OSHA’s New Ergonomics Program

On April 5, 2002, just over a year after President Bush repealed the old ergonomics rule, OSHA released its second plan for regulating ergonomics. Although OSHA is still formulating the specific guidelines that will govern specific industries, OSHA has announced that the new ergonomics program is based on a four-pronged approach, namely the development of ergonomics guidelines, compliance assistance, enforcement, and research. The current version of the new ergonomics plan is best viewed as an overall framework that OSHA will use to determine whether companies have made a sufficient effort to address ergonomic hazards.

At this point, it appears that the new ergonomics program will not mandate that employers take specific actions but will instead rely on industry guidelines and best practices for reducing ergonomic hazards. OSHA will conduct targeted inspections to determine whether employers have made a good faith effort to reach and maintain compliance with the industry guidelines.

Guidelines

Although the specific industry guidelines are still under development, OSHA expects to begin releasing guidelines for selected industries later this year. Wherever possible, OSHA will likely base the new guidelines on existing best practices that have already been developed, such as OSHA's Meatpacking Guidelines that were issued in 1990. OSHA will also encourage other businesses and industries to immediately develop additional guidelines of their own.

Compliance Assistance

The new ergonomics program requires OSHA to develop compliance assistance tools to help industry reduce and prevent ergonomic hazards. OSHA will offer training programs and information regarding the new ergonomics guidelines and the implementation of successful ergonomics programs. It will also administer targeted training grants, develop compliance assistance tools, forge partnerships and create a recognition program to highlight successful ergonomics injury reduction efforts. The new ergonomics program includes a specialized focus to help Hispanic and other immigrant workers, especially those with limited English proficiency.

Enforcement

The new ergonomics program will focus OSHA’s enforcement efforts on industries with serious ergonomics problems that OSHA and the Department of Labor ("DOL") attorneys have successfully prosecuted. These cases were previously prosecuted under the General Duty Clause for failure to address known ergonomic problems. Under the new ergonomics program, OSHA will train special ergonomics inspection teams that will partner with DOL attorneys and experts to successfully bring prosecutions under the General Duty clause. OSHA has already announced a National Emphasis Program in the nursing home industry and it will focus particular effort on reducing ergonomic hazards in nursing homes related to patient lifting. This will mark the first time that OSHA has coordinated its inspections to coincide with a legal strategy developed by DOL attorneys. The strategy will be based on prior successful ergonomics cases and will be designed to maximize successful prosecutions.

Research

OSHA’s new ergonomic program includes the announcement of a national advisory committee that is designed to advise OSHA on additional ergonomic research needs. The National Academy of Sciences has identified the need for more research on ergonomic hazards and the national advisory committee will be authorized to specify the areas where more research is necessary. The national advisory committee will report to OSHA and the National Institute for Occupational Safety and Health ("NIOSH"). OSHA and NIOSH will work closely together to encourage additional research regarding ergonomic issues.

On April 9^th, OSHA named regional coordinators for ergonomics for each of its 10 regional offices to assist OSHA staff, employers, employees and other stakeholders with compliance with the new ergonomics program. The coordinators are intended to serve as a resource for OSHA compliance officers in conducting and documenting hazards during inspections. They will also assist OSHA compliance assistance specialists in tracking OSHA’s outreach and education efforts as they offer training and guidance on best practices in ergonomics and respond to specific questions from employers and employees.

OSHA's regional ergonomics coordinators include:

Thus far, business and industry leaders have taken a cautiously receptive approach to OSHA’s new ergonomics program. Groups such as the U.S. Chamber of Commerce and the National Association of Manufacturers have applauded the program’s focus on education and training rather than implementing new regulations and requirements although they remain cautious about OSHA’s partnership with Department of Labor attorneys to form special teams to inspect and prosecute employers under the new ergonomics program. Labor groups such as the AFL-CIO, however, have strongly criticized the new ergonomics program and are likely to push for additional legislation designed to force OSHA to create a new ergonomics rule that is closer to the previous rule. OSHA’s new ergonomics program is likely to spark intense political debate over the next few months. Employers should act now to begin developing an ergonomics program that complies with OSHA’s new ergonomics strategy in order to blunt organized labor’s argument that additional legislation is necessary to protect workers from ergonomics hazards.

