UPDATE - President Bush signed Senate Joint Resolution 6 under the Congressional Review Act (CRA). The resolution repeals the the Federal Occupational Safety and Health Administration's (OSHA) new ergonomics regulations. The regulations would have forced employers to make sweeping changes in their ergonomics controls as well as pay more for ergonomic injuries than what most workers' comp systems call for.
Under the CRA, OSHA is prevented from creating new rules which are "substantially the same" as the ones just repealed. This is the first time that Congress has used the CRA to overturn a regulation.
Simply stated, ergonomics is the science of fitting jobs to people. It deals with physical abilities and limitations, as well as other human characteristics that are relevant to designing jobs or machines.
OSHA's intent is to address musculoskeletal disorders (MSDs). MSDs are the types of injuries that do not arise from slips, trips, falls, motor vehicle crashes or other blunt trauma. These types of injuries are also known as repetitive motion injuries (RMIs) or cumulative trauma disorders (CTDs). OSHA claims that about 65% of workplace injuries are MSD-related.
The Occupational Safety and Health Administration (OSHA) final rule became effective on January 16, 2001, but was overturned by Congress and President Bush. It is referred to as the Ergonomics Program Standard (29 CFR 1910.900). The ergonomics standard addresses 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, 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.
WRP - work restriction protection
an offset for workers compensation benefits
Employers must maintain the earnings of employees placed in restricted work jobs at their pre-WRP level
Employers must maintain the earnings of employees temporarily removed from work at 90% of their pre-WRP level
This excerpt includes OSHA's discussion on the relationship the Ergonomics Standard has with workers compensation benefits.
CFR 29 - Ergonomics Program; Final Rule Paragraph (r) What Must I do if Temporary Work Restrictions or Removal From Work are Needed?; C. Other Considerations; 2. Duration and Level of Benefits
2. Duration and Level of Benefits
(a). Maximum duration. The proposed rule established a maximum duration of 6 months for each episode of WRP benefits. Several commenters supported the agency's preliminary determination that benefits should be provided for up to six months if necessary (see e.g., Exs. 500-218, p. 131; 32-185-3, p. 11-10). Other commenters argued that a six-month duration is unnecessarily long in light of the data showing that most MSD cases will recover in far less time (Exs. 30-352; 32-300-1; 30-3344). The EEI recommended reducing the maximum duration period to 3 months:
Even if OSHA chooses to maintain a WRP provision, it has not shown sufficient justification for six months of coverage. OSHA claims that early recognition, diagnosis and treatment interventions will lead to speedier recoveries from MSDs. Given this premise, the six-month WRP period of time is inordinately long and may enhance the tendency for an employee with a mild MSD case to malinger. OSHA recognizes within the [proposed rule's] preamble a median length of disability for all MSDs of 99 days with many of these cases resolving in significantly less time. Reducing the WRP to three months would be consistent with the anticipated benefits of the proposed rule and will reduce the cost and complexity of the program to employers.
Ex. 32-300-1, p. 23.
OSHA preliminarily estimated that while most employees with lost-
work-time MSDs would recover within 3 months, over 12% of all lost workday cases involved more than 3 months away from work, and that for some types of serious MSDs, the typical disability duration was more than 3 months (64 FR 65855). OSHA concluded that a six-month maximum time for WRP was reasonable because it would allow the majority of workers with more serious MSDs time to recover before losing their benefits. Id.
In the final rule, OSHA has revised its estimates of the number of days employees will be out of work due to MSDs. The agency now estimates that 90% of all workers who experience lost work-time MSDs will return to work within 3 months. In addition, OSHA estimates that in approximately 70% of cases in which workers' compensation claims for MSDs are filed, benefits will be available to replace up to two-thirds of the employee's lost wages. See OSHA's Final Economic Analysis. While a high percentage of workers with MSDs do not currently file claims for workers' compensation benefits, OSHA expects this rate of under-filing to decrease with the implementation of WRP, particularly in cases in which the recovery period exceeds three months. Employees will have an incentive to pursue benefits since claims-filing will not threaten immediate economic harm, and may be the only avenue to recovery of medical expenses and extended wage loss. See Emily Spieler, Ex. 37-14, pp. 18-19, and Tr. 3353. Employers will also have a greater incentive to encourage employees to file claims, or to initiate claims themselves in the majority of states that permit employer-filed claims, because the final rule permits an offset against WRP for workers' compensation benefits received by employees. Thus, of the relatively few workers who will require more than 3 months to recover from their MSDs, a substantial number will be eligible for workers' compensation benefits to replace a portion of lost income and to pay for medical expenses.
