OSHA Changes Could Hurt

By DAVID SHADOVITZ, editor of Human Resource Executive®, a sister publication of Risk & Insurance®, where this story first appeared

Ergonomics is back on the Occupational Safety and Health Administration's agenda, after what some might describe as an eight-year hiatus during the Bush administration.

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On Jan. 29, OSHA proposed new rules that would require employers to track and report workplace-related musculoskeletal disorders. While the changes are ostensibly little more than additional record-keeping, experts warn the proposal could likely pave the way for further enforcement and rulemaking by the agency.

OSHA wants to restore a column to the OSHA 300 log that would record work-related musculoskeletal disorders, such as carpal-tunnel syndrome and rotator cuff syndrome. The rules are identical to those contained in an OSHA record-keeping regulation that was issued in 2001 by the Clinton administration, but was removed in 2003 during the Bush presidency before ever going into effect.

Critics argued at the time that the definition used to describe musculoskeletal disorders was far too broad to be useful and that the new column wouldn't contain the type of detailed information that would be needed to address the problem of musculoskeletal disorders.

Assistant Secretary of Labor for OSHA David Michaels said the column would "improve the accuracy and completeness of national work-related injury and illness data."

The agency emphasizes that the rules would not require employers to take any action other than to check the new column on the OSHA form should a work-related MSD case occur.

Experts, however, said this could be a first step in the direction of regulatory and enforcement actions.

"If I were an employer, I'd be concerned," said Jason C. Schwartz, a partner in the Washington office of Gibson, Dunn & Crutcher.

"It will increase the number of recordable incidents by broadening what might qualify as an MSD," he said. "So after collecting the data for a while, I wouldn't be surprised to see OSHA announce that there is a major MSD problem and decide to do something about it."

Schwartz said he also wouldn't be surprised to see employer groups fight the new rules in the courts, as they did the last time around.

Ashley Brightwell, a partner in the Atlanta office of Alston & Bird, agrees the rules could lead to "future actions by OSHA to regulate MSDs ... and increase the number of citations being issued against employers."

OSHA, she said, is very focused right now on record-keeping violations. "So a big fear," she said, "is that by highlighting MSDs in the workplace, you're opening the door to the number of general-duty citations."

Brightwell advises employers to closely review their OSHA 300 logs and be proactive in evaluating their workplaces and eliminating any current ergonomic hazards.

OSHA considers tracking musculoskeletal disorders an important policy objective, said Mark Wilson, a principal with Applied Economic Strategies LLC in Washington. But the proposed reporting requirement includes "nothing about the nature of the disorder, what caused it or how to go about abating it."

April 1, 2010

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