United States: Assessing OSHA´s New Ergonomic Standard

On November 14, 2000, the Occupational Safety and Health Administration published its final ergonomics standard in the Federal Register. It is codified in the Code of Federal Regulations at 29 CFR 1910.900. Acting with unprecedented speed for a standard of such magnitude, OSHA rushed to have the standard published before the lame duck Congress could attach a rider to a funding bill barring publication of the standard and before the outcome of the presidential election was certain. The new standard is extremely controversial and divisive. Despite spending years on this standard-setting process, the Occupational Safety and Health Administration has still failed to draft a standard which is both sensible and not unduly burdensome. Nevertheless, the final standard is a modest improvement, at least, over the prior proposed standard.

Several challenges to the standard have already been filed in court which may well result in the standard being stayed, if only temporarily. Nevertheless, employers now need to begin to understand their obligations under the standard and to prepare for its implementation. If the standard withstands the court challenges, employers will be expected to comply with it. Even if the standard is stayed, or even voided in some parts, it is likely to arise again in some form. In the meantime, OSHA will continue to prosecute ergonomics issues under the general duty clause (§ 5(a)(1)) of the Occupational Safety & Health Act.

Barring a court-ordered stay of the standard, it becomes effective by its own terms on January 16, 2001. However, full compliance with the standard will not be required until later in 2001. Specifically, employers will not be required to provide the information specified in the standard to employees until October 15, 2001. Only after October 15, 2001, will employers be required to respond to employee reports of musculoskeletal disorders (MSDs) (i.e., ergonomic-type injuries) or signs and symptoms of such injuries. Other deadlines are triggered by various aspects of the employer investigation into such reports. These specific deadlines are discussed later in this article.

The ergonomics standard applies to all employers covered by the Occupational Safety and Health Act except for employment covered by OSHA's construction standards, maritime standards or agricultural standards. In addition, the standard does not apply to "employment such as office management and support services directly related to" exempted employment. OSHA also exempted railroad operations and employment directly related to the operation of a railroad from the standard.

While the prior draft standard required only those employers with specific types of jobs (as well as those employers whose employees have experienced an MSD) to provide certain basic information to employees, the final standard requires all covered employers to provide basic information to all employees. The information provided to employees must cover:

• Common MSDs and their signs and symptoms;
• The importance of reporting MSDs and MSD signs and symptoms, and the consequences of failing to report them early;
• How to report MSDs and MSD signs and symptoms at the workplace;
• The kinds of risk factors, jobs and work activities associated with MSD hazards; and
• A short description of OSHA's ergonomics standard.

Employers must also provide to employees a summary of the requirements of the standard.

This basic information must be provided to employees in written form; however, assuming employees have the necessary access, the information may be provided in electronic form. The information must be provided to new employees within fourteen (14) days of hiring and it must be posted in a conspicuous place in the workplace. Two non-mandatory appendices to the standard (Appendix A and Appendix B) may be used by employers to comply with the information requirements found in the final standard. However, employers will still need to be certain that the information is worksite specific. Specifically, employees must be informed in writing how to report MSDs and MSD signs and symptoms at their specific workplace.

The proposed standard contained a "single- injury" trigger for the bulk of the requirements of the proposed standard. This single-injury trigger was harshly criticized during the public comment period relating to the proposed standard. In the final ergonomics standard, OSHA modified the trigger somewhat. The majority of requirements under the standard now come into play based upon a two-stage trigger: (1) the reported MSD or MSD signs or symptoms must constitute an "MSD incident"; and (2) the job in which the MSD incident occurred must meet the standard's "Action Trigger." Both elements of this double trigger are discussed below.

An employee report of an MSD or an MSD sign or symptom qualifies as an MSD incident if either of the following requirements are satisfied:

1. "The MSD is work-related and requires days away from work, restricted work, or medical treatment beyond first aid"; or
2. "The MSD signs or symptoms are work-related and last for 7 consecutive days after the employee reports them to [the employer]."

An MSD "sign" is an objective physical finding that an employee may be developing an MSD. Examples cited in the standard are decreased range of motion, a deformity, decreased grip strength and loss of muscle function. An "MSD symptom" is a physical indication that an employee may be developing an MSD. Examples cited in the standard are pain, numbness, tingling, burning, cramping and stiffness. The standard states that discomfort does not constitute an MSD symptom. Further, "redness," which was included as an MSD symptom under the proposed standard, is no longer included.

