Federal Registers - Table of Contents Federal Registers - (Archived) Table of Contents
• Publication Date: 11/14/2000
• Publication Type: Final Rules
• Fed Register #: 65:68261-68870
• Standard Number: 1910
• Title: Ergonomics Program; Final Rule.
• Status: Archived

Archive Notice - OSHA Archive

NOTICE: This is an OSHA Archive Document, and may no longer represent OSHA Policy. It is presented here as historical content, for research and review purposes only.


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Part II





Department of Labor





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Occupational Safety and Health Administration



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29 CFR Part 1910



Ergonomics Program; Final Rule


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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket No. S-777]
RIN 1218-AB36


Ergonomics Program

AGENCY: Occupational Safety and Health Administration (OSHA),
Department of Labor.

ACTION: Final rule.

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SUMMARY: The Occupational Safety and Health Administration is issuing a
final Ergonomics Program standard (29 CFR 1910.900) to address 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 by general industry employers, 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. This action trigger acts
as a screen. When an employee reports an MSD, the employer must first
determine whether the MSD is an MSD incident, defined by the standard
as an MSD that results in days away from work, restricted work, medical
treatment beyond first aid, or MSD symptoms or signs that persist for 7
or more days. Once this determination is made, the employer must
determine whether the employee's job has risk factors that meet the
standard's action trigger. The risk factors addressed by this standard
include repetition, awkward posture, force, vibration, and contact
stress. If the risk factors in the employee's job do not exceed the
action trigger, the employer does not need to implement an ergonomics
program for that job.
    If an employee reports an MSD incident and the risk factors of that
employee's job meet the action trigger, the employer must establish an
ergonomics program for that job. The program must contain the following
elements: hazard information and reporting, management leadership and
employee participation, job hazard analysis and control, training, MSD
management, and program evaluation. The standard provides the employer
with several options for evaluating and controlling risk factors for
jobs covered by the ergonomics program, and provides objective criteria
for identifying MSD hazards in those jobs and determining when the
controls implemented have achieved the required level of control.
    The final standard would affect approximately 6.1 million employers
and 102 million employees in general industry workplaces, and employers
in these workplaces would be required over the ten years following the
promulgation of the standard to control approximately 18 million jobs
with the potential to cause or contribute to covered MSDs. OSHA
estimates that the final standard would prevent about 4.6 million work-
related MSDs over the next 10 years, have annual benefits of
approximately $9.1 billion, and impose annual compliance costs of $4.5
billion on employers. On a per-establishment basis, this equals
approximately $700; annual costs per problem job fixed are estimated at
$250.

DATES: This final rule becomes effective on January 16, 2001.
    Compliance. Start-up dates for specific provisions are set in
paragraph (w) of Sec. 1910.900. However, affected parties do not have
to comply with the information collection requirements in the final
rule until the Department of Labor publishes in the Federal Register
the control numbers assigned by the Office of Management and Budget
(OMB). Publication of the control numbers notifies the public that OMB
has approved these information collection requirements under the
Paperwork Reduction Act of 1995.

ADDRESSES: In compliance with 28 U.S.C. 2112(a), the Agency designates
the Associate Solicitor for Occupational Safety and Health, Office of
the Solicitor, Room S-4004, U.S. Department of Labor, 200 Constitution
Avenue, NW., Washington, DC 20210, as the recipient of petitions for
review of the standard.

FOR FURTHER INFORMATION CONTACT: OSHA's Ergonomics Team at (202) 693-
2116, or visit the OSHA Homepage at www.osha.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

    The preamble and standard are organized as follows:

I. Introduction
II. Events Leading to the Standard
III. Pertinent Legal Authority
IV. Summary and Explanation
V. Health Effects
VI. Risk Assessment
VII. Significance of Risk
VIII. Summary of the Final Economic Analysis and Final Regulatory
Flexibility Analysis
IX. Unfunded Mandates Analysis
X. Environmental Impact Statement
XI. Additional Statutory Issues
XII. Procedural Issues
XIII. Federalism
XIV. State Plan States
XV. OMB Review under the Paperwork Reduction Act of 1995
XVI. List of Subjects in 29 CFR Part 1910
XVII. The Final Ergonomics Program Standard

    References to documents, studies, and materials in the rulemaking
record are found throughout the text of the preamble. Materials in the
docket are identified by their Exhibit numbers, as follows: ``Ex. 26-
1'' means Exhibit 26-1 in Docket S-777. A list of the Exhibits and
copies of the Exhibits are available in the OSHA Docket Office.

I. Introduction

A. Overview

    This preamble discusses the data and events that led OSHA to issue
the final Ergonomics Program standard (Section II), and the Agency's
legal authority for promulgating the rule (Section III). This
discussion is followed by a detailed paragraph-by-paragraph summary and
explanation of the final rule, including the Agency's reasons for
including each provision and OSHA's responses to the many substantive
issues that were raised in the proposal and during the rulemaking
(Section IV).
    The summary and explanation of the standard is followed by a
lengthy discussion of the evidence on the health effects that are
associated with worker exposure to MSD hazards (Section V). The next
section discusses the nature and degree of ergonomic-related risks
confronting workers in general industry jobs (Section VI), and assesses
the significance of those risks (Section VII). The preamble also
contains a summary of the Final Economic and Final Regulatory
Flexibility Analysis (Section VIII). Finally, the preamble describes
the information collections associated with the final standard (Section
XV).

B. The Need for an Ergonomics Program Standard

    Work-related musculoskeletal disorders (MSDs) currently account for
one-third of all occupational injuries and illnesses reported to the
Bureau of Labor Statistics (BLS) by employers every year. Although the
number of MSDs reported to the BLS, like all occupational injuries and
illnesses, has declined by more than 20% since 1992,

[[Page 68263]]

these disorders have been the largest single job-related injury and
illness problem in the United States for the last decade, consistently
accounting for 34% of all reported injuries and illnesses. In 1997,
employers reported a total of 626,000 lost worktime MSDs to the BLS,
and these disorders accounted for $1 of every $3 spent for workers'
compensation in that year. This means that employers are annually
paying more than $15 billion in workers' compensation costs for these
disorders, and other expenses associated with work-related MSDs, such
as the costs of training new workers, may increase this total to $45
billion a year. Workers with severe MSDs often face permanent
disability that prevents them from returning to their jobs or handling
simple, everyday tasks like combing their hair, picking up a baby, or
pushing a shopping cart. For example, workers who must undergo surgery
for work-related carpal tunnel syndrome often lose 6 months or more of
work.
    Thousands of companies have taken action to address and prevent
these problems. OSHA estimates that 46 percent of all employees but
only 16 percent of all workplaces in general industry are already
protected by an ergonomics program, because their employers have
voluntarily elected to implement an ergonomics program. (The difference
in these percentages shows that many large companies, who employ the
majority of the workforce, already have these programs, and that many
smaller employers have not yet implemented them.) Based on its review
of the evidence in the record as a whole, OSHA concludes that the final
standard is needed to protect employees in general industry workplaces
who are at significant risk of incurring a work-related musculoskeletal
disorder but are not currently protected by an ergonomics program.

C. The Science Supporting the Standard

    A substantial body of scientific evidence supports OSHA's effort to
provide workers with ergonomic protection (see the Health Effects, Risk
Assessment, and Significance of Risk sections (Sections V, VI, and VII,
respectively) of this preamble, below). This evidence strongly supports
two basic conclusions: (1) There is a positive relationship between
work-related musculoskeletal disorders and employee exposure to
workplace risk factors, and (2) ergonomics programs and specific
ergonomic interventions can substantially reduce the number and
severity of these injuries.
    In 1998, the National Research Council/National Academy of Sciences
found a clear relationship between musculoskeletal disorders and work
and between ergonomic interventions and a decrease in the number and
severity of such disorders. According to the Academy, ``Research
clearly demonstrates that specific interventions can reduce the
reported rate of musculoskeletal disorders for workers who perform
high-risk tasks'' (Work-Related Musculoskeletal Disorders: The Research
Base, ISBN 0-309-06327-2 (1998)). A scientific review of hundreds of
peer-reviewed studies involving workers with MSDs by the National
Institute for Occupational Safety and Health (NIOSH 1997) also supports
this conclusion.
    The evidence, which is comprised of peer-reviewed epidemiological,
biomechanical and pathophysiological studies as well as other published
evidence, includes:

II. More than 2,000 articles on work-related MSDs and workplace risk
factors;
II. A 1998 study by the National Research Council/National Academy of
Sciences on work-related MSDs;

     A critical review by NIOSH of more than 600
epidemiological studies addressing the effects of exposure to workplace
risk factors (1997);
     A 1997 General Accounting Office report of companies with
ergonomics programs;
I. Other evidence and analyses in the Health Effects section of the
preamble to the final rule;
II. Hundreds of case studies from companies with successful ergonomics
programs; and
I. Testimony and evidence submitted to the record by expert witnesses,
workers, safety and health professionals, and others, which is
discussed throughout the preamble to the final rule.

    Taken together, this evidence indicates that:
     High levels of exposure to ergonomic risk factors on the
job lead to an increased incidence of work-related MSDs among exposed
workers;
     Reducing exposure to physical risk factors on the job
reduces the incidence and severity of work-related MSDs;
     Many work-related MSDs are preventable; and
     Ergonomics programs are demonstrably effective in reducing
risk, decreasing exposure and protecting workers against work-related
MSDs.
    As with any scientific field, research in ergonomics is ongoing.
The National Academy of Sciences is currently undertaking another
review of the science in order to expand on its 1998 study. OSHA has
examined all of the research results in the record of this rulemaking
in order to ensure that the final Ergonomics Program standard is based
on the best available and most current evidence. Although more research
is always desirable, OSHA finds that more than enough evidence already
exists to demonstrate the need for a final standard. In the words of
the American College of Occupational and Environmental Medicine, the
world's largest occupational medical society, ``there is an adequate
scientific foundation for OSHA to proceed * * * and, therefore, no
reason for OSHA to delay the rulemaking process * * *.''

D. Information OSHA Is Providing To Help Employers Address Ergonomic
Hazards

    Much literature and technical expertise on ergonomics already
exists and is available to employers, both through OSHA and a variety
of other sources. For example:
     Information is available from OSHA's ergonomics Web page,
which can be accessed from OSHA's World Wide Web site at http://
www.osha.gov by scrolling down and clicking on ``Ergonomics'';
     Many publications, informational materials and training
courses, which are available from OSHA through Regional Offices, OSHA-
sponsored educational centers, OSHA's state consultation programs for
small businesses, and through the Web page;
     Publications on ergonomics programs, which are available
from NIOSH at 1-800-35-NIOSH. NIOSH's Web page is also ``linked'' to
OSHA's ergonomics Web page;
     OSHA's state consultation programs, which will provide
free on-site consultation services to employers requesting help in
implementing their ergonomics programs; and
     OSHA-developed compliance assistance materials, which are
available as non-mandatory appendices to the standard, electronic
compliance assistance training materials (e-cats) on specific tasks
(e.g., lifting) or work environments (e.g., nursing homes). OSHA is
also making several publications available on the web, such as the Easy
Ergonomics Booklet, Fact Sheets, and so on. These materials can be
obtained by accessing OSHA's Internet home page at www.OSHA.gov.

II. Events Leading to the Development of the Final Standard

    In this final standard, OSHA has relied on its own substantial
experience with ergonomics programs, the

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experience of private firms and insurance companies, and the results of
research studies conducted during the last 30 years. Those experiences
clearly show that: (1) Ergonomics programs are an effective way to
reduce occupational MSDs; (2) ergonomics programs have consistently
achieved that objective; (3) OSHA's standard is consistent with these
programs; and (4) the standard is firmly grounded in the OSH Act and
OSHA policies and experience. The primary lesson to be learned is that
employers with effective, well-managed ergonomics programs achieve
significant reductions in the severity and number of work-related MSDs
that their employees experience. These programs also generally improve
productivity and employee morale and reduce employee turnover and
absenteeism (see Section VI of this preamble, and Chapters IV
(Benefits) and V (Costs of Compliance) of OSHA's Final Economic
Analysis (Ex. 28-1)).
    OSHA's long experience with ergonomics is apparent from the
chronology below. As this table shows, the Agency has been actively
involved in ergonomics for more than 20 years.

------------------------------------------------------------------------

------------------------------------------------------------------------
                       OSHA Ergonomics Chronology
------------------------------------------------------------------------
March 1979...................  OSHA hires its first ergonomist.
Early 1980s..................  OSHA begins discussing ergonomic
                                interventions with labor, trade
                                associations and professional
                                organizations. OSHA issues citations to
                                Hanes Knitwear and Samsonite for
                                ergonomic hazards.
August 1983..................  The OSHA Training Institute offers its
                                first course in ergonomics.
February 1986................  OSHA publishes ``Working Safely with
                                Video Display Terminals,'' its first
                                publication concerning ergonomics as it
                                applies to the use of computer
                                technology
May 1986.....................  OSHA begins a pilot program to reduce
                                back injuries through review of injury
                                records during inspections and
                                recommendations for job redesign using
                                NIOSH's Work Practices Guide for Manual
                                Lifting.
October 1986.................  The Agency publishes a Request for
                                Information on approaches to reduce back
                                injuries resulting from manual lifting.
                                (57 FR 34192)
November 1988................  OSHA/Iowa Beef Processors reach first
                                corporate-wide settlement to reduce
                                ergonomic hazards at 8 IBP locations
                                nationwide.
July 1990....................  OSHA/UAW/Ford corporate-wide settlement
                                agreement commits Ford to reduce
                                ergonomic hazards in 96 percent of its
                                plants through a model ergonomics
                                program.
August 1990..................  The Agency publishes ``Ergonomics Program
                                Management Guidelines for Meatpacking
                                Plants.''
Fall 1990....................  OSHA creates the Office of Ergonomics
                                Support and hires more ergonomists.
November 1990................  OSHA/UAW/GM sign agreement bringing
                                ergonomics programs to 138 GM plants
                                employing more than 300,000 workers.
                                Throughout the early 90s, OSHA signed 13
                                more corporate-wide settlement
                                agreements to bring ergonomics programs
                                to nearly half a million more workers.
July 1991....................  OSHA publishes ``Ergonomics: The Study of
                                Work,'' as part of a nationwide
                                education and outreach program to raise
                                awareness about ways to reduce
                                musculoskeletal disorders.
July 1991....................  More than 30 labor organizations petition
                                Secretary of Labor to issue an Emergency
                                Temporary Standard on ergonomics.
January 1992.................  OSHA begins a special emphasis inspection
                                program on ergonomic hazards in the
                                meatpacking industry.
April 1992...................  Secretary of Labor denies petition for an
                                Emergency Temporary Standard but commits
                                to moving forward with section 6 (b)
                                rulemaking.
August 1992..................  OSHA publishes an Advance Notice of
                                Proposed Rulemaking on ergonomics.
1993.........................  OSHA conducts a major survey of general
                                industry and construction employers to
                                obtain information on the extent of
                                ergonomics programs in industry and
                                other issues.
March 1995...................  OSHA begins a series of meetings with
                                stakeholders to discuss approaches to a
                                draft ergonomics standard.
January 1997.................  OSHA/NIOSH conference on successful
                                ergonomic programs held in Chicago.
April 1997...................  OSHA introduces the ergonomics web page
                                on the Internet.
February 1998................  OSHA begins a series of national
                                stakeholder meetings about the draft
                                ergonomics standard under development.
March 1998...................  OSHA releases a video entitled
                                ``Ergonomic Programs That Work.''
February 1, 1999.............  OSHA begins small business (Small
                                Business Regulatory Enforcement Fairness
                                Act (SBREFA) review of its draft
                                ergonomics rule, and makes draft
                                regulatory text available to the public.
March 1999...................  OSHA/NIOSH/Institute of Industrial
                                Engineers hold Applied Ergonomics
                                Conference in Houston
April 30, 1999...............  OSHA's Assistant Secretary receives the
                                SBREFA report on the draft ergonomics
                                program proposal, and the Agency begins
                                to address the concerns raised in that
                                report.
November 23, 1999............  OSHA publishes its proposed ergonomics
                                program standard.
March 2000...................  OSHA/NIOSH/Institute of Industrial
                                Engineers hold Applied Ergonomics
                                Conference in Los Angeles
March-May 2000...............  OSHA holds 9 weeks of public hearings and
                                receives 18,337 pages of testimony from
                                714 witnesses.
November 23, 1999 through      OSHA receives nearly 11,000 comments and
 August 10, 2000.               briefs consisting of nearly 50,000 pages
                                collectively, into the docket of the
                                ergonomics rulemaking.
October 27, 2000.............  The Occupational Safety and Health Review
                                Commission finds that manual lifting of
                                nursing home patients is a known and
                                recognized risk factor for lower back
                                pain.
------------------------------------------------------------------------

A. Regulatory and Voluntary Guidelines Activities

    In 1989, OSHA issued the Safety and Health Program Management
Guidelines (54 FR 3904, Jan. 26, 1989), which are voluntary program
management guidelines to assist employers in developing effective
safety and health programs. These program management guidelines, which
are based on the widely accepted safety and health principles of
management commitment and employee involvement, worksite hazard
analysis, hazard prevention and control, and employee training, also
serve as the foundation for effective ergonomics programs. In August
1990, OSHA issued the Ergonomics Program Management Guidelines for
Meatpacking Plants (Ex. 2-13), which utilized the four program
components from the safety and health management guidelines,
supplemented by other ergonomics-specific program elements (e.g.,
medical management). The ergonomic guidelines were based on the best
available scientific evidence, the best practices of successful
companies with these programs, advice from the National Institute for
Occupational Safety and Health (NIOSH), the scientific literature, and
OSHA's experience with enforcement

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actions. Many commenters in various industries have said that they have
implemented their ergonomics programs primarily on the basis of the
OSHA ergonomics guidelines (Exs. 3-50, 3-61, 3-95, 3-97, 3-113, 3-121,
3-125), and there has been general agreement among stakeholders that
these program elements should be included in any OSHA ergonomics
standard (Exs. 3-27, 3-46, 3-51, 3-61, 3-89, 3-95, 3-113, 3-119, 3-160,
3-184).
    OSHA also has encouraged other efforts to address the prevention of
work-related musculoskeletal disorders. For example, OSHA has actively
participated in the work of the ANSI Z-365 Committee, which was
entrusted with the task of developing a consensus standard for the
control of cumulative trauma disorders. The Agency also has sponsored
and participated in more than 11 Ergonomics Best Practices conferences.
1. Petition for Emergency Temporary Standard
    On July 31, 1991, the United Food and Commercial Workers Union
(UCFW), along with the AFL-CIO and 29 other labor organizations,
petitioned OSHA to take immediate action to reduce the risk to
employees of exposure to ergonomic hazards (Ex. 2-16). The petition
requested that OSHA issue an emergency temporary standard (ETS) on
``Ergonomic Hazards to Protect Workers from Work-Related
Musculoskeletal Disorders (Cumulative Trauma Disorders)'' under section
6(c) of the Act. The petitioners also requested, consistent with
section 6(c), that OSHA promulgate, within 6 months of issuance of the
ETS, a permanent standard to protect workers from cumulative trauma
disorders in both general industry and construction.
    Based on the statutory constraints and legal requirements governing
issuance of an ETS, OSHA calculated that the basis to support issuance
of an ETS was not sufficient. Accordingly, on April 17, 1992, OSHA
decided not to issue an ETS on ergonomic hazards (Ex. 2-29). OSHA
agreed with the petitioners, however, that available information,
including the Agency's experience and information in the ETS petition
and supporting documents, supported the initiation of a rulemaking,
under section 6(b)(5) of the Act, to address ergonomic hazards.
2. Advance Notice of Proposed Rulemaking
    At the time OSHA issued the Ergonomic Program Management Guidelines
for Meatpacking Plants (Ex. 2-13), the Agency also indicated its
intention to begin the rulemaking process by asking the public for
information about musculoskeletal disorders (MSDs). The Agency
indicated that this could be accomplished through a Request for
Information (RFI) or an Advance Notice of Proposed Rulemaking (ANPR)
consistent with the Administration's Regulatory Program. Subsequently,
OSHA formally placed ergonomics rulemaking on the regulatory agenda
(Ex. 2-17) and decided to issue an ANPR on this topic.
    In June 1991, OSHA sent a draft copy of the proposed ANPR questions
for comment to 232 parties, including OSHA's advisory committees, labor
organizations (including the petitioners), trade associations,
occupational groups, and members of the ergonomics community (Ex. 2-
18). OSHA requested comments on what questions should be presented in
the ANPR. OSHA received 47 comments from those parties. In addition,
OSHA met with the Chemical Manufacturers Association, Organization
Resources Counselors, Inc., the AFL-CIO and several of its member
organizations. OSHA reviewed the comments and submissions received and
incorporated relevant suggestions and comments into the ANPR.
    On August 3, 1992, OSHA published the ANPR in the Federal Register
(57 FR 34192), requesting information for consideration in the
development of an ergonomics standard. OSHA received 290 comments in
response to the ANPR. Those comments have been carefully considered by
the Agency in developing the final ergonomics program standard.
3. Outreach to Stakeholders
    In conjunction with the process of developing the proposed
ergonomics rule, OSHA established various communication and outreach
efforts. These efforts were initiated in response to requests by
individuals who would be affected by the rule (stakeholders) that they
be provided with the opportunity to present their concerns about an
ergonomics rule and that they be kept apprized of the efforts OSHA was
making in developing a proposed rule. For example, in March and April
1994, OSHA held meetings with industry, labor, professional and
research organizations covering general industry, construction,
agriculture, healthcare, and the office environment. A list of those
attending the meetings and a record of the meetings has been placed in
the public record of this rulemaking (Ex. 26-1370).
    In March, 1995, OSHA provided a copy of an early draft proposed
ergonomics rule and preamble to these same organizations. Thereafter,
during April 1995, OSHA met again with these groups to discuss whether
the draft proposed rule had accurately responded to the concerns raised
earlier. A summary of the comments has been placed in the public record
(Ex. 26-1370).
    During 1998, OSHA met with nearly 400 stakeholders to discuss ideas
for a proposed standard. The first series of meetings was held in
February in Washington, D.C. and focused on general issues, such as the
scope of the standard and what elements of an ergonomics program should
be included in a standard. The second series of meetings, held in July
in Kansas City and Atlanta, focused on what elements and activities
should be included in an ergonomics program standard. The third set of
meetings was held in September in Washington, D.C. and emphasized
revisions to the elements of the proposal based on previous stakeholder
input. A summary of those meetings was placed on the OSHA web site and
in the public docket (Ex. 26-1370). OSHA solicited input from its
stakeholders again the next year, when it posted a working draft of its
ergonomics standard after its release for Small Business Regulatory
Enforcement Fairness Act (SBREFA) Panel review.
4. Small Business Regulatory Enforcement Fairness Act (SBREFA) Panel
    In accordance with SBREFA and to gain insight from employers with
small businesses, OSHA, the Office of Management and Budget (OMB), and
the Small Business Administration (SBA) created a Panel to review and
comment on a working draft of the ergonomics program standard. As
required by SBREFA, the Panel sought the advice and recommendations of
potentially affected Small Entity Representatives (SERs). A total of 21
SERs from a variety of industries participated in the effort. The
working draft and supporting materials (a brief summary of a
preliminary economic analysis, the risk assessment, and other
materials) were sent to the SERs for their review. On March 24-26,
1999, the Panel participated in a series of discussions with the SERs
to answer questions and receive comments. The SERs also provided
written comments, which served as the basis of the Panel's final report
(Ex. 23). The final SBREFA Panel Report was submitted to the Assistant
Secretary on April 30, 1999. The findings and recommendations made by
the Panel are addressed in the proposed rule, preamble, and economic
analysis (see the discussion in Section

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VIII, Summary of the Final Economic Analysis and Regulatory Flexibility
Analysis).
5. Issuance of Proposed Rule
    On November 23, 1999, OSHA published a proposed ergonomics program
standard to address the significant risk of work-related
musculoskeletal disorders (MSDs) confronting employees in various jobs
in general industry workplaces (64 FR 65768). The proposed standard
would have required general industry employers covered by the standard
to establish an ergonomics program containing some or all of the
elements typical of successful ergonomics programs: management
leadership and employee participation, job hazard analysis and control,
hazard information and reporting, training, MSD management, and program
evaluation, depending on the types of jobs in their workplace and
whether a musculoskeletal disorder covered by the standard had
occurred. Employers whose employees perform manufacturing or manual
handling jobs were required to implement a basic ergonomics program in
those jobs.
    The basic program would have included the following elements:
management leadership and employee participation, and hazard
information and reporting. If an employee in a manufacturing or manual
handling job experienced an OSHA-recordable MSD determined by the
employer to be covered by the standard, the employer would have been
required to implement a full ergonomics program for that job and all
other jobs in that establishment involving the same physical work
activities. The full program would have included, in addition to the
elements in the basic program, a hazard analysis of the job; the
implementation of engineering, work practice or administrative controls
to eliminate or substantially reduce the hazards identified in that
job; training the employees and their supervisors in that job; and
providing MSD management, including where appropriate, temporary work
restrictions and access to a health care provider or other professional
if a covered MSD occurred. General industry employees in jobs other
than manufacturing or manual handling who experienced a covered MSD
determined by the employer to be covered by the standard also would
have been required by the proposal to implement an ergonomics program
for those jobs.
6. Solicitation of Public Comment on the Proposed Rule
    The notice of proposed rulemaking invited public comment on any
aspects of the proposed ergonomics standard until the close of the
comment period ending on February 1, 2000.
    After receiving a number of requests for an extension of the
written comment period, OSHA published a Federal Register notice (65 FR
4795) to extend the deadline for public, pre-hearing comments to March
2, 2000 and to reschedule the informal public hearings in Washington,
D.C. to begin March 13, 2000 and run through April 7, 2000.
Subsequently, the Agency published a Federal Register notice (65 FR
19702) to re-schedule and extend the hearings in Portland, OR by 2
days, from April 24, 2000 through May 3, 2000. In addition, a final
week of informal public hearings (65 FR 13254) was scheduled to take
place in Washington, D.C. from May 8, 2000 through May 12, 2000.
    During the early stages of the public comment period, it was
brought to OSHA's attention that the proposed ergonomics program
standard published on November 23, 1999 (64 FR 65768) did not provide
an analysis of the economic impacts of the rule on State and local
governments, the United States Postal Service, or the railroads. To
provide this additional information and analysis, OSHA published a
supplement (65 FR 33263) to the Agency's Preliminary Economic Analysis
and Initial Regulatory Flexibility Analysis (Ex. 28-1) of the economic
impact of the Ergonomics Program Rule. OSHA also established pre-
hearing and post-hearing comment periods ending June 22, 2000 and
August 10, 2000, respectively, to address the analysis of economic
impacts in those three industries. An informal public hearing was held
in Atlanta, GA on July 7, 2000, to provide an opportunity for witnesses
to question the OSHA Panel on the supplemental analysis.
    Collectively, the public hearings concerning the proposed
ergonomics program standard generated 18,337 pages of transcript based
on testimony from 714 hearing witnesses, including those representing
public entities, private industry, industry associations, labor unions
and private individuals.
    More than 5,900 pre-hearing comments were filed in response to the
proposed ergonomics program standard. A 45-day post-hearing comment
period and a 45-day summary and brief period were established, with
final briefs due to be postmarked no later than August 10, 2000. A
total of 240 post hearing submissions were received. Collectively, a
total of nearly 11,000 exhibits consisting of nearly 50,000 pages were
submitted over the whole period.

B. Other OSHA Efforts In Ergonomics

    In 1996, OSHA developed a strategy to address ergonomics through a
four-pronged program including training, education, and outreach
activities; study and analysis of the work-related hazards that lead to
MSDs; enforcement; and rulemaking.
1. Training, Education, and Outreach
    a. Training. The OSHA ergonomics web page has been an important
part of the Agency's education and outreach effort. Other OSHA efforts
in training, education and outreach include the following:
     Grants to train workers and employees about hazards and
hazard abatement.
     Three training courses in ergonomics through the OSHA
Training Institute available for OSHA compliance officers, one of which
is open to the public;
     One day training for nursing home operators, at more than
500 nursing homes in each of seven targeted states;
     Booklets on ergonomics, ergonomics programs, and computer
workstations, such as ``Ergonomics Program Management Guidelines for
Meatpacking Plants'' and ``Ergonomics: the Study of Work,'' both of
which are available on OSHA's Website.
     Videotapes on ergonomics programs in general industry and
specifically in nursing homes.
    OSHA has awarded almost $3 million for 25 grants addressing
ergonomics, including lifting hazards in healthcare facilities and
hazards in the red meat and poultry industries. These grants have
enabled workers and employers to identify ergonomic hazards and
implement workplace changes to abate these hazards.
    Some grant program highlights follow:

     The United Food and Commercial Workers International
Union (UFCW) conducted joint labor-management ergonomics training at
a meatpacking plant that resulted in a major effort at the plant to
combat cumulative trauma disorders. The program was so successful
that management asked the UFCW to conduct the ergonomics training
and work with management at some of its other facilities.
     The University of California at Los Angeles (UCLA) and
the Service Employees International Union (SEIU) both had grants for
preventing lifting injuries in nursing homes. SEIU developed a
training program that was used by UCLA to train nursing home workers
in California. UCLA also worked with some national back injury
prevention

[[Page 68267]]

programs. At least one of the nursing home chains has replicated the
program in other states.
     Mercy Hospital in Des Moines, Iowa, had a grant to
prevent lifting injuries in hospitals. It trained over 3,000
hospital workers in Des Moines and surrounding counties. It had a
goal of reducing lost work days by 15 percent. The goal was
surpassed, and, six months after the training, none of those trained
experienced a lost workday due to back injury.
     Hunter College in New York City trains ergonomics
trainers for the United Paperworkers International Union. The
trainers then return to their locals and conduct ergonomics training
for union members. As a result of this training, changes are being
made at some workplaces. Examples include purchasing new equipment
that eliminates or reduces workers' need to bend or twist at the
workstation, rotating workers every two hours with a ten-minute
break before each rotation, and modifying workstations to reduce
worker strain.

    b. Education and Outreach. To provide a forum to discuss ergonomic
programs and to augment information in the literature with the
experience of companies of different sizes and from a variety of
industries, OSHA and NIOSH sponsored the first in a series of
conferences that brought industry, labor, researchers, and consultants
together to discuss what works in reducing MSDs. The 1997 OSHA and
NIOSH conference was followed by 11 more regional conferences across
the country. OSHA and NIOSH held the second national conference on
ergonomics in March of 1999. More than 200 presentations were given at
the conferences on how companies have successfully reduced MSDs.
Presentations were made by personnel from large and small companies in
many different industries.
    Other examples of successful ergonomics programs have come from
OSHA's Voluntary Protection Program (VPP). The VPP program was
established by OSHA to recognize employers whose organizations have
exemplary workplace safety health programs. Several sites that have
been accepted into VPP have excellent ergonomics programs.
    In addition to OSHA's enforcement efforts, the Agency's Ergonomics
Program Management Guidelines for Meatpacking Plants (``Guidelines'')
(Ex. 2-13) are viewed by many as essential to the implementation of
successful workplace programs addressing ergonomic hazards. For
example, in contrasting OSHA's proposal to the Guidelines, IBP Inc.'s
Bob Wing acknowledged that the Guidelines had been successful (Ex. 30-
4046, p.1). Similarly, the American Meat Institute (``AMI''), the main
representative for the U.S. meat industry, including 276 meat packers
and processors, who operate 559 facilities, acknowledged that the
industry worked with OSHA on the Guidelines, and has been using them
for nearly ten years (Ex. 30-3677, p.1). The AMI notes that the
Guidelines work and that the industry has made substantial progress in
addressing ergonomic issues since development of the Guidelines (id. at
1-4). The AMI recommended that the Guidelines be extended throughout
general industry (id. at 4). The utility of OSHA's Guidelines also was
hailed by the United Food and Commercial Workers' Union, which noted
that upon publication of the Guidelines, industry began to respond both
from the standpoint of technology as well as ergonomics programs (Ex.
32-210-2, pp. 25-26). The success of the Guidelines led to their use
and acceptance in other industries. The poultry industry appears to
have secured substantial reductions in chronic MSDs from adherence to
the principles in the document (Ex. 30-3375, p.1.).
2. Ergonomics Best Practices Conferences
    During the period from Sept. 17, 1997 through Sept. 29, 1999, OSHA
and its Regional Education Centers co-sponsored 11 Ergonomics Best
Practices Conferences. These Conferences were designed to provide good
examples of practical and inexpensive ergonomics interventions
implemented by local companies. The concept was that if OSHA and its
Regional partners could initiate the development of a network of local
employers, contractors, and educators to provide practical information
to solve ergonomics problems, it would be assisting employers in
providing a workplace for employees that would be ``free of recognized
safety and health hazards.'' To date, attendance has exceeded 2,400
participants, including employers, contractors, and employees. Finally,
OSHA has made hundreds of outreach presentations to labor, trade
associations, large and small businesses, and professional
organizations during the development of the proposed rule.
3. Enforcement
    In the absence of a federal OSHA ergonomics standard, OSHA has
addressed ergonomics in the workplace under the authority of section
5(a)(1) of the OSHAct. This section is referred to as the General Duty
Clause and requires employers to provide work and a work environment
free from recognized hazards that are causing or are likely to cause
death or serious physical harm.
    OSHA has successfully issued over 550 ergonomics citations under
the General Duty Clause. In the majority of these cases, cited
employers have recognized that the implementation of ergonomics
programs is in their best interest and that of their employees.
Examples of companies cited under the General Duty Clause for
ergonomics hazards and which then realized a substantial reduction in
injuries and illnesses after implementing ergonomics programs include:
the Ford Motor Company, Empire Kosher Foods, Sysco Foods, and the
Kennebec Nursing Home.
    Two cases have been decided so far by the Occupational Safety and
Health Review Commission.
    In the first general duty clause case litigated by the Occupational
Safety and Health Review Commission, Pepperidge Farm, the Review
Commission recognized that excessive lifting and excessive repetitions
were recognized ergonomic hazards that had caused and were likely to
cause serious physical harm to employees whose work tasks required such
activity. The Commission specifically noted that carpal tunnel syndrome
and other soft tissue injuries found at the cited plant were caused by
work tasks; the Commission relied principally on direct medical
evidence, expert medical opinion, the incidence of injury, and the
epidemiological studies and testimony in the record in reaching this
finding. The Commission also agreed that an employer could be required
to undertake a process-based, incremental approach to abating ergonomic
hazards. The citations relating to the excessive lifting hazard were
affirmed by the Commission, while those relating to the excessive
repetitions were vacated based on a finding that the Secretary had
failed to prove feasible means of abatement in addition to those found
to have been undertaken by the company.
    In the second general duty clause case litigated by the Commission,
Beverly Enterprises, the Commission held that the company's practices
for lifting patients in its nursing homes exposed its nursing
assistants to a serious recognized hazard. Beverly's nursing assistants
suffered a disproportionate number of cases of lower back pain, which
was often so severe that the employee would be off work for long
periods of time, in some cases six months to over a year. The
Commission found that manual lifting of nursing home residents is a
known and recognized risk factor for lower back pain and that the
company recognized the hazard.

