Ergonomics Program

SUMMARY: The Occupational Safety and Health

Administration is proposing an ergonomics

program standard to address the significant

risk of work-related musculoskeletal

disorders (MSDs) confronting employees in

various jobs in general industry workplaces.

General industry employers covered by the

standard would be required to establish an

ergonomics program containing some or all of

the elements typical of successful ergonomics

programs: management leadership and employee

participation, job hazard analysis and

control, hazard information and reporting,

training, MSD management, and program

evaluation, depending on the types of jobs in

their workplace and whether a musculoskeletal

disorder covered by the standard has

occurred. The proposed standard would require

all general industry employers whose

employees perform manufacturing or manual

handling jobs to implement a basic ergonomics

program in those jobs. The basic program

includes the following elements: management

leadership and employee participation, and

hazard information and reporting. If an

employee in a manufacturing or manual

handling job experiences an OSHA-recordable

MSD that is additionally determined by the

employer to be covered by the proposed

standard, the employer would be required to

implement the full ergonomics program for

that job and all other jobs in the

establishment involving the same physical

work activities. The full program includes,

in addition to the elements in the basic

program, a hazard analysis of the job; the

implementation of engineering, work practice,

or administrative controls to eliminate or

substantially reduce the hazards identified

in that job; training the employees in that

job and their supervisors; and the provision

of MSD management, including, where

appropriate, temporary work restrictions and

access to a health care provider or other

professional if a covered MSD occurs. General

industry employers whose employees work in

jobs other than manual handling or

manufacturing and experience an MSD that is

determined by the employer to be covered by

the standard would also be required by the

proposed rule to implement an ergonomics

program for those jobs.

The proposed standard would affect

approximately 1.9 million employers and 27.3

million employees in general industry

workplaces, and employers in these workplaces

would be required in the first year after

promulgation of the standard to control

approximately 7.7 million jobs with the

potential to cause or contribute to covered

MSDs. OSHA estimates that the proposed

standard would prevent about 3 million work-

related MSDs over the next 10 years, have

annual benefits of approximately $9.1

billion, and impose annual compliance costs

of approximately $900 per covered

establishment and annual costs of $150 per

problem job fixed.

OSHA is scheduling informal public

hearings to provide interested parties the

opportunity to orally present information and

data related to the proposed rule.

DATES: Written comments. Written comments,

including materials such as studies and

journal articles, must be postmarked by

February 1, 2000. If you submit comments by

facsimile or electronically through OSHA's

internet site, you must transmit those

comments by February 1, 2000.

Notice of intention to appear at the

informal public hearing. Notices of intention

to appear at the informal public hearing must

be postmarked by January 24, 2000. If you

submit your notice to intention to appear by

facsimile or electronically through OSHA's

Internet site, you must transmit the notice

by January 24, 2000.

Hearing testimony and documentary

evidence: If you will be requesting more than

10 minutes for your presentation, or if you

will be submitting documentary evidence at

the hearing, you must submit the full

testimony and all documentary evidence you

intend to present at the hearing, postmarked

by February 1, 2000.

Informal pubic hearing. The hearing in

Washington, DC, is scheduled to begin at 9:30

a.m., February 22, 2000 at the Frances

Perkins Building, U.S. Department of Labor.

The hearing in Washington, DC, is scheduled

to run for 4 weeks. It will be followed by a

hearing March 21-31, 2000, in Portland OR,

and April 11-21, 2000, in Chicago, IL. Time

and location for the regional hearings will

be announced later in the Federal Register.

ADDRESSES: Written comments: Mail: Submit

duplicate copies of written comments to: OSHA

Docket Office, Docket No. S-777, U.S.

Department of Labor, 200 Constitution Avenue,

N.W., Room N-2625, Washington, DC 20210,

telephone (202) 693-2350.

Facsimile: If your written comments are 10

pages or less, you may fax them to the Docket

Office. The OSHA Docket Office fax number is

(202) 693-1648.

Electronic: You may also submit comments

electronically through OSHA's Homepage at

www.osha.gov. Please note that you may not

attach materials such as studies or journal

articles to your electronic comments. If you

wish to include such materials, you must

submit them separately in duplicate to the

OSHA Docket Office at the address listed

above. When submitting such materials to the

OSHA Docket Office, you must clearly identify

your electronic comments by name, date, and

subject, so that we can attach them to your

electronic comments.

Notice of intention to appear: Mail:

Notices of intention to appear at the

informal public hearing may be submitted by

mail in quadruplicate to: Ms. Veneta Chatman,

OSHA Office of Public Affairs, Docket No. S-

777, U.S. Department of Labor, 200

Constitution Avenue, N.W., Room N-3647,

Washington, DC 20210, Telephone: (202) 693-

2119.

Facsimile: You may fax your notice of

intention to appear to Ms. Chatmon at (202)

693-1634.

Electronic: You may also submit your

notice of intention to appear electronically

through OSHA's Homepage at www.osha.gov.

Hearing testimony and documentary

evidence: You must submit in quadruplicate

your hearing testimony and the documentary

evidence you intend to present at the

informal public hearing to Ms. Chatmon at the

address above. You may also submit your

hearing testimony and documentary evidence on

disk (3\1/2\ inch) in WP 5.1, 6.0, 6.1, 8.0

or ASCII,

[[Page 65769]]

provided you also send the original hardcopy

at the same time.

Informal public hearing: The informal

public hearing to be held in Washington DC

will be located in the Frances Perkins

Building, U.S. Department of Labor, 200

Constitution Avenue, N.W., Washington, DC

20210. The locations of regional hearings in

Portland, OR, and Chicago, IL, will be

announced in a later Federal Register notice.

FOR FURTHER INFORMATION CONTACT: OSHA's

Ergonomics Team at (202) 693-2116, or visit

the OSHA Homepage at www.osha.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

The preamble and proposed standard are

organized as follows:

I. Introduction

II. Events Leading to the Proposed Standard

III. Pertinent Legal Authority

IV. Summary and Explanation

V. Health Effects

VI. Risk Assessment

VII. Significance of Risk

VIII. Summary of the Preliminary Economic

Analysis and Initial Regulatory

Flexibility Analysis

IX. Unfunded Mandates

X. Environmental Impacts

XI. Additional Statutory Issues

XII. Federalism

XIII. State Plan States

XIV. Issues

XV. Public Participation

XVI. OMB Review under the Paperwork Reduction

Act of 1995

XVII. List of Subjects in 29 CFR Part 1910

XVIII. The Proposed Standard

References to the rulemaking record are in

the text of the preamble. References are

given as ``Ex.'' followed by a number to

designate the reference in the docket. For

example, ``Ex. 26-1'' means exhibit 26-1 in

Docket S-777. A list of the exhibits and

copies of the exhibit are available in the

OSHA Docket Office.

I. Introduction

A. Overview

The preamble to this proposed ergonomics

program standard discusses the data and

events leading OSHA to propose the standard,

the Agency's legal authority for proposing

this rule, requests for information on a

number of issues, and a section describing

the significance of the ergonomic-related

risks confronting workers in manufacturing,

manual handling, and other general industry

jobs. The preamble also contains a summary of

the Preliminary Economic and Initial

Regulatory Flexibility Analysis, a summary of

the responses OSHA has made to the findings

and recommendations of the Small Business

Regulatory Fairness Enforcement Act Panel

convened for this rule, a description of the

information collections associated with the

standard, and a detailed explanation of the

Agency's rationale for proposing each

provision of the proposed standard.

B. The Need for an Ergonomics Standard

Work-related musculoskeletal disorders

(MSDs) currently account for one-third of all

occupational injuries and illnesses reported

to the Bureau of Labor Statistics (BLS) by

employers every year. These disorders thus

constitute the largest job-related injury and

illness problem in the United States today.

In 1997, employers reported a total of

626,000 lost workday MSDs to the BLS, and

these disorders accounted for $1 of every $3

spent for workers' compensation in that year.

Employers pay more than $15-$20 billion in

workers' compensation costs for these

disorders every year, and other expenses

associated with MSDs may increase this total

to $45-$54 billion a year. Workers with

severe MSDs can face permanent disability

that prevents them from returning to their

jobs or handling simple, everyday tasks like

combing their hair, picking up a baby, or

pushing a shopping cart.

Thousands of companies have taken action

to address and prevent these problems. OSHA

estimates that 50 percent of all employees

but only 28 percent of all workplaces in

general industry are already protected by an

ergonomics program, because their employers

have voluntarily elected to implement an

ergonomics program. (The disparity in these

estimates shows that most large companies,

who employ the majority of the workforce,

already have these programs, and that smaller

employers have not yet implemented them.)

OSHA believes that the proposed standard is

needed to bring this protection to the

remaining employees in general industry

workplaces who are at significant risk of

incurring a work-related musculoskeletal

disorder but are currently without ergonomics

programs.

C. The Science Supporting the Standard

A substantial body of scientific evidence

supports OSHA's effort to provide workers

with ergonomic protection (see the Health

Effects, Preliminary Risk Assessment, and

Significance of Risk sections of this

preamble, below). This evidence strongly

supports two basic conclusions: (1) There is

a positive relationship between work-related

musculoskeletal disorders and workplace risk

factors, and (2) ergonomics programs and

specific ergonomic interventions can reduce

these injuries.

For example, the National Research

Council/National Academy of Sciences found a

clear relationship between musculoskeletal

disorders and work and between ergonomic

interventions and a decrease in such

disorders. According to the Academy,

``Research clearly demonstrates that specific

interventions can reduce the reported rate of

musculoskeletal disorders for workers who

perform high-risk tasks'' (Work-Related

Musculoskeletal Disorders: The Research Base,

ISBN 0-309-06327-2 (1998)). A scientific

review of hundreds of peer-reviewed studies

involving workers with MSDs by the National

Institute for Occupational Safety and Health

(NIOSH) also supports this conclusion.

The evidence, which is comprised of peer-

reviewed epidemiological, biomechanical and

pathophysiological studies as well as other

published evidence, includes:

More than 2,000 articles on work-

related MSDs and workplace risk factors;

A 1998 study by the National

Research Council/National Academy of Sciences

on work-related MSDs;

A critical review by NIOSH of

more than 600 epidemiological studies (1997);

A 1997 General Accounting Office

report of companies with ergonomics programs;

and

Hundreds of published ``success

stories'' from companies with ergonomics

programs;

Taken together, this evidence indicates

that:

High levels of exposure to

ergonomic risk factors on the job lead to an

increased incidence of work-related MSDs;

[[Page 65770]]

Reducing these exposures reduces

the incidence and severity of work-related

MSDs;

Work-related MSDs are

preventable; and

Ergonomics programs have

demonstrated effectiveness in reducing risk,

decreasing exposure and protecting workers

against work-related MSDs.

As with any scientific field, research in

ergonomics is ongoing. The National Academy

of Sciences is undertaking another review of

the science in order to expand on its 1998

study. OSHA will examine this and all

research results that become available during

the rulemaking process, to ensure that the

Agency's ergonomics program standard is based

on the best available and most current

evidence. However, more than enough evidence

already exists to proceed with a proposed

standard. In the words of the American

College of Occupational and Environmental

Medicine, the world's largest occupational

medical society, ``there is an adequate

scientific foundation for OSHA to proceed

with a proposal and, therefore, no reason for

OSHA to delay the rulemaking process * * *.''

D. Employer Experience Supporting the

Standard

Employers with companies of all sizes have

had great success in using ergonomics

programs as a cost-effective way to prevent

or reduce work-related MSDs, keeping workers

on the job, and boosting productivity and

workplace morale. A recent General Accounting

Office (GAO) study of several companies with

ergonomics programs found that their programs

reduced work-related MSDs and associated

costs (GAO/HEHS-97-163). The GAO also found

that the programs and controls selected by

employers to address ergonomic hazards in the

workplace were not necessarily costly or

complex. As a result, the GAO recommended

that OSHA use a flexible regulatory approach

in its ergonomics standard that would enable

employers to develop their own effective

programs. The standard being proposed today

reflects this recommendation and builds on

the successful programs that thousands of

proactive employers have found successful in

dealing with their ergonomic problems.

E. Information OSHA is Providing to Help

Employers Address Ergonomic Hazards

Much literature and technical expertise

already exists and is available to employers,

both through OSHA and a variety of other

sources. For example:

Information is available from

OSHA's ergonomics Web page, which can be

accessed from OSHA's World Wide Web site at

http://www.osha.gov by scrolling down and

clicking on ``Ergonomics'';

Many publications, informational

materials and training courses are available

from OSHA through Regional Offices, OSHA-

sponsored educational centers, OSHA's state

consultation programs for small businesses,

and through the Web page;

Publications on ergonomics

programs are available from NIOSH at 1-800-

35-NIOSH. NIOSH is also a ``link'' on the

OSHA ergonomics Web page;

OSHA's state consultation

programs will provide free on-site

consultation services to employers requesting

help in implementing their ergonomics

programs; and

OSHA is developing a series of

compliance assistance materials and will make

them available before a final ergonomics

standard becomes effective.

II. Events Leading to the Proposed Standard

In proposing this standard, OSHA has

relied upon its own substantial experience

with ergonomics programs, the experience of

private firms and insurance companies, and

the results of research studies conducted

during the last 30 years. Those experiences

clearly show that: (1) Ergonomics programs

are an effective way to reduce occupational

MSDs; (2) ergonomics programs have

consistently achieved that objective; (3)

OSHA's proposal is consistent with these

programs; and (4) the proposal is firmly

grounded in the OSH Act and OSHA policies and

experience. The primary lesson to be learned

is that employers with effective, well-

managed ergonomics programs achieve

significant reductions in the severity and

number of work-related MSDs their employees

experience. These programs also generally

improve productivity and employee morale and

reduce employee turnover and absenteeism (see

Section VIII of this preamble and Chapters IV

(Benefits) and V (Costs of Compliance) of

OSHA's Preliminary Economic Analysis (Ex. 28-

1).

OSHA's long experience with ergonomics is

apparent from the chronology below. As this

table shows, the Agency has been actively

involved in ergonomics for more than 20

years.

OSHA Ergonomics Chronology

------------------------------------------------------------------------

------------------------------------------------------------------------

Early 1980s OSHA begins discussing ergonomic

interventions with labor, trade

associations and professional

organizations. OSHA issues citations to

Hanes Knitwear and Samsonite for

ergonomic hazards.

------------------------------------------------------------------------

August 1983 The OSHA Training Institute offers its

first course in ergonomics.

------------------------------------------------------------------------

May 1986 OSHA begins a pilot program to reduce back

injuries through review of injury records

during inspections and recommendations

for job redesign using NIOSH's Work

Practices Guide for Manual Lifting.

------------------------------------------------------------------------

October 1986 The Agency publishes a Request for

Information on approaches to reduce back

injuries resulting from manual lifting.

(57 FR 34192)

------------------------------------------------------------------------

July 1990 OSHA/UAW/Ford corporate-wide settlement

agreement commits Ford to reduce

ergonomic hazards in 96 percent of its

plants through a model ergonomics

program.

------------------------------------------------------------------------

August 1990 The Agency publishes ``Ergonomics Program

Management Guidelines for Meatpacking

Plants.''

------------------------------------------------------------------------

[[Page 65771]]

Fall 1990 OSHA creates the Office of Ergonomics

Support and hires more ergonomists.

------------------------------------------------------------------------

November 1990 OSHA/UAW/GM sign agreement bringing

ergonomics programs to 138 GM plants

employing more than 300,000 workers.

Throughout the early 90s, OSHA signed 13

more corporate-wide settlement agreements

to bring ergonomics programs to nearly

half a million more workers.

------------------------------------------------------------------------

July 1991 OSHA publishes ``Ergonomics: The Study of

Work,'' as part of a nationwide education

and outreach program to raise awareness

about ways to reduce musculoskeletal

disorders.

------------------------------------------------------------------------

July 1991 More than 30 labor organizations petition

Secretary of Labor to issue an Emergency

Temporary Standard.

------------------------------------------------------------------------

January 1992 OSHA begins a special emphasis inspection

program on ergonomic hazards in the

meatpacking industry.

------------------------------------------------------------------------

April 1992 Secretary of Labor denies petition.

