65:68261-68870 - Ergonomics Program; Final Rule
Part II
Department of Labor
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Occupational Safety and Health Administration
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29 CFR Part 1910
Ergonomics Program; Final Rule
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1910
[Docket No. S-777]
RIN 1218-AB36
Ergonomics Program
AGENCY: Occupational Safety and Health Administration (OSHA),
Department of Labor.
ACTION: Final rule.
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SUMMARY: The Occupational Safety and Health Administration is issuing a
final Ergonomics Program standard (29 CFR 1910.900) to address the
significant risk of employee exposure to ergonomic risk factors in jobs
in general industry workplaces. Exposure to ergonomic risk factors on
the job leads to musculoskeletal disorders (MSDs) of the upper
extremities, back, and lower extremities. Every year, nearly 600,000
MSDs that are serious enough to cause time off work are reported to the
Bureau of Labor Statistics by general industry employers, and evidence
suggests that an even larger number of non-lost worktime MSDs occur in
these workplaces every year.
The standard contains an ``action trigger,'' which identifies jobs
with risk factors of sufficient magnitude, duration, or intensity to
warrant further examination by the employer. This action trigger acts
as a screen. When an employee reports an MSD, the employer must first
determine whether the MSD is an MSD incident, defined by the standard
as an MSD that results in days away from work, restricted work, medical
treatment beyond first aid, or MSD symptoms or signs that persist for 7
or more days. Once this determination is made, the employer must
determine whether the employee's job has risk factors that meet the
standard's action trigger. The risk factors addressed by this standard
include repetition, awkward posture, force, vibration, and contact
stress. If the risk factors in the employee's job do not exceed the
action trigger, the employer does not need to implement an ergonomics
program for that job.
If an employee reports an MSD incident and the risk factors of that
employee's job meet the action trigger, the employer must establish an
ergonomics program for that job. The program must contain the following
elements: hazard information and reporting, management leadership and
employee participation, job hazard analysis and control, training, MSD
management, and program evaluation. The standard provides the employer
with several options for evaluating and controlling risk factors for
jobs covered by the ergonomics program, and provides objective criteria
for identifying MSD hazards in those jobs and determining when the
controls implemented have achieved the required level of control.
The final standard would affect approximately 6.1 million employers
and 102 million employees in general industry workplaces, and employers
in these workplaces would be required over the ten years following the
promulgation of the standard to control approximately 18 million jobs
with the potential to cause or contribute to covered MSDs. OSHA
estimates that the final standard would prevent about 4.6 million work-
related MSDs over the next 10 years, have annual benefits of
approximately $9.1 billion, and impose annual compliance costs of $4.5
billion on employers. On a per-establishment basis, this equals
approximately $700; annual costs per problem job fixed are estimated at
$250.
DATES: This final rule becomes effective on January 16, 2001.
Compliance. Start-up dates for specific provisions are set in
paragraph (w) of Sec. 1910.900. However, affected parties do not have
to comply with the information collection requirements in the final
rule until the Department of Labor publishes in the Federal Register
the control numbers assigned by the Office of Management and Budget
(OMB). Publication of the control numbers notifies the public that OMB
has approved these information collection requirements under the
Paperwork Reduction Act of 1995.
ADDRESSES: In compliance with 28 U.S.C. 2112(a), the Agency designates
the Associate Solicitor for Occupational Safety and Health, Office of
the Solicitor, Room S-4004, U.S. Department of Labor, 200 Constitution
Avenue, NW., Washington, DC 20210, as the recipient of petitions for
review of the standard.
FOR FURTHER INFORMATION CONTACT: OSHA's Ergonomics Team at (202) 693-
2116, or visit the OSHA Homepage at www.osha.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
The preamble and standard are organized as follows:
I. Introduction
II. Events Leading to the Standard
III. Pertinent Legal Authority
IV. Summary and Explanation
V. Health Effects
VI. Risk Assessment
VII. Significance of Risk
VIII. Summary of the Final Economic Analysis and Final Regulatory
Flexibility Analysis
IX. Unfunded Mandates Analysis
X. Environmental Impact Statement
XI. Additional Statutory Issues
XII. Procedural Issues
XIII. Federalism
XIV. State Plan States
XV. OMB Review under the Paperwork Reduction Act of 1995
XVI. List of Subjects in 29 CFR Part 1910
XVII. The Final Ergonomics Program Standard
References to documents, studies, and materials in the rulemaking
record are found throughout the text of the preamble. Materials in the
docket are identified by their Exhibit numbers, as follows: ``Ex. 26-
1'' means Exhibit 26-1 in Docket S-777. A list of the Exhibits and
copies of the Exhibits are available in the OSHA Docket Office.
I. Introduction
A. Overview
This preamble discusses the data and events that led OSHA to issue
the final Ergonomics Program standard (Section II), and the Agency's
legal authority for promulgating the rule (Section III). This
discussion is followed by a detailed paragraph-by-paragraph summary and
explanation of the final rule, including the Agency's reasons for
including each provision and OSHA's responses to the many substantive
issues that were raised in the proposal and during the rulemaking
(Section IV).
The summary and explanation of the standard is followed by a
lengthy discussion of the evidence on the health effects that are
associated with worker exposure to MSD hazards (Section V). The next
section discusses the nature and degree of ergonomic-related risks
confronting workers in general industry jobs (Section VI), and assesses
the significance of those risks (Section VII). The preamble also
contains a summary of the Final Economic and Final Regulatory
Flexibility Analysis (Section VIII). Finally, the preamble describes
the information collections associated with the final standard (Section
XV).
B. The Need for an Ergonomics Program Standard
Work-related musculoskeletal disorders (MSDs) currently account for
one-third of all occupational injuries and illnesses reported to the
Bureau of Labor Statistics (BLS) by employers every year. Although the
number of MSDs reported to the BLS, like all occupational injuries and
illnesses, has declined by more than 20% since 1992,
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these disorders have been the largest single job-related injury and
illness problem in the United States for the last decade, consistently
accounting for 34% of all reported injuries and illnesses. In 1997,
employers reported a total of 626,000 lost worktime MSDs to the BLS,
and these disorders accounted for $1 of every $3 spent for workers'
compensation in that year. This means that employers are annually
paying more than $15 billion in workers' compensation costs for these
disorders, and other expenses associated with work-related MSDs, such
as the costs of training new workers, may increase this total to $45
billion a year. Workers with severe MSDs often face permanent
disability that prevents them from returning to their jobs or handling
simple, everyday tasks like combing their hair, picking up a baby, or
pushing a shopping cart. For example, workers who must undergo surgery
for work-related carpal tunnel syndrome often lose 6 months or more of
work.
Thousands of companies have taken action to address and prevent
these problems. OSHA estimates that 46 percent of all employees but
only 16 percent of all workplaces in general industry are already
protected by an ergonomics program, because their employers have
voluntarily elected to implement an ergonomics program. (The difference
in these percentages shows that many large companies, who employ the
majority of the workforce, already have these programs, and that many
smaller employers have not yet implemented them.) Based on its review
of the evidence in the record as a whole, OSHA concludes that the final
standard is needed to protect employees in general industry workplaces
who are at significant risk of incurring a work-related musculoskeletal
disorder but are not currently protected by an ergonomics program.
C. The Science Supporting the Standard
A substantial body of scientific evidence supports OSHA's effort to
provide workers with ergonomic protection (see the Health Effects, Risk
Assessment, and Significance of Risk sections (Sections V, VI, and VII,
respectively) of this preamble, below). This evidence strongly supports
two basic conclusions: (1) There is a positive relationship between
work-related musculoskeletal disorders and employee exposure to
workplace risk factors, and (2) ergonomics programs and specific
ergonomic interventions can substantially reduce the number and
severity of these injuries.
In 1998, the National Research Council/National Academy of Sciences
found a clear relationship between musculoskeletal disorders and work
and between ergonomic interventions and a decrease in the number and
severity of such disorders. According to the Academy, ``Research
clearly demonstrates that specific interventions can reduce the
reported rate of musculoskeletal disorders for workers who perform
high-risk tasks'' (Work-Related Musculoskeletal Disorders: The Research
Base, ISBN 0-309-06327-2 (1998)). A scientific review of hundreds of
peer-reviewed studies involving workers with MSDs by the National
Institute for Occupational Safety and Health (NIOSH 1997) also supports
this conclusion.
The evidence, which is comprised of peer-reviewed epidemiological,
biomechanical and pathophysiological studies as well as other published
evidence, includes:
II. More than 2,000 articles on work-related MSDs and workplace risk
factors;
II. A 1998 study by the National Research Council/National Academy of
Sciences on work-related MSDs;
A critical review by NIOSH of more than 600
epidemiological studies addressing the effects of exposure to workplace
risk factors (1997);
A 1997 General Accounting Office report of companies with
ergonomics programs;
I. Other evidence and analyses in the Health Effects section of the
preamble to the final rule;
II. Hundreds of case studies from companies with successful ergonomics
programs; and
I. Testimony and evidence submitted to the record by expert witnesses,
workers, safety and health professionals, and others, which is
discussed throughout the preamble to the final rule.
Taken together, this evidence indicates that:
High levels of exposure to ergonomic risk factors on the
job lead to an increased incidence of work-related MSDs among exposed
workers;
Reducing exposure to physical risk factors on the job
reduces the incidence and severity of work-related MSDs;
Many work-related MSDs are preventable; and
Ergonomics programs are demonstrably effective in reducing
risk, decreasing exposure and protecting workers against work-related
MSDs.
As with any scientific field, research in ergonomics is ongoing.
The National Academy of Sciences is currently undertaking another
review of the science in order to expand on its 1998 study. OSHA has
examined all of the research results in the record of this rulemaking
in order to ensure that the final Ergonomics Program standard is based
on the best available and most current evidence. Although more research
is always desirable, OSHA finds that more than enough evidence already
exists to demonstrate the need for a final standard. In the words of
the American College of Occupational and Environmental Medicine, the
world's largest occupational medical society, ``there is an adequate
scientific foundation for OSHA to proceed * * * and, therefore, no
reason for OSHA to delay the rulemaking process * * *.''
D. Information OSHA Is Providing To Help Employers Address Ergonomic
Hazards
Much literature and technical expertise on ergonomics already
exists and is available to employers, both through OSHA and a variety
of other sources. For example:
Information is available from OSHA's ergonomics Web page,
which can be accessed from OSHA's World Wide Web site at http://
www.osha.gov by scrolling down and clicking on ``Ergonomics'';
Many publications, informational materials and training
courses, which are available from OSHA through Regional Offices, OSHA-
sponsored educational centers, OSHA's state consultation programs for
small businesses, and through the Web page;
Publications on ergonomics programs, which are available
from NIOSH at 1-800-35-NIOSH. NIOSH's Web page is also ``linked'' to
OSHA's ergonomics Web page;
OSHA's state consultation programs, which will provide
free on-site consultation services to employers requesting help in
implementing their ergonomics programs; and
OSHA-developed compliance assistance materials, which are
available as non-mandatory appendices to the standard, electronic
compliance assistance training materials (e-cats) on specific tasks
(e.g., lifting) or work environments (e.g., nursing homes). OSHA is
also making several publications available on the web, such as the Easy
Ergonomics Booklet, Fact Sheets, and so on. These materials can be
obtained by accessing OSHA's Internet home page at www.OSHA.gov.
II. Events Leading to the Development of the Final Standard
In this final standard, OSHA has relied on its own substantial
experience with ergonomics programs, the
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experience of private firms and insurance companies, and the results of
research studies conducted during the last 30 years. Those experiences
clearly show that: (1) Ergonomics programs are an effective way to
reduce occupational MSDs; (2) ergonomics programs have consistently
achieved that objective; (3) OSHA's standard is consistent with these
programs; and (4) the standard is firmly grounded in the OSH Act and
OSHA policies and experience. The primary lesson to be learned is that
employers with effective, well-managed ergonomics programs achieve
significant reductions in the severity and number of work-related MSDs
that their employees experience. These programs also generally improve
productivity and employee morale and reduce employee turnover and
absenteeism (see Section VI of this preamble, and Chapters IV
(Benefits) and V (Costs of Compliance) of OSHA's Final Economic
Analysis (Ex. 28-1)).
OSHA's long experience with ergonomics is apparent from the
chronology below. As this table shows, the Agency has been actively
involved in ergonomics for more than 20 years.
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OSHA Ergonomics Chronology
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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
recommendations for job redesign using
NIOSH's Work Practices Guide for Manual
Lifting.
October 1986................. The Agency publishes a Request for
Information on approaches to reduce back
injuries resulting from manual lifting.
