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Tuesday

,
November 14, 2000

Part II

Department of Labor
Occupational Safety and Health
Administration

29 CFR Part 1910
Ergonomics Program; Final Rule

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68262 Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations

DEPARTMENT OF LABOR analysis and control, training, MSD V. Health Effects
management, and program evaluation. VI. Risk Assessment
Occupational Safety and Health The standard provides the employer VII. Significance of Risk
Administration VIII. Summary of the Final Economic
with several options for evaluating and Analysis and Final Regulatory Flexibility
controlling risk factors for jobs covered Analysis
29 CFR Part 1910 by the ergonomics program, and IX. Unfunded Mandates Analysis
[Docket No. S–777] provides objective criteria for X. Environmental Impact Statement
identifying MSD hazards in those jobs XI. Additional Statutory Issues
RIN 1218–AB36 and determining when the controls XII. Procedural Issues
implemented have achieved the XIII. Federalism
Ergonomics Program XIV. State Plan States
required level of control.
XV. OMB Review under the Paperwork
AGENCY: Occupational Safety and Health The final standard would affect Reduction Act of 1995
Administration (OSHA), Department of approximately 6.1 million employers XVI. List of Subjects in 29 CFR Part 1910
Labor. and 102 million employees in general XVII. The Final Ergonomics Program
industry workplaces, and employers in Standard
ACTION: Final rule.
these workplaces would be required References to documents, studies, and
SUMMARY: The Occupational Safety and over the ten years following the materials in the rulemaking record are
Health Administration is issuing a final promulgation of the standard to control found throughout the text of the
Ergonomics Program standard (29 CFR approximately 18 million jobs with the preamble. Materials in the docket are
1910.900) to address the significant risk potential to cause or contribute to identified by their Exhibit numbers, as
of employee exposure to ergonomic risk covered MSDs. OSHA estimates that the follows: ‘‘Ex. 26–1’’ means Exhibit 26–
factors in jobs in general industry final standard would prevent about 4.6 1 in Docket S–777. A list of the Exhibits
workplaces. Exposure to ergonomic risk million work-related MSDs over the and copies of the Exhibits are available
factors on the job leads to next 10 years, have annual benefits of in the OSHA Docket Office.
musculoskeletal disorders (MSDs) of the approximately $9.1 billion, and impose
annual compliance costs of $4.5 billion I. Introduction
upper extremities, back, and lower
extremities. Every year, nearly 600,000 on employers. On a per-establishment A. Overview
MSDs that are serious enough to cause basis, this equals approximately $700;
This preamble discusses the data and
time off work are reported to the Bureau annual costs per problem job fixed are
events that led OSHA to issue the final
of Labor Statistics by general industry estimated at $250.
Ergonomics Program standard (Section
employers, and evidence suggests that DATES: This final rule becomes effective II), and the Agency’s legal authority for
an even larger number of non-lost on January 16, 2001. promulgating the rule (Section III). This
worktime MSDs occur in these Compliance. Start-up dates for discussion is followed by a detailed
workplaces every year. specific provisions are set in paragraph paragraph-by-paragraph summary and
The standard contains an ‘‘action (w) of § 1910.900. However, affected explanation of the final rule, including
trigger,’’ which identifies jobs with risk parties do not have to comply with the the Agency’s reasons for including each
factors of sufficient magnitude, information collection requirements in provision and OSHA’s responses to the
duration, or intensity to warrant further the final rule until the Department of many substantive issues that were
examination by the employer. This Labor publishes in the Federal Register raised in the proposal and during the
action trigger acts as a screen. When an the control numbers assigned by the rulemaking (Section IV).
employee reports an MSD, the employer Office of Management and Budget The summary and explanation of the
must first determine whether the MSD (OMB). Publication of the control standard is followed by a lengthy
is an MSD incident, defined by the numbers notifies the public that OMB discussion of the evidence on the health
standard as an MSD that results in days has approved these information effects that are associated with worker
away from work, restricted work, collection requirements under the exposure to MSD hazards (Section V).
medical treatment beyond first aid, or Paperwork Reduction Act of 1995. The next section discusses the nature
MSD symptoms or signs that persist for ADDRESSES: In compliance with 28 and degree of ergonomic-related risks
7 or more days. Once this determination U.S.C. 2112(a), the Agency designates confronting workers in general industry
is made, the employer must determine the Associate Solicitor for Occupational jobs (Section VI), and assesses the
whether the employee’s job has risk Safety and Health, Office of the significance of those risks (Section VII).
factors that meet the standard’s action Solicitor, Room S–4004, U.S. The preamble also contains a summary
trigger. The risk factors addressed by Department of Labor, 200 Constitution of the Final Economic and Final
this standard include repetition, Avenue, NW., Washington, DC 20210, Regulatory Flexibility Analysis (Section
awkward posture, force, vibration, and as the recipient of petitions for review VIII). Finally, the preamble describes
contact stress. If the risk factors in the of the standard. the information collections associated
employee’s job do not exceed the action FOR FURTHER INFORMATION CONTACT: with the final standard (Section XV).
trigger, the employer does not need to OSHA’s Ergonomics Team at (202) 693–
implement an ergonomics program for B. The Need for an Ergonomics Program
2116, or visit the OSHA Homepage at Standard
that job. www.osha.gov.
If an employee reports an MSD Work-related musculoskeletal
incident and the risk factors of that SUPPLEMENTARY INFORMATION: disorders (MSDs) currently account for
employee’s job meet the action trigger, Table of Contents one-third of all occupational injuries
the employer must establish an The preamble and standard are organized and illnesses reported to the Bureau of
ergonomics program for that job. The as follows: Labor Statistics (BLS) by employers
program must contain the following I. Introduction every year. Although the number of
elements: hazard information and II. Events Leading to the Standard MSDs reported to the BLS, like all
reporting, management leadership and III. Pertinent Legal Authority occupational injuries and illnesses, has
employee participation, job hazard IV. Summary and Explanation declined by more than 20% since 1992,

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Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations 68263

these disorders have been the largest found a clear relationship between science in order to expand on its 1998
single job-related injury and illness musculoskeletal disorders and work and study. OSHA has examined all of the
problem in the United States for the last between ergonomic interventions and a research results in the record of this
decade, consistently accounting for 34% decrease in the number and severity of rulemaking in order to ensure that the
of all reported injuries and illnesses. In such disorders. According to the final Ergonomics Program standard is
1997, employers reported a total of Academy, ‘‘Research clearly based on the best available and most
626,000 lost worktime MSDs to the BLS, demonstrates that specific interventions current evidence. Although more
and these disorders accounted for $1 of can reduce the reported rate of research is always desirable, OSHA
every $3 spent for workers’ musculoskeletal disorders for workers finds that more than enough evidence
compensation in that year. This means who perform high-risk tasks’’ (Work- already exists to demonstrate the need
that employers are annually paying Related Musculoskeletal Disorders: The for a final standard. In the words of the
more than $15 billion in workers’ Research Base, ISBN 0–309–06327–2 American College of Occupational and
compensation costs for these disorders, (1998)). A scientific review of hundreds Environmental Medicine, the world’s
and other expenses associated with of peer-reviewed studies involving largest occupational medical society,
work-related MSDs, such as the costs of workers with MSDs by the National ‘‘there is an adequate scientific
training new workers, may increase this Institute for Occupational Safety and foundation for OSHA to proceed * * *
total to $45 billion a year. Workers with Health (NIOSH 1997) also supports this and, therefore, no reason for OSHA to
severe MSDs often face permanent conclusion. delay the rulemaking process * * *.’’
disability that prevents them from The evidence, which is comprised of
returning to their jobs or handling D. Information OSHA Is Providing To
peer-reviewed epidemiological,
simple, everyday tasks like combing Help Employers Address Ergonomic
biomechanical and pathophysiological
their hair, picking up a baby, or pushing Hazards
studies as well as other published
a shopping cart. For example, workers evidence, includes: Much literature and technical
who must undergo surgery for work- II. More than 2,000 articles on work- expertise on ergonomics already exists
related carpal tunnel syndrome often related MSDs and workplace risk and is available to employers, both
lose 6 months or more of work. factors; through OSHA and a variety of other
Thousands of companies have taken II. A 1998 study by the National sources. For example:
action to address and prevent these Research Council/National • Information is available from
problems. OSHA estimates that 46 OSHA’s ergonomics Web page, which
Academy of Sciences on work-
percent of all employees but only 16 can be accessed from OSHA’s World
related MSDs;
percent of all workplaces in general Wide Web site at http://www.osha.gov
industry are already protected by an • A critical review by NIOSH of more by scrolling down and clicking on
ergonomics program, because their than 600 epidemiological studies ‘‘Ergonomics’’;
employers have voluntarily elected to addressing the effects of exposure to • Many publications, informational
implement an ergonomics program. workplace risk factors (1997); materials and training courses, which
(The difference in these percentages • A 1997 General Accounting Office are available from OSHA through
shows that many large companies, who report of companies with ergonomics Regional Offices, OSHA-sponsored
employ the majority of the workforce, programs; educational centers, OSHA’s state
already have these programs, and that I. Other evidence and analyses in the consultation programs for small
many smaller employers have not yet Health Effects section of the businesses, and through the Web page;
implemented them.) Based on its review preamble to the final rule; • Publications on ergonomics
of the evidence in the record as a whole, II. Hundreds of case studies from programs, which are available from
OSHA concludes that the final standard companies with successful NIOSH at 1–800–35–NIOSH. NIOSH’s
is needed to protect employees in ergonomics programs; and Web page is also ‘‘linked’’ to OSHA’s
general industry workplaces who are at I. Testimony and evidence submitted to ergonomics Web page;
significant risk of incurring a work- the record by expert witnesses, • OSHA’s state consultation
related musculoskeletal disorder but are workers, safety and health programs, which will provide free on-
not currently protected by an professionals, and others, which is site consultation services to employers
ergonomics program. discussed throughout the preamble requesting help in implementing their
to the final rule. ergonomics programs; and
C. The Science Supporting the Standard Taken together, this evidence • OSHA-developed compliance
A substantial body of scientific indicates that: assistance materials, which are available
evidence supports OSHA’s effort to • High levels of exposure to as non-mandatory appendices to the
provide workers with ergonomic ergonomic risk factors on the job lead to standard, electronic compliance
protection (see the Health Effects, Risk an increased incidence of work-related assistance training materials (e-cats) on
Assessment, and Significance of Risk MSDs among exposed workers; specific tasks (e.g., lifting) or work
sections (Sections V, VI, and VII, • Reducing exposure to physical risk environments (e.g., nursing homes).
respectively) of this preamble, below). factors on the job reduces the incidence OSHA is also making several
This evidence strongly supports two and severity of work-related MSDs; publications available on the web, such
basic conclusions: (1) There is a positive • Many work-related MSDs are as the Easy Ergonomics Booklet, Fact
relationship between work-related preventable; and Sheets, and so on. These materials can
musculoskeletal disorders and • Ergonomics programs are be obtained by accessing OSHA’s
employee exposure to workplace risk demonstrably effective in reducing risk, Internet home page at www.OSHA.gov.
factors, and (2) ergonomics programs decreasing exposure and protecting
and specific ergonomic interventions workers against work-related MSDs. II. Events Leading to the Development
can substantially reduce the number As with any scientific field, research of the Final Standard
and severity of these injuries. in ergonomics is ongoing. The National In this final standard, OSHA has
In 1998, the National Research Academy of Sciences is currently relied on its own substantial experience
Council/National Academy of Sciences undertaking another review of the with ergonomics programs, the

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68264 Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations

experience of private firms and firmly grounded in the OSH Act and reduce employee turnover and
insurance companies, and the results of OSHA policies and experience. The absenteeism (see Section VI of this
research studies conducted during the primary lesson to be learned is that preamble, and Chapters IV (Benefits)
last 30 years. Those experiences clearly employers with effective, well-managed and V (Costs of Compliance) of OSHA’s
show that: (1) Ergonomics programs are ergonomics programs achieve Final Economic Analysis (Ex. 28–1)).
an effective way to reduce occupational significant reductions in the severity OSHA’s long experience with
MSDs; (2) ergonomics programs have and number of work-related MSDs that ergonomics is apparent from the
consistently achieved that objective; (3) their employees experience. These chronology below. As this table shows,
OSHA’s standard is consistent with programs also generally improve the Agency has been actively involved
these programs; and (4) the standard is productivity and employee morale and in ergonomics for more than 20 years.

OSHA Ergonomics Chronology

March 1979 .......................... OSHA hires its first ergonomist.
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.
February 1986 ...................... OSHA publishes ‘‘Working Safely with Video Display Terminals,’’ its first publication concerning ergonomics as it
applies to the use of computer technology
May 1986 ............................. OSHA begins a pilot program to reduce back injuries through review of injury records during inspections and rec-
ommendations 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 lift-
ing. (57 FR 34192)
November 1988 .................... OSHA/Iowa Beef Processors reach first corporate-wide settlement to reduce ergonomic hazards at 8 IBP loca-
tions nationwide.
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.’’
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 on
ergonomics.
January 1992 ....................... OSHA begins a special emphasis inspection program on ergonomic hazards in the meatpacking industry.
April 1992 ............................. Secretary of Labor denies petition for an Emergency Temporary Standard but commits to moving forward with
section 6 (b) rulemaking.
August 1992 ......................... OSHA publishes an Advance Notice of Proposed Rulemaking on ergonomics.
1993 ..................................... OSHA conducts a major survey of general industry and construction employers to obtain information on the ex-
tent 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 1, 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.
March 1999 .......................... OSHA/NIOSH/Institute of Industrial Engineers hold Applied Ergonomics Conference in Houston
April 30, 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 23, 1999 ............. OSHA publishes its proposed ergonomics program standard.
March 2000 .......................... OSHA/NIOSH/Institute of Industrial Engineers hold Applied Ergonomics Conference in Los Angeles
March–May 2000 ................. OSHA holds 9 weeks of public hearings and receives 18,337 pages of testimony from 714 witnesses.
November 23, 1999 through OSHA receives nearly 11,000 comments and briefs consisting of nearly 50,000 pages collectively, into the docket
August 10, 2000. of the ergonomics rulemaking.
October 27, 2000 ................. The Occupational Safety and Health Review Commission finds that manual lifting of nursing home patients is a
known and recognized risk factor for lower back pain.

A. Regulatory and Voluntary Guidelines health principles of management management guidelines, supplemented
Activities commitment and employee by other ergonomics-specific program
involvement, worksite hazard analysis, elements (e.g., medical management).
In 1989, OSHA issued the Safety and
hazard prevention and control, and The ergonomic guidelines were based
Health Program Management
employee training, also serve as the on the best available scientific evidence,
Guidelines (54 FR 3904, Jan. 26, 1989),
which are voluntary program foundation for effective ergonomics the best practices of successful
management guidelines to assist programs. In August 1990, OSHA issued companies with these programs, advice
employers in developing effective safety the Ergonomics Program Management from the National Institute for
and health programs. These program Guidelines for Meatpacking Plants (Ex. Occupational Safety and Health
management guidelines, which are 2–13), which utilized the four program (NIOSH), the scientific literature, and
based on the widely accepted safety and components from the safety and health OSHA’s experience with enforcement

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actions. Many commenters in various intention to begin the rulemaking same organizations. Thereafter, during
industries have said that they have process by asking the public for April 1995, OSHA met again with these
implemented their ergonomics programs information about musculoskeletal groups to discuss whether the draft
primarily on the basis of the OSHA disorders (MSDs). The Agency indicated proposed rule had accurately responded
ergonomics guidelines (Exs. 3–50, 3–61, that this could be accomplished through to the concerns raised earlier. A
3–95, 3–97, 3–113, 3–121, 3–125), and a Request for Information (RFI) or an summary of the comments has been
there has been general agreement among Advance Notice of Proposed placed in the public record (Ex. 26–
stakeholders that these program Rulemaking (ANPR) consistent with the 1370).
elements should be included in any Administration’s Regulatory Program. During 1998, OSHA met with nearly
OSHA ergonomics standard (Exs. 3–27, Subsequently, OSHA formally placed 400 stakeholders to discuss ideas for a
3–46, 3–51, 3–61, 3–89, 3–95, 3–113, 3– ergonomics rulemaking on the proposed standard. The first series of
119, 3–160, 3–184). regulatory agenda (Ex. 2–17) and meetings was held in February in
OSHA also has encouraged other decided to issue an ANPR on this topic. Washington, D.C. and focused on
efforts to address the prevention of In June 1991, OSHA sent a draft copy general issues, such as the scope of the
work-related musculoskeletal disorders. of the proposed ANPR questions for standard and what elements of an
For example, OSHA has actively comment to 232 parties, including ergonomics program should be included
participated in the work of the ANSI Z– OSHA’s advisory committees, labor in a standard. The second series of
365 Committee, which was entrusted organizations (including the meetings, held in July in Kansas City
with the task of developing a consensus petitioners), trade associations, and Atlanta, focused on what elements
standard for the control of cumulative occupational groups, and members of and activities should be included in an
trauma disorders. The Agency also has the ergonomics community (Ex. 2–18). ergonomics program standard. The third
sponsored and participated in more OSHA requested comments on what set of meetings was held in September
than 11 Ergonomics Best Practices questions should be presented in the in Washington, D.C. and emphasized
conferences. ANPR. OSHA received 47 comments revisions to the elements of the proposal
from those parties. In addition, OSHA based on previous stakeholder input. A
1. Petition for Emergency Temporary
met with the Chemical Manufacturers summary of those meetings was placed
Standard
Association, Organization Resources on the OSHA web site and in the public
On July 31, 1991, the United Food Counselors, Inc., the AFL–CIO and docket (Ex. 26–1370). OSHA solicited
and Commercial Workers Union several of its member organizations. input from its stakeholders again the
(UCFW), along with the AFL–CIO and OSHA reviewed the comments and next year, when it posted a working
29 other labor organizations, petitioned submissions received and incorporated draft of its ergonomics standard after its
OSHA to take immediate action to relevant suggestions and comments into release for Small Business Regulatory
reduce the risk to employees of the ANPR. Enforcement Fairness Act (SBREFA)
exposure to ergonomic hazards (Ex. 2– On August 3, 1992, OSHA published Panel review.
16). The petition requested that OSHA the ANPR in the Federal Register (57 FR
issue an emergency temporary standard 34192), requesting information for 4. Small Business Regulatory
(ETS) on ‘‘Ergonomic Hazards to Protect consideration in the development of an Enforcement Fairness Act (SBREFA)
Workers from Work-Related ergonomics standard. OSHA received Panel
Musculoskeletal Disorders (Cumulative 290 comments in response to the ANPR. In accordance with SBREFA and to
Trauma Disorders)’’ under section 6(c) Those comments have been carefully gain insight from employers with small
of the Act. The petitioners also considered by the Agency in developing businesses, OSHA, the Office of
requested, consistent with section 6(c), the final ergonomics program standard. Management and Budget (OMB), and
that OSHA promulgate, within 6 months the Small Business Administration
3. Outreach to Stakeholders (SBA) created a Panel to review and
of issuance of the ETS, a permanent
standard to protect workers from In conjunction with the process of comment on a working draft of the
cumulative trauma disorders in both developing the proposed ergonomics ergonomics program standard. As
general industry and construction. rule, OSHA established various required by SBREFA, the Panel sought
Based on the statutory constraints and communication and outreach efforts. the advice and recommendations of
legal requirements governing issuance These efforts were initiated in response potentially affected Small Entity
of an ETS, OSHA calculated that the to requests by individuals who would Representatives (SERs). A total of 21
basis to support issuance of an ETS was be affected by the rule (stakeholders) SERs from a variety of industries
not sufficient. Accordingly, on April 17, that they be provided with the participated in the effort. The working
1992, OSHA decided not to issue an opportunity to present their concerns draft and supporting materials (a brief
ETS on ergonomic hazards (Ex. 2–29). about an ergonomics rule and that they summary of a preliminary economic
OSHA agreed with the petitioners, be kept apprized of the efforts OSHA analysis, the risk assessment, and other
however, that available information, was making in developing a proposed materials) were sent to the SERs for
including the Agency’s experience and rule. For example, in March and April their review. On March 24–26, 1999, the
information in the ETS petition and 1994, OSHA held meetings with Panel participated in a series of
supporting documents, supported the industry, labor, professional and discussions with the SERs to answer
initiation of a rulemaking, under section research organizations covering general questions and receive comments. The
6(b)(5) of the Act, to address ergonomic industry, construction, agriculture, SERs also provided written comments,
hazards. healthcare, and the office environment. which served as the basis of the Panel’s
A list of those attending the meetings final report (Ex. 23). The final SBREFA
2. Advance Notice of Proposed and a record of the meetings has been Panel Report was submitted to the
Rulemaking placed in the public record of this Assistant Secretary on April 30, 1999.
At the time OSHA issued the rulemaking (Ex. 26–1370). The findings and recommendations
Ergonomic Program Management In March, 1995, OSHA provided a made by the Panel are addressed in the
Guidelines for Meatpacking Plants (Ex. copy of an early draft proposed proposed rule, preamble, and economic
2–13), the Agency also indicated its ergonomics rule and preamble to these analysis (see the discussion in Section

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VIII, Summary of the Final Economic 6. Solicitation of Public Comment on submissions were received. Collectively,
Analysis and Regulatory Flexibility the Proposed Rule a total of nearly 11,000 exhibits
Analysis). The notice of proposed rulemaking consisting of nearly 50,000 pages were
invited public comment on any aspects submitted over the whole period.
5. Issuance of Proposed Rule
of the proposed ergonomics standard B. Other OSHA Efforts In Ergonomics
On November 23, 1999, OSHA until the close of the comment period
In 1996, OSHA developed a strategy
published a proposed ergonomics ending on February 1, 2000.
to address ergonomics through a four-
program standard to address the After receiving a number of requests
pronged program including training,
significant risk of work-related for an extension of the written comment
education, and outreach activities; study
musculoskeletal disorders (MSDs) period, OSHA published a Federal
and analysis of the work-related hazards
confronting employees in various jobs Register notice (65 FR 4795) to extend
that lead to MSDs; enforcement; and
in general industry workplaces (64 FR the deadline for public, pre-hearing
rulemaking.
65768). The proposed standard would comments to March 2, 2000 and to
have required general industry reschedule the informal public hearings 1. Training, Education, and Outreach
employers covered by the standard to in Washington, D.C. to begin March 13, a. Training. The OSHA ergonomics
2000 and run through April 7, 2000. web page has been an important part of
establish an ergonomics program
Subsequently, the Agency published a the Agency’s education and outreach
containing some or all of the elements
Federal Register notice (65 FR 19702) to effort. Other OSHA efforts in training,
typical of successful ergonomics
re-schedule and extend the hearings in education and outreach include the
programs: management leadership and Portland, OR by 2 days, from April 24,
employee participation, job hazard following:
2000 through May 3, 2000. In addition, • Grants to train workers and
analysis and control, hazard information a final week of informal public hearings
and reporting, training, MSD employees about hazards and hazard
(65 FR 13254) was scheduled to take abatement.
management, and program evaluation, place in Washington, D.C. from May 8,
depending on the types of jobs in their • Three training courses in
2000 through May 12, 2000. ergonomics through the OSHA Training
workplace and whether a During the early stages of the public Institute available for OSHA compliance
musculoskeletal disorder covered by the comment period, it was brought to officers, one of which is open to the
standard had occurred. Employers OSHA’s attention that the proposed public;
whose employees perform ergonomics program standard published • One day training for nursing home
manufacturing or manual handling jobs on November 23, 1999 (64 FR 65768) operators, at more than 500 nursing
were required to implement a basic did not provide an analysis of the homes in each of seven targeted states;
ergonomics program in those jobs. economic impacts of the rule on State • Booklets on ergonomics,
The basic program would have and local governments, the United ergonomics programs, and computer
States Postal Service, or the railroads. workstations, such as ‘‘Ergonomics
included the following elements:
To provide this additional information Program Management Guidelines for
management leadership and employee
and analysis, OSHA published a Meatpacking Plants’’ and ‘‘Ergonomics:
participation, and hazard information
supplement (65 FR 33263) to the the Study of Work,’’ both of which are
and reporting. If an employee in a Agency’s Preliminary Economic
manufacturing or manual handling job available on OSHA’s Website.
Analysis and Initial Regulatory • Videotapes on ergonomics programs
experienced an OSHA-recordable MSD Flexibility Analysis (Ex. 28–1) of the
determined by the employer to be in general industry and specifically in
economic impact of the Ergonomics nursing homes.
covered by the standard, the employer Program Rule. OSHA also established
would have been required to implement OSHA has awarded almost $3 million
pre-hearing and post-hearing comment for 25 grants addressing ergonomics,
a full ergonomics program for that job periods ending June 22, 2000 and including lifting hazards in healthcare
and all other jobs in that establishment August 10, 2000, respectively, to facilities and hazards in the red meat
involving the same physical work address the analysis of economic and poultry industries. These grants
activities. The full program would have impacts in those three industries. An have enabled workers and employers to
included, in addition to the elements in informal public hearing was held in identify ergonomic hazards and
the basic program, a hazard analysis of Atlanta, GA on July 7, 2000, to provide implement workplace changes to abate
the job; the implementation of an opportunity for witnesses to question these hazards.
engineering, work practice or the OSHA Panel on the supplemental Some grant program highlights follow:
administrative controls to eliminate or analysis.
Collectively, the public hearings • The United Food and Commercial
substantially reduce the hazards Workers International Union (UFCW)
identified in that job; training the concerning the proposed ergonomics
conducted joint labor-management
employees and their supervisors in that program standard generated 18,337 ergonomics training at a meatpacking plant
job; and providing MSD management, pages of transcript based on testimony that resulted in a major effort at the plant to
including where appropriate, temporary from 714 hearing witnesses, including combat cumulative trauma disorders. The
work restrictions and access to a health those representing public entities, program was so successful that management
private industry, industry associations, asked the UFCW to conduct the ergonomics
care provider or other professional if a training and work with management at some
labor unions and private individuals.
covered MSD occurred. General of its other facilities.
More than 5,900 pre-hearing
industry employees in jobs other than comments were filed in response to the • The University of California at Los
manufacturing or manual handling who proposed ergonomics program standard. Angeles (UCLA) and the Service Employees
experienced a covered MSD determined International Union (SEIU) both had grants
A 45-day post-hearing comment period for preventing lifting injuries in nursing
by the employer to be covered by the and a 45-day summary and brief period homes. SEIU developed a training program
standard also would have been required were established, with final briefs due that was used by UCLA to train nursing home
by the proposal to implement an to be postmarked no later than August workers in California. UCLA also worked
ergonomics program for those jobs. 10, 2000. A total of 240 post hearing with some national back injury prevention

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programs. At least one of the nursing home U.S. meat industry, including 276 meat OSHA has successfully issued over
chains has replicated the program in other packers and processors, who operate 550 ergonomics citations under the
states. 559 facilities, acknowledged that the General Duty Clause. In the majority of
• Mercy Hospital in Des Moines, Iowa, had
a grant to prevent lifting injuries in hospitals.
industry worked with OSHA on the these cases, cited employers have
It trained over 3,000 hospital workers in Des Guidelines, and has been using them for recognized that the implementation of
Moines and surrounding counties. It had a nearly ten years (Ex. 30–3677, p.1). The ergonomics programs is in their best
goal of reducing lost work days by 15 AMI notes that the Guidelines work and interest and that of their employees.
percent. The goal was surpassed, and, six that the industry has made substantial Examples of companies cited under the
months after the training, none of those progress in addressing ergonomic issues General Duty Clause for ergonomics
trained experienced a lost workday due to since development of the Guidelines (id. hazards and which then realized a
back injury.
at 1–4). The AMI recommended that the substantial reduction in injuries and
• Hunter College in New York City trains
ergonomics trainers for the United Guidelines be extended throughout illnesses after implementing ergonomics
Paperworkers International Union. The general industry (id. at 4). The utility of programs include: the Ford Motor
trainers then return to their locals and OSHA’s Guidelines also was hailed by Company, Empire Kosher Foods, Sysco
conduct ergonomics training for union the United Food and Commercial Foods, and the Kennebec Nursing
members. As a result of this training, changes Workers’ Union, which noted that upon Home.
are being made at some workplaces. publication of the Guidelines, industry Two cases have been decided so far
Examples include purchasing new began to respond both from the by the Occupational Safety and Health
equipment that eliminates or reduces
standpoint of technology as well as Review Commission.
workers’ need to bend or twist at the
workstation, rotating workers every two ergonomics programs (Ex. 32–210–2, pp. In the first general duty clause case
hours with a ten-minute break before each 25–26). The success of the Guidelines litigated by the Occupational Safety and
rotation, and modifying workstations to led to their use and acceptance in other Health Review Commission, Pepperidge
reduce worker strain. industries. The poultry industry appears Farm, the Review Commission
b. Education and Outreach. To to have secured substantial reductions recognized that excessive lifting and
provide a forum to discuss ergonomic in chronic MSDs from adherence to the excessive repetitions were recognized
programs and to augment information in principles in the document (Ex. 30– ergonomic hazards that had caused and
the literature with the experience of 3375, p.1.). were likely to cause serious physical
companies of different sizes and from a 2. Ergonomics Best Practices harm to employees whose work tasks
variety of industries, OSHA and NIOSH Conferences required such activity. The Commission
sponsored the first in a series of specifically noted that carpal tunnel
conferences that brought industry, labor, During the period from Sept. 17, 1997 syndrome and other soft tissue injuries
researchers, and consultants together to through Sept. 29, 1999, OSHA and its found at the cited plant were caused by
discuss what works in reducing MSDs. Regional Education Centers co- work tasks; the Commission relied
The 1997 OSHA and NIOSH conference sponsored 11 Ergonomics Best Practices principally on direct medical evidence,
was followed by 11 more regional Conferences. These Conferences were expert medical opinion, the incidence of
conferences across the country. OSHA designed to provide good examples of injury, and the epidemiological studies
and NIOSH held the second national practical and inexpensive ergonomics and testimony in the record in reaching
conference on ergonomics in March of interventions implemented by local this finding. The Commission also
1999. More than 200 presentations were companies. The concept was that if agreed that an employer could be
given at the conferences on how OSHA and its Regional partners could required to undertake a process-based,
companies have successfully reduced initiate the development of a network of incremental approach to abating
MSDs. Presentations were made by local employers, contractors, and ergonomic hazards. The citations
personnel from large and small educators to provide practical relating to the excessive lifting hazard
companies in many different industries. information to solve ergonomics were affirmed by the Commission, while
Other examples of successful problems, it would be assisting those relating to the excessive
ergonomics programs have come from employers in providing a workplace for repetitions were vacated based on a
OSHA’s Voluntary Protection Program employees that would be ‘‘free of finding that the Secretary had failed to
(VPP). The VPP program was recognized safety and health hazards.’’ prove feasible means of abatement in
established by OSHA to recognize To date, attendance has exceeded 2,400 addition to those found to have been
employers whose organizations have participants, including employers, undertaken by the company.
exemplary workplace safety health contractors, and employees. Finally, In the second general duty clause case
programs. Several sites that have been OSHA has made hundreds of outreach litigated by the Commission, Beverly
accepted into VPP have excellent presentations to labor, trade Enterprises, the Commission held that
ergonomics programs. associations, large and small businesses, the company’s practices for lifting
In addition to OSHA’s enforcement and professional organizations during patients in its nursing homes exposed
efforts, the Agency’s Ergonomics the development of the proposed rule. its nursing assistants to a serious
Program Management Guidelines for 3. Enforcement recognized hazard. Beverly’s nursing
Meatpacking Plants (‘‘Guidelines’’) (Ex. assistants suffered a disproportionate
2–13) are viewed by many as essential In the absence of a federal OSHA number of cases of lower back pain,
to the implementation of successful ergonomics standard, OSHA has which was often so severe that the
workplace programs addressing addressed ergonomics in the workplace employee would be off work for long
ergonomic hazards. For example, in under the authority of section 5(a)(1) of periods of time, in some cases six
contrasting OSHA’s proposal to the the OSHAct. This section is referred to months to over a year. The Commission
Guidelines, IBP Inc.’s Bob Wing as the General Duty Clause and requires found that manual lifting of nursing
acknowledged that the Guidelines had employers to provide work and a work home residents is a known and
been successful (Ex. 30–4046, p.1). environment free from recognized recognized risk factor for lower back
Similarly, the American Meat Institute hazards that are causing or are likely to pain and that the company recognized
(‘‘AMI’’), the main representative for the cause death or serious physical harm. the hazard.

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68268 Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations

When serious physical harm cannot in each area office. These coordinators Ergonomic settlement agreements and
be documented in the work meet on a monthly basis to discuss corporate-wide settlement agreements
environment but hazards have been recent inspections, case developments, (CWSAs) * * * demonstrate industry
identified by OSHA, compliance officers and scientific literature on ergonomics; recognition of the existence of MSD
both discuss the hazards with the to share knowledge of ergonomic hazards and the elements of a program
employer during the closing conference solutions; and to ensure that to prevent worker injuries arising from
of an inspection and write a letter to the enforcement resources are provided to exposure to these hazards’’ (Ex. 32–210–
employer. These letters are called compliance staff for enforcement. A PhD 2, p. 5). The UFCW confirmed the
‘‘Ergonomic Hazard Alert Letters.’’ From level, professionally certified efficacy of these agreements and
fiscal year 1997 through October 3, ergonomist serves as the National resulting programs through a number of
2000, approximately 498 such letters Ergonomics Enforcement Coordinator in examples. One was that of IBP’s Dakota
have been sent to public and private OSHA’s Directorate of Compliance City meatpacking plant that
sector employers under Section 20 of Programs. implemented a comprehensive program
the OSH Act. These letters involve no as a result of citations and subsequent
4. Corporate-Wide Settlement
penalty and are strictly consultative in settlement agreement. Cost savings
Agreements
nature; they reflect OSHA’s attributed to the program ‘‘* * * were
responsibility to provide consultation Among the companies that have been realized in the following areas:
on ergonomics to employers. Ergonomic cited for MSD hazards, 13 companies [employee] turnover was down
Hazard Alert Letters have been sent to covering 198 facilities agreed to enter significantly * * *; [MSD] incidence
employers in approximately 50% of into corporate-wide settlement dropped dramatically; surgeries fell;
OSHA’s ergonomic inspections. agreements with OSHA. These [and] workers’ compensation costs were
Since ergonomic solutions vary from agreements were primarily in the meat reduced significantly’’ (id. at 9).
one industry to another, OSHA has processing and auto assembly
provided both general and industry- industries, but there also were C. Summary
specific training to its compliance agreements with telecommunications, As this review of OSHA’s activities in
officers. Currently, the OSHA Training textile, grocery warehousing, and paper the last 20 years shows, the Agency has
Institute (OTI) in Des Plaines, IL, offers companies. As part of these settlement considerable experience in addressing
three main ergonomic courses to OSHA agreements, the companies agreed to ergonomics issues. OSHA also has used
compliance staff: Principles of develop ergonomics programs based on all of the tools authorized by the Act—
Ergonomics Applied to Work-Related OSHA’s Meatpacking Guidelines (Ex. 2– enforcement, consultation, training and
Musculoskeletal and Nerve Disorders 13) and to submit information on the education, compliance assistance, the
(#225); Ergonomics Compliance (#325), progress of their programs. Voluntary Protection Programs, and the
an advanced ergonomics course; and OSHA held a workshop in March issuance of voluntary guidelines—to
Nursing Home Enforcement Training 1999, in which 10 companies described encourage employers to address
(#840). A fourth course, Healthcare their experience under their settlement musculoskeletal disorders, the single
(#336), has been in development and agreement and with their ergonomics largest occupational safety and health
will be piloted on November 14, 2000 programs. All the companies that problem in the United States today.
through November 17, 2000. That reported results to OSHA showed a These efforts, and the voluntary efforts
course will be designed to help OSHA substantially lower severity rate for of employers and employees, have led
compliance officers, as well as MSDs since implementing their to the recent 5-year decline in the
employers, to identify ergonomic and programs (Ex. 26–1420). In addition, number of reported lost workday
other hazards within healthcare most companies reported lower ergonomics injuries. However, in 1997,
facilities, with a specific emphasis on workers’ compensation costs, as well as there were still more than 626,000 lost
hospitals. Over 600 OSHA compliance higher productivity and product quality. workday MSD injuries and illnesses
staff members have been trained in A report from the March 1999 workshop reported.
these courses within the past three years on corporate-wide settlement Promulgation of an ergonomics
alone. The courses typically cover three agreements summarizing the results program standard will add the only tool
weeks of material. achieved by the 13 companies involved the Agency has so far not deployed
Currently, the Principles of has been placed in the docket (Ex. 26– against this hazard—a mandatory
Ergonomics Applied to Work-Related 1420). Only 5 of the 13 companies standard—to these other OSHA and
Musculoskeletal and Nerve Disorders consistently reported the number of employer-driven initiatives. Over the
course also is open to the public MSD cases or MSD case rates. All five first 10 years of the standard’s
through OTI’s 12 Regional Education companies that reported data on MSD- implementation, OSHA predicts that
Centers throughout the United States. related lost workday rates showed a more than 3 million lost workday
Since that course has been available significant decline in the number of lost musculoskeletal disorders will be
nationwide, public interest has been workdays. None of the companies that prevented in general industry.
high, and the Education Centers have reported severity statistics showed an Ergonomics programs can lead directly
been scheduling courses on a regular increase in lost workdays as a result of to improved product quality by
basis to meet the constant demand. the ergonomics program. reducing errors and rejection rates. In an
Although the new Healthcare Course is Similarly, the success of OSHA OSHA survey of more than 3,000
available currently only to OSHA enforcement coupled with settlements employers, 17 percent with ergonomics
compliance officers, after the pilot requiring comprehensive ergonomics programs reported that their programs
period ends it will be open to the public programs was confirmed by the United had improved product quality. In
on a limited basis. Food and Commercial Workers addition, a large number of case studies
In addition to education and training International Union. The union reported in the literature describe
opportunities, OSHA has appointed one recognized that ‘‘* * * [t]he majority of quality improvements. Thus, in addition
Regional Ergonomics Coordinator in our successful programs in the to better safety and health for workers,
each of OSHA’s 10 regional offices, and meatpacking and poultry industries the standard will save employers
one Area Office Ergonomics Coordinator were propelled by OSHA enforcement. money, improve product quality, and

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reduce employee turnover and working lifetime as clearly representing 452 U.S. at 530 n. 55; Lead I, 647 F.2d
absenteeism. a significant risk. See Benzene, 448 U.S. at 1272; Lead II, 939 F.2d at 980.
at 646; UAW v. Pendergrass, 878 F.2d A standard is cost effective if the
Section III. Legal Authority
389, 393 (D.C. Cir. 1989) protective measures it requires are the
A. General Criteria for OSH Act (Formaldehyde); Building & Constr. least costly of the available alternatives
Standards Trades Dep’t v. Brock, 838 F.2d 1258, that achieve the same level of
The purpose of the Occupational 1264 (D.C. Cir. 1988) (Asbestos). But protection. Cotton Dust, 453 U.S. at 514
Safety and Health Act (‘‘OSH Act’’) is nonfatal injuries and illnesses are often n. 32; UAW v. OSHA, 37 F.3d 665, 668
‘‘to assure so far as possible every disabling and debilitating, and death is (D.C. Cir. 1994) (Lockout/Tagout II).
working man and woman in the nation clearly not a precondition to a finding Within the framework of these
of significant risk of material principles, OSHA has considerable
safe and healthful working conditions
impairment. See American Textile Mfrs. discretion (‘‘virtually unlimited
and to preserve our human resources.’’
Inst. v. Donovan, 452 U.S. 490, 506 n. discretion,’’ in the words of the Lead I
29 U.S.C. 651(b). To further this goal,
25 (1981) (Cotton Dust) (upholding decision, 647 F.2d at 1230) in choosing
Congress authorized the Secretary of
OSHA’s finding that cotton dust the measures that are reasonably
Labor to promulgate and enforce
exposure at levels that caused chronic necessary or appropriate to reduce
occupational safety and health
and irreversible pulmonary disease significant risk. A standard may address
standards. Section 6(b) of the OSH Act,
presented a significant risk to workers); the hazards associated with an industry
29 U.S.C. 655(b) (authorizing
AFL–CIO v. OSHA, 965 F.2d 962, 975 (e.g., logging, 29 CFR 1910.266), a kind
promulgation of standards pursuant to
(11th Cir. 1992) (upholding OSHA’s of work (e.g., hazardous waste cleanup,
notice and comment); 654(b) (requiring finding that ‘‘there is a level at which
employers to comply with OSH Act 29 CFR 1910.120), a category of
[sensory] irritation becomes so severe equipment (e.g., respirators, 29 CFR
standards). This standard is being that employee health and job
issued pursuant to section 6(b). 1910.134); an environmental area (e.g.,
performance are seriously threatened.’’); confined spaces, 29 CFR 1910.146), a
The OSH Act defines an
Formaldehyde, 878 F.2d at 396–399 lack of information (e.g., hazard
‘‘occupational safety and health (upholding OSHA’s finding that
standard’’ as ‘‘a standard which requires communication, 29 CFR 1910.1200), a
exposure limit of 1 ppm would
conditions, or the adoption or use of one class of harmful agents (e.g., bloodborne
eliminate significant risk of sensory
or more practices, means, methods, pathogens, 29 CFR 1910.1030), or may
irritation due to formaldehyde
operations, or processes, reasonably require general measures reasonably
exposure); United Steelworkers v.
necessary or appropriate to provide safe necessary and appropriate for safety
Marshall, 647 F.2d 1189, 1245–51 (D.C.
or healthful employment and places of (e.g., safety and health programs for
Cir. 1980), cert. denied, 453 U.S. 913
employment.’’ Section 3(8) of the Act, construction, 29 CFR 1926.20(b)).
(1981) (Lead I) (upholding OSHA’s
29 U.S.C. 652(8). Depending on the nature of the safety
determination that it was appropriate
A standard is ‘‘reasonably necessary and health issues, some standards
and necessary to lower lead exposures
or appropriate’’ within the meaning of require highly specific control
to reduce cases in which workers
section 3(8) if it (1) substantially experience subclinical effects of lead measures. E.g., 29 CFR 1926.652
reduces or eliminates a significant risk exposure because such subclinical (excavations). Others require the
of material impairment to worker effects are precursors of serious, lead- employer to conduct a hazard
health, safety, or functional capacity; (2) related disease); Forging Indus. Ass’n v. assessment and establish measures
is technologically and economically Secretary of Labor, 773 F.2d 1436, meant to address the problems found.
feasible to implement; (3) is cost 1444–46 (4th Cir. 1985) (en banc) E.g., 29 CFR 1910.119 (process safety
effective; (4) is consistent with prior (Noise) (upholding OSHA’s significant management). A typical standard for a
agency action or supported by a risk finding that a substantial percentage toxic chemical will contain permissible
reasoned justification for departing from of workers exposed to existing exposure limits, a control hierarchy for
prior agency action; (5) is supported by workplace noise levels would suffer reaching those limits, and provisions for
substantial evidence; and (6) is at least material noise-induced hearing loss). assessing exposure, medical
as protective as any applicable national See also American Dental Ass’n v. examinations, medical removal, and
consensus standard. 58 FR 16612, 16614 Martin, 984 F.2d 823, 826 (7th Cir.), training. E.g., 29 CFR 1910.1025 (lead).
(March 30, 1993). To fulfill the cert. denied, 510 U.S. 859 (1993) Some toxic chemical standards also
congressional purpose underlying the (Bloodborne Pathogens) (noting that, in mandate specific work practices that
Act, all OSH Act standards must be addition to causing death, AIDS and must be used to control exposures. E.g.,
highly protective. Id. at 16614–15. Hepatitis B cause protracted pain and 29 CFR 1910.1029 (coke oven
OSHA’s determination that a disability). emissions); 29 CFR 1926.1101
particular level of risk is ‘‘significant’’ is A standard is technologically feasible (asbestos). Vaccination against Hepatitis
based largely on policy considerations. if the protective measures it requires B is one of the protective measures
See Industrial Union Dep’t, AFL–CIO v. already exist, can be brought into required by the bloodborne pathogens
Marshall, 448 U.S. 607, 656 n. 62 (1980) existence with available technology, or standard, 29 CFR 1910.1030. Medical
(Benzene). The factors that enter into can be created with technology that can removal protection benefits have been
such a determination include the reasonably be expected to be developed. mandated when they are needed to
seriousness of the injuries or illnesses a See Cotton Dust, 452 U.S. at 513; Lead encourage employees to participate in
standard will prevent, the likelihood I, 647 F.2d at 1272; American Iron & medical surveillance. 29 CFR 1910.1025
that a particular employee will contract Steel Inst. v. OSHA, 939 F.2d 975, 980 (lead); 29 CFR 1910.1027 (cadmium); 29
such an injury or illness, and the total (D.C. Cir. 1991) (Lead II). CFR 1910.1048 (formaldehyde); 29 CFR
number of employees affected. Where A standard is economically feasible if 1910.1052 (methylene chloride). Job
the standard seeks to prevent fatal industry can absorb or pass on the costs hazard analysis and employee training
illnesses and injuries, OSHA has of compliance without threatening the are cornerstones of some OSHA
generally considered an excess risk of 1 industry’s long-term profitability or standards. E.g., 29 CFR 1910.147
death per 1000 workers over a 45-year competitive structure. See Cotton Dust, (lockout/tagout).

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68270 Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations

Section 6(b)(7) of the Act, 29 U.S.C. intended to require OSHA to take into Coalition on Ergonomics); Ex. 32–206–
665(b)(7), requires standards to include account the potential that an employee 1 at p. 32 (American Iron & Steel
provisions warning employees of may be exposed to the hazard for his Institute); Ex. 22–337–1 at pp. 3–7
hazards, the means needed to protect entire working lifetime ‘‘so that we can (Integrated Waste Service Association);
themselves against those hazards, and, get at something which might not be Ex. 30–1722 at pp. 33–35 (Chamber of
where appropriate, medical toxic now, if he works in it a very short Commerce). For a variety of reasons,
examinations or tests to determine time, but if he works in it the rest of his OSHA concludes that the standard is
whether the health of employees has life it might be very dangerous.’’ not subject to section 6(b)(5).
been adversely affected: (Remarks of Senator Dominick in First, the language of the statute itself
Any standard promulgated under this colloquy with Senator Williams, Leg. suggests that this rule is not governed by
subsection shall prescribe the use of labels or Hist. at 503). section 6(b)(5). That provision applies to
other appropriate forms of warning as are Section 6(b)(5) directs OSHA to set ‘‘toxic materials or harmful physical
necessary to insure that employees are the standard which will, to the extent agents.’’ The ‘‘toxic materials’’ to which
apprised of all hazards to which they are feasible, protect employees from section 6(b)(5) refers include chemicals
exposed, relevant symptoms and appropriate material impairment to their health even that are harmful if breathed and/or
emergency treatment, and proper conditions if they are exposed regularly to the toxic ingested, such as asbestos, lead, and
and precautions of safe use or exposure. chemical or harmful physical agent for mercury. S. Rep. No. 91–1282, 91st
Where appropriate, such standard shall also
prescribe suitable protective equipment and
their entire working life. Section 6(b)(5) Cong., 2d Sess. at 2, reprinted in
control or technological procedures to be thus requires that any standard Committee Print, Legislative History of
used in connection with such hazards and governed by that section must reduce the Occupational Safety and Health Act
shall provide for monitoring or measuring significant risk to the lowest feasible of 1970, (Leg. Hist.) at 142. Ergonomic
employee exposure at such locations, and in level. See Cotton Dust, 452 U.S. at 509. risk factors are clearly not a toxic
such manner as may be necessary for the Safety standards, which are not material. The ‘‘harmful physical agents’’
protection of employees. In addition, where governed by section 6(b)(5), need not to which Congress referred include laser
appropriate, any such standard shall reduce significant risk to the lowest radiation, ultrasonic energy, ionizing
prescribe the type and frequency of medical
examinations or other tests which shall be
feasible level but must provide a high radiation, noise, and vibration. Id. at
made available, by the employer or at his degree of employee protection to be 142–43. Of the harmful physical agents
cost, to employees exposed to such hazards consistent with the purpose of the Act. mentioned by Congress, only vibration
in order to most effectively determine 58 FR at 16614–15. Safety standards is a risk factor addressed by the
whether the health of such employees is may therefore ‘‘deviate only modestly ergonomics standard. The remaining
adversely affected by such exposure. from the stringency required by § 6(b)(5) risk factors addressed by this standard—
for health standards.’’ Lockout/Tagout force, repetition, awkward postures, and
B. Section 6(b)(5) II, 37 F.3d at 669. contact stress—-are fundamentally
Standards dealing with ‘‘toxic The most important consideration in dissimilar from the harmful physical
materials or harmful physical agents’’ construing the scope of section 6(b)(5), agents discussed by Congress in that
must, in addition to meeting the as with any statutory provision, is the they relate to the position, movement,
‘‘reasonably necessary or appropriate’’ language of the statute itself. In many and loading on the tissues of a worker’s
test of section 3(8), conform to section cases, it is obvious whether a hazard is body rather than an external agent
6(b)(5) of the Act, 29 U.S.C. 655(b)(5). a ‘‘toxic material’’ or ‘‘harmful physical acting on the body. See Pulaski v.
That section provides: agent’’ subject to section 6(b)(5). Other California Occupational Safety & Health
hazards are less clear cut. OSHA has Standards Board, 90 Cal. Rptr. 2d 54, 66
The Secretary, in promulgating standards
dealing with toxic materials or harmful
looked to several factors in determining (Cal. Ct. App. 1999) (‘‘a repetitive
physical agents under this subsection, shall whether a standard fits within section motion injury is neither a ‘toxic
set the standard which most adequately 6(b)(5). These include: Is the hazard material’ nor a ‘harmful physical
assures, to the extent feasible, on the basis of likely to cause harm promptly or after agent.’ ’’). Therefore, the language and
the best available evidence, that no employee a short period of exposure, or does harm legislative history of the Act indicate
will suffer material impairment of health or occur only after a lengthy period of that the majority of the risk factors
functional capacity even if such employee exposure? Is the connection between addressed by this rule are not the type
has regular exposure to the hazard dealt with exposure and harm apparent, or is it of hazards Congress intended to regulate
by such standard for the period of his hidden and subtle? Is the harm
working life.
under section 6(b)(5).
coincident with exposure, or is there a In addition, the hazards addressed by
The standards that are governed by latency period with harm frequently the rule differ from those addressed by
section 6(b)(5) are sometimes referred to manifesting itself long after exposure section 6(b)(5). A lengthy period of
as ‘‘health’’ standards, while non-6(b)(5) has ended? See Benzene, 448 U.S. at 649 exposure—years, decades, or a working
standards are often referred to as n. 54; UAW v. OSHA, 938 F.2d 1310, lifetime—is not necessary to create a
‘‘safety’’ standards. In enacting section 1313 (D.C. Cir. 1991) (Lockout/Tagout I); substantial risk of MSDs. As discussed
6(b)(5), Congress recognized ‘‘that there National Grain & Feed Ass’n v. OSHA, below, both acute and chronic
were special problems in regulating 866 F.2d 717, 733 (5th Cir. 1989) (Grain exposures to ergonomic risk factors can
health risks as opposed to safety risks. Dust). result in MSDs. And, although MSDs
In the latter case, the risks are generally Because the hazardous exposures frequently develop gradually as a result
immediate or obvious, while in the regulated by this standard cannot be of exposure over time, the period of
former, the risks may not be evident neatly categorized by the factors time necessary can be days, weeks, or
until a worker has been exposed for long discussed above, whether this standard months, rather than the working lifetime
periods of time to particular substances. is governed by section 6(b)(5) poses referred to in the text of section 6(b)(5).
It was to ensure that the Secretary took difficult legal issues. Some commenters Moreover, MSDs are unlike illnesses,
account of these long-term risks that supported characterizing the rule as a such as cancer, damage to the
Congress enacted § 6(b)(5).’’ Benzene, section 6(b)(5) rule (Ex. 32–339–1 at p. reproductive system, and kidney failure,
448 U.S. at 649 n. 54. According to its 15 (AFL–CIO), while others opposed it. that can result from exposure to toxic
legislative sponsor, section 6(b)(5) is Ex. 32–368–1 at p. 41–44 (National chemicals and appear long after the

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exposure ceased even though the ergonomics standard is more like a musculoskeletal disorders other than
exposure caused no overt symptoms typical safety standard than a health those caused by accidents and was
while it was occurring. An employee standard because many of the costs of intended to include, e.g., back injuries
who is beginning to suffer a work- such injuries in terms of workers’ caused by lifting (for employees for
related MSD will frequently recover compensation claims and lost whom manual handling is a core job
fully after the exposure to ergonomic productivity are borne by employers as element) without regard to whether the
risk factors ceases. For that reason, the MSDs occur. Thus, the ergonomics injury resulted from a particular
standard requires that an employee who standard does not implicate section exertion or the cumulative effect of
develops a work-related MSD be 6(b)(5)’s concern about hazardous numerous lifting exertions. As OSHA
restricted from participating in work exposures that lead to illnesses after elsewhere explained:
activities or removed from exposure that lengthy exposure and therefore require The pathogenesis of work-related MSDs
will worsen the condition. special attention because employers can can refer to either single, point-in-time
The ability of employers and defer or avoid the costs associated with injuries, associated with work tasks that
employees to generally recognize a such illnesses. result in activities in which tissue tolerance
cause-and-effect relationship between Finally, the type of information on is acutely exceeded, or circumstances in
ergonomic risk factors and many MSDs which this standard is based is far more which the performance of specific work tasks
also indicates that this final standard is or combinations in which the performance of
characteristic of a safety standard than specific work tasks or combinations of tasks
a non-6(b)(5) rule. In recent years, as a section 6(b)(5) health standard. The over a prolonged period of time result in
both employers and employees have risk assessment for this standard, as for small and repeated tissue damage.
become more aware of the connection a typical safety standard, is based on the
between workplace risk factors and 64 FR at 65900.
number of injuries that have resulted Moreover, the BLS injury and illness
MSDs (see Tr. 5817–19), employers have from past exposures to the hazard being
reported over 600,000 work-related data on which OSHA based its proposed
regulated and the percentage of those risk assessment (see 64 FR at 65931,
MSDs that result in lost workdays each injuries that are preventable. By
year (64 FR at 65931). Employees Table VI–3) indicates that many of the
contrast, for a typical health standard, injuries considered MSDs resulted from
themselves are often able to recognize the risk assessment is based on
when MSDs result from exposure to risk short-term rather than chronic
mathematical projections to determine exposures. OSHA has reexamined its
factors in the workplace. As OSHA the significance of the risk at various
noted in the proposal: ‘‘Many employers reasoning in light of these comments
levels of exposure. See, e.g., and agrees that the acute-chronic
have told OSHA that talking with Formaldehyde, 878 F.2d at 392–96
employees is a quick and easy way to distinction it drew in the proposal is
(discussing OSHA’s quantitative risk inappropriate when describing MSDs
find out what kind of problems are in assessment for formaldehyde exposure).
the job. They said that talking with and therefore does not afford a proper
In the proposal, OSHA recognized that basis for classifying this rule as a section
employees is often the best way to the risk assessment methodology for this
identify the causes of the problem and 6(b)(5) standard.
standard was similar to that for a safety As discussed in more detail in the risk
to identify the most cost-effective standard rather than a typical health
solutions to it.’’ 64 FR at 65805 (citing assessment section, the injury and
standard: illness data reported by BLS categorizes
Ex. 26–1370). Testimony at the public
hearing made the same point. Dr. There is no need, in the case of each incident by type of injury or illness
musculoskeletal disorders, for OSHA to and the nature of the exposure event
Suzanne Rodgers, a physiologist with 32
engage in risk modeling, low-dose leading to the injury or illness (BLS
years’ experience in industrial extrapolation, or other techniques of
ergonomics, testified that the companies 1992, Ex. 26–1372). Under the BLS data
projecting theoretical risk to identify the
she had worked with learn about magnitude of the risk confronting workers collection system, employers are
ergonomic problems by having exposed to ergonomic risk factors. The instructed to report musculoskeletal
employees tell them when a problem evidence of significant risk is apparent in the injuries and illnesses under various
exists. (Tr. 2144). Similarly, David annual toll reported by the Bureau of Labor codes, some of which represent
Alexander, a certified professional Statistics, the vast amount of medical and musculoskeletal system and connective
ergonomist with more than 25 years indemnity payments being made to injured tissue diseases and disorders that result
workers and others every year * * * and the from repetitive activity and some of
experience, testified that encouraging lost production to the U.S. economy imposed
employees to report early signs and which represent other types of exposure
by these disorders.
symptoms of developing MSDs was a events. The BLS category that accounts
64 FR at 65979. for most of the reported injuries and
key feature of a successful ergonomics
program. (Tr. 2145–46). In the NPRM, OSHA preliminarily illnesses, 021, includes sprains, strains,
Further, Congress provided for special concluded that the proposed and tears of muscles, joints, tendons,
treatment of health hazards in section ergonomics standard was a section and ligaments. The category is described
6(b)(5) because it recognized that 6(b)(5) standard. The NPRM stated that as representing traumatic injuries,
employers had little incentive to control MSDs are caused by chronic and not by which generally result from a single
exposures to toxic chemicals and short-term exposures. 64 FR at 66057. event or exposure. Ex. 26–1372 (BLS
harmful physical agents when there is a Some commenters contended that this Occupational Injury and Illness
long period between exposure to a statement was inconsistent with Classification Manual).
hazard and the manifestation of an OSHA’s proposed definition of MSD In its preliminary risk assessment, the
illness. ‘‘In such instances a particular and the inclusion of ‘‘traumatic’’ agency closely examined the BLS data,
employer has no economic incentive to injuries in its risk assessment. Ex. 22– excluded from its analysis injuries
invest in current precautions, not even 337–1 at p. 7 (Integrated Waste Service caused by accidents (i.e., slips, trips,
in the reduction of workmen’s Association); Ex. 32–241–4 at pp. 197– falls, and being struck by objects), and
compensation costs, because he seldom 99 (Anheuser-Busch & United Parcel included those codes that
will have to pay for the consequences of Service); Ex. 32–300–1 at pp. 15–16 predominantly represented work-related
his own neglect.’’ Leg. Hist. at 144. (Edison Electric Institute). The proposed MSDs, including 021, that were reported
However, in this respect too, the definition of MSD included under the exposure event categories