------------------------------------------------------------------------

August 1992 OSHA publishes an Advance Notice of

Proposed Rulemaking on ergonomics.

------------------------------------------------------------------------

1993 OSHA conducts a survey of general industry

and construction employers to obtain

information on the extent of ergonomics

programs in industry and other issues.

------------------------------------------------------------------------

March 1995 OSHA begins a series of meetings with

stakeholders to discuss approaches to a

draft ergonomics standard.

------------------------------------------------------------------------

January 1997 OSHA/NIOSH conference on successful

ergonomic programs held in Chicago.

------------------------------------------------------------------------

April 1997 OSHA introduces the ergonomics web page on

the Internet.

------------------------------------------------------------------------

February 1998 OSHA begins a series of national

stakeholder meetings about the draft

ergonomics standard under development.

------------------------------------------------------------------------

March 1998 OSHA releases a video entitled ``Ergonomic

Programs That Work.''

------------------------------------------------------------------------

February 1999 OSHA begins small business (Small Business

Regulatory Enforcement Fairness Act

(SBREFA)) review of its draft ergonomics

rule, and makes draft regulatory text

available to the public.

------------------------------------------------------------------------

April 1999 OSHA's Assistant Secretary receives the

SBREFA report on the draft ergonomics

program proposal, and the Agency begins

to address the concerns raised in that

report.

------------------------------------------------------------------------

November 1999 OSHA publishes proposed ergonomics program

standard.

------------------------------------------------------------------------

A. Regulatory and Voluntary Guidelines

Activities

In 1989, OSHA issued the Safety and Health

Program Management Guidelines (54 FR 3904,

Jan. 26, 1989), which are voluntary program

management guidelines to assist employers in

developing effective safety and health

programs. These program management

guidelines, which are based on the widely

accepted industrial hygiene principles of

management commitment and employee

involvement, worksite hazard analysis, hazard

prevention and control, and employee

training, also serve as the foundation for

effective ergonomics programs. In August

1990, OSHA issued the Ergonomics Program

Management Guidelines for Meatpacking Plants

(Ex. 2-13), which utilized the four program

components from the safety and health

management guidelines, supplemented by other

ergonomics-specific program elements (e.g.,

medical management). The ergonomic guidelines

were based on the best available scientific

evidence, the best practices of successful

companies with these programs, advice from

the National Institute for Occupational

Safety and Health (NIOSH), the scientific

literature, and OSHA's experience with

enforcement actions. Many commenters in

various industries have said that they have

implemented their ergonomics programs

primarily on the basis of the OSHA ergonomics

guidelines (Exs. 3-50, 3-61, 3-95, 3-97, 3-

113, 3-121, 3-125), and there has been

general agreement among stakeholders that

these program elements should be included in

any OSHA ergonomics standard (Exs. 3-27, 3-

46, 3-51, 3-61, 3-89, 3-95, 3-113, 3-119, 3-

160, 3-184).

OSHA has also encouraged other efforts to

address the prevention of work-related

musculoskeletal disorders. For example, OSHA

has actively participated in the work of the

ANSI Z-365 Committee, which was tasked with

the development of a consensus standard for

the control of cumulative trauma disorders.

1. Petition for Emergency Temporary Standard

On July 31, 1991, the United Food and

Commercial Workers Union (UCFW), along with

the AFL-CIO and 29 other labor organizations,

petitioned OSHA to take immediate action to

reduce the risk to employees from exposure to

ergonomic hazards (Ex. 2-16). The petition

[[Page 65772]]

requested that OSHA issue an emergency

temporary standard (ETS) on ``Ergonomic

Hazards to Protect Workers from Work-Related

Musculoskeletal Disorders (Cumulative Trauma

Disorders)'' under section 6(c) of the Act.

The petitioners also requested, consistent

with section 6(c), that OSHA promulgate,

within 6 months of issuance of the ETS, a

permanent standard to protect workers from

cumulative trauma disorders in both general

industry and construction.

OSHA concluded that, based on the

statutory constraints and legal requirements

governing issuance of an ETS, there was not a

sufficient basis to support issuance of an

ETS. Accordingly, on April 17, 1992, OSHA

decided not to issue an ETS on ergonomic

hazards (Ex. 2-29). OSHA agreed with the

petitioners, however, that available

information, including the Agency's

experience and information in the ETS

petition and supporting documents, supported

the initiation of a rulemaking, under section

6(b)(5) of the Act, to address ergonomic

hazards.

2. Advance Notice of Proposed Rulemaking

At the time OSHA issued the Ergonomic

Program Management Guidelines for Meatpacking

Plants, (Ex. 2-13), the Agency also indicated

its intention to begin the rulemaking process

by asking the public for information about

musculoskeletal disorders (MSDs). The Agency

indicated that this could be accomplished

through a Request for Information (RFI) or an

Advance Notice of Proposed Rulemaking (ANPR)

consistent with the Administration's

Regulatory Program. Subsequently, OSHA

formally placed ergonomics rulemaking on the

regulatory agenda (Ex. 2-17) and decided to

issue an ANPR on this topic.

In June 1991, OSHA sent a draft copy of

the proposed ANPR questions for comment to

232 parties, including OSHA's advisory

committees, labor organizations (including

the petitioners), trade associations,

occupational groups, and members of the

ergonomics community (Ex. 2-18). OSHA

requested comments on what questions should

be presented in the ANPR. OSHA received 47

comments from those parties. In addition,

OSHA met with the Chemical Manufacturers

Association, Organization Resources

Counselors, Inc., and the AFL-CIO and several

of its member organizations. OSHA reviewed

the comments and submissions received and

incorporated relevant suggestions and

comments into the ANPR.

On August 3, 1992, OSHA published the ANPR

in the Federal Register (57 FR 34192),

requesting information for consideration in

the development of an ergonomics standard.

OSHA received 290 comments in response to the

ANPR. Those comments have been carefully

considered by the Agency in developing the

proposed ergonomics program standard.

3. Outreach to Stakeholders

In conjunction with the process of

developing the proposed ergonomics rule, OSHA

has established various communication and

outreach efforts since publication of the

ANPR. These efforts were initiated in

response to requests by individuals who would

be affected by the rule (stakeholders) that

they be provided with the opportunity to

present their concerns about an ergonomics

rule and that they be kept apprised of the

efforts OSHA was making in developing a

proposed rule. For example, in March and

April 1994, OSHA held meetings with industry,

labor, professional and research

organizations covering general industry,

construction, agriculture, healthcare, and

the office environment. A list of those

attending the meetings and a record of the

meetings has been placed in the public record

of this rulemaking (Ex. 26-1370).

In March, 1995, OSHA provided a copy of

the draft proposed ergonomics rule and

preamble to these same organizations.

Thereafter, during April 1995, OSHA met again

with these groups to discuss whether the

draft proposed rule had accurately responded

to the concerns raised earlier. A summary of

the comments has been placed in the public

record (Ex. 26-1370).

During 1998, OSHA met with nearly 400

stakeholders to discuss ideas for a proposed

standard. The meetings were held in February,

July and September of 1998. The first series

of meetings was held in Washington, DC and

focused on general issues, such as the scope

of the standard and what elements of an

ergonomics program should be included in a

standard. The second series of meetings was

held in Kansas City and Atlanta and focused

on what elements and activities should be

included in an ergonomics program standard.

The third set of meetings was held in

Washington, DC and emphasized revisions to

the elements of the proposal based on

previous stakeholder input. A summary of

those meetings has been placed on the OSHA

web site and in the public docket (Ex. 26-

1370). After OSHA released a working draft of

the proposed ergonomics standard to members

of the Small Business Regulatory Enforcement

Fairness Act Panel for review under that

Act., the draft was posted on the OSHA web

site (February 9, 1999).

4. Small Business Regulatory Enforcement

Fairness Act (SBREFA) Panel

In accordance with SBREFA and to gain

insight from employers with small businesses,

OSHA, the Office of Management and Budget

(OMB), and the Small Business Administration

(SBA) created a Panel to review and comment

on a working draft of the ergonomics program

standard. As required by SBREFA, the Panel

sought the advice and recommendations of

potentially affected Small Entity

Representatives (SERs). A total of 21 SERs

from a variety of industries participated in

the effort. The working draft, supporting

materials (a brief summary of a preliminary

economic analysis and risk assessment and

other materials) were sent to the SERs for

their review. On March 24-26, 1999,

representatives from OSHA, SBA, and OMB

participated in a series of discussions with

the SERs to answer questions and receive

comments from the SERs. The SERs also

provided written comments, which served as

the basis of the Panel's final report (Ex.

23). The final SBREFA Panel Report was

submitted to the Assistant Secretary on April

30, 1999. The findings and recommendations

made by the Panel are addressed in the

proposed rule, preamble, and economic

analysis (see the discussion in Section VIII,

Summary of the Preliminary Economic Analysis

and Initial Regulatory Flexibility Analysis).

B. Other OSHA Efforts in Ergonomics

In 1996, OSHA developed a strategy to

address ergonomics through a four-pronged

program including training, education, and

outreach activities; study and analysis of

the work-related hazards that lead to MSDs;

enforcement; and rulemaking.

1. Training, Education, and Outreach

a. Training. The OSHA ergonomics web page

has been an important part of the Agency's

education and outreach effort. Other OSHA

efforts in training, education and outreach

include the following:

Grants to train workers and

employees about hazards and hazard abatement;

Training courses in ergonomics;

[[Page 65773]]

One day training for nursing home

operators in each of five targeted states;

Booklets on ergonomics,

ergonomics programs, and computer

workstations; and

Videotapes on ergonomics programs

in general industry and specifically in

nursing homes.

OSHA has awarded almost $3 million for 25

grants addressing ergonomics, including

lifting hazards in healthcare facilities and

hazards in the red meat and poultry

industries. These grants have enabled workers

and employers to identify ergonomic hazards

and implement workplace changes to abate the

hazards.

Some grant program highlights follow.

The United Food and Commercial

Workers International Union (UFCW) conducted

joint labor-management ergonomics training at

a meatpacking plant that resulted in a major

effort at the plant to combat cumulative

trauma disorders. The program was so

successful that management asked the UFCW to

conduct the ergonomics training and work with

management at some of its other facilities.

The University of California at

Los Angeles (UCLA) and the Service Employees

International Union (SEIU) both had grants

for preventing lifting injuries in nursing

homes. SEIU developed a training program that

was used by UCLA to train nursing home

workers in California. UCLA also worked with

some national back injury prevention

programs. At least one of the nursing home

chains has replicated the program in other

states.

Mercy Hospital in Des Moines,

Iowa, had a grant to prevent lifting injuries

in hospitals. It trained over 3,000 hospital

workers in Des Moines and surrounding

counties. It had a goal of reducing lost work

days by 15 percent. The goal was surpassed,

and, six months after the training, none of

those trained had had a lost workday due to

back injury.

Hunter College in New York City is

training ergonomics trainers for the United

Paperworkers International Union. The

trainers then return to their locals and

conduct ergonomics training for union

members. As a result of this training,

changes are being made at some workplaces.

Examples include purchasing new equipment

that eliminates or reduces workers' need to

bend or twist at the workstation, rotating

workers every two hours with a ten-minute

break before each rotation, and modifying

workstations to reduce worker strain.

b. Education and Outreach. To provide a

forum to discuss ergonomic programs and to

augment information in the literature with

the experience of companies of different

sizes and from a variety of industries, OSHA

and NIOSH sponsored the first in a series of

conferences that brought industry, labor,

researchers, and consultants together to

discuss what works in reducing MSDs. The 1997

OSHA and NIOSH conference was followed by 11

more regional conferences across the country.

OSHA and NIOSH held the second national

conference on ergonomics in March of 1999.

More than 200 presentations were given at the

conferences on how companies have

successfully reduced MSDs. Presentations were

made by personnel from large and small

companies in many different industries.

Other examples of successful ergonomics

programs have come from OSHA's Voluntary

Protection Program (VPP). The VPP program was

established by OSHA to recognize employers

whose organizations have exemplary workplace

safety health programs. Several sites that

have been accepted into VPP have excellent

ergonomics programs.

2. Ergonomics Best Practices Conferences

During the period from Sept. 17, 1997

through Sept. 29, 1999, OSHA and its Regional

Education Centers co-sponsored 11 Ergonomics

Best Practices conferences. These Conferences

were designed to provide good examples of

practical and inexpensive ergonomics

interventions implemented by local companies.

The concept was that if OSHA and its Regional

partners could initiate the development of a

network of local employers, contractors, and

educators to provide practical information to

solve ergonomics problems, it would be

assisting employers in providing a workplace

for employees that would be ``free of

recognized health and safety hazards.'' To

date, attendance has exceeded 2,400

participants, including employers,

contractors, and employees. Finally, OSHA has

made numerous outreach presentations to

labor, trade, industry and professional

organizations during the development of the

proposed rule.

3. Studies and Analyses

Throughout the 1990s and continuing to the

present, OSHA staff have monitored the

ergonomics literature, developed analyses,

and reviewed the work of other Federal and

non-Federal agencies and organizations

related to ergonomics issues. In some cases,

OSHA staff have conducted site visits to

observe ergonomics programs at first hand.

Much of the information learned through these

activities is reflected in the material in

this preamble.

The most important reports and studies to

appear in the last few years are listed

below. OSHA has reviewed each of these

documents in detail, and findings from them

that are relevant to the discussions in this

preamble are referenced in the text.

Important recent studies that have supported

the conclusion that ergonomic interventions

and programs are a successful way to reduce

MSDs:

Elements of Ergonomics Programs,

NIOSH, 1998 (Ex. 26-2);

Musculoskeletal Disorders and

Workplace Factors, NIOSH, 1997 (Ex. 26-1);

Worker Protection: Private Sector

Ergonomics Programs Yield Positive Results,

GAO 1997 (Ex. 26-5); and

Work-related Musculoskeletal

Disorders, NRC 1998 (Ex. 26-37).

Other reports that support the use of

ergonomic interventions in the context of an

ergonomics program include:

ASC Z-365 draft, Control of

Cumulative Trauma Disorders, June 1997; and

Applied Ergonomics, case studies,

Volume 2 (case studies from the OSHA/NIOSH

conference 1999).

In addition, in 1994, OSHA conducted eight

site visits to companies that have

implemented ergonomic controls. These site

visits were at the invitation of companies in

industries including meatpacking,

manufacturing, and automotive manufacturing.

In conjunction with three of these site

visits, OSHA also held ``town meetings'' with

other industry, labor and professional

representatives in the geographical area.

These meetings allowed OSHA to learn about

other ergonomic programs that have been

implemented by companies in the same area as

well as issues regarding an OSHA ergonomics

rule.

4. Enforcement

In the absence of a federal OSHA

ergonomics standard, OSHA has addressed

ergonomics in the workplace under the

authority of section 5(a)(1) of the OSHAct.

This section is referred to as the General

Duty Clause and requires employers to provide

work and a work environment free from

recognized hazards that are causing or are

likely to cause death or serious physical

harm.

[[Page 65774]]

OSHA has successfully issued over 550

ergonomics citations under the General Duty

Clause. Only one case has been decided by the

Occupational Safety and Health Review

Commission. In the majority of these cases,

employers have realized that the

implementation of ergonomics programs is in

their best interest for the reduction of

injuries and illnesses. Examples of companies

cited under the General Duty Clause for

ergonomics hazards and which then realized a

substantial reduction in injuries and

illnesses after implementing ergonomics

programs include: the Ford Motor Company,

Empire Kosher, Sysco Foods, and Kennebec

Nursing Home.

When serious physical harm cannot be

documented in the work environment but

hazards have been identified by OSHA,

Compliance Officers both discuss the hazards

with the employer during the closing

conference of an inspection and write a

letter to the employer. These letters are

called ``ergonomic hazard alert letters.'' As

of June 1, 1999, approximately 260 letters

had been sent to employers. Ergonomic hazard

alert letters have been sent to employers in

approximately 50% of OSHA ergonomic

inspections.

Since ergonomic solutions vary from one

industry to another, OSHA has provided both

general and industry-specific training to

compliance officers. There are currently

three main ergonomic courses offered to OSHA

compliance staff: Introduction to Ergonomics,

Ergonomics in Nursing Homes, and Ergonomics

Compliance (an advanced ergonomics course).

