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In January 2001, after devoting years to its development, the Occupational Safety and Health Administration (OSHA) issued a far-reaching ergonomics rule just four days before President Bush took office. As a result, employers from all industries were forced to evaluate their workplaces and, in large part, guess at the extent to which the new rule would affect their businesses. The rule imposed broad responsibilities on employers to inform and train employees about ergonomic injuries-termed musculoskeletal disorders (MSDs)-to evaluate workplace MSDs and to eliminate the causes of such MSDs. The long-awaited, bitterly challenged rule was estimated to be the most expensive safety and health standard in OSHA’s 30-year history and was expected to have a greater impact on more employers in more sectors of employment than any other OSHA regulatory action. The battle waged by business interests and labor unions over the new rule largely came to an end in March 2001, when Congress repealed the new ergonomics rule pursuant to the Congressional Review Act and prohibited the Department of Labor from issuing a substantially similar rule. President Bush signed the repeal of the ergonomics rule on March 20, 2001. On April 5, 2002, OSHA announced a new “comprehensive” ergonomics plan consisting of four components: industry-specific, voluntary guidelines; targeted enforcement; workplace outreach; and advanced research. On its face, the plan appeared to be a much different approach from the Clinton administration’s mandatory ergonomics rule. But a year and a half after the plan was announced, ergonomics continues to be an issue of concern for employers, which remain anxious about the first two prongs of the new plan-OSHA’s industry-specific guidelines and OSHA’s enforcement actions. To date, OSHA has focused its ergonomic guidelines on four industries. Specifically, on March 13, 2003, OSHA issued final guidelines for the nursing-home industry; OSHA is currently drafting guidelines for the retail grocery and poultry industries; and OSHA has also announced plans to issue guidelines for the shipyard industry. Finally, OSHA has encouraged those industries for which it has not created specific guidelines to develop their own guidelines. OSHA also has followed through on its announced plan for “targeted enforcement” related to ergonomic hazards. Although the industry-specific guidelines are voluntary, OSHA’s hands are not completely tied when it comes to citing employers for ergonomic hazards in the workplace. As always, employers are required to comply with OSHA’s prohibition against creating recognized hazards in the workplace, contained in � 5(a)(1) of the Occupational Safety and Health Act, also known as the “general duty clause.” Under OSHA’s new ergonomics plan, in the absence of a specific ergonomics rule, OSHA is relying on the general duty clause exclusively to cite employers for ergonomic hazards in the workplace. To establish a violation of the general duty clause, OSHA must prove that a certain hazard is “recognized” by the employer. See, e.g., Beverly Enterprises Inc., 19 O.S.H. Cas. (BNA) 1161 (Oct. 27, 2000). Evidence that an ergonomic hazard is “recognized” can be established by injury and illness records evidencing ergonomic injuries in the workplace; complaints regarding ergonomic injuries; or other documentary evidence of a recognition of hazards, such as a report evaluating ergonomic hazards generated by or for the employer. In addition, OSHA considers what is generally known in an employer’s particular industry, which may be evidenced by industry association warnings about ergonomic hazards, ergonomic studies or guidelines particular to the employer’s industry. More ergonomic inspections OSHA’s new ergonomics plan has resulted in a notable rise in ergonomic-related inspections. While OSHA conducted only 251 ergonomic inspections from 1989 to 1992 and only 87 such inspections from 1993 to 2000, the agency has conducted more than 1,300 ergonomic inspections since July 2002. See Assistant Secretary of Labor for Occupational Safety and Health John L. Henshaw, Address at the National Safety Congress (Sept. 9, 2003), at www.osha.gov/pls/oshaweb/ owadisp.show_document?p_table=SPEECHES&p_id=729. Since the repeal of the ergonomics rule in March 2001, however, OSHA has issued a total of 12 general duty clause citations based on ergonomic hazards. A few common threads run among the 12 citations. Eight of the citations were issued against nursing home operators, with the remaining citations issued against a soft-drink bottler, a printing