[[Page 68268]]

    When serious physical harm cannot be documented in the work
environment but hazards have been identified by OSHA, compliance
officers both discuss the hazards with the employer during the closing
conference of an inspection and write a letter to the employer. These
letters are called ``Ergonomic Hazard Alert Letters.'' From fiscal year
1997 through October 3, 2000, approximately 498 such letters have been
sent to public and private sector employers under Section 20 of the OSH
Act. These letters involve no penalty and are strictly consultative in
nature; they reflect OSHA's responsibility to provide consultation on
ergonomics to employers. Ergonomic Hazard Alert Letters have been sent
to employers in approximately 50% of OSHA's ergonomic inspections.
    Since ergonomic solutions vary from one industry to another, OSHA
has provided both general and industry-specific training to its
compliance officers. Currently, the OSHA Training Institute (OTI) in
Des Plaines, IL, offers three main ergonomic courses to OSHA compliance
staff: Principles of Ergonomics Applied to Work-Related Musculoskeletal
and Nerve Disorders (#225); Ergonomics Compliance (#325), an advanced
ergonomics course; and Nursing Home Enforcement Training (#840). A
fourth course, Healthcare (#336), has been in development and will be
piloted on November 14, 2000 through November 17, 2000. That course
will be designed to help OSHA compliance officers, as well as
employers, to identify ergonomic and other hazards within healthcare
facilities, with a specific emphasis on hospitals. Over 600 OSHA
compliance staff members have been trained in these courses within the
past three years alone. The courses typically cover three weeks of
material.
    Currently, the Principles of Ergonomics Applied to Work-Related
Musculoskeletal and Nerve Disorders course also is open to the public
through OTI's 12 Regional Education Centers throughout the United
States. Since that course has been available nationwide, public
interest has been high, and the Education Centers have been scheduling
courses on a regular basis to meet the constant demand. Although the
new Healthcare Course is available currently only to OSHA compliance
officers, after the pilot period ends it will be open to the public on
a limited basis.
    In addition to education and training opportunities, OSHA has
appointed one Regional Ergonomics Coordinator in each of OSHA's 10
regional offices, and one Area Office Ergonomics Coordinator in each
area office. These coordinators meet on a monthly basis to discuss
recent inspections, case developments, and scientific literature on
ergonomics; to share knowledge of ergonomic solutions; and to ensure
that enforcement resources are provided to compliance staff for
enforcement. A PhD level, professionally certified ergonomist serves as
the National Ergonomics Enforcement Coordinator in OSHA's Directorate
of Compliance Programs.
4. Corporate-Wide Settlement Agreements
    Among the companies that have been cited for MSD hazards, 13
companies covering 198 facilities agreed to enter into corporate-wide
settlement agreements with OSHA. These agreements were primarily in the
meat processing and auto assembly industries, but there also were
agreements with telecommunications, textile, grocery warehousing, and
paper companies. As part of these settlement agreements, the companies
agreed to develop ergonomics programs based on OSHA's Meatpacking
Guidelines (Ex. 2-13) and to submit information on the progress of
their programs.
    OSHA held a workshop in March 1999, in which 10 companies described
their experience under their settlement agreement and with their
ergonomics programs. All the companies that reported results to OSHA
showed a substantially lower severity rate for MSDs since implementing
their programs (Ex. 26-1420). In addition, most companies reported
lower workers' compensation costs, as well as higher productivity and
product quality. A report from the March 1999 workshop on corporate-
wide settlement agreements summarizing the results achieved by the 13
companies involved has been placed in the docket (Ex. 26-1420). Only 5
of the 13 companies consistently reported the number of MSD cases or
MSD case rates. All five companies that reported data on MSD-related
lost workday rates showed a significant decline in the number of lost
workdays. None of the companies that reported severity statistics
showed an increase in lost workdays as a result of the ergonomics
program.
    Similarly, the success of OSHA enforcement coupled with settlements
requiring comprehensive ergonomics programs was confirmed by the United
Food and Commercial Workers International Union. The union recognized
that ``* * * [t]he majority of our successful programs in the
meatpacking and poultry industries were propelled by OSHA enforcement.
Ergonomic settlement agreements and corporate-wide settlement
agreements (CWSAs) * * * demonstrate industry recognition of the
existence of MSD hazards and the elements of a program to prevent
worker injuries arising from exposure to these hazards'' (Ex. 32-210-2,
p. 5). The UFCW confirmed the efficacy of these agreements and
resulting programs through a number of examples. One was that of IBP's
Dakota City meatpacking plant that implemented a comprehensive program
as a result of citations and subsequent settlement agreement. Cost
savings attributed to the program ``* * * were realized in the
following areas: [employee] turnover was down significantly * * *;
[MSD] incidence dropped dramatically; surgeries fell; [and] workers'
compensation costs were reduced significantly'' (id. at 9).

C. Summary

    As this review of OSHA's activities in the last 20 years shows, the
Agency has considerable experience in addressing ergonomics issues.
OSHA also has used all of the tools authorized by the Act--enforcement,
consultation, training and education, compliance assistance, the
Voluntary Protection Programs, and the issuance of voluntary
guidelines--to encourage employers to address musculoskeletal
disorders, the single largest occupational safety and health problem in
the United States today. These efforts, and the voluntary efforts of
employers and employees, have led to the recent 5-year decline in the
number of reported lost workday ergonomics injuries. However, in 1997,
there were still more than 626,000 lost workday MSD injuries and
illnesses reported.
    Promulgation of an ergonomics program standard will add the only
tool the Agency has so far not deployed against this hazard--a
mandatory standard--to these other OSHA and employer-driven
initiatives. Over the first 10 years of the standard's implementation,
OSHA predicts that more than 3 million lost workday musculoskeletal
disorders will be prevented in general industry. Ergonomics programs
can lead directly to improved product quality by reducing errors and
rejection rates. In an OSHA survey of more than 3,000 employers, 17
percent with ergonomics programs reported that their programs had
improved product quality. In addition, a large number of case studies
reported in the literature describe quality improvements. Thus, in
addition to better safety and health for workers, the standard will
save employers money, improve product quality, and

[[Page 68269]]

reduce employee turnover and absenteeism.

Section III. Legal Authority

A. General Criteria for OSH Act Standards

    The purpose of the Occupational Safety and Health Act (``OSH Act'')
is ``to assure so far as possible every working man and woman in the
nation safe and healthful working conditions and to preserve our human
resources.'' 29 U.S.C. 651(b). To further this goal, Congress
authorized the Secretary of Labor to promulgate and enforce
occupational safety and health standards. Section 6(b) of the OSH Act,
29 U.S.C. 655(b) (authorizing promulgation of standards pursuant to
notice and comment); 654(b) (requiring employers to comply with OSH Act
standards). This standard is being issued pursuant to section 6(b).
    The OSH Act defines an ``occupational safety and health standard''
as ``a standard which requires conditions, or the adoption or use of
one or more practices, means, methods, operations, or processes,
reasonably necessary or appropriate to provide safe or healthful
employment and places of employment.'' Section 3(8) of the Act, 29
U.S.C. 652(8).
    A standard is ``reasonably necessary or appropriate'' within the
meaning of section 3(8) if it (1) substantially reduces or eliminates a
significant risk of material impairment to worker health, safety, or
functional capacity; (2) is technologically and economically feasible
to implement; (3) is cost effective; (4) is consistent with prior
agency action or supported by a reasoned justification for departing
from prior agency action; (5) is supported by substantial evidence; and
(6) is at least as protective as any applicable national consensus
standard. 58 FR 16612, 16614 (March 30, 1993). To fulfill the
congressional purpose underlying the Act, all OSH Act standards must be
highly protective. Id. at 16614-15.
    OSHA's determination that a particular level of risk is
``significant'' is based largely on policy considerations. See
Industrial Union Dep't, AFL-CIO v. Marshall, 448 U.S. 607, 656 n. 62
(1980) (Benzene). The factors that enter into such a determination
include the seriousness of the injuries or illnesses a standard will
prevent, the likelihood that a particular employee will contract such
an injury or illness, and the total number of employees affected. Where
the standard seeks to prevent fatal illnesses and injuries, OSHA has
generally considered an excess risk of 1 death per 1000 workers over a
45-year working lifetime as clearly representing a significant risk.
See Benzene, 448 U.S. at 646; UAW v. Pendergrass, 878 F.2d 389, 393
(D.C. Cir. 1989) (Formaldehyde); Building & Constr. Trades Dep't v.
Brock, 838 F.2d 1258, 1264 (D.C. Cir. 1988) (Asbestos). But nonfatal
injuries and illnesses are often disabling and debilitating, and death
is clearly not a precondition to a finding of significant risk of
material impairment. See American Textile Mfrs. Inst. v. Donovan, 452
U.S. 490, 506 n. 25 (1981) (Cotton Dust) (upholding OSHA's finding that
cotton dust exposure at levels that caused chronic and irreversible
pulmonary disease presented a significant risk to workers); AFL-CIO v.
OSHA, 965 F.2d 962, 975 (11th Cir. 1992) (upholding OSHA's finding that
``there is a level at which [sensory] irritation becomes so severe that
employee health and job performance are seriously threatened.'');
Formaldehyde, 878 F.2d at 396-399 (upholding OSHA's finding that
exposure limit of 1 ppm would eliminate significant risk of sensory
irritation due to formaldehyde exposure); United Steelworkers v.
Marshall, 647 F.2d 1189, 1245-51 (D.C. Cir. 1980), cert. denied, 453
U.S. 913 (1981) (Lead I) (upholding OSHA's determination that it was
appropriate and necessary to lower lead exposures to reduce cases in
which workers experience subclinical effects of lead exposure because
such subclinical effects are precursors of serious, lead-related
disease); Forging Indus. Ass'n v. Secretary of Labor, 773 F.2d 1436,
1444-46 (4th Cir. 1985) (en banc) (Noise) (upholding OSHA's significant
risk finding that a substantial percentage of workers exposed to
existing workplace noise levels would suffer material noise-induced
hearing loss). See also American Dental Ass'n v. Martin, 984 F.2d 823,
826 (7th Cir.), cert. denied, 510 U.S. 859 (1993) (Bloodborne
Pathogens) (noting that, in addition to causing death, AIDS and
Hepatitis B cause protracted pain and disability).
    A standard is technologically feasible if the protective measures
it requires already exist, can be brought into existence with available
technology, or can be created with technology that can reasonably be
expected to be developed. See Cotton Dust, 452 U.S. at 513; Lead I, 647
F.2d at 1272; American Iron & Steel Inst. v. OSHA, 939 F.2d 975, 980
(D.C. Cir. 1991) (Lead II).
    A standard is economically feasible if industry can absorb or pass
on the costs of compliance without threatening the industry's long-term
profitability or competitive structure. See Cotton Dust, 452 U.S. at
530 n. 55; Lead I, 647 F.2d at 1272; Lead II, 939 F.2d at 980.
    A standard is cost effective if the protective measures it requires
are the least costly of the available alternatives that achieve the
same level of protection. Cotton Dust, 453 U.S. at 514 n. 32; UAW v.
OSHA, 37 F.3d 665, 668 (D.C. Cir. 1994) (Lockout/Tagout II).
    Within the framework of these principles, OSHA has considerable
discretion (``virtually unlimited discretion,'' in the words of the
Lead I decision, 647 F.2d at 1230) in choosing the measures that are
reasonably necessary or appropriate to reduce significant risk. A
standard may address the hazards associated with an industry (e.g.,
logging, 29 CFR 1910.266), a kind of work (e.g., hazardous waste
cleanup, 29 CFR 1910.120), a category of equipment (e.g., respirators,
29 CFR 1910.134); an environmental area (e.g., confined spaces, 29 CFR
1910.146), a lack of information (e.g., hazard communication, 29 CFR
1910.1200), a class of harmful agents (e.g., bloodborne pathogens, 29
CFR 1910.1030), or may require general measures reasonably necessary
and appropriate for safety (e.g., safety and health programs for
construction, 29 CFR 1926.20(b)). Depending on the nature of the safety
and health issues, some standards require highly specific control
measures. E.g., 29 CFR 1926.652 (excavations). Others require the
employer to conduct a hazard assessment and establish measures meant to
address the problems found. E.g., 29 CFR 1910.119 (process safety
management). A typical standard for a toxic chemical will contain
permissible exposure limits, a control hierarchy for reaching those
limits, and provisions for assessing exposure, medical examinations,
medical removal, and training. E.g., 29 CFR 1910.1025 (lead). Some
toxic chemical standards also mandate specific work practices that must
be used to control exposures. E.g., 29 CFR 1910.1029 (coke oven
emissions); 29 CFR 1926.1101 (asbestos). Vaccination against Hepatitis
B is one of the protective measures required by the bloodborne
pathogens standard, 29 CFR 1910.1030. Medical removal protection
benefits have been mandated when they are needed to encourage employees
to participate in medical surveillance. 29 CFR 1910.1025 (lead); 29 CFR
1910.1027 (cadmium); 29 CFR 1910.1048 (formaldehyde); 29 CFR 1910.1052
(methylene chloride). Job hazard analysis and employee training are
cornerstones of some OSHA standards. E.g., 29 CFR 1910.147 (lockout/
tagout).

[[Page 68270]]

    Section 6(b)(7) of the Act, 29 U.S.C. 665(b)(7), requires standards
to include provisions warning employees of hazards, the means needed to
protect themselves against those hazards, and, where appropriate,
medical examinations or tests to determine whether the health of
employees has been adversely affected:

    Any standard promulgated under this subsection shall prescribe
the use of labels or other appropriate forms of warning as are
necessary to insure that employees are apprised of all hazards to
which they are exposed, relevant symptoms and appropriate emergency
treatment, and proper conditions and precautions of safe use or
exposure. Where appropriate, such standard shall also prescribe
suitable protective equipment and control or technological
procedures to be used in connection with such hazards and shall
provide for monitoring or measuring employee exposure at such
locations, and in such manner as may be necessary for the protection
of employees. In addition, where appropriate, any such standard
shall prescribe the type and frequency of medical examinations or
other tests which shall be made available, by the employer or at his
cost, to employees exposed to such hazards in order to most
effectively determine whether the health of such employees is
adversely affected by such exposure.

B. Section 6(b)(5)

    Standards dealing with ``toxic materials or harmful physical
agents'' must, in addition to meeting the ``reasonably necessary or
appropriate'' test of section 3(8), conform to section 6(b)(5) of the
Act, 29 U.S.C. 655(b)(5). That section provides:

    The Secretary, in promulgating standards dealing with toxic
materials or harmful physical agents under this subsection, shall
set the standard which most adequately assures, to the extent
feasible, on the basis of the best available evidence, that no
employee will suffer material impairment of health or functional
capacity even if such employee has regular exposure to the hazard
dealt with by such standard for the period of his working life.

    The standards that are governed by section 6(b)(5) are sometimes
referred to as ``health'' standards, while non-6(b)(5) standards are
often referred to as ``safety'' standards. In enacting section 6(b)(5),
Congress recognized ``that there were special problems in regulating
health risks as opposed to safety risks. In the latter case, the risks
are generally immediate or obvious, while in the former, the risks may
not be evident until a worker has been exposed for long periods of time
to particular substances. It was to ensure that the Secretary took
account of these long-term risks that Congress enacted Sec. 6(b)(5).''
Benzene, 448 U.S. at 649 n. 54. According to its legislative sponsor,
section 6(b)(5) is intended to require OSHA to take into account the
potential that an employee may be exposed to the hazard for his entire
working lifetime ``so that we can get at something which might not be
toxic now, if he works in it a very short time, but if he works in it
the rest of his life it might be very dangerous.'' (Remarks of Senator
Dominick in colloquy with Senator Williams, Leg. Hist. at 503).
    Section 6(b)(5) directs OSHA to set the standard which will, to the
extent feasible, protect employees from material impairment to their
health even if they are exposed regularly to the toxic chemical or
harmful physical agent for their entire working life. Section 6(b)(5)
thus requires that any standard governed by that section must reduce
significant risk to the lowest feasible level. See Cotton Dust, 452
U.S. at 509. Safety standards, which are not governed by section
6(b)(5), need not reduce significant risk to the lowest feasible level
but must provide a high degree of employee protection to be consistent
with the purpose of the Act. 58 FR at 16614-15. Safety standards may
therefore ``deviate only modestly from the stringency required by
Sec. 6(b)(5) for health standards.'' Lockout/Tagout II, 37 F.3d at 669.
    The most important consideration in construing the scope of section
6(b)(5), as with any statutory provision, is the language of the
statute itself. In many cases, it is obvious whether a hazard is a
``toxic material'' or ``harmful physical agent'' subject to section
6(b)(5). Other hazards are less clear cut. OSHA has looked to several
factors in determining whether a standard fits within section 6(b)(5).
These include: Is the hazard likely to cause harm promptly or after a
short period of exposure, or does harm occur only after a lengthy
period of exposure? Is the connection between exposure and harm
apparent, or is it hidden and subtle? Is the harm coincident with
exposure, or is there a latency period with harm frequently manifesting
itself long after exposure has ended? See Benzene, 448 U.S. at 649 n.
54; UAW v. OSHA, 938 F.2d 1310, 1313 (D.C. Cir. 1991) (Lockout/Tagout
I); National Grain & Feed Ass'n v. OSHA, 866 F.2d 717, 733 (5th Cir.
1989) (Grai33 (5th Cir.
1989) (Grain Dust).
    Because the hazardous exposures regulated by this standard cannot
be neatly categorized by the factors discussed above, whether this
standard is governed by section 6(b)(5) poses difficult legal issues.
Some commenters supported characterizing the rule as a section 6(b)(5)
rule (Ex. 32-339-1 at p. 15 (AFL-CIO), while others opposed it. Ex. 32-
368-1 at p. 41-44 (National Coalition on Ergonomics); Ex. 32-206-1 at
p. 32 (American Iron & Steel Institute); Ex. 22-337-1 at pp. 3-7
(Integrated Waste Service Association); Ex. 30-1722 at pp. 33-35
(Chamber of Commerce). For a variety of reasons, OSHA concludes that
the standard is not subject to section 6(b)(5).
    First, the language of the statute itself suggests that this rule
is not governed by section 6(b)(5). That provision applies to ``toxic
materials or harmful physical agents.'' The ``toxic materials'' to
which section 6(b)(5) refers include chemicals that are harmful if
breathed and/or ingested, such as asbestos, lead, and mercury. S. Rep.
No. 91-1282, 91st Cong., 2d Sess. at 2, reprinted in Committee Print,
Legislative History of the Occupational Safety and Health Act of 1970,
(Leg. Hist.) at 142. Ergonomic risk factors are clearly not a toxic
material. The ``harmful physical agents'' to which Congress referred
include laser radiation, ultrasonic energy, ionizing radiation, noise,
and vibration. Id. at 142-43. Of the harmful physical agents mentioned
by Congress, only vibration is a risk factor addressed by the
ergonomics standard. The remaining risk factors addressed by this
standard--force, repetition, awkward postures, and contact stress---are
fundamentally dissimilar from the harmful physical agents discussed by
Congress in that they relate to the position, movement, and loading on
the tissues of a worker's body rather than an external agent acting on
the body. See Pulaski v. California Occupational Safety & Health
Standards Board, 90 Cal. Rptr. 2d 54, 66 (Cal. Ct. App. 1999) (``a
repetitive motion injury is neither a `toxic material' nor a `harmful
physical agent.' ''). Therefore, the language and legislative history
of the Act indicate that the majority of the risk factors addressed by
this rule are not the type of hazards Congress intended to regulate
under section 6(b)(5).
    In addition, the hazards addressed by the rule differ from those
addressed by section 6(b)(5). A lengthy period of exposure--years,
decades, or a working lifetime--is not necessary to create a
substantial risk of MSDs. As discussed below, both acute and chronic
exposures to ergonomic risk factors can result in MSDs. And, although
MSDs frequently develop gradually as a result of exposure over time,
the period of time necessary can be days, weeks, or months, rather than
the working lifetime referred to in the text of section 6(b)(5).
Moreover, MSDs are unlike illnesses, such as cancer, damage to the
reproductive system, and kidney failure, that can result from exposure
to toxic chemicals and appear long after the

[[Page 68271]]

exposure ceased even though the exposure caused no overt symptoms while
it was occurring. An employee who is beginning to suffer a work-related
MSD will frequently recover fully after the exposure to ergonomic risk
factors ceases. For that reason, the standard requires that an employee
who develops a work-related MSD be restricted from participating in
work activities or removed from exposure that will worsen the
condition.
    The ability of employers and employees to generally recognize a
cause-and-effect relationship between ergonomic risk factors and many
MSDs also indicates that this final standard is a non-6(b)(5) rule. In
recent years, as both employers and employees have become more aware of
the connection between workplace risk factors and MSDs (see Tr. 5817-
19), employers have reported over 600,000 work-related MSDs that result
in lost workdays each year (64 FR at 65931). Employees themselves are
often able to recognize when MSDs result from exposure to risk factors
in the workplace. As OSHA noted in the proposal: ``Many employers have
told OSHA that talking with employees is a quick and easy way to find
out what kind of problems are in the job. They said that talking with
employees is often the best way to identify the causes of the problem
and to identify the most cost-effective solutions to it.'' 64 FR at
65805 (citing Ex. 26-1370). Testimony at the public hearing made the
same point. Dr. Suzanne Rodgers, a physiologist with 32 years'
experience in industrial ergonomics, testified that the companies she
had worked with learn about ergonomic problems by having employees tell
them when a problem exists. (Tr. 2144). Similarly, David Alexander, a
certified professional ergonomist with more than 25 years experience,
testified that encouraging employees to report early signs and symptoms
of developing MSDs was a key feature of a successful ergonomics
program. (Tr. 2145-46).
    Further, Congress provided for special treatment of health hazards
in section 6(b)(5) because it recognized that employers had little
incentive to control exposures to toxic chemicals and harmful physical
agents when there is a long period between exposure to a hazard and the
manifestation of an illness. ``In such instances a particular employer
has no economic incentive to invest in current precautions, not even in
the reduction of workmen's compensation costs, because he seldom will
have to pay for the consequences of his own neglect.'' Leg. Hist. at
144. However, in this respect too, the ergonomics standard is more like
a typical safety standard than a health standard because many of the
costs of such injuries in terms of workers' compensation claims and
lost productivity are borne by employers as MSDs occur. Thus, the
ergonomics standard does not implicate section 6(b)(5)'s concern about
hazardous exposures that lead to illnesses after lengthy exposure and
therefore require special attention because employers can defer or
avoid the costs associated with such illnesses.
    Finally, the type of information on which this standard is based is
far more characteristic of a safety standard than a section 6(b)(5)
health standard. The risk assessment for this standard, as for a
typical safety standard, is based on the number of injuries that have
resulted from past exposures to the hazard being regulated and the
percentage of those injuries that are preventable. By contrast, for a
typical health standard, the risk assessment is based on mathematical
projections to determine the significance of the risk at various levels
of exposure. See, e.g., Formaldehyde, 878 F.2d at 392-96 (discussing
OSHA's quantitative risk assessment for formaldehyde exposure). In the
proposal, OSHA recognized that the risk assessment methodology for this
standard was similar to that for a safety standard rather than a
typical health standard:

    There is no need, in the case of musculoskeletal disorders, for
OSHA to engage in risk modeling, low-dose extrapolation, or other
techniques of projecting theoretical risk to identify the magnitude
of the risk confronting workers exposed to ergonomic risk factors.
The evidence of significant risk is apparent in the annual toll
reported by the Bureau of Labor Statistics, the vast amount of
medical and indemnity payments being made to injured workers and
others every year * * * and the lost production to the U.S. economy
imposed by these disorders.

64 FR at 65979.

    In the NPRM, OSHA preliminarily concluded that the proposed
ergonomics standard was a section 6(b)(5) standard. The NPRM stated
that MSDs are caused by chronic and not by short-term exposures. 64 FR
at 66057. Some commenters contended that this statement was
inconsistent with OSHA's proposed definition of MSD and the inclusion
of ``traumatic'' injuries in its risk assessment. Ex. 22-337-1 at p. 7
(Integrated Waste Service Association); Ex. 32-241-4 at pp. 197-99
(Anheuser-Busch & United Parcel Service); Ex. 32-300-1 at pp. 15-16
(Edison Electric Institute). The proposed definition of MSD included
musculoskeletal disorders other than those caused by accidents and was
intended to include, e.g., back injuries caused by lifting (for
employees for whom manual handling is a core job element) without
regard to whether the injury resulted from a particular exertion or the
cumulative effect of numerous lifting exertions. As OSHA elsewhere
explained:

    The pathogenesis of work-related MSDs can refer to either
single, point-in-time injuries, associated with work tasks that
result in activities in which tissue tolerance is acutely exceeded,
or circumstances in which the performance of specific work tasks or
combinations in which the performance of specific work tasks or
combinations of tasks over a prolonged period of time result in
small and repeated tissue damage.

64 FR at 65900.
    Moreover, the BLS injury and illness data on which OSHA based its
proposed risk assessment (see 64 FR at 65931, Table VI-3) indicates
that many of the injuries considered MSDs resulted from short-term
rather than chronic exposures. OSHA has reexamined its reasoning in
light of these comments and agrees that the acute-chronic distinction
it drew in the proposal is inappropriate when describing MSDs and
therefore does not afford a proper basis for classifying this rule as a
section 6(b)(5) standard.
    As discussed in more detail in the risk assessment section, the
injury and illness data reported by BLS categorizes each incident by
type of injury or illness and the nature of the exposure event leading
to the injury or illness (BLS 1992, Ex. 26-1372). Under the BLS data
collection system, employers are instructed to report musculoskeletal
injuries and illnesses under various codes, some of which represent
musculoskeletal system and connective tissue diseases and disorders
that result from repetitive activity and some of which represent other
types of exposure events. The BLS category that accounts for most of
the reported injuries and illnesses, 021, includes sprains, strains,
and tears of muscles, joints, tendons, and ligaments. The category is
described as representing traumatic injuries, which generally result
from a single event or exposure. Ex. 26-1372 (BLS Occupational Injury
and Illness Classification Manual).
    In its preliminary risk assessment, the agency closely examined the
BLS data, excluded from its analysis injuries caused by accidents
(i.e., slips, trips, falls, and being struck by objects), and included
those codes that predominantly represented work-related MSDs, including
021, that were reported under the exposure event categories

[[Page 68272]]

most closely representing ergonomic risk factors. 64 FR at 65928. The
largest number of these injuries were classified under the exposure
category for ``overexertion,'' which includes primarily lifting,
lowering, pushing, pulling, and carrying. 64 FR at 65932. OSHA has
followed this same approach in its final rule and in the supporting
risk assessment, i.e., excluding musculoskeletal injuries due to
accidents but including those resulting from ergonomic risk factors. In
OSHA's view, when MSDs result from exposure to ergonomic risk factors,
any distinction between acute and chronic exposures is unimportant.
OSHA notes that the classification of these disorders as traumatic is
in part a convention of the recordkeeping system. OSHA's general
recordkeeping guidelines for back disorders instruct that because the
specific event causing such a disorder cannot always be pinpointed, to
keep recordkeeping determinations as simple and equitable as possible,
all back disorders should be classified as (traumatic) injuries rather
than (cumulative exposure) illnesses. BLS, Recordkeeping Guidelines for
Occupational Injuries and Illnesses (April 1986), at p. 38. Similarly,
OSHA's Ergonomics Program Management for Meatpacking Plants states that
all back cases are to be classified as injuries even though some back
conditions may be triggered by an instantaneous event and others
develop as a result of repeated trauma. Ex. 32-210-2-2 at p. 14.
Moreover, a number of experts testified in the hearings that a
substantial part of the MSD injuries classified under the BLS system as
traumatic in fact represent cumulative exposure. (Tr. 2175-77; 2236-44;
5802-04). In short, even though an MSD may be classified as
``traumatic'' in origin, it will often be the case that, while the
onset of the injury was sudden, the cause was exposure to ergonomic
risk factors over some period of time. However, it is neither necessary
nor meaningful to limit the standard's reach to MSDs that only occur
because of exposures that take place over some period of time. The
purpose of this standard is to reduce the number and severity of MSDs
by protecting workers against excessive exposure to ergonomic risk
factors and MSD hazards, and for that purpose it is irrelevant whether
those excessive exposures are ``acute'' or ``chronic.''
    On reflection, OSHA has determined that other considerations relied
on in the NPRM are likewise unpersuasive. Although the standard
protects against one risk factor--vibration--that qualifies as a
``harmful physical agent,'' OSHA does not believe that factor alone
makes this a section 6(b)(5) standard. The standard is not a
``vibration'' standard but one that addresses the multifactorial causes
of MSDs. The risk factors that are not ``harmful physical agents''--
force, repetition, awkward posture, and contact stress--together
contribute substantially more to the vast majority of MSDs than does
vibration.
    Similarly, that a provision in OSHA's standard governing access to
employee exposure and medical records (29 CFR 1910.1020(c)(13)) defines
``toxic substance or harmful physical agent'' as including ``repetitive
motion'' does not establish that repetitive motion is a harmful
physical agent within the meaning of section 6(b)(5). See Ex. 32-339-1
at p. 15 (AFL-CIO). Whether repetitive motion is a harmful physical
agent was not central to that rulemaking, which dealt with the access
of employees and OSHA personnel to employee records and did not
regulate particular hazards. In that rulemaking, interested parties had
no reason to argue whether a standard that regulates repetitive motion
is a section 6(b)(5) standard, and OSHA had no occasion to address that
issue. Moreover, the records access rule was not issued under section
6(b)(5) but under OSHA's general authority to issue standards (section
6(b)) and regulations (section 8(g)). And it was upheld in court as a
section 8(g) regulation rather than a section 6(b) standard. Louisiana
Chem. Ass'n v. Bingham, 731 F.2d 280 (5th Cir. 1984), aff'g 550 F.
Supp. 1136 (W.D. La. 1982). Therefore, the fact that the records access
rule applies to repetitive motion cannot be regarded as establishing an
OSHA policy that repetitive motion is a harmful physical agent for
purposes of section 6(b)(5).