Over 600 compliance staff have been trained

in just the past three years. These courses

cover three weeks of material.

In addition, OSHA has appointed one Area

Office Ergonomic Coordinator and a Regional

Ergonomic Coordinator in every region. These

coordinators meet monthly to discuss recent

case developments and the scientific

literature on ergonomics, share knowledge of

ergonomic solutions, and ensure that

enforcement resources are provided to

compliance staff for enforcement. A PhD

level, professionally certified ergonomist

serves as the National Ergonomics Enforcement

Coordinator in OSHA's Directorate of

Compliance Programs.

5. Corporate Wide Settlement Agreements

Among the companies that were cited for

MSD hazards, 13 companies covering 198

facilities agreed to enter into corporate-

wide settlement agreements with OSHA. These

agreements were primarily in the meat

processing and auto assembly industries, but

there were also agreements with

telecommunications, textile, warehousing

grocery, and paper companies. As part of

these settlement agreements, the companies

agreed to develop ergonomics programs based

on OSHA's Meatpacking Guidelines (Ex. 2-13)

and to submit information on the progress of

their program.

OSHA held a workshop in March 1999, in

which 10 companies described their experience

under their settlement agreement and with

their ergonomics programs. All the companies

that reported results to OSHA showed a

substantially lower severity rate for MSDs

since implementing their programs (Ex. 26-

1420). In addition, most companies reported

lower workers' compensation costs, as well as

higher productivity and product quality. A

report from the March 1999 workshop on

corporate wide settlement agreements

summarizing the results from 13 companies

involved in the agreements has been placed in

the docket (Ex. 26-1420). Only 5 of the 13

companies consistently reported the number of

MSD cases or MSD case rates. All five

companies that reported data on MSD-related

lost workdays showed a significant decline in

the number of lost workdays. None of the

companies that reported severity statistics

showed an increase in lost workdays as a

result of the ergonomics program.

C. Summary

As this review of OSHA's activities in the

last 20 years shows, the Agency has

considerable experience in addressing

ergonomics issues. OSHA has also used all of

the tools authorized by the Act--enforcement,

consultation, training and education,

compliance assistance, the Voluntary

Protection Programs, and issuance of

voluntary guidelines--to encourage employers

to address musculoskeletal disorders, the

single largest occupational safety and health

problem in the United States today. These

efforts, and the voluntary efforts of

employers and employees, have led to a recent

5-year decline in the number of reported lost

workday ergonomics injuries. However, in

1997, more than 626,000 such injuries and

illnesses were still reported. Promulgation

of an ergonomics program standard will add

the only tool the Agency has so far not

deployed against this hazard--a mandatory

standard--to these other OSHA and employer-

driven initiatives. Over the first 10 years

of the standard's implementation, OSHA

predicts that more than 3 million lost

workday musculoskeletal disorders will be

prevented in general industry. Ergonomics

programs can lead directly to improved

product quality by reducing errors and

rejection rates. In an OSHA survey of more

than 3,000 employers, 17 percent of employers

with ergonomics programs reported that their

programs had improved product quality. In

addition, a large number of case studies

reported in the literature describe quality

improvements. Thus, in addition to better

saftey and health for workers, the standard

will save employers money, improve product

quality, and reduce employee turnover and

absenteeism.

III. Pertinent Legal Authority

The purpose of the Occupational Safety and

Health Act (``OSH Act''), 29 U.S.C. 651 et

seq., is ``to assure so far as possible every

working man and woman in the nation safe and

healthful working conditions and to preserve

our human resources.'' 29 U.S.C. 651(b). To

achieve this goal Congress authorized the

Secretary of Labor to promulgate and enforce

occupational safety and health standards. 29

U.S.C. 655(b) (authorizing promulgation of

standards pursuant to notice and comment),

654(b) (requiring employers to comply with

OSHA standards).

A safety or health standard is a standard

``which requires conditions, or the adoption

or use of one or more practices, means,

methods, operations, or processes, reasonably

necessary or appropriate to provide safe or

healthful employment or places of

employment.'' 29 U.S.C. 652(8).

A standard is reasonably necessary or

appropriate within the meaning of Section

652(8) if:

A significant risk of material

harm exists in the workplace and the proposed

standard would substantially reduce or

eliminate that workplace risk;

It is technologically and

economically feasible;

It is cost effective;

It is consistent with prior

Agency action or supported by a reasoned

justification for departing from prior Agency

action;

It is supported by substantial

evidence; and

If this standard is preceded by a

national consensus standard, it is better

able to effectuate the purposes of the OSH

Act than the standard it supersedes.

[[Page 65775]]

International Union, UAW v. OSHA (LOTO II),

37 F.3d 665 (D.C. Cir. 1994); 58 FR 16612--

16616 (March 30, 1993).

OSHA has generally considered an excess

risk of 1 death per 1000 workers over a 45-

year working lifetime as clearly representing

a significant risk. Industrial Union Dept. v.

American Petroleum Institute (Benzene), 448

U.S. 607, 646 (1980); International Union v.

Pendergrass (Formaldehyde), 878 F.2d 389, 393

(D.C. Cir. 1989); Building and Construction

Trades Dept., AFL-CIO v. Brock (Asbestos),

838 F.2d 1258, 1264-65 (D.C. Cir. 1988).

A standard is technologically feasible if

the protective measures it requires already

exist, can be brought into existence with

available technology, or can be created with

technology that can reasonably be expected to

be developed. American Textile Mfrs.

Institute v. OSHA (Cotton Dust), 452 U.S.

490, 513 (1981), American Iron and Steel

Institute v. OSHA (Lead II), 939 F.2d 975,

980 (D.C. Cir. 1991).

A standard is economically feasible if

industry can absorb or pass on the costs of

compliance without threatening the industry's

long-term profitability or competitive

structure. See Cotton Dust, 452 U.S. at 530

n. 55; Lead II, 939 F.2d at 980.

A standard is cost effective if the

protective measures it requires are the least

costly of the available alternatives that

achieve the same level of protection. Cotton

Dust, 453 U.S. at 514 n. 32; International

Union, UAW v. OSHA (LOTO III), 37 F.3d 665,

668 (D.C. Cir. 1994).

All standards must be highly protective.

See 58 FR 16612, 16614-15 (March 30, 1993);

LOTO III, 37 F.3d at 669. However, health

standards must also meet the ``feasibility

mandate'' of section 6(b)(5) of the OSH Act,

29 U.S.C. 655(b)(5). Section 6(b)(5) requires

OSHA to select ``the most protective standard

consistent with feasibility'' that is needed

to reduce significant risk when regulating

health hazards. Cotton Dust, 452 U.S. at 509.

Section 6(b)(5) also directs OSHA to base

health standards on ``the best available

evidence,'' including research,

demonstrations, and experiments. 29 U.S.C.

655(b)(5). OSHA shall consider ``in addition

to the attainment of the highest degree of

health and safety protection * * * the latest

scientific data * * * feasibility and

experience gained under this and other health

and safety laws.'' Id.

Section 6(b)(7) authorizes OSHA to include

among a standard's requirements labeling,

monitoring, medical testing and other

information gathering and transmittal

provisions, as appropriate. 29 U.S.C.

655(b)(7).

Finally, whenever practical, standards

shall ``be expressed in terms of objective

criteria and of the performance desired.''

Id.

IV. Summary and Explanation

Based on the best currently available

evidence, OSHA has preliminarily concluded

that the requirements of the proposed

Ergonomics Program Standard are reasonably

necessary and appropriate to provide adequate

protection from hazards that are reasonably

likely to cause or contribute to work-related

musculoskeletal disorders.

In developing this proposed rule, OSHA has

carefully considered the large body of

scientific articles and studies, as well as

other data that OSHA has collected since the

initiation of the Agency's ergonomic efforts

more than a decade ago. In particular, OSHA

has carefully considered the large number of

pathophysiological, biomechanical and

epidemiologic studies on MSD hazards,

including those that were reviewed by NIOSH

and NRC/NAS in their comprehensive studies in

1997 and 1998, respectively. Examples of

other data OSHA has carefully considered in

developing the proposed rule include case

studies, papers, and ``best practices'' about

ergonomics programs and controls that have

been successfully implemented by a number of

establishments.

OSHA also met with more than 400

stakeholders in several informal meetings

during the development of the proposed rule,

and considered the major points raised by the

stakeholders during these meetings. In

addition, the proposed rule has undergone the

Panel review process required by the Small

Business Regulatory Enforcement Fairness Act

(SBREFA) 5 U.S.C. Chapter 8. All of the

information developed to assist the small

entity representatives (SERs) involved in the

SBREFA process, the comments of the

representatives, and the Panel's report and

recommendations to OSHA have been placed in

the rulemaking record (Ex. 23). Moreover, in

conjunction with the SBREFA process, OSHA

released a draft, on the OSHA web page, of

the proposed rule and carefully considered

stakeholder comments on that draft.

When a final standard is published, OSHA

will undertake a number of outreach and

compliance assistance activities. These will

be particularly beneficial to small

businesses. Outreach and compliance

assistance activities OSHA intends to make

available include:

Publication of booklets

summarizing the standard and providing

specific information about different ways in

which employers can comply with the standard;

Development of computer-based

materials to help small businesses identify

and respond to MSDs and MSD hazards;

Development of a Small Entity

Compliance Guide, as required by SBREFA; and

Development of a compliance

directive that answers compliance-related

questions about the standard.

In this summary and explanation for the

proposed rule, OSHA has provided a number of

examples of practices and controls that the

Agency believes will work to reduce MSDs and

exposure to MSD hazards. Although these

certainly are not the only ways employers

could comply with the proposed rule, the

discussion provides information that

employers can use or adapt for their

workplaces. OSHA has used a variety of

methods to help stakeholders understand the

proposed requirements. For example, the

summary and explanation includes a number of

tables, exhibits and figures to show data,

examples, requirements and ways to comply

with the requirements. To make the preamble

easier to use, the discussion of each

provision of the proposed rule begins with a

reprint of that provision from the proposed

rule. In addition, the summary and

explanation is included at the beginning of

the preamble so stakeholders understand what

the proposed rule would require when they

examine other sections of the preamble, such

as the information on the costs and impacts

of the proposed rule.

OSHA believes that this proposed

ergonomics program standard fulfills a

promise President Clinton and Vice-President

Gore made in the 1995 National Performance

Reveiw document, ``The New OSHA: Reinventing

Worker Safety and Health.'' That document

promised that OSHA would address the issue of

ergonomics by working with business and labor

to develop a flexible, plain-language

ergonomics standard. The standard being

proposed today reflects OSHA's commitment to

common-sense rulemaking.

[[Page 65776]]

Does This Standard Apply to Me?

(Secs. 1910.901-1910.904)

The discussion of ``Does this standard

apply to me?'' (i.e., Scope of the proposed

ergonomics program rule) is divided into

three parts. Part A explains what employers

and jobs the proposed standard covers. Part B

discusses the definitions of the covered jobs

and the other sections related to the Scope

of the standard. Part C addresses OSHA's

authority to limit the scope of the

ergonomics program standard.

A. Industries, Employers and Jobs This

Standard Covers

1. How Serious Is the Problem of Work-Related

MSDs?

The problem of occupational

musculoskeletal disorders (MSDs) is serious

and widespread, and the scope of the proposed

standard is also broad, so that it will

capture a substantial portion of these MSDs.

Lost workday MSDs constitute one-third of all

job-related injuries and illnesses reported

to BLS every year.

a. MSD cases. Since 1993, the first year

BLS began reporting data on musculoskeletal

disorders, private industry employers have

reported more than 620,000 MSDs every year

that have been serious enough to result in

days away from work for the employee,

according to the Bureau of Labor Statistics

(BLS). (These MSDs are referred to in this

preamble as ``lost-workday MSDs'' or ``LWD

MSDs.'') MSDs now account for one-third of

all reported LWD injuries and illnesses. The

total number of reported MSDs, lost-time and

non-lost-time MSDs combined, is much higher.

The combined total is estimated to be almost

three times higher than the number of LWD

MSDs. (BLS data indicate that about two-

thirds of all injuries and illnesses do not

involve days away from work.)

b. Annual MSD rates. In addition, BLS data

shows that annual incidence rates for LWD

MSDs are high. In 1996, LWD MSD rates were as

high as 36.58 per 1,000 full-time employees

(FTE) (SIC 45--Transportation by Air). For a

number of 2-digit industry sectors, LWD MSD

rates exceeded 10 per 1,000 FTE. And only

three industry sectors had an annual rate of

less than 1 LWD MSD per 1,000 FTE. (A

detailed discussion of LWD MSD cases and

rates by industry and occupation are

presented in the Preliminary Risk Assessment

Section VI.)

c. Lifetime MSD rates. The lifetime rates

for LWD MSDs are substantially higher. The

estimated probability that a worker will

experience at least 1 work-related MSD during

a working lifetime (45 years) ranges from 24

to 813 per 1,000 FTE, depending on the

industry sector. In addition, it is possible

for a worker to experience more than one MSD

in a working lifetime. There is evidence in

the record indicating that many employees

working in establishments without an

ergonomics program have suffered more than

one serious MSD (Exs. 26-23, 26-24, 26-25,

26-26, 26-1263, 26-1370). For example, a

number of employees have had multiple

surgeries for carpal tunnel syndrome (CTS).

The expected number of MSDs that will occur

during a working lifetime among 1,000 FTE

workers who begin working in an industry at

the same time ranges from 24 to 1,646, for

various general industry sectors (see Section

VII, Significance of Risk).

d. MSD costs. Each year MSDs alone account

for about $15-20 billion in workers'

compensation costs, which is roughly $1 of

every $3 spent for workers' compensation. The

average costs for MSD cases are higher than

those for other injuries. For example, the

average per case costs for carpal tunnel

syndrome cases are $8,070, which is more than

double the $4,000 average per case costs for

all other injuries and illnesses (Exs. 26-43,

26-1286). According to Liberty Mutual

Insurance Company, low-back pain is the most

prevalent and costly work-related MSD in the

nation. Low-back pain MSDs account for 15% of

all Liberty Mutual workers' compensation

claims and 23% of the costs of these claims

(Ex. 26-54).

e. MSDs widespread. Data and other

evidence show that the problem of work-

related MSDs is widespread. Stakeholders have

told OSHA that MSDs and MSD hazards are found

in every industry in the nation (Ex. 3-59, 3-

183, 3-184, 3-217). And each year employers

in every industry report substantial numbers

of LWD MSDs. In 1997, more than 626,000 LWD

MSDs were reported in private industry, about

567,000 of which were in general industry.

(See Section VI, Preliminary Risk Assessment,

for a more detailed discussion of the number

and rates of MSDs reported to the Bureau of

Labor Statistics.)

2. Why and How Is OSHA Limiting the Scope of

the Proposed Ergonomics Program Standard?

Although these and other data indicate

that the problem of MSDs is serious and

widespread, for several reasons OSHA believes

it is prudent to proceed with the ergonomics

rulemaking in phases. Regulating workplace

exposure to MSD hazards presents special

problems. In particular, the analysis and

control of MSD hazards involves complex

issues, because most often several ergonomic

risk factors combine to create an MSD hazard,

and these risk factors occur in many

different combinations. The multi-factoral

nature of MSD hazards also makes the

development of a rule to address these

hazards more complex, because it requires

more Agency resources for the rulemaking, for

additional analyses, and for materials for

effective outreach and training.

OSHA applied two general principles in

determining the scope of the first phase of

the Ergonomics Program Standard. OSHA decided

to focus on those areas where: (1) The

problems are severe, and (2) the solutions

are well-understood.

These principles are consistent with

statutory factors governing OSHA rulemakings,

including the criteria in section 6(g) of the

OSH Act that OSHA must consider when setting

rulemaking priorities. 29 U.S.C. 655(g). They

are also consistent with the feasibility and

substantial evidence requirements in the OSH

Act. 29 U.S.C. 655(b)(5).

Applying these principles, OSHA made two

basic decisions on the scope of the first

phase of the Ergonomics Program Standard.

