 30-4674, 30-4702, 30-4713, 30-4818, 30-4822, 30-4839, 30-4844, 31-282, 31-298, 31-310, 32-335, Tr. 4335, Tr. 4909, Tr. 6112, Tr. 8350, Tr. 9190, Tr. 10444, Tr. 12857, Tr. 12958, Tr. 15621, Tr. 15644, Tr. 15976, Tr. 17461, Tr. 17483, 30-3725, 30-4340, 30-4146, 500-1-28, 500-1-42, 500-1-69, 500-1-70, 500-1-79, 500-1-86, 500-1-95, 500-1-106, 500-1-112, 500-1-113, 500-1-114, 500-1-136, 500-1-140, 500-1-147, 500-1-181, 500-1-185, 500-1-117, 500-1-119, 500-1-121, 500-1-124, 500-1-125, 500-1-127, 500-1-135, 500-1-137, 500-1-152, 500-1-193, 500-1-411, 500-1-384, 500-1-385, 500-1-386, 500-1-413, 500-1-423, 500-1-442, 500-16, 500-52, 500-23-1, 32-258-2, 30-904, 30-911, 30-1942, 30-3236, 30-3339, 500-219, 30-4550, 601-x-1711, 30-1363, 30-4248, 30-4778, 30-2455, 30-4527, 30-2668, 30-4565, 30-3847, 30-2684, L30-4985, 30-3472, 30-3582, 30-4029, 30-4335, 30-4443, 30-4475, 30-4528, 30-4688, 30-1004, 30-1010, 30-1017, 30-1025, 30-1027, 30-1035, 30-1038, 30-1042, 30-1044, 30-1045, 30-1079, 30-1080, 30-1089, 30-1099, 30-1163, 30-1164, 30-1401, 30-1403, 30-1423, 30-1424, 30-1436, 30-1440, 30-1455, 30-1460, 30-1463, 30-1495, 30-1497, 30-1566, 30-1658, 30-1659, 30-1674, 30-1675, 30-1682, 30-1684, 30-1685, 30-1686, 30-1687, 30-1688, 30-1689, 30-1690, 30-1691, 30-1916, 30-2124, 30-2126, 30-2234, 30-2235, 30-2236, 30-2237, 30-2275, 30-2279, 30-2311, 30-2369, 30-2376, 30-2588, 30-2673, 30-2674, 30-2768, 30-2850, 30-2925, 30-3002, 30-3042, 30-3044, 30-3080, 30-3083, 30-3087, 30-3229, 30-3380, 30-344, 30-346, 30-3822, 30-3985, 30-3988, 30-4037, 30-4059, 30-4507, 30-4770, 30-4841, 30-5044, 30-5106, 30-634, 30-636, 30-638, 30-643, 30-649, 30-871, 30-883, 30-891, 30-903, 30-905, 30-918, 30-978, 30-994, 30-995, 600-x-10, 600-x-11, 600-x-12, 600-x-13, 600-x-45, 600-x-46, 600-x-5, 600-x-6, 600-x-7, 600-x-9, 601-x-1358, 601-x-1363, 601-x-1364, 601-x-1365, 601-x-1366, 601-x-1367, 30-2410, 30-2289, 30-3877, 30-2601, 30-3160, 30-3598, 30-2912, 30-1332, L30-5025, 30-4280, 30-1416, 30-1453, 30-1457, 30-1616, 30-1998, 30-1999, 30-2131, 30-2142, 30-2184, 30-2233, 30-2250, 30-2304, 30-2395, 30-2396, 30-2423, 30-2431, 30-2736, 30-2829, 30-2889, 30-2891, 30-2992, 30-3003, 30-3254, 30-3334, 30-3393, 30-3551, 30-3597, 30-3791, 30-3882, 30-3936, 30-3944, 30-3974, 30-3977, 30-3999, 30-4464, 30-4532, 30-4539, 30-4544, 30-4629, 30-4657, 30-4667, 30-4669, 30-4980, 30-5034, 30-5076, 30-5095, 30-5101, L30-4952, L30-4953, L30-5096).

The sentiment that the contribution of drug-testing programs to workplace safety should not be compromised by the requirements of the ergonomics standard was expressed by Food Distributors International:

In the view of FDI and its members, the possibility that some individuals will feel constrained to avoid reporting workplace injuries or accidents because of a drug test requirement that might be triggered is not an overriding concern. These fears largely will relate only to those whose drug use may be discovered, and their protection should not be the goal of a major OSHA regulatory scheme. In addition, any such inhibiting effect is more than outweighed by the workplace accidents and injuries that are avoided through maintenance of an effective drug-free workplace program (Ex. 30-3819)

OSHA is not aware of any basis for concluding that the development of MSDs is in any way associated with the use of drugs or alcohol. The reporting of MSDs or MSD signs and symptoms covered under this rule, therefore, cannot be considered by itself to provide any justification for testing. Although subjecting all parties reporting injuries or all OSHA recordable cases to testing has sometimes been used by employers as a matter of administrative convenience in identifying individuals for testing, the lack of a relationship between drug or alcohol use and the MSDs covered by this rule, along with the detrimental effect on reporting behavior that testing can have, combine to make this an inappropriate practice where MSDs are concerned.

Furthermore, there is no evidence that drug tests discourage workers from reporting injuries only if they fear that drug use will be discovered. Adrienne Markowitz of the UFCW described a poultry processing plant where workers who reported pain in the hands and wrists were required to be tested for illegal drugs:

This is a church going and religious community. Most people were not worried that drugs would be found because they didn't take them. But they weren't happy with having to suffer the indignities of having someone watch them urinate, were afraid that inaccurate testing and laboratory practices [would erroneously indicate illegal drug use], were concerned that the medications they took would show up as illegal drugs, and [were] fearful that the company supervisors would doctor the records. Many, for the reasons I have just stated, refused to take the test and were fired. And many others just never reported their illnesses (Tr. 5998).

This rule does not in any way prevent an employer from conducting testing if it is required by law, is based on reasonable suspicion, is part of the job application process, is part of routine fitness-for duty examination, is done as follow-up after entering an employee assistance or drug rehabilitation program, or is administered to assist in post-accident investigation. A blanket policy that requires all employees reporting MSDs or signs and symptoms of MSDs to submit to drug or alcohol testing, however, would hinder the effectiveness of the ergonomics program if such a policy results in underreporting.

Nor is the fear that a back injury or other MSD may be the result of an accident caused by drug or alcohol use Start Printed Page 68325a reason for testing employees for drugs when reporting an MSD or MSD signs or symptoms. As stated in paragraph (a), this standard does not address injuries caused by slips, trips, falls, vehicle accidents, or other similar accidents. The standard addresses injuries that are the result of exposure to force, repetition, awkward postures, vibration, and contact stress. Injuries covered by the standard are commonly associated with prolonged or excessive exposures to these ergonomic risk factors. There is no reason to believe that drugs or alcohol have any relevance to the development of these conditions and certainly no evidence that impairment at the time of reporting has any relevance. Simply reporting MSD signs and symptoms therefore cannot be viewed as a legitimate reason to suspect drug or alcohol abuse.

Some commenters argued that if an ergonomics standard did restrict drug testing programs, this could conflict with regulatory requirements of the Department of Transportation or Nuclear Regulatory Commission, or with policies established through collective bargaining (see, e.g., Exs. 30-3853, 30-3765, 30-1070, 30-1332, 30-1671, 30-3284, 30-3359, 32-335, Tr. 15621, 500-1-28, 30-4527, 30-4029, 30-4475, 30-4248). Restrictions on drug testing were also said to conflict with requirements for companies with government contracts (see, e.g., Exs. 601-x-1711, 30-4475).

Language in the proposal that could affect certain employer drug testing policies was said to conflict with state workers' compensation laws, and thus violate Section 4(b)(4) of the Occupational Safety and Health Act. State workers' compensation laws, it was said, may require drug testing in certain instances, allow reduced insurance premiums for those employers with testing programs, or allow impairment to be used as a defense in contesting compensation claims (see, e.g., Exs. 500-104, 500-104-1).

It was argued that restrictions on drug testing programs could result in liability claims against those employers whose employees acted in an unsafe manner due to impairment. The New Mexico Self Insurers Fund stated:

OSHA may have had the best intentions when writing the preamble, however if state and local government municipal employers were to neglect the possibility that alcohol and drug use was a factor in an injury, whether or not it is an MSD, municipal liability would rise exponentially. The bottom line is that many local governments would not be immune from lawsuits where gross negligence is alleged. It would be easy to show negligence on the part of a local government that allowed “waivers” of its alcohol and drug testing ordinances for employees in order to permit full and free reporting of MSDs (Ex. 30-4810).

OSHA's concern is that testing not be conducted in a manner that penalizes individuals reporting MSDs or participating in ergonomics programs. This final rule does not restrict employers' drug or alcohol testing policies where such policies are authorized by state or federal law. It should be noted, however, that DOT regulations, which require post accident testing and testing of safety sensitive employees and under certain other circumstances, do not require drug testing when MSDs or any other type of injury or illness is reported.

Workers compensation and other state and federal laws that require drug testing following a traffic or other accident, are also not generally relevant to the application of this standard, because as explained above, MSDs resulting from accidents, slips, trips and falls are specifically exempted from this rule.

A number of employee representatives expressed the opinion that policies or practices that can discourage worker participation in the ergonomics program, such as incentive programs and post-injury drug testing, should be explicitly prohibited in the rule (see, e.g., Exs. 32-339-1, 32-111-4, 32-198-4, 32-210-2, 500-50). Absent such a prohibition, it was argued, an ergonomics standard triggered by employee reports of injury would be undermined by employers who would pressure employees to avoid reporting injuries. These commenters argued that the case-by-case determination approach described in the preamble to the proposal would be inadequate to deter practices that discourage participation and reporting, and a blanket prohibition in the rule itself is necessary.

Some parties indicated that they did not find the proposal sufficiently clear in indicating what policies or practices would be considered by OSHA to discourage worker participation in the ergonomics program (see, e.g., Exs. 30-3853, 30-4185, 32-337-1, 30-653, 30-1350, 30-2216, 30-3233, 30-3344, 32-82-1, 30-1101, 500-33). Concern was expressed that compliance would be dependent upon whether or not employees feel discouraged, and would thus be determined by the subjective perceptions of employees (see, e.g., Ex. 30-3853, 30-4247, 500-33, 32-266-1). TXU Business Services, for example, stated:

Any regulation that has provisions for employees “not feeling discouraged” would be impossible to enforce fairly. For example, identical employer conduct could be legal in one plant, or part of a plant, and illegal in another and the employer might never know it (Ex. 500-1-28).

In order to provide an objective basis for enforcement of this provision, OSHA has concluded that a pattern of underreporting must be evident in the workplace before a determination will be made that any given employer policy or practice discourages reporting of MSDs or signs and symptoms of MSDs. If underreporting or discouragement of employee participation in the ergonomics program is found at a particular establishment as a result of a records review or employee interviews, OSHA will evaluate the situation to determine if employer policies and practices have had the effect of discouraging reporting or participation in the ergonomics program. OSHA's position is that these policies and procedures are not per se illegal, but they can clearly discourage reporting and participation. If an employer has policies or procedures with this potential, the employer must ensure that these policies and procedures are not actually discouraging reporting or participation.

OSHA expects that employers will have ample opportunity to discover whether employees are being discouraged through the periodic communication that will take place under the standard. If policies and practices are determined to discourage reporting or participation, employers would need to take action to remedy this situation.

OSHA considers it important that the employer not only not discourage, but actively encourage reporting and participation in the ergonomics program. The Agency believes that this goal can be accomplished by providing information to employees about the importance of early reporting in accordance with paragraph (d), along with effective training on reporting and the ergonomics program in accordance with paragraph (t) of this final rule.

Several parties asked whether the proposed prohibition on policies or practices that discourage reporting would apply to an employer's decision as to whether or not an employee can work overtime (see, e.g., Exs. 32-368-1, 30-2208, 30-3765, 30-1671, 30-2050, 30-2499, 30-3344, 30-3348, 30-3356, 30-4628, 30-4674, 500-1-140). Withholding overtime, it was argued, may be based on a desire to prevent aggravation of the potential MSD, and limiting the employer's ability to restrict Start Printed Page 68326overtime would thus conflict with provisions in the proposed standard that allow employers to use administrative controls (Ex. 30-1671). The Association of Independent Corrugated Converters stated:

While some employers do not choose to impose such restrictions, it seems unfathomable that involuntary restrictions on some overtime work would be deemed an inappropriate management step, both before and after symptoms reported by employees are analyzed by a health care provider. The essence of some MSDs, at least in OSHA's own construct of such conditions, is that overuse in the form of “excessive” repeated exposure is the source of problems in many circumstances. It seems oddly inconsistent that on the one hand, the overall thrust of the “incremental abatement” and job re-design obligation of OSHA's full ergonomics program will focus on avoiding or reducing exposures, while on the other, an employer's judgement to limit additional exposure is retaliatory or aimed at discouraging reporting (Ex. 500-1-140).

As with incentive programs and drug and alcohol testing policies, OSHA's concern about withholding overtime is based on the discriminatory application of this practice to discourage reporting or participation in the ergonomics program. The Agency realizes that work restrictions, including limitations on the number of hours worked, are often necessary to prevent an injured employee's condition from worsening and to allow damaged tissues to recover. The provision of work restrictions, however, must be viewed separately from the reporting of MSDs and MSD signs and symptoms.

If overtime is withheld as a matter of policy simply because a report of an MSD has been made, this could have the effect of discouraging reporting. An example of such a situation would be an employee who uses a keyboard in a steady manner for eight hours per day, then works an additional two hours as a receptionist and does not perform any work involving typing or hand activity during that two hours. If this employee were to report the signs and symptoms of an MSD of the wrist, and as a matter of policy was denied the opportunity to work overtime as a receptionist but continued working eight hours at a keyboard, the effect would be to discourage reporting and would be evaluated by OSHA as described above.

OSHA does not include production incentives in the category of policies and practices that may discourage reporting or participation in the program. Mosely and Associates registered concern as to how such systems would be viewed, and expressed concern that plants may lose their competitiveness if piece rate compensation systems or production incentives are abandoned (Ex. 30-4362).

OSHA recognizes that these systems sometimes cause employees to expose themselves to MSD hazards in order to achieve higher rates of compensation. Because piece rate incentives are not directly tied to reporting or participation in the ergonomics program, however, the Agency does not view them as potential sources of discouragement to reporting and participation. With full participation in the ergonomics program, employees compensated under these systems will be provided with the protections of the ergonomics standard, including the information and training that will confer with it the ability to recognize the potential causes of MSDs and knowledge of the importance of early intervention.

Several commenters (see, e.g., Exs. 30-3853, 30-4247) argued that subjecting an employer to citation for maintaining policies or practices that discourage worker participation would be contrary to the intent of Congress. These commenters argued that, by placing a discrimination provision in Section 11(c) of the OSH Act, Congress had made clear that anti-discrimination provisions should not be included in standards. These commenters therefore believe it inappropriate for OSHA to include a discrimination provision in an ergonomics standard.

Paragraph (h)(3) of the final rule is intended to prevent employers not only from discriminating against employees for reporting and participating in the ergonomics program, but also to prevent employers from having policies that discourage employees from reporting and participating, even where no discrimination has taken place. Paragraph (h)(3) thus has a different scope than section 11(c). In addition, insofar as paragraph (h)(3) addresses discrimination, it does so as part of a broader standard that is reasonably necessary and appropriate to address a serious hazard . Nothing in Section 11(c) indicates that a standard issued in accordance with Section 6(b) may not include such a provision. Provides a different enforcement mechanism than section 11(c), and nothing in section 11(c) indicates that it is the exclusive means of addressing discriminatory policies.

Paragraph (i)—Employee Participation

Paragraph (i) sets forth the final rule's provisions regarding employee participation. It requires that employers ensure that employees and their representatives, if the employees are represented by a recognized or certified collective bargaining agent, have ways to report MSDs, MSD signs and symptoms, and MSD hazards; that employees receive prompt responses to those reports when they are made; that access to the standard and to information about MSDs and the ergonomics program be provided to employees; and that employees have ways to be involved in the development, implementation, and evaluation of the ergonomics program.

The requirements of paragraph (i) closely correspond with the requirements of the proposed employee participation section. This reflects OSHA's determination, based on evidence in the record, that the involvement of employees and their representatives in an ergonomics program is critical to the effectiveness of the program. It also reflects the support for the proposed employee participation provisions expressed by commenters.

The proposed employee participation requirements were designed to cover those circumstances where the involvement of workers was essential to the success of an ergonomics program. The duty to establish a means of reporting and to provide prompt responses to reports was included because of the vital importance of an effective reporting system to the proper function of the injury-based trigger of the standard. Access to the standard and information about the ergonomics program was considered by the Agency to be necessary for employees to participate effectively in the ergonomics program. Employee input into the development, implementation, and evaluation of ergonomic programs was considered critical to program success because of the first-hand knowledge that employees could offer regarding potential solutions to MSD hazards, the appropriate content and level of training, and the effectiveness of control measures.

The proposed provisions for employee participation generated a considerable volume of comment. Support for the concept of involving employees in the ergonomics program was widespread among commenters, and few disagreed with the proposed requirements pertaining to reporting, providing responses, and furnishing access to the standard and to information. Comment on these provisions in the context of employee participation was primarily limited to requests for clarification about how the provisions would apply in practice. Substantial differences were expressed, however, concerning the level of employee involvement appropriately included in a final standard. Start Printed Page 68327

The importance of employee participation in the successful implementation of an ergonomics program was stressed in a number of comments (see, e.g., Exs. 30-276, 30-428, 30-651, 30-3860, 30-4333, 30-4468, 32-21-1-2, 32-82-1,Tr. 3479, Tr. 6930, Tr. 3565, Tr. 5596-5597, Tr. 10202, 32-450-1-18-1, Tr. 11182, Tr. 11380, Tr. 12947, Tr. 14479, Tr. 14902, Tr. 16526, Tr. 12366, 500-29, 500-117-2, 500-177-2, 500-220, 500-215, 601-x-1587, 20-605). Mark Catlin of the Alice Hamilton Occupational Health Center, for example, stated:

Our experience has been * * * that when there is true employee involvement from beginning to end, especially in the development of solutions, that can be a great benefit in coming up with a program that works for that specific site that is cost effective and will be maintained after it is initially set up (Tr. 5597).

The advantages that the knowledge and skills of employees have lent to successful ergonomics programs were remarked upon by a number of commentors (see, e.g., Tr. 4084, Tr. 4697, Tr. 6188, Tr. 7011, Tr. 7111, Tr. 7135, Tr. 7142, Tr. 9489, Tr. 10224, Tr. 10547, Tr. 11076, Tr. 12366, Tr. 12297, Tr. 13004, Tr. 14248, Tr. 14320, 20-406, Tr. 17623). For instance, Dr. Robert McCunney of the American College of Occupational and Environmental Medicine stated:

In my experience as a physician, I have been impressed with the knowledge that a lot of workers have about their jobs and the recommendations that can be made to improve it and reduce factors associated with illness * * * [Tr. 17633].

One aspect of employee participation included in the proposal was a means for the employee to inform the employer when MSDs or MSD signs and symptoms occur. Reporting is essential to allow the employer to become aware of those job situations where further action is necessary. For example, if an employee experiences pain and stiffness in the shoulders and believes this to be the result of workplace factors, the employer cannot be expected to make changes to the workplace to mitigate the risk factors unless the employer is aware of the existence of a problem.

Belief in the importance of employee reporting of MSDs and their signs and symptoms was expressed in a number of comments on the proposed rule (see, e.g., Exs. 30-240, 30-1104, 30-2116, 30-2215, 30-2387, 30-2809, 30-3686, 30-3765, 32-77-2, 30-3813, 30-3826, 30-3849, 30-3859, 30-4185, 30-4468, 30-4538, 30-4548, 30-4562, 30-4564, 30-4837, 31-78, 31-174, 31-192, 31-227, 31-303, 31-353, 32-82-1, 32-85-3, 32-461-1, 32-111-4, 32-210-2, 32-339-1, 500-33). For example, Shipman and Goodwin LLP, on behalf of an unnamed client, stated:

Requesting that employees report signs and symptoms encourages the success of any early intervention program (Ex. 30-2215).

Comments received on this issue are presented in greater detail in the discussion of paragraph (d), which includes a requirement that employers provide information to their employees on how to report MSDs and their signs and symptoms. The ability of employees to report MSDs and MSD signs and symptoms depends upon their understanding of the reporting mechanism, and knowledge of what constitutes a possible MSD or MSD sign or symptom.

The final rule, at paragraph (h), adds “MSD hazards” to the list of things employers must ensure that employees report. OSHA believes that trained employees will be able to identify MSD hazards in their workplace before they cause MSDs, and this will result, in turn, in steps by proactive employers to protect workers at risk even before they suffer an MSD incident. The reporting of MSD hazards has therefore been added to paragraph (i)(2) of the final rule.

The specific process employers must establish for reporting MSDs, their signs and symptoms, and MSD hazards is not prescribed in this final rule. OSHA anticipates that the process will vary from workplace to workplace, based on the size and nature of the workplace. A large facility with an on-site health care professional (HCP), for example, may choose to handle reports through the HCP. Smaller facilities may elect to have reports made directly to supervisors. The method of submitting a report is likewise not specified. Employers may chose to adopt written, electronic, or other systems for receiving reports. (Note, however, that employers are required by paragraph (v) to keep records of employee reports, primarily for evaluation purposes.)

The final rule requires the employer to ensure that employees have ways “to promptly report” their MSDs, signs and symptoms, and hazards. OSHA received many comments on its use of the word “prompt” in the proposed rule (see, e.g., Exs. 30-3826, 30-3853, 30-4467, 30-3284, 30-3367, 30-4674). These commenters asked OSHA to clarify what was meant by “prompt.” OSHA is using the word to indicate that timely reporting is required; the effectiveness of the standard and the employer's program would clearly be compromised if employees did not report their problems quickly, at a time when preventive action can still be taken. A rigid time frame, however, is not specified in the rule, because the Agency recognizes that some flexibility is needed to account for the circumstances found in different workplaces. In general, OSHA believes that reports should be received within a few days in almost all cases, and the Agency expects employers to inform their employees about the importance of early reporting, as required by paragraph (d).

OSHA proposed that employers provide prompt responses to employee reports of MSD signs and symptoms to encourage reporting and provide feedback. OSHA's reasons for proposing that employer responses to reports be made promptly was that timely and good faith responses are essential to reinforcing the information exchange process. Several commenters asked for clarification of this proposed provision (see, e.g., Exs. 30-3344, 30-3367, 30-249, 30-3749). The Society for Human Resources Management, for example, asked OSHA to specify what it would consider an adequate response. The Society questioned whether OSHA would consider acknowledgment of receipt of the report, evaluation of the report, or action to prevent the condition from worsening as responses to the report. Others asked whether the response must be in writing or whether alternative methods of communication (e.g., oral) would be acceptable (see, e.g., Exs. 30-3344, 30-3367, 30-3826).

If an employee experiences persistent MSD symptoms and reports that condition to the employer but receives no response, that employee is likely to consider the ergonomics program ineffective. Such a loss of confidence in the program would clearly discourage future reporting and participation. If the employer communicates the results of evaluations made based on the report, or informs the employee of any actions that are being taken as a result, the reporting employee will better understand the process and will be more likely to participate in the future. OSHA also recognizes that employers will sometimes inform the employee that a given report requires no action, e.g., when an MSD hazard turns out, on closer examination, not to warrant further action. OSHA continues to believe that prompt responses to reports are an essential part of the communication that must occur between employers and employees in a functioning ergonomics program, and final paragraph (i)(2) reflects this conviction.

In order to provide flexibility to employers to tailor communication Start Printed Page 68328methods to the needs of a particular workplace, the method of providing a response to employees who report is not specified. Employers may chose to adopt written, electronic, or other systems for providing responses, although a record of the response must be maintained, as required by paragraph (v).