(57 FR 34192)
November 1988................ OSHA/Iowa Beef Processors reach first
corporate-wide settlement to reduce
ergonomic hazards at 8 IBP locations
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 extent of
ergonomics programs in industry and
other issues.
March 1995................... OSHA begins a series of meetings with
stakeholders to discuss approaches to a
draft ergonomics standard.
January 1997................. OSHA/NIOSH conference on successful
ergonomic programs held in Chicago.
April 1997................... OSHA introduces the ergonomics web page
on the Internet.
February 1998................ OSHA begins a series of national
stakeholder meetings about the draft
ergonomics standard under development.
March 1998................... OSHA releases a video entitled
``Ergonomic Programs That Work.''
February 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
August 10, 2000. briefs consisting of nearly 50,000 pages
collectively, into the docket 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.
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A. Regulatory and Voluntary Guidelines Activities
In 1989, OSHA issued the Safety and Health Program Management
Guidelines (54 FR 3904, Jan. 26, 1989), which are voluntary program
management guidelines to assist employers in developing effective
safety and health programs. These program management guidelines, which
are based on the widely accepted safety and health principles of
management commitment and employee involvement, worksite hazard
analysis, hazard prevention and control, and employee training, also
serve as the foundation for effective ergonomics programs. In August
1990, OSHA issued the Ergonomics Program Management Guidelines for
Meatpacking Plants (Ex. 2-13), which utilized the four program
components from the safety and health management guidelines,
supplemented by other ergonomics-specific program elements (e.g.,
medical management). The ergonomic guidelines were based on the best
available scientific evidence, the best practices of successful
companies with these programs, advice from the National Institute for
Occupational Safety and Health (NIOSH), the scientific literature, and
OSHA's experience with enforcement
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actions. Many commenters in various industries have said that they have
implemented their ergonomics programs primarily on the basis of the
OSHA ergonomics guidelines (Exs. 3-50, 3-61, 3-95, 3-97, 3-113, 3-121,
3-125), and there has been general agreement among stakeholders that
these program elements should be included in any OSHA ergonomics
standard (Exs. 3-27, 3-46, 3-51, 3-61, 3-89, 3-95, 3-113, 3-119, 3-160,
3-184).
OSHA also has encouraged other efforts to address the prevention of
work-related musculoskeletal disorders. For example, OSHA has actively
participated in the work of the ANSI Z-365 Committee, which was
entrusted with the task of developing a consensus standard for the
control of cumulative trauma disorders. The Agency also has sponsored
and participated in more than 11 Ergonomics Best Practices conferences.
1. Petition for Emergency Temporary Standard
On July 31, 1991, the United Food and Commercial Workers Union
(UCFW), along with the AFL-CIO and 29 other labor organizations,
petitioned OSHA to take immediate action to reduce the risk to
employees of exposure to ergonomic hazards (Ex. 2-16). The petition
requested that OSHA issue an emergency temporary standard (ETS) on
``Ergonomic Hazards to Protect Workers from Work-Related
Musculoskeletal Disorders (Cumulative Trauma Disorders)'' under section
6(c) of the Act. The petitioners also requested, consistent with
section 6(c), that OSHA promulgate, within 6 months of issuance of the
ETS, a permanent standard to protect workers from cumulative trauma
disorders in both general industry and construction.
Based on the statutory constraints and legal requirements governing
issuance of an ETS, OSHA calculated that the basis to support issuance
of an ETS was not sufficient. Accordingly, on April 17, 1992, OSHA
decided not to issue an ETS on ergonomic hazards (Ex. 2-29). OSHA
agreed with the petitioners, however, that available information,
including the Agency's experience and information in the ETS petition
and supporting documents, supported the initiation of a rulemaking,
under section 6(b)(5) of the Act, to address ergonomic hazards.
2. Advance Notice of Proposed Rulemaking
At the time OSHA issued the Ergonomic Program Management Guidelines
for Meatpacking Plants (Ex. 2-13), the Agency also indicated its
intention to begin the rulemaking process by asking the public for
information about musculoskeletal disorders (MSDs). The Agency
indicated that this could be accomplished through a Request for
Information (RFI) or an Advance Notice of Proposed Rulemaking (ANPR)
consistent with the Administration's Regulatory Program. Subsequently,
OSHA formally placed ergonomics rulemaking on the regulatory agenda
(Ex. 2-17) and decided to issue an ANPR on this topic.
In June 1991, OSHA sent a draft copy of the proposed ANPR questions
for comment to 232 parties, including OSHA's advisory committees, labor
organizations (including the petitioners), trade associations,
occupational groups, and members of the ergonomics community (Ex. 2-
18). OSHA requested comments on what questions should be presented in
the ANPR. OSHA received 47 comments from those parties. In addition,
OSHA met with the Chemical Manufacturers Association, Organization
Resources Counselors, Inc., the AFL-CIO and several of its member
organizations. OSHA reviewed the comments and submissions received and
incorporated relevant suggestions and comments into the ANPR.
On August 3, 1992, OSHA published the ANPR in the Federal Register
(57 FR 34192), requesting information for consideration in the
development of an ergonomics standard. OSHA received 290 comments in
response to the ANPR. Those comments have been carefully considered by
the Agency in developing the final ergonomics program standard.
3. Outreach to Stakeholders
In conjunction with the process of developing the proposed
ergonomics rule, OSHA established various communication and outreach
efforts. These efforts were initiated in response to requests by
individuals who would be affected by the rule (stakeholders) that they
be provided with the opportunity to present their concerns about an
ergonomics rule and that they be kept apprized of the efforts OSHA was
making in developing a proposed rule. For example, in March and April
1994, OSHA held meetings with industry, labor, professional and
research organizations covering general industry, construction,
agriculture, healthcare, and the office environment. A list of those
attending the meetings and a record of the meetings has been placed in
the public record of this rulemaking (Ex. 26-1370).
In March, 1995, OSHA provided a copy of an early draft proposed
ergonomics rule and preamble to these same organizations. Thereafter,
during April 1995, OSHA met again with these groups to discuss whether
the draft proposed rule had accurately responded to the concerns raised
earlier. A summary of the comments has been placed in the public record
(Ex. 26-1370).
During 1998, OSHA met with nearly 400 stakeholders to discuss ideas
for a proposed standard. The first series of meetings was held in
February in Washington, D.C. and focused on general issues, such as the
scope of the standard and what elements of an ergonomics program should
be included in a standard. The second series of meetings, held in July
in Kansas City and Atlanta, focused on what elements and activities
should be included in an ergonomics program standard. The third set of
meetings was held in September in Washington, D.C. and emphasized
revisions to the elements of the proposal based on previous stakeholder
input. A summary of those meetings was placed on the OSHA web site and
in the public docket (Ex. 26-1370). OSHA solicited input from its
stakeholders again the next year, when it posted a working draft of its
ergonomics standard after its release for Small Business Regulatory
Enforcement Fairness Act (SBREFA) Panel review.
4. Small Business Regulatory Enforcement Fairness Act (SBREFA) Panel
In accordance with SBREFA and to gain insight from employers with
small businesses, OSHA, the Office of Management and Budget (OMB), and
the Small Business Administration (SBA) created a Panel to review and
comment on a working draft of the ergonomics program standard. As
required by SBREFA, the Panel sought the advice and recommendations of
potentially affected Small Entity Representatives (SERs). A total of 21
SERs from a variety of industries participated in the effort. The
working draft and supporting materials (a brief summary of a
preliminary economic analysis, the risk assessment, and other
materials) were sent to the SERs for their review. On March 24-26,
1999, the Panel participated in a series of discussions with the SERs
to answer questions and receive comments. The SERs also provided
written comments, which served as the basis of the Panel's final report
(Ex. 23). The final SBREFA Panel Report was submitted to the Assistant
Secretary on April 30, 1999. The findings and recommendations made by
the Panel are addressed in the proposed rule, preamble, and economic
analysis (see the discussion in Section
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VIII, Summary of the Final Economic Analysis and Regulatory Flexibility
Analysis).
5. Issuance of Proposed Rule
On November 23, 1999, OSHA published a proposed ergonomics program
standard to address the significant risk of work-related
musculoskeletal disorders (MSDs) confronting employees in various jobs
in general industry workplaces (64 FR 65768). The proposed standard
would have required general industry employers covered by the standard
to establish an ergonomics program containing some or all of the
elements typical of successful ergonomics programs: management
leadership and employee participation, job hazard analysis and control,
hazard information and reporting, training, MSD management, and program
evaluation, depending on the types of jobs in their workplace and
whether a musculoskeletal disorder covered by the standard had
occurred. Employers whose employees perform manufacturing or manual
handling jobs were required to implement a basic ergonomics program in
those jobs.
The basic program would have included the following elements:
management leadership and employee participation, and hazard
information and reporting. If an employee in a manufacturing or manual
handling job experienced an OSHA-recordable MSD determined by the
employer to be covered by the standard, the employer would have been
required to implement a full ergonomics program for that job and all
other jobs in that establishment involving the same physical work
activities. The full program would have included, in addition to the
elements in the basic program, a hazard analysis of the job; the
implementation of engineering, work practice or administrative controls
to eliminate or substantially reduce the hazards identified in that
job; training the employees and their supervisors in that job; and
providing MSD management, including where appropriate, temporary work
restrictions and access to a health care provider or other professional
if a covered MSD occurred. General industry employees in jobs other
than manufacturing or manual handling who experienced a covered MSD
determined by the employer to be covered by the standard also would
have been required by the proposal to implement an ergonomics program
for those jobs.
6. Solicitation of Public Comment on the Proposed Rule
The notice of proposed rulemaking invited public comment on any
aspects of the proposed ergonomics standard until the close of the
comment period ending on February 1, 2000.
After receiving a number of requests for an extension of the
written comment period, OSHA published a Federal Register notice (65 FR
4795) to extend the deadline for public, pre-hearing comments to March
2, 2000 and to reschedule the informal public hearings in Washington,
D.C. to begin March 13, 2000 and run through April 7, 2000.
Subsequently, the Agency published a Federal Register notice (65 FR
19702) to re-schedule and extend the hearings in Portland, OR by 2
days, from April 24, 2000 through May 3, 2000. In addition, a final
week of informal public hearings (65 FR 13254) was scheduled to take
place in Washington, D.C. from May 8, 2000 through May 12, 2000.
During the early stages of the public comment period, it was
brought to OSHA's attention that the proposed ergonomics program
standard published on November 23, 1999 (64 FR 65768) did not provide
an analysis of the economic impacts of the rule on State and local
governments, the United States Postal Service, or the railroads. To
provide this additional information and analysis, OSHA published a
supplement (65 FR 33263) to the Agency's Preliminary Economic Analysis
and Initial Regulatory Flexibility Analysis (Ex. 28-1) of the economic
impact of the Ergonomics Program Rule. OSHA also established pre-
hearing and post-hearing comment periods ending June 22, 2000 and
August 10, 2000, respectively, to address the analysis of economic
impacts in those three industries. An informal public hearing was held
in Atlanta, GA on July 7, 2000, to provide an opportunity for witnesses
to question the OSHA Panel on the supplemental analysis.
Collectively, the public hearings concerning the proposed
ergonomics program standard generated 18,337 pages of transcript based
on testimony from 714 hearing witnesses, including those representing
public entities, private industry, industry associations, labor unions
and private individuals.
More than 5,900 pre-hearing comments were filed in response to the
proposed ergonomics program standard. A 45-day post-hearing comment
period and a 45-day summary and brief period were established, with
final briefs due to be postmarked no later than August 10, 2000. A
total of 240 post hearing submissions were received. Collectively, a
total of nearly 11,000 exhibits consisting of nearly 50,000 pages were
submitted over the whole period.
B. Other OSHA Efforts In Ergonomics
In 1996, OSHA developed a strategy to address ergonomics through a
four-pronged program including training, education, and outreach
activities; study and analysis of the work-related hazards that lead to
MSDs; enforcement; and rulemaking.
1. Training, Education, and Outreach
a. Training. The OSHA ergonomics web page has been an important
part of the Agency's education and outreach effort. Other OSHA efforts
in training, education and outreach include the following:
Grants to train workers and employees about hazards and
hazard abatement.
Three training courses in ergonomics through the OSHA
Training Institute available for OSHA compliance officers, one of which
is open to the public;
One day training for nursing home operators, at more than
500 nursing homes in each of seven targeted states;
Booklets on ergonomics, ergonomics programs, and computer
workstations, such as ``Ergonomics Program Management Guidelines for
Meatpacking Plants'' and ``Ergonomics: the Study of Work,'' both of
which are available on OSHA's Website.
Videotapes on ergonomics programs in general industry and
specifically in nursing homes.