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most closely representing ergonomic OSHA does not believe that factor alone contribute to a worker’s hearing loss.
risk factors. 64 FR at 65928. The largest makes this a section 6(b)(5) standard. Nevertheless, OSHA has the authority to
number of these injuries were classified The standard is not a ‘‘vibration’’ regulate harmful noise levels in the
under the exposure category for standard but one that addresses the workplace as long as the workplace
‘‘overexertion,’’ which includes multifactorial causes of MSDs. The risk exposures create a significant risk of
primarily lifting, lowering, pushing, factors that are not ‘‘harmful physical material impairment of health. Forging
pulling, and carrying. 64 FR at 65932. agents’’—force, repetition, awkward Indus. Ass’n v. Secretary of Labor, 773
OSHA has followed this same approach posture, and contact stress—together F.2d 1436, 1442 (4th Cir. 1985) (en
in its final rule and in the supporting contribute substantially more to the vast banc) (Noise).
risk assessment, i.e., excluding majority of MSDs than does vibration. Noise dealt with a challenge to the
musculoskeletal injuries due to Similarly, that a provision in OSHA’s Hearing Conservation Amendment to
accidents but including those resulting standard governing access to employee OSHA’s occupational noise standard.
from ergonomic risk factors. In OSHA’s exposure and medical records (29 CFR That amendment establishes certain
view, when MSDs result from exposure 1910.1020(c)(13)) defines ‘‘toxic requirements that must be met to reduce
to ergonomic risk factors, any substance or harmful physical agent’’ as the incidence of and/or prevent hearing
distinction between acute and chronic including ‘‘repetitive motion’’ does not impairment due to occupational noise
exposures is unimportant. OSHA notes establish that repetitive motion is a exposure. Before issuing the
that the classification of these disorders harmful physical agent within the amendment, OSHA found that 10–15%
as traumatic is in part a convention of meaning of section 6(b)(5). See Ex. 32– of workers exposed to noise levels
the recordkeeping system. OSHA’s 339–1 at p. 15 (AFL–CIO). Whether below the permissible exposure limit
general recordkeeping guidelines for repetitive motion is a harmful physical (PEL) would suffer material hearing
back disorders instruct that because the agent was not central to that impairment. 773 F.2d at 1443. OSHA
specific event causing such a disorder rulemaking, which dealt with the access based this finding on a ‘‘panoply of
cannot always be pinpointed, to keep of employees and OSHA personnel to scientific reports and studies,’’
recordkeeping determinations as simple employee records and did not regulate including studies done by the National
and equitable as possible, all back particular hazards. In that rulemaking, Institute for Occupational Safety and
disorders should be classified as interested parties had no reason to argue Health (NIOSH) and the Environmental
(traumatic) injuries rather than whether a standard that regulates Protection Agency (EPA). Id. OSHA also
(cumulative exposure) illnesses. BLS, repetitive motion is a section 6(b)(5) found that those employees who had
Recordkeeping Guidelines for standard, and OSHA had no occasion to suffered a hearing decrement of 10
Occupational Injuries and Illnesses address that issue. Moreover, the decibels in either ear faced a greater risk
(April 1986), at p. 38. Similarly, OSHA’s records access rule was not issued from continued exposure to high levels
Ergonomics Program Management for under section 6(b)(5) but under OSHA’s of workplace noise than workers whose
Meatpacking Plants states that all back general authority to issue standards hearing was unimpaired. Id. OSHA’s
cases are to be classified as injuries even (section 6(b)) and regulations (section Hearing Conservation Amendment
though some back conditions may be 8(g)). And it was upheld in court as a provided hearing-endangered workers
triggered by an instantaneous event and section 8(g) regulation rather than a with protection in the workplace in
others develop as a result of repeated section 6(b) standard. Louisiana Chem. order to decrease the risk of hearing
Ass’n v. Bingham, 731 F.2d 280 (5th Cir. impairment.
trauma. Ex. 32–210–2–2 at p. 14.
1984), aff’g 550 F. Supp. 1136 (W.D. La. The Forging Industry Association
Moreover, a number of experts testified
1982). Therefore, the fact that the (FIA) argued that ‘‘because hearing loss
in the hearings that a substantial part of may be sustained as a result of activities
records access rule applies to repetitive
the MSD injuries classified under the which take place outside the
motion cannot be regarded as
BLS system as traumatic in fact workplace—such as listening to loud
establishing an OSHA policy that
represent cumulative exposure. (Tr. music, age, or engaging in certain
repetitive motion is a harmful physical
2175–77; 2236–44; 5802–04). In short, recreational activities—OSHA acted
agent for purposes of section 6(b)(5).
even though an MSD may be classified beyond its statutory authority by
as ‘‘traumatic’’ in origin, it will often be C. This Final Rule Does Not Regulate regulating non-occupational conditions
the case that, while the onset of the non-Workplace Activities or causes.’’ Noise, 773 F.2d at 1442. The
injury was sudden, the cause was Some commenters have pointed out court found ‘‘no merit’’ in FIA’s
exposure to ergonomic risk factors over that MSDs can result from personal argument. The court ruled that OSHA
some period of time. However, it is activities as well as from workplace properly relied on ‘‘the extensive and
neither necessary nor meaningful to exposures. Ex. 32–368–1 at p. 40 thorough research of several scientific
limit the standard’s reach to MSDs that (National Coalition on Ergonomics); Ex. institutions in defining the problems
only occur because of exposures that 32–241–4 at p. 49 (Anheuser-Busch & related to industrially-caused hearing
take place over some period of time. The United Parcel Service). They argue that loss in designing its proposal.’’ Id. at
purpose of this standard is to reduce the OSHA is attempting through this rule to 1443. The court also stressed that OSHA
number and severity of MSDs by regulate the nonwork activities that may excluded non-occupational hearing loss
protecting workers against excessive contribute to MSDs and that the rule is from the rule. Id. at 1444 (‘‘To be sure,
exposure to ergonomic risk factors and therefore outside OSHA’s authority. some hearing loss occurs as a part of the
MSD hazards, and for that purpose it is However, the rule regulates only aging process and can vary according to
irrelevant whether those excessive conditions or activities in workplaces, non-occupational noise to which
exposures are ‘‘acute’’ or ‘‘chronic.’’ and OSHA clearly has the authority to employees are exposed. The
On reflection, OSHA has determined issue the rule. amendment, however, is concerned
that other considerations relied on in Many adverse health conditions can with occupational noise—a hazard of
the NPRM are likewise unpersuasive. be caused or aggravated by both work the workplace.’’). The court ruled that
Although the standard protects against and nonwork exposures. For example, the fact that non-occupational hazards
one risk factor—vibration—that exposures to high noise levels both may contribute to hearing loss does not
qualifies as a ‘‘harmful physical agent,’’ inside and outside the workplace can mean that OSHA should refrain from

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Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations 68273

regulating workplace conditions that are facto’’ preclude the possibility of ergonomics program standard. OSHA
shown to cause such loss: enforcement under section 5(a)(1). Id. did not propose a purpose paragraph,
The amendment provides that non- The Commission also analyzed a and thus no comments on this topic
occupationally caused hearing loss be significant amount of evidence that were received. OSHA has decided to
excluded from its regulation. See 29 CFR showed a causal relationship between include a purpose statement in the final
1910.95(g)(8)(ii), 1910.95(g)(10)(ii) (1984). MSDs and workplace hazards, including rule to clearly indicate the goal of the
Assuming, however, that some loss caused by testimony from medical personnel who standard and to differentiate between
aging or smaller amounts of noise sustained examined injured workers, those musculoskeletal disorders (MSDs)
for shorter periods also aggravates the epidemiological data, and injury that are covered by the standard and
hearing loss incurred by an individual
employed in a high noise-producing
incidence at a Pepperidge Farm plant. those that are not. It clarifies that the
industry, that is scant reason to characterize Id. at 2020–26. The Commission standard’s purpose is to reduce the
the primary risk factor as non-occupational. ultimately found that there was a causal number and severity of MSDs that are
Breathing automobile exhaust and general air connection: caused by occupational exposure to
pollution, for example, is damaging to lungs, We therefore conclude that the Secretary ergonomic risk factors (also called
whether healthy or not. The presence of has established on this record a causal ‘‘ergonomic stressors’’) on the job.
unhealthy lungs in the workplace, however, connection between [MSDs] affecting the As discussed in more detail below,
hardly justifies failure to regulate noxious employees at Downington [a Pepperidge the disorders addressed by this rule
workplace fumes. Nor would there be logic Farm plant] and their work on the biscuit include those of the muscles, nerves,
to characterizing regulation of the fumes as lines. In doing so, we are mindful that many
non-occupational because the condition
tendons, ligaments, joints, cartilage,
of these injuries may have had more than one blood vessels, and spinal discs
inflicted is aggravated by outside irritants. causal factor and of the experts who contend
occurring in the neck, shoulder,
Noise, 773 F.2d at 1444. that the specific cause of such injuries is,
essentially, unknowable or presently forearm, wrist, hand, abdomen (hernias
Like the Hearing Conservation only), back, knee, ankle, and foot. They
Amendment to the Noise standard, this unknown. As is the case with many
occupational ills with multiple possible include conditions classified by the
final ergonomics rule regulates causes, employees are more or less Bureau of Labor Statistics in its Annual
workplace hazards. As discussed in the susceptible to injury on the job because of the Survey as illnesses (e.g., carpal tunnel
health effects section of this preamble, individual attributes and backgrounds they syndrome) and as injuries (e.g., low
this rule addresses only exposure to bring to the workplace. As with these other back pain), because MSDs include many
ergonomic risk factors that occurs in the ills, the Secretary is not thus foreclosed from
different disorders, affect many tissues
workplace. The MSDs that trigger action attempting to eliminate or significantly
reduce the hazard by regulating what is and areas of the body, and may be
under the rule must be work-related and described by a wide range of medical
they must have occurred in workers shown to be a substantial contributing factor
to the worker injuries. diagnoses.
whose jobs place them at a heightened The terms used to describe this group
risk of incurring a MSD because they are 17 O.S.H. Cas. (BNA) at 2029.
of conditions have varied over time and
exposed to risk factors at the levels in The Commission’s holding in geographic region. For example, in
the Basic Screening Tool. Pepperidge Farm that the susceptibility Australia, MSDs are often called
A decision by the Occupational Safety of some employees to a particular ‘‘Occupational Overuse Syndrome’’
and Health Review Commission ailment does not preclude OSHA from injuries. Other frequently used terms
supports OSHA’s conclusion that the regulating workplace conditions or include ‘‘repetitive stress injuries,’’
Act can properly address work-related practices that cause or contribute to that ‘‘cumulative trauma disorders,’’ and
ergonomic hazards even though type of ailment is supported by other ‘‘soft tissue injuries.’’ In recent years,
employees can also be exposed to such cases. In the asbestos rulemaking, OSHA however, the term ‘‘musculoskeletal
hazards outside the workplace. In based its significant risk determination, disorders’’ has gained widespread
Pepperidge Farm, Inc., 17 O.S.H. Cas. in part, on epidemiologic studies that acceptance by the scientific community,
(BNA) 1993 (1997), the Commission included workers who smoked and were and OSHA uses this term, or its
held that where work was shown to be therefore significantly more likely to abbreviation, MSD, throughout the
a substantial contributing factor to contract cancer than those who did not. regulatory text and supporting analyses.
MSDs, the fact that non-work factors Asbestos, 838 F.2d at 1265. The court Paragraph (a) makes explicit that
may also play a role did not preclude held that OSHA was justified in doing OSHA’s ergonomics program standard
OSHA from requiring the employer to so. Smokers were not, the court said, does not apply to injuries or illnesses
abate the workplace hazards. In that ‘‘so far beyond the pale as to require caused by motor vehicle accidents,
case, Pepperidge Farm contested a OSHA to ignore them in computing the slips, trips, falls, or similar accidents
number of citations for ergonomic risks of asbestos.’’ Id. (emphasis added). that result in traumatic injuries on the
violations that OSHA had issued under See also Reich v. Arcadian Corp., 110 job. By ‘‘other similar accidents,’’ OSHA
section 5(a)(1) of the Act. In order to F.3d 1192, 1198 (5th Cir. 1997) means, for example, caught in or caught
prove a section 5(a)(1) violation, OSHA (Congress intended Act’s general duty between injuries or other accidents
had to show that a condition or activity clause to protect all employees, resulting in blunt trauma. (Throughout
in the employer’s workplace presents a including those who are especially this notice, OSHA uses the terms ‘‘work-
‘‘hazard to employees.’’ 17 O.S.H. Cas. susceptible). Thus, workers who engage related,’’ ‘‘caused by,’’ ‘‘musculoskeletal
(BNA) at 2009 (emphasis added). The in activities outside the workplace that disorders,’’ ‘‘risk factors,’’ and
company argued that section 5(a)(1) expose them to ergonomic risk do not ‘‘exposure.’’ For a detailed discussion of
should not apply to MSD workplace thereby forfeit on-the-job protection these terms, see the relevant sections of
hazards because, among other things, against exposure to excessive ergonomic the Health Effects (Section V of the
‘‘non-workplace factors may cause or risk factors. preamble), Summary and Explanation
contribute to the illnesses at issue and IV. Summary and Explanation (Section XI), and Legal Authority
that individuals differ in their (Section III) sections of this preamble.)
susceptibility to potential causal (a) What Is the Purpose of This Rule? As stated in paragraph (a), the
factors.’’ Id. at 2013. The Commission The first paragraph of the final purpose of this standard is to reduce the
held that such factors should not ‘‘ipso standard sets out the purpose of this number and severity of MSDs caused by

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68274 Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations

workplace exposure to ergonomic risk issued today is thus not a ‘‘zero-risk’’ requirement to implement an entire
factors, such as force, awkward standard. It recognizes that substantially program when an MSD incident occurs
postures, or repetition, either alone or in reducing the number and severity of in a job that meets the Action Trigger is
combination. The standard requires these disorders is possible in most, if more practical administratively if
employers to implement an ergonomics not all workplaces, although many employers are required to take this
program to address risk factors in jobs establishments may not be able to broad approach.
that pose an MSD hazard to the eliminate MSDs completely. (For a Moreover, the standard does not
employees in those jobs. As discussed discussion of OSHA’s analysis of the apply to jobs or operations that are
in detail in Section VI of the preamble, standard’s projected effectiveness, see normally covered exclusively by the
Risk Assessment, ergonomics programs the Risk Assessment section of the construction, agriculture and maritime
have been shown to reduce the number preamble (Section VI) and Chapter IV, standards, even if those operations are
and severity of MSDs in old and new Benefits, of the Final Economic and performed in a general industry
facilities, in large and small workplaces, Regulatory Flexibility Analysis.) establishment or for a general industry
and in a wide variety of jobs ranging employer. Thus a construction crew
from computer use to solid waste Paragraph (b)—Does This Standard
Apply To Me? (Scope and Application) whose sole job is to build in-plant
handling, from assembly line operations structures in a steel mill is engaged in
to patient handling, and from beverage Discussion of the scope and construction and is not covered by this
distribution to meat processing. application of the final rule is divided standard, even though the steel mill
Reducing the number and severity of into three parts. Part I discusses which itself is a general industry operation.
MSDs in the workplace is the goal of employers and operations the standard This is consistent with the operation of
successful ergonomics programs covers. Part II explains the exclusions other OSHA standards.
everywhere. As the more detailed from coverage of the rule and OSHA’s Although the proposal also applied
discussions in this preamble and in the authority to limit the standard’s only in general industry, its scope
Agency’s economic analysis will show, coverage to general industry. Part III provision stated that coverage was
this goal cannot be achieved overnight, addresses other scope and application further limited to general industry
although positive results are generally issues raised during the rulemaking. manufacturing jobs, manual handling
observed soon after program
Part I—Scope and Application of jobs, and jobs with MSDs.
implementation. One effect of a new
Standard to General Industry Manufacturing jobs were defined as
ergonomics program, which at first
Employers ‘‘production jobs’’ in which the
glance may not appear to be a positive
activities of producing a product made
one, is that the number of MSDs and A. Scope of Coverage up a ‘‘significant amount’’ of the
MSD signs and symptoms reported in
Paragraph (b) states that the standard employee’s worktime. Manual handling
the first months after the
applies to general industry employment, jobs were those in which the employee
implementation of the program may
which means all employment except for performed ‘‘forceful’’ lifting (i.e., lifting
actually increase. This initial increase in
the number of MSD reports reflects the railroads and employment covered by or lowering, pushing or pulling, or
heightened awareness of ergonomics, OSHA’s agriculture, construction, and carrying) and the forceful lifting tasks
the importance of early reporting, and maritime standards. Unlike other OSHA were a ‘‘core element’’ of the employee’s
the value of conservative treatment that general industry standards, however, job. Jobs with MSDs were defined as
routinely accompanies program this standard does not cover general jobs in which an OSHA recordable MSD
implementation. In most workplaces, industry work performed incidentally to occurred in a job in which the physical
this increase is short-lived, generally or in support of construction, maritime, work activities and conditions were
lasting less than a year and almost never or agricultural employment or railroad reasonably likely to cause that type of
more than two years. The severity of the operations. This means that functions MSD, and the activities were a core
MSDs reported, however, generally such as office work, management and element of the job or accounted for a
decreases in the first few months after support services are not covered by the significant amount of the employee’s
program initiation and declines steadily standard, and that, for example, a worktime (64 FR 65779–82).
thereafter, before leveling off as the construction company office or a marine The proposal explained that OSHA
program matures. Thus, OSHA intends terminal cafeteria would not be covered. was focusing on general industry in this
and expects the final rule to reduce the However, a construction company real first ergonomics rulemaking because the
number and severity of MSDs in the estate division engaged in selling the problems in general industry are
workplaces covered by the standard finished properties would not be particularly severe and the solutions are
over the first few years after the performing functions directly in support well-understood (64 FR 65776). Some
standard is fully in effect; OSHA is of the construction operations and commenters agreed with the proposed
aware that the standard’s purpose will would be within the scope of the rule’s scope, and its emphasis on
not be fully achieved in the short run. standard. manufacturing and manual handling
When ergonomic programs mature, they The final rule thus imposes coverage jobs (Exs. 31–3, 31–71, 31–180, 31–252,
continue to demonstrate ongoing based on the business category in which 31–284, 32–300). More, however, argued
reductions in the number of MSDs the employer belongs, e.g., general either that the rule should not exempt
caused by workplace risk factors and in industry as opposed to construction. construction, maritime and agricultural
the severity of those MSDs that do This marks a departure from the employment (Exs. 30–400, 30–1294, 31–
occur. Agency’s past practice of imposing 14, 31–105, 31-143, 31–156, 31–345, 31–
The standard’s purpose paragraph coverage based solely on the job that an 352, 32–198–4, 32–210, 32–359–1, 32–
also reflects OSHA’s awareness that employee is performing. The approach 461–1, 30–1294, 500–218), or that the
work-related MSDs will continue to adopted in this standard, i.e., basing rule should exempt even more
occur in many workplaces even after coverage on the industry classification industries or jobs (Exs. 30–372, 30–494,
implementation of an effective of the employer, is appropriate here 1–248, 31–280, 32–77-2, 32–78, 32–234,
ergonomics program that complies fully because of the unique nature of 30–2208, 30–3167, 32–77–2, 601–X–1,
with this final rule. The standard being ergonomic problems and solutions. The Tr. 3126).

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Many of the commenters who range of problems in diverse jobs and At the rulemaking hearing, many
believed that the scope of the proposed industries. Even in those situations employees testified that they had
rule was too broad argued that it where significant ergonomic hazards suffered serious work-related MSDs.
incorporated a ‘‘one size fits all’’ exist, the commonality of the response Occupations in which these employees
approach that was inappropriate for the required by this standard is to were working when they became
wide variety of operations found in implement an ergonomics program. The injured include:
general industry (Ex. 30–494, see also specific focus of that program will be • Nurse
Exs. 30–380, 30–372, 30–531, 30–3167, targeted to the particular hazards and • Home health care aide
Tr. 3126, 3332). Some of these conditions at each workplace. The • Nurses’ aide
commenters pointed out that there was control strategies for ergonomic hazards • Package delivery
great variation in MSD rates, prevalence will be targeted even more specifically • Package sorting
of ergonomic risk factors, and levels of to the needs of each workplace. And the • Meatpacking and poultry
exposure to those risk factors across extent of each employer’s compliance processing
general industry (Exs. 30–541, 30–3167). obligation will be determined by the • Office clerical worker
Others pointed out that jobs differed extent of the problem at that employer’s • Internet publishing
greatly within and across industries, workplace. Thus the fact that the rule • Machinists
and claimed that OSHA did not have applies to a variety of hazards at • Sewing machine operator
enough information about effective differing workplaces does not in any • Truck driver
controls in all industries (Exs. 30–425, way mean that the employers in all of • Food warehousing and distribution
30–3167, 32–77, 32–211–1, 32–2208). those workplaces need to take the same • Grocery store cashier
The focus of both these groups of actions. • Physical therapist
comments was that OSHA did not have Work-related MSDs are widespread • Mail carrier
enough knowledge or evidence to find throughout general industry. They occur • Letter sorter
that the same approach to controlling in every single sector within general • Teacher
ergonomic hazards would be industry, according to the Bureau of • Teachers’ aide
appropriate in all of these disparate Labor Statistics (BLS). In 1996, • Auto assembly
circumstances. according to BLS, there was no industry • Molding and casting machine
A number of commenters suggested sector that did not report the occurrence operator
ways to limit the standard’s scope. of at least several hundred work-related • Reporter
Some urged OSHA to focus the rule MSDs, with a large number of industries • Grocery shelf stocker
more narrowly on those jobs or reporting tens of thousands of work- • Sonographer
industries with the highest MSD rates or related MSDs. Moreover, high • Television film editor
those deemed to have high risk potential concentrations of work-related MSDs • Electrical workers
(Exs. 30–13, 30–425, 30–2208, 30–3167, are reported in a wide variety of
(Exs. 30–4200, 32–185–3, 32–210–2, 32–198–
31–248, 31-280, 32–78, 32–234, Tr. occupations that are found throughout 3, 32–311, 500–218, Tr. 4009–10, 4235, 4240,
2729–30). For example, Larry Leahy of general industry establishments. BLS 4234, 6004, 6009, 6319, 6321–22, 6333,
Ruth Constant & Associates, a home data for 1996 show that general industry 7320–21, 7335–37, 7341–42, 17950).
health care service agency, questioned truck drivers, laborers, and janitors,
occupations found widely dispersed Doctors and other health care
why OSHA was covering all of general professionals (HCPs) also testified that
industry when 60 percent of the MSDs throughout general industry sectors,
experienced more than 48,000, 38,000 they had treated employees in many
occurred in industries representing a different jobs and industries for work-
fairly small percentage of the national and 15,000 lost workday (LWD) MSDs,
respectively. (See Section VII (Risk related MSDs (Exs. 37–12, 37–28, Tr.
workforce (Ex. 30–611). Todd 14973, 15045–46, 16819, 16829). Dr.
McCracken, of National Small Business Assessment) of this preamble.)
Evidence submitted by rulemaking Robert Harrison testified that, in his
United, argued: research and practice, he had diagnosed
participants confirms the broad
There is a need to focus on particular types distribution of MSDs and MSD hazards and treated over 1,000 patients with
of jobs . . . There are specific types of jobs throughout general industry. For work-related MSDs from a wide variety
in specific industries where MSDs are much example, the Service Employees of industries and occupations, including
more likely to occur (Tr. 2729–30). (Ex. 37–12):
International Union (SEIU) submitted
Similarly, Organization Resources evidence that union members working • Postal workers
Counselors, Inc. (ORC) recommended in a variety of health care settings (e.g., • Materials handlers
that the rule only cover high risk hospitals, nursing homes, private • Computer operators
occupations or employers whose MSD homes, pharmacies) have suffered MSDs • Grocery checkout clerks
incident rates were above the national (Ex. 32–311–1). These health care • Meat processors
background level (Ex. 32–78; see also workers include registered nurses, • Assemblers
Tr. 10633–35). The Small Business licensed practical nurses, nurses’ aides, • Seamstresses
Administration’s Office of Advocacy orderlies, physical therapists, radiology • Telephone operators
suggested covering only manual technicians, housekeepers (maids and • Pipefitters
handling jobs, which it claimed housemen), laundry workers, laundry • Customer service agents
accounted for 78 percent of all MSDs machine operators, maintenance • Machine operators
(Ex. 601–X–1). workers, kitchen and food preparation • Automotive manufacturing workers
As discussed in detail throughout this workers, central supply workers, and • Aircraft manufacturing workers
preamble, OSHA believes that the janitors and cleaners. In addition, SEIU • Optical scanners
record supports coverage of all of said that other union members such as • Graphic artists
general industry within the overall janitors and cleaners working in a • Restaurant workers
scope of the standard. The final variety of other industries, including • Bakers
standard does not, however, prescribe a hotels/motels, restaurants, offices have • Plumbers
one-size-fits-all solution for a wide also experienced MSDs (Ex. 32–311–1). • Letter sorters

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Dr. Robin Herbert, the medical co- witnesses, including David Alexander • Medical products manufacturing
director of the Mt. Sinai Center for (Ex. 37–7), David Caple (Ex. 37–20), All of this evidence supports OSHA’s
Occupational and Environmental Dennis Mitchell (Ex. 37–11), Maurice decision to provide the protections of
Medicine, testified that she had treated Oxenburgh (Ex. 37–24), Suzanne this standard to all general industry
or supervised the treatment of more Rodgers (Ex. 37–25), and John employees. On the other hand, OSHA
than 2,000 patients with upper Rosecrance (Ex. 37–26), testified that recognizes that there may be some
extremity MSDs in the past 12 years: employers in the following different general industry employers with few or
My patients have included journalists, industries had hired them to help no MSD hazards. Until an MSD is
computer graphic artists, health care workers, reduce the incidence of work-related reported, the employer’s obligation is
technicians for telephone companies, MSDs among employees: limited to distributing the information
automobile manufacturing workers, cashiers, • Newspaper in paragraph (d).
garment workers, meat wrappers, dental • Luggage manufacturing B. Application of Requirements
hygienists, secretaries, and chefs. Industries • Meatpacking
from which I have seen patients include • Packaging Unlike the proposal, this final
publishing, journalism, entertainment, • Papermaking standard does not differentiate among
manufacturing, health care, transportation, • Plumbing supply general industry employers. Under the
and telecommunications (Ex. 37–28). proposal, employers of employees
• Route sales and delivery
Dr. George Piligian, who also works at • Film products manufacturing engaged in manufacturing or manual
the Mount Sinai Center, testified about • Hospitals handling would have been required to
finding and treating MSDs in dancers, • Heavy appliance manufacturing implement some elements of an
musicians, editors, secretaries, • Automobile manufacturing and ergonomics program whether or not
telephone operators, sewing machine subassembly their employees had suffered any MSDs.
operators and hospital workers (Tr. • Furniture manufacturing Other general industry employers would
7813–20). • Paper and pulp products not have had to take any action until a
Similarly, insurance companies, • Forest products ‘‘covered MSD’’ occurred, and a covered
employers and trade associations • Food service MSD was defined differently for them
representing the following industries • Clerical than for manufacturing and manual
testified about the implementation of • Electronics handling employers (64 FR 65782–84,
ergonomics interventions and programs • Clothing and textile manufacturing 65791). In this final standard all general
because work-related MSDs were • Baking industry employers are required, as
occurring among workers in the • Restaurant specified in paragraph (d), to provide
following environments: • Home and office furniture basic information on ergonomics and
• Chemical manufacturing manufacturing the standard to their employees. The
• Pharmaceutical manufacturing • Hospitality—hotel/motel employer has no further obligation until
• Automotive manufacturing • Fiber manufacturing the employee reports an MSD or the
• Automotive repair • Logistic and supply warehousing signs or symptoms of an MSD (see
• Boat manufacturing • Telecommunication paragraph (e)).
• Textile manufacturing • Textile and apparel manufacturing OSHA developed its bifurcated
• Clothing manufacturing • Metal forging and cast metals proposal because about 60 percent of all
• Printing • Electronics manufacturing reported MSDs occurred in
• Dental • Health care manufacturing and manual handling
• Meatpacking • Petroleum jobs, even though those jobs accounted
• Electric utility • Electrical manufacturing for less than 30 percent of general
• Hospitals • Airline freight handling industry employment. Although some
• Office workers • Steel manufacturing commenters agreed that this might
• Hotel/motel • Fishing justify a focus on manufacturing and
• Emergency medical services • Aircraft manufacturing manual handling (Ex. 30–4837), very
• Furniture manufacturing • Gas and electric utility few expressed satisfaction with the
• Oil and gas drilling • Flooring products proposed approach (Exs. 30–400, 31–78,
• Moving and storage • Computer and computer accessory 32–198, 32–210, 32–461, 500–218, Tr.
• Fabricare manufacturing 3224). Many commenters said that
• Nursing homes • Plumbing fixtures manufacturing manufacturing and manual handling
• Telephone operation and • Food products manufacturing and jobs should not be singled out because
installation processing MSD hazards were present and MSD
• Funeral and cemetery • Chemical manufacturing rates were high in other jobs and
• Insurance • Printing industries (Exs. 30–626, 30–2208, 31–
• Solid waste removal and recycling • Waste treatment 156, 500–218). For example,
• Paint manufacturing
• Plastic manufacturing participants said that there were many
• Poultry processing
• Clothing retail MSD hazards and MSDs in ‘‘any job
• Food warehousing and distribution
• Power plants involving regular computer use,’’
• Beverage delivery
• Assembly line • Research laboratories therefore, programming, journalism,
• Grocery store • Transportation data entry, system administration,
• Retail clothing • Printing accounting, analysis, and insurance jobs
• Foundry • Upholstery should have been included by name
• Rubber manufacturing (Exs. 30–49, 30–400, 31–3, 31–12, Tr.
(see, e.g., Tr. 3337–9, Tr. 5104, Tr. 8458– • Welding 2783, 2932). Likewise, other
8480, Tr. 16553–57). • Mail sorting and delivery commenters argued that custodians and
Finally, several of the ergonomists • Transportation supermarket employees including
who appeared as OSHA’s expert • Electronics cashiers, bakery personnel, baggers and

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stockers should be treated on par with [T]he examples of jobs are not very helpful. and maritime employment. Although
manufacturing and manual handling A careless reader could conclude that the many participants agreed with this
jobs because they involved the same lists were exhaustive and, not seeing the jobs exclusion (Exs. 30–3032, 30–3752, 31–
hazards (Ex. 31–23, 32–210; see also in this workplace named, decide he had to 68, 31–160, 31–187, 31–207, 31–219,
do nothing. A more thorough reader would
Exs. 30–400, 31–78, 32–198, 32–210, note the disclaimer to the effect that ‘‘* * *
31–245, 31–252, 31–259, 32–300), a
32–461, 500–218, Tr. 3224). each job must be considered on the basis of number favored expanding the scope of
Another group of commenters its actual physical work condition * * *’’ the rule to cover all industries regulated
opposed requiring any employers to and correctly conclude that there is no by OSHA (Exs. 30–400, 30–428, 30–
take any type of action before a work- standard against which to compare the actual 1294, 32–210, 500–218, Tr. 2859, 3224,
related MSD is reported (Ex. 30–240, physical work conditions’’ (Ex. 31–211). 5592, 9080, 13445, 113745, 14002,
32–300, 30–542, 601–X–1) on the (See also Exs. 30–3032, 30–3853, 32– 17362, 17652). Their arguments fell into
grounds that it was a ‘‘waste of 300.) three categories.
resources’’ to require a basic program for First, many of these commenters
employers with manufacturing and OSHA is accounting for these pointed to the high number and rate of
manual handling jobs that have no concerns in this restructuring of the MSDs, especially back injuries,
MSDs (Ex. 30–542). For example, one standard’s scope and application occurring in industries excluded from
said: provisions. This final rule applies to all the proposed rule (Exs. 30–626, 30–
general industry employers, but no 2208, 31–156, 31–183, 31–225, 500–
If an employer is in one of the targeted employer is required to evaluate or
industries but has not had MSDs, why force 218). The Mount Sinai Center for
the bureaucracy of program implementation
implement control measures or MSD Occupational and Environmental
upon him or her * * * (Ex. 30–240). management until an MSD incident Medicine Construction Hygiene and
occurs in a job that involves exposure to Ergonomics Program (CHEP) pointed
And while some participants found risk factors at levels meeting those in
the definitions of manufacturing and out that, aside from the transportation
the Basic Screening Tool in Table 1. The industry, construction has the highest
manual handling jobs adequate to only obligation employers have until
identify whether a particular job was rate of back injury of any industry:
that point is to provide information
covered (Exs. 30–3934, 30–4837, 31–38, about ergonomics and the standard to Every year 1 in 100 construction workers
31–36, 31–113, 31–173, 31–205, 31–229, their employees. And, as explained in will miss between 7 and 30 days of work due
31–347), most disagreed (Exs. 30–5, 30– to back injuries * * * At one surveyed
the discussion of paragraph (d) below, worksite all wallcoverers who had worked 15
46, 30–75, 30-293, 30–1722, 30–3032, OSHA is providing that information in
30–3853, 31–4, 31–27, 31–92, 31–106, years or more in the trade had required
Appendices A and B and on its website. surgery or medical intervention for problems
31–125, 31–135, 31–211, 31–245, 31– OSHA believes that these changes including carpal tunnel syndrome, pain in
246, 32–78, 32–300, 32–337). Many said respond to most complaints about the the neck, shoulder and back, and knee
that the definitions, particularly the scope and application provisions of the problems (Ex. 31–183).
definition of manual handling jobs, proposal. By eliminating the additional
were too vague (Exs. 30–137, 30–425, Some commenters also favored
requirements for manufacturing and expanding coverage because they said
30–1722, 30–3167, 31–77, 31–180, 31– manual handling employment, OSHA is
225, 31–227, 31–248, 31–260, 31–342, that employees in construction,
eliminating both the need to define agriculture and maritime are exposed to
32–78, 32–300, 32–337, Tr. 3255–56). those terms and much of the complexity
For example, one commenter said: the same risk factors and MSD hazards
and vagueness commenters found in the as are employees in general industry
The definitions of manufacturing and proposal. By limiting employers’ (Exs. 30–626, 31–22, 31–183, 31–263,
manual handling jobs covered by the obligations in establishments that have
standard are guaranteed to leave employers 31–303, 500–218). They said there was
not experienced MSD incidents, OSHA no reason to distinguish coverage by
as much in the dark as they are now. What is also taking account of the facts that
constitutes ‘‘forceful’’ manual handling? How industries if the rule was also
much force must be involved to be covered?
not all manufacturing and manual incorporating an MSD trigger because,
Should the strength capabilities of individual handling jobs involve more significant as one put it, ‘‘[a]n injury is an injury,
employees be considered? (Ex. 31–211) ergonomic hazards than do other and I have no doubt there are always
general industry jobs, and that some of ways to handle these jobs just as safely
Others were concerned that the
those other jobs are also hazardous. as any others’’ (Ex. 31–19).
definitions were too broad and could The minimal burden in paragraph (d)
include any job or ‘‘almost every A number of commenters said that at
for all general industry employers to
employer’’ (Exs. 31–135, 31–180, 31– least jobs in construction, agriculture
disseminate information is necessary so
342). and maritime that are essentially the
that employees will know how and
Many participants told OSHA that same as in general industry, primarily
when to report MSDs. Given the
they did not know what the terms used manual handling jobs, should be added
importance of providing information at
in the definitions (‘‘forceful’’ lifting, to the rule (Exs. 31–14, 31–19, 31–65,
the earliest possible point and the
‘‘core element,’’ and ‘‘significant 31–98, 31–192, 31–219, 31–307, Tr.
minimal burden this requirement will
amount’’ of worktime) meant (Exs. 30– 2850–51). For example:
impose, OSHA believes that it is
46, 30–293, 30–300, 30–3032, 30–3853, Many jobs, especially manual handling
appropriate to apply the initial
30–4837, 31–187, 31–202, 31–223, 31– jobs, have similar if not identical hazards to
requirement to all general industry
260, 31–289, 32–337, Tr. 3337). For that of general industry. If an employee is
employers. (The issue of the need for
example: performing lifting that requires excessive
information is discussed in more detail force it does not matter in which industry he
How much is significant? 6 hours per 8-hr below in the summary and explanation is performing the lifting. The actions to
shift? 4 hours per 8-hr. shift? 2 hours per 8- on paragraph (d)). reduce the risk of injury would be similar for
hr. shift? Or 2 2-hr. periods per 8-hr. shift?
each industry (Ex. 31–307).
(Ex. 30–4837) II. Industries/Employment/Operations
Moreover, commenters did not find Excluded From the Final Rule See also (Ex. 31–19; 31–65).
the examples of manufacturing and Like the proposal, the final standard Another group of participants said
manual handling jobs to be of use: does not cover construction, agriculture, that the record contains sufficient

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68278 Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations

evidence on the availability and OSHA’s standard-setting history during the construction, agriculture, and maritime
effectiveness of ergonomic interventions past 30 years raises serious doubt that in its final rule, OSHA, in the interest
to support expanding the rule to the workers excluded from this standard will of fair notice, would have had to amend
ever have legal protection from MSD hazards.
construction, agriculture and maritime When OSHA has excluded workers from
the ergonomics proposal or re-propose
industries (Exs. 31–183, Tr. 2849–51, coverage under a promulgated standard, only to include these industries and hold
7478–80, 7482, 7485, 15761–71, 17540– in two cases has the Agency followed up to additional hearings. Expanding the rule
41, 17561). Members of this group extend coverage to those workers—Hazard to cover agriculture, construction and
pointed to a number of articles and Communication and Construction. But those maritime would seriously delay
studies about effective controls in those actions were as the result of a court decisions addressing the urgent need for
industries, especially construction (Tr. and order (hazard communication) * * * or protection for general industry
legislative mandate by Congress (lead) (Ex.
15761–71). For example, Nancy Clark, employees, who work in the jobs in
500–218, p. 132–33).
co-director of Mt. Sinai CHEP, said: which more than 90 percent of MSDs
These participants said that if OSHA are reported.
Practical interventions are available for
many identified risk factors. Many workers
does not cover construction, agriculture In addition, as the proposal pointed
devise quick fix, homemade solutions to and maritime in the current rulemaking, out, work conditions and factors present
reduce the impact of musculoskeletal stress the Agency should begin further in agricultural, construction and
and promote self-preservation. They use team rulemaking immediately and even maritime employment often differ from
lifting, mechanized material handlers when establish a deadline for completing that those in general industry. OSHA listed
available, floor padding for kneeling and project (Exs. 30–400, 30–576, 30–4837, a number of aspects of construction
standing on, stacking supplies to bring the 31–12, 31–263). work to illustrate this statement (64 FR
work closer, and alternating work tasks or OSHA is aware that there is 65787):
body position (Ex. 31–183) significant evidence in the record • They consist primarily of jobs of
Scott Schneider, director of indicating that work-related MSDs exist short duration,
occupational safety and health for the in operations and employment beyond • Employees work under a variety of
Laborers Health and Safety Fund of general industry (Exs. 31–183, 500–218, adverse environmental and workplace
North America, testified: Tr. 7475, 7484–85, 17538–39). Indeed, conditions (e.g., cold, heat, confined
the problem appears to exist in virtually spaces, heights),
[T]here have been many tool manufacturers
who have jumped on the ergonomic
every industry. Nonetheless, for several • At non-fixed workstations or non-
reasons OSHA believes its decisions to fixed work sites,
bandwagon and hired ergonomists to develop
better and safer tool designs, from ergonomic regulate MSD hazards through • On multi-employer work sites,
hammers with more comfortable shock- sequential rulemaking proceedings, and • They involve the use of ‘‘day
absorbing handles to pliers with soil handles to limit the first proceeding to general laborers’’ and other short-term
and spring returns to reduce the stress of industry, is appropriate and supported ‘‘temporary workers,’
opening them after each use. The use of by the record. • Involve situations in which
portable power tools has increased A primary basis for the Agency’s employees provide their own tools and
dramatically in construction as batteries have decision to limit the scope of this equipment, and
gotten lighter and more powerful. Cordless rulemaking to general industry is that • Involve employees who may be
screw guns have become commonplace in most of the available evidence and data trained by unions or other outside
construction over the past few years, relating to ergonomic interventions certifying organizations, rather than by
reducing the repetitive use of screwdrivers by
hand and the force that had to be used. There
addresses general industry. For the employer.
are simple pieces of equipment, like drywall example, the vast majority of the studies OSHA did not mean to imply that the
carrying handles, which I have here, and a reviewed in both the NIOSH and NAS mere existence of any of these factors,
mortar-pan stand to raise the height of the reports pertained to general industry alone or in combination, would be
pan, which cost less than $50 and can make (Exs. 26–1, 26–37). Similarly, the enough to justify excluding an entire
the work much easier. A D-handle majority of case studies on the industry from the rule. This fact was
attachment for a shovel, which I have here, effectiveness of ergonomics programs apparently not clear to some
costs less than $20, and has been shown to and control interventions that OSHA commenters, however, who argued that
reduce awkward postures during shoveling. had gathered focused on general the presence of some of the listed factors
There are simple carts for moving glass or industry (64 FR 65954–75). Although in their industries meant that they too
drywall, vibration-dampened jackhammers
and equipment for moving them on and off
some participants submitted evidence should be excluded from the standard
of trucks. (Tr. 15762–63). on ergonomics programs and controls in (Exs. 30–297, 30–626, 31–147, 32–234,
the excluded industries, mostly in 32–300). For example, Broccolo Tree
These commenters also pointed out that construction (Exs. 32–339–1–25, 32– and Lawn Care Inc., pointed out that
many of the controls used in general 3888, 38–65, 38–66, 500–210), most of landscaping jobs involve short-duration
industry, such as manual handling aids, the available evidence continues to tasks and no fixed workstations (Ex. 31–
were applicable or readily adaptable to pertain to general industry jobs, 147). The National Solid Waste
construction, agriculture and maritime operations and workplaces. Management Association (NSWMA)
industries (Ex. 31–183). Moreover, tool If it included construction, agriculture said that its employees are also exposed
and equipment interventions are and maritime within the scope of this to adverse environmental conditions
becoming more widely available ‘‘as rule, OSHA would have had to delay and work at non-fixed work sites (Ex.
manufacturers are responding to the issuing the rule for general industry 32–234, p. 6–7).
need for better ergonomically designed while it gathered and analyzed the In the proposal, OSHA discussed its
tools’’ (Ex. 3–183; see also Tr. 15761–62, necessary evidence. Because it is likely discretion to set appropriate rulemaking
17561). that the rule would have a significant priorities, and to promulgate standards
Finally, several participants were impact on small employers in applicable to less than all of American
concerned that OSHA’s stated intent to construction, agriculture and maritime, industry. 64 FR 65786–65788. General
promulgate an ergonomics standard for OSHA would also have had to convene industry accounts for more than 90
the excluded industries in the future a small business review panel pursuant percent of the more than 620,000 LWD
would never come to fruition: to SBREFA. Further, in order to include MSDs reported each year. By

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promulgating a standard addressing B. Railroad Work urged OSHA to exempt the trash
general industry first, OSHA is giving Paragraph (b)(3) states that this collection industry from the standard
‘‘due regard to the urgency of the need’’ standard does not cover railroad work. (Ex. 32–234). NSWMA said an
for a standard to protect general Although some railroad operations are exemption was warranted because, like
industry employees. 29 U.S.C. 655(b)(7). normally covered by OSHA general the construction industry, its working
OSHA has thus ensured that the greatest industry standards, other railroad work
conditions include non-fixed worksites,
number of MSD hazards will be limited supervisory oversight, adverse
is regulated by the Federal Railway
addressed by this final rule, while the environmental conditions, and high
Administration (FRA) and not by
Agency determines appropriate employee turnover. In addition,
OSHA. 29 U.S.C. 653(b)(4). In addition,
regulatory approaches for other according to NSWMA, ‘‘uncontrollable’’
the Preliminary Economic Analysis
industries. For example, OSHA has been factors, such as variable load weights,
indicated that the standard would not
working closely with NIOSH on a study municipal regulations, and its members’
cover any railroad employment, and this
of ergonomic hazards and solutions in lack of control over the location of the
statement caused some uncertainty
the maritime industry. In addition, garbage they collect, also support an
among affected parties as to the
OSHA recently published an exemption. Finally, NSWMA also
Agency’s intent (Ex. 28–1, chapter II,
ergonomics best practices guide for the argued that there is little available
construction industry on its Web page. p.3). information about health effects and
OSHA has also provided training grant In a May 23, 2000 Federal Register effective solutions in the industry. The
money targeted to ergonomic hazards in notice (65 FR 33263), OSHA provided West Coast Refuse and Recycling
the construction industry. an analysis of the economic impacts of Coalition and the Municipal Waste
OSHA intends to develop ergonomics the proposed rule on railroads. On July Management Association (MWMA),
rules that can be tailored to the 7, 2000, OSHA also held a supplemental representing municipal solid waste
conditions that are unique to the firms hearing on this economic analysis, in agencies in larger cities, requested an
in these industries. OSHA agrees with which the Association of American exemption for some of the same reasons
commenters who have said that the Railroads (AAR) participated. AAR’s (Ex. OR 323, Tr. 17972–73). Although
experience the Agency gains from this comments and testimony, however, OSHA recognizes that employers in this
first phase will provide valuable highlighted the complexity of the industry face particular challenges in
assistance in developing an effective OSHA/FRA jurisdictional issues (Ex. implementing some types of ergonomic
ergonomics rule for the construction, 703–3, Tr. 18272, 18313–16, 18321). controls, it does not believe that the
agriculture, and maritime industries OSHA has determined that it needs to arguments presented compel exemption
(see, e.g., Ex. 31–252). gather additional information and of the solid waste and recycling
As noted earlier, OSHA has decided conduct further analysis on these issues industry from this standard.1
that the final standard should not cover before it can decide whether and how to As noted above, OSHA does not
work performed by persons employed address ergonomic hazards in the believe that the fact that some aspects of
incidentally to or in support of railroad industry. Therefore, OSHA has an industry’s working conditions are
construction, agriculture and maritime decided not to cover any aspect of similar to some of the conditions in
operations, regardless of what type of railroad work at this time. exempted industries necessarily
activity they perform. To illustrate, the C. Other Exemptions Requested. warrants exempting those industries. In
standard does not cover employees of a any event, the working conditions in the
residential home building company A number of other rulemaking solid waste industry differ significantly
performing office work in support of participants also requested that certain from those in construction. In the solid
construction activities, even though jobs, industries or employers be waste industry employees repeat the
office work is a general industry excluded from this rule (e.g., same routes every week or more
operation under other OSHA standards. ambulances, landscaping, transfer and frequently. The route is a fixed worksite
Similarly, the final rule does not cover storage, petroleum and chemical that the employee gets to know. Because
janitorial workers employed by a industries, forging industry). Many the route is fixed, the employer is able
shipyard or employees performing requesting exemptions did not provide to anticipate and plan for the hazards
regular maintenance on power any reasons why they should be that the employees might encounter.
industrial trucks in a marine terminal. excluded (see, e.g., Exs. 30–303, 30–491, Likewise, the fixed routes enable
Applying the rule to general industry 30–2102, 30–3005, 30–4439, 30–4444, employers to plan for how the changing
jobs of a construction employer (the 30–4598, 601–X–1163, 601–X–1438). seasons will affect collection on the
office manager of a construction Some merely said they had ‘‘many work route. NSWMA’s testimony that a ‘‘vast
company, for example) would present conditions and factors present in the majority * * * if not all’’ of its member
the employer with logistical difficulties. industries OSHA has chosen to
Requiring construction, agriculture and exempt,’’ but did not discuss either 1 A number of participants who argued that
maritime employers to set up an what those factors were or why they compliance with an ergonomics standard would be
ergonomics program for the few general supported an exclusion (see, e.g., Exs. infeasible in their industries also submitted
industry employees performing 30–2348, 30–3005, 30–3186, 30–3311 examples of industry ‘‘best practice’’ guidelines and
similar recommendations to the record. The
ancillary functions in their workplaces 30–3462, 30–3482, 30–3582, 33–1181). participants said that even these ‘‘best practices’’ do
would not be an efficient allocation of OSHA does not find any basis for not result in enough of a reduction in employee
safety and health resources. Several excluding those industries from this exposure to MSD hazards that further MSDs are
commenters have told OSHA that it is rule. ‘‘unlikely.’’ OSHA recognizes that some industries
will not be able to control exposures completely.
most efficient to set up an ergonomics A few requests that included more OSHA also, however, approves of the steps these
program on a company-wide basis (see, discussion supporting an exemption are industries are taking to control MSD hazards to the
e.g., Exs. 26–1370). Doing so allows discussed individually: extent they can, and commits to working with the
employers to implement program industries in the future. This type of arrangement
elements such as providing employee 1. Solid Waste Management will help provide employees in these industries
with as much protection as possible, while
information and training more The National Solid Waste reassuring their employers that OSHA understands
efficiently. Management Association (NSWMA) the limits of their capabilities.

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companies have safety and health exceed the weight limits (Tr. 12014, work speed and lifting (Tr. 12017,
programs that include addressing 13404–06, 18073). In addition, container 13402–06, 17969, 18212).
ergonomic hazards on a ‘‘day to day’’ size and location issues are regularly John Legler, of Waste Equipment
basis indicates that most industry addressed as part of contract Technology Association, added that
employers already are taking these steps negotiations between private collectors garbage trucks are being retrofitted with
(Tr. 18074). and municipalities (Tr. 18041). All of mechanical lifts ‘‘quite regularly’’ (Tr.
Although NSWMA argued that high this evidence suggests that solid waste 18012–13). Bruce Walker, of Portland’s
turnover in the industry supports employers should not have difficulties residential solid waste and recycling
exemption in the same way that the use continuing to negotiate contracts that agency, testified that enforcing
of ‘‘day laborers’’ in the construction will assist them in complying with this container weight limits had been
industry does, NSWMA did not provide final standard. established had led to low MSD rates
any evidence on turnover rates in its And contrary to NSWMA’s argument, (Tr. 11968–70).
industry, or on how those rates compare the record contains abundant evidence This evidence not only does not
to other industries this rule covers. Nor on MSD hazards and ergonomic support exemption, it is clear evidence
did NSWMA explain why high turnover solutions in this industry (Ex. 32–234– that effective ergonomic programs and
rates pose the same issues as day 2). The industry recognizes that lifting controls are technologically and
laborers. Other solid waste associations heavy loads creates a hazard for economically feasible for the industry as
and employers did not indicate that employees (Tr. 13406, 13413, 18009). a whole. OSHA recognizes that some of
high turnover rates are a problem in the Industry representatives testified that the hazards facing waste industry
industry. The solid waste industry has their workers experience work-related employees cannot be eliminated
the opportunity to train its workers; in MSDs, particularly MSDs of the lower completely. But the standard only
fact NSWMA and MWMA testified that back (Tr. 13379, 13396, 13412, 18009). requires employers to control MSD
their members already provide training In fact, NSWMA submitted a manual of hazards ‘‘to the extent feasible.’’ It
(Tr. 13404–405, 18079). It explained recommended ergonomic practices expects NSWMA’s member companies
that this training is the most effective developed by Environmental Industry to continue to implement the type of
way to deal with the fact that its Associations (EIA), NSWMA’s parent safety programs they are already using,
workers are often unsupervised: organization, that identified lifting and to continue improving those
MR. BEDERMAN: No, the most important bulky loads and twisting and carrying programs as knowledge and technology
way to monitor this type of thing is actually loads as risk factors for the industry and advance.
not to monitor it, but * * * actually good identified back pain, hernias and 2. Utility Workers
training (Tr. 18079). strains, sprains and tears as common
MSDs in the industry (Ex. 32–234–2–1). Utility companies asked OSHA to
The record also does not support exempt utility line workers and power
industry claims that solid waste EIA also recommended that employers
establish ergonomics programs for trash plant maintenance workers from the
industry employers have little control standard for two reasons. First, they
over their employees’ working collection and recycle operations (Ex.
32–234–2–1). pointed out that line workers face some
conditions. For example, NSWMA said of the same conditions as construction,
that, because of municipal ordinances, The record also includes evidence on
a wide range of controls that are agriculture and maritime (e.g., adverse
its members have no control over the environmental conditions). They also
weight and location of the garbage they successfully in use in the industry. The
EIA manual on ergonomic practices said argued that these jobs involve both
collect and that municipalities were general industry and construction
‘‘very hesitant’’ to make changes (Ex. the industry ‘‘has many options’’ for
addressing ergonomic hazards, activities because utility line workers
32–234–2, Tr. 18041). But 60 percent of not only maintain and repair utility
residential collection is privately including weight limits built into
residential contracts, the use of lifting lines, a general industry activity, but
controlled (Tr. 18046). For the 40 also they install, alter, and improve
percent of trash collection that is under devices, and training (Ex. 32–234–2–1).
The record indicates that the following lines, activities which are governed by
the control of municipalities, as noted OSHA construction standards (Exs. 30–
below, the testimony of NSWMA and controls are also in use in the industry:
• Mechanical container lifts, 3853, 32–300, Tr. 2893–95). Edison
MWMA suggest there is not a significant • Limits on container size and weight Electric Institute (EEI) testified:
problem. and requirements for container handles,
NSWMA testified that a majority of As you know, a line worker working on a
• Carts, dollies and other mechanical pole may at one moment be engaged in what
municipalities have already assists for pushing, carrying and lifting is considered to be construction work under
implemented container requirements containers, 1910.12(b) and under 1926(b) and at the next
(Tr. 18071; see also Tr. 13402). Both • Collection trucks designed for use moment be engaged in what is considered to
NSWMA and MWMA testified that the in narrow alleys and streets to eliminate be general industry work under 1910.269.
growing trend is toward requiring carrying containers long distances, That is to say that if a person is doing work
customers to place garbage containers at • Changes in municipal collection for the improvement of the facility, that is
the curbside (to eliminate the need for regulations to reduce lifting hazards construction as defined by OSHA and the
employees to carry heavy containers) (e.g., curbside service, container size Review Commission. And if not, then general
and limiting container size (to reduce maintenance (Tr. 97–98).
and weight limits, reduction in loads
injury associated with heavy lifting) (Tr. through increases in collections per EEI also pointed out that it would not
18070–71, 13402–3; see also Tr. 12019). week, separate collections for large be practical for its employees to be
Bruce Walker, of Portland’s solid waste bulky items), covered by the standard for only some
and recycling agency, said that such • Training in proper lifting of their tasks:
weight limits had been positively techniques, EEI recommends that OSHA clarify that to
received in that city (Tr. 12014–15). • Work practice controls (e.g., perform a job hazard analysis means to
NSWMA, MWMA and Mr. Walker also training not to lift overweight loads), analyze a job, not a task. A job may not
said that employers are instructing their • Changes in compensation systems involve only one task, but may involve
employees not to lift containers that to eliminate incentives for hazardous multiple tasks depending upon the nature of

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the work on that given day (Ex. 32–300, p. from the standard because home health especially for home settings (Tr. 11743–
29). care employees perform work in private 45). The witnesses said that these
OSHA agrees with EEI that homes that are not under the employer’s devices allow mechanical transfer in
determining whether a job exposes an control. and out of bed, onto a toilet, and even
employee to an MSD hazard requires AAHomecare said its industry should into a tub (Tr. 11745). Other control
looking at all of the tasks and activities be exempted because OSHA has measures described in the record
that comprise that job. That is what this indicated that it will not impose OSHA include friction reduction sheets, gait
job-based standard requires. But as EEI standards on private homes, unless they belts, toilet and shower chairs, slide
itself pointed out, some utility are being used as part of the boards, and convertible chairs and
companies already have programs in ‘‘manufacturing process’’ (Ex. 30–3862). wheelchairs (Ex. 37–4). To the extent
place for analyzing and controlling MSD But the OSHA policy AAHomecare these controls are feasible, and
hazards (Ex. 30–2725, Tr. 2384, 2396– refers to only addresses work that employers find them to be effective,
98). Presumably, these companies employees perform in their own homes. employers could provide them to their
analyzed the entire jobs of utility line AAHomecare also argues that the home health worker employees. But an
workers and power plant maintenance court in the Bloodborne Pathogens employer is not expected to change the
personnel rather than just the general decision (American Dental Association. configuration of a patient’s bedroom or
industry tasks in those jobs. None of the v. Martin, 994 F.2d 823 (7th Cir. 1993)), bathroom, although it must provide the
utility companies indicated that held that the OSH Act ‘‘does not worker with the training and controls
construction activities constitute the authorize OSHA to impose work-site necessary to allow him or her work as
primary operations of utility companies. related standards on home work sites safely as possible in that location.
Thus, including all rather than part of that are not under the employers
control’’ and that the Agency’s directive 5. Small Businesses
the tasks of these jobs in the ergonomics
program this rule requires should not limiting the application of the A number of commenters said OSHA
impose a substantial additional burden Bloodborne Pathogens rule at home- should exempt small businesses because
for utility companies. OSHA requires based worksites (CPL 2–2.44D) should compliance would be too burdensome
utility companies to protect their apply to this standard as well (Ex. 30– (Ex. 30–3167, Tr. 3126–27, 3332). They
employees, including those that spend 3862). But the Seventh Circuit did not said that small businesses do not have
part of their days performing make as broad a holding as the knowledge or resources to hire
construction work. AAHomecare suggests. The court said outside experts to help identify and
only that OSHA has an ‘‘obligation to address MSD hazards (Tr. 3127). They
3. Building Materials Distributors consider such questions and the general also said that MSD rates were low for
A number of building materials issue that they present before imposing’’ small businesses (Exs. 30–3167, 600–X–
distributors argued that they should be a standard. American Dental Assn., 984 1, Tr. 3332). National Small Business
exempted because a large portion of F.2d at 830. United (NSBU) said that for the majority
their business involves delivering In this case, OSHA is considering of small businesses the occurrence of an
supplies to construction sites and to these issues and addressing them here. MSD was rare (Ex. 30–3167). By
various places on construction sites In general, employers sending their contrast, another participant (Ex. 26–
(Exs. 30–541, 30–4267, 30–4351). employees to work at sites they do not 1370) at OSHA’s stakeholder meetings
Because of this, they said, their control are required to do everything for Ergonomics Program Standard
employees are exposed to the same within their control to protect those Development specifically supported the
ergonomic risk factors and adverse employees, but will not be held liable inclusion of small employers in the rule,
working conditions that justified an for the existence of conditions they saying that the rule was particularly
exclusion for the construction industry. cannot control. Thus home health care needed in these facilities because they
OSHA has never excluded general agencies must provide their employees were less likely already to have either
industry employers from standards with the information required by an ergonomics or a safety and health
because they provide equipment or paragraph (d), provide those employees program (Exs. 26–1370).
materials for exempted industries. Thus, with MSD management where an MSD OSHA considered whether to apply
while marine terminals are excluded incident occurs in a job that meets the alternative regulatory provisions to
from this standard, manufacturers and levels in the Basic Screening Tool, and small employers as part of the analysis
transportation companies that deliver perform job hazard analyses when required by SBREFA and the Regulatory
new equipment to marine terminals are necessary. In addition, they must Flexibility Act (64 FR 66040–53). OSHA
still covered. comply with the other programmatic does not believe the record supports
In addition, almost every comment elements of the standard, in particular such an approach for small business.
received from building materials providing the employees with necessary First, employees who work for small
distributors indicated that the industry training and equipment to minimize businesses are experiencing work-
has already taken substantial steps to ergonomic hazards. related MSDs, and they need the
control MSD hazards. For example, But employers’ control obligations protection this standard will provide.
Panther Building Materials, Inc., said will be limited by the control they have According to BLS, employees in
that it provides hydraulics crane, carts over their employees’ actual working establishments of all sizes have reported
and other material handling equipment conditions. Thus an employee who is MSDs that are serious enough to involve
in order to safely deliver supplies (Ex. expected to move patients in their own days away from work.
30–4351). It also provide at least two homes should be taught how to do so as In a number of industries comprised
employees per truck crew in order to safely as possible. For example, predominantly of small businesses, the
minimize carrying. evidence was submitted to the record risk of MSDs is particularly high. This
that portable lifting devices and other is especially true in the health care
4. Home Health Care. control measures are available for use in industry. For example, many medical
The American Association for home settings (Ex. 37–4, Tr. 11743–45). sonographers are employed by small
Homecare (AAHomecare), asked that the According to witnesses, some portable businesses. Joan Baker, of the Society of
home health care industry be exempted lifting devices have been designed Diagnostic Medical Sonographers,