company, a wholesale grocer and a metal-door manufacturer. Of these 12, eight were the result of an OSHA-initiated National Emphasis Program that focused on ergonomic injuries caused by the manual lifting of residents in nursing homes, three were the result of employee complaints and one was inspected as part of OSHA’s Site Specific Targeting Program. The National Emphasis Program, which ended on Sept. 30, 2003, produced 874 of the more than 1,300 ergonomic inspections conducted through Oct. 10, 2003. See Effective Ergonomics: Strategy for Success, at www.osha.gov/SLTC/ergonomics/four-pronged_factsheet_2003.html (Oct. 10, 2003). Similar OSHA enforcement programs are targeting the hospital, automobile parts, warehousing and meatpacking industries. Id. The Site Specific Targeting Program is an annual program established by OSHA that uses data that the Bureau of Labor Statistics has collected from employers to identify and target for inspection facilities with high injury and illness rates. All of the citations included a citation for the hazard of excessive lifting. Three of the 12 citations were issued to unionized facilities, with two of those sets of citations resulting from employee complaints. Proposed penalties included abatement and initial fines ranging from $900 to $6,300 for each general duty clause violation. Several of the employers have contested these citations. OSHA has announced that it will not focus its enforcement efforts on employers that have implemented effective ergonomics programs in their facilities or that are making good-faith efforts to reduce ergonomic injuries. See “One Year Later: Inadequate Progress on America’s Leading Cause of Workplace Injury: Hearing before the Senate Comm. on Health, Education, Labor & Pensions,” 107th Cong. 422 (2002) (testimony of Elaine Chao, secretary of labor). While it is not yet clear what constitutes a “good-faith effort” to reduce ergonomic injuries, OSHA contends that mere implementation of an ergonomic program at the corporate level is insufficient. To illustrate, in connection with the ergonomic citations issued against the soft drink bottler and the wholesale grocer, OSHA contends that while the companies had corporate ergonomic programs in place, the companies had not successfully implemented those programs at the facility level. See Assistant Secretary of Labor for Occupational Safety and Health John L. Henshaw, Address at the 54th Annual Convention and Exposition of the American Health Care Association (Oct. 13, 2003), at www.osha.gov/ pls/oshaweb/owadisp.show_document?p_table=SPEECHES&p_id=750. In addition to the effective implementation of an ergonomic program, the implementation of OSHA’s “voluntary” guidelines may help to ward off OSHA citations. Despite the asserted voluntary nature of the guidelines, OSHA’s concentration on nursing homes in its enforcement of the general duty clause could give credence to some claims that the issuance of guidelines for that industry in March 2002, and the beginning of the National Emphasis Program for nursing homes in July 2002, was more than mere coincidence. As noted, of the 12 ergonomic citations issued since Congress’ repeal of the ergonomic rule, eight have been issued to nursing home operators. There may, however, be another, less sinister explanation for why nursing homes have been the focus of OSHA’s initial attention. The eight ergonomic citations against nursing homes have all been for one type of hazard-the manual lifting of patients by employees. OSHA indicates that it chose the nursing home industry for its first set of ergonomic guidelines due to the level of knowledge about that particular hazard and about how to abate that hazard. Arguably, these prosecutions are easier for OSHA because it is difficult for a nursing home to argue that the hazard of manual lifting is not “recognized,” although OSHA may still face an uphill battle in establishing a feasible method of abatement. Presumably, OSHA’s ultimate goal is quick and successful prosecutions, especially at the dawn of a new enforcement program. Learning from the nursing home industry’s recent experience, employers may be wise to implement their industry’s guidelines in the workplace. While failure to implement the guidelines in the workplace cannot, by itself, form the basis for a citation under the general duty clause, the failure to implement the guidelines may expose an employer to greater scrutiny from OSHA. Future enforcement efforts Future ergonomic citations will result primarily from three sources. First, citations will result from inspections that are part of OSHA’s Site Specific Targeting