OSHA has awarded almost $3 million for 25 grants addressing
ergonomics, including lifting hazards in healthcare facilities and
hazards in the red meat and poultry industries. These grants have
enabled workers and employers to identify ergonomic hazards and
implement workplace changes to abate these hazards.
Some grant program highlights follow:
The United Food and Commercial Workers International
Union (UFCW) conducted joint labor-management ergonomics training at
a meatpacking plant that resulted in a major effort at the plant to
combat cumulative trauma disorders. The program was so successful
that management asked the UFCW to conduct the ergonomics training
and work with management at some of its other facilities.
The University of California at Los Angeles (UCLA) and
the Service Employees International Union (SEIU) both had grants for
preventing lifting injuries in nursing homes. SEIU developed a
training program that was used by UCLA to train nursing home workers
in California. UCLA also worked with some national back injury
prevention
[[Page 68267]]
programs. At least one of the nursing home chains has replicated the
program in other states.
Mercy Hospital in Des Moines, Iowa, had a grant to
prevent lifting injuries in hospitals. It trained over 3,000
hospital workers in Des Moines and surrounding counties. It had a
goal of reducing lost work days by 15 percent. The goal was
surpassed, and, six months after the training, none of those trained
experienced a lost workday due to back injury.
Hunter College in New York City trains ergonomics
trainers for the United Paperworkers International Union. The
trainers then return to their locals and conduct ergonomics training
for union members. As a result of this training, changes are being
made at some workplaces. Examples include purchasing new equipment
that eliminates or reduces workers' need to bend or twist at the
workstation, rotating workers every two hours with a ten-minute
break before each rotation, and modifying workstations to reduce
worker strain.
b. Education and Outreach. To provide a forum to discuss ergonomic
programs and to augment information in the literature with the
experience of companies of different sizes and from a variety of
industries, OSHA and NIOSH sponsored the first in a series of
conferences that brought industry, labor, researchers, and consultants
together to discuss what works in reducing MSDs. The 1997 OSHA and
NIOSH conference was followed by 11 more regional conferences across
the country. OSHA and NIOSH held the second national conference on
ergonomics in March of 1999. More than 200 presentations were given at
the conferences on how companies have successfully reduced MSDs.
Presentations were made by personnel from large and small companies in
many different industries.
Other examples of successful ergonomics programs have come from
OSHA's Voluntary Protection Program (VPP). The VPP program was
established by OSHA to recognize employers whose organizations have
exemplary workplace safety health programs. Several sites that have
been accepted into VPP have excellent ergonomics programs.
In addition to OSHA's enforcement efforts, the Agency's Ergonomics
Program Management Guidelines for Meatpacking Plants (``Guidelines'')
(Ex. 2-13) are viewed by many as essential to the implementation of
successful workplace programs addressing ergonomic hazards. For
example, in contrasting OSHA's proposal to the Guidelines, IBP Inc.'s
Bob Wing acknowledged that the Guidelines had been successful (Ex. 30-
4046, p.1). Similarly, the American Meat Institute (``AMI''), the main
representative for the U.S. meat industry, including 276 meat packers
and processors, who operate 559 facilities, acknowledged that the
industry worked with OSHA on the Guidelines, and has been using them
for nearly ten years (Ex. 30-3677, p.1). The AMI notes that the
Guidelines work and that the industry has made substantial progress in
addressing ergonomic issues since development of the Guidelines (id. at
1-4). The AMI recommended that the Guidelines be extended throughout
general industry (id. at 4). The utility of OSHA's Guidelines also was
hailed by the United Food and Commercial Workers' Union, which noted
that upon publication of the Guidelines, industry began to respond both
from the standpoint of technology as well as ergonomics programs (Ex.
32-210-2, pp. 25-26). The success of the Guidelines led to their use
and acceptance in other industries. The poultry industry appears to
have secured substantial reductions in chronic MSDs from adherence to
the principles in the document (Ex. 30-3375, p.1.).
2. Ergonomics Best Practices Conferences
During the period from Sept. 17, 1997 through Sept. 29, 1999, OSHA
and its Regional Education Centers co-sponsored 11 Ergonomics Best
Practices Conferences. These Conferences were designed to provide good
examples of practical and inexpensive ergonomics interventions
implemented by local companies. The concept was that if OSHA and its
Regional partners could initiate the development of a network of local
employers, contractors, and educators to provide practical information
to solve ergonomics problems, it would be assisting employers in
providing a workplace for employees that would be ``free of recognized
safety and health hazards.'' To date, attendance has exceeded 2,400
participants, including employers, contractors, and employees. Finally,
OSHA has made hundreds of outreach presentations to labor, trade
associations, large and small businesses, and professional
organizations during the development of the proposed rule.
3. Enforcement
In the absence of a federal OSHA ergonomics standard, OSHA has
addressed ergonomics in the workplace under the authority of section
5(a)(1) of the OSHAct. This section is referred to as the General Duty
Clause and requires employers to provide work and a work environment
free from recognized hazards that are causing or are likely to cause
death or serious physical harm.
OSHA has successfully issued over 550 ergonomics citations under
the General Duty Clause. In the majority of these cases, cited
employers have recognized that the implementation of ergonomics
programs is in their best interest and that of their employees.
Examples of companies cited under the General Duty Clause for
ergonomics hazards and which then realized a substantial reduction in
injuries and illnesses after implementing ergonomics programs include:
the Ford Motor Company, Empire Kosher Foods, Sysco Foods, and the
Kennebec Nursing Home.
Two cases have been decided so far by the Occupational Safety and
Health Review Commission.
In the first general duty clause case litigated by the Occupational
Safety and Health Review Commission, Pepperidge Farm, the Review
Commission recognized that excessive lifting and excessive repetitions
were recognized ergonomic hazards that had caused and were likely to
cause serious physical harm to employees whose work tasks required such
activity. The Commission specifically noted that carpal tunnel syndrome
and other soft tissue injuries found at the cited plant were caused by
work tasks; the Commission relied principally on direct medical
evidence, expert medical opinion, the incidence of injury, and the
epidemiological studies and testimony in the record in reaching this
finding. The Commission also agreed that an employer could be required
to undertake a process-based, incremental approach to abating ergonomic
hazards. The citations relating to the excessive lifting hazard were
affirmed by the Commission, while those relating to the excessive
repetitions were vacated based on a finding that the Secretary had
failed to prove feasible means of abatement in addition to those found
to have been undertaken by the company.
In the second general duty clause case litigated by the Commission,
Beverly Enterprises, the Commission held that the company's practices
for lifting patients in its nursing homes exposed its nursing
assistants to a serious recognized hazard. Beverly's nursing assistants
suffered a disproportionate number of cases of lower back pain, which
was often so severe that the employee would be off work for long
periods of time, in some cases six months to over a year. The
Commission found that manual lifting of nursing home residents is a
known and recognized risk factor for lower back pain and that the
company recognized the hazard.
[[Page 68268]]
When serious physical harm cannot be documented in the work
environment but hazards have been identified by OSHA, compliance
officers both discuss the hazards with the employer during the closing
conference of an inspection and write a letter to the employer. These
letters are called ``Ergonomic Hazard Alert Letters.'' From fiscal year
1997 through October 3, 2000, approximately 498 such letters have been
sent to public and private sector employers under Section 20 of the OSH
Act. These letters involve no penalty and are strictly consultative in
nature; they reflect OSHA's responsibility to provide consultation on
ergonomics to employers. Ergonomic Hazard Alert Letters have been sent
to employers in approximately 50% of OSHA's ergonomic inspections.
Since ergonomic solutions vary from one industry to another, OSHA
has provided both general and industry-specific training to its
compliance officers. Currently, the OSHA Training Institute (OTI) in
Des Plaines, IL, offers three main ergonomic courses to OSHA compliance
staff: Principles of Ergonomics Applied to Work-Related Musculoskeletal
and Nerve Disorders (#225); Ergonomics Compliance (#325), an advanced
ergonomics course; and Nursing Home Enforcement Training (#840). A
fourth course, Healthcare (#336), has been in development and will be
piloted on November 14, 2000 through November 17, 2000. That course
will be designed to help OSHA compliance officers, as well as
employers, to identify ergonomic and other hazards within healthcare
facilities, with a specific emphasis on hospitals. Over 600 OSHA
compliance staff members have been trained in these courses within the
past three years alone. The courses typically cover three weeks of
material.
Currently, the Principles of Ergonomics Applied to Work-Related
Musculoskeletal and Nerve Disorders course also is open to the public
through OTI's 12 Regional Education Centers throughout the United
States. Since that course has been available nationwide, public
interest has been high, and the Education Centers have been scheduling
courses on a regular basis to meet the constant demand. Although the
new Healthcare Course is available currently only to OSHA compliance
officers, after the pilot period ends it will be open to the public on
a limited basis.
In addition to education and training opportunities, OSHA has
appointed one Regional Ergonomics Coordinator in each of OSHA's 10
regional offices, and one Area Office Ergonomics Coordinator in each
area office. These coordinators meet on a monthly basis to discuss
recent inspections, case developments, and scientific literature on
ergonomics; to share knowledge of ergonomic solutions; and to ensure
that enforcement resources are provided to compliance staff for
enforcement. A PhD level, professionally certified ergonomist serves as
the National Ergonomics Enforcement Coordinator in OSHA's Directorate
of Compliance Programs.
4. Corporate-Wide Settlement Agreements
Among the companies that have been cited for MSD hazards, 13
companies covering 198 facilities agreed to enter into corporate-wide
settlement agreements with OSHA. These agreements were primarily in the
meat processing and auto assembly industries, but there also were
agreements with telecommunications, textile, grocery warehousing, and
paper companies. As part of these settlement agreements, the companies
agreed to develop ergonomics programs based on OSHA's Meatpacking
Guidelines (Ex. 2-13) and to submit information on the progress of
their programs.
OSHA held a workshop in March 1999, in which 10 companies described
their experience under their settlement agreement and with their
ergonomics programs. All the companies that reported results to OSHA
showed a substantially lower severity rate for MSDs since implementing
their programs (Ex. 26-1420). In addition, most companies reported
lower workers' compensation costs, as well as higher productivity and
product quality. A report from the March 1999 workshop on corporate-
wide settlement agreements summarizing the results achieved by the 13
companies involved has been placed in the docket (Ex. 26-1420). Only 5
of the 13 companies consistently reported the number of MSD cases or
MSD case rates. All five companies that reported data on MSD-related
lost workday rates showed a significant decline in the number of lost
workdays. None of the companies that reported severity statistics
showed an increase in lost workdays as a result of the ergonomics
program.
Similarly, the success of OSHA enforcement coupled with settlements
requiring comprehensive ergonomics programs was confirmed by the United
Food and Commercial Workers International Union. The union recognized
that ``* * * [t]he majority of our successful programs in the
meatpacking and poultry industries were propelled by OSHA enforcement.
Ergonomic settlement agreements and corporate-wide settlement
agreements (CWSAs) * * * demonstrate industry recognition of the
existence of MSD hazards and the elements of a program to prevent
worker injuries arising from exposure to these hazards'' (Ex. 32-210-2,
p. 5). The UFCW confirmed the efficacy of these agreements and
resulting programs through a number of examples. One was that of IBP's
Dakota City meatpacking plant that implemented a comprehensive program
as a result of citations and subsequent settlement agreement. Cost
savings attributed to the program ``* * * were realized in the
following areas: [employee] turnover was down significantly * * *;
[MSD] incidence dropped dramatically; surgeries fell; [and] workers'
compensation costs were reduced significantly'' (id. at 9).
C. Summary
As this review of OSHA's activities in the last 20 years shows, the
Agency has considerable experience in addressing ergonomics issues.
OSHA also has used all of the tools authorized by the Act--enforcement,
consultation, training and education, compliance assistance, the
Voluntary Protection Programs, and the issuance of voluntary
guidelines--to encourage employers to address musculoskeletal
disorders, the single largest occupational safety and health problem in
the United States today. These efforts, and the voluntary efforts of
employers and employees, have led to the recent 5-year decline in the
number of reported lost workday ergonomics injuries. However, in 1997,
there were still more than 626,000 lost workday MSD injuries and
illnesses reported.
Promulgation of an ergonomics program standard will add the only
tool the Agency has so far not deployed against this hazard--a
mandatory standard--to these other OSHA and employer-driven
initiatives. Over the first 10 years of the standard's implementation,
OSHA predicts that more than 3 million lost workday musculoskeletal
disorders will be prevented in general industry. Ergonomics programs
can lead directly to improved product quality by reducing errors and
rejection rates. In an OSHA survey of more than 3,000 employers, 17
percent with ergonomics programs reported that their programs had
improved product quality. In addition, a large number of case studies
reported in the literature describe quality improvements. Thus, in
addition to better safety and health for workers, the standard will
save employers money, improve product quality, and
[[Page 68269]]
reduce employee turnover and absenteeism.