OSHA first decided to limit the proposed

standard to general industry because that is

where the Agency has the most data and

evidence on ergonomics solutions. And OSHA

decided to focus on three areas within

general industry where the problem is likely

to be severe.

a. General industry. The vast majority of

the large body of evidence and data showing

that ergonomics programs and control

interventions are successful in reducing MSDs

pertains to general industry. (Exs. 26-1, 26-

37). For example, the vast majority of

studies reviewed in the NIOSH and NRC/NAS

reports pertain to general industry. Almost

all of the studies on the effectiveness of

ergonomics programs and control interventions

focused on general industry (see Section VI,

Preliminary Risk Assessment). The vast

majority of the success stories OSHA has

gathered on the accomplishments of employers

with ergonomics programs pertain to general

industry employers. (See discussion of Job

Hazard Analysis and Control below in this

section, and the Preliminary Economic

Analysis, for control scenarios and success

stories.)

[[Page 65777]]

Evidence on ergonomic solutions from

OSHA's own experience dealing with MSD

hazards is also primarily derived from

general industry. For example, all of OSHA's

ergonomics enforcement experience under the

General Duty Clause is in general industry.

This includes more than 550 uncontested cases

and 13 corporate settlement agreements

covering 198 facilities.

Information about ergonomic solutions that

OSHA has derived from the hundreds of

ergonomics consultations the Agency pertains

primarily to general industry. OSHA's

ergonomics guidance and outreach efforts have

been directed to general industry because

most of the data and information are there.

For example, the ergonomics program

management guidelines OSHA published in 1990

focused on the red meat industry (Ex. 26-3).

OSHA's other major ergonomics initiative

targeted the nursing homes industry, a

service industry within the general industry

sector.

OSHA recognizes that MSD problems are also

serious in the construction, maritime and

agricultural industries. In 1996 alone,

employers in these industries reported more

than 60,000 LWD MSD. In the Construction--

Special Trades industry sector (SIC 17), more

than 35,000 LWD MSDs were reported, and the

incidence rate was 11.57 per 1,000 FTE. OSHA

intends to conduct rulemaking for those

sectors at a later date. However, at this

time the Agency has less well-developed data

on ergonomics solutions in the construction,

maritime and agriculture industries, and

these industries have unique characteristics

that warrant separate rulemakings. (Part C

discusses the characteristics in those

industries.)

b. Covered jobs. Within general industry,

OSHA is applying the proposed rule to the

following three areas where the problem is

especially likely to be severe:

Manufacturing production jobs;

Manual handling jobs requiring

forceful exertions; and

Jobs where ``OSHA recordable''

MSDs meeting the screening criteria are

reported.

Manufacturing and manual handling jobs.

Data and other evidence in the record

indicate that in these jobs MSD hazards are

especially likely to be present. (In the

proposed rule MSD hazards are defined as

``physical work activities and/or physical

work conditions in which risk factors are

present, that are reasonably likely to cause

or contribute to a covered MSD.''). BLS data

and evidence in the record indicate that

there is a heavy concentration of reported

MSDs and MSD hazards in manual handling and

manufacturing jobs. These jobs account for

about 60% of all reported MSDs that are

severe enough to have resulted in days away

from work, even though manufacturing and

manual handling jobs employ less than 28% of

the general industry workforce, according to

BLS.

For many occupations involving

manufacturing or manual handling, MSD rates

are high. In 1996, LWD MSD rates for

occupations involving manufacturing and

manual handling were as high as 30.4 and 42.4

per 1,000 FTE, respectively. For example,

among nursing aides, orderlies and

attendants, the LWD MSD rate was 31.6 per

1,000, and about 58,400 cases were reported.

(For the entire health services industry

sector, which involves a variety of patient

handling tasks, more than 103,000 LWD MSDs

were reported, or almost 15% of all private

industry cases.)

The fact that manufacturing production and

manual handling jobs account for the largest

share of workers' compensation costs is

another indication that there is likely to be

a high concentration of MSD hazards in those

jobs. MSDs of the back are one of the most

costly workplace injuries and account for a

very large percentage of permanent

occupational disability cases and costs. As

mentioned above, according to Liberty Mutual

Insurance Company (1988, Ex. 26-54), MSDs of

the back are the most prevalent and costly

work-related MSD in the nation.

Other general industry jobs in which

covered MSDs occur. In general industry jobs

other than manufacturing and manual handling,

exposure to MSD hazards is more variable,

depending on particular work activities and

conditions. There are, however, a very large

number of MSDs reported outside manufacturing

and manual handling jobs. An employer's

report of a work-related MSD that is serious

enough to result in work restrictions, days

away from work or medical treatment, is a

logical indicator that MSD hazards are likely

to be present in a job. OSHA is therefore

extending coverage to jobs in which covered

MSDs occur. This scope of coverage will reach

jobs in which MSD hazards are likely to be

present while excluding other jobs unless and

until a covered MSD occurs in them.

Evidence of the severity of the MSD

problem outside of manufacturing and manual

handling includes the following. In 1996,

about 230,000 LWD MSDs were reported in jobs

other than manufacturing and manual handling.

The annual LWD MSD rates that year exceeded 1

per 1,000 in all but three general industry

sectors that typically do not involve

manufacturing or manual handling jobs.

A significant percentage of carpal tunnel

syndrome (CTS) cases, the type of MSD

generally requiring the most extensive

recovery time, is found in jobs other than

manufacturing or manual handling. In 1996,

CTS cases resulted in the highest median

number of days away from work for any injury

or illness: 25 days for CTS compared to 5

days for all injuries and illnesses combined.

That year, more than 57% of lost-workday CTS

cases involved more than 20 days away from

work, and more than 42% of all lost-workday

CTS cases involved more than 30 days away

from work. For amputations and fractures, 32%

and 36% of cases, respectively, involved more

than 30 days away from work.

In conclusion, although the proposed rule

applies to only three categories within

general industry, it will capture those jobs

in which 90% of LWD MSDs have been reported

in recent years in private industry. And

because there are so many well-recognized

ergonomic solutions to MSD problems in

general industry, OSHA believes the proposed

standard should substantially reduce MSD

hazards as well as the number and severity of

work-related MSDs in covered industries. OSHA

requests comment on the scope of the proposed

rule, particularly on whether and to what

extent the scope of the rule should be

expanded or reduced.

B. Definitions of Manufacturing Jobs, Manual

Handling Jobs and Jobs With MSDs and

Explanation of Other Scope Sections

Part B discusses the Scope sections of the

proposed rule. The first section explains the

definitions of the jobs the proposed rule

covers: manufacturing jobs, manual handling

jobs, and jobs with covered MSDs. The second

section discusses the other sections of the

Scope of the proposed rule (Secs. 1910.901-

1910.904).

1. Definitions of Covered Jobs

The proposed rule is job-based, and the

scope of the proposed rule is defined in

terms of jobs: manufacturing jobs, manual

handling jobs, and jobs in which an employee

has experienced a covered MSD. The proposed

rule applies

[[Page 65778]]

to employers who have any of these jobs, but

only to the extent that their workplaces have

such jobs. Where employers do not have manual

handling or manufacturing jobs that have

given rise to a covered MSD, the Ergonomics

Program Standard would not apply at all.

a. Why is OSHA using a job-based approach

for defining the scope of the proposed rule?

OSHA is proposing a job-based approach for

defining the scope and application of the

ergonomics standard because this approach

focuses on areas where MSD hazards are likely

to be present, is relatively easy to apply,

and appears to be more cost-effective than

other approaches. OSHA believes employers

should be able to determine whether the

standard applies to them without having to do

a job hazard analysis for all jobs in their

workplace. In addition, the three job

categories addressed by the scope should

include most jobs in which MSD hazards are

present.

Easy to apply. The three job categories

OSHA is proposing to cover should help

employers quickly focus on the areas where

they need to be looking for ergonomic

problems. Employers should know whether they

have manufacturing production jobs or jobs

where employees are regularly handling heavy

loads. In addition, it should not be

difficult for employers to determine whether

they have OSHA recordable MSDs, since most of

them are already familiar with recording

work-related illnesses and injuries in order

to comply with the OSHA recordkeeping rule,

29 CFR Part 1904. Even employers who do not

keep OSHA 200 logs should not have difficulty

identifying whether any of their employees

has been injured to the extent that they

require medical treatment, restricted work,

transfer to an alternative duty job, or time

away from work to recuperate.

``Proxy'' for MSD hazards. These three job

categories are appropriate because each is an

accurate and reasonable proxy for an

increased risk of exposure to ergonomic

hazards that are reasonably likely to cause

or contribute to serious physical harm, that

is, to a covered MSD. For example,

manufacturing production jobs frequently

involve repetition of the same task

throughout the workday, without much

variation. A large body of evidence, which is

discussed in greater detail in the Health

Effects section (Section V), shows that

employees who have frequent and/or prolonged

exposure to highly repetitive motions

(particularly when they are carried out in

combination with high force and/or awkward

postures) have a much higher risk of

developing an MSD as compared to employees

with lower levels of exposure (See e.g.,

NIOSH, 1997, Ex. 26-1; Bernard, 1993, Ex. 26-

439; Higgs et al. 1992, Ex. 26-1232; Burt et

al. 1990, Ex. 26-698; deKrom et al. 1990, Ex.

26-41; Silverstein et al. 1987, Ex. 26-34;

Armstrong et al. 1987, Ex. 26-48). The high

incidence rates in manufacturing production

occupations confirm this. OSHA is not saying

that all manufacturing jobs present MSD

hazards. OSHA is saying that manufacturing

jobs present an increased risk of such

hazards, and it is therefore logical to cover

them in the proposed standard.

The same is true for manual handling jobs.

Manual handling jobs typically involve

regular lifting of heavy loads. A large body

of evidence shows that doing forceful

exertions repeatedly or for a prolonged

period of time significantly increases the

risk of developing an MSD of the back (See

e.g., NIOSH, 1997, Ex. 26-1; Holmstrom et

al., 1992, Ex. 26-36; Punnett et al., 1991,

Ex. 26-36; Liles et al., 1984, Ex. 26-33).

Occupations and industries where these

hazards are present have very high LWD MSD

rates and a large number of cases. As

mentioned above, in 1996, nurses aides,

orderlies and health care attendants, who

spend much of their time doing patient

lifting tasks, had an annual LWD MSD rate of

31.6 per 1,000 FTE, and the health services

industry alone accounted for almost 15% of

all LWD MSD cases. Finally, the report of an

MSD that is serious enough to warrant

recording on the OSHA 200 log is a logical

indicator that MSD hazards may be present,

especially since assessing the work-

relatedness of the MSD for the purposes of

this standard involves a determination by the

employer about whether the MSD has a

connection to the activities and conditions

of the job.

More practical and less-burdensome.

Although not a perfect indicator of the

presence of MSD hazards, reliance on the

these job categories to determine the scope

of the proposed standard is more practical

than other approaches. Using this approach,

employers do not have to do a job hazard

analysis of their facility or use a checklist

to screen all of their jobs, and do not have

to measure the total weights lifted by an

employee or the number of repetitions made,

to determine whether the standard applies to

them. Thus, the job-based approach does not

require employers to spend much time and

resources reviewing the standard to determine

whether they are covered or reviewing jobs

where no hazard exists. OSHA believes that

determining in the first instance whether the

standard applies should require nothing more

of employers than a common sense

determination as to whether they have

manufacturing productions jobs, forceful

manual handling jobs, or jobs with OSHA

recordable MSDs. OSHA anticipates that

employers should be able to make this

determination based on existing knowledge

rather than on formal job analysis.

OSHA agrees with stakeholder and SBREFA

Panel comments to the effect that the scope

should be easy to understand. Accordingly, to

help employers understand the scope of the

rulemaking, the definitions of manufacturing

and manual handling jobs include examples of

jobs that would typically be included in and

excluded from the definition (see

Sec. 1910.945).

b. What about other methods for defining

scope? OSHA believes the job-based approach

is superior to other ways of defining

coverage, because, on balance, it is the most

accurate of the cost-effective approaches to

reducing MSD hazards. OSHA presents

alternative approaches below and requests

comment on this issue.

Preliminary job hazard analysis. OSHA

considered requiring all general industry

employers to do an initial job hazard

analysis for all jobs in the workplace to

identify those jobs where MSD hazards are

present. That approach is similar to the

approach OSHA uses in other health standards.

In those standards, employers make an initial

assessment about the presence of hazardous

substances in the workplace (i.e., ``Do I

have operations that involve formaldehyde in

my workplace?''). Requiring a preliminary job

hazard analysis to screen for ergonomic

hazards is analogous to this initial

assessment for toxic substances. Although

conducting a preliminary analysis is the most

thorough and accurate way to initially

determine whether MSD hazards are present, it

is more resource-intensive for employers. To

the extent that doing an initial job hazard

analysis would require employers to expend

considerable resources and efforts where no

MSD hazards are present, it would not be

cost-effective. In contrast, the practical

design of the proposed job-based approach

allows employers to make common sense

determinations about whether the proposed

rule applies, rather than requiring that the

determination be based on a formal job hazard

analysis. At the same time, since evidence in

the record shows that MSD hazards are likely

to be present in these jobs and that these

three categories account for such a large

proportion of all

[[Page 65779]]

reported MSDs, using the three job categories

is a reasonably accurate approach.

Specification. OSHA also could have used a

specification approach in the proposed rule,

defining coverage by specific measurements

such as weight limits, number of repetitions,

or number of hours performing a certain job

or task demand. A number of studies have

identified exposure-response relationships in

particular circumstances (Holmstrom et al.

1992, Ex. 26-36 ; Punnett et al. 1991, Ex.

26-39; de Krom et al. 1990, Ex. 26-41; Liles

et. al. 1984, Ex. 26-33), and a number of

models exist for equating safe levels of

exposure (e.g., NIOSH Lifting Index, Ex. 26-

572; Snook ``Push-Pull'' tables, Ex. 26-

1008).

Specification approaches, however, are

more likely to be overinclusive or

underinclusive. See International Union, UAW

v. OSHA (LOTO II), 37 F.3d 665 (D.C. Cir.

1994). For example, if the proposed rule were

to cover any task that required lifting a

certain weight (e.g., more than 40 pounds),

the proposed rule might not cover a number of

very hazardous lifting tasks in which MSDs

are reasonably likely to occur. This is

because the weight limit might not adequately

consider the impact of other factors on the

force required to complete a lift. To

illustrate, a task requiring an employee to

lift 40 pounds may be safe if twisting,

bending or reaching is not involved, but it

could be unsafe if long horizontal reaches or

bending is required.

On the other hand, a proposed rule that

defined coverage in terms of a weight limit

that takes other ergonomic risk factors into

account could be overinclusive because the

recommended lift weight could vary greatly

with each lifting task. For example, a

lifting task that does not involve any risk

factors other than force would be treated the

same as a lift involving many risk factors.

However, to expand a specification approach

to make it more precise (i.e., so that it was

not underinclusive or overinclusive) would

necessarily make the approach more complex.

It would require employers to determine what

risk factors are present in order to

determine their impact on the weight limit,

and thus would essentially require a basic

job hazard analysis simply to make a decision

about whether they are subject to the rule.

Checklist. OSHA could also have used a

checklist approach for defining coverage

under the proposed ergonomics standard. A

simple checklist has advantages: it can be

administered by a person with limited

training and is simple and fast to

administer. However, some checklists are not

designed to capture complex situations and

thus might be underinclusive. For example, a

simple checklist that omits questions that

are important to a particular job might

erroneously exclude a hazardous job or treat

it as no more hazardous than another job. On

the other hand, making a checklist more

thorough and accurate would make it harder to

use and more costly and complex.

Industry. Finally, OSHA could have defined

the coverage of the standard purely by

industry (i.e., industries with the highest

MSD rates), as some stakeholders have

recommended. For several reasons, however,

OSHA believes that this approach would not be

as accurate as the proposed approach in

focusing the standard on areas where the

problem is severe. Regardless of the industry

in which employees work, they face a

significant risk of material harm when they

are exposed to physical work activities and

conditions that are reasonably likely to

cause or contribute to a covered MSD. For

example, in an industry where manual handling

is rarely performed or is restricted to a

small group of employees, the overall

incidence rate for the industry is likely to

be low. But even if the overall industry

incidence rate is low, those employees who do

perform manual handling and are exposed to

MSD hazards are at significant risk of

material health impairment. Conversely, an

industry-based approach would result in low-

hazard jobs in a covered industry being

included, while employees performing

identical jobs in other industries would be

excluded. Defining coverage by industry,

therefore, would make the standard both

underinclusive and overinclusive.