C. This Final Rule Does Not Regulate non-Workplace Activities

    Some commenters have pointed out that MSDs can result from personal
activities as well as from workplace exposures. Ex. 32-368-1 at p. 40
(National Coalition on Ergonomics); Ex. 32-241-4 at p. 49 (Anheuser-
Busch & United Parcel Service). They argue that OSHA is attempting
through this rule to regulate the nonwork activities that may
contribute to MSDs and that the rule is therefore outside OSHA's
authority. However, the rule regulates only conditions or activities in
workplaces, and OSHA clearly has the authority to issue the rule.
    Many adverse health conditions can be caused or aggravated by both
work and nonwork exposures. For example, exposures to high noise levels
both inside and outside the workplace can contribute to a worker's
hearing loss. Nevertheless, OSHA has the authority to regulate harmful
noise levels in the workplace as long as the workplace exposures create
a significant risk of material impairment of health. Forging Indus.
Ass'n v. Secretary of Labor, 773 F.2d 1436, 1442 (4th Cir. 1985) (en
banc) (Noise).
    Noise dealt with a challenge to the Hearing Conservation Amendment
to OSHA's occupational noise standard. That amendment establishes
certain requirements that must be met to reduce the incidence of and/or
prevent hearing impairment due to occupational noise exposure. Before
issuing the amendment, OSHA found that 10-15% of workers exposed to
noise levels below the permissible exposure limit (PEL) would suffer
material hearing impairment. 773 F.2d at 1443. OSHA based this finding
on a ``panoply of scientific reports and studies,'' including studies
done by the National Institute for Occupational Safety and Health
(NIOSH) and the Environmental Protection Agency (EPA). Id. OSHA also
found that those employees who had suffered a hearing decrement of 10
decibels in either ear faced a greater risk from continued exposure to
high levels of workplace noise than workers whose hearing was
unimpaired. Id. OSHA's Hearing Conservation Amendment provided hearing-
endangered workers with protection in the workplace in order to
decrease the risk of hearing impairment.
    The Forging Industry Association (FIA) argued that ``because
hearing loss may be sustained as a result of activities which take
place outside the workplace--such as listening to loud music, age, or
engaging in certain recreational activities--OSHA acted beyond its
statutory authority by regulating non-occupational conditions or
causes.'' Noise, 773 F.2d at 1442. The court found ``no merit'' in
FIA's argument. The court ruled that OSHA properly relied on ``the
extensive and thorough research of several scientific institutions in
defining the problems related to industrially-caused hearing loss in
designing its proposal.'' Id. at 1443. The court also stressed that
OSHA excluded non-occupational hearing loss from the rule. Id. at 1444
(``To be sure, some hearing loss occurs as a part of the aging process
and can vary according to non-occupational noise to which employees are
exposed. The amendment, however, is concerned with occupational noise--
a hazard of the workplace.''). The court ruled that the fact that non-
occupational hazards may contribute to hearing loss does not mean that
OSHA should refrain from

[[Page 68273]]

regulating workplace conditions that are shown to cause such loss:

    The amendment provides that non-occupationally caused hearing
loss be excluded from its regulation. See 29 CFR 1910.95(g)(8)(ii),
1910.95(g)(10)(ii) (1984). Assuming, however, that some loss caused
by aging or smaller amounts of noise sustained for shorter periods
also aggravates the hearing loss incurred by an individual employed
in a high noise-producing industry, that is scant reason to
characterize the primary risk factor as non-occupational. Breathing
automobile exhaust and general air pollution, for example, is
damaging to lungs, whether healthy or not. The presence of unhealthy
lungs in the workplace, however, hardly justifies failure to
regulate noxious workplace fumes. Nor would there be logic to
characterizing regulation of the fumes as non-occupational because
the condition inflicted is aggravated by outside irritants.

Noise, 773 F.2d at 1444.
    Like the Hearing Conservation Amendment to the Noise standard, this
final ergonomics rule regulates workplace hazards. As discussed in the
health effects section of this preamble, this rule addresses only
exposure to ergonomic risk factors that occurs in the workplace. The
MSDs that trigger action under the rule must be work-related and they
must have occurred in workers whose jobs place them at a heightened
risk of incurring a MSD because they are exposed to risk factors at the
levels in the Basic Screening Tool.
    A decision by the Occupational Safety and Health Review Commission
supports OSHA's conclusion that the Act can properly address work-
related ergonomic hazards even though employees can also be exposed to
such hazards outside the workplace. In Pepperidge Farm, Inc., 17 O.S.H.
Cas. (BNA) 1993 (1997), the Commission held that where work was shown
to be a substantial contributing factor to MSDs, the fact that non-work
factors may also play a role did not preclude OSHA from requiring the
employer to abate the workplace hazards. In that case, Pepperidge Farm
contested a number of citations for ergonomic violations that OSHA had
issued under section 5(a)(1) of the Act. In order to prove a section
5(a)(1) violation, OSHA had to show that a condition or activity in the
employer's workplace presents a ``hazard to employees.'' 17 O.S.H. Cas.
(BNA) at 2009 (emphasis added). The company argued that section 5(a)(1)
should not apply to MSD workplace hazards because, among other things,
``non-workplace factors may cause or contribute to the illnesses at
issue and that individuals differ in their susceptibility to potential
causal factors.'' Id. at 2013. The Commission held that such factors
should not ``ipso facto'' preclude the possibility of enforcement under
section 5(a)(1). Id. The Commission also analyzed a significant amount
of evidence that showed a causal relationship between MSDs and
workplace hazards, including testimony from medical personnel who
examined injured workers, epidemiological data, and injury incidence at
a Pepperidge Farm plant. Id. at 2020-26. The Commission ultimately
found that there was a causal connection:

    We therefore conclude that the Secretary has established on this
record a causal connection between [MSDs] affecting the employees at
Downington [a Pepperidge Farm plant] and their work on the biscuit
lines. In doing so, we are mindful that many of these injuries may
have had more than one causal factor and of the experts who contend
that the specific cause of such injuries is, essentially, unknowable
or presently unknown. As is the case with many occupational ills
with multiple possible causes, employees are more or less
susceptible to injury on the job because of the individual
attributes and backgrounds they bring to the workplace. As with
these other ills, the Secretary is not thus foreclosed from
attempting to eliminate or significantly reduce the hazard by
regulating what is shown to be a substantial contributing factor to
the worker injuries.

17 O.S.H. Cas. (BNA) at 2029.

    The Commission's holding in Pepperidge Farm that the susceptibility
of some employees to a particular ailment does not preclude OSHA from
regulating workplace conditions or practices that cause or contribute
to that type of ailment is supported by other cases. In the asbestos
rulemaking, OSHA based its significant risk determination, in part, on
epidemiologic studies that included workers who smoked and were
therefore significantly more likely to contract cancer than those who
did not. Asbestos, 838 F.2d at 1265. The court held that OSHA was
justified in doing so. Smokers were not, the court said, ``so far
beyond the pale as to require OSHA to ignore them in computing the
risks of asbestos.'' Id. (emphasis added). See also Reich v. Arcadian
Corp., 110 F.3d 1192, 1198 (5th Cir. 1997) (Congress intended Act's
general duty clause to protect all employees, including those who are
especially susceptible). Thus, workers who engage in activities outside
the workplace that expose them to ergonomic risk do not thereby forfeit
on-the-job protection against exposure to excessive ergonomic risk
factors.

IV. Summary and Explanation

(a) What Is the Purpose of This Rule?

    The first paragraph of the final standard sets out the purpose of
this ergonomics program standard. OSHA did not propose a purpose
paragraph, and thus no comments on this topic were received. OSHA has
decided to include a purpose statement in the final rule to clearly
indicate the goal of the standard and to differentiate between those
musculoskeletal disorders (MSDs) that are covered by the standard and
those that are not. It clarifies that the standard's purpose is to
reduce the number and severity of MSDs that are caused by occupational
exposure to ergonomic risk factors (also called ``ergonomic
stressors'') on the job.
    As discussed in more detail below, the disorders addressed by this
rule include those of the muscles, nerves, tendons, ligaments, joints,
cartilage, blood vessels, and spinal discs occurring in the neck,
shoulder, forearm, wrist, hand, abdomen (hernias only), back, knee,
ankle, and foot. They include conditions classified by the Bureau of
Labor Statistics in its Annual Survey as illnesses (e.g., carpal tunnel
syndrome) and as injuries (e.g., low back pain), because MSDs include
many different disorders, affect many tissues and areas of the body,
and may be described by a wide range of medical diagnoses.
    The terms used to describe this group of conditions have varied
over time and geographic region. For example, in Australia, MSDs are
often called ``Occupational Overuse Syndrome'' injuries. Other
frequently used terms include ``repetitive stress injuries,''
``cumulative trauma disorders,'' and ``soft tissue injuries.'' In
recent years, however, the term ``musculoskeletal disorders'' has
gained widespread acceptance by the scientific community, and OSHA uses
this term, or its abbreviation, MSD, throughout the regulatory text and
supporting analyses.
    Paragraph (a) makes explicit that OSHA's ergonomics program
standard does not apply to injuries or illnesses caused by motor
vehicle accidents, slips, trips, falls, or similar accidents that
result in traumatic injuries on the job. By ``other similar
accidents,'' OSHA means, for example, caught in or caught between
injuries or other accidents resulting in blunt trauma. (Throughout this
notice, OSHA uses the terms ``work-related,'' ``caused by,''
``musculoskeletal disorders,'' ``risk factors,'' and ``exposure.'' For
a detailed discussion of these terms, see the relevant sections of the
Health Effects (Section V of the preamble), Summary and Explanation
(Section XI), and Legal Authority (Section III) sections of this
preamble.)
    As stated in paragraph (a), the purpose of this standard is to
reduce the number and severity of MSDs caused by

[[Page 68274]]

workplace exposure to ergonomic risk factors, such as force, awkward
postures, or repetition, either alone or in combination. The standard
requires employers to implement an ergonomics program to address risk
factors in jobs that pose an MSD hazard to the employees in those jobs.
As discussed in detail in Section VI of the preamble, Risk Assessment,
ergonomics programs have been shown to reduce the number and severity
of MSDs in old and new facilities, in large and small workplaces, and
in a wide variety of jobs ranging from computer use to solid waste
handling, from assembly line operations to patient handling, and from
beverage distribution to meat processing.
    Reducing the number and severity of MSDs in the workplace is the
goal of successful ergonomics programs everywhere. As the more detailed
discussions in this preamble and in the Agency's economic analysis will
show, this goal cannot be achieved overnight, although positive results
are generally observed soon after program implementation. One effect of
a new ergonomics program, which at first glance may not appear to be a
positive one, is that the number of MSDs and MSD signs and symptoms
reported in the first months after the implementation of the program
may actually increase. This initial increase in the number of MSD
reports reflects the heightened awareness of ergonomics, the importance
of early reporting, and the value of conservative treatment that
routinely accompanies program implementation. In most workplaces, this
increase is short-lived, generally lasting less than a year and almost
never more than two years. The severity of the MSDs reported, however,
generally decreases in the first few months after program initiation
and declines steadily thereafter, before leveling off as the program
matures. Thus, OSHA intends and expects the final rule to reduce the
number and severity of MSDs in the workplaces covered by the standard
over the first few years after the standard is fully in effect; OSHA is
aware that the standard's purpose will not be fully achieved in the
short run. When ergonomic programs mature, they continue to demonstrate
ongoing reductions in the number of MSDs caused by workplace risk
factors and in the severity of those MSDs that do occur.
    The standard's purpose paragraph also reflects OSHA's awareness
that work-related MSDs will continue to occur in many workplaces even
after implementation of an effective ergonomics program that complies
fully with this final rule. The standard being issued today is thus not
a ``zero-risk'' standard. It recognizes that substantially reducing the
number and severity of these disorders is possible in most, if not all
workplaces, although many establishments may not be able to eliminate
MSDs completely. (For a discussion of OSHA's analysis of the standard's
projected effectiveness, see the Risk Assessment section of the
preamble (Section VI) and Chapter IV, Benefits, of the Final Economic
and Regulatory Flexibility Analysis.)

Paragraph (b)--Does This Standard Apply To Me? (Scope and Application)

    Discussion of the scope and application of the final rule is
divided into three parts. Part I discusses which employers and
operations the standard covers. Part II explains the exclusions from
coverage of the rule and OSHA's authority to limit the standard's
coverage to general industry. Part III addresses other scope and
application issues raised during the rulemaking.

Part I--Scope and Application of Standard to General Industry
Employers

A. Scope of Coverage

    Paragraph (b) states that the standard applies to general industry
employment, which means all employment except for railroads and
employment covered by OSHA's agriculture, construction, and maritime
standards. Unlike other OSHA general industry standards, however, this
standard does not cover general industry work performed incidentally to
or in support of construction, maritime, or agricultural employment or
railroad operations. This means that functions such as office work,
management and support services are not covered by the standard, and
that, for example, a construction company office or a marine terminal
cafeteria would not be covered. However, a construction company real
estate division engaged in selling the finished properties would not be
performing functions directly in support of the construction operations
and would be within the scope of the standard.
    The final rule thus imposes coverage based on the business category
in which the employer belongs, e.g., general industry as opposed to
construction. This marks a departure from the Agency's past practice of
imposing coverage based solely on the job that an employee is
performing. The approach adopted in this standard, i.e., basing
coverage on the industry classification of the employer, is appropriate
here because of the unique nature of ergonomic problems and solutions.
The requirement to implement an entire program when an MSD incident
occurs in a job that meets the Action Trigger is more practical
administratively if employers are required to take this broad approach.
    Moreover, the standard does not apply to jobs or operations that
are normally covered exclusively by the construction, agriculture and
maritime standards, even if those operations are performed in a general
industry establishment or for a general industry employer. Thus a
construction crew whose sole job is to build in-plant structures in a
steel mill is engaged in construction and is not covered by this
standard, even though the steel mill itself is a general industry
operation. This is consistent with the operation of other OSHA
standards.
    Although the proposal also applied only in general industry, its
scope provision stated that coverage was further limited to general
industry manufacturing jobs, manual handling jobs, and jobs with MSDs.
Manufacturing jobs were defined as ``production jobs'' in which the
activities of producing a product made up a ``significant amount'' of
the employee's worktime. Manual handling jobs were those in which the
employee performed ``forceful'' lifting (i.e., lifting or lowering,
pushing or pulling, or carrying) and the forceful lifting tasks were a
``core element'' of the employee's job. Jobs with MSDs were defined as
jobs in which an OSHA recordable MSD occurred in a job in which the
physical work activities and conditions were reasonably likely to cause
that type of MSD, and the activities were a core element of the job or
accounted for a significant amount of the employee's worktime (64 FR
65779-82).
    The proposal explained that OSHA was focusing on general industry
in this first ergonomics rulemaking because the problems in general
industry are particularly severe and the solutions are well-understood
(64 FR 65776). Some commenters agreed with the proposed rule's scope,
and its emphasis on manufacturing and manual handling jobs (Exs. 31-3,
31-71, 31-180, 31-252, 31-284, 32-300). More, however, argued either
that the rule should not exempt construction, maritime and agricultural
employment (Exs. 30-400, 30-1294, 31-14, 31-105, 31-143, 31-156, 31-
345, 31-352, 32-198-4, 32-210, 32-359-1, 32-461-1, 30-1294, 500-218),
or that the rule should exempt even more industries or jobs (Exs. 30-
372, 30-494, 1-248, 31-280, 32-77-2, 32-78, 32-234, 30-2208, 30-3167,
32-77-2, 601-X-1, Tr. 3126).

[[Page 68275]]

    Many of the commenters who believed that the scope of the proposed
rule was too broad argued that it incorporated a ``one size fits all''
approach that was inappropriate for the wide variety of operations
found in general industry (Ex. 30-494, see also Exs. 30-380, 30-372,
30-531, 30-3167, Tr. 3126, 3332). Some of these commenters pointed out
that there was great variation in MSD rates, prevalence of ergonomic
risk factors, and levels of exposure to those risk factors across
general industry (Exs. 30-541, 30-3167). Others pointed out that jobs
differed greatly within and across industries, and claimed that OSHA
did not have enough information about effective controls in all
industries (Exs. 30-425, 30-3167, 32-77, 32-211-1, 32-2208). The focus
of both these groups of comments was that OSHA did not have enough
knowledge or evidence to find that the same approach to controlling
ergonomic hazards would be appropriate in all of these disparate
circumstances.
    A number of commenters suggested ways to limit the standard's
scope. Some urged OSHA to focus the rule more narrowly on those jobs or
industries with the highest MSD rates or those deemed to have high risk
potential (Exs. 30-13, 30-425, 30-2208, 30-3167, 31-248, 31-280, 32-78,
32-234, Tr. 2729-30). For example, Larry Leahy of Ruth Constant &
Associates, a home health care service agency, questioned why OSHA was
covering all of general industry when 60 percent of the MSDs occurred
in industries representing a fairly small percentage of the national
workforce (Ex. 30-611). Todd McCracken, of National Small Business
United, argued:

    There is a need to focus on particular types of jobs . . . There
are specific types of jobs in specific industries where MSDs are
much more likely to occur (Tr. 2729-30).

    Similarly, Organization Resources Counselors, Inc. (ORC)
recommended that the rule only cover high risk occupations or employers
whose MSD incident rates were above the national background level (Ex.
32-78; see also Tr. 10633-35). The Small Business Administration's
Office of Advocacy suggested covering only manual handling jobs, which
it claimed accounted for 78 percent of all MSDs (Ex. 601-X-1).
    As discussed in detail throughout this preamble, OSHA believes that
the record supports coverage of all of general industry within the
overall scope of the standard. The final standard does not, however,
prescribe a one-size-fits-all solution for a wide range of problems in
diverse jobs and industries. Even in those situations where significant
ergonomic hazards exist, the commonality of the response required by
this standard is to implement an ergonomics program. The specific focus
of that program will be targeted to the particular hazards and
conditions at each workplace. The control strategies for ergonomic
hazards will be targeted even more specifically to the needs of each
workplace. And the extent of each employer's compliance obligation will
be determined by the extent of the problem at that employer's
workplace. Thus the fact that the rule applies to a variety of hazards
at differing workplaces does not in any way mean that the employers in
all of those workplaces need to take the same actions.
    Work-related MSDs are widespread throughout general industry. They
occur in every single sector within general industry, according to the
Bureau of Labor Statistics (BLS). In 1996, according to BLS, there was
no industry sector that did not report the occurrence of at least
several hundred work-related MSDs, with a large number of industries
reporting tens of thousands of work-related MSDs. Moreover, high
concentrations of work-related MSDs are reported in a wide variety of
occupations that are found throughout general industry establishments.
BLS data for 1996 show that general industry truck drivers, laborers,
and janitors, occupations found widely dispersed throughout general
industry sectors, experienced more than 48,000, 38,000 and 15,000 lost
workday (LWD) MSDs, respectively. (See Section VII (Risk Assessment) of
this preamble.)
    Evidence submitted by rulemaking participants confirms the broad
distribution of MSDs and MSD hazards throughout general industry. For
example, the Service Employees International Union (SEIU) submitted
evidence that union members working in a variety of health care
settings (e.g., hospitals, nursing homes, private homes, pharmacies)
have suffered MSDs (Ex. 32-311-1). These health care workers include
registered nurses, licensed practical nurses, nurses' aides, orderlies,
physical therapists, radiology technicians, housekeepers (maids and
housemen), laundry workers, laundry machine operators, maintenance
workers, kitchen and food preparation workers, central supply workers,
and janitors and cleaners. In addition, SEIU said that other union
members such as janitors and cleaners working in a variety of other
industries, including hotels/motels, restaurants, offices have also
experienced MSDs (Ex. 32-311-1).
    At the rulemaking hearing, many employees testified that they had
suffered serious work-related MSDs. Occupations in which these
employees were working when they became injured include:
     Nurse
     Home health care aide
     Nurses' aide
     Package delivery
     Package sorting
     Meatpacking and poultry processing
     Office clerical worker
     Internet publishing
     Machinists
     Sewing machine operator
     Truck driver
     Food warehousing and distribution
     Grocery store cashier
     Physical therapist
     Mail carrier
     Letter sorter
     Teacher
     Teachers' aide
     Auto assembly
     Molding and casting machine operator
     Reporter
     Grocery shelf stocker
     Sonographer
     Television film editor
     Electrical workers

(Exs. 30-4200, 32-185-3, 32-210-2, 32-198-3, 32-311, 500-218, Tr.
4009-10, 4235, 4240, 4234, 6004, 6009, 6319, 6321-22, 6333, 7320-21,
7335-37, 7341-42, 17950).

    Doctors and other health care professionals (HCPs) also testified
that they had treated employees in many different jobs and industries
for work-related MSDs (Exs. 37-12, 37-28, Tr. 14973, 15045-46, 16819,
16829). Dr. Robert Harrison testified that, in his research and
practice, he had diagnosed and treated over 1,000 patients with work-
related MSDs from a wide variety of industries and occupations,
including (Ex. 37-12):
     Postal workers
     Materials handlers
     Computer operators
     Grocery checkout clerks
     Meat processors
     Assemblers
     Seamstresses
     Telephone operators
     Pipefitters
     Customer service agents
     Machine operators
     Automotive manufacturing workers
     Aircraft manufacturing workers
     Optical scanners
     Graphic artists
     Restaurant workers
     Bakers
     Plumbers
     Letter sorters

[[Page 68276]]

Dr. Robin Herbert, the medical co-director of the Mt. Sinai Center for
Occupational and Environmental Medicine, testified that she had treated
or supervised the treatment of more than 2,000 patients with upper
extremity MSDs in the past 12 years:

    My patients have included journalists, computer graphic artists,
health care workers, technicians for telephone companies, automobile
manufacturing workers, cashiers, garment workers, meat wrappers,
dental hygienists, secretaries, and chefs. Industries from which I
have seen patients include publishing, journalism, entertainment,
manufacturing, health care, transportation, and telecommunications
(Ex. 37-28).

Dr. George Piligian, who also works at the Mount Sinai Center,
testified about finding and treating MSDs in dancers, musicians,
editors, secretaries, telephone operators, sewing machine operators and
hospital workers (Tr. 7813-20).
    Similarly, insurance companies, employers and trade associations
representing the following industries testified about the
implementation of ergonomics interventions and programs because work-
related MSDs were occurring among workers in the following
environments:
     Chemical manufacturing
     Pharmaceutical manufacturing
     Automotive manufacturing
     Automotive repair
     Boat manufacturing
     Textile manufacturing
     Clothing manufacturing
     Printing
     Dental
     Meatpacking
     Electric utility
     Hospitals
     Office workers
     Hotel/motel
     Emergency medical services
     Furniture manufacturing
     Oil and gas drilling
     Moving and storage
     Fabricare
     Nursing homes
     Telephone operation and installation
     Funeral and cemetery
     Insurance
     Solid waste removal and recycling
     Paint manufacturing
     Poultry processing
     Food warehousing and distribution
     Beverage delivery
     Assembly line
     Grocery store
     Retail clothing
     Foundry

(see, e.g., Tr. 3337-9, Tr. 5104, Tr. 8458-8480, Tr. 16553-57).

    Finally, several of the ergonomists who appeared as OSHA's expert
witnesses, including David Alexander (Ex. 37-7), David Caple (Ex. 37-
20), Dennis Mitchell (Ex. 37-11), Maurice Oxenburgh (Ex. 37-24),
Suzanne Rodgers (Ex. 37-25), and John Rosecrance (Ex. 37-26), testified
that employers in the following different industries had hired them to
help reduce the incidence of work-related MSDs among employees:
     Newspaper
     Luggage manufacturing
     Meatpacking
     Packaging
     Papermaking
     Plumbing supply
     Route sales and delivery
     Film products manufacturing
     Hospitals
     Heavy appliance manufacturing
     Automobile manufacturing and subassembly
     Furniture manufacturing
     Paper and pulp products
     Forest products
     Food service
     Clerical
     Electronics
     Clothing and textile manufacturing
     Baking
     Restaurant
     Home and office furniture manufacturing
     Hospitality--hotel/motel
     Fiber manufacturing
     Logistic and supply warehousing
     Telecommunication
     Textile and apparel manufacturing
     Metal forging and cast metals
     Electronics manufacturing
     Health care
     Petroleum
     Electrical manufacturing
     Airline freight handling
     Steel manufacturing
     Fishing
     Aircraft manufacturing
     Gas and electric utility
     Flooring products
     Computer and computer accessory manufacturing
     Plumbing fixtures manufacturing
     Food products manufacturing and processing
     Chemical manufacturing
     Printing
     Waste treatment
     Plastic manufacturing
     Clothing retail
     Power plants
     Research laboratories
     Transportation
     Printing
     Upholstery
     Rubber manufacturing
     Welding
     Mail sorting and delivery
     Transportation
     Electronics
     Medical products manufacturing
    All of this evidence supports OSHA's decision to provide the
protections of this standard to all general industry employees. On the
other hand, OSHA recognizes that there may be some general industry
employers with few or no MSD hazards. Until an MSD is reported, the
employer's obligation is limited to distributing the information in
paragraph (d).

B. Application of Requirements

    Unlike the proposal, this final standard does not differentiate
among general industry employers. Under the proposal, employers of
employees engaged in manufacturing or manual handling would have been
required to implement some elements of an ergonomics program whether or
not their employees had suffered any MSDs. Other general industry
employers would not have had to take any action until a ``covered MSD''
occurred, and a covered MSD was defined differently for them than for
manufacturing and manual handling employers (64 FR 65782-84, 65791). In
this final standard all general industry employers are required, as
specified in paragraph (d), to provide basic information on ergonomics
and the standard to their employees. The employer has no further
obligation until the employee reports an MSD or the signs or symptoms
of an MSD (see paragraph (e)).
    OSHA developed its bifurcated proposal because about 60 percent of
all reported MSDs occurred in manufacturing and manual handling jobs,
even though those jobs accounted for less than 30 percent of general
industry employment. Although some commenters agreed that this might
justify a focus on manufacturing and manual handling (Ex. 30-4837),
very few expressed satisfaction with the proposed approach (Exs. 30-
400, 31-78, 32-198, 32-210, 32-461, 500-218, Tr. 3224). Many commenters
said that manufacturing and manual handling jobs should not be singled
out because MSD hazards were present and MSD rates were high in other
jobs and industries (Exs. 30-626, 30-2208, 31-156, 500-218). For
example, participants said that there were many MSD hazards and MSDs in
``any job involving regular computer use,'' therefore, programming,
journalism, data entry, system administration, accounting, analysis,
and insurance jobs should have been included by name (Exs. 30-49, 30-
400, 31-3, 31-12, Tr. 2783, 2932). Likewise, other commenters argued
that custodians and supermarket employees including cashiers, bakery
personnel, baggers and

[[Page 68277]]

stockers should be treated on par with manufacturing and manual
handling jobs because they involved the same hazards (Ex. 31-23, 32-
210; see also Exs. 30-400, 31-78, 32-198, 32-210, 32-461, 500-218, Tr.
3224).
    Another group of commenters opposed requiring any employers to take
any type of action before a work-related MSD is reported (Ex. 30-240,
32-300, 30-542, 601-X-1) on the grounds that it was a ``waste of
resources'' to require a basic program for employers with manufacturing
and manual handling jobs that have no MSDs (Ex. 30-542). For example,
one said:

    If an employer is in one of the targeted industries but has not
had MSDs, why force the bureaucracy of program implementation upon
him or her * * * (Ex. 30-240).

    And while some participants found the definitions of manufacturing
and manual handling jobs adequate to identify whether a particular job
was covered (Exs. 30-3934, 30-4837, 31-38, 31-36, 31-113, 31-173, 31-
205, 31-229, 31-347), most disagreed (Exs. 30-5, 30-46, 30-75, 30-293,
30-1722, 30-3032, 30-3853, 31-4, 31-27, 31-92, 31-106, 31-125, 31-135,
31-211, 31-245, 31-246, 32-78, 32-300, 32-337). Many said that the
definitions, particularly the definition of manual handling jobs, were
too vague (Exs. 30-137, 30-425, 30-1722, 30-3167, 31-77, 31-180, 31-
225, 31-227, 31-248, 31-260, 31-342, 32-78, 32-300, 32-337, Tr. 3255-
56). For example, one commenter said:

    The definitions of manufacturing and manual handling jobs
covered by the standard are guaranteed to leave employers as much in
the dark as they are now. What constitutes ``forceful'' manual
handling? How much force must be involved to be covered? Should the
strength capabilities of individual employees be considered? (Ex.
31-211)

Others were concerned that the definitions were too broad and could
include any job or ``almost every employer'' (Exs. 31-135, 31-180, 31-
342).
    Many participants told OSHA that they did not know what the terms
used in the definitions (``forceful'' lifting, ``core element,'' and
``significant amount'' of worktime) meant (Exs. 30-46, 30-293, 30-300,
30-3032, 30-3853, 30-4837, 31-187, 31-202, 31-223, 31-260, 31-289, 32-
337, Tr. 3337). For example:

    How much is significant? 6 hours per 8-hr shift? 4 hours per 8-
hr. shift? 2 hours per 8-hr. shift? Or 2 2-hr. periods per 8-hr.
shift? (Ex. 30-4837)

    Moreover, commenters did not find the examples of manufacturing and
manual handling jobs to be of use:

    [T]he examples of jobs are not very helpful. A careless reader
could conclude that the lists were exhaustive and, not seeing the
jobs in this workplace named, decide he had to do nothing. A more
thorough reader would note the disclaimer to the effect that ``* * *
each job must be considered on the basis of its actual physical work
condition * * *'' and correctly conclude that there is no standard
against which to compare the actual physical work conditions'' (Ex.
31-211).