Section III. Legal Authority
A. General Criteria for OSH Act Standards
The purpose of the Occupational Safety and Health Act (``OSH Act'')
is ``to assure so far as possible every working man and woman in the
nation safe and healthful working conditions and to preserve our human
resources.'' 29 U.S.C. 651(b). To further this goal, Congress
authorized the Secretary of Labor to promulgate and enforce
occupational safety and health standards. Section 6(b) of the OSH Act,
29 U.S.C. 655(b) (authorizing promulgation of standards pursuant to
notice and comment); 654(b) (requiring employers to comply with OSH Act
standards). This standard is being issued pursuant to section 6(b).
The OSH Act defines an ``occupational safety and health standard''
as ``a standard which requires conditions, or the adoption or use of
one or more practices, means, methods, operations, or processes,
reasonably necessary or appropriate to provide safe or healthful
employment and places of employment.'' Section 3(8) of the Act, 29
U.S.C. 652(8).
A standard is ``reasonably necessary or appropriate'' within the
meaning of section 3(8) if it (1) substantially reduces or eliminates a
significant risk of material impairment to worker health, safety, or
functional capacity; (2) is technologically and economically feasible
to implement; (3) is cost effective; (4) is consistent with prior
agency action or supported by a reasoned justification for departing
from prior agency action; (5) is supported by substantial evidence; and
(6) is at least as protective as any applicable national consensus
standard. 58 FR 16612, 16614 (March 30, 1993). To fulfill the
congressional purpose underlying the Act, all OSH Act standards must be
highly protective. Id. at 16614-15.
OSHA's determination that a particular level of risk is
``significant'' is based largely on policy considerations. See
Industrial Union Dep't, AFL-CIO v. Marshall, 448 U.S. 607, 656 n. 62
(1980) (Benzene). The factors that enter into such a determination
include the seriousness of the injuries or illnesses a standard will
prevent, the likelihood that a particular employee will contract such
an injury or illness, and the total number of employees affected. Where
the standard seeks to prevent fatal illnesses and injuries, OSHA has
generally considered an excess risk of 1 death per 1000 workers over a
45-year working lifetime as clearly representing a significant risk.
See Benzene, 448 U.S. at 646; UAW v. Pendergrass, 878 F.2d 389, 393
(D.C. Cir. 1989) (Formaldehyde); Building & Constr. Trades Dep't v.
Brock, 838 F.2d 1258, 1264 (D.C. Cir. 1988) (Asbestos). But nonfatal
injuries and illnesses are often disabling and debilitating, and death
is clearly not a precondition to a finding of significant risk of
material impairment. See American Textile Mfrs. Inst. v. Donovan, 452
U.S. 490, 506 n. 25 (1981) (Cotton Dust) (upholding OSHA's finding that
cotton dust exposure at levels that caused chronic and irreversible
pulmonary disease presented a significant risk to workers); AFL-CIO v.
OSHA, 965 F.2d 962, 975 (11th Cir. 1992) (upholding OSHA's finding that
``there is a level at which [sensory] irritation becomes so severe that
employee health and job performance are seriously threatened.'');
Formaldehyde, 878 F.2d at 396-399 (upholding OSHA's finding that
exposure limit of 1 ppm would eliminate significant risk of sensory
irritation due to formaldehyde exposure); United Steelworkers v.
Marshall, 647 F.2d 1189, 1245-51 (D.C. Cir. 1980), cert. denied, 453
U.S. 913 (1981) (Lead I) (upholding OSHA's determination that it was
appropriate and necessary to lower lead exposures to reduce cases in
which workers experience subclinical effects of lead exposure because
such subclinical effects are precursors of serious, lead-related
disease); Forging Indus. Ass'n v. Secretary of Labor, 773 F.2d 1436,
1444-46 (4th Cir. 1985) (en banc) (Noise) (upholding OSHA's significant
risk finding that a substantial percentage of workers exposed to
existing workplace noise levels would suffer material noise-induced
hearing loss). See also American Dental Ass'n v. Martin, 984 F.2d 823,
826 (7th Cir.), cert. denied, 510 U.S. 859 (1993) (Bloodborne
Pathogens) (noting that, in addition to causing death, AIDS and
Hepatitis B cause protracted pain and disability).
A standard is technologically feasible if the protective measures
it requires already exist, can be brought into existence with available
technology, or can be created with technology that can reasonably be
expected to be developed. See Cotton Dust, 452 U.S. at 513; Lead I, 647
F.2d at 1272; American Iron & Steel Inst. v. OSHA, 939 F.2d 975, 980
(D.C. Cir. 1991) (Lead II).
A standard is economically feasible if industry can absorb or pass
on the costs of compliance without threatening the industry's long-term
profitability or competitive structure. See Cotton Dust, 452 U.S. at
530 n. 55; Lead I, 647 F.2d at 1272; Lead II, 939 F.2d at 980.
A standard is cost effective if the protective measures it requires
are the least costly of the available alternatives that achieve the
same level of protection. Cotton Dust, 453 U.S. at 514 n. 32; UAW v.
OSHA, 37 F.3d 665, 668 (D.C. Cir. 1994) (Lockout/Tagout II).
Within the framework of these principles, OSHA has considerable
discretion (``virtually unlimited discretion,'' in the words of the
Lead I decision, 647 F.2d at 1230) in choosing the measures that are
reasonably necessary or appropriate to reduce significant risk. A
standard may address the hazards associated with an industry (e.g.,
logging, 29 CFR 1910.266), a kind of work (e.g., hazardous waste
cleanup, 29 CFR 1910.120), a category of equipment (e.g., respirators,
29 CFR 1910.134); an environmental area (e.g., confined spaces, 29 CFR
1910.146), a lack of information (e.g., hazard communication, 29 CFR
1910.1200), a class of harmful agents (e.g., bloodborne pathogens, 29
CFR 1910.1030), or may require general measures reasonably necessary
and appropriate for safety (e.g., safety and health programs for
construction, 29 CFR 1926.20(b)). Depending on the nature of the safety
and health issues, some standards require highly specific control
measures. E.g., 29 CFR 1926.652 (excavations). Others require the
employer to conduct a hazard assessment and establish measures meant to
address the problems found. E.g., 29 CFR 1910.119 (process safety
management). A typical standard for a toxic chemical will contain
permissible exposure limits, a control hierarchy for reaching those
limits, and provisions for assessing exposure, medical examinations,
medical removal, and training. E.g., 29 CFR 1910.1025 (lead). Some
toxic chemical standards also mandate specific work practices that must
be used to control exposures. E.g., 29 CFR 1910.1029 (coke oven
emissions); 29 CFR 1926.1101 (asbestos). Vaccination against Hepatitis
B is one of the protective measures required by the bloodborne
pathogens standard, 29 CFR 1910.1030. Medical removal protection
benefits have been mandated when they are needed to encourage employees
to participate in medical surveillance. 29 CFR 1910.1025 (lead); 29 CFR
1910.1027 (cadmium); 29 CFR 1910.1048 (formaldehyde); 29 CFR 1910.1052
(methylene chloride). Job hazard analysis and employee training are
cornerstones of some OSHA standards. E.g., 29 CFR 1910.147 (lockout/
tagout).
[[Page 68270]]
Section 6(b)(7) of the Act, 29 U.S.C. 665(b)(7), requires standards
to include provisions warning employees of hazards, the means needed to
protect themselves against those hazards, and, where appropriate,
medical examinations or tests to determine whether the health of
employees has been adversely affected:
Any standard promulgated under this subsection shall prescribe
the use of labels or other appropriate forms of warning as are
necessary to insure that employees are apprised of all hazards to
which they are exposed, relevant symptoms and appropriate emergency
treatment, and proper conditions and precautions of safe use or
exposure. Where appropriate, such standard shall also prescribe
suitable protective equipment and control or technological
procedures to be used in connection with such hazards and shall
provide for monitoring or measuring employee exposure at such
locations, and in such manner as may be necessary for the protection
of employees. In addition, where appropriate, any such standard
shall prescribe the type and frequency of medical examinations or
other tests which shall be made available, by the employer or at his
cost, to employees exposed to such hazards in order to most
effectively determine whether the health of such employees is
adversely affected by such exposure.
B. Section 6(b)(5)
Standards dealing with ``toxic materials or harmful physical
agents'' must, in addition to meeting the ``reasonably necessary or
appropriate'' test of section 3(8), conform to section 6(b)(5) of the
Act, 29 U.S.C. 655(b)(5). That section provides:
The Secretary, in promulgating standards dealing with toxic
materials or harmful physical agents under this subsection, shall
set the standard which most adequately assures, to the extent
feasible, on the basis of the best available evidence, that no
employee will suffer material impairment of health or functional
capacity even if such employee has regular exposure to the hazard
dealt with by such standard for the period of his working life.
The standards that are governed by section 6(b)(5) are sometimes
referred to as ``health'' standards, while non-6(b)(5) standards are
often referred to as ``safety'' standards. In enacting section 6(b)(5),
Congress recognized ``that there were special problems in regulating
health risks as opposed to safety risks. In the latter case, the risks
are generally immediate or obvious, while in the former, the risks may
not be evident until a worker has been exposed for long periods of time
to particular substances. It was to ensure that the Secretary took
account of these long-term risks that Congress enacted Sec. 6(b)(5).''
Benzene, 448 U.S. at 649 n. 54. According to its legislative sponsor,
section 6(b)(5) is intended to require OSHA to take into account the
potential that an employee may be exposed to the hazard for his entire
working lifetime ``so that we can get at something which might not be
toxic now, if he works in it a very short time, but if he works in it
the rest of his life it might be very dangerous.'' (Remarks of Senator
Dominick in colloquy with Senator Williams, Leg. Hist. at 503).
Section 6(b)(5) directs OSHA to set the standard which will, to the
extent feasible, protect employees from material impairment to their
health even if they are exposed regularly to the toxic chemical or
harmful physical agent for their entire working life. Section 6(b)(5)
thus requires that any standard governed by that section must reduce
significant risk to the lowest feasible level. See Cotton Dust, 452
U.S. at 509. Safety standards, which are not governed by section
6(b)(5), need not reduce significant risk to the lowest feasible level
but must provide a high degree of employee protection to be consistent
with the purpose of the Act. 58 FR at 16614-15. Safety standards may
therefore ``deviate only modestly from the stringency required by
Sec. 6(b)(5) for health standards.'' Lockout/Tagout II, 37 F.3d at 669.
The most important consideration in construing the scope of section
6(b)(5), as with any statutory provision, is the language of the
statute itself. In many cases, it is obvious whether a hazard is a
``toxic material'' or ``harmful physical agent'' subject to section
6(b)(5). Other hazards are less clear cut. OSHA has looked to several
factors in determining whether a standard fits within section 6(b)(5).
These include: Is the hazard likely to cause harm promptly or after a
short period of exposure, or does harm occur only after a lengthy
period of exposure? Is the connection between exposure and harm
apparent, or is it hidden and subtle? Is the harm coincident with
exposure, or is there a latency period with harm frequently manifesting
itself long after exposure has ended? See Benzene, 448 U.S. at 649 n.
54; UAW v. OSHA, 938 F.2d 1310, 1313 (D.C. Cir. 1991) (Lockout/Tagout
I); National Grain & Feed Ass'n v. OSHA, 866 F.2d 717, 733 (5th Cir.
1989) (Grain Dust).
Because the hazardous exposures regulated by this standard cannot
be neatly categorized by the factors discussed above, whether this
standard is governed by section 6(b)(5) poses difficult legal issues.
Some commenters supported characterizing the rule as a section 6(b)(5)
rule (Ex. 32-339-1 at p. 15 (AFL-CIO), while others opposed it. Ex. 32-
368-1 at p. 41-44 (National Coalition on Ergonomics); Ex. 32-206-1 at
p. 32 (American Iron & Steel Institute); Ex. 22-337-1 at pp. 3-7
(Integrated Waste Service Association); Ex. 30-1722 at pp. 33-35
(Chamber of Commerce). For a variety of reasons, OSHA concludes that
the standard is not subject to section 6(b)(5).
First, the language of the statute itself suggests that this rule
is not governed by section 6(b)(5). That provision applies to ``toxic
materials or harmful physical agents.'' The ``toxic materials'' to
which section 6(b)(5) refers include chemicals that are harmful if
breathed and/or ingested, such as asbestos, lead, and mercury. S. Rep.
