OSHA announces new ergo plan: Guidelines favored over rules
1) Guidelines - OSHA will start work immediately on voluntary guidelines targeted at specific industries and specific tasks. Officials will study injury and illness rates for various industries, including construction, agriculture and maritime, to decide which ones could benefit from such guidelines. You can expect to see these documents begin to come out of the agency by the end of the year.
Guidelines will help employers spot ergo hazards and set up feasible means of controlling them. Targeted ergo guidelines were written by OSHA for the meatpacking industry in 1990.
Failure to implement these new guidelines will not be interpreted by OSHA as a violation of an employer's general duty to provide a workplace free from serious hazards.
Employers with ergo hazards who effectively put these guidelines into practice or use other effective measures will likely escape penalties issued using the General Duty clause of the OSH Act.
OSHA says it will not focus its enforcement efforts on employers who have implemented effective ergo programs or who are making good-faith efforts to reduce ergo hazards.
2) Enforcement - Bad actors beware: OSHA plans to go after industries with serious ergonomics problems with special ergo inspection teams that will work closely with Labor Department attorneys and experts to prosecute violators under the General Duty clause.
The General Duty clause of the 1970 Occupational Safety and Health Act broadly requires employers to provide workplaces safe from recognized serious hazards, including ergo hazards. OSHA and Labor Department attorneys have successfully used this general mandate to penalize employers for serious ergo problems in cases involving a nursing home, Beverly Enterprises, and a food processor, Pepperidge Farm.
If General Duty clause citations are not warranted following an inspection, OSHA might issue hazard alert letters to employers with less serious ergo problems. OSHA will conduct follow-up inspections or investigations within 12 months of certain employers who receive these ergonomic hazard alert letters.
OSHA will conduct specialized training for designated personnel on ergo hazards and methods of controlling them, and plans to appoint ten regional coordinators to be involved in enforcement and outreach.
A National Emphasis Program will focus on the nursing home industry to guide inspections of nursing homes and to specifically zero in on ergonomic hazards related to patient lifting.
3) Assistance - OSHA will use a special Web site (www.osha.gov/ergonomics/index.html) and training grants to give employers tools to identify and control ergo hazards. A special effort will be aimed at Hispanics and immigrant workers, since many work in industries with high ergonomic-related hazard rates, and press investigations in the past year have criticized OSHA for ignoring these workers.
4) Research - OSHA is forming a national advisory committee to identify areas where more ergonomics research is needed.
Why no standard?OSHA's new plan comes more than a year after Congress torpedoed an ergo rule released in the waning days of the Clinton administration. Agency officials contend there are numerous reasons why guidelines are preferable to doing a rule at this time:
- There are a variety of different hazards and combinations of different hazards to be addressed;
- Exposure to the hazards is not readily measured in some cases;
- The exposure-response relationship is not well understood;
- Cost and feasibility of abatement measures may be uncertain and may be very high in some cases; and
- It is very difficult, except in the most general terms, to prescribe remedies for abating such hazards in a single rule.
"Thousands of employers are already working to reduce ergonomic risks without government mandates. We want to work with them to continuously improve workplace safety and health. We will go after the bad actors who refuse to take care of their workers," said OSHA chief John Henshaw.
"This plan is a major improvement over the rejected old rule because it will prevent ergonomics injuries before they occur and reach a much larger number of at-risk workers," Labor Secretary Elaine Chao said in a prepared statement.
Not good enoughUnion leaders and liberal Democrats wasted no time condemning what one labor safety official called "largely a non-existent plan that raises more questions than it answers." Other critics labeled it hollow and worthless.
"The administration handed a win to big business at the expense of millions of average workers who risk workplace injuries every single day," said Sen. Edward M. Kennedy, D-Mass., chairman of the Senate Health, Education, Labor and Pensions Committee.
Watch for supporters of a federal ergo standard to take their case to Congress, and also try to pass state ergo laws to stir up demand for a consensus national standard.
Labor Secretary Chao is scheduled to explain OSHA's new ergo plan to Sen. Kennedy's senate committee on April 18th.