# Ergonomics Program > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A99-28981 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** November 23, 1999 - **Citation:** 64 FR 65767 ## Text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A99-28981. Public record. Not legal advice.