Risk Management

Law: OSHA Issues Final Ergonomics Regulation, Lawsuits Follow

How you are affected and what it will cost.
Jennifer CaplanDecember 1, 2000

See all of those people busily typing outside your office?

Well, the harder they work, the more it could wind up costing you. Why?

On November 14, the Occupational Safety and Health Administration (OSHA) adopted a final ergonomics regulation, which addresses repetitive motion injuries, such as carpal tunnel syndrome and tendinitis. The “ergo” standard, one of the Clinton administration’s last pieces of legislation before handing over the reins of power, goes into effect on January 16, 2001. Businesses, however, are not required to comply until October 2001.

The ergo regulation represents a victory for workers who had heretofore lacked legal protection against repetitive injuries caused or exacerbated by hazardous job conditions. Not surprisingly, the business community has generally opposed ergonomics standards, pointing to exorbitant costs as the main point of contention.

More than a decade in the making, OSHA’s regulation puts pressure on employers to address work conditions thought to produce musculoskeletal disorders (MSDs) and mandates that employers provide workers with adequate protection once an injury has been identified. Although it excludes construction, maritime, railroad, and agriculture workers, OSHA estimates the regulation will protect 102 million workers at 6.1 million work sites.

Under the standard, employers are required to distribute basic information on repetitive motion injuries. OSHA has developed information sheets to help employers comply with this requirement.

If a worker reports a problem, the employer must determine, with the help of a qualified health professional, whether the injury constitutes an “MSD incident,” meaning that it is job-related and requires days away from work. If so, and if the job entails sufficient ergonomic risk factors, the employer must provide the injured employee with 90 percent of his or her wages, 100 percent of benefits for up to 90 days, and MSD management.

The standard does not require employers to pay for medical treatment such as physical therapy, medication, or surgery. If the problem persists, the employer must reduce job hazards through a formal company ergonomics program that includes management leadership and employee participation, job controls, training and program evaluation. For regulation specifics and how they apply click here.

According to OSHA, repetitive stress injuries cause 34 percent of all lost workdays due to injury, and cost employers between $15 billion and $20 billion annually in workers’ compensation. OSHA stresses that the new regulation will prevent 460,000 workers from getting injured on the job each year, and significantly reduce costs for employers.

OSHA predicts the regulation will cost businesses $4.8 billion to implement. On the other hand, it argues that employers will save $9 billion a year from medical expenses and workers’ compensation. Business leaders, however, hotly contest these claims, stating that costs would be anywhere upwards of $90 billion a year.

Business estimates are based on a study by the Employment Policy Foundation (EPF) that surveyed occupational safety and health managers at Fortune 500 companies, and found that the ergonomics standard will cost companies $126 billion a year, $35 billion more than the EPF originally estimated. see details

In a recent press release, the EPF stated that higher costs can be attributed to the new data submitted by OSHA, which found that the average job fix per affected employee is over $2,000 — more than three times higher than OSHA’s original forecast. see details.

Reaction from business leaders and employer groups is predictable.

According to the National Coalition on Ergonomics (NCE), an alliance of associations and businesses representing large and small employers opposed to OSHA’s regulation, employers claim to be overwhelmed by the regulation’s size, scope, and ambiguity. Until it is known what causes MSDs and the proven measures employers can take to prevent them, an ergonomics regulation is unfair and premature, they claim. They further assert that there is no assurance that an ergonomic regulation across industries will reduce injuries.

The NCE contends that small businesses will be hardest hit by the ergo regulation since most of them cannot afford to invest in expensive experimental equipment or afford the burden of deciphering what is complex legislation.

Business groups are up in arms and have filed lawsuits to fight OSHA’s regulation. On November 12, the Chamber of Commerce, joined by the The National Beer Wholesalers Association, and the Human Resource Management Association, filed suit against OSHA in the Washington D.C. Circuit Court. The National Coalition on Ergonomics has also filed a similar suit against OSHA.

The U.S. Chamber of Commerce, for its part, has stated that this is a “mammoth rule” that is “incomprehensible and unconstitutional.” Peter Eide, Director of Labor Policy at the U.S. Chamber of Commerce, tells CFO.com that the ergonomics regulation is a violation of state workers’ compensation laws, and this is precisely what the Chamber plans to argue in court.

“OSHA’s ergo regulation violates section 4B4 of the Occupational Health and Safety Act, which states that OSHA cannot issue a regulation that in any way contradicts or alters workers’ compensation laws,” says Eide. “This regulation directly affects workers’ compensation because it supercedes it.” The court could effectively nullify the regulation, but Eide concedes that the court process will be long and drawn out.

Peg Seminario, Director of Safety and Health at the AFLCIO tells CFO.com that the OSHA regulation does not in any way interfere with workers’ compensation laws, but rather coexists with state laws to protect workers against work-related injuries. According to Seminario, the OSHA ergonomics regulation includes “work restriction protection rules,” which date back to 1978, and serve as an incentive for workers to report injuries without receiving a wage cut. Work restriction protection rules serve a different purpose than workers’ compensation, says Seminario, and, therefore, do not interfere with them.

“Most injuries that would be subject to work restriction protections would not be eligible for workers’ compensation,” she claims, “because they have not yet reached a serous enough stage.” Unlike workers’ compensation, work restriction protections are preventive, and serve to reduce exposure so employees don’t get to the point of disabling injury. They do not cover medical treatment or compensation for lost wages once an employee has been severely injured.”

Not surprising, workers and organized labor hail the ergonomics regulation as an unprecedented victory. Seminario claims there are some areas, however, where the regulation falls short. “Unlike all other OSHA rules, this regulation is only triggered after there is a report of a workplace injury. All OSHA rules are preventive and require action in response to exposure to hazards. In this regard OSHA’s ergonomics regulation is not as strong as it should be,” contends Seminario.

She also points out that OSHA’s regulation signals that the U.S. is catching up to Europe and other parts of the world in this arena. “We are not breaking new ground here. We are simply catching up to regulations elsewhere that have been in place for some time now,” she says. “Many of the companies that are opposing these regulations here in the U.S. are following similar requirements to protect workers in other countries.”

Seminario is confident that the OSHA regulation will hold up against the lawsuits aimed at overturning it. She adds: “We think there is a strong track record. Every major OSHA rule has been challenged in the courts over the years. Except for a few cases they have been upheld and in some instances, the courts have ruled in favor of further strengthening them.”