    (See also Exs. 30-3032, 30-3853, 32-300.)

    OSHA is accounting for these concerns in this restructuring of the
standard's scope and application provisions. This final rule applies to
all general industry employers, but no employer is required to evaluate
or implement control measures or MSD management until an MSD incident
occurs in a job that involves exposure to risk factors at levels
meeting those in the Basic Screening Tool in Table 1. The only
obligation employers have until that point is to provide information
about ergonomics and the standard to their employees. And, as explained
in the discussion of paragraph (d) below, OSHA is providing that
information in Appendices A and B and on its website.
    OSHA believes that these changes respond to most complaints about
the scope and application provisions of the proposal. By eliminating
the additional requirements for manufacturing and manual handling
employment, OSHA is eliminating both the need to define those terms and
much of the complexity and vagueness commenters found in the proposal.
By limiting employers' obligations in establishments that have not
experienced MSD incidents, OSHA is also taking account of the facts
that not all manufacturing and manual handling jobs involve more
significant ergonomic hazards than do other general industry jobs, and
that some of those other jobs are also hazardous.
    The minimal burden in paragraph (d) for all general industry
employers to disseminate information is necessary so that employees
will know how and when to report MSDs. Given the importance of
providing information at the earliest possible point and the minimal
burden this requirement will impose, OSHA believes that it is
appropriate to apply the initial requirement to all general industry
employers. (The issue of the need for information is discussed in more
detail below in the summary and explanation on paragraph (d)).

II. Industries/Employment/Operations Excluded From the Final Rule

    Like the proposal, the final standard does not cover construction,
agriculture, and maritime employment. Although many participants agreed
with this exclusion (Exs. 30-3032, 30-3752, 31-68, 31-160, 31-187, 31-
207, 31-219, 31-245, 31-252, 31-259, 32-300), a number favored
expanding the scope of the rule to cover all industries regulated by
OSHA (Exs. 30-400, 30-428, 30-1294, 32-210, 500-218, Tr. 2859, 3224,
5592, 9080, 13445, 113745, 14002, 17362, 17652). Their arguments fell
into three categories.
    First, many of these commenters pointed to the high number and rate
of MSDs, especially back injuries, occurring in industries excluded
from the proposed rule (Exs. 30-626, 30-2208, 31-156, 31-183, 31-225,
500-218). The Mount Sinai Center for Occupational and Environmental
Medicine Construction Hygiene and Ergonomics Program (CHEP) pointed out
that, aside from the transportation industry, construction has the
highest rate of back injury of any industry:

    Every year 1 in 100 construction workers will miss between 7 and
30 days of work due to back injuries * * * At one surveyed worksite
all wallcoverers who had worked 15 years or more in the trade had
required surgery or medical intervention for problems including
carpal tunnel syndrome, pain in the neck, shoulder and back, and
knee problems (Ex. 31-183).

    Some commenters also favored expanding coverage because they said
that employees in construction, agriculture and maritime are exposed to
the same risk factors and MSD hazards as are employees in general
industry (Exs. 30-626, 31-22, 31-183, 31-263, 31-303, 500-218). They
said there was no reason to distinguish coverage by industries if the
rule was also incorporating an MSD trigger because, as one put it,
``[a]n injury is an injury, and I have no doubt there are always ways
to handle these jobs just as safely as any others'' (Ex. 31-19).
    A number of commenters said that at least jobs in construction,
agriculture and maritime that are essentially the same as in general
industry, primarily manual handling jobs, should be added to the rule
(Exs. 31-14, 31-19, 31-65, 31-98, 31-192, 31-219, 31-307, Tr. 2850-51).
For example:

    Many jobs, especially manual handling jobs, have similar if not
identical hazards to that of general industry. If an employee is
performing lifting that requires excessive force it does not matter
in which industry he is performing the lifting. The actions to
reduce the risk of injury would be similar for each industry (Ex.
31-307).

    See also (Ex. 31-19; 31-65).

    Another group of participants said that the record contains
sufficient

[[Page 68278]]

evidence on the availability and effectiveness of ergonomic
interventions to support expanding the rule to the construction,
agriculture and maritime industries (Exs. 31-183, Tr. 2849-51, 7478-80,
7482, 7485, 15761-71, 17540-41, 17561). Members of this group pointed
to a number of articles and studies about effective controls in those
industries, especially construction (Tr. 15761-71). For example, Nancy
Clark, co-director of Mt. Sinai CHEP, said:

    Practical interventions are available for many identified risk
factors. Many workers devise quick fix, homemade solutions to reduce
the impact of musculoskeletal stress and promote self-preservation.
They use team lifting, mechanized material handlers when available,
floor padding for kneeling and standing on, stacking supplies to
bring the work closer, and alternating work tasks or body position
(Ex. 31-183)

Scott Schneider, director of occupational safety and health for the
Laborers Health and Safety Fund of North America, testified:

    [T]here have been many tool manufacturers who have jumped on the
ergonomic bandwagon and hired ergonomists to develop better and
safer tool designs, from ergonomic hammers with more comfortable
shock-absorbing handles to pliers with soil handles and spring
returns to reduce the stress of opening them after each use. The use
of portable power tools has increased dramatically in construction
as batteries have gotten lighter and more powerful. Cordless screw
guns have become commonplace in construction over the past few
years, reducing the repetitive use of screwdrivers by hand and the
force that had to be used. There are simple pieces of equipment,
like drywall carrying handles, which I have here, and a mortar-pan
stand to raise the height of the pan, which cost less than $50 and
can make the work much easier. A D-handle attachment for a shovel,
which I have here, costs less than $20, and has been shown to reduce
awkward postures during shoveling. There are simple carts for moving
glass or drywall, vibration-dampened jackhammers and equipment for
moving them on and off of trucks. (Tr. 15762-63).

These commenters also pointed out that many of the controls used in
general industry, such as manual handling aids, were applicable or
readily adaptable to construction, agriculture and maritime industries
(Ex. 31-183). Moreover, tool and equipment interventions are becoming
more widely available ``as manufacturers are responding to the need for
better ergonomically designed tools'' (Ex. 3-183; see also Tr. 15761-
62, 17561).
    Finally, several participants were concerned that OSHA's stated
intent to promulgate an ergonomics standard for the excluded industries
in the future would never come to fruition:

    OSHA's standard-setting history during the past 30 years raises
serious doubt that workers excluded from this standard will ever
have legal protection from MSD hazards. When OSHA has excluded
workers from coverage under a promulgated standard, only in two
cases has the Agency followed up to extend coverage to those
workers--Hazard Communication and Construction. But those actions
were as the result of a court decisions and order (hazard
communication) * * * or legislative mandate by Congress (lead) (Ex.
500-218, p. 132-33).

    These participants said that if OSHA does not cover construction,
agriculture and maritime in the current rulemaking, the Agency should
begin further rulemaking immediately and even establish a deadline for
completing that project (Exs. 30-400, 30-576, 30-4837, 31-12, 31-263).
    OSHA is aware that there is significant evidence in the record
indicating that work-related MSDs exist in operations and employment
beyond general industry (Exs. 31-183, 500-218, Tr. 7475, 7484-85,
17538-39). Indeed, the problem appears to exist in virtually every
industry. Nonetheless, for several reasons OSHA believes its decisions
to regulate MSD hazards through sequential rulemaking proceedings, and
to limit the first proceeding to general industry, is appropriate and
supported by the record.
    A primary basis for the Agency's decision to limit the scope of
this rulemaking to general industry is that most of the available
evidence and data relating to ergonomic interventions addresses general
industry. For example, the vast majority of the studies reviewed in
both the NIOSH and NAS reports pertained to general industry (Exs. 26-
1, 26-37). Similarly, the majority of case studies on the effectiveness
of ergonomics programs and control interventions that OSHA had gathered
focused on general industry (64 FR 65954-75). Although some
participants submitted evidence on ergonomics programs and controls in
the excluded industries, mostly in construction (Exs. 32-339-1-25, 32-
3888, 38-65, 38-66, 500-210), most of the available evidence continues
to pertain to general industry jobs, operations and workplaces.
    If it included construction, agriculture and maritime within the
scope of this rule, OSHA would have had to delay issuing the rule for
general industry while it gathered and analyzed the necessary evidence.
Because it is likely that the rule would have a significant impact on
small employers in construction, agriculture and maritime, OSHA would
also have had to convene a small business review panel pursuant to
SBREFA. Further, in order to include construction, agriculture, and
maritime in its final rule, OSHA, in the interest of fair notice, would
have had to amend the ergonomics proposal or re-propose to include
these industries and hold additional hearings. Expanding the rule to
cover agriculture, construction and maritime would seriously delay
addressing the urgent need for protection for general industry
employees, who work in the jobs in which more than 90 percent of MSDs
are reported.
    In addition, as the proposal pointed out, work conditions and
factors present in agricultural, construction and maritime employment
often differ from those in general industry. OSHA listed a number of
aspects of construction work to illustrate this statement (64 FR
65787):
     They consist primarily of jobs of short duration,
     Employees work under a variety of adverse environmental
and workplace conditions (e.g., cold, heat, confined spaces, heights),
     At non-fixed workstations or non-fixed work sites,
     On multi-employer work sites,
     They involve the use of ``day laborers'' and other short-
term ``temporary workers,'
     Involve situations in which employees provide their own
tools and equipment, and
     Involve employees who may be trained by unions or other
outside certifying organizations, rather than by the employer.
    OSHA did not mean to imply that the mere existence of any of these
factors, alone or in combination, would be enough to justify excluding
an entire industry from the rule. This fact was apparently not clear to
some commenters, however, who argued that the presence of some of the
listed factors in their industries meant that they too should be
excluded from the standard (Exs. 30-297, 30-626, 31-147, 32-234, 32-
300). For example, Broccolo Tree and Lawn Care Inc., pointed out that
landscaping jobs involve short-duration tasks and no fixed workstations
(Ex. 31-147). The National Solid Waste Management Association (NSWMA)
said that its employees are also exposed to adverse environmental
conditions and work at non-fixed work sites (Ex. 32-234, p. 6-7).
    In the proposal, OSHA discussed its discretion to set appropriate
rulemaking priorities, and to promulgate standards applicable to less
than all of American industry. 64 FR 65786-65788. General industry
accounts for more than 90 percent of the more than 620,000 LWD MSDs
reported each year. By

[[Page 68279]]

promulgating a standard addressing general industry first, OSHA is
giving ``due regard to the urgency of the need'' for a standard to
protect general industry employees. 29 U.S.C. 655(b)(7). OSHA has thus
ensured that the greatest number of MSD hazards will be addressed by
this final rule, while the Agency determines appropriate regulatory
approaches for other industries. For example, OSHA has been working
closely with NIOSH on a study of ergonomic hazards and solutions in the
maritime industry. In addition, OSHA recently published an ergonomics
best practices guide for the construction industry on its Web page.
OSHA has also provided training grant money targeted to ergonomic
hazards in the construction industry.
    OSHA intends to develop ergonomics rules that can be tailored to
the conditions that are unique to the firms in these industries. OSHA
agrees with commenters who have said that the experience the Agency
gains from this first phase will provide valuable assistance in
developing an effective ergonomics rule for the construction,
agriculture, and maritime industries (see, e.g., Ex. 31-252).
    As noted earlier, OSHA has decided that the final standard should
not cover work performed by persons employed incidentally to or in
support of construction, agriculture and maritime operations,
regardless of what type of activity they perform. To illustrate, the
standard does not cover employees of a residential home building
company performing office work in support of construction activities,
even though office work is a general industry operation under other
OSHA standards. Similarly, the final rule does not cover janitorial
workers employed by a shipyard or employees performing regular
maintenance on power industrial trucks in a marine terminal. Applying
the rule to general industry jobs of a construction employer (the
office manager of a construction company, for example) would present
the employer with logistical difficulties. Requiring construction,
agriculture and maritime employers to set up an ergonomics program for
the few general industry employees performing ancillary functions in
their workplaces would not be an efficient allocation of safety and
health resources. Several commenters have told OSHA that it is most
efficient to set up an ergonomics program on a company-wide basis (see,
e.g., Exs. 26-1370). Doing so allows employers to implement program
elements such as providing employee information and training more
efficiently.

B. Railroad Work

    Paragraph (b)(3) states that this standard does not cover railroad
work. Although some railroad operations are normally covered by OSHA
general industry standards, other railroad work is regulated by the
Federal Railway Administration (FRA) and not by OSHA. 29 U.S.C.
653(b)(4). In addition, the Preliminary Economic Analysis indicated
that the standard would not cover any railroad employment, and this
statement caused some uncertainty among affected parties as to the
Agency's intent (Ex. 28-1, chapter II, p.3).
    In a May 23, 2000 Federal Register notice (65 FR 33263), OSHA
provided an analysis of the economic impacts of the proposed rule on
railroads. On July 7, 2000, OSHA also held a supplemental hearing on
this economic analysis, in which the Association of American Railroads
(AAR) participated. AAR's comments and testimony, however, highlighted
the complexity of the OSHA/FRA jurisdictional issues (Ex. 703-3, Tr.
18272, 18313-16, 18321). OSHA has determined that it needs to gather
additional information and conduct further analysis on these issues
before it canese issues
before it can decide whether and how to address ergonomic hazards in
the railroad industry. Therefore, OSHA has decided not to cover any
aspect of railroad work at this time.

C. Other Exemptions Requested.

    A number of other rulemaking participants also requested that
certain jobs, industries or employers be excluded from this rule (e.g.,
ambulances, landscaping, transfer and storage, petroleum and chemical
industries, forging industry). Many requesting exemptions did not
provide any reasons why they should be excluded (see, e.g., Exs. 30-
303, 30-491, 30-2102, 30-3005, 30-4439, 30-4444, 30-4598, 601-X-1163,
601-X-1438). Some merely said they had ``many work conditions and
factors present in the industries OSHA has chosen to exempt,'' but did
not discuss either what those factors were or why they supported an
exclusion (see, e.g., Exs. 30-2348, 30-3005, 30-3186, 30-3311 30-3462,
30-3482, 30-3582, 33-1181). OSHA does not find any basis for excluding
those industries from this rule.
    A few requests that included more discussion supporting an
exemption are discussed individually:
1. Solid Waste Management
    The National Solid Waste Management Association (NSWMA) urged OSHA
to exempt the trash collection industry from the standard (Ex. 32-234).
NSWMA said an exemption was warranted because, like the construction
industry, its working conditions include non-fixed worksites, limited
supervisory oversight, adverse environmental conditions, and high
employee turnover. In addition, according to NSWMA, ``uncontrollable''
factors, such as variable load weights, municipal regulations, and its
members' lack of control over the location of the garbage they collect,
also support an exemption. Finally, NSWMA also argued that there is
little available information about health effects and effective
solutions in the industry. The West Coast Refuse and Recycling
Coalition and the Municipal Waste Management Association (MWMA),
representing municipal solid waste agencies in larger cities, requested
an exemption for some of the same reasons (Ex. OR 323, Tr. 17972-73).
Although OSHA recognizes that employers in this industry face
particular challenges in implementing some types of ergonomic controls,
it does not believe that the arguments presented compel exemption of
the solid waste and recycling industry from this standard.\1\
---------------------------------------------------------------------------

    \1\ A number of participants who argued that compliance with an
ergonomics standard would be infeasible in their industries also
submitted examples of industry ``best practice'' guidelines and
similar recommendations to the record. The participants said that
even these ``best practices'' do not result in enough of a reduction
in employee exposure to MSD hazards that further MSDs are
``unlikely.'' OSHA recognizes that some industries will not be able
to control exposures completely. OSHA also, however, approves of the
steps these industries are taking to control MSD hazards to the
extent they can, and commits to working with the industries in the
future. This type of arrangement will help provide employees in
these industries with as much protection as possible, while
reassuring their employers that OSHA understands the limits of their
capabilities.
---------------------------------------------------------------------------

    As noted above, OSHA does not believe that the fact that some
aspects of an industry's working conditions are similar to some of the
conditions in exempted industries necessarily warrants exempting those
industries. In any event, the working conditions in the solid waste
industry differ significantly from those in construction. In the solid
waste industry employees repeat the same routes every week or more
frequently. The route is a fixed worksite that the employee gets to
know. Because the route is fixed, the employer is able to anticipate
and plan for the hazards that the employees might encounter. Likewise,
the fixed routes enable employers to plan for how the changing seasons
will affect collection on the route. NSWMA's testimony that a ``vast
majority * * * if not all'' of its member

[[Page 68280]]

companies have safety and health programs that include addressing
ergonomic hazards on a ``day to day'' basis indicates that most
industry employers already are taking these steps (Tr. 18074).
    Although NSWMA argued that high turnover in the industry supports
exemption in the same way that the use of ``day laborers'' in the
construction industry does, NSWMA did not provide any evidence on
turnover rates in its industry, or on how those rates compare to other
industries this rule covers. Nor did NSWMA explain why high turnover
rates pose the same issues as day laborers. Other solid waste
associations and employers did not indicate that high turnover rates
are a problem in the industry. The solid waste industry has the
opportunity to train its workers; in fact NSWMA and MWMA testified that
their members already provide training (Tr. 13404-405, 18079). It
explained that this training is the most effective way to deal with the
fact that its workers are often unsupervised:

    MR. BEDERMAN: No, the most important way to monitor this type of
thing is actually not to monitor it, but * * * actually good
training (Tr. 18079).

    The record also does not support industry claims that solid waste
industry employers have little control over their employees' working
conditions. For example, NSWMA said that, because of municipal
ordinances, its members have no control over the weight and location of
the garbage they collect and that municipalities were ``very hesitant''
to make changes (Ex. 32-234-2, Tr. 18041). But 60 percent of
residential collection is privately controlled (Tr. 18046). For the 40
percent of trash collection that is under the control of
municipalities, as noted below, the testimony of NSWMA and MWMA suggest
there is not a significant problem.
    NSWMA testified that a majority of municipalities have already
implemented container requirements (Tr. 18071; see also Tr. 13402).
Both NSWMA and MWMA testified that the growing trend is toward
requiring customers to place garbage containers at the curbside (to
eliminate the need for employees to carry heavy containers) and
limiting container size (to reduce injury associated with heavy
lifting) (Tr. 18070-71, 13402-3; see also Tr. 12019). Bruce Walker, of
Portland's solid waste and recycling agency, said that such weight
limits had been positively received in that city (Tr. 12014-15). NSWMA,
MWMA and Mr. Walker also said that employers are instructing their
employees not to lift containers that exceed the weight limits (Tr.
12014, 13404-06, 18073). In addition, container size and location
issues are regularly addressed as part of contract negotiations between
private collectors and municipalities (Tr. 18041). All of this evidence
suggests that solid waste employers should not have difficulties
continuing to negotiate contracts that will assist them in complying
with this final standard.
    And contrary to NSWMA's argument, the record contains abundant
evidence on MSD hazards and ergonomic solutions in this industry (Ex.
32-234-2). The industry recognizes that lifting heavy loads creates a
hazard for employees (Tr. 13406, 13413, 18009). Industry
representatives testified that their workers experience work-related
MSDs, particularly MSDs of the lower back (Tr. 13379, 13396, 13412,
18009). In fact, NSWMA submitted a manual of recommended ergonomic
practices developed by Environmental Industry Associations (EIA),
NSWMA's parent organization, that identified lifting bulky loads and
twisting and carrying loads as risk factors for the industry and
identified back pain, hernias and strains, sprains and tears as common
MSDs in the industry (Ex. 32-234-2-1). EIA also recommended that
employers establish ergonomics programs for trash collection and
recycle operations (Ex. 32-234-2-1).
    The record also includes evidence on a wide range of controls that
are successfully in use in the industry. The EIA manual on ergonomic
practices said the industry ``has many options'' for addressing
ergonomic hazards, including weight limits built into residential
contracts, the use of lifting devices, and training (Ex. 32-234-2-1).
The record indicates that the following controls are also in use in the
industry:
     Mechanical container lifts,
     Limits on container size and weight and requirements for
container handles,
     Carts, dollies and other mechanical assists for pushing,
carrying and lifting containers,
     Collection trucks designed for use in narrow alleys and
streets to eliminate carrying containers long distances,
     Changes in municipal collection regulations to reduce
lifting hazards (e.g., curbside service, container size and weight
limits, reduction in loads through increases in collections per week,
separate collections for large bulky items),
     Training in proper lifting techniques,
     Work practice controls (e.g., training not to lift
overweight loads),
     Changes in compensation systems to eliminate incentives
for hazardous work speed and lifting (Tr. 12017, 13402-06, 17969,
18212).
    John Legler, of Waste Equipment Technology Association, added that
garbage trucks are being retrofitted with mechanical lifts ``quite
regularly'' (Tr. 18012-13). Bruce Walker, of Portland's residential
solid waste and recycling agency, testified that enforcing container
weight limits had been established had led to low MSD rates (Tr. 11968-
70).
    This evidence not only does not support exemption, it is clear
evidence that effective ergonomic programs and controls are
technologically and economically feasible for the industry as a whole.
OSHA recognizes that some of the hazards facing waste industry
employees cannot be eliminated completely. But the standard only
requires employers to control MSD hazards ``to the extent feasible.''
It expects NSWMA's member companies to continue to implement the type
of safety programs they are already using, and to continue improving
those programs as knowledge and technology advance.
2. Utility Workers
    Utility companies asked OSHA to exempt utility line workers and
power plant maintenance workers from the standard for two reasons.
First, they pointed out that line workers face some of the same
conditions as construction, agriculture and maritime (e.g., adverse
environmental conditions). They also argued that these jobs involve
both general industry and construction activities because utility line
workers not only maintain and repair utility lines, a general industry
activity, but also they install, alter, and improve lines, activities
which are governed by OSHA construction standards (Exs. 30-3853, 32-
300, Tr. 2893-95). Edison Electric Institute (EEI) testified:

    As you know, a line worker working on a pole may at one moment
be engaged in what is considered to be construction work under
1910.12(b) and under 1926(b) and at the next moment be engaged in
what is considered to be general industry work under 1910.269. That
is to say that if a person is doing work for the improvement of the
facility, that is construction as defined by OSHA and the Review
Commission. And if not, then general maintenance (Tr. 97-98).

EEI also pointed out that it would not be practical for its employees
to be covered by the standard for only some of their tasks:

    EEI recommends that OSHA clarify that to perform a job hazard
analysis means to analyze a job, not a task. A job may not involve
only one task, but may involve multiple tasks depending upon the
nature of

[[Page 68281]]

the work on that given day (Ex. 32-300, p. 29).

    OSHA agrees with EEI that determining whether a job exposes an
employee to an MSD hazard requires looking at all of the tasks and
activities that comprise that job. That is what this job-based standard
requires. But as EEI itself pointed out, some utility companies already
have programs in place for analyzing and controlling MSD hazards (Ex.
30-2725, Tr. 2384, 2396-98). Presumably, these companies analyzed the
entire jobs of utility line workers and power plant maintenance
personnel rather than just the general industry tasks in those jobs.
None of the utility companies indicated that construction activities
constitute the primary operations of utility companies. Thus, including
all rather than part of the tasks of these jobs in the ergonomics
program this rule requires should not impose a substantial additional
burden for utility companies. OSHA requires utility companies to
protect their employees, including those that spend part of their days
performing construction work.
3. Building Materials Distributors
    A number of building materials distributors argued that they should
be exempted because a large portion of their business involves
delivering supplies to construction sites and to various places on
construction sites (Exs. 30-541, 30-4267, 30-4351). Because of this,
they said, their employees are exposed to the same ergonomic risk
factors and adverse working conditions that justified an exclusion for
the construction industry. OSHA has never excluded general industry
employers from standards because they provide equipment or materials
for exempted industries. Thus, while marine terminals are excluded from
this standard, manufacturers and transportation companies that deliver
new equipment to marine terminals are still covered.
    In addition, almost every comment received from building materials
distributors indicated that the industry has already taken substantial
steps to control MSD hazards. For example, Panther Building Materials,
Inc., said that it provides hydraulics crane, carts and other material
handling equipment in order to safely deliver supplies (Ex. 30-4351).
It also provide at least two employees per truck crew in order to
minimize carrying.
4. Home Health Care.
    The American Association for Homecare (AAHomecare), asked that the
home health care industry be exempted from the standard because home
health care employees perform work in private homes that are not under
the employer's control.
    AAHomecare said its industry should be exempted because OSHA has
indicated that it will not impose OSHA standards on private homes,
unless they are being used as part of the ``manufacturing process''
(Ex. 30-3862). But the OSHA policy AAHomecare refers to only addresses
work that employees perform in their own homes.
    AAHomecare also argues that the court in the Bloodborne Pathogens
decision (American Dental Association. v. Martin, 994 F.2d 823 (7th
Cir. 1993)), held that the OSH Act ``does not authorize OSHA to impose
work-site related standards on home work sites that are not under the
employers control'' and that the Agency's directive limiting the
application of the Bloodborne Pathogens rule at home-based worksites
(CPL 2-2.44D) should apply to this standard as well (Ex. 30-3862). But
the Seventh Circuit did not make as broad a holding as AAHomecare
suggests. The court said only that OSHA has an ``obligation to consider
such questions and the general issue that they present before
imposing'' a standard. American Dental Assn., 984 F.2d at 830.
    In this case, OSHA is considering these issues and addressing them
here. In general, employers sending their employees to work at sites
they do not control are required to do everything within their control
to protect those employees, but will not be held liable for the
existence of conditions they cannot control. Thus home health care
agencies must provide their employees with the information required by
paragraph (d), provide those employees with MSD management where an MSD
incident occurs in a job that meets the levels in the Basic Screening
Tool, and perform job hazard analyses when necessary. In addition, they
must comply with the other programmatic elements of the standard, in
particular providing the employees with necessary training and
equipment to minimize ergonomic hazards.
    But employers' control obligations will be limited by the control
they have over their employees' actual working conditions. Thus an
employee who is expected to move patients in their own homes should be
taught how to do so as safely as possible. For example, evidence was
submitted to the record that portable lifting devices and other control
measures are available for use in home settings (Ex. 37-4, Tr. 11743-
45). According to witnesses, some portable lifting devices have been
designed especially for home settings (Tr. 11743-45). The witnesses
said that these devices allow mechanical transfer in and out of bed,
onto a toilet, and even into a tub (Tr. 11745). Other control measures
described in the record include friction reduction sheets, gait belts,
toilet and shower chairs, slide boards, and convertible chairs and
wheelchairs (Ex. 37-4). To the extent these controls are feasible, and
employers find them to be effective, employers could provide them to
their home health worker employees. But an employer is not expected to
change the configuration of a patient's bedroom or bathroom, although
it must provide the worker with the training and controls necessary to
allow him or her work as safely as possible in that location.
5. Small Businesses
    A number of commenters said OSHA should exempt small businesses
because compliance would be too burdensome (Ex. 30-3167, Tr. 3126-27,
3332). They said that small businesses do not have the knowledge or
resources to hire outside experts to help identify and address MSD
hazards (Tr. 3127). They also said that MSD rates were low for small
businesses (Exs. 30-3167, 600-X-1, Tr. 3332). National Small Business
United (NSBU) said that for the majority of small businesses the
occurrence of an MSD was rare (Ex. 30-3167). By contrast, another
participant (Ex. 26-1370) at OSHA's stakeholder meetings for Ergonomics
Program Standard Development specifically supported the inclusion of
small employers in the rule, saying that the rule was particularly
needed in these facilities because they were less likely already to
have either an ergonomics or a safety and health program (Exs. 26-
1370).
    OSHA considered whether to apply alternative regulatory provisions
to small employers as part of the analysis required by SBREFA and the
Regulatory Flexibility Act (64 FR 66040-53). OSHA does not believe the
record supports such an approach for small business. First, employees
who work for small businesses are experiencing work-related MSDs, and
they need the protection this standard will provide. According to BLS,
employees in establishments of all sizes have reported MSDs that are
serious enough to involve days away from work.
    In a number of industries comprised predominantly of small
businesses, the risk of MSDs is particularly high. This is especially
true in the health care industry. For example, many medical
sonographers are employed by small businesses. Joan Baker, of the
Society of Diagnostic Medical Sonographers,

[[Page 68282]]

testified that the MSD prevalence rate among sonographers exceeds 80
percent and that the frequency and severity of these MSDs appears to be
increasing (Tr. 11881-82). Dr. Linda Morse, chief of occupational
medicine at Kaiser San Francisco, said that the injury rate among
ultrasound technicians in Northern California was almost 100 percent
(Tr. 15045). Many nurses, nurses' aides, and orderlies are also
employed by small businesses, including small nursing homes and small
health care agencies. According to BLS, in 1996 about 15 percent (more
than 103,000) of all MSDs resulting in days away from work were
reported by health care workers. In addition, the American Nurses
Association and the Service Employees International Union, among
others, testified that the occurrence of MSDs among home health workers
is particularly high (Exs. 32-274-1, 502-215).
    OSHA does not believe this standard will be too burdensome for
small businesses. The record shows that many small businesses have
successfully implemented ergonomics programs (see, e.g., Exs. DC 66,
500-208-3, Tr. 17350-17355). These programs have paid for themselves in
terms of reductions in medical costs, lost workdays and product reject
rates (Tr. 17354). Moreover, if small businesses have low rates of
MSDs, the obligations for those employers will be commensurately small
(Ex. 30-3167). The only obligation that many small employers will have
is a one-time requirement to provide basic information to their
employees. And these employers can satisfy that burden by copying,
distributing, and posting the information sheets in Appendices A and B.
    The record shows that small businesses are easily able to get the
information they need to address MSD hazards. A number of organizations
have developed and are providing model programs, checklists, ``best
practices'' guides and control information to small businesses (see,
e.g., Exs. 32-234-2-1, OR 351). A number of organizations have
developed and are providing model programs, checklists, ``best
practices'' guides and control information (Exs. 32-234-2-1, OR 351 ).
For example, the American Dental Association and state affiliates, such
as the Oregon Dental Association, have developed and disseminated
information on ergonomics for its members and held a ``Dental
Ergonomics Summit Conference'' this year (Ex. OR 351). A number of
trade associations are also providing ergonomics training for small
businesses (Ex. 37-25, OR 351). For example, Suzanne Rodgers, an
ergonomist with 32 years of experience assisting a wide range of
companies in addressing MSD hazards, said that she has provided
training to small businesses at various conferences organized by the
Chamber of Commerce (Ex. 37-25).
    There are also other sources of information and assistance for
small employers. OSHA and NIOSH provide free hazard evaluation services
for small employers. OSHA will be providing additional information in
the appendices to this final rule and other materials on the OSHA
Webpage (www.osha.gov). Many other Internet sites also provide free
ergonomics information.

III. Other Scope and Application Issues

A. Jobs Involving Both General Industry and Non-General Industry Tasks

    Several commenters raised questions about whether this standard
applies when an employee's job involves both general industry and non-
general industry activities (Exs. 30-3853, 32-300, Tr. 2893-95). As
explained above in reference to utility workers, because this is a job-
based standard, OSHA intends employers to include all employees who
perform general industry work within this standard, even if those
employees also perform some work that may be classified as
construction, agriculture, or maritime. Thus, employers engaged in
landscaping or lawn and garden services, a general industry
classification, are covered by this standard even if their employees'
jobs include some harvesting of sod or trees, an agricultural
classification. On the other hand, nurseries and tree farms, which are
agricultural classifications, need not comply with the standard even if
their employees perform some minor landscaping or horticultural
services. Comments by the AFL-CIO best sum up the need for defining the
application of the standard in this way:

    Since this is a job-based standard, it is important that jobs in
fact are covered. To apply the standard in some aspects of a job and
not others would leave workers without protection and make
compliance and enforcement confusing and difficult (Ex. 500-218, p.
133).