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testified that the MSD prevalence rate Suzanne Rodgers, an ergonomist with do not have that information, the
among sonographers exceeds 80 percent 32 years of experience assisting a wide controls they implement may not be
and that the frequency and severity of range of companies in addressing MSD successful. Therefore, in order to ensure
these MSDs appears to be increasing (Tr. hazards, said that she has provided that an employee is protected from MSD
11881–82). Dr. Linda Morse, chief of training to small businesses at various hazards while performing the general
occupational medicine at Kaiser San conferences organized by the Chamber industry tasks, it may be necessary to
Francisco, said that the injury rate of Commerce (Ex. 37–25). control risk factors for the job as a
among ultrasound technicians in There are also other sources of whole.
Northern California was almost 100 information and assistance for small
B. Multiple Employer Worksites and
percent (Tr. 15045). Many nurses, employers. OSHA and NIOSH provide
Contract or Shared Employee Situations
nurses’ aides, and orderlies are also free hazard evaluation services for small
employed by small businesses, employers. OSHA will be providing A number of participants asked how
including small nursing homes and additional information in the the standard would apply at multi-
small health care agencies. According to appendices to this final rule and other employer worksites. Similar situations
BLS, in 1996 about 15 percent (more materials on the OSHA Webpage arise under many standards, and OSHA
than 103,000) of all MSDs resulting in (www.osha.gov). Many other Internet has published a ‘‘Multi-Employer
days away from work were reported by sites also provide free ergonomics Citation Policy’’ that discusses the
health care workers. In addition, the information. allocation of responsibility among
American Nurses Association and the various categories of employers. CPL–
Service Employees International Union, III. Other Scope and Application Issues 0.124 (Eff. Dec, 10, 1999). OSHA has not
among others, testified that the A. Jobs Involving Both General Industry historically discussed the operation of
occurrence of MSDs among home health and Non-General Industry Tasks this policy in rulemaking documents,
workers is particularly high (Exs. 32– viewing it as an enforcement issue. In a
Several commenters raised questions challenge to OSHA’s Bloodborne
274–1, 502–215). about whether this standard applies
OSHA does not believe this standard Pathogens standard, however, the
when an employee’s job involves both United States Court of Appeals for the
will be too burdensome for small
general industry and non-general Seventh Circuit held that, where parties
businesses. The record shows that many
small businesses have successfully industry activities (Exs. 30–3853, 32– to a rulemaking raise issues about the
implemented ergonomics programs (see, 300, Tr. 2893–95). As explained above application of the standard in this
e.g., Exs. DC 66, 500–208–3, Tr. 17350– in reference to utility workers, because circumstance, OSHA should discuss the
17355). These programs have paid for this is a job-based standard, OSHA application of this policy. American
themselves in terms of reductions in intends employers to include all Dental Ass’n. v. Martin, 984 F.2d 823
medical costs, lost workdays and employees who perform general (7th Cir. 1993). Such a discussion is
product reject rates (Tr. 17354). industry work within this standard, particularly useful with respect to some
Moreover, if small businesses have low even if those employees also perform of the issues raised by this standard.
rates of MSDs, the obligations for those some work that may be classified as Under the multi-employer worksite
employers will be commensurately construction, agriculture, or maritime. policy, employers are generally required
small (Ex. 30–3167). The only obligation Thus, employers engaged in to take whatever steps are within their
that many small employers will have is landscaping or lawn and garden power to protect their own employees,
a one-time requirement to provide basic services, a general industry and also to abate hazards within their
information to their employees. And classification, are covered by this control when other employees are
these employers can satisfy that burden standard even if their employees’ jobs exposed to those hazards. This means
by copying, distributing, and posting the include some harvesting of sod or trees, that an employer whose employees are
information sheets in Appendices A and an agricultural classification. On the working at a location controlled by
B. other hand, nurseries and tree farms, another employer, for example a
The record shows that small which are agricultural classifications, temporary services agency, must
businesses are easily able to get the need not comply with the standard even provide its employees with the
information they need to address MSD if their employees perform some minor information required by paragraph (d).
hazards. A number of organizations landscaping or horticultural services. Both employers will need to know if an
have developed and are providing Comments by the AFL–CIO best sum up employee reports an MSD, and must
model programs, checklists, ‘‘best the need for defining the application of implement measures to share this
practices’’ guides and control the standard in this way: information. They should consult to
information to small businesses (see, Since this is a job-based standard, it is determine whether the report qualifies
e.g., Exs. 32–234–2–1, OR 351). A important that jobs in fact are covered. To as an MSD incident under this standard,
number of organizations have developed apply the standard in some aspects of a job but the employer with control over the
and are providing model programs, and not others would leave workers without workplace must screen the job to
checklists, ‘‘best practices’’ guides and protection and make compliance and determine whether further action is
control information (Exs. 32–234–2–1, enforcement confusing and difficult (Ex. required. If so, the employer with
OR 351 ). For example, the American 500–218, p. 133). control over the workplace must also
Dental Association and state affiliates, In addition, as stated in the implement the program elements
such as the Oregon Dental Association, discussion of utility line workers, the required by this standard. And if such
have developed and disseminated only way an employer can determine an employer hires a temporary worker
information on ergonomics for its whether a job exposes an employee to to work in a job for which an
members and held a ‘‘Dental an MSD hazard is to look at all the tasks ergonomics program under this standard
Ergonomics Summit Conference’’ this and activities that comprise that job. is already in place, that employer must
year (Ex. OR 351). A number of trade Eliminating some tasks from this provide the temporary employee with
associations are also providing analysis may prevent identification of any necessary training. The employing
ergonomics training for small businesses risk factors that are causing or agency, however, will necessarily be
(Ex. 37–25, OR 351). For example, contributing to the hazard. If employers responsible for providing the employee

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with any necessary MSD management, • Boat building and repair through (s) of the final rule. Final
including WRP. OSHA believes that this • Airline baggage handlers paragraph (c)(3) denies grandfather
is basically how businesses are • Airline reservation and ticket agentsstatus to employers who have policies
• Airline maintenance crews
currently operating. OSHA expects that • Railroad equipment building and
or procedures that discourage
they may pay more attention to these rebuilding employees from participating in the
issues and address them explicitly in program or reporting signs or symptoms
• Maintenance of equipment or structures
their contracts after the standard is in • Forestry services of MSDs or the presence of MSD
effect. • Forestry nurseries and gathering of forest
hazards in the workplace.
products In the final rule, OSHA is requiring
C. United States Postal Service • Commercial fishing that grandfathered programs be in
Questions were also raised as to the • Fish hatcheries and preserves
• Hunting and trapping
writing. The final rule’s grandfather
effect of this standard on the United clause requires the employer to
• Game propagation
States Postal Service. In 1998, Congress demonstrate program effectiveness and,
• State and municipal employees (in State
amended Section 3(5) of the OSH Act to Plan States) performing general industry like the proposal, to have a program that
include the United States Postal Service operations includes the core elements of effective
within the Act’s definition of employer. • U.S. Postal Service programs. The Agency believes that this
29 U.S.C. 652(5). Postal Service • Federal government employees can best be accomplished with a written
Enhancement Act, P.L. 105–241. As a performing general industry operations
program. Further, both OSHA and the
result, this standard applies to all USPS Industries and Jobs This Standard Does Not employer will find compliance with the
operations that are not construction, Cover grandfather clause easier to demonstrate
agriculture or maritime operations. • Construction employment and if the program is written. By ‘‘written,’’
D. Municipalities operations OSHA also intends that the program can
• Agriculture employment and operations be maintained electronically.
A number of municipalities asked • Farm labor and management services Final paragraph (c)(1) requires
whether the standard applies to local • Livestock and animal specialty services
• Maritime employment and operations grandfathered programs to include the
governments. States and their political
• Ship building and repair core elements of effective ergonomics
subdivisions are not employers under
• Longshoring programs: management leadership and
the OSH Act, and they are not covered
• Office workers employed by employee involvement; job hazard
by this final rule or any other federal construction, agriculture or maritime analysis and control; training; and
OSHA standards. However, the 23 establishments program evaluation. This paragraph also
States and 2 Territories with approved • Maintenance workers employed by indicates the subelements within each
State Plans are required by Section construction, agriculture or maritime
establishments
core element that OSHA believes are
18(c)(2) of the OSH Act to issue
• Work at the employee’s own home essential to the proper functioning of
standards that are ‘‘at least as effective’’
• Railroad work that core element. These subelements
as Federal standards. 29 U.S.C. 667.
• Railroad terminal and switching are stated broadly. For example, a
Therefore, State Plan States must adopt
• Airline attendants subelement of management leadership
ergonomics program standard within six • Airline pilots (paragraph (c)(1)(i)) that OSHA
months of the publication of this
considers essential is the establishment
standard. Under Section 18(c)(6), State Paragraph (c)—How Does This Standard of an effective reporting system that
Plan States must apply such standards Apply if I Already Have an Ergonomics permits employees to report the signs
to State employees and to employee’s of Program in Place When the OSHA
and symptoms of MSDs and to receive
the State’s political subdivisions. (See Ergonomics Program Standard Becomes prompt responses to their reports. The
State Plan States section of this Effective? employer’s program must include all of
preamble for the list of State plan
Paragraph (c) of the final standard is the subelements of the core elements to
States.)
a grandfather clause, which, under qualify for grandfather status.
Industries and Jobs This Standard Covers certain conditions, permits an employer The following discussion explains the
who has already implemented and subelements comprising each of the core
• Agricultural services
• Soil preparation and crop services, evaluated his or her ergonomics elements. Employers are free to include
including crop planting, cultivating and program by the date on which the final additional elements or subelements in
protecting rule becomes effective to continue that their program, and doing so will not
• Crop harvesting program instead of complying with the interfere with the program’s grandfather
• Veterinary services OSHA standard. This paragraph permits status, provided that the program
• Lawn and garden services employers to do this only if the includes the core elements identified by
• Ornamental shrub and tree service program: is in writing, contains the core paragraphs (c)(1)(i) through (v), and the
• Tree trimming
• Landscaping and horticultural services
elements of basic ergonomics programs, subelements associated with them.
• Oil and gas drilling/extraction operations and is demonstrably effective. The The proposed rule would have
• Health care employees criteria for judging whether an required an existing program to meet a
• Truck driving employer’s program adequately ‘‘basic obligation’’ provision for each
• Office workers employed by general addresses the core elements are core element. Basic obligations, which
industry establishments contained in paragraphs (c)(1)(i) through were intended to capture the essence of
• Office workers employed by agricultural (v). Examples of criteria for judging the the more detailed subelements proposed
services establishments effectiveness of the program are for each core element, were proposed
• Utility line operations including contained in paragraph (c)(1)(v). for each program element. Table 1
maintenance, repair, installation,
construction, alteration and improvement
Paragraph (c)(2) requires that, within 1 compares the proposed rule’s basic
operations year of the standard’s effective date, obligations sections with the
• Power plant maintenance operations grandfathered programs have in place corresponding subelements of the final
including repair, alteration and an MSD management policy that meets rule’s grandfather clause. The following
improvements the requirements of paragraphs (p) discussion also explains OSHA’s

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68284 Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations

reasons for revising the basic obligations employees have the most direct interest existing ergonomics programs.
proposed. in their safety and health on the job, Companies like the Dow Chemical
Final paragraph (c)(1)(i) states that they have an in-depth knowledge of the Company (Ex. 32–77; Tr. 5297), Levi
grandfathered programs must include tasks they conduct at the worksite, they Strauss (Tr. 14723, 14736, 14746), the
management leadership and identifies often have excellent ideas on how to Consolidated Edison Company of New
the subelements for that core element. solve ergonomic problems, and their York (Tr. 4644), and IBP, Inc. (Tr. 4973)
Employers are required to demonstrate interest in the program is vital to its described a process that includes these
management leadership of their success. If employees do not report their job hazard analysis features.
ergonomics program through the MSD signs and symptoms or MSD As discussed in the summary and
following subelements: an effective hazards, any ergonomics program will explanation for the standard’s job
MSD reporting system and prompt fail. OSHA has specifically included in hazard analysis and control
responses to employee reports, the paragraph (c)(1)(ii) a provision that requirements (paragraphs (j) through
assignment of clear program employees be involved in the (m)) later in this section of the
responsibilities, and regular implementation, evaluation, and future preamble, the rulemaking record
communication with employees about development of grandfathered programs demonstrates that, currently, employers
the ergonomics program. OSHA’s to make it clear that employee with existing programs do not always
experience has shown that, to be involvement extends to every element of fix all problem jobs, nor do they
effective, management leadership must the program, including program eliminate all MSDs. To address these
be active rather than passive. evaluation and future modifications to facts, the final rule’s grandfather clause
Leadership that is limited to a ‘‘paper the program to reflect changes over (1) permits employers to bring all
program’’ with written policies and time. problem jobs into their programs, and
procedures but is not translated into Final paragraph (c)(1)(iii) requires (2) acknowledges that employers will
practice by management would not meet grandfathered programs to contain job not eliminate all MSDs. Employers with
the intent of this provision. On the other hazard analysis and control, as grandfathered programs must, however,
hand, management leadership that is demonstrated by a process for implement controls that (1) control the
known throughout the organization identifying, analyzing, prioritizing (if MSD hazards, (2) reduce MSD hazards
because of management’s active necessary), and controlling MSD to the levels specified in Appendix D,
engagement in the ergonomics process hazards in affected jobs and following or (3) reduce MSD hazards to the extent
and appropriate follow-through on up to ensure control effectiveness. This feasible. These are the same compliance
commitments would clearly fulfill this is the heart of any ergonomics program. endpoints specified in paragraph (k)(1)
intent. The final rule’s management For employees to be protected from of the final rule. These endpoints are
leadership subelements are equivalent MSD hazards, it is obvious that those explained in the summary and
to those of the proposed basic obligation hazards must be eliminated or explanation for that paragraph.
for this core element, except that OSHA controlled. A note following this Thus, the grandfather clause in the
has added ‘‘regular communication with paragraph explains that personal final rule will enable employers with
employees’’ and ‘‘prompt’’ responses to protective equipment (PPE) may be used existing programs that only address
reports to the subelements of the final as a supplement to engineering, work certain jobs to qualify for the
rule’s grandfather clause. The Agency practice, and administrative controls. grandfather clause if they include all
has added these subelements to make The employer may only use PPE alone problem jobs in their program before the
sure that management leadership is where other controls are not feasible. In standard’s effective date. Thus, even
responsive to employee reports and that addition, the note explains that, if PPE programs that do not currently address
management’s commitment to the is used, the employer must provide it at all problem jobs would not be precluded
ergonomics program is communicated no cost to employees. from qualifying for grandfather status,
from top management down to the As can readily be seen from Table 1, providing that they revise their
employees performing the work and this provision has been changed approach to include all such jobs before
implementing the program. Taken as a substantially from the corresponding the standard is in effect.
whole, OSHA believes that the requirement in the proposal. The job Final rule paragraph (c)(1)(iv) requires
subelements in final paragraph (c)(1)(i) hazard analysis and control subelements grandfathered programs to provide for
will ensure that grandfathered programs in the final rule’s grandfather clause are the training of managers, supervisors,
have active rather than passive designed to be less prescriptive and and employees in the employer’s
management leadership. more flexible than those proposed and ergonomics program and their role in it;
Final paragraph (c)(1)(ii) requires that to fit better with the way rulemaking the recognition of MSD signs and
grandfathered programs include participants (see, e.g., Ex. 32–77, Tr. symptoms; the importance of early
employee involvement, as demonstrated 14723, Tr. 4973) described this process reporting; the identification of MSD
by the early reporting of MSDs and in their existing ergonomics programs. hazards, and methods that the employer
active employee involvement in the The final rule’s grandfather clause is using to abate them. Training is to be
implementation, evaluation, and future requires employers to use a process for provided at no cost to the employees
development of the employer’s identifying, analyzing, and controlling trained. Training is necessary to ensure
ergonomics program. OSHA has MSD hazards in problem jobs. that employees in problem jobs, their
vigorously advocated employee Employers may also prioritize jobs supervisors, and the individuals who set
participation in workplace safety and identified as having MSD hazards and up and manage the ergonomics program
health issues for many years and is then follow their prioritization scheme are provided with the knowledge and
pleased by the growing recognition of when controlling these hazards. skills necessary to recognize MSD signs,
the importance of employee Employers with grandfathered programs symptoms, and hazards in their
participation on the part of private- must also follow up on their hazard workplace and to effectively participate
sector companies, trade associations, control measures to ensure that the in the ergonomics program. These
safety and health professionals, and controls implemented are effective. This individuals also need to be trained in
employees themselves. OSHA supports is the process that participants in the the need for early reporting. The length
employee participation because rulemaking told OSHA they use in their and frequency of training is determined

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by the needs of the workplace. Periodic or any other measure that demonstrates a year after the effective date of the
training is necessary to address new program effectiveness. standard.
developments in the workplace and to Lastly, final rule paragraph (c)(1)(v) OSHA believes that all successful
reinforce and retain the knowledge requires the employer to conduct at ergonomics programs depend on the
already acquired in previous training, least one review of the elements and early reporting of and intervention with
but to make this element as flexible as effectiveness of the program before
regard to MSD signs and symptoms; this
possible, OSHA is not specifying the January 16, 2001. This provision, which
is as true for grandfathered programs as
frequency with which training must be is discussed in detail below, ensures
for those that are not grandfathered. As
provided. that only effective programs are
discussed at length in connection with
Final rule paragraph (c)(1)(v) requires grandfathered. Although paragraph
paragraph (r), OSHA has found, both on
grandfathered programs to include (c)(1)(v) requires employers to correct
this record and in the records of many
evaluations of the program, as deficiencies in the program, OSHA
other OSHA standards, that wage and
demonstrated by regular reviews of the would not consider an employer who
benefit protection is essential to early
elements of the program, the uncovers major deficiencies in the
reporting and employee participation in
effectiveness of the program as a whole, program elements or whose evaluation
and the correction of identified the employer’s program. Without such
does not demonstrate the overall
deficiencies. This means that employers protection, employees fear economic
effectiveness of the program to be in
must, at a minimum, assess the loss and often simply do not report their
compliance with this paragraph.
functioning of their ergonomics signs and symptoms until the injury has
Requiring any program that is
program, compare its provisions to the progressed to the point where work (and
grandfathered to be demonstrably
elements and subelements specified in perhaps full recovery) is no longer
effective is basic to employee protection
the grandfather clause, identify any possible. In addition, as fully explained
and to ensuring that grandfathered
deficiencies in the program, and correct in the summary and explanation for
programs are at least as effective as the
them. Employers are required to make paragraphs (p) through (s) of the final
programs required by the standard
sure that the ergonomics program they rule, when an employee reports an
OSHA is promulgating for all general
have implemented is eliminating or MSD, early intervention is required to
industry employers and employees.
controlling the MSD hazards in jobs in The final rule’s grandfather clause ensure appropriate treatment, work
their workplace. A program designed for does not identify specific rates of MSDs restrictions, and follow up. OSHA
a large site with many different jobs, for or other similar measures of anticipates that many existing programs
example, is likely to be more formal and effectiveness that a grandfathered will be able to meet the requirements of
extensive than one designed for a small program must achieve because OSHA is paragraph (s) by use of the dispute
site with one or two high-risk jobs. aware that the programs grandfathered resolution mechanisms described in
Similarly, an ergonomics program that in will be at many different stages of paragraph (s)(5).
fits a manufacturing facility may not be program development and because Final rule paragraph (c)(3) states that
appropriate for a work environment in OSHA wishes to recognize as wide a an ergonomics program of an employer
the service sector. To make the range of existing effective programs as who has policies or procedures that
evaluation requirements for possible. Although the grandfather discourage employee from participating
grandfathered programs as flexible as clause does not set a specific reduction in the program or reporting the signs or
possible, OSHA is not specifying the goal, employers are required by symptoms of MSDs or the presence of
frequency with which evaluations must paragraph (c)(1)(v) to demonstrate the MSD hazards in the workplace does not
be conducted. However, employers do effectiveness of their programs. qualify for grandfather status. This
need to reevaluate their programs Paragraph (c)(2) of the final rule provision, which is equivalent to
periodically to ensure that they are requires employers with grandfathered paragraph (h)(3) of the final rule,
performing up to expectations. programs to institute an MSD ensures that employees are as free to
Final rule paragraph (c)(1)(v) also management policy (including work participate fully in grandfathered
requires the program evaluation to restriction protection) that meets programs as employees in programs that
review the effectiveness of the program, paragraphs (p) through (s) of the final are not grandfathered. As discussed at
using such measures as: reductions in rule within 12 months of the effective length in connection with paragraph
the number or severity of MSDs, date of the standard. Thus, the final (h)(3), OSHA has found that employee
increases in the number of jobs in which rule’s grandfather clause is designed to participation is essential to a program’s
ergonomic hazards have been recognize existing ergonomics programs effectiveness and that a prohibition on
controlled, reductions in the number of that are effective even if they do not policies that inhibit that participation is
jobs posing MSD hazards to employees, have an MSD management policy until warranted.

TABLE 1—COMPARISON OF PROPOSED BASIC OBLIGATIONS WITH FINAL GRANDFATHER CLAUSE PROGRAM ELEMENT
CORE ELEMENTS AND SUBELEMENTS
Corresponding core elements and subelements of the final grandfather
Proposed basic obligation clause

Proposed Management Leadership Obligation Final § 1910.900(c)(1)(i) and (ii) and (c)(3): [Your program must contain
the following elements:]
You must demonstrate management leadership of your (c)(1)(i) Management leadership, as demonstrated by an effective MSD
ergonomics program. Employees (and their designated rep- reporting system and prompt responses to reports, clear program re-
resentatives) must have ways to report MSD signs and MSD sponsibilities, and regular communication with employees about the
symptoms; get responses to reports; and be involved in devel- program;
oping, implementing and evaluating each element of your pro- (c)(3) An employer who has policies or procedures that discourage em-
gram. You must not have policies or practices that discourage ployees from participating in the program or reporting the signs or
employees from participating in the program or from reporting symptoms of MSDs or the presence of MSD hazards in the work-
MSD signs or symptoms. place does not qualify under paragraph (c) of this section.

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TABLE 1—COMPARISON OF PROPOSED BASIC OBLIGATIONS WITH FINAL GRANDFATHER CLAUSE PROGRAM ELEMENT
CORE ELEMENTS AND SUBELEMENTS—Continued
Corresponding core elements and subelements of the final grandfather
Proposed basic obligation clause

Proposed Employee Participation Obligation:
You must set up a way for employees to report MSD signs and (c)(1)(ii) Employee participation, as demonstrated by the early reporting
symptoms and to get prompt responses. You must evaluate em- of MSDs and active involvement by employees and their representa-
ployee reports of MSD signs and symptoms to determine wheth- tives in the implementation, evaluation, and future development of
er a covered MSD has occurred. You must periodically provide your program;
information to employees that explains how to identify and report [See also paragraph (c)(1)(iv).]
MSD signs and symptoms.
Proposed Job Hazard Analysis and Control Obligation: Final § 1910.900(c)(1)(iii): [Your program must contain the following
elements:]
You must analyze the problem job to identify the ergonomic risk Job hazard analysis and control, as demonstrated by a process that
factors that result in MSD hazards. You must eliminate the MSD identifies, analyzes, and uses feasible engineering and administrative
hazards, reduce them to the extent feasible, or materially reduce controls to control MSD hazards or to reduce MSD hazards to the
them using the incremental abatement process in this standard. levels specified in Appendix D or to the extent feasible, and evalu-
If you show that the MSD hazards only pose a risk to the em- ates controls to assure that they are effective.
ployee with the covered MSD, you may limit the job hazard anal- Note to Paragraph (c)(1)(iii): Personal protective equipment (PPE)
ysis and control to that individual employee’s job. may be used to supplement engineering and administrative controls,
but you may only use PPE alone where other controls are not fea-
sible. Where PPE is used you must provide it at no cost to employ-
ees.
Proposed Training Obligation: Final § 1910.900(c)(1)(iv): [Your program must contain the following
elements:]
You must provide training to employees so they know about MSD Training of managers, supervisors, and employees (at no cost to these
hazards and your ergonomics program and measures for elimi- employees) in your ergonomics program and their role in it; the rec-
nating or materially reducing the hazards. You must provide ognition of MSD signs and symptoms; the importance of early report-
training initially, periodically, and at least every 3 years at no ing; the identification of MSD hazards in jobs in your workplace; and
cost to employees. the methods you are taking to control them.
Proposed MSD Management Obligation: Final § 1910.900(c)(2): [Your program must contain the following ele-
ments:]
You must make MSD management available promptly whenever a By January 16, 2002, you must have implemented a policy that pro-
covered MSD occurs. You must provide MSD management at vides MSD management as specified in paragraphs (p), (q), (r) and
no cost to employees. You must provide employees with the (s) of this section.
temporary ‘‘work restrictions’’ and ‘‘work restriction protection
(WRP)’’ this standard requires.
Proposed Program Evaluation Obligation: Final § 1910.900(c)(1)(v): [Your program must contain the following ele-
ments:]
You must evaluate your ergonomics program periodically, and at Program evaluation, as demonstrated by regular reviews of the ele-
least every 3 years, to ensure that it is in compliance with this ments of the program; regular reviews of the effectiveness of the
standard. program as a whole, using such measures as reductions in the num-
ber and severity of MSDs, increases in the number of jobs in which
ergonomic hazards have been controlled, or reductions in the num-
ber of jobs posing MSD hazards to employees; and the correction of
identified deficiencies in the program. At least one review of the ele-
ments and effectiveness of the program must have taken place prior
to [insert date 60 days after the publication date of this standard].

The following paragraphs discuss the 11290, 11615). Most of these employer’s program had been
comments, evidence and testimony commenters argued that the proposed demonstrated to be effective in
received on the proposed grandfather standard would only permit existing preventing MSDs. For example, the U.S.
clause and present OSHA’s reasons for programs that already met all of the Chamber of Commerce stated this view
accepting or rejecting the rulemaking details of the program required by as follows:
participants’ suggestions and for OSHA’s standard to be grandfathered OSHA claims that employers who already
including the final rule’s grandfather (see, e.g., Exs. 30–1722, 30–3853, 30– have ergonomics programs in place ‘‘may
clause requirements. 3934, 30–3956, 32–141; Tr. 11265, Tr. continue that program, even if it differs from
1. Whether the Proposed Standard 11290, Tr. 11615). According to these the one [the proposed] standard requires’’ if
Would Recognize Existing Effective commenters, the basic obligation OSHA the program meets certain requirements
proposed for each core element would * * *. The Proposed Rule requires that
Programs ergonomics programs that were implemented
in actuality have required an employer
Many rulemaking participants said to meet each of the proposed and evaluated before the effective date of the
subrequirements under that core Proposed Rule must, among other things, (1)
that the proposed rule’s grandfather
satisfy the ‘‘basic obligation’’ of each of the
clause would not, as drafted, recognize element. Thus, they reasoned that the standard’s six program elements; and (2)
existing effective programs (see, e.g., proposed grandfather clause would only demonstrate that the elements of the
Exs. 30–574, 30–973, 30–1722, 30–3765, recognize existing programs that already preexisting program are ‘‘functioning
30–3813, 30–3815, 30–3845, 30–3853, met all of the particulars of the program properly * * *.’’ This provision is
30–3934, 30–3956, 30–4185, 31–297, envisioned by OSHA’s proposed completely inadequate to assist employers
32–141; 500–188; Tr. 3320, 4137, 11265, standard even in cases where the with preexisting programs. The qualifications

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written in to this provision essentially incidence and severity rates and of implementation was better than another,
require that employers reconstruct their educating employees about how to yet OSHA has drafted a rule that makes only
existing programs, even if any given program minimize discomfort on and off the job. one program approach—OSHA’s—
is effective in addressing supposed ‘‘MSD The National Association of acceptable.
hazards,’’ so that it mirrors the Proposed * * * [A]s written, virtually no employer
Manufacturers (NAM) and others noted
Rule’s notion of an appropriate ergonomics would qualify under [the proposed
program. that some companies have adopted grandfather clause’s] terms, rendering it a
[A]n employer is supposed to ensure that effective ergonomics programs under nullity. As was attested to by several industry
his program satisfies the ‘‘basic obligation’’ of OSHA’s Voluntary Protection Program representatives during the public hearings,
each program element. The ‘‘basic (VPP) or through corporate settlement even those programs that OSHA has
obligation’’ of each [proposed] element is so agreements (see, e.g., Exs. 30–3392, 30– acknowledged as being among the best in
broadly written that it encompasses all 3815, 30–3819, 30–4499). These industry today would not be in compliance
requirements enumerated under that rulemaking participants observed that with the proposal. As pointed out in ORC’s
particular element. Thus, employers, these ergonomics programs would not oral testimony, it is unlikely that any of the
including those Chamber members who have approximately 150 member companies of
be acceptable under the proposed
[spent] a great deal of effort and money to ORC’s occupational safety and health groups,
establish voluntary ergonomics programs, grandfather clause even though they whose safety and health programs are among
will be forced to [alter] their preexisting have been recognized as effective by the the most sophisticated and effective in the
programs to comply with the Proposed Rule Agency in the past. NAM urged OSHA world, would meet the criteria under section
(Ex. 30–1722). in the final rule to grant employers’ 908 of the proposal. This is because of the
existing ergonomics programs greater proposed requirement that an employer must
Edison Electric Institute’s (EEI’s) meet all of the ‘‘basic obligation’’ sections of
acceptance for grandfather status based
comments were similar: each program element. Virtually all of the
on the results they achieve.
EEI supports the concept of a Similarly, Organization Resources proposed ‘‘basic obligations’’ are too
‘‘grandfather’’ clause. However, the proposed Counselors, Inc. (ORC) noted that a prescriptive and should be simplified as
version is more illusory than real, for it described more fully in ORC’s written
recent General Accounting Office (GAO)
appears to require that all newly proposed comments. In particular, many ORC
study recommended that OSHA adopt a employers would not meet the provisions of
controls be put in place before the effective
date of the standard. It is unrealistic and flexible approach in its ergonomics [proposed] sections 911, 917, 923 or 929,
unfair to ‘‘grandfather’’ only those programs standard (Ex. 500–214). ORC argued that individually, and almost none would meet
that track the proposed standard. It is as if OSHA ignored this GAO all four (Ex. 500–214).
OSHA is saying, ‘‘You don’t have to do recommendation in drafting the Summing up the concerns of
anything, provided that you have done proposed grandfather clause. As commenters wanting a more flexible
everything.’’ A true ‘‘grandfather’’ provision evidence, ORC pointed out that even the
would give credit for effective past programs, grandfather clause, the American Dental
best ergonomics programs would not Association argued that the proposal
regardless of whether those programs qualify for status under the proposal’s
conform to the scheme of the proposed would reject alternative programs that
grandfather clause, stating: might be equally or even more effective
program (Ex. 30–3853).
OSHA has predicated its proposed (Ex. 32–141). The Association
The American Hotel and Motel Ergonomics Program Standard on its
Association gave examples of how an recommended that OSHA establish a
observations that many businesses are standard based on objective measures or
effective existing program might fail successfully addressing ergonomics issues
OSHA’s proposed grandfather test: using similar approaches. In recognition of
performance and leave the methods of
this conclusion and in order to focus its own achieving those objectives to employers.
OSHA does not allow for any variation Several employer representatives
scarce resources on the areas of greatest need,
from OSHA’s regulation if a [company’s] illustrated how various effective
OSHA has proposed a ‘‘limited grandfather
ergonomics program does not satisfy ‘‘the
clause’’ for employers with existing existing ergonomics programs would
basic obligation section of each program
ergonomics programs that meet certain fail to meet the proposed grandfather
element in this standard.’’ An ergonomics
criteria. OSHA’s proposal made numerous clause (see, e.g., Ex. 30–4185; Tr. 8634,
program that is proven to be 100 percent
references to the 1997 General Accounting 9181, 11265). For example, IBP, Inc.,
effective would fail if it only offered, for
Office (GAO) study of several companies
example, training every five years. An which has a corporate-wide ergonomics
with ergonomics programs which found that
ergonomics program also would likely fail if the companies’ programs reduced work- settlement agreement with OSHA,
it provided program evaluation only upon a related MSDs and associated costs, and that identified several aspects of the
report of an ergonomic injury yet did not the programs and controls selected by proposed program that their program
have a reportable injury in less than three employers to address ergonomic hazards in does not address: responses to every
years (Ex. 30–3233). the workplaces were not necessarily costly or MSD symptom, communication with
The Center for Office Technology complex. As a result, OSHA said, ‘‘GAO the health care provider, and WRP (Tr.
noted that none of the exemplary recommended that OSHA use a flexible 4929, Tr. 5041). In the hearings, an IBP
ergonomics programs that have won the regulatory approach in its ergonomics
representative stated that its program
standard that would enable employers to
Center’s ergonomics award have develop their own effective programs.’’ would not meet the grandfather clause
requirements for work restriction OSHA claimed that the standard it proposed because of proposed requirements in
protection, which would have been reflects this recommendation and ‘‘builds on these three areas (Tr. 5041). Many other
required by the proposed standard to be the successful programs that thousands of employer representatives also noted that
in place by the standard’s effective date proactive employers have found successful in their programs did not include
in order for a program to be dealing with their ergonomic problems’’ (64 provisions providing for work
grandfathered (Ex. 30–2208). Thus, the FR 65770). Unfortunately, in crafting the restriction protection and, consequently,
Center pointed out that these very good proposed grandfather clause, OSHA ignored would not qualify under the grandfather
programs would not meet OSHA’s a major finding of the GAO report: that
clause (Tr. 8634, Tr. 9181).
although there were common elements in
proposed grandfather clause. The Center each of the employer’s programs studied,
Constangy, Brooks and Smith stated
recommended that OSHA include in the there was significant variety in the way each that their clients could not meet the
final rule a grandfather clause that program element was implemented (GAO/ hazard control endpoints in the
would allow any program to be HEHS–97163, page 4). There was no proposed standard (Ex. 30–4185). They
grandfathered in that was reducing MSD evidence in the GAO study that one method argued that, as drafted, the proposal

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would mean that the occurrence of even compliance solely with the ‘‘basic sharing, this omission would result in
a single MSD would require their clients obligation’’ provisions—is critical to the ill-conceived recommendations from the
to implement new engineering controls. protection of workers from OSHA’s approval health care professional (Ex. 32–198).
Consequently, they believed that their of programs which are in fact ineffective. For • The basic obligation for the
the reasons [summarized by OSHA] below,
clients’ programs would not qualify proposed job hazard analysis and
UNITE does not believe that these criteria
under the proposed grandfather clause. will provide the appropriate level of workers control section omitted requirements
Other commenters also noted that their, protection (Ex. 32–198). that limited the use of personal
their members’, or their clients’ protective equipment and mandated
programs would not meet the proposed Several unions, including UNITE and that employers provide it at no cost to
standard’s grandfather clause for similar the United Food and Commercial employees (Ex. 32–210).
reasons (see, e.g., Exs. 30–3344, 30– Workers International Union (UFCW), • The proposal’s requirements for
3347, 30–3368, 30–3845, 30–4137). gave the following reasons why the program evaluation were inadequate
One witness at the hearing, Thomas J. proposal’s grandfather clause was and would allow employers to overlook
Durbin of PPG Industries, noted that inadequate: serious program deficiencies (see, e.g.,
since no one would benefit from the • The detailed provisions Exs. 30–4200, 32–198, 32–210). The
grandfather clause as it was proposed, implementing each of the proposed unions believed that, because the rule’s
OSHA should either put in a true program elements, which would not be evaluation provisions are the primary
grandfather clause that recognizes required for grandfathered programs, are means for determining the acceptability
programs containing the six core necessary for adequate protection of of an existing program under the
elements or eliminate it altogether (Tr. employees. UNITE pointed to OSHA’s grandfather clause, these provisions
3135, Tr. 3147). In questioning, he extensive justification for each of these should be revised in the final rule to
stated that he interpreted the proposal proposed provisions in the preamble prevent employers from inappropriately
to require the full program as long as and indicated that the justification approving unacceptably weak programs
MSDs continued to occur (Tr. 3140). applied just as well to programs in for grandfather status. (Also see the
The Boeing Company argued that the existence before the rule becomes summary and explanation for paragraph
restrictive nature of the proposal’s effective as to programs implemented (u), later in this section of the
grandfather clause ran counter to the afterward (Ex. 32–198). preamble.)
intent of the OSH Act (Ex. 30–1547). In • The proposed basic obligation The International Brotherhood of
support of their position, they pointed sections for the management leadership Teamsters (IBT) observed that the
to section 6(d) of the Act, which and training elements, which would be proposed standard would consider any
provides for a variance procedure to the only requirements employers with new ergonomics program coming into
recognize alternative approaches to grandfathered programs would have to effect to comply with the standard as
compliance with OSHA standards, meet, would allow poorly trained deficient if the new program did not
provided that the alternative provides managers to make determinations that meet one or more of the standard’s
equivalent employee protections. their program complies with the requirements (Exs. 30–4200, 32–461).
Boeing was particularly concerned that standard. The unions noted that training The IBT argued that existing programs
the standard, as proposed, would deny for managers was not included as part should be held to the same standard:
grandfather status to an employer who of the proposed basic obligation for
had a program but who had not yet these elements. They were particularly Any program grandfathered under this
proposal would essentially be judged by a
completed the implementation of all of concerned that inadequate training of different set of criteria than a program
the control measures required by the managers would result in improper developed after the effective date. The
proposal. program evaluations (see, e.g., Exs. 30– grandfathered program would be considered
On the other hand, many rulemaking 4200, 32–198, 32–210, 32–421). to be in compliance despite having missing
participants indicated that the proposed • Job hazard analysis and control and components, provided that the [proposed]
standard’s grandfather clause would quick fixes could be performed without basic obligations as currently defined, are
allow ineffective programs to be the input of employees because met. An identical program, that was
grandfathered (see, e.g., Exs. 30–4200, employee participation is not a part of developed after the effective date and was
32–111, 32–182, 32–198, 32–210, 32– the proposed basic obligation of those not grandfathered would not be considered to
339; Tr. 3477). For example, the United be fully in compliance and would be cited by
provisions.2 The unions argued that,
Steelworkers of America and others compliance officers for each component of
without feedback from employees, a the standard that was lacking, despite
were concerned that employers whose provision not addressed in the proposed meeting the very same basic obligations that
program evaluations failed to identify basic obligation for the job hazard the grandfathered program met. This
deficiencies simply because the analysis section, employers would be weakness can not be used as an argument
evaluations were not done properly likely to improperly identify risk factors that compliance is too difficult to determine,
could be grandfathered in under the or select improper hazard controls (see, but rather must be viewed as an argument
proposed standard (see, e.g., Exs. 32– e.g., Exs. 30–4200, 32–198, 32–210, 32– that the grandfathering provision, as it
111, 32–182). They recommended that 461). currently stands, has serious flaws and must
OSHA develop additional regulatory • The proposed MSD management be significantly improved such that every
text to strengthen the program worker is provided the same protections
basic obligation is missing a under this standard (Ex. 32–461).
evaluation provisions. The Union of requirement for health care
Needletrades, Industrial and Textile professionals to be provided with At the hearing, OSHA stated that the
Employees (UNITE) was also very information about the workplace and Agency’s intent in the proposal was to
concerned that the proposed grandfather the employee’s job (Ex. 32–198). include a grandfather provision that
clause would inadequately protect According to UNITE, which has had recognized existing effective ergonomics
employees (Ex. 32–198), stating: first-hand experience with programs programs:
The acceptability of existing programs that do not require such information Other requirements of the proposal that
depends largely on the criteria used to OSHA has designed to be flexible include a
determine acceptability. Therefore, the 2 UNITE also noted that the proposed quick fix grandfather clause that permits employers
correctness of the current criteria— section had no basic obligation section at all. who have already implemented an

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Ergonomics Program to continue to operate examples of some of the specific problems are generally resolved in an
that program as long as it meets minimal measures that employers may use to expedient manner before they represent
requirements (Tr. 19). demonstrate that their programs are hazards. While all of these are approaches
effective. These changes will enable that can support safety in an effective and
It is readily apparent from the expedient manner, none of these would
rulemaking record that very few, if any, more employers’ programs to qualify for represent sufficient ergonomics programs
existing ergonomics programs would be the grandfather clause but will also under the proposal; and that is part of the
able to fulfill the requirements of the ensure that only effective existing problem with the proposal: it discounts
proposed grandfather clause. Although programs are recognized. The changes systems that work, but that are not as
OSHA drafted the language in the also shift the focus from compliance comprehensive or well-documented as the
proposed standard generally and in the with the rule to effectiveness in proposal (Ex. 30–3849).
grandfather clause specifically to be preventing MSDs. Although OSHA Some rulemaking participants
flexible, the Agency recognizes that the believes that having all six elements is recommended that programs be
grandfather clause, as proposed, was not vital to qualify a program for grandfathered based solely on one or
sufficiently flexible to allow existing grandfather status, OSHA is not more measures of effectiveness (see, e.g.,
programs that are effective in protecting interested in technical compliance but Exs. 30–1901, 30–3211, 30–3344, 30–
employees from MSD hazards to be in real effectiveness. 3348, 30–3361). For example,
grandfathered in. On the other hand, 2. Whether Effectiveness of an Armstrong World, Inc., recommended
OSHA agrees with many of the union Ergonomics Program Is All That Matters accepting for grandfather status
comments, discussed above, that it is programs based on the employer’s
important that the grandfather clause Many rulemaking participants
injury incidence rates:
not recognize programs that are believed that it would be more
appropriate for the standard to simply Employers should be exempt from any
ineffective in protecting employees from proposed standard based on their
MSD hazards. OSHA has structured the accept proven, effective programs than
performance in preventing such injuries. We
final rule’s grandfather clause to strike to require that grandfathered programs
would suggest using 50% of the employers’
an appropriate balance between also include the core elements of industry’s respective SIC Code rates for Total
flexibility, on the one hand, and successful programs (see, e.g., Exs. 30– Recordable Cases and Cases With Days Away
program effectiveness, on the other. 523, 30–1090, 30–1901, 30–1722, 30– From Work as a meaningful measure of
In drafting the proposed and final 2208, 30–3211, 30–3765, 30–3813, 30– accepting existing employer ergonomics
rules, OSHA has relied heavily on the 3934, 30–3956; Tr. 3319, 15657). In their processes as they are (Ex. 30–1901).
Agency’s experience with effective view, effectiveness is the only part of Other rulemaking participants also
ergonomics programs that proactive the program that matters, and therefore recommended using injury rates, either
employers have implemented; in fact, any existing program that is effective in absolute terms or in terms of showing
the final rule is modeled after such should be grandfathered. Doerle Food a reduction, as a measure of
programs. OSHA has concluded that it Services, Inc., exemplified many of effectiveness and qualification for
is reasonable for the Agency to include these comments: grandfather status (see, e.g., Exs. 30–
in the final rule a grandfather clause OSHA has made its position clear, at 64 3344, 30–3348, 30–3361). For example,
that is less prescriptive than the one Fed. Reg. 65791, in which it states that the the Exxon Mobil Production Company
proposed and is more closely focused agency believes ‘‘enforcement of the standard suggested that the standard grandfather
will be more consistent and more equitable
on the effectiveness of existing a program if the employer’s records
* * * if the test of an employer’s program
programs. The Agency has made several is whether it contains the core elements, demonstrate that the program is
changes to the final rule’s grandfather rather than whether it is effective.’’ This is, preventing MSDs and is managing
clause to achieve this end. First, OSHA we submit, an incredible statement, and ergonomic concerns (Ex. 30–2433). John
has streamlined the subelements (called reflects OSHA’s devotion to its mandated W. Braddock suggested that employers
‘‘basic obligations’’ in the proposed program and ‘‘control’’ strategy, as opposed be permitted to produce evidence that
rule) under each core element and has to actual effective programs. It is this outlook the existing program was working and
which is at the core of the ‘‘grandfather’’ that there is an effective early reporting
removed some of the more prescriptive provision, since it does not accord
requirements. For example, the final recognition in any meaningful way to a pre- mechanism in place and to qualify for
rule has not carried forward the existing effective program that can be shown grandfather status on this basis (Ex. 30–
proposal’s provision that periodic to have minimized the conditions that are at 4301).
training and program evaluations in issue. This portion of the standard clearly ORC argued that there are a number
grandfathered programs be conducted at needs to be reconsidered and expanded (Ex. of ways to measure program
intervals of no more than 3 years. 30–523). effectiveness, which should be the true
Second, OSHA is permitting employers The Washington Aviation Group gave gauge of the worthiness of any
to add or strengthen elements of their examples of how an employer’s ergonomics program (Ex. 30–3813; Tr.
programs, provided that they do so, and ergonomics program might be effective 4112). They suggested several possible
evaluate the program at least once, without meeting the proposal’s ways to measure effectiveness:
before the effective date of this rule. grandfather criteria: OSHA might place the initial burden of
Third, because so many commenters There are a variety of reasons why a demonstrating effectiveness of the program
with otherwise effective programs company might experience few or no on the employer and include in a non-
reported that their program would not ergonomics problems. The business owner mandatory appendix a number of types of
qualify for grandfather status solely may have an intuitive sense of how to performance measures and approaches that
because it did not have a WRP promote comfort among the employees that OSHA would consider appropriate. OSHA
component, the final rule gives has a beneficial effect on ergonomics issues. mentions some in the preamble, e.g.,
The nature of the work might be such that decreases in the numbers or rates of MSDs
employers a year from the effective date and decreases in severity. Other measures
it does not lend itself to repetitive motion
of the standard to add such protections disorders or other ergonomics problems. might include reduced workers’
(which are a part of MSD management) Management may have established an compensation claims for MSDs, use by the
to their existing programs. Fourth, effective rapport with the employees that is employer of periodic symptoms surveys and
OSHA has included, in the final rule, sufficiently responsive so that potential other indicia of effective early reporting, or

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demonstration that risk factors have been that grandfathered programs must be in OSHA’s real goal: The reduction in the
reduced and/or tools and equipment have place and be judged effective by the number of MSDs experienced by
been modified. An employer might time the standard is effective in order to workers.
demonstrate effectiveness based on periodic
be grandfathered. The Departments of In their post-hearing submission, the
program evaluation that measures
effectiveness based on an internal ‘‘score Defense and Navy recommended that U.S. Chamber of Commerce criticized
card’’ that looks at a number of appropriate the standard provide employers wishing the proposed grandfather clause’s
effectiveness measures. to grandfather their programs in with reliance on the proposed core elements’
* * * * * sufficient time to conduct a statistically basic obligations instead of
ORC believes strongly that OSHA should significant evaluation of the effectiveness:
be focusing its attention on results or effectiveness of the program even if the The Agency claims that existing programs
performance, not methodology (Ex. 30–3813). evaluation did not take place until after will be evaluated upon the existence of the
However, even though ORC objected to the effective date (Ex. 30–3818; Tr. core elements rather than a program’s
the proposed grandfather clause’s 3228). They were concerned that it effectiveness * * * because it will make
emphasis on core elements and their would not be possible to perform such such evaluation ‘‘less time-consuming’’ and
an evaluation before the effective date of ‘‘administratively simpler’’ for both OSHA
basic obligations, they did agree with
the standard, as the proposal required. and the employers. 64 Fed. Reg. at 65791. Of
OSHA that there is a need to ensure that course, the real reason that the Agency has
any demonstration of effectiveness that In addition, they suggested that the
chosen to focus on content is that OSHA
relies on numbers or rates of MSDs not standard clarify what effectiveness simply cannot judge effectiveness and has no
mask any underreporting of MSDs (Exs. measures or evaluation points OSHA idea what it means to be an effective
30–3813, 32–78). would accept for each program element program. Indeed, in order to qualify under
Unisea, Inc. suggested the following in grandfathered programs (Ex. 30–3818; the Grandfather Clause, an employer’s
language for OSHA to use in the final Tr. 3228). existing program must not only contain the
rule to recognize existing ergonomics Other commenters suggested a variety core elements of the Proposed Rule, but must
programs based on effectiveness: of indicators of program effectiveness. also be ‘‘functioning properly.’’ And although
For example, the American Industrial according to the Preamble ‘‘effectiveness’’ is
If a company is able to show by operation not a measure of whether or not the program
redesign with ergonomics considerations Hygiene Association (Ex. 32–133)
is ‘‘functioning properly,’’ 64 Fed. Reg. at
made, or injury records or near-miss reports stressed measures of effectiveness other 65791, Marthe Kent testified to precisely the
that a reduction of reported MSD’s has than injury rates: opposite effect:
occurred, that company shall be considered OSHA needs to be more specific on what And further [proposed 1910.908], which
in compliance of the standard and its intent. constitutes an equivalent program so that says the evaluation indicates that the
OR, If a company is able to show a steady mediocre programs do not pass compliance, program elements are functioning properly,
overall reduction of injuries, either by total what we mean there is [that the elements] are
but programs showing improvements will
number or incident rate, that company shall effective. I mean, you cannot have a program
have a reasonable chance to be considered
be considered in compliance of the standard with the elements functioning properly and
acceptable. The evaluation of quality of the
and its intent (Ex. 500–158). it not be effective.
program should rely on real evidence of
Abbott Laboratories argued along hazards identified and risk reduction. Tr. at 1–182. Thus, not only can the
similar lines and submitted data in Specifically, have physical risk factors been Agency not determine what ‘‘effectiveness’’
support of its position. According to a reduced and have ergonomics improvements means, it also apparently cannot decide
comment in the record, Abbott been made? Indeed, this is the ‘‘bottom line.’’ whether or not ‘‘effectiveness’’ means the
Other things to look at include whether same thing as ‘‘functioning properly.’’ Until
Laboratories instituted ergonomics the Agency sorts out this conundrum in some
training has been done, and if there is a
programs at three laboratories in the late reduction in MSDs and associated workers’ understandable way, there can be no real
1980’s (Ex. 500–153). Abbott’s comment compensation costs (Ex. 32–133). Grandfather Clause in the Proposed Rule (Ex.
presented the OSHA-recordable illness 500–188).
rates at those facilities over the last 9 Herman Miller, Inc., listed several
measures that employers could use to OSHA did not propose a grandfather
years. These data are shown in Table 2.
measure effectiveness: ‘‘Reduction in clause that relied heavily on injury rate
Abbott states that the fall in rates over
MSD hazards, MSD severity rates, lost goals to demonstrate effectiveness
that period reflected ergonomic
workdays or benchmarked because, as the Agency noted in the
improvements made at each facility and
improvements in employee satisfaction proposal (see 64 FR 65980 et seq.),
should qualify these establishments for
rates’’ [Ex. 30–518]. They suggested MSDs are currently substantially
grandfather status.
leaving the specific protocol to the underreported, and relying on reported
discretion of the employer and noted rates would therefore, in many cases,
TABLE 2.—OSHA RECORDABLE ILL- overstate effectiveness. Some
NESS CASE RATES AT THREE AB- that OSHA compliance officers would
need to be given proper training and commenters, however, argued that MSD
BOTT LABORATORIES PLANTS rates were appropriate for this purpose
tools so that they could make logical
and qualitative assessments of (see, e.g., Exs. 30–2989, 30–3845). For
Year Plant A Plant B Plant C
ergonomics programs and determine example, the Forum for a Responsible
1999 ............ 1.03 1.44 1.46 whether they were effective enough to Ergonomics Standard stated:
1998 ............ 0.47 1.90 2.87 qualify for grandfather status. If OSHA is concerned with how to measure
1997 ............ 1.02 1.81 2.50 Dennis Morikawa, testifying on behalf ‘‘effectiveness,’’ it can prescribe the manner
1996 ............ 0.43 1.00 2.30 of Morgan, Lewis and Bockius, did not in which effectiveness is to be measured,
1995 ............ 0.71 3.27 2.74 specify a particular measure of such as reductions in the number and
1994 ............ 2.69 3.13 3.47 severity of MSDs. OSHA contends, however,
1993 ............ 3.70 4.27 4.51 effectiveness but recommended instead
that OSHA make the grandfather clause that most means of measuring ‘‘effectiveness’’
1992 ............ 3.25 2.52 6.68 have built-in incentives to discourage
1991 ............ 4.41 4.54 7.06 widely available to employers to reporting. See id. This contention ignores the
encourage as many of them as possible fact that companies are subject to regulatory
Source: Ex. 500–153. to adopt programs before the final rule’s requirements in the proposed rule, backed up
Another point raised by commenters effective date (Tr. 15657). He argued by OSHA fines and penalties, to facilitate
concerned the proposed requirement that this approach would further employee reporting (Ex. 30–3845).

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A. O. Smith Corporation commented rates can be misleading if efforts are not incidence rate of 19.3 per 1000
that, in its experience, few employers made to ensure that the rates reported employees 3 will experience an MSD
discourage reporting of workplace are accurate and that the use of such incidence rate that varies about that
injuries: rates is appropriate for the workplace. number from year to year. If employee
The provisions in the standard that allude Some of the problems with various exposure to MSD hazards at this
to the employer having programs in place objective measures of effectiveness are workplace remains relatively constant,
that discourage the reporting of MSD injuries described below. the actual incidence rate in any one year
tends to suggest that entire safety and health (a) Incidence rates are dependent on (assuming that the number of employees
awareness and accident prevention programs accurate reporting. An employer’s and other factors also remain constant)
would be construed as disincentives to recordkeeping system must accurately will probably be reasonably close to that
reporting. We do not accept this premise and count work-related MSDs if incidence value. In one year, for example, 17 of
find that most employers work hard at rates are to be a meaningful index of the 1000 employees could suffer an
making sure their employees are provided a
effectiveness. An employer whose MSD, while in the next year, 21 might
safe work environment and a mechanism to
report injuries should they occur (Ex. 30– employees are reluctant to report, or one be injured. This variability can be seen
2989). who does not record all MSDs, will in the Abbott Laboratories data in Table
appear to have a lower incidence rate 2, especially in the last 5 years, after the
Other rulemaking participants agreed than a comparable employer with an program had matured.
with the approach taken in OSHA’s accurate recordkeeping system, and the Variability is even more pronounced
proposal and opposed basing the incidence rate in the first employer’s in a workplace with few employees. If
grandfather clause solely on a measure establishment will bear no relationship the employer in the earlier example had
of the reduction in the number of MSDs to program effectiveness. There are 10 full-time employees and the same
in a workplace (see, e.g., Exs. 30–2387, many reasons why MSDs are overall average MSD incidence rate, the
32–339, 500–207). For example, the underreported (see the discussion of establishment could be expected to have
AFL–CIO stated that the elements that this issue in the summary and 0, 1, or 2 MSDs in a given year.4 The
OSHA included in the proposal’s explanation for MSD management). If corresponding incidence rates per 1000
grandfather clause are widely there are disincentives to reporting, employees, however, would be 0, 100,
recognized as the basic elements of an employees may not report all MSDs. If and 200. If incidence rates alone were
effective program (Ex. 32–339). The an employee is not well informed about used as the measure of effectiveness at
International Brotherhood of Teamsters MSD signs and symptoms, he or she such a facility, the program would be
argued that, to be grandfathered, an probably will not realize that the signs rated very effective in one year and in
existing program needed to be and symptoms of an MSD are work- need of major correction in the other
comprehensive and to provide workers related and will fail to report them. years.
and their representatives with full Employees also fail to report MSDs in In the context of the grandfather
information and rights of participation some cases because they do not want to clause, this year-to-year variability
in addition to being effective in submit a claim to the workers’ poses problems for OSHA and for
reducing the number of MSDs (Ex. 500– compensation system. Thus, incidence employers. If the final rule were to
207). rates must be used with care. identify a specific rate as the sole
In response to these comments, OSHA (b) Severity rates are dependent on criterion for grandfathering existing
finds that the record evidence consistency in return-to-work policies. programs, then an employer whose
demonstrates that the Agency should Severity rates are typically measured in program was acceptable one year might
emphasize the effectiveness of terms of days away from work or days be unacceptable the next simply as a
grandfathered programs much more in on restricted duty. Changes in how result of this variability. For example,
the final rule than it did in the proposal. employers treat injured workers can suppose that the final rule selected 1.45
Record evidence also demonstrates that affect severity rates. For example, if an as the maximum acceptable incidence
the core elements are essential to employer who has traditionally rate for a grandfathered program. Abbott
effectiveness (see the discussion of the measured severity in terms of lost Laboratories Plant A (from Table 2)
core elements below). If a program is not workdays institutes a new policy of would have had an acceptable program
demonstrably effective in protecting placing employees with MSDs on in terms of grandfathering since 1995
employees from MSD hazards, OSHA restricted duty rather than removing the (Ex. 500–153). Abbott’s Plant C program
believes that such a program should not employee from work, the number of (from Table 2) would never have met
qualify for grandfather status and days away from work will decrease. the incidence rate limit in this period
should instead have to comply with all Thus, severity rates must also be used and would therefore have had to comply
the requirements of the final rule. On carefully to ensure that they are not with the ergonomics standard. Abbott’s
the other hand, if an existing reflecting a change in the employer’s Plant B (from Table 2) could have had
ergonomics program has the core MSD management process rather than a its program grandfathered in 1996 and
elements and is truly effective in true decrease in MSD severity. 1999, but would have had to comply
protecting employees, it merits (c) The randomness inherent in injury
with the standard in 1997 and 1998.
grandfather status. The central question and illness statistics may make
From this example, it can be seen that
then becomes how to measure incidence rates an unreliable indicator
of effectiveness. Injuries and illnesses some employers’ programs, after
effectiveness; if effectiveness measures
are events that occur based on initially qualifying for the grandfather
are not carefully chosen, ineffective
programs will be grandfathered in and probability. In other words, hazards do 3 This is the overall MSD incidence rate for SIC
the employees in the establishments not automatically lead to injuries or 283.
covered by such ineffective programs illnesses; the presence of hazards 4 It would take 100 years for this firm to have

will be inadequately protected. simply increases the probability that an 1000 employee-years of experience. If the employer
One widely used method of injury or illness will occur. Just as a had an incidence rate of 17 MSDs per 1000 full-time
employees, the employer would see 17 incidents
measuring effectiveness is the tracking coin flipped 10 times will not over 100 years. Over that period, in most years, no
of MSD incidence and severity rates. automatically land heads up 5 times, a MSDs would occur. In other years, one or maybe
However, MSD incidence and severity workplace with an average MSD two MSDs would occur.