In addition, using industry incidence

rates is not necessarily an accurate measure

of the prevalence of MSD hazards. For

example, even where large numbers of MSDs are

reported in an industry, the rate may still

be low because the industry employs so many

workers, some of whom are not exposed to the

same degree to MSD hazards. In part, this is

due to the fact that available industry

classifications were established for purposes

other than occupational safety and health

analysis. Therefore, the courts recognized

that such classifications ``appear

essentially irrelevant'' to the task of

regulating hazards. LOTO II, 37 F.3rd at 670.

In the remainder of this discussion, OSHA

will describe the specific provisions of the

proposed standard that deal with Scope.

c. Manufacturing jobs. Section 1910.901

Does this standard apply to me?

This standard applies to employers in

general industry whose employees work in

manufacturing jobs or manual handling jobs,

or report musculoskeletal disorders

(``MSDs'') that meet the criteria of this

standard. This standard applies to the

following jobs:

(a) Manufacturing jobs. Manufacturing jobs

are production jobs in which employees

perform the physical work activities of

producing a product and in which these

activities make up a significant amount of

their worktime;

There are many kinds of jobs in

manufacturing firms (e.g., production,

professional and technical, maintenance,

repair, sales, etc.), some of which do not

have exposure to MSD hazards. The proposed

rule focuses on manufacturing jobs involving

the physical work activities of production

because these jobs present an increased risk

of MSD hazards.

Production jobs. The manufacturing jobs

the proposed rule covers are production jobs

in manufacturing, those that directly involve

production work tasks; they are the hands on

jobs of processing, assembling, or

fabricating finished or semi-finished

products (durable and non-durable).

Production work involves the range of tasks

from handling raw materials or components

through packaging the final product to leave

the production facility. Manufacturing

production jobs are frequently referred to as

assembly line, production line, paced work,

piecework, or factory jobs.

Evidence in the record indicates that MSDs

reported in manufacturing are heavily

concentrated in production jobs. All of the

manufacturing occupations, as defined by the

BLS, with high LWD MSD rates are production

jobs. In 1996, for instance, the

manufacturing jobs with the highest LWD MSD

rates were the following production

occupations:

Machine feeders 34.6 per 1,000 FTE

and offbearers

Punching and 30.4 per 1,000 FTE

stamping machine operators

Sawing machine 18.9 per 1,000 FTE

operators

Furnace, kiln, 18.0 per 1,000 FTE

oven operators (except

food)

Grinding, 17.9 per 1,000 FTE

abrading, polishing

machine operators

Assemblers 16.2 per 1,000 FTE

[[Page 65780]]

The rate for each of these manufacturing

production occupations substantially exceeded

and in some cases was 5 times as high as the

rate for all manufacturing injuries and

illnesses combined (10.3 per 1,000 FTE).

These rates were also more than 4 times

higher than the LWD rate for all injuries and

illnesses combined (2.5 per 1,000 FTE).

MSDs reported in manufacturing are heavily

concentrated in production jobs because these

are the jobs that are likely to involve

significant exposure to the combinations of

ergonomic risk factors that are associated

with significantly elevated risks of harm.

Studies show that production work tasks,

which frequently involve highly repetitive

tasks and are often combined with high force

and awkward postures, are the jobs in

manufacturing that are most closely

associated with significantly-elevated risks

of harm (See e.g., NIOSH, 1997, Ex. 26-1;

Bernard et al. 1993, Ex. 26-439; Higgs et al.

1992, Ex. 26-1232; Silverstein et al. 1987,

Ex. 26-34; Armstrong et al. 1987, Ex. 26-48).

Duration. The manufacturing production

jobs that the proposed standard covers are

those in which employees perform production

tasks for a ``significant amount'' of their

worktime. In general, significant amount

means that performing production tasks is a

key or characteristic element of the

employee's job. It will probably be obvious

that employees are performing production

tasks for a significant amount of their

worktime. The purpose of the significant

amount of the worktime aspect of the

definition of manufacturing jobs is to

reinforce that the definition is intended to

include jobs in which production work is

characteristic of the job, while excluding

jobs in which an employer might, on rare

occasions, perform production tasks. This is

illustrated by the examples of jobs that are

and are not typically included in the

definition (see discussion of Sec. 1910.945).

Evidence in the record, including that

discussed in the Health Effects section

(Section V), indicates that MSD hazards may

be present where production work is performed

for a significant amount of time. Job tasks

that require the use of the same muscles or

motions for long periods of time increase the

likelihood of both localized and general

fatigue. In general, the longer the period of

continuous exertion, the longer the recovery

or rest time required (NIOSH , 1997, Ex. 26-

1). Studies show that one of the biggest

contributors to the occurrence of MSDs in

manufacturing production jobs is lack of

adequate recovery time (Exs. 26-1, 26-1275).

Inadequate recovery time may be the result of

the length of time work tasks are performed

(deKrom et al. 1990, Ex. 26-102), or the

frequency with which job cycles are

performed.

For example, the risk of developing carpal

tunnel syndrome (CTS) increases steadily with

increases in daily exposure to flexed or

extended wrist postures (deKrom et al. 1990.

Ex. 26-102). The odds ratio for wrist

disorders for a group of employees exposed to

flexed wrist postures between 8-19 hours a

week (i.e., an average of 1 to Assembly line jobs producing: Administrative jobs

Products (durable and non-durable) Clerical jobs

Subassemblies Supervisory/managerial jobs that do

Components and parts not involve production work

Paced assembly jobs (assembling and disassembling) Warehouse jobs in manufacturing

Piecework assembly jobs (assembling and disassembling) facilities

and other time critical assembly jobs Technical and professional jobs

Product inspection jobs (e.g., testers, weighers) Analysts and programmers

Meat, poultry, and fish cutting and packing Sales and marketing

Machine operation Procurement/purchasing jobs

Machine loading/unloading Customer service jobs

Apparel manufacturing jobs Mail room jobs

Food preparation assembly line jobs Security guards

Commercial baking jobs Cafeteria jobs

Cabinetmaking Grounds keeping jobs (e.g.,

Tire building gardeners)

Jobs in power plant in manufacturing

facility

Janitorial

Maintenance

Logging jobs

Production of food products (e.g.,

bakery, candy and other confectionary

products) primarily for direct sale on the

premises to household customers

----------------------------------------------------------------------------------------------------------------

d. Manual handling jobs.

(b) Manual handling jobs. Manual handling

jobs are jobs in which employees perform

forceful lifting/lowering, pushing/pulling,

or carrying. Manual handling jobs include

only those jobs in which forceful manual

handling is a core element of the employee's

job;

Note: Although each manufacturing and

manual handling job must be considered on the

basis of its actual physical work activities

and conditions, the definitions section of

this standard (Sec. 1910.945) includes a list

of jobs that are typically included in and

excluded from these definitions.

The second group of jobs OSHA is proposing

to cover are manual handling jobs. Manual

handling is the forceful movement (i.e.,

lifting, lowering, pushing, pulling,

carrying) of materials, equipment, objects,

people or animals. The movement may be done

by hand, as in lifting an object or pushing

hand carts or pallets. The movement can also

be done with the help of automated equipment

or aids, such as forklift trucks, storage and

retrieval systems, conveyors, and mechanical

lift devices; such assisted handling would be

considered manual handling as long as the

movement still required forceful exertions by

the employee.

The vast majority of MSDs reported in

manual handling jobs are back disorders

(i.e., overexertions). For example, the jobs

with the highest rate of time-loss injuries

due to overexertion are those in nursing and

personal care facilities, where employees are

required to do frequent patient handling and

lifting. Manual handling tasks are also

associated with back pain in 25-70% of all

worker's compensation claims (Snook and

Ciriello, 1991, Ex. 26-1008; Cust et al.,

1972, Ex. 26-1194). There is also strong and

consistent evidence that MSDs of the lower

back are associated with work-related lifting

and forceful exertions (see Section V below).

Most employees handle and move objects

occasionally at the workplace. A number of

stakeholders have expressed concern that the

ergonomics standard would apply to any

lifting, lowering, pushing, pulling or

carrying tasks (collectively referred to as

lifting) that employees do. That is not

OSHA's intention, and the proposed definition

of manual handling jobs clarifies that. Table

IV-2 contains the examples of jobs from the

definition that typically would be included

in and excluded from the proposed rule:

Forceful lifting. Manual handling jobs are

defined to include only those jobs that

require forceful manual handling tasks. Force

is the mechanical effort required to carry

out a specific movement (NIOSH Elements of

Ergonomics Programs, 1997, Ex. 26-2).

Forceful exertions place higher loads on the

muscles, tendons, ligaments, and joints

(NIOSH 1997, Ex. 26-1; see also section V,

Health Effects, of this preamble. Increasing

the force required to lift a load also means

increasing body demands (i.e., greater muscle

exertion is necessary to sustain the

increased effort), and imposing greater

compressive forces on the spine (Marras et

al. 1995). As force increases, muscles

fatigue more quickly. Prolonged or recurrent

exertions of this type can also lead to MSDs

where there is not adequate time for rest or

recovery (NIOSH 1997, Ex. 26-1).

Studies indicate employees who perform

forceful manual handling tasks face a

significant risk of developing an MSD (See

Health Effects, Chapter V). The majority of

epidemiologic studies (13 of 18 studies) in

the 1997 NIOSH review show that odds ratios

are higher--in the range of 5.2 to 11--for

employees who have high exposure to force and

lifting. (These results are consistent with

biomechanical and other laboratory evidence

regarding the effects of lifting and dynamic

motion on back tissues.) NIOSH also found

that the high odds ratios for employees with

high exposure were ``unlikely to be caused by

confounding or other effects of lifestyle

covariates'' (NIOSH 1997, Ex. 26-1).

[[Page 65782]]

Table IV-2

----------------------------------------------------------------------------------------------------------------

EXAMPLES OF JOBS/TASKS THAT TYPICALLY ARE NOT

EXAMPLES OF JOBS THAT TYPICALLY ARE MANUAL HANDLING JOBS MANUAL HANDLING JOBS

----------------------------------------------------------------------------------------------------------------

Patient handling jobs (e.g., nurses aides, orderlies, Administrative jobs

nurse assistants) Clerical jobs

Package sorting, handling and delivering Supervisory/managerial jobs that do

Hand packing and packaging not involve manual handling tasks or work

Baggage handling (e.g., porters, airline baggage Technical and professional jobs

handlers, airline check-in) Jobs involving unexpected manual

Warehouse manual picking and placing handling

Beverage delivering and handling Lifting object or person in

Stock handling and bagging emergency situation (e.g., lifting or

Grocery store bagging carrying injured co-worker)

Grocery store stocking Jobs involving manual handling that

Garbage collecting is so infrequent it does not occur on any

predictable basis (e.g., filling in on a job

due to unexpected circumstances, replacing

empty water bottle, lifting of box of copier

paper)

Jobs involving manual handling that

is done only on an infrequent ``as needed''

basis (e.g., assisting with delivery of

large or heavy package, filling in once for

an absent employee)

Jobs involving minor manual handling

that is incidental to the job (e.g.,

carrying briefcase to meeting, carrying

baggage on work travel)

----------------------------------------------------------------------------------------------------------------

Core element. Manual handling jobs are

jobs in which manual handling tasks are a

core element of the employee's job. A core

element of a job refers to the tasks or

physical work activities that are a key

function of a job. Manual handling tasks may

be a core element because they are a basic or

essential function of a job. They may be a

core element because they are frequently

repeated or performed for a period of time.

The following are examples of jobs in which

manual handling would typically be considered

a core element:

Jobs where the basic purpose is

to lift loads. These types of jobs include

furniture moving, package and product

delivery, and airline baggage handling;

Jobs where lifting or pushing/

pulling is an essential function of the job.

Patient lifting, for example, is an essential

element of nurse aide or health aide jobs and

pushing is an essential element for

orderlies;

Jobs where manual handling is a

regular element of the job cycle. These types

of jobs typically include bringing supplies

to a production workstation, loading machines

for processing, and moving partially

assembled products to the next workstation or

onto or off a conveyor;

Jobs where forceful exertions

comprise a significant amount of the

employee's work time. These jobs typically

include warehousing, stocking and garbage

collection;

Jobs where employees end up doing

manual handling on a routine or regular basis

even if manual handing is not included in

their job description. These jobs typically

include unloading supplies or products that

are delivered on a regular basis.

Including the concept of core element in

the definition of covered manual handling

jobs serves several purposes. First, it helps

to ensure that employer attention is focused

on those manual handling jobs for which data

indicate that MSD hazards are most likely to

be present: manual handling jobs with high

MSD rates and numbers of cases. Studies

indicate that manual handling jobs in which

employees do forceful exertions repeatedly or

for an appreciable period of time are

associated with elevated risks of harm. For

example, studies show a positive association

between duration of exposure to workplace

risk factors during manual handling and back

pain (Wild 1995, Exs. 26-1104, 26-1105, 26-

1106; Liles et al. 1984, Ex. 26-33). Studies

also show that odds ratios for back MSDs

increase significantly as daily duration of

exposure to forceful manual handling

increases (Holmstrom et al. 1992, Ex. 26-36;

Punnett et al. 1991, Ex. 26-39; Liles et al.

1984, Ex. 26-33). Other studies indicate that

the rate and duration of continuous lifting

significantly reduces the worker's lifting

capacity, making the worker more susceptible

to MSDs associated with lifting (Snook and

Ciriello, 1991, Ex. 26-1008).

Second, OSHA used core element rather than

a duration component because, while duration

and frequency play a role in determining

whether the manual handling job imposes a

risk of harm, studies show that employees can

be at risk of developing an MSD at relatively

short durations of lifting if the tasks

involve extreme force (Hagberg 1981, Ex. 26-

955) (see Section V of the preamble).

Finally, core element is a reasonable,

shorthand way to inform employers that OSHA

does not intend to cover manual handling that

is so isolated or so incidental to the job

that it is not reasonably likely to lead to

an MSD. These types of jobs are not

associated with high numbers or rates of

MSDs.

OSHA requests information and comments

about whether the Ergonomics Program Standard

should include manual handling jobs. If so,

how should manual handling jobs be defined?

Should the definition use a flexible approach

or be based on quantitative methods such as

the NIOSH Lifting Equation?

c. Jobs with MSDs.

(c) Jobs with a musculoskeletal disorder.

Jobs with an MSD are those jobs in which an

employee reports an MSD that meets all of

these criteria:

(1) The MSD is reported after [the

effective date];

(2) The MSD is an OSHA recordable MSD, or

one that would be recordable if you were

required to keep OSHA injury and illness

records; and

(3) The MSD also meets the screening

criteria in Sec. 1910.902.

[[Page 65783]]

Note to Sec. 1910.901(c): In this standard,

the term covered MSD refers to a

musculoskeletal disorder that meets the

requirements of this section.

The final group of jobs this standard

proposes to cover are those in which an

employee reports a musculoskeletal disorder

(MSD).

What is an MSD? Musculoskeletal disorders

are injuries or disorders of the:

Muscles

Tendons

Joints

Spinal discs

Nerves

Ligaments

Cartilage

MSDs develop as a result of repeated

exposure to ergonomic risk factors. The

proposed rule covers the following ergonomics

risk factors:

Force (including dynamic motions)

Repetition

Awkward or static postures

Contact stress

Vibration

Cold temperatures

MSDs covered by the proposed standard do not

include injuries to muscles, nerves, tendons,

ligaments, or other musculoskeletal tissues

that are caused by accidents such as slips,

trips, falls, being struck by objects, or

other similar accidents.