No. 91-1282, 91st Cong., 2d Sess. at 2, reprinted in Committee Print,
Legislative History of the Occupational Safety and Health Act of 1970,
(Leg. Hist.) at 142. Ergonomic risk factors are clearly not a toxic
material. The ``harmful physical agents'' to which Congress referred
include laser radiation, ultrasonic energy, ionizing radiation, noise,
and vibration. Id. at 142-43. Of the harmful physical agents mentioned
by Congress, only vibration is a risk factor addressed by the
ergonomics standard. The remaining risk factors addressed by this
standard--force, repetition, awkward postures, and contact stress---are
fundamentally dissimilar from the harmful physical agents discussed by
Congress in that they relate to the position, movement, and loading on
the tissues of a worker's body rather than an external agent acting on
the body. See Pulaski v. California Occupational Safety & Health
Standards Board, 90 Cal. Rptr. 2d 54, 66 (Cal. Ct. App. 1999) (``a
repetitive motion injury is neither a `toxic material' nor a `harmful
physical agent.' ''). Therefore, the language and legislative history
of the Act indicate that the majority of the risk factors addressed by
this rule are not the type of hazards Congress intended to regulate
under section 6(b)(5).
In addition, the hazards addressed by the rule differ from those
addressed by section 6(b)(5). A lengthy period of exposure--years,
decades, or a working lifetime--is not necessary to create a
substantial risk of MSDs. As discussed below, both acute and chronic
exposures to ergonomic risk factors can result in MSDs. And, although
MSDs frequently develop gradually as a result of exposure over time,
the period of time necessary can be days, weeks, or months, rather than
the working lifetime referred to in the text of section 6(b)(5).
Moreover, MSDs are unlike illnesses, such as cancer, damage to the
reproductive system, and kidney failure, that can result from exposure
to toxic chemicals and appear long after the
[[Page 68271]]
exposure ceased even though the exposure caused no overt symptoms while
it was occurring. An employee who is beginning to suffer a work-related
MSD will frequently recover fully after the exposure to ergonomic risk
factors ceases. For that reason, the standard requires that an employee
who develops a work-related MSD be restricted from participating in
work activities or removed from exposure that will worsen the
condition.
The ability of employers and employees to generally recognize a
cause-and-effect relationship between ergonomic risk factors and many
MSDs also indicates that this final standard is a non-6(b)(5) rule. In
recent years, as both employers and employees have become more aware of
the connection between workplace risk factors and MSDs (see Tr. 5817-
19), employers have reported over 600,000 work-related MSDs that result
in lost workdays each year (64 FR at 65931). Employees themselves are
often able to recognize when MSDs result from exposure to risk factors
in the workplace. As OSHA noted in the proposal: ``Many employers have
told OSHA that talking with employees is a quick and easy way to find
out what kind of problems are in the job. They said that talking with
employees is often the best way to identify the causes of the problem
and to identify the most cost-effective solutions to it.'' 64 FR at
65805 (citing Ex. 26-1370). Testimony at the public hearing made the
same point. Dr. Suzanne Rodgers, a physiologist with 32 years'
experience in industrial ergonomics, testified that the companies she
had worked with learn about ergonomic problems by having employees tell
them when a problem exists. (Tr. 2144). Similarly, David Alexander, a
certified professional ergonomist with more than 25 years experience,
testified that encouraging employees to report early signs and symptoms
of developing MSDs was a key feature of a successful ergonomics
program. (Tr. 2145-46).
Further, Congress provided for special treatment of health hazards
in section 6(b)(5) because it recognized that employers had little
incentive to control exposures to toxic chemicals and harmful physical
agents when there is a long period between exposure to a hazard and the
manifestation of an illness. ``In such instances a particular employer
has no economic incentive to invest in current precautions, not even in
the reduction of workmen's compensation costs, because he seldom will
have to pay for the consequences of his own neglect.'' Leg. Hist. at
144. However, in this respect too, the ergonomics standard is more like
a typical safety standard than a health standard because many of the
costs of such injuries in terms of workers' compensation claims and
lost productivity are borne by employers as MSDs occur. Thus, the
ergonomics standard does not implicate section 6(b)(5)'s concern about
hazardous exposures that lead to illnesses after lengthy exposure and
therefore require special attention because employers can defer or
avoid the costs associated with such illnesses.
Finally, the type of information on which this standard is based is
far more characteristic of a safety standard than a section 6(b)(5)
health standard. The risk assessment for this standard, as for a
typical safety standard, is based on the number of injuries that have
resulted from past exposures to the hazard being regulated and the
percentage of those injuries that are preventable. By contrast, for a
typical health standard, the risk assessment is based on mathematical
projections to determine the significance of the risk at various levels
of exposure. See, e.g., Formaldehyde, 878 F.2d at 392-96 (discussing
OSHA's quantitative risk assessment for formaldehyde exposure). In the
proposal, OSHA recognized that the risk assessment methodology for this
standard was similar to that for a safety standard rather than a
typical health standard:
There is no need, in the case of musculoskeletal disorders, for
OSHA to engage in risk modeling, low-dose extrapolation, or other
techniques of projecting theoretical risk to identify the magnitude
of the risk confronting workers exposed to ergonomic risk factors.
The evidence of significant risk is apparent in the annual toll
reported by the Bureau of Labor Statistics, the vast amount of
medical and indemnity payments being made to injured workers and
others every year * * * and the lost production to the U.S. economy
imposed by these disorders.
64 FR at 65979.
In the NPRM, OSHA preliminarily concluded that the proposed
ergonomics standard was a section 6(b)(5) standard. The NPRM stated
that MSDs are caused by chronic and not by short-term exposures. 64 FR
at 66057. Some commenters contended that this statement was
inconsistent with OSHA's proposed definition of MSD and the inclusion
of ``traumatic'' injuries in its risk assessment. Ex. 22-337-1 at p. 7
(Integrated Waste Service Association); Ex. 32-241-4 at pp. 197-99
(Anheuser-Busch & United Parcel Service); Ex. 32-300-1 at pp. 15-16
(Edison Electric Institute). The proposed definition of MSD included
musculoskeletal disorders other than those caused by accidents and was
intended to include, e.g., back injuries caused by lifting (for
employees for whom manual handling is a core job element) without
regard to whether the injury resulted from a particular exertion or the
cumulative effect of numerous lifting exertions. As OSHA elsewhere
explained:
The pathogenesis of work-related MSDs can refer to either
single, point-in-time injuries, associated with work tasks that
result in activities in which tissue tolerance is acutely exceeded,
or circumstances in which the performance of specific work tasks or
combinations in which the performance of specific work tasks or
combinations of tasks over a prolonged period of time result in
small and repeated tissue damage.
64 FR at 65900.
Moreover, the BLS injury and illness data on which OSHA based its
proposed risk assessment (see 64 FR at 65931, Table VI-3) indicates
that many of the injuries considered MSDs resulted from short-term
rather than chronic exposures. OSHA has reexamined its reasoning in
light of these comments and agrees that the acute-chronic distinction
it drew in the proposal is inappropriate when describing MSDs and
therefore does not afford a proper basis for classifying this rule as a
section 6(b)(5) standard.
As discussed in more detail in the risk assessment section, the
injury and illness data reported by BLS categorizes each incident by
type of injury or illness and the nature of the exposure event leading
to the injury or illness (BLS 1992, Ex. 26-1372). Under the BLS data
collection system, employers are instructed to report musculoskeletal
injuries and illnesses under various codes, some of which represent
musculoskeletal system and connective tissue diseases and disorders
that result from repetitive activity and some of which represent other
types of exposure events. The BLS category that accounts for most of
the reported injuries and illnesses, 021, includes sprains, strains,
and tears of muscles, joints, tendons, and ligaments. The category is
described as representing traumatic injuries, which generally result
from a single event or exposure. Ex. 26-1372 (BLS Occupational Injury
and Illness Classification Manual).
In its preliminary risk assessment, the agency closely examined the
BLS data, excluded from its analysis injuries caused by accidents
(i.e., slips, trips, falls, and being struck by objects), and included
those codes that predominantly represented work-related MSDs, including
021, that were reported under the exposure event categories
[[Page 68272]]
most closely representing ergonomic risk factors. 64 FR at 65928. The
largest number of these injuries were classified under the exposure
category for ``overexertion,'' which includes primarily lifting,
lowering, pushing, pulling, and carrying. 64 FR at 65932. OSHA has
followed this same approach in its final rule and in the supporting
risk assessment, i.e., excluding musculoskeletal injuries due to
accidents but including those resulting from ergonomic risk factors. In
OSHA's view, when MSDs result from exposure to ergonomic risk factors,
any distinction between acute and chronic exposures is unimportant.
OSHA notes that the classification of these disorders as traumatic is
in part a convention of the recordkeeping system. OSHA's general
recordkeeping guidelines for back disorders instruct that because the
specific event causing such a disorder cannot always be pinpointed, to
keep recordkeeping determinations as simple and equitable as possible,
all back disorders should be classified as (traumatic) injuries rather
than (cumulative exposure) illnesses. BLS, Recordkeeping Guidelines for
Occupational Injuries and Illnesses (April 1986), at p. 38. Similarly,
OSHA's Ergonomics Program Management for Meatpacking Plants states that
all back cases are to be classified as injuries even though some back
conditions may be triggered by an instantaneous event and others
develop as a result of repeated trauma. Ex. 32-210-2-2 at p. 14.
Moreover, a number of experts testified in the hearings that a
substantial part of the MSD injuries classified under the BLS system as
traumatic in fact represent cumulative exposure. (Tr. 2175-77; 2236-44;
5802-04). In short, even though an MSD may be classified as
``traumatic'' in origin, it will often be the case that, while the
onset of the injury was sudden, the cause was exposure to ergonomic
risk factors over some period of time. However, it is neither necessary
nor meaningful to limit the standard's reach to MSDs that only occur
because of exposures that take place over some period of time. The
purpose of this standard is to reduce the number and severity of MSDs
by protecting workers against excessive exposure to ergonomic risk
factors and MSD hazards, and for that purpose it is irrelevant whether
those excessive exposures are ``acute'' or ``chronic.''
On reflection, OSHA has determined that other considerations relied
on in the NPRM are likewise unpersuasive. Although the standard
protects against one risk factor--vibration--that qualifies as a
``harmful physical agent,'' OSHA does not believe that factor alone
makes this a section 6(b)(5) standard. The standard is not a
``vibration'' standard but one that addresses the multifactorial causes
of MSDs. The risk factors that are not ``harmful physical agents''--
force, repetition, awkward posture, and contact stress--together
contribute substantially more to the vast majority of MSDs than does
vibration.
Similarly, that a provision in OSHA's standard governing access to
employee exposure and medical records (29 CFR 1910.1020(c)(13)) defines
``toxic substance or harmful physical agent'' as including ``repetitive
motion'' does not establish that repetitive motion is a harmful
physical agent within the meaning of section 6(b)(5). See Ex. 32-339-1
at p. 15 (AFL-CIO). Whether repetitive motion is a harmful physical
agent was not central to that rulemaking, which dealt with the access
of employees and OSHA personnel to employee records and did not
regulate particular hazards. In that rulemaking, interested parties had
no reason to argue whether a standard that regulates repetitive motion
is a section 6(b)(5) standard, and OSHA had no occasion to address that
issue. Moreover, the records access rule was not issued under section
6(b)(5) but under OSHA's general authority to issue standards (section
6(b)) and regulations (section 8(g)). And it was upheld in court as a
section 8(g) regulation rather than a section 6(b) standard. Louisiana
Chem. Ass'n v. Bingham, 731 F.2d 280 (5th Cir. 1984), aff'g 550 F.
Supp. 1136 (W.D. La. 1982). Therefore, the fact that the records access
rule applies to repetitive motion cannot be regarded as establishing an
OSHA policy that repetitive motion is a harmful physical agent for
purposes of section 6(b)(5).
C. This Final Rule Does Not Regulate non-Workplace Activities
Some commenters have pointed out that MSDs can result from personal
activities as well as from workplace exposures. Ex. 32-368-1 at p. 40
(National Coalition on Ergonomics); Ex. 32-241-4 at p. 49 (Anheuser-
Busch & United Parcel Service). They argue that OSHA is attempting
through this rule to regulate the nonwork activities that may
contribute to MSDs and that the rule is therefore outside OSHA's
authority. However, the rule regulates only conditions or activities in
workplaces, and OSHA clearly has the authority to issue the rule.
Many adverse health conditions can be caused or aggravated by both
work and nonwork exposures. For example, exposures to high noise levels
both inside and outside the workplace can contribute to a worker's
hearing loss. Nevertheless, OSHA has the authority to regulate harmful
noise levels in the workplace as long as the workplace exposures create
a significant risk of material impairment of health. Forging Indus.