If your company employs Hispanic workers with limited English proficiency, the time is now to make sure that those workers have received and understood the required safety training. OSHA has made safety training of Hispanic workers a top priority and it is actively targeting for inspection industries, such as construction, that have large numbers of Hispanic workers. OSHA is continuing its recent focus on decreasing the fatality and injury rates of Hispanic workers. According to the Bureau of Labor Statistics, in 2000, the fatality rate for Hispanic employees climbed by more than 11 percent, while deaths for all other groups declined. In addition, the number of Hispanic workers in the general workforce killed on the job rose from 729 in 1999 to 815 in 2000, an increase that was led by a 24 percent jump in fatalities involving Hispanic construction workers. On February 21, 2002, OSHA announced a series of initiatives aimed at addressing Hispanic worker safety and health such as translating existing brochures into Spanish, partnering with Hispanic organizations, providing training for unemployed and unskilled workers, including a Spanish-language worker safety page on OSHA’s website, and planning a worker safety best practices conference to be held later this year. The new Spanish webpage is designed to increase Hispanic workers’ access to information they can use to make their workplaces safer. The new webpage is designed to provide a comprehensive service for Spanish employers and employees. It focuses on the following areas: an overview of OSHA and its mission; how to file complaints electronically in Spanish; worker and employer rights and responsibilities; and a list of resources for employers and workers.

OSHA is focusing on outreach and safety training for Hispanic workers in order to reduce the high rate of fatalities and injuries among Hispanic workers. OSHA has also entered into an agreement with the Hispanic Contractors of America, Inc. ("HCA") that is designed to promote effective safety training for Hispanic workers. The agreement calls for OSHA and the HCA to work together to:

1. Identify existing safety and health resources available for Spanish workers and stimulate the development of additional publications and audio-visual products.

2. Jointly disseminate safety and health information through conferences, events, community-based activities and electronic media.

3. Work with community and faith-based organizations and other leadership groups to build safety and health awareness within the Hispanic community.

4. Encourage bilingual individuals in the construction industry to take OSHA's train-the-trainer class so they can teach the 10-hour and 30-hour construction safety and health outreach courses in Spanish.

5. Promote and encourage HCA members to participate in OSHA cooperative programs such as compliance assistance, consultation and mentoring.

OSHA is also working to address employers’ underreporting of workplace fatalities by (i) increasing its relationships with law enforcement and health authorities who are often the first to be aware of workplace deaths; (ii) adding a Spanish-language option to its toll-free help line; and (iii) creating a special task force designed to improve OSHA’s outreach efforts to the Hispanic community. If your company employs a large number of Hispanic workers, this is a good time to conduct a privileged safety audit to be sure that they have been adequately trained.

OSHA violations cost money. Aside from the actual penalties that may be levied by OSHA, the violations lead to increased insurance premiums and make a company more vulnerable to civil lawsuits. While most employers are aware that OSHA violations should be avoided, many are unaware that OSHA violations have a tangible effect on their bottom line. A typical general contractor working on a $100 million construction project, for example, may spend 22 to 24 percent of its costs on labor at an average of $25 per hour. The savings in insurance premiums for this contractor if it has a "B+" safety record, compared to a "C-" safety record, are significant. The contractor with the "C" safety record will pay approximately $3.5 million in insurance premiums; the contractor with the "B+" safety record will pay only $2.1 million. These additional costs are reflected in the contractor’s bids and therefore have a direct effect on its competitiveness.

OSHA violations make companies more prone to civil lawsuits because plaintiff’s lawyers know that the violations can be used as evidence in civil lawsuits of the company’s negligence. These cases usually arise from injuries to customers, employees of other companies that are injured on the company’s work site, or employees seeking to obtain recovery outside the workers’ compensation system. Many plaintiff’s lawyers now make a habit of checking a company’s OSHA compliance record as they prepare to initiate a personal injury lawsuit against the company. The company’s compliance with OSHA regulations is helpful to the plaintiff in negligence actions for the following reasons:

1. It helps the jury determine whether the company has complied with industry standards.

2. It demonstrates that it was reasonably foreseeable to the company that someone might be hurt by the company’s actions (or failure to act).

3. It makes the company seem unconcerned with the welfare of their employees.

Savvy companies are working to minimize their risk of incurring OSHA violations or civil liability in negligence actions by maximizing their use of privileged self-audits for OSHA compliance, internal OSHA training programs and the development of comprehensive written safety and health programs. Companies that are not already engaged in these efforts should consider the following:

1. Seeking counsel on OSHA regulatory compliance.

2. Mandating OSHA compliance via company policy and rules.

3. Training management and hourly employees on OSHA compliance.

4. Creating and enforcing employee disciplinary programs for safety rule violations.

5. Obtaining training on handling OSHA inspections and accident investigations.

6. Implementing a contractor pre-qualification and management program.

7. Conducting privileged and confidential OSHA audits.

8. Challenging alleged OSHA violations to avoid creating a negative record.

Companies can no longer afford to pay mere lip service to safety issues and just pay OSHA fines as they occur. The bottom line is that by increasing their focus on safety issues, companies can increase productivity, decrease insurance costs, and most importantly, provide a safer workplace for their employees.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.