Under either requirement for an MSD incident, work relatedness must be established. The standard's regulatory preamble states that it is up to the employer to determine whether an MSD or an MSD sign or symptom is work related. Although it is not specified in the standard or in the preamble, it is likely that OSHA will determine any MSD or MSD sign or symptom to be work related if the job in which the employee was working contains MSD risk factors relating to the specific injury reported.

For example, if an employee reports a wrist-related MSD and the employee's job involves ergonomic risk factors associated with the wrist, OSHA will almost certainly assume the MSD is work related. It is not clear, based on the standard or the regulatory preamble (found at 65 Fed.Reg. 68411, et seq., November 14, 2000) issued with it, whether this presumption can be overturned by an employer and, if so, with what showing. For example, if the employer's medical provider determines that the injury is not work related or the employer has knowledge of non-work activities likely to have caused the injury, will this be a sufficient basis for an employer to conclude the injury is not work related? This is likely to be an area of contention between employers and OSHA.

If neither of the requirements set forth above are met, there has been no MSD incident and the employer need take no further action under the standard.

Once it is determined that an MSD incident has occurred, the employer then needs to determine whether the job at issue meets the standard's "Action Trigger." Once an employee reports an MSD or an MSD sign or symptom and the employer has determined that an MSD incident has occurred, the employer must then examine the job held by the employee making the complaint. If that job meets the Action Trigger, the employer must either comply with the standard's Quick Fix option or develop and implement a full ergonomics program relating to that job. If the job does not meet the Action Trigger, however, the employer is not required to take any further action.

A job meets the Action Trigger if:

1. An MSD incident has occurred in that job (see above); and
2. "The employee's job routinely involves, on one or more days a week, exposure to one or more relevant risk factors at the levels described in the Basic Screening Tool in Table W-1 [found in the standard]." A copy of the Basic Screening Tool is attached to this article.

The Basic Screening Tool is a chart included in the standard which describes twelve (12) types of specific ergonomic risk factors grouped under the general headings of repetition, force, awkward postures, contact stress and vibration. Each of the twelve risk factors is associated with one or more body parts (neck/shoulder, hand/wrist/arm, back/trunk/hip and leg/knee/ankle). Employers are only required to review risk factors for those areas of the body affected by the particular MSD incident being investigated. Thus, if an employee reports carpal tunnel syndrome, the employer need only review those risk factors associated in the Basic Screening Tool with the hand/wrist/arm category.

The Basic Screening Tool describes specific tasks and assigns a frequency for those tasks. If the tasks are performed at or above the frequency found in the Basic Screening Tool for one or more days per week, the job meets the Action Trigger. For example, the Basic Screening Tool includes the task of pushing or pulling with more than 20 pounds of initial force. The frequency set for that task in the Basic Screening Tool is more than two hours total per day. If an employee engages in that task at or above the frequency assigned to it, the Action Trigger is met with respect to that employee's job.

OSHA gives itself great credit for developing an "objective" measure for when the standard's requirements are triggered. It is easy to imagine, however, a host of related issues-such as whether tasks noted in the Basic Screening Tool are actually performed at the necessary levels for one or more days per week-which will be the subject of future enforcement actions and defenses to those actions.

Assuming that the dual trigger has been met (i.e., an MSD incident has occurred and the Action Trigger is met), the employer must comply with the "Quick Fix" option provided for in the standard or develop and implement an ergonomics program. Under certain limited circumstances, OSHA's ergonomics standard allows employers to bypass a full ergonomics program by taking advantage of the Quick Fix option. The key to understanding the Quick Fix option is to understand under what circumstances an employer is permitted to take advantage of this option.

There are two separate limitations, both of which must be satisfied before an employer may employ a Quick Fix in lieu of a full ergonomics program. First, the employer must have experienced "no more than one MSD incident" in the job at issue. Second, the employer must also not have experienced more than two MSD incidents in its establishment within the preceding 18 months. If either of these two requirements are not met, the employer may not use a Quick Fix, but must institute a full ergonomics program with respect to the job at issue. These are significant constraints and, for larger employers at least, these constraints make it unlikely that the Quick Fix option will be widely available.