OSHA proposed to require the employer to grant employees access to the standard and to include information about the ergonomics program. OSHA proposed this requirement to ensure that employees understood what the OSHA standard required and how the employer's program worked. The program was to include assignment of responsibilities in the ergonomics program; job hazard analysis results; hazard control plans; records of the occurrence of MSDs and reports of MSD hazards; ergonomic program evaluation results; and lists of alternative duty jobs, according to the preamble to the proposed rule [64 FR65799]. This provision recognized that information is important to full employee understanding of and participation in the ergonomics program.

OSHA was requested by commenters to define more clearly what was meant by “access” to the standard (Ex. 32-337-1). The Dow Chemical Company, for example (Ex. 30-3765) felt that employers should not be required to provide employees access to the standard. Dow argued that employers were required to comply with the provisions of the rule but should not be additionally burdened by providing access to the standard. In Dow's view, employees could be confused by receiving information both on the employer's ergonomics program and the standard.

The National Coalition on Ergonomics (Ex. 32-368-1) expressed concern that the employee participation provisions of the proposed standard would require employers to provide employees with access to the employer's confidential documents, which might address personnel issues, financial issues, or safety audits. If this were the case, the Coalition argued, employees with grudges or those involved in labor disputes would be able to harass their employer by disclosing or threatening to disclose proprietary information out of context or in a fashion that might have an adverse impact on the employer. The Coalition argued that this would discourage employers from performing audits with appropriate depth and thoroughness. Concern was also expressed that employee access might jeopardize medical confidentiality. (Ex. 500-1-116).

OSHA does not believe that providing employee access to the ergonomics standard is an unreasonable burden on employers, nor that providing the standard will confuse employees. Employee access to OSHA standards that affect them is a longstanding OSHA practice (see, for example, OSHA's rule's governing lead exposure, noise exposure, and so on). Access to the standard can be provided in several forms. A printed copy of the standard may be made available, or an electronic version may be provided on CD or via internet access to OSHA's web site if employees have access to a computer. OSHA believes that the standard will not be confusing to employees because they will be trained to understand the ergonomics program in their workplace and their role in it, in accordance with paragraph (t) of the final rule. OSHA does not believe that employees will flood their employees with requests to obtain and review the final standard; instead, the Agency believes that the standard is likely to be used primarily as a reference to compare the functioning of their workplace ergonomics program with the provisions of the standard to assure that the program is functioning properly and is in compliance.

Because of the importance OSHA attaches to employee access to the standard, and the relative ease of providing it, the final rule adds the term “ready” to the original access provision. This means that whenever an employee requests access to the standard, the employer must assure that ready access is provided, i.e., that access is provided within a reasonable time and place.

Because of the importance OSHA places on employees being able to easily understand the requirements of the standard, the final rule requires employers to provide employees with a copy of the summary of the standard that is required to be made accessible in paragraph (d). Although the employer is required in paragraph (d) to make this information available to employees when they start a job, the employee should receive the summary at the time the program is implemented due to the fact that the exposures in the employees job have now been shown to exceed the levels in the Basic Screening Tool and considerable time may have passed since the employee was informed that he or she had access to this information. The summary sheet provided in Appendix B may be used for this purpose.

The Agency is also not persuaded by arguments that confidential company information or medical records would be distributed if employers provide employee access to information about the ergonomics program. The proposal specifically stated [64 FR 65799], and OSHA reiterates here, that information of a personal nature such as the medical records of other employees, is not included in the information to which employees are required to have access. Records of the occurrence of MSDs, for example, can be presented in a general form and do not need to include personal details. General injury and illness information is already available to employees under the provisions of 29 CFR 1904.7 with regard to the Log and Summary of recordable occupational injuries and illnesses.

OSHA also is not convinced by comments suggesting that proprietary information would be revealed if employees have access to program information. The information required to be made available, on request, is general information. For example, although an employee's detailed process and production plans might be trade secrets, the information required by this provision relates only to the control of ergonomic hazards. Technical information regarding machinery or production methods is clearly not required to be provided. Reports of MSD hazards and job hazard analysis results are not confidential and are critical information for employees if they are to participate meaningfully in the ergonomics program.

Providing employees with basic information about the common kinds of MSDs and their signs and symptoms is required by paragraph (d) of the final rule. The comments pertaining to this paragraph can be found in the summary and explanation for paragraph (d). OSHA has decided that information on MSDs and their signs and symptoms is so basic, and so important to employees, that it must be provided as part of employee participation as well. The final rule's employee participation provisions are only triggered when MSD incidents have been reported in a job that meets the action trigger. This means that the employees covered by final paragraph (i) are those who work in higher-risk jobs; these employees clearly need to be informed about MSDs and their signs and symptoms. Thus paragraph (i)(3) requires employers to inform their employees with, at a minimum, the information sheet in non-mandatory Appendix A. OSHA believes that most employers will choose to provide more detailed and specific information, such as information about the MSDs and signs and symptoms occurring among employees in jobs in their establishment. Start Printed Page 68329

The fourth component of the proposed employee participation section was a broad requirement that “ways to be involved in developing, implementing and evaluating each element of the ergonomics program” be provided to employees. This component, as explained in the preamble to the proposal, was designed to allow employers to take advantage of the knowledge, skills, and abilities that workers could contribute to the ergonomics program.

The United Steelworkers concurred with OSHA's initial assessment that employee involvement in each element of the ergonomics program was appropriate. The union stated:

Workers and their representatives have to be involved in all aspects of the introduction and implementation of an ergonomics program in [the] workplace. After all, it is their bodies and lives that are on the line (Ex. Tr. 11047).

Vagueness was a concern of some commenters. A number of interested parties indicated that they did not understand what level of employee involvement would be required under the proposed standard (see, e.g., Exs. 30-3344, 30-3848, 30-4607, 30-4674, 30-4713, Tr. 4372). These commenters stated that the proposal did not make it clear whether an employer would have unlawfully limited employee participation if, for example, employee suggestions for ergonomics improvements were rejected (see, e.g., Exs. 32-78-1, 30-4467, 30-541, 30-627, 30-652, 30-1355, 30-1697, 30-1717, 30-4843, 601-x-1710). These participants argued that employers should not be required to follow the recommendations of employees or obtain their concurrence on a course of action, and should retain the authority to make all final decisions about compliance with the requirements of the standard (see, e.g., Exs. 30-3934, 30-2208).

Some industry representatives stated that the level of employee involvement proposed by the requirement that employers involve employees in developing, implementing and evaluating each element of the program was excessive (see, e.g., Exs. 32-368-1, 32-78-1, 30-4467, 30-240, 30-276, 30-368, 30-429, 30-434, 30-541, 30-562, 30-652, 30-1070, 30-1294, 30-1671, 30-2830, 30-2846, 30-2991, 30-3344, 30-3348, 30-3784, 30-3951, 30-4185, 30-4713, 32-21-1, 32-120-1, Tr. 11679, 500-33, 30-3744). In the view of these commenters, OSHA did not demonstrate that this level of employee involvement was necessary for an effective ergonomics program (see, e.g., Exs. 32-78-1, 30-4467, 30-541, 30-627, 30-1355, 30-1545, 30-1697, 30-1717, 30-2830). Employee involvement, although commonly acknowledged as often beneficial, was not needed in every situation, and should therefore not be mandated, according to these commenters. For example, Dr. Kurt Hegmann stated:

Hazard remediation efforts are frequently enhanced and accelerated with employee participation since the ones doing the work 40 hours a week have often thought of the most effective solution. Yet, requiring employee participation in this and other aspects of the rule is inappropriate, as these assumptions are not always true [Ex. 30-4779].

Employee involvement in supervisory training or the evaluation of management leadership, for example, were cited as program elements where employee involvement was not considered necessary (Ex. 32-78-1). In its comments on employee participation, the American College of Occupational and Environmental Medicine stated:

* * * employee participation in the design, modification, and evaluation of all aspects of an employer's operation is unnecessary. In most facilities, manufacturing or industrial engineers effectively perform many aspects of their jobs without employee participation. OSHA's requirement for employee participation should be limited to participation on ergonomics teams and participation in the job-specific problem solving process [Ex. 30-4468].

Another commenter with a similar view argued that an employer who is able to eliminate MSD hazards without employee participation should not be required to consult employees (Ex. 30-4467).

Several practical problems about how the proposed requirements would actually work in different situations were also raised. Union Carbide Corporation indicated that such involvement would be difficult to implement when the ergonomics program is developed on a corporate level:

Large employers such as Union Carbide develop their ergonomic programs on a corporate basis using professional staff. Of necessity, they rely on employees to assist in implementing the program, and employee evaluation of the program is always welcome. But where programs are developed on a corporate basis, it is sometimes difficult to involve employees in that development [Ex. 30-3784].

The Whirlpool Corporation believes that adhering to the requirements of the standard would hinder the company's ability to respond to ergonomic hazards when they are first identified. Safety teams that are trained to quickly identify, assess, and fix a hazard would be supplanted by the more cumbersome process required by the standard. Whirlpool believes that the standard requires the employer to obtain input from people who may have nothing to add to the process, which would increase the time and expense involved without providing any assurance that a better solution would be found (Ex. 30-4779).

Some employers interpreted the proposed requirement that employees be involved in developing the program to mean that, where a current ergonomics program already exists, the employer would be required to develop a new program (Ex. 30-3765). The Edison Electric Institute stated that it is impossible to consistently include employee involvement in all elements of the ergonomics program, and therefore recommended that the final rule allow greater flexibility to employers and only require that employees “be provided adequate, regular opportunities to be involved in developing, implementing and evaluating appropriate elements of the program” (Ex. 500-33).

The Northwest Food Processors Association expressed concern that engaging employees and their designated representatives in the ergonomics program could be inappropriate in some cases because the ergonomic interventions they suggested might result in the elimination of jobs or otherwise negatively impact employment opportunities. The association stated that employers should be given flexibility in the final rule to determine the appropriate approach to such situations (see, e.g., Tr. 12198).

Some employers were concerned that employees could disrupt the program or decline to participate in it. These commenters believe that employee representatives may attempt to use the standard as a way to force unnecessary or costly changes for reasons unrelated to safety (see, e.g., Exs. 30-2208, 30-1294, 30-3348). The Nabisco Company was concerned that requirements for employee participation could not be met if employees were unwilling to participate in the program. The company stated:

Nabisco strongly supports the concept of employee involvement and encourages participation of employees at all levels of our organization. However, this requirement assumes that employees and their representatives will readily volunteer to participate in a management program. It has been the experience within some of our locations that union representatives do not Start Printed Page 68330always encourage employee participation in management programs [Ex. 30-4201].

A common concern expressed by employers with unionized employees was that the requirements of the proposed standard for employee involvement could serve to disrupt established collective bargaining relationships (see, e.g., Exs. 30-3853, 30-3765, 32-337-1, 30-323, 30-345, 30-538, 30-574, 30-1022, 30-1113, 30-1349, 30-1567, 30-1616, 30-1652, 30-2426, 30-2725, 30-2773, 30-3086, 30-3184, 30-3284, 30-3344, 30-3951, 31-332, 500-1-128, 32-266-1, 30-3841). Many companies and their unions, according to these commenters, have well-established contractual mechanisms for addressing employee safety and health issues. A typical example is a contract provision establishing a joint labor-management safety committee. According to the views of these commenters, requiring the employer to engage individual employees in the ergonomics program would stimulate resentment and conflict by forcing the employer to circumvent the union. PEPCO, for example, expressed this view:

PEPCO, like most utility companies, has a long-established relationship with a collective-bargaining agent that represents most of our employees (International Brotherhood of Electrical Workers, AFL-CIO). PEPCO has well-established contractual mechanisms for addressing employee safety and health issues. We have joint labor-management safety committees and include our union in accident investigations. The proposal would interfere in established relationships such as these, for in several instances, it would require the employer to deal with or involve not just the employee designated representative, but also the individual unionized employee. This places the employer in the position of having to deal apart from, or even circumventing, the union in order to avoid the risk of citation [Ex. 31-332].

Consolidated Edison Company of New York urged OSHA to address this issue by indicating that the obligations for employee involvement in the final rule could be met by affording those rights to the union (Ex. 30-2816). Alan Ferranto of the National Association of Letter Carriers, however, did not believe that collective bargaining relationships would be affected by the proposed rule:

Inevitably, when a proposal of this nature is put forth, there are those who will argue that collective bargaining will be affected. As the safety and health officer for a union which represents almost a quarter million postal employees, I'm here to say that this proposal will not affect our collective bargaining agreement with the postal service. In fact, we are satisfied that the employee involvement envisioned under OSHA's proposed ergonomic standard will complement the already agreed-upon procedures in place to address safety and health issues [Tr. 3570].

A number of labor representatives felt that the proposed requirement to involve employees and their designated representatives in developing, evaluating and implementing each element of the ergonomics program should be modified. Some parties expressed the opinion that the standard should be revised to add employee representatives to each provision where rights are granted to employees. For example, the proposed job hazard analysis provision would require the employer to ask employees whether performing the job poses physical difficulties; in the view of these commenters, this should be changed so that employees and their designated representatives should be consulted. The unions also suggested that the proposed control obligation section be revised to add designated representatives to the requirement to ask employees for control recommendations (see, e.g., Exs. 32-339-1, 32-182-1, 32-198-4, 32-210-2, Tr. 3566).

Another commonly expressed concern of the employer community was that the proposed provision that employers provide employees ways to be involved in developing, implementing and evaluating each element of the ergonomics program would conflict with provisions of the National Labor Relations Act (NLRA) or with state laws addressing labor relations (see, e.g., Exs. 30-296, 30-323, 30-328, 30-345, 30-368, 30-377, 30-397, 30-523, 30-532, 30-536, 30-380, 30-538, 30-540, 30-541, 30-562, 30-574, 30-589, 30-594, 30-598, 30-627, 30-630, 30-632, 30-648, 30-688, 30-1022, 30-1113, 30-1131, 30-1216, 30-1294, 30-1296, 30-1332, 30-1349, 30-1355, 30-1356, 30-1357, 30-1358, 30-1367, 30-1370, 30-1413, 30-1545, 30-1551, 30-1552, 30-1567, 30-1584, 30-1616, 30-1652, 30-1683, 30-1697, 30-1717, 30-1727, 30-1898, 30-1901, 30-2049, 30-2050, 30-2054, 30-2061, 30-2062, 30-2133, 30-2134, 30-2427, 30-2499, 30-2506, 30-2645, 30-2773, 30-2799, 30-2811, 30-2812, 30-2813, 30-2814, 30-2824, 30-2830, 30-2896, 30-2990, 30-3061, 30-3062, 30-3086, 30-3095, 30-3131, 30-3174, 30-3177, 30-3210, 30-3231, 30-3233, 30-3284, 30-3336, 30-3344, 30-3716, 30-3745, 30-3765, 30-3845, 30-3853, 32-337-1, 32-368-1, 30-3349, 30-3353, 30-3356, 30-3364, 30-3367, 30-3473, 30-3513, 30-3622, 30-3723, 30-3728, 30-3819, 30-3849, 30-4122, 30-4143, 30-4153, 30-4158, 30-4167, 30-4187, 30-4355, 30-4499, 30-4607, 30-4628, 30-4674, 30-4702, 30-4818, 30-4843, 31-266, 31-310, 31-332, 32-211-1, 32-234-2, Tr. 4320, Tr. 4908, Tr. 15537, Tr. 8896-8897, 30-3345, 500-1-27, 500-1-28, 500-1-29, 500-1-42, 500-1-79, 500-1-86, 500-1-106, 500-1-112, 500-1-113, 500-1-114, 500-1-116, 500-1-181, 500-1-117, 500-1-124, 500-1-125, 500-1-193, 500-1-248, 500-1-249, 500-1-307, 500-1-329, 500-1-331, 500-1-411, 500-1-423, 500-1-442, 500-177-2, 30-1942, 30-3236, 30-3339, 30-4535, 30-2600, 30-2592, 30-2577, 30-2583, 30-2256, 30-2259, 30-2201, 30-2243, 30-2260, 30-2272, 30-3428, 30-3157, 30-3158, 30-3196, 30-3623, 30-2550, 30-2543, 30-2529, 30-2535, 30-4583, 30-2896, 30-2894, 30-2886, 30-2868, 30-2863, 30-2862, 30-2854, 30-4668, 30-4302, 30-2106, 30-2404, 30-2405, 30-2407, 30-2406, 30-2412, 30-2292, 30-2293, 30-2300, 30-2287, 30-2447, 30-2370, 30-2605, 30-2614, 30-2772, 30-2791, 30-2793, 30-2828, 30-2831, 30-4058, 30-2474, 30-2487, 600-x-34, 600-x-36, 30-4762, 30-2901, 30-5036, 30-4566, 30-1971, 30-1972, 30-1973, 30-2571, 30-4541, 30-4786, 30-5027, 601-x-1370, 601-x-1698, 601-x-1712, 601-x-1439, 601-x-1440, 601-x-1441, 601-x-1442, 601-x-1444, 601-x-212, 601-x-213, 601-x-1368, 500-1-397, 30-3839, 30-4247, 30-4486, 601-x-1711, 601-x-1360, 30-3858, 30-3923, 30-4778, 30-2432, 30-3850, 30-2593, 30-3728, 30-2270, 30-1995, 30-2209, 30-3036, 30-2832, 30-2472, 30-2439, 30-2438, 30-2397, 30-2389, 30-4300, 30-4326, 30-1076, 30-4712, 30-2103, 30-3806, 30-1730, 30-1446, 30-3220, 30-3235, 30-4335, 30-4337, 30-4362, 30-4394, 30-4443, 30-4528, 30-4709, 30-1651, 30-2410, 30-2289, 30-3877, 30-2601, 30-3160, 30-3598, 30-2912, 30-1332, L30-5025, 30-4280, 30-1416, 30-1453, 30-1457, 30-1616, 30-1998, 30-1999, 30-2131, 30-2142, 30-2184, 30-2233, 30-2250, 30-2304, 30-2395, 30-2396, 30-2423, 30-2431, 30-2736, 30-2829, 30-2889, 30-2891, 30-2992, 30-3003, 30-3254, 30-3334, 30-3393, 30-3551, 30-3597, 30-3791, 30-3882, 30-3936, 30-3944, 30-3974, 30-3977, 30-3999, 30-4464, 30-4532, 30-4539, 30-4544, 30-4629, 30-4657, 30-4667, 30-4669, 30-4980, 30-5034, 30-5076, 30-5095, 30-5101, L30-4952, L30-4953, L30-5096, 30-3497, 30-1938, 30-1989, 30-2217, 30-2384, 30-2403, 30-2403, 30-2416, 30-2480, 30-2486, 30-2555, 30-2556, 30-2607, 30-2639, 30-2734, 30-2735, 30-2873, 30-2878, 30-3578, 30-3742, 30-3776, 30-4325, 30-4452, 30-4790, L30-4998). A discussion of the relationship between the requirements of this final rule and the NLRA can be found in the Legal Issues section of this preamble. Start Printed Page 68331

As has already been discussed, the potential value of employee contributions to the development, implementation, and evaluation of an ergonomics program is well-established. The intent of the proposed requirement that employees have ways to be involved in developing, implementing, and evaluating each program element was to allow employers to take advantage of this potential value to construct and administer the most effective program possible.

A requirement that employees be involved in the program in no way abrogates the authority of the employer to manage the workplace or administer the ergonomics program. Regarding employee suggestions, this general requirement of the final rule for employee involvement requires only that employers provide a reasonable opportunity for employees to be heard, for them to be involved, and for their suggestions to be fairly considered. An employee recommendation made as part of this process, in and of itself, does not oblige the employer to take action. For example, if an employer asks employees in a problem job for recommendations about eliminating or controlling MSD hazards, the employer is not compelled to adopt any of the suggestions that the employees may make. Rather, this is an opportunity for the employer to draw on the knowledge of these workers in identifying and examining alternative approaches to addressing hazards. The suggestions of employees may be used to supplement those of professional staff or consultants.

Along with the authority for making decisions, the employer retains the responsibility for ensuring the effectiveness of the program. If consultation with employees about the effectiveness of the program reveals, for example, that training has not been understood, then this deficiency must be promptly corrected (see paragraph (u) of the final rule).

OSHA realizes that the input of employees will not in every instance prove to be beneficial to the ergonomics program. Nevertheless, the evidence in the record shows that contributions to the success of ergonomics programs have consistently been made by participating employees. The involvement of employees need not be cumbersome or time-consuming. Brief discussions are often sufficient to elicit employee input.

The proposal would have required that employees have ways to be involved in developing, implementing, and evaluating each element of the ergonomics program. The final rule requires that employees be involved in developing, implementing, and evaluating the program; however, reference to “each element” of the program has been deleted. This change has been made to grant the employer flexibility to adapt employee involvement to the circumstances in a given workplace. OSHA is convinced that the proposed level of employee involvement is not practical or justified in every instance. The Agency never intended for employee involvement to pervade every aspect of the program. As explained in the preamble to the proposal, the “elements” referred to were the broad ergonomics program elements (e.g. training, program evaluation). A requirement for employee participation in each component of these elements, such as supervisory training, was not envisioned. OSHA considers, however, that even greater latitude is appropriate in order to allow the employer to most effectively construct and administer the ergonomics program. For example, a small employer could adopt a training presentation developed by a trade association even if employees in that workplace did not participate in the development of the presentation. The Agency believes, however, that such circumstances are the exception rather than the rule, and has retained the requirement for employee participation in the development, implementation, and evaluation of the ergonomics program due to the evidence of the value of worker involvement in each of these stages in the administration of the program.

OSHA considers that the development of an ergonomics program is not an event, but a continuing process. The work environment is rarely static; work methods and equipment often change over time, and as a result the physical demands upon workers and associated MSD hazards can change as well. Likewise, hazard control methods and training procedures can evolve over time. Changes in the workforce can also impact the effectiveness of an ergonomics program. The program may require adjustments to account for these changes. For example, if ergonomics training is conducted in English in a workplace where the employees speak and understand English, it may be effective. If that employer subsequently hires employees who do not understand English, an adjustment would be necessary to provide the training in a language the employees understand. Similarly, if new equipment is brought into a workplace, modifications to the ergonomics program may be necessary to control MSD hazards related to use of the new equipment or to provide appropriate training. It is in these types of situations, as well as in the initial creation of the ergonomics program, where the record demonstrates that the involvement of employees can prove invaluable.

In response to those employers who were concerned that the proposed standard would necessitate discontinuation of successful programs that did not incorporate employee involvement in their development, OSHA does not intend for the requirement in the final rule for employee participation in the development of ergonomics programs to apply retroactively to programs that have already been established. The Agency believes that such a requirement would result in an unnecessary expenditure of resources to duplicate the existing program. Rather, OSHA believes that the evaluation of the effectiveness of the existing program will result in the identification and correction of any deficiencies which may currently exist, and that employee involvement in the ongoing development of the program will result in continuous improvement in the program over time. Moreover, OSHA anticipates that the grandfather clause in paragraph (c) of this final rule will apply to many existing programs.

A successful ergonomics program also requires employee involvement in its implementation. Clearly, hazard controls cannot be effective if workers do not use them, and MSD management cannot be effective if injured workers do not report their injuries. A program cannot fulfill its objectives if it exists only on paper, and is not applied in the workplace. Ample opportunity is provided to demonstrate employee involvement in the implementation of the program through compliance with the specific requirements of the standard. For example, if a job has been found to be an MSD hazard due to repetition, and the appropriate control method has been determined to be rotating jobs so that no single employee spends more than three hours per day in that job, the employer must ensure that employees carry out the job rotation in order for it to be effective as a control measure.

Employee involvement in the evaluation of the ergonomics program is also needed to assure program effectiveness. For instance, workers in problem jobs are in the best position to determine if control measures are successfully controlling MSD hazards, or if new hazards have been created. Employees are also best able to recognize when training is inadequate Start Printed Page 68332or when opportunities for reporting of MSD hazards or MSD signs and symptoms are unsatisfactory. As with employee involvement in the implementation of the program, opportunities to demonstrate employee involvement in the evaluation of the program can be found in the specific requirements for evaluation found in the standard, such as the requirement of paragraph (m)(4) for consultation with employees regarding the effectiveness of controls and the requirement of (u)(1)(i) for consultation with employees on effectiveness and problems with the program.