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68292 Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations

clause, would subsequently be required many different organizations (the hazards. They also establish two-way
to comply with the ergonomics standard ergonomics standard uses slightly communication in the form of reporting
in at least some years.5 This ‘‘sometimes different terminology for some of these and response systems. OSHA finds that
in and sometimes out’’ phenomenon is elements): the core elements are essential to
not what OSHA or employers with • OSHA’s VPP, SHARP, and effective ergonomics programs, and the
existing ergonomics programs want consultation programs; record provides ample evidence of this
from a grandfather clause. • The safety and health programs (see the discussion below on whether
Alternatively, the final rule could mandated by 18 states; the core elements are necessary).
mandate that, to be grandfathered, the • The safety and health programs Employee participation, for example, is
employer’s MSD incidence rates had to recommended by insurance companies a prominent component of the programs
decrease over time, as suggested by for their insureds (many of which give of many leading companies (see, e.g.,
some rulemaking participants (see, for premium discounts for companies that Exs. 32–77, 32–185, 32–210; Tr. 4973,
example, the comments of Unisea, Inc., implement these programs or impose Tr. 5339). The core elements also help
Ex. 500–158, above). Again, the Abbott surcharges on those that do not); to ensure that employees are reporting
Laboratories data in Table 2 show that • The safety and health programs their MSDs, that management is
this approach would also be recommended by the National responding to these reports, that jobs are
problematic (Ex. 500–153). All three of Federation of Independent Business, the being analyzed and fixed, and that the
Abbott Laboratories’ plants experienced Synthetic Organic Chemical program is functioning as it should. The
increasing rates in some years in the Manufacturers Association, the core elements thus help to ensure that
period reported. Although the overall Chemical Manufacturers Association, programs are not focusing too heavily
trend over the full 9-year period is the American Society of Safety on quantitative measures of
downward for all of the Abbott plants, Engineers, and many others; effectiveness, which, as the discussion
this is not the case for all time periods. • The strong recommendations of above shows, are often misleading.
For example, Plant C’s incidence rates OSHA’s Advisory Committees OSHA agrees, however, that
went up over the 4-year period from (NACOSH, ACCSH, and MACOSH), effectiveness measures can be useful in
1995 to 1998 (see Table 2). In fact, which consider these program elements determining the degree to which an
OSHA’s experience is that, as an essential to effective worker protection ergonomics program is working.
employer’s ergonomics program programs. Employers and authors of effectiveness
OSHA also is including WRP, or studies routinely rely on them as
matures, incidence rates begin to level
equivalent protections against wage evidence that an ergonomics program is
off, albeit at a much lower rate than
loss, as a requirement for all programs having a positive effect. Of the measures
before the program was established (see
(both those that are grandfathered and available, incidence and severity rates
Chapter IV of the Economic Analysis).
those complying with the standard) are most commonly used and were most
Other ‘‘objective’’ measures of
because, without it, OSHA believes that often recommended in the rulemaking
effectiveness recommended by
many employees will be reluctant to record (see, e.g., Exs. 30–1901, 30–2208,
rulemaking participants (see e.g., Ex.
report their MSDs because they fear 30–3344, 30–3348, 30–3361). If one of
30–3813; Tr. 4112) pose similar
economic loss. There is strong evidence these measures is used, the employer
problems. Decreases in the rate of
that such underreporting is currently must take care to ensure that the
workers’ compensation claims have the
taking place, as well as evidence that calculated incidence or severity rate
same problems as incidence rates when
protecting workers from wage loss accurately reflects conditions at the
they are used as effectiveness measures.
increases reporting (see the discussion workplace. First, the effectiveness
Symptom surveys, although valuable as
of underreporting in the summary and measure chosen must be appropriate for
an early reporting tool, vary from one
explanation for MSD management). the size and nature of the workforce and
workplace to another and therefore
OSHA’s purpose in including a WRP the employer’s MSD experience. For
cannot be used for different sites.
provision, both in the grandfather clause example, as explained earlier, an
Reductions in employee exposure to
and in the standard, is to ensure employer with few employees will not
MSD hazards is a good measure of
employee participation and free and full find incidence rates useful to measure
whether an ergonomics program is
reporting of MSDs and MSD hazards. effectiveness. Instead, such employers
working but, OSHA has no benchmark
Effective ergonomics programs depend could examine whether employee
that adequately describes the
on such reporting, and the standard also exposure to MSD hazards has been
performance of an effective program.
depends on employee reporting for its reduced. Second, the employer must
Without a benchmark, reductions in
effectiveness. Absent such reporting, no check to ensure that some MSDs are not
employee exposure to MSD hazards
ergonomics program will achieve its going unreported. If employees are
cannot be used as the sole criterion for
worker protection goals. failing to report MSDs, the employer’s
grandfathering programs at different
For these reasons, OSHA has calculated incidence and severity rates
sites.
concluded that quantitative will not accurately reflect the injury
In addition, OSHA has concluded that
effectiveness measures alone cannot be experience at the workplace. Third, the
the core elements (management
the sole basis for judging whether an employer should check rates over a
leadership and employee participation,
employer’s program should be variety of periods to ensure an overall
hazard identification and assessment,
grandfathered. The Agency’s experience downward trend in the data. Looking at
hazard prevention and control, MSD
over the last two decades, and that of data over a single period can be
management, training, and evaluation)
private industry and insurance misleading.
are essential to a properly functioning
companies, is that safety and health OSHA finds, based on the evidence in
ergonomics program. These elements
programs, and ergonomics programs, the record as a whole, that reliance on
are included in the safety and health
containing the core elements are both qualitative (the core elements) and
programs recommended or used by
effective in lowering injury and illness quantitative (effectiveness measures)
5 Using a rolling average incidence rate would rates. These programs work because components will best assure that any
help smooth out, but would not eliminate the year- they involve everyone in the program that is grandfathered deserves
to-year variability. organization in finding and fixing this status and will continue to operate

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effectively in the future. Consequently, rather than comprehensive approach to hazard analysis and control, training,
the final rule’s grandfather clause the problem and should therefore not be MSD management, and program
requires that grandfathered programs granted grandfather status (Exs. 30– evaluation. (The Agency has presented
contain the core elements of effective 4200, 32–461). The UFCW argued that evidence supporting each of these core
ergonomics and be demonstrably the proposed core elements are elements in the summary and
effective. Employers may use any of a recognized as the basic elements of a explanation for the corresponding
broad range of measures, including good ergonomics program (Ex. 32–210). provisions of the standard, below.)
reductions in the number or severity of They presented their experience with Further, the Agency finds that it is as
MSDs, increases in the number of jobs successful ergonomics programs as important for a grandfathered program
in which ergonomic hazards have been follows: to include all of the core elements as it
controlled, reductions in the number of The six elements OSHA is proposing in the is for a program brought into existence
jobs posing MSD hazards to employees, ergonomics program standard are included in to comply with the final rule to include
or any other measure that demonstrates all successful company programs! Further, these elements. Although some
program effectiveness to meet the the experience of the myriad of companies commenters, as discussed above, argued
grandfather clause’s requirement for a who have successfully tackled the problem that a program could be effective
demonstration of program effectiveness. through these elements attests to the
feasibility of the methods. The settlement
without all of the core elements, OSHA
3. Whether the Core Elements Are agreements OSHA has entered into with IBP, finds their arguments unpersuasive,
Necessary Sara Lee, Cargill, ConAgra Poultry, John based both on the record and the
Morrell & Co., Empire Kosher, Marshall Agency’s own experience with
Some industry representatives Durbin Companies, National Beef, successful programs.
objected to the proposed requirement Worthington Packing and Tyson Foods
that grandfathered programs contain all contain these six elements—all work, and all The Agency believes that the core
the core elements of the proposed are feasible. Many of the companies used elements provide assurance that the
standard (see, e.g., Exs. 30–1722, 30– ergonomists, they analyzed the jobs and program will work as intended—
3853, 30–3956; Tr. 5699). They argued developed engineering solutions to address management leadership will ensure that
the most egregious jobs. They developed the program has the continued backing
that any program that was effective in medical protocols so that workers can get to
reducing MSD rates should be accepted of management, which is essential to
treatment early rather than waiting until they
for grandfather status, even if it did not were crippled and needed surgery. They
continued success; employee
include all the core elements. protect workers wages and benefits when participation in the program will help
For example, the Washington Legal they report MSDs. And in our represented ensure that ergonomic hazards do not go
Foundation was particularly concerned companies, all this included the union in a undetected; hazard information and
that employee participation was fundamental way. In order to be effective, reporting will ensure that employees are
proposed as a required component of ergonomics programs by their very nature informed about MSD symptoms and
must be participatory and include workers at how to report them so that work-related
grandfathered programs and of the many levels, including those that do the
program required by the standard (Tr. problem jobs (Ex. 32–210).
MSDs are not ignored; work restriction
11265). They argued against mandatory protection helps to ensure that workers
employee participation: Mr. Bawan Saravana-Bawan, a report signs and symptoms as early as
representative from the Canadian possible; job hazard analysis and control
OSHA’s proposed ergonomic standard province of British Columbia, described
perhaps more so than any other standard are needed to ensure that ergonomic
how that province handled existing hazards are found and abated; MSD
mandates full employee involvement in
every aspect of its requirements.
programs when its ergonomics standard management is necessary so that MSDs
In many ways, the proposed standard came into effect (Tr. 14260). He stated are managed appropriately and injured
places employees in the driver’s seat. that existing programs needed to employees get well as soon as possible;
Certainly many companies have incorporate any missing elements in and program evaluation is necessary for
determined that a [cooperative] relationship order to be accepted. On the basis of his the correction of deficiencies in the
with their employees is beneficial on both a experience, he stated that any
safety and a production level.
program. Without the checks and
ergonomics program needed to have all balances the core elements provide,
Other companies, however, have reached a the core elements (management
different conclusion. And certainly, the OSHA believes that ineffective programs
leadership and employee participation, may be judged effective on the basis of
conclusion to be reached may differ
depending on the type of work involved, the
information dissemination, hazard an inappropriate measure, and once-
size of the company, the characteristics of the identification, hazard assessment and successful ergonomics programs could
work force, and other factors. control, training, and program deteriorate over time and leave
The Washington Legal Foundation does evaluation) to be successful.
employees unprotected.
not believe that it is its place to determine The Department of Defense (DoD) also
that some of these [employers] are right and argued that the program elements are Some rulemaking participants agreed
others are wrong nor is it the place of the essential. The DoD noted that the that grandfathered programs should
federal government to mandate a specific success of their program is due to the include the core elements but argued
mode of employer/employee relations (Tr. elements of the program, including, in that compliance with the proposed basic
11265). obligation sections for each core
particular, management leadership,
On the other hand, some union employee participation, hazard element was not essential to having an
representatives argued strongly in favor prevention and control, and monitoring effective program (see, e.g., Exs. 30–
of the core elements (see, e.g., Exs. 32– injury records and responding to 1294, 30–3813, 30–3723, 30–3765).
210, 32–461, 500–218). The potential problem areas (Ex. 30–3826). These commenters believe that many
International Brotherhood of Teamsters OSHA has concluded that it is employers have effective programs that
noted that they had worked with essential for ergonomics programs, would not be recognized by the
various employers through the whether grandfathered or not, to address proposed standard because they would
collective bargaining process to address all of the core elements: Management not meet the proposed basic obligation
ergonomic hazards and that some leadership and employee participation, sections. ORC reflected the thrust of
employers’ programs took a piecemeal hazard information and reporting, job these comments as follows:

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68294 Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations

Equally important, contrary to OSHA’s can continue to use them. This concept also The Mead Corporation suggested that,
contention in the preamble, the ability of an allows companies who may not yet have an if the Agency’s safety and health
employer to continue applying an existing existing program to create one tailored to program rule was not promulgated
program should not be based on whether the their own needs, rather than use a more ‘‘one before the ergonomics rule, OSHA
‘‘basic obligation section of each program size fits all’’ program as envisioned by this
element in this standard’’ is satisfied. OSHA proposal. ‘‘Acceptable (or appropriate)
should alter the grandfather clause in
has provided no objective evidence that the Equivalence’’ would include those programs the ergonomics rule in one of two ways:
requirements of the proposed standard will who have the basic elements of a program, (1) Make the basic obligations less
be any more effective than other programs but not all the mandated details or prescriptive and detail acceptable
already in place. There is certainly no basis documentation. Such a concept embodies alternatives for prevention-oriented
for compelling an employer to rework an ‘‘performance-oriented mandates’’ at their programs, or (2) permit employers with
effective program to force it to meet the best as they allow an employer to employ effective programs to maintain them
specifics even of the proposed basic those methods of prevention that best meets without making sweeping changes (Ex.
obligations (Ex. 30–3813). the needs of its particular workforce and/or 30–2216).
Dow, ORC, and others suggested that workplace. OSHA should only be concerned
On the other hand, the AFL–CIO
OSHA simply require grandfathered with the results (i.e. lower injury rates) rather
than the methodology a particular employer argued that the standard should require
programs to address the six basic used to obtain that goal (Ex. 30–3765). employers to meet the proposed basic
elements of the program instead of obligations for each core element before
requiring them to meet the proposal’s At the hearing and in their notice of being grandfathered in (Ex. 32–339; Tr.
full basic obligation for each core intention to appear at the public 3477). The AFL–CIO pointed out,
element (see, e.g., Exs. 30–2134, 30– hearing, Dow described their however, that the basic obligation
2725, 30–3171, 30–3765, 30–3813, 32– ergonomics program and detailed how sections for several of the proposed core
77). ORC noted that the proposed work they believe their program would fall elements left out important
restriction protection requirements were short of the proposal’s requirements (Ex. requirements that were included under
particularly troublesome, since 32–77; Tr. 5339). Dow expressed the core elements:
‘‘[v]irtually none of ORC’s member concern that, although their program The AFL–CIO believes that employers with
companies, whose ergonomics programs meets the spirit of the proposed existing programs should be permitted to
are among the most sophisticated and standard, it would not meet the letter of continue with these programs if they are
effective in the country, would meet this the law. comprehensive, provide workers and their
requirement * * *’’ (Ex. 30–3813). Dow In response to Dow’s concern, OSHA representatives full information and rights of
was concerned that the language in the reviewed the perceived discrepancies participation, and are effectively reducing
proposal would not recognize their MSDs and exposure to hazards. However, as
between the proposed rule and Dow’s proposed, the ‘‘grandfather’’ provisions are
program, which is tailored to fit their description of their program. In every deficient in a number of respects and will
management structure. They stated: respect except one, Dow’s program permit employers to continue programs that
The so-called Grandfather clause that would have satisfied the proposed do not provide adequate protection.
OSHA has proposed is so demanding in its grandfather clause; the discrepancies First, the [proposed] basic obligation
requirements that companies that have Dow was concerned about were requirements which all programs must meet,
existing and successful ergonomics programs, apparently the result of exclude a number of elements that in our
such as Dow, will not be able to take misinterpretation rather than view are essential for an effective program.
advantage of this provision to maintain their For example:
deficiencies on the part of Dow’s
current programs. The Grandfather clause is • The [proposed] basic obligation section
so limited that already functioning and program. For example, Dow stated that, for Hazard Information and Reporting * * *
successful programs, tailored to the needs of in its program, employees report MSDs does not [include] any requirement to
a particular company, business or workplace, using the company’s existing injury and provide employees information about MSD
will not be able to satisfy the requirement. illness reporting system rather than a hazards.
For example, in Dow’s case, we would not be separate system set up just for MSDs; • The [proposed] basic obligation on
able to satisfy the extensive recordkeeping Dow evidently believed that a separate training * * * excludes any requirement for
requirements or elements of the WRP section system would have been required by the training supervisors or individuals
(since it goes beyond that required by responsible for the ergonomics program, thus
proposal (Ex. 32–77; Tr. 5340).
Workers’ Compensation laws.) Similarly, permitting programs to be ‘‘grandfathered’’
given Dow’s management structure, we
However, the proposed standard would even if persons responsible for the program
would not satisfy OSHA’s communication not have required employers to set up do not have the necessary training. The basic
and training requirements wherein they a separate system for reporting MSDs as obligation for training also fails to provide for
intend a more archaic management structure, long as their existing system included a job specific training on MSD hazards and
such as one having ‘‘supervisors’’ and the system for the reporting of MSDs. On control measures.
like, than what Dow utilizes. So even though the other hand, Dow was correct in • The [proposed] basic obligation for
Dow has had a successful ergonomics stating that their program did not Medical Management * * * does not require
program for years and has a lower than that medical evaluations be conducted by a
include the proposed work restriction
average MSD incidence rate, we would have health care provider.
protection provisions and would • The [proposed] basic obligation for
to scrap our efforts and use a program which
will not fit our needs or management
therefore not have been eligible for Program Evaluation * * * does not require
structure, just to comply with this standard. grandfather status under the proposed consultation with employees in problem jobs
Dow believes this is unacceptable. rule. or their designated representatives to
Instead, Dow urges OSHA to delete the In its post-hearing submission, Edison determine their views on the effectiveness of
proposed Grandfather clause and replace it Electric Institute argued that the the program (Ex. 32–339).
with a provision that allows for an specificity of the proposal’s basic As noted earlier, other rulemaking
‘‘acceptable’’ or ‘‘appropriate equivalent’’ obligations is counter to the goal of participants also urged OSHA to
program. Such a concept is not foreign to
OSHA or the regulated community as other
flexibility, and the Institute strengthen the proposed basic
OSHA standards, such as the Process Safety recommended that the final rule reduce obligations sections (see, e.g., Exs. 30–
Management (‘‘PSM’’) standard, utilize this the detail in the basic obligation 4200, 32–198, 32–210, 32–461). These
concept so that companies that have existing sections to allow employers greater commenters criticized the proposed
programs that are functioning successfully latitude (Ex. 500–33). rule’s lack of basic obligation

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requirements for the training of the concerns of employers whose pared to the minimum necessary to
managers and for employee programs were missing only that one ensure the continued effectiveness of
participation in job hazard analysis and element. grandfathered programs. In particular,
control. UNITE decried the omission Although the AFL–CIO provided OSHA has streamlined and made more
from the proposal of a requirement for evidence that some employers do flexible the provisions that rulemaking
the health care provider to be furnished provide wage protection for their participants claimed were most
with information about the workplace employees, OSHA believes, based on problematic such as the employee
and the employee’s job (Ex. 32–198). the record, that very few employers’ participation and WRP provisions.
Another commenter objected to the existing ergonomics programs OSHA also has placed the required
omission from the proposal of incorporate work restriction protection subelements in the text of the
requirements that limited the use of in the form required by the proposed grandfather clause itself rather than in
personal protective equipment and standard. Despite the fact that many the basic obligations sections for each of
required employers to provide it at no employers have policies (such as sick the core elements, as proposed. OSHA
cost to employees (Ex. 32–210). leave, short-term disability, and so on) believes that these changes will make
Another group of commenters were that assure employees that they will not the core elements that grandfathered
particularly concerned about the fact experience economic loss if they are programs must currently have as
that the proposal would not have injured, the record of this rulemaking flexible as possible while still ensuring
permitted their otherwise excellent indicates that many workers fear they that the basic components that make
programs from being grandfathered will lose wages and benefits if they each core element effective are present.
because they did not have work report their injuries (see the detailed In addition to considering the
restriction protections now (see, e.g., Ex. discussion of the record in the summary comments of industry representatives
30–3723, 30–3765, 30–3813). SBC and explanation for paragraph (r) objecting to the core elements and their
Communications, Inc., represented below). The Agency therefore concludes subelements, OSHA has reviewed the
those who opposed the proposed that grandfathered programs must list of subelements that several labor
grandfather clause’s requirement for protect against such loss if they are to organizations believed were essential to
work restriction protection: achieve the early reporting that is determine whether they should be
essential to program success. included in the final rule’s grandfather
In order to meet the grandfather clause, a
company must have a ‘‘functioning properly’’ Consequently, in paragraph (c)(2) of the clause requirements (Exs. 32–198, 32–
Wage Protection Program. Through our final rule, OSHA is allowing existing 339; Tr. 3477). The Agency has included
extensive research and benchmarking, no ergonomics programs that otherwise
several improvements in the final rule’s
company has this element to their meet the criteria of the grandfather
grandfather clause as a result of this
ergonomics program. Nor did OSHA provide clause up to an additional 12 months to
any evidence of the Wage Protection Program review. First, the grandfather clause’s
adopt an MSD management policy,
being trialed, researched, and/or tested at a training element now contains a
including work restriction protection.
company. OSHA has made it nearly requirement that employees be trained
The MSD management policy must meet
impossible for any company to meet the in MSD risk factors (see paragraph
requirements of the grandfather clause (Ex. paragraphs (p) through (s) of the final
(c)(1)(iv)). This provision ensures that
30–3723). rule. The MSD management
employees will be informed of MSD
requirements in the final rule contain
On the other hand, the AFL–CIO hazards in their workplace. Second,
many inter-related provisions that are
noted that the hearing testimony key to a successful ergonomics program. OSHA has added a requirement for the
demonstrates that some employers do (See the summary and explanation for training of managers and supervisors to
currently provide wage protection for paragraphs (p) through (s) of the final this core element. Third, OSHA has
employees who suffer MSDs: rule.) The Agency has concluded that, included language specifically requiring
The hearing record shows that some because of the many interdependencies employees to be involved in program
employers indeed are maintaining the full in final rule paragraphs (p) through (s), evaluation to the core element for
wages of workers who are put on medical employers need to follow all of the employee participation (see paragraph
restrictions as a result of MSDs (Tr. 16014, detailed requirements of those (c)(1)(ii)). These additions will help
Tr. 14357) (Ex. 500–218). ensure that ineffective programs are not
paragraphs. However, to ensure that
The General Electric Company argued existing programs will still be able to accepted under the grandfather clause.
that employers who have employee qualify for grandfather status even if The remaining suggestions from these
involvement and an environment free of they do not meet the final rule’s MSD commenters, such as UNITE’s
barriers to reporting should not be management requirements, OSHA is recommendation to include a
required to follow the rule’s allowing employers up to a year to meet requirement for the health care provider
requirements for WRP (Ex. 30–1071). those provisions. to be furnished with information about
Novartis Corporation went further, Based on a review of the evidence in the workplace and the employee’s job
suggesting that the entire MSD the record, OSHA has concluded that (Ex. 32–198), have been accommodated
management element be removed from the proposed standard’s basic obligation by paragraph (c)(2) of the final rule.
the standard (Ex. 30–3092). They also requirements failed to provide Existing programs need not currently
recommended that compliance with the employers with effective existing have MSD management as a core
endpoint provisions not be a condition programs sufficient flexibility with element in order to qualify for
for grandfathering existing programs. regard to grandfather status. grandfather status. However,
The AFL–CIO recommended that Accordingly, in paragraph (c)(1) of the grandfathered programs will need to
OSHA permit existing programs without final rule, OSHA has not carried add an MSD management element
work restriction protection to be forward the proposed requirement that meeting paragraphs (p) through (s)
grandfathered as long as the employer employers’ programs satisfy the basic within 1 year after the final standard’s
incorporates such protections into the obligation of each element and instead effective date. Thus, grandfathered
ergonomics program before the effective requires that those programs simply programs will have to meet the same
date of the standard (Ex. 500–218). They contain the core elements and certain MSD management requirements as
believed that this would help alleviate subelements, which the Agency has programs that are not grandfathered.

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68296 Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations

4. Whether the Language of the [W]e strongly urge OSHA to provide protection to employees, including
Grandfather Clause Is Vague checklists and evaluation tools to assist those in small firms, or that provides
employers with the evaluation of their less protection to employees overall, as
Some rulemaking participants argued programs. Employers who want to take
advantage of the ‘‘grandfather’’ provisions
effective as the final rule.
that the language in the proposed
grandfather clause was vague (see, e.g., should be required to use a checklist based The second relates to the details of
Exs. 30–494, 30–2208, 30–3922, 30– on objective criteria to demonstrate that their grandfathered programs. Paragraph (c)
4467; Tr. 16470). They thought that this program is effectively reducing exposures to of the final rule does not attempt to
ergonomic risk factors, reducing the dictate precisely what form a
language would make it difficult for an incidence and severity of musculoskeletal
employer to determine if he or she grandfathered program must have,
disorders, and complies with the standard’s beyond stating that it must have the core
qualified under the grandfather clause. basic obligations. These materials are
For example, Dennis Morikawa of currently used by many ergonomics programs elements of successful programs, be
Morgan, Lewis, and Bockius stated: and could be made available by OSHA demonstrably effective, and be
through its website (Ex. 500–207). evaluated and in place by the final
These vague requirements do not inform rule’s effective date. OSHA has not
employers which ergonomic programs OSHA OSHA believes that the grandfather
mandated such program specifics
would accept. Specifically, OSHA does not clause in the final standard is clear. For
because grandfathered programs will
explain what a ‘‘basic obligation’’ is; nor does example, the training element requires
the Proposed Rule specify the level of detail the training of managers, supervisors, take many different forms, be at many
employers must achieve when they attempt and employees in: (1) The employer’s different stages of development, and be
to comply with a basic obligation. Moreover, ergonomics program and their role in it; taking various approaches to achieving
the grandfather clause does not make clear (2) the recognition of MSD signs and success. The grandfather clause thus
whether an effective, existing program
symptoms; (3) the importance of early insists on the fundamentals but leaves
without a single-incident trigger would be the specifics to employers.
acceptable. For example, if programs that reporting; (4) the identification of MSD
risk factors and methods that may be The final standard also requires the
satisfy the CAL/OSHA standard discussed
used to abate them; and (5) the risk employer to demonstrate that an
above would be accepted under the
grandfather clause, then most companies factors in problem jobs in the workplace existing program is effective before that
would seek to design and install ergonomics and methods of controlling them. To program qualifies under the grandfather
programs before the effective date of the new provide employers flexibility, the clause (see paragraph (c)(1)(v)). The
Proposed Rule. But if a two-incident trigger standard does not address the details of employer is free to use one of the
would not satisfy a ‘‘basic obligation,’’ how that training is provided, but it is measures specified in the standard itself
employers would be forced to re-design clear about the topics the training must (that is, reductions in the number or
existing programs in order to meet the severity of MSDs, increases in the
Proposed Rule, thereby creating a double
cover.
Other elements provide clear number of jobs in which ergonomic
standard of compliance. This, of course,
direction about how an employer is to hazards have been controlled,
would effectively eviscerate the notion of a
grandfather clause. OSHA needs to specify demonstrate compliance. For example, reductions in the number of jobs posing
which aspects of the Proposed Rule would be the employer must evaluate the MSD hazards to employees) or any other
considered basic obligations, and the amount program, as demonstrated by regular valid measure that the employer
of attention to detail that employers must pay reviews of the elements of the program, chooses to evaluate the program and
when adhering to these basic obligations. the effectiveness of the program as a demonstrate effectiveness. The Agency
Without an assurance from the agency that an whole, and the correction of identified currently provides some compliance
adherence to basic obligations would not deficiencies. Again, this language assistance materials that include ways
require major overhauls of effective to measure the effectiveness of
programs, the grandfather clause is illusory
provides clear criteria that employers’
evaluations must meet in order to be ergonomic interventions. For example,
(Ex. 30–4467, p. 13).
grandfathered in. the ‘‘Ergonomic Program Management
Some rulemaking participants stated There are two aspects to Mr. Guidelines for Meatpacking Plants’’ (Ex.
that the vagueness of the grandfather Morikawa’s comments (Ex. 30–4467) 2–13) provides a method for monitoring
clause would force employers to refer to about the acceptability for grandfather trends in cumulative trauma disorders
the more detailed provisions of the clause status of programs meeting the that may be used for this purpose.
standard to understand their California standard’s two-incident OSHA’s 1989 Voluntary Safety and
compliance obligations (see, e.g., Exs. trigger. The first relates to Federal Health Program Management Guidelines
30–494, 30–4340). They argued that the OSHA’s acceptance of the California (Ex. 2–12) also describe effective
effect of this vagueness would be that ergonomics rule under the Act’s program evaluations. These documents
employers would be forced to comply provisions for ensuring that state are available on OSHA’s Website (http:/
with the entire standard, which would standards developed by the State Plan /www.osha.gov). OSHA also intends, as
render the grandfather clause useless. States are as effective as the Federal resources permit, to provide additional
Even some of those who supported standard. OSHA will, after it compliance assistance materials that
OSHA’s proposal in general agreed that promulgates this final ergonomics will help employers determine whether
the proposed grandfather clause was program standard, evaluate the or not their programs are effectively
vague (see, e.g., Exs. 30–4538, 32–210). ergonomic standards developed by State addressing MSDs.
These rulemaking participants and Plan States (such as California and In sum, OSHA believes that the final
others urged the Agency to provide Washington) to determine whether they grandfather clause provides sufficient
compliance assistance material, such as are ‘‘as effective as’’ the Federal information for employers to determine
flowcharts, checklists, and other tools, standard. OSHA clearly could not have if their programs qualify for the
to help employers determine whether made such a determination at the time grandfather clause. OSHA compliance
their programs qualified under the of the proposal, as Mr. Morikawa officers also will be able to assess
grandfather clause (see, e.g., Exs. 30– suggests, because the form and content whether the employer’s program
4538, 32–210, 32–339, 500–207). For of the final OSHA rule could not be qualifies for grandfather status. OSHA
example, the International Brotherhood known at that time. However, OSHA is will include directions on how this is to
of Teamsters stated: unlikely to find any standard that delays be done in a compliance directive to be

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Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations 68297

issued soon after promulgation of the a stimulus to innovation, OSHA allow alternative programs. The Agency
final rule. employers who do not now have fully believes that these resources should be
developed programs to qualify for expended to meet the final standard in
5. Alternatives and Revisions to the
grandfather status in the future when all its details so as to ensure adequate
Grandfather Clause
they do have such programs. DuPont protection for employees.
Several rulemaking participants SHE Excellence Center made a similar OSHA agrees, however, that a
suggested approaches that would permit recommendation: company that meets the rigorous
alternative programs developed after the standards of paragraph (c) and thus
[One] improvement in the flexibility would
standard is in effect to be followed by be to allow whichever elements that have qualifies for grandfather status should
employers in lieu of compliance with been put in place to be grandfathered and be permitted to apply the same excellent
the standard (see, e.g., Exs. 30–2216, those which are not in place to be added. The program that was grandfathered to new
30–3765; 30–3813, 32–339, 500–44; Tr. grandfather clause should not be an ‘‘all-or- plants it builds or acquires by merger or
3477). Many of these commenters nothing’’ clause (Ex. 30–2134). acquisition. OSHA believes that
argued that their recommendations In addition, ORC, along with other permitting a grandfathered program to
would address the previously discussed rulemaking participants, recommended be extended in this way makes sense
concerns with the proposed rule’s allowing an employer’s program to be from two perspectives: first, it ensures
grandfather clause—concerns such as grandfathered after the effective date of that the new establishments will benefit
the perceived illusory nature, the standard, which would permit from the expertise in ergonomics
vagueness, and subjectivity of the employers involved in mergers and programs that the parent company
proposed grandfather clause. The acquisitions to put their already brings, and, second, it ensures that the
alternatives or revisions to the proposed grandfathered programs into place in company will have a single, cohesive
grandfather clause suggested by these new establishments (see, e.g., Exs. 30– corporate ergonomics program. For
commenters included: 3813, 30–3922, 32–78; Tr. 5538). ORC these reasons, OSHA has decided to
• Revising the clause to allow extend grandfather status to the
also recommended that OSHA permit
programs that are incomplete at the time programs implemented in newly
employers to extend existing
of the effective date to be grandfathered acquired or built plants of a corporation
grandfathered programs to new
(see, e.g., Ex. 30–3813; Tr. 4111); that already has a grandfathered
• Revising the clause to make clear establishments operated by the same
employer (Ex. 500–214). program.
that a company whose program had The American Industrial Hygiene
been grandfathered could extend that The rulemaking participants who
recommended that the standard permit Association (Ex. 32–133) recommended
program (and grandfather status) to that employers formally request OSHA
establishments newly built or owned, or future alternative ergonomics programs
to be grandfathered did not address how to recognize their programs:
acquired through mergers or As the standard puts much of the burden
acquisitions (see, e.g., Exs. 30–3813, 30– an employer might avoid
noncompliance while developing the on employers to adapt the program to their
3922, 32–78; Tr. 5538); own needs, it would be appropriate for
• Revising the clause to allow any program or in the period before the
OSHA to say that employers can ask to have
program developed by an employer at employer had demonstrated the their program ‘‘grandfathered’’. This would
any time, including after the standard effectiveness of the new program. OSHA require them to formally document their
has become effective, to be implemented does not believe that such an approach program and compare it with the OSHA
without fear of citation for would be workable. First, it would be requirements. This should not be a problem
administratively difficult (if not if the company has a functional program (Ex.
noncompliance with the OSHA 32–133).
standard (see, e.g., 30–429, 30–1090; Tr. impossible) to enforce. Second, OSHA is
15657); issuing a final standard addressing Kaiser Permanente made the same
• Revising the clause to specify that ergonomic injuries because the varied recommendation in their post-hearing
OSHA will certify or approve approaches and often isolated comments (Ex. 500–139).
employers’ programs as qualified for interventions that many employers have However, OSHA’s resources do not
grandfather status (see, e.g., Ex. 32–133, adopted have not effectively addressed permit it to evaluate employers’
500–139); the problem, and a uniform and programs for grandfather status; in
• Revising the clause to recognize for comprehensive approach to this most addition, a ‘‘paper’’ review of a program
grandfather status any program that serious of occupational safety and is not adequate to determine how it is
complies with either the Washington health issues is clearly necessary. The working in practice. OSHA continues to
State or the California standard (see, approach recommended by the believe that employers are in the best
e.g., Exs. 30–429, 30–434, 30–973, 30– commenters would mean that, while position to determine whether their
1090, 30–1547, 30–1671, 30–2835, 30– employers try different programmatic programs qualify for grandfather status.
3813, 30–4134, 31–337, 32–311); approaches, employees would continue The Eastman Kodak Company (Exs.
• Delete the grandfather clause and to be exposed to ergonomic hazards 30–429, 30–1090) suggested that the
substitute instead provisions giving with no guarantee that the employers Agency adopt a flexible grandfather
employers credit for already having would ever qualify for ‘‘grandfather’’ clause that recognizes good faith on the
performed some of the required status. Third, OSHA is loathe to require part of employers:
elements, such as training, before the the expenditure of resources to make We believe that what OSHA needs is a
effective date (see, e.g., Exs. 30–1547, existing, effective programs containing ‘‘good faith’’ grandfather clause that
32–185, 32–311, 32–339, 32–461, 500– all the core elements meet all the recognizes employers for a positive effort and
207; Tr. 6423, 11129, 13092). requirements being imposed by the full ongoing solutions. We believe that it should
For example, ORC made several ergonomics standard. Employers be sufficient for an employer to have a
suggestions along these lines (Ex. 30– without programs and employers with written active program and show intent, to be
compliant. The existing program rule (WAC
3813; Tr. 4111). First, they ineffective programs or programs 296–62–05110) of the Washington State
recommended that OSHA rename this missing key elements would need to proposed standard is better suited to this end
section ‘‘Alternative Programs expend resources to meet whatever and is recommended for incorporation (Ex.
Provision.’’ They also suggested that, as requirements OSHA imposed on 30–429).

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68298 Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations

Other rulemaking participants also The final ergonomics standard does Bell recommended the following
recommended that OSHA adopt the give credit to employers who have language (Ex. 500–78):
proposed Washington State approach already carried out certain procedures How does this standard apply if I
towards existing programs (see, e.g., or voluntarily complied with portions of already have an ergonomics program?
Exs. 30–434, 30–2835, 30–3813, 30– the standard. For example, employers If you already have an ergonomics
4134, 31–337, 32–311). They argued that who have already performed job hazard program for the jobs this standard
Washington’s approach, which accepts analysis in some jobs would not have to covers, you may continue that program
alternative programs when the employer re-analyze those jobs (see paragraph provided:
can demonstrate that the alternate (j)(1) of the final rule). Likewise, (a) You have a written program that
methods taken as a whole are as employers who have already trained contains:
effective as the requirements of the their employees in the ergonomic (i) Defined roles and responsibilities;
standard, would grandfather far more control measures they instituted would (ii) Training on the prevention of
effective programs than OSHA’s not have to duplicate that training (see work-related MSD’s; and
proposal. They also noted that this (iii) Procedures for completing job
paragraph (t)(5) of the final rule).
approach would focus the Agency’s hazard analysis for work-related MSD’s.
Some rulemaking participants (b) The controls implemented are
efforts on results rather than on details suggested that OSHA recognize for
they perceived as minor. intended to reduce or eliminate risk
grandfather status any ergonomics factors for work-related MSD’s;
The Washington State standard’s program in effect at the time the final
grandfather clause reads as follows: (c) You have a program evaluation
rule becomes effective (see, e.g., Exs. process; and you have implemented
WAC 296–62–05110 When Do 30–494, 30–2989, 30–3781, 500–213; Tr. your program before the effective date of
Employers’ Existing Ergonomics 10089). These commenters believe that the final rule (Ex. 500–78).
Activities Comply With This Rule? these employers should be rewarded for OSHA has considered Southwestern
their proactive stance toward Bell’s suggested language but has
Employers may continue to use effective ergonomics. For example, the National rejected it because the programs that
alternative methods established before this Council of Agricultural Employers said, would be grandfathered in by such
rule’s adoption date. If used, the employer ‘‘a grandfather clause should recognize
must be able to demonstrate that the language would be missing several
and exempt forward-thinking employers important elements—employee
alternative methods, taken as a whole, are as
effective as the requirements of this rule in that have already implemented an participation, hazard information and
reducing the WMSD hazards of each job and ergonomics program’’ [Ex. 30–3781]. reporting, and MSD management, for
providing for employee education, training The National Association of example. As explained earlier, OSHA
and participation (Ex. 500–71). Convenience Stores went further to considers these elements essential to
Other commenters (see, e.g., Ex. 30– suggest that OSHA also grandfather any successful ergonomics program. In
4467) urged OSHA to accept compliance trade-association-provided programs: addition, Southwestern Bell’s approach
with the California ergonomics standard ‘‘OSHA [should] consider does not contain any requirement that
as constituting acceptance under the grandfathering existing risk the program be effective, be achieving
grandfather clause. management programs or industry- positive results, or be reducing the
Again, as discussed above, formal specific programs which trade number of MSDs.
recognition of the ‘‘as effective as’’ associations may be able to provide to The American Petroleum Institute
status of these two State-plan State their members’ (Tr. 10089). The Air (API) proposed language that would
standards must await a formal Conditioning Contractors of America accept an employer’s existing program if
determination by Federal OSHA. recommended that OSHA recognize it contained the following seven
However, since acceptance under the virtually any existing ergonomics elements: (1) Management leadership
final rule’s grandfather clause depends program under the grandfather clause and employee participation, (2) hazard
on program effectiveness, confirmation (Ex. 500–53). It said that OSHA could information and reporting, (3) job
of that effectiveness through evaluation, require grandfathered programs to be hazard analysis and control, (4) training,
and the inclusion in the program of the improved at such time in the future as (5) MSD management, (6) program
core elements, many proactive MSD hazards became better understood. evaluation, and (7) recordkeeping (Ex.
California and Washington employers’ As explained earlier, OSHA believes 500–80). API’s proposal also would
programs are likely to meet the final that it is essential for grandfathered require grandfathered programs to
standard’s requirements for grandfather ergonomics programs to include all of contain subelements under each
status. The programs of many employers the core elements of successful element. For example, under job hazard
in these states may not meet these ergonomics programs and to meet analysis and control, API’s language
requirements, however, since neither demonstrable effectiveness criteria. included the following provisions: ‘‘Jobs
State standard requires all of the core OSHA agrees that employers who have in the workplace must be assessed to
elements. already adopted existing programs are identify the potential for MSD hazards.
The AFL–CIO, the International proactive; however, some of these Consistent with the job assessment, an
Brotherhood of Teamsters, and others employers are likely to have programs action plan is developed to control
suggested that OSHA give employers that are not as protective as the program identified or potential MSD hazards
credit for steps, such as training and job OSHA is requiring or programs that do determined to present a significant
hazard analysis, they have taken toward not include those elements shown to be risk.’’ Their language also suggested that
controlling ergonomic hazards or for essential to program effectiveness. It grandfathered programs demonstrate
controlling hazards in problem jobs in would therefore be inappropriate for effectiveness via measures such as the
their workplaces (see, e.g., Exs. 30– OSHA to grandfather these programs. following: Decreases in the frequency of
1547, 32–185, 32–311, 32–339, 32–461, Several hearing participants provided reported MSDs, decreases in the severity
500–207; Tr. 6423, Tr. 11129, Tr. OSHA with alternative regulatory of MSDs, reduced workers’
13092). These commenters believed that language for the grandfather clause in compensation claims related to MSDs,
such credit could substitute for a true their post-hearing submissions (Exs. symptoms surveys, and a reduction of
grandfather clause. 500–44, 500–78, 500–80). Southwestern MSD risk factors. API did not include

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work restriction protection among the alternative is overly detailed. For Magnus Farley, Inc., did not provide
elements grandfathered programs must example, the hazard communication alternative language for the grandfather
have. element incorporates separate clause; however, they did recommend
API’s suggested grandfather clause provisions on general information that OSHA develop revised language
had two other features. First, it regarding MSDs and general information and publish it for comment before
specifically recognized any program on warning signs associated with MSDs. adopting a final rule (Ex. 500–102).
meeting the requirements of an It also includes a provision for They argued that this would give
employer’s State OSHA ergonomics providing specific information on industry time to evaluate the new
standard. Second, it recognized existing potential ergonomic hazards in an provision and respond to it. OSHA finds
programs in both existing workplaces employee’s work area. Third, Dow’s a re-proposal unnecessary, because
and newly acquired or built plants of a suggested grandfather clause appears to participants had ample opportunity to
corporation that has a grandfathered be designed to tightly match the provide comments on the proposed
program (Ex. 500–80). company’s own program rather than to grandfathered clause. The sheer volume
API’s approach is similar to the one fit a more widely recognized model of comments received on this topic
OSHA is taking in the final standard’s ergonomics program, such as that in provides evidence of this fact. Further
grandfather clause. The final standard OSHA’s meatpacking guidelines, a the final rule’s grandfather clause is a
includes all of API’s recommended program lauded by many rulemaking logical outgrowth of the proposal. In
elements, and also requires the participants who had experience with fact, the final rule responds to the
employer to demonstrate that the ergonomics programs (see, e.g., Exs. 30– overwhelming public comment that
ergonomics program is effective. API’s 1294, 30–2216, 30–3046, 30–3677, 32– OSHA should focus on effectiveness
suggested criteria for determining 185; Tr. 14713). OSHA believes that and recognize existing programs that do
effectiveness are also similar to those more employers with effective existing not look exactly like the one required by
listed as examples in the final standard. programs will be able to qualify under the rule.
Further, the final rule permits OSHA’s final grandfather clause, which Some rulemaking participants
employers with grandfathered programs is modeled after the Meatpacking supported the proposal’s approach
to extend those programs to new Guidelines program, than those required toward existing programs with only
corporate plants. by Dow’s alternative. minor modification (see, e.g., Exs. 30–
On the other hand, OSHA is not, as Dow also commented on the
discussed above, automatically 973, 30–1547, 30–2387, 30–3748, 32–85,
enforcement implications of a 32–111, 32–339, 500–207; Tr. 15893).
grandfathering in employers’ programs performance-based grandfather clause:
that comply with State-plan State For example, the American Association
ergonomics programs. In addition, API’s The verification of compliance to a of Occupational Health Nurses
suggested regulatory text would not performance language regulation is most supported the proposed grandfather
require employers to provide WRP to effectively achieved when the method used clause, but recommended that OSHA
for prescriptive regulation compliance provide guidance for employers to use
employees who suffer work-related verification is modified. The method used by
MSDs. As discussed earlier, OSHA has in evaluating their programs (Ex. 30–
Compliance Officers for a prescriptive 2387). The American Nurses
concluded that WRP is an essential part regulation is based on the Officer’s
of any ergonomics program whether it is Association supported the proposed
knowledge of what is specified by the
grandfathered or not. regulation to be the practice, i.e. guard rail requirement that existing program meet
The Dow Chemical Company also specification. However, for performance the basic obligation of each of the core
provided alternative language for a language regulations, such as the Process elements of an ergonomics program (Ex.
grandfather clause (Ex. 500–44). Their Safety Management regulation and the 30–3686). They did, however,
alternative provided criteria for seven language suggested by Dow for this proposed recommend allowing employers up to 6
core elements that ergonomics programs regulation. The Compliance Officer only months to modify their programs so that
knows what elements are to be addressed by they meet these basic obligations.
would have to meet to be grandfathered:
an employer’s program: They will not know As noted earlier, program evaluation
hazard communication, MSD reporting, what to expect for practices. The means to
hazard identification, hazard evaluation address those elements are left to the
guidance is already available from the
and prioritization, risk mitigation or employer so that they can use whatever Agency. In addition, OSHA will be
control, appropriate knowledge and means best match their workplace needs and providing additional compliance
skills (that is, training), and program the local culture. The Compliance Officer can assistance materials in the period
evaluation. Dow included specific only gain an understanding of that workplace following publication of the final rule.
criteria for each of these elements and program from the employer. This, we believe, These materials will help employers
an explanation of how the criteria could is where the modification in approach should judge whether their programs are
occur (Ex. 500–44). effective and whether they qualify for
be met for each of the elements. Dow
likened their proposal to OSHA’s OSHA believes that, like a true grandfather status.
Process Safety Management Standard performance standard, the final The final grandfather clause
(§ 1910.119), which sets the basic grandfather clause is not prescriptive in essentially accommodates the American
elements of a process safety nature and leaves the details of Nursing Association’s suggestion.
management program and requires the compliance to employers to determine. Employers who, through one of the
employer to spell out the details. OSHA compliance personnel will look measures given in paragraph (c)(1)(v),
However, OSHA is not adopting first to the employer’s demonstration can demonstrate that their programs are
Dow’s alternative grandfather clause that the program includes the core effective are free to add features that
approach in the final rule, for several elements and subelements and second will bring them into compliance with
reasons. First, Dow’s language does not that the program is effectively the criteria given in paragraph (c)(1) any
address several elements of ergonomics addressing MSDs. Compliance officers time before the effective date of the final
programs that OSHA considers also may assess whether the employer’s standard. In addition, employers are
essential, including management program in practice matches the written given an extra 12 months to incorporate
leadership, employee participation, and program that the employer has work restriction protection into their
MSD management. Second, Dow’s developed. programs.

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The Eastman Kodak Company argued consistent with the measures used in other employer with an effective existing
that the proposal’s grandfather clause agency standards on toxic substances and program would not have employees
would have required employers to fix physical agents such as the lead and experiencing MSDs.
formaldehyde standards and those which
all problem jobs before their programs Some rulemaking participants
follow a programmatic approach, such as the
were recognized (Exs. 30–429, 30–1090). Process Safety Management and Hazard suggested that OSHA strengthen the
The Boeing Company also noted that Communication Standards (Ex. 32–339). grandfather clause in various ways (see,
employers may have an acceptable e.g., Exs. 30–2039, 30–4538, 32–182,
program that covers some, but not all, of OSHA believes that the final rule’s
32–185). For example, the American
the jobs covered by the standard (Exs. grandfather clause is comprehensive
Federation of Government Employees
30–973, 30–1547). Boeing suggested enough to ensure that inadequate
recommended that employers have a
allowing employers up to 2 years after programs do not qualify and is flexible
documented program in place for at
the effective date to cover all such jobs. enough to permit many different kinds
least 2 years before being eligible and
As noted earlier, the final grandfather of effective programs to qualify. As
that a grandfathered program be
clause would permit employers to explained previously, the Agency
required to comply with the full
extend an ergonomics program that was believes that requiring programs to meet
standard if any MSDs occur (Ex. 30–
successful in addressing some problem a combination of essential program
4538). They also urged OSHA to require
jobs to all problem jobs. In addition, elements and recognized effectiveness
that, in evaluating the program, the
because the final rule’s compliance measures will prevent inadequate
employer determine that it is effective
endpoints do not contain a set ergonomics programs from achieving
in addition to functioning properly. The
compliance deadline, employers may grandfather status. On the other hand,
American Federation of State, County,
prioritize jobs for analysis and control if OSHA does not agree that it is necessary
and Municipal Employees
all jobs could not be controlled by the to codify the precise practices used in
recommended that OSHA require that
final rule’s effective date.6 Thus, the the most effective programs, as the
all elements of an employer’s ergonomic
final standard addresses the concerns of AFL–CIO suggests. Doing so would
program be effective before the
these two rulemaking participants. unnecessarily limit an employer’s
employer is eligible under the
Some rulemaking participants flexibility in complying with the final
grandfather clause (Ex. 32–182). Mr.
suggested making the grandfather standard. The Agency believes that the
Howard Egerman was concerned that
provisions more comprehensive (see, final rule has achieved a balance
having the employer evaluate its own
e.g., Exs. 32–182, 32–198, 32–210, 32– between flexibility and
program was bound to be ineffective
339, 32–461). First, as noted earlier, the comprehensiveness that will recognize
because the employer could not be
AFL–CIO and others recommended effective ergonomics programs and deny
disinterested (Ex. 30–115).
strengthening the basic obligations for grandfather status to inadequate ones.
Communication Workers of America
four of the six core elements (see, e.g., 6. Other Comments on the Proposed Local 2222 recommended that the
Exs. 32–198, 32–210, 32–339). Second, Grandfather Clause standard require employees to agree
some participants urged OSHA to
The National Soft Drink Association with the employer’s evaluation before
develop and publish checklists and
objected to the requirement that the an existing program would be
evaluation tools to assist employers
employer’s program be evaluated and acceptable and that OSHA mediate any
with the evaluation of their programs
found to be functioning properly before disputes (Ex. 30–2039).
(see, e.g., Exs. 32–85, 32–210, 32–339).
the effective date of the standard (Ex. OSHA believes that the grandfather
Without these tools, they argued, an
30–3368). The trade association argued clause in the final rule will be protective
employer’s program could be
that a thorough evaluation of any of employees’ safety and health without
grandfathered without any solid
demonstration that it is effective. The program will probably uncover areas the addition of these suggestions. The
AFL–CIO argued that the standard that could be improved. Other Agency is therefore not setting a
should be as protective as, and rulemaking participants also minimum time period that an
consistent with, existing effective recommended that the standard allow employer’s program must have been in
ergonomics programs, OSHA general employers to modify their programs so place to be judged effective to qualify
duty clause settlement agreements, and that they could be improved (see, e.g., for the grandfather clause. The final
OSHA and NIOSH recommended Exs. 30–1547, 30–3765, 30–4130, 30– grandfather clause requires the
practice (Ex. 32–339). In keeping with 4537). For example, the Boeing employer to be able to demonstrate that
this goal, they developed principles that Company was concerned that an the program is effective and to evaluate
they believe should guide OSHA in employer would not be able to improve its elements and correct any deficiencies
casting the final standard: an existing program without falling out identified before the effective date. 7
of compliance with the grandfather This will ensure that only relatively
The standard should codify and reflect the mature programs qualify for
good industry practices and programs clause (Ex. 30–1547). In response,
OSHA recognizes that all ergonomics grandfathering.
implemented by employers who have
effectively addressed ergonomic hazards. It programs will need to be modified over Many rulemaking participants
should build on the agency’s enforcement time to correct deficiencies. The testified that MSDs still occur in
actions and settlement agreements on standard not only accommodates this, workplaceswith the best ergonomics
ergonomic hazards under the general duty but requires it in paragraph (c)(1)(v). programs in place (Exs. 30–3765; 30–
clause. The standard also should be Some commenters stated that the 4046; Tr. 14730). OSHA agrees that this
proposed grandfather clause would is often the case, and the final rule
6 Even though the final rule’s grandfather clause
force existing programs to include the specifically notes that the occurrence of
does not contain a fixed deadline for implementing
controls for a problem job, an employer with a six core elements if they wished to be MSDs does not constitute a violation of
grandfathered program is expected to institute grandfathered even if the employer did
permanent controls as soon as possible. An not have an employee with an MSD that 7 However, as explained earlier, the final

employer who postponed the control of MSD grandfather clause does permit an employer to
hazards beyond a reasonable amount of time would
triggered the standard (see, e.g., Exs. 30– incorporate work restriction protection in the
have difficulty demonstrating the effectiveness of 715, 30–3678). In response, OSHA ergonomics program within 12 months of the
the program. considers it most unlikely that an effective date.

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the standard (see the note to paragraph obligations. In particular, Boeing urged Some rulemaking participants
(k)). OSHA to clarify that an employer who complained that the proposal would
Although the employer will be is complying with a written program require employers wanting to take
evaluating the program, OSHA believes that meets the grandfather clause is in advantage of the grandfather provision
that Mr. Egerman’s concern is compliance with the standard (Ex. 30– to keep unnecessary records (see, e.g.,
unfounded, because paragraph (c)(1)(v) 1547). They argued as follows: Exs. 30–2645, 30–2815, 30–2835, 30–
requires the employer to be able to Where employers are already undertaking 4628). For example, the Chemical
demonstrate that the program is what can reasonably be done in good faith to Manufacturers Association and others
effective. This provision, and the minimize problem jobs, they should be stated that an unwarranted paperwork
inclusion of the core elements, should protected from second-guessing by burden would be forced on an employer
ensure that the evaluation is inspectors. OSHA’s limited resources are because it would have to document that
appropriate. In addition, the final better used focusing on worksites where the program met the basic obligations
grandfather clause requires qualifying ergonomic hazards have yet to be addressed, and that the program is functioning
not on worksites which have already
programs to include employee implemented effective ergonomics programs properly (see, e.g., Exs. 30–2835, 30–
participation in program evaluation. (Ex. 30–1547). 3356, 30–4628).
This will also act as a check on the The final grandfather clause does not
accuracy of the evaluation process. For Others believed that it is appropriate require the employer to maintain any
these reasons, the Agency believes that for OSHA to require employers to records. In fact, the final standard does
the grandfather clause in the final demonstrate the effectiveness of their not require employers whose programs
ergonomics standard will provide an programs (see, e.g., Exs. 30–429, 30– are grandfathered to maintain any of the
appropriate level of protection for 2835, 30–3813, 30–4134, 31–337, 500– records required by the full standard in
employees. 214). These commenters argued that this paragraph (v). Some employers may
Some rulemaking participants was the approach taken by Washington choose to maintain certain records to
objected to language in the proposal that State in its ergonomics standard, and facilitate their demonstration of
required the employer to show that their they believed that it was reasonable. effectiveness. However, some
program complies with the basic OSHA finds, based on a review of the effectiveness measures require no
evidence in the record as a whole, that records. For example, the Dow Chemical
obligations and is functioning properly
the final grandfather clause is not likely Company, whose program involves the
(see, e.g., Exs. 30–541, 30–562, 30–1355,
to lead to uneven enforcement. It is true evaluation of all tasks in high risk jobs
30–1547, 30–3117, 30–3783, 30–4607).
that employers will need some method and control of all ergonomic hazards in
They argued that the burden should be
of assuring themselves that their those jobs, would need only show that
on OSHA’s compliance staff to address
ergonomics program qualifies for the adequate controls are in place to
ergonomic hazards rather than on the
grandfather clause, and the method demonstrate effectiveness. (They also
employer to demonstrate that its
chosen also will be useful to OSHA would need to show that their program
program qualifies. Some of these
compliance personnel. However, OSHA includes the elements and subelements
rulemaking participants argued that
will not cite employers who make an given in paragraph (c)(1).) In addition,
placing the burden on employers to adequate demonstration 8 that their
demonstrate program effectiveness most employers with existing programs
programs are effective and include the are already required, under 29 CFR Part
would disproportionately affect small elements and subelements in paragraph
employers, who do not have the 1904, to maintain injury and illness
(c)(1). However, if the Agency finds records. Employers should be able to
resources of larger ones (see, e.g., Exs. objective evidence that the employer is
30–3117, 30–3783). Caterpillar, Inc. use those records, with little or no
basing the demonstration on inaccurate modification, to demonstrate
stated that the subjective nature of the information, OSHA will not consider
grandfather clause would lead to effectiveness. Thus, OSHA has
that employer’s program as qualifying concluded that comments that the
uneven enforcement across employer for grandfather status.
groups and across the nation (Ex. 30– grandfather clause would create an
OSHA also believes that it is unwarranted paperwork burden are
4607). reasonable and appropriate to place the
The American Apparel Manufacturers unfounded.
burden of demonstrating that their Some rulemaking participants argued
Association also was concerned about programs qualify for grandfather status
enforcement and gave the following that companies would be forced to alter
on employers because grandfathered their existing safety and health
example of how an employer’s programs are the ‘‘exception’’ to the
interpretation of what constitutes a programs to meet the OSHA ergonomics
standard. Employers who choose to take standard, forcing them to inefficiently
problem job could differ from that of an advantage of using a program that is not
OSHA compliance officer: allocate resources away from their safety
required to meet the full ergonomics and health programs (see, e.g., Exs. 30–
An apparel manufacturer may see two standard in all its details can reasonably 2216, 30–3845, 30–4818, 31–310; Tr.
sewing jobs as extremely different, involving be expected to produce evidence that
different activities and physical
11379, 11403). These commenters
their programs qualify for the apparently believe that two separate and
requirements, but an OSHA inspector with grandfather clause. OSHA needs
no experience in the apparel industry may incompatible programs would be
assurance that employees in workplaces required or that grandfathering would
well see them as the same. This ambiguity of
language may cause penalties against with grandfathered programs will be require major restructuring of their
companies who believed they were, in good adequately protected by these programs. current ergonomics program. For
faith, running a successful ergonomics For these reasons, the final grandfather example, the Forum for a Responsible
program (Ex. 30–4470). clause requires the employer to Ergonomics Standard recommended
The Boeing Company was also demonstrate that their programs qualify that OSHA recognize existing programs
concerned about being second guessed for grandfather status. that met the goal of reducing or
by OSHA enforcement personnel (Exs. 8 An adequate demonstration is one that touches
eliminating MSD hazards regardless of
30–973, 30–1547). They recommended on all subelements spelled out in paragraph (c)(1)
whether or not they met the technical
that the standard unambiguously and that shows effectiveness using an appropriate specifications of the six proposed
recognize programs addressing the basic measure of effectiveness. program elements (Ex. 30–3845).