The Quick Fix option requires employers to do the following:

1. Provide "MSD management" to the employee promptly after determining that the job at issue meets the Action Trigger. MSD management which is described more fully below, with respect to full ergonomics programs, includes providing access to a health care professional, complying with necessary work restrictions, providing "work restriction protection," [WRP] evaluation and follow-up of the MSD incident, obtaining a written opinion from a health care professional and following a dispute resolution procedure with respect to disagreements regarding recommendations from the health care professional.
2. The employer must speak with employees in the job and the employees' representatives about the tasks performed in that job that may relate to the MSD incident.
3. The employer must observe employees performing the job to identify risk factors likely to have caused the MSD incident.
4. The employer must ask employees performing the job and their representatives to recommend measures to reduce exposure to the MSD hazards identified. The employer is not required to accept these recommendations.
5. The employer must implement controls in the job to control the MSD hazards or otherwise reduce them consistent with the requirements of the standard. This must be done within ninety (90) days of determination that the job meets the Action Trigger.
6. Within thirty (30) days after implementing these controls, the employer must review the job to determine whether the MSD hazards have been reduced to specified levels.
7. The employer must maintain records of the Quick Fix process for each job to which it has been applied. These records must be maintained for three (3) years.

If the MSD hazards in the job at issue have been reduced to specified levels, no further action is required by the employer except to maintain the controls and training relating to the controls, in addition to the recordkeeping requirement mentioned above. However, if MSD hazards have not been reduced to specified levels, the employer must implement a full ergonomics program.

If the standard's dual trigger has been met (and the employer is not eligible for or chooses not to utilize the Quick Fix option), the employer must implement all of the elements of a full ergonomics program. These elements are:

• Management leadership;
• Employee participation;
• MSD management;
• Job hazard analysis;
• Hazard reduction and control measures; and
• Training.

It is important to remember that the required ergonomics program may be limited to the job involved in the MSD "and all jobs in the establishment that are the same as that job." By "job" the standard "means the physical work activities or tasks that an employee performs." The definition in the standard goes on to state that OSHA will consider "jobs to be the same if they involve the same physical work activities or tasks, even if the jobs have different titles or classifications." This does, of course, inject ambiguity into the standard. At this time, it is not possible to know how broadly or narrowly OSHA, the Review Commission or the courts will construe this key term.

As part of the full ergonomics program, the employer must demonstrate management leadership. To do so, the employer must assign and communicate responsibilities for setting up and managing the ergonomics program. Specific individuals and their specific responsibilities should be made explicit in the program. The employer must also provide those persons responsible with the "authority, resources and information necessary to meet their responsibilities." In other words, a mere "paper program," which is never fully implemented on the plant floor, will not suffice. The employer must be certain that its policies and practices do not discourage employee participation in the ergonomics program. The employer must also communicate "periodically" with employees about the ergonomics program and about any concerns employees may have about MSDs. This may be addressed by including the ergonomics program and MSDs as topics of discussion at regularly scheduled safety meetings. Neither the standard nor the regulatory preamble offers significant guidance on the meaning of "periodically." In the preamble, OSHA merely states that communication must take placed on "a regular basis that is appropriate for the conditions in the workplace." 65 Fed.Reg. 68320.

As was stated above, OSHA requires employers to be certain that their programs do not discourage early reporting of MSDs or involvement in the employer's ergonomics program. This admonition is directed especially against traditional safety programs which, for example, reward employees for the absence of injuries and accidents. Some plants, for example, may sponsor a pizza lunch if two or three months pass without a lost-day incident. OSHA has long suspected that these programs result in the underreporting of injuries and illnesses.

In the regulatory preamble to the final standard, OSHA makes clear that this suspicion is stronger than ever. OSHA's preference is for incentive programs which reward positive behavior, such as participating in safety programs or employing safe work practices. Although OSHA says it is not prohibiting traditional programs, it emphasizes their negative consequences. Similarly, OSHA also criticizes employer programs requiring drug tests of employees involved in an injury. OSHA claims there is no correlation between drug use and MSDs. To the extent such a policy is applied to the report of an MSD (as opposed to an injury caused by an accident), OSHA is likely to conclude that the employer is discouraging early reporting of MSDs. Policies which call for the automatic withholding of overtime from employees on light duty, unless this is necessary to comply with work restrictions, are also viewed as a means to discourage reporting of MSDs.