Table IV-3 contains examples of MSDs that

may develop as a result of exposure to the

ergonomic risk factors the proposed rule

covers:

Table IV-3

------------------------------------------------------------------------

EXAMPLES OF MUSCULOSKELETAL DISORDERS THE ERGONOMICS PROGRAM STANDARD

WOULD COVER IF CONDITIONS OF THE STANDARD ARE MET

-------------------------------------------------------------------------

Carpal tunnel syndrome

Epicondylitis

Herniated spinal discs

Tarsal tunnel syndrome

Raynaud's phenomenon

Sciatica

Ganglion cyst

Tendinitis

Rotator cuff tendinitis

DeQuervain's disease

Carpet layers knee

Trigger finger

Low back pain

------------------------------------------------------------------------

The presence of MSD signs and/or symptoms

is usually the first indication that an

employee may be developing an MSD. The

proposed rule defines both terms.

MSD signs are objective physical findings

that an employee may be developing an MSD.

MSD symptoms, on the other hand, are

physical indications that an employee may be

developing an MSD. Symptoms can vary in

severity, depending on the amount of exposure

to MSD hazards. Often symptoms appear

gradually, for example, as muscle fatigue or

pain at work that disappears during rest.

Usually symptoms become more severe as

exposure continues. For example, tingling in

the fingers that formerly occurred only when

the employee was doing a repetitive task

subsequently continues even when the employee

is off work or at rest. If the employee

continues to be exposed, symptoms may

increase to the point that they interfere

with performing the job. For example, as

exposure continues the employee's grip

strength (e.g., ability to hold or grip an

object or exert pressure with the hand) may

decrease to the point where the employee has

difficulty holding tools or gripping objects.

Finally, pain may become so severe that the

employee is unable to perform physical work

activities). Table IV-4 includes examples of

MSD signs and symptoms that OSHA is proposing

to cover in this standard:

Table IV-4

------------------------------------------------------------------------

EXAMPLES OF MSD SIGNS AND SYMPTOMS

-------------------------------------------------------------------------

MSD SIGNS MSD SYMPTOMS

------------------------------------------------------------------------

Deformity Numbness

Decreased grip strength Tingling

Decreased range of motion Pain

Loss of function Burning

Stiffness

Cramping

------------------------------------------------------------------------

What MSDs does this standard cover? The

proposed rule does not cover all MSDs, and

thus a report of an MSD would not

automatically require the employer to set up

an ergonomics program or to provide MSD

management. The proposed rule only covers

those MSDs that meet all of the following

requirements:

They are ``OSHA recordable''

MSDs, and

They are reported after the

effective date of the standard, and

They meet the screening criteria

in Sec. 1910.902 (i.e., physical work

activities and/or conditions are reasonably

likely to cause the type of MSD reported and

are a core element of the job and/or make up

a significant amount of the employee's

worktime).

OSHA recordable MSDs are those that meet

the recording criteria of the OSHA

recordkeeping rule, 29 CFR Part 1904. These

MSDs must be recorded on the OSHA injury and

illness logs, or are MSDs that would have to

be recorded if the employer were obligated to

keep such logs.

The OSHA recordkeeping rule does not

require that every MSD be recorded.

The OSHA Meatpacking Guidelines explain

what MSDs employers must record under the

recordkeeping rule. A recordable MSD is a

work-related MSD that results in one or more

of the following:

A diagnosis of an MSD by a HCP; or

At least one positive physical

finding, or

An MSD symptom plus:

Medical treatment,

Restricted duty,

One or more lost work days, or

Transfer/rotation to another

job.

Positive physical finding. A positive

physical finding is a report of any of the

MSD signs listed above that is observable

[[Page 65784]]

by the employer and/or HCP. It is also a

positive result on a medical test (i.e.,

Finkelstein's, Phalen's or Tinel's test)

conducted by an HCP. Because a positive

physical finding is able to be observed by

others, unlike a symptom, OSHA considers

positive physical findings to be a recordable

MSD, even if the employee has not missed

work, been placed on work restrictions, or

received medical treatment for the problem.

MSD symptom plus other action. Under

OSHA's recordkeeping rule, MSD symptoms are

recordable if they have resulted in medical

treatment beyond first aid, restricted duty,

one or more days away from work or transfer/

rotation to another job. For example, where

an employer responds to an employee report of

symptoms (e.g., numbness in the fingers or

pain in the wrist) by putting the employee in

a light duty job or by directing the employee

to stay at home to rest the injured area, the

event must be recorded.

When an employee requires medical

treatment to obtain relief from and resolve

MSD signs or symptoms, the condition is a

recordable MSD. Conservative medical

treatment of MSDs, for example, may include

prescription anti-inflammatories, splints or

braces to immobilize movement of the injured

area while at rest or sleeping, and/or

physical therapy.

There are several reasons why OSHA is

proposing to use an OSHA recordable MSD as an

initial trigger, rather than other incident

triggers (e.g., MSD rates, any report of MSD

signs or symptoms, accepted workers'

compensation claims) to determine coverage.

First, using an OSHA recordable should not be

difficult or burdensome for most employers

because they are familiar with this

definition from their OSHA injury and illness

logs. This is why many stakeholders said they

supported using an OSHA recordable MSD in the

ergonomics rule. Using the same definition

for both rules (the recordkeeping and

ergonomics rules) would reduce employer

burdens in complying with the ergonomics rule

because employers would not have to develop

or learn a new recordkeeping system. In

addition, it would reduce paperwork burdens

because the OSHA logs would satisfy both the

ergonomics rule and also the OSHA

recordkeeping requirement.

Second, a number of stakeholders support

using an OSHA recordable MSD because they

believe it is a reasonable, objective

definition. For example, a number of

stakeholders oppose using any report of MSD

symptoms because they are concerned that such

reports may be subjective, and, unless the

symptoms are persistent, may not really mean

that an injury is present. These stakeholders

also said that an OSHA recordable is more

objective than other measures, such as the

results of discomfort surveys.

Third, limiting coverage to jobs with a

high incidence rate would have limited value.

The typical job has between 1 to 10

employees, i.e., between 1 and 10 employees

in a given establishment perform the same

job. Even if one of these employees has an

MSD, the annual rate would be an unacceptably

high incidence rate of 10%. For all except

rare situations in which there are more than

100 employees with the same job, defining the

trigger in terms of a rate is not

fundamentally different from a one-incident

trigger (see the discussion in Chapter VII of

the Preliminary Economic Analysis, Ex. 28-1).

Defining coverage in terms of a job with a

workers' compensation award would result in

unequal treatment of employees and employers

covered by the ergonomics standard. State

workers' compensation laws vary significantly

and the same MSD may not be compensable in

all States. For example, some States

compensate an injured employee only if MSD

hazards are the predominant cause of the MSD

or if there is clear and convincing evidence

that the MSD hazard caused the MSD. In

Virginia, a number of MSDs are not

compensable (e.g., rotator cuff syndrome).

Moreover, defining an MSD in terms of

workers' compensation claims puts employers

who willingly acknowledge the work-

relatedness of an MSD at a disadvantage

compared to those employers who discourage

claims and challenge compensation awards.

Finally, using an OSHA recordable MSD as

the initial trigger would make the ergonomics

rule more protective than using a number of

the other MSD measures. Using an OSHA

recordable MSD would require employers to

respond to every MSD that is sufficiently

important to warrant recording. In contrast,

using multiple MSDs or incidence rates would

mean that the ergonomics rule would not

require some employers to provide protection

or MSD management for the first employee who

reports an MSD, even if the MSD is clearly

work related or has resulted in severe

permanent damage. (See OSHA's Initial

Regulatory Flexibility Analysis in Chapter

VII of the Preliminary Economic Analysis, Ex.

28-1, for an analysis of the potential

impacts of alternative triggers.)

OSHA requests information and comment on

its proposal to base coverage on the

occurrence of an OSHA recordable MSD and an

employer determination that the recordable

also meets the screening criteria, as well as

on alternative definitions of the term MSD

that would be as protective as the proposed

definition.

Reported after effective date. OSHA is

also proposing to limit the MSDs that the

standard would cover to those that are

reported after the standard becomes

effective, which is 60 days after the final

Ergonomics Program Standard is published in

the Federal Register. Coverage of the

standard would not be triggered for MSDs that

occurred before that date.

f. Screening criteria. The last

requirement is that MSDs meet the criteria in

Sec. 1910.902. If the criteria are not met,

the employer has no further obligation under

the proposed rule.

Section 1910.902 Does this standard allow

me to rule out some MSDs?

Yes. The standard only covers those OSHA

recordable MSDs that also meet these

screening criteria:

(a) The physical work activities and

conditions in the job are reasonably likely

to cause or contribute to the type of MSD

reported; and

(b) These activities and conditions are a

core element of the job and/or make up a

significant amount of the employee's

worktime.

The screening criteria limit coverage of

the proposed standard to jobs where exposure

to MSD hazards is reasonably likely to cause

or contribute to the type of MSD reported,

and the job activities are a core element of

the job and/or make up a significant amount

of the employee's worktime. Because MSD

hazards are physical work activities or

conditions that are reasonably likely to

cause MSDs, normally the occurrence of a

recordable MSD is a good indicator that an

MSD hazard is present. However, there are

occasions in which MSDs result from

idiosyncratic or unusual work circumstances.

While work-related, such an MSD may not

evince underlying hazards of the type an

ergonomics program is designed to address.

For example, if an employee who routinely

does heavy lifting incurs work-

[[Page 65785]]

related low back pain, that is precisely the

type of MSD the work activities of the job

are reasonably likely to have contributed to

and would be the type of MSD hazard the

ergonomics program is designed to control. If

the same employee reports carpal tunnel

syndrome, however, the situation is

different. Of course, the condition may not

be work-related. Even if it is, however, it

is likely to be related to physical work

circumstances or reactions that would not

normally be taken into account in designing

ergonomic controls. Because the occurrence of

a recordable MSD is not a good proxy for an

underlying hazard in this circumstance, the

MSD would not be a covered MSD for purposes

of this standard. For the reasons described

in the explanation of manufacturing and

manual handling jobs above, covered MSDs are

limited to those that have a good nexus with

the physical work activities and conditions

of the job; that is, the physical work

activities and conditions that are reasonably

likely to result in the occurrence of an MSD

are (1) a core element of the job, and/or (2)

make up a significant amount of the

employee's worktime.

2. Other Sections on Scope

Section 1910.903 Does this standard apply

to the entire workplace or to other

workplaces in the company?

No. This standard is job-based. It only

applies to jobs specified in Sec. 1910.901

not to your entire workplace or to other

workplaces in your company.

Section 1910.903 specifies that the

ergonomics rule would apply only to those

jobs OSHA explicitly identified as covered

jobs and ensures that the presence of a

covered job does not bring the rest of the

workplace under the ergonomics standard. This

means that employers would not have to

develop an ergonomics program that covers all

jobs and employees in the workplace merely

because one job in the workplace is covered

by the ergonomics standard. Other jobs in the

workplace would only be included under the

standard if they meet the definition of a

covered job or if they involve the same

physical work activities and conditions as

the job in which the employee experienced the

covered MSD.

Some stakeholders recommended that if an

ergonomics program is required in a

workplace, it should cover the entire

workplace. They said that a whole-workplace

approach would be easier because it would

eliminate the need to determine whether

certain jobs are covered by the ergonomics

rule or involve the same physical work

activities and MSD hazards as the covered job

(Ex. 26-1370). Some said that a facility-wide

program achieves greater employee buy in and

support for the ergonomics program. It would

also create employee goodwill because all

employees would be part of the program and

would be provided protection, as opposed to a

situation in which employees working side-by-

side would not necessarily both be covered by

the ergonomics program. Finally, stakeholders

said they found that developing a facility-

wide program was as a more efficient use of

resources, because it eliminated duplication

of efforts such as training. For these

reasons, they said, many employers have taken

this approach in their own workplaces.

OSHA agrees with stakeholders that there

are advantages to facility-wide ergonomic

programs and OSHA encourages employers to

consider a facility-wide approach. However,

OSHA is not proposing to require a workplace-

wide approach because the risk factors are

not present in every job to the extent that

an MSD is reasonably likely to occur. The

job-based coverage of the proposed rule

ensures that employers focus first on the

jobs where intervention is needed the most;

that is, jobs in which the employees'

exposure to the risk factors is significant

enough that MSDs are occurring or reasonably

likely to occur if exposure continues

unabated. In any event, if other jobs in the

workplace are or become problem jobs, those

employees would also be included in the

program required by the standard and would

thus be provided protection from MSD hazards.

Job-based coverage assures that employers are

not required to expend resources on jobs in

which there is little likelihood that MSD

hazards are present.

The remaining half of section 1910.903

informs employers that their program for

addressing problem jobs does not have to be

applied corporate-wide. That is, the

existence of a problem job in one workplace

does not mean that employers have to set up

an ergonomics program in every facility owned

by the company in which that job is

performed. OSHA is proposing to limit

employer obligations to the facility in which

the problem job is identified. At the same

time, OSHA recognizes that a number of

employers have developed corporate-wide

ergonomics programs. OSHA notes that while

the general program and protocols of such

corporate programs are applied to all

workplaces, job hazard analyses and

determinations about whether and what actions

are needed in specific jobs are usually made

at the workplace level.

OSHA notes that, although the ergonomics

rule would not apply corporate-wide, the

employer will need to take action in other

company-owned facilities if they have any of

the problem jobs this standard covers (e.g.,

if a covered MSD occurs there).

Section 1910.904 Are there areas this

standard does not cover?

Yes. This standard does not apply to

agriculture, construction or maritime

operations.

OSHA is proposing to exclude firms engaged

in agriculture, construction and maritime

operations from the scope of the first phase

of this ergonomics rulemaking. OSHA

acknowledges that LWD MSD rates are also high

in firms engaged in agriculture, construction

and maritime operations. However, the unique

problems (e.g., jobs of very short duration,

no fixed workstations) and the more limited

information available on effective ergonomic

controls in these workplaces have convinced

OSHA that it must, for resource and priority-

setting reasons, limit this first phase to

general industry. OSHA has preliminarily

decided to address the MSD hazards in firms

engaged in these operations in a separate

rulemaking. (OSHA's reasoning is discussed in

detail in Part C below.)

OSHA intends to develop a separate

ergonomics rule that can be tailored to the

conditions that are unique to firms in these

industries. In addition, OSHA believes that

the experience it gains from the first phase

will provide valuable assistance in

developing an effective ergonomics rule for

agriculture, construction and maritime.

OSHA requests comments and information

about whether firms engaged in agriculture,

construction and maritime operations should

be included in this ergonomics standard at

this time. In particular, OSHA requests

comments and information about whether, for

example, manual handling operations in

agriculture, construction and maritime should

be included in this first phase of the

ergonomics rulemaking.

[[Page 65786]]

C. Authority and Reasons for Limiting

Coverage of the Proposed Ergonomics Standard.

This section discusses OSHA's authority

under the OSH Act to promulgate the

ergonomics standard sequentially, and its

reasons for limiting the proposed ergonomics

standard at this time to the three types of

jobs discussed above. This discussion focuses

on the following questions:

What authority and reasons

support promulgating the Ergonomics Program

Standard sequentially, and limiting the first

phase to manufacturing jobs, manual handling

jobs, and other jobs where an OSHA recordable

MSD is reported?

What authority and reasons

support exclusion of the agriculture,

construction and maritime industries from the

proposed ergonomics standard?

1. Section 6(g)--OSHA Authority to Limit the

Scope of Rulemakings

The OSH Act authorizes OSHA to use a

phased approach to rulemaking, including

focusing first on areas where the problem is

severe and solutions are well-known. Section

6(g) of the OSH Act, 29 U.S.C. 655, permits

OSHA to set priorities in establishing

standards, including limiting the scope of

particular standards and promulgating

standards in phases. Section 6(g) provides:

In determining the priority for

establishing standards under this section,

the Secretary shall give due regard to the

urgency of the need for mandatory safety and

health standards for particular industries,

trades, crafts, occupations, businesses,

workplaces or work environments. The

Secretary shall also give due regard to the

recommendations of the Secretary of Health,

Education, and Welfare regarding the need for

mandatory standards in determining the

priority for establishing such standards.

