On November 23, 1999, the Occupational Safety and Health Administration (OSHA) proposed its long-awaited and controversial ergonomics standard.  The ergonomics standard will impact approximately 1.9 million businesses, potentially millions more, and cost industry billions to implement.  If OSHA's new ergonomics standard is adopted as proposed, even small employers with as few as one employee could be directly affected.  

OSHA's new ergonomics standard will impose greater burdens on employers than merely providing comfortable chairs and specialized keyboards.  Rather, the new standard focuses on changing the physical requirements of the workplace by modifying or redesigning equipment and/or processes in order to prevent injury to employees.  OSHA debuted its ergonomics standard on the national networks with testimonials from people claiming that their painful, career-ending injuries might have been prevented by such a standard.
 
Under the proposed standard, businesses engaged in manufacturing or manual handling operations will be required to immediately implement basic ergonomics programs in their workplaces.  A more stringent program is triggered whenever a single work-related musculoskeletal disorder (WMSD) is reported.  Likewise, for all other businesses, the ergonomics standard will be triggered whenever a single WMSD is reported.  Thus, banks, grocery stores, parking garages and any job that involves data entry or the use of a keyboard, although not initially covered by the standard, are particularly vulnerable.

The standard's hypersensitive "trigger" (using one WMSD to initiate the full standard) is one of the most controversial aspects of OSHA's proposed standard.  This is because WMSDs are often caused, or contributed to, by factors outside the workplace and beyond the control of the employer (e.g. the age and physiological condition of the employee and the employee's after-work activities).  The trigger also puts small businesses at a disadvantage because implementing all of the standard's requirements is not only costly, but also time intensive.  Thus far, however, OSHA has refused to consider alternative triggers, for example, using a ratio approach such as four WMSDs per 100 employees.  OSHA has also refused to consider staging the implementation of the standard's elements based on the occurrence of multiple WMSDs. 

Another one of the more controversial, and arguably one of the most costly, aspects of the proposed standard is its medical-removal provisions.  Under the proposed standard, employers are required to maintain an injured employee's total earnings, seniority rights and benefits for up to six months.  An injured employee who is unable to work must receive 90-percent of net compensation and benefits.  This is far more generous than New Jersey's workers' compensation system which provides for two-thirds of an employee's pretax wage.  Additionally, while there is generally a cap on benefits received under workers' compensation, there is no such cap under the proposed standard.  These types of costs are virtually impossible to pass on and could force some small firms out of business.  

Moreover, the standard's medical-removal provisions may encourage fraudulent claims or lead to increased claims of discrimination by older workers, workers previously on welfare, and workers who have a history of WMSDs.  Accordingly, OSHA should consider basing income replacement on a workers' compensation determination. Alternatively, OSHA could consider phasing in the medical-removal provisions based on the size of the employer, and/or consider a shorter time for coverage.

Overall, the proposed standard mandates that employers be able to: (1) identify the signs and symptoms of WMSDs and promptly provide access to a healthcare professional for evaluation, treatment, follow-up and, if necessary, medical removal; (2) identify the hazard that caused the WMSD and implement measures to eliminate and control the hazard, such as changing, modifying, or redesigning equipment and/or processes; (3) conduct ergonomics training in the workplace; and (4) demonstrate management leadership and employee participation, allowing employees a mechanism to report WMSDs and to make recommendations about appropriate ways to control them.  

The extent of employee involvement in management decisions in this regard is unclear.  For example, does "employee participation" mean that employees have veto power over management decisions?  Do employees have a say in the type of equipment a company purchases?  How about the layout and design of the facilities?  Even assuming that employees do have a voice during these decision-making processes, how much weight does it carry?  The answers are far from clear.

Although the scientific evidence is far from conclusive, OSHA believes there is a correlation between certain workplace tasks and the occurrence of musculoskeletal disorders, such as lower back pain, carpal tunnel syndrome, sciatica, and tendinitis.  However, Congressman Roy Blount and Senator Kitt Bond introduced legislation requiring OSHA to halt the proposed standard until a congressionally-funded National Academy of Sciences study on the causes of WMSDs is completed sometime in the year 2000.  

Congressman Blount's legislation, the Workplace Preservation Act, estimates that the costs of implementing OSHA's ergonomics standard could be as high as $30 billion dollars for a single industry.  The proposed legislation concludes that, "Any regulation with this potential impact on the nation's economy merits a sound scientific and medical foundation."  Although the House and Senate bills were introduced prior to the publication of the proposed standard, they will likely be amended in an effort to keep OSHA from issuing a final standard.  President Clinton, however, has vowed to veto any such legislation.  

OSHA will be receiving written comments on the proposed standard until February 1, 2000.  Written comments must be submitted in duplicate to the OSHA Docket Office, Docket No. S-777, Room N2625, U.S. Department of Labor, 200 Constitution Ave., N.W., Washington, DC 20201.  OSHA will also hold three public meetings: Washington, DC (February 22, 2000); Portland, OR (March 21, 2000); and Chicago, IL (April 11, 2000).  OSHA's publicly-stated goal is to have the ergonomics standard finalized by year end 2000, although that time frame may be somewhat ambitious given the number of comments likely to be submitted.  

The proposed ergonomics standard could potentially cost New Jersey businesses millions of dollars in both capital expenditures and lost work hours.  Because legislation blocking the final standard seems unlikely given President Clinton's promise of a veto, it is imperative that all businesses impacted, or potentially impacted, by this standard voice their comments to OSHA.  Without significant and substantive comments, OSHA will thrust upon the regulated community an over-inclusive, vague, and financially burdensome standard.