For these reasons, OSHA concludes that a three month maximum time period for WRP is appropriate. Based on the estimates discussed above, OSHA believes that the vast majority of workers with lost-time MSDs will receive, or be eligible to receive, a substantial portion of their wages while recovering. OSHA acknowledges that there will be some workers who will require more than three months to recover, and who will not receive workers' compensation or other benefits after the first three months. However, OSHA estimates that this group will represent a small proportion of all workers with lost-time MSDs.
The Agency does not believe it is appropriate to structure WRP requirements around this small group of employees. WRP is intended to provide temporary benefits to encourage employees to report MSDs and to participate in MSD management. As discussed at length in Section B above, WRP is not intended as a federal remedy for workers who have suffered work-related MSDs, or as a supplement to state workers' compensation systems. Based on the record, OSHA believes that a requirement to provide WRP for up to 3 months will be effective in substantially increasing the number of employees reporting MSDs and their signs or symptoms. While requiring WRP for up to 6 months or longer would provide a greater degree of economic protection to injured workers, it would likely produce little if any additional improvement in reporting. As OSHA noted in the proposal, the available data indicate that overall, the number of workers out of work for less than 6 months is not significantly greater than the number of workers out
of work for less than 3 months (64 FR 65855).
In the proposal, OSHA considered several alternatives that would have reduced the maximum duration of MRP benefits to substantially less than 90 calendar days. OSHA preliminarily concluded that limiting MRP benefits to no more than seven days would not provide the requisite protection to employees to encourage them to report MSDs early and to participate in MSD management. 64 FR 65856. The agency noted that employees whose injuries do not resolve within the WRP coverage period would have to rely on workers compensation, and that the effect of the waiting periods required by state systems could be that some of these employees would have no protection for several days. Id. In addition, employees who require more than seven days to recover, but who are not covered by workers' compensation, would face substantial financial pressure to return to work early. For these reasons, OSHA preliminarily concluded that this alternative would have a chilling effect on early reporting. Id.
OSHA solicited comment on whether the alternatives outlined in the proposal, or other alternatives would effectively encourage early reporting and participation. 64 FR 65858. The agency received no evidence that providing WRP for less than 90 calendar days would achieve this purpose. Accordingly, the final rule requires that WRP be provided for up to 90 calendar days.
(b). Interim cutoff points. The final rule permits employers to terminate WRP benefits before the expiration of the 90 calendar day maximum period if one of the following occurs: (i) the employee is able to resume the former work activities without endangering his or her recovery, or (ii) an HCP determines, subject to the dispute resolution procedure in paragraph (s), that the employee can never resume his or her former work activities.
As explained in the preceding discussion, OSHA's data show that in most cases, work restrictions will not be needed for 3 months because the employee will have recovered in less time. The standard permits the employer to end WRP before 3 months if a determination is made that the employee is recovered and able to return to his or her regular job. This is consistent with the principle that work restrictions or removals are temporary and protective in nature, and with OSHA's practice in other standards containing benefits similar to WRP (see e.g., Lead, 43 FR 54440, Formaldehyde, 57 FR 22294). No party opposed the provision that WRP may be ended when the employee is able to return to his or her regular work.
Employers may also reduce their obligation to provide WRP benefits by addressing the MSD hazards in the job at an early date. Once the employer has controlled the MSD hazards so that the employee can resume his/her regular duties without endangering his/her recovery, work restrictions or work removal are no longer necessary. Controlling the MSD hazards in the job quickly is one way that employers may limit the number of days that MRP benefits must be paid.
