By Mike Conlon
OSHA MSD Rules Make Workplace Safety Rules Even More Confusing
Small shops aren’t exempt from cumbersome new OSHA ergonomics rule
In our busy, fast-paced lives, we are always looking for shortcuts or time savers. Speed dial buttons, drive-thru lanes and one-hour photo finishing are all products of the never-ending attempt to make every task simple and less time consuming.
We even do it with our language, reducing common ideas to pithy slang, and creating acronyms by abbreviating phrases to their initials. Our lives are filled with acronymic buzz words – SUV, TGIF, PC, MTV and NIMBY (not in my backyard) – to name a few.
In the future, businesses will have to accept and learn to cope with a new acronym – MSD. What does MSD stand for? Motorsports driver? Motion sensor detector? Monotonous Senate debate? Malevolent sexual disease? Unfortunately, nothing so tantalizing.
MSD stands for musculoskeletal disorder, and it is the focus of the workplace ergonomics rule recently published by the Federal Occupational Health and Safety Administration, or acronymically, OSHA.
You will soon be hearing a lot about MSDs. What are they? OSHA defines them as any disorder of the muscles, nerves, tendons, ligaments, joints, cartilage, blood vessels or spinal discs in the neck, shoulder, elbow, forearm, wrist, hand, abdomen, back, knee, ankle or foot. This definition is very comprehensive and includes almost every type of soft tissue injury – however, those arising from motor vehicle and other accidents are specifically excluded. Because the new rule covers all MSDs, its scope is very broad.
Moreover, under the new rule, every workplace is covered by OSHA, regardless of size, except construction sites, maritime workplaces, agriculture work areas or railroad operations. OSHA considered exempting small businesses from the new rule, but ultimately decided not to do so. For rebuilders, this means that the rule applies to assembly line remanufacturers, in-chassis service providers and machine shops alike.
The rule has two sets of requirements. One set applies to all covered employers, and one only to those employers who have an employee with a work-related MSD or the signs and symptoms of a work-related MSD.
The first set of requirements must be met by Oct. 15. At that time, all covered employers must provide their employees with basic information about:
- Common MSDs and their signs and symptoms;
- The importance of reporting MSDs and their signs and symptoms;
- The consequences of failing to report MSDs or their signs and symptoms early;
- How to report MSDs;
- The kinds of risk factors, jobs and work activities associated with MSDs;
- A short description of the requirements of the OSHA rule; and
- A summary of the requirements of the rule.
This information must be posted in the workplace in a conspicuous place and must be given to all new employees within 14 days of starting work.
While OSHA is preparing materials which employers can use to meet these obligations, even now I am sure there is a new industry developing to handle these obligations for employers – at a price.
But, woe to the employer with an employee who actually does report an MSD, or the signs and symptoms of an MSD, for his obligations have just begun. First, he must investigate the MSD to determine if he has an "MSD incident".
If an employer determines that he has an MSD incident, he then must decide if the employee’s job requires him to act further. As stated in the rule, the employer must decide whether the employee’s job meets the "Action Trigger" (a catchy phrase but not an acronym – see sidebar "What’s That in English?"). If the guidelines are met, the Action Trigger is activated and the employer must establish a full ergonomics program, unless he qualifies for the "Quick Fix" option (another buzz word).
The Quick Fix option may be used only if no more than one of your employees has experienced an MSD incident in that particular job and no more than two MSD incidents have occurred at that workplace in the preceding 18 months. However, if a Quick Fix does not eliminate the MSD hazard, a full ergonomics program will be required.
If an employer is saddled with developing a full ergonomics program, the program must include certain management responsibilities, employee participation criteria, training, MSD management, job hazard analysis and, if necessary, hazard reduction and control measures. If you qualify for the Quick Fix, only MSD management, job hazard analysis and hazard reduction and control measures are necessary.
Required management measures include appointing managers for the ergonomics program; providing them with sufficient authority, resources and information to carry out their duties; creating policies which encourage employee participation and early reporting of MSDs, their signs and symptoms and MSD hazards; and ongoing communications about MSDs.
To ensure employee participation, a plan must provide ways for employees to report MSDs, signs and symptoms and MSD hazards in the workplace; ensure prompt response to such employee reports; provide employees with summaries of the workplace standards; and create ways for them to be involved in the development, implementation and evaluation of the ergonomics program. Training includes both initial training and follow-up training every three years. It must be provided to any employees in jobs which meet the Action Trigger, their supervisors and all other employees involved in managing the ergonomics program.
For jobs meeting the Action Trigger, an employer must conduct a job hazard analysis which includes talking with employees involved in the job about the tasks that may create an MSD problem, observing the employees to identify risk factors in the job, and using certain hazard identification tools described in the rule. If your analysis determines that a hazard exists, you must control or reduce hazards to the extent reasonable, through feasible engineering, work practice or administrative controls after consultation on recommended measures with the employees involved and their supervisors.
Temporary controls must be implemented within 90 days after you determine that a job meets the Action Trigger. Permanent controls must be implemented within two years or by Jan. 18, 2005, whichever is later.
For employees whose jobs meet the Action Trigger and who have an MSD or signs and symptoms of an MSD, you must provide MSD management at no cost to the employee. This includes access to a health care professional (HCP, another acronym), implementing any work restrictions which are necessary to the treatment of the MSD (including time off to recover), and providing evaluation of the recovery and follow-up.
The HCP must prepare a written evaluation of the MSD which must be provided to the employee. The HCP opinion is to include a medical assessment of the employee’s MSD problem, any recommended work restrictions and statements that the employee has been advised of the condition, how to have it treated and whether other work-related activities could impede recovery.
The employer must pay for the opinion of the HCP but not for any medical treatment for the MSD, unless of course such treatment is covered by employer insurance or an employer medical payment plan. If work restrictions are necessary, the employer also must ensure that all of the employee’s rights and benefits are protected, including his full earnings, until either the employee resumes his normal work activities, an HCP determines that the employee can never return to his former job or 90 days, whichever occurs first.
As you can see, while MSD itself is short and concise, the implications of MSDs to employers may be expensive and time consuming. Many businesses and trade associations believe that the rule is too broad or too expensive and are objecting to it. Several groups have filed suits in federal court challenging the rule, and the National Association of Manufacturers and others intend to lobby both Congress and the Bush administration to have the rule overturned or withdrawn.
It is too early to determine if any of these efforts will prove successful or if a Republican-controlled OSHA will nullify the rule by refusing to take action to enforce it. In the meantime, rebuilders should begin to consider what they must do to comply with the rule.
Mike Conlon is legal counsel for the Automotive Parts Rebuilders Assoc. Conlon, Frantz, Phelan, Knapp & Piers is based in Washington, DC. You may e-mail Mike at: email@example.com.