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Otherwise, they argued, the standard In each of these examples, employers will be disruptive or result in an
would not only upset the performance are pursuing activities that should be unwarranted reallocation of resources.
of existing programs but would result in recognized as meaningful and exceeding Union Carbide recommended that the
poor allocation of risk control resources. the level of protection OSHA is standard not require employee
They gave examples of what they currently seeking for the control of participation in the development of
believed might occur: MSDs. With the proposed standard, existing programs that would otherwise
[O]ne Forum member, CCE, has spent however: qualify under the grandfather clause
millions of dollars researching and • When persistent symptoms develop at a (Ex. 30–3784). ORC also identified
developing methods to reduce injuries job considered to be moderate priority for employee participation in the
related to various warehousing and delivery continuous improvement, higher priority development of each element of the
activities, such as improving new order changes would be delayed, placing more
fulfillment systems. In this respect, CCE is program as one area that few of its
employees at higher risk for developing
pioneering achievements that likely will MSDs; member companies could comply with
eventually be adopted throughout its • Similarly, when partial work aggravation (Tr. 4135).
industry. However, particularly with respect associated with a low risk task triggers a OSHA agrees with these rulemaking
to employee participation in developing manufacturing job, high priority changes
safety programs, CCE is unlikely to meet the
participants that employee participation
recommended by the ergonomics team based in the development of ergonomics
strict requirements for grandfathering. As a upon comprehensive analysis will be
result, CCE anticipates that many of its delayed; and
programs is not necessary where an
current efforts will be derailed as resources, • Documentation of MSD prevention existing program that qualifies for the
especially the time of its highly trained staff, activities will be increasingly scrutinized and grandfather clause is at issue. The
will have to be diverted to ensuring restricted due to concerns over how OSHA primary purpose of the grandfather
compliance with the OSHA standard. Instead would interpret the information (Ex. 30– clause is to recognize ergonomics
of developing fixes that will prevent injuries, 2216). programs that employers have already
these resources will be directed towards
‘‘fixing’’ the administrative structure of its On the other hand, the American put into place, i.e., that are already well
program. Society of Safety Engineers stated that past the developmental stage. According
Similarly, many NACS members ergonomics programs fit easily into to ORC, some of these programs have
(convenience store operators and petroleum existing safety and health programs: not involved employees in the past
marketers) incorporate MSD prevention and development, implementation, or
ergonomics issues into their general worker The establishment of basic ergonomic evaluation of the program. As drafted in
safety programs that cover a wide range of management programs, increasing employee
awareness and involvement on these issues
the final rule, employee participation in
issues, from dealing with slips and falls to
is not a burden to employers when compared these stages of program implementation
robbery deterrents to customer safety issues.
These programs have been extremely to other safety and health compliance is required as appropriate, from this
effective in reducing MSD injuries. If not requirements. time forward. In other words, OSHA is
grandfathered, implementing OSHA’s In fact, most efficient and effective not requiring employee participation in
proposed standard would require upsetting ergonomic initiatives will usually dovetail the past development of a program as a
and dramatically changing these already with other existing safety and health condition of the grandfather clause; it is
effective programs (Ex. 30–3845). programs (Tr. 11611). requiring employee participation in the
Mead Corporation (Ex. 30–2216) made a The final rule in general, and the implementation, evaluation, and future
similar comment: grandfather clause in particular, will development of grandfathered programs,
not, in OSHA’s view, require an however.
Responsible employers would be forced to
alter achieving programs and pursue inefficient reallocation of resources. In Alcoa, Inc., recommended that, for
measures that we know are not as effective fact, because MSDs are the leading existing capital-intensive industries and
as what we are already doing. The resources cause of on-the-job injuries and equipment, OSHA allow employers
that are focused on MSD prevention would illnesses, OSHA believes that the final additional time to come into compliance
be shifted toward less meaningful activities. rule will ensure that resources will be with the grandfather clause (Ex. 30–
A new infusion of MSDs may result at many devoted to areas where significant 3922). They argued that the
workplaces that have effectively controlled improvement in injury and illness rates
these types of accidents to date because of implementation of permanent controls
the shift in emphasis brought on by
can be realized. within 2 years, as proposed, was neither
compliance demands. OSHA agrees with the American realistic nor economically feasible for
Society of Safety Engineers that some employers. The final rule’s
Consider: ergonomics programs fit well as part of grandfather clause allows an employer
• Many companies utilize periodic risk comprehensive workplace safety and to have a process for identifying,
assessments to update priorities for health programs. The final grandfather analyzing, and controlling MSD hazards
ergonomics projects. Risk assessments clause does not require employers to in problem jobs and following up to
commonly include a survey of the workplace,
divorce ergonomics from their existing ensure control effectiveness. Through a
discussions with employees about potential
concerns, and analysis of MSDs. Priorities are safety and health programs. Thus, prioritization process, an employer may
established and incorporated into a work employers who address ergonomics in choose to temporarily implement
plan for the site’s ergonomics/safety team. existing effective safety and health interim controls. Although the employer
• When ergonomics teams in Mead programs typically will not need to is expected to institute permanent
conduct analyses of jobs, they are encouraged reinvent their ergonomics program just controls as soon as possible, the final
to identify as many opportunities for to qualify for the grandfather clause. rule does not provide a date when this
continuous improvement (potential risk In addition, as noted earlier, the final must be accomplished. Thus, employers
factors) as possible and then to prioritize rule accommodates prioritization of the in all industries with qualifying
based upon risk. Action plans are developed
for high risk concerns. Lower priorities are
implementation of permanent controls, programs will be able to prioritize their
not addressed at the time unless they are low as Mead Corporation is doing, where the jobs for control in a rational manner that
cost. Teams maintain documentation of these employer cannot fix all problem jobs at permits them to take advantage of the
items and may revisit them in the future once once. Therefore, OSHA does not believe capital involvement and replacement
higher priority items are resolved that the final rule’s grandfather clause schedules of their industries.

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Paragraph (d)—What Information Must Mark Davidson, Risk Manager for and cost with no potential benefit. The
I Provide to my Employees? Safeway Stores testified (Tr. 13674, General Electric Company (Ex. 30–1071)
Paragraph (d) of the final rule requires 13658) that he adamantly supported felt that an employer proactively
employers to provide their employees pre-injury efforts to train and evaluate identifying ergonomic issues would
with basic information about five items: people. He stated the fact that Safeway likely unearth complaints of MSD signs
(i) Common musculoskeletal had produced a video to educate and symptoms. The American Iron and
disorders (MSDs) and their signs and employees on symptoms of soft tissue Steel Institute (AISI) (Ex. 32–206–1)
symptoms; injury and had merely shown it to stated:
(ii) The importance of reporting MSDs employees across the United States. The provisions in proposed Sections
and their signs and symptoms early and Both Akers Logging (Tr. 12325) and 1910.914 and 1910.916 requiring the
the consequences of failing to report Swift Company Timber Management employer * * * to inform workers of the
them early; (Tr. 12315–16) believed that this signs and symptoms of MSDs and how to
information could be incorporated into report them would create an enormous
(iii) How to report MSDs and their potential for abuse of the system. The manner
signs and symptoms in the workplace; regular safety meetings, and Mr. Swift
in which OSHA is expected to enforce those
(iv) The kinds of risk factors, jobs and testified that the cost would be nominal,
provisions will only exacerbate the problem
work activities associated with MSD if anything. (Ex. 32–206–1, pg. 40).
hazards; and In fact, a number of participants urged
OSHA to go even further and require Other participants also expressed
(v) A description of the requirements concern that providing employees with
of OSHA’s ergonomics program employers to survey their employees to
identify existing signs and symptoms additional information about MSDs will
standard. cause workers to misattribute benign
This information must be provided to (see, e.g., Exs. 31–113, 31–150, 30–4538,
31–243, 31–186, 30–2387, 31–156, 31– symptoms to serious injury or disease,
new employees within 14 days of thereby heightening symptoms and
hiring, and must be posted 125, 31–105, 31–43, 31–23, and Tr.
4732–33). One commenter (Ex. 31–186) distress, or otherwise to make false
conspicuously in the workplace. reports (Exs. 32–241–3–2, 30–3716, 30–
Consistent with applicable law, said that, as well as promoting the early
detection of MSDs, thereby saving 3000, 30–4843, Tr.16087, Tr. 10445–6).
information may be posted or provided Omni Services Incorporated (Ex. 30–
electronically to employees who have employers money and lost work time,
surveys also send the message that the 4496–35) believes it would be easy for
electronic access. To assist employers in employees to report almost any ache or
meeting their obligation under this employer cares about employee health
and safety. The American Association of pain as work-related and get paid time
paragraph, OSHA has included off until they feel better.
nonmandatory Appendices A and B, Occupational Health Nurses (AAOHN)
The Painting and Decorating
which contain all the information (Ex. 30–2387) also said that MSD
Contractors of America (Ex. 30–3716)
needed to comply with this paragraph, symptoms surveys should be strongly
voiced concern that the information
except for the workplace-specific encouraged, if not required.
Other commenters argued that the presented to employees about MSD
information on reporting MSDs and signs and symptoms and the importance
benefits of this information provision
their signs and symptoms. of reporting them early would not only
should not be limited to jobs involving
The proposed rule also would have require employers to develop expertise
manufacturing and materials handling
required employers to provide in ergonomics-related injuries, but
(Ex. 30–3826). Since implementation of
employees with information on how to would encourage employees to classify
any ergonomics program outside
recognize MSDs (and their signs and almost any job-related ache or pain as
manufacturing and manual handling
symptoms); on the importance of early an MSD. The Plastics Engineering
would have been based on the
reporting of MSDs; and on how to report Company (Ex. 30–2435) stated that the
occurrence of an OSHA-recordable
MSDs at their workplace. It also would requirements would encourage
MSD, it made little sense, these
have required employees to establish a employees to report both real and
commenters felt, not to provide
reporting system for MSDs. These phoney or exaggerated MSDs. The
employees in other jobs with
provisions in the proposed rule, American Road and Transportation
information on what and how to report:
however, would only have applied to Builders Association (Ex. 30–4676)
manufacturing and manual handling Employees cannot be expected to report argued that the number of work-related
employers. OSHA expected the early if they are not educated on what signs MSD claims, and the number
and symptoms of MSDs are and if the
provisions to serve three purposes: to determined to be work-related, would
employer is not communicating with them
facilitate employees’ active participation the importance of reporting early. Also, if significantly increase. See also Exs.
in their employers’ ergonomics employees are not aware of, or do not know 500–127, 31–106, 31–344, 32–82–1, 30–
programs; to promote early reporting so the mechanism of reporting, than it is surely 3749, 30–3336, 30–3367. The AAOHN
that MSDs could be treated most less likely that they will report * * *. This (Ex. 30–2387), however, pointed out
effectively; and to assure prompt will be a great disincentive for reporting (Ex. that often, after ergonomic training,
identification of MSD hazards so that 32–210–2, pg. 130). employers experience an increase in
the incident trigger of the standard See also, e.g., Exs. 500–126, 32–85–3, MSD complaints and should be
would work properly. 30–4538, 32–198–4, 30–2387. prepared for this eventuality. As noted
There was a great deal of support, in Some commenters, however, objected elsewhere in the Preamble, these are not
general, for requiring employers to that employers should not be required ‘‘new’’ MSDs, but instead the expected
provide hazard and reporting to provide hazard and reporting earlier reporting of MSDs that are
information to employees (see, e.g., Exs. information before an MSD occurred already occurring.
30–2116, 30–3813, 30–3748, 30–3765, (see, e.g., 30–3723, 30–3867, 30–3086, OSHA does not find evidence that
30–3934, 32–339–1, 32–111–4, 32–185– 30–4465, 30–4607, 30–1012). These encouraging early reporting of MSDs
3, 30–3686, 32–461, 32–210–2, 30–3826, commenters argued that providing the promotes abuse. Evidence discussed in
30–3686, 32–182–1, 30–2116, 30–3748, information would be an unjustified other sections of this Preamble indicates
30–4564, 32–198–2, 500–33, 32–21–1, consumption of resources, infrastructure that programs that encourage early
32–450–1, 30–4247 and 32–450–1). Mr. capacity, and support, adding overhead reporting of MSDs, so that employees

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can enter an MSD management program, and symptoms. Particularly for a very reporting them early, and the mechanics
actually reduce the time employees are small employer, this could be as basic of how to report them and uses a
subject to work restrictions. OSHA also as telling them to report them to a program that emphasizes the
has analogous requirements in other supervisor or safety official. Larger information envisioned by this
standards, for example, the Bloodborne employers may use their existing provision, it does not support providing
Pathogens standard (29 CFR 1910.1030) reporting systems (Ex. 30–3826). a summary of the requirements of the
and several of its chemical exposure Although OSHA intended this option standard. The Edison Electric Institute
standards (Cadmium, 29 CFR also to be available under the proposed (Ex. 32–300–1) also objected to the
1910.1027; 1,3-Butadiene, 29 CFR rule, several commenters interpreted the requirement that supervisors and
1910.1051; Methylene Chloride, 29 CFR proposal as requiring a reporting system employees be trained in the
1910.1052), and has seen no evidence specific to MSD signs and symptoms requirements of the standard.
that the provisions are abused. These (Exs. 31–78, 30–240, 30–3723, 30–3765, Some of these commenters (see, e.g.,
provisions simply require that the 32–77–2, Tr. 5340, 30–3853, 32–337–1, Exs. 30–1336, 30–2836, 30–2940) voiced
employer provide basic information to 30–716, 30–2215, 500–127). In light of concern about not knowing how many
employees; have a system in place for the revised language in the final pages of information were sufficient to
employees to report possible injuries, standard, these comments are now comply with this requirement, while
illnesses, and exposures; and evaluate moot. others (see, e.g., Ex. 30–3782–12) felt
and respond to these reports. As is Other commenters, however, urged that how to interpret a ‘‘summary of the
discussed more fully in connection with OSHA to adopt a more elaborate MSD standard’’ and how to provide this to
paragraphs (e) and (f), a report of an reporting system. The American the employee was left to the employer’s
MSD does not impose any obligations Federation of Teachers (Ex. 32–326–1) imagination. These concerns are
on employers unless the employer urged OSHA to strengthen the reporting addressed by the inclusion of
determines that the MSD is work related requirements by stipulating that nonmandatory Appendix B to the
and meets the severity criteria, and the employers document a method for standard.
job itself meets the levels of the Basic encouraging employees to report. On the other hand, several
Screening Tool in Table 1. Morgan, Lewis, and Bockius (Ex. 30– commenters stated that employees
OSHA also agrees with the comments 4467) expressed concern that employers should receive even more information
discussed above urging that all general would have no sure way of knowing (Exs. 30–4538, 31–242, 32–461–1, 32–
industry employees be provided with whether a reporting system would 210–2, 32–182–1, 32–111–4, 32–339–1,
this information. It believes the incident satisfy an OSHA compliance officer’s 500–218, Tr. 3481–82, 500–126, 31–280,
trigger in the standard can only be fully interpretation of the standard’s Tr. 4542–43). For example, the AFL–
effective if all employees have basic requirements. OSHA does not agree that CIO recommended that the hazard
information about MSDs and how and more detail is necessary in this information and training requirements
why to report them promptly. This provision. be restructured to move some of the
means that some general industry The final standard allows employers training requirements up-front and
employers, who under the proposal extensive flexibility to tailor reporting stated:
would have had no obligations at all systems to the demands of individual
workplaces. Variations among Specifically, we recommend that the
until receiving a report of an MSD, will Hazard Information and Reporting section
now have to provide this information. employers (e.g., size, management require information and awareness initial
OSHA emphasizes, however, the structure, number and type of facilities) training on the following:
minimal nature of the burden imposed could lead to some types of reporting 1. Common MSD hazards;
by this paragraph. All of the systems being more effective than others 2. The signs and symptoms of MSDs and
information, except that on how to for different employers. Some may the importance of recognizing and reporting
report MSDs and signs and symptoms to choose written reporting systems, while them early;
a particular employer, is contained in others may feel that an oral system is a 3. How to report MSDs, signs and
‘‘better fit’’ for their particular situation. symptoms of MSDs, and MSD hazards and
Appendices A and B to this standard,
the prohibition against discouraging
and will also be posted on OSHA’s OSHA demands only that, whatever employee reports;
website. Employers need only copy or approach is used, it must be accessible 4. An explanation of this standard,
download the information for and carried out in an orderly way that including ways for employees to participate
distribution to their employees. This is recognized and understood by the and how to get a copy of the standard;
responds to a number of comments involved parties. 5. An explanation of MSD management,
asking OSHA to provide materials to A few commenters questioned the including temporary work restrictions and
assist employers in providing requirement to provide employees with work restriction protection; and
information to employees (see, e.g., Exs. a summary of the standard (see, e.g., 6. The principles for controlling common
Exs. 30–3765, 30–1336, 30–3782–12, MSD hazards. (Ex. 32–339–1, pgs. 32–33)
30–429, 30–4492, 30–2987, 30–3232,
30–3853, 32–337–1, 32–210–2, 32–461– 30–2836, 30–2940, 30–240). The G. Other commenters suggested that
1, 32–461–1, 30–3826, 30–4538, 30– Leblanc Corporation (Ex. 30–4837) additional topics such as employee
3686, 30–2387). stated that, with the exception of this rights to job protection, right to report
The requirement that employees be item, the information to be provided to reporting procedures, symptom
given information on how to report employees would be very helpful in reporting procedures and training be
MSDs and their signs and symptoms is making the reporting/response system included (see, e.g., Exs. 32–461–1, 30–
also necessary to ensure the successful. It also felt that inclusion of 4538, 30–3686, 32–198–4, 32–198–4–1,
effectiveness of the standard’s exposure the summary resulted in additional cost 32–198–4–13)
trigger. This requirement is even more and expertise necessary for providing OSHA has considered these
basic than that contained in the the information. The Dow Chemical comments and incorporated some of the
proposed rule. It does not require Company (Ex. 30–3765) also suggestions. Other topics are addressed
employers to set up any particular commented that, while it supports in the context of ergonomics program
reporting system, only that employees telling employees about MSD hazards, training under paragraph (t). The
know how to report their MSDs or signs signs and symptoms, the importance of information requirement in this

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paragraph (d), however, is intended to sheet when they are beginning to likely to result in the MSD, and those
provide employees with the minimum develop an MSD. activities were either a ‘‘core element’’
amount of information they need to In conclusion, OSHA has considered of the job or accounted for a ‘‘significant
perform their function under the all of the comments and testimony amount’’ of the employee’s worktime. In
standard: recognizing and reporting received on the proposed provisions manufacturing and manual handling
MSDs and their signs and symptoms, requiring employers to provide hazard jobs, an OSHA-recordable MSD was not
and doing so as early as possible. information and reporting. It has necessary if an employee reported
Employers are free to provide additional decided to retain the requirement that persistent symptoms and the employer
information (e.g., explaining their employers covered by the final rule to had knowledge of problems in the job.
particular ergonomics program), but provide minimal information to OSHA received a large number of
OSHA does not believe that more employees before an MSD incident comments about the proposal’s
detailed information is necessary before occurs. OSHA believes the final rule triggering mechanism. These comments
any MSD hazards have been found. As provision is adequate without requiring fell into several categories. Many parties
previously discussed, the Agency has additional measures such as surveying objected that the single MSD incident
attached an information sheet for the employees to identify signs and trigger included in the proposal was
employer to use in providing the symptoms of MSDs. either too sensitive or not protective
required information. enough. Others objected to the use of an
Paragraph (e)—When Must I Take
Finally, the issue of the posting of this Further Action? OSHA-recordable MSD, often pointing
information was also raised by several out that OSHA has proposed to amend
commenters (see, e.g., Exs. 31–70, 31– A. Introduction its recordkeeping regulation, and that
342, 30–240, 30–1726, 30–1104, Tr. The final rule incorporates a two-stage those amendments could also affect this
10586). One commenter (Ex. 31–70) action trigger. It requires further action ergonomic standard. In addition,
stated that the final standard should when (1) an employee experiences a commenters complained that the
require mandatory posting of work-related MSD involving either one proposed standard’s screening criteria
information for employees. Similarly, or more days away from work, one or would be extremely difficult to apply in
another commenter (Ex. 31–342) more days of limitations on the work practice, pointing in particular to the
commented that there should be a activities of the employee, medical terms ‘‘core element,’’ ‘‘substantial part
requirement to either post a notice that treatment beyond first aid, or 7 days of of the workday,’’ and ‘‘reasonably likely
employees should report possible MSDs persistent MSD signs or symptoms (2) in to result in the MSD.’’
promptly or inform employees in a job with exposures to risk factors that As explained below, OSHA has made
another effective manner. The National meet the Basic Screening Tool in Table a number of changes in response to
Association of Orthopaedic Nurses (Ex. 1. Unless both stages of this action these comments. The triggering
30–1104, Tr. 10586) supported a readily trigger are reached, the standard does mechanism in the final rule has more
identifiable posting of MSD signs and not require employers to take any action precisely defined elements, and OSHA
symptoms, who to report to, and how to beyond providing the information in believes it should be much easier to
report. In addition, the University of paragraph (d) to their employees. apply.
Wisconsin Extension (Ex. 30–1726) The action trigger in this standard A job meets the action trigger in the
urged OSHA to develop ‘‘more serves a purpose analogous to that final standard based on two criteria. The
boilerplate’’ on a policy that encourages served by action levels in OSHA first is what has been called the ‘‘single-
reporting and to require that this policy standards regulating exposures to air incident trigger.’’ Under this criterion,
be posted in the workplace. On the contaminants. Those standards an employee working in the job must
other hand, August Mack generally require that airborne levels of have incurred either a work-related
Environmental (Ex. 30–240) argued that the contaminant be kept below a MSD severe enough to result in a work
posting was redundant, unnecessary permissible exposure level (PEL). At a restriction, medical treatment beyond
and posed a problem due to often much lower level, however, employers first aid, or MSD signs or symptoms
limited space available for postings. It are required to take actions such as lasting at least 7 consecutive days after
felt that the currently required OSHA conducting air monitoring and being reported to the employer. A work
poster already contains information on providing training and medical restriction is defined in the standard as
how to get additional information about surveillance to exposed employees, one or more days away from work, one
OSHA standards. although they do not actually need to or more days of limitations on the work
Paragraph (d)(2) of the final standard implement controls to reduce exposures activities of the employee’s current job,
requires that the information provided to the regulated substance. Similarly, in or one or more days of temporary
to employees must also be posted in a this standard, once a job meets the transfer to alternative duty (see
conspicuous place. In addition to an action trigger, the employer must paragraph (z)). Under the final rule, an
employee bulletin board, such places implement an ergonomics program that MSD meeting this description is an
may be the employee locker room, includes job hazard analysis, training, ‘‘MSD incident.’’ The employer’s first
lunch room, or near the time clock. and MSD management (for the injured duty, after receiving a report of an MSD
Electronic posting is also permissible employee), although it may not actually or MSD signs or symptoms, is to
where all employees have access. While be necessary to control or reduce the determine whether the report
the Agency realizes that these options MSD hazard. constitutes an MSD incident.
are not available in all facilities, most This concept is similar to the The second step of the action trigger,
employers have some area, recognized approach OSHA took in the proposed which must only be addressed after an
by employees, where the employer posts rule. In the proposal, an employer was MSD incident occurs, is based on the
company announcements and required to take further action if an employee’s exposures to ergonomic risk
information. OSHA believes the posting OSHA-recordable MSD occurred in a job factors. If the employee is exposed to
requirement is necessary because many meeting certain ‘‘screening criteria,’’ i.e., one or more of the risk factors described
employees may not have immediate the job involved physical work activities in the Basic Screening Tool in Table 1
access to their original information and conditions that were reasonably for longer than the time listed for that

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68306 Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations

risk factor, then the job meets the have been going, both as a safety profession Economic Analysis, Industry Profile,
screen. and as a society in terms of identifying chapter II), and the incident trigger
hazards, developing systems and processes to ensures that most of these employers
B. MSD Incident Trigger control them. And then, kind of when those
systems fail and we have an injury, then
will have only minimal obligations
1. Incident-Based Approach what are our back-up systems and our under the final rule.
The proposed standard also included approaches? (Tr. 12277). The record also shows that an
a single-incident trigger. Under the See also (Tr. 9115–16). incident trigger is a reasonable proxy for
proposal, employers of workers engaged an increased risk of exposure to MSD
OSHA has carefully considered these hazards. For example, some employers
in manufacturing and manual handling comments. In response, it has added a
would have been required to implement with successful ergonomics or safety
proactive element to the definition of an and health programs use reports of MSD
some elements of an ergonomics MSD incident. MSD signs and
program standard soon after the symptoms or symptom surveys to
symptoms that last for 7 consecutive identify jobs posing MSD hazards (Ex.
standard took effect, whether or not days since first reported to the employer
MSDs had occurred in their jobs. Once 37–2, Tr. 5503, 5358; Tr. 14707, 14723–
are considered MSD incidents under 26). Dr. Frederick Gerr, Associate
a ‘‘covered MSD’’ meeting the screening this standard. Several health care
criteria occurred, those employers Professor of Environmental and
professionals testified that, in most Occupational Health at the Rollins
would have been required to adopt a cases, MSD signs and symptoms are
full ergonomics program. Other School of Public Health at Emory
completely reversible when they are University, testified:
employers would not be required to take caught at such an early stage (see, e.g.,
any action before a ‘‘covered MSD’’ Exs. 37–1; 37–2, pp. 14–15; 37–12, p. 5; The use of reported cases of illness, such
meeting the screening criteria occurred, 37–16, p. 8; 37–17, p. 4; Tr. 7687–88, as MSDs, to trigger investigation into
but once that happened, they also were potentially excessive exposure to known
9884, 13397–98, 13410). Thus, OSHA MSD hazards is a well-established method of
required to adopt the full program. In has concluded that its incident-based
this final rule, OSHA has clarified that protecting others with similar exposures (Ex.
approach can prevent employees from 37–2, p. 15).
the only action explicitly triggered by an experiencing permanent damage or
MSD incident is to apply the Table 1 Many employers also use MSD reports
disability, while at the same time
screen. OSHA finds that the record as a way to prioritize their control
minimizing burdens for employers who
supports using an MSD incident for this activities (Tr. 10631, 14723, 14746).
have few or no ergonomics problems
purpose. Sean Cady, of Levis Strauss & Co.,
(Ex. 16969–70).
A number of participants objected to Where employers have provided their testified:
the proposal’s incident trigger on the employees with appropriate information If we have repetitive motion injuries or
basis that it was reactive and appeared to allow the employees to recognize musculoskeletal disorders on various jobs
inconsistent with OSHA’s mission ‘‘to MSDs and MSD signs and symptoms, that occur at the same time how do we
prevent the first injury’’ (Ex. 500–218, prioritize which jobs we select for job
and have also instituted good reporting
Tr. 9071, 9156, 12277, 12477). A modification, because we don’t have
systems, and employees still are not unlimited resources in the company. So what
number of labor organizations favored a reporting MSDs, a full ergonomics
proactive approach because, according we do is we review many factors of that job
program may not be necessary. OSHA and we qualitatively prioritize jobs. And we
to the International Chemical Workers’ agrees with commenters who said that review things like the number of symptoms
Union, ‘‘[w]aiting for a covered MSD or a purely hazard-based approach, which reported on a job, possibly the number of
persistent MSD symptoms to arise, would require all employers to analyze injuries, or the severity of injuries on a job
versus evaluation and prevention, is a all jobs, regardless of whether those jobs (Tr. 14723–24).
lose-lose proposition’’ (Ex. 32–198–4, have ever caused an MSD, might result OSHA has made clear throughout this
32–461–1, 500–137; see also Ex. 500– in an inefficient use of resources (Exs. rulemaking that a portion of its intent is
218, Tr. 12365, 17543). The Farm 500–1–329, 500–75, Tr. 3095). to require more employers to implement
Workers Justice Fund urged OSHA to This is particularly true because the the kinds of effective programs that are
adopt a hazard-based approach because vast majority of employers will not have already in place in many industries (64
in many workplaces employees an MSD incident reported in their FR 65770). Incorporating an approach
experience a great deal of pressure not workplace during any given year (Exs. already in wide use is consistent with
to report injuries (Tr. 17515). 30–542, 30–3167, 500–1–128, Tr. 2980, this purpose, and will reduce employer
Some employers and representatives 3073, 3096). One report prepared for the burden while increasing compliance
of employers also supported a hazard- Small Business Administration’s Office with the standard.
based rather than an incident-based rule of Advocacy estimated that as many as Other commenters were concerned
(Ex. 30–1294, DC67, Tr. 9070–74, 12277, 75 percent of manufacturers employing that OSHA’s use of an incident trigger
13633, 10631, 10636). Mark Davidson, fewer than 11 employees are not likely would doom those preexisting programs
of the Oregon Self Insurance to experience any MSD incident for up that involve what these participants
Association, preferred a proactive to six years. (Ex. 30–542). (See also Ex. view as a more proactive method of
approach because: 500–67; Final Economic Analysis, identifying ergonomic hazards (Ex. 500–
If the goal is to cut down on the occurrence chapters II and IV). The testimony of a 1–452, Tr. 9070–74, 10630–32). But
of MSD complaints, shouldn’t the regulatory number of hearing participants nothing in this rule prohibits employers
effort [focus on] preventing the occurrence representing small businesses confirmed from taking action, analyzing jobs or
rather than punish it (Tr. 13633).
this (Exs. 30–3167, 500–1–128). They setting up an ergonomics program
Anthony Barsotti, of Hoffman told OSHA that they had never had a before MSD incidents are reported. And
Construction Company, said that an report of an MSD in their workplace (Tr. the grandfather clause in paragraph (c)
incident-based approach was ‘‘heading 2980), did not have MSDs every year, or of this standard specifically allows
backwards in terms of prevention’’ had only isolated or few occurrences qualifying employers to continue their
versus reaction: (Tr. 3073, 3096). Small employers preexisting programs. Based on the
[H]aving the standard be triggered by the comprise 75 percent of all private record, OSHA expects that many
injuries seems inconsistent with where we industry establishments (Final employers who have established

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ergonomics programs that do not rely on very costly for employers (Exs. 30–2208, and ergonomic interventions are
MSD reports to identify MSD hazards 30–4340, 500–1–26, Tr. 8772). David delayed, it is more likely that
will maintain those programs (Tr. 3130– Potts of the National Electrical conservative treatment will be less
33, 5539, 9070–74, 10631). Contractors Association testified: effective or will not even be an available
[B]ecause [of] the broad scope of what option, or that the MSD condition will
2. One MSD Trigger
constitutes an MSD, the program standard’s not be reversible and the employee will
A separate group of rulemaking coverage will be easily activated. As such, an be permanently disabled (Ex. 38–285).
participants complained that the single- employer could be required to institute costly For example, if carpal tunnel syndrome
incident trigger in the proposal was too job analysis and corrective actions as a result and other nerve-related MSDs go
sensitive (Exs. 30–2208, 31–324, 500–1– of a single injury illness to an overly untreated long enough, damage to the
27, 500–1–28, 500–1–45, 500–1–128, susceptible employee while all other nerves will be irreversible (Ex. 37–17,
500–52, 500–75, Tr. 5506–07). For employees in the same operation or job Tr. 13349 (the nerve dies)). If OSHA
instance, the Association of location has no discernable adverse reaction.
Considering this hair trigger and that the
included a multiple-incident trigger, the
Independent Corrugated Converters said first employee to be injured could
Agency has only offered general remediation
that the ‘‘one-incident threshold makes measures in the proposed rule, small become permanently disabled while
full coverage a virtual certainty for business will surely face burdensome waiting for other MSDs to trigger the
virtually every sizable employer, and for compliance responsibilities and stressful employer’s obligations to provide MSD
the vast majority of small employers’’ decisions including where to best place their management and ergonomic
(Ex. 500–1–128, Tr. 16930–31). The limited resources (Tr. 5645). intervention. This would be particularly
National Tooling and Machining These commenters urged the Agency likely in small businesses and in
Association also said that a single MSD to adopt a MSD trigger having a higher workplaces where relatively few people
incident was too low a threshold: threshold. A number of commenters perform the same job (Ex. 32–450–1). In
On its own, a single reported MSD might urged OSHA to increase the trigger to addition, not acting on the first MSD
not be statistically significant to warrant the two or more MSDs (Ex. 30–3731–1, 500– may discourage other employees from
corrective measures required by the proposed 2, 601–X–1). Other commenters said reporting their MSD signs and
regulation. NTMA contends that a trigger symptoms (Ex. 32–450–1).
mechanism of at least two MSDs should be
that incidence rates should be used to
trigger action (Exs. 30–3845, 30–3853, The use of a single MSD trigger is also
the minimum threshold for the full program,
especially for small businesses (Ex. 500–2). 30–4137, 32–77–2, 500–1–128, Tr. 5370, consistent with employer practice.
8842). Several commenters Many employers testified that they
Jack Pohlman, of the American respond to all employee reports of
recommended that the trigger be a
Foundryman’s Society, added that a injury or illness, including MSDs (Ex.
‘‘pattern’’ or ‘‘cluster’’ of MSDs or MSD
report of one MSD ‘‘is simply not 37–2, Tr. 5358, 5359–60, 5503, 5539,
reports (Ex. 32–330–1, 500–23–1, 500–
indicative of systematic problems’’ (Tr. 14707, 14739, 17312–13). Even
92). Paul Adams, director of ergonomics
5636). Marathon Ashland Petroleum employers who recommended that
at Owens-Corning, suggested that OSHA
agreed, saying that a single incident ‘‘is OSHA adopt a multiple-incident trigger
should adopt a set of alternative triggers
not reflective of the true nature of risk testified that they themselves conduct
from which employers could choose (Tr.
that exists in a given facility’’ (Tr. 5540). investigations of every report of injury,
10630, 10633).
And the National Paint and Coating including MSD signs and symptoms (Tr.
OSHA believes many of these
Association complained that a one MSD 2920, 5503, 5358). For example, James
concerns resulted from a
trigger was biased against large Lancour, safety and health regulatory
misunderstanding of the screening
employers (Ex. 30–4340). consultant with Southern Company
A number of commenters said that a criteria in the proposal. However, the
Agency also recognizes the validity of Services, testifying on behalf of Edison
one MSD trigger also would unduly Electric Institute, said:
burden employers by requiring them to the concerns that those screening
respond to ‘‘every ache and pain’’ an criteria were not clear enough to [We] have a reporting mechanism where
employee reports (Exs. 30–4340, 500–1– provide adequate assistance to signs and symptoms are reported. Then we
employers trying to screen out non- have, it’s turned over to the industrial
18 (‘‘a single complaint of pain’’), 500– hygiene group to go out and do a job
1–385, 500–1–386, Tr. 8772 (‘‘perceived work-related MSDs (Exs. 30–1722, 30–
3956, 500–18, Tr. 8847, 16969–70). assessment. And, again, depending upon
minor problems’’), 12256). The National what they find out it may be something that
Telecommunications Safety Panel OSHA has addressed these concerns can be unique to that particular person or
testified: through the new definition of ‘‘MSD workstation, et cetera, or it may require more
incident’’ in paragraph (e)(1) and the in-depth analysis. So basically depending
Extremely minor conditions with little or Basic Screening Tool in Table 1. The upon the job they take a look at what they’re
no connection to the workplace may trigger
the standard in many facilities (Tr. 8774).
result is a single-incident trigger that is trying to determine how simple or complex
only half of the standard’s action trigger the problem might be, and then go through
Several commenters said that the one and does not, by itself, require and develop an assessment protocol based on
MSD trigger ignores that ‘‘unique employers to implement a full that operation (Tr. 2920).
physical characteristics’’ or ergonomics program or impose other When questioned, no employer testified
‘‘predisposing medical conditions’’ of substantial obligations on them. that it was company policy to wait until
the worker may be involved (Exs. 30– A single-MSD trigger is appropriate a second or third employee gets hurt in
328, 30–1651, 30–2208, Tr. 5560–61). for this purpose. Most important, a one a job before investigating the first injury.
James Haney, of Wisconsin MSD trigger is necessary to prevent the This suggests that employers
Manufacturers & Commerce, said: occurrence of serious and disabling understand the importance of
Thus, the most injury- or illness-prone MSDs. There is abundant record responding to each report of injury and,
employee becomes the benchmark for evidence that early detection and in practice, do not consider it
implementing the proposed standard’s intervention can halt the progression of appropriate to ignore individual reports
requirements (Ex. 500–1–27). most MSDs, and reduce their severity of injury.
Finally, some commenters argued that (Tr. 7687–88, Ex. 32–450–1). On the Other evidence in the record also
imposing a one MSD trigger would be other hand, where medical treatment shows that a one MSD trigger should not

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impose an undue burden on employers. where the employer has reason to potential problems that could be caused
As discussed above, most small believe that only the injured employee by linking an employer’s obligations
manufacturing establishments do not is exposed to awkward postures because under this standard to obligations and
experience any injuries or illnesses in he or she is very tall or very short, the interpretations contained in a separate
any given year (Exs. 30–542, 30–3167, employer can limit the response to that rule (Exs. 30–3853, 30–4137, 32–77–2,
500–1–128, Tr. 2980, 3073, 3096). In individual employee’s job or Tr. 10632). This problem was
fact, many establishments do not workstation. See paragraph (j), below. highlighted by the facts that OSHA has
experience any injuries or illnesses over proposed to amend its recordkeeping
3. Definition of ‘‘MSD Incident’’
a considerable period. According to a rule, so that it has not been clear at any
report prepared for the Small Business In this standard, the term ‘‘MSD stage of this ergonomics rulemaking
Administration Office of Advocacy, 75 incident’’ means either an MSD that is what the definition of an OSHA-
percent of manufacturing work-related and: recordable MSD would be, and that
establishments with fewer than 11 • Involves a work restriction, or OSHA incorrectly described the
employees, 50 percent with 11–50 • Requires medical treatment beyond recordability of one class of MSDs in the
first aid, or proposal (Exs. 30–3853, 32–78–1, 32–
employees, and 25 percent of those with
• Involves MSD signs or symptoms 300–1). Moreover, according to
50–249 employees would experience
that are work-related and persist for 7 or commenters, linking the definition of
almost no MSD incidents in any given more consecutive days after the
6-year period. (See also Economic MSD incident to the recordkeeping
employee reports them to the employer. regulations would give employers a
Analysis, chapters III and IV.) If this
standard were to adopt a multiple MSD Work restriction is defined to mean strong incentive to underreport MSDs or
one or more days away from work, one would punish employers who already
requirement, particularly one requiring
or more days of limitations on the work have effective early intervention
at least two MSDs in the same job
activities of the employee’s current job programs (Exs. 30–46, 30–75, 30–137,
during a single year, injured employees
or temporary transfer to alternative 30–1294, 30–1902, 30–4137, Tr. 8848,
in many establishments might never be
duty. Reducing an employee’s work 10630–32).
provided with needed medical
requirements in a new job to reduce OSHA agrees that these concerns,
intervention or protection from
muscle soreness from the use of muscle particularly those related to the ongoing
additional injuries because it would
in an unfamiliar way is not considered recordkeeping rulemaking, outweigh
take so long for the triggering event to
a work restriction under this final rule. any potential benefit employers would
occur.
Also, the day an employee first reports gain from being able to use recordability
The changes in the definition of
an MSD is not considered a day away criteria to determine whether an MSD
‘‘MSD incident,’’ and the new Basic
from work or a work restriction even if report triggers further action under this
Screening Tool, both discussed below,
the employee is temporarily removed standard. Therefore, in this final
will also help to address the concerns of
from work to recover. standard, OSHA has dropped any
some commenters that significant Relationship to Recordkeeping Rule.
employer action will be triggered by the reference to the recordkeeping rule’s
The proposed rule defined a ‘‘covered recordability criteria. Although the
report of ‘‘any ache or pain,’’ whether or MSD’’ as an OSHA recordable MSD that
not it is work related (Exs. 30–1722, 30– definition of an MSD incident in this
occurred in a job in which the physical standard uses criteria similar to those
2208, 30–3956, 500–52). P.J. Edington, work activities and conditions were
executive director of the Center for used in determining recordability, each
reasonably likely to cause or contribute of the criteria used in this rule is
Office Technology, said: to that type of MSD, and those activities supported by evidence in this
OSHA assumes any discomfort on the job and conditions were a core element or rulemaking record. This has also
is work-related. That leaves all employers in took up a significant amount of the allowed OSHA to tailor the definition of
a continuous and costly cycle of trying to employee’s worktime. In this final rule an MSD incident so that it more closely
eliminate all ‘‘signs and symptoms’’ of MSDs OSHA has changed the term ‘‘covered
(Ex. 30–2208). corresponds with the purposes of this
MSD’’ to ‘‘MSD incident’’ to dispel any standard.
But employers have the right under implication that any such MSD Definition of ‘‘musculoskeletal
this final rule to make reasonable immediately triggers a full ergonomics disorder.’’ For purposes of this rule, an
determinations that particular MSDs are program. Although some participants MSD is a disorder of the soft tissues,
not work related. And only MSDs severe found the definition of covered MSD to specifically of the muscles, nerves,
enough to require medical treatment or be ‘‘relatively clear’’ (Exs. 30–3934, 30– tendons, ligaments, joints, cartilage,
a job restriction, or signs and symptoms 4837; 31–173, 31–186, 31–205, 31–229, blood vessels and spinal discs that is
persistent enough to last for seven 31–347), many more objected that it not caused by a slip, trip, fall, or motor
consecutive days, have any triggering covered too many MSDs, was too vague, vehicle accident. See paragraph (z). This
effect. Moreover, the standard’s Basic or was improperly linked to OSHA’s standard covers MSDs affecting the
Screening Tool establishes specific recordkeeping rule (Exs. 30–1364, 30– neck, shoulder, elbow, forearm, wrist,
thresholds for the duration, magnitude 1722, 30–2088, 30–3167, 30–3845, 30– hand, back, knee, ankle, and foot as well
and frequency of exposure to risk factors 3956, 500–73, 500–104, 32–337–1, Tr. as abdominal hernias. It does not,
that a job must involve in order for an 4366, 8226, 10000, 12797, 15977). The however, cover eye disorders, even
MSD incident in that job to be one that new definitions of MSD and Action when associated with jobs involving
triggers the standard’s program Trigger in this standard address these computer monitors.
requirements. concerns. Although some commenters
The final rule also takes into account OSHA received a great deal of recommended that the standard address
the concerns of commenters that a comment on the proposal’s use of an conditions resulting from slips, trips,
single incident trigger ignores the fact OSHA-recordable MSD, i.e., an MSD and falls (Ex. DC 58, DC 405), those
that an MSD may be related to the required by 29 CFR Part 1904 to be injuries are not caused by exposure to
‘‘unique physical characteristics’’ of the recorded on the employer’s injury/ the risk factors this standard covers. For
worker (Exs. 30–328, 30–1651, 30–2208, illness log, as a trigger for further action. the same reason the final rule does not
500–1–27, Tr. 5660–61). For example, Many of these comments pointed out cover computer-related eyestrain, which

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is caused by factors such as glare from OSHA also has responded to concerns when the injured employee either must
lights and windows, computer flicker that, once an employee has an MSD, take off the entire work day for
and other monitor resolution problems, minor aggravations of the MSD can recuperation or medical treatment, or is
and by not blinking or looking away occur very easily (Tr. 3315). In the final able to work for only a portion of the
from the screen (Tr. 16159–66). rule, only ‘‘significant’’ aggravation of a workday or to perform only some job
‘‘Work-related.’’ In paragraph (z), pre-existing MSD is considered to be an functions, either regular or alternative
‘‘work-related,’’ is defined to mean that MSD incident. ‘‘Significant aggravation’’ tasks, during the recovery period. The
a workplace exposure caused or occurs only when risk factor exposures latter category includes job transfer,
contributed to an MSD incident or in the workplace aggravate a pre- light duty jobs, and alternative duty
significantly aggravated a pre-existing existing MSD to the extent that it results jobs. Employees who cannot work
MSD. This is a change from the in an outcome that it would not regularly scheduled or mandatory
proposal, which would have considered otherwise have caused. For example, overtime during the recovery period are
an MSD work-related if physical work workplace exposure is considered to also considered to be on work
activities and conditions caused or have significantly aggravated an restriction. Neither the initial day on
contributed to an MSD or aggravated a employee’s pre-existing MSD if the MSD which the MSD is reported or occurred,
pre-existing one. Many commenters would have resolved on its own or with nor any day on which the employee is
complained that the proposed definition only first aid, but because of the not scheduled to work, is counted as a
of work-related, in essence, established employee’s exposure to identified risk day of work restriction.
a presumption of work-relatedness (Exs. factors in the workplace, the MSD has On the other hand, the standard now
30–1722, 30–3934, 30–3956, DC65, 500– progressed to the extent that medical makes clear that work restrictions do
1–28). The Chamber of Commerce said treatment is now necessary. On the not include situations where an
that the rule should not cover ‘‘minimal other hand, if an employee experiences employer adjusts the work assignments
workplace exposure that merely more pain when at work, simply to deal with the temporary muscle
aggravates non-work exposures’’ (Ex. because the employee is using an soreness that an employee may
30–1722, p. 62). Mike Edmunds, injured body part, that extra pain does experience as a result of starting a job
corporate safety director for Tyson not constitute significant aggravation. In that requires the use of muscles in an
Foods, said: addition, workplace exposure aggravates unfamiliar way (paragraph (z)). The
Even if upper extremity musculoskeletal an MSD only where a specific physical record indicates that some employers
pain (e.g., wrist pain) arises solely as a result work activity or condition can be have ‘‘conditioning’’ programs, most
of non-work-related activities, it is virtually identified as a factor in the progression often lasting about two weeks, to help
impossible for an employer or physician to of the pre-existing MSD. employees adjust to this type of new job
establish that subsequent work activities did Although the employer is ultimately assignment (64 FR 65955 (Case Study
not in some minor way ‘aggravate’ or responsible for determining whether an No. 2), (Exs. 26–1175, 30–4340, Tr.
‘contribute’ in some way to the condition— MSD is work-related, employers may 9225, 9403, 13589). These programs
regardless of the job (Ex. 30–4137).
consult with others, such as HCPs or recognize that it is not uncommon for
To address this concern, a number of safety and health personnel at the employees to experience pain or
commenters recommended workplace, in making that stiffness when they begin exercising
incorporating language from various determination. Where an employer uses muscle groups in new or more
State workers’ compensation regulations an HCP to provide assistance in strenuous ways (Exs. 26–1175, 30–
so that an MSD would be considered determining the work-relatedness of an 4340). In these situations, pain or
work-related only where work was the MSD, the HCP must use the definition soreness may not indicate the presence
predominant cause of the injury or was of work-related in this final rule and not of an MSD hazard. In most cases these
more than 50 percent responsible for the criteria for determining work- symptoms resolve as the employee
injury (Exs. 30–3934, 32–77–2, Tr. relatedness under workers’ becomes accustomed to the physical
5507). Others recommended that OSHA compensation. activities of the job (Ex. 26–1175). They
adopt the definition of work-relatedness Another frequent objection to the do not indicate that a hazard needing to
from California’s ergonomics standard, proposed definition was that it did not be controlled may exist. OSHA believes
i.e., that work must be 51 percent establish an adequate severity threshold that this clarification will help alleviate
responsible for the MSD (Ex. 32–300–1). and, as a result, would have captured all the concerns of some commenters that
Several suggested that the MSD incident the ‘‘aches and pains of life’’ that the single-incident trigger would not
not include pre-existing MSDs (Tr. employees experience while performing only trigger coverage of passing aches
3097–98). work activities (Ex. 30–3956, see also and pains, but could also trigger WRP
OSHA believes that some of these Exs. 30–1722, 30–2208, Tr. 9824). The obligations for employees who
concerns resulted from a Chamber of Commerce said that MSD experience symptoms while they are
misunderstanding about what was ‘‘so loosely defined as to cover becoming accustomed to a new job (Ex.
‘‘contribute to’’ means. It does not mean unverified complaints of pain rather 30–4340, Tr. 4316–17).
that an MSD is considered to be work- than just objectively verifiable medical Medical conditions that result in work
related if work contributes in some de conditions’’ (Ex. 30–1722, p. 61). The restrictions are widely recognized as
minimis (e.g., ‘‘1% contribution’’ (Ex. severity criteria in the final rule address serious (Exs. 26–1039, 37–1, 37–12, 37–
30–3934)) or vague way. Rather, work this complaint. In deciding to include 28). Repeatedly, physicians and other
contributes to an MSD if a specific within its definition only those MSDs HCPs testified that they consider MSDs
physical work activity or condition can resulting in a work restriction, in that rise to this level to warrant both
be identified as having contributed in medical treatment beyond first aid, and medical evaluation and intervention
some discernable way to the onset of the in MSD signs or symptoms lasting at and job interventions (Exs. 37–1, 37–12,
MSD or the signs or symptoms of an least 7 days after being reported to the 37–28). Accepted standards of clinical
MSD. If nothing specific can be employer, OSHA is adopting practice, reflected in guidelines
identified as a factor, then work is not appropriate medical severity thresholds. published by medical associations, also
considered to have contributed to the Work restriction. A work restriction in recommend intervention at least at this
MSD. this context means at least one full day stage (Exs. 37–12, 500–34, 26–1039). For

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example, guidelines on low back have been a ‘‘covered MSD’’ because it 37–12, Tr. 1531, 13382, 1763–65).
disorders (developed by a panel of is a recordable event under OSHA’s Sound medical judgment supports
private sector clinicians for the Agency recordkeeping rule. This raised intervening when an employee has
for Health Care Policy and Research that concerns for a number of commenters, experienced at least a week of MSD
recommend strategies for assessing and who pointed out that some signs, such signs or symptoms. Dr. Bradley Evanoff,
treating low back problems) defined low as redness, may be mild and transitory, Assistant Professor of Medicine at
back problems as ‘‘activity intolerance not warranting a full program response Washington University School of
due to low back symptoms,’’ such as (Exs. 30–3344, 30–3749, 30–4674, 32– Medicine specializing in research and
pain (Ex. 26–1039, p. 1). 211). clinical practice addressing
The insurance industry also considers ‘‘MSD symptoms,’’ as defined in occupational MSDs, testified:
conditions that are severe enough to paragraph (z), are other physical I think whatever the occupation, whatever
require work restrictions to constitute indications that an employee may be the type of work, if someone has had
medical disability (Exs. 37–1, 37–6, 37– developing an MSD. Symptoms include persistent musculoskeletal symptoms for
12, 37–28). These conditions are often pain, numbness, tingling, burning, some period [of] time, and I think a week is
compensable through workers’ cramping, and stiffness. The proposed a reasonable period of time, then they should
compensation, and insurance rule would only have addressed be evaluated to see if they have a
companies consider them to be serious persistent symptoms in manufacturing musculoskeletal disorder (Tr. 1531).
(Ex. 37–6). According to Stover Snook, and manual handling jobs, and then Dr. Robin Herbert, medical director of
former director of the Ergonomics only if the employer knew that an MSD the Mount Sinai Center for
Laboratories at Liberty Mutual hazard existed in the injured employee’s Occupational and Environmental
Insurance Company who conducted job. Medicine, testified that providing early
ergonomics research at the company for A number of commenters opposed the intervention for employees whose
more than 30 years, the accepted proposal’s inclusion of persistent symptoms persist beyond a few days is
definition of ‘‘low back disability’’ in symptoms in its trigger mechanism (Exs. ‘‘consistent with accepted medical
the insurance industry is ‘‘lost time or 30–623, 30–898, 30–1722, 30–4777, 30– practice’’ (Tr. 1653). In fact, according to
restricted duty that results from low 4821, 32–78, Tr. 10634). Some ACOEM, such intervention is
back pain’’ (Ex. 37–6, p. 3). recommended at least limiting the types ‘‘essential’’ (Ex. 30–4468). Dr. Robert
Medical treatment beyond first aid. of symptoms included in the definition Harrison, who has treated more than
The definition of MSD incident includes of an MSD incident (Ex. 32–78, Tr. 1,000 patients with work-related MSDs
MSD signs and symptoms that require 10634). For example, ORC said: over the past 20 years, and has also
medical treatment beyond first aid. This
At a minimum, * * * OSHA must limit conducted research in the area of work-
is a familiar concept that is also used in
coverage to those symptoms that can be related MSDs, testified that there is
OSHA’s recordkeeping regulation. It
medically verified and that fall somewhere in ‘‘broad consensus among the medical
also makes no difference whether an
the severity range between minor/transient profession that effective treatment and
employee obtains medical treatment and severe enough to interfere materially prevention of MSDs relies on early
from his or her own HCP or one selected with job performance (Ex. 32–78, p. 17).
by the employer; or whether the reporting of symptoms. * * *’’ (Ex. 37–
employee obtains medical treatment Other commenters, however, agreed 12). He also summed up why 7 days is
before or after reporting the MSD signs with the inclusion of persistent an appropriate threshold:
or symptoms to the employer. symptoms in the incident trigger (Ex. [S]even days is early enough to catch the
Physicians and other HCPs testified that 500–218, Tr. 12295), and virtually all of symptoms early but is late enough so that
MSDs that require medical treatment those urged OSHA to extend this transient symptoms that may last only two or
such as physical therapy, prescription criterion to all jobs, not just those in three days don’t come through as a reportable
manufacturing and manual handling symptom to a health care provider. I think
medication or surgery are more serious it’s a reasonable line (Tr. 1764).
than conditions where resting the (Exs. 32–198, 500–218). A number of
injured body area is enough to allow the HCPs were among those supporting, The record shows that where signs
injury to heal (Exs. 37–1, 37–12, 37–16, including persistent signs and and symptoms persist beyond a few
37–17, 37–28). symptoms in the MSD incident trigger days, they are likely to indicate that an
Persistent MSD signs or symptoms. (Exs. 37–1, 37–12, 37–28, Tr. 7660, MSD has occurred. Dr. Gary Franklin
The third type of MSD incident is MSD 13349). They said that persistent signs confirmed that MSDs can develop in a
signs or symptoms that persist for at and symptoms should be evaluated very short period of time:
least 7 days after being reported to the because, left untreated, they often If I was taking the history of the person and
employer. ‘‘MSD signs’’ are defined in progress into more serious disorders and getting these kinds of symptoms of numbness
paragraph (z) as objective physical permanent damage (Tr. 7660, 7884, see and tingling and burning particularly at
findings that an employee may be also Ex. 32–450–1). One study has night, it would not matter to me whether it
developing an MSD. MSD signs include shown that employees experiencing was two days or seven days or 14 days, if I
deformity, decreased grip strength or MSD symptoms alone are at thought clinically the symptoms were
range of motion, and loss of function. approximately 2 to 4 times the risk of correct. I have seen patients that developed
Some signs are readily observable, for being off work as employees without [carpal tunnel syndrome] in a day or two (Tr.
13382).
instance, loss of function when an such symptoms (Ex. 500–71–27). A
employee with carpal tunnel syndrome number of employers now encourage HCPs also testified that employees who
cannot hold a powered hand tool employees to report signs and have had MSD signs or symptoms for
because of muscle atrophy in the hand. symptoms to prevent such results and only a short period of time can already
Other signs, commenters said, may not related costs (Tr. 5539, 5550, 14707, be experiencing physiologic changes or
be as observable to non-HCPs (Tr. 7677). 14739). damage (Ex. 37–16). For instance, Dr.
For this and other reasons, MSD signs The record establishes clearly that Evanoff testified:
are treated in the same way as MSD MSD signs and symptoms that persist I think people who have prolonged
symptoms in the final rule. Under the uninterrupted warrant further symptoms, lasting more than a few days
proposed rule, any MSD sign would investigation (Ex. 30–4468, 500–71–27, * * * if you want to use the cut off of a week

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or more, I think that that’s very likely to conservative therapy. Several HCPs told critical * * * [M]y colleague and I can regale
represent some underlying tissue damage. OSHA that, when MSDs are treated you with all sorts of anecdotes about people
* * * (Tr. 1563). early, symptoms ‘‘have been completely who have waited too long to seek medical
Peter Boyle, former professor of resolved with a brief period of restricted treatment, and then once they come for
medical treatment, the treatment is not as
orthopedic physical therapy, agreed: work activities’’ (Ex. 37–12, Tr. 13345– effective as it could have been were they to
A large amount of force in a short time 46). Dr. Harrison said: have come earlier (Tr. 7649–50).
could create a pathoanatomic injury causing Employees often rapidly and completely
disruption, and [tissue] failure (Tr. 2797–98). Dr. Harrison discussed the case of one
recover from their MSD with simple
modification of the work process or change
worker who did not receive early
In addition, persistent signs and intervention:
symptoms can themselves be severe of job duties to minimize or reduce exposure
to ergonomic risk factors (Ex. 37–12, p. 5). [A] twenty-five year old machine operator
enough to interfere significantly with
Dr. Franklin added that where recently came into my office for treatment of
major life activities (Tr. 13356. 13360, severe hand pain and swelling. She had
13373). Dr. Connell testified: employees with carpal tunnel syndrome
worked 9 months in a job that required her
A typical carpal tunnel patient would
are provided with early intervention to use excessive force to press a lever over
come in complaining of numbness and they should be able to return right away 20,000 times per day, using her hands in a
tingling in the distribution of the median to modified work and that work pinch grip with her wrist in an awkward
nerve. Typically it occurs initially at night restrictions should not be needed for a posture. She had developed symptoms after
and wakes one out of a sleep for some prolonged period of time (Tr. 13345– three months of work, but had not seen a
reason—4 a.m. seems to be the magic number 46). Dr. Bernacki testified that, as a health care provider after her supervisor told
(Tr. 2817). result of the early reporting and her that she would ‘‘feel better’’ after she ‘‘got
Moreover, the persistence of signs and intervention program at Johns Hopkins, used to the job.’’ By the time she finally came
to see me, she was unable to drive her car,
symptoms can be an indication that an there had been only one surgery for
shake my hand or open a door. My
MSD is worsening, and early detection work-related carpal tunnel syndrome examination showed marked swelling and
and intervention are ‘‘critical to during the past 5 years, compared with redness of the right wrist, and the pain was
prevention of more serious disorders,’’ 26 such surgeries in the previous three so severe she cried [at] my touch or gentle
in the words of Dr. Robert McCunney, years (Exs. 32–399–1–4, p. 7–8). movement. My diagnosis was chronic,
president of the American College of Early intervention also is likely to be stenosing tenosynovitis. I had little option
Occupational and Environmental more effective in helping patients but to remove her from work completely for
Medicine (ACOEM) (Tr. 7660). Dr. Marc recover fully (Exs. 37–12, 38–222, 38– four weeks to let the hand rest.
Connell, an orthopedic surgeon at 451, 500–71–57). Dr. Harrison said: Unfortunately, she was unable to return to
work in spite of corticosteroid injections,
Georgetown University Hospital, added: At an early stage of symptom management, splints, analgesic medication and physical
‘‘I think that’s common medical sense treatment with anti-inflammatory therapy. She required surgery to release the
that the earlier the treatment is rendered medications, splints, and rest of the affected tendon, and is now in a prolonged
the less severe will be the MSD’’ (Tr. body part often results in complete clinical rehabilitation program.
2833). Dr. Edward Bernacki, vice- improvement without any permanent injury
(Ex. 37–12, p. 5). This case is not unusual. (Ex. 37–12).
president of ACOEM, said: By including persistent signs and
Obviously, the earlier you pick up a Dr. Michael Erdil, medical director of symptoms within the standard’s
problem, the more reversible it is, so the Connecticut Occupational Health definition of an MSD incident, OSHA
obviously, the encouragement of employees Network, said that both scientific assures that early intervention can occur
to come in at the first signs of a problem, so evidence and his own clinical and that medical outcomes like that
that we could work it up, and then basically experience show that conservative
start treating the illness when it is reversible, described by Dr. Harrison will not
therapy is much more likely to be occur.
in other words, if you have irreversible nerve
effective as an early intervention (Ex. For these reasons, a number of HCPs
damage, that is basically too late. Then, you
need surgical intervention. However, for 37–16, citing Kruger et al. (1991) (Ex. and employers said that they investigate
example, in carpal tunnel early on when the 26–910), Gelberman et al. (Ex. 26–916) MSD signs or symptoms as soon as they
disease is reversible, mere splinting and (1980), Quebec (1987), Zigenfus et al. are reported (Exs. 30–390, 30–398, 500–
restriction of activities are fine, it takes care (2000) (Ex. 38–285). Zigenfus found that 218, Tr. 5539, 5550, 9906, 13382). Dr.
of the problem, it disappears (Tr. 7687–88). patients with low back injuries who Franklin stated:
(See also Exs. 26–1367, 32–450–1, 37– were provided with medical treatment
earlier (i.e., less than 8 days after injury) If I was taking the history from the person
24, Tr. 1530, 1697–98, 2853, 2833, and getting these kinds of symptoms of
7649–50, 7687–88, 7883–84, 9831.) required fewer days away from work
numbness and tingling and burning
In addition to reducing the severity of and restricted work and had shorter case particularly at night, it would not matter to
MSDs, early intervention has been duration (Ex. 38–285). Dr. Evanoff me whether it was two days or seven days
shown to reduce MSD rates and explained that the medical literature or 14 days, if I thought clinically the
associated medical costs (Exs. 32–12, consistently shows that: symptoms were correct. I have seen patients
32–339–1–87, 32–399–1–4, 32–450–1 [C]onservative management of MSDs is that developed [carpal tunnel] in a day or
(citing Hales et al. 1993)). Dr. Bernacki most effective when begun in early stages of two (Tr. 13382).
described a study of the effect on 22,000 these disorders, and that patients who are Several employers said that their
employees at Johns Hopkins Hospital treated only after a prolonged symptomatic standard response is to investigate any
and University of an ergonomics period are less likely to respond favorably report of MSD signs or symptoms (Tr.
program that stressed early reporting of than those treated earlier (Ex. 37–1, citing
5539, 5550, 14715–16). Sean Cady, of
MSD signs and symptoms (Ex. 32–399– Dellon (1989), Stern (1990), Rystrom &
Eversman (1991)). Levi Straus & Co., said:
1–4, Tr. 7691–92). The study reported Well we believe that symptoms could be
an 80 percent reduction in MSDs after Similarly, Dr. McCunney of ACOEM
precursors to a possible repetitive motion
the program and early intervention were testified that: injury. And therefore if we know about a
implemented. ACOEM supports the requirement of a symptom early we can evaluate a job for
Early intervention also increases the mechanism for employees to report MSD ergonomic risk factors and possibly modify
availability and effectiveness of signs and symptoms since early detection is that job to reduce risk factors prior to the

