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Michigan ergo battle: Portent of Washington brawl? (9/23)

Michigan regulators’ attempts to set an ergonomics standard in the face of a brutal recession could foreshadow the challenge confronting federal OSHA’s new leadership team’s if it follows through on its announced intent to revisit the ergo battlefield.

The U.S. Senate deep-sixed OSHA’s first attempt at an ergo rule in 2001, and in 2006 Michigan lawmakers passed a bill to prevent the state from adopting an ergonomics rule. But that didn’t stop the Michigan state OSHA program (MIOSHA) from advancing the fight with a new ergo proposal in 2008.

Most recently, the state of Michigan’s General Industry Safety Standards Commission and Occupational Health Standards Commission conducted a joint meeting on January 14, 2009 to address the state’s proposed ergonomics standard. After significant discussion, the commissions made changes to the proposed ergonomics standard, including the addition of an exemption for the jurisdiction covered exclusively by the Federal Railroad Administration.

The commissions also deliberated on two exemptions within the draft for an existing “effective program,” which appeared confusing and subjective. Therefore, the commissions voted and removed the draft’s “grandfather clauses.” The commissions added another change, by incorporating a phase-in provision of six months after the final rule is filed with the Secretary of State.

Both commissions voted unanimously to move the proposed ergonomics standard, as amended, forward to the Department for informal approval.

The next step for the commissions will be to forward the proposed standard to the Department for the informal approval and to begin the rigorous review process, including a regulatory impact statement. If the Michigan Department of Energy, Labor and Economic Growth (DLEG) Director approves to move forward, public hearings will be scheduled.

The Michigan Chamber of Commerce issued a press release which stated, in part, "If the [Gov. Jennifer] Granholm administration truly wants to provide assistance to job providers, they will take a stand against the proposed state ergonomics standard,” said Jim Holcomb, vice president of business advocacy and associate general counsel for the Michigan Chamber. He said the proposed ergo rule is “unclear, burdensome and likely to cost Michigan businesses – large and small – hundreds of millions of dollars and increase job losses across the state.”

Here are the general provisions of the “Michigan OSHA Draft #17: Ergonomics in General Industry” standard:

Section A Scope and application. (1) These rules establish the minimum requirements for all general industry employers that have employees with exposure to ergonomic hazards. These rules establish the minimum requirements for awareness training and the process for assessing and responding to ergonomic occupational risk factors. (2) These rules do not apply to any of the following: (a) Construction. (b) Agriculture. (c) Mining. (d) Domestic employment. (e) Jurisdiction covered exclusively by the Federal Railroad Administration.

Section B Definitions. (1) "Ergonomic hazards" means conditions where intervention may be necessary to prevent a musculoskeletal disorder. Such conditions can be identified by an assessment of ergonomic occupational risk factors and reports of signs and symptoms. (2) "Ergonomics" means the practice of designing or modifying jobs, workplaces, equipment, work methods, and tools to match the capabilities of the worker. (3) "Ergonomic occupational risk factors" means characteristics of a work situation that may contribute to a musculoskeletal disorder. These risk factors may be characteristics of the workplace, tasks, or individual work practices.

Section C Training. (1) All employees shall be given ergonomic awareness training that covers all of the following: (a) Ergonomic occupational risk factors. (b) Signs/symptoms that indicate an ergonomic hazard may be present. (c) Process for reporting that an ergonomic hazard may be present. (d) Process for assessing and responding to ergonomic occupational risk factors. (2) Records to document training shall be kept. (3) An employer may accept previous training through documentation for (1)(a) and (b). (4) This rule will take effect 6 months after being filed with the Secretary of State.

Section D Process for Assessing and Responding to Ergonomic Occupational Risk Factors. (1) An employer shall establish and utilize an effective process that includes the following: (a) Employee involvement. (b) Assessment of ergonomic occupational risk factors. (c) Elimination, reduction, or control of ergonomic hazards where economically and technically feasible. (2) This rule will take effect 6 months after being filed with the Secretary of State. See appendix for assistance.

NOTE: Nothing in this act shall be construed to supercede or in any manner affect any workers' compensation law, or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.

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