OSHA does not believe that employee participation in the ergonomics program under this final rule will result in adverse repercussions on collective bargaining relationships. The final rule also does not require employers in any way to circumvent any process that may currently exist for employer communication with the employee. The rule does not specify a precise mechanism that must be used for employee participation. Where a system is already in place, such as a union/management safety and health committee, nothing in this rule prohibits an employer from using that system to meet its employee participation obligations.

Paragraph (j)—What Must I Do To Determine Whether a Job That Meets That Action Trigger Poses an MSD Hazard to Employees in That Job?

This paragraph addresses the job hazard analyses employers must perform to identify those MSD hazards that must be controlled under this final standard. Paragraph (j)(1) of the final standard requires employers with jobs that meet the standard's two-part action trigger—i.e., who have employees who have experienced an MSD incident and who work in jobs that have risk factors present at levels that meet the screen in Table W-1—to conduct a job hazard analysis of the job to determine whether it presents an MSD hazard to employees. (Employers who qualify for and choose to use the Quick Fix option contained in paragraph (o) of the standard must follow the procedures of that paragraph and are not required to conduct the job hazard analysis specified in this paragraph (j).)

Paragraph (j)(2) tells employers what steps they must include in a job hazard analysis, and paragraph (j)(3) lists the methods of job hazard analysis that are acceptable under the rule, including referring to a number of tools, included in Appendices D-1 and D-2 of the standard, that employers can use to conduct their analyses. Paragraph (j)(4) explains that if the job hazard analysis shows that hazards need to be reduced, the job is terms a “problem job” under this standard.

The proposal's job hazard analysis provisions listed the steps required to analyze a job, and contained a list of 20 physical work activities and conditions associated with particular risk factors. The proposal did not provide specific guidance on how to determine whether the risk factors presented an MSD hazard in any particular case. Several commenters argued that the proposal's approach was vague and asked for more specific measures for identifying MSD hazards (see, e.g., Exs. 500-197, 30-2435, 30-973, 30-1274, 30-2426, 30-1350, 30-2428, 30-2986, 30-3000, 30-3086, 30-3853, 30-326, 30-546, 30-4189). Others (e.g., Ex. 30-3593) thought that the requirements in the proposed job hazard analysis section were too specific, and still others stated that the table oversimplified the complex interactions between various risk factors in a job and urged OSHA to eliminate the table of physical work activities from the final rule (see, e.g., Ex. 30-3436). The argument made by several commenters was that the work activities and risk factors included in the table in the proposal would be hard for employers to identify in the workplace (see, e.g., Exs. 500-197, p. III-12, 30-3745, 30-2134, 30-2426, 30-2919).

Although some provisions in final paragraph (j) are essentially the same as the corresponding sections of the proposed rule, several have been revised in response to comments that the proposal did not provide enough information on how employers could determine whether MSD hazards were present. In particular, the inclusion of the tools in this rule provides employers with much more assistance in compliance than the job hazard analysis provisions in the proposal (proposed sections 1910.917 and 1910.918) would have, while preserving a high degree flexibility for employers who do not choose to use any of the listed tools. In addition, the final rule has been modified to allow employers additional flexibility in several aspects of the job hazard analysis process. The following discussion describes each provision of paragraph (j) of the final rule and OSHA's responses to the comments received on the proposed job hazard analysis provisions.

Paragraph (j)(1)

Paragraph (j)(1) of the final rule states that employers must conduct a job hazard analysis to determine whether a job that meets the action trigger presents an MSD hazard to employees in that job. This requirement is essentially identical to the job hazard analysis obligation in Section 1910.917 of the proposed rule. Like the proposal, the final rule does not require the employer to perform a job hazard analysis for every reported MSD, but only for those that meet screening criteria. Unlike proposed Section 1910.917, however, Paragraph (j)(1) also permits an employer to rely on a job hazard analysis that was conducted previously for the job, provided that the analysis was performed in accordance with the procedures of this paragraph (j) and is still relevant to the job (i.e., the job has not been altered in the meantime in a way likely to change or increase exposure).

The purpose of job hazard analysis is threefold: (1) To identify all the ergonomic risk factors that are associated with the job being analyzed; (2) to measure the duration, frequency and magnitude of employee exposure to these risk factors; and (3) to evaluate the risk factors identified, individually and in combination. This analysis allows employers to determine if the job poses an MSD hazard to employees, i.e., is a “problem job,” as that term is used in the standard. The results of the job analysis, which identify the extent of the risk factors present in the job, can later be used as the benchmark against which to measure the effectiveness of controls.

The NIOSH publication, Elements of Ergonomics Programs (Ex. 26-2), describes a job hazard analysis as an examination of the workplace conditions and individual elements or tasks of a job to identify and assess the risk factors that are reasonably likely to be causing or contributing to the reported MSDs. OSHA received many comments supporting its proposed approach to job hazard analysis (see, e.g., Tr. 5342, Tr. 8978, Exs. 37-1, 37-25, 500-218, 500-137-1-1). OSHA thus believes that the requirements of paragraph (j) are consistent with the objectives and steps of job hazard analysis as the process is currently applied by employers with effective ergonomics programs.

The quality of the job hazard analysis performed is critical to the success of the entire ergonomics program, as the United Auto Workers noted:

The heart of an ergonomics program is the measurement of risk factors on jobs. The presence of risk factors demonstrates that a reported MSD is related to a job or workstation, while their absence suggests the MSD arose from other causes. Risk factors predict MSDs will arise in the future, even if none are currently reported. And, reductions in risk factors indicate that a job has been improved (Ex. 500-220).

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A job hazard analysis can also rule out jobs that do not need to be controlled, and can provide employers with the information they need to prioritize their efforts on the most hazardous jobs or tasks that pose the most severe problems. Similarly, a job hazard analysis is an efficient way to help employers focus their resources on the most likely causes of a problem. For example, after analyzing a job, the employer may find that the amount of repetition is acceptable if the force and awkward posture in the job can be controlled sufficiently.

Despite these benefits, several commenters (see, e.g., Exs. 30-1393, 30-1275, 30-3061, 30-3062) were concerned that the standard's requirements for job hazard analysis would be too costly. Typical of these comments was one from the Navy Federal Credit Union:

The requirement for employers to perform job hazard analyses is extremely onerous and costly. It requires every employer to perform hazard analyses on the same or similar jobs within their industry. OSHA has already amassed a substantial amount of data on the likely causes and remedies of MSDs that occur in the workplace. The ergonomics standard should permit employers to rely on OSHA's identification of hazards and possible remedies for problem occupations (Ex. 30-1273).

Other employers, such as August Mack Environmental, Inc., disagreed, however:

I do agree that conducting a hazard analysis, if done properly and very objectively, requires significant resources. However, if the result were to find that MSD risk factors were not prevalent, and the need for full implementation of a comprehensive ergonomics program were eliminated, this [expense] could easily be justified. This is due to the estimated amount of resources required for the hazard analysis compared to the resources required to implement a formalized ergonomics program and maintain it over time (Ex. 30-240).

Other record evidence also makes clear that the cost of MSDs far exceeds the costs of controlling MSD hazards (Tr. 7122, Tr. 10225, Tr. 4811).

Similarly, some commenters also expressed concern that performing job hazard analysis could be too difficult for small companies (see, e.g., Exs. 601-x-1, 30-3469, 30-2846). However, OSHA's experience is that small companies can and do conduct these analyses effectively. For example, Wood Pro Industries in Cabool, Missouri is a VPP employer with only 100 employees. Its safety director (David Carroll, who also wears a number of other hats) began a safety and health program that identified and controlled ergonomic risk factors several years ago. The program has resulted in a decrease of almost 40% in workers' compensation costs (mostly due to reductions in MSD hazards), with premium costs declining from $103,824 to $61,000, which Mr. Carroll described as “not chicken feed for a small company” (Ex. 502-17). Based on this record, OSHA agrees with those who commented that an appropriate job hazard analysis actually limits MSD hazard control costs, either by determining that no MSD hazard is present or by identifying risk factors that, in turn, allow the company to focus on the activities that are associated with the MSD incident.

The UAW also has experience with small companies that have implemented ergonomics programs:

Employers in the many small facilities have voluntarily or through the collective bargaining process, adopted a common approach to preventing ergonomic injuries and abating ergonomic risk factors in the workplace. The program includes all components established in the proposed standard, except appropriate medical management and that can be established without hindering the established processes at the facilities (Ex. 500-220).

Other commenters argued that the proposed approach to job hazard analysis would require the employer to hire a consultant (see, e.g., Exs. 30-3783, 30-2810, 30-3336, 30-715, 30-2834). For example, the Texas Association of Business and Chamber of Commerce stated:

Because the proposed standard inadequately defines the alleged “risk factors” or “conditions or activities” or even to provide a complete list of the “conditions or activities” during which the “MSD hazards” allegedly occur, small employers will be forced to seek assistance—at substantial cost—from those with experience and knowledge in the ergonomics field. In addition, the proposed standard does not adequately explain which controls will abate particular hazards and they will again be forced, and as encouraged by OSHA, to seek expensive outside help (Ex. 30-2810).

But contrary evidence is also in the record:

I am not an ergonomist and I do not believe you need an ergonomist to do a general check on the risk factors of most jobs, that most workers, especially if you give them a framework for thinking about and analyzing their own job, can tell you where those risk factors are present, where they're not present, where they're present in large quantities versus small quantities. You do not need to be an ergonomist to do that. Many workers are extremely capable, if you give them a framework for analyzing their own jobs * * * (Tr. 13764).

A recent study in the record (Ex. 500-71-64) reports that trained workers were able, in 65 to 85% of cases, to identify the same risk factors as hired ergonomists and to successfully identify solutions.

The job hazard analysis required by Paragraph (j) of the final rule serves a very different function from the Basic Screening Tool in Table W-1 of the standard. The Basic Screening Tool is a simple hazard identification tool that can be used to identify jobs with the potential to expose workers in them to ergonomic risk factors at levels that may pose an MSD hazard. It cannot take the place of a job hazard analysis. It can only point to possible problems with the job; it takes a job hazard analysis to determine whether controls are actually necessary. A job hazard analysis identifies specific risk factors, or combinations of risk factors, that need to be controlled.

Paragraph (j)(1) also allows employers to rely on a previously conducted analysis of a job if it was performed in accord with the requirements of this paragraph, and the analysis is still relevant. This provision responds to concerns expressed by some participants that employers that the standard would require significant action every time a new MSD occurred, even if a job hazard analysis that complied with the standard had already shown that no additional controls are necessary (e.g., Ex. 30-3956). To take advantage of this provision, the employer must confirm that the job is still being performed in the same way, and that the same risk factors are still present. Any changes to the work methods or equipment may have introduced new MSD hazards, and a new job hazard analysis would then be required. Additionally, if new employees are present, the employer must make sure that no new employee is performing the job in a different way or has physical characteristics that expose that employee to risk factors not present for others. For example, a particularly tall or short employee might need to work in a more awkward position, or reach further than others in order to perform the same tasks. If that is true, the employer must analyze the job to identify the risk factors affecting that employee.

The “new employee” situation described above is one of the scenarios addressed by the Note to paragraph (j). That note allows the employer to limit the job hazard analysis (and response) to the employee who reported the MSD incident when the MSD hazard is limited only to that employee. Evidence in the record points to situations in which the physical work activities or conditions of a job pose a risk to only a single employee (see, e.g., Exs. 30-Start Printed Page 683344709, p. 6, 500-145, 30-2208). For example, a five-foot tall employee in a commercial bakery may report a back or shoulder MSD related to extended reaches involved in sorting rolls. However, other, taller, employees who have performed the job for several years do not have (and never have had) difficulty performing the physical work activities of the job. In this case, the employer could conclude, based on the job hazard analysis, that the problem is limited to the injured employee. The employer then may limit the further action required by the standard (e.g., analysis, control, training, recordkeeping, evaluation) to that employee's workstation.

A similar situation could occur where one employee is much taller than others in the same job. The tall employee reports persistent back pain that rises to the level of an MSD incident, and the employer observes that having to bend much further than the other employees to work at the work surface is likely to have caused the back problem. Allowing employers to limit the analysis and control to a single employee if the analysis reveals that the problem is unique to that employee is consistent with the approach taken by several commenters who have successful ergonomics programs (see, e.g., Exs. 30-1071, 30-3755, 30-3745). As one of these commenters reported, “we have often modified the job to fit that one individual—however, modification was not needed for co-workers at similar or identical duty stations” (Ex. 30-1071).

Paragraph (j)(2)

Paragraph (j)(2) of the final rule describes the steps the employer must take in performing the job hazard analysis. Paragraph (j)(2)(i) states that the employer must talk to the employees who perform the job, and their representatives, about tasks that may relate to the MSD incident. Paragraph (j)(2)(ii) requires the employer to observe the employees performing the job to identify the risk factors and assess the extent of their exposure (its magnitude, frequency, and duration) to those risk factors. The employer must include all of the employees performing the job, or a sample of those with the greatest exposure to risk factors, in this analysis.

According to the record (see, e.g., Exs. 26-2, 26-5, 26-1370, 37-1, 37-25) effective job hazard analyses have the following steps or activities in common:

  • Obtaining information about the specific tasks or actions the job involves;
  • Obtaining information about the job and problems in it from employees who perform the job;
  • Observing employees performing the job;
  • Identifying specific risk factors in the job; and
  • Evaluating those factors (i.e., their duration, frequency and magnitude) to determine whether they are causing or contributing to the problem.

The job hazard analysis requirements of the final rule reflect these steps. Unless the employer qualifies for and chooses the Quick Fix Option in paragraph (o), the employer must use the job hazard analysis process in this paragraph to determine whether the physical work activities and job conditions pose an MSD hazard to workers in that job. Jobs that pose an MSD hazard to employees are called “problem jobs,” and must be controlled in accordance with paragraphs (k) through (m) of this final rule.

When employers perform a comprehensive job hazard analysis, their goal is to identify those ergonomic risk factors that impose biomechanical stress on the worker and evaluate magnitude, frequency, and duration as required by paragraphs (j)(2)(ii) and (j)(3). Once the risk factors and their magnitude, frequency, and duration have been determined, the employer is required to assess whether the risk factors identified pose an MSD hazard to employees. The standard defines an MSD hazard as the “presence of risk factors in a job at a level of magnitude, frequency, and/or duration that is reasonably likely to cause MSDs that result in work restrictions or medical treatment beyond first aid.” Ergonomic risk factors are the elements of MSD hazards, and they often work synergistically. That is, jobs that have multiple risk factors pose a greater risk, all things equal, than a single risk factor.

Paragraph (j)(2)(i)

Paragraph (j)(2)(i) of the final rule requires employers to talk with employees and their representatives about the tasks the employees perform that may relate to MSDs. Much has been written about the value of employee participation in the identification of risk factors and controls at the hazard analysis stage (see, e.g., Exs. 3-232, 26-4, 26-11, 26-15, 26-18, 26-19, 26-21, 26-1370, 26-1420, 32-339-1-42, 38-32). Studies have shown substantial improvements in health and safety after participatory ergonomics programs are implements (e.g. Ex. 32-38). A comment from Johnson & Johnson sums up the opinion of many participants:

Hazards cannot be addressed efficiently without an accurate evaluation of the situation. The line employee is one of the best sources of this information * * * [those employees are] local process experts (Ex. 3-232).

The record contains considerable evidence that many employers talk to employees to get insight into the job requirements that only those who work at the job can provide (see, e.g., Exs. 30-3755, 30-3748, 500-117, 500-137-1-1, 500-137-6-1, 500-218, 500-220, Tr. 3890, 13808). These commenters stated that talking with employees is often the best way to identify the causes of the problem and to identify the most cost-effective solutions to it (see, e.g., Ex. 26-1370). One stated:

Employee participation is vital to this element. Job Safety Analysis (JSA) [another name for job hazard analysis] has been part of the safety vocabulary for many years. Many employers are working with the workers to determine the safest way to do a job. Controlling a hazard can be a productive tool in many ways. Minimize lost time; reduce training and overtime; and a positive outlook from the workplace. A worker who is set up to succeed is a productive worker. A worker who has to jury rig or perform a task that leaves him or her in discomfort at the end of every shift can not be productive for a prolonged period of time. (Ex. 500-137)

Discussions with employers who have set up ergonomics programs in response to corporate settlement agreements with OSHA also confirm the need for employee input into the job hazard analysis process (Ex. 26-1420). A number of these employers said that employees need to be involved in the analysis and control process because “no one knows the job better than the person who does it” (Ex. 26-1420, See also Ex. 3-164). Other evidence echoed this concept, confirming that employees often have the best understanding of what it takes to perform each task in a job, and thus, what parts of the job are the hardest to perform or pose the greatest difficulties: “The people that are closest to doing the work seem to come up with the best solutions.” Tr. 4697.

In addition to helping to ensure that the job hazard analysis is accurate, involving employees can make the job hazard analysis and control process more efficient, because employees can help employers pinpoint the causes of problems more quickly. Employees often come up with some of the most practical, no-cost or cost-effective, solutions (see, e.g., Ex. 26-Tr. 1370, 2136, 2582, 12297).

Some participants opposed this provision, however (see, e.g., Exs. 30-3344, 30-74, 30-3557). Several expressed concern that asking Start Printed Page 68335employees about ergonomic problems would influence the employees' response, with the result that specious problems would be identified:

This section is a regulatory “Field of Dreams.” Ask it and they will answer. Sooner or later, for reasons good, bad, or indifferent, somebody will answer “yes” [when asked if the job presents physical difficulties]. (Ex. 30-74)

Another participant was concerned that employee comments would vary from employee to employee and thus not be useful (Tr. 8861). Finally, several commenters argued that the employer and employee should not discuss the risk factors present in “normal job activities” because doing so might cause employees to feel that there should be no stress on the job (Exs. 30-3354, 30-3848).

OSHA continues to believe that employees' views add significant value to the job hazard analysis process and, in fact, that not asking employees about their perception of the tasks that may cause MSDs would be akin to performing a quality survey without involving the customer. Therefore, the final rule requires the employer to talk with the employees who perform the task when conducting this step of the job hazard analysis process.

OSHA is, moreover, providing enough flexibility in this provision to accommodate employers' concerns. OSHA is not requiring employers to use any particular method to talk with employees about the tasks they perform. Employers may do something as simple as talking with employees informally while observing the job being performed, or they may choose to talk with employees as part of a regular staff or production meeting. Alternatively, employers may have affected employees fill out a survey form or questionnaire. Many employers have developed effective tools for gathering important job information from employees who do the job. For example:

AMP Inc., a manufacturer of electronic components, with 300 employees, uses a one-page “Ergonomic Evaluation Form” that asks employees to answer simple “yes/no” questions about the employee's ease and comfort when performing certain job tasks. After the company's ergonomic team (comprised of line employees) reviews the form, a member of the team interviews the employee. (Ex. 26-5).

In addition, there are ways to ask questions that respond to the concerns expressed above. The questions may be posed to minimize bias. For example, questions like “Are parts of your job more difficult than others?”, “Does your injury hurt more when performing certain tasks?”, or “Could you recommend improvements to the job?” tend to elicit useful information and do not prejudge the answer (Exs. 32-339-1-82, 500-121-61). In any event, the employee input is only one aspect of the job hazard analysis. The employer need not place great weight on the views of a single employee when those views are inconsistent with the rest of the information obtained during the analysis.

The final rule adds the language “and employee representatives” to this provision consistent with the practice in the rest of the rule to include the “employee representative” language included in each provision of the standard where OSHA is requiring such participation. The proposal took a more general approach to this issue, i.e., it would have required employers to decide when including employee representatives was important in “developing, implementing, and evaluating the employer's program” (64 FR 66070).

A few commenters also stated that the appropriate focus for a job hazard analysis is the task rather than the job and objected to OSHA's use, in the proposal, of the word “job” in connection with the component to be analyzed in a job hazard analysis (see, e.g., Exs. 32-300-1, 30-3755). OSHA agrees, and the language of the final rule uses “tasks” instead of “jobs” when referring to the units of analysis in this process.

Paragraph (j)(2)(ii) requires employers to observe the employees performing the job to identify the risk factors in the job, and to evaluate the magnitude, frequency, and duration of exposure to these risk factors. Job observation allows the employer to see how the employee does the job and provides information about the workstation layout, tools, methods, equipment and general environmental conditions in the workplace. A number of commenters recognized the value of this step (Ex. 30-3755). This paragraph of the final rule combines paragraphs (c) and (d) of proposed section 1910.918. Observing the employees at work is important because it allows employers to see precisely which tasks may be imposing biomechanical stress on the worker. Observation is a necessary addition to the discussion required by paragraph (j)(2)(i) because some things may be overlooked in the discussion, or employees may not remember to mention certain activities (particularly those that are short term).

There are several ways employers may comply with the observation requirement in paragraph (j)(2)(ii) of the standard, and participants described how they integrate job observations into their job hazard analysis (see, e.g., Tr. 8171, Tr. 11133). First, employers may simply observe employees perform the job tasks; this is often all it takes to identify the problem. For example, watching a data processor reaching to use the mouse because the keyboard tray is not long enough to accommodate it may be all it takes to identify the likely cause of the employee's shoulder pain. Videotaping the job is another common practice for observing jobs (see, e.g., Ex. 32-198-4). A number of employers, especially in situations where the work activities are complex or the causes of the problem not be easily identifiable, report that they videotape or photograph the job (see, e.g., Ex. 26-1370; Tr. 3059, 4696, 6979, 7075, 5805, 5540, 10183).

The value of simply looking at people performing a job was demonstrated graphically at the hearing. A law firm representing a number of participants showed several ergonomist witnesses pictures of two workers seated at computer workstations (Ex. DC 42), and asked the witnesses to identify the risk factors observable in the photo. Virtually all of the witnesses (Tr. 1754, Tr. 1756, Tr. 2249, Tr. 2325-2327, Tr. 5397, Tr. 9045, Tr. 13228, Tr. 13235, Tr. 13307, Tr. 13762) explained that it would normally be necessary to ask the employees in the jobs reflected in the photos pertinent facts about the job before being able to determine with any certainty whether the exposure represented in the snapshot posed an MSD hazard to the worker:

Well, again, it would go back to what they were doing. If they were doing this job for a long period of time (Tr. 928).

Nonetheless, when pressed to give the best answer possible based on the limited amount of available evidence, the witnesses reviewing the photos were surprisingly consistent in their identification of ergonomic risk factors across witnesses. The table below summarizes the witnesses' responses to the snapshot. Start Printed Page 68336

Risk factors—shorter workerIdentified byRisk factors—taller workerIdentified by
Contact StressArmstrong (TR. 928), Alexander (TR. 2249), Fernandez (TR. 5384), LeGrande (TR. 9047), Brossard (TR. 13221), Robbins (TR. 1362)Awkward neck postureArmstrong (TR. 929), Alexander (TR. 2250), Fernandez (TR. 5380), Brossard (TR. 13228), Rich (TR. 9590).
Static PostureArmstrong (TR. 928), Fernandez (TR. 5384), LeGrande (TR. 4096), Rich (TR. 9592)Static postureFernandez (TR. 5380), Rich (TR. (9592).
Awkward neck postureAlexander (TR. 2250), Fernandez (TR. 5385), Brossard (TR. 13224)Awkward wrist postureRich (TR. 9598).
Awkward back postureLeGrande (TR. 4096), Brossard (TR. 13225), Rich (TR. 9601)Awkward back postureBrossard (TR. 13227).
Awkward knee postureFernandez (TR. 5381), Brossard (TR. 13226), Rich (TR. 9596).
Contact StressBrossard (TR. 13230).

Although the participants who questioned these experts later claimed that the exchanges demonstrated “erratic inconsistency” in the identification of MSD hazards among OSHA's own experts (Ex. 500-197 at II-23), OSHA believes they show just the opposite: that it is often possible to identify risk factors easily even with only limited knowledge of the employee's activities. If the witnesses had had access to the extra information they all agreed was necessary, OSHA expects that there answers would have demonstrated much more uniformity.

