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In early 1999, the Occupational Safety & Health Administration (OSHA) adopted a proposal for reducing the number of work-related musculoskeletal disorders (WMSDs). Through its proposal, OSHA seeks to reduce the number of WMSD injuries by helping employers identify and reduce the causes of WMSDs on the job. Starting in 2002, OSHA plans to implement a workplace reorganization that will effect every manufacturing and service business employing ten (10) or more employees. At it’s core, the OSHA proposal calls for the creation of an employee reporting system. Employers would document employee reports of physical discomfort caused by awkward posture, repetitive motion, excessive force, pressure points and vibration. In this regard, the OSHA proposal charts new ground. The proposal signals OSHA’s movement away from the objective reporting for which it has been historically known where employers reported and OSHA monitored and investigated physical injuries to employees that occurred at the workplace, towards a subjective standard. OSHA now favors a reporting standard based on employer documentation of employee symptoms such as numbness, burning, pain, tingling, aching, stiffness, decreased range of motion, decreased grip strength, loss of function, deformity, swelling, cramping, redness/loss of color. The adoption of a standard based on an employees subjective reporting of pain and injury rather than an objective finding by a medical practitioner is perhaps the most controversial aspect of the new OSHA proposal.
The Workplace Ergonomic Reporting Program: OSHA’s Workplace Reorganization.
The OSHA proposal requires that employers establish a workplace ergonomic program. The proposal places burdens on both employees and the employers. Employees will be required to report the signs and symptoms of WMSD’s and WMSD hazards to employers. Employees will also be required to make suggestions of how to alleviate workplace WMSD hazards they have reported.
Employers will be required to perform a hazard analysis of their workplace to identify processes and/or areas where employees will be likely to suffer from WMSDs. Employers will also be required to train employees how to recognize WMSD hazards and symptoms. Under the proposal, employers are required to have at least one person in the workplace available to administer the program. That person will be required to promptly respond to reports of the signs and symptoms of WMSDs. The proposal also requires the employer to implement ergonomic solutions upon receipt of a WMSD complaint.
Under the Proposal, what must the employer do once an employee reports a WMSD hazard in their job?
The proposal calls for the employer to make prompt and effective medical management whenever an employee reports a WMSD. This means that the employee must promptly receive access to a health care professional for evaluation, treatment and follow up. In addition, the proposal requires that an employer provide to the health care professional a description of the employees job and the hazards identified in the employers hazard analysis. The employer would also have to provide to the health care professional descriptions of available changes to jobs or temporary alternative duty to fit the employee’s capabilities during the recovery period. In return, the health care professional’s opinion given regarding the injury would contain recommendations for work restrictions, and if necessary, outline the medical follow-up that is recommended. The proposal then requires that the employer take affirmative permanent steps to reduce or eliminate the WMSD giving rise to the injury. The proposal defines permanent affirmative steps as either employer implementation of engineering controls, providing the employee with personal protective equipment and or administrative remedies. The proposal defines the term engineering controls as meaning the modification of the workplace including re-design of workstations, the purchase of safer equipment, workstations, tools, facilities, equipment, and materials. Engineering controls also means a change in the work process. The proposal defines personal protective devises as including gloves, kneepads, palm rests and wrist protectors. The proposal defines administrative remedies as including employee rotation, job task enlargement, slowing the pace of the workplace, redesign of work methods, alternative tasks and frequent rest breaks.
Even though it is likely that this proposal will be modified, its adoption in a modified form is likely. The following is, therefore, recommended.
* Joy Boese, MS, BA is the President of E3 Consulting Corporation, an ergonomic consulting firm located in Los Angeles, California.
* Douglas M. Wade, Esq. is an Associate in the Los Angeles Office of Kelley Drye & Warren, L.L.P. and specializes in employment and business law.