    In addition, as stated in the discussion of utility line workers,
the only way an employer can determine whether a job exposes an
employee to an MSD hazard is to look at all the tasks and activities
that comprise that job. Eliminating some tasks from this analysis may
prevent identification of risk factors that are causing or contributing
to the hazard. If employers do not have that information, the controls
they implement may not be successful. Therefore, in order to ensure
that an employee is protected from MSD hazards while performing the
general industry tasks, it may be necessary to control risk factors for
the job as a whole.

B. Multiple Employer Worksites and Contract or Shared Employee
Situations

    A number of participants asked how the standard would apply at
multi-employer worksites. Similar situations arise under many
standards, and OSHA has published a ``Multi-Employer Citation Policy''
that discusses the allocation of responsibility among various
categories of employers. CPL-0.124 (Eff. Dec, 10, 1999). OSHA has not
historically discussed the operation of this policy in rulemaking
documents, viewing it as an enforcement issue. In a challenge to OSHA's
Bloodborne Pathogens standard, however, the United States Court of
Appeals for the Seventh Circuit held that, where parties to a
rulemaking raise issues about the application of the standard in this
circumstance, OSHA should discuss the application of this policy.
American Dental Ass'n. v. Martin, 984 F.2d 823 (7th Cir. 1993). Such a
discussion is particularly useful with respect to some of the issues
raised by this standard.
    Under the multi-employer worksite policy, employers are generally
required to take whatever steps are within their power to protect their
own employees, and also to abate hazards within their control when
other employees are exposed to those hazards. This means that an
employer whose employees are working at a location controlled by
another employer, for example a temporary services agency, must provide
its employees with the information required by paragraph (d). Both
employers will need to know if an employee reports an MSD, and must
implement measures to share this information. They should consult to
determine whether the report qualifies as an MSD incident under this
standard, but the employer with control over the workplace must screen
the job to determine whether further action is required. If so, the
employer with control over the workplace must also implement the
program elements required by this standard. And if such an employer
hires a temporary worker to work in a job for which an ergonomics
program under this standard is already in place, that employer must
provide the temporary employee with any necessary training. The
employing agency, however, will necessarily be responsible for
providing the employee

[[Page 68283]]

with any necessary MSD management, including WRP. OSHA believes that
this is basically how businesses are currently operating. OSHA expects
that they may pay more attention to these issues and address them
explicitly in their contracts after the standard is in effect.

C. United States Postal Service

    Questions were also raised as to the effect of this standard on the
United States Postal Service. In 1998, Congress amended Section 3(5) of
the OSH Act to include the United States Postal Service within the
Act's definition of employer. 29 U.S.C. 652(5). Postal Service
Enhancement Act, P.L. 105-241. As a result, this standard applies to
all USPS operations that are not construction, agriculture or maritime
operations.

D. Municipalities

    A number of municipalities asked whether the standard applies to
local governments. States and their political subdivisions are not
employers under the OSH Act, and they are not covered by this final
rule or any other federal OSHA standards. However, the 23 States and 2
Territories with approved State Plans are required by Section 18(c)(2)
of the OSH Act to issue standards that are ``at least as effective'' as
Federal standards. 29 U.S.C. 667. Therefore, State Plan States must
adopt ergonomics program standard within six months of the publication
of this standard. Under Section 18(c)(6), State Plan States must apply
such standards to State employees and to employee's of the State's
political subdivisions. (See State Plan States section of this preamble
for the list of State plan States.)

Industries and Jobs This Standard Covers

     Agricultural services
     Soil preparation and crop services, including crop
planting, cultivating and protecting
     Crop harvesting
     Veterinary services
     Lawn and garden services
     Ornamental shrub and tree service
     Tree trimming
     Landscaping and horticultural services
     Oil and gas drilling/extraction operations
     Health care employees
     Truck driving
     Office workers employed by general industry
establishments
     Office workers employed by agricultural services
establishments
     Utility line operations including maintenance, repair,
installation, construction, alteration and improvement operations
     Power plant maintenance operations including repair,
alteration and improvements
     Boat building and repair
     Airline baggage handlers
     Airline reservation and ticket agents
     Airline maintenance crews
     Railroad equipment building and rebuilding
     Maintenance of equipment or structures
     Forestry services
     Forestry nurseries and gathering of forest products
     Commercial fishing
     Fish hatcheries and preserves
     Hunting and trapping
     Game propagation
     State and municipal employees (in State Plan States)
performing general industry operations
     U.S. Postal Service
     Federal government employees performing general
industry operations

Industries and Jobs This Standard Does Not Cover

     Construction employment and operations
     Agriculture employment and operations
     Farm labor and management services
     Livestock and animal specialty services
     Maritime employment and operations
     Ship building and repair
     Longshoring
     Office workers employed by construction, agriculture or
maritime establishments
     Maintenance workers employed by construction,
agriculture or maritime establishments
     Work at the employee's own home
     Railroad work
     Railroad terminal and switching
     Airline attendants
     Airline pilots

Paragraph (c)--How Does This Standard Apply if I Already Have an
Ergonomics Program in Place When the OSHA Ergonomics Program Standard
Becomes Effective?

    Paragraph (c) of the final standard is a grandfather clause, which,
under certain conditions, permits an employer who has already
implemented and evaluated his or her ergonomics program by the date on
which the final rule becomes effective to continue that program instead
of complying with the OSHA standard. This paragraph permits employers
to do this only if the program: is in writing, contains the core
elements of basic ergonomics programs, and is demonstrably effective.
The criteria for judging whether an employer's program adequately
addresses the core elements are contained in paragraphs (c)(1)(i)
through (v). Examples of criteria for judging the effectiveness of the
program are contained in paragraph (c)(1)(v). Paragraph (c)(2) requires
that, within 1 year of the standard's effective date, grandfathered
programs have in place an MSD management policy that meets the
requirements of paragraphs (p) through (s) of the final rule. Final
paragraph (c)(3) denies grandfather status to employers who have
policies or procedures that discourage employees from participating in
the program or reporting signs or symptoms of MSDs or the presence of
MSD hazards in the workplace.
    In the final rule, OSHA is requiring that grandfathered programs be
in writing. The final rule's grandfather clause requires the employer
to demonstrate program effectiveness and, like the proposal, to have a
program that includes the core elements of effective programs. The
Agency believes that this can best be accomplished with a written
program. Further, both OSHA and the employer will find compliance with
the grandfather clause easier to demonstrate if the program is written.
By ``written,'' OSHA also intends that the program can be maintained
electronically.
    Final paragraph (c)(1) requires grandfathered programs to include
the core elements of effective ergonomics programs: management
leadership and employee involvement; job hazard analysis and control;
training; and program evaluation. This paragraph also indicates the
subelements within each core element that OSHA believes are essential
to the proper functioning of that core element. These subelements are
stated broadly. For example, a subelement of management leadership
(paragraph (c)(1)(i)) that OSHA considers essential is the
establishment of an effective reporting system that permits employees
to report the signs and symptoms of MSDs and to receive prompt
responses to their reports. The employer's program must include all of
the subelements of the core elements to qualify for grandfather status.
    The following discussion explains the subelements comprising each
of the core elements. Employers are free to include additional elements
or subelements in their program, and doing so will not interfere with
the program's grandfather status, provided that the program includes
the core elements identified by paragraphs (c)(1)(i) through (v), and
the subelements associated with them.
    The proposed rule would have required an existing program to meet a
``basic obligation'' provision for each core element. Basic
obligations, which were intended to capture the essence of the more
detailed subelements proposed for each core element, were proposed for
each program element. Table 1 compares the proposed rule's basic
obligations sections with the corresponding subelements of the final
rule's grandfather clause. The following discussion also explains
OSHA's

[[Page 68284]]

reasons for revising the basic obligations proposed.
    Final paragraph (c)(1)(i) states that grandfathered programs must
include management leadership and identifies the subelements for that
core element. Employers are required to demonstrate management
leadership of their ergonomics program through the following
subelements: an effective MSD reporting system and prompt responses to
employee reports, the assignment of clear program responsibilities, and
regular communication with employees about the ergonomics program.
OSHA's experience has shown that, to be effective, management
leadership must be active rather than passive. Leadership that is
limited to a ``paper program'' with written policies and procedures but
is not translated into practice by management would not meet the intent
of this provision. On the other hand, management leadership that is
known throughout the organization because of management's active
engagement in the ergonomics process and appropriate follow-through on
commitments would clearly fulfill this intent. The final rule's
management leadership subelements are equivalent to those of the
proposed basic obligation for this core element, except that OSHA has
added ``regular communication with employees'' and ``prompt'' responses
to reports to the subelements of the final rule's grandfather clause.
The Agency has added these subelements to make sure that management
leadership is responsive to employee reports and that management's
commitment to the ergonomics program is communicated from top
management down to the employees performing the work and implementing
the program. Taken as a whole, OSHA believes that the subelements in
final paragraph (c)(1)(i) will ensure that grandfathered programs have
active rather than passive management leadership.
    Final paragraph (c)(1)(ii) requires that grandfathered programs
include employee involvement, as demonstrated by the early reporting of
MSDs and active employee involvement in the implementation, evaluation,
and future development of the employer's ergonomics program. OSHA has
vigorously advocated employee participation in workplace safety and
health issues for many years and is pleased by the growing recognition
of the importance of employee participation on the part of private-
sector companies, trade associations, safety and health professionals,
and employees themselves. OSHA supports employee participation because
employees have the most direct interest in their safety and health on
the job, they have an in-depth knowledge of the tasks they conduct at
the worksite, they often have excellent ideas on how to solve ergonomic
problems, and their interest in the program is vital to its success. If
employees do not report their MSD signs and symptoms or MSD hazards,
any ergonomics program will fail. OSHA has specifically included in
paragraph (c)(1)(ii) a provision that employees be involved in the
implementation, evaluation, and future development of grandfathered
programs to make it clear that employee involvement extends to every
element of the program, including program evaluation and future
modifications to the program to reflect changes over time.
    Final paragraph (c)(1)(iii) requires grandfathered programs to
contain job hazard analysis and control, as demonstrated by a process
for identifying, analyzing, prioritizing (if necessary), and
controlling MSD hazards in affected jobs and following up to ensure
control effectiveness. This is the heart of any ergonomics program. For
employees to be protected from MSD hazards, it is obvious that those
hazards must be eliminated or controlled. A note following this
paragraph explains that personal protective equipment (PPE) may be used
as a supplement to engineering, work practice, and administrative
controls. The employer may only use PPE alone where other controls are
not feasible. In addition, the note explains that, if PPE is used, the
employer must provide it at no cost to employees.
    As can readily be seen from Table 1, this provision has been
changed substantially from the corresponding requirement in the
proposal. The job hazard analysis and control subelements in the final
rule's grandfather clause are designed to be less prescriptive and more
flexible than those proposed and to fit better with the way rulemaking
participants (see, e.g., Ex. 32-77, Tr. 14723, Tr. 4973) described this
process in their existing ergonomics programs.
    The final rule's grandfather clause requires employers to use a
process for identifying, analyzing, and controlling MSD hazards in
problem jobs. Employers may also prioritize jobs identified as having
MSD hazards and then follow their prioritization scheme when
controlling these hazards. Employers with grandfathered programs must
also follow up on their hazard control measures to ensure that the
controls implemented are effective. This is the process that
participants in the rulemaking told OSHA they use in their existing
ergonomics programs. Companies like the Dow Chemical Company (Ex. 32-
77; Tr. 5297), Levi Strauss (Tr. 14723, 14736, 14746), the Consolidated
Edison Company of New York (Tr. 4644), and IBP, Inc. (Tr. 4973)
described a process that includes these job hazard analysis features.
    As discussed in the summary and explanation for the standard's job
hazard analysis and control requirements (paragraphs (j) through (m))
later in this section of the preamble, the rulemaking record
demonstrates that, currently, employers with existing programs do not
always fix all problem jobs, nor do they eliminate all MSDs. To address
these facts, the final rule's grandfather clause (1) permits employers
to bring all problem jobs into their programs, and (2) acknowledges
that employers will not eliminate all MSDs. Employers with
grandfathered programs must, however, implement controls that (1)
control the MSD hazards, (2) reduce MSD hazards to the levels specified
in Appendix D, or (3) reduce MSD hazards to the extent feasible. These
are the same compliance endpoints specified in paragraph (k)(1) of the
final rule. These endpoints are explained in the summary and
explanation for that paragraph.
    Thus, the grandfather clause in the final rule will enable
employers with existing programs that only address certain jobs to
qualify for the grandfather clause if they include all problem jobs in
their program before the standard's effective date. Thus, even programs
that do not currently address all problem jobs would not be precluded
from qualifying for grandfather status, providing that they revise
their approach to include all such jobs before the standard is in
effect.
    Final rule paragraph (c)(1)(iv) requires grandfathered programs to
provide for the training of managers, supervisors, and employees in the
employer's ergonomics program and their role in it; the recognition of
MSD signs and symptoms; the importance of early reporting; the
identification of MSD hazards, and methods that the employer is using
to abate them. Training is to be provided at no cost to the employees
trained. Training is necessary to ensure that employees in problem
jobs, their supervisors, and the individuals who set up and manage the
ergonomics program are provided with the knowledge and skills necessary
to recognize MSD signs, symptoms, and hazards in their workplace and to
effectively participate in the ergonomics program. These individuals
also need to be trained in the need for early reporting. The length and
frequency of training is determined

[[Page 68285]]

by the needs of the workplace. Periodic training is necessary to
address new developments in the workplace and to reinforce and retain
the knowledge already acquired in previous training, but to make this
element as flexible as possible, OSHA is not specifying the frequency
with which training must be provided.
    Final rule paragraph (c)(1)(v) requires grandfathered programs to
include evaluations of the program, as demonstrated by regular reviews
of the elements of the program, the effectiveness of the program as a
whole, and the correction of identified deficiencies. This means that
employers must, at a minimum, assess the functioning of their
ergonomics program, compare its provisions to the elements and
subelements specified in the grandfather clause, identify any
deficiencies in the program, and correct them. Employers are required
to make sure that the ergonomics program they have implemented is
eliminating or controlling the MSD hazards in jobs in their workplace.
A program designed for a large site with many different jobs, for
example, is likely to be more formal and extensive than one designed
for a small site with one or two high-risk jobs. Similarly, an
ergonomics program that fits a manufacturing facility may not be
appropriate for a work environment in the service sector. To make the
evaluation requirements for grandfathered programs as flexible as
possible, OSHA is not specifying the frequency with which evaluations
must be conducted. However, employers do need to reevaluate their
programs periodically to ensure that they are performing up to
expectations.
    Final rule paragraph (c)(1)(v) also requires the program evaluation
to review the effectiveness of the program, using such measures as:
reductions in the number or severity of MSDs, increases in the number
of jobs in which ergonomic hazards have been controlled, reductions in
the number of jobs posing MSD hazards to employees, or any other
measure that demonstrates program effectiveness.
    Lastly, final rule paragraph (c)(1)(v) requires the employer to
conduct at least one review of the elements and effectiveness of the
program before January 16, 2001. This provision, which is discussed in
detail below, ensures that only effective programs are grandfathered.
Although paragraph (c)(1)(v) requires employers to correct deficiencies
in the program, OSHA would not consider an employer who uncovers major
deficiencies in the program elements or whose evaluation does not
demonstrate the overall effectiveness of the program to be in
compliance with this paragraph. Requiring any program that is
grandfathered to be demonstrably effective is basic to employee
protection and to ensuring that grandfathered programs are at least as
effective as the programs required by the standard OSHA is promulgating
for all general industry employers and employees.
    The final rule's grandfather clause does not identify specific
rates of MSDs or other similar measures of effectiveness that a
grandfathered program must achieve because OSHA is aware that the
programs grandfathered in will be at many different stages of program
development and because OSHA wishes to recognize as wide a range of
existing effective programs as possible. Although the grandfather
clause does not set a specific reduction goal, employers are required
by paragraph (c)(1)(v) to demonstrate the effectiveness of their
programs.
    Paragraph (c)(2) of the final rule requires employers with
grandfathered programs to institute an MSD management policy (including
work restriction protection) that meets paragraphs (p) through (s) of
the final rule within 12 months of the effective date of the standard.
Thus, the final rule's grandfather clause is designed to recognize
existing ergonomics programs that are effective even if they do not
have an MSD management policy until a year after the effective date of
the standard.
    OSHA believes that all successful ergonomics programs depend on the
early reporting of and intervention with regard to MSD signs and
symptoms; this is as true for grandfathered programs as for those that
are not grandfathered. As discussed at length in connection with
paragraph (r), OSHA has found, both on this record and in the records
of many other OSHA standards, that wage and benefit protection is
essential to early reporting and employee participation in the
employer's program. Without such protection, employees fear economic
loss and often simply do not report their signs and symptoms until the
injury has progressed to the point where work (and perhaps full
recovery) is no longer possible. In addition, as fully explained in the
summary and explanation for paragraphs (p) through (s) of the final
rule, when an employee reports an MSD, early intervention is required
to ensure appropriate treatment, work restrictions, and follow up. OSHA
anticipates that many existing programs will be able to meet the
requirements of paragraph (s) by use of the dispute resolution
mechanisms described in paragraph (s)(5).
    Final rule paragraph (c)(3) states that an ergonomics program of an
employer who has policies or procedures that discourage employee from
participating in the program or reporting the signs or symptoms of MSDs
or the presence of MSD hazards in the workplace does not qualify for
grandfather status. This provision, which is equivalent to paragraph
(h)(3) of the final rule, ensures that employees are as free to
participate fully in grandfathered programs as employees in programs
that are not grandfathered. As discussed at length in connection with
paragraph (h)(3), OSHA has found that employee participation is
essential to a program's effectiveness and that a prohibition on
policies that inhibit that participation is warranted.

Table 1--Comparison of Proposed Basic Obligations with Final Grandfather
          Clause Program Element Core Elements and Subelements
------------------------------------------------------------------------
                                         Corresponding core elements and
       Proposed basic obligation             subelements of the final
                                                grandfather clause
------------------------------------------------------------------------
Proposed Management Leadership           Final Sec.  1910.900(c)(1)(i)
 Obligation                               and (ii) and (c)(3): [Your
                                          program must contain the
                                          following elements:]
    You must demonstrate management      (c)(1)(i) Management
     leadership of your ergonomics        leadership, as demonstrated by
     program. Employees (and their        an effective MSD reporting
     designated representatives) must     system and prompt responses to
     have ways to report MSD signs and    reports, clear program
     MSD symptoms; get responses to       responsibilities, and regular
     reports; and be involved in          communication with employees
     developing, implementing and         about the program;
     evaluating each element of your     (c)(3) An employer who has
     program. You must not have           policies or procedures that
     policies or practices that           discourage employees from
     discourage employees from            participating in the program
     participating in the program or      or reporting the signs or
     from reporting MSD signs or          symptoms of MSDs or the
     symptoms.                            presence of MSD hazards in the
                                          workplace does not qualify
                                          under paragraph (c) of this
                                          section.

[[Page 68286]]


Proposed Employee Participation
 Obligation:
    You must set up a way for employees  (c)(1)(ii) Employee
     to report MSD signs and symptoms     participation, as demonstrated
     and to get prompt responses. You     by the early reporting of MSDs
     must evaluate employee reports of    and active involvement by
     MSD signs and symptoms to            employees and their
     determine whether a covered MSD      representatives in the
     has occurred. You must               implementation, evaluation,
     periodically provide information     and future development of your
     to employees that explains how to    program;
     identify and report MSD signs and   [See also paragraph
     symptoms.                            (c)(1)(iv).]
Proposed Job Hazard Analysis and         Final Sec.
 Control Obligation:                      1910.900(c)(1)(iii): [Your
                                          program must contain the
                                          following elements:]
    You must analyze the problem job to  Job hazard analysis and
     identify the ergonomic risk          control, as demonstrated by a
     factors that result in MSD           process that identifies,
     hazards. You must eliminate the      analyzes, and uses feasible
     MSD hazards, reduce them to the      engineering and administrative
     extent feasible, or materially       controls to control MSD
     reduce them using the incremental    hazards or to reduce MSD
     abatement process in this            hazards to the levels
     standard. If you show that the MSD   specified in Appendix D or to
     hazards only pose a risk to the      the extent feasible, and
     employee with the covered MSD, you   evaluates controls to assure
     may limit the job hazard analysis    that they are effective.
     and control to that individual      Note to Paragraph (c)(1)(iii):
     employee's job.                      Personal protective equipment
                                          (PPE) may be used to
                                          supplement engineering and
                                          administrative controls, but
                                          you may only use PPE alone
                                          where other controls are not
                                          feasible. Where PPE is used
                                          you must provide it at no cost
                                          to employees.
Proposed Training Obligation:            Final Sec.  1910.900(c)(1)(iv):
                                          [Your program must contain the
                                          following elements:]
    You must provide training to         Training of managers,
     employees so they know about MSD     supervisors, and employees (at
     hazards and your ergonomics          no cost to these employees) in
     program and measures for             your ergonomics program and
     eliminating or materially reducing   their role in it; the
     the hazards. You must provide        recognition of MSD signs and
     training initially, periodically,    symptoms; the importance of
     and at least every 3 years at no     early reporting; the
     cost to employees.                   identification of MSD hazards
                                          in jobs in your workplace; and
                                          the methods you are taking to
                                          control them.

Proposed MSD Management Obligation:      Final Sec.  1910.900(c)(2):
                                          [Your program must contain the
                                          following elements:]
    You must make MSD management         By January 16, 2002, you must
     available promptly whenever a        have implemented a policy that
     covered MSD occurs. You must         provides MSD management as
     provide MSD management at no cost    specified in paragraphs (p),
     to employees. You must provide       (q), (r) and (s) of this
     employees with the temporary         section.
     ``work restrictions'' and ``work
     restriction protection (WRP)''
     this standard requires.
Proposed Program Evaluation Obligation:  Final Sec.  1910.900(c)(1)(v):
                                          [Your program must contain the
                                          following elements:]
    You must evaluate your ergonomics    Program evaluation, as
     program periodically, and at least   demonstrated by regular
     every 3 years, to ensure that it     reviews of the elements of the
     is in compliance with this           program; regular reviews of
     standard.                            the effectiveness of the
                                          program as a whole, using such
                                          measures as reductions in the
                                          number and severity of MSDs,
                                          increases in the number of
                                          jobs in which ergonomic
                                          hazards have been controlled,
                                          or reductions in the number of
                                          jobs posing MSD hazards to
                                          employees; and the correction
                                          of identified deficiencies in
                                          the program. At least one
                                          review of the elements and
                                          effectiveness of the program
                                          must have taken place prior to
                                          [insert date 60 days after the
                                          publication date of this
                                          standard].
------------------------------------------------------------------------

    The following paragraphs discuss the comments, evidence and
testimony received on the proposed grandfather clause and present
OSHA's reasons for accepting or rejecting the rulemaking participants'
suggestions and for including the final rule's grandfather clause
requirements.
1. Whether the Proposed Standard Would Recognize Existing Effective
Programs
    Many rulemaking participants said that the proposed rule's
grandfather clause would not, as drafted, recognize existing effective
programs (see, e.g., Exs. 30-574, 30-973, 30-1722, 30-3765, 30-3813,
30-3815, 30-3845, 30-3853, 30-3934, 30-3956, 30-4185, 31-297, 32-141;
500-188; Tr. 3320, 4137, 11265, 11290, 11615). Most of these commenters
argued that the proposed standard would only permit existing programs
that already met all of the details of the program required by OSHA's
standard to be grandfathered (see, e.g., Exs. 30-1722, 30-3853, 30-
3934, 30-3956, 32-141; Tr. 11265, Tr. 11290, Tr. 11615). According to
these commenters, the basic obligation OSHA proposed for each core
element would in actuality have required an employer to meet each of
the proposed subrequirements under that core element. Thus, they
reasoned that the proposed grandfather clause would only recognize
existing programs that already met all of the particulars of the
program envisioned by OSHA's proposed standard even in cases where the
employer's program had been demonstrated to be effective in preventing
MSDs. For example, the U.S. Chamber of Commerce stated this view as
follows:

    OSHA claims that employers who already have ergonomics programs
in place ``may continue that program, even if it differs from the
one [the proposed] standard requires'' if the program meets certain
requirements * * *. The Proposed Rule requires that ergonomics
programs that were implemented and evaluated before the effective
date of the Proposed Rule must, among other things, (1) satisfy the
``basic obligation'' of each of the standard's six program elements;
and (2) demonstrate that the elements of the preexisting program are
``functioning properly * * *.'' This provision is completely
inadequate to assist employers with preexisting programs. The
qualifications

[[Page 68287]]

written in to this provision essentially require that employers
reconstruct their existing programs, even if any given program is
effective in addressing supposed ``MSD hazards,'' so that it mirrors
the Proposed Rule's notion of an appropriate ergonomics program.
    [A]n employer is supposed to ensure that his program satisfies
the ``basic obligation'' of each program element. The ``basic
obligation'' of each [proposed] element is so broadly written that
it encompasses all requirements enumerated under that particular
element. Thus, employers, including those Chamber members who have
[spent] a great deal of effort and money to establish voluntary
ergonomics programs, will be forced to [alter] their preexisting
programs to comply with the Proposed Rule (Ex. 30-1722).

    Edison Electric Institute's (EEI's) comments were similar:

    EEI supports the concept of a ``grandfather'' clause. However,
the proposed version is more illusory than real, for it appears to
require that all newly proposed controls be put in place before the
effective date of the standard. It is unrealistic and unfair to
``grandfather'' only those programs that track the proposed
standard. It is as if OSHA is saying, ``You don't have to do
anything, provided that you have done everything.'' A true
``grandfather'' provision would give credit for effective past
programs, regardless of whether those programs conform to the scheme
of the proposed program (Ex. 30-3853).

    The American Hotel and Motel Association gave examples of how an
effective existing program might fail OSHA's proposed grandfather test:

    OSHA does not allow for any variation from OSHA's regulation if
a [company's] ergonomics program does not satisfy ``the basic
obligation section of each program element in this standard.'' An
ergonomics program that is proven to be 100 percent effective would
fail if it only offered, for example, training every five years. An
ergonomics program also would likely fail if it provided program
evaluation only upon a report of an ergonomic injury yet did not
have a reportable injury in less than three years (Ex. 30-3233).

    The Center for Office Technology noted that none of the exemplary
ergonomics programs that have won the Center's ergonomics award have
requirements for work restriction protection, which would have been
required by the proposed standard to be in place by the standard's
effective date in order for a program to be grandfathered (Ex. 30-
2208). Thus, the Center pointed out that these very good programs would
not meet OSHA's proposed grandfather clause. The Center recommended
that OSHA include in the final rule a grandfather clause that would
allow any program to be grandfathered in that was reducing MSD
incidence and severity rates and educating employees about how to
minimize discomfort on and off the job.
    The National Association of Manufacturers (NAM) and others noted
that some companies have adopted effective ergonomics programs under
OSHA's Voluntary Protection Program (VPP) or through corporate
settlement agreements (see, e.g., Exs. 30-3392, 30-3815, 30-3819, 30-
4499). These rulemaking participants observed that these ergonomics
programs would not be acceptable under the proposed grandfather clause
even though they have been recognized as effective by the Agency in the
past. NAM urged OSHA in the final rule to grant employers' existing
ergonomics programs greater acceptance for grandfather status based on
the results they achieve.
    Similarly, Organization Resources Counselors, Inc. (ORC) noted that
a recent General Accounting Office (GAO) study recommended that OSHA
adopt a flexible approach in its ergonomics standard (Ex. 500-214). ORC
argued that OSHA ignored this GAO recommendation in drafting the
proposed grandfather clause. As evidence, ORC pointed out that even the
best ergonomics programs would not qualify for status under the
proposal's grandfather clause, stating:

    OSHA has predicated its proposed Ergonomics Program Standard on
its observations that many businesses are successfully addressing
ergonomics issues using similar approaches. In recognition of this
conclusion and in order to focus its own scarce resources on the
areas of greatest need, OSHA has proposed a ``limited grandfather
clause'' for employers with existing ergonomics programs that meet
certain criteria. OSHA's proposal made numerous references to the
1997 General Accounting Office (GAO) study of several companies with
ergonomics programs which found that the companies' programs reduced
work-related MSDs and associated costs, and that the programs and
controls selected by employers to address ergonomic hazards in the
workplaces were not necessarily costly or complex. As a result, OSHA
said, ``GAO recommended that OSHA use a flexible regulatory approach
in its ergonomics standard that would enable employers to develop
their own effective programs.'' OSHA claimed that the standard it
proposed reflects this recommendation and ``builds on the successful
programs that thousands of proactive employers have found successful
in dealing with their ergonomic problems'' (64 FR 65770).
Unfortunately, in crafting the proposed grandfather clause, OSHA
ignored a major finding of the GAO report: that although there were
common elements in each of the employer's programs studied, there
was significant variety in the way each program element was
implemented (GAO/HEHS-97163, page 4). There was no evidence in the
GAO study that one method of implementation was better than another,
yet OSHA has drafted a rule that makes only one program approach--
OSHA's--acceptable.
     * * * [A]s written, virtually no employer would qualify under
[the proposed grandfather clause's] terms, rendering it a nullity.
As was attested to by several industry representatives during the
public hearings, even those programs that OSHA has acknowledged as
being among the best in industry today would not be in compliance
with the proposal. As pointed out in ORC's oral testimony, it is
unlikely that any of the approximately 150 member companies of ORC's
occupational safety and health groups, whose safety and health
programs are among the most sophisticated and effective in the
world, would meet the criteria under section 908 of the proposal.
This is because of the proposed requirement that an employer must
meet all of the ``basic obligation'' sections of each program
element. Virtually all of the proposed ``basic obligations'' are too
prescriptive and should be simplified as described more fully in
ORC's written comments. In particular, many ORC employers would not
meet the provisions of [proposed] sections 911, 917, 923 or 929,
individually, and almost none would meet all four (Ex. 500-214).