“Same Jobs”

Paragraph (j)(2) of the final rule requires that employers include in the job hazard analysis (and control process) not only the injured employee's individual job but also all other jobs in the establishment that are the “same” as that job. “Same jobs” are jobs that involve the same physical work activities and tasks as the job that the injured employee performs, regardless of their job title or classification. (See the definition of “job” in paragraph (z)). All same jobs in the establishment must be included in the job hazard analysis and control process, even if they are performed at different locations or on different shifts. The standard, however, does not require employers to apply the job hazard analysis and control process to same jobs in other establishments.

The proposed rule contained an analogous provision, which a number of commenters supported (Exs. 30-4200, 500-215, Tr. 12894). For example, Suzanne Rodgers, a nationally recognized ergonomist who has been helping companies to develop effective ergonomics programs for more than 32 years, wrote in Occupational Medicine:

The questions asked on site will give a good appreciation of the overall demands of the job * * * It is important, therefore, to look at more than one person doing the job, so individual methods can be assessed and the degree of individual control is known (Ex. 500-121-61).

Other commenters, however, objected to including all same jobs in the analysis (Exs. 30-2208, 30-3765, 500-145). For instance, Larry Feeler, a physical therapist and president of WorkSTEPS, Inc., said that including all same jobs would be too burdensome and costly for employers (Ex. 500-145). And P.J. Edington, of the Center for Office Technology, was concerned that it would be difficult for some employers to determine whether employees were performing the “same job” and that OSHA compliance officers might mistakenly classify all office work jobs as the “same job” (Ex. 30-2208; see also Ex. 500-197). Some commenters urged OSHA to limit the job hazard analysis requirement only to the injured employee's individual job (see, e.g., Exs. 500-145, 30-2208), or only to other employees on the same shift (see, e.g., 30-3765).

For several reasons, OSHA believes the requirement to analyze other jobs that are the same as that in which an MSD incident occurred is necessary to the final rule. At the same time, OSHA acknowledges the commenters' concerns and has included additional explanation and examples of “same jobs” in this preamble section, as well as providing flexibility for employers who have a large number of employees in the same job. The requirement is important because it helps to make the final rule more proactive and preventive. It ensures that employees performing the same physical work activities or tasks as someone who already has been injured are provided with protection before they too are hurt. As one commenter put it, the first injured employee may well be a “harbinger” of other MSDs among employees in the same job (Ex. 30-3755).

Second, it is likely that other employees performing the same job will need protection since the job has already been shown to involve exposure levels that are associated with increased risks of injury. As explained in the discussion of paragraph (f), jobs that meet the Basic Screening Tool generally pose a risk of MSDs that is three times higher than jobs that do not. Third, the requirement is necessary to ensure that employers have complete information about the hazards in the job. If the job hazard analysis is limited to the injured employee's job, employers may not get the information necessary to identify the causes of the problem accurately. Without this information, the control measures employers implement might not be successful in controlling or reducing the hazards to the required levels.

In any event, OSHA believes that the “same job” requirement will not impose undue burdens on employers. As the Note to this paragraph explains, like the proposal, the requirement does not apply where employers have reason to believe that an MSD hazard only poses a risk to the employee who experienced the MSD incident. Commenters generally supported this limitation (Exs. 30-4540, 30-1353, 500-145). Similarly, where employers have reason to believe that MSD hazards are present in only a subset of the same jobs, then employers would be permitted to limit their response to that group. For example, where it is clear that the size or width of the grip on a knife poses a hazard only for employees with small hands (i.e., need for high hand force in order to hold knife), the employer would be free to limit the analysis to employees with small hands.

In addition, in most establishments, relatively few employees perform the same job. This is especially true for small employers. However, even where many employees at an establishment perform the same job (e.g., telephone operators, letter sorters, package sorters, package delivery, beverage delivery, trash collectors, janitors, hotel maids), Start Printed Page 68337the final rule gives employers the option of including only a sample of those employees in the analysis.

Some commenters asked OSHA to clarify when jobs are the same (see, e.g., Ex. 30-3784). Jobs are the same when workers perform the same physical work activities or same job tasks. Employees perform the same job when the discrete elements or physical actions they perform are the same, even if not every aspect of their jobs is identical. For example,

  • Employees whose jobs involve picking up packages from one conveyor and putting them onto another are performing the same job, even if the packages contain different products, or are placed on different conveyors.
  • Orderlies whose job tasks involve lifting and moving patients have the same job even though some characteristics of the patients, room layout and the purpose of the lift or move may vary each time.
  • Garbage collectors who pick up trash cans and recycle bins, and dump their contents into the garbage truck, have the same job even though their routes are not identical (e.g., variations in terrain, traffic, distance from residences).

On the other hand, just because the workstations, tools and equipment employees use is the same does not mean that these employees have the same job. For example:

  • Employees who use VDTs do not have the same job where one employee's job involves steady typing for most of the workday while the other employee uses the VDT to read and send electronic messages for only a few hours a day.
  • Employees in an automotive assembly plant who use glue guns or staple guns do not necessarily have the same job if they are assembling different aspects of the product (installing seats versus windshields), particularly if they use the tools in different ways, with different force, and in different positions.

For purposes of this standard, job titles or classifications do not determine whether employees are in the same job. Where employees are performing the same physical work activities or tasks, they are in the same job even if they have different job titles. Often jobs involving the same physical work activities may have different job titles if there are working supervisors, some kinds of seniority systems, or different work shifts. For example, a “Fabricator II” on the third shift may be performing the same physical work activities as a “Junior Fabricator II” or “Apprentice Fabricator” on the first shift.

At the same time, just because employees have the same job title does not mean that the employer must include them in the job hazard analysis if the job tasks are not the same. This is especially true when employers have general job classifications, such as office worker, assembly line workers, production staff. “Office workers” may be assigned to tasks as varied as answering phones, operating copy machines, filing, or typing. If the MSD incident affected an office worker typing documents, the employer would only need to include in the job hazard analysis other office workers whose work task is to type documents. Likewise, “lineworkers” or “production workers” in a poultry processing plant may perform very different tasks.

Sample of Employees

Paragraph (j)(2) also gives employers the option to include in the job hazard analysis only a sample of the employees in the same job. Where the employer elects to use a sample of employees, the sample must include those employees with the greatest exposure to the “relevant risk factors” (i.e., those risk factors that exceed the levels on the Basic Screening Tool). The proposed rule also included a similar option and many commenters supported it (see e.g., Exs. 30-3344, 30-3745, 30-3749).

OSHA believes that this option should help to reduce burdens for employers while at the same time ensuring that the analysis of risk factors exposure in the job is accurately characterized and not underestimated. Some commenters, including Anheuser-Busch and United Parcel Service reported that they had dozens to hundreds of employees in their establishments who perform the same job (Exs. 32-241). This option also should help establishments employing telephone operators, customer service representatives, catalog sales representatives, data processors, trash collectors, warehouse selectors, grocery store cashiers, meatpackers, poultry processors and others. Including every employee in these “same jobs” in the job hazard analysis may be unnecessarily resource intensive, especially where the workstation layouts and tools are identical (Ex. 500-145). Employers may be able to identify the problem and possible controls after analyzing the jobs of only a handful of employees.

This option will also help in situations where jobs are of short duration or do not have fixed workstations (e.g., visiting nurses, home health aides, home repairmen, furniture movers, beverage delivery, package delivery, utility line workers, trash collectors) (Exs. 30-339-22, 30-3714, 32-234-2-1, 500-73, 500-147-33, Tr. 14300). Changes in job locations and job conditions may make it very difficult to analyze the job of each employee. However, analyzing the job for a sample of employees allows employers to identify the MSD hazards facing all of the employees.

OSHA is requiring employers to sample those employees with the greatest exposure to the relevant risk factors to ensure that exposure levels in the job are characterized accurately. OSHA has used the concept of “representative sampling” for hazard identification purposes in several of its standards, such as the asbestos standard (29 CFR 1910.1001), the formaldehyde standard (29 CFR 1910.1048), and the lockout/tagout standard (29 CFR 1910.147). The principle behind this concept is that, if the job hazard analysis (or the exposure monitoring, in the case of chemical exposures) reveals that the exposures to this group of most highly exposed workers are not at levels of concern, it is likely that those of other lesser exposed workers will also not be of concern.

A few participants disagreed that the representative sampling option would be useful to reduce burdens for employers:

OSHA concedes that “conducting a job hazard analysis that covers all employees in a problem job may be burdensome” * * * It is not possible for an employer to know of and account for the multitude of physical factors that affect the way its employees work. A sample selected, for instance, could inadvertently ignore the employee with the widest fingers, the smallest feet or the most sensitive hearing, in violation of the proposed rule. OSHA's “shortcut” for performing a job analysis is to us insignificant and illusory—employers will, in practice, have to observe virtually every employee in the problem job—a task that even OSHA admits can be burdensome (Ex. 500-197).

OSHA does not believe that employers will have difficulty identifying the employees in a job who are most likely to have the greatest exposure to the risk factors. The specific criteria in the Basic Screening Tool will be particularly useful in helping employers identify, for example, those employees who:

  • Repeat the same motion for the longest continuous period during the workshift;
  • Lift the heaviest objects or packages or the most objects per workshift;
  • Have the greatest degree of flexion or extension of their wrists;
  • Use vibrating hand tools for the most time during the workshift; and Start Printed Page 68338
  • Make the longest reaches during the workshift.

In addition, the body location component in the Basic Screening Tool will help employers identify whether particular physical capabilities, limitations and characteristics may be relevant in selecting the sample of employees for the analysis. For example, employers do not need to consider the width of employees' fingers when it is kneeling or squatting for more than 2 hours that has triggered the need for job hazard analysis. And foot size is not relevant when the risk factors being addressed are vibration, intensive keyboarding, or high hand force.

Moreover, once the people responsible for conducting job hazard analyses have been trained in the hazard identification and job hazard analysis process, their knowledge of ergonomic risk factors and the causes of MSDs will help them determine which employee physical capabilities and limitations may be relevant. They will understand that, if the relevant risk factor is awkward posture associated with bending down to monitor a gauge positioned close to the floor, the employees with the greatest exposure would be those who are taller. And if the risk factor is awkward posture caused by reaching above the head, then shorter employees and those with short reaches would be the most exposed.

Risk Factors

Paragraph (j)(2)(ii) requires employers to identify the risk factors present in the job and to evaluate their magnitude, frequency, and duration. These risk factors include force, repetition, awkward postures, vibration, and contact stress. Unlike the proposal, the final rule does not include cold temperature and static postures as independent risk factors. In addition, contact stress and vibration are defined somewhat more narrowly than they were in the proposal. 64 FR 65808.

Force. Force refers to the amount of physical effort that is required to accomplish a task or motion. Force also refers to the degree of loading to muscles and other issues as result of applying force to perform work. Tasks or motions that require the application of higher force place higher mechanical loads on muscles, tendons, ligaments, and joints (Ex. 26-2). Tasks involving high forces may cause muscles to fatigue more quickly. Some commenters were unclear about the meaning of fatigue in the context of MSDs (see, e.g., Ex. 30-3866). The common use of fatigue, of course, is as a synonym for “tired.” However, ergonomics has its roots in engineering, where fatigue has a meaning closer to “breaking point,” as in metal fatigue. In other words, fatigue, when used in the context of ergonomics, generally means that the muscle is no longer able to work and must be allowed to recover, or that the point of damage or deformation of a tissue has been reached. Thus, in ergonomics, the term implies more than simply being tired or uncomfortable. The force required to complete a movement increases when other risk factors are also involved. For example, more physical effort may be needed to perform tasks when the speed or acceleration of motions increases, when vibration is present, or when the task also requires awkward postures. Hand tools that require use of pinch grips require more forceful exertions to manipulate the tool than do those that permit use of power grips.

Force can be assessed qualitatively or quantitatively. Quantitative measures include strain gauges, spring scales, and electromyography to measure muscle activity. A qualitative assessment of force is based on direct observation of the amount of physical exertion required to complete a task, and is usually graded on an ordinal scale (i.e., low, medium, high).

Repetition. Repetition refers to the frequency with which a task or series of motions is repeated over and over again with little variation in movement. When motions are repeated frequently (e.g., every few seconds) for prolonged periods such as several hours or an entire work shift, fatigue and strain of the muscle and tendons can occur because there may be inadequate time for recovery. Repetition often involves the use of only a few muscles and body parts, which can become extremely fatigued even though the rest of the body is unaffected.

Repetitive motions occur frequently in manufacturing operations where production and assembly processes have been broken down into small sequential steps, each performed by different workers. Repetition is also present in many manual handling operations, such as warehouse operation and baggage handling. Repetition is typically assessed by direct observation or videotaping or as a percent of task cycle time, where a cycle is a pattern of motions.

Awkward postures. Awkward postures are positions of the body (e.g., limbs, joints, back) that deviate significantly from the neutral position [9] while job tasks are being performed. For example, when a person's arm is hanging straight down (i.e., perpendicular to the ground) with the elbow close to the body, the shoulder is in a neutral position. However, when employees are performing overhead work (e.g., installing or repairing equipment, grasping objects from a high shelf) their shoulders are far from the neutral position. Other examples include wrists bent while typing, bending over to grasp or lift an object, twisting the back and torso while moving heavy objects, and squatting. Awkward postures often are significant contributors to MSDs because they increase the exertion and the muscle force that is required to accomplish the task, and compress soft tissues like nerves, tendons, and blood vessels. As used in the final rule's basic screening tool, awkward postures may be either static postures held for prolonged periods of time, or they may occur repetitively.

Awkward posture is the primary ergonomic risk factor to which employees are exposed when the height of the working surfaces is not correct. Working in awkward postures increases the amount of force needed to accomplish an exertion. Awkward postures create conditions where the transfer of power from the muscles to the skeletal system in inefficient. To overcome muscle inefficiency, employees must apply more force both to initiate and complete the motion or exertion. In general, the more extreme the postures (i.e., the greater the postures deviate from neutral positions), the more inefficiently the muscles operate and, in turn, the more force is needed to complete the task. Thus, awkward postures make forceful exertions even more forceful, from the standpoint of the muscle, and increase the amount of recovery time that is needed.

Awkward postures are assessed in the workplace by observing joint angles during the performance of jobs tasks. Observed postures can be compared qualitatively to diagrams of awkward postures, such as is done in many job analysis tools, or angles can be measured quantitatively from videotape recordings.

Contact stress. Contact stress results from activities involving either repeated or continuous contact between sensitive body tissue and a hard or sharp object. The basic screening tool in the final rule includes a particular type of contact stress, which is using the hand or knee as a hammer (e.g., operating a punch press or using the knee to stretch carpet during installation). Thus, although Start Printed Page 68339contact stress is covered in the final rule as a single risk factor, it is really a combination of force and repetition. Mechanical friction (i.e., pressure of a hard object on soft tissues and tendons) causes contact stress, which is increased when tasks require forceful exertion. The addition of force adds to the friction created by the repeated or continuous contact between the soft tissues and a hard object. It also adds to the irritation of tissues and/or to the pressures on parts of the body, which can further inhibit blood flow and never conduction.

Contact stress commonly affects the soft tissue on the fingers, palms, forearms, thighs, shins and feet. This contact may create pressure over a small area of the body (e.g., wrist, forearm) that can inhibit blood flow, tendon and muscle movement and nerve function. The intensity of exposure to contact stress is usually determined qualitatively through discussion with the employee and observation of the job.

Segmental vibration. Vibration refers to the oscillatory motion of a physical body. Segmental, or localized vibration, such as vibration of the hand and arm, occurs when a specific part of the body comes into contact with vibrating objects such as powered hand tools (e.g., chain saw, electric drill, chipping hammer) or equipment (e.g., wood planer, punch press, packaging machine). Although using powered hand tools (e.g., electric, hydraulic, pneumatic) may help to reduce MSD risk factors such as force and repetition, the tools can expose employees to vibration. Vibrating hand tools transmit vibrations to the operator and, depending on the level of the vibration and duration of exposure, may contribute to the occurrence of hand-arm vibration syndrome or Raynaud's phenomenon (i.e., vibration-induced white-finger MSDs) (Ex. 26-2).

The level of vibration can be the result of bad design, poor maintenance, or the age of the powered hand tool. For example, even new powered hand tools can expose employees to excessive vibration if it they do not include any devices to dampen the vibration or in other ways shield the operator from it. Using vibrating hand tools can also contribute to muscle-tendon contractile forces owing to operators having to use increased grip force to steady tools having high vibration.

Vibration from power tools is not easy to measure directly without the use of sophisticated measuring equipment. However, vibration frequency rating are available for many recently designed hand tools.

Exposure to a single ergonomic risk factor may be enough to cause an MSD incident. For example, a task may require the exertion of so much physical force that, even though the task does not involve additional risk factors such as awkward postures or repetition, an MSD is likely to occur. For example, using the hand or knee as a hammer (e.g., operating a punch press or using the knee to stretch carpet during installation) alone may expose the employee to such a degree of physical stress that the employee has a significant risk of a serious injury.

Generally, however, ergonomic risk factors act in combination to create an MSD hazard. Evidence in the Health Effects section (Section V) shows that jobs that involve exposure to multiple risk factors are likely to cause MSDs, depending on the duration, frequency and/or magnitude of exposure. Thus it is important that ergonomic risk factors be considered in light of their combined effect in causing or contributing to an MSD. This can only be achieved if the job hazard analysis and control process includes identification of all the ergonomic risk factors that may be present in a job. If all of the risk factors are not identified, employers will not have the information that is needed to determine the cause of the MSD incident or understand what risk factors need to be controlled to eliminate or reduce the MSD hazard in the job.

Based on its review of the scientific literature available at the time of the proposal, OSHA also identified prolonged sitting and standing (a form of static posture) and whole-body vibration as risk factors for MSDs; in addition, OSHA identified cold temperatures as a risk factor because it could require workers to increase the force necessary to perform their jobs (such as having to grip a tool more tightly) (64 FR 65808). The final rule does not explicitly include these risk factors. For prolonged standing and sitting, and for cold temperatures, although there is evidence of an increased risk of MSDs with exposure, the available evidence did not permit the Agency to provide sufficient guidance to employers and employees on the levels of exposures that warrant attention. For whole-body vibration, there was substantial evidence of a causal association with low back disorders (e.g., see NIOSH 1997); however, heavy equipment and trucks, the most common sources of whole-body vibration, are seldom rated for vibration frequencies and intensities. In addition, measurement of whole-body vibration levels requires special equipment and training that would be difficult for most employers to obtain. Therefore, OSHA determined that it was appropriate not to include whole-body vibration in the final rule at this time.

Cold temperatures can, however, increase the effect of other risk factors. By reducing the dexterity and sensitivity of the hand, cold temperatures may cause a worker to apply more grip force to hold hand tools and objects. Also, prolonged contact with cold surfaces (e.g., handling cold meat) can impair dexterity and induce numbness. Cold air blowing from a pneumatic tool, or a draft from the HVAC system, also can result in localized cold stress on the hands, arms, neck, or shoulder. Cold also increases the effects of vibration, such as in tree felling and cutting to length with a chainsaw on a cold day.

Performing a job hazard analysis includes determining the magnitude, frequency, and duration of employee exposure to the risk factors described above. These terms are discussed below.

Duration. Duration refers to the cumulative time an employee is exposed to one or more risk factor(s). The duration of exposure has a substantial effect on the likelihood of both localized tissue fatigue and general cardiovascular fatigue. (Again, the word “fatigue” is used in the ergonomics sense.) In general, the longer the period of continuous work (i.e., the longer the task requires sustained muscle contraction), the longer the recovery or rest time required (Ex. 26-2). Changing the sequence of activities or the recovery time and pattern of exposure may mitigate the effects of long duration. Breaks or short pauses in the work routine help to reduce the effects of prolonged exposure.

Frequency. Frequency refers to the number of times the exposure is repeated within some unit of time, in contrast to duration, which relates to the cumulative length of exposure. This factor also can be obtained by observing and counting (either by video tape, in person, or mechanically) the number of repetitions or the cycle time associated with each task. The response of muscles and tendons to work is dependent on the number of times the tissue is required to respond and the recovery time between these responses. The frequency of an activity can be measured at the micro level, such as grasps per minute or lifts per hour. However, there are some tasks, such as lifting a 150-pound package or pushing a 400-pound beer barrel, where simply knowing that the activity occurs, say, on one day every week, is sufficient to establish that an MSD hazard is present. Start Printed Page 68340

Magnitude is a measure of the strength of the risk factor; for example: how much force, how deviated the posture, how great the velocity or acceleration of motion, how much pressure due to compression. Magnitude can be measured either in absolute terms or relative to an individual's capabilities. There are many qualitative and quantitative ways to determine the magnitude of exposure to ergonomic risk factor(s) (some of these measurement tools are provided in Appendix D-1). In relatively simple cases, one approach is to ask employees to classify the force requirements or physical difficulties posed by the job on a scale of 1 to 5, or on a scale as simple as “low,” “medium,” and “high.” When magnitude is assessed qualitatively, the employee is making a relative rating, i.e., is rating the perceived magnitude of the risk factor relative to his or her own capabilities. Relative ratings can be very useful in understanding whether the job fits the employees currently doing the job.

There are a number of ways to measure the magnitude of exposure quantitatively (see, e.g., Exs. 500-218, 500-220). For example, the NIOSH Lifting Equation is widely used to determine recommended weight limits for safe lifting and carrying (see, e.g., Exs. 26-521). The Snook Push-Pull Tables are also used by many employers to evaluate and design pushing, pulling and carrying tasks (see, e.g., Ex. 26-1008). For work-related upper extremity MSDs the Rapid Upper Limb Assessment (RULA) evaluation tool is often used to investigate and evaluate jobs (see, e.g., Ex. 26-1421). These three tools are included in Appendix D-1, and are discussed at greater length in connection with that Appendix.

Paragraph (j)(3)

Paragraph (j)(3) of the final rule requires the employer to use one of the following methods or tools to conduct the job hazard analysis:

a. One or more of the hazard identification tools listed in Appendix D-1 of this section, if the tools are relevant to the risk factors being addressed; or

(ii) The occupation-specific hazard identification tool in Appendix D-2 of this section; or

III. A job hazard analysis conducted by a professional trained in ergonomics; or

(iv) Any other reasonable method that is appropriate to the job and relevant to the risk factors being addressed.

The final rule, like the proposal, requires employers to evaluate the ergonomic risk factors they have identified to determine whether the employee's exposure to them is the result of an MSD hazard or hazards in the job. To make this determination, employers must look at the duration, frequency and magnitude of the ergonomic risk factors in the job, as required by paragraph (j)(3). This evaluation may allow the employer to rule out some risk factors that do not pose a significant risk of injury, as well as to identify risk factors that do rise to the level of an MSD hazard. Risk factors are sometimes ruled out because the exposure does not last long enough, is not repeated frequently enough, or is not intensive enough to pose a risk. On the other hand, a job that requires significant bending from a neutral posture for most of the day would be identified as an MSD hazard by the appropriate hazard identification tool in Appendix D-1, and the job would therefore be labeled a “problem job,” as noted in paragraph (j)(4) of the standard.

The approach to hazard identification reflected in paragraph (j)(3) of the final rule differs from the proposed approach and responds to comments that objected to the proposed approach (see, e.g., Exs. 32-300-1, 30-3032). The proposal included a table that listed 20 physical work activities and job conditions such as “exerting considerable physical effort to complete a motion” and “using hand and power tools,” linked each of these activities to a number of risk factors likely to be associated with the performance of such activities, and directed employers to evaluate these risk factors to determine whether an MSD hazard was present.

The National Telecommunications Safety Panel was one of many participants who found the proposed hazard identification approach unhelpful:

The members of the Panel strongly believe that the matrix of “physical work activities and conditions” and ergonomic risk factors that may be present * * * provides insufficient guidance to be included as a mandatory item in a federal rule. (Ex. 30-3745).

