OSHA's Ergonomics Standard May Be Dead, But OSHA Still Has a Trump Card

April 24, 2002

On November 14, 2000, OSHA gripped the business world with fear when it published its new Ergonomics Standard. The breadth of the regulations provided OSHA with unprecedented and far-reaching power; the standard covered over 6 million workplaces and more than 100 million workers in almost every sector of the marketplace from manufacturing to health care to computer programming. These regulations sought to redress one of the most common types of work-related injuries, musculoskeletal disorders ("MSDs").

Although the goal was worthy, the means by which this goal was to be accomplished left most employers screaming foul and seeking any possible avenue to overturn the standard. The health care industry, in particular, sought a reprieve since OSHA intended to target it under the new regulations. Accordingly, employer advocates and insurance groups fought back by filing legal challenges to the regulations in almost every federal circuit. These groups also waged their own media war against the proposed regulations to combat OSHA's portrayal of the regulations as a cost-saving measure benefiting employers.

First and foremost, these groups took issue with OSHA's definition of an MSD. While most people will recognize certain MSDs which are ubiquitous in our society, such as carpal tunnel syndrome, back strain, tendinitis, and sciatica, OSHA's definition of an MSD included virtually any disorder involving the muscles, nerves, tendons, ligaments, joints, cartilage, blood vessels, spinal discs in the neck, shoulder, forearm, wrist, hand, abdomen (hernias only), back, knee, ankle, and foot. OSHA's solution to reduce the number of these MSDs was to mandate that employers implement aggressive ergonomics programs or, at a minimum, "quick fixes" to remedy any reported MSD. Industry estimates ranged widely as to the actual cost of these programs or fixes, but the estimated price tag had more zeroes than the revenues of most health care institutions.

These concerns, among many others, were brought to Capitol Hill. Fortunately, and very swiftly, both the Senate and the House voted to repeal the Ergonomics Standard under the Congressional Review Act, which President Bush has vowed that he will sign. Accordingly, repealing the OSHA Ergonomics Standard, which was issued during the eleventh hour of the Clinton administration, seems to be a certainty.

With this good news for employers, can they – especially those in the health care industry – relax and hope that the short-lived standard will soon be nothing more than a faded memory? Certainly, pressure caused by the impending regulations is alleviated, but concern about the number of MSDs in the workplace has not been forgotten.

Leading the charge is organized labor, which views the repeal as a slap in the face to manual laborers and in particular to women, who make up the majority of secretaries, medical transcriptionists, nurses, and other professionals prone to MSDs. The repeal only blocks OSHA from issuing another ergonomics standard substantially similar to the one overturned by Congress, and organized labor is pressing OSHA to quickly revise and reissue ergonomics regulations.

As for OSHA, it may still have a trump card up its sleeve. Prior to issuing the Ergonomics Standard, OSHA tested the waters to determine if there was fertile ground for holding employers liable if they failed to implement ergonomically correct work environments. The results were two landmark decisions in Pepperidge Farms and Beverly Enterprises. While these decisions did not go as far as the proposed Ergonomics Standard, they leave the door wide open for enforcing safety measures against employers which fail to maintain an ergonomically-friendly workplace. In both cases, OSHA cited the employers for failing to remediate known or recognized ergonomics hazards involving heavy lifting and repetitive work, which were purportedly resulting in numerous work-related back strains and other MSDs. OSHA's enforcement attempt was upheld under its "general duty clause," which permits it to target employers that fail to provide employees with workplaces free from recognized hazards causing or likely to cause serious physical harm.

OSHA may continue to use the back door opened in Pepperidge Farms and Beverly Enterprises to do an end-run around the congressional repeal of the Ergonomics Standard, so no employer – especially those in the health care industry – should consider the ergonomics matter to be dead. Instead, employers should still examine their facilities to determine if they have a significant number of MSDs and then take appropriate steps to remediate the problem prior to an OSHA investigation or further regulatory initiatives.

For more information, please contact jlyncheski@cohenlaw.com or alavelle@cohenlaw.com.