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possible occurrence of an injury. And also, even the Katz hand paint diagram (Tr. such as nerve conduction tests (Ex. 37–
early reporting of symptoms is a trigger for 13380, 13404). According to Dr. 2, Tr. 13363, 13375).
our quick response system or quick response Franklin, the best case definition of Other differences between the
process (Tr. 14715–16). proposed definition of a ‘‘covered MSD’’
carpal tunnel syndrome is the presence
Some employers provide restricted work of symptoms plus a positive nerve and this final standard’s definition of an
when an employee reports MSD signs or conduction test. However, Dr. Franklin ‘‘MSD incident’’ further show OSHA’s
symptoms to let the symptoms resolve also said that in some circumstances intent not to address the type of minor
quickly without medical treatment, and HCPs can reliably determine, based on and transient symptoms that can be
to allow the employer to examine the symptoms alone, whether a patient has expected to resolve spontaneously in a
job (Ex. 26–1370). Other employers said carpal tunnel syndrome: ‘‘one could matter of days even without
their standard practice is to send any make a reasonable determination based intervention. The final rule, unlike the
employee who reports MSD signs or on symptoms alone if you thought it proposal, does not include the diagnosis
symptoms to an HCP immediately (Tr. was possible that somebody had carpal of an MSD in the definition of MSD
3867). tunnel syndrome.’’ (Tr. 13384–88). Dr. incident. As mentioned, the standard
These employers told OSHA that their Margit Bleecker, Director of the Center also now makes clear that an MSD is not
early intervention programs, for Occupational and Environmental work-related unless workplace
particularly restricted work and light Neurology at Johns Hopkins University, exposures caused or contributed to it, or
duty, have proven to reduce the severity testified: were responsible for a significant
and costs of MSDs significantly (Ex. 30- aggravation of a preexisting injury.
4137). Even after the rule becomes I think as somebody who has worked many
These changes respond to comments
years in this area, you certainly can diagnose
effective, OSHA believes that employers that the proposal could have required a
carpal tunnel syndrome by the history and
who have seen the advantage and the physical examination. The only time that full ergonomics program in situations
effectiveness of such intervention you absolutely need to have the EMG is if where workplace exposures contributed
programs will continue to follow them you’re considering surgery (Tr. 16901). only trivially to the employee’s
rather than delaying intervention while condition (Exs. 30–1722, 30–3934, 30–
they wait to see whether the employee’s Dr. George Piligian, who is with the
3956, 500–73, Tr. 3097–98).
MSD signs or symptoms persist. Mount Sinai Center for Occupational Clearly, MSDs qualifying as MSD
However, for those employers who have and Environmental Medicine and for incidents under the definition in the
not yet implemented early intervention the past 10 years has been treating final rule are the types of conditions
programs, including the persistent signs workers with MSDs, added: that OSHA may act to prevent. See
and symptoms criterion in the final rule We use principles in medicine, and as you Occupational Noise Exposure (29 CFR
will help to ensure that employees are may or may not know, 80 percent of medical 1910.95, 46 FR 46236), Occupational
provided with appropriate MSD diagnoses, all medical diagnoses, not just Exposure to Formaldehyde (29 CFR
management and work restrictions work-related ones, are arrived at by history 1910.1048, 52 FR 46168, 46234–37), and
and complaints. Then, we add to them, the
while their condition is still reversible. Section VII (Significance of Risk) of the
physical diagnosis, and finally, the testing.
This evidence is part of the reason This has been the way medicine has gone on Preamble. It is even more clearly within
that OSHA does not agree with the for ages, and those who have written the OSHA’s authority to require employees
commenters who argued that signs and most respectable textbooks say that, and to investigate them further to determine
symptoms are too subjective and many doctors who go right to the objective whether they were caused by hazards
difficult to verify to be an appropriate number, which they worship, and leave out that this standard addresses.
trigger for action under this standard those 80 percent arrive at the wrong
(Exs. 30–1722, 30–3345, 30–4340, 500– diagnosis, and thereby give the wrong Paragraph (f)—How Do I Determine
1–23, 500–1–117, Tr. 5507). Other treatment. So, it is still seeing, listening, Whether the Employee’s Job Meets the
evidence establishes that MSD signs are recording, putting it all together that arrives Action Trigger?
often easily observable (Tr. 2828). For at the medical diagnosis, and they can be Paragraph (f) tells employers how to
arrived at (Tr. 7851–52).
example, an employee’s decreased range determine whether a job where an MSD
of motion can be identified by the OSHA has, however, responded to the incident has occurred meets the
employee’s inability to raise his arms comments that certain MSD signs, such standard’s two-part Action Trigger.
above his shoulders or to bend over to as redness, may be transient or may be According to paragraph (f)(1)(i), the first
lift an object. Objective physical a sign of something other than an MSD part of the Action Trigger is a
findings also include positive results on (Tr. 5507). As mentioned, in this final determination that an MSD incident has
medical tests such as nerve conduction rule, MSD signs are treated the same occurred. Paragraph (f)(1)(ii) states that
velocity tests, CT scans, or x-rays. way as MSD symptoms, so that only the second step is a determination that
The presence of MSD symptoms can those signs that persist for 7 days after the injured employee’s job meets the
also be confirmed through physical being reported to the employer or that Basic Screening Tool in Table 1 of this
examination by an HCP (Ex. 37–12, 37– meet the other severity criteria require standard. Paragraph (f)(2) explains that
28, Tr. 13404). Dr. Robert Harrison further action. The proposal would have if the job does not meet the Action
testified that there are several ways to required action whenever an employee Trigger, the employer has no further
confirm the presence of both MSD signs reported an MSD sign because all obligations with respect to that job.
and symptoms, including palpation or positive signs must be recorded under The second step of the action trigger
movement of the affected body part OSHA’s recordkeeping rule. OSHA has requires application of the Basic
during the physical examination (Ex. also eliminated the reference in the Screening Tool in Table 1 to the injured
37–12). Dr. Gary Franklin, of the proposal to Finkelstein’s, Phalen’s and employee’s job. A job is screened in, i.e.,
University of Washington School of Tinel’s tests as examples of the kinds of is determined to meet the levels in the
Public Health and Community positive tests that would constitute MSD Basic Screening Tool, if it regularly
Medicine, testified that symptoms of signs. The record shows that these tests involves exposure to one or more of the
carpal tunnel syndrome, for instance, are not considered reliable by a growing risk factors in the Basic Screening Tool
can be verified through absence of number of HCPs and, in any event, have at levels above those specified in the
reflexes and nerve conduction tests and been replaced with other medical tests tool. Only where the job is screened in

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does the employer have further applicability of the standard in specific can respond to industry’s requests for more
obligations under the standard. situations in the absence of a criteria to guide specific guidance and definitions. We
The proposed rule also included an decision-making on whether the work time recommend two possible approaches. The
exposure screen. The proposed screen was significant, the applied force was first is to incorporate a list of risk factors and
forceful, or whether the material handling criteria similar to the ‘‘caution zone job’’
would have ruled out jobs where the
was a core element of the employee’s job. criteria included in the state of Washington’s
‘‘physical work activities and * * * In the absence of an explanation of Ergonomic Standard (WAC 296–62–0515)
conditions’’ in the job were not what OSHA intends these subjective terms to which serve a similar purpose as the
associated with the ‘‘type of MSD mean, it is unclear how to decide whether a screening criteria in the federal OSHA
reported,’’ or were not ‘‘reasonably particular activity fits the definitions and proposal. These ‘‘caution zone job’’ criteria
likely’’ to cause or contribute to an therefore whether it is covered by the provide more specific definitions of risk
MSD. It also would have ruled out jobs standard. (Ex. 31–289) factors and the amount of time or frequency
in which the employee’s exposure to the that must be exceeded for these risk factors
National Small Business United testified
risk factors was not a ‘‘core’’ element of to be covered by the standard. (Ex. 500–218)
that:
his or her job, or did not make up a ORC also expressed qualified support
The employers, especially the smaller
‘‘significant’’ amount of the employee’s employer, * * * needs more specific for using the state of Washington’s
workday. guidance in terms of the types of jobs to be ‘‘caution zone job’’ criteria:
Thus, the proposed standard looking at and specifically as the types of Although the Washington State proposal
contained performance-oriented activities in those jobs and how much of itself contains significant deficiencies, ORC
language (‘‘core element,’’ ‘‘significant what kind of activities is too much for what believes its approach to providing quantified
amount’’ of time) to define the terms of type of person. (Tr. 2746) alternative triggers is a rational one that
the screening criteria. In the preamble to Con Ed stated: could be considered by OSHA. (Ex. 32–78–
the proposal, OSHA also used 1)
performance-oriented language in Throughout the standard, OSHA uses
terms that are vague and open to See also Tr. 9071–74.
discussing the meaning of core element, interpretation such as: reasonably likely, core A preliminary exposure-based
describing the term as a ‘‘regular and job element and other similar terms. These assessment as a trigger for further
routine exposure.’’ On the whole, most terms require clarification so OSHA and actions is also widely used by
commenters supported the concept of employers interpret them consistently. (Tr. at participants in the rulemaking who
an exposure screen, but many said that 4628) provided testimony on the specifics of
OSHA had not provided enough In addition, ORC added that: their own ergonomics programs (see,
guidance for them to understand when e.g., Ex. 32–300–1, Tr. at 2920–2927; Tr.
a nexus existed between an MSD and a The proposed trigger simply does not
fulfill OSHA’s responsibility to provide at 5302, Tr. at 10802; Tr. at 14142; Ex.
job or what the exposure severity adequate guidance with respect to employer’s 32–339–1–4, Tr. at 16839; Tr. at 4643–
threshold was for a job. For example, obligations. * * * OSHA must do a better job 4647; Tr. at 5539–5540, 5566–5567, Tr.
they complained that the terms were too of defining a point at which an employer’s at 14801; Tr. at 14715). Many of these
vague and undefined to answer those obligations are triggered and do a better job commenters use a checklist format
questions (see, e.g., Exs. 30–1722, 30– in establishing more objective criteria. (Tr. at which contained specific descriptions of
3032, 30–3853, 30–3956, 30–4340, 30– 4097)
risk factors. The Dow Chemical
4837, 31–92, 31–125, 31–223, 31–225, Similar comments were submitted by Company, for example, uses a short
31–260, 31–307, 30–300, 32–337, DC66, EEI (Ex. 32–300–1); Chamber of checklist printed on a pocket size card
Tr. 3337, 8849, 8850). Commerce (Ex. 500–188; Tr. at 3044), that contains descriptions of specific
The following comments are Color Works (Tr. at 10069), Indiana risk factors along with a duration/timing
representative: Chamber of Commerce (Tr. at 3335), component (see, e.g., Tr. 5311–5312,
The terms ‘‘core element’’ and ‘‘significant National Roofing Contractors 5359, Ex. 32–77–2–1). NIOSH’s
amount’’ are not clear. While extreme Association (Tr. at 4905), Food Elements of an Ergonomics Program (Ex.
examples can be easily defined, extreme Distributors International (Tr. at 5634– 26–2), also contains checklists that have
examples are few and far between in the real 35), and many others. specific descriptions of risk factors,
world. Most of the time, examples fall into Commenters further recommended
‘‘grey’’ areas. These terms either need some with a duration component.
specific definitions or should be replaced
that the screening criteria should A number of other participants also
with other terms (Ex. 30–4837). include specific, exposure-based criteria suggested that OSHA adopt quantitative
Does [core element] indicate that the (Ex. 500–218; Ex. 500–214, Tr. at methods of defining the screen (Ex. 30–
employee will be required to perform a 17905–6). In particular, ORC stated that: 46, 30–75, 30–137, 30–293, 30–328, 30–
manual handling task some time during his/ In place of the proposed screening criteria 3032, 30–3284, 30–4837, 31-23, 31–27,
her shift, i.e., one 50-lb. Lift throughout an of section 902, OSHA would set forth 31–95, 31–137, 31–187, 31–31–202, 31–
8-hour work shift, or does it indicate that flexible, but objective, risk-based criteria 301, 31–307, 31–337). Specific
some repetition is involved with the manual * * * (Ex. 500–214) suggestions included defining a core
handling portion of the task, i.e., lifting 20
10-lb. packages per hour for 8 hours? (Ex. 30– ORC added that such criteria are already element of manual handling jobs in
4837). contained in the record and that ‘‘a terms of frequency rates for lifts (Ex. 31–
How much is significant? 6 hours per 8-hr number of models to define at-risk 337), or saying lifting was a core
shift? 4 hours per 8-hr. shift? 2 hours per 8- conditions and work routines are element of a job that required one lift
hr. shift? Or 22-hr. periods per 8-hr. shift? available in the literature and are cited per hour (Ex. 31–259). Suggestions for a
(Ex. 30–4837). by OSHA in its preamble.’’ (Ex. 32–78– definition of the term ‘‘significant
The Rohm and Haas Company said: 1) amount of worktime’’ included 50
Similarly, the AFL–CIO stated: percent or more of the employee’s
[I]t is unclear what OSHA means by the
subjective terms used as shown below. While we believe the content and intent of
worktime, Southern California Edison
‘‘* * * significant amount of their worktime OSH’s proposed screening criteria were clear (Ex. 31–23), more than 2 hours a day,
* * *’’ * * * [and] ‘‘* * * core element of from the text and Preamble of the proposed UNITE (Ex. 32–198), or routine
the employee’s job.’’ It is unclear how OSHA rule, the AFL-CIO has several performance of the same task 4 hours or
would be able to determine consistently the recommendations for ways in which OSHA more per shift or 2 hours or more

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68314 Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations

continuously per shift, Monsanto (Ex. employer need not perform a job hazard screening criteria do not necessarily
30–434). analysis, eliminate or control any MSD require corrective action; the need for
Some commenters thought that the hazards, or provide training or MSD corrective action is based on the results
screen would require them to conduct a management. Where application of the of a more detailed job hazard analysis
job hazard analysis every time an MSD screening tool results in a job being (see Summary and Explanation, Job
was reported, just to know whether the screened in, however, employers must Hazard Analysis section). In this way,
MSD was reasonably likely to have been implement the ergonomics program the screening criteria concept is similar
caused by the job. Rodney Smith of described in paragraph (g). to action levels contained in OSHA’s
Freeborn & Peters said: The Basic Screening Tool has been health standards (e.g., Benzene, 29 CFR
Identifying ergonomic risk factors is designed to minimize employer burdens 190.1028; Ethylene Oxide, 29 CFR
difficult due to the vagueness of their in screening jobs. It is similar to a 1910.1047; Formaldehyde, 1910.1048.)
definition [in the proposed rule]. But how in number of screening tools that are In those standards, as in the final
the world does my employer tell whether already in use (Exs. 26–1008 (Snook ergonomic program standard, the
those risk factors constitute a hazard, as that Push/Pull Tables), 32–77–1–2 and Tr. inclusion of an action level is used to
term has been defined in the standard. That 5336–37 (Dow Chemical), 502–12 differentiate between more hazardous
is, risk factors reasonably likely to cause or (NIOSH Lifting Equation), 502–35 (GM–
contribute to a covered MSD (Tr. 8850).
and less hazardous work operations,
UAW checklist)). It is limited to five risk and to identify those operations where
Others also complained that it would be factors and, to streamline the screening the employer needs to focus resources.
virtually impossible for them ever to process, the tool applies the same The screening criteria in the final
establish that it was not reasonably duration criteria to almost every risk standard consist of the five risk factors
likely that exposure to risk factors in a factor/activity. that are covered in the final rule:
job could cause MSDs, when at least one The Basic Screening Tool in the final repetition, force, awkward postures,
MSD would have already occurred (Ex. standard serves the same function as the contact stress, and vibration. Most of the
30–1722, 30–4137, DC 65). In addition, screen in the proposed rule, but, instead screening tools submitted to the record
several commenters found the crucial of performance language, it contains contained similar risk factors. For
terms ‘‘extremely subjective,’’ and specific definitions of the risk factors example, the screening tools submitted
believed they would be ‘‘open to the and exposure durations that define a job by NIOSH (Ex. 32–30–1–45), UFCW (Ex.
individual interpretation of OSHA requiring further analysis. The IL–228), the AFL–CIO (Ex. 500–71–70),
inspectors’’ (Ex. 30–3032, 31–22, 31– definitions used in this chart are the Worker’s Compensation Board of
303, 31–307, 32–337). consistent with a number of approaches British Columbia (Ex. 500–142–12), the
In response to those and other and screening tools contained in the UAW/General Motors (Ex. Or 348–1),
comments, OSHA has further clarified rulemaking record, including the state Dow (Ex. 502–77–2–1), and the
and operationalized the proposed of Washington’s Ergonomic Standard’s Washington State Department of Labor
exposure screen, or severity threshold. ‘‘caution zone job’’ checklist (Ex. 500– and Industries (Ex. 502–313–6) included
Once the employer determines that an 41); the checklists contained in the these same five risk factors as specific
MSD incident has occurred in a job, the NIOSH Elements of an Ergonomics risk categories in their screens or
employer must screen the job to Program (Ex. 26–2); the checklist included narrative questions directly
determine whether it meets criteria developed by tripartite committee of related to or incorporating these same
requiring a job hazard analysis to employer, employees and government risk factors. In addition, these are the
determine the potential hazard representatives for use in conducting a risk factors addressed in the
associated with exposure to risk factors. preliminary job analysis under the epidemiological literature on
For ease of use, the criteria are British Columbia Ergonomics Standard ergonomics and discussed in the Health
presented in a ‘‘Basic Screening Tool,’’ (Ex. OR–388); and others (Exs. 500–108; Effects section (Section V) of this
which is a chart that contains specific 32–77–2–1, 26–2, OR–348–1; 502–67) preamble.
descriptions of the risk factors covered By utilizing language from programs The proposal also included static
in the final rule along with duration and checklists that have been used postures, whole body vibration, and
specifications and illustrations (see successfully by both employers and cold in the list of risk factors. The
Table 1 of the regulatory text). In jobs employees for many years, OSHA fully evidence discussed in the Health Effects
where an MSD incident has occurred anticipates that employers will have no section of this Preamble has convinced
and employee exposure to risk factors difficulty in determining whether a job OSHA that these risk factors should no
meets the criteria laid out in the screen, meets the standard’s Action Trigger. longer be addressed independently.
the employer must proceed with the Further, as with the proposed rule, Static postures will be covered to some
program requirements in paragraph (g) OSHA expects that employers will be extent by the awkward postures element
of the standard. able to determine, quickly and of the screen, and employers should be
Employers with employees who efficiently, if the job activities of any aware that cold temperatures may
report MSDs in jobs that do not meet the employee reporting a MSD meet or aggravate the effects of other risk factors.
specific screening criteria are not exceed the criteria of the screen. To give further guidance to
required to proceed with any of the Similar to the concept expressed in employers, each risk factor in the chart
remaining requirements of the standard. the proposed rule, the basic screening is clearly described (i.e., descriptions of
This could include jobs that do not tool in the final standard, when coupled specific job or task activities) and
involve the risk factors this standard with the occurrence of an MSD incident includes specific duration, frequency.
covers or where the injured employee’s in a specific job, represents an exposure- and magnitude components. In the
work activities do not involve the based ‘‘action trigger’’, that requires the chart, repetition includes a separate
injured body area. The screen also employer to proceed with some other description for keyboarding/mouse use;
allows employers to screen out jobs in provisions of the standard (in particular, force is broken down into lifting,
which the employee’s work activities do job hazard analysis and MSD pushing/pulling, and pinching and
not involve enough exposure to risk management). However, jobs where the gripping unsupported objects of
factors to require further action under employer has determined that an MSD specified weights; awkward postures are
this standard. In these cases, the incident occurred and that meet the defined by specific postures, as well as

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pictures; and vibration includes a results of these studies show increases day) of repetitive precision movement
description for both high vibration in odds ratios or other risk measures or arms lifted, respectively, compared to
levels from equipment such as with increases in the daily or weekly workers with ‘‘low’’ exposure in terms
chainsaws, and moderate vibration duration of exposure for a number of of daily duration. Stetson et al.(Ex. 26–
levels from equipment such as jigsaws, risk factors such as repetitive precision 1221) found an increased prevalence
grinders or sanders. movements, awkward postures (e.g., (65%) of hand/wrist symptoms among
In addition, the chart contains a hands above the shoulders, kneeling, workers using a high grip force (> 6
simple grid for employers to use in stooping), gripping, lifting, and carrying. pounds) for more than half of a shift
relating the body area affected by an For example, Ekberg et al. (Ex. 26–1238) (defined as ‘‘frequently’’ in the study),
MSD incident to a relevant risk factor. reported that the risk of MSDs of the compared to the prevalence in workers
Thus, the grid serves to further simplify neck and shoulder increased with the with ‘‘some’’ (40%) or no (41%)
this initial determination by assisting hours per day that repetitive precision exposure. A study by Viikari-Juntura et
the employer in focusing on only those movements were performed and that al. (Ex. 500–41–50) of trunk twisting
risk factors that have a clear nexus with arms were lifted above the head. reported a non-statistically significant
the MSD incident that triggered the use Similarly, Kelsey et al. (Ex. 26–709) elevation in risk of neck disorders (OR
of the screening tool; this also reflects reported an increased risk of prolapsed = 1.3) among workers having ‘‘little’’
OSHA’s intent in the proposal. For lumbar disc when the frequency of exposure (in hours per day), and
example, if an MSD of the back or lower lifting or carrying loads greater than statistically significant increases in risk
extremity is reported, the employer, approximately 25 pounds increased among workers with ‘‘moderate’’
when evaluating the risk factor for from 0 to more than 25 times per day. (OR=1.9) and ‘‘much’’ (OR = 2.3)
repetition, would focus only on job or Similar dose-response observations exposure.
task activities where the employee is were reported by Latza et al. (Ex. 38– However, there were also studies that
performing the same motions every few 424), Matsui et al. (Ex. 26–309), showed increased risk of MSDs
seconds or repeating a cycle of motions Smedley et al. (Ex. 500–41–40) and Tola associated with exposures of less than 2
involving the affected body part more et al. (Ex. 26–1018). hours daily. For example, Vingard et al.
than twice per minute for more than 2 (Ex. 500–41–51) showed an increased
OSHA’s review of the studies that
consecutive hours in a workday. The risk MSDs of low back area among
quantified duration of exposure indicate
employer would not need to consider workers in jobs involving forward
that, in general, the MSD risk in
use of a keyboard and/or mouse in bending for approximately 1 hour per
steady manner (the shaded portion of exposed groups of workers increases day (statistically significant for male
the chart under the risk factor above that in unexposed groups when workers, but not for female workers).
repetition). Similarly, for a reported the duration of exposure to certain risk Holmstrom et al. (Ex. 26–36) found a
MSD affecting the back or lower factors or combinations of risk factors significantly increased OR (2.4) for
extremity, the employer, when comprises about one-fourth to one-half severe low back pain with impairment
evaluating the risk factor for force, of the workday or workweek. For for less than 1 hour per day of kneeling).
would only need to focus on job or task example, Holmstrom et al. (Exs. 26– DeKrom et al. (Ex. 26–102) reported a
activities involving lifting or pushing/ 1231, 26–36) studied workers using significantly increased OR (1.4) for
pulling and not on work tasks involving awkward positions such as stooping, carpal tunnel syndrome among workers
pinching or gripping. kneeling, and raising the hands above having 1 to 7 hours per week of wrist
Each job or task activity also includes the shoulder and found an increased flexion; 1 to 7 hours per week of wrist
a duration/frequency limit. In selecting risk of low back pain (Odds Ratio of 1.4, extension was also associated with an
the duration limit for the risk factors, 1.9, and 1.5 for stooping, kneeling and elevated OR for CTS (1.4), but that result
OSHA based its decision on balancing hands above the shoulder, respectively) was not statistically significant. Latza et
the weight of the scientific evidence with 1 to 4 hours per day of exposure. al. (Ex. 38–24) reported an increase (not
against the need for the screening tool Similarly, Nordstrom et al. (Ex. 26–900) statistically significant) in low-back
to be clear and easy to use. For many observed that the risk of carpal tunnel pain among workers laying sandstone
items in the chart, the agency has syndrome began to increase among for less than 2 hours per day compared
chosen to use more than 2 hours total workers whose jobs involved wrist to unexposed workers. English et al.
per day as an exposure duration that bending or twisting after exposures of (Ex. 26–848) found positive exposure-
triggers jobs for job hazard analysis; this 3.5 hours compared to groups exposed response relationships where ORs for
determination is based on an analysis of for less than 3 hours (Odds Ratios of carpal tunnel syndrome or hand/wrist
relevant epidemiological data contained 1.34 with 0.25–1.75 hours exposure, disorders increased by 1.8 and 1.6 per
in the rulemaking record. 1.23 with 2–3 hours exposure, and 2.33 hour worked per day, respectively, for
Many studies in the epidemiological with 3.5–6 hours of exposure). Similar workers performing tasks involving
literature clearly demonstrate that the quantitative observations were reported shoulder rotation once per minute.
incidence of MSDs increase with by deKrom (Ex. 26–102) for wrist These studies, taken as a whole,
increased duration of exposure to flexion, Baron et al. (Ex. 26–697) for demonstrate that for the risk factors
certain risk factors or a combination of grocery checking, and Xu et al. (Ex. listed in the basic screening tool, the
risk factors. Table IV—SCREEN lists 500–71–53) for frequent twisting and risk of MSDs increased with daily
studies that included duration, either bending and for physically hard work duration of exposure.
qualitatively or quantitatively, as a (see Table IV—SCREEN). Other studies The studies described above and
component of the investigation. These reported results using qualitative contained in Table IV—SCREEN show
studies reflect a subset of the many ordinal scales that indicate that risks that, where researchers have
studies identified by the Agency that increase, sometimes substantially, with investigated relationships between MSD
demonstrate positive exposure-response exposure to risk factors of one-half a day risk and daily duration of exposure, the
relationships between the intensity and/ or more. Ekberg et al. (Ex. 26–1238) risk of MSDs has been consistently
or duration of exposure to reported ORs of 3.8 and 2.4 for neck/ elevated in groups of workers exposed
biomechanical risk factors and the shoulder disorders that were associated for half of the workshift or more (Exs.
prevalence or incidence of MSDs. The with a ‘‘medium’’ duration (in hours per 26–1238, 26–697, 26–1221, 38–428, 26–

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1231, 26–36, 26–1018, 500–41–50, 26– hours total per day. This reflects sanders) is set at 2 hours total per day.
102, 26–900, 26–58, 500–71–53). For OSHA’s belief, based on the health Vibration level can be expressed as the
exposure durations of one-fourth to one- evidence, that 2 hours of repetitive amount of energy transmitted by the
half of the shift, or durations described motion will be less hazardous if spread tool over a certain period of time (e.g.,
as ‘‘some’’ or ‘‘moderate,’’ several out over the workday because m/s2). OSHA assumes that a moderate
studies showed statistically significant musculoskeletal tissue will have an vibration level is approximately 2.5m/
increases in MSD risk (e.g., Exs. 26–697, adequate opportunity to recover. By s2. The duration for moderate vibration
38–428, 26–1231, 26–36, 500–41–50, capturing only those jobs that involve level is more than 2 hours total per day.
26–102) and others reported increased more than 2 consecutive hours of Assuming that a high vibration level is
ORs that were not statistically repetitive motion, the standard will not approximately 10m/s2 (4 times the
significant (e.g., Exs. 26–1018, 500–41– capture those jobs where employees moderate vibration), the time-energy
50, 26–102, 26–58). For exposures of change tasks during the day, even if the equivalent exposure duration level at
less than 2 hours daily duration, results repetitive motion occurs for a total of 2 which risk is increased for activities
from these studies are more equivocal; hours over the work shift. involving high vibration levels would be
some reported significantly increased The screening tool departs from the 2- 30 minutes (i.e., 1⁄4 of 2 hours). That is,
ORs (e.g., Exs. 500–41–51, 26–848, 26– hour duration criterion for a few items. risks for activities at four times the
102, 26–36) while several found non- These include the following: For use of vibration level would occur 1⁄4 the
statistically significant increases in ORs keyboard and mouse in a steady amount of time.
(e.g., Exs. 500–41–50, 26–102, 500–41– manner, the duration is set at 4 hours For lifting, the chart contains specific
51, 26–36, 26–1231, 38–24). Based on total per workday; for lifting, the screen weight limits, coupled with a specific
these studies, OSHA finds it reasonable sets weight and frequency criteria; and limit on the number of times per day the
to trigger jobs for job hazard analysis for use of tools or equipment that weight can be lifted. Weight limits are
where employees are exposed to the risk typically have high vibration levels specified for weights lifted from below
factors indicated on the screen for more (such as chainsaws, jack hammers, the knee, above the shoulder and at
than 2 hours during the work shift. percussive tools, riveting or chipping arm’s length. The limits specified are as
OSHA believes that a 2-hour duration hammers) the duration is set at 30 follows: lifting more than 75 pounds at
criterion for the screen will capture minutes total per day. any one time; more than 55 pounds
those exposure situations where the For use of a keyboard or mouse in a more than 10 times per day; or more
epidemiological evidence indicates that steady manner, OSHA has set the than 25 pounds below the knees, above
MSD risk is most likely to be elevated duration for more than four hours total the shoulder, or at arms’ length more
(i.e., jobs involving more than 4 hours per day. In this case, OSHA has chosen than 25 times per day. OSHA has based
per day of exposure) as well as those more than four hours based on the these limits on recommendation found
jobs involving 2 to 4 hours of exposure epidemiological evidence that in other screening tools as well as
during the shift where the evidence demonstrates that, in general, the risk of evidence in the epidemiological
suggests that the risk may already be MSDs for workers performing keying literature that shows increased risk of
increased, at least in some situations. activities begins to increase after four low back disorders when lifting certain
The 2-hour trigger will exclude those hours of exposure (see Table IV— weights at certain frequencies or
jobs where the evidence has been less SCREEN). For example, Bernard et al. postures. For example, Arad and Ryan
consistent in finding an elevated risk of (Ex. 26–842) studied workers typing at (Ex. 500–41–7) and Smedley et al. (Ex.
MSDs (i.e., jobs involving less than 2 video display units and reported an 1249) reported an increase in risk low
hours of exposure). This is consistent increased risk of hand/wrist MSDs for back MSDs among healthcare workers
with OSHA’s statutory mandate to be exposures of 4 four to six hours. lifting one to four patients per day.
protective of workers. However, because Oxenburgh (Ex. 26–1367), observed an Kelsy et al. (Ex. 500–41–73) reported
the screen does not necessarily trigger increased prevalence of hand, wrist, increased risks of lumbar disorder
an obligation to control a job, OSHA forearm and/or elbow MSDs after 4 among workers in jobs requiring lifting
also is not imposing unnecessary costs hours per day at a keyboard. Similarly, more than 25 pounds more than 25
on employers. Polanyi et al. (Ex. 38–3) studied times per day compared to workers who
In using this 2-hour cutpoint, OSHA keyboard workers and observed that did not lift these weight. Similar
does not intend to imply that all upper extremity MSDs significantly findings were reported by Macfarlane et
workers will experience significant increased after exposure durations of al.(Ex. 500–41).
adverse effects after 2 hours or more of approximately four hours per day. OSHA finds that the weight of
exposure. Rather, OSHA is using this Based on this evidence, OSHA has evidence clearly demonstrates that
cutpoint in the screen criteria to give determined that it is appropriate to heavy, frequent or awkward lifting
employers guidance about which jobs deviate from the 2 hour duration increases the risks for MSDs. Particular
might involve a sufficient duration of criterion set for other job or task studies, such as those described above,
exposure such that the job warrants activities, and to set a greater than four provide support for the specific weight
closer examination. In addition to being hours total per day for the use of a criteria used in OSHA’s screening tool
supported by the scientific literature, keyboard or mouse in a steady manner. for the final standard. Washington State
this value is also administratively For using tools or equipment that has used similar data to support its
simple for employers to use, thus typically have high vibration levels ‘‘caution zone job criteria’’ for lifting
allowing the screening tool to be used (such as chainsaws, jack hammers, (Ex. 500–313–6). OSHA believes that
quickly and consistently for a number of percussive tools, riveting or chipping these are reasonable criteria to use for
different jobs. hammers) OSHA has set the duration at the screening purposes of this standard
For repetitive motion other than use 30 minutes total per day. This level is and that, in general, these criteria reflect
of a keyboard or mouse, the screen based on a time-energy equivalent the evidence in the record.
triggers jobs into the requirements of the exposure determination. For example, The exposure screen also contains an
standard only if the exposure occurs for the time duration for using tools or entry for activities involving pushing
more than 2 consecutive hours in a equipment that have moderate vibration and pulling. In a questionnaire survey of
workday, as opposed to more than two levels (such as jig saws, grinders, or insurance company policyholders,

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Snook et al.(1978) found 9% of low back as measured by lost or restricted work employers are not screening in jobs for
injuries to be associated with pushing days was also found to be associated which they have already implemented
and 9% to be associated with pulling with psychophysical stress (Ex. 26–961). controls based on the safe harbor value,
(Ex. 26–35). NIOSH (1981) cited Additionally, Park and Punnett found but instead are screening in those jobs
evidence that 20% of overexertion psychophysical ratings of ergonomic where risks may begin to occur and for
incidents involve pushing and pulling stressors to predict the incidence of in- which a job hazard analysis is
objects (Ex. 26–393). Thus, OSHA finds plant medical visits for MSDs among appropriate.
that it is appropriate to include pushing 1064 workers in two automobile For performing activities that require
and pulling on the screen as a specific manufacturing plants (Ex. 38–160). pinching or gripping unsupported
exposure criterion. Based on the reported association objects, the chart specifies weights of
For job activities involving pushing or between pushing and pulling and the two pounds or more per hand for
pulling, the chart specifies 20 pounds of development of MSDs, and the evidence pinching and 10 pounds or more per
initial force as the trigger criterion. To of a relationship between hand for gripping. These values are
provide a basis for determining psychophysically derived exposure generally supported by studies such as
appropriate workloads for these limits and reported injuries, OSHA those by Chiang et al. (Ex. 500–41–25),
activities, Snook and Ciriello (1991) concludes that an exposure criterion Stetson (Ex. 500–41–44), English (Ex.
developed tables of maximum based on psychophysically derived 500–41–30) and Roquelaure et al. (Ex.
acceptable forces for pushing and limits will serve as a reasonable basis 500–41–112). These investigators
pulling (Ex. 26–1008). Maximum for determining when a hazard analysis reported increased risks of carpal tunnel
acceptable forces were expressed in is necessary for jobs involving pushing syndrome, thumb disorders, shoulder
terms of the percentage of the industrial and pulling activities. disorders, and nerve abnormalities
population capable of performing the The 20-pound force criterion for among workers repetitively pinching
task. Data were presented separately for pushing and pulling will capture all objects approximately in the range of
males or females either pushing or jobs that are designed such that less two pounds or gripping objects
pulling, and were given for both initial than 75% of workers (male or female) approximately in the range of 10
forces (the force required to get an object are capable of performing them without pounds. OSHA believes that the weights
in motion) and sustained forces (the experiencing overexertion. As explained specified represent reasonable screening
force required to keep an object in above, lifting jobs that cannot criteria for identifying conditions likely
motion). Variables included frequency, accommodate at least 75-percent of the to cause the type of MSDs reported and
distance, and height (vertical distance working population’s physical capacity are similar to values recommended in
from floor to hands). have been associated with a three-fold other screening tools. While there may
The tables were developed based on higher risk of low back disorders. This be more precise ways of measuring force
experiments employing a suggests that jobs should be subject to associated with pinching or gripping,
psychophysical methodology (Ex. 37–6). more detailed hazard analysis if an OSHA believes that using the weight of
This approach assumes that workers are initial screen indicates that a task objects handled is more
able to determine with some accuracy involving pushing or pulling is not administratively simple for employers
their highest acceptable workload. designed within 75-percent of the to use and thus will enable employers
Subjects were given a task with a set working population’s physical capacity. to more quickly and consistently
frequency, distance, and height and While the screening threshold for evaluate jobs.
were allowed to control the amount of pushing and pulling forces is based Similarly for contact stress, OSHA has
force used. Subjects were instructed to upon an exposure level that is specified a frequency of 10 times per
work as hard as they could without protective of 75 percent of the industrial hour when using the hand or knee as a
straining themselves or becoming population based on psychophysical hammer. OSHA believes that this value
unusually tired, weakened, overheated, measurements relating to overexertion, is also administratively simple and
or out of breath. this should not be construed as an reasonable to use for the screening
Although acute fatigue was the basis endorsement by the Agency of exposure purposes of this standard. Studies have
of the limitations established by this to ergonomic risk factors based on what shown increased risk in MSDs among
series of experiments, the results have is considered to be an acceptable level workers using the hand or knee as a
been shown to predict the risk of for any given percentage of the hammer (e.g., Little and Ferguson, Ex.
developing MSDs. Snook et al.(1978) population. The level chosen in this 26–1144 and Thun, Ex. 26–60).
reported that workers performing instance resulted from the fact that the However, little data is available that
manual handling tasks that less than evidence in the record indicates that an quantifies the frequency of exposure at
75% of workers are capable of increased risk of developing MSDs which increased risks are observed.
performing without overexertion are exists among workers who perform Washington State chose a value of 10
three times more likely to suffer from pushing or pulling activities at levels times per hour for their ‘‘caution zone
low back injuries than those workers above those found to be acceptable to 75 job’’ criteria. OSHA believes that this is
performing manual handling tasks that percent of the industrial population a reasonable value to use for screening
more than 75% of workers are capable based on psychophysical measurements purposes and that it gives the employer
of performing (Ex. 26–35). relating to overexertion, not because any guidance in identifying work activities
Other research has also supported a particular proportion of the exposed likely to contribute to the type of MSDs
relationship between psychophysically population was considered to be reported.
derived exposure levels and risk of protected from developing MSDs. In summary, the specific description
MSDs. Using an index derived from the The 20-pound force criterion for of risk factors contained in the screen,
tables developed by Snook and applying pushing and pulling tasks is consistent coupled with the duration
it to 6,912 workers in 55 industrial jobs, with the OSHA ‘‘safe harbor’’ for specifications, all have a sufficient
Herrin et al.(1986) found that the pushing/pulling, which is based on the degree of risk to trigger some simple
number of overexertion incidents was 90th-percentile values for female additional requirements (job hazard
related to the psychophysical stress of workers. Using 20 pounds as screening analysis, MSD management, training
the job. The severity of these incidents criteria will help to ensure that and evaluation). It should be kept in

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mind however, that these are not worksites. To the extent possible, these American Meat Institute (AMI), testified
intended to imply that a hazard exists descriptions and durations were during the rulemaking hearing: So what
and requires control be instituted. There developed using to the extent possible has happened in the 10 years since the
is substantial evidence in the record that using the best available epidemiological meat packing guidelines were issued?
supports the agency’s choice of risk literature as well as expert opinion from Well, a number of things. In our
factors and duration levels. As with other groups who have developed very industry, reduced levels of injuries and
‘‘action levels’’’ contained in other similar screening tools. This screen is illnesses have been approximately one
health standards, the duration levels intended to be used in conjunction with third of all incidents. Nearly one-half of
were set at levels where the risk begins the event of an MSD incident to identify lost time incidents have been reduced as
to rise and additional, simple steps are work conditions where exposure risks well. * * * The guidelines have
necessary. may exist such that a job analysis must fostered proactive efforts to eliminate
The purpose of this screen is to focus be conducted to determine whether job ergonomic risks and hazards in a wide
on those jobs that are likely to have controls are quickly and consistently ranging number of applications [Tr.
caused or contributed to the MSDs that necessary. 4940].
are reported. In general, activities A complete discussion of the
causing or contributing to such MSDs Paragraph (g)—What Actions Must I
widespread support for the proposition
are more likely to be ones that make up Take if the Employee’s Job Meets the
that ergonomics programs are effective
significant amounts of the employee’s Action Trigger?
is contained in Chapter III of the Final
worktime and represent a core element Paragraph (g) of the final rule defines Economic Analysis for the final rule. In
of the employee’s job. As such, these the actions that employers must take if that chapter, OSHA discusses the
activities are likely to be a foreseeable an employee with an MSD incident is history of successful ergonomics
part of the job that can be reasonably employed in a job that meets or exceeds programs and describes the extensive
predicted and thus can be taken into the action trigger. The paragraph use of ergonomic programs throughout
account when designing an ergonomics requires that the employer must either broad sectors of industry. In fact, the
program. These are the types of jobs that implement the Quick Fix option in number, longevity, and extensive use of
OSHA seeks to capture under the final paragraph (o) of the final rule, or ergonomic programs that are similar to
standard so that programs can be put in develop and implement an ergonomics those required by OSHA’s final rule
place to prevent further MSDs from program that includes the following clearly validate the Agency’s regulatory
occurring. elements: approach, as well as demonstrating the
In order to better enable employers to (i) Management leadership as inherent feasibility of the standard for
capture such jobs, OSHA is setting a specified in paragraph (h) of this covered employers who establish such
minimum frequency for job or task section; programs.
activities that must occur as a part of the (ii) Employee participation as Many of these programs have most or
screening tool. OSHA is setting this specified in paragraph (i) of this section; all of the program elements required by
frequency at one day per week or more. (iii) MSD management as specified by paragraph (g) of the final rule. The wide
Obviously, there are numerous values paragraphs (p), (q), (r), and (s) of this use of these elements in current
that could be chosen. However, OSHA section; programs is evidence that employers
believes that this value can reasonably (iv) Job hazard analysis as specified believe them to be essential, workable
be used to determine those job or task by paragraph (j) of this section; concepts. The program elements
activities that are core element of an (v) Hazard reduction and control
contained in the final rule are
employee’s job, and are foreseeable or measures as specified in paragraphs (k),
summarized and explained in other
reasonably predictable. In addition, a (l), and (m) of this section, and
sections of this preamble and therefore
frequency of once a week or more is evaluations as specified in paragraph (u)
will be discussed only briefly here in
likely to capture many work activities of this section, if the job hazard analysis
the context of the overall program
that are an element of an employee’s job determines that the job presents an MSD
requirement.
that occur on a weekly basis (e.g., hazard; Paragraph (g) of the final rule
deliveries or maintenance activities). To (vi) Training as specified in paragraph
specifies that if an employee’s job
meet the screen, a job must ‘‘routinely’’ (t) of this section.
A few commenters suggested that the exceeds the action trigger, the employer
involve tasks that meet the designated may implement a quick fix option for
criterion at least one day a week. This effectiveness of ergonomics programs in
reducing workplace MSD hazards was that job under paragraph (o). An
value will also provide guidance in that employer who qualifies for the quick fix
it can be used to rule out job or task not demonstrated for the proposed rule.
For example, the post hearing brief option does not need to establish an
activities that are rare occurrences, that ergonomics program, although he or she
are not predictable, or that result from submitted on behalf of the U.S. Chamber
of Commerce stated: must follow all of the quick fix
unusual work circumstances. procedures. However, if the employer
In conclusion, in response to the None of this ‘‘evidence’’ * * * begins to cannot or does not implement a quick
comments received on the proposed support the proposition that an Ergonomics fix, then the standard requires an
standard, OSHA has developed a Program Standard such as the one contained
in the Proposed Rule will reduce at all the ergonomics program with the following
screening tool that will provide
employers with quantitative guidance incidence of workplace musculoskeletal elements:
complaints. [Ex. 500–188] • Management leadership,
for determining work activities and • Employee participation,
conditions that are likely to cause or In contrast, the use of ergonomics • MSD management,
contribute to MSDs and that are a core programs as an effective method for • Job hazard analysis,
element of a job or make up a significant addressing workplace MSD hazards was • Hazard reduction and control,
amount of the employee’s worktime. endorsed by the vast majority of • Training, and
This screening tool includes specific commenters in the rulemaking record • Evaluation.
descriptions of tasks and durations that (see, e.g. Exs. 30–3855, 32–185, 500– Management leadership is critical to
will enable employers to evaluate jobs, 209, Tr. 4940, Tr. 1491). For example, the successful implementation and
quickly and consistently, at their Mr. McCauseland, representing the operation of ergonomics programs.

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Management leadership provides the Evaluation is the process employers supported by a number of responses to
focus and direction of the program’s use to ensure that the program they have the ANPR (see, e.g., Exs. 3–27, 3–124, 3–
effort as well as the needed resources in established is functioning as intended. 173).
terms of both personnel commitment Employers are required to evaluate their The elements of the proposed and
and funding. The requirements for programs every three years and at other final management leadership
management leadership are described in times if they have reason to beleive that requirements are based on the concept
the summary and explanation for the program is not functioning properly. of management leadership expressed in
paragraph (h). The requirements for program the literature. OSHA considers the
Employee participation is equally evaluation are found in paragraph (a). proposed and final management
important. Employees are essential In summary, ergonomic programs leadership provisions to be necessary to
sources of information about MSDs, risk similar to OSHA’s in structure have the exercise of leadership of the
factors, and MSD hazards in their work been effectively reducing the incidence ergonomics program.
areas. They have valuable insights into and/or the severity of MSDs for at least Responses to the proposed
effective control measures that can be 10 years throughout the vast majority of management leadership provisions
used to reduce risk factors inherent in general industry sectors. Model indicated general support for the
their jobs. The requirements for programs that contain OSHA’s program concept of management leadership.
employee participation are described in elements have been implemented by a Comment on the provisions pertaining
the summary and explanation for wide range of employers, such as large to the assignment and communication
paragraph (i). and small manufacturing of responsibilities; provision of
MSD management provides for establishments, utilities, and authority, resources, and information;
prompt and appropriate management government agencies (see, e.g., Exs. 32– and periodic communication focused on
when an employee has experienced an 185, 500–108, 38–50, Tr. 4693, Tr. 5696, the interpretation, rather than the
MSD incident. MSD management Tr. 6310, Tr. 5931, Tr. 7031, Tr. 7068, concept, and often criticized the
includes access to a health care Tr. 7074, Tr.7918, Tr. 7934, Tr. 7937, Tr. proposal as vague. Comments regarding
professional, work restrictions as 7963, Tr.7948, Tr. 7999, Tr. 8826, Tr. policies and practices that discourage
needed, work restriction protection, and 14707, Tr. 17350) reporting and participation revealed
evaluation and follow-up of the MSD sharply divided opinion on the merits of
incident. MSD management is important Paragraph (h)—Management Leadership the proposed provision.
largely because it helps ensure that Paragraph (h) contains the final rule’s The importance of management
employees promptly report MSDs and requirements for management leadership as a component of an
signs and symptoms of MSDs. This, in leadership. It requires that employers effective ergonomics program was
turn, ensures that jobs that present MSD assign and communicate responsibilities supported in a number of comments on
hazards will be included in the for setting up and managing the the proposed rule (see, e.g., Exs. 30–
ergonomics program. The requirements ergonomics program; provide the 2387, 30–3745, 30–3765, 32–78–1, 32–
for MSD management are described in authority, resources, and information 85–3, 32–182–1, 32–198–4, 32–339–1,
the summary and explanation for necessary to meet those responsibilities; 30–428, 30–3860, 30–4333, Tr. 3479, Tr.
paragraphs (p), (q), (r) and (s). ensure that existing policies and 3565, 32–450–1–18–1, Tr. 8004, Tr.
Job hazard analysis provides for the practices encourage and do not 1496, Tr. 9070). David LeGrande of the
identification of the risk factors for jobs discourage reporting and participation Communications Workers of America,
that meet the action trigger. The job in the ergonomics program; and for example, when asked to indicate
hazard analysis provides a systematic communicate periodically with what characteristics distinguished
approach to identifying and addressing employees about the program and their successful ergonomics programs from
the risk factors in the job. The concerns about MSDs. those that fail, explained that the
requirements for job hazard analysis are Paragraph (h) of the final rule is commitment of management is the
described in the summary and nearly identical in content to the primary factor in determining if a
explanation for paragraph (j). proposed management leadership program will succeed (Tr. 9018).
Hazard reduction and control is the section (Section 1910.912). OSHA has The inclusion of a distinct
heart of the ergonomics program. Under elected to retain the management requirement for management leadership
this program element, employers control leadership requirements as proposed in the proposed ergonomics standard,
the risk factors in problem jobs due to evidence in the record that however, was considered by some
identified during the job hazard supports the need for management parties to be inappropriate (see, e.g.,
analysis. The requirements for hazard commitment in any effective Exs. 32–78–1, 30–2830, 30–3853, 30–
reduction and control are described in ergonomics program. Minor changes 3765, 32–368–1, 500–223, 30–3426).
the summary and explanation for have been made to clarify the provision Mandating the assignment of
paragraphs (k), (l), and (m). regarding the assignment and responsibilities and provision of
Training provides employees with the communication of responsibilities and authority, resources, and information, it
information and understanding that to allow for more concise application of was argued, is so vague as to lead to
they need to participate effectively in the subelement relating to the uneven enforcement by OSHA
the ergonomics program. In addition, encouragement of reporting and personnel, according to these
the training required by the final rule participation. commenters (see, e.g., Exs. 30–74, 30–
provides the more detailed information OSHA proposed to require 240, 30–1336, 30–3284, 30–3336, 30–
that supervisors, team leaders and other management leadership because the 3344, 30–3367, 30–3763, 30–3782, 30–
employees involved in setting up and literature on ergonomics programs 3849, 30–3951, 30–4496, 30–4674, 30–
managing ergonomics programs need to consistently cites management 4837, 30–4247). The Ameren
carry out their program-related commitment as a vital component of an Corporation, for example, stated:
responsibilities effectively. The training effective program (see, e.g., Exs. 2–13, Whether an employer has committed
requirements are described in the 26–2, 26–5, 26–9, 26–10, 26–13, 26–14, enough ‘‘resources’’, has ‘‘ensured’’ that they
summary and explanation for paragraph 26–17, 26–18, 26–22, 26–27). The need have encouraged their employees to report or
(t). for management commitment was also participate, or is communicating often

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enough are all highly subjective judgement employees about the program and their authority, resources, and information
calls which cannot be consistently made by concerns about MSDs is similarly needed to do so. If a prompt, correct
OSHA (Ex. 30–4247). essential to creating an environment response is given to the employee, then
Bruno’s Supermarkets and others (see, where both the employer and employees the employer’s assignment of
e.g., Exs. 30–2836, 30–2837, 30–2828, are fully aware of issues relating to the responsibility and provision of
30–2839, 30–2840, 30–2841, 30–2842, ergonomics program. If a regular, two- authority, resources, and information
30–2843, 30–2844, 30–2940) concurred way exchange does not take place, it will clearly have been satisfactory.
with this assessment, stating: would be impossible for employees to The final rule does not describe how
[The proposed standard] requires that keep abreast of changes in the responsibility is to be allocated or how
employers communicate ‘‘periodically’’ with ergonomics program, or for the individuals will be held accountable for
employees about the ergonomics program. employer to receive feedback regarding their responsibilities. This is to allow
Suppose, for example, that an employer the program. Without full knowledge, employers the greatest possible
distributes an annual ergonomics bulletin. the benefits of the program will be flexibility in adapting the program to
How will the employer know whether an diminished. The endorsement of their particular situation. A concern was
OSHA inspector will expect us to management leadership in comments registered that the proposed
communicate more frequently, such as once and the incorporation of this element in requirement for assigning responsibility
a week or once a month? This section also would conflict with a management
requires employers to provide those
successful ergonomics programs
managing the ergonomics program with supports OSHA’s conviction that structure that did not include
‘‘resources,’’ which are vaguely and broadly management leadership is a critical supervisors (see, e.g., Ex. 30–3765).
defined as ‘‘the provisions necessary to component of an ergonomics program. OSHA does not intend to prescribe what
develop, implement, and maintain an Those who expressed the sentiment program responsibilities are vested in
effective ergonomics program,’’ including that the management leadership any party. An employer may choose to
money, etc. We may feel that we have requirements of the proposal were vague designate and empower front line
provided adequate resources necessary for or burdensome appeared to believe that employees with any responsibility
such an effort, but we will have no way of OSHA compliance personnel would associated with the program, so long as
knowing whether the OSHA inspector will arbitrarily decide if the authority, the authority, resources, and
agree. The lack of objective, attainable
standards will leave employers at the whims
resources, and information provided information necessary to meet those
of OSHA inspection personnel. (Ex. 30–2836) were satisfactory, or if the frequency of responsibilities are provided.
communication was adequate. OSHA The role that contractors, consultants,
The term ‘‘periodically’’ was reaffirms its belief, expressed in the and other outside parties may play in an
specifically cited by a number of parties proposal, that employers should retain ergonomics program has also been
as being unduly subjective and open to broad discretion in deciding who recognized by the Agency. Although not
interpretation (see, e.g., Exs. 30–1101, should bear responsibility for the required by the standard, OSHA is
30–1336, 30–3826, 32–337–1, 30–1671, various components of the ergonomics aware that outside expertise may be
30–3336, 30–3367, 30–3782, 30–4674, program, and what authority, resources, beneficial in some instances.
30–3512). Some commenters said that and information are necessary and Accordingly, the final rule allows the
determinations about the delegation of appropriate to meet the assigned employer to chose who is designated
authority and assignment of resources responsibilities in a given workplace. with regard to the assignment of
were outside of OSHA’s expertise and The frequency of communication with responsibility. Ergonomists, safety
created excessive administrative employees is also subject to wide professionals, industrial hygienists, and
burdens on employers (see, e.g., Exs. latitude in order to account for the others may be involved in the
32–78–1, Tr. 12250). Such mandates needs of different workplaces. The term employer’s program.
were believed by some to be beyond the ‘‘periodically’’ is used in the standard to Several commenters suggested that
Agency’s authority (see, e.g., Exs. 30– indicate that communication must be OSHA place requirements on employees
2914, 30–4335). performed on a regular basis that is as well as employers in the final rule
OSHA has decided to retain a appropriate for the conditions in the (see, e.g., Exs. 30–3765, 30–584, 30–
requirement for management leadership workplace. A rigid schedule, however, 3368). These commenters believe that
in the final rule. Management is not specified, in order to provide employees must take responsibility for
leadership is widely believed to be one flexibility to account for the their actions. OSHA agrees that active
of the core elements of any effective circumstances found in different employee involvement in the
safety and health (including workplaces and even at different times ergonomics program is essential to
ergonomics) program. If no individuals in the same workplace. Additional program effectiveness but does not
in a given workplace have been assigned discussion of this topic can be found in believe that this principle should be
responsibilities for the ergonomics the section of this preamble devoted to stated in the standard, for a number of
program, it is clearly unreasonable to additional statutory issues (see Section reasons. First, the OSH Act itself, at
expect that a successful program will XII of the preamble). Section 5(b), states that ‘‘Each employee
somehow emerge. Likewise, if The general requirements in shall comply with occupational safety
responsibilities are assigned but no paragraph (h) of the final rule for the and health standards and all rules,
authority is granted and no resources assignment of responsibilities and regulations, and orders issued pursuant
are provided, an ergonomics program is provision of authority, resources and to the OSH Act which are applicable to
destined to fail. For example, if an information are designed to complement his own actions and conduct.’’
individual is assigned responsibility for the more specific requirements for However, the courts have repeatedly
training workers in a problem job, that action found elsewhere in the standard. held that employers are responsible
person needs access to relevant For instance, under paragraph (i) of this under Section 5(a)(2) of the Act for
information about the MSD hazards and final rule, employees must receive ensuring worker protection. For
controls in the job, sufficient time to prompt responses to reports of MSDs. It example, the court in Brock v. City Oil
administer the training, and a suitable is the duty of the employer to assign the Well Service Co., 795 F. 2d 507, 511 (5th
location for the training to take place. responsibility for providing those Cir. 1986) held, ‘‘it is the employer’s
Communicating periodically with responses and to provide the necessary responsibility to ensure that the

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employees are protected. It may and employee participation elements of • Policies that require every
accomplish this objective through others the final rule should be considered the employee reporting an MSD or MSD
if it chooses, but the duty to provide the overall conceptual foundation of an signs and symptoms to submit to a drug
protection remains the employer’s.’’ If, effective ergonomics program and a vital or alcohol test.
for example, an employer has part of the organizational framework of • Direct or reasonably perceived
determined that lifting an 80-pound box an effective program. By fully threats of retaliation, including firing or
poses an MSD hazard to employees, the understanding the importance of suspension, withholding overtime work
employer can establish a policy of management leadership and employee for anyone who reports MSD signs or
requiring employees to use a participation, it is expected that symptoms, (even from jobs that do not
mechanical lift to raise such a box and program managers will determine how involve exposure to risk factors),
train employees how to do this. The best to apply these concepts in a prohibiting the use of sick leave for a
employer could then hold the employee particular workplace and how the work-related injury; and sending every
accountable for adhering to this policy individual subelements will work most employee who reports MSD signs and
in the same manner as other policies or efficiently in their environment. Even symptoms home without pay.
rules are enforced. where some overlap could be perceived, Expressed or implied warnings of
In addition to providing authority, it is not OSHA’s policy to issue retaliation for reporting MSDs, MSD
resources, and information, the duplicate citations for a single violation. signs and symptoms, or MSD hazards
proposed management leadership The management leadership element would clearly be considered a practice
section included a requirement to also includes requirements unique to that would discourage reporting. If, for
provide the training necessary to meet this paragraph, such as the requirement example, a supervisor were to inform
assigned responsibilities. Because in paragraph (h)(3). That requirement employees working the day shift that
training for those responsible for setting specifies that the employer must ensure reporting MSD signs and symptoms
up and managing the program is that their policies and practices would automatically result in transfer to
addressed in paragraph (t) of this final encourage and do not discourage the night shift, this action could be
rule, training has been deleted from this reporting or participation in the reasonably anticipated to suppress
paragraph in order to avoid potential program. OSHA believes that applying reporting. An example of a situation
confusion. this provision in an ergonomics program similar to this was described by the
Some commenters expressed the is a logical component of management’s UFCW. The union explained that
belief that management leadership is effort to direct the ergonomics program employees were reluctant to report
implicit in an effective ergonomics in a manner that will be protective of injuries in this situation due to the
program, and an independent employee health. consequences they would face:
requirement for management leadership OSHA’s proposed requirement for
[The company] had established a special
is therefore unwarranted (see, e.g., Exs. employers to ensure that their existing ‘‘C’’ shift—the graveyard shift—for
30–3765, 30–1293). Dow Chemical, for policies and practices encourage and do employees suffering from work-related
example, while strongly supporting the not discourage reporting and injuries, many of which were cumulative
need for management leadership in participation in the ergonomics program trauma disorders. The purported purpose of
safety and health activities, expressed elicited a substantial volume of the C shift crew was to assist injured workers
the view that it is not appropriate for comment. As explained in the preamble with long term medical restrictions in
OSHA to attempt to regulate and enforce of the proposal, this proposed provision returning to regular duty. In fact, however, a
number of employees assigned to the crew
leadership. By establishing and was intended to encourage the early
were taken off regular duty jobs which they
evaluating the effectiveness of an reporting of MSDs and meaningful had been performing successfully with their
ergonomics program, Dow argued, the employee participation in the restrictions. They were then isolated and
employer has in effect demonstrated ergonomics program. OSHA believes segregated on the C shift and assigned
leadership (Ex. 30–3765). that employees in all workplaces should degrading, demeaning, make-work tasks such
In a similar vein, some parties argued be encouraged by their employers to as picking up cigarette butts in the parking
that the requirements for management report injuries, illnesses, and hazards of lot at night with flashlights or scraping rust
leadership were largely redundant with all kinds—not just those related to off of pipes in the rendering department (Ex.
other sections of the proposal. They 32–210–2).
ergonomic issues—because only full
pointed out, for example, that and frank reporting allows employers to Some employers have taken this a
communicating periodically with identify hazards and do something step further, pursuing policies that
employees about the ergonomics about them. discipline workers for reporting injuries,
program and their concerns about MSDs Particular attention was paid by without considering the cause of those
was part of the proposed management participants regarding the requirement injuries. When rewards or punishment
leadership provision, while separate, that employers ensure that their policies are linked to the reporting of MSDs or
specific requirements for and practices do not discourage MSD signs and symptoms, employee
communication with employees were reporting and participation in the reporting behavior can clearly be
proposed as part of the provisions program, and the effect of this provision influenced. Punishment for reporting in
pertaining to quick fix, employee on existing employer programs, the form of wage reductions, loss of
participation, hazard information and including safety incentive programs and overtime, reprimands, suspensions, or
reporting, job hazard analysis and employee drug testing programs. other means can be expected to
control, training, MSD management, and Policies and practices given in the discourage reporting.
program evaluation. This ‘‘duplication,’’ preamble to the proposal as examples of An example of this approach is a
it was argued, could subject employers those that may discourage reporting system of imposing progressively more
to being cited twice for a single included: severe penalties when injuries are
violation (see, e.g., Exs. 30–3344, 30– • Programs that reward or punish reported, such as a written reprimand
4674). employees on the basis of injury or for the first incident, followed by
OSHA believes that there is little, if illness reports by offering incentives or suspension, and finally termination
any, overlap with other parts of this awards based on low numbers or rates (see, e.g., Exs. 32–298–2). Another
standard. The management leadership of reported MSDs. example is a system that assigns a point