A similar comment was that the proposed job analysis approach shifted the burden of hazard identification from OSHA to the employer (Ex. 30-4334). Commenting on this point, however, the AFL-CIO stated:

* * * the obligation placed upon employers in the proposed ergonomics standard, as with other standards, is to eliminate or reduce an occupational hazard. In the proposed ergonomics standard, OSHA has defined “hazard” not in numerical terms but in descriptive terms: “MSD hazards are physical work activities and/or physical work conditions,” in which ergonomic risk factors are present, that are reasonably likely to cause or contribute to a covered MSD (Ex. 500-218).

Other commenters argued that the proposed approach to the identification of risk factors and MSD hazards was vague and that OSHA should instead provide a permissible exposure limit (PEL) for each risk factor and each possible combination of risk factors (see, e.g., Exs. 500-197, 30-2435, 30-973, 30-1274, 30-2426, 30-1350, 30-2428, 30-3986, 30-3993, 30-3000, 30-3086). Since some employers have been very successful in using simple approaches, such as the one proposed, to identify and control MSD hazards, however, OSHA finds this argument unpersuasive. Risk factors and MSD hazards are being identified and addressed in thousands of workplaces every day, and employers and employees are using a wide variety of approaches to do so.

OSHA recognizes, however, that although certain of the risk factors described above are easy to identify and understand, others are not as apparent or observable. Employers who already have ergonomics programs and persons who manage ergonomics programs generally have no difficulty identifying risk factors in the workplace, because they have learned to look for them (see, e.g., Exs. 30-3755, 500-220, 32-359-1, 32-210-2, 32-198-4, 30-3805, Tr. 11427). Because these individuals have training and experience, ergonomic risk factors are familiar concepts for them. Through the process of developing and implementing their ergonomics programs, these individuals have gained a good working knowledge of the ergonomic risk factors that are most likely to be present in their workplaces. For those employers who are just beginning their programs and have little or no training and experience dealing with ergonomic risk factors, OSHA has tried in the standard to make the process of identifying them as straightforward and easy as possible. For this reason, OSHA has provided employers with many different hazard identification tools in mandatory Appendix D-1 and mandatory D-2.

The large number of risk evaluation tools in the record and the many comments OSHA received on the proposed list of physical activities and conditions have led the Agency to include in the final rule several options for hazard identification that employers may choose from. Many commenters discussed hazard identification tools that are currently used by employers (see, e.g., Exs. 500-200, 500-218, 30-3813, 30-276). Thus, the final rule allows a choice of hazard identification Start Printed Page 68341approaches, including simple checklists, more structured assessment tools, and reliance on expert consultants.

The United Automobile Workers (UAW) submitted a number of checklists that its members use (Exs. 32-185-3-26, 32-185-3-33), and described several approaches to hazard identification that employers have used to identify ergonomic risk factors effectively (Ex. 500-220). These approaches include:

  • Development of consistent methods to measure the physical stresses on the body. Stress is determined by the force exerted on a body part, the frequency of the motion and the posture of the joint. The Force-Frequency-Posture paradigm is common to both expert and checklist approach to ergonomics analysis.
  • Development of simplified non-expert approaches to measurement of risk factors (checklists)
  • Formulation of the NIOSH lifting guide and related biochemical models which take into account the weight of an object, distance from the body and motion of the body in lifting.
  • Validation of symptom surveys and discomfort surveys (psychophysical measures) as risk factor identification tools
  • Validation of the use of risk factor checklists and symptom surveys by workforce personnel to identify high risk jobs and propose abatement methods.

Dr. Don Chaffin, founder of the Center for Ergonomics at the University of Michigan, testified that the precision of many tools used to evaluate risk factors is very high (Tr. 8255-8286). Ms. Lisa Brooks, corporate ergonomist for International Paper, commented that there were many different analysis tools used throughout the company (Tr. 11427).

The AFL-CIO also commented on the widespread availability of risk factor evaluation tools (Ex. 500-218):

Testimony and evidence in the record demonstrate the job analysis tools such as the NIOSH Lifting Equation and Snook—Ciriello Push-Pull Tables are widely utilized by employers, unions, consultants and others to evaluate exposure to ergonomic risk factors throughout a wide range of industries and businesses. Representatives of International Paper (Tr. 11425-26), Owens-Corning (Tr. 10856), Conti Group Corp. (Tr. 10788), Coca Cola (Tr. 14356) and Levi Strauss (Tr. 14710) testified that they routinely used these tools in their ergonomic programs to analyze jobs for ergonomic risk factors. Representatives from the UAW and UNITE! testified how these and other tools such as UAW-GM Check Lists were used by employers and union representatives to evaluate ergonomic hazards at Ford (Ex. 32-185-3-42; 46, Tr. 5827, 5828), GM (Tr. 5831), Maytag (Tr. 8062), VF Corp. (Tr. 7074), Owens-Corning (Tr. 10858), Levi Strauss (Tr. 14710), Coca Cola (Tr. 14356), PPG Industries (Tr. 3131).

OSHA has included several of these tools in Appendix D-1.

Paragraph (j)(3)(i)

Paragraph (j)(3)(i) of the final rule allows the employer to evaluate ergonomic risk factors using one or more of the hazard identification tools listed in Appendix D-1 of this section. Appendix D-1 list eight hazard identification tools: (1) The Job Strain Index (Ex. 26-883), (2) the NIOSH lifting equation (Ex. 26-572), (3) the UAW-GM checklist (Ex. 32-185-3-26), (4) the applicable ACGIH threshold limit values for physical agents (Exs. DC 389, 500-166-1, 502-273), (5) the Rapid Entire Body Assessment (REBA) (Ex. 500-121-26), (6) the Rapid Upper Limb Assessment (RULA) (Ex. 26-1421), (7) Appendix B to the final Washington State ergonomics standard (WAC 296-05174) (Ex. 32-210-2-99), (8) the Snook Push/Pull Hazard Table (Ex. 26-1008). Tools selected must be relevant to the risk factors being addressed. This means, for example, that an employer could not use the NIOSH Lifting Equation, which is appropriate for employees exposed to certain types of force, to analyze a job involving repetition and awkward posture.

A number of participants submitted evaluation tools to the record (see, e.g., Exs. 26-2, 26-5, 32-77-2-1, 502-67, 26-883, IL-162-Q, 32-185-3-31, 500-142-12, OR-348-1, 32-185-3-26, 500-121-61, 38-260, IL-218, IL-228, 32-339-1-82, DC 417-6, 500-121-21, 38-93, 500-121-28, 32-111-1, 32-198-4-27-1), while others (see, e.g., Exs. 500-220, 500-218, Tr. 5567) suggested that the final rule include tools, such as the Snook tables and the OSHA Meatpacking Guidelines (Ex. 30-2387). Still other participants merely asked the Agency to provide more guidance in the final rule for companies to identify ergonomics risk factors (see, e.g., Exs. 30-276, 30-3818, 30-4290, 500-197, 500-218, 30-3864, Tr. 11601, Tr. 9070, Tr. 17419), and many commenters suggested that OSHA provide non-mandatory checklists (see, e.g., Exs. 30-3765, 30-1671, 30-3284, 30-2387, 32-300-1, 30-519, 30-4844, 30-3032, 30-3748, 30-3813).

Based on this evidence, OSHA has decided to allow employers to demonstrate compliance with paragraph (j)(3) by using one or more of the tools in Appendix D-1, assuming it is appropriate to the risk factors being addressed for job hazard analysis purposes. These hazard identification tools were suggested by several commenters (see, e.g., Exs. 30-276, 32-339-1, 500-218, 30-3813, 500-220, 30-3361, 30-2134, 32-210-2, 32-210-2, Tr. 5567, Tr. 8706, Tr. 10629, Tr. 16487). For example, Marathon Oil stated:

Since the proposed rule is job-based (particularly targeted to problem jobs), OSHA should have reviewed the scientific literature to identify and publish exposure assessment methods capable of distinguishing problem jobs from non-problem jobs. In its proposed rule, OSHA fails to mention existing methods capable of such prediction (e.g. the Strain Index) or methods that have the potential for such predictions (e.g. the Revised NIOSH lifting equation) (Ex. 30-3361).

OSHA selected the tools in Appendix D-1 for several reasons. They were developed by professionals who have extensive training and experience in the identification, analysis and control of MSD hazards. For instance, the Snook Push/Pull Hazard Table was developed by Dr. Stover Snook , a certified professional ergonomist with a PhD. in experimental psychology, who has spent 38 years researching MSDs and 25 years teaching ergonomics at the Harvard University School of Public Health (Ex. 37-6).

The eight tools in Appendix D-1 are also well-documented. They are based on scientific evidence on the relevant risk factors, and most been published in peer-reviewed scientific journals (e.g., Job Strain Index, NIOSH Lifting Equation, RULA, REBA, Snook Push/Pull Hazard Table). To illustrate, the steps in the Job Strain Index by Moore and Garg were based on the findings and data of a number of peer-reviewed studies, including the Borg CR-10 scale (Ex. 26-883). The summary and explanation of Appendix B to the Washington State Ergonomics Standard includes extensive discussion and tables documenting the scientific support for each element in that tool (Ex. 32-210-2-99).

The tools have also been tested, most of them extensively. For instance, to develop the Rapid Entire Body Assessment (REBA) tool, three ergonomists/physiotherapists independently coded 144 posture combinations and then incorporated the sensitizing concepts of load, coupling and activity scores to produce the final REBA score, with accompanying action levels (Ex. 500-121-26). Thereafter, two workshops were held involving 14 occupational safety and health processionals (including ergonomists, occupational therapists, physiotherapists and nurses) to code more than 600 additional samples of postures from several industries (i.e., health care, manufacturing and Start Printed Page 68342electrical) in order to further refine the REBA scores. There was between 62 to 85% agreement among the 14 professionals (Ex. 500-121-26).

Dr. Snook testified at the hearing about the years of extensive testing he did to develop the Push/Pull Hazard Table:

Most of my experiments were psychophysical investigations of manual handling tasks, viz., lifting, lowering, pushing, pulling, and carrying. The purpose of these experiments was to collect hard data for use in evaluating the risk of manual handling tasks, and to aid in the redesign of these tasks. At the time, psychophysics was the only method that could yield usable data for task evaluation. Psychophysics is a very old method that is concerned with the mathematical relationship between sensation and their physical stimuli. Psychophysics has been applied to practical problems in many areas, including the decibel scale of loudness, and ratings of perceived exertion (RPEs) * * *

My colleagues and I conducted eleven major manual handling experiments over a period of 25 years [citations omitted]. Each experiment lasted two to three years. These experiments were unique in hat they used realistic manual handling tasks performed by industrial workers (68 males and 51 females) over long periods of time (at least 80 hours of testing each subject). Physiological measurements of oxygen consumption and heart rate were recorded for comparison with psychophysical measurements. The experimental design also included 16 to 20 hours of physical conditioning and psychophysical training. A battery of 41 anthropometric measurements were recorded for each subject to insure that the sample was representative of the industrial population. The results of these experiments were combined and integrated into tables of maximum acceptable weights and forces for various percentages of the working population (Ex. 37-6).

These tools were also designed for use by persons with only minimal training in hazard identification. For example, Washington State said that it designed Appendix B particularly for small employers with limited resources who wanted “maximum clarity and certainty.” Washington State Appendix B includes illustrations of the relevant risk factors and a simple 5-step process for determining whether particular lifting tasks pose a hazard. The other tools in Appendix D-1 use similar approaches. For instance, the GM-UAW checklist uses a simple stars and checks approach to those tasks and activities that may warrant further investigation or controls.

Finally, OSHA has selected these eight tools because they all include specific and well-defined recommended criteria for when employers need to take action and when no further action would be necessary. As such, these tools address commenters' arguments that the standard must provide clear guidance to employers in identifying risk factors and knowing when they have done enough to control them (see, e.g., Exs. 30-276, 30-3818, 30-4290, 500-197, 500-218, 30-3864, Tr. 11601, Tr. 9070, Tr. 17419). These tools specifically and clearly operationalize the table of physical work activities and conditions in the proposed rule so they answer commenters' repeated questions about what proposed terms such as “over and over,” “considerable physical effort,” “long reaches” and “heavy” objects mean. For example, the Job Strain Index (Ex. 26-883) defines “over and over” in terms of efforts per minute (number of exertions/total observation time). The NIOSH Lifting Equation defines a “heavy” object as weighing 51 pounds or more, and then shows users how to reduce the amount of weight that can be lifted within the equation's limits on the basis of particular conditions in the workplace.

There are tasks for which each of the evaluation techniques in Appendix D-1 are well suited and tasks where the tool is not appropriate. The following information explains the limits and appropriate uses for each tool in Appendix D-1.

Job Strain Index

The Job Strain Index is designed to identify jobs associated with MSDs of the hand. It does this by measuring or estimating six task variables: intensity or exertion, duration of exertion per cycle, efforts per minute, wrist posture, speed of exertion and duration of task per day (Ex. 26-883). The Job Strain Index and documentation supporting it was published in a peer-reviewed scientific journal.

Area of the body covered by the Job Strain Index: Hand/wrist.

Risk factors evaluated: Force, awkward postures, repetition (speed of work).

Examples of jobs that Job Strain Index is applicable to or well-designed for: Jobs involving high hand repetition, small parts assembly, keyboarding, inspecting (assembly line), sorting, meatpacking, sewing, packaging.

NIOSH Lifting Equation

The NIOSH Lifting Equation, which is already widely used, was developed to evaluate manual lifting demands. It provides an empirical method for computing a weight limit for manual lifting tasks to prevent or reduce the occurrence of lifting-related low back pain among workers. Six factors are used to determine the recommended weight for the specific working conditions: horizontal distance, vertical distance, travel distance, frequency, twist, coupling. Then the actual weight is compared with the recommended weight to determine the “allowable” lift index. The NIOSH Lifting Equation and documentation supporting it has been published in a peer-reviewed scientific journal.

Area of the body addressed by NIOSH Lifting Equation: Lower back.

Risk factors evaluated: Force (distance, coupling), repetition (frequency), awkward postures (location of the object, travel distance, twist).

Examples of jobs that NIOSH Lifting equation is applicable to or well-designed for: manual handling tasks involving objects weighing more than 10 pounds; forceful lifting tasks in production and assembly work; package sorting, handling, delivery and pickup.

ACGIH TLV Hand/Arm (Segmental) Vibration TLV

The ACGIH Hand/Arm (Segmental) Vibration TLV describes how to measure hand tool vibration and provides threshold limit values for exposure.

Areas of the body addressed: Hands, Arms/Shoulders.

Risk factors evaluated: Vibration.

Examples of jobs that the Hand/Arm (Segmental) Vibration TLV is applicable to or well-designed for: Jobs involving use of powered and vibrating hand tools (e.g., grinding, sanding furniture, sawing, jigsawing, chain saws).

GM-UAW Checklist

The UAW-GM checklist was developed to evaluate a range of risk factors in production jobs. The checklist uses checks (√) and stars (*) to indicate whether the certain activities and conditions are present for less than or more than one-third of the production cycle or workday. The number of checks and stars, in conjunction with the report of an MSD, is used to determine if the job requires further investigation or control action.

Areas of the body addressed: Hand/wrists, Forearms/elbows, Shoulders, Neck, Back/Trunk, Legs/knees.

Risk factors evaluated: Force (including manual handling), Repetition, Awkward Postures (including Static Postures), Vibration, Contact stress

Examples of jobs that the GM-UAW checklist is applicable to or well-designed for: cyclical production and assembly work jobs.

RULA

The Rapid Upper Limb Assessment (RULA) was developed to evaluate Start Printed Page 68343ergonomic exposures of the upper body. The range of motion for each body part (upper arms, lower arms, wrists, neck) is rated based on the amount of posture deviation. Posture combinations are ranked to reflect musculoskeletal loading with force, static work and repetition factors. RULA and documentation supporting it has been published in a peer-reviewed scientific journal.

Areas of the body addressed: Wrists, Forearms/elbows, Shoulders, Neck, Trunk.

Risk factors evaluated: Awkward posture, force, repetition.

Examples of jobs that RULA is applicable to or well-designed for: assembly and production work, janitorial and maintenance, meatpacking, restaurant, grocery cashier, telephone operator.

REBA

The Rapid Entire Body Assessment (REBA) is similar to RULA, but it has been modified to be more useful for the working postures found in the health care and other service industries. REBA and documentation supporting it has been published in a peer-reviewed scientific journal.

Areas of the body addressed: Wrists, Forearms/elbows, Shoulders, Neck, Legs/knees, Trunk, Back

Risk factors evaluated: Awkward posture, force (load and coupling), repetition.

Examples of jobs that REBA is applicable to or well-designed for: Patient lifting and transfer, assembly and production work, janitorial and maintenance work, meatpacking, restaurant work, grocery cashier, telephone operator.

Washington State Appendix B

The Washington State Appendix B was developed to determine if jobs that were in the Washington State “caution zone” actually pose an MSD hazard to employees in them. The checklist shows physical risk factors and lists duration (from 2 to 6 hours) by body part. If the work activities or conditions apply, the job poses an MSD hazard.

Areas of the body: Shoulders, Neck, Back, Trunk, Knees, Forearms, Wrists, Hands, Elbows.

Risk factors evaluated: Awkward postures, Force (including manual lifting and high hand force), Repetition, Contact Stress, Vibration.

Examples of jobs that Washington State Appendix B is applicable to or well-designed for: very wide range of jobs including patient lifting and transfer, assembly and production work, janitorial and maintenance, meatpacking, restaurant, grocery cashier, telephone operator, keyboarding, manual handling, meatpacking, jobs involving use of powered and vibrating hand tools, janitorial, solid waste.

Snook Push/Pull Hazard Table

The Snook Push/Pull Table is designed to identify whether pushing, pulling and carrying activities meet or exceed established maximum acceptable loads or force levels for those activities. It does this by examining initial and sustained forces of loads, horizontal distance, vertical distance, frequency and object weights. These measurements are compared with the tabled values corresponding to the task and considered acceptable for 75% and 90% of the adult male and female population. The Snook Push/Pull Table and documentation supporting it has been published in numerous peer-reviewed scientific journal articles. In addition, the table was used in developing the NIOSH Lifting Equation.

Body areas addressed: Back/Trunk, Legs, Shoulders.

Risk factors evaluated: Force, repetition, awkward posture.

Examples of jobs that Snook Push/Pull Hazard Table is applicable to or well-designed for: manual handling jobs involving pushing or pulling objects or carrying objects a long distance, and hospital laundry and janitorial jobs, among others.

Paragraph (j)(3)(ii)

Paragraph (j)(3)(ii) allows employers to use the video display terminal (VDT) hazard identification tool in Appendix D-2 of this section for jobs involving risk factors related to computer use. Appendix D-2 is a simple checklist to assess the physical activities and layout of workstations with a VDT. Like the tools in Appendix D-1, the VDT checklist was added to the final rule to address comments that the physical activities and conditions listed in the proposal were too vague to be used for job hazard analysis and control (see, e.g., Exs. 500-197, 30-2435, 30-973, 30-1274, 30-2426, 30-1350, 30-2428, 30-2986, 30-2993, 30-3000, 30-3086, 30-3853, 30-326, 30-546, 30-4189, 30-3845).

The function of the checklist is to determine if the computer workstation and layout address the risk factors most commonly found in VDT jobs. The analyst using this checklist would talk with and observe the worker(s) while they are at the computer workstation. If a condition or activity in the job merits the checklist's “Yes,” the analyst would check the “Yes” box. If there are no more that two “No” answers to the checklist questions, the computer workstation design, layout or equipment needs no further evaluation or control to be in compliance with paragraph (j)(3)(ii).

Intensive computer use accounts for a significant number of MSDs each year and occupational computer use is growing. MSDs associated with computer use are reported in a wide range of industries (e.g., telecommunication, telephone, banking, insurance, catalog and telephone sales, customer service, package delivery service, newspaper) and in businesses of all sizes, including very small establishments. OSHA believes that its VDT checklist provides these businesses with an easy and quick way to identify and control hazards in a large number of jobs.

OSHA designed this checklist after considering the many examples of computer workstation checklists in the record (see, e.g., Exs. 26-2, 26-1517, 26-1337, 32-182-1-6, 502-313-3, IL-258, 500-142-10). The checklist is designed to provide employers with a simple way to identify the five risk factors this standard covers, as they most commonly occur in computer work and workstations. All the employer need do is check whether the risk factor is or is not present in the employee's working conditions and workstation equipment, and address those that are present.

The checklist provides clear and specific guidance in how the employer can provide or adjust a computer workstation so it will be comply with the control requirements of this standard. Each checklist item is written to provide the solution to the problem it identifies. For example, the checklist items addressing awkward neck postures actually show how to position the computer monitor to eliminate those postures (e.g., “Top line of screen is at or below eye level so employee is able to read it without bending head or neck down/back,” “Monitor position is directly in front of employee so employee does not have to twist head or neck,” “No reflected glare (e.g., from windows, lights) is present which might cause employee to assume an awkward posture to read screen.”).

OSHA expects the VDT checklist to provide significant assistance for employers in industries where MSD hazards associated with computer use are the major, or even the only, MSD hazards they face. Unlike other checklists in the record, which include a range of risk factors such as vision and general environmental conditions, OSHA's checklist addresses only those Start Printed Page 68344risk factors this standard covers. Second, the OSHA VDT checklist is also more flexible than some other checklists in the record because it is risk factor-based rather than equipment-based. In equipment-based checklists, employers get a passing score only if they have purchased and installed particular equipment at each computer workstation. OSHA's risk factor-based checklist, however, gives employers the flexibility of deciding how to best control the identified hazards. For example, an equipment-based checklist asks employers whether they have provided adjustable height tables and monitor risers. A risk factor-based checklist, on the other hand, asks employers whether the employees' heads and necks are in a straight rather than awkward positions (i.e., bent down or back), when they look at the monitor screen. If an employer can achieve this result without purchasing new adjustable equipment, this will satisfy the standard. A number of participants said that they have controlled risk factors at VDT workstations without purchasing new adjustable equipment (see e.g., Tr. 2707).

OSHA stresses that, like the other tools in Appendix D, its VDT checklist is only one of a number of methods employers may use to identify and control MSD hazards related to computer use. Employers are free to use other checklists in the record or to continue using whatever method they currently use to identify and evaluate MSD hazards associated with computer use, provided those methods address the risk factors this standard covers.

Paragraph (j)(3)(iii)

Paragraph (j)(3)(iii) allows employers to choose to have a job hazard analysis conducted by a professional trained in ergonomics. By a “professional trained in ergonomics,” OSHA means an ergonomist, safety professional, industrial hygienist, engineer, or other safety and health professional who has received training in the principles of ergonomics and their application in job hazard analysis and control. Reliance on a trained professional or competent person is a concept used in many OSHA rules, such as the Asbestos Standard (29 CFR 1910.1001), the Process Safety Management Standard (29 CFR 1910.119), and the Telecommunications Standard (29 CFR 1910.268).

A few commenters suggested that the final rule should require specific qualifications for those individuals permitted by the rule to perform job hazard analyses (see, e.g., Exs. 30-4674, 32-210-2). OSHA rejected this idea because the record contains many examples of cases where employers and employees are doing an effective job of analyzing their jobs and then controlling them (see, e.g., Exs. 32-377-2-1, 32-111-1, 32-198-4-27-1). In fact, OSHA believes that in about 85% of cases, managers, supervisors, and employees can, with some training in ergonomic principles and job hazard analysis, perform the required analysis of jobs in their workplace that have met the action trigger. Thus, OSHA believes that, in most cases, employers will be able to perform job hazard analyses without expert outside help, and that the sheer number of employers who have already established effective ergonomics programs on their own (Ex. 502-17) is testimony to the ability of companies to initiate a program without hiring a consultant. The record has many comments (see, e.g., Exs. 502-17, 500-215, Tr. 11427, Tr. 1008, Tr. 13764) reporting that employers and employees are “going it alone.”

The hazard identification method permitted by paragraph (j)(3)(iii), however, is based on the expert judgment of a safety and health professional trained in ergonomics and its application in the workplace. This job hazard analysis option, therefore, assumes that the employer has chosen to seek outside help (unless, of course, the workplace has such a safety or health professional on staff). Paragraph (j)(3)(iii) is unlike paragraphs (j)(3)(i) and (ii) in this respect. OSHA is aware that some employers (see., e.g., Ex. 502-17) currently rely on outside experts or OSHA's consultation program for job hazard analyses. For most employers and most jobs, however, OSHA believes that employers will choose to develop the level of in-house expertise needed to implement the job hazard and control requirements of the standard.