The proposed rule contained no provision for ending WRP benefits once it becomes clear that the employee will not recover sufficiently to return to the job. Several commenters urged OSHA to include such a provision in the final rule (Exs. 500-218; 32-337-1). The AFL-CIO stated:
[T]he AFL-CIO recommends that OSHA include [an additional] WRP cut-off point, consistent with the WRP provisions in other standards. An employer should be permitted to terminate WRP if and when it is determined that the employee is unable to return to the job. At this point, temporary removal no longer serves OSHA's health protective goal and the worker presumably becomes eligible for workers' compensation.
Ex. 500-218. pp. 131, 127. OSHA agrees that a work restriction or work removal is no longer necessary once it is clear that the employee will not recover sufficiently to be able to return to the job. Accordingly, the final rule permits employers to end WRP benefits before the expiration of three months if a determination is made that the employee is permanently unable to return to his/her regular job.
Some participants suggested that the final rule should contain a limitation, similar to that in the FMLA, on the maximum number of days of benefits in any year. The Chamber of Commerce urged this approach, arguing that under the proposed structure, an employee could theoretically receive WRP for the maximum period, return to work for a day, and then receive another round of MRP benefits. By repeating this cycle, an employee could receive virtually his full annual pay and benefits while actually working only a few days during the year (Ex. 30-1722, pp. 81-82).
OSHA does not believe that the scenario posited by the Chamber is realistic. Employers can significantly reduce the likelihood of having to pay MRP benefits to the same employee on successive occasions by controlling the MSD hazards in their problem jobs effectively. By acting promptly to address MSD hazards, and effectively managing the MSDs that do occur, employers can ensure that, in most cases, injured employees will be able to return to work at full productivity and without the need for further restrictions. Moreover, while there may be some unusual instances in which employees will legitimately need work restrictions more than once in a year for the same job, employers need not allow employees to cycle endlessly in and out of WRP. If an employee requires work restrictions on several consecutive occasions despite the fact that the MSD hazards have been controlled to the extent required in the standard, that is a strong indication that the employee is physically unable to perform the job. As noted above, the standard permits the employer to end WRP if a determination is made that the employee is permanently unable to return to his regular job. For these reasons, OSHA does not believe that an express limitation on the number of days of WRP during the year is appropriate. The final rule thus contains safeguards which effectively limit the circumstances in which an employee could receive WRP benefits at repeated intervals in a year.
(c). Level of benefits. The final rule requires that the employment rights and benefits of employees be fully maintained for the duration of the WRP period. Employers must maintain the earnings of employees placed in restricted work jobs at their pre-WRP level, and must maintain the earnings of employees temporarily removed from work at 90% of their pre-WRP level. The proposed rule contained the same requirements as the final for maintenance of employment rights and benefits. However, the proposal required maintenance of either 100% or 90% of "after-tax earnings," depending upon whether the employee was assigned restricted work or was temporarily removed.
Many participants criticized this provision. Although OSHA intended the provision to mean that the employee's net earnings should be 90% of the net earnings the employee would have received by working, a number of commenters thought the provision meant that the employee's gross WRP benefits should be equal to 90% of net earnings. Thus, the AFL-CIO argued that this formulation could result in WRP benefits being taxed twice, and would be problematic for employers to implement (Ex. 500-
218, pp. 121-122). OSHA agrees, and has deleted the reference to "after-tax earnings." It uses the word "earnings" in the final rule. Earnings generally means gross pay.
The AFL-CIO also objected to providing only 90% of pre-WRP wages to employees temporarily removed from work, arguing that full wage protection is necessary to encourage employee reporting and participation (Ex. 500-218, pp. 122). However, employees who remain at home do not incur certain expenses, such as commuting and child care expenses, incurred by employees who must report to work. Therefore, some reduction from the wages of workers removed from work is appropriate to balance the cost savings that these workers accrue; otherwise employees would reap a financial benefit from WRP (Ex. 32-22-
1; p. 17). OSHA considers that restoring 90% of the earnings of employees removed from work approximates the portion of these employees' wages actually lost due to MSDs.
IRMI expert commentary article titled "ERGONOMICS—A RISK MANAGEMENT PERSPECTIVE" at
or at AlwaysOnTheJob.com website: