January 2001

Stated Purpose:
Reduce the frequency and severity of MSDs caused, contributed to or significantly aggravated by acute and/or chronic workplace exposure to the following risk factors: awkward posture, contract stress, force, repetition, and vibration. (Unlike the proposed rule, static posture and cold temperatures are not included.)

SCOPE:
General Industry (does not include Agriculture, Construction, Maritime or Railroad Operations).

Core ELEMENTS:
1) MSD Hazard Information and Reporting;
2) Management Leadership and Employee Participation;
3) Hazard Analysis and Control;
4) Training;
5) Medical Management; and
6) Program Evaluation.

COMPLIANCE PHASES:

Phase I: No later than 10/15/01, provide all employees with information on MSD hazards and the reporting of MSDs and MSD signs and symptoms. Do whatever more is necessary to be in compliance with the requirements with Phase II as they come due.

Phase II: No later than 10/16/01, promptly investigate each employee report of an MSD or an "MSD sign" or "MSD symptom" and, to the extent required by the standard (as explained below), implement management leadership, employee participation, medical management, hazard analysis, and initial hazard controls.

Phase III: To the extent required by the standard (as explained below), implement permanent hazard controls and program evaluation.

COMPLIANCE STEPS:

Step 1: MSD hazard and reporting information
Deadline: Complete by 10/15/01.
Requirements: Provide all employees with required information on MSD hazards and the reporting of MSDs and MSD signs and MSD symptoms.

Step 2: Determine whether reported condition is an "MSD incident" Deadline: Promptly investigate and make determination for reports received after 10/15/01.
Requirements: Determine whether a reported condition is an "MSD incident" requiring further inquiry. Maintain records of employee reports and employer responses. The test is whether the condition:

1. is work-related (caused, contributed to or significantly aggravated by work); and
2. resulted in:
   1. days away from work or restricted work (excluding the day of the report),
   2. medical treatment beyond first aid, or
   3. an "MSD sign" or "MSD symptom" lasting 7 days from report

   (Notwithstanding their subjectivity and lack of a severity threshold.)

   An "MSD Sign" is one of the following:

   Decreased range of motion
   Deformity
   Decreased grip strength
   Loss of muscle function

   An "MSD Symptom" is one of the following:

   Pain
   Numbness
   Tingling
   Burning
   Cramping
   Stiffness

Decision Point: If an "MSD incident", proceed to Step 3; otherwise stop.

Step 3: Is Action Level exceeded?
Deadline: Complete within 7 days of MSD incident determination.
Requirements: Determine whether employee’s job "routinely involves," on 1 or more days a week, exposure to one or more "relevant" risk factors at or above the following Action Levels:

Repetition:

Performing the same motions every few seconds or repeating a cycle of motions more than twice per minute for more than 2 consecutive hours in a workday.

Using a keyboard and/or mouse in a steady manner for more than 4 hours total in a workday.

Force:

Lifting:

more than 75 pounds at any one time;
more than 55 pounds more than 10 times per day; or
more than 25 pounds below the knees, above the shoulder, or at arms’ length more than 25 times per day.

Pushing/pulling with more than 20 pounds of initial force for more than 2 hours total per day (equivalent to pushing a shopping cart with five 40 pound bags of dog food).

Pinching an unsupported object weighing 2 or more pounds per hand, or use of an equivalent pinching force, for more than 2 hours total per day.