In proposing the addition of section 6(g)

to the OSH Act, Senator Jacob Javits

explained that its purpose was ``to relieve

the Secretary of the necessity of waiting to

promulgate whatever standards he wishes

across the board [by] allowing him to yield

to more urgent demands before he tries to

meet others. * * *'' Legislative History,

505.

The courts have broadly interpreted

section 6(g) as ``clearly permit[ting] the

Secretary to set priorities for the use of

the agency's resources.'' United Steelworkers

of America v. Auchter (Hazard Communication),

763 F.2d 728, 738 (3rd Cir. 1985); Forging

Industry Association v. OSHA (Noise), 773

F.2d 1436, 1455 (4th Cir. 1985); United

States Steelworkers v. Marshall (Lead), 647

F.2d 1189, 1309-1310 (D.C. Cir. 1980), cert.

denied, 453 U.S. 913 (1981); National

Congress of Hispanic American Citizens v.

Usery (Hispanic II), 626 F.2d 882 (D.C. Cir.

1979); National Congress of Hispanic American

Citizens v. Usery (Hispanic I), 554 F.2d

1196, 1199 (D.C. Cir. 1977). Section 6(g)

authorizes OSHA to ``alter priorities and

defer action due to legitimate statutory

considerations,'' Hispanic II, 626 F.2d at

888 n. 30. In the PELs rulemaking, for

example, the court upheld OSHA's decision to

exclude exposure monitoring and medical

surveillance provisions from the rule as

being ``purely a matter of regulatory

priority.'' AFL-CIO v. OSHA (PELs), 965 F.2d

962, 985 (11th Cir. 1992).

Section 6(g) also permits OSHA ``to

promulgate standards sequentially.'' Hazard

Communication, 763 F.2d at 738. See, PELs,

965 F.2d at 985 . For example, the courts

have upheld OSHA's decisions to issue

standards for general industry first and

thereafter to develop separate rules for

those other industries that may have unique

problems requiring special consideration

(e.g., mobile jobs of very short duration in

the construction industry). Lead, 647 F.2d at

1309-10. (See Confined Spaces standard, 29

CFR 1910.146.) Section 6(g) also authorizes

OSHA to ``act in its legislative capacity `to

focus on only one aspect of a larger

problem.' '' Lead, 647 F.2d at 1310 (citing

Chief Justice Burger concurring in Benzene,

448 U.S. at 663 (1980)) (emphasis added). In

the PELs rulemaking, OSHA limited the

standard solely to revising exposure limits

and excluded ancillary provisions designed to

provide further protection even though most

other health standards included such

provisions. See, PELs, 965 F.2d at 985.

Although OSHA's discretionary authority

under section 6(g) is quite broad, it is not

absolute:

The scope of an agency's discretion is

bounded by law; an agency cannot justify a

decision by reference to its discretionary

authority, if the decision lies beyond the

scope of agency's discretion. (citations

omitted) A statute may define as off-limits

to an agency a particular basis for a

decision, just as it may foreclose a

particular result altogether. Farmworkers

Justice Fund, Inc. v. Brock (Field

Sanitation), 811 F.2d 613, 620 (D.C. Cir.),

vacated as moot, 811 F.2d 890 (1987).

The Supreme Court has made clear that an

agency's decision will be set aside if it

relied on factors which the Congress did not

intend it to consider. Motor Vehicle

Manufacturers Assn. v State Farm Mutual

Automobile Insurance Co., 463 U.S. 29, 43

(1983). In section 6(g), Congress established

factors OSHA must consider in setting its

priorities: OSHA must give ``due regard to

the urgency of the need'' for a standard in,

among others, particular industries,

occupations, workplaces, or work

environments.1 The court in Hazard

Communication said that this language

suggests a statutory standard by which to

measure the exercise of OSHA's discretion.

Hazard Communication, 763 F.2d at 738.

Authorizing rulemaking priority for the most

severe hazards also comports with the

criteria of section 6(c), which authorizes

OSHA to pursue expedited rulemaking (i.e.,

emergency temporary standard) but only where

employees are exposed to ``grave dangers.''

Hispanic II, 626 F.2d at 889 n.36.

---------------------------------------------------------------------------

\1\ See also, Hispanic I, 554 F.2d at 1199

(``The Act has built in flexibilities that

the Secretary may use, such as * * * the

priorities between the various occupations

that require standards. * * *'').

---------------------------------------------------------------------------

The Third Circuit has held that there is

another limit on OSHA's 6(g) authority

depending on where OSHA is in the rulemaking

process. Hazard Communication, 763 F.2d at

738. The court said that, in situations where

OSHA is setting priorities for future

rulemaking, the agency has great latitude

under section 6(g) to address greater hazards

first. Id. However, the court held that where

OSHA has decided to promulgate a standard to

address an issue it is not enough for the

agency to declare that it has selected

certain industries or jobs for coverage

because they present greater hazards. Id.

Where significant risk exists in other

industries and a standard is feasible there

as well, OSHA may exclude those industries

only if covering them would ``seriously

impede the rulemaking process.'' Id.

The standard in question, Hazard

Communication (29 CFR 1910.1200), only

required employers to provide employees with

information and training about hazardous

chemicals in the workplace, based on analyses

generally conducted by the chemical

manufacturer or importer. The standard did

not require employers to analyze jobs,

implement controls, or provide medical

management. The court apparently believed

that there was no substantial question about

the feasibility of the rule, and therefore no

question about whether the rule could be

expanded without impeding the rulemaking

process. It is not clear the court would have

reached the same result or announced the same

principle if the standard

[[Page 65787]]

in question had posed more complex scientific

and feasibility issues. In any event, OSHA's

decision to limit the proposed standard is

consistent with the Hazard Communication

decision because, as discussed below,

expansion of the rule at this time to include

construction, maritime and agriculture would

seriously impede the rulemaking process.

2. Focus on Jobs Where Problems Are Severe

and Solutions Are Well-Understood

OSHA has developed a general principle,

based on the underlying legislative intent

and the case law interpreting section 6(g),

that it proposes to follow in determining

what jobs should be covered in the first

phase of this rulemaking. As mentioned above,

that principle is: Focus on areas where

problems are severe and solutions are well-

understood. OSHA's decision, based on this

guiding principle, to cover manufacturing,

manual handling and general industry jobs

where there are MSDs is consistent with the

language and legislative intent of section

6(g).

3. Reasons for Excluding Agriculture,

Construction and Maritime Industries From the

Proposed Standard

Some stakeholders recommended that the

proposed rule be expanded to include all

industries. They said that the number and

rates of MSDs in the construction industry

are very high. They added that incidence

rates for some construction industries are

higher than for some manufacturing industries

that are to be covered in the first phase.

However, for the reasons set forth below,

OSHA is not proposing that the first phase of

the Ergonomics Program Standard cover these

other industries.

a. Unique problems. OSHA acknowledges that

employees in the agriculture, construction

and maritime industries face significant risk

of harm due to exposure to MSD hazards. In

1996, for example, almost 65,000 employees in

these industries reported MSDs that were

serious enough to result in days away from

work, according to OSHA's analysis of BLS

data (Ex. 1413). This means that 10% of all

reported lost-workday MSDs occurred in just

three industry sectors. Nonetheless,

consistent with its discretion under section

6(g), OSHA proposes to exclude these

industries from this proposal and to give

them special consideration in subsequent

rulemaking. Lead, 647 F.2d at 1310.

First, work conditions and factors present

in agricultural, construction and maritime

activities often are quite different from

those of general industry. To illustrate,

much of construction work involves or is

affected by an interaction among several

factors. These factors include the following

aspects or conditions of work:

Consisting primarily of jobs of

short duration;

Under a variety of adverse

environmental and workplace conditions (e.g.,

cold, heat, confined spaces, heights);

At non-fixed workstations or non-

fixed work sites;

On multi-employer work sites;

Involving the use of ``day

laborers'' and other short-term ``temporary

workers,'';

Involving situations in which

employees provide their own tools and

equipment; and

Involving employees who may be

trained by unions or other outside certifying

organizations.

While some of these factors may be present

at times in other industries, they are

continuously present in construction. OSHA

may need to develop an ergonomics standard

that takes this range of special conditions

into account. For example, OSHA may also need

to revise job hazard analysis and hazard

control provisions in the current proposal so

they are effective for industries where jobs

are of such short duration that they may be

completed before analysis and control can be

implemented. These and other unique work

conditions also are present in agricultural

and maritime activities. For example, in

longshoring, quite often workers are obtained

from union hiring halls where they have been

trained and certified in the use of certain

machinery.

In addition, as compared to the very large

body of evidence that exists for general

industry, OSHA's experience with and

information about ergonomic solutions in the

agriculture, construction and maritime

industries are relatively limited. OSHA

believes that the information it does have

will support the promulgation of an

ergonomics standard in these industries in

the second phase of this rulemaking. However,

the Agency needs more time to gather and

analyze this evidence to develop an effective

ergonomics standard for agriculture,

construction and maritime. For example, OSHA

must gather and examine information on the

types of ergonomic controls that would work

in an industry with a high number of non-

fixed workstations.

Because of the unique problems in these

industries, it could take considerably more

time to gather the needed information. And

after waiting until an equivalent body of

evidence is gathered and analyzed for these

industries, the evidence might still show

that separate ergonomics rules are warranted

for construction, agriculture and maritime in

any event.

b. Substantially impede the rulemaking.

Implicit in setting rulemaking priorities

based on the urgency of the need for action

is whether a standard can be issued in a time

frame that is responsive to the urgent need.

Another reason OSHA is proposing to limit the

ergonomics rule to general industry is that

OSHA believes that expanding the rule to

cover agriculture, construction and maritime

would seriously delay addressing the urgent

need for protection in the covered jobs. This

is because information and experience on

ergonomics in these industries is more

limited than is the case in general industry.

Expanding the scope could place substantial

additional burdens on an already complex

rulemaking. For example, if OSHA must first

gather and analyze evidence for every

industry before it may propose an ergonomics

standard, 90% of the employees who already

have been injured and for whom a standard can

be promulgated now may be forced to wait for

their urgently needed protection until OSHA

is also able to provide it to the remaining

employees exposed to MSD hazards. Also,

expanding the scope of this proposed standard

could strain OSHA's limited resources to the

detriment not only of the ergonomics

rulemaking but to other OSHA priorities as

well, including other priorities for the

construction, maritime and agricultural

industries.

On the other hand, focusing on areas where

a large body of evidence of effective

ergonomics programs and control interventions

exists should help OSHA to respond quickly to

urgent situations where worker protection is

needed now. Limiting the scope of the

proposed rule at this time is thus fully

consistent with OSHA's obligations under

section 6(g).

By contrast, in agriculture, construction

and maritime, the information on ergonomics

programs and interventions is more limited.

Only now is NIOSH conducting a study on

ergonomic problems and interventions in the

shipyard

[[Page 65788]]

industry, and the results of that study are

not expected for more than a year.

How Does This Standard Apply to Me?

(Secs. 1910.905-1910.910)

OSHA's proposed ergonomics program

standard has several unique features. First,

it is a job-based standard. As the preamble

sections for 1910.901 through 1910.904 of the

proposed standard make clear, the standard

applies to general industry employers whose

employees: (1) Work in manual handling jobs;

(2) work in manufacturing jobs; and (3) work

in other general industry jobs and experience

a musculoskeletal disorder (MSD) that is

covered by this standard. Second, employers

within the scope of the standard are required

only to implement the ergonomics program

required by the standard for those jobs

specifically listed above; they are not

required to have a program for all of the

jobs in their workplace. Third, the

requirements of the standard apply

differently to different general industry

employers, because the standard is also risk

based. That is, for employers whose employees

perform manual handling or manufacturing

jobs--jobs which together account for a

disproportionate share (60%) of all reported

work-related MSDs--employers are required to

implement only those elements of the proposed

standard that will prepare them to deal with

a covered MSD should one occur. Thus,

employers whose employees work in these high-

risk jobs must put several of the required

program elements in place even before their

employees experience a covered MSD, because

the likelihood that they will do so is great.

If an employee in a manual handling or

manufacturing job subsequently experiences a

covered MSD, the employer would then be

required to implement the remaining elements

of the ergonomics program required by the

standard, including job hazard analysis and

control, MSD management, training, and

program evaluation.

For general industry employers without

manual handling or manufacturing jobs in

their workplace, however, the proposed

standard would not require action until an

employee actually experiences such an MSD. In

other words, for general industry employers

with other types of jobs, the event that

``triggers'' coverage by the standard is the

occurrence of an MSD that the employer

determines to be covered. As explained above

in the summary and explanation for sections

1910.901 through 1910.904, such an MSD could

occur in any general industry job, e.g.,

grocery store cashier, newspaper reporter,

secretary, cafeteria worker, restaurant

server, computer programmer, mail sorter,

janitor, etc. Relying on the occurrence of a

covered MSD to trigger the standard's

coverage for non-manual handling, non-

manufacturing jobs is consistent with the

risk-based design of the standard: The

occurrence of an MSD that is determined by

the employer to be, first, an OSHA-recordable

MSD, second, an MSD that has occurred in a

job in which the physical work activities are

reasonably likely to cause or contribute to

the type of MSDs reported, and third, an MSD

that has occurred in a job where the physical

work activities and conditions are a core

element of the job and/or make up a

significant amount of the employee's

worktime. The scope provisions of the

standard (sections 1910.901 through 1910.904)

also indicate that employers whose employees

engage in construction, agricultural, or

maritime operations are not covered by the

scope of the rule.

Sections 1910.905 through 1910.910 of the

proposed standard, titled ``How does this

standard apply to me?,'' determine how

various elements of the proposal would apply

to these three different groups of general

industry employers, depending on the jobs

their employees perform and/or whether their

employees experience a musculoskeletal

disorder that is covered by the standard.

These sections of the proposal thus contain

the internal ``action levels'' or

``triggers'' that OSHA has built into the

standard to tailor its requirements to the

extent of the ergonomics problem present in a

given workplace.

Specifically, these sections of the

proposal contain the following requirements:

Section 1910.905 describes the

elements of a complete ergonomics program;

Section 1910.906 establishes the

requirements of the program that apply to all

general industry employers that have manual

handling or manufacturing production jobs in

their workplaces;

Section 1910.907 sets forth the

requirements of the rule applying to general

industry employers whose employees experience

a covered MSD in jobs other than manual

handling or manufacturing;

Section 1910.908 establishes the

criteria general industry employers wishing

to avail themselves of the proposed

standard's ``grandfather'' clause must meet

in order to qualify for grandfather status;

Section 1910.909 provides general

industry employers with a Quick Fix option,

which would allow them to avoid setting up an

ergonomics program for any problem job that

they can fix completely within a short period

of time, provided that they also meet the

other requirements delineated in this

section; and

Section 1910.910 specifies the

requirements applying to employers whose

Quick Fix controls have not eliminated MSD

hazards in the problem jobs they tried to

address through the Quick Fix option.

The following paragraphs explain OSHA's

rationale for each of these sections of the

proposed rule.

Section 1910.905 What are the elements of

a complete ergonomics program?

In this standard, a full ergonomics program

consists of these six program elements:

Management Leadership and Employee

Participation;

Hazard Information and Reporting;

Job Hazard Analysis and Control;

Training;

MSD Management; and

Program Evaluation.

OSHA is proposing in this standard that

employers implement an ergonomics program

that contains well-recognized program

elements. OSHA is not alone in believing that

all of these core elements are essential to

the effective functioning of ergonomics

programs. Many private sector companies, OSHA

stakeholders, insurers, employee and employer

associations, safety and health

professionals, and other Federal agencies

(e.g., NIOSH, GAO) have endorsed these

elements as key to ergonomic program

effectiveness. Evidence of the widespread

acceptance of these program elements and

their effectiveness is reflected in the

following documents, regulatory actions, and

sources of expert opinion: 1

---------------------------------------------------------------------------

\1\ There is no provision for WRP in the

OSHA safety and health program guidelines,

state safety and health programs, nor the

ASSE program; of these, the OSHA guidelines

and ASSE program are voluntary.