Paragraph (j)(3)(iv)

Paragraph (j)(3)(iv) allows the employer the flexibility to use any other reasonable method of job hazard analysis that is appropriate to the job and relevant to the risk factors being addressed. This method could consist of a hazard identification tool of the type in Appendix D, or of a job hazard analysis methodology developed by the company itself. Many employers utilize trained workplace ergonomic committees to perform these job analyses. OSHA has included this job hazard analysis option in the final rule in recognition of the fact that other hazard identification tools and methods are effective in identifying MSD hazards, and that many employers have instituted effective ergonomic programs that include job hazard analysis methods that do not rely on ergonomist-consultants or on the tools in Appendix D. OSHA does not wish to stifle creativity or to foreclose the option to use existing hazard identification tools or methods that will get the job done.

If employers choose to avail themselves of the option in paragraph (j)(3)(iv), they must be sure that the method of job hazard analysis they choose is one that is reasonable and appropriate for the risk factors present, i.e., the risk factors identified in the job by the Basic Screening Tool. For example, if the job requires the employee to sit in a chair and assemble cellular phones for 8 hours a day, then the method must be appropriate for seated work, hand/arm force, and the motions that are required by the job. A method that only measures strain to the back would clearly not be a reasonable method of job hazard analysis for this phone assembly job. Paragraph (j)(3)(iv) encourages employers to continue to use their own effective analysis techniques, provided they are appropriate, or to develop a tool that fits their needs.

Many participants submitted ergonomic risk factor evaluation tools that they have used in their workplaces to the record (see, e.g., Exs. 26-2, 26-5, 32-77-2-1, 502-67, 26-883, IL-162-Q, 32-185-3-31, 500-142-12, OR-348-1, 32-185-3-26, 500-121-61, 38-260, IL-218, IL-228, 32-339-1-82, DC 417-6, 500-121-21, 38-93, 500-121-28, -3, 32-111-1, 32-198-4-27-1). For example, the Dow Chemical Company uses a method that measures posture, repetition, force and duration and takes into consideration frequency and environmental factors, such as lighting, for computer workstations (see, e.g., Ex. 32-77-2-1). The Dow Chemical method provides for scoring of jobs based on the number of words typed or keystrokes per minute (frequency), the time spent doing the task (duration), and the amount of force or amount of deviated posture (magnitude) used by the worker to perform the task (see, e.g., Ex. 32-77-2-1). The final score on the “Dow card” allows the person performing the job analysis (usually the employee in the job) to determine if there is a problem.

The United Steelworkers of America developed a survey as a job hazard analysis tool for bus drivers. The survey includes qualitative measurements of reach distances for the steering wheel, floor pedals, clutch, and door handles, as well as the force required to use work site tools. Seating support and visibility are also evaluated using the tool that has been developed to evaluate exposures for bus drivers see, e.g., Ex. 32-111-1). Levi Strauss uses a checklist with measurements by body part for posture, Start Printed Page 68345repetition, duration, force, and allows for other factors, such as the use of PPE, concrete flooring, kneeling, slippery floors, vibration and temperature that might be found in apparel industry jobs (see, e.g., Ex. 32-198-4-27-1). These methods of analysis are applicable to the tasks and work environments for which they were developed because they measure the risk factors that are reasonably expected to be found in those tasks and jobs in their respective industries.

In fact, the record contains many examples of employers who are identifying and controlling ergonomics risk factors on a daily basis. Dow Chemical sites across the country have been recognized by OSHA and the Voluntary Protection Program (VPP) for their outstanding safety and health efforts. Their programs include the analysis of ergonomics risk factors:

Dow analyzes tasks utilizing a risk evaluation card. This card looks at the various ergonomic hazards that may be present in our workplaces and rates these hazards by a relative risk index or weighting method. This weighting or indexing approach is consistent with other risk indices, which OSHA has supported or recommended. Indexing allows employers like Dow to prioritize its limited safety and health resources in such a way to get the most “bang for the buck” not only from an economic perspective concerning appropriate controls, but also from a risk perspective as well. Such an approach has been successful in our workplaces and has been borne out through our experience. Dow's recordable rates and incidence of MSDs are much lower than the general industry experience (Ex. 30-3755).

Employers are free to select the method or tool that best fits their own jobs, workplace conditions, and culture. A job hazard analysis is effective as long as it allows the person who is performing it to determine whether a job has risk factor(s) that rise to the level of an MSD hazard or does not pose an MSD hazard. Some employers reported using simple and fairly informal procedures to identify hazards in a job (see, e.g., Tr. 17353, 2979). This was especially true for employers who have only limited or isolated ergonomics problems.

A job hazard analysis approach used by many employers is the narrative approach. This method of hazard identification is similar to job analyses used to identify other potential safety and health hazards (see, for example, OSHA's Process Safety Management Standard, 29 CFR 1910.119, which allows employers to use this approach). With the narrative approach, the employer and employee discuss the job requirements and the relationship (if any) between the tasks and the reported MSD. Where the problem identified through the narrative approach is easy to identify and control and the establishment has few MSDs, the employer may be able to use the Quick Fix option permitted by paragraph (o). If the Quick Fix method can be used, the employer does not need to continue with the job hazard analysis, although he or she must observe all the steps in the Quick Fix process. For more complex problems and solutions, the employer is required to comply with the requirements of paragraphs (k), (l), and (m) to control the MSD hazard identified.

In other cases, however, the problem may require a more detailed analysis that could involve breaking the task down into its various discrete elements or activities and then identifying and evaluating the extent to which employees are exposed to risk factors in these activities (see, e.g., Ex. 32-210-2). The quantified risk factors are then compared to values that have been shown to contribute to the MSD hazard (see, e.g., Exs. 26-2, 26-1247, 500-121-26, 32-210-2-99, DC-386, 500-121-21).

A job hazard analysis approach that is intermediate between the narrative approach and the detailed analysis discussed above is the use of a checklist. Checklists provide more structure than the narrative approach, but are less time consuming than a detailed job analysis. Several commenters suggested that OSHA include checklists in the standard (see, e.g., Exs. 30-3748, 30-3755, 32-182-1, 30-3826, 30-3818). OSHA agrees that well-designed checklists, when used as intended, can provide an effective hazard identification approach for a range of employers, especially small business owners. There are many ways in which checklists are useful: identifying physical work activities and conditions, identifying ergonomic risk factors, evaluating jobs, prioritizing jobs for further analysis, and providing a method of evaluating the effectiveness of controls. The American Physical Therapy Association (APTA) endorsed the usefulness of checklists as a job hazard analysis option:

In APTA's review, checklists would be an extremely helpful resource to small businesses conducting job hazard analyses. (Ex. 30-3748).

The following example of a job hazard analysis includes a combination of qualitative and quantitative observations and measurements (Ex. 38-438):

Title: Turkey processing—thigh boning.

Objective: Remove thigh bones from the turkey carcasses.

Standard: 540 thighs deboned per 8-hour shift, 15 minute a.m. break, 30 minute lunch, 15 minute p.m. break.

Workstation: Overhead conveyor, shackles 44 inches above the floor.

Equipment: Thigh boning knife; wire mesh glove for non-knife hand; optional rubber gloves for both hands; hard hat; smock; boots.

Methods: (1) Grasp and position thigh with non-knife hand, (2) Cut along thigh bone to separate meat from bone 2-3 cuts, (3) Cut remaining tendinous attachments (bone drops into conveyor as work release meat and bone.

Environment: Air-conditioned turkey plant; turkeys at 38°F, ambient air 45°F.

Risk Factors:

1. Forceful exertions—(knife hand) holding knife, cutting thighs, (non-knife hand) holding thighs for cutting. Force depends on user's technique, sharpness of the blade, worker's position relative to the moving turkey. Forces on the cutting hand are greater (up to 38 pounds) than the hand holding the thigh (up to 19 pounds). Holding hand is relaxed between cuts, while the knife hand continues to grasp the knife handle (4 pounds).

2. Repetition—4,320 cuts per hour, holding thigh 1,080 times per hour.

3. Awkward/Static posture—Wrist bent and forearm rotated while cutting thighs. The wrist is angled due to the straight knife, type of cut, location and orientation of the turkey.

Paragraph (j)(4) of the final rule simply states that jobs that have been determined, through the job hazard analysis process, to pose an MSD hazard to employees in that job are called “problem jobs” for the purposes of the standard.

OSHA finds, based on the comments, data, and other evidence on job hazard analysis in the record, that the job hazard analysis approach adopted in paragraph (j) of the final rule is widely used by employers and employees and is highly effective. Further, the hazard identification tools and methods permitted by this paragraph are commonly used in workplaces large and small, for workers with fixed and mobile worksites, and in the analysis of both traditional and “non-traditional” jobs.

Paragraph (k)—What Is My Obligation To Reduce MSD Hazards?

Paragraph (k) of the final ergonomics standard tells employers how far they must go in reducing MSD hazards at the workplace. This paragraph sets the control endpoint that employers must achieve. Final paragraph (k) presents Start Printed Page 68346three options. Employers are in compliance with this paragraph when the controls they have implemented:

  • Control the MSD hazards to the extent that they are no longer reasonably likely to cause MSDs that result in work restrictions or medical treatment beyond first aid,
  • Reduce MSD hazards in accordance with or to levels below those in the hazard identification tools in Appendix D that the employer used to conduct the job hazard analysis, or
  • Reduce MSD hazards to the extent feasible.

As described in the Risk Assessment and Economic Analysis sections of this preamble, much evidence in the record demonstrates that employers with existing programs are able to successfully control the MSD hazards in problem jobs to a level where an MSD is reasonably unlikely to occur.

Paragraph (k) of the final rule does not require employers to eliminate all MSDs. OSHA recognizes that, in a number of jobs, workplaces, and physical work activities it may not be possible to eliminate MSDs. OSHA is also aware that employers who have an effective ergonomics program may still receive reports of MSDs. The goal of the final rule is to assure that employers take effective action to control MSD hazards, and paragraph (k) tells employers how far they must go in implementing controls.

Paragraph (k)(1)(i)

An employer is in compliance with paragraph (k)(l)(i) when it reduces MSD hazards to the extent that they are no longer reasonably likely to cause MSDs that result in work restrictions or medical treatment beyond first aid. The hazard analysis conducted under paragraph (j) will have identified the risk factors of concern. To control the MSD hazard, the employer must reduce the magnitude, duration, or frequency of the risk factors to the level where they are reasonably unlikely to cause such MSDs. There are several ways an employer can achieve this goal.

First, the employer can reduce ergonomic risk factors below the levels in the Basic Screening Tool. The final standard recognizes that risk factors below the levels in the screening tool are not reasonably likely to cause MSDs, and allows an employer to discontinue his or her ergonomics program if it has reached those levels.

Second, the employer can otherwise control the hazards such that they are reasonably unlikely to cause MSDs. In some cases, the needed controls may be obvious or readily discoverable by reference to compliance assistance materials. In other cases, judgment may be required. In any event, the employer may refer to the method it used under paragraph (j) to determine whether the job presents a hazard. For example, the employer may use a professional trained in ergonomics to conduct the analysis and determine whether job conditions present a hazard and to recommend measures to control the hazard. The employer can also make use of its own knowledge and experience gained under its program.

The employer may also use hazard identification tools. As described above in the explanation of paragraph (j), the employer may choose from a variety of such tools. Appendix D lists a number of specific tools that provide safe harbors for compliance under paragraph (k)(1)(ii); however, the employer may also consider other tools that are effective in identifying hazardous levels of exposure in determining what controls to implement.

These examples are not intended to be exhaustive. They are intended to illustrate means employers may use to “control MSD hazards.”

Several points bear noting. First, the obligation is not to reach a level of absolute safety or to assure that no further MSDs will occur: it is to reduce the hazard so that work activities are not reasonably likely to cause MSDs. Second, the hazard reduction is targeted to MSDs that result in work restrictions (including days away from work) or medical treatment beyond first aid. These are serious conditions by any measure. Finally, the standard allows the employer to take up to two years to implement permanent controls. This extended period should be sufficient to allow for situations in which installation of effective controls requires a period of adjustment.

Paragraph (k)(1)(ii)

The second option is to reduce MSD hazards in accordance with or to levels below those in the hazard identification tools in Appendix D that the employer used to conduct the job hazard analysis. This appendix is intended to give employers specific guidance to help them determine whether or not they have gone far enough in controlling MSD hazards. As discussed more fully below, many rulemaking participants felt that the proposed rule was vague and shifted the burden of determining how far to control MSD hazards to employers (see, e.g., Exs. 30-1722; 30-3956, 35-106; Tr. 4110, 15648-15649) or suggested that OSHA provide, in the final rule, more guidance on how to make that determination (see, e.g., Exs. 30-1557, 30-2987, 30-3748, 30-3765, 32-133, 32-300). OSHA has responded to these comments by allowing employers the option of controlling MSD hazards to the specific levels set out in Appendix D.

Paragraph (k)(1)(iii)

Paragraph (k)(1)(iii) of the final rule states that employers are in compliance with the endpoint if they have reduced the hazard to the extent feasible. This paragraph applies when it is not feasible for employers to reach one of the endpoints in paragraphs (k)(1)(i) and (ii). It is included because OSHA has no authority to require employers to do what is not feasible or “capable of being done.” American Textile Mfrs. Institute v. Donovan (Cotton Dust), 452 U.S. 490, 509, 513 n. 31, 540 (1981). A control that will reduce a hazard in a job is feasible if it is achievable within the limits of current technology and knowledge and the employer's financial resources. An employer's inability to afford controls will not establish infeasibility if its level of compliance lags significantly behind the rest of its industry. See Section IV-A.6.a(4)(a) and (b) of OSHA's Field Inspection Reference Manual (CPL 2.103). See also, United Steelworkers v. Marshall, 647 F.2d 1189, 1269 (D.C. Cir. 1980).

OSHA is also requiring that employers who meet the compliance endpoint by being at the limits of feasibility, but have not fully controlled MSD hazards, periodically check to see whether new technology has been developed and is available. These checks must be carried out at least once every 3 years. When additional feasible controls are identified, the final rule requires employers to implement them until one of the compliance endpoints given in paragraph (k)(1)(i) or (k)(1)(ii) is reached. Requiring employers to look for and implement new control methodology ensures that an employer who has not fully controlled ergonomic hazards is not relying on obsolete control measures.

What Happens When a New MSD Is Reported After Controls Have Been Implemented?

Paragraph (k)(2) of the final rule tells employers what to do if an employee reports an MSD in a job in which the employer has implemented MSD hazard controls. If an employee makes such a report, the employer must check to see if the controls are still in place and are functioning and being used properly. The employer must also check to see if any new hazards exist that were not present when the job hazard analysis was conducted. The employer need not conduct another full job hazard analysis Start Printed Page 68347but may undertake a review of the previous job hazard analysis to determine if it is adequate.

Sometimes, after ergonomic control measures have been implemented in a problem job, another employee will experience and report an MSD. The injury could be a sign that the controls are not functioning correctly or that new hazards have arisen. For example, an employer might have, among other things, installed adjustable keyboard trays at each VDT station and trained employees in their use. If one of the keyboard trays gets out of adjustment, the operator using that tray might experience and report tendinitis in his or her wrists. An employer following paragraph (k)(2) of the final rule would check to ensure that the keyboard tray is still present and is adjusted properly.

Note to Paragraph (k)

A clarifying note at the end of paragraph (k) explains that the occurrence of an MSD in a problem job is not in itself a violation of the standard. This note emphasizes that the focus of the final rule's compliance endpoint is on the control of MSD hazards and not on the elimination of MSDs from the workplace. OSHA recognizes that, for a number of jobs, workplaces, and physical work activities, it may not be possible to eliminate MSDs. OSHA is also aware that employers who have effective ergonomics programs may still receive reports of MSDs. The goal of the final rule is to have employers put a good working system into place so that they can take effective action to control MSD hazards.

The Proposed Rule

The proposed rule would have required employers to meet one of three compliance endpoints:

  • Materially reduce MSD hazards in the problem job using the incremental abatement process;
  • Reduce MSD hazards in the problem job to the extent feasible; or
  • Eliminate MSD hazards in the problem job.

OSHA explained the first endpoint with a definition of “materially reduce MSD hazards.” The definition, which was repeated in a note following proposed § 1910.921(a), read as follows: “'Materially reduce MSD hazards” means to reduce the duration, frequency and/or magnitude of exposure to one or more ergonomic risk factors in a way that is reasonably anticipated to significantly reduce the likelihood that covered MSDs will occur.”

The following paragraphs discuss the comments, evidence, and testimony received on the proposed compliance endpoint and present OSHA's reasons for accepting or rejecting the rulemaking participants' suggestions and for including the final rule's compliance endpoint requirements.

1. Comments That the Proposed Compliance Endpoint Was Vague

Many of the comments and much of the testimony OSHA received on the issue of compliance endpoints stated that the language used to set compliance goals was vague and confusing (see, e.g., Exs. 30-333, 30-1722, 30-2208, 30-2387, 30-3765, 30-3813, 30-3853,30-3956, 30-4185, 30-4334, 30-4467, 32-300, 32-337, 440, 500-118, 500-188, 500-197, 500-221; Tr. 2960, 4109, 14986). In particular, these rulemaking participants argued that the related terms “material reduction or elimination of MSD hazards” and “materially reduce the MSD hazards” were so vague that employers would not know how far they had to go to control MSD hazards. For example, ORC said that those terms, together with the phrase “reasonably anticipated to significantly reduce the likelihood” in the clarifying note following § 1910.921(a), would prove to be compliance nightmares for employers and enforcement nightmares for OSHA (Ex 30-3813, 32-78). ORC claimed that the language in the note would breed unnecessary confusion. Further, Edison Electric Institute stated that the definition of “materially reduce MSD hazards” uses three terms, “reasonably,” “significantly,” and “likelihood,” that are themselves vague (Ex. 32-300). Several rulemaking participants believed that this vagueness would lead to unnecessary litigation (see, e.g., Exs. 30-3813, 30-3956, 30-4185, 30-3853, 32-337). James Lancour, representing EEI, was concerned that the vagueness would cause employers difficulty in program and training development, stating:

To provide reasonable program development and training one must clearly define the program endpoints and the steps to achieve these endpoints. The endpoints must also be objectively measurable to achieve the desired results. This proposed standard is so vague and ambiguous that neither the endpoints nor the measurement criteria are specifically defined.

How does one develop an ergonomic program, give guidance in determining compliance and provide general and specific training to facility program facilitators, managers and supervisors and employees when the terms of compliance are so poorly defined? [Tr. 2897]

Some rulemaking participants argued that OSHA left the word “feasible” undefined (see, e.g., Exs. 30-3956, 30-4334; Tr. 14986). For example, United States Senator Kit Bond observed that OSHA ignored comments from the Small Business Advocacy Review panel about the vagueness of the word “feasible” (Ex. 30-4334). The National Coalition on Ergonomics (NCE) stated that the lack of a suitable definition rendered the option to “implement controls that reduce the MSD hazards to the extent feasible” unclear (Ex. 30-3956). The Coalition said that OSHA had not provided any reliable guidance as to what “feasible” meant from either a technological or an economic standpoint. The Coalition believed that this left employers with no way of determining whether a particular hazard control was feasible for them.

Paul, Hastings, Janofsky, and Walker LLP also argued that the proposed standard's attempt at flexibility resulted in a standard using terminology full of ambiguity (Ex. 30-3231). The law firm believed that OSHA's enforcement staff would likewise struggle to understand the rule.

The National Coalition on Ergonomics (Ex. 30-3956) went further to suggest that the proposed language was so vague as to be unconstitutional:

It is fundamental that “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” Connally v. General Constr. Co.. 269 U.S. 385, 39 (1926). [Footnote omitted.] Thus, an occupational safety and health standard must give an employer fair warning of the conduct it prohibits or requires, and it must provide a reasonably clear standard of culpability to circumscribe the discretion of the enforcing authority and its agents. Dravo Corp. v. OSHRC, 613 F.2d 1227, 1232, 7 BNA OSHC 2089 (3d Cir. 1980). [Footnote omitted.]

* * * * *

The language and terminology used by OSHA in much of the proposed standard and Preamble is so vague and ambiguous that it fails to provide employers with adequate notice of what the standard will require and prohibit and, accordingly, is unconstitutionally vague. The proposed standard fails to provide employers with adequate notice as to the conditions, circumstances or activities in the workplace that cause MSDs and what employers must do to eliminate MSDs under the standard.

The following is a partial list of terms which are either vague and/or undefined and fail to provide employers with notice of the required performance under the standard—“material reduction or elimination of MSD hazards * * *” and “ergonomic hazard.” These terms are so ambiguous as to fail to provide employers * * * notice of what is required with respect to the fundamental provision of feasible control measures. [Ex. 30-3956]

Start Printed Page 68348

The AFL-CIO (Ex. 500-218) believed that the proposed standard was clear and that employers would be able to successfully carry out the obligations imposed by it. The union countered some of the vagueness arguments in its post-hearing submission:

Employers must control exposure to ergonomic risk factors to the point that covered MSDs are no longer “reasonably likely to occur,” in other words, to eliminate the “MSD hazard,” or reduce it to the extent feasible. * * *

The record demonstrates that employers will be able to accomplish this task. Utilizing various tools and other available guidance, employers have been able to measure and evaluate exposure to ergonomic risk factors and identify and implement controls to reduce those exposures. There is plentiful testimony in the record demonstrating that employers are able to ascertain conditions that present an ergonomics hazard and to identify and implement measures to reduce or eliminate the hazard.

* * * * *

The proposed standard is clear, and with the inclusion of the AFL-CIO's recommendations, will be even clearer, that an employer's obligation extends only to eliminating hazardous exposures at work. An employer's obligation to conduct job analysis and institute controls applies only where there is exposure on the job to an ergonomic risk factor or risk factors that occurs at a sufficient level of duration, intensity, or magnitude to present a risk of MSDs. Under OSHA's proposed screening criteria, an employer is only required to conduct a job analysis if there are “physical work activities and conditions in the job” that are “reasonably likely to cause or contribute to the type of MSD” being addressed, and “[t]hese activities and conditions are a core element of the job and/or make up a significant amount of the employee's worktime.” * * * If these screening criteria are not met, the occurrence of an MSD does not trigger any obligations on the employer's part. And the proposed standard limits an employer's control obligations to situations where there is substantial exposure to ergonomic risk factors on the job. If the employer's job analysis does not show the existence of a hazard, i.e., exposure to ergonomic risk factors that are reasonably likely to cause or contribute to a covered MSD, the employer is under no obligation to institute controls. The standard clearly limits employers' obligations to situations where there is significant exposure in the workplace, and limits employers' obligations to addressing hazardous exposures at work. [Ex. 500-218]

Dr. Frank Mirer of the UAW also believed the proposed rule was clear based on General Duty Clause ergonomic settlement language that was similar to that in the proposal (Tr. 5932).

OSHA does not agree that the language of the proposed rule was impermissibly vague. Nevertheless, OSHA has changed the compliance endpoints to respond to the vagueness comments and provide greater clarity. OSHA believes that the language of the final rule's three endpoints gives employers clear and understandable guidance as to what they must do. Employers who achieve the objective “safe harbor” endpoints in Appendix D are assured they are in compliance. This avoids the problem most frequently raised by commenters: That the proposal did not give employers objective criteria by which to measure their compliance obligations. The objective criteria in the Basic Screening Tool give employers an alternate clear means of assuring they are in compliance. OSHA has also sought to clarify the general performance terms like “MSD hazard” and “control MSD hazards” used in the standard. OSHA has clarified that an employer may rely on a safe-harbor hazard identification tool, a professional consultation, or any other reasonable method to define whether a hazard exists requiring control. OSHA has also dropped terms, like “incremental abatement process” and “material reduction,” that commenters asserted were especially unclear.

a. Comments that the language used in the proposed standard is so vague and subjective that it would lead to uneven enforcement. Some rulemaking participants who claimed the proposed endpoints were vague were also concerned about the possibility that the alleged vagueness would lead to uneven enforcement (see, e.g., Exs. 30-333, 30-1274, 30-3765, 30-3839, 30-3845, 30-4185, 440, 500-188, 500-197; Tr. 3330, 5439, 7211, 17891). They believed that the proposed definition of “materially reduce” and the corresponding explanation of that term in the preamble to the proposal would call for subjective judgments and would lead to disagreements between employers and OSHA enforcement staff. For example, The Forum for a Responsible Ergonomics Standard stated:

Enforcement of the proposed ergonomics program standard would require a degree of subjectivity in determining compliance unprecedented in the Agency's history. This is because of the nature of the area regulated combined with the vagueness of the proposed standard's requirements.