Program-focusing on facilities with higher than average injury and illness rates. OSHA indicates that it will focus its ergonomic inspections on industries whose high injury and illness rates seem to be the result of ergonomic hazards and industries where feasible methods exist to abate the ergonomic hazards. See OSHA’s Ergonomic Enforcement Plan, at www.osha.gov/SLTC/ergonomics/enforcement_plan.html(March 6, 2003). Citations also may result from inspections performed in response to employee complaints. In response to the repeal of the previous ergonomics rule, unions encouraged their members to file ergonomic-related complaints with OSHA in the hope of forcing OSHA to prosecute companies under the general duty clause. For example, in 2002, the United Food and Commercial Workers International Union filed a complaint regarding alleged repetitive stress injuries at a poultry facility in Texas. See “With or Without an Ergo Standard: Food and Commercial Workers Push OSHA to Act,” at www.ufcw.org/press_room/press_releases_2002/ufcwergocomplaint.cfm. OSHA’s investigation of that complaint did not, however, result in an ergonomics citation. See Cindy Skrzycki, “Alarm over a Sheepish Non-Rule,” Wash. Post, Oct. 29, 2002, at E1. The final source of citations will likely be based on reinspections of employers that have received an ergonomics hazard alert letter. Inspections performed since the defeat of the 2001 ergonomics rule have produced 206 such letters. See Effective Ergonomics, supra. OSHA has sent 104 of those letters to nursing homes. See Oct. 13, 2003, Henshaw address, supra. According to OSHA, the agency issues a hazard alert letter when it determines that an ergonomic hazard exists but that the employer is trying to eliminate the hazard. Assistant Secretary Henshaw said that the purpose of the hazard alert letter is to “make employers aware of hazards and provide information on feasible means of abatement and sources of assistance.” See “A Review of OSHA’s Plan to Reduce Ergonomic Injuries: Hearing Before the House Subcomm. on Workforce Protections of the Comm. on Education & the Workforce,” 107th Cong. 61 (2002) (statement of John L. Henshaw), at www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=TESTIMONIES&P_id=306. The hazard alert letters appear to be part of OSHA’s effort to coordinate its citations and prosecutions for violations of the general duty clause. After OSHA issues a hazard alert letter, it will return in 12 months to reinspect the employer. See Ergonomics: FAQ, at www.osha.gov/SLTC/ergonomics/faqs.html (Sept. 30, 2002). Again, pursuant to the general duty clause, OSHA must prove that the cited hazard is recognized by the employer or by the industry in general. Once an employer receives a hazard alert letter, it might become difficult for an employer to argue later that it had no knowledge of the hazard, and therefore should not be liable under the general duty clause. On the other hand, a single hazard alert letter from OSHA might not be accepted as a proper basis for a “recognized” hazard for a general duty clause citation and could be viewed as “boot-strapping” by OSHA into a general duty clause citation. Although OSHA has issued only 12 ergonomic citations to date, as noted, it has issued hundreds of hazard alert letters. Therefore, although OSHA has not indicated an intention to use the hazard alert letters as a basis for future citations, the groundwork may nevertheless have been laid for many ergonomic citations in the upcoming year for those employers that have not corrected hazards of which they are arguably now aware. Citing employers under the general duty clause for alleged ergonomic hazards is not a new phenomenon. OSHA had the ability to cite employers for violations of the general duty clause long before the new ergonomics plan was proposed. However, OSHA has delivered on its promise to step up its enforcement efforts under the new plan and is indeed using the general duty clause to target perceived violators as an alternative to a far-reaching ergonomics rule that would have imposed specific requirements on all employers. Consequently, ergonomics will continue to be a significant issue for employers as OSHA broadens its targeted industries and continues its ergonomic-focused inspections. Charles H. Morgan is a partner at Atlanta’s Alston & Bird, where he is the practice leader of the firm’s occupational safety and health practice. Ashley D. Brightwell and Matthew M. Scoggins III, associates at the firm, contributed to this article. Morgan can be reached at [email protected].

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