Ass'n v. Secretary of Labor, 773 F.2d 1436, 1442 (4th Cir. 1985) (en
banc) (Noise).
Noise dealt with a challenge to the Hearing Conservation Amendment
to OSHA's occupational noise standard. That amendment establishes
certain requirements that must be met to reduce the incidence of and/or
prevent hearing impairment due to occupational noise exposure. Before
issuing the amendment, OSHA found that 10-15% of workers exposed to
noise levels below the permissible exposure limit (PEL) would suffer
material hearing impairment. 773 F.2d at 1443. OSHA based this finding
on a ``panoply of scientific reports and studies,'' including studies
done by the National Institute for Occupational Safety and Health
(NIOSH) and the Environmental Protection Agency (EPA). Id. OSHA also
found that those employees who had suffered a hearing decrement of 10
decibels in either ear faced a greater risk from continued exposure to
high levels of workplace noise than workers whose hearing was
unimpaired. Id. OSHA's Hearing Conservation Amendment provided hearing-
endangered workers with protection in the workplace in order to
decrease the risk of hearing impairment.
The Forging Industry Association (FIA) argued that ``because
hearing loss may be sustained as a result of activities which take
place outside the workplace--such as listening to loud music, age, or
engaging in certain recreational activities--OSHA acted beyond its
statutory authority by regulating non-occupational conditions or
causes.'' Noise, 773 F.2d at 1442. The court found ``no merit'' in
FIA's argument. The court ruled that OSHA properly relied on ``the
extensive and thorough research of several scientific institutions in
defining the problems related to industrially-caused hearing loss in
designing its proposal.'' Id. at 1443. The court also stressed that
OSHA excluded non-occupational hearing loss from the rule. Id. at 1444
(``To be sure, some hearing loss occurs as a part of the aging process
and can vary according to non-occupational noise to which employees are
exposed. The amendment, however, is concerned with occupational noise--
a hazard of the workplace.''). The court ruled that the fact that non-
occupational hazards may contribute to hearing loss does not mean that
OSHA should refrain from
[[Page 68273]]
regulating workplace conditions that are shown to cause such loss:
The amendment provides that non-occupationally caused hearing
loss be excluded from its regulation. See 29 CFR 1910.95(g)(8)(ii),
1910.95(g)(10)(ii) (1984). Assuming, however, that some loss caused
by aging or smaller amounts of noise sustained for shorter periods
also aggravates the hearing loss incurred by an individual employed
in a high noise-producing industry, that is scant reason to
characterize the primary risk factor as non-occupational. Breathing
automobile exhaust and general air pollution, for example, is
damaging to lungs, whether healthy or not. The presence of unhealthy
lungs in the workplace, however, hardly justifies failure to
regulate noxious workplace fumes. Nor would there be logic to
characterizing regulation of the fumes as non-occupational because
the condition inflicted is aggravated by outside irritants.
Noise, 773 F.2d at 1444.
Like the Hearing Conservation Amendment to the Noise standard, this
final ergonomics rule regulates workplace hazards. As discussed in the
health effects section of this preamble, this rule addresses only
exposure to ergonomic risk factors that occurs in the workplace. The
MSDs that trigger action under the rule must be work-related and they
must have occurred in workers whose jobs place them at a heightened
risk of incurring a MSD because they are exposed to risk factors at the
levels in the Basic Screening Tool.
A decision by the Occupational Safety and Health Review Commission
supports OSHA's conclusion that the Act can properly address work-
related ergonomic hazards even though employees can also be exposed to
such hazards outside the workplace. In Pepperidge Farm, Inc., 17 O.S.H.
Cas. (BNA) 1993 (1997), the Commission held that where work was shown
to be a substantial contributing factor to MSDs, the fact that non-work
factors may also play a role did not preclude OSHA from requiring the
employer to abate the workplace hazards. In that case, Pepperidge Farm
contested a number of citations for ergonomic violations that OSHA had
issued under section 5(a)(1) of the Act. In order to prove a section
5(a)(1) violation, OSHA had to show that a condition or activity in the
employer's workplace presents a ``hazard to employees.'' 17 O.S.H. Cas.
(BNA) at 2009 (emphasis added). The company argued that section 5(a)(1)
should not apply to MSD workplace hazards because, among other things,
``non-workplace factors may cause or contribute to the illnesses at
issue and that individuals differ in their susceptibility to potential
causal factors.'' Id. at 2013. The Commission held that such factors
should not ``ipso facto'' preclude the possibility of enforcement under
section 5(a)(1). Id. The Commission also analyzed a significant amount
of evidence that showed a causal relationship between MSDs and
workplace hazards, including testimony from medical personnel who
examined injured workers, epidemiological data, and injury incidence at
a Pepperidge Farm plant. Id. at 2020-26. The Commission ultimately
found that there was a causal connection:
We therefore conclude that the Secretary has established on this
record a causal connection between [MSDs] affecting the employees at
Downington [a Pepperidge Farm plant] and their work on the biscuit
lines. In doing so, we are mindful that many of these injuries may
have had more than one causal factor and of the experts who contend
that the specific cause of such injuries is, essentially, unknowable
or presently unknown. As is the case with many occupational ills
with multiple possible causes, employees are more or less
susceptible to injury on the job because of the individual
attributes and backgrounds they bring to the workplace. As with
these other ills, the Secretary is not thus foreclosed from
attempting to eliminate or significantly reduce the hazard by
regulating what is shown to be a substantial contributing factor to
the worker injuries.
17 O.S.H. Cas. (BNA) at 2029.
The Commission's holding in Pepperidge Farm that the susceptibility
of some employees to a particular ailment does not preclude OSHA from
regulating workplace conditions or practices that cause or contribute
to that type of ailment is supported by other cases. In the asbestos
rulemaking, OSHA based its significant risk determination, in part, on
epidemiologic studies that included workers who smoked and were
therefore significantly more likely to contract cancer than those who
did not. Asbestos, 838 F.2d at 1265. The court held that OSHA was
justified in doing so. Smokers were not, the court said, ``so far
beyond the pale as to require OSHA to ignore them in computing the
risks of asbestos.'' Id. (emphasis added). See also Reich v. Arcadian
Corp., 110 F.3d 1192, 1198 (5th Cir. 1997) (Congress intended Act's
general duty clause to protect all employees, including those who are
especially susceptible). Thus, workers who engage in activities outside
the workplace that expose them to ergonomic risk do not thereby forfeit
on-the-job protection against exposure to excessive ergonomic risk
factors.
IV. Summary and Explanation
(a) What Is the Purpose of This Rule?
The first paragraph of the final standard sets out the purpose of
this ergonomics program standard. OSHA did not propose a purpose
paragraph, and thus no comments on this topic were received. OSHA has
decided to include a purpose statement in the final rule to clearly
indicate the goal of the standard and to differentiate between those
musculoskeletal disorders (MSDs) that are covered by the standard and
those that are not. It clarifies that the standard's purpose is to
reduce the number and severity of MSDs that are caused by occupational
exposure to ergonomic risk factors (also called ``ergonomic
stressors'') on the job.
As discussed in more detail below, the disorders addressed by this
rule include those of the muscles, nerves, tendons, ligaments, joints,
cartilage, blood vessels, and spinal discs occurring in the neck,
shoulder, forearm, wrist, hand, abdomen (hernias only), back, knee,
ankle, and foot. They include conditions classified by the Bureau of
Labor Statistics in its Annual Survey as illnesses (e.g., carpal tunnel
syndrome) and as injuries (e.g., low back pain), because MSDs include
many different disorders, affect many tissues and areas of the body,
and may be described by a wide range of medical diagnoses.
The terms used to describe this group of conditions have varied
over time and geographic region. For example, in Australia, MSDs are
often called ``Occupational Overuse Syndrome'' injuries. Other
frequently used terms include ``repetitive stress injuries,''
``cumulative trauma disorders,'' and ``soft tissue injuries.'' In
recent years, however, the term ``musculoskeletal disorders'' has
gained widespread acceptance by the scientific community, and OSHA uses
this term, or its abbreviation, MSD, throughout the regulatory text and
supporting analyses.
Paragraph (a) makes explicit that OSHA's ergonomics program
standard does not apply to injuries or illnesses caused by motor
vehicle accidents, slips, trips, falls, or similar accidents that
result in traumatic injuries on the job. By ``other similar
accidents,'' OSHA means, for example, caught in or caught between
injuries or other accidents resulting in blunt trauma. (Throughout this
notice, OSHA uses the terms ``work-related,'' ``caused by,''
``musculoskeletal disorders,'' ``risk factors,'' and ``exposure.'' For
a detailed discussion of these terms, see the relevant sections of the
Health Effects (Section V of the preamble), Summary and Explanation
(Section XI), and Legal Authority (Section III) sections of this
preamble.)
As stated in paragraph (a), the purpose of this standard is to
reduce the number and severity of MSDs caused by
[[Page 68274]]
workplace exposure to ergonomic risk factors, such as force, awkward
postures, or repetition, either alone or in combination. The standard
requires employers to implement an ergonomics program to address risk
factors in jobs that pose an MSD hazard to the employees in those jobs.
As discussed in detail in Section VI of the preamble, Risk Assessment,
ergonomics programs have been shown to reduce the number and severity
of MSDs in old and new facilities, in large and small workplaces, and
in a wide variety of jobs ranging from computer use to solid waste
handling, from assembly line operations to patient handling, and from
beverage distribution to meat processing.
Reducing the number and severity of MSDs in the workplace is the
goal of successful ergonomics programs everywhere. As the more detailed
discussions in this preamble and in the Agency's economic analysis will
show, this goal cannot be achieved overnight, although positive results
are generally observed soon after program implementation. One effect of
a new ergonomics program, which at first glance may not appear to be a
positive one, is that the number of MSDs and MSD signs and symptoms
reported in the first months after the implementation of the program
may actually increase. This initial increase in the number of MSD
reports reflects the heightened awareness of ergonomics, the importance
of early reporting, and the value of conservative treatment that
routinely accompanies program implementation. In most workplaces, this
increase is short-lived, generally lasting less than a year and almost
never more than two years. The severity of the MSDs reported, however,
generally decreases in the first few months after program initiation
and declines steadily thereafter, before leveling off as the program
matures. Thus, OSHA intends and expects the final rule to reduce the
number and severity of MSDs in the workplaces covered by the standard
over the first few years after the standard is fully in effect; OSHA is
aware that the standard's purpose will not be fully achieved in the
short run. When ergonomic programs mature, they continue to demonstrate
ongoing reductions in the number of MSDs caused by workplace risk
factors and in the severity of those MSDs that do occur.
The standard's purpose paragraph also reflects OSHA's awareness
that work-related MSDs will continue to occur in many workplaces even
after implementation of an effective ergonomics program that complies
fully with this final rule. The standard being issued today is thus not
a ``zero-risk'' standard. It recognizes that substantially reducing the
number and severity of these disorders is possible in most, if not all
workplaces, although many establishments may not be able to eliminate
MSDs completely. (For a discussion of OSHA's analysis of the standard's
projected effectiveness, see the Risk Assessment section of the
preamble (Section VI) and Chapter IV, Benefits, of the Final Economic
and Regulatory Flexibility Analysis.)
Paragraph (b)--Does This Standard Apply To Me? (Scope and Application)
Discussion of the scope and application of the final rule is
divided into three parts. Part I discusses which employers and
operations the standard covers. Part II explains the exclusions from
coverage of the rule and OSHA's authority to limit the standard's
coverage to general industry. Part III addresses other scope and
application issues raised during the rulemaking.
Part I--Scope and Application of Standard to General Industry
Employers
A. Scope of Coverage
Paragraph (b) states that the standard applies to general industry
employment, which means all employment except for railroads and
employment covered by OSHA's agriculture, construction, and maritime
standards. Unlike other OSHA general industry standards, however, this
standard does not cover general industry work performed incidentally to
or in support of construction, maritime, or agricultural employment or
railroad operations. This means that functions such as office work,
management and support services are not covered by the standard, and
that, for example, a construction company office or a marine terminal
cafeteria would not be covered. However, a construction company real
estate division engaged in selling the finished properties would not be
performing functions directly in support of the construction operations
and would be within the scope of the standard.
The final rule thus imposes coverage based on the business category
in which the employer belongs, e.g., general industry as opposed to
construction. This marks a departure from the Agency's past practice of
imposing coverage based solely on the job that an employee is
performing. The approach adopted in this standard, i.e., basing
coverage on the industry classification of the employer, is appropriate
here because of the unique nature of ergonomic problems and solutions.
The requirement to implement an entire program when an MSD incident
occurs in a job that meets the Action Trigger is more practical
administratively if employers are required to take this broad approach.