With respect to traditional incentive programs, OSHA states that its compliance officers will not make a finding that an employer is discouraging reporting unless a pattern of underreporting of MSDs is evident. In other words, as long as no such pattern is evident, traditional programs and drug testing should not give rise to an objection by OSHA. But OSHA goes on to say that it will investigate such programs if underreporting or "discouragement" of employee participation is found based on review of the employer's records and employee interviews.

The message is clear: OSHA is likely to vigorously pursue investigations and prosecutions against employers with the types of policies discussed above. This is troubling because such action reflects important policy judgments which should be reached by OSHA only after public notice and comment. Instead, OSHA is trying to eliminate notice and comment by way of a procedural shortcut, by simply noting these policy decisions in the regulatory preamble to a standard largely unrelated to the practices being attacked. This is another issue likely to be ultimately resolved in court.

Employers must also ensure that there is full employee participation in the ergonomics program. To do so, employers must be able to demonstrate that employees and their representatives are able to promptly report MSDs, MSD signs and symptoms and MSD hazards, and that employees and their representatives receive prompt responses to any such reports. To accomplish these requirements, employers must publicize exactly how MSD reports should be made, to whom, the method of reporting, and must also ensure that management responds promptly to them. Employee participation also requires that employees have ready access to a copy of the standard, to information about MSDs, MSD signs and symptoms and MSD hazards, and to the employer's ergonomics program. This is most easily addressed by providing employees with access to the employer's written ergonomics program and through the non-mandatory appendices attached to the standard. Finally, to ensure employee participation, the employer must provide means for employees and their representatives to be involved in the "development, implementation and evaluation of [the] ergonomics program." In other words, employees must be able to be involved in virtually every aspect of the program.

An employer has specific obligations with respect to an employee who experiences an MSD incident in a job which meets the Action Trigger. Specifically, the employer must provide the employee with "prompt and effective MSD management" at no cost to the employee. This must include access to a health care professional, accommodation of any necessary work restrictions, including time off work to recover from the MSD incident, work restriction protection (WRP) and evaluation and follow-up of the MSD incident.

The employer must obtain a written opinion from the health care professional and must provide a copy of this opinion to the employee. The employer should instruct the health care professional that the opinion may not include any findings or information unrelated to workplace exposure to risk factors and must also instruct the health care professional not to communicate such information to the employer, unless authorized by state or federal law. This is troubling because it makes it very difficult for an employer to make an informed decision about whether a particular MSD is work related.

The employer must also provide the health care professional with a description of the employee's job and work activities associated with that job, including risk factors and MSD hazards in the job, a copy of the ergonomics standard and a list of information that the health care professional's opinion must contain. This raises a serious question as to whether an employer will be in a position to provide a list of risk factors and MSD hazards present in an employee's job if the job has not been the subject of an MSD incident in the past. At a minimum, the employer can provide the health care professional with the information derived from the Basic Screening Tool involved in the dual trigger analysis.

The employer must ask the health care professional to include in his or her opinion the following information:

1. The professional's assessment of the employee's medical condition as related to the physical work activities, risk factors and MSD hazards in the employee's job. In other words, the assessment should not include non-work-related factors;
2. Any recommended work restrictions, required time off of work and any follow-up that will be needed;
3. A statement that the professional has informed the employee of the results of the evaluation, what is required to affect recovery and any medical conditions associated with exposure to physical work activities, risk factors and MSD hazards in the employee's job; and
4. A statement by the professional that the professional has informed the employee about work-related or other activities that could impede recovery from the injury.

If the health care professional places temporary work restrictions on the employee, the employer must abide by those restrictions. While the standard does provide for a means to obtain a second opinion from a health care professional, it is written in such a way that the second opinion is afforded to the employee and not to the employer. (In fact, the employer must pay for this second opinion.) The standard also addresses the situation in which the two health care professionals disagree: a third professional must be jointly designated to resolve the dispute (unless some other mechanism is agreed to).

This will make it essential that employers develop working relationships with health care professionals they intend to utilize for purposes of ergonomics. The health care professional chosen by the employer should have a firm understanding of the type of light duty available at the employer's workplace and the nature of work at the workplace. The employer will need to develop and maintain a relationship with the health care professional in order to assure that problems do not develop in this area.