    Summing up the concerns of commenters wanting a more flexible
grandfather clause, the American Dental Association argued that the
proposal would reject alternative programs that might be equally or
even more effective (Ex. 32-141). The Association recommended that OSHA
establish a standard based on objective measures or performance and
leave the methods of achieving those objectives to employers.
    Several employer representatives illustrated how various effective
existing ergonomics programs would fail to meet the proposed
grandfather clause (see, e.g., Ex. 30-4185; Tr. 8634, 9181, 11265). For
example, IBP, Inc., which has a corporate-wide ergonomics settlement
agreement with OSHA, identified several aspects of the proposed program
that their program does not address: responses to every MSD symptom,
communication with the health care provider, and WRP (Tr. 4929, Tr.
5041). In the hearings, an IBP representative stated that its program
would not meet the grandfather clause because of proposed requirements
in these three areas (Tr. 5041). Many other employer representatives
also noted that their programs did not include provisions providing for
work restriction protection and, consequently, would not qualify under
the grandfather clause (Tr. 8634, Tr. 9181).
    Constangy, Brooks and Smith stated that their clients could not
meet the hazard control endpoints in the proposed standard (Ex. 30-
4185). They argued that, as drafted, the proposal

[[Page 6828he proposal

[[Page 68288]]

would mean that the occurrence of even a single MSD would require their
clients to implement new engineering controls. Consequently, they
believed that their clients' programs would not qualify under the
proposed grandfather clause. Other commenters also noted that their,
their members', or their clients' programs would not meet the proposed
standard's grandfather clause for similar reasons (see, e.g., Exs. 30-
3344, 30-3347, 30-3368, 30-3845, 30-4137).
    One witness at the hearing, Thomas J. Durbin of PPG Industries,
noted that since no one would benefit from the grandfather clause as it
was proposed, OSHA should either put in a true grandfather clause that
recognizes programs containing the six core elements or eliminate it
altogether (Tr. 3135, Tr. 3147). In questioning, he stated that he
interpreted the proposal to require the full program as long as MSDs
continued to occur (Tr. 3140).
    The Boeing Company argued that the restrictive nature of the
proposal's grandfather clause ran counter to the intent of the OSH Act
(Ex. 30-1547). In support of their position, they pointed to section
6(d) of the Act, which provides for a variance procedure to recognize
alternative approaches to compliance with OSHA standards, provided that
the alternative provides equivalent employee protections. Boeing was
particularly concerned that the standard, as proposed, would deny
grandfather status to an employer who had a program but who had not yet
completed the implementation of all of the control measures required by
the proposal.
    On the other hand, many rulemaking participants indicated that the
proposed standard's grandfather clause would allow ineffective programs
to be grandfathered (see, e.g., Exs. 30-4200, 32-111, 32-182, 32-198,
32-210, 32-339; Tr. 3477). For example, the United Steelworkers of
America and others were concerned that employers whose program
evaluations failed to identify deficiencies simply because the
evaluations were not done properly could be grandfathered in under the
proposed standard (see, e.g., Exs. 32-111, 32-182). They recommended
that OSHA develop additional regulatory text to strengthen the program
evaluation provisions. The Union of Needletrades, Industrial and
Textile Employees (UNITE) was also very concerned that the proposed
grandfather clause would inadequately protect employees (Ex. 32-198),
stating:

    The acceptability of existing programs depends largely on the
criteria used to determine acceptability. Therefore, the correctness
of the current criteria--compliance solely with the ``basic
obligation'' provisions--is critical to the protection of workers
from OSHA's approval of programs which are in fact ineffective. For
the reasons [summarized by OSHA] below, UNITE does not believe that
these criteria will provide the appropriate level of workers
protection (Ex. 32-198).

    Several unions, including UNITE and the United Food and Commercial
Workers International Union (UFCW), gave the following reasons why the
proposal's grandfather clause was inadequate:
     The detailed provisions implementing each of the proposed
program elements, which would not be required for grandfathered
programs, are necessary for adequate protection of employees. UNITE
pointed to OSHA's extensive justification for each of these proposed
provisions in the preamble and indicated that the justification applied
just as well to programs in existence before the rule becomes effective
as to programs implemented afterward (Ex. 32-198).
     The proposed basic obligation sections for the management
leadership and training elements, which would be the only requirements
employers with grandfathered programs would have to meet, would allow
poorly trained managers to make determinations that their program
complies with the standard. The unions noted that training for managers
was not included as part of the proposed basic obligation for these
elements. They were particularly concerned that inadequate training of
managers would result in improper program evaluations (see, e.g., Exs.
30-4200, 32-198, 32-210, 32-421).
     Job hazard analysis and control and quick fixes could be
performed without the input of employees because employee participation
is not a part of the proposed basic obligation of those provisions.\2\
The unions argued that, without feedback from employees, a provision
not addressed in the proposed basic obligation for the job hazard
analysis section, employers would be likely to improperly identify risk
factors or select improper hazard controls (see, e.g., Exs. 30-4200,
32-198, 32-210, 32-461).
---------------------------------------------------------------------------

    \2\ UNITE also noted that the proposed quick fix section had no
basic obligation section at all.
---------------------------------------------------------------------------

     The proposed MSD management basic obligation is missing a
requirement for health care professionals to be provided with
information about the workplace and the employee's job (Ex. 32-198).
According to UNITE, which has had first-hand experience with programs
that do not require such information sharing, this omission would
result in ill-conceived recommendations from the health care
professional (Ex. 32-198).
     The basic obligation for the proposed job hazard analysis
and control section omitted requirements that limited the use of
personal protective equipment and mandated that employers provide it at
no cost to employees (Ex. 32-210).
     The proposal's requirements for program evaluation were
inadequate and would allow employers to overlook serious program
deficiencies (see, e.g., Exs. 30-4200, 32-198, 32-210). The unions
believed that, because the rule's evaluation provisions are the primary
means for determining the acceptability of an existing program under
the grandfather clause, these provisions should be revised in the final
rule to prevent employers from inappropriately approving unacceptably
weak programs for grandfather status. (Also see the summary and
explanation for paragraph (u), later in this section of the preamble.)
    The International Brotherhood of Teamsters (IBT) observed that the
proposed standard would consider any new ergonomics program coming into
effect to comply with the standard as deficient if the new program did
not meet one or more of the standard's requirements (Exs. 30-4200, 32-
461). The IBT argued that existing programs should be held to the same
standard:

    Any program grandfathered under this proposal would essentially
be judged by a different set of criteria than a program developed
after the effective date. The grandfathered program would be
considered to be in compliance despite having missing components,
provided that the [proposed] basic obligations as currently defined,
are met. An identical program, that was developed after the
effective date and was not grandfathered would not be considered to
be fully in compliance and would be cited by compliance officers for
each component of the standard that was lacking, despite meeting the
very same basic obligations that the grandfathered program met. This
weakness can not be used as an argument that compliance is too
difficult to determine, but rather must be viewed as an argument
that the grandfathering provision, as it currently stands, has
serious flaws and must be significantly improved such that every
worker is provided the same protections under this standard (Ex. 32-
461).

    At the hearing, OSHA stated that the Agency's intent in the
proposal was to include a grandfather provision that recognized
existing effective ergonomics programs:

    Other requirements of the proposal that OSHA has designed to be
flexible include a grandfather clause that permits employers who
have already implemented an

[[Page 68289]]

Ergonomics Program to continue to operate that program as long as it
meets minimal requirements (Tr. 19).

    It is readily apparent from the rulemaking record that very few, if
any, existing ergonomics programs would be able to fulfill the
requirements of the proposed grandfather clause. Although OSHA drafted
the language in the proposed standard generally and in the grandfather
clause specifically to be flexible, the Agency recognizes that the
grandfather clause, as proposed, was not sufficiently flexible to allow
existing programs that are effective in protecting employees from MSD
hazards to be grandfathered in. On the other hand, OSHA agrees with
many of the union comments, discussed above, that it is important that
the grandfather clause not recognize programs that are ineffective in
protecting employees from MSD hazards. OSHA has structured the final
rule's grandfather clause to strike an appropriate balance between
flexibility, on the one hand, and program effectiveness, on the other.
    In drafting the proposed and final rules, OSHA has relied heavily
on the Agency's experience with effective ergonomics programs that
proactive employers have implemented; in fact, the final rule is
modeled after such programs. OSHA has concluded that it is reasonable
for the Agency to include in the final rule a grandfather clause that
is less prescriptive than the one proposed and is more closely focused
on the effectiveness of existing programs. The Agency has made several
changes to the final rule's grandfather clause to achieve this end.
First, OSHA has streamlined the subelements (called ``basic
obligations'' in the proposed rule) under each core element and has
removed some of the more prescriptive requirements. For example, the
final rule has not carried forward the proposal's provision that
periodic training and program evaluations in grandfathered programs be
conducted at intervals of no more than 3 years. Second, OSHA is
permitting employers to add or strengthen elements of their programs,
provided that they do so, and evaluate the program at least once,
before the effective date of this rule. Third, because so many
commenters with otherwise effective programs reported that their
program would not qualify for grandfather status solely because it did
not have a WRP component, the final rule gives employers a year from
the effective date of the standard to add such protections (which are a
part of MSD management) to their existing programs. Fourth, OSHA has
included, in the final rule, examples of some of the specific measures
that employers may use to demonstrate that their programs are
effective. These changes will enable more employers' programs to
qualify for the grandfather clause but will also ensure that only
effective existing programs are recognized. The changes also shift the
focus from compliance with the rule to effectiveness in preventing
MSDs. Although OSHA believes that having all six elements is vital to
qualify a program for grandfather status, OSHA is not interested in
technical compliance but in real effectiveness.
2. Whether Effectiveness of an Ergonomics Program Is All That Matters
    Many rulemaking participants believed that it would be more
appropriate for the standard to simply accept proven, effective
programs than to require that grandfathered programs also include the
core elements of successful programs (see, e.g., Exs. 30-523, 30-1090,
30-1901, 30-1722, 30-2208, 30-3211, 30-3765, 30-3813, 30-3934, 30-3956;
Tr. 3319, 15657). In their view, effectiveness is the only part of the
program that matters, and therefore any existing program that is
effective should be grandfathered. Doerle Food Services, Inc.,
exemplified many of these comments:

    OSHA has made its position clear, at 64 Fed. Reg. 65791, in
which it states that the agency believes ``enforcement of the
standard will be more consistent and more equitable  * * * if the
test of an employer's program is whether it contains the core
elements, rather than whether it is effective.'' This is, we submit,
an incredible statement, and reflects OSHA's devotion to its
mandated program and ``control'' strategy, as opposed to actual
effective programs. It is this outlook which is at the core of the
``grandfather'' provision, since it does not accord recognition in
any meaningful way to a pre-existing effective program that can be
shown to have minimized the conditions that are at issue. This
portion of the standard clearly needs to be reconsidered and
expanded (Ex. 30-523).

    The Washington Aviation Group gave examples of how an employer's
ergonomics program might be effective without meeting the proposal's
grandfather criteria:

    There are a variety of reasons why a company might experience
few or no ergonomics problems. The business owner may have an
intuitive sense of how to promote comfort among the employees that
has a beneficial effect on ergonomics issues. The nature of the work
might be such that it does not lend itself to repetitive motion
disorders or other ergonomics problems. Management may have
established an effective rapport with the employees that is
sufficiently responsive so that potential problems are generally
resolved in an expedient manner before they represent hazards. While
all of these are approaches that can support safety in an effective
and expedient manner, none of these would represent sufficient
ergonomics programs under the proposal; and that is part of the
problem with the proposal: it discounts systems that work, but that
are not as comprehensive or well-documented as the proposal (Ex. 30-
3849).

    Some rulemaking participants recommended that programs be
grandfathered based solely on one or more measures of effectiveness
(see, e.g., Exs. 30-1901, 30-3211, 30-3344, 30-3348, 30-3361). For
example, Armstrong World, Inc., recommended accepting for grandfather
status programs based on the employer's injury incidence rates:

    Employers should be exempt from any proposed standard based on
their performance in preventing such injuries. We would suggest
using 50% of the employers' industry's respective SIC Code rates for
Total Recordable Cases and Cases With Days Away From Work as a
meaningful measure of accepting existing employer ergonomics
processes as they are (Ex. 30-1901).

    Other rulemaking participants also recommended using injury rates,
either in absolute terms or in terms of showing a reduction, as a
measure of effectiveness and qualification for grandfather status (see,
e.g., Exs. 30-3344, 30-3348, 30-3361). For example, the Exxon Mobil
Production Company suggested that the standard grandfather a program if
the employer's records demonstrate that the program is preventing MSDs
and is managing ergonomic concerns (Ex. 30-2433). John W. Braddock
suggested that employers be permitted to produce evidence that the
existing program was working and that there is an effective early
reporting mechanism in place and to qualify for grandfather status on
this basis (Ex. 30-4301).
    ORC argued that there are a number of ways to measure program
effectiveness, which should be the true gauge of the worthiness of any
ergonomics program (Ex. 30-3813; Tr. 4112). They suggested several
possible ways to measure effectiveness:

    OSHA might place the initial burden of demonstrating
effectiveness of the program on the employer and include in a non-
mandatory appendix a number of types of performance measures and
approaches that OSHA would consider appropriate. OSHA mentions some
in the preamble, e.g., decreases in the numbers or rates of MSDs and
decreases in severity. Other measures might include reduced workers'
compensation claims for MSDs, use by the employer of periodic
symptoms surveys and other indicia of effective early reporting, or

[[Page 68290]]

demonstration that risk factors have been reduced and/or tools and
equipment have been modified. An employer might demonstrate
effectiveness based on periodic program evaluation that measures
effectiveness based on an internal ``score card'' that looks at a
number of appropriate effectiveness measures.
* * * * *
    ORC believes strongly that OSHA should be focusing its attention
on results or performance, not methodology (Ex. 30-3813).

However, even though ORC objected to the proposed grandfather clause's
emphasis on core elements and their basic obligations, they did agree
with OSHA that there is a need to ensure that any demonstration of
effectiveness that relies on numbers or rates of MSDs not mask any
underreporting of MSDs (Exs. 30-3813, 32-78).
    Unisea, Inc. suggested the following language for OSHA to use in
the final rule to recognize existing ergonomics programs based on
effectiveness:

    If a company is able to show by operation redesign with
ergonomics considerations made, or injury records or near-miss
reports that a reduction of reported MSD's has occurred, that
company shall be considered in compliance of the standard and its
intent.
    OR, If a company is able to show a steady overall reduction of
injuries, either by total number or incident rate, that company
shall be considered in compliance of the standard and its intent
(Ex. 500-158).

    Abbott Laboratories argued along similar lines and submitted data
in support of its position. According to a comment in the record,
Abbott Laboratories instituted ergonomics programs at three
laboratories in the late 1980's (Ex. 500-153). Abbott's comment
presented the OSHA-recordable illness rates at those facilities over
the last 9 years. These data are shown in Table 2. Abbott states that
the fall in rates over that period reflected ergonomic improvements
made at each facility and should qualify these establishments for
grandfather status.

      Table 2.--OSHA Recordable Illness Case Rates at Three Abbott
                           Laboratories Plants
------------------------------------------------------------------------
                   Year                      Plant A   Plant B   Plant C
------------------------------------------------------------------------
1999......................................      1.03      1.44      1.46
1998......................................      0.47      1.90      2.87
1997......................................      1.02      1.81      2.50
1996......................................      0.43      1.00      2.30
1995......................................      0.71      3.27      2.74
1994......................................      2.69      3.13      3.47
1993......................................      3.70      4.27      4.51
1992......................................      3.25      2.52      6.68
1991......................................      4.41      4.54     7.06
------------------------------------------------------------------------
Source: Ex. 500-153.

    Another point raised by commenters concerned the proposed
requirement that grandfathered programs must be in place and be judged
effective by the time the standard is effective in order to be
grandfathered. The Departments of Defense and Navy recommended that the
standard provide employers wishing to grandfather their programs in
with sufficient time to conduct a statistically significant evaluation
of the effectiveness of the program even if the evaluation did not take
place until after the effective date (Ex. 30-3818; Tr. 3228). They were
concerned that it would not be possible to perform such an evaluation
before the effective date of the standard, as the proposal required. In
addition, they suggested that the standard clarify what effectiveness
measures or evaluation points OSHA would accept for each program
element in grandfathered programs (Ex. 30-3818; Tr. 3228).
    Other commenters suggested a variety of indicators of program
effectiveness. For example, the American Industrial Hygiene Association
(Ex. 32-133) stressed measures of effectiveness other than injury
rates:

    OSHA needs to be more specific on what constitutes an equivalent
program so that mediocre programs do not pass compliance, but
programs showing improvements will have a reasonable chance to be
considered acceptable. The evaluation of quality of the program
should rely on real evidence of hazards identified and risk
reduction. Specifically, have physical risk factors been reduced and
have ergonomics improvements been made? Indeed, this is the ``bottom
line.'' Other things to look at include whether training has been
done, and if there is a reduction in MSDs and associated workers'
compensation costs (Ex. 32-133).

    Herman Miller, Inc., listed several measures that employers could
use to measure effectiveness: ``Reduction in MSD hazards, MSD severity
rates, lost workdays or benchmarked improvements in employee
satisfaction rates'' [Ex. 30-518]. They suggested leaving the specific
protocol to the discretion of the employer and noted that OSHA
compliance officers would need to be given proper training and tools so
that they could make logical and qualitative assessments of ergonomics
programs and determine whether they were effective enough to qualify
for grandfather status.
    Dennis Morikawa, testifying on behalf of Morgan, Lewis and Bockius,
did not specify a particular measure of effectiveness but recommended
instead that OSHA make the grandfather clause widely available to
employers to encourage as many of them as possible to adopt programs
before the final rule's effective date (Tr. 15657). He argued that this
approach would further OSHA's real goal: The reduction in the number of
MSDs experienced by workers.
    In their post-hearing submission, the U.S. Chamber of Commerce
criticized the proposed grandfather clause's reliance on the proposed
core elements' basic obligations instead of effectiveness:

    The Agency claims that existing programs will be evaluated upon
the existence of the core elements rather than a program's
effectiveness * * * because it will make such evaluation ``less
time-consuming'' and ``administratively simpler'' for both OSHA and
the employers. 64 Fed. Reg. at 65791. Of course, the real reason
that the Agency has chosen to focus on content is that OSHA simply
cannot judge effectiveness and has no idea what it means to be an
effective program. Indeed, in order to qualify under the Grandfather
Clause, an employer's existing program must not only contain the
core elements of the Proposed Rule, but must also be ``functioning
properly.'' And although according to the Preamble ``effectiveness''
is not a measure of whether or not the program is ``functioning
properly,'' 64 Fed. Reg. at 65791, Marthe Kent testified to
precisely the opposite effect:
    And further [proposed 1910.908], which says the evaluation
indicates that the program elements are functioning properly, what
we mean there is [that the elements] are effective. I mean, you
cannot have a program with the elements functioning properly and it
not be effective.
    Tr. at 1-182. Thus, not only can the Agency not determine what
``effectiveness'' means, it also apparently cannot decide whether or
not ``effectiveness'' means the same thing as ``functioning
properly.'' Until the Agency sorts out this conundrum in some
understandable way, there can be no real Grandfather Clause in the
Proposed Rule (Ex. 500-188).

    OSHA did not propose a grandfather clause that relied heavily on
injury rate goals to demonstrate effectiveness because, as the Agency
noted in the proposal (see 64 FR 65980 et seq.), MSDs are currently
substantially underreported, and relying on reported rates would
therefore, in many cases, overstate effectiveness. Some commenters,
however, argued that MSD rates were appropriate for this purpose (see,
e.g., Exs. 30-2989, 30-3845). For example, the Forum for a Responsible
Ergonomics Standard stated:

    If OSHA is concerned with how to measure ``effectiveness,'' it
can prescribe the manner in which effectiveness is to be measured,
such as reductions in the number and severity of MSDs. OSHA
contends, however, that most means of measuring ``effectiveness''
have built-in incentives to discourage reporting. See id. This
contention ignores the fact that companies are subject to regulatory
requirements in the proposed rule, backed up by OSHA fines and
penalties, to facilitate employee reporting (Ex. 30-3845).


[[Page 68291]]


    A. O. Smith Corporation commented that, in its experience, few
employers discourage reporting of workplace injuries:

    The provisions in the standard that allude to the employer
having programs in place that discourage the reporting of MSD
injuries tends to suggest that entire safety and health awareness
and accident prevention programs would be construed as disincentives
to reporting. We do not accept this premise and find that most
employers work hard at making sure their employees are provided a
safe work environment and a mechanism to report injuries should they
occur (Ex. 30-2989).

    Other rulemaking participants agreed with the approach taken in
OSHA's proposal and opposed basing the grandfather clause solely on a
measure of the reduction in the number of MSDs in a workplace (see,
e.g., Exs. 30-2387, 32-339, 500-207). For example, the AFL-CIO stated
that the elements that OSHA included in the proposal's grandfather
clause are widely recognized as the basic elements of an effective
program (Ex. 32-339). The International Brotherhood of Teamsters argued
that, to be grandfathered, an existing program needed to be
comprehensive and to provide workers and their representatives with
full information and rights of participation in addition to being
effective in reducing the number of MSDs (Ex. 500-207).
    In response to these comments, OSHA finds that the record evidence
demonstrates that the Agency should emphasize the effectiveness of
grandfathered programs much more in the final rule than it did in the
proposal. Record evidence also demonstrates that the core elements are
essential to effectiveness (see the discussion of the core elements
below). If a program is not demonstrably effective in protecting
employees from MSD hazards, OSHA believes that such a program should
not qualify for grandfather status and should instead have to comply
with all the requirements of the final rule. On the other hand, if an
existing ergonomics program has the core elements and is truly
effective in protecting employees, it merits grandfather status. The
central question then becomes how to measure effectiveness; if
effectiveness measures are not carefully chosen, ineffective programs
will be grandfathered in and the employees in the establishments
covered by such ineffective programs will be inadequately protected.
    One widely used method of measuring effectiveness is the tracking
of MSD incidence and severity rates. However, MSD incidence and
severity rates can be misleading if efforts are not made to ensure that
the rates reported are accurate and that the use of such rates is
appropriate for the workplace. Some of the problems with various
objective measures of effectiveness are described below.
    (a) Incidence rates are dependent on accurate reporting. An
employer's recordkeeping system must accurately count work-related MSDs
if incidence rates are to be a meaningful index of effectiveness. An
employer whose employees are reluctant to report, or one who does not
record all MSDs, will appear to have a lower incidence rate than a
comparable employer with an accurate recordkeeping system, and the
incidence rate in the first employer's establishment will bear no
relationship to program effectiveness. There are many reasons why MSDs
are underreported (see the discussion of this issue in the summary and
explanation for MSD management). If there are disincentives to
reporting, employees may not report all MSDs. If an employee is not
well informed about MSD signs and symptoms, he or she probably will not
realize that the signs and symptoms of an MSD are work-related and will
fail to report them. Employees also fail to report MSDs in some cases
because they do not want to submit a claim to the workers' compensation
system. Thus, incidence rates must be used with care.
    (b) Severity rates are dependent on consistency in return-to-work
policies. Severity rates are typically measured in terms of days away
from work or days on restricted duty. Changes in how employers treat
injured workers can affect severity rates. For example, if an employer
who has traditionally measured severity in terms of lost workdays
institutes a new policy of placing employees with MSDs on restricted
duty rather than removing the employee from work, the number of days
away from work will decrease. Thus, severity rates must also be used
carefully to ensure that they are not reflecting a change in the
employer's MSD management process rather than a true decrease in MSD
severity.
    (c) The randomness inherent in injury and illness statistics may
make incidence rates an unreliable indicator of effectiveness. Injuries
and illnesses are events that occur based on probability. In other
words, hazards do not automatically lead to injuries or illnesses; the
presence of hazards simply increases the probability that an injury or
illness will occur. Just as a coin flipped 10 times will not
automatically land heads up 5 times, a workplace with an average MSD
incidence rate of 19.3 per 1000 employees \3\ will experience an MSD
incidence rate that varies about that number from year to year. If
employee exposure to MSD hazards at this workplace remains relatively
constant, the actual incidence rate in any one year (assuming that the
number of employees and other factors also remain constant) will
probably be reasonably close to that value. In one year, for example,
17 of the 1000 employees could suffer an MSD, while in the next year,
21 might be injured. This variability can be seen in the Abbott
Laboratories data in Table 2, especially in the last 5 years, after the
program had matured.
---------------------------------------------------------------------------

    \3\ This is the overall MSD incidence rate for SIC 283.
---------------------------------------------------------------------------

    Variability is even more pronounced in a workplace with few
employees. If the employer in the earlier example had 10 full-time
employees and the same overall average MSD incidence rate, the
establishment could be expected to have 0, 1, or 2 MSDs in a given
year.\4\ The corresponding incidence rates per 1000 employees, however,
would be 0, 100, and 200. If incidence rates alone were used as the
measure of effectiveness at such a facility, the program would be rated
very effective in one year and in need of major correction in the other
years.
---------------------------------------------------------------------------

    \4\ It would take 100 years for this firm to have 1000 employee-
years of experience. If the employer had an incidence rate of 17
MSDs per 1000 full-time employees, the employer would see 17
incidents over 100 years. Over that period, in most years, no MSDs
would occur. In other years, one or maybe two MSDs would occur.
---------------------------------------------------------------------------

    In the context of the grandfather clause, this year-to-year
variability poses problems for OSHA and for employers. If the final
rule were to identify a specific rate as the sole criterion for
grandfathering existing programs, then an employer whose program was
acceptable one year might be unacceptable the next simply as a result
of this variability. For example, suppose that the final rule selected
1.45 as the maximum acceptable incidence rate for a grandfathered
program. Abbott Laboratories Plant A (from Table 2) would have had an
acceptable program in terms of grandfathering since 1995 (Ex. 500-153).
Abbott's Plant C program (from Table 2) would never have met the
incidence rate limit in this period and would therefore have had to
comply with the ergonomics standard. Abbott's Plant B (from Table 2)
could have had its program grandfathered in 1996 and 1999, but would
have had to comply with the standard in 1997 and 1998. From this
example, it can be seen that some employers' programs, after initially
qualifying for the grandfather

[[Page 68292]]

clause, would subsequently be required to comply with the ergonomics
standard in at least some years.\5\ This ``sometimes in and sometimes
out'' phenomenon is not what OSHA or employers with existing ergonomics
programs want from a grandfather clause.
---------------------------------------------------------------------------

    \5\ Using a rolling average incidence rate would help smooth
out, but would not eliminate the year-to-year variability.
---------------------------------------------------------------------------

    Alternatively, the final rule could mandate that, to be
grandfathered, the employer's MSD incidence rates had to decrease over
time, as suggested by some rulemaking participants (see, for example,
the comments of Unisea, Inc., Ex. 500-158, above). Again, the Abbott
Laboratories data in Table 2 show that this approach would also be
problematic (Ex. 500-153). All three of Abbott Laboratories' plants
experienced increasing rates in some years in the period reported.
Although the overall trend over the full 9-year period is downward for
all of the Abbott plants, this is not the case for all time periods.
For example, Plant C's incidence rates went up over the 4-year period
from 1995 to 1998 (see Table 2). In fact, OSHA's experience is that, as
an employer's ergonomics program matures, incidence rates begin to
level off, albeit at a much lower rate than before the program was
established (see Chapter IV of the Economic Analysis).
    Other ``objective'' measures of effectiveness recommended by
rulemaking participants (see e.g., Ex. 30-3813; Tr. 4112) pose similar
problems. Decreases in the rate of workers' compensation claims have
the same problems as incidence rates when they are used as
effectiveness measures. Symptom surveys, although valuable as an early
reporting tool, vary from one workplace to another and therefore cannot
be used for different sites. Reductions in employee exposure to MSD
hazards is a good measure of whether an ergonomics program is working
but, OSHA has no benchmark that adequately describes the performance of
an effective program. Without a benchmark, reductions in employee
exposure to MSD hazards cannot be used as the sole criterion for
grandfathering programs at different sites.
    In addition, OSHA has concluded that the core elements (management
leadership and employee participation, hazard identification and
assessment, hazard prevention and control, MSD management, training,
and evaluation) are essential to a properly functioning ergonomics
program. These elements are included in the safety and health programs
recommended or used by many different organizations (the ergonomics
standard uses slightly different terminology for some of these
elements):
     OSHA's VPP, SHARP, and consultation programs;
     The safety and health programs mandated by 18 states;
     The safety and health programs recommended by insurance
companies for their insureds (many of which give premium discounts for
companies that implement these programs or impose surcharges on those
that do not);
     The safety and health programs recommended by the National
Federation of Independent Business, the Synthetic Organic Chemical
Manufacturers Association, the Chemical Manufacturers Association, the
American Society of Safety Engineers, and many others;
     The strong recommendations of OSHA's Advisory Committees
(NACOSH, ACCSH, and MACOSH), which consider these program elements
essential to effective worker protection programs.
    OSHA also is including WRP, or equivalent protections against wage
loss, as a requirement for all programs (both those that are
grandfathered and those complying with the standard) because, without
it, OSHA believes that many employees will be reluctant to report their
MSDs because they fear economic loss. There is strong evidence that
such underreporting is currently taking place, as well as evidence that
protecting workers from wage loss increases reporting (see the
discussion of underreporting in the summary and explanation for MSD
management). OSHA's purpose in including a WRP provision, both in the
grandfather clause and in the standard, is to ensure employee
participation and free and full reporting of MSDs and MSD hazards.
Effective ergonomics programs depend on such reporting, and the
standard also depends on employee reporting for its effectiveness.
Absent such reporting, no ergonomics program will achieve its worker
protection goals.
    For these reasons, OSHA has concluded that quantitative
effectiveness measures alone cannot be the sole basis for judging
whether an employer's program should be grandfathered. The Agency's
experience over the last two decades, and that of private industry and
insurance companies, is that safety and health programs, and ergonomics
programs, containing the core elements are effective in lowering injury
and illness rates. These programs work because they involve everyone in
the organization in finding and fixing hazards. They also establish
two-way communication in the form of reporting and response systems.
OSHA finds that the core elements are essential to effective ergonomics
programs, and the record provides ample evidence of this (see the
discussion below on whether the core elements are necessary). Employee
participation, for example, is a prominent component of the programs of
many leading companies (see, e.g., Exs. 32-77, 32-185, 32-210; Tr.
4973, Tr. 5339). The core elements also help to ensure that employees
are reporting their MSDs, that management is responding to these
reports, that jobs are being analyzed and fixed, and that the program
is functioning as it should. The core elements thus help to ensure that
programs are not focusing too heavily on quantitative measures of
effectiveness, which, as the discussion above shows, are often
misleading.
    OSHA agrees, however, that effectiveness measures can be useful in
determining the degree to which an ergonomics program is working.
Employers and authors of effectiveness studies routinely rely on them
as evidence that an ergonomics program is having a positive effect. Of
the measures available, incidence and severity rates are most commonly
used and were most often recommended in the rulemaking record (see,
e.g., Exs. 30-1901, 30-2208, 30-3344, 30-3348, 30-3361). If one of
these measures is used, the employer must take care to ensure that the
calculated incidence or severity rate accurately reflects conditions at
the workplace. First, the effectiveness measure chosen must be
appropriate for the size and nature of the workforce and the employer's
MSD experience. For example, as explained earlier, an employer with few
employees will not find incidence rates useful to measure
effectiveness. Instead, such employers could examine whether employee
exposure to MSD hazards has been reduced. Second, the employer must
check to ensure that some MSDs are not going unreported. If employees
are failing to report MSDs, the employer's calculated incidence and
severity rates will not accurately reflect the injury experience at the
workplace. Third, the employer should check rates over a variety of
periods to ensure an overall downward trend in the data. Looking at
data over a single period can be misleading.
    OSHA finds, based on the evidence in the record as a whole, that
reliance on both qualitative (the core elements) and quantitative
(effectiveness measures) components will best assure that any program
that is grandfathered deserves this status and will continue to operate

[[Page 68293]]

effectively in the future. Consequently, the final rule's grandfather
clause requires that grandfathered programs contain the core elements
of effective ergonomics and be demonstrably effective. Employers may
use any of a broad range of measures, including reductions in the
number or severity of MSDs, increases in the number of jobs in which
ergonomic hazards have been controlled, reductions in the number of
jobs posing MSD hazards to employees, or any other measure that
demonstrates program effectiveness to meet the grandfather clause's
requirement for a demonstration of program effectiveness.
3. Whether the Core Elements Are Necessary
    Some industry representatives objected to the proposed requirement
that grandfathered programs contain all the core elements of the
proposed standard (see, e.g., Exs. 30-1722, 30-3853, 30-3956; Tr.
5699). They argued that any program that was effective in reducing MSD
rates should be accepted for grandfather status, even if it did not
include all the core elements.
    For example, the Washington Legal Foundation was particularly
concerned that employee participation was proposed as a required
component of grandfathered programs and of the program required by the
standard (Tr. 11265). They argued against mandatory employee
participation:

    OSHA's proposed ergonomic standard perhaps more so than any
other standard mandates full employee involvement in every aspect of
its requirements.
    In many ways, the proposed standard places employees in the
driver's seat.
    Certainly many companies have determined that a [cooperative]
relationship with their employees is beneficial on both a safety and
a production level.
    Other companies, however, have reached a different conclusion.
And certainly, the conclusion to be reached may differ depending on
the type of work involved, the size of the company, the
characteristics of the work force, and other factors.
    The Washington Legal Foundation does not believe that it is its
place to determine that some of these [employers] are right and
others are wrong nor is it the place of the federal government to
mandate a specific mode of employer/employee relations (Tr. 11265).