For example, proposed Section 1910.921 (a) provides that employers are in compliance if they implement controls that “materially reduce” MSD hazards in the job * * * OSHA recognizes that “a number of MSD hazards are complex and it may not always be clear what control(s) will achieve a material reduction in the probability that MSDs will occur.” * * * In an attempt to clarify what constitutes compliance with this requirement, OSHA then proposes that employers will be considered in compliance “if they select and implement the controls that a reasonable person would anticipate would achieve a material reduction in the likelihood of injury.” * * * However, the “reasonable person” standard is hardly a bright-line means of determining whether an OSHA inspector will find an employer in compliance.

This is only one example of how compliance with the proposed standard, at best, is dependent on interpretations of vague standards by OSHA inspection officials—individuals, at least to date, with little or no training in ergonomics, who inevitably will establish differing criteria to be applied to employer efforts in this area. [Footnote omitted.] This approach invites litigation over the meaning of such vague terms. Indeed, the “reasonable person” is a long-standing standard of tort law used by juries to assess the culpability of an individual; by its nature, it is open to interpretation.

Forum members fear that the vagaries of complying with the proposed standard may be held against them during the OSHA inspection process. By leaving too much to interpretation and failing to provide significant guidance, inspectors may be able to cite facilities despite their good faith efforts to comply. The lack of compliance guidance potentially is a fundamentally fatal flaw with OSHA's mandatory proposed standard and must be addressed by OSHA before a reasonable standard can be promulgated. [Ex. 30-3845]

The National Association of Manufacturers' post-hearing submission (Ex. 500-1) contained a letter from Scott Ward of Windings, Inc. Mr. Ward presented an analogy with how an existing performance standard is enforced. He described an example of how the existing standard on personal protective equipment has led to disagreements with OSHA's compliance staff and a citation:

[W]e provided gloves and design changes to a material (woven fiberglass tape) to reduce an irritation—not even a hazard, for there is no injurious nature to the material—and re-assigned an employee who suffered the most irritation so as to not aggravate a skin condition. However, a field inspector cited us for lack of an effective program even though we had reviewed the material's MSDS, provided the recommended (not required) personal protection equipment, accommodated employee's complaints and the inspector's own testing indicated that the fiberglass dust was well below exposure level limits. We had begun work on ventilation equipment to provide extra equipment and this engineer, who doesn't have air fluid dynamics training, said it wouldn't work. The citation was reduced but it stood. [Ex. 500-1]

OSHA received comments and testimony that the training of its field staff would significantly affect the reasonableness of the Agency's compliance efforts (see, e.g., Ex. 30-Start Printed Page 683491107; Tr. 5439, 7210). William Goldsmith, representing the U.S. Chamber of Commerce, was particularly concerned that the lack of training of OSHA field staff would lead to enforcement difficulties:

And it also bears noting that the companies at least the ones that I am familiar with involved in these cases had ergonomics programs. Dayton Tire did. Hudson Foods did. So when one looks at the past history of what has happened with trying to enforce the terms and the concepts that are ripe throughout this proposed standard, you I think get a fair picture of what will happen if the proposed standard becomes a final rule.

That is a compliance officer doing the best he or she can will come into a facility, will probably not be not very well trained through no fault of his own or indeed the agency's own, but because resources are limited, be making guesses as to what ergonomics stressors appear in what jobs and the litigation if that is what it is, if that is where results will begin. [Tr. 7210]

In their post-hearing submission, the Chamber noted that the American Society of Safety Engineers (at Tr. 11616) and the AFL-CIO (at Tr. 3498) agreed that training of OSHA's compliance staff would be crucial to the enforcement of the ergonomics standard (Ex. 500-188). The Chamber doubted, however, that such training would be successful:

Thus, it is beyond dispute that additional training is required. Of course, it is difficult to understand how the Agency will successfully provide such training since * * * even the individuals who drafted the Proposed Rule do not know what it means. [Ex. 500-188]

Craig Brightup of the National Roofing Contractors' Association, which was concerned about the impact on small businesses, expressed similar concerns:

OSHA's lack of enforcement restraint, coupled with the vagueness of the ergonomic standard, would be a disaster for small business. Chairman Talent stated in his comments, and I quote, “Instead of developing a standard that gives small businesses guidance and assistance in implementing physical changes to the workplace that reduce and eliminate MSDs, OSHA has left it up to employers to figure out how to prevent or eliminate MSDs. These vast regulatory crevices into which small businesses will inevitably fall will be filled by the unfettered discretion of OSHA inspectors as they determine compliance. (Tr. 3330)

Edison Electric Institute noted the possibility that compliance officers would second guess employers' decisions on control measures (Ex. 32-300). The Center for Office Technology was similarly concerned that the “subjective terms ‘reasonable’ and ‘likelihood’ make it impossible for either the employer or the OSHA inspector to know when an employer is in compliance [Ex. 30-2208].”

Some rulemaking participants went further, arguing that the vague language in the proposal forces employers to make subjective judgements about whether they have gone far enough to control hazards (see, e.g., Exs. 30-3853, 30-3956, 32-337, 500-27; Tr. 6219). The Integrated Waste Services Association and the National Coalition on Ergonomics (citing AFL-CIO v. OSHA, 965 F.2d 962 (11th Cir. 1992) at 976) stated that this is in conflict with the requirements of section 6(b)(5) of the OSH Act for the Agency to set standards using objective criteria. The Coalition stated that the Agency cannot expect an employer to decide about permissible exposure to MSD hazards when OSHA is unwilling or unable to make that determination.

Mr. Edward C. Laux of the International Cemetery and Funeral Association believed that the term “to the extent feasible” was subjective and would present compliance difficulties for employers. Mr. Laux compared compliance under the proposal's requirement to control MSD hazards to the extent feasible with the reasonable accommodation test in Title I of the Americans with Disabilities Act:

[Section 1910.921] provides that businesses must eliminate or materially reduce musculoskeletal disorder (MSD) hazards in the workplace “to the extent feasible.” This highly subjective standard presents difficulties of interpretation similar to the “reasonable accommodation” test in Title I of the Americans with Disabilities Act (ADA).

The ADA “reasonable accommodation” test at 42 U.S.C. 102(b)(5) and at 1630.9 of the U.S. Equal Employment Commission regulations requires employers to make alterations in the workplace for disabled workers unless the accommodation would impose “undue hardship” on the covered business. Interpretation of the terms “reasonable accommodation” and “undue hardship” must be made on a case-by-ease and business-by-business basis. As a result, interpreting these ADA terms has been the subject of administrative appeals and expensive litigation of which small businesses, in particular, are ill-equipped to afford.

The ICFA believes that the “feasibility” provision at 1910.921 of the proposed Ergonomics programs will result in similar conflicts of interpretation that cannot be resolved in a “one size fits all” application. Small businesses, which comprise 87 percent of the cemeteries and funeral homes in the United States, will be confronted by OSHA inspectors second-guessing their understanding of this vague provision and imposing fines on these businesses where they disagree with their judgment.

At that point, small businesses will be forced to choose between two highly unattractive alternatives: either to pay expensive penalties for noncompliance with a vague and subjective standard or to hire expensive lawyers to appeal and litigate the fines. The litigious history of similar language in the ADA removes any doubt that this scenario as applied to the Ergonomics standard is not only probable but certain. [Ex. 500-27]

b. Comments that the vagueness of the rule is compounded by the lack of scientific certainty. Some rulemaking participants argued that the lack of guidance was compounded by the scientific uncertainty of whether a given control measure would abate the hazards (see, e.g., Exs. 30-294, 30-461, 30-494, 30-1722, 30-2986, 30-3853, 32-337, 500-197; Tr. 3232, 11375). For example, the U.S. Chamber of Commerce stated, “At first glance, the ‘reasonableness’ element of these definitions seems to provide an employer a certain amount of leeway in eliminating or reducing the hazards. This, however, is not the case. Under current scientific principles, nobody knows the point at which the likelihood of an MSD occurring will be reduced.” The Chamber alleged that OSHA's experts admitted as much. The Chamber quoted small portions of two OSHA expert witnesses in Secretary of Labor v. Hudson Foods and Secretary of Labor v. Dayton Tire to support this point. The Chamber suggested that the witnesses could not quantify the reduction in the rate of MSDs resulting from a given control measure. The Chamber concluded:

These statements were made, it bears repeating, by people called by OSHA in litigated matters to support particular ergonomics allegations individuals whom, presumably, OSHA believed qualified enough to sponsor as experts at trial. Yet neither of them could support the efficacy of their particular recommended abatements in a particular workplace cited for particular violations of the General Duty Clause. Nevertheless, somehow OSHA expects employers * * * even small employers like the overwhelming majority of the Chamber's members * * * to develop their own effective control measures.

Although OSHA has shifted to the employer the burden to identify to what degree a “risk factor” must be reduced to prevent an MSD from occurring, that is a question nobody can answer. Indeed, OSHA concedes that “[b]ecause of the multifactoral nature of MSD hazards it is not always clear whether the selected controls will achieve the intended reduction in exposure to MSD hazards.” 64 Fed. Reg. at 65827. Furthermore, in some cases, particular ergonomic controls may cause more harm than good. 64 Fed. Reg. 65827 “[m]any employers evaluate controls within 30 to 60 days after implementation. This gives employees enough time to get accustomed to the controls and to see whether the controls Start Printed Page 68350have introduced other problems into the job.” (emphasis added). Because no one, including OSHA, is equipped to identify at what point an MSD is less likely to occur or to identify which abatement measures are effective in reducing such likelihood, this requirement is flawed beyond repair. [Ex. 30-1722]

The National Coalition on Ergonomics (Ex. 500-197) echoed the Chamber's point and argued that the rulemaking record demonstrated a lack of consensus regarding what control measures would be effective in reducing the rate of MSDs:

Ergonomics experts likewise admit the impossibility of predicting with any degree of accuracy the ergonomic modifications that will successfully reduce musculoskeletal complaints. [Footnote omitted.] In fact an expert testifying for OSHA in a general duty clause enforcement action said he would need a “crystal ball” to determine whether a particular abatement measure would eliminate ergonomic stressors.[10] [Footnote: Transcript, April 6, 2000, at 7191-92. In March of 1999, an expert ergonomist hired by OSHA in another matter confessed that there is simply no way to predict in advance the outcome of a particular abatement measure. He testified that it is impossible for an employer to know ahead of time whether a control measure will materially reduce or even reduce at all the rate of musculoskeletal complaints. Transcript, April 6, 2000, at 7194.] The lack of consensus regarding appropriate ergonomic interventions among the people who ultimately would be relied on to implement the proposed rule surfaced repeatedly in the hearings. The hearings also revealed the highly uneven track record of ergonomic interventions in the workplace and the consistent inability of ergonomics professionals to measure the effects of ergonomic interventions, or to predict when a particular intervention will be effective in controlling or abating targeted musculoskeletal complaints. [Ex. 500-197]

The Coalition further contended that no consensus exists as to who is best situated to identify effective ergonomic solutions (Ex. 500-197). The Coalition noted that some ergonomics professionals testified that employees are the best persons to identify controls but that others, including one of OSHA's expert witnesses, occupational health professionals, and employees themselves, stated that employees did not have the expertise necessary to identify control measures. NCE concluded this argument by stating: “OSHA has put the cart before the horse in promulgating a rule that requires employers to produce solutions that reduce ergonomic hazards when no available or reliable means exist for predicting or measuring the efficacy of ergonomic interventions.”

LPA, Inc., also objected to the proposed control endpoints because ergonomics is not an exact science (Ex. 30-494). LPA noted that the studies on which NIOSH and OSHA relied did not provide sufficient information to employers so that they could evaluate jobs, assess exposure to risk factors, and select controls that will eliminate the risk factors.

The Honorable David McIntosh, Chairman of the House Subcommittee on National Economic Growth, Natural Resources, and Regulatory Affairs, noted that even OSHA admits that most ergonomic fixes are not 100 percent effective (Ex. 30-542, 30-3010). He wrote:

A second problem is the lack of end points or clear criteria for determining when an employer has fulfilled his obligations. OSHA is an enthusiastic proponent of ergonomic “solutions.” But even OSHA admits that most ergonomic fixes are not 100 percent effective. [Footnote omitted.] For example, in shoe manufacturing, installing armrests and footrests, elevation and tilt equipment, better designed chairs, and pallet levelers to minimize bending while lifting reduced the “number of damaging wrist motions in assembly jobs by one-third,” reduced “disc compression forces in clerical jobs by about 17 percent,” and reduced “disc compression forces during lifting jobs by more than 50 percent.” [Footnote omitted.] Such workstation modifications undoubtedly reduce the risk of MSDs. But, suppose another MSD occurs after the employer has implemented those changes. What is the employer's obligation? Must he experiment with more engineering options? Must he slow the pace of work, or implement a job rotation system? [Footnote: “The answer appears to be ‘yes.’ Here is the regulatory language: ‘[Y]ou must continue this incremental abatement process if other feasible controls are available’ (1910.922(c)).”] How practical would that be in a small establishment? What if the only way to eliminate damaging wrist motions and disc compression forces is to eliminate the jobs that require wrist flexion and bending while lifting?

An employer can only guess when his efforts to reduce MSDs are adequate in OSHA's eyes, because the rule contains no outcome performance measures or benchmarks. Reducing MSDs by 50 percent or even 70 percent below current levels is no guarantee that an employer has done enough. Nor is it clear that reducing MSDs 50-70 percent below national average rates for particular kinds of jobs assures compliance with the rule. As long as MSDs occur, an employer remains vulnerable to legal challenge by his employees and OSHA. Yet eliminating all MSDs is beyond any employer's technical and financial resources. To say nothing of the fact that ergonomic “science” is still in its infancy, many MSDs are caused or aggravated by activities—sports, yard work, a second job—that may be completely outside an employer's control. The proposed rule thus gives OSHA an open-ended pretext to inspect, cite, and prosecute American companies. [Ex. 30-542]

Mayville Engineering Company, Inc.(Ex. 30-294) noted that it had difficulty applying controls to abate ergonomic hazards without having MSD symptoms surface in previously unaffected employees:

We had a facility that had 10 identical workstations that assembled radiator cores. We had 3 individuals, within a month, report MSDs. The three individuals had worked at these workstations less [than] 1 year. One of the individuals had only been doing this job 6 months. The other individuals working at the other 7 workstations had been working on these jobs from 3-10 years each and had not reported any MSD symptoms. During the hazard evaluation we questioned the 7 as to any problems they had with the workstations and they felt that the workstations were fine the way they were.

We made modifications to all 10 of the workstations based on the MSDs reported. The other 7 individuals started to report MSD symptoms with in 3 weeks. How would this be addressed in your Proposed Standard? [Ex. 30-294]

The National Coalition on Ergonomics noted that the hearing transcript included evidence of other similar instances that the Coalition claimed showed that ergonomic interventions were either ineffectual or created more problems than they solved (Ex. 500-197). On this point, NCE cited the experience of an office that handles 9-1-1 calls, a municipal solid waste department, the Social Security Administration, the Communications Workers of America, and Levi Strauss and Company. The Coalition also cited a passage from Dr. Emil Pascarelli's book, Repetitive Strain Injury: A Computer User's Guide: “All the ergonomic equipment in the world won't prevent RSI unless people who use computer keyboards learn how to type safely, pace themselves, and care for their upper bodies.”

Ms. Lisa Brooks, testifying on behalf of International Paper Company, stated that the current science of ergonomics did not support interpreting the proposed standard consistently for a particular job or task (Tr. 11375). She Start Printed Page 68351noted specifically that two lifting guides, Liberty Mutual's manual handling tables and the 1991 NIOSH lifting equation, provide different levels of acceptable risk. She was concerned that, if an employee's condition did not improve after applying the more liberal of the two guides, OSHA would force an employer to use the more conservative even though both are nationally recognized. Ms. Brooks argued that the language in the proposal left the employer in doubt:

Would the determination of the compliance end point change if the injured employee's condition did not improve?

The answer to this question depends upon the interpretation of reasonably likely to occur and significantly reduce the likelihood for a particular job or task.

Some could argue that since the injured employee's condition did not improve, the facility only materially reduced the musculoskeletal disorder hazards at the facility and that the facility must continue in the incremental abatement process and implement additional feasible controls.

Once in the incremental abatement process, the compliance end point becomes tied to the recuperation of an individual. [Tr. 11377]

Ms. Brooks concluded by urging OSHA to postpone the promulgation of the ergonomics standard until it could be written so that compliance can be consistently and objectively measured (Tr. 11381).

c. Comments that OSHA has not provided sufficient guidance for employers to comply with the proposed standard's compliance endpoint. Many rulemaking participants were concerned that the proposed standard and the preamble discussion of the regulatory text provided little hazard control guidance for employers (Ex 30-1536, 30-1722, 30-3813, 30-3845, 30-3956, 30-4185, 32-300, 35-106, 500-197). Some were concerned that employers, particularly small ones, would not have the resources to implement the requirements in the proposed standard or to make the judgments it calls for (see, e.g., Exs. 30-1536, 30-2834, 30-3077, 30-3348, 30-3751; Tr. 3330, 8226). These commenters argued that this would force many employers to hire an expert.

Some rulemaking participants believed that OSHA should provide additional guidance for the terms and concepts used in this part of the standard (see, e.g., Exs. 30-1557, 30-2987, 30-3748, 30-3765, 32-133, 32-300). For example, ORC and Edison Electric Institute urged OSHA to include a nonmandatory appendix listing risk factors and examples of acceptable controls (Ex. 32-300). The American Association of Occupational Health Nurses urged OSHA to provide clarification for situations in which MSDs are still being reported after all feasible controls have been implemented (Ex. 30-2387). Dow Chemical Company suggested that the Agency could put appendix-like material on its Web site (Ex. 30-3765). Dow also asked for guidance on the type and amount of improvement that was expected under the incremental abatement process and on the amount of time that was allowed to pass between incremental abatement measures. The American Health Care Association recommended defining “feasible” and better explaining the term “materially reduce” (Ex. 30-2987). At the hearing, Frank White described ORC's position as follows:

How do I know when I've achieved compliance? Now I understand that OSHA struggles with this issue, but the proposed sections 921 and 922 we believe are off the mark.

In ORC's opinion, the difficulty of establishing precise exposure response relationships between the particular health effects being regulated and a specific workplace risk factors that allegedly cause those condition does not relieve OSHA of the [basic] obligation to provide some quantitative guidance to employers on a point at which significant risk is substantially reduced.

Only in this way will an employer be able to determine whether taking action to control particular workplace risk factors is likely to materially reduce the risk of the specific musculoskeletal disorder that has occurred. [Tr. 4109]

The American Industrial Hygiene Association (AIHA) supported the proposed standard's performance-based compliance endpoint (Ex. 32-133). However, AIHA also believed that OSHA should provide additional guidance. The Association stated:

AIHA supports the fundamental performance-related elements of the proposed ergonomics standard.

The requirement to eliminate or materially reduce ergonomic problems to the extent feasible is a valid performance criterion. Similarly, the “incremental abatement process” is performance-based and recognizes the complex nature of ergonomic problems.

Whether a risk-based approach is considered or not, OSHA should add some appropriate examples of risk assessments so that employers can utilize appropriate guidelines and have an idea of what compliance officers will be looking for. OSHA should recommend a variety of risk assessment approaches and describe how enforcement of the standard will take place. [Ex. 32-133]

The Employment Policy Foundation suggested that OSHA include a detailed table to serve as a guide to compliance and to facilitate verification of the Agency's cost estimates (Ex. 30-1557). The Foundation argued that each of the major compliance elements involves several subsidiary compliance tasks. The Employment Policy Foundation provided a table of the tasks that it believed the standard required and recommended that OSHA include one like it in the final rule. The Foundation's table included not only compliance endpoint-related tasks, but tasks related to all aspects of the standard.

d. OSHA's response to these comments. In response to the many commenters arguing that the proposed compliance endpoints were too vague and failed to give adequate notice to employers, would lead to uneven enforcement, OSHA has added objective compliance endpoints to the final rule. The three acceptable endpoints are: (1) Control of MSD hazards, (2) reducing MSD hazards in accordance with or to levels below those in the hazard identification tools in Appendix D that the employer used to conduct the job hazard analysis, and (3) controlling hazards to the extent feasible. The Agency has explained each of these options above.

The second compliance endpoint, reducing MSD hazards in accordance with or to levels below those in the hazard identification tools in Appendix D, provides objective criteria to help employers attain an endpoint. In Appendix D-2, OSHA is providing a chart outlining reasonably objective measures of acceptable levels of ergonomic risk factors for VDT operations. In Appendix D-1, OSHA is referencing existing tools that employers are currently using to identify and control ergonomic risk factors. OSHA believes that these tools will provide employers with a bright line method against which they can judge whether their compliance efforts meet the final standard's compliance endpoint.

The employer also has the option “to reduce MSD hazards to the extent that they are no longer reasonably likely to cause MSDs that result in work restrictions or medical treatment beyond first aid.” OSHA is providing sufficient guidance, in the preamble, appendices to the standard, and compliance assistance materials, to help employers understand and follow this compliance endpoint. The employer will have to use some judgment and will need to be knowledgeable about the relationship between risk factors and the different types of MSDs when using this endpoint. Many rulemaking participants presented examples of measures they have used to adequately control Start Printed Page 68352ergonomics hazards (see, e.g., Exs. 32-274, 500-6, 500-12, 500-50; Tr. 8557, 8579, 11533, 12564, 14972). They clearly understood what needed to be done to control the hazards and where to find the tools to accomplish that goal.

The extensive scientific basis for OSHA's standard is discussed in the Health Effects and Risk Assessment sections of this preamble. However, it is not necessary for an employer to have a complete grasp of ergonomics science in order to comply with the final rule. Many witnesses testified that they had little or no difficulty in addressing jobs successfully (See, e.g., Ex. 32-274; Tr. 11532, 12461, 14708, 14836, 15046), and OSHA has given employers extensive flexibility in addressing these hazards, together with many tools and models to use. In addition, many problems and solutions are readily apparent after observing a job and talking with employee. The availability of professionally-developed tools and the compliance assistance tools being provided by the Agency will also help employers select appropriate control measures to reduce MSD risk factors sufficiently. These risk reductions will lead to a corresponding reduction in the incidence and severity of MSDs at the workplace.

With respect to Mayville Engineering Company's and the National Coalition on Ergonomics' comments that efforts to control MSD may create other MSD hazards and lead to more injuries, OSHA notes that it is possible for certain interventions to increase some risk factors at the expense of the ones an employer is trying to control. However, it does not automatically—or normally—follow that decreasing the duration, frequency, or magnitude of one risk factor will increase another. If that were the case, ergonomic intervention studies, such as those depicted in the Risk Assessment section of the preamble, would be very infrequent, rather than the norm for those employers making a good faith effort at addressing these hazards. It should also be noted that in one of the cases cited by the Coalition, the employer saw an overall decrease in the number of MSDs from the control measures, and further measures were taken to lower the risk factors causing the new MSDs (Tr. 17822 [11] ). In another case, a company representative testified that the company “put in place a wide variety of effective controls” (Tr. 14706).

Thus, OSHA has concluded that the final rule's endpoint is scientifically sound and will help reduce the number and severity of MSDs in the workplace.