"Work Restriction Protection," or WRP, was one of the most controversial aspects of the proposed standard. It has been retained, albeit in a modified form, in the final standard. The standard now provides that an employee placed on temporary "alternative duty," or light duty, must be provided with 100% of his or her earnings, employment rights and benefits until the earliest of three events occurs:

1. The employee is able to resume former work activities without endangering recovery;
2. A health care professional determines that the employee can never resume the former work activities (this is subject to the employee's right for a second opinion); and
3. Ninety (90) calendar days have passed.

If an employee is required to take time off work in order to recover from an MSD, the employer must maintain that employee's employment rights and benefits in full and maintain at least 90% of the employee's earnings until the earlier of the same three events noted above. The proposed standard provided for up to six (6) months of WRP. In the final standard, OSHA significantly reduced the WRP provided to employees by limiting it to ninety (90) days.

WRP provides employees with 90% or 100% of "earnings." In the regulatory preamble, OSHA does not discuss whether or how employers should account for earnings earned through overtime work, which is typically variable and not guaranteed. Some workers' compensation systems address a similar issue by requiring employers to include overtime wages earned over the preceding twelve (12) months in calculating average earnings. It seems likely that OSHA will take a similar position.

An employer is free to condition WRP on the employee's participation in the MSD management provided for by the standard. While the standard does provide the employer with this right, it prevents the employer from learning what non-work restrictions the health care professional has placed on the employee. This raises a question of how the employer can effectively condition participation in the WRP without knowing what off-work restrictions with which the employee must comply. Finally, the employer's obligation to provide WRP may be reduced by "allowing" employees to take sick leave or other similar paid leave, such as short term disability, provided that the benefits and employment rights are maintained and that 90% of the earnings are also maintained. OSHA's language is strange. Certainly the most straightforward reading would be to permit employers to require employees to exhaust sick leave or similar leave first. But this point is not clear in the standard and it is simply not known what position OSHA will take.

Once an employer has determined that the Action Trigger has been met with respect to any particular job (following an MSD incident), the employer must also determine whether that job poses an MSD hazard to employees in the job. This is done by performing a job hazard analysis limited to the specific job in question. (An employer may rely upon a prior job hazard analysis, provided that circumstances have not changed so that it is no longer relevant.)

OSHA has provided a selection of hazard identification tools listed in Appendix D-1 to the standard. This appendix is simply a list of otherwise available job hazard analysis tools. The appendix provides employers with information as to where to obtain a copy of these tools. Remarkably, based on the experiences of this author, these tools are not readily available. Some are difficult to obtain and others are available only by purchase. Perhaps these problems will be overcome during implementation of the standard. If not, it may raise serious administrative and constitutional law issues because OSHA is not providing effective notice of the rules to be applied against employers.

It is likely that many employers, and perhaps most employers, will not be in a position to utilize these tools (assuming access to them is available) without the use of a professional ergonomist. While some of the tools are relatively easy to use, others are not and employers need to know which tool is appropriate in any given instance. In the preamble, OSHA estimates that in 65% to 85% of cases, a trained worker and an ergonomist will identify the same ergonomic hazards (65 Fed.Reg. 68333). Of course, in 15% to 35% of the cases, therefore, a trained ergonomist will be needed. And that assumes that OSHA's estimate is accurate. This problem significantly minimizes the "user friendliness" of OSHA's ergonomics standard.

OSHA has provided, in a separate appendix, a job hazard analysis tool dealing specifically with video display terminal (or VDT) workstations. This tool, limited to that very narrow range of jobs, may well be something most employers are capable of utilizing on their own.

At this point, it is helpful to remember the distinction between the Basic Screening Tool and these hazard identification tools. The screening tool merely identifies jobs in which an ergonomics problem may exist. The hazard identification tools confirm this, quantify the risk and tell the employer whether controls are needed. If the tools indicate no controls are necessary, the employer will not have to "fix" the job.

If an employer does not choose to use one of the hazard identification tools listed in the appendix to the standard, the standard alternatively allows the employer to use another analysis "conducted by a professional trained in ergonomics." Another alternative allows employers to use any "other reasonable method that is appropriate to the job and relevant to the risk factors being addressed." OSHA will undoubtedly look with suspicion upon any other "reasonable method" if it is not listed in the appendix to the standard or is not conducted by a professional ergonomist. Nevertheless, this alternative is open to employers and may well be the subject of future litigation.