---------------------------------------------------------------------------

[[Page 65789]]

They track OSHA's 1989 voluntary

Safety and Health Program Management

Guidelines (54 FR 3904), which were well

received and widely adopted by employers and

other stakeholders;

State safety and health program

regulations, most of which address ergonomic

issues. Of the 32 states that encourage or

mandate workplace safety and health programs,

21 have provisions corresponding to the core

elements in this proposal;

OSHA's Ergonomics Program

Management Guidelines for Meatpacking Plants

(Ex. 2-13 ), which includes all of these core

elements. Facilities that have developed

programs based on the meatpacking guidelines

have experienced dramatic reductions in the

severity and number of MSDs (Ex. 26-1420);

Consensus among occupational

safety and health professionals that these

are the elements needed in an effective

safety and health program. (see, e.g., the

American Society of Safety Engineers Safety

and Health Program Manual). The core elements

in this proposal are also similar to the

components in the approach used by the

Accredited Standards Committee in developing

the draft consensus standard, ``Control of

Cumulative Trauma Disorders'' for the

American National Standards Institute (Z-

365);

A study by the General Accounting

Office of ergonomics programs, which found

that effective programs include the same set

of core elements as OSHA has proposed; and

The 1997 NIOSH document titled

``Element of Ergonomics Programs,'' which

outlines the ``approach most commonly

recommended for identifying and correcting

ergonomic problems.'' Thus, OSHA finds that

these elements are the ones needed for an

effective ergonomics program and represent

the tried and true mainstream approach to

ergonomic programs.

The core elements in this proposal will

allow employers to manage all aspects of the

process of protecting workers from MSDs and

are a way of organizing that process into

parts that can be meaningfully understood and

implemented. All of the elements are

important, although many safety and health

professionals believe that management

leadership and employee participation are the

keystone of an effective ergonomics program

(OSHA/NIOSH conference 1997). OSHA believes

that all of the elements are necessary to

achieve the overall goal of managing MSDs and

ensuring that MSD hazards are systematically

and routinely prevented, eliminated, or

controlled.

Many OSHA stakeholders and respondents to

the ergonomics ANPR published in 1992 (57 FR

34192) have endorsed the program approach.

For example, the M & M Protection Center (Ex.

3-51) stated: ``Generic components described

in the ANPR and in the Meat Packing

Guidelines are feasible and necessary

elements of an ergonomic hazards control

strategy. These form a practical foundation

from which to build a more industry-specific

program.''

Another commenter, Arvin Industries, Inc.

(Ex. 3-46) emphasized the value of the

program approach to companies engaged in

different businesses:

The use of the * * * [program] approach has

been shown to provide effective solutions and

a significant reduction in ergonomics hazards

in jobs in many different industries.

Employees, represented by the AFL-CIO (Ex.

3-184), urged OSHA to include all of the

program elements in the Meatpacking

Guidelines in any future ergonomics standard:

The AFL-CIO strongly supports the inclusion

of the listed elements in OSHA's proposed

ergonomics standard.

OSHA has been responsive to these

commenters by including the six core elements

listed above in the ergonomics program

required by the proposed standard for jobs

where the hazards present are such as to pose

a reasonable likelihood of lending to a

covered MSD, or have already caused or

contributed to such an MSD.

The summary and explanation sections of

the preamble for each program element

describe OSHA's reasoning for including each

element in the proposed program.

Section 1910.906 How does this standard

apply to manufacturing and manual handling

jobs?

You must:

a. Implement the first two elements of the

ergonomics program (Management Leadership and

Employee Participation, and Hazard

Information and Reporting) even if no MSD has

occurred in those jobs.

b. Implement the other program elements

when either of the following occurs in those

jobs (unless you eliminate MSD hazards using

the Quick Fix option in section 1910.909):

1. A covered MSD is reported; or

2. Persistent MSD symptoms are reported

plus:

i. You have knowledge that an MSD hazard

exists in the job;

ii. Physical work activities and conditions

in the job are reasonably likely to cause or

contribute to the type of MSD symptoms

reported; and

iii. These activities and conditions are a

core element of the job and/or make up a

significant amount of the employer's

worktime.

Note To Sec. 1910.906: ``Covered MSD''

refers to MSDs that meet the criteria in

Sec. 1910.901(c). As it applies to

manufacturing and manual handling jobs,

``covered MSDs'' also refers to persistent

symptoms that meet the criteria of this

section.

This section of the rule sets out the

requirements applying to general industry

employers whose employees perform the high-

risk jobs of manual handling or product

manufacturing. As discussed in the Risk

Assessment and Benefits chapter of the

preamble and Preliminary Economic Analysis,

respectively, these two jobs account for 60%

of all reported general industry MSDs but

employ only 28% of all general industry

employees. Section 1910.901(a) defines

manufacturing jobs as production jobs in

which employees perform the physical work

activities of producing a product and in

which these activities make up a significant

amount of their worktime, and section

1910.902(b) defines manual handling jobs as

those in which employees perform forceful

lifting/lowering, pushing/pulling, or

carrying and in which such forceful manual

handling is a core element of the employee's

job.

Examples of jobs that are typically

manufacturing jobs include assembly line

jobs, product inspection jobs, and jobs

involving machine operation, meat packing,

and tire building, among others. Examples of

manual handling jobs are those involving

patient handling, baggage handling, grocery

store stocking, garbage collecting, and

janitorial work, among others. Examples of

other jobs that would typically be considered

manual handling or manufacturing jobs, and

examples of those that would not be so

classified, can be found in proposed section

1910.945, Definitions.

Paragraphs (a) and (b) of section 1910.906

mandate that employers whose operations

involve manual handling or manufacturing

jobs, as defined by the proposed standard,

implement the first two elements of the

ergonomics program required by the standard

in these jobs. These elements are:

[[Page 65790]]

(1) Management leadership and employee

participation, and (2) hazard information and

reporting. Each general industry employer

whose operations involve either or both of

these types of jobs would be required to

implement these two program elements in these

jobs within one year of the standard's

effective date (see proposed section

1910.942). Compliance with these two elements

is required even if no employee in these jobs

has experienced a covered MSD. As discussed

above, OSHA is requiring that these basic

elements of an ergonomics program be in place

in these jobs because of the high-risk nature

of the physical work activities associated

with these jobs. Having these elements in

place ensures that employers and employees

are informed and aware of MSD hazards and the

signs and symptoms of MSDs and have

established the management structure and

employee participation mechanisms necessary

to respond quickly if the need arises.

This section of the proposal also requires

employers with manual handling or

manufacturing jobs to comply with the other

elements of an ergonomics program, including

MSD management, job hazard analysis and

control, training, and program evaluation, if

an employee in a manual handling or

manufacturing job experiences an MSD that the

employer determines, in accordance with

proposed sections 1910.901 (c) and 1910.902,

to be covered by the proposed standard. As

explained in the summary and explanation for

those sections, a covered MSD, as defined by

this standard, is one that occurs after the

effective date of the standard, is an OSHA-

recordable MSD (as defined by OSHA's

recordkeeping rule, 29 CFR part 1904), and is

determined by the employer to have occurred

in a job in which the physical work

activities and conditions are reasonably

likely to have caused or contributed to the

type of MSD reported, or to have aggravated a

pre-existing MSD. For manufacturing or manual

handling jobs, it is important to note that

covered MSDs also include: (1) Reports by

employees of persistent symptoms of MSDs

(persistent is defined as lasting for 7

consecutive days), (2) where the employer has

knowledge that such jobs pose MSD hazards to

employees, (3) where the job is one in which

the physical work activities and conditions

of the job are reasonably likely to cause or

contribute to the type of MSD reported, and

(4) where the activities and conditions are a

core element of the job and/or make up a

significant amount of the employee's

worktime. By ``have knowledge,'' OSHA means

that the employer has been provided with

information that MSD hazards exist in that

job by personnel from an insurance company,

or by a consultant, a health care

professional, or a person working for the

employer who has the requisite training to

identify and analyze MSD hazards. Inclusion

of this action trigger in the proposed

standard is consistent with OSHA's risk-based

approach, because the occurrence of

persistent symptoms, such as constant pain,

tingling, or numbness, coupled with

information from a knowledgeable source that

the employee's job is one that poses an

ergonomic hazard, is strong evidence that the

job is one that is reasonably likely to cause

or contribute to a covered MSD. OSHA believes

that employers generally accept and rely on

information from these sources because they

are perceived of as unbiased, knowledgeable,

and aware of conditions in the employer's

specific workplace.

Section 1910.906 of the proposal would

allow employers whose work involves

manufacturing or manual handling operations

to limit their ergonomics program for those

jobs to two elements, management commitment/

employee participation, and hazard

information and reporting, until a problem

job (i.e., one held by an employee who has

experienced a covered MSD, or a job in the

workplace that has the same physical

activities and conditions as the job held by

such an employee) has been identified. If no

covered MSD occurs in the manufacturing or

manual handling job, the employer is not

required to implement the other elements of

the program.

By requiring employers whose employees

work in manual handling or manufacturing jobs

to implement the first two elements of an

ergonomics program even before a covered MSD

occurs among the employees in that job, OSHA

is requiring these employers to establish a

basic surveillance system for MSDs. This

basic system consists, under the management

leadership element, of assigning

responsibilities for the ergonomics program

to managers, supervisors, and employees so

that these individuals know what their role

in the program is, providing these

individuals with the information, resources,

information and training they need to carry

out these responsibilities effectively, and

communicating with employers on a regular

basis about the program and their concerns

about ergonomics issues. In addition, the

employer must, as part of management

leadership, make sure that its existing

policies and procedures do not discourage

employee reporting of MSDs or participation

in the program. By following these

requirements, employers will have established

the management process necessary to a

functioning ergonomics program: management at

the workplace will have a basic system in

place to ensure that employee concerns about

MSDs are being expressed and responded to,

program responsibilities are understood,

resources have been made available to the

program, and no barriers stand in the way of

early and full employee reporting.

The employee participation component of

this first program element is the other side

of the basic surveillance system the standard

requires employers with these two kinds of

high-risk jobs to implement. To comply with

the employee participation provisions of the

standard, employers must set up a way for

employees and their designated

representatives to report MSD signs and

symptoms to the employer, receive prompt

responses to these reports, have access to a

copy of the ergonomics standard (either

through posting or by providing hand copies

to employees) and to information about the

employer's ergonomics program, and ways to

participate in the development,

implementation, and evaluation of the

ergonomics program.

By implementing these provisions, the

second half of the first program element will

be put in place: employees will know how to

report MSDs and their signs and symptoms,

they will expect to receive responses to

those reports from management, they will

understand their employers' ergonomics

program, and they will know how they can

participate effectively in making the program

a success.

Section 1910.906 also requires, at

paragraph (b), that employers with these jobs

comply with all of the other elements of an

ergonomics program--job hazard analysis and

control, MSD management, training, and

program evaluation--if a covered MSD occurs

in a manual handling or manufacturing job.

(As discussed above, for these jobs,

persistent MSD symptoms are considered

covered MSDs if they also meet the criteria

specified in paragraph (b)(2) of this

section.) There is one exception to

compliance with paragraph (b) of this

section: employers who choose the proposed

rule's Quick Fix option (described below) do

not have to implement the other program

elements.

Section 1910.907 How does this standard

apply to other jobs in general industry?

[[Page 65791]]

In other jobs in general industry, you must

comply with all of the program elements in

the standard when a covered MSD is reported

(unless you eliminate the MSD hazards using

the Quick Fix option).

As discussed earlier in this section of

the preamble, employers with other jobs

(i.e., jobs that do not involve either

manufacturing or manual handling) are not

required by the proposed rule to take any

action until and unless a covered MSD occurs

in such a job. Thus, for most employers in

general industry in a given year, no action

is required by the standard. However, if a

covered MSD occurs in one of these ``other''

jobs, it becomes a ``problem job,'' as

defined in the standard, and the full

ergonomics program must be implemented for

that job and all jobs in the workplace that

involve the same physical work activities.

OSHA has included section 1910.907 in the

proposed standard to provide employees who

have experienced a covered MSD in these other

jobs with the same program protections

afforded to manual handling and manufacturing

employees who have suffered a covered MSD.

Section 1910.908 How does this standard

apply if I already have an ergonomics

program?

If you already have an ergonomics program

for the jobs this standard covers, you may

continue that program, even if it differs

from the one this standard requires, provided

you show that:

a. Your program satisfies the basic

obligation section of each program element in

this standard, and you are in compliance with

the recordkeeping requirements of this

standard (Secs. 1910.939 and 1910.940);

b. You have implemented and evaluated your

program and controls before [the effective

date]; and

c. The evaluation indicates that the

elements are functioning properly and that

you are in compliance with the control

requirements in Sec. 1910.921.

This section of the proposed standard is a

limited grandfather clause that is designed

to permit employers who have already

implemented and evaluated an ergonomics

program in those jobs covered by the standard

to continue their program, if: it has been

shown to eliminate or materially reduce MSD

hazards according to Sec. 1910.921, it has

the core elements of the program OSHA is

requiring, and it meets the basic obligation

of each of the core elements in the proposed

rule.

By requiring that grandfathered programs

meet the conditions set out in paragraphs (a)

through (c) of section 1910.908, OSHA is

affirming the importance of each of the core

elements, as well as recordkeeping, to the

proper functioning of an effective ergonomics

program. OSHA is also emphasizing the

importance the Agency places on the basic

obligation sections of the proposed standard

(sections 1910.911, 1910.914, 1910.917,

1910.923, 1910.929, and 1910.936). These

sections establish the basic requirements

employers must follow to implement each core

element but do so in less detail than the

implementing requirements that follow the

basic obligation section for each core

element. OSHA believes that the requirements

identified in the basic obligations sections

of the proposal are the minimum requirements

needed to effectively implement the core

element to which they pertain. In other

words, although OSHA is proposing to grant

grandfather status to effective ergonomics

programs, it believes that the requirements

set forth in each basic obligation section

must be present in an ergonomics program for

that element to be effective. Thus, employers

whose existing programs meet the conditions

of the limited grandfather clause in section

1910.908 are free not to implement the more

detailed provisions that follow the basic

obligation section, provided that they comply

fully with the basic obligation section's

provisions.

OSHA has several reasons for including the

standard's core elements in any ergonomics

program that is grandfathered in under the

standard. OSHA's reasoning is discussed

below.

First, except for WRP, the core elements

(management leadership and employee

participation, hazard identification and

assessment, hazard prevention and control,

MSD management, training, and evaluation) are

included in the safety and health programs

recommended or used by many different

organizations (the ergonomics standard uses

slightly different terminology for some of

these elements):

OSHA's VPP, SHARP, and

consultation programs;

The safety and health programs

mandated by 18 states;

The safety and health programs

recommended by insurance companies for their

insureds (many of which give premium

discounts for companies that implement these

programs or impose surcharges on those that

do not);

The safety and health programs

recommended by the National Federation of

Independent Business, the Synthetic Organic

Chemical Manufacturers Association, the

Chemical Manufacturers Association, the

American Society of Safety Engineers, and

many others;

The strong recommendations of

OSHA's Advisory Committees (NACOSH, ACCSH,

and MACOSH), which consider these program

elements essential to effective worker

protection programs.

Second, OSHA believes, and most

stakeholders agree, that enforcement of the

standard will be more consistent and more

equitable, as well as less time-consuming,

for employers and compliance officers alike,

if the test of an employer's program is

whether the program contains the core

elements, rather than whether it is

effective. The term effectiveness is subject

to many different interpretations.

Effectiveness can be measured in many

different ways (e.g., decreases in the number

of MSDs, decreases in the severity of MSDs,

increases in product quality, decreases in

insurance premiums, decreases in the number

of claims, decreases in turnover, decreases

in absenteeism, increases in productivity,

increases in the number of MSDs reported

early, etc.), several of which have built-in

incentives to discourage reporting of MSDs

(as discussed in the Significance of Risk

(Section VII) section of the preamble,

underreporting of MSDs is already extensive.

In addition, there are no data that would

allow OSHA to evaluate or to choose among

these various effectiveness measures. OSHA

solicits comments on measures of program

effectiveness that are not susceptible to

underreporting and that can be used reliably

and simply by establishments of all sizes.

For example, are there measures of

effectiveness that OSHA could use as a

measure of effectiveness when determining

whether to allow a program to be

grandfathered in?

In addition, evaluating programs using the

core eleme

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