    On the other hand, some union representatives argued strongly in
favor of the core elements (see, e.g., Exs. 32-210, 32-461, 500-218).
The International Brotherhood of Teamsters noted that they had worked
with various employers through the collective bargaining process to
address ergonomic hazards and that some employers' programs took a
piecemeal rather than comprehensive approach to the problem and should
therefore not be granted grandfather status (Exs. 30-4200, 32-461). The
UFCW argued that the proposed core elements are recognized as the basic
elements of a good ergonomics program (Ex. 32-210). They presented
their experience with successful ergonomics programs as follows:

    The six elements OSHA is proposing in the ergonomics program
standard are included in all successful company programs! Further,
the experience of the myriad of companies who have successfully
tackled the problem through these elements attests to the
feasibility of the methods. The settlement agreements OSHA has
entered into with IBP, Sara Lee, Cargill, ConAgra Poultry, John
Morrell & Co., Empire Kosher, Marshall Durbin Companies, National
Beef, Worthington Packing and Tyson Foods contain these six
elements--all work, and all are feasible. Many of the companies used
ergonomists, they analyzed the jobs and developed engineering
solutions to address the most egregious jobs. They developed medical
protocols so that workers can get to treatment early rather than
waiting until they were crippled and needed surgery. They protect
workers wages and benefits when they report MSDs. And in our
represented companies, all this included the union in a fundamental
way. In order to be effective, ergonomics programs by their very
nature must be participatory and include workers at many levels,
including those that do the problem jobs (Ex. 32-210).

    Mr. Bawan Saravana-Bawan, a representative from the Canadian
province of British Columbia, described how that province handled
existing programs when its ergonomics standard came into effect (Tr.
14260). He stated that existing programs needed to incorporate any
missing elements in order to be accepted. On the basis of his
experience, he stated that any ergonomics program needed to have all
the core elements (management leadership and employee participation,
information dissemination, hazard identification, hazard assessment and
control, training, and program evaluation) to be successful.
    The Department of Defense (DoD) also argued that the program
elements are essential. The DoD noted that the success of their program
is due to the elements of the program, including, in particular,
management leadership, employee participation, hazard prevention and
control, and monitoring injury records and responding to potential
problem areas (Ex. 30-3826).
    OSHA has concluded that it is essential for ergonomics programs,
whether grandfathered or not, to address all of the core elements:
Management leadership and employee participation, hazard information
and reporting, job hazard analysis and control, training, MSD
management, and program evaluation. (The Agency has presented evidence
supporting each of these core elements in the summary and explanation
for the corresponding provisions of the standard, below.) Further, the
Agency finds that it is as important for a grandfathered program to
include all of the core elements as it is for a program brought into
existence to comply with the final rule to include these elements.
Although some commenters, as discussed above, argued that a program
could be effective without all of the core elements, OSHA finds their
arguments unpersuasive, based both on the record and the Agency's own
experience with successful programs.
    The Agency believes that the core elements provide assurance that
the program will work as intended--management leadership will ensure
that the program has the continued backing of management, which is
essential to continued success; employee participation in the program
will help ensure that ergonomic hazards do not go undetected; hazard
information and reporting will ensure that employees are informed about
MSD symptoms and how to report them so that work-related MSDs are not
ignored; work restriction protection helps to ensure that workers
report signs and symptoms as early as possible; job hazard analysis and
control are needed to ensure that ergonomic hazards are found and
abated; MSD management is necessary so that MSDs are managed
appropriately and injured employees get well as soon as possible; and
program evaluation is necessary for the correction of deficiencies in
the program. Without the checks and balances the core elements provide,
OSHA believes that ineffective programs may be judged effective on the
basis of an inappropriate measure, and once-successful ergonomics
programs could deteriorate over time and leave employees unprotected.
    Some rulemaking participants agreed that grandfathered programs
should include the core elements but argued that compliance with the
proposed basic obligation sections for each core element was not
essential to having an effective program (see, e.g., Exs. 30-1294, 30-
3813, 30-3723, 30-3765). These commenters believe that many employers
have effective programs that would not be recognized by the proposed
standard because they would not meet the proposed basic obligation
sections. ORC reflected the thrust of these comments as follows:


[[Page 68294]]


    Equally important, contrary to OSHA's contention in the
preamble, the ability of an employer to continue applying an
existing program should not be based on whether the ``basic
obligation section of each program element in this standard'' is
satisfied. OSHA has provided no objective evidence that the
requirements of the proposed standard will be any more effective
than other programs already in place. There is certainly no basis
for compelling an employer to rework an effective program to force
it to meet the specifics even of the proposed basic obligations (Ex.
30-3813).

    Dow, ORC, and others suggested that OSHA simply require
grandfathered programs to address the six basic elements of the program
instead of requiring them to meet the proposal's full basic obligation
for each core element (see, e.g., Exs. 30-2134, 30-2725, 30-3171, 30-
3765, 30-3813, 32-77). ORC noted that the proposed work restriction
protection requirements were particularly troublesome, since
``[v]irtually none of ORC's member companies, whose ergonomics programs
are among the most sophisticated and effective in the country, would
meet this requirement * * *'' (Ex. 30-3813). Dow was concerned that the
language in the proposal would not recognize their program, which is
tailored to fit their management structure. They stated:

    The so-called Grandfather clause that OSHA has proposed is so
demanding in its requirements that companies that have existing and
successful ergonomics programs, such as Dow, will not be able to
take advantage of this provision to maintain their current programs.
The Grandfather clause is so limited that already functioning and
successful programs, tailored to the needs of a particular company,
business or workplace, will not be able to satisfy the requirement.
For example, in Dow's case, we would not be able to satisfy the
extensive recordkeeping requirements or elements of the WRP section
(since it goes beyond that required by Workers' Compensation laws.)
Similarly, given Dow's management structure, we would not satisfy
OSHA's communication and training requirements wherein they intend a
more archaic management structure, such as one having
``supervisors'' and the like, than what Dow utilizes. So even though
Dow has had a successful ergonomics program for years and has a
lower than average MSD incidence rate, we would have to scrap our
efforts and use a program which will not fit our needs or management
structure, just to comply with this standard. Dow believes this is
unacceptable.
    Instead, Dow urges OSHA to delete the proposed Grandfather
clause and replace it with a provision that allows for an
``acceptable'' or ``appropriate equivalent'' program. Such a concept
is not foreign to OSHA or the regulated community as other OSHA
standards, such as the Process Safety Management (``PSM'') standard,
utilize this concept so that companies that have existing programs
that are functioning successfully can continue to use them. This
concept also allows companies who may not yet have an existing
program to create one tailored to their own needs, rather than use a
more ``one size fits all'' program as envisioned by this proposal.
``Acceptable (or appropriate) Equivalence'' would include those
programs who have the basic elements of a program, but not all the
mandated details or documentation. Such a concept embodies
``performance-oriented mandates'' at their best as they allow an
employer to employ those methods of prevention that best meets the
needs of its particular workforce and/or workplace. OSHA should only
be concerned with the results (i.e. lower injury rates) rather than
the methodology a particular employer used to obtain that goal (Ex.
30-3765).

    At the hearing and in their notice of intention to appear at the
public hearing, Dow described their ergonomics program and detailed how
they believe their program would fall short of the proposal's
requirements (Ex. 32-77; Tr. 5339). Dow expressed concern that,
although their program meets the spirit of the proposed standard, it
would not meet the letter of the law.
    In response to Dow's concern, OSHA reviewed the perceived
discrepancies between the proposed rule and Dow's description of their
program. In every respect except one, Dow's program would have
satisfied the proposed grandfather clause; the discrepancies Dow was
concerned about were apparently the result of misinterpretation rather
than deficiencies on the part of Dow's program. For example, Dow stated
that, in its program, employees report MSDs using the company's
existing injury and illness reporting system rather than a separate
system set up just for MSDs; Dow evidently believed that a separate
system would have been required by the proposal (Ex. 32-77; Tr. 5340).
However, the proposed standard would not have required employers to set
up a separate system for reporting MSDs as long as their existing
system included a system for the reporting of MSDs. On the other hand,
Dow was correct in stating that their program did not include the
proposed work restriction protection provisions and would therefore not
have been eligible for grandfather status under the proposed rule.
    In its post-hearing submission, Edison Electric Institute argued
that the specificity of the proposal's basic obligations is counter to
the goal of flexibility, and the Institute recommended that the final
rule reduce the detail in the basic obligation sections to allow
employers greater latitude (Ex. 500-33).
    The Mead Corporation suggested that, if the Agency's safety and
health program rule was not promulgated before the ergonomics rule,
OSHA should alter the grandfather clause in the ergonomics rule in one
of two ways: (1) Make the basic obligations less prescriptive and
detail acceptable alternatives for prevention-oriented programs, or (2)
permit employers with effective programs to maintain them without
making sweeping changes (Ex. 30-2216).
    On the other hand, the AFL-CIO argued that the standard should
require employers to meet the proposed basic obligations for each core
element before being grandfathered in (Ex. 32-339; Tr. 3477). The AFL-
CIO pointed out, however, that the basic obligation sections for
several of the proposed core elements left out important requirements
that were included under the core elements:

    The AFL-CIO believes that employers with existing programs
should be permitted to continue with these programs if they are
comprehensive, provide workers and their representatives full
information and rights of participation, and are effectively
reducing MSDs and exposure to hazards. However, as proposed, the
``grandfather'' provisions are deficient in a number of respects and
will permit employers to continue programs that do not provide
adequate protection.
    First, the [proposed] basic obligation requirements which all
programs must meet, exclude a number of elements that in our view
are essential for an effective program. For example:
     The [proposed] basic obligation section for Hazard
Information and Reporting * * * does not [include] any requirement
to provide employees information about MSD hazards.
     The [proposed] basic obligation on training * * *
excludes any requirement for training supervisors or individuals
responsible for the ergonomics program, thus permitting programs to
be ``grandfathered'' even if persons responsible for the program do
not have the necessary training. The basic obligation for training
also fails to provide for job specific training on MSD hazards and
control measures.
     The [proposed] basic obligation for Medical Management
* * * does not require that medical evaluations be conducted by a
health care provider.
     The [proposed] basic obligation for Program Evaluation
* * * does not require consultation with employees in problem jobs
or their designated representatives to determine their views on the
effectiveness of the program (Ex. 32-339).

    As noted earlier, other rulemaking participants also urged OSHA to
strengthen the proposed basic obligations sections (see, e.g., Exs. 30-
4200, 32-198, 32-210, 32-461). These commenters criticized the proposed
rule's lack of basic obligation

[[Page 68295]]

requirements for the training of managers and for employee
participation in job hazard analysis and control. UNITE decried the
omission from the proposal of a requirement for the health care
provider to be furnished with information about the workplace and the
employee's job (Ex. 32-198). Another commenter objected to the omission
from the proposal of requirements that limited the use of personal
protective equipment and required employers to provide it at no cost to
employees (Ex. 32-210).
    Another group of commenters were particularly concerned about the
fact that the proposal would not have permitted their otherwise
excellent programs from being grandfathered because they did not have
work restriction protections now (see, e.g., Ex. 30-3723, 30-3765, 30-
3813). SBC Communications, Inc., represented those who opposed the
proposed grandfather clause's requirement for work restriction
protection:

    In order to meet the grandfather clause, a company must have a
``functioning properly'' Wage Protection Program. Through our
extensive research and benchmarking, no company has this element to
their ergonomics program. Nor did OSHA provide any evidence of the
Wage Protection Program being trialed, researched, and/or tested at
a company. OSHA has made it nearly impossible for any company to
meet the requirements of the grandfather clause (Ex. 30-3723).

    On the other hand, the AFL-CIO noted that the hearing testimony
demonstrates that some employers do currently provide wage protection
for employees who suffer MSDs:

    The hearing record shows that some employers indeed are
maintaining the full wages of workers who are put on medical
restrictions as a result of MSDs (Tr. 16014, Tr. 14357) (Ex. 500-
218).

    The General Electric Company argued that employers who have
employee involvement and an environment free of barriers to reporting
should not be required to follow the rule's requirements for WRP (Ex.
30-1071). Novartis Corporation went further, suggesting that the entire
MSD management element be removed from the standard (Ex. 30-3092). They
also recommended that compliance with the endpoint provisions not be a
condition for grandfathering existing programs.
    The AFL-CIO recommended that OSHA permit existing programs without
work restriction protection to be grandfathered as long as the employer
incorporates such protections into the ergonomics program before the
effective date of the standard (Ex. 500-218). They believed that this
would help alleviate the concerns of employers whose programs were
missing only that one element.
    Although the AFL-CIO provided evidence that some employers do
provide wage protection for their employees, OSHA believes, based on
the record, that very few employers' existing ergonomics programs
incorporate work restriction protection in the form required by the
proposed standard. Despite the fact that many employers have policies
(such as sick leave, short-term disability, and so on) that assure
employees that they will not experience economic loss if they are
injured, the record of this rulemaking indicates that many workers fear
they will lose wages and benefits if they report their injuries (see
the detailed discussion of the record in the summary and explanation
for paragraph (r) below). The Agency therefore concludes that
grandfathered programs must protect against such loss if they are to
achieve the early reporting that is essential to program success.
Consequently, in paragraph (c)(2) of the final rule, OSHA is allowing
existing ergonomics programs that otherwise meet the criteria of the
grandfather clause up to an additional 12 months to adopt an MSD
management policy, including work restriction protection. The MSD
management policy must meet paragraphs (p) through (s) of the final
rule. The MSD management requirements in the final rule contain many
inter-related provisions that are key to a successful ergonomics
program. (See the summary and explanation for paragraphs (p) through
(s) of the final rule.) The Agency has concluded that, because of the
many interdependencies in final rule paragraphs (p) through (s),
employers need to follow all of the detailed requirements of those
paragraphs. However, to ensure that existing programs will still be
able to qualify for grandfather status even if they do not meet the
final rule's MSD management requirements, OSHA is allowing employers up
to a year to meet those provisions.
    Based on a review of the evidence in the record, OSHA has concluded
that the proposed standard's basic obligation requirements failed to
provide employers with effective existing programs sufficient
flexibility with regard to grandfather status. Accordingly, in
paragraph (c)(1) of the final rule, OSHA has not carried forward the
proposed requirement that employers' programs satisfy the basic
obligation of each element and instead requires that those programs
simply contain the core elements and certain subelements, which the
Agency has pared to the minimum necessary to ensure the continued
effectiveness of grandfathered programs. In particular, OSHA has
streamlined and made more flexible the provisions that rulemaking
participants claimed were most problematic such as the employee
participation and WRP provisions. OSHA also has placed the required
subelements in the text of the grandfather clause itself rather than in
the basic obligations sections for each of the core elements, as
proposed. OSHA believes that these changes will make the core elements
that grandfathered programs must currently have as flexible as possible
while still ensuring that the basic components that make each core
element effective are present.
    In addition to considering the comments of industry representatives
objecting to the core elements and their subelements, OSHA has reviewed
the list of subelements that several labor organizations believed were
essential to determine whether they should be included in the final
rule's grandfather clause requirements (Exs. 32-198, 32-339; Tr. 3477).
The Agency has included several improvements in the final rule's
grandfather clause as a result of this review. First, the grandfather
clause's training element now contains a requirement that employees be
trained in MSD risk factors (see paragraph (c)(1)(iv)). This provision
ensures that employees will be informed of MSD hazards in their
workplace. Second, OSHA has added a requirement for the training of
managers and supervisors to this core element. Third, OSHA has included
language specifically requiring employees to be involved in program
evaluation to the core element for employee participation (see
paragraph (c)(1)(ii)). These additions will help ensure that
ineffective programs are not accepted under the grandfather clause.
    The remaining suggestions from these commenters, such as UNITE's
recommendation to include a requirement for the health care provider to
be furnished with information about the workplace and the employee's
job (Ex. 32-198), have been accommodated by paragraph (c)(2) of the
final rule. Existing programs need not currently have MSD management as
a core element in order to qualify for grandfather status. However,
grandfathered programs will need to add an MSD management element
meeting paragraphs (p) through (s) within 1 year after the final
standard's effective date. Thus, grandfathered programs will have to
meet the same MSD management requirements as programs that are not
grandfathered.

[[Page 68296]]

4. Whether the Language of the Grandfather Clause Is Vague
    Some rulemaking participants argued that the language in the
proposed grandfather clause was vague (see, e.g., Exs. 30-494, 30-2208,
30-3922, 30-4467; Tr. 16470). They thought that this language would
make it difficult for an employer to determine if he or she qualified
under the grandfather clause. For example, Dennis Morikawa of Morgan,
Lewis, and Bockius stated:

    These vague requirements do not inform employers which ergonomic
programs OSHA would accept. Specifically, OSHA does not explain what
a ``basic obligation'' is; nor does the Proposed Rule specify the
level of detail employers must achieve when they attempt to comply
with a basic obligation. Moreover, the grandfather clause does not
make clear whether an effective, existing program without a single-
incident trigger would be acceptable. For example, if programs that
satisfy the CAL/OSHA standard discussed above would be accepted
under the grandfather clause, then most companies would seek to
design and install ergonomics programs before the effective date of
the new Proposed Rule. But if a two-incident trigger would not
satisfy a ``basic obligation,'' employers would be forced to re-
design existing programs in order to meet the Proposed Rule, thereby
creating a double standard of compliance. This, of course, would
effectively eviscerate the notion of a grandfather clause. OSHA
needs to specify which aspects of the Proposed Rule would be
considered basic obligations, and the amount of attention to detail
that employers must pay when adhering to these basic obligations.
Without an assurance from the agency that an adherence to basic
obligations would not require major overhauls of effective programs,
the grandfather clause is illusory (Ex. 30-4467, p. 13).

    Some rulemaking participants stated that the vagueness of the
grandfather clause would force employers to refer to the more detailed
provisions of the standard to understand their compliance obligations
(see, e.g., Exs. 30-494, 30-4340). They argued that the effect of this
vagueness would be that employers would be forced to comply with the
entire standard, which would render the grandfather clause useless.
    Even some of those who supported OSHA's proposal in general agreed
that the proposed grandfather clause was vague (see, e.g., Exs. 30-
4538, 32-210). Thes 30-
4538, 32-210). These rulemaking participants and others urged the
Agency to provide compliance assistance material, such as flowcharts,
checklists, and other tools, to help employers determine whether their
programs qualified under the grandfather clause (see, e.g., Exs. 30-
4538, 32-210, 32-339, 500-207). For example, the International
Brotherhood of Teamsters stated:

    [W]e strongly urge OSHA to provide checklists and evaluation
tools to assist employers with the evaluation of their programs.
Employers who want to take advantage of the ``grandfather''
provisions should be required to use a checklist based on objective
criteria to demonstrate that their program is effectively reducing
exposures to ergonomic risk factors, reducing the incidence and
severity of musculoskeletal disorders, and complies with the
standard's basic obligations. These materials are currently used by
many ergonomics programs and could be made available by OSHA through
its website (Ex. 500-207).

OSHA believes that the grandfather clause in the final standard is
clear. For example, the training element requires the training of
managers, supervisors, and employees in: (1) The employer's ergonomics
program and their role in it; (2) the recognition of MSD signs and
symptoms; (3) the importance of early reporting; (4) the identification
of MSD risk factors and methods that may be used to abate them; and (5)
the risk factors in problem jobs in the workplace and methods of
controlling them. To provide employers flexibility, the standard does
not address the details of how that training is provided, but it is
clear about the topics the training must cover.
    Other elements provide clear direction about how an employer is to
demonstrate compliance. For example, the employer must evaluate the
program, as demonstrated by regular reviews of the elements of the
program, the effectiveness of the program as a whole, and the
correction of identified deficiencies. Again, this language provides
clear criteria that employers' evaluations must meet in order to be
grandfathered in.
    There are two aspects to Mr. Morikawa's comments (Ex. 30-4467)
about the acceptability for grandfather clause status of programs
meeting the California standard's two-incident trigger. The first
relates to Federal OSHA's acceptance of the California ergonomics rule
under the Act's provisions for ensuring that state standards developed
by the State Plan States are as effective as the Federal standard. OSHA
will, after it promulgates this final ergonomics program standard,
evaluate the ergonomic standards developed by State Plan States (such
as California and Washington) to determine whether they are ``as
effective as'' the Federal standard. OSHA clearly could not have made
such a determination at the time of the proposal, as Mr. Morikawa
suggests, because the form and content of the final OSHA rule could not
be known at that time. However, OSHA is unlikely to find any standard
that delays protection to employees, including those in small firms, or
that provides less protection to employees overall, as effective as the
final rule.
    The second relates to the details of grandfathered programs.
Paragraph (c) of the final rule does not attempt to dictate precisely
what form a grandfathered program must have, beyond stating that it
must have the core elements of successful programs, be demonstrably
effective, and be evaluated and in place by the final rule's effective
date. OSHA has not mandated such program specifics because
grandfathered programs will take many different forms, be at many
different stages of development, and be taking various approaches to
achieving success. The grandfather clause thus insists on the
fundamentals but leaves the specifics to employers.
    The final standard also requires the employer to demonstrate that
an existing program is effective before that program qualifies under
the grandfather clause (see paragraph (c)(1)(v)). The employer is free
to use one of the measures specified in the standard itself (that is,
reductions in the number or severity of MSDs, increases in the number
of jobs in which ergonomic hazards have been controlled, reductions in
the number of jobs posing MSD hazards to employees) or any other valid
measure that the employer chooses to evaluate the program and
demonstrate effectiveness. The Agency currently provides some
compliance assistance materials that include ways to measure the
effectiveness of ergonomic interventions. For example, the ``Ergonomic
Program Management Guidelines for Meatpacking Plants'' (Ex. 2-13)
provides a method for monitoring trends in cumulative trauma disorders
that may be used for this purpose. OSHA's 1989 Voluntary Safety and
Health Program Management Guidelines (Ex. 2-12) also describe effective
program evaluations. These documents are available on OSHA's Website
(http://www.osha.gov). OSHA also intends, as resources permit, to
provide additional compliance assistance materials that will help
employers determine whether or not their programs are effectively
addressing MSDs.
    In sum, OSHA believes that the final grandfather clause provides
sufficient information for employers to determine if their programs
qualify for the grandfather clause. OSHA compliance officers also will
be able to assess whether the employer's program qualifies for
grandfather status. OSHA will include directions on how this is to be
done in a compliance directive to be

[[Page 68297]]

issued soon after promulgation of the final rule.
5. Alternatives and Revisions to the Grandfather Clause
    Several rulemaking participants suggested approaches that would
permit alternative programs developed after the standard is in effect
to be followed by employers in lieu of compliance with the standard
(see, e.g., Exs. 30-2216, 30-3765; 30-3813, 32-339, 500-44; Tr. 3477).
Many of these commenters argued that their recommendations would
address the previously discussed concerns with the proposed rule's
grandfather clause--concerns such as the perceived illusory nature,
vagueness, and subjectivity of the proposed grandfather clause. The
alternatives or revisions to the proposed grandfather clause suggested
by these commenters included:
     Revising the clause to allow programs that are incomplete
at the time of the effective date to be grandfathered (see, e.g., Ex.
30-3813; Tr. 4111);
     Revising the clause to make clear that a company whose
program had been grandfathered could extend that program (and
grandfather status) to establishments newly built or owned, or acquired
through mergers or acquisitions (see, e.g., Exs. 30-3813, 30-3922, 32-
78; Tr. 5538);
     Revising the clause to allow any program developed by an
employer at any time, including after the standard has become
effective, to be implemented without fear of citation for noncompliance
with the OSHA standard (see, e.g., 30-429, 30-1090; Tr. 15657);
     Revising the clause to specify that OSHA will certify or
approve employers' programs as qualified for grandfather status (see,
e.g., Ex. 32-133, 500-139);
     Revising the clause to recognize for grandfather status
any program that complies with either the Washington State or the
California standard (see, e.g., Exs. 30-429, 30-434, 30-973, 30-1090,
30-1547, 30-1671, 30-2835, 30-3813, 30-4134, 31-337, 32-311);
     Delete the grandfather clause and substitute instead
provisions giving employers credit for already having performed some of
the required elements, such as training, before the effective date
(see, e.g., Exs. 30-1547, 32-185, 32-311, 32-339, 32-461, 500-207; Tr.
6423, 11129, 13092).
    For example, ORC made several suggestions along these lines (Ex.
30-3813; Tr. 4111). First, they recommended that OSHA rename this
section ``Alternative Programs Provision.'' They also suggested that,
as a stimulus to innovation, OSHA allow employers who do not now have
fully developed programs to qualify for grandfather status in the
future when they do have such programs. DuPont SHE Excellence Center
made a similar recommendation:

    [One] improvement in the flexibility would be to allow whichever
elements that have been put in place to be grandfathered and those
which are not in place to be added. The grandfather clause should
not be an ``all-or-nothing'' clause (Ex. 30-2134).

    In addition, ORC, along with other rulemaking participants,
recommended allowing an employer's program to be grandfathered after
the effective date of the standard, which would permit employers
involved in mergers and acquisitions to put their already grandfathered
programs into place in new establishments (see, e.g., Exs. 30-3813, 30-
3922, 32-78; Tr. 5538). ORC also recommended that OSHA permit employers
to extend existing grandfathered programs to new establishments
operated by the same employer (Ex. 500-214).
    The rulemaking participants who recommended that the standard
permit future alternative ergonomics programs to be grandfathered did
not address how an employer might avoid noncompliance while developing
the program or in the period before the employer had demonstrated the
effectiveness of the new program. OSHA does not believe that such an
approach would be workable. First, it would be administratively
difficult (if not impossible) to enforce. Second, OSHA is issuing a
final standard addressing ergonomic injuries because the varied
approaches and often isolated interventions that many employers have
adopted have not effectively addressed the problem, and a uniform and
comprehensive approach to this most serious of occupational safety and
health issues is clearly necessary. The approach recommended by the
commenters would mean that, while employers try different programmatic
approaches, employees would continue to be exposed to ergonomic hazards
with no guarantee that the employers would ever qualify for
``grandfather'' status. Third, OSHA is loathe to require the
expenditure of resources to make existing, effective programs
containing all the core elements meet all the requirements being
imposed by the full ergonomics standard. Employers without programs and
employers with ineffective programs or programs missing key elements
would need to expend resources to meet whatever requirements OSHA
imposed on alternative programs. The Agency believes that these
resources should be expended to meet the final standard in all its
details so as to ensure adequate protection for employees.
    OSHA agrees, however, that a company that meets the rigorous
standards of paragraph (c) and thus qualifies for grandfather status
should be permitted to apply the same excellent program that was
grandfathered to new plants it builds or acquires by merger or
acquisition. OSHA believes that permitting a grandfathered program to
be extended in this way makes sense from two perspectives: first, it
ensures that the new establishments will benefit from the expertise in
ergonomics programs that the parent company brings, and, second, it
ensures that the company will have a single, cohesive corporate
ergonomics program. For these reasons, OSHA has decided to extend
grandfather status to the programs implemented in newly acquired or
built plants of a corporation that already has a grandfathered program.
    The American Industrial Hygiene Association (Ex. 32-133)
recommended that employers formally request OSHA to recognize their
programs:

    As the standard puts much of the burden on employers to adapt
the program to their own needs, it would be appropriate for OSHA to
say that employers can ask to have their program ``grandfathered''.
This would require them to formally document their program and
compare it with the OSHA requirements. This should not be a problem
if the company has a functional program (Ex. 32-133).

Kaiser Permanente made the same recommendation in their post-hearing
comments (Ex. 500-139).
    However, OSHA's resources do not permit it to evaluate employers'
programs for grandfather status; in addition, a ``paper'' review of a
program is not adequate to determine how it is working in practice.
OSHA continues to believe that employers are in the best position to
determine whether their programs qualify for grandfather status.
    The Eastman Kodak Company (Exs. 30-429, 30-1090) suggested that the
Agency adopt a flexible grandfather clause that recognizes good faith
on the part of employers:

    We believe that what OSHA needs is a ``good faith'' grandfather
clause that recognizes employers for a positive effort and ongoing
solutions. We believe that it should be sufficient for an employer
to have a written active program and show intent, to be compliant.
The existing program rule (WAC 296-62-05110) of the Washington State
proposed standard is better suited to this end and is recommended
for incorporation (Ex. 30-429).


[[Page 68298]]


    Other rulemaking participants also recommended that OSHA adopt the
proposed Washington State approach towards existing programs (see,
e.g., Exs. 30-434, 30-2835, 30-3813, 30-4134, 31-337, 32-311). They
argued that Washington's approach, which accepts alternative programs
when the employer can demonstrate that the alternate methods taken as a
whole are as effective as the requirements of the standard, would
grandfather far more effective programs than OSHA's proposal. They also
noted that this approach would focus the Agency's efforts on results
rather than on details they perceived as minor.
    The Washington State standard's grandfather clause reads as
follows:

WAC 296-62-05110  When Do Employers' Existing Ergonomics Activities
Comply With This Rule?

    Employers may continue to use effective alternative methods
established before this rule's adoption date. If used, the employer
must be able to demonstrate that the alternative methods, taken as a
whole, are as effective as the requirements of this rule in reducing
the WMSD hazards of each job and providing for employee education,
training and participation (Ex. 500-71).

