The Obama administration is bringing back an ergonomics record-keeping rule issued by the Clinton administration, but rejected by former President George W. Bush. Experts, who say the proposed rule may pave the way for increased citations, advise HR leaders to proactively pay closer attention training and record-keeping issues.
By David Shadovitz
Ergonomics is back on the Occupational Safety and Health Administration's agenda, after what some might describe as an eight-year hiatus during the Bush administration.
On Jan. 29, OSHA proposed new rules that would require employers to track and report workplace-related musculoskeletal disorders. While the changes are ostensibly little more than additional record-keeping, experts warn the proposal could likely pave the way for further enforcement and rulemaking by the agency.
OSHA wants to restore a column to the OSHA 300 log that would record work-related musculoskeletal disorders, such as carpal-tunnel syndrome and rotator cuff syndrome. The rules are identical to those contained in an OSHA record-keeping regulation that was issued in 2001 by the Clinton administration, but was removed in 2003 during the Bush presidency before ever going into effect.
Critics argued at the time that the definition used to describe musculoskeletal disorders was far too broad to be useful and that the new column wouldn't contain the type of detailed information that would be needed to address the problem of musculoskeletal disorders.
Assistant Secretary of Labor for OSHA David Michaels says the column would "improve the accuracy and completeness of national work-related injury and illness data."
The agency emphasizes that the rules would not require employers to take any action other than to check the new column on the OSHA form should a work-related MSD case occur.
Experts, however, say this could be a first step in the direction of regulatory and enforcement actions.
"If I were an employer, I'd be concerned," says Jason C. Schwartz, a partner in the Washington office of Gibson, Dunn & Crutcher.
"It will increase the number of recordable incidents by broadening what might qualify as an MSD," he says. "So after collecting the data for a while, I wouldn't be surprised to see OSHA announce that there is a major MSD problem and decide to do something about it."
Schwartz says he also wouldn't be surprised to see employer groups fight the new rules in the courts, as they did the last time around.
Ashley Brightwell, a partner in the Atlanta office of Alston & Bird, agrees the rules could lead to "future actions by OSHA to regulate MSDs ... and increase the number of citations being issued against employers."
OSHA, she says, is very focused right now on record-keeping violations. "So a big fear," she says, "is that by highlighting MSDs in the workplace, you're opening the door to the number of general-duty citations."
Brightwell advises employers to closely review their OSHA 300 logs and be proactive in evaluating their workplaces and eliminating any current ergonomic hazards.
OSHA considers tracking musculoskeletal disorders an important policy objective, says Mark Wilson, a principal with Applied Economic Strategies LLC in Washington. But the proposed reporting requirement includes "nothing about the nature of the disorder, what caused it or how to go about abating it."
Wilson agrees employers should be troubled by the change, since it has the potential to initiate enforcement under the general-duty clause of the Occupational Safety and Health Act.
Most experts predict the rules are likely to be adopted. But whatever the outcome, they say, employers should expect the agency to pay much closer attention to record-keeping in the months ahead.
"If I were an employer, I would make sure my folks are well trained and that my reporting systems are in good shape," advises Schwartz. "I also wouldn't assume that every MSD needs to be reported even if the rules do go into effect. Employers need to make sure the [incidents] are work related."
OSHA will be seeking comments on the proposed rules until March 15.
February 25, 2010
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