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68322 Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations

value to an incident based on factors go. And one of the workers got hurt. And the should not discourage employers from
such as the cost of the incident to the rest of his coworkers told him, ‘‘Hey, you go utilizing all necessary injury/illness
employer or whether lost workdays to medical, there goes the microwave.’’ And prevention tools. There is no basis for the
this guy realized that his health was more proposed Ergonomics Standard to suggest
were involved. Progressive levels of
important than some microwave. But a good that these effective programs should be
punishment are meted out based upon many of his coworkers wouldn’t even talk to subject to further scrutiny (Ex. 30–3843).
the number of points that an employee him for a couple of weeks as a result of that
accumulates (see, e.g., Ex. 500–111–1). (Tr. 15453). Sufficient evidence has already been
Kathy Saumier of the United entered in the record, however, for
Dr. Richard Bunch of the Industrial
Steelworkers described such a program OSHA to reach the conclusion that
Safety and Rehabilitation Institute told
and its results in the plastics plant MSDs are substantially underreported
of an injury sustained but not reported
where she worked: (see the discussion of underreporting in
early, in order to preserve workers’
The company had a policy to give out the Significance of Risk section of this
chances of winning a barbeque pit:
points if an employee missed work even due preamble as well as the Benefits chapter
to work related injury. After an employee One company was giving a barbeque pit as of the Final Economic Analysis).
accumulated seven points, the company a prize if you went so many months without Evidence also supports the belief that
reduced the employees’ pay by 50 cents per reporting an injury. And one gentleman had
employer policies and practices often
hour. If the employee accumulated 15 points a back problem and did not report it because
the other six members on his team threatened contribute to this underreporting by
an employee was then terminated. This
system caused many workers to go to work him with violence. So in that case, he did not discouraging the reporting of MSDs.
injured for fear of pay reduction or report it, but ended up going to a full blown A review of the literature on safety
termination (Tr. 10992). frank rupture of the disc (Tr. 11638). incentives commissioned by OSHA and
The record also included many These accounts of individuals support published in 1998 divided incentive
instances where, intentionally or the impression that incentive programs programs into two categories based on
inadvertently, employer policies and that tie rewards or punishment to the the behavior they reward. The review
practices were said to discourage report of an injury may result in found that the literature strongly
employees from reporting MSDs (see, reductions in reported injuries and indicates that programs that measure
e.g., Exs. 20–626, 32–111–4, 32–198–4– illnesses, at least in part due to lack of safe work practices, such as wearing
1, 32–198–4–2, 32–210–2, 32–298–2, Tr. reporting rather than an actual safety glasses for eye protection or using
5598, Tr. 6980, Tr. 7715, Tr. 7729, Tr. reduction in the number of injuries that a seat belt when driving, may increase
7387, Tr. 7730, Tr. 8041, Tr. 10153, Tr. occur. Nancy Lessin of the the frequency of such practices. The
10230, Tr. 10763, Tr. 13870, Tr. 14535, Massachusetts AFL–CIO espoused this literature review further disclosed that
Tr. 15131, Tr. 15453, Tr. 16766). view: incentive programs that focus on
Incentive programs that offer rewards reductions in the number of injuries and
Workers can not control the conditions
to employees or groups of employees which lead to most work-related injuries and
illnesses reported do not improve safety
based on a low number of reported illnesses. They can control whether or not practices. No scientific studies were
injuries were also mentioned as factors they report an injury or illness. Safety found indicating that such programs
inhibiting the reporting of MSDs. Bill incentive programs manipulate the thing had either a positive or a negative
Byington of the IBT described how workers can control—the reporting of impact (Ex. 502–281).
employees in his workplace were being workplace injuries and illnesses * * * (Ex. Some policies and practices can affect
taken to a baseball game for completing 32–298–2). employee participation in the
a month of work without a reported The United Steelworkers concurred ergonomics program, as well as
injury; he was aware, however, that at with that assessment: employees’ incentive to report.
least one of the members of the group We know better than to believe that worker Employees who are punished or
had sustained an injury and not behavior is the primary cause of most discouraged from reporting MSDs or
reported it (Tr. 15453). Sandy Brooks of workplace accidents. We know that exposure MSD signs and symptoms, may also feel
the United Steelworkers related her to workplace hazards causes injuries and discouraged from participating in any
experience with a ‘‘safety bingo’’ illness and exposure to ergonomic hazards meetings or discussions about
program, where employees receive a causes MSDs. Ergonomic hazards need to be ergonomic problems in the workplace
bingo number each day, and the controlled to eliminate MSDs in the same
and how to address them. If a worker is
manner that we address any workplace
employee who wins the bingo game hazard. Incentive programs based on injury threatened with retaliation for pointing
receives cash, weekend trips, and rates, and behavior-based safety programs do out hazards or for participating in a job
dinners as prizes. The bingo game ends not correct hazards. In fact, these programs hazard analysis, that worker and his or
for all employees, however, when an can make a bad situation worse by diverting her co-workers are unlikely to take part
OSHA recordable injury is reported. Ms. attention from correctable hazards, and in this activity or future activities.
Brooks was also aware of workers who promoting the under reporting of injuries (Ex. Employees are likely to be discouraged
did not report injuries because of the 32–111–4). from requesting information to which
incentive program (Tr. 7703). Several commenters argued that they may be entitled, such as training
An additional factor in group OSHA had not made a determination materials or information about this
incentive programs that can serve to that incentive programs result in the standard, if they fear retaliation or if
coerce employees to refrain from underreporting of MSDs (see, e.g., Exs. obtaining the information is made
reporting MSDs is the peer pressure that 30–4185, 30–1070, 30–3347, 30–4185). inconvenient. Likewise, if employees in
can be exerted when group awards are The Synthetic Organic Chemical a problem job are asked for
at stake. Joe Enos of the UAW described Manufacturers Association suggested recommendations about eliminating or
the result of an incentive program that that OSHA obtain data to support its controlling MSD hazards, but are
offered a microwave oven to a team of position, stating: required to attend a meeting at an
workers if they reduced reported unreasonable time in an inconvenient
If OSHA believes that employers are not
injuries 25% from the previous year: properly reporting injuries and illnesses, it place, or that may involve loss of pay in
The group had achieved that goal going should address this issue by gathering the order to submit those recommendations,
into November and they still had a month to data to substantiate its position. OSHA the likelihood of those employees

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Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations 68323

participating in the process would be In contrast to the comments 1364, 601–x–1365, 601–x–1366, 601–x–
diminished. describing the pressures on employees 1367, 30–1416, 30–1453, 30–1457, 30–
Some commenters were concerned not to report MSDs, a number of parties 1616, 30–1998, 30–1999, 30–2131, 30–
that a wide variety of employer policies were concerned that the proposed 2142, 30–2184, 30–2233, 30–2250, 30–
and practices could have the potential prohibition on policies or practices 2304, 30–2395, 30–2396, 30–2423, 30–
to impact employee participation and could inadvertently eliminate widely 2431, 30–2736, 30–2829, 30–2889, 30–
reporting of injuries; even a review of a accepted, sensible, and successful safety 2891, 30–2992, 30–3003, 30–3254, 30–
manager’s or supervisor’s performance practices. Many commenters indicated 3334, 30–3393, 30–3551, 30–3597, 30–
could be found to constitute a violation concern that the proposed prohibition 3791, 30–3882, 30–3936, 30–3944, 30–
of the standard when performance on policies or practices that discourage 3974, 30–3977, 30–3999, 30–4464, 30–
criteria in that review include the worker reporting could be interpreted to 4532, 30–4539, 30–4544, 30–4629, 30–
number of injuries and illnesses eliminate demonstrably successful 4657, 30–4667, 30–4669, 30–4980, 30–
recorded by employees under his or her employee incentive programs (see, e.g., 5034, 30–5076, 30–5095, 30–5101, L30–
supervision (Ex. 30–4185). Exs. 30–3765, 32–368–1, 30–656, 30– 4952, L30–4953, L30–5096).
OSHA is concerned with the effect of 1048, 30–1070, 30–1349, 30–1551, 30– Caterpillar Inc., for instance, attested
a policy on employees’ participation in 1567, 30–1616, 30–1652, 30–1671, 30– to the favorable impact of incentive
the ergonomics program and whether 1901, 30–2038, 30–2050, 30–2061, 30– programs in that firm:
the program or policy discourages 2499, 30–2514, 30–2799, 30–2811, 30– Incentive programs have always been an
reporting. In some cases, making the 2812, 30–2814, 30–2815, 30–2846, 30– excellent vehicle to raise awareness,
number of injuries and illnesses 2988, 30–2990, 30–3086, 30–3174, 30– communicate various issues throughout the
recorded a part of a manager’s 3177, 30–3336, 30–3349, 30–3353, 30– workplace and show employer concern about
performance review can result in a 3354, 30–3678, 30–3721, 30–3736, 30– employee safety. While OSHA considers
policy the discourages reporting. Larry these programs to be disincentives [to the
3745, 30–3819, 30–3848, 30–3951, 30– reporting of MSDs and MSD signs and
Hall of the United Food and 4122, 30–4185, 30–4334, 30–4496, 30–
Commercial Workers described such a symptoms], our experience shows that they
4540, 30–4607, 30–4674, 30–4702, 30– have positive benefits. By increasing
situation. 4818, 30–4822, 30–4839, 30–4843, 31– awareness and rewarding safe behaviors
One of the things that happens with the 310, 32–21–1, 32–82–1, 32–120–1, Tr. through incentive programs, employers have
[manager] bonuses is the worker reports a 10445, Tr. 11502, Tr. 12857, Tr. 16924, seen a reduction in all injury categories (Ex.
problem, and the manager immediately tells Tr. 17461, Tr. 17483, 30–4340, 500–1– 30–4607).
them how that is going to affect their bonus.
28, 500–1–29, 500–1–42, 500–1–69, Nothing in this final rule would
If you are working for me and I say, ‘‘Gee,
that is going to really affect my bonus. So, for 500–1–70, 500–1–79, 500–1–86, 500–1– prohibit incentive or award programs.
the rest of your life, you get to work nights,’’ 95, 500–1–106, 500–1–112, 500–1–113, The obligation that an employer would
these people write their schedules. They 500–1–114, 500–1–136, 500–1–147, have, should they chose to adopt an
control their lives. If you are going to 500–1–181, 500–1–117, 500–1–119, incentive program, would be to ensure
displease me and take money out of my 500–1–121, 500–1–124, 500–1–125, that the incentive program did not
pocket, I can really do a lot to you and stay 500–1–127, 500–1–135, 500–1–137, discourage the reporting of MSDs, MSD
within the union contract. (Tr 14538) 500–1–152, 500–1–193, 500–1–442, 32– signs and symptoms, or MSD hazards,
OSHA finds that the evidence 258–2, 30–911, 30–1942, 30–3236, 30– or discourage participation in the
strongly demonstrates that employer 3339, 500–219, 601–x–1710, 601–x– ergonomics program. As explained
policies and practices that reward non- 1711, 30–4527, 30–980, 30–2668, 30– previously, OSHA’s concern is that
reporting and punish, threaten, or 4565, 30–3847, 30–2684, L30–4985, 30– discouraging full reporting and
otherwise discourage employee 4029, 30–4335, 30–4443, 30–1004, 30– participation in the ergonomics program
reporting of MSD incidents have the 1010, 30–1017, 30–1025, 30–1027, 30– will diminish the effectiveness of the
effect, in many instances, of suppressing 1035, 30–1038, 30–1042, 30–1044, 30– program.
incident reports. This conclusion is 1045, 30–1079, 30–1080, 30–1089, 30– Although incentive programs that are
based on the strong record presented by 1099, 30–1163, 30–1164, 30–1401, 30– successful in promoting workplace
witnesses and documentary 1403, 30–1423, 30–1424, 30–1436, 30– safety can be expected to result in a
submissions as well as on the logic that 1440, 30–1455, 30–1460, 30–1463, 30– reduction in the number of injuries
providing incentives to not report 1495, 30–1497, 30–1566, 30–1658, 30– reported, an unsuccessful program that
accidents or illnesses is likely to reduce 1659, 30–1674, 30–1675, 30–1682, 30– does not improve workplace safety can
the number of such reports, but unless 1684, 30–1685, 30–1686, 30–1687, 30– also result in fewer reported injuries.
the cause of those incidents is 1688, 30–1689, 30–1690, 30–1691, 30– When the yardstick for measuring the
addressed, it is unreasonable to believe 1916, 30–2124, 30–2126, 30–2234, 30– success of the program is only the
that MSD incidents themselves will be 2235, 30–2236, 30–2237, 30–2275, 30– number of injuries reported, the
reduced in number. The litany of case 2279, 30–2311, 30–2369, 30–2376, 30– program can distort the true state of
reports in the record where employer 2588, 30–2673, 30–2674, 30–2768, 30– affairs and preclude early intervention
policies and practices were said to deter 2850, 30–2925, 30–3002, 30–3042, 30– by inducing employees to avoid
reporting reinforce this position. The 3044, 30–3080, 30–3083, 30–3087, 30– reporting their injuries. This problem is
concealment of MSD incidents would in 3229, 30–3380, 30–344, 30–346, 30– particularly critical with regard to MSD
fact have an effect directly opposed to 3822, 30–3985, 30–3988, 30–4037, 30– signs and symptoms, where early
the purpose of this standard. Hazards 4059, 30–4507, 30–4770, 30–4841, 30– intervention can be of great importance.
that would otherwise be identified and 5044, 30–5106, 30–634, 30–636, 30–638, OSHA encourages employers to focus
eliminated or controlled would remain 30–643, 30–649, 30–871, 30–883, 30– any incentives on safe work practices,
and continue to threaten employees. 891, 30–903, 30–905, 30–918, 30–978, active participation in safety programs,
MSD incidents that, if reported, could 30–994, 30–995, 600–x–10, 600–x–11, and identification of hazards in the
be limited in severity through rest or 600–x–12, 600–x–13, 600–x–45, 600–x– workplace. By doing so, the root causes
treatment would instead be allowed to 46, 600–x–5, 600–x–6, 600–x–7, 600–x– of injuries and illnesses can be
progress. 9, 601–x–1358, 601–x–1363, 601–x– addressed, and a safer workplace can be

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68324 Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations

created. The Incentive Federation 500–1–137, 500–1–152, 500–1–193, scheme. In addition, any such inhibiting
described the types of activities that a 500–1–411, 500–1–384, 500–1–385, effect is more than outweighed by the
safety incentive program can target, 500–1–386, 500–1–413, 500–1–423, workplace accidents and injuries that are
avoided through maintenance of an effective
rather than using the number or rate of 500–1–442, 500–16, 500–52, 500–23–1,
drug-free workplace program (Ex. 30–3819)
reported injuries as its objective: 32–258–2, 30–904, 30–911, 30–1942,
30–3236, 30–3339, 500–219, 30–4550, OSHA is not aware of any basis for
* * * a good safety incentive program
often focuses on proactive behavior. For 601–x–1711, 30–1363, 30–4248, 30– concluding that the development of
example, it might encourage employees to 4778, 30–2455, 30–4527, 30–2668, 30– MSDs is in any way associated with the
make safety suggestions, attend safety 4565, 30–3847, 30–2684, L30–4985, 30– use of drugs or alcohol. The reporting of
meetings, promote safety awareness, 3472, 30–3582, 30–4029, 30–4335, 30– MSDs or MSD signs and symptoms
participate in safety inspections, report safe 4443, 30–4475, 30–4528, 30–4688, 30– covered under this rule, therefore,
behavior, report near misses, and so forth. In cannot be considered by itself to
addition, self-directed safety teams, where
1004, 30–1010, 30–1017, 30–1025, 30–
1027, 30–1035, 30–1038, 30–1042, 30– provide any justification for testing.
employees observe each other at work and Although subjecting all parties reporting
report good and bad safety conduct (without 1044, 30–1045, 30–1079, 30–1080, 30–
necessarily using the names of the specific 1089, 30–1099, 30–1163, 30–1164, 30– injuries or all OSHA recordable cases to
employees), encourage safe behavior. 1401, 30–1403, 30–1423, 30–1424, 30– testing has sometimes been used by
Encouraging this type of employee 1436, 30–1440, 30–1455, 30–1460, 30– employers as a matter of administrative
participation is extremely useful, because 1463, 30–1495, 30–1497, 30–1566, 30– convenience in identifying individuals
employees are reasonably objective in 1658, 30–1659, 30–1674, 30–1675, 30– for testing, the lack of a relationship
observing their peers, and they report good between drug or alcohol use and the
and bad behavior. The conduct observed can 1682, 30–1684, 30–1685, 30–1686, 30–
1687, 30–1688, 30–1689, 30–1690, 30– MSDs covered by this rule, along with
then be included in periodic reports or the detrimental effect on reporting
reviewed in safety meetings to stress safe 1691, 30–1916, 30–2124, 30–2126, 30–
behavior. (Ex. 30–1100). 2234, 30–2235, 30–2236, 30–2237, 30– behavior that testing can have, combine
2275, 30–2279, 30–2311, 30–2369, 30– to make this an inappropriate practice
Drug testing programs, when applied where MSDs are concerned.
to all workers who report MSDs, were 2376, 30–2588, 30–2673, 30–2674, 30–
Furthermore, there is no evidence that
also said to hinder full reporting of 2768, 30–2850, 30–2925, 30–3002, 30–
drug tests discourage workers from
injuries. Chuck Monohan of the 3042, 30–3044, 30–3080, 30–3083, 30–
reporting injuries only if they fear that
International Brotherhood of Electrical 3087, 30–3229, 30–3380, 30–344, 30–
drug use will be discovered. Adrienne
Workers explained that a fear of false 346, 30–3822, 30–3985, 30–3988, 30–
Markowitz of the UFCW described a
positive results was responsible for non- 4037, 30–4059, 30–4507, 30–4770, 30–
poultry processing plant where workers
reporting (Tr. 7378). Other commenters 4841, 30–5044, 30–5106, 30–634, 30–
who reported pain in the hands and
also discussed the chilling effect that 636, 30–638, 30–643, 30–649, 30–871,
wrists were required to be tested for
drug testing programs can have on 30–883, 30–891, 30–903, 30–905, 30–
illegal drugs:
reporting injuries (Tr. 5997, Tr. 13869, 918, 30–978, 30–994, 30–995, 600–x–10,
600–x–11, 600–x–12, 600–x–13, 600–x– This is a church going and religious
Tr. 17509) community. Most people were not worried
A large number of commenters 45, 600–x–46, 600–x–5, 600–x–6, 600–
that drugs would be found because they
expressed concern that the proposed x–7, 600–x–9, 601–x–1358, 601–x–1363, didn’t take them. But they weren’t happy
prohibition on policies or practices that 601–x–1364, 601–x–1365, 601–x–1366, with having to suffer the indignities of
discourage worker reporting could be 601–x–1367, 30–2410, 30–2289, 30– having someone watch them urinate, were
interpreted to eliminate widely accepted 3877, 30–2601, 30–3160, 30–3598, 30– afraid that inaccurate testing and laboratory
drug testing policies (see, e.g., Exs. 30– 2912, 30–1332, L30–5025, 30–4280, 30– practices [would erroneously indicate illegal
536, 30–2208, 32–368–1, 30–3765, 30– 1416, 30–1453, 30–1457, 30–1616, 30– drug use], were concerned that the
1998, 30–1999, 30–2131, 30–2142, 30– medications they took would show up as
419, 30–519, 30–1012, 30–1048, 30– illegal drugs, and [were] fearful that the
1070, 30–1261, 30–1332, 30–1348, 30– 2184, 30–2233, 30–2250, 30–2304, 30–
company supervisors would doctor the
1349, 30–1358, 30–1536, 30–1551, 30– 2395, 30–2396, 30–2423, 30–2431, 30– records. Many, for the reasons I have just
1567, 30–1616, 30–1652, 30–1671, 30– 2736, 30–2829, 30–2889, 30–2891, 30– stated, refused to take the test and were fired.
1901, 30–2050, 30–2061, 30–2499, 30– 2992, 30–3003, 30–3254, 30–3334, 30– And many others just never reported their
2514, 30–2645, 30–2675, 30–2799, 30– 3393, 30–3551, 30–3597, 30–3791, 30– illnesses (Tr. 5998).
2811, 30–2812, 30–2814, 30–2815, 30– 3882, 30–3936, 30–3944, 30–3974, 30– This rule does not in any way prevent
2988, 30–2990, 30–3174, 30–3177, 30– 3977, 30–3999, 30–4464, 30–4532, 30– an employer from conducting testing if
3348, 30–3349, 30–3353, 30–3356, 30– 4539, 30–4544, 30–4629, 30–4657, 30– it is required by law, is based on
3359, 30–3721, 30–3723, 30–3736, 30– 4667, 30–4669, 30–4980, 30–5034, 30– reasonable suspicion, is part of the job
3745, 30–3819, 30–3951, 30–4046, 30– 5076, 30–5095, 30–5101, L30–4952, application process, is part of routine
4122, 30–4567, 30–4607, 30–4628, 30– L30–4953, L30–5096). fitness-for duty examination, is done as
4674, 30–4702, 30–4713, 30–4818, 30– The sentiment that the contribution of follow-up after entering an employee
4822, 30–4839, 30–4844, 31–282, 31– drug-testing programs to workplace assistance or drug rehabilitation
298, 31–310, 32–335, Tr. 4335, Tr. 4909, safety should not be compromised by program, or is administered to assist in
Tr. 6112, Tr. 8350, Tr. 9190, Tr. 10444, the requirements of the ergonomics post-accident investigation. A blanket
Tr. 12857, Tr. 12958, Tr. 15621, Tr. standard was expressed by Food policy that requires all employees
15644, Tr. 15976, Tr. 17461, Tr. 17483, Distributors International: reporting MSDs or signs and symptoms
30–3725, 30–4340, 30–4146, 500–1–28, In the view of FDI and its members, the of MSDs to submit to drug or alcohol
500–1–42, 500–1–69, 500–1–70, 500–1– possibility that some individuals will feel testing, however, would hinder the
79, 500–1–86, 500–1–95, 500–1–106, constrained to avoid reporting workplace effectiveness of the ergonomics program
500–1–112, 500–1–113, 500–1–114, injuries or accidents because of a drug test
requirement that might be triggered is not an
if such a policy results in
500–1–136, 500–1–140, 500–1–147, overriding concern. These fears largely will underreporting.
500–1–181, 500–1–185, 500–1–117, relate only to those whose drug use may be Nor is the fear that a back injury or
500–1–119, 500–1–121, 500–1–124, discovered, and their protection should not other MSD may be the result of an
500–1–125, 500–1–127, 500–1–135, be the goal of a major OSHA regulatory accident caused by drug or alcohol use

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a reason for testing employees for drugs to show negligence on the part of a local Any regulation that has provisions for
when reporting an MSD or MSD signs government that allowed ‘‘waivers’’ of its employees ‘‘not feeling discouraged’’ would
or symptoms. As stated in paragraph (a), alcohol and drug testing ordinances for be impossible to enforce fairly. For example,
employees in order to permit full and free identical employer conduct could be legal in
this standard does not address injuries one plant, or part of a plant, and illegal in
reporting of MSDs (Ex. 30–4810).
caused by slips, trips, falls, vehicle another and the employer might never know
accidents, or other similar accidents. OSHA’s concern is that testing not be it (Ex. 500–1–28).
The standard addresses injuries that are conducted in a manner that penalizes
In order to provide an objective basis
the result of exposure to force, individuals reporting MSDs or
for enforcement of this provision, OSHA
repetition, awkward postures, vibration, participating in ergonomics programs.
has concluded that a pattern of
and contact stress. Injuries covered by This final rule does not restrict
underreporting must be evident in the
the standard are commonly associated employers’ drug or alcohol testing
workplace before a determination will
with prolonged or excessive exposures policies where such policies are
be made that any given employer policy
to these ergonomic risk factors. There is authorized by state or federal law. It
or practice discourages reporting of
no reason to believe that drugs or should be noted, however, that DOT
MSDs or signs and symptoms of MSDs.
alcohol have any relevance to the regulations, which require post accident
If underreporting or discouragement of
development of these conditions and testing and testing of safety sensitive
employee participation in the
certainly no evidence that impairment employees and under certain other
ergonomics program is found at a
at the time of reporting has any circumstances, do not require drug
particular establishment as a result of a
relevance. Simply reporting MSD signs testing when MSDs or any other type of
records review or employee interviews,
and symptoms therefore cannot be injury or illness is reported.
OSHA will evaluate the situation to
viewed as a legitimate reason to suspect Workers compensation and other state determine if employer policies and
drug or alcohol abuse. and federal laws that require drug practices have had the effect of
Some commenters argued that if an testing following a traffic or other discouraging reporting or participation
ergonomics standard did restrict drug accident, are also not generally relevant in the ergonomics program. OSHA’s
testing programs, this could conflict to the application of this standard, position is that these policies and
with regulatory requirements of the because as explained above, MSDs procedures are not per se illegal, but
Department of Transportation or resulting from accidents, slips, trips and they can clearly discourage reporting
Nuclear Regulatory Commission, or falls are specifically exempted from this and participation. If an employer has
with policies established through rule. policies or procedures with this
collective bargaining (see, e.g., Exs. 30– A number of employee potential, the employer must ensure that
3853, 30–3765, 30–1070, 30–1332, 30– representatives expressed the opinion these policies and procedures are not
1671, 30–3284, 30–3359, 32–335, Tr. that policies or practices that can actually discouraging reporting or
15621, 500–1–28, 30–4527, 30–4029, discourage worker participation in the participation.
30–4475, 30–4248). Restrictions on drug ergonomics program, such as incentive OSHA expects that employers will
testing were also said to conflict with programs and post-injury drug testing, have ample opportunity to discover
requirements for companies with should be explicitly prohibited in the whether employees are being
government contracts (see, e.g., Exs. rule (see, e.g., Exs. 32–339–1, 32–111– discouraged through the periodic
601–x–1711, 30–4475). 4, 32–198–4, 32–210–2, 500–50). Absent communication that will take place
Language in the proposal that could such a prohibition, it was argued, an under the standard. If policies and
affect certain employer drug testing ergonomics standard triggered by practices are determined to discourage
policies was said to conflict with state employee reports of injury would be reporting or participation, employers
workers’ compensation laws, and thus undermined by employers who would would need to take action to remedy
violate Section 4(b)(4) of the pressure employees to avoid reporting this situation.
Occupational Safety and Health Act. injuries. These commenters argued that OSHA considers it important that the
State workers’ compensation laws, it the case-by-case determination employer not only not discourage, but
was said, may require drug testing in approach described in the preamble to actively encourage reporting and
certain instances, allow reduced the proposal would be inadequate to participation in the ergonomics
insurance premiums for those deter practices that discourage program. The Agency believes that this
employers with testing programs, or participation and reporting, and a goal can be accomplished by providing
allow impairment to be used as a blanket prohibition in the rule itself is information to employees about the
defense in contesting compensation necessary. importance of early reporting in
claims (see, e.g., Exs. 500–104, 500– Some parties indicated that they did accordance with paragraph (d), along
104–1). not find the proposal sufficiently clear with effective training on reporting and
It was argued that restrictions on drug in indicating what policies or practices the ergonomics program in accordance
testing programs could result in liability would be considered by OSHA to with paragraph (t) of this final rule.
claims against those employers whose discourage worker participation in the Several parties asked whether the
employees acted in an unsafe manner ergonomics program (see, e.g., Exs. 30– proposed prohibition on policies or
due to impairment. The New Mexico 3853, 30–4185, 32–337–1, 30–653, 30– practices that discourage reporting
Self Insurers Fund stated: 1350, 30–2216, 30–3233, 30–3344, 32– would apply to an employer’s decision
OSHA may have had the best intentions 82–1, 30–1101, 500–33). Concern was as to whether or not an employee can
when writing the preamble, however if state expressed that compliance would be work overtime (see, e.g., Exs. 32–368–1,
and local government municipal employers dependent upon whether or not 30–2208, 30–3765, 30–1671, 30–2050,
were to neglect the possibility that alcohol employees feel discouraged, and would 30–2499, 30–3344, 30–3348, 30–3356,
and drug use was a factor in an injury,
whether or not it is an MSD, municipal
thus be determined by the subjective 30–4628, 30–4674, 500–1–140).
liability would rise exponentially. The perceptions of employees (see, e.g., Ex. Withholding overtime, it was argued,
bottom line is that many local governments 30–3853, 30–4247, 500–33, 32–266–1). may be based on a desire to prevent
would not be immune from lawsuits where TXU Business Services, for example, aggravation of the potential MSD, and
gross negligence is alleged. It would be easy stated: limiting the employer’s ability to restrict

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68326 Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations

overtime would thus conflict with compensation systems or production collective bargaining agent, have ways
provisions in the proposed standard that incentives are abandoned (Ex. 30–4362). to report MSDs, MSD signs and
allow employers to use administrative OSHA recognizes that these systems symptoms, and MSD hazards; that
controls (Ex. 30–1671). The Association sometimes cause employees to expose employees receive prompt responses to
of Independent Corrugated Converters themselves to MSD hazards in order to those reports when they are made; that
stated: achieve higher rates of compensation. access to the standard and to
While some employers do not choose to
Because piece rate incentives are not information about MSDs and the
impose such restrictions, it seems directly tied to reporting or ergonomics program be provided to
unfathomable that involuntary restrictions on participation in the ergonomics employees; and that employees have
some overtime work would be deemed an program, however, the Agency does not ways to be involved in the development,
inappropriate management step, both before view them as potential sources of implementation, and evaluation of the
and after symptoms reported by employees discouragement to reporting and ergonomics program.
are analyzed by a health care provider. The participation. With full participation in The requirements of paragraph (i)
essence of some MSDs, at least in OSHA’s the ergonomics program, employees closely correspond with the
own construct of such conditions, is that
overuse in the form of ‘‘excessive’’ repeated
compensated under these systems will requirements of the proposed employee
exposure is the source of problems in many be provided with the protections of the participation section. This reflects
circumstances. It seems oddly inconsistent ergonomics standard, including the OSHA’s determination, based on
that on the one hand, the overall thrust of the information and training that will confer evidence in the record, that the
‘‘incremental abatement’’ and job re-design with it the ability to recognize the involvement of employees and their
obligation of OSHA’s full ergonomics potential causes of MSDs and representatives in an ergonomics
program will focus on avoiding or reducing knowledge of the importance of early program is critical to the effectiveness of
exposures, while on the other, an employer’s intervention. the program. It also reflects the support
judgement to limit additional exposure is Several commenters (see, e.g., Exs.
retaliatory or aimed at discouraging reporting
for the proposed employee participation
(Ex. 500–1–140).
30–3853, 30–4247) argued that provisions expressed by commenters.
subjecting an employer to citation for The proposed employee participation
As with incentive programs and drug maintaining policies or practices that requirements were designed to cover
and alcohol testing policies, OSHA’s discourage worker participation would those circumstances where the
concern about withholding overtime is be contrary to the intent of Congress. involvement of workers was essential to
based on the discriminatory application These commenters argued that, by the success of an ergonomics program.
of this practice to discourage reporting placing a discrimination provision in The duty to establish a means of
or participation in the ergonomics Section 11(c) of the OSH Act, Congress reporting and to provide prompt
program. The Agency realizes that work had made clear that anti-discrimination responses to reports was included
restrictions, including limitations on the provisions should not be included in because of the vital importance of an
number of hours worked, are often standards. These commenters therefore effective reporting system to the proper
necessary to prevent an injured believe it inappropriate for OSHA to function of the injury-based trigger of
employee’s condition from worsening include a discrimination provision in an the standard. Access to the standard and
and to allow damaged tissues to recover. ergonomics standard. information about the ergonomics
The provision of work restrictions, Paragraph (h)(3) of the final rule is program was considered by the Agency
however, must be viewed separately intended to prevent employers not only to be necessary for employees to
from the reporting of MSDs and MSD from discriminating against employees participate effectively in the ergonomics
signs and symptoms. for reporting and participating in the program. Employee input into the
If overtime is withheld as a matter of ergonomics program, but also to prevent development, implementation, and
policy simply because a report of an employers from having policies that evaluation of ergonomic programs was
MSD has been made, this could have the discourage employees from reporting considered critical to program success
effect of discouraging reporting. An and participating, even where no because of the first-hand knowledge that
example of such a situation would be an discrimination has taken place. employees could offer regarding
employee who uses a keyboard in a Paragraph (h)(3) thus has a different potential solutions to MSD hazards, the
steady manner for eight hours per day, scope than section 11(c). In addition, appropriate content and level of
then works an additional two hours as insofar as paragraph (h)(3) addresses training, and the effectiveness of control
a receptionist and does not perform any discrimination, it does so as part of a measures.
work involving typing or hand activity broader standard that is reasonably The proposed provisions for
during that two hours. If this employee necessary and appropriate to address a employee participation generated a
were to report the signs and symptoms serious hazard . Nothing in Section considerable volume of comment.
of an MSD of the wrist, and as a matter 11(c) indicates that a standard issued in Support for the concept of involving
of policy was denied the opportunity to accordance with Section 6(b) may not employees in the ergonomics program
work overtime as a receptionist but include such a provision. Provides a was widespread among commenters,
continued working eight hours at a different enforcement mechanism than and few disagreed with the proposed
keyboard, the effect would be to section 11(c), and nothing in section requirements pertaining to reporting,
discourage reporting and would be 11(c) indicates that it is the exclusive providing responses, and furnishing
evaluated by OSHA as described above. means of addressing discriminatory access to the standard and to
OSHA does not include production policies. information. Comment on these
incentives in the category of policies provisions in the context of employee
and practices that may discourage Paragraph (i)—Employee Participation participation was primarily limited to
reporting or participation in the Paragraph (i) sets forth the final rule’s requests for clarification about how the
program. Mosely and Associates provisions regarding employee provisions would apply in practice.
registered concern as to how such participation. It requires that employers Substantial differences were expressed,
systems would be viewed, and ensure that employees and their however, concerning the level of
expressed concern that plants may lose representatives, if the employees are employee involvement appropriately
their competitiveness if piece rate represented by a recognized or certified included in a final standard.

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The importance of employee 32–461–1, 32–111–4, 32–210–2, 32– preventive action can still be taken. A
participation in the successful 339–1, 500–33). For example, Shipman rigid time frame, however, is not
implementation of an ergonomics and Goodwin LLP, on behalf of an specified in the rule, because the
program was stressed in a number of unnamed client, stated: Agency recognizes that some flexibility
comments (see, e.g., Exs. 30–276, 30– Requesting that employees report signs and is needed to account for the
428, 30–651, 30–3860, 30–4333, 30– symptoms encourages the success of any circumstances found in different
4468, 32–21–1–2, 32–82–1,Tr. 3479, Tr. early intervention program (Ex. 30–2215). workplaces. In general, OSHA believes
6930, Tr. 3565, Tr. 5596–5597, Tr. that reports should be received within a
Comments received on this issue are
10202, 32–450–1–18–1, Tr. 11182, Tr. few days in almost all cases, and the
presented in greater detail in the
11380, Tr. 12947, Tr. 14479, Tr. 14902, Agency expects employers to inform
discussion of paragraph (d), which
Tr. 16526, Tr. 12366, 500–29, 500–117– their employees about the importance of
includes a requirement that employers
2, 500–177–2, 500–220, 500–215, 601-x- early reporting, as required by
provide information to their employees
1587, 20–605). Mark Catlin of the Alice paragraph (d).
on how to report MSDs and their signs OSHA proposed that employers
Hamilton Occupational Health Center, and symptoms. The ability of employees
for example, stated: provide prompt responses to employee
to report MSDs and MSD signs and reports of MSD signs and symptoms to
Our experience has been * * * that when symptoms depends upon their
there is true employee involvement from
encourage reporting and provide
understanding of the reporting feedback. OSHA’s reasons for proposing
beginning to end, especially in the mechanism, and knowledge of what
development of solutions, that can be a great that employer responses to reports be
constitutes a possible MSD or MSD sign made promptly was that timely and
benefit in coming up with a program that
works for that specific site that is cost or symptom. good faith responses are essential to
effective and will be maintained after it is The final rule, at paragraph (h), adds reinforcing the information exchange
initially set up (Tr. 5597). ‘‘MSD hazards’’ to the list of things process. Several commenters asked for
employers must ensure that employees clarification of this proposed provision
The advantages that the knowledge report. OSHA believes that trained
and skills of employees have lent to (see, e.g., Exs. 30–3344, 30–3367, 30–
employees will be able to identify MSD 249, 30–3749). The Society for Human
successful ergonomics programs were hazards in their workplace before they
remarked upon by a number of Resources Management, for example,
cause MSDs, and this will result, in asked OSHA to specify what it would
commentors (see, e.g., Tr. 4084, Tr. turn, in steps by proactive employers to
4697, Tr. 6188, Tr. 7011, Tr. 7111, Tr. consider an adequate response. The
protect workers at risk even before they Society questioned whether OSHA
7135, Tr. 7142, Tr. 9489, Tr. 10224, Tr. suffer an MSD incident. The reporting of
10547, Tr. 11076, Tr. 12366, Tr. 12297, would consider acknowledgment of
MSD hazards has therefore been added receipt of the report, evaluation of the
Tr. 13004, Tr. 14248, Tr. 14320, 20–406, to paragraph (i)(2) of the final rule.
Tr. 17623). For instance, Dr. Robert report, or action to prevent the
The specific process employers must condition from worsening as responses
McCunney of the American College of establish for reporting MSDs, their signs
Occupational and Environmental to the report. Others asked whether the
and symptoms, and MSD hazards is not response must be in writing or whether
Medicine stated: prescribed in this final rule. OSHA alternative methods of communication
In my experience as a physician, I have anticipates that the process will vary (e.g., oral) would be acceptable (see, e.g.,
been impressed with the knowledge that a lot from workplace to workplace, based on Exs. 30–3344, 30–3367, 30–3826).
of workers have about their jobs and the the size and nature of the workplace. A If an employee experiences persistent
recommendations that can be made to large facility with an on-site health care
improve it and reduce factors associated with
MSD symptoms and reports that
professional (HCP), for example, may condition to the employer but receives
illness * * * [Tr. 17633].
choose to handle reports through the no response, that employee is likely to
One aspect of employee participation HCP. Smaller facilities may elect to have consider the ergonomics program
included in the proposal was a means reports made directly to supervisors. ineffective. Such a loss of confidence in
for the employee to inform the employer The method of submitting a report is the program would clearly discourage
when MSDs or MSD signs and likewise not specified. Employers may future reporting and participation. If the
symptoms occur. Reporting is essential chose to adopt written, electronic, or employer communicates the results of
to allow the employer to become aware other systems for receiving reports. evaluations made based on the report, or
of those job situations where further (Note, however, that employers are informs the employee of any actions
action is necessary. For example, if an required by paragraph (v) to keep that are being taken as a result, the
employee experiences pain and stiffness records of employee reports, primarily reporting employee will better
in the shoulders and believes this to be for evaluation purposes.) understand the process and will be
the result of workplace factors, the The final rule requires the employer more likely to participate in the future.
employer cannot be expected to make to ensure that employees have ways ‘‘to OSHA also recognizes that employers
changes to the workplace to mitigate the promptly report’’ their MSDs, signs and will sometimes inform the employee
risk factors unless the employer is aware symptoms, and hazards. OSHA received that a given report requires no action,
of the existence of a problem. many comments on its use of the word e.g., when an MSD hazard turns out, on
Belief in the importance of employee ‘‘prompt’’ in the proposed rule (see, e.g., closer examination, not to warrant
reporting of MSDs and their signs and Exs. 30–3826, 30–3853, 30–4467, 30– further action. OSHA continues to
symptoms was expressed in a number of 3284, 30–3367, 30–4674). These believe that prompt responses to reports
comments on the proposed rule (see, commenters asked OSHA to clarify what are an essential part of the
e.g., Exs. 30–240, 30–1104, 30–2116, was meant by ‘‘prompt.’’ OSHA is using communication that must occur
30–2215, 30–2387, 30–2809, 30–3686, the word to indicate that timely between employers and employees in a
30–3765, 32–77–2, 30–3813, 30–3826, reporting is required; the effectiveness functioning ergonomics program, and
30–3849, 30–3859, 30–4185, 30–4468, of the standard and the employer’s final paragraph (i)(2) reflects this
30–4538, 30–4548, 30–4562, 30–4564, program would clearly be compromised conviction.
30–4837, 31–78, 31–174, 31–192, 31– if employees did not report their In order to provide flexibility to
227, 31–303, 31–353, 32–82–1, 32–85–3, problems quickly, at a time when employers to tailor communication

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68328 Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations

methods to the needs of a particular OSHA does not believe that providing employee access to information about
workplace, the method of providing a employee access to the ergonomics the ergonomics program. The proposal
response to employees who report is not standard is an unreasonable burden on specifically stated [64 FR 65799], and
specified. Employers may chose to employers, nor that providing the OSHA reiterates here, that information
adopt written, electronic, or other standard will confuse employees. of a personal nature such as the medical
systems for providing responses, Employee access to OSHA standards records of other employees, is not
although a record of the response must that affect them is a longstanding OSHA included in the information to which
be maintained, as required by paragraph practice (see, for example, OSHA’s employees are required to have access.
(v). rule’s governing lead exposure, noise Records of the occurrence of MSDs, for
OSHA proposed to require the exposure, and so on). Access to the example, can be presented in a general
employer to grant employees access to standard can be provided in several form and do not need to include
the standard and to include information forms. A printed copy of the standard personal details. General injury and
about the ergonomics program. OSHA may be made available, or an electronic illness information is already available
proposed this requirement to ensure version may be provided on CD or via to employees under the provisions of 29
that employees understood what the internet access to OSHA’s web site if CFR 1904.7 with regard to the Log and
OSHA standard required and how the employees have access to a computer. Summary of recordable occupational
employer’s program worked. The OSHA believes that the standard will injuries and illnesses.
program was to include assignment of not be confusing to employees because OSHA also is not convinced by
responsibilities in the ergonomics they will be trained to understand the comments suggesting that proprietary
program; job hazard analysis results; ergonomics program in their workplace information would be revealed if
hazard control plans; records of the and their role in it, in accordance with employees have access to program
occurrence of MSDs and reports of MSD paragraph (t) of the final rule. OSHA information. The information required
hazards; ergonomic program evaluation does not believe that employees will to be made available, on request, is
results; and lists of alternative duty jobs, flood their employees with requests to general information. For example,
according to the preamble to the obtain and review the final standard; although an employee’s detailed process
proposed rule [64 FR65799]. This instead, the Agency believes that the and production plans might be trade
provision recognized that information is standard is likely to be used primarily secrets, the information required by this
important to full employee as a reference to compare the provision relates only to the control of
understanding of and participation in functioning of their workplace ergonomic hazards. Technical
the ergonomics program. ergonomics program with the provisions information regarding machinery or
OSHA was requested by commenters of the standard to assure that the production methods is clearly not
to define more clearly what was meant program is functioning properly and is
by ‘‘access’’ to the standard (Ex. 32– required to be provided. Reports of MSD
in compliance. hazards and job hazard analysis results
337–1). The Dow Chemical Company, Because of the importance OSHA
for example (Ex. 30–3765) felt that are not confidential and are critical
attaches to employee access to the
employers should not be required to information for employees if they are to
standard, and the relative ease of
provide employees access to the participate meaningfully in the
providing it, the final rule adds the term
standard. Dow argued that employers ergonomics program.
‘‘ready’’ to the original access provision.
were required to comply with the This means that whenever an employee Providing employees with basic
provisions of the rule but should not be requests access to the standard, the information about the common kinds of
additionally burdened by providing employer must assure that ready access MSDs and their signs and symptoms is
access to the standard. In Dow’s view, is provided, i.e., that access is provided required by paragraph (d) of the final
employees could be confused by within a reasonable time and place. rule. The comments pertaining to this
receiving information both on the Because of the importance OSHA paragraph can be found in the summary
employer’s ergonomics program and the places on employees being able to easily and explanation for paragraph (d).
standard. understand the requirements of the OSHA has decided that information on
The National Coalition on Ergonomics standard, the final rule requires MSDs and their signs and symptoms is
(Ex. 32–368–1) expressed concern that employers to provide employees with a so basic, and so important to employees,
the employee participation provisions of copy of the summary of the standard that it must be provided as part of
the proposed standard would require that is required to be made accessible in employee participation as well. The
employers to provide employees with paragraph (d). Although the employer is final rule’s employee participation
access to the employer’s confidential required in paragraph (d) to make this provisions are only triggered when MSD
documents, which might address information available to employees incidents have been reported in a job
personnel issues, financial issues, or when they start a job, the employee that meets the action trigger. This means
safety audits. If this were the case, the should receive the summary at the time that the employees covered by final
Coalition argued, employees with the program is implemented due to the paragraph (i) are those who work in
grudges or those involved in labor fact that the exposures in the employees higher-risk jobs; these employees clearly
disputes would be able to harass their job have now been shown to exceed the need to be informed about MSDs and
employer by disclosing or threatening to levels in the Basic Screening Tool and their signs and symptoms. Thus
disclose proprietary information out of considerable time may have passed paragraph (i)(3) requires employers to
context or in a fashion that might have since the employee was informed that inform their employees with, at a
an adverse impact on the employer. The he or she had access to this information. minimum, the information sheet in non-
Coalition argued that this would The summary sheet provided in mandatory Appendix A. OSHA believes
discourage employers from performing Appendix B may be used for this that most employers will choose to
audits with appropriate depth and purpose. provide more detailed and specific
thoroughness. Concern was also The Agency is also not persuaded by information, such as information about
expressed that employee access might arguments that confidential company the MSDs and signs and symptoms
jeopardize medical confidentiality. (Ex. information or medical records would occurring among employees in jobs in
500–1–116). be distributed if employers provide their establishment.

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The fourth component of the 78–1, 30–4467, 30–541, 30–627, 30– when they are first identified. Safety
proposed employee participation 1355, 30–1545, 30–1697, 30–1717, 30– teams that are trained to quickly
section was a broad requirement that 2830). Employee involvement, although identify, assess, and fix a hazard would
‘‘ways to be involved in developing, commonly acknowledged as often be supplanted by the more cumbersome
implementing and evaluating each beneficial, was not needed in every process required by the standard.
element of the ergonomics program’’ be situation, and should therefore not be Whirlpool believes that the standard
provided to employees. This mandated, according to these requires the employer to obtain input
component, as explained in the commenters. For example, Dr. Kurt from people who may have nothing to
preamble to the proposal, was designed Hegmann stated: add to the process, which would
to allow employers to take advantage of Hazard remediation efforts are frequently increase the time and expense involved
the knowledge, skills, and abilities that enhanced and accelerated with employee without providing any assurance that a
workers could contribute to the participation since the ones doing the work better solution would be found (Ex. 30–
ergonomics program. 40 hours a week have often thought of the 4779).
The United Steelworkers concurred most effective solution. Yet, requiring Some employers interpreted the
with OSHA’s initial assessment that employee participation in this and other proposed requirement that employees
employee involvement in each element aspects of the rule is inappropriate, as these be involved in developing the program
of the ergonomics program was assumptions are not always true [Ex. 30– to mean that, where a current
4779].
appropriate. The union stated: ergonomics program already exists, the
Workers and their representatives have to
Employee involvement in supervisory employer would be required to develop
be involved in all aspects of the introduction training or the evaluation of a new program (Ex. 30–3765). The
and implementation of an ergonomics management leadership, for example, Edison Electric Institute stated that it is
program in [the] workplace. After all, it is were cited as program elements where impossible to consistently include
their bodies and lives that are on the line (Ex. employee involvement was not employee involvement in all elements
Tr. 11047). considered necessary (Ex. 32–78–1). In of the ergonomics program, and
Vagueness was a concern of some its comments on employee therefore recommended that the final
commenters. A number of interested participation, the American College of rule allow greater flexibility to
parties indicated that they did not Occupational and Environmental employers and only require that
understand what level of employee Medicine stated: employees ‘‘be provided adequate,
involvement would be required under * * * employee participation in the regular opportunities to be involved in
the proposed standard (see, e.g., Exs. design, modification, and evaluation of all developing, implementing and
30–3344, 30–3848, 30–4607, 30–4674, aspects of an employer’s operation is evaluating appropriate elements of the
30–4713, Tr. 4372). These commenters unnecessary. In most facilities, program’’ (Ex. 500–33).
stated that the proposal did not make it manufacturing or industrial engineers The Northwest Food Processors
effectively perform many aspects of their jobs Association expressed concern that
clear whether an employer would have without employee participation. OSHA’s
unlawfully limited employee engaging employees and their
requirement for employee participation designated representatives in the
participation if, for example, employee should be limited to participation on
suggestions for ergonomics ergonomics teams and participation in the
ergonomics program could be
improvements were rejected (see, e.g., job-specific problem solving process [Ex. 30– inappropriate in some cases because the
Exs. 32–78–1, 30–4467, 30–541, 30–627, 4468]. ergonomic interventions they suggested
30–652, 30–1355, 30–1697, 30–1717, might result in the elimination of jobs
Another commenter with a similar or otherwise negatively impact
30–4843, 601–x–1710). These view argued that an employer who is
participants argued that employers employment opportunities. The
able to eliminate MSD hazards without association stated that employers should
should not be required to follow the employee participation should not be
recommendations of employees or be given flexibility in the final rule to
required to consult employees (Ex. 30– determine the appropriate approach to
obtain their concurrence on a course of 4467).
action, and should retain the authority such situations (see, e.g., Tr. 12198).
Several practical problems about how Some employers were concerned that
to make all final decisions about the proposed requirements would
compliance with the requirements of the employees could disrupt the program or
actually work in different situations decline to participate in it. These
standard (see, e.g., Exs. 30–3934, 30– were also raised. Union Carbide
2208). commenters believe that employee
Corporation indicated that such representatives may attempt to use the
Some industry representatives stated involvement would be difficult to
that the level of employee involvement standard as a way to force unnecessary
implement when the ergonomics or costly changes for reasons unrelated
proposed by the requirement that program is developed on a corporate
employers involve employees in to safety (see, e.g., Exs. 30–2208, 30–
level: 1294, 30–3348). The Nabisco Company
developing, implementing and
evaluating each element of the program
Large employers such as Union Carbide was concerned that requirements for
develop their ergonomic programs on a employee participation could not be met
was excessive (see, e.g., Exs. 32–368–1, corporate basis using professional staff. Of
32–78–1, 30–4467, 30–240, 30–276, 30– if employees were unwilling to
necessity, they rely on employees to assist in participate in the program. The
368, 30–429, 30–434, 30–541, 30–562, implementing the program, and employee
30–652, 30–1070, 30–1294, 30–1671, company stated:
evaluation of the program is always welcome.
30–2830, 30–2846, 30–2991, 30–3344, But where programs are developed on a Nabisco strongly supports the concept of
30–3348, 30–3784, 30–3951, 30–4185, corporate basis, it is sometimes difficult to employee involvement and encourages
30–4713, 32–21–1, 32–120–1, Tr. 11679, involve employees in that development [Ex. participation of employees at all levels of our
30–3784]. organization. However, this requirement
500–33, 30–3744). In the view of these assumes that employees and their
commenters, OSHA did not demonstrate The Whirlpool Corporation believes representatives will readily volunteer to
that this level of employee involvement that adhering to the requirements of the participate in a management program. It has
was necessary for an effective standard would hinder the company’s been the experience within some of our
ergonomics program (see, e.g., Exs. 32– ability to respond to ergonomic hazards locations that union representatives do not

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68330 Federal Register / Vol. 65, No. 220 / Tuesday, November 14, 2000 / Rules and Regulations

always encourage employee participation in proposed ergonomic standard will 4702, 30–4818, 30–4843, 31–266, 31–
management programs [Ex. 30–4201]. complement the already agreed-upon 310, 31–332, 32–211–1, 32–234–2, Tr.
procedures in place to address safety and 4320, Tr. 4908, Tr. 15537, Tr. 8896–
A common concern expressed by health issues [Tr. 3570].
employers with unionized employees 8897, 30–3345, 500–1–27, 500–1–28,
was that the requirements of the A number of labor representatives felt 500–1–29, 500–1–42, 500–1–79, 500–1–
proposed standard for employee that the proposed requirement to 86, 500–1–106, 500–1–112, 500–1–113,
involvement could serve to disrupt involve employees and their designated 500–1–114, 500–1–116, 500–1–181,
established collective bargaining representatives in developing, 500–1–117, 500–1–124, 500–1–125,
relationships (see, e.g., Exs. 30–3853, evaluating and implementing each 500–1–193, 500–1–248, 500–1–249,
30–3765, 32–337–1, 30–323, 30–345, element of the ergonomics program 500–1–307, 500–1–329, 500–1–331,
30–538, 30–574, 30–1022, 30–1113, 30– should be modified. Some parties 500–1–411, 500–1–423, 500–1–442,
1349, 30–1567, 30–1616, 30–1652, 30– expressed the opinion that the standard 500–177–2, 30–1942, 30–3236, 30–3339,
2426, 30–2725, 30–2773, 30–3086, 30– should be revised to add employee 30–4535, 30–2600, 30–2592, 30–2577,
3184, 30–3284, 30–3344, 30–3951, 31– representatives to each provision where 30–2583, 30–2256, 30–2259, 30–2201,
332, 500–1–128, 32–266–1, 30–3841). rights are granted to employees. For 30–2243, 30–2260, 30–2272, 30–3428,
Many companies and their unions, example, the proposed job hazard 30–3157, 30–3158, 30–3196, 30–3623,
according to these commenters, have analysis provision would require the 30–2550, 30–2543, 30–2529, 30–2535,
well-established contractual employer to ask employees whether 30–4583, 30–2896, 30–2894, 30–2886,
mechanisms for addressing employee performing the job poses physical
30–2868, 30–2863, 30–2862, 30–2854,
safety and health issues. A typical difficulties; in the view of these
30–4668, 30–4302, 30–2106, 30–2404,
example is a contract provision commenters, this should be changed so
30–2405, 30–2407, 30–2406, 30–2412,
establishing a joint labor-management that employees and their designated
30–2292, 30–2293, 30–2300, 30–2287,
safety committee. According to the representatives should be consulted.
30–2447, 30–2370, 30–2605, 30–2614,
views of these commenters, requiring The unions also suggested that the
30–2772, 30–2791, 30–2793, 30–2828,
the employer to engage individual proposed control obligation section be
30–2831, 30–4058, 30–2474, 30–2487,
revised to add designated
employees in the ergonomics program 600–x–34, 600–x–36, 30–4762, 30–2901,
representatives to the requirement to ask
would stimulate resentment and conflict 30–5036, 30–4566, 30–1971, 30–1972,
employees for control recommendations
by forcing the employer to circumvent 30–1973, 30–2571, 30–4541, 30–4786,
(see, e.g., Exs. 32–339–1, 32–182–1, 32–
the union. PEPCO, for example, 30–5027, 601–x–1370, 601–x–1698,
198–4, 32–210–2, Tr. 3566).
expressed this view: Another commonly expressed 601–x–1712, 601–x–1439, 601–x–1440,
PEPCO, like most utility companies, has a concern of the employer community 601–x–1441, 601–x–1442, 601–x–1444,
long-established relationship with a was that the proposed provision that 601–x–212, 601–x–213, 601–x–1368,
collective-bargaining agent that represents employers provide employees ways to 500–1–397, 30–3839, 30–4247, 30–4486,
most of our employees (International 601–x–1711, 601–x–1360, 30–3858, 30–
be involved in developing,
Brotherhood of Electrical Workers, AFL– 3923, 30–4778, 30–2432, 30–3850, 30–
CIO). PEPCO has well-established contractual
implementing and evaluating each
element of the ergonomics program 2593, 30–3728, 30–2270, 30–1995, 30–
mechanisms for addressing employee safety
would conflict with provisions of the 2209, 30–3036, 30–2832, 30–2472, 30–
and health issues. We have joint labor-
management safety committees and include National Labor Relations Act (NLRA) or 2439, 30–2438, 30–2397, 30–2389, 30–
our union in accident investigations. The with state laws addressing labor 4300, 30–4326, 30–1076, 30–4712, 30–
proposal would interfere in established relations (see, e.g., Exs. 30–296, 30–323, 2103, 30–3806, 30–1730, 30–1446, 30–
relationships such as these, for in several 30–328, 30–345, 30–368, 30–377, 30– 3220, 30–3235, 30–4335, 30–4337, 30–
instances, it would require the employer to 397, 30–523, 30–532, 30–536, 30–380, 4362, 30–4394, 30–4443, 30–4528, 30–
deal with or involve not just the employee 30–538, 30–540, 30–541, 30–562, 30– 4709, 30–1651, 30–2410, 30–2289, 30–
designated representative, but also the 3877, 30–2601, 30–3160, 30–3598, 30–
574, 30–589, 30–594, 30–598, 30–627,
individual unionized employee. This places 2912, 30–1332, L30–5025, 30–4280, 30–
the employer in the position of having to deal
30–630, 30–632, 30–648, 30–688, 30–
1022, 30–1113, 30–1131, 30–1216, 30– 1416, 30–1453, 30–1457, 30–1616, 30–
apart from, or even circumventing, the union
in order to avoid the risk of citation [Ex. 31– 1294, 30–1296, 30–1332, 30–1349, 30– 1998, 30–1999, 30–2131, 30–2142, 30–
332]. 1355, 30–1356, 30–1357, 30–1358, 30– 2184, 30–2233, 30–2250, 30–2304, 30–
1367, 30–1370, 30–1413, 30–1545, 30– 2395, 30–2396, 30–2423, 30–2431, 30–
Consolidated Edison Company of 2736, 30–2829, 30–2889, 30–2891, 30–
1551, 30–1552, 30–1567, 30–1584, 30–
New York urged OSHA to address this 2992, 30–3003, 30–3254, 30–3334, 30–
1616, 30–1652, 30–1683, 30–1697, 30–
issue by indicating that the obligations 3393, 30–3551, 30–3597, 30–3791, 30–
1717, 30–1727, 30–1898, 30–1901, 30–
for employee involvement in the final 3882, 30–3936, 30–3944, 30–3974, 30–
2049, 30–2050, 30–2054, 30–2061, 30–
rule could be met by affording those 3977, 30–3999, 30–4464, 30–4532, 30–
2062, 30–2133, 30–2134, 30–2427, 30–
rights to the union (Ex. 30–2816). Alan 4539, 30–4544, 30–4629, 30–4657, 30–
2499, 30–2506, 30–2645, 30–2773, 30–
Ferranto of the National Association of 4667, 30–4669, 30–4980, 30–5034, 30–
2799, 30–2811, 30–2812, 30–2813, 30–
Letter Carriers, however, did not believe 5076, 30–5095, 30–5101, L30–4952,
2814, 30–2824, 30–2830, 30–2896, 30–
that collective bargaining relationships L30–4953, L30–5096, 30–3497, 30–
2990, 30–3061, 30–3062, 30–3086, 30–
would be affected by the proposed rule: 3095, 30–3131, 30–3174, 30–3177, 30– 1938, 30–1989, 30–2217, 30–2384, 30–
Inevitably, when a proposal of this nature 3210, 30–3231, 30–3233, 30–3284, 30– 2403, 30–2403, 30–2416, 30–2480, 30–
is put forth, there are those who will argue 3336, 30–3344, 30–3716, 30–3745, 30– 2486, 30–2555, 30–2556, 30–2607, 30–
that collective bargaining will be affected. As 3765, 30–3845, 30–3853, 32–337–1, 32– 2639, 30–2734, 30–2735, 30–2873, 30–
the safety and health officer for a union 368–1, 30–3349, 30–3353, 30–3356, 30– 2878, 30–3578, 30–3742, 30–3776, 30–
which represents almost a quarter million
postal employees, I’m here to say that this
3364, 30–3367, 30–3473, 30–3513, 30– 4325, 30–4452, 30–4790, L30–4998). A
proposal will not affect our collective 3622, 30–3723, 30–3728, 30–3819, 30– discussion of the relationship between
bargaining agreement with the postal service. 3849, 30–4122, 30–4143, 30–4153, 30– the requirements of this final rule and
In fact, we are satisfied that the employee 4158, 30–4167, 30–4187, 30–4355, 30– the NLRA can be found in the Legal
involvement envisioned under OSHA’s 4499, 30–4607, 30–4628, 30–4674, 30– Issues section of this preamble.