OSHA agrees with commenters, like the National Coalition on Ergonomics, the AFL-CIO, and the American Society of Safety Engineers (Tr. 3498, 7210, 11616), who stated that enforcement of the final ergonomics standard will necessitate extensive training of the Agency's compliance staff. OSHA compliance officers will need to be educated in the requirements of the standard, signs and symptoms of MSDs, ergonomic risk factors, and appropriate control measures, among other things, so that the Agency can enforce the standard in a uniform and reasonable manner. Such training, based on the final standard and on the compliance guidelines contained in this preamble and the appendices to the final rule, is currently being developed and will be provided before the compliance deadlines in the standard.

2. Comments on Whether the Proposed Compliance Endpoint Would Illegally Delegate Rulemaking Responsibility

a. Comments that the proposed rule would shift the burden of determining the compliance endpoint to employers. Some rulemaking participants objected that the vagueness inherent in the proposed language shifted much of the burden placed by the OSH Act on OSHA to employers (see, e.g., Exs. 30-1722; 30-3956, 35-106; Tr. 4110, 15648-15649). The U.S. Chamber of Commerce argued that the proposal left to employers the determination of the safe exposure level and the appropriate controls (Ex. 30-1722). Even though it recognized that the proposed standard properly allowed the employer flexibility, the Chamber stated that the proposal went too far:

Under the Proposed Rule, it is up to the employer to do the Secretary's job of setting a standard that “most adequately assures, to the extent feasible, * * * that no employee will suffer material impairment of health or functional capacity,” 29 U.S.C. § 655(b)(5), from exposure to perceived ergonomic hazards. It is the employer that must determine when an employee is at risk from hazards that are “reasonably likely to cause or contribute to MSD[s].” Proposed §§ 1910.917, 1910.944, 64 Fed. Reg. at 65832. 65864. And it is up to the employer to determine any combination” controls either to eliminate the hazards or to at least reduce them “to the extent feasible.” Proposed §§ 1910.917, 1910.920(a), 64 Fed. Reg. at 65803, 65828. While the Preamble contends that [t]here are many qualitative and quantitative ways to determine the magnitude of exposure,” * * * the Proposed Rule fails to set objective levels at which an employer would be required to act. Moreover, the Proposed Rule fails to identify specific measures that an employer must implement to control these supposed hazards. The Act requires the Secretary to make these decisions * * * which the Secretary concedes are impossible to make * * * and not simply to foist that obligation on the regulated community under threat of considerable civil penalties and compliance costs. [Ex. 30-1722]

The National Coalition on Ergonomics made a similar point:

The proposed standard is so vague and ambiguous that arguably, through its adoption, OSHA will have shifted the burden of identifying the hazard (which is clearly OSHA's duty) and the appropriate response to the hazard (which is also clearly OSHA's duty) to employers. At the same time, the proposed standard fails to clearly state or place meaningful boundaries on what may be required by enforcement personnel to such [a] degree that, if adopted, the standard would represent an unconstitutional delegation of authority from Congress to OSHA. [Ex. 30-3956]

OSHA believes that the final standard is sufficiently clear to inform employers of their obligations, and therefore does not place impossible burdens on employers. The final rule gives employers options. Employers may, but are not required, to use the objective criteria in Appendix D to determine the hazard control level. The rule also gives employers the flexibility to use alternate performance-based measures.

b. Comments that the proposed rule would shift the burden of determining feasibility and compliance endpoints to OSHA compliance staff. The American Iron and Steel Institute (AISI) stated that the proposed standard improperly delegated rulemaking authority to OSHA's compliance staff (Ex. 500-223). AISI contended that the proposed rule was equivalent to requiring each employer to issue an unlimited number of blank checks for ergonomic control measures and allow OSHA to fill in the amounts. The Institute argued: “The mere possibility that the proposed standard is written in such a way as to permit OSHA to adopt * * * an unreasonable and impermissible Start Printed Page 68353enforcement strategy, contrary to applicable Constitutional and statutory requirements, leads to the unavoidable conclusion that the proposed standard is fatally defective and should be withdrawn. [Ex. 500-223]”

As noted in the discussion of the previous issue, OSHA has given employers sufficient guidance so that they can determine, before an inspection occurs, whether or not they are in compliance with the rule. In fact, if an employer reduces MSD hazards in accordance with or to levels below those in the hazard identification tools in Appendix D (or the more stringent Basic Screening Tool), there is no doubt that an employer is complying with the final rule's compliance endpoint. OSHA compliance staff will therefore have no difficulty determining whether an employer is complying with Appendix D. The remaining endpoints, controlling MSD hazards and feasibility, give added flexibility to those employers who believe that they can control MSD hazards by means other than the endpoints in Appendix D or who cannot feasibly reach those levels. Consequently, the final rule does not improperly delegate rulemaking authority to OSHA compliance staff.

3. Comments on Whether the Proposed Compliance Endpoint Would Force Employers To Go Too Far in Controlling MSD Hazards

a. Comments that the proposed standard would force employers into a never-ending circle of hazard control improvements. Some rulemaking participants were concerned that employers would face a never-ending circle of hazard control improvements (see, e.g., Exs. 30-1722, 30-3956; Tr. 3171). For example, the National Coalition on Ergonomics stated that as long as ergonomic complaints [12] continued, employers would need to go further and further in the incremental abatement process (Ex. 30-3956). In addition, the Coalition asserted that, except where the employer can show the problem is unique to an individual employee, the employer would be obligated to implement corrective action not only for the complaining employee but for every employee doing the same job or another job involving the same or similar work activities. The Forum for a Responsible Ergonomics Standard went further, arguing that this portion of the standard was infeasible:

OSHA's proposal is infeasible, however, because it requires an undefined “material reduction” in MSDs, despite the fact that no technology, work practice, or other type of control exists that will ensure such reductions. Any mandatory standard must take into account the fact that numerous controls may be available and, perhaps, effective to some degree, but that they cannot ensure any rate of success in reducing MSD injuries or hazard factors. Employers simply will not be able to guarantee compliance with the standard, no matter what efforts they make to adhere to OSHA's proposed program. [Ex. 30-3845]

The American Iron and Steel Institute argued that the standard would necessitate more and more controls as employees deconditioned by an increasingly sedentary workplace would have less capacity to tolerate demanding physical activity (Ex. 30-3951, 32-206).

Under questioning at the hearing, Mr. Thomas Durbin of PPG Industries was concerned that an employer following the incremental abatement process would need to continue to apply control measures even after all workplace ergonomic stress factors were eliminated as long as MSDs continue to occur (Tr. 3171).

These comments are based on the false premise that an employer would not be finished applying ergonomic control measures until all MSDs disappear from the workplace. OSHA has drafted the final ergonomics standard to make it clear that this is not the case. The goal of the final rule is the reduction in workplace MSD hazards, that is the reduction in the frequency, magnitude, or duration of the risk factors causing MSDs in problem jobs. When an employer controls these risk factors to a level meeting one of the compliance endpoints given in paragraphs (k)(1)(i) through (k)(1)(iii), the employer does not have to institute further controls even if MSDs continue to occur. Consequently, OSHA has concluded that the final compliance endpoints will not force employers into a never-ending circle of hazard control improvements.

b. Comments that the proposed standard forces employers to experiment with control measures until they find one that works. Some rulemaking participants objected that the incremental abatement process would require employers to experiment with hazard control technologies of uncertain efficacy until the employer cannot afford to implement additional controls (see, e.g., Exs. 30-296, 30-402, 30-1722, 30-2134, 30-4185; Tr. 4906, 5645). For example, the Chamber (Ex. 30-1722) argued that OSHA has left to employers what the Agency cannot do itself, that is, determine what controls will reduce significant risk to employees:

In sum, it is plain that the Agency is unable to make the difficult policy choices that Section 6(b)(5) places squarely in its hands, and that instead OSHA has chosen to defer these choices to the regulated community. The only justification that the Agency proffers for this flawed approach is that OSHA simply cannot determine broad standards that would be appropriate for the wide variety of covered industries and jobs. However, OSHA has fared no better in assessing causation and appropriate abatement when dealing with individual workplaces and specific jobs in enforcement proceedings. Thus, as noted above, OSHA has lost on one or both of those grounds in every ergonomics case it has litigated on the merits * * *. If, as these cases show, OSHA cannot determine what causes musculoskeletal complaints in a particular job-and how to abate them properly, there is no reason to think that employers will fare any better. [Ex. 30-1722]

The National Coalition on Ergonomics detailed this argument in their post-hearing submission (Ex. 500-197). The Coalition contended that ergonomics professionals are unable to articulate effective solutions to ergonomic problems in other than vague generalities, leaving employers little choice but to engage in trial and error experimentation. Because its review of the hearing transcript could not identify a single witness who was able to identify a particular ergonomic intervention that is sufficient to satisfy the rule, the Coalition questioned how well employers would be able to choose controls that would bring them into compliance.

In its post-hearing submission, Federal Express (FedEx) gave an example purporting to show how the company would be forced into experiments to try to reduce ergonomic risk factors further (Ex. 32-208). Federal Express noted that the existing workspace for package handlers is optimized so that a single employee reaches as short a distance as possible given the design of the conveyors, trucks, and other equipment. FedEx indicated that redesigning the space to accommodate a second employee would actually increase the distance packages are handled. The company argued that trading one risk factor for another, as such a redesign would cause, would have an unpredictable effect on the number of MSDs for that job.

On the other hand, Mr. Sittichoke Huckuntod, testifying on behalf of Levi Strauss and Company, acknowledged that industrial safety design is a system of trial and error by its very nature (Tr. 14747). The Forum for a Responsible Ergonomics Standard noted that addressing MSD hazards is an iterative process, often requiring significant trial Start Printed Page 68354and error before improvements are realized (Ex. 30-3845).

OSHA acknowledges that fully solving ergonomics problems is not always straightforward. Some employers who have little or no expertise in ergonomics will indeed need to undergo some trial and error in their hazard control efforts. As noted by Ms. Sharon Murray, the former director of Rochester Office of Emergency Communications (a 9-1-1 call center), employees might not use new equipment intended to reduce risk factors in the manner anticipated by the employer (Tr. 17819). For example, when an employer institutes a control measure designed to reduce awkward wrist postures, it might increase long reaches for some employees. In Ms. Murray's case, the unanticipated hazard was a relatively simple problem to resolve (Tr. 17823).

The Agency does not believe that this trial and error is unique to ergonomic hazards. As Mr. Huckuntod acknowledged, industrial safety design is a system of trial and error by its very nature (Tr. 14747). A new ventilation system, for example, might not work as it is designed to, and the employer might have to modify it after its initial installation.

OSHA has removed the proposal's incremental abatement option and believes that employers will be able to meet the final rule's compliance endpoints with a minimum of experimentation. As the AFL-CIO (Ex. 500-218) noted, “Several experts, including David Alexander (Tr. 2518, 2716), David Caple (Tr. 2716), and Dennis Mitchell (Tr. 2530), testified that in 80-85 percent of cases, ergonomic problems can be solved with one intervention.” With the compliance assistance tools provided by the Agency, even small employers should be able to reduce MSD risk factors to acceptable levels with a minimum of experimentation. For these reasons, OSHA concludes that the final rule will not lead to undue experimentation by employers.

c. Comments that the proposed standard places no limit on how far an employer must go in controlling MSD hazards. Some rulemaking participants objected to any compliance endpoint that required an employer to eliminate MSD hazards from the workplace because such an endpoint places no limits on how far an employer must go in controlling MSD hazards (see, e.g., Exs. 30-2208, 30-3765, 30-3956, 30-4185). For example, Dow Chemical Company noted that there is no such thing as zero risk and that this approach was inconsistent with OSHA's standards on toxic chemicals, which set exposure levels that entail some residual risk to employees (Ex. 30-3765). The National Coalition on Ergonomics also argued that the open-ended requirement to use all feasible control methods until the risk of an MSD reaches zero conflicts with well-established case law to the contrary (Ex. 30-3956). The Center for Office Technology also believed that OSHA is obligated to set a threshold above zero risk (Ex. 30-2208). Patrick Tyson of Constangy, Brooks and Smith asserted that the proposed rule, in essence, defined an MSD hazard as the existence of even one MSD in a 3-year period (Ex. 30-4185). Mr. Tyson contended that a rate of one OSHA recordable MSD every 3 years does not constitute a significant risk.

Some rulemaking participants were concerned that the standard placed no limits on the controls that an employer would be forced to implement (see, e.g., Exs. 30-494, 30-2208, 30-3765, 32-211, 32-234; Tr. 10429, 10950). For example, Dow Chemical Company questioned the extent to which employers would need to go to avoid citations (Ex. 30-3765). Dow believed that the proposal would require employers to adopt the latest technology regardless of cost or how great the reduction in hazards. Mr. Gregory Watchman of Paul, Hastings, Janofsky and Walker stated that, if MSD signs and symptoms continue to occur, even on a sporadic basis, the employer would be forced to implement additional abatement measures indefinitely (Ex. 32-211). Mr. Watchman reasoned that the duty to implement additional controls would be triggered very frequently in most workplaces because of the frequency with which workers experience short-term discomfort, aches, and pains.

Mr. George Page, the owner of a small industrial engineering and ergonomics consulting firm, provided an example of why he thought the proposal's compliance endpoints went too far (Tr. 10429). He testified about a client who had instituted a variety of ergonomic initiatives with good results. Mr. Page was not sure whether the employer would be in compliance with the proposed rule.

The American Dental Association provided a theoretical example of how far the Association would have to go to control MSD hazards at their headquarters:

The ADA headquarters is located in a building that was built more than 35 years ago. The work areas were designed and furnished before the proliferation of modem computing activities. It would not be cost-effective, or in some cases even possible, to retrofit them to satisfy the proposed standard. Thus, the ADA could be required to substantially rebuild or replace affected work areas, furnishings and equipment in order to comply. It is difficult at this point to determine the full scope of the ADA's compliance burden, because the proposed standard would require the ADA to continue to implement incremental changes to its work environment until it substantially reduced or eliminated the incidence of covered MSDs. Because 50% of the ADA's workforce is engaged in the same or similar work activities, the Association would be required to implement these changes for 200 employees simultaneously, even though only one employee reported a problem.

The ADA has made—and will continue to make—adjustments to keyboards, monitors and other peripheral aspects of its work environment, but for reasons of providing a more comfortable and efficient workplace for its employees, not because of some highly speculative benefit. However, there is no assurance that these simple measures would be sufficient to achieve compliance under the standard's incremental approach to compliance. [Ex. 32-141]

Federal Express argued that, because of the unique nature of its facilities, the company would see no appreciable effect from incremental changes to its workstations (Ex. 32-208). Federal Express further argued that only a complete redesign would accomplish anything more than negligible improvements in the number of workplace MSDs:

While the proposed ergonomics standard provides for incremental changes to the work environment until “covered MSD” are significantly reduced, [footnote omitted] the unique nature of the facilities at and the corporate experience of FedEx is such that incremental changes would have no appreciable effect upon * * * reducing “covered MSD,” and only a quantum change involving complete redesign and reconstruction of facilities may potentially yield measurable results. Even then, it is not clear that the changes in outcome in which OSHA is interested is the result of these changes. The reason for the nebulous impact of incremental change is two-fold. First, the nature of the physical facilities which FedEx operates is such that space limitations do not allow further design alterations, added equipment, or additional, extraneous staffing. Second, FedEx's facilities, operational process and equipment have all been designed and employed with the application of ergonomic principles for the purpose of improving productivity. As a result, incremental changes to the workplace in the context of FedEx's facilities, which are already at or near the frontier of automation and technical feasibility will fail to have an appreciable impact upon the reduction rate of “covered MSD.”

* * * * *

To be sure, some incremental changes can be made. FedEx does not assert an “all or nothing” position, wherein absolutely no space whatsoever remains for incremental changes to be made in the existing facilities. Start Printed Page 68355Rather, FedEx asserts that, to effect a material reduction in work-related “covered MSD,” the changes required would be quantum in nature, so as to necessitate an entirely new facility. The space limitation upon the existing facility will admit of some, very limited incremental changes, but those changes would be so limited by space, so ephemeral in nature, as to be ineffective in reducing “covered MSD.”

For example, the design for the existing facilities, while tailored to the number of employees required to complete a task, is not precise to the person with regard to every position in the sort facility or even in the trucks or customer service stations. Rather, one additional person can, conceivably, be added to the workforce in some capacity in some facilities, in a manner where he or she will not detract from the efficiency of FedEx's operations. FedEx maintains, however, that the increase of one additional individual is not an administrative or work practice control which will render a material reduction of any hazard at all. In fact, the effect will not be noticeable, except on reduced efficiency. Once the workplace is increased significantly beyond one additional person, however, the facilities's space limitations operate to reduce both operational efficiency and workplace safety. [Ex. 32-208]

Patrick Tyson of Constangy, Brooks and Smith objected to the extent to which the proposed endpoint would require employers to go to reduce ergonomic hazards (Ex. 30-4185). He stated:

Having stated our objections, not to the need to implement engineering controls, but to the point at which such controls must be implemented, we also submit that contrary to OSHA's assertion in the Preamble that the proposed Standard establishes “control endpoints” which define when an employer is in compliance, there are two inter-related problems with § 1910.921. First, for any manufacturing jobs in which employees perform repetitive motion tasks for a significant part of the work day, as a practical matter, an employer's legal duty will never be satisfied until employees are no longer performing the manual tasks. We question whether the Agency should promulgate a Standard with this result, even if unintended. Secondly, although § 1910.921 is apparently intended to state that employers can be in compliance short of automating the job functions, we believe that there is no objective measure of compliance short of either automating the job task or function or eliminating it. [Ex. 30-4185]

He contrasted this with the expectation of OSHA enforcement staff that employers, under their existing general duty clause obligations, must institute controls that lead to a reduction in the seriousness of MSDs, not in their numbers. He also contrasted the standard's requirements with the experience of one of his firm's clients, who had instituted an ergonomics program and had 6-years' experience with it. This employer had spent over $19.5 million in capital improvements to reduce lifting hazards in six facilities and reduced the number of recordable MSD cases, including back cases, by less than 50 percent over the last 5 years of the program (through 1999). Mr. Tyson was particularly concerned that the standard would require this employer to institute further controls.

Here again, these comments are based on the false premise that an employer would not be finished applying ergonomic control measures until all MSDs disappear from the workplace. The final rule's compliance endpoints do not require employers to go that far in controlling MSD hazards. In fact, all the compliance endpoints in the final rule contain discrete stopping points that allow an employer to stop even if MSDs continue to occur. One of the endpoints, reducing MSD hazards in accordance with or to levels below those in the hazard identification tools in Appendix D, provides objective measures against which an employer can determine whether it has fulfilled its compliance obligations. When the employer reduces the risk factors below those levels, he or she is finished instituting control measures. The control of MSD hazards endpoint, although not as specific, also allows an employer to stop even if MSDs continue to occur. That endpoint, paragraph (k)(l)(i), requires reducing the hazard to the level where MSDs resulting in work restrictions or medical treatment are reasonably unlikely, not to the level of absolute safety or no MSDs. The endpoint will not require employers to seek to eliminate all aches and pains or symptoms of discomfort, as feared by Mr. Watchman. The required hazard reduction is directed at MSDs that require work restriction or medical treatment. The last endpoint is reducing MSD hazards to the extent feasible. When the employer has reached the limits of feasibility, he or she is in compliance regardless of whether MSDs are continuing to occur, at least until additional controls become feasible.

d. Comments that requiring employers to go to the limits of feasibility is unreasonable. Some rulemaking participants were concerned that the proposed requirement to control hazards to the extent feasible would require employers to continually review ergonomic research for the latest in control technology (see, e.g., Exs. 30-2208, 30-2987, 30-4607, 32-234). For example, the Center for Office Technology argued that this requirement would be very costly as employers would be forced to replace office furniture every time a new desk is offered for sale. Concerned that employers would be forced to conduct constant reviews of new technology, the American Health Care Association recommended that OSHA provide technology and program upgrade information (Ex. 30-2987). The Association believed that the Agency was in a better position to determine when new and credible research made new control measures available. Caterpillar, Inc., stated that once ergonomic complaints cease there would be no need to review new technology (Ex. 30-4607). Caterpillar recommended that the standard not require the employer to assess additional controls unless a new MSD occurs.

Federal Express argued that, because an employee must handle every package at some point in the delivery process, complete elimination of human involvement cannot be achieved in its line of work (Ex. 32-208). In addition, Federal Express believes that it has reduced manual handling at its facilities as much as it can and, thus, is already at the limits of technological feasibility.

Keller and Heckman, L.L.P. believed that the proposed standard would require employers to research and develop technology to meet the proposal's compliance endpoint (Ex. 500-221). The law firm argued that the approach taken by the proposal was legally indistinguishable from the research and development requirement that the Third Circuit invalidated in American Iron & Steel Institute v. OSHA, 577 F.2d 825, 838 (3rd Cir. 1978). In that case, the Court held:

29 U.S.C. § 665(b)(5) grants authority to the Secretary to develop and promulgate standards dealing with toxic materials or harmful agents “based upon research, demonstrations, experiments, and such other information as may be appropriate.” Under the same statutory provision the Secretary is directed to consider the latest scientific data in the field. As we have construed the statute, the Secretary can impose a standard which requires an employer to implement technology “looming on today's horizon,” and is not limited to issuing a standard solely based upon technology that is fully developed today. Nevertheless, the statute does not permit the Secretary to place an affirmative duty on each employer to research and develop new technology. Moreover, the speculative nature of the research and development provisions renders any assessment of feasibility practically impossible. In holding that the Secretary lacks statutory authorization to promulgate the research and development provision, we note in passing that we need not reach petitioners' challenge to the provision as fatally vague. Accordingly, we hold the research and development provision of the standard to be invalid and unenforceable. Start Printed Page 68356[American Iron & Steel Institute v. OSHA, 577 F.2d 825, 838 (3rd Cir. 1978) as quoted by Ex. 500-221]

Paul, Hastings, Janofsky, and Walker LLP stated that the preamble to the proposal indicated that the standard would be technology forcing:

The agency's impossibly burdensome definition of technological feasibility would make compliance * * * virtually impossible. OSHA asserts that a hazard control methodology is technologically feasible even if it is not currently available.

Thus, OSHA could issue citations and civil penalties to a small employer for failing to implement non-existent equipment that “can be developed by improving existing technologies” or that is “on the horizon of technological development.” 64 FR at 65823. [Ex. 30-3231]

The National Solid Wastes Management Association (Ex. 32-234) argued that OSHA's description of “technological feasibility” would make compliance with the proposed endpoint virtually impossible:

OSHA asserts that a hazard control methodology is technologically feasible even if it is not currently available. Thus, OSHA could issue citations and civil penalties to a small solid waste industry employer for failing to implement non-existent equipment that “can be developed by improving existing technologies” or that is “on the horizon of technological development.” 64 FR at 65823. [Ex. 32-234]

The American Transportation Association argued that OSHA could conclude that the employer had not gone far enough to control hazards even in the absence of continued MSDs (Ex. 30-4465). In support of this argument, the Association stated, “if MSD symptoms persist, even on an occasional basis, an employer must continue to implement additional measures until it has exhausted all feasible controls.”

LPA, Inc., and others contrasted the types of controls OSHA has required when it cited employers for failing to abate ergonomic hazards under the general duty clause with the types of controls the Agency has stated that it will accept under the proposed rule (see, e.g., Exs. 30-494, 32-208). LPA argued as follows:

Once a hazard is identified, an employer must implement “feasible” controls to try to eliminate it. A feasible control is one that is already being used elsewhere in the same job, can be adapted for the job, or “is on the horizon of technological development.” [Footnote omitted] OSHA insists that the available controls to fix hazards are usually neither complex nor costly. Although such controls may be accomplished through physical changes to the job, changes in work practices, or training in proper work techniques, [Footnote omitted] the standard expresses a preference for physically redesigning the job.

When citing ergonomics hazards under the general duty clause, however, OSHA has often required substantial physical changes, such as completely redesigning an assembly line and rebuilding the cab of a large crane. In many cases, these engineering controls favor automation and result in lost jobs. [Ex