Gripping an unsupported object weighing 10 pounds or more per hand, or use of an equivalent gripping force, for more than 2 hours total per day

Awkward Postures (further clarification from OSHA required)

Working with the back, neck or wrists bent or twisted for more than 2 hours total per day in any of the following described postures diagramed in the standard (Although it is not clear, it only makes sense that these diagrams would be an exhaustive listing of the covered awkward postures):

Repeatedly raising or working with the hand(s) above the head or the elbow(s) above the shoulder(s).
Kneeling or squatting.
Standing with the (apparently unsupported) back bent forward at least 30 degrees.
Working with the (apparently unsupported) neck bent forward some unspecified angle (apparently at least 30 and possibly 45 degrees) and possibly bent back some unspecified angle. (OSHA apparently omitted the angle specifications.) If the diagrams are exhaustive, neck twisting would not be separately covered.
Ulnar deviation of at least 30 degrees with open hand or hand gripping object.
Wrist extension of at least 45 degrees or flexion of at least 30 degrees while gripping an object.

Contact Stress:

Using the hand or knee as a hammer more than 10 times per hour for more than 2 hours total per day;

Vibration:

Using tools or equivalent that typically has high vibration levels (such as chainsaws, jack hammers, percussive tools, riveting or chipping hammers) for more than 30 minutes total per day.

Using tools or equipment that typically has moderate vibration levels (such as jig saws, grinders, or sanders) for more than 2 hours total per day. (Note: this could include operation of floor cleaning equipment, lawn mowers, and possibly forklifts.)

Decision Point: If have an MSD incident (per Step 2) and a relevant Action Level is exceeded, go to Steps 4, 5, 6 and 7; otherwise stop. OSHA estimates that, on average, approximately 37% of workers will have exposures at or above the Action Levels.

Step 4: MSD Management
Deadline: Initiate within 7 days of determination that relevant Action Level is exceeded.
Requirements: Implement medical management requirements, including: free access to HCP (including multiple HCP review), work restrictions, and WRP for up to 90 days. Maintain records of work restrictions, time off and HCP opinions.

Step 5: Management Leadership & Employee Participation.
Deadline: Initiate within 30 days of determination that relevant Action Level is exceeded.
Requirements: Implement management leadership and employee participation requirements.

Step 6: Train Program Coordinators
Deadline: Complete within 45 days of determination that relevant Action Level is exceeded. Repeat every 3 years.
Requirements: Train employees who set up and manage program.

Step 7: Job Hazard Analysis (JHA)
Deadline: Initiate within 60 days of determination that relevant Action Level is exceeded.
Requirements: Determine whether job poses MSD hazard based on

1) the Appendix D "safe harbor" tools (e.g., NIOSH Lifting Equation);
2) recommendations of a professional trained in ergonomics; or
3) any other reasonable method. (As a practical matter, assume the burden of proof will be on the employer to demonstrate the reasonableness of any alternative method.) Maintain record of each JHA.

Decision Point: If job poses an MSD hazard (i.e., it is a "problem job"), go to Step 8; otherwise go to Step 9 and then Step 11. OSHA estimates that approximately 33% of all workers will have exposures above the "safe harbor" Appendix D exposure levels.

Step 8: Implement Interim Controls
Deadline: Complete within 90 days of determination that relevant Action Level is exceeded.
Requirements: Implement initial engineering, work practice or administrative controls (or PPE where no others are feasible) to "substantially reduce the exposures" to the MSD hazards posed by the problem job. Maintain record of control measures.

Step 9: Train Affected Employees
Deadline: Complete within 90 days of determination that relevant Action Level is exceeded. Repeat every 3 years.
Requirements: Train current employees in problem job, and their supervisors and team leaders.

Step 10:Implement Permanent Controls
Deadline: Complete within later of: a) 2 years of determination that relevant Action Level is exceeded; and b) 1/18/05.
Requirements: Implement permanent engineering, work practice or administrative controls (or PPE where no others are feasible) to control (exposures to) MSD hazards for the problem job so that they: a) are no longer likely to cause MSDs requiring work restrictions or medical treatment; b) are at levels below those "specified" by the OSHA-approved "safe harbor" hazard identification tools (e.g., NIOSH lifting equation, Snook Push/Pull Tables) in Appendix D; or c) if neither "a" nor "b" is feasible, are reduced to the extent feasible with the obligation to re-assess for further feasible controls every 3 years until "a" or "b" is achieved. Maintain record of control measures.
Limitations: The employer’s obligation is limited to the site where the triggering "MSD incident" occurred. The employer may determine that the MSD hazard poses a risk only to the "injured" employee and limit the job controls, training and evaluation of controls for that job to that employee.