Moreover, the standard does not apply to jobs or operations that
are normally covered exclusively by the construction, agriculture and
maritime standards, even if those operations are performed in a general
industry establishment or for a general industry employer. Thus a
construction crew whose sole job is to build in-plant structures in a
steel mill is engaged in construction and is not covered by this
standard, even though the steel mill itself is a general industry
operation. This is consistent with the operation of other OSHA
standards.
Although the proposal also applied only in general industry, its
scope provision stated that coverage was further limited to general
industry manufacturing jobs, manual handling jobs, and jobs with MSDs.
Manufacturing jobs were defined as ``production jobs'' in which the
activities of producing a product made up a ``significant amount'' of
the employee's worktime. Manual handling jobs were those in which the
employee performed ``forceful'' lifting (i.e., lifting or lowering,
pushing or pulling, or carrying) and the forceful lifting tasks were a
``core element'' of the employee's job. Jobs with MSDs were defined as
jobs in which an OSHA recordable MSD occurred in a job in which the
physical work activities and conditions were reasonably likely to cause
that type of MSD, and the activities were a core element of the job or
accounted for a significant amount of the employee's worktime (64 FR
65779-82).
The proposal explained that OSHA was focusing on general industry
in this first ergonomics rulemaking because the problems in general
industry are particularly severe and the solutions are well-understood
(64 FR 65776). Some commenters agreed with the proposed rule's scope,
and its emphasis on manufacturing and manual handling jobs (Exs. 31-3,
31-71, 31-180, 31-252, 31-284, 32-300). More, however, argued either
that the rule should not exempt construction, maritime and agricultural
employment (Exs. 30-400, 30-1294, 31-14, 31-105, 31-143, 31-156, 31-
345, 31-352, 32-198-4, 32-210, 32-359-1, 32-461-1, 30-1294, 500-218),
or that the rule should exempt even more industries or jobs (Exs. 30-
372, 30-494, 1-248, 31-280, 32-77-2, 32-78, 32-234, 30-2208, 30-3167,
32-77-2, 601-X-1, Tr. 3126).
[[Page 68275]]
Many of the commenters who believed that the scope of the proposed
rule was too broad argued that it incorporated a ``one size fits all''
approach that was inappropriate for the wide variety of operations
found in general industry (Ex. 30-494, see also Exs. 30-380, 30-372,
30-531, 30-3167, Tr. 3126, 3332). Some of these commenters pointed out
that there was great variation in MSD rates, prevalence of ergonomic
risk factors, and levels of exposure to those risk factors across
general industry (Exs. 30-541, 30-3167). Others pointed out that jobs
differed greatly within and across industries, and claimed that OSHA
did not have enough information about effective controls in all
industries (Exs. 30-425, 30-3167, 32-77, 32-211-1, 32-2208). The focus
of both these groups of comments was that OSHA did not have enough
knowledge or evidence to find that the same approach to controlling
ergonomic hazards would be appropriate in all of these disparate
circumstances.
A number of commenters suggested ways to limit the standard's
scope. Some urged OSHA to focus the rule more narrowly on those jobs or
industries with the highest MSD rates or those deemed to have high risk
potential (Exs. 30-13, 30-425, 30-2208, 30-3167, 31-248, 31-280, 32-78,
32-234, Tr. 2729-30). For example, Larry Leahy of Ruth Constant &
Associates, a home health care service agency, questioned why OSHA was
covering all of general industry when 60 percent of the MSDs occurred
in industries representing a fairly small percentage of the national
workforce (Ex. 30-611). Todd McCracken, of National Small Business
United, argued:
There is a need to focus on particular types of jobs . . . There
are specific types of jobs in specific industries where MSDs are
much more likely to occur (Tr. 2729-30).
Similarly, Organization Resources Counselors, Inc. (ORC)
recommended that the rule only cover high risk occupations or employers
whose MSD incident rates were above the national background level (Ex.
32-78; see also Tr. 10633-35). The Small Business Administration's
Office of Advocacy suggested covering only manual handling jobs, which
it claimed accounted for 78 percent of all MSDs (Ex. 601-X-1).
As discussed in detail throughout this preamble, OSHA believes that
the record supports coverage of all of general industry within the
overall scope of the standard. The final standard does not, however,
prescribe a one-size-fits-all solution for a wide range of problems in
diverse jobs and industries. Even in those situations where significant
ergonomic hazards exist, the commonality of the response required by
this standard is to implement an ergonomics program. The specific focus
of that program will be targeted to the particular hazards and
conditions at each workplace. The control strategies for ergonomic
hazards will be targeted even more specifically to the needs of each
workplace. And the extent of each employer's compliance obligation will
be determined by the extent of the problem at that employer's
workplace. Thus the fact that the rule applies to a variety of hazards
at differing workplaces does not in any way mean that the employers in
all of those workplaces need to take the same actions.
Work-related MSDs are widespread throughout general industry. They
occur in every single sector within general industry, according to the
Bureau of Labor Statistics (BLS). In 1996, according to BLS, there was
no industry sector that did not report the occurrence of at least
several hundred work-related MSDs, with a large number of industries
reporting tens of thousands of work-related MSDs. Moreover, high
concentrations of work-related MSDs are reported in a wide variety of
occupations that are found throughout general industry establishments.
BLS data for 1996 show that general industry truck drivers, laborers,
and janitors, occupations found widely dispersed throughout general
industry sectors, experienced more than 48,000, 38,000 and 15,000 lost
workday (LWD) MSDs, respectively. (See Section VII (Risk Assessment) of
this preamble.)
Evidence submitted by rulemaking participants confirms the broad
distribution of MSDs and MSD hazards throughout general industry. For
example, the Service Employees International Union (SEIU) submitted
evidence that union members working in a variety of health care
settings (e.g., hospitals, nursing homes, private homes, pharmacies)
have suffered MSDs (Ex. 32-311-1). These health care workers include
registered nurses, licensed practical nurses, nurses' aides, orderlies,
physical therapists, radiology technicians, housekeepers (maids and
housemen), laundry workers, laundry machine operators, maintenance
workers, kitchen and food preparation workers, central supply workers,
and janitors and cleaners. In addition, SEIU said that other union
members such as janitors and cleaners working in a variety of other
industries, including hotels/motels, restaurants, offices have also
experienced MSDs (Ex. 32-311-1).
At the rulemaking hearing, many employees testified that they had
suffered serious work-related MSDs. Occupations in which these
employees were working when they became injured include:
Nurse
Home health care aide
Nurses' aide
Package delivery
Package sorting
Meatpacking and poultry processing
Office clerical worker
Internet publishing
Machinists
Sewing machine operator
Truck driver
Food warehousing and distribution
Grocery store cashier
Physical therapist
Mail carrier
Letter sorter
Teacher
Teachers' aide
Auto assembly
Molding and casting machine operator
Reporter
Grocery shelf stocker
Sonographer
Television film editor
Electrical workers
(Exs. 30-4200, 32-185-3, 32-210-2, 32-198-3, 32-311, 500-218, Tr.
4009-10, 4235, 4240, 4234, 6004, 6009, 6319, 6321-22, 6333, 7320-21,
7335-37, 7341-42, 17950).
Doctors and other health care professionals (HCPs) also testified
that they had treated employees in many different jobs and industries
for work-related MSDs (Exs. 37-12, 37-28, Tr. 14973, 15045-46, 16819,
16829). Dr. Robert Harrison testified that, in his research and
practice, he had diagnosed and treated over 1,000 patients with work-
related MSDs from a wide variety of industries and occupations,
including (Ex. 37-12):
Postal workers
Materials handlers
Computer operators
Grocery checkout clerks
Meat processors
Assemblers
Seamstresses
Telephone operators
Pipefitters
Customer service agents
Machine operators
Automotive manufacturing workers
Aircraft manufacturing workers
Optical scanners
Graphic artists
Restaurant workers
Bakers
Plumbers
Letter sorters
[[Page 68276]]
Dr. Robin Herbert, the medical co-director of the Mt. Sinai Center for
Occupational and Environmental Medicine, testified that she had treated
or supervised the treatment of more than 2,000 patients with upper
extremity MSDs in the past 12 years:
My patients have included journalists, computer graphic artists,
health care workers, technicians for telephone companies, automobile
manufacturing workers, cashiers, garment workers, meat wrappers,
dental hygienists, secretaries, and chefs. Industries from which I
have seen patients include publishing, journalism, entertainment,
manufacturing, health care, transportation, and telecommunications
(Ex. 37-28).
Dr. George Piligian, who also works at the Mount Sinai Center,
testified about finding and treating MSDs in dancers, musicians,
editors, secretaries, telephone operators, sewing machine operators and
hospital workers (Tr. 7813-20).
Similarly, insurance companies, employers and trade associations
representing the following industries testified about the
implementation of ergonomics interventions and programs because work-
related MSDs were occurring among workers in the following
environments:
Chemical manufacturing
Pharmaceutical manufacturing
Automotive manufacturing
Automotive repair
Boat manufacturing
Textile manufacturing
Clothing manufacturing
Printing
Dental
Meatpacking
Electric utility
Hospitals
Office workers
Hotel/motel
Emergency medical services
Furniture manufacturing
Oil and gas drilling
Moving and storage
Fabricare
Nursing homes
Telephone operation and installation
Funeral and cemetery
Insurance
Solid waste removal and recycling
Paint manufacturing
Poultry processing
Food warehousing and distribution
Beverage delivery
Assembly line
Grocery store
Retail clothing
Foundry
(see, e.g., Tr. 3337-9, Tr. 5104, Tr. 8458-8480, Tr. 16553-57).
Finally, several of the ergonomists who appeared as OSHA's expert
witnesses, including David Alexander (Ex. 37-7), David Caple (Ex. 37-
20), Dennis Mitchell (Ex. 37-11), Maurice Oxenburgh (Ex. 37-24),
Suzanne Rodgers (Ex. 37-25), and John Rosecrance (Ex. 37-26), testified
that employers in the following different industries had hired them to
help reduce the incidence of work-related MSDs among employees:
Newspaper
Luggage manufacturing
Meatpacking
Packaging
Papermaking
Plumbing supply
Route sales and delivery
Film products manufacturing
Hospitals
Heavy appliance manufacturing
Automobile manufacturing and subassembly
Furniture manufacturing
Paper and pulp products
Forest products
Food service
Clerical
Electronics
Clothing and textile manufacturing
Baking
Restaurant
Home and office furniture manufacturing
Hospitality--hotel/motel
Fiber manufacturing
Logistic and supply warehousing
Telecommunication
Textile and apparel manufacturing
Metal forging and cast metals
Electronics manufacturing
Health care
Petroleum
Electrical manufacturing
Airline freight handling
Steel manufacturing
Fishing
Aircraft manufacturing
Gas and electric utility
Flooring products
Computer and computer accessory manufacturing
Plumbing fixtures manufacturing
Food products manufacturing and processing
Chemical manufacturing
Printing
Waste treatment
Plastic manufacturing
Clothing retail
Power plants
Research laboratories
Transportation
Printing
Upholstery
Rubber manufacturing
Welding
Mail sorting and delivery
Transportation
Electronics
Medical products manufacturing
All of this evidence supports OSHA's decision to provide the
protections of this standard to all general industry employees. On the
other hand, OSHA recognizes that there may be some general industry
employers with few or no MSD hazards. Until an MSD is reported, the
employer's obligation is limited to distributing the information in
paragraph (d).
B. Application of Requirements
Unlike the proposal, this final standard does not differentiate
among general industry employers. Under the proposal, employers of
employees engaged in manufacturing or manual handling would have been
required to implement some elements of an ergonomics program whether or
not their employees had suffered any MSDs. Other general industry
employers would not have had to take any action until a ``covered MSD''
occurred, and a covered MSD was defined differently for them than for
manufacturing and manual handling employers (64 FR 65782-84, 65791). In
this final standard all general industry employers are required, as
specified in paragraph (d), to provide basic information on ergonomics
and the standard to their employees. The employer has no further
obligation until the employee reports an MSD or the signs or symptoms
of an MSD (see paragraph (e)).