Other commenters (see, e.g., Ex. 30-4467) urged OSHA to accept
compliance with the California ergonomics standard as constituting
acceptance under the grandfather clause.
    Again, as discussed above, formal recognition of the ``as effective
as'' status of these two State-plan State standards must await a formal
determination by Federal OSHA. However, since acceptance under the
final rule's grandfather clause depends on program effectiveness,
confirmation of that effectiveness through evaluation, and the
inclusion in the program of the core elements, many proactive
California and Washington employers' programs are likely to meet the
final standard's requirements for grandfather status. The programs of
many employers in these states may not meet these requirements,
however, since neither State standard requires all of the core
elements.
    The AFL-CIO, the International Brotherhood of Teamsters, and others
suggested that OSHA give employers credit for steps, such as training
and job hazard analysis, they have taken toward controlling ergonomic
hazards or for controlling hazards in problem jobs in their workplaces
(see, e.g., Exs. 30-1547, 32-185, 32-311, 32-339, 32-461, 500-207; Tr.
6423, Tr. 11129, Tr. 13092). These commenters believed that such credit
could substitute for a true grandfather clause.
    The final ergonomics standard does give credit to employers who
have already carried out certain procedures or voluntarily complied
with portions of the standard. For example, employers who have already
performed job hazard analysis in some jobs would not have to re-analyze
those jobs (see paragraph (j)(1) of the final rule). Likewise,
employers who have already trained their employees in the ergonomic
control measures they instituted would not have to duplicate that
training (see paragraph (t)(5) of the final rule).
    Some rulemaking participants suggested that OSHA recognize for
grandfather status any ergonomics program in effect at the time the
final rule becomes effective (see, e.g., Exs. 30-494, 30-2989, 30-3781,
500-213; Tr. 10089). These commenters believe that these employers
should be rewarded for their proactive stance toward ergonomics. For
example, the National Council of Agricultural Employers said, ``a
grandfather clause should recognize and exempt forward-thinking
employers that have already implemented an ergonomics program'' [Ex.
30-3781]. The National Association of Convenience Stores went further
to suggest that OSHA also grandfather trade-association-provided
programs: ``OSHA [should] consider grandfathering existing risk
management programs or industry-specific programs which trade
associations may be able to provide to their members' (Tr. 10089). The
Air Conditioning Contractors of America recommended that OSHA recognize
virtually any existing ergonomics program under the grandfather clause
(Ex. 500-53). It said that OSHA could require grandfathered programs to
be improved at such time in the future as MSD hazards became better
understood.
    As explained earlier, OSHA believes that it is essential for
grandfathered ergonomics programs to include all of the core elements
of successful ergonomics programs and to meet demonstrable
effectiveness criteria. OSHA agrees that employers who have already
adopted existing programs are proactive; however, some of these
employers are likely to have programs that are not as protective as the
program OSHA is requiring or programs that do not include those
elements shown to be essential to program effectiveness. It would
therefore be inappropriate for OSHA to grandfather these programs.
    Several hearing participants provided OSHA with alternative
regulatory language for the grandfather clause in their post-hearing
submissions (Exs. 500-44, 500-78, 500-80). Southwestern Bell
recommended the following language (Ex. 500-78):
    How does this standard apply if I already have an ergonomics
program?
    If you already have an ergonomics program for the jobs this
standard covers, you may continue that program provided:
    (a) You have a written program that contains:
    (i) Defined roles and responsibilities;
    (ii) Training on the prevention of work-related MSD's; and
    (iii) Procedures for completing job hazard analysis for work-
related MSD's.
    (b) The controls implemented are intended to reduce or eliminate
risk factors for work-related MSD's;
    (c) You have a program evaluation process; and you have implemented
your program before the effective date of the final rule (Ex. 500-78).
    OSHA has considered Southwestern Bell's suggested language but has
rejected it because the programs that would be grandfathered in by such
language would be missing several important elements--employee
participation, hazard information and reporting, and MSD management,
for example. As explained earlier, OSHA considers these elements
essential to any successful ergonomics program. In addition,
Southwestern Bell's approach does not contain any requirement that the
program be effective, be achieving positive results, or be reducing the
number of MSDs.
    The American Petroleum Institute (API) proposed language that would
accept an employer's existing program if it contained the following
seven elements: (1) Management leadership and employee participation,
(2) hazard information and reporting, (3) job hazard analysis and
control, (4) training, (5) MSD management, (6) program evaluation, and
(7) recordkeeping (Ex. 500-80). API's proposal also would require
grandfathered programs to contain subelements under each element. For
example, under job hazard analysis and control, API's language included
the following provisions: ``Jobs in the workplace must be assessed to
identify the potential for MSD hazards. Consistent with the job
assessment, an action plan is developed to control identified or
potential MSD hazards determined to present a significant risk.'' Their
language also suggested that grandfathered programs demonstrate
effectiveness via measures such as the following: Decreases in the
frequency of reported MSDs, decreases in the severity of MSDs, reduced
workers' compensation claims related to MSDs, symptoms surveys, and a
reduction of MSD risk factors. API did not include

[[Page 68299]]

work restriction protection among the elements grandfathered programs
must have.
    API's suggested grandfather clause had two other features. First,
it specifically recognized any program meeting the requirements of an
employer's State OSHA ergonomics standard. Second, it recognized
existing programs in both existing workplaces and newly acquired or
built plants of a corporation that has a grandfathered program (Ex.
500-80).
    API's approach is similar to the one OSHA is taking in the final
standard's grandfather clause. The final standard includes all of API's
recommended elements, and also requires the employer to demonstrate
that the ergonomics program is effective. API's suggested criteria for
determining effectiveness are also similar to those listed as examples
in the final standard. Further, the final rule permits employers with
grandfathered programs to extend those programs to new corporate
plants.
    On the other hand, OSHA is not, as discussed above, automatically
grandfathering in employers' programs that comply with State-plan State
ergonomics programs. In addition, API's suggested regulatory text would
not require employers to provide WRP to employees who suffer work-
related MSDs. As discussed earlier, OSHA has concluded that WRP is an
essential part of any ergonomics program whether it is grandfathered or
not.
    The Dow Chemical Company also provided alternative language for a
grandfather clause (Ex. 500-44). Their alternative provided criteria
for seven core elements that ergonomics programs would have to meet to
be grandfathered: hazard communication, MSD reporting, hazard
identification, hazard evaluation and prioritization, risk mitigation
or control, appropriate knowledge and skills (that is, training), and
program evaluation. Dow included specific criteria for each of these
elements and an explanation of how the criteria could be met for each
of the elements. Dow likened their proposal to OSHA's Process Safety
Management Standard (Sec. 1910.119), which sets the basic elements of a
process safety management program and requires the employer to spell
out the details.
    However, OSHA is not adopting Dow's alternative grandfather clause
approach in the final rule, for several reasons. First, Dow's language
does not address several elements of ergonomics programs that OSHA
considers essential, including management leadership, employee
participation, and MSD management. Second, Dow's alternative is overly
detailed. For example, the hazard communication element incorporates
separate provisions on general information regarding MSDs and general
information on warning signs associated with MSDs. It also includes a
provision for providing specific information on potential ergonomic
hazards in an employee's work area. Third, Dow's suggested grandfather
clause appears to be designed to tightly match the company's own
program rather than to fit a more widely recognized model ergonomics
program, such as that in OSHA's meatpacking guidelines, a program
lauded by many rulemaking participants who had experience with
ergonomics programs (see, e.g., Exs. 30-1294, 30-2216, 30-3046, 30-
3677, 32-185; Tr. 14713). OSHA believes that more employers with
effective existing programs will be able to qualify under OSHA's final
grandfather clause, which is modeled after the Meatpacking Guidelines
program, than those required by Dow's alternative.
    Dow also commented on the enforcement implications of a
performance-based grandfather clause:

    The verification of compliance to a performance language
regulation is most effectively achieved when the method used for
prescriptive regulation compliance verification is modified. The
method used by Compliance Officers for a prescriptive regulation is
based on the Officer's knowledge of what is specified by the
regulation to be the practice, i.e. guard rail specification.
However, for performance language regulations, such as the Process
Safety Management regulation and the language suggested by Dow for
this proposed regulation. The Compliance Officer only knows what
elements are to be addressed by an employer's program: They will not
know what to expect for practices. The means to address those
elements are left to the employer so that they can use whatever
means best match their workplace needs and the local culture. The
Compliance Officer can only gain an understanding of that workplace
program from the employer. This, we believe, is where the
modification in approach should occur (Ex. 500-44).

    OSHA believes that, like a true performance standard, the final
grandfather clause is not prescriptive in nature and leaves the details
of compliance to employers to determine. OSHA compliance personnel will
look first to the employer's demonstration that the program includes
the core elements and subelements and second that the program is
effectively addressing MSDs. Compliance officers also may assess
whether the employer's program in practice matches the written program
that the employer has developed.
    Magnus Farley, Inc., did not provide alternative language for the
grandfather clause; however, they did recommend that OSHA develop
revised language and publish it for comment before adopting a final
rule (Ex. 500-102). They argued that this would give industry time to
evaluate the new provision and respond to it. OSHA finds a re-proposal
unnecessary, because participants had ample opportunity to provide
comments on the proposed grandfathered clause. The sheer volume of
comments received on this topic provides evidence of this fact. Further
the final rule's grandfather clause is a logical outgrowth of the
proposal. In fact, the final rule responds to the overwhelming public
comment that OSHA should focus on effectiveness and recognize existing
programs that do not look exactly like the one required by the rule.
    Some rulemaking participants supported the proposal's approach
toward existing programs with only minor modification (see, e.g., Exs.
30-973, 30-1547, 30-2387, 30-3748, 32-85, 32-111, 32-339, 500-207; Tr.
15893). For example, the American Association of Occupational Health
Nurses supported the proposed grandfather clause, but recommended that
OSHA provide guidance for employers to use in evaluating their programs
(Ex. 30-2387). The American Nurses Association supported the proposed
requirement that existing program meet the basic obligation of each of
the core elements of an ergonomics program (Ex. 30-3686). They did,
however, recommend allowing employers up to 6 months to modify their
programs so that they meet these basic obligations.
    As noted earlier, program evaluation guidance is already available
from the Agency. In addition, OSHA will be providing additional
compliance assistance materials in the period following publication of
the final rule. These materials will help employers judge whether their
programs are effective and whether they qualify for grandfather status.
    The final grandfather clause essentially accommodates the American
Nursing Association's suggestion. Employers who, through one of the
measures given in paragraph (c)(1)(v), can demonstrate that their
programs are effective are free to add features that will bring them
into compliance with the criteria given in paragraph (c)(1) any time
before the effective date of the final standard. In addition, employers
are given an extra 12 months to incorporate work restriction protection
into their programs.

[[Page 68300]]

    The Eastman Kodak Company argued that the proposal's grandfather
clause would have required employers to fix all problem jobs before
their programs were recognized (Exs. 30-429, 30-1090). The Boeing
Company also noted that employers may have an acceptable program that
covers some, but not all, of the jobs covered by the standard (Exs. 30-
973, 30-1547). Boeing suggested allowing employers up to 2 years after
the effective date to cover all such jobs.
    As noted earlier, the final grandfather clause would permit
employers to extend an ergonomics program that was successful in
addressing some problem jobs to all problem jobs. In addition, because
the final rule's compliance endpoints do not contain a set compliance
deadline, employers may prioritize jobs for analysis and control if all
jobs could not be controlled by the final rule's effective date.\6\
Thus, the final standard addresses the concerns of these two rulemaking
participants.
---------------------------------------------------------------------------

    \6\ Even though the final rule's grandfather clause does not
contain a fixed deadline for implementing controls for a problem
job, an employer with a grandfathered program is expected to
institute permanent controls as soon as possible. An employer who
postponed the control of MSD hazards beyond a reasonable amount of
time would have difficulty demonstrating the effectiveness of the
program.
---------------------------------------------------------------------------

    Some rulemaking participants suggested making the grandfather
provisions more comprehensive (see, e.g., Exs. 32-182, 32-198, 32-210,
32-339, 32-461). First, as noted earlier, the AFL-CIO and others
recommended strengthening the basic obligations for four of the six
core elements (see, e.g., Exs. 32-198, 32-210, 32-339). Second, some
participants urged OSHA to develop and publish checklists and
evaluation tools to assist employers with the evaluation of their
programs (see, e.g., Exs. 32-85, 32-210, 32-339). Without these tools,
they argued, an employer's program could be grandfathered without any
solid demonstration that it is effective. The AFL-CIO argued that the
standard should be as protective as, and consistent with, existing
effective ergonomics programs, OSHA general duty clause settlement
agreements, and OSHA and NIOSH recommended practice (Ex. 32-339). In
keeping with this goal, they developed principles that they believe
should guide OSHA in casting the final standard:

    The standard should codify and reflect the good industry
practices and programs implemented by employers who have effectively
addressed ergonomic hazards. It should build on the agency's
enforcement actions and settlement agreements on ergonomic hazards
under the general duty clause. The standard also should be
consistent with the measures used in other agency standards on toxic
substances and physical agents such as the lead and formaldehyde
standards and those which follow a programmatic approach, such as
the Process Safety Management and Hazard Communication Standards
(Ex. 32-339).

    OSHA believes that the final rule's grandfather clause is
comprehensive enough to ensure that inadequate programs do not qualify
and is flexible enough to permit many different kinds of effective
programs to qualify. As explained previously, the Agency believes that
requiring programs to meet a combination of essential program elements
and recognized effectiveness measures will prevent inadequate
ergonomics programs from achieving grandfather status. On the other
hand, OSHA does not agree that it is necessary to codify the precise
practices used in the most effective programs, as the AFL-CIO suggests.
Doing so would unnecessarily limit an employer's flexibility in
complying with the final standard. The Agency believes that the final
rule has achieved a balance between flexibility and comprehensiveness
that will recognize effective ergonomics programs and deny grandfather
status to inadequate ones.
6. Other Comments on the Proposed Grandfather Clause
    The National Soft Drink Association objected to the requirement
that the employer's program be evaluated and found to be functioning
properly before the effective date of the standard (Ex. 30-3368). The
trade association argued that a thorough evaluation of any program will
probably uncover areas that could be improved. Other rulemaking
participants also recommended that the standard allow employers to
modify their programs so that they could be improved (see, e.g., Exs.
30-1547, 30-3765, 30-4130, 30-4537). For example, the Boeing Company
was concerned that an employer would not be able to improve an existing
program without falling out of compliance with the grandfather clause
(Ex. 30-1547). In response, OSHA recognizes that all ergonomics
programs will need to be modified over time to correct deficiencies.
The standard not only accommodates this, but requires it in paragraph
(c)(1)(v).
    Some commenters stated that the proposed grandfather clause would
force existing programs to include the six core elements if they wished
to be grandfathered even if the employer did not have an employee with
an MSD that triggered the standard (see, e.g., Exs. 30-715, 30-3678).
In response, OSHA considers it most unlikely that an employer with an
effective existing program would not have employees experiencing MSDs.
    Some rulemaking participants suggested that OSHA strengthen the
grandfather clause in various ways (see, e.g., Exs. 30-2039, 30-4538,
32-182, 32-185). For example, the American Federation of Government
Employees recommended that employers have a documented program in place
for at least 2 years before being eligible and that a grandfathered
program be required to comply with the full standard if any MSDs occur
(Ex. 30-4538). They also urged OSHA to require that, in evaluating the
program, the employer determine that it is effective in addition to
functioning properly. The American Federation of State, County, and
Municipal Employees recommended that OSHA require that all elements of
an employer's ergonomic program be effective before the employer is
eligible under the grandfather clause (Ex. 32-182). Mr. Howard Egerman
was concerned that having the employer evaluate its own program was
bound to be ineffective because the employer could not be disinterested
(Ex. 30-115). Communication Workers of America Local 2222 recommended
that the standard require employees to agree with the employer's
evaluation before an existing program would be acceptable and that OSHA
mediate any disputes (Ex. 30-2039).
    OSHA believes that the grandfather clause in the final rule will be
protective of employees' safety and health without the addition of
these suggestions. The Agency is therefore not setting a minimum time
period that an employer's program must have been in place to be judged
effective to qualify for the grandfather clause. The final grandfather
clause requires the employer to be able to demonstrate that the program
is effective and to evaluate its elements and correct any deficiencies
identified before the effective date. \7\ This will ensure that only
relatively mature programs qualify for grandfathering.
---------------------------------------------------------------------------

    \7\ However, as explained earlier, the final grandfather clause
does permit an employer to incorporate work restriction protection
in the ergonomics program within 12 months of the effective date.
---------------------------------------------------------------------------

    Many rulemaking participants testified that MSDs still occur in
workplaceswith the best ergonomics programs in place (Exs. 30-3765; 30-
4046; Tr. 14730). OSHA agrees that this is often the case, and the
final rule specifically notes that the occurrence of MSDs does not
constitute a violation of

[[Page 68301]]

the standard (see the note to paragraph (k)).
    Although the employer will be evaluating the program, OSHA believes
that Mr. Egerman's concern is unfounded, because paragraph (c)(1)(v)
requires the employer to be able to demonstrate that the program is
effective. This provision, and the inclusion of the core elements,
should ensure that the evaluation is appropriate. In addition, the
final grandfather clause requires qualifying programs to include
employee participation in program evaluation. This will also act as a
check on the accuracy of the evaluation process. For these reasons, the
Agency believes that the grandfather clause in the final ergonomics
standard will provide an appropriate level of protection for employees.
    Some rulemaking participants objected to language in the proposal
that required the employer to show that their program complies with the
basic obligations and is functioning properly (see, e.g., Exs. 30-541,
30-562, 30-1355, 30-1547, 30-3117, 30-3783, 30-4607). They argued that
the burden should be on OSHA's compliance staff to address ergonomic
hazards rather than on the employer to demonstrate that its program
qualifies. Some of these rulemaking participants argued that placing
the burden on employers to demonstrate program effectiveness would
disproportionately affect small employers, who do not have the
resources of larger ones (see, e.g., Exs. 30-3117, 30-3783).
Caterpillar, Inc. stated that the subjective nature of the grandfather
clause would lead to uneven enforcement across employer groups and
across the nation (Ex. 30-4607).
    The American Apparel Manufacturers Association also was concerned
about enforcement and gave the following example of how an employer's
interpretation of what constitutes a problem job could differ from that
of an OSHA compliance officer:

    An apparel manufacturer may see two sewing jobs as extremely
different, involving different activities and physical requirements,
but an OSHA inspector with no experience in the apparel industry may
well see them as the same. This ambiguity of language may cause
penalties against companies who believed they were, in good faith,
running a successful ergonomics program (Ex. 30-4470).

    The Boeing Company was also concerned about being second guessed by
OSHA enforcement personnel (Exs. 30-973, 30-1547). They recommended
that the standard unambiguously recognize programs addressing the basic
obligations. In particular, Boeing urged OSHA to clarify that an
employer who is complying with a written program that meets the
grandfather clause is in compliance with the standard (Ex. 30-1547).
They argued as follows:

    Where employers are already undertaking what can reasonably be
done in good faith to minimize problem jobs, they should be
protected from second-guessing by inspectors. OSHA's limited
resources are better used focusing on worksites where ergonomic
hazards have yet to be addressed, not on worksites which have
already implemented effective ergonomics programs (Ex. 30-1547).

    Others believed that it is appropriate for OSHA to require
employers to demonstrate the effectiveness of their programs (see,
e.g., Exs. 30-429, 30-2835, 30-3813, 30-4134, 31-337, 500-214). These
commenters argued that this was the approach taken by Washington State
in its ergonomics standard, and they believed that it was reasonable.
    OSHA finds, based on a review of the evidence in the record as a
whole, that the final grandfather clause is not likely to lead to
uneven enforcement. It is true that employers will need some method of
assuring themselves that their ergonomics program qualifies for the
grandfather clause, and the method chosen also will be useful to OSHA
compliance personnel. However, OSHA will not cite employers who make an
adequate demonstration \8\ that their programs are effective and
include the elements and subelements in paragraph (c)(1). However, if
the Agency finds objective evidence that the employer is basing the
demonstration on inaccurate information, OSHA will not consider that
employer's program as qualifying for grandfather status.
---------------------------------------------------------------------------

    \8\ An adequate demonstration is one that touches on all
subelements spelled out in paragraph (c)(1) and that shows
effectiveness using an appropriate measure of effectiveness.
---------------------------------------------------------------------------

    OSHA also believes that it is reasonable and appropriate to place
the burden of demonstrating that their programs qualify for grandfather
status on employers because grandfathered programs are the
``exception'' to the standard. Employers who choose to take advantage
of using a program that is not required to meet the full ergonomics
standard in all its details can reasonably be expected to produce
evidence that their programs qualify for the grandfather clause. OSHA
needs assurance that employees in workplaces with grandfathered
programs will be adequately protected by these programs. For these
reasons, the final grandfather clause requires the employer to
demonstrate that their programs qualify for grandfather status.
    Some rulemaking participants complained that the proposal would
require employers wanting to take advantage of the grandfather
provision to keep unnecessary records (see, e.g., Exs. 30-2645, 30-
2815, 30-2835, 30-4628). For example, the Chemical Manufacturers
Association and others stated that an unwarranted paperwork burden
would be forced on an employer because it would have to document that
the program met the basic obligations and that the program is
functioning properly (see, e.g., Exs. 30-2835, 30-3356, 30-4628).
    The final grandfather clause does not require the employer to
maintain any records. In fact, the final standard does not require
employers whose programs are grandfathered to maintain any of the
records required by the full standard in paragraph (v). Some employers
may choose to maintain certain records to facilitate their
demonstration of effectiveness. However, some effectiveness measures
require no records. For example, the Dow Chemical Company, whose
program involves the evaluation of all tasks in high risk jobs and
control of all ergonomic hazards in those jobs, would need only show
that adequate controls are in place to demonstrate effectiveness. (They
also would need to show that their program includes the elements and
subelements given in paragraph (c)(1).) In addition, most employers
with existing programs are already required, under 29 CFR Part 1904, to
maintain injury and illness records. Employers should be able to use
those records, with little or no modification, to demonstrate
effectiveness. Thus, OSHA has concluded that comments that the
grandfather clause would create an unwarranted paperwork burden are
unfounded.
    Some rulemaking participants argued that companies would be forced
to alter their existing safety and health programs to meet the OSHA
ergonomics standard, forcing them to inefficiently allocate resources
away from their safety and health programs (see, e.g., Exs. 30-2216,
30-3845, 30-4818, 31-310; Tr. 11379, 11403). These commenters
apparently believe that two separate and incompatible programs would be
required or that grandfathering would require major restructuring of
their current ergonomics program. For example, the Forum for a
Responsible Ergonomics Standard recommended that OSHA recognize
existing programs that met the goal of reducing or eliminating MSD
hazards regardless of whether or not they met the technical
specifications of the six proposed program elements (Ex. 30-3845).

[[Page 68302]]

Otherwise, they argued, the standard would not only upset the
performance of existing programs but would result in poor allocation of
risk control resources. They gave examples of what they believed might
occur:

[O]ne Forum member, CCE, has spent millions of dollars researching
and developing methods to reduce injuries related to various
warehousing and delivery activities, such as improving new order
fulfillment systems. In this respect, CCE is pioneering achievements
that likely will eventually be adopted throughout its industry.
However, particularly with respect to employee participation in
developing safety programs, CCE is unlikely to meet the strict
requirements for grandfathering. As a result, CCE anticipates that
many of its current efforts will be derailed as resources,
especially the time of its highly trained staff, will have to be
diverted to ensuring compliance with the OSHA standard. Instead of
developing fixes that will prevent injuries, these resources will be
directed towards ``fixing'' the administrative structure of its
program.
    Similarly, many NACS members (convenience store operators and
petroleum marketers) incorporate MSD prevention and ergonomics
issues into their general worker safety programs that cover a wide
range of issues, from dealing with slips and falls to robbery
deterrents to customer safety issues. These programs have been
extremely effective in reducing MSD injuries. If not grandfathered,
implementing OSHA's proposed standard would require upsetting and
dramatically changing these already effective programs (Ex. 30-
3845).

Mead Corporation (Ex. 30-2216) made a similar comment:

    Responsible employers would be forced to alter achieving
programs and pursue measures that we know are not as effective as
what we are already doing. The resources that are focused on MSD
prevention would be shifted toward less meaningful activities. A new
infusion of MSDs may result at many workplaces that have effectively
controlled these types of accidents to date because of the shift in
emphasis brought on by compliance demands.

    Consider:

     Many companies utilize periodic risk assessments to
update priorities for ergonomics projects. Risk assessments commonly
include a survey of the workplace, discussions with employees about
potential concerns, and analysis of MSDs. Priorities are established
and incorporated into a work plan for the site's ergonomics/safety
team.
     When ergonomics teams in Mead conduct analyses of jobs,
they are encouraged to identify as many opportunities for continuous
improvement (potential risk factors) as possible and then to
prioritize based upon risk. Action plans are developed for high risk
concerns. Lower priorities are not addressed at the time unless they
are low cost. Teams maintain documentation of these items and may
revisit them in the future once higher priority items are resolved

    In each of these examples, employers are pursuing activities that
should be recognized as meaningful and exceeding the level of
protection OSHA is currently seeking for the control of MSDs. With the
proposed standard, however:

     When persistent symptoms develop at a job considered to
be moderate priority for continuous improvement, higher priority
changes would be delayed, placing more employees at higher risk for
developing MSDs;
     Similarly, when partial work aggravation associated
with a low risk task triggers a manufacturing job, high priority
changes recommended by the ergonomics team based upon comprehensive
analysis will be delayed; and
     Documentation of MSD prevention activities will be
increasingly scrutinized and restricted due to concerns over how
OSHA would interpret the information (Ex. 30-2216).

    On the other hand, the American Society of Safety Engineers stated
that ergonomics programs fit easily into existing safety and health
programs:

    The establishment of basic ergonomic management programs,
increasing employee awareness and involvement on these issues is not
a burden to employers when compared to other safety and health
compliance requirements.
    In fact, most efficient and effective ergonomic initiatives will
usually dovetail with other existing safety and health programs (Tr.
11611).

    The final rule in general, and the grandfather clause in
particular, will not, in OSHA's view, require an inefficient
reallocation of resources. In fact, because MSDs are the leading cause
of on-the-job injuries and illnesses, OSHA believes that the final rule
will ensure that resources will be devoted to areas where significant
improvement in injury and illness rates can be realized.
    OSHA agrees with the American Society of Safety Engineers that
ergonomics programs fit well as part of comprehensive workplace safety
and health programs. The final grandfather clause does not require
employers to divorce ergonomics from their existing safety and health
programs. Thus, employers who address ergonomics in existing effective
safety and health programs typically will not need to reinvent their
ergonomics program just to qualify for the grandfather clause.
    In addition, as noted earlier, the final rule accommodates
prioritization of the implementation of permanent controls, as Mead
Corporation is doing, where the employer cannot fix all problem jobs at
once. Therefore, OSHA does not believe that the final rule's
grandfather clause will be disruptive or result in an unwarranted
reallocation of resources.
    Union Carbide recommended that the standard not require employee
participation in the development of existing programs that would
otherwise qualify under the grandfather clause (Ex. 30-3784). ORC also
identified employee participation in the development of each element of
the program as one area that few of its member companies could comply
with (Tr. 4135).
    OSHA agrees with these rulemaking participants that employee
participation in the development of ergonomics programs is not
necessary where an existing program that qualifies for the grandfather
clause is at issue. The primary purpose of the grandfather clause is to
recognize ergonomics programs that employers have already put into
place, i.e., that are already well past the developmental stage.
According to ORC, some of these programs have not involved employees in
the past development, implementation, or evaluation of the program. As
drafted in the final rule, employee participation in these stages of
program implementation is required as appropriate, from this time
forward. In other words, OSHA is not requiring employee participation
in the past development of a program as a condition of the grandfather
clause; it is requiring employee participation in the implementation,
evaluation, and future development of grandfathered programs, however.
    Alcoa, Inc., recommended that, for existing capital-intensive
industries and equipment, OSHA allow employers additional time to come
into compliance with the grandfather clause (Ex. 30-3922). They argued
that the implementation of permanent controls within 2 years, as
proposed, was neither realistic nor economically feasible for some
employers. The final rule's grandfather clause allows an employer to
have a process for identifying, analyzing, and controlling MSD hazards
in problem jobs and following up to ensure control effectiveness.
Through a prioritization process, an employer may choose to temporarily
implement interim controls. Although the employer is expected to
institute permanent controls as soon as possible, the final rule does
not provide a date when this must be accomplished. Thus, employers in
all industries with qualifying programs will be able to prioritize
their jobs for control in a rational manner that permits them to take
advantage of the capital involvement and replacement schedules of their
industries.

[[Page 68303]]

Paragraph (d)--What Information Must I Provide to my Employees?

    Paragraph (d) of the final rule requires employers to provide their
employees with basic information about five items:
    (i) Common musculoskeletal disorders (MSDs) and their signs and
symptoms;
    (ii) The importance of reporting MSDs and their signs and symptoms
early and the consequences of failing to report them early;
    (iii) How to report MSDs and their signs and symptoms in the
workplace;
    (iv) The kinds of risk factors, jobs and work activities associated
with MSD hazards; and
    (v) A description of the requirements of OSHA's ergonomics program
standard.
    This information must be provided to new employees within 14 days
of hiring, and must be posted conspicuously in the workplace.
Consistent with applicable law, information may be posted or provided
electronically to employees who have electronic access. To assist
employers in meeting their obligation under this paragraph, OSHA has
included nonmandatory Appendices A and B, which contain all the
information needed to comply with this paragraph, except for the
workplace-specific information on reporting MSDs and their signs and
symptoms.
    The proposed rule also would have required employers to provide
employees with information on how to recognize MSDs (and their signs
and symptoms); on the importance of early reporting of MSDs; and on how
to report MSDs at their workplace. It also would have required
employees to establish a reporting system for MSDs. These provisions in
the proposed rule, however, would only have applied to manufacturing
and manual handling employers. OSHA expected the provisions to serve
three purposes: to facilitate employees' active participation in their
employers' ergonomics programs; to promote early reporting so that MSDs
could be treated most effectively; and to assure prompt identification
of MSD hazards so that the incident trigger of the standard would work
properly.
    There was a great deal of support, in general, for requiring
employers to provide hazard and reporting information to employees
(see, e.g., Exs. 30-2116, 30-3813, 30-3748, 30-3765, 30-3934, 32-339-1,
32-111-4, 32-185-3, 30-3686, 32-461, 32-210-2, 30-3826, 30-3686, 32-
182-1, 30-2116, 30-3748, 30-4564, 32-198-2, 500-33, 32-21-1, 32-450-1,
30-4247 and 32-450-1). Mr. Mark Davidson, Risk Manager for Safeway
Stores testified (Tr. 13674, 13658) that he adamantly supported pre-
injury efforts to train and evaluate people. He stated the fact that
Safeway had produced a video to educate employees on symptoms of soft
tissue injury and had merely shown it to employees across the United
States. Both Akers Logging (Tr. 12325) and Swift Company Timber
Management (Tr. 12315-16) believed that this information could be
incorporated into regular safety meetings, and Mr. Swift testified that
the cost would be nominal, if anything.
    In fact, a number of participants urged OSHA to go even further and
require employers to survey their employees to identify existing signs
and symptoms (see, e.g., Exs. 31-113, 31-150, 30-4538, 31-243, 31-186,
30-2387, 31-156, 31-125, 31-105, 31-43, 31-23, and Tr. 4732-33). One
commenter (Ex. 31-186) said that, as well as promoting the early
detection of MSDs, thereby saving employers money and lost work time,
surveys also send the message that the employer cares about employee
health and safety. The American Association of Occupational Health
Nurses (AAOHN) (Ex. 30-2387) also said that MSD symptoms surveys should
be strongly encouraged, if not required.
    Other commenters argued that the benefits of this information
provision should not be limited to jobs involving manufacturing and
materials handling (Ex. 30-3826). Since implementation of any
ergonomics program outside manufacturing and manual handling would have
been based on the occurrence of an OSHA-recordable MSD, it made little
sense, these commenters felt, not to provide employees in other jobs
with information on what and how to report:

    Employees cannot be expected to report early if they are not
educated on what signs and symptoms of MSDs are and if the employer
is not communicating with them the importance of reporting early.
Also, if employees are not aware of, or do not know the mechanism of
reporting, than it is surely less likely that they will report * *
*. This will be a great disincentive for reporting (Ex. 32-210-2,
pg. 130).

See also, e.g., Exs. 500-126, 32-85-3, 30-4538, 32-198-4, 30-2387.
    Some commenters, however, objected that employers should not be
required to provide hazard and reporting information before an MSD
occurred (see, e.g., 30-3723