Step 11: Program Evaluation
Deadline: Complete within 3 years of determination that relevant Action Level is exceeded. Repeat every 3 years.
Requirements: Implement comprehensive program evaluation and correct any deficiencies. Maintain record of program evaluation.

MISCELLANEOUS REQUIREMENTS AND COMPLIANCE OPTIONS

Recordkeeping Requirements

Retention Periods
Employee reports and employer responses: 3 years
Work restrictions and time off: 3years
HCP Opinion: duration of employment plus 3 years
Job hazard analyses: earlier of 3 years or update
Control measures: earlier of 3 years or update
Ergonomics program evaluation: earlier of 3 years or update

Required Access
All required records but HCP opinion: employees, employee representatives, OSHA and NIOSH.⁷
HCP opinion: affected employee, holder of employee’s written consent OSHA and NIOSH per written access order.⁸

Quick Fix Option

Instead of setting up a full ergonomics program, the quick fix option permits the employer to implement a limited program involving MSD management, job hazard analysis, and hazard control and evaluation. This option is only available if, within the last 18 months: (1) no more than one prior MSD incident has occurred in the problem job; and (2) there have been no more than two prior MSD incidents in the entire workplace. In addition, the problem job must be fixed within 90 days of determining that the Action Level is exceeded.

Existing Program Grandfathered

The employer may continue its existing program if it: 1) implemented all of the core elements before 11/14/00; 2) completed a review of the program elements and program effectiveness before 1/16/01 (it is not clear whether completing a review includes completing the correction of identified deficiencies); and 3) fully complies with the MSD management provisions of the standard by 1/16/02. This option appears largely illusory because we believe OSHA would judge compliance with the core elements based largely on how closely the employer’s program matches the more detailed requirements of the full standard. However, that determination is probably better made through a side-by-side comparison between your existing program, assuming OSHA would find it effective, and what the final standard would otherwise require. Technically, a grandfathered program is subject to a compliance inspection on or after 1/16/01. You should assume the employer has the burden of proving that it qualifies for this exemption, and that it would have to be able to make that proof at any future time, which could be many years into the future. Finally, a grandfathered program would appear to have an extra two months to implement WRP.

Business planning issues:

1. Should I take advantage of the "grandfather" provision?
2. Should I use the "non-mandatory" Appendix B or develop my own approach (e.g., content, standalone v. part of broader training) in providing MSD information?
3. What should I do prior to 10/15/01 to ensure Phase II compliance? Primary factors include how far along the existing program is toward compliance, the historical and projected frequency of problem jobs, and the availability of resources and ability to respond in short time frame.
4. Should I provide the more in-depth ergonomics training to all employees at the site, or all employees likely to be involved in problem jobs before a triggering event, or should I train employees only when required by the standard? At a site with a significant number of employees likely to be in problem jobs, the train-as-required approach, with its relatively short compliance deadlines, could leave the employer looking like a cat chasing its tail.
5. Which of the OSHA approved analytical tools, if any, are appropriate for the jobs at my site? If I use the NIOSH Lifting Equation, will OSHA say the maximum permissible lift is the "Recommended Weight Limit" (RWL)?, 1.5 x RWL?, 2 x RWL? Do I need outside expertise to make these decisions?
6. With regard to resources, please consider the following:
   1. OSHA’s Estimate of The number of "MSD Incidents"
      1. Based on the BLS data, OSHA says there are over 600,000 lost workday (LWD) MSDs per year in the United States.
      2. OSHA estimates there are approximately twice as many non LWD cases per year (approximately 1.2 million), many of which OSHA believes would qualify as persistent symptom cases.
      3. OSHA also asserts that only half of the recordable MSD cases are recorded.
      4. OSHA concludes that MSD incident cases will be recorded (and reported to BLS) at a rate 50% higher than current MSD rates.
   2. Estimate of the Number of MSD Reports and Responses

      If, for purposes of discussion only, one were to accept OSHA’s estimates, there would be over 900,000 LWD MSDs and 1.8 million non LWD MSDs per year. At a minimum, that could trigger 2.7 million employee reports and 2.7 million employer responses, an average of 7,400 per day across the United States.