Another issue relating to the job hazard analysis is the required breadth of the analysis. The analysis must include all employees who perform the same job or a sample of employees in that job, provided that the sample includes those employees with the greatest exposure to the relevant risk factors. Furthermore, OSHA recognizes the possibility that an employer may determine that the MSD hazards in a particular job pose a risk only to the employee who reported the MSD. In that case, if that determination can be established to the satisfaction of OSHA, the employer may limit the job controls, training and evaluation to that individual employee.

Finally, it is not clear whether the job hazard analysis may be limited to those aspects of the job affecting the injured body part of the employee who reported the MSD. (Use of the Basic Screening Tool is limited in this way.) Unfortunately, the standard and preamble are not clear on this point and it will need to be explored further.

Once the job hazard analysis has been completed, the employer must implement controls to reduce MSD hazards, assuming that the job hazard analysis confirms the need for controls. The employer must "control MSD hazards," "reduce MSD hazards" below the levels noted in the hazard identification tools contained in the appendix to the standard, or reduce MSD hazards to the extent feasible and then take certain additional steps.

By "controlling MSD hazards," OSHA means that the employer must "reduce MSD hazards to the extent that they are no longer reasonably likely to cause MSDs that result in work restrictions or medical treatment beyond first aid." In other words, the employer must virtually eliminate the hazards in the problem job. The preamble suggests that reducing hazards to the point the job no longer exceeds any of the triggers in the Basic Screening Tool will satisfy this requirement.
If an MSD subsequently occurs in a job for which MSD hazards have already been "controlled," the employer must ensure that the appropriate controls are still in place, functioning and being used properly. The employer must also determine whether new MSD hazards exist and, if so, reduce those hazards.

If the employer cannot "control the MSD hazards," the employer is permitted to "reduce" the hazards below the levels identified in the hazard identification tools included in the appendix to the standard. Again, this raises a serious question as to whether most employers will be able to take advantage of this provision without employing a professional ergonomist for guidance.

Finally if an employer is unable to control or reduce MSD hazards as noted above, the employer must reduce MSD hazards to the extent feasible. In that case, at least every three (3) years, the employer must assess the job and determine whether additional feasible controls are available. If such controls exist, the employer must implement them.

The ergonomics standard, like many other standards from OSHA, expresses a preference for engineering controls. The standard provides that "where feasible, engineering controls are the preferred method of control." Other methods of control are work practice controls, administrative controls, or some combination of such controls. Significantly, personal protective equipment may be used only to supplement engineering, work practice or administrative controls but may not be used alone where other controls are feasible. Where personal protective equipment is used, it must be provided at no cost to employees.

Employers are required to follow a certain process in reducing MSD hazards. The employer must ask employees in the problem job and their representatives to recommend measures to reduce MSD hazards. But employers are not required to accept those recommendations. Initial controls must then be implemented within ninety (90) days after the determination that the job meets the Action Trigger. Initial controls are controls which substantially reduce the exposures even if the reduction does not reach the level specified in the hazard identification tool. The employer must decrease the magnitude, frequency or duration of employee exposure to risk factors. The reduction must be "material." For example, reducing the weight of a package to be lifted from 100 pounds to 95 pounds will not be considered material.

The employer must also identify and implement permanent controls that meet the levels specified in the hazard identification tools. This must be done by the later of two (2) years after determination that the job meets the Action Trigger or January 2005. Finally, employers must track their progress and ensure that the controls instituted are working as intended and have not created new MSD hazards. This work must include consulting with employees and their representatives.

Finally, OSHA requires employers to evaluate ergonomics programs at least every three (3) years. This is included within the hazard reduction and control measures, although it might more correctly be considered a separate requirement. The program must also be evaluated if the employer has any reason to believe that it is not functioning properly. Finally, if the evaluation reveals deficiencies in the program, the employer must promptly correct those deficiencies. A note found in the standard states that the occurrence of an MSD incident, in itself, does not mean that the program is ineffective.

The last major element of an ergonomics program is training. For each job covered by the ergonomics program, each employee in that job must receive initial training and follow-up training every three (3) years. In addition, each of the supervisors or team leaders must also receive this training. Finally, other employees involved in setting up and managing the ergonomics program must also be included in the training.