OSHA developed its bifurcated proposal because about 60 percent of
all reported MSDs occurred in manufacturing and manual handling jobs,
even though those jobs accounted for less than 30 percent of general
industry employment. Although some commenters agreed that this might
justify a focus on manufacturing and manual handling (Ex. 30-4837),
very few expressed satisfaction with the proposed approach (Exs. 30-
400, 31-78, 32-198, 32-210, 32-461, 500-218, Tr. 3224). Many commenters
said that manufacturing and manual handling jobs should not be singled
out because MSD hazards were present and MSD rates were high in other
jobs and industries (Exs. 30-626, 30-2208, 31-156, 500-218). For
example, participants said that there were many MSD hazards and MSDs in
``any job involving regular computer use,'' therefore, programming,
journalism, data entry, system administration, accounting, analysis,
and insurance jobs should have been included by name (Exs. 30-49, 30-
400, 31-3, 31-12, Tr. 2783, 2932). Likewise, other commenters argued
that custodians and supermarket employees including cashiers, bakery
personnel, baggers and
[[Page 68277]]
stockers should be treated on par with manufacturing and manual
handling jobs because they involved the same hazards (Ex. 31-23, 32-
210; see also Exs. 30-400, 31-78, 32-198, 32-210, 32-461, 500-218, Tr.
3224).
Another group of commenters opposed requiring any employers to take
any type of action before a work-related MSD is reported (Ex. 30-240,
32-300, 30-542, 601-X-1) on the grounds that it was a ``waste of
resources'' to require a basic program for employers with manufacturing
and manual handling jobs that have no MSDs (Ex. 30-542). For example,
one said:
If an employer is in one of the targeted industries but has not
had MSDs, why force the bureaucracy of program implementation upon
him or her * * * (Ex. 30-240).
And while some participants found the definitions of manufacturing
and manual handling jobs adequate to identify whether a particular job
was covered (Exs. 30-3934, 30-4837, 31-38, 31-36, 31-113, 31-173, 31-
205, 31-229, 31-347), most disagreed (Exs. 30-5, 30-46, 30-75, 30-293,
30-1722, 30-3032, 30-3853, 31-4, 31-27, 31-92, 31-106, 31-125, 31-135,
31-211, 31-245, 31-246, 32-78, 32-300, 32-337). Many said that the
definitions, particularly the definition of manual handling jobs, were
too vague (Exs. 30-137, 30-425, 30-1722, 30-3167, 31-77, 31-180, 31-
225, 31-227, 31-248, 31-260, 31-342, 32-78, 32-300, 32-337, Tr. 3255-
56). For example, one commenter said:
The definitions of manufacturing and manual handling jobs
covered by the standard are guaranteed to leave employers as much in
the dark as they are now. What constitutes ``forceful'' manual
handling? How much force must be involved to be covered? Should the
strength capabilities of individual employees be considered? (Ex.
31-211)
Others were concerned that the definitions were too broad and could
include any job or ``almost every employer'' (Exs. 31-135, 31-180, 31-
342).
Many participants told OSHA that they did not know what the terms
used in the definitions (``forceful'' lifting, ``core element,'' and
``significant amount'' of worktime) meant (Exs. 30-46, 30-293, 30-300,
30-3032, 30-3853, 30-4837, 31-187, 31-202, 31-223, 31-260, 31-289, 32-
337, Tr. 3337). For example:
How much is significant? 6 hours per 8-hr shift? 4 hours per 8-
hr. shift? 2 hours per 8-hr. shift? Or 2 2-hr. periods per 8-hr.
shift? (Ex. 30-4837)
Moreover, commenters did not find the examples of manufacturing and
manual handling jobs to be of use:
[T]he examples of jobs are not very helpful. A careless reader
could conclude that the lists were exhaustive and, not seeing the
jobs in this workplace named, decide he had to do nothing. A more
thorough reader would note the disclaimer to the effect that ``* * *
each job must be considered on the basis of its actual physical work
condition * * *'' and correctly conclude that there is no standard
against which to compare the actual physical work conditions'' (Ex.
31-211).
(See also Exs. 30-3032, 30-3853, 32-300.)
OSHA is accounting for these concerns in this restructuring of the
standard's scope and application provisions. This final rule applies to
all general industry employers, but no employer is required to evaluate
or implement control measures or MSD management until an MSD incident
occurs in a job that involves exposure to risk factors at levels
meeting those in the Basic Screening Tool in Table 1. The only
obligation employers have until that point is to provide information
about ergonomics and the standard to their employees. And, as explained
in the discussion of paragraph (d) below, OSHA is providing that
information in Appendices A and B and on its website.
OSHA believes that these changes respond to most complaints about
the scope and application provisions of the proposal. By eliminating
the additional requirements for manufacturing and manual handling
employment, OSHA is eliminating both the need to define those terms and
much of the complexity and vagueness commenters found in the proposal.
By limiting employers' obligations in establishments that have not
experienced MSD incidents, OSHA is also taking account of the facts
that not all manufacturing and manual handling jobs involve more
significant ergonomic hazards than do other general industry jobs, and
that some of those other jobs are also hazardous.
The minimal burden in paragraph (d) for all general industry
employers to disseminate information is necessary so that employees
will know how and when to report MSDs. Given the importance of
providing information at the earliest possible point and the minimal
burden this requirement will impose, OSHA believes that it is
appropriate to apply the initial requirement to all general industry
employers. (The issue of the need for information is discussed in more
detail below in the summary and explanation on paragraph (d)).
II. Industries/Employment/Operations Excluded From the Final Rule
Like the proposal, the final standard does not cover construction,
agriculture, and maritime employment. Although many participants agreed
with this exclusion (Exs. 30-3032, 30-3752, 31-68, 31-160, 31-187, 31-
207, 31-219, 31-245, 31-252, 31-259, 32-300), a number favored
expanding the scope of the rule to cover all industries regulated by
OSHA (Exs. 30-400, 30-428, 30-1294, 32-210, 500-218, Tr. 2859, 3224,
5592, 9080, 13445, 113745, 14002, 17362, 17652). Their arguments fell
into three categories.
First, many of these commenters pointed to the high number and rate
of MSDs, especially back injuries, occurring in industries excluded
from the proposed rule (Exs. 30-626, 30-2208, 31-156, 31-183, 31-225,
500-218). The Mount Sinai Center for Occupational and Environmental
Medicine Construction Hygiene and Ergonomics Program (CHEP) pointed out
that, aside from the transportation industry, construction has the
highest rate of back injury of any industry:
Every year 1 in 100 construction workers will miss between 7 and
30 days of work due to back injuries * * * At one surveyed worksite
all wallcoverers who had worked 15 years or more in the trade had
required surgery or medical intervention for problems including
carpal tunnel syndrome, pain in the neck, shoulder and back, and
knee problems (Ex. 31-183).
Some commenters also favored expanding coverage because they said
that employees in construction, agriculture and maritime are exposed to
the same risk factors and MSD hazards as are employees in general
industry (Exs. 30-626, 31-22, 31-183, 31-263, 31-303, 500-218). They
said there was no reason to distinguish coverage by industries if the
rule was also incorporating an MSD trigger because, as one put it,
``[a]n injury is an injury, and I have no doubt there are always ways
to handle these jobs just as safely as any others'' (Ex. 31-19).
A number of commenters said that at least jobs in construction,
agriculture and maritime that are essentially the same as in general
industry, primarily manual handling jobs, should be added to the rule
(Exs. 31-14, 31-19, 31-65, 31-98, 31-192, 31-219, 31-307, Tr. 2850-51).
For example:
Many jobs, especially manual handling jobs, have similar if not
identical hazards to that of general industry. If an employee is
performing lifting that requires excessive force it does not matter
in which industry he is performing the lifting. The actions to
reduce the risk of injury would be similar for each industry (Ex.
31-307).
See also (Ex. 31-19; 31-65).
Another group of participants said that the record contains
sufficient
[[Page 68278]]
evidence on the availability and effectiveness of ergonomic
interventions to support expanding the rule to the construction,
agriculture and maritime industries (Exs. 31-183, Tr. 2849-51, 7478-80,
7482, 7485, 15761-71, 17540-41, 17561). Members of this group pointed
to a number of articles and studies about effective controls in those
industries, especially construction (Tr. 15761-71). For example, Nancy
Clark, co-director of Mt. Sinai CHEP, said:
Practical interventions are available for many identified risk
factors. Many workers devise quick fix, homemade solutions to reduce
the impact of musculoskeletal stress and promote self-preservation.
They use team lifting, mechanized material handlers when available,
floor padding for kneeling and standing on, stacking supplies to
bring the work closer, and alternating work tasks or body position
(Ex. 31-183)
Scott Schneider, director of occupational safety and health for the
Laborers Health and Safety Fund of North America, testified:
[T]here have been many tool manufacturers who have jumped on the
ergonomic bandwagon and hired ergonomists to develop better and
safer tool designs, from ergonomic hammers with more comfortable
shock-absorbing handles to pliers with soil handles and spring
returns to reduce the stress of opening them after each use. The use
of portable power tools has increased dramatically in construction
as batteries have gotten lighter and more powerful. Cordless screw
guns have become commonplace in construction over the past few
years, reducing the repetitive use of screwdrivers by hand and the
force that had to be used. There are simple pieces of equipment,
like drywall carrying handles, which I have here, and a mortar-pan
stand to raise the height of the pan, which cost less than $50 and
can make the work much easier. A D-handle attachment for a shovel,
which I have here, costs less than $20, and has been shown to reduce
awkward postures during shoveling. There are simple carts for moving
glass or drywall, vibration-dampened jackhammers and equipment for
moving them on and off of trucks. (Tr. 15762-63).
These commenters also pointed out that many of the controls used in
general industry, such as manual handling aids, were applicable or
readily adaptable to construction, agriculture and maritime industries
(Ex. 31-183). Moreover, tool and equipment interventions are becoming
more widely available ``as manufacturers are responding to the need for
better ergonomically designed tools'' (Ex. 3-183; see also Tr. 15761-
62, 17561).
Finally, several participants were concerned that OSHA's stated
intent to promulgate an ergonomics standard for the excluded industries
in the future would never come to fruition:
OSHA's standard-setting history during the past 30 years raises
serious doubt that workers excluded from this standard will ever
have legal protection from MSD hazards. When OSHA has excluded
workers from coverage under a promulgated standard, only in two
cases has the Agency followed up to extend coverage to those
workers--Hazard Communication and Construction. But those actions
were as the result of a court decisions and order (hazard
communication) * * * or legislative mandate by Congress (lead) (Ex.
500-218, p. 132-33).
These participants said that if OSHA does not cover construction,
agriculture and maritime in the current rulemaking, the Agency should
begin further rulemaking immediately and even establish a deadline for
completing that project (Exs. 30-400, 30-576, 30-4837, 31-12, 31-263).
OSHA is aware that there is significant evidence in the record
indicating that work-related MSDs exist in operations and employment
beyond general industry (Exs. 31-183, 500-218, Tr. 7475, 7484-85,
17538-39). Indeed, the problem appears to exist in virtually every
industry. Nonetheless, for several reasons OSHA believes its decisions
to regulate MSD hazards through sequential rulemaking proceedings, and
to limit the first proceeding to general industry, is appropriate and
supported by the record.
A primary basis for the Agency's decision to limit the scope of
this rulemaking to general industry is that most of the available
evidence and data relating to ergonomic interventions addresses general
industry. For example, the vast majority of the studies reviewed in
both the NIOSH and NAS reports pertained to general industry (Exs. 26-
1, 26-37). Similarly, the majority of case studies on the effectiveness
of ergonomics programs and control interventions that OSHA had gathered
focused on general industry (64 FR 65954-75). Although some
participants submitted evidence on ergonomics programs and controls in
the excluded industries, mostly in construction (Exs. 32-339-1-25, 32-
3888, 38-65, 38-66, 500-210), most of the available evidence continues
to pertain to general industry jobs, operations and workplaces.
If it included construction, agriculture and maritime within the
scope of this rule, OSHA would have had to delay issuing the rule for
general industry while it gathered and analyzed the necessary evidence.
Because it is likely that the rule would have a significant impact on
small employers in construction, agriculture and maritime, OSHA would
also have had to convene a small business review panel pursuant to
SBREFA. Further, in order to include construction, agriculture, and
maritime in its final rule, OSHA, in the interest of fair notice, would
have had to amend the ergonomics proposal or re-propose to include
these industries and hold additional hearings. Expanding the rule to
cover agriculture, construction and maritime would seriously delay
addressing the urgent need for protection for general industry
employees, who work in the jobs in which more than 90 percent of MSDs
are reported.
In addition, as the proposal pointed out, work conditions and
factors present in agricultural, construction and maritime employment
often differ from those in general industry. OSHA listed a number of
aspects of construction work to illustrate this statement (64 FR
65787):
They consist primarily of jobs of short duration,
Employees work under a variety of adverse environmental
and workplace conditions (e.g., cold, heat, confined spaces, heights),
At non-fixed workstations or non-fixed work sites,
On multi-employer work sites,
They involve the use of ``day laborers'' and other short-
term ``temporary workers,'
Involve situations in which employees provide their own
tools and equipment, and
Involve employees who may be trained by unions or other
outside certifying organiza |