   3. Estimate of MSD Incidents, Action Trigger Cases and Problem Jobs

OSHA has estimated that employers will be required to fix almost SEVEN MILLION jobs in the first year the standard is in place. 65 Fed. Reg. 68772, col. 3. That works out to an average of approximately 19,000 jobs per day beginning on October 15, 2001. We would not even attempt to guess at how many employers might be affected. Under any scenario, there certainly would seem to be a question as to whether there are enough in-house and outside consulting resources (especially within the OSHA–supported state consultation services) to service the potential groundswell of demand for ergonomics expertise across the United States on or about 10/15/01 in time to meet the short compliance deadlines under the Standard.

1This document does not constitute and may not be relied upon as advice, legal or otherwise. Keller and Heckman LLP does not intend to create an attorney-client relationship by offering this information, and anyone's review of the information shall not be deemed to create such a relationship. You should consult a lawyer if you have a legal matter requiring attention. For further information on these issues, please contact Lawrence P. Halprin (202-434-4177, halprin @khlaw.com) or David G. Sarvadi (202-434-4249, sarvadi @khlaw.com) at Keller and Heckman LLP.
²The inquiry is similar to the question: "Is this an OSHA- recordable MSD?" OSHA no longer refers to 29 CFR 1904 to avoid the legal problem of incorporating a rule that is being amended in another rulemaking.
³The recordkeeping requirements of the standard apply to employers with 11 or more employees at the site. Records may be maintained in written or electronic form.
⁴In theory, the employer could determine whether the Action Levels are exceeded before making the MSD incident determination, but (with the exception of a persistent symptom case) the MSD incident determination would be required in any event because of the employer’s obligation to record OSHA- recordable injuries in 6 working days under 29 CFR 1904.
⁵This step substantially accelerates the timing of the control step from the proposal using language substantially similar to the deleted "incremental abatement" provision.
⁶In performing this analysis, it appears that OSHA may require an analysis of all MSD hazards, or at least all of those reported by employees, whether or not they are the hazards that caused the MSD or the MSD signs or symptoms that constituted the triggering "MSD incident." Paragraphs (h)(3)(i) and (i)(1) and (2) refer to reports of MSD hazards as well as MSDs, and MSD signs and symptoms.
⁷Despite this provision, some courts may interpret the Fourth Amendment and the OSH Act to require OSHA or NIOSH to obtain a warrant or subpoena to gain access to some of these records over an employer’s objections.
⁸Despite this provision, some courts may interpret the Fourth Amendment and the OSH Act to require OSHA or NIOSH to obtain a warrant or subpoena to gain access to some of these records over an employer’s objections.
⁹It is not clear whether "implemented" means "fully satisfied" or substantially satisfied but would allow some supplemental actions to be taken between 11/14/00 and 1/16/01 to meet all of the requirements of 1910.900(c). For example, OSHA might say there is a difference between not training supervisors and managers and omitting a particular topic from training that was provided.
¹⁰Reflecting a significant change from the 10/10/00 draft final rule, OSHA dropped the following MSD management requirement from the "grandfather"provision: MSD management, as demonstrated by a process for promptly evaluating, managing, and following up on employee reports of MSDs, including, when appropriate, the provision of work restrictions or removal from work and, when necessary, access to a health care professional at no cost to the injured employee.

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