The training required by the OSHA standard must address the following topics:

1. The requirements of the standard;
2. The employer's ergonomics program and the employee's role in it;
3. Signs and symptoms of MSDs and procedures for reporting them;
4. Risk factors and MSD hazards in the employee's job, as identified by the Basic Screening Tool included in the standard and the job hazard analysis;
5. The employer's plan and timetable for addressing the MSD hazards identified;
6. The controls used to address MSD hazards; and
7. The employee's role in evaluating the effectiveness of controls.

In addition, employees involved in setting up and managing the ergonomics program must be trained in the setup, management and evaluation of an ergonomics program and how to identify and analyze MSD hazards, as well as the selection and evaluation measures necessary to reduce those hazards.

Initial training must be provided to employees involved in setting up and managing the ergonomics program within forty-five (45) days after the employer has determined that the employee's job meets the Action Trigger. Each current employee, supervisor and team leader for a problem job must be trained initially within ninety (90) days after determination that the employee's job meets the Action Trigger. Finally, each new employee or current employee assigned to a problem job must receive initial training prior to starting work.

Subparagraph (v) of the standard contains specific recordkeeping obligations for most employers. It is important for employers to remember that records should be maintained not only to comply with specific recordkeeping requirements found in the standard, but also to provide a defense to a later enforcement action.

Certain employers with written ergonomic programs in existence prior to November 14, 1999 may continue to use those existing programs provided those programs meet most of the elements of the new standard. Specifically, the existing program must include management leadership, employee participation, job hazard analysis and control, training and program evaluation. Each of these requirements is discussed above in some detail.

In addition, an employer wishing to qualify under the standard's grandfather clause must conduct a review of its program's elements and effectiveness prior to January 16, 2001. Finally, by January 2002, the employer must add into its program the medical management provisions required by the standard (including WRP).

The benefits of the grandfather clause is quite limited because it still requires a very extensive and burdensome program. In addition, as enforcement of the standard proceeds over the years, a grandfathered program which differs from the standard will likely be the subject of more careful scrutiny during OSHA inspections. Employers should weigh the limited benefits of the grandfather clause against the costs of revising existing programs so they are fully compliant with the standard.

It is unlikely that many employer programs will comply with all aspects of the proposed standard and employers who may arguably be subject to the grandfather clause may be wise to review their programs to determine whether slight modifications to the program should be made to eliminate any question regarding compliance.

OSHA does not address in the standard itself how the standard will be enforced in the context of multi-employer worksites. It does, however, address the issue in the regulatory preamble (Fed.Reg. 68282-283). Such an important topic should have been addressed in the standard itself. However, as is the case with OSHA's attack upon traditional safety incentive programs (discussed above), OSHA has introduced the topic in the preamble in order to avoid the regulatory burdens associated with including it in the standard itself. As a result, the regulated community was not able to fully comment on it.

In the preamble, OSHA sets forth very specific guidelines for enforcement of the ergonomics standard at multi-employer worksites. The preamble states that the "employer whose employees are working at a location controlled by another employer, for example a temporary services agency," must provide its employees with the basic information (i.e., awareness level training) called for under paragraph (d) of the standard, which requires employers to take certain "initial action." This requirement is discussed in more detail earlier in this article. At a multi-employer worksite, both employers will need to implement measures to share information regarding any employee reports of an MSD. The employers will need to determine together "whether the report qualifies as an MSD incident under the standard, but the employer with control over the workplace must screen the job to determine whether further action is required." If further action is required, the employer with control over the workplace must implement the program elements required by the standard. This employer must also train any temporary workers who are required to work in a job for which an ergonomics program under the standard is in place. Finally, the employing agency will be responsible for providing the employee with any necessary MSD management, including WRP.

This "mixed bag" of responsibilities for complying with the ergonomics standard in multi-employer worksite situations will need to be reflected in contracts between host employers and contractors. Employers with existing policies for dealing with outside contractors will need to modify those policies to reflect these new requirements.

OSHA's final ergonomics standard is a very significant development in OSHA law and will create huge burdens upon American industry. It is one of the more contentious standards OSHA has attempted to address and will undoubtedly be the subject of significant litigation. That litigation will not only determine the validity of the standard, it will also flesh out many of the details left unclear in the standard as written.

Although the initial obligations under the standard for most employers are fairly minimal, employers would be wise to consider now how they will address reports of MSDs as they arise in the future. At a minimum, all employers need to have a firm understanding of OSHA's ergonomics standard in order to identify future issues.