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As has already been discussed, the developing, implementing, and the new equipment or to provide
potential value of employee evaluating the program; however, appropriate training. It is in these types
contributions to the development, reference to ‘‘each element’’ of the of situations, as well as in the initial
implementation, and evaluation of an program has been deleted. This change creation of the ergonomics program,
ergonomics program is well-established. has been made to grant the employer where the record demonstrates that the
The intent of the proposed requirement flexibility to adapt employee involvement of employees can prove
that employees have ways to be involvement to the circumstances in a invaluable.
involved in developing, implementing, given workplace. OSHA is convinced In response to those employers who
and evaluating each program element that the proposed level of employee were concerned that the proposed
was to allow employers to take involvement is not practical or justified standard would necessitate
advantage of this potential value to in every instance. The Agency never discontinuation of successful programs
construct and administer the most intended for employee involvement to that did not incorporate employee
effective program possible. pervade every aspect of the program. As involvement in their development,
A requirement that employees be explained in the preamble to the OSHA does not intend for the
involved in the program in no way proposal, the ‘‘elements’’ referred to requirement in the final rule for
abrogates the authority of the employer were the broad ergonomics program employee participation in the
to manage the workplace or administer elements (e.g. training, program development of ergonomics programs to
the ergonomics program. Regarding evaluation). A requirement for employee apply retroactively to programs that
employee suggestions, this general participation in each component of have already been established. The
requirement of the final rule for these elements, such as supervisory Agency believes that such a requirement
employee involvement requires only training, was not envisioned. OSHA would result in an unnecessary
that employers provide a reasonable considers, however, that even greater expenditure of resources to duplicate
opportunity for employees to be heard, latitude is appropriate in order to allow the existing program. Rather, OSHA
for them to be involved, and for their the employer to most effectively believes that the evaluation of the
suggestions to be fairly considered. An construct and administer the effectiveness of the existing program
employee recommendation made as part ergonomics program. For example, a will result in the identification and
of this process, in and of itself, does not small employer could adopt a training correction of any deficiencies which
oblige the employer to take action. For presentation developed by a trade may currently exist, and that employee
example, if an employer asks employees association even if employees in that involvement in the ongoing
in a problem job for recommendations workplace did not participate in the development of the program will result
about eliminating or controlling MSD development of the presentation. The in continuous improvement in the
hazards, the employer is not compelled Agency believes, however, that such program over time. Moreover, OSHA
to adopt any of the suggestions that the circumstances are the exception rather anticipates that the grandfather clause
employees may make. Rather, this is an than the rule, and has retained the in paragraph (c) of this final rule will
opportunity for the employer to draw on requirement for employee participation apply to many existing programs.
the knowledge of these workers in A successful ergonomics program also
in the development, implementation,
identifying and examining alternative requires employee involvement in its
and evaluation of the ergonomics
approaches to addressing hazards. The implementation. Clearly, hazard
program due to the evidence of the
suggestions of employees may be used controls cannot be effective if workers
value of worker involvement in each of
to supplement those of professional staff do not use them, and MSD management
these stages in the administration of the
or consultants. cannot be effective if injured workers do
program.
Along with the authority for making not report their injuries. A program
decisions, the employer retains the OSHA considers that the development cannot fulfill its objectives if it exists
responsibility for ensuring the of an ergonomics program is not an only on paper, and is not applied in the
effectiveness of the program. If event, but a continuing process. The workplace. Ample opportunity is
consultation with employees about the work environment is rarely static; work provided to demonstrate employee
effectiveness of the program reveals, for methods and equipment often change involvement in the implementation of
example, that training has not been over time, and as a result the physical the program through compliance with
understood, then this deficiency must demands upon workers and associated the specific requirements of the
be promptly corrected (see paragraph (u) MSD hazards can change as well. standard. For example, if a job has been
of the final rule). Likewise, hazard control methods and found to be an MSD hazard due to
OSHA realizes that the input of training procedures can evolve over repetition, and the appropriate control
employees will not in every instance time. Changes in the workforce can also method has been determined to be
prove to be beneficial to the ergonomics impact the effectiveness of an rotating jobs so that no single employee
program. Nevertheless, the evidence in ergonomics program. The program may spends more than three hours per day
the record shows that contributions to require adjustments to account for these in that job, the employer must ensure
the success of ergonomics programs changes. For example, if ergonomics that employees carry out the job rotation
have consistently been made by training is conducted in English in a in order for it to be effective as a control
participating employees. The workplace where the employees speak measure.
involvement of employees need not be and understand English, it may be Employee involvement in the
cumbersome or time-consuming. Brief effective. If that employer subsequently evaluation of the ergonomics program is
discussions are often sufficient to elicit hires employees who do not understand also needed to assure program
employee input. English, an adjustment would be effectiveness. For instance, workers in
The proposal would have required necessary to provide the training in a problem jobs are in the best position to
that employees have ways to be language the employees understand. determine if control measures are
involved in developing, implementing, Similarly, if new equipment is brought successfully controlling MSD hazards,
and evaluating each element of the into a workplace, modifications to the or if new hazards have been created.
ergonomics program. The final rule ergonomics program may be necessary Employees are also best able to
requires that employees be involved in to control MSD hazards related to use of recognize when training is inadequate

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or when opportunities for reporting of explains that if the job hazard analysis This requirement is essentially identical
MSD hazards or MSD signs and shows that hazards need to be reduced, to the job hazard analysis obligation in
symptoms are unsatisfactory. As with the job is terms a ‘‘problem job’’ under Section 1910.917 of the proposed rule.
employee involvement in the this standard. Like the proposal, the final rule does not
implementation of the program, The proposal’s job hazard analysis require the employer to perform a job
opportunities to demonstrate employee provisions listed the steps required to hazard analysis for every reported MSD,
involvement in the evaluation of the analyze a job, and contained a list of 20 but only for those that meet screening
program can be found in the specific physical work activities and conditions criteria. Unlike proposed Section
requirements for evaluation found in the associated with particular risk factors. 1910.917, however, Paragraph (j)(1) also
standard, such as the requirement of The proposal did not provide specific permits an employer to rely on a job
paragraph (m)(4) for consultation with guidance on how to determine whether hazard analysis that was conducted
employees regarding the effectiveness of the risk factors presented an MSD previously for the job, provided that the
controls and the requirement of (u)(1)(i) hazard in any particular case. Several analysis was performed in accordance
for consultation with employees on commenters argued that the proposal’s with the procedures of this paragraph (j)
effectiveness and problems with the approach was vague and asked for more and is still relevant to the job (i.e., the
program. specific measures for identifying MSD job has not been altered in the meantime
OSHA does not believe that employee hazards (see, e.g., Exs. 500–197, 30– in a way likely to change or increase
participation in the ergonomics program 2435, 30–973, 30–1274, 30–2426, 30– exposure).
under this final rule will result in 1350, 30–2428, 30–2986, 30–3000, 30– The purpose of job hazard analysis is
adverse repercussions on collective 3086, 30–3853, 30–326, 30–546, 30– threefold: (1) To identify all the
bargaining relationships. The final rule 4189). Others (e.g., Ex. 30–3593) thought ergonomic risk factors that are
also does not require employers in any that the requirements in the proposed associated with the job being analyzed;
way to circumvent any process that may job hazard analysis section were too (2) to measure the duration, frequency
currently exist for employer specific, and still others stated that the and magnitude of employee exposure to
communication with the employee. The table oversimplified the complex these risk factors; and (3) to evaluate the
rule does not specify a precise interactions between various risk factors risk factors identified, individually and
mechanism that must be used for in a job and urged OSHA to eliminate in combination. This analysis allows
employee participation. Where a system the table of physical work activities employers to determine if the job poses
is already in place, such as a union/ from the final rule (see, e.g., Ex. 30– an MSD hazard to employees, i.e., is a
management safety and health 3436). The argument made by several ‘‘problem job,’’ as that term is used in
committee, nothing in this rule commenters was that the work activities the standard. The results of the job
prohibits an employer from using that and risk factors included in the table in analysis, which identify the extent of
system to meet its employee the proposal would be hard for the risk factors present in the job, can
participation obligations. employers to identify in the workplace later be used as the benchmark against
(see, e.g., Exs. 500–197, p. III–12, 30– which to measure the effectiveness of
Paragraph (j)—What Must I Do To
3745, 30–2134, 30–2426, 30–2919). controls.
Determine Whether a Job That Meets Although some provisions in final
That Action Trigger Poses an MSD The NIOSH publication, Elements of
paragraph (j) are essentially the same as Ergonomics Programs (Ex. 26–2),
Hazard to Employees in That Job? the corresponding sections of the describes a job hazard analysis as an
This paragraph addresses the job proposed rule, several have been revised examination of the workplace
hazard analyses employers must in response to comments that the conditions and individual elements or
perform to identify those MSD hazards proposal did not provide enough tasks of a job to identify and assess the
that must be controlled under this final information on how employers could risk factors that are reasonably likely to
standard. Paragraph (j)(1) of the final determine whether MSD hazards were be causing or contributing to the
standard requires employers with jobs present. In particular, the inclusion of reported MSDs. OSHA received many
that meet the standard’s two-part action the tools in this rule provides employers
trigger—i.e., who have employees who comments supporting its proposed
with much more assistance in
have experienced an MSD incident and approach to job hazard analysis (see,
compliance than the job hazard analysis
who work in jobs that have risk factors e.g., Tr. 5342, Tr. 8978, Exs. 37–1, 37–
provisions in the proposal (proposed
present at levels that meet the screen in 25, 500–218, 500–137–1–1). OSHA thus
sections 1910.917 and 1910.918) would
Table W–1—to conduct a job hazard believes that the requirements of
have, while preserving a high degree
analysis of the job to determine whether paragraph (j) are consistent with the
flexibility for employers who do not
it presents an MSD hazard to objectives and steps of job hazard
choose to use any of the listed tools. In
employees. (Employers who qualify for analysis as the process is currently
addition, the final rule has been
and choose to use the Quick Fix option applied by employers with effective
modified to allow employers additional
contained in paragraph (o) of the ergonomics programs.
flexibility in several aspects of the job The quality of the job hazard analysis
standard must follow the procedures of hazard analysis process. The following performed is critical to the success of
that paragraph and are not required to discussion describes each provision of the entire ergonomics program, as the
conduct the job hazard analysis paragraph (j) of the final rule and United Auto Workers noted:
specified in this paragraph (j).) OSHA’s responses to the comments
Paragraph (j)(2) tells employers what received on the proposed job hazard The heart of an ergonomics program is the
steps they must include in a job hazard analysis provisions. measurement of risk factors on jobs. The
analysis, and paragraph (j)(3) lists the presence of risk factors demonstrates that a
methods of job hazard analysis that are Paragraph (j)(1) reported MSD is related to a job or
workstation, while their absence suggests the
acceptable under the rule, including Paragraph (j)(1) of the final rule states MSD arose from other causes. Risk factors
referring to a number of tools, included that employers must conduct a job predict MSDs will arise in the future, even
in Appendices D–1 and D–2 of the hazard analysis to determine whether a if none are currently reported. And,
standard, that employers can use to job that meets the action trigger presents reductions in risk factors indicate that a job
conduct their analyses. Paragraph (j)(4) an MSD hazard to employees in that job. has been improved (Ex. 500–220).

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A job hazard analysis can also rule out has resulted in a decrease of almost 40% the same risk factors as hired
jobs that do not need to be controlled, in workers’ compensation costs (mostly ergonomists and to successfully identify
and can provide employers with the due to reductions in MSD hazards), with solutions.
information they need to prioritize their premium costs declining from $103,824 The job hazard analysis required by
efforts on the most hazardous jobs or to $61,000, which Mr. Carroll described Paragraph (j) of the final rule serves a
tasks that pose the most severe as ‘‘not chicken feed for a small very different function from the Basic
problems. Similarly, a job hazard company’’ (Ex. 502–17). Based on this Screening Tool in Table W–1 of the
analysis is an efficient way to help record, OSHA agrees with those who standard. The Basic Screening Tool is a
employers focus their resources on the commented that an appropriate job simple hazard identification tool that
most likely causes of a problem. For hazard analysis actually limits MSD can be used to identify jobs with the
example, after analyzing a job, the hazard control costs, either by potential to expose workers in them to
employer may find that the amount of determining that no MSD hazard is ergonomic risk factors at levels that may
repetition is acceptable if the force and present or by identifying risk factors pose an MSD hazard. It cannot take the
awkward posture in the job can be that, in turn, allow the company to place of a job hazard analysis. It can
controlled sufficiently. focus on the activities that are only point to possible problems with the
Despite these benefits, several associated with the MSD incident. job; it takes a job hazard analysis to
commenters (see, e.g., Exs. 30–1393, 30– The UAW also has experience with determine whether controls are actually
1275, 30–3061, 30–3062) were small companies that have implemented necessary. A job hazard analysis
concerned that the standard’s ergonomics programs: identifies specific risk factors, or
requirements for job hazard analysis combinations of risk factors, that need
Employers in the many small facilities
would be too costly. Typical of these have voluntarily or through the collective to be controlled.
comments was one from the Navy bargaining process, adopted a common Paragraph (j)(1) also allows employers
Federal Credit Union: approach to preventing ergonomic injuries to rely on a previously conducted
and abating ergonomic risk factors in the analysis of a job if it was performed in
The requirement for employers to perform
job hazard analyses is extremely onerous and workplace. The program includes all accord with the requirements of this
costly. It requires every employer to perform components established in the proposed paragraph, and the analysis is still
hazard analyses on the same or similar jobs standard, except appropriate medical relevant. This provision responds to
within their industry. OSHA has already management and that can be established concerns expressed by some
amassed a substantial amount of data on the without hindering the established processes participants that employers that the
likely causes and remedies of MSDs that at the facilities (Ex. 500–220).
standard would require significant
occur in the workplace. The ergonomics Other commenters argued that the action every time a new MSD occurred,
standard should permit employers to rely on proposed approach to job hazard even if a job hazard analysis that
OSHA’s identification of hazards and
analysis would require the employer to complied with the standard had already
possible remedies for problem occupations
(Ex. 30–1273). hire a consultant (see, e.g., Exs. 30– shown that no additional controls are
3783, 30–2810, 30–3336, 30–715, 30– necessary (e.g., Ex. 30–3956). To take
Other employers, such as August Mack 2834). For example, the Texas advantage of this provision, the
Environmental, Inc., disagreed, Association of Business and Chamber of employer must confirm that the job is
however: Commerce stated: still being performed in the same way,
I do agree that conducting a hazard Because the proposed standard and that the same risk factors are still
analysis, if done properly and very inadequately defines the alleged ‘‘risk present. Any changes to the work
objectively, requires significant resources. methods or equipment may have
factors’’ or ‘‘conditions or activities’’ or even
However, if the result were to find that MSD
to provide a complete list of the ‘‘conditions introduced new MSD hazards, and a
risk factors were not prevalent, and the need
or activities’’ during which the ‘‘MSD new job hazard analysis would then be
for full implementation of a comprehensive
hazards’’ allegedly occur, small employers required. Additionally, if new
ergonomics program were eliminated, this
will be forced to seek assistance—at employees are present, the employer
[expense] could easily be justified. This is
due to the estimated amount of resources substantial cost—from those with experience must make sure that no new employee
required for the hazard analysis compared to and knowledge in the ergonomics field. In
is performing the job in a different way
the resources required to implement a addition, the proposed standard does not
adequately explain which controls will abate or has physical characteristics that
formalized ergonomics program and maintain expose that employee to risk factors not
it over time (Ex. 30–240). particular hazards and they will again be
forced, and as encouraged by OSHA, to seek present for others. For example, a
Other record evidence also makes clear expensive outside help (Ex. 30–2810). particularly tall or short employee might
that the cost of MSDs far exceeds the need to work in a more awkward
But contrary evidence is also in the
costs of controlling MSD hazards (Tr. position, or reach further than others in
record:
7122, Tr. 10225, Tr. 4811). order to perform the same tasks. If that
Similarly, some commenters also I am not an ergonomist and I do not believe is true, the employer must analyze the
expressed concern that performing job you need an ergonomist to do a general check job to identify the risk factors affecting
hazard analysis could be too difficult for on the risk factors of most jobs, that most
that employee.
workers, especially if you give them a
small companies (see, e.g., Exs. 601–x– The ‘‘new employee’’ situation
framework for thinking about and analyzing
1, 30–3469, 30–2846). However, OSHA’s their own job, can tell you where those risk described above is one of the scenarios
experience is that small companies can factors are present, where they’re not present, addressed by the Note to paragraph (j).
and do conduct these analyses where they’re present in large quantities That note allows the employer to limit
effectively. For example, Wood Pro versus small quantities. You do not need to the job hazard analysis (and response) to
Industries in Cabool, Missouri is a VPP be an ergonomist to do that. Many workers the employee who reported the MSD
employer with only 100 employees. Its are extremely capable, if you give them a incident when the MSD hazard is
safety director (David Carroll, who also framework for analyzing their own jobs limited only to that employee. Evidence
wears a number of other hats) began a * * * (Tr. 13764). in the record points to situations in
safety and health program that A recent study in the record (Ex. 500– which the physical work activities or
identified and controlled ergonomic risk 71–64) reports that trained workers were conditions of a job pose a risk to only
factors several years ago. The program able, in 65 to 85% of cases, to identify a single employee (see, e.g., Exs. 30–

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4709, p. 6, 500–145, 30–2208). For • Obtaining information about the job Hazards cannot be addressed efficiently
example, a five-foot tall employee in a and problems in it from employees who without an accurate evaluation of the
commercial bakery may report a back or perform the job; situation. The line employee is one of the
best sources of this information * * * [those
shoulder MSD related to extended • Observing employees performing employees are] local process experts (Ex. 3–
reaches involved in sorting rolls. the job; 232).
However, other, taller, employees who • Identifying specific risk factors in
have performed the job for several years the job; and The record contains considerable
do not have (and never have had) • Evaluating those factors (i.e., their evidence that many employers talk to
difficulty performing the physical work employees to get insight into the job
duration, frequency and magnitude) to
activities of the job. In this case, the requirements that only those who work
determine whether they are causing or
employer could conclude, based on the at the job can provide (see, e.g., Exs. 30–
contributing to the problem.
job hazard analysis, that the problem is 3755, 30–3748, 500–117, 500–137–1–1,
The job hazard analysis requirements 500–137–6–1, 500–218, 500–220, Tr.
limited to the injured employee. The of the final rule reflect these steps.
employer then may limit the further 3890, 13808). These commenters stated
Unless the employer qualifies for and that talking with employees is often the
action required by the standard (e.g., chooses the Quick Fix Option in best way to identify the causes of the
analysis, control, training, paragraph (o), the employer must use problem and to identify the most cost-
recordkeeping, evaluation) to that the job hazard analysis process in this effective solutions to it (see, e.g., Ex. 26–
employee’s workstation. paragraph to determine whether the 1370). One stated:
A similar situation could occur where physical work activities and job
Employee participation is vital to this
one employee is much taller than others conditions pose an MSD hazard to element. Job Safety Analysis (JSA) [another
in the same job. The tall employee workers in that job. Jobs that pose an name for job hazard analysis] has been part
reports persistent back pain that rises to MSD hazard to employees are called of the safety vocabulary for many years.
the level of an MSD incident, and the ‘‘problem jobs,’’ and must be controlled Many employers are working with the
employer observes that having to bend in accordance with paragraphs (k) workers to determine the safest way to do a
much further than the other employees through (m) of this final rule. job. Controlling a hazard can be a productive
to work at the work surface is likely to When employers perform a tool in many ways. Minimize lost time;
reduce training and overtime; and a positive
have caused the back problem. Allowing comprehensive job hazard analysis, outlook from the workplace. A worker who
employers to limit the analysis and their goal is to identify those ergonomic is set up to succeed is a productive worker.
control to a single employee if the risk factors that impose biomechanical A worker who has to jury rig or perform a
analysis reveals that the problem is stress on the worker and evaluate task that leaves him or her in discomfort at
unique to that employee is consistent magnitude, frequency, and duration as the end of every shift can not be productive
with the approach taken by several required by paragraphs (j)(2)(ii) and for a prolonged period of time. (Ex. 500–137)
commenters who have successful (j)(3). Once the risk factors and their Discussions with employers who have
ergonomics programs (see, e.g., Exs. 30– magnitude, frequency, and duration set up ergonomics programs in response
1071, 30–3755, 30–3745). As one of have been determined, the employer is to corporate settlement agreements with
these commenters reported, ‘‘we have required to assess whether the risk OSHA also confirm the need for
often modified the job to fit that one factors identified pose an MSD hazard employee input into the job hazard
individual—however, modification was to employees. The standard defines an analysis process (Ex. 26–1420). A
not needed for co-workers at similar or MSD hazard as the ‘‘presence of risk number of these employers said that
identical duty stations’’ (Ex. 30–1071). factors in a job at a level of magnitude, employees need to be involved in the
frequency, and/or duration that is analysis and control process because
Paragraph (j)(2) reasonably likely to cause MSDs that ‘‘no one knows the job better than the
Paragraph (j)(2) of the final rule result in work restrictions or medical person who does it’’ (Ex. 26–1420, See
describes the steps the employer must treatment beyond first aid.’’ Ergonomic also Ex. 3–164). Other evidence echoed
take in performing the job hazard risk factors are the elements of MSD this concept, confirming that employees
analysis. Paragraph (j)(2)(i) states that hazards, and they often work often have the best understanding of
the employer must talk to the employees synergistically. That is, jobs that have what it takes to perform each task in a
who perform the job, and their multiple risk factors pose a greater risk, job, and thus, what parts of the job are
representatives, about tasks that may all things equal, than a single risk factor. the hardest to perform or pose the
relate to the MSD incident. Paragraph Paragraph (j)(2)(i) greatest difficulties: ‘‘The people that
(j)(2)(ii) requires the employer to are closest to doing the work seem to
observe the employees performing the Paragraph (j)(2)(i) of the final rule come up with the best solutions.’’ Tr.
job to identify the risk factors and assess requires employers to talk with 4697.
the extent of their exposure (its employees and their representatives In addition to helping to ensure that
magnitude, frequency, and duration) to about the tasks the employees perform the job hazard analysis is accurate,
those risk factors. The employer must that may relate to MSDs. Much has been involving employees can make the job
include all of the employees performing written about the value of employee hazard analysis and control process
the job, or a sample of those with the participation in the identification of risk more efficient, because employees can
greatest exposure to risk factors, in this factors and controls at the hazard help employers pinpoint the causes of
analysis. analysis stage (see, e.g., Exs. 3–232, 26– problems more quickly. Employees
4, 26–11, 26–15, 26–18, 26–19, 26–21, often come up with some of the most
According to the record (see, e.g., Exs. 26–1370, 26–1420, 32–339–1–42, 38– practical, no-cost or cost-effective,
26–2, 26–5, 26–1370, 37–1, 37–25) 32). Studies have shown substantial solutions (see, e.g., Ex. 26–Tr. 1370,
effective job hazard analyses have the improvements in health and safety after 2136, 2582, 12297).
following steps or activities in common: participatory ergonomics programs are Some participants opposed this
• Obtaining information about the implements (e.g. Ex. 32–38). A comment provision, however (see, e.g., Exs. 30–
specific tasks or actions the job from Johnson & Johnson sums up the 3344, 30–74, 30–3557). Several
involves; opinion of many participants: expressed concern that asking

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employees about ergonomic problems posed to minimize bias. For example, the discussion required by paragraph
would influence the employees’ questions like ‘‘Are parts of your job (j)(2)(i) because some things may be
response, with the result that specious more difficult than others?’’, ‘‘Does your overlooked in the discussion, or
problems would be identified: injury hurt more when performing employees may not remember to
This section is a regulatory ‘‘Field of certain tasks?’’, or ‘‘Could you mention certain activities (particularly
Dreams.’’ Ask it and they will answer. Sooner recommend improvements to the job?’’ those that are short term).
or later, for reasons good, bad, or indifferent, tend to elicit useful information and do There are several ways employers
somebody will answer ‘‘yes’’ [when asked if not prejudge the answer (Exs. 32–339– may comply with the observation
the job presents physical difficulties]. (Ex. 1–82, 500–121–61). In any event, the requirement in paragraph (j)(2)(ii) of the
30–74) employee input is only one aspect of the standard, and participants described
Another participant was concerned that job hazard analysis. The employer need how they integrate job observations into
employee comments would vary from not place great weight on the views of their job hazard analysis (see, e.g., Tr.
employee to employee and thus not be a single employee when those views are 8171, Tr. 11133). First, employers may
useful (Tr. 8861). Finally, several inconsistent with the rest of the simply observe employees perform the
commenters argued that the employer information obtained during the job tasks; this is often all it takes to
and employee should not discuss the analysis. identify the problem. For example,
risk factors present in ‘‘normal job The final rule adds the language ‘‘and watching a data processor reaching to
activities’’ because doing so might cause employee representatives’’ to this use the mouse because the keyboard
employees to feel that there should be provision consistent with the practice in tray is not long enough to accommodate
no stress on the job (Exs. 30–3354, 30– the rest of the rule to include the it may be all it takes to identify the
3848). ‘‘employee representative’’ language likely cause of the employee’s shoulder
OSHA continues to believe that included in each provision of the pain. Videotaping the job is another
employees’ views add significant value standard where OSHA is requiring such common practice for observing jobs (see,
to the job hazard analysis process and, participation. The proposal took a more e.g., Ex. 32–198–4). A number of
in fact, that not asking employees about general approach to this issue, i.e., it employers, especially in situations
their perception of the tasks that may would have required employers to where the work activities are complex
cause MSDs would be akin to decide when including employee or the causes of the problem not be
performing a quality survey without representatives was important in easily identifiable, report that they
involving the customer. Therefore, the ‘‘developing, implementing, and videotape or photograph the job (see,
final rule requires the employer to talk evaluating the employer’s program’’ (64 e.g., Ex. 26–1370; Tr. 3059, 4696, 6979,
with the employees who perform the FR 66070). 7075, 5805, 5540, 10183).
task when conducting this step of the A few commenters also stated that the The value of simply looking at people
job hazard analysis process. appropriate focus for a job hazard performing a job was demonstrated
OSHA is, moreover, providing enough analysis is the task rather than the job graphically at the hearing. A law firm
flexibility in this provision to and objected to OSHA’s use, in the representing a number of participants
accommodate employers’ concerns. proposal, of the word ‘‘job’’ in showed several ergonomist witnesses
OSHA is not requiring employers to use connection with the component to be pictures of two workers seated at
any particular method to talk with analyzed in a job hazard analysis (see, computer workstations (Ex. DC 42), and
employees about the tasks they perform. e.g., Exs. 32–300–1, 30–3755). OSHA asked the witnesses to identify the risk
Employers may do something as simple agrees, and the language of the final rule factors observable in the photo.
as talking with employees informally uses ‘‘tasks’’ instead of ‘‘jobs’’ when Virtually all of the witnesses (Tr. 1754,
while observing the job being referring to the units of analysis in this Tr. 1756, Tr. 2249, Tr. 2325–2327, Tr.
performed, or they may choose to talk process. 5397, Tr. 9045, Tr. 13228, Tr. 13235, Tr.
with employees as part of a regular staff Paragraph (j)(2)(ii) requires employers 13307, Tr. 13762) explained that it
or production meeting. Alternatively, to observe the employees performing the would normally be necessary to ask the
employers may have affected employees job to identify the risk factors in the job, employees in the jobs reflected in the
fill out a survey form or questionnaire. and to evaluate the magnitude, photos pertinent facts about the job
Many employers have developed frequency, and duration of exposure to before being able to determine with any
effective tools for gathering important these risk factors. Job observation allows certainty whether the exposure
job information from employees who do the employer to see how the employee represented in the snapshot posed an
the job. For example: does the job and provides information MSD hazard to the worker:
about the workstation layout, tools,
AMP Inc., a manufacturer of electronic Well, again, it would go back to what they
components, with 300 employees, uses a one-
methods, equipment and general
were doing. If they were doing this job for a
page ‘‘Ergonomic Evaluation Form’’ that asks environmental conditions in the
long period of time (Tr. 928).
employees to answer simple ‘‘yes/no’’ workplace. A number of commenters
questions about the employee’s ease and recognized the value of this step (Ex. Nonetheless, when pressed to give the
comfort when performing certain job tasks. 30–3755). This paragraph of the final best answer possible based on the
After the company’s ergonomic team rule combines paragraphs (c) and (d) of limited amount of available evidence,
(comprised of line employees) reviews the proposed section 1910.918. Observing the witnesses reviewing the photos were
form, a member of the team interviews the the employees at work is important surprisingly consistent in their
employee. (Ex. 26–5). because it allows employers to see identification of ergonomic risk factors
In addition, there are ways to ask precisely which tasks may be imposing across witnesses. The table below
questions that respond to the concerns biomechanical stress on the worker. summarizes the witnesses’ responses to
expressed above. The questions may be Observation is a necessary addition to the snapshot.

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Risk factors—shorter Risk factors—taller
Identified by Identified by
worker worker

Contact Stress ............ Armstrong (TR. 928), Alexander (TR. 2249), Awkward neck posture Armstrong (TR. 929), Alexander (TR. 2250),
Fernandez (TR. 5384), LeGrande (TR. Fernandez (TR. 5380), Brossard (TR.
9047), Brossard (TR. 13221), Robbins (TR. 13228), Rich (TR. 9590).
1362).
Static Posture ............. Armstrong (TR. 928), Fernandez (TR. 5384), Static posture ............. Fernandez (TR. 5380), Rich (TR. (9592).
LeGrande (TR. 4096), Rich (TR. 9592).
Awkward neck posture Alexander (TR. 2250), Fernandez (TR. 5385), Awkward wrist posture Rich (TR. 9598).
Brossard (TR. 13224).
Awkward back posture LeGrande (TR. 4096), Brossard (TR. 13225), Awkward back posture Brossard (TR. 13227).
Rich (TR. 9601).
Awkward knee posture Fernandez (TR. 5381), Brossard (TR. 13226),
Rich (TR. 9596).
Contact Stress ............ Brossard (TR. 13230).

Although the participants who the degree of individual control is known need protection since the job has
questioned these experts later claimed (Ex. 500–121–61). already been shown to involve exposure
that the exchanges demonstrated Other commenters, however, objected levels that are associated with increased
‘‘erratic inconsistency’’ in the to including all same jobs in the risks of injury. As explained in the
identification of MSD hazards among analysis (Exs. 30–2208, 30–3765, 500– discussion of paragraph (f), jobs that
OSHA’s own experts (Ex. 500–197 at II– 145). For instance, Larry Feeler, a meet the Basic Screening Tool generally
23), OSHA believes they show just the physical therapist and president of pose a risk of MSDs that is three times
opposite: that it is often possible to WorkSTEPS, Inc., said that including all higher than jobs that do not. Third, the
identify risk factors easily even with same jobs would be too burdensome and requirement is necessary to ensure that
only limited knowledge of the costly for employers (Ex. 500–145). And employers have complete information
employee’s activities. If the witnesses P.J. Edington, of the Center for Office about the hazards in the job. If the job
had had access to the extra information Technology, was concerned that it hazard analysis is limited to the injured
they all agreed was necessary, OSHA would be difficult for some employers employee’s job, employers may not get
expects that there answers would have to determine whether employees were the information necessary to identify the
demonstrated much more uniformity. performing the ‘‘same job’’ and that causes of the problem accurately.
OSHA compliance officers might Without this information, the control
‘‘Same Jobs’’ measures employers implement might
mistakenly classify all office work jobs
Paragraph (j)(2) of the final rule as the ‘‘same job’’ (Ex. 30–2208; see also not be successful in controlling or
requires that employers include in the Ex. 500–197). Some commenters urged reducing the hazards to the required
job hazard analysis (and control levels.
OSHA to limit the job hazard analysis
In any event, OSHA believes that the
process) not only the injured employee’s requirement only to the injured
‘‘same job’’ requirement will not impose
individual job but also all other jobs in employee’s individual job (see, e.g., Exs. undue burdens on employers. As the
the establishment that are the ‘‘same’’ as 500–145, 30–2208), or only to other Note to this paragraph explains, like the
that job. ‘‘Same jobs’’ are jobs that employees on the same shift (see, e.g., proposal, the requirement does not
involve the same physical work 30–3765). apply where employers have reason to
activities and tasks as the job that the For several reasons, OSHA believes believe that an MSD hazard only poses
injured employee performs, regardless the requirement to analyze other jobs a risk to the employee who experienced
of their job title or classification. (See that are the same as that in which an the MSD incident. Commenters
the definition of ‘‘job’’ in paragraph (z)). MSD incident occurred is necessary to generally supported this limitation (Exs.
All same jobs in the establishment must the final rule. At the same time, OSHA 30–4540, 30–1353, 500–145). Similarly,
be included in the job hazard analysis acknowledges the commenters’ where employers have reason to believe
and control process, even if they are concerns and has included additional that MSD hazards are present in only a
performed at different locations or on explanation and examples of ‘‘same subset of the same jobs, then employers
different shifts. The standard, however, jobs’’ in this preamble section, as well would be permitted to limit their
does not require employers to apply the as providing flexibility for employers response to that group. For example,
job hazard analysis and control process who have a large number of employees where it is clear that the size or width
to same jobs in other establishments. in the same job. The requirement is of the grip on a knife poses a hazard
The proposed rule contained an important because it helps to make the only for employees with small hands
analogous provision, which a number of final rule more proactive and (i.e., need for high hand force in order
commenters supported (Exs. 30–4200, preventive. It ensures that employees to hold knife), the employer would be
500–215, Tr. 12894). For example, performing the same physical work free to limit the analysis to employees
Suzanne Rodgers, a nationally activities or tasks as someone who with small hands.
recognized ergonomist who has been already has been injured are provided In addition, in most establishments,
helping companies to develop effective with protection before they too are hurt. relatively few employees perform the
ergonomics programs for more than 32 As one commenter put it, the first same job. This is especially true for
years, wrote in Occupational Medicine: injured employee may well be a small employers. However, even where
‘‘harbinger’’ of other MSDs among many employees at an establishment
The questions asked on site will give a
good appreciation of the overall demands of employees in the same job (Ex. 30– perform the same job (e.g., telephone
the job * * * It is important, therefore, to 3755). operators, letter sorters, package sorters,
look at more than one person doing the job, Second, it is likely that other package delivery, beverage delivery,
so individual methods can be assessed and employees performing the same job will trash collectors, janitors, hotel maids),

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the final rule gives employers the option At the same time, just because delivery, utility line workers, trash
of including only a sample of those employees have the same job title does collectors) (Exs. 30–339–22, 30-3714,
employees in the analysis. not mean that the employer must 32–234–2–1, 500–73, 500–147–33, Tr.
Some commenters asked OSHA to include them in the job hazard analysis 14300). Changes in job locations and job
clarify when jobs are the same (see, e.g., if the job tasks are not the same. This conditions may make it very difficult to
Ex. 30–3784). Jobs are the same when is especially true when employers have analyze the job of each employee.
workers perform the same physical general job classifications, such as office However, analyzing the job for a sample
work activities or same job tasks. worker, assembly line workers, of employees allows employers to
Employees perform the same job when production staff. ‘‘Office workers’’ may identify the MSD hazards facing all of
the discrete elements or physical actions be assigned to tasks as varied as the employees.
they perform are the same, even if not answering phones, operating copy OSHA is requiring employers to
every aspect of their jobs is identical. machines, filing, or typing. If the MSD sample those employees with the
For example, incident affected an office worker typing greatest exposure to the relevant risk
• Employees whose jobs involve documents, the employer would only factors to ensure that exposure levels in
picking up packages from one conveyor need to include in the job hazard the job are characterized accurately.
and putting them onto another are analysis other office workers whose OSHA has used the concept of
performing the same job, even if the work task is to type documents. ‘‘representative sampling’’ for hazard
packages contain different products, or Likewise, ‘‘lineworkers’’ or ‘‘production identification purposes in several of its
are placed on different conveyors. workers’’ in a poultry processing plant standards, such as the asbestos standard
• Orderlies whose job tasks involve may perform very different tasks. (29 CFR 1910.1001), the formaldehyde
lifting and moving patients have the standard (29 CFR 1910.1048), and the
same job even though some Sample of Employees
lockout/tagout standard (29 CFR
characteristics of the patients, room Paragraph (j)(2) also gives employers 1910.147). The principle behind this
layout and the purpose of the lift or the option to include in the job hazard concept is that, if the job hazard
move may vary each time. analysis only a sample of the employees analysis (or the exposure monitoring, in
• Garbage collectors who pick up in the same job. Where the employer the case of chemical exposures) reveals
trash cans and recycle bins, and dump elects to use a sample of employees, the that the exposures to this group of most
their contents into the garbage truck, sample must include those employees highly exposed workers are not at levels
have the same job even though their with the greatest exposure to the of concern, it is likely that those of other
routes are not identical (e.g., variations ‘‘relevant risk factors’’ (i.e., those risk lesser exposed workers will also not be
in terrain, traffic, distance from factors that exceed the levels on the of concern.
residences). Basic Screening Tool). The proposed A few participants disagreed that the
On the other hand, just because the rule also included a similar option and representative sampling option would
workstations, tools and equipment many commenters supported it (see e.g., be useful to reduce burdens for
employees use is the same does not Exs. 30–3344, 30–3745, 30–3749). employers:
mean that these employees have the OSHA believes that this option
same job. For example: should help to reduce burdens for OSHA concedes that ‘‘conducting a job
• Employees who use VDTs do not employers while at the same time hazard analysis that covers all employees in
a problem job may be burdensome’’ * * * It
have the same job where one employee’s ensuring that the analysis of risk factors is not possible for an employer to know of
job involves steady typing for most of exposure in the job is accurately and account for the multitude of physical
the workday while the other employee characterized and not underestimated. factors that affect the way its employees
uses the VDT to read and send Some commenters, including Anheuser- work. A sample selected, for instance, could
electronic messages for only a few hours Busch and United Parcel Service inadvertently ignore the employee with the
a day. reported that they had dozens to widest fingers, the smallest feet or the most
• Employees in an automotive hundreds of employees in their sensitive hearing, in violation of the
assembly plant who use glue guns or establishments who perform the same proposed rule. OSHA’s ‘‘shortcut’’ for
performing a job analysis is to us
staple guns do not necessarily have the job (Exs. 32–241). This option also insignificant and illusory—employers will, in
same job if they are assembling different should help establishments employing practice, have to observe virtually every
aspects of the product (installing seats telephone operators, customer service employee in the problem job—a task that
versus windshields), particularly if they representatives, catalog sales even OSHA admits can be burdensome (Ex.
use the tools in different ways, with representatives, data processors, trash 500–197).
different force, and in different collectors, warehouse selectors, grocery OSHA does not believe that
positions. store cashiers, meatpackers, poultry employers will have difficulty
For purposes of this standard, job processors and others. Including every identifying the employees in a job who
titles or classifications do not determine employee in these ‘‘same jobs’’ in the are most likely to have the greatest
whether employees are in the same job. job hazard analysis may be exposure to the risk factors. The specific
Where employees are performing the unnecessarily resource intensive, criteria in the Basic Screening Tool will
same physical work activities or tasks, especially where the workstation be particularly useful in helping
they are in the same job even if they layouts and tools are identical (Ex. 500– employers identify, for example, those
have different job titles. Often jobs 145). Employers may be able to identify employees who:
involving the same physical work the problem and possible controls after • Repeat the same motion for the
activities may have different job titles if analyzing the jobs of only a handful of longest continuous period during the
there are working supervisors, some employees. workshift;
kinds of seniority systems, or different This option will also help in • Lift the heaviest objects or packages
work shifts. For example, a ‘‘Fabricator situations where jobs are of short or the most objects per workshift;
II’’ on the third shift may be performing duration or do not have fixed • Have the greatest degree of flexion
the same physical work activities as a workstations (e.g., visiting nurses, home or extension of their wrists;
‘‘Junior Fabricator II’’ or ‘‘Apprentice health aides, home repairmen, furniture • Use vibrating hand tools for the
Fabricator’’ on the first shift. movers, beverage delivery, package most time during the workshift; and

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• Make the longest reaches during the meaning closer to ‘‘breaking point,’’ as while job tasks are being performed. For
workshift. in metal fatigue. In other words, fatigue, example, when a person’s arm is
In addition, the body location when used in the context of ergonomics, hanging straight down (i.e.,
component in the Basic Screening Tool generally means that the muscle is no perpendicular to the ground) with the
will help employers identify whether longer able to work and must be allowed elbow close to the body, the shoulder is
particular physical capabilities, to recover, or that the point of damage in a neutral position. However, when
limitations and characteristics may be or deformation of a tissue has been employees are performing overhead
relevant in selecting the sample of reached. Thus, in ergonomics, the term work (e.g., installing or repairing
employees for the analysis. For implies more than simply being tired or equipment, grasping objects from a high
example, employers do not need to uncomfortable. The force required to shelf) their shoulders are far from the
consider the width of employees’ fingers complete a movement increases when neutral position. Other examples
when it is kneeling or squatting for more other risk factors are also involved. For include wrists bent while typing,
than 2 hours that has triggered the need example, more physical effort may be bending over to grasp or lift an object,
for job hazard analysis. And foot size is needed to perform tasks when the speed twisting the back and torso while
not relevant when the risk factors being or acceleration of motions increases, moving heavy objects, and squatting.
addressed are vibration, intensive when vibration is present, or when the Awkward postures often are significant
keyboarding, or high hand force. task also requires awkward postures. contributors to MSDs because they
Moreover, once the people Hand tools that require use of pinch increase the exertion and the muscle
responsible for conducting job hazard grips require more forceful exertions to force that is required to accomplish the
analyses have been trained in the hazard manipulate the tool than do those that task, and compress soft tissues like
identification and job hazard analysis permit use of power grips. nerves, tendons, and blood vessels. As
process, their knowledge of ergonomic Force can be assessed qualitatively or used in the final rule’s basic screening
risk factors and the causes of MSDs will quantitatively. Quantitative measures tool, awkward postures may be either
help them determine which employee include strain gauges, spring scales, and static postures held for prolonged
physical capabilities and limitations electromyography to measure muscle periods of time, or they may occur
may be relevant. They will understand activity. A qualitative assessment of repetitively.
that, if the relevant risk factor is force is based on direct observation of Awkward posture is the primary
awkward posture associated with the amount of physical exertion ergonomic risk factor to which
bending down to monitor a gauge required to complete a task, and is employees are exposed when the height
positioned close to the floor, the usually graded on an ordinal scale (i.e., of the working surfaces is not correct.
employees with the greatest exposure low, medium, high). Working in awkward postures increases
would be those who are taller. And if Repetition. Repetition refers to the the amount of force needed to
the risk factor is awkward posture frequency with which a task or series of accomplish an exertion. Awkward
caused by reaching above the head, then motions is repeated over and over again postures create conditions where the
shorter employees and those with short with little variation in movement. When transfer of power from the muscles to
reaches would be the most exposed. motions are repeated frequently (e.g., the skeletal system in inefficient. To
every few seconds) for prolonged overcome muscle inefficiency,
Risk Factors
periods such as several hours or an employees must apply more force both
Paragraph (j)(2)(ii) requires employers entire work shift, fatigue and strain of to initiate and complete the motion or
to identify the risk factors present in the the muscle and tendons can occur exertion. In general, the more extreme
job and to evaluate their magnitude, because there may be inadequate time the postures (i.e., the greater the
frequency, and duration. These risk for recovery. Repetition often involves postures deviate from neutral positions),
factors include force, repetition, the use of only a few muscles and body the more inefficiently the muscles
awkward postures, vibration, and parts, which can become extremely operate and, in turn, the more force is
contact stress. Unlike the proposal, the fatigued even though the rest of the needed to complete the task. Thus,
final rule does not include cold body is unaffected. awkward postures make forceful
temperature and static postures as Repetitive motions occur frequently exertions even more forceful, from the
independent risk factors. In addition, in manufacturing operations where standpoint of the muscle, and increase
contact stress and vibration are defined production and assembly processes the amount of recovery time that is
somewhat more narrowly than they have been broken down into small needed.
were in the proposal. 64 FR 65808. sequential steps, each performed by Awkward postures are assessed in the
Force. Force refers to the amount of different workers. Repetition is also workplace by observing joint angles
physical effort that is required to present in many manual handling during the performance of jobs tasks.
accomplish a task or motion. Force also operations, such as warehouse operation Observed postures can be compared
refers to the degree of loading to and baggage handling. Repetition is qualitatively to diagrams of awkward
muscles and other issues as result of typically assessed by direct observation postures, such as is done in many job
applying force to perform work. Tasks or videotaping or as a percent of task analysis tools, or angles can be
or motions that require the application cycle time, where a cycle is a pattern of measured quantitatively from videotape
of higher force place higher mechanical motions. recordings.
loads on muscles, tendons, ligaments, Awkward postures. Awkward Contact stress. Contact stress results
and joints (Ex. 26–2). Tasks involving postures are positions of the body (e.g., from activities involving either repeated
high forces may cause muscles to fatigue limbs, joints, back) that deviate or continuous contact between sensitive
more quickly. Some commenters were significantly from the neutral position 9 body tissue and a hard or sharp object.
unclear about the meaning of fatigue in The basic screening tool in the final rule
the context of MSDs (see, e.g., Ex. 30– 9 Neutral posture is the position of a body joint includes a particular type of contact
3866). The common use of fatigue, of that requires the least amount of muscle activity to stress, which is using the hand or knee
maintain. For example, the wrist is neutral in a
course, is as a synonym for ‘‘tired.’’ handshake position, the shoulder is neutral when
as a hammer (e.g., operating a punch
However, ergonomics has its roots in the elbow is near the waist, and the back is neutral press or using the knee to stretch carpet
engineering, where fatigue has a when standing up straight. during installation). Thus, although

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contact stress is covered in the final rule Exposure to a single ergonomic risk difficult for most employers to obtain.
as a single risk factor, it is really a factor may be enough to cause an MSD Therefore, OSHA determined that it was
combination of force and repetition. incident. For example, a task may appropriate not to include whole-body
Mechanical friction (i.e., pressure of a require the exertion of so much physical vibration in the final rule at this time.
hard object on soft tissues and tendons) force that, even though the task does not Cold temperatures can, however,
causes contact stress, which is increased involve additional risk factors such as increase the effect of other risk factors.
when tasks require forceful exertion. awkward postures or repetition, an MSD By reducing the dexterity and
The addition of force adds to the friction is likely to occur. For example, using sensitivity of the hand, cold
created by the repeated or continuous the hand or knee as a hammer (e.g., temperatures may cause a worker to
contact between the soft tissues and a operating a punch press or using the apply more grip force to hold hand tools
hard object. It also adds to the irritation knee to stretch carpet during and objects. Also, prolonged contact
of tissues and/or to the pressures on installation) alone may expose the with cold surfaces (e.g., handling cold
parts of the body, which can further employee to such a degree of physical meat) can impair dexterity and induce
inhibit blood flow and never stress that the employee has a numbness. Cold air blowing from a
conduction. significant risk of a serious injury. pneumatic tool, or a draft from the
Contact stress commonly affects the Generally, however, ergonomic risk HVAC system, also can result in
soft tissue on the fingers, palms, factors act in combination to create an localized cold stress on the hands, arms,
forearms, thighs, shins and feet. This MSD hazard. Evidence in the Health neck, or shoulder. Cold also increases
contact may create pressure over a small Effects section (Section V) shows that the effects of vibration, such as in tree
area of the body (e.g., wrist, forearm) jobs that involve exposure to multiple felling and cutting to length with a
that can inhibit blood flow, tendon and risk factors are likely to cause MSDs, chainsaw on a cold day.
muscle movement and nerve function. depending on the duration, frequency Performing a job hazard analysis
The intensity of exposure to contact and/or magnitude of exposure. Thus it includes determining the magnitude,
stress is usually determined is important that ergonomic risk factors frequency, and duration of employee
qualitatively through discussion with be considered in light of their combined exposure to the risk factors described
the employee and observation of the job. effect in causing or contributing to an above. These terms are discussed below.
Segmental vibration. Vibration refers MSD. This can only be achieved if the
Duration. Duration refers to the
to the oscillatory motion of a physical job hazard analysis and control process
cumulative time an employee is
includes identification of all the
body. Segmental, or localized vibration, exposed to one or more risk factor(s).
ergonomic risk factors that may be
such as vibration of the hand and arm, The duration of exposure has a
present in a job. If all of the risk factors
occurs when a specific part of the body substantial effect on the likelihood of
are not identified, employers will not
comes into contact with vibrating both localized tissue fatigue and general
have the information that is needed to
objects such as powered hand tools (e.g., cardiovascular fatigue. (Again, the word
determine the cause of the MSD
chain saw, electric drill, chipping ‘‘fatigue’’ is used in the ergonomics
incident or understand what risk factors
hammer) or equipment (e.g., wood sense.) In general, the longer the period
need to be controlled to eliminate or
planer, punch press, packaging of continuous work (i.e., the longer the
reduce the MSD hazard in the job.
machine). Although using powered Based on its review of the scientific task requires sustained muscle
hand tools (e.g., electric, hydraulic, literature available at the time of the contraction), the longer the recovery or
pneumatic) may help to reduce MSD proposal, OSHA also identified rest time required (Ex. 26–2). Changing
risk factors such as force and repetition, prolonged sitting and standing (a form the sequence of activities or the
the tools can expose employees to of static posture) and whole-body recovery time and pattern of exposure
vibration. Vibrating hand tools transmit vibration as risk factors for MSDs; in may mitigate the effects of long
vibrations to the operator and, addition, OSHA identified cold duration. Breaks or short pauses in the
depending on the level of the vibration temperatures as a risk factor because it work routine help to reduce the effects
and duration of exposure, may could require workers to increase the of prolonged exposure.
contribute to the occurrence of hand- force necessary to perform their jobs Frequency. Frequency refers to the
arm vibration syndrome or Raynaud’s (such as having to grip a tool more number of times the exposure is
phenomenon (i.e., vibration-induced tightly) (64 FR 65808). The final rule repeated within some unit of time, in
white-finger MSDs) (Ex. 26–2). does not explicitly include these risk contrast to duration, which relates to the
The level of vibration can be the factors. For prolonged standing and cumulative length of exposure. This
result of bad design, poor maintenance, sitting, and for cold temperatures, factor also can be obtained by observing
or the age of the powered hand tool. For although there is evidence of an and counting (either by video tape, in
example, even new powered hand tools increased risk of MSDs with exposure, person, or mechanically) the number of
can expose employees to excessive the available evidence did not permit repetitions or the cycle time associated
vibration if it they do not include any the Agency to provide sufficient with each task. The response of muscles
devices to dampen the vibration or in guidance to employers and employees and tendons to work is dependent on
other ways shield the operator from it. on the levels of exposures that warrant the number of times the tissue is
Using vibrating hand tools can also attention. For whole-body vibration, required to respond and the recovery
contribute to muscle-tendon contractile there was substantial evidence of a time between these responses. The
forces owing to operators having to use causal association with low back frequency of an activity can be
increased grip force to steady tools disorders (e.g., see NIOSH 1997); measured at the micro level, such as
having high vibration. however, heavy equipment and trucks, grasps per minute or lifts per hour.
Vibration from power tools is not easy the most common sources of whole- However, there are some tasks, such as
to measure directly without the use of body vibration, are seldom rated for lifting a 150-pound package or pushing
sophisticated measuring equipment. vibration frequencies and intensities. In a 400-pound beer barrel, where simply
However, vibration frequency rating are addition, measurement of whole-body knowing that the activity occurs, say, on
available for many recently designed vibration levels requires special one day every week, is sufficient to
hand tools. equipment and training that would be establish that an MSD hazard is present.

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Magnitude is a measure of the identified to determine whether the are present, that are reasonably likely to
strength of the risk factor; for example: employee’s exposure to them is the cause or contribute to a covered MSD (Ex.
how much force, how deviated the result of an MSD hazard or hazards in 500–218).
posture, how great the velocity or the job. To make this determination, Other commenters argued that the
acceleration of motion, how much employers must look at the duration, proposed approach to the identification
pressure due to compression. Magnitude frequency and magnitude of the of risk factors and MSD hazards was
can be measured either in absolute ergonomic risk factors in the job, as vague and that OSHA should instead
terms or relative to an individual’s required by paragraph (j)(3). This provide a permissible exposure limit
capabilities. There are many qualitative evaluation may allow the employer to (PEL) for each risk factor and each
and quantitative ways to determine the rule out some risk factors that do not possible combination of risk factors (see,
magnitude of exposure to ergonomic pose a significant risk of injury, as well e.g., Exs. 500–197, 30–2435, 30–973,
risk factor(s) (some of these as to identify risk factors that do rise to 30–1274, 30–2426, 30–1350, 30–2428,
measurement tools are provided in the level of an MSD hazard. Risk factors 30–3986, 30–3993, 30–3000, 30–3086).
Appendix D–1). In relatively simple are sometimes ruled out because the Since some employers have been very
cases, one approach is to ask employees exposure does not last long enough, is successful in using simple approaches,
to classify the force requirements or not repeated frequently enough, or is such as the one proposed, to identify
physical difficulties posed by the job on not intensive enough to pose a risk. On and control MSD hazards, however,
a scale of 1 to 5, or on a scale as simple the other hand, a job that requires OSHA finds this argument
as ‘‘low,’’ ‘‘medium,’’ and ‘‘high.’’ When significant bending from a neutral unpersuasive. Risk factors and MSD
magnitude is assessed qualitatively, the posture for most of the day would be hazards are being identified and
employee is making a relative rating, identified as an MSD hazard by the addressed in thousands of workplaces
i.e., is rating the perceived magnitude of appropriate hazard identification tool in every day, and employers and
the risk factor relative to his or her own Appendix D–1, and the job would employees are using a wide variety of
capabilities. Relative ratings can be very therefore be labeled a ‘‘problem job,’’ as approaches to do so.
useful in understanding whether the job noted in paragraph (j)(4) of the standard. OSHA recognizes, however, that
fits the employees currently doing the The approach to hazard identification although certain of the risk factors
job. reflected in paragraph (j)(3) of the final described above are easy to identify and
There are a number of ways to rule differs from the proposed approach understand, others are not as apparent
measure the magnitude of exposure and responds to comments that objected or observable. Employers who already
quantitatively (see, e.g., Exs. 500–218, to the proposed approach (see, e.g., Exs. have ergonomics programs and persons
500–220). For example, the NIOSH 32–300–1, 30–3032). The proposal who manage ergonomics programs
Lifting Equation is widely used to included a table that listed 20 physical generally have no difficulty identifying
determine recommended weight limits work activities and job conditions such risk factors in the workplace, because
for safe lifting and carrying (see, e.g., as ‘‘exerting considerable physical effort they have learned to look for them (see,
Exs. 26–521). The Snook Push-Pull to complete a motion’’ and ‘‘using hand e.g., Exs. 30–3755, 500–220, 32–359–1,
Tables are also used by many employers and power tools,’’ linked each of these 32–210–2, 32–198–4, 30–3805, Tr.
to evaluate and design pushing, pulling activities to a number of risk factors 11427). Because these individuals have
and carrying tasks (see, e.g., Ex. 26– likely to be associated with the training and experience, ergonomic risk
1008). For work-related upper extremity performance of such activities, and factors are familiar concepts for them.
MSDs the Rapid Upper Limb directed employers to evaluate these Through the process of developing and
Assessment (RULA) evaluation tool is risk factors to determine whether an implementing their ergonomics
often used to investigate and evaluate MSD hazard was present. programs, these individuals have gained
jobs (see, e.g., Ex. 26–1421). These three The National Telecommunications a good working knowledge of the
tools are included in Appendix D–1, Safety Panel was one of many ergonomic risk factors that are most
and are discussed at greater length in participants who found the proposed likely to be present in their workplaces.
connection with that Appendix. hazard identification approach For those employers who are just
unhelpful: beginning their programs and have little
Paragraph (j)(3) or no training and experience dealing
The members of the Panel strongly believe with ergonomic risk factors, OSHA has
Paragraph (j)(3) of the final rule that the matrix of ‘‘physical work activities
requires the employer to use one of the tried in the standard to make the
and conditions’’ and ergonomic risk factors
following methods or tools to conduct tha