"The only easy part for employers is determining that they're covered, which virtually everyone in general industry is. The threshold for action, one incident of a musculoskeletal disorder, is low. And I don't think there's any doubt that, once this standard goes into full effect, it will be a routine part of every OSHA inspection."

Hanna and other Squire Sanders attorneys are conducting a series of seminars (beginning December 14 in Palo Alto and December 19 in Cleveland) to counsel clients on complying with the ergonomics standard.

Comprehensive Requirements

The standard is designed to prevent a class of injuries known as musculoskeletal disorders (MSDs), which can include low back pain, carpal tunnel syndrome, tendinitis and other disorders of the muscles, nerves, tendons, ligaments, joints, cartilage, blood vessels or spinal discs. Where there are employee complaints or symptoms of such disorders, employers are required to investigate possible risk factors, which can include lifting, repetition, force, awkward postures, contact stress and vibration. Corrective action options include: redesigning equipment, re-balancing work flow, rotating workers through certain jobs, slowing down operations, adding workers and so on.

"There is an opportunity for employers to be creative in finding the best solutions to help workers be as safe and productive as possible," said Hanna, who is based in the law firm's Cleveland office. "Unfortunately, OSHA inspectors can also get creative in how they enforce the standards and what kinds of controls they expect employers to implement. I expect OSHA to do a lot of second-guessing and asking employers to try ideas that may or may not work, and that can become very expensive."

Enforcement Considerations

Twenty-five states, including California, Michigan, Oregon, Texas and Washington (but not Ohio and Pennsylvania, for example), have permission from federal OSHA to operate their own OSHA programs. In these states, state officials will decide how the standard is enforced and implemented on a daily basis, pointed out Michael Kelly, a Squire Sanders employment counseling attorney based in San Francisco and Palo Alto.

Kelly expects state and federal OSHA agencies to focus their enforcement resources on workplaces where there is significant manufacturing, material handling or assembly line work. However, he predicted that OSHA will pursue high-profile cases in offices, high-tech manufacturing, transportation, health care and other industries that are not used to dealing with OSHA.

"Even employers who have only an office environment are right in the middle of this standard," Kelly said. "The VDT workstation checklist is one of the few forms in the standard. That indicates to me that OSHA is serious about office ergonomics, especially chairs and keyboards." In addition, in his state, he noted, California regulators have had an interest in office ergonomics for more than a decade. Based on his experience in litigating ergonomics cases where OSHA cited employers even without a standard, Hanna predicted that any fines for ergonomics non-compliance will be small compared with the cost to improve OSHA-identified "problem" jobs. He recalls one case in which the employer chose not to contest a $1,500 fine. However, by not contesting, the employer was forced to spend $30,000 to redesign just a few secretarial workstations. 

Legal Questions Remain

Hanna said the nature of the standard and the anticipated OSHA stance on enforcement have turned ergonomics, which many companies have addressed voluntarily, into a huge legal and labor relations issue. "The consultants, plaintiffs' attorneys and unions will love it," he said. "It creates a roadmap for plaintiffs by identifying jobs with certain so-called risk factors as 'problem jobs.' Who is going to want to do those jobs or assign people to do them? The potential for labor strife and litigation is immense. Beyond the typical legal disagreements between labor and management, companies are going to be suing each other over things such as product liability and temp workers' injuries."

David Millstone, the firm's labor and employment practice coordinator, said, "As a management attorney, I am urging clients to protect themselves and their workers by implementing best practices for compliance. However, with a standard of this magnitude, it is difficult to know for sure everything you have to do and when you have done enough. Those are legal questions that will be answered over time as the standard is challenged in court and enforced in the field."

About Squire Sanders

Squire Sanders, established in 1890, currently has more than 700 attorneys in 25 locations worldwide. The firm's U.S. offices are located in Cincinnati, Cleveland, Columbus, Houston, Jacksonville, Los Angeles, Miami, New York, Palo Alto, Phoenix, San Francisco and Washington D.C. In Europe, offices are located in Bratislava, Brussels, Budapest, Kyiv, London, Madrid, Moscow and Prague. Asian offices are located in Almaty, Beijing, Hong Kong, Taipei and Tokyo. The firm also has associated offices in Milan and Dublin.

For more information on the legal intricacies of complying with the OSHA ergonomics standard, see "Beware of the Pitfalls."

Beware of the Pitfalls

To help employers understand the legal intricacies of compliance with the new OSHA ergonomics standard, the labor and employment attorneys at Squire Sanders have identified the following five areas where legal trouble lurks just below the surface:

* The definition of musculoskeletal disorders. "Read and re-read it," said Squire Sanders employment safety and health attorney Michael Hanna of the 136-word definition that includes everything from low back pain and carpal tunnel syndrome to tension neck syndrome and carpet layer's knee. "Most people know about carpal tunnel syndrome, but much more is included. You also have to determine if the injury in question is work-related."

* The "Quick Fix" option. OSHA allows employers to use a "Quick Fix" approach and not adopt a comprehensive program where there are limited cases of MSDs and corrective actions are obvious. "Quick Fix has a nice name, but it's not going to apply to most companiew," said David Millstone, the firm's labor and employment practice coordinator. "Besides, by the time you do the fix and all the follow-up, training and record keeping, you're on your way to a full program."

* The threshold for action. It takes only one musculoskeletal disorder to trigger requirements for injury management, job analysis and hazard control. The employee information requirements are required from the beginning, "which helps build awareness, which leads to increased reporting, which leads to an increased compliance burden," according to Michael Kelly.

* Work restriction protection. The OSHA rule requires that employers offer alternative light-duty jobs to injured workers and that employees cannot be paid less than their regular wages for those jobs. If their injury requires time off from work, they must receive 90 percent of their pay for up to 90 days, and the employer must have a job for them when they are able to return to work. Many observers believe this provision undermines state-based workers' compensation systems. It may not stand up in court, but for now, Hanna said, it is one of the rule's most ominous requirements.

* Grandfather clause. Like the Quick Fix, the standard's grandfather clause sounds better than it really is, Hanna said. All but the largest and most proactive existing ergonomics programs will have to be adjusted to comply with the standard, he predicted. Furthermore, employers will have to demonstrate that their programs are at least as effective as full compliance with the OSHA standard would be. "Once you have done all that, you pretty much have the program that OSHA wants you to have anyway," Hanna said.

SOURCE: Squire, Sanders & Dempsey L.L.P.

CO: Squire, Sanders & Dempsey L.L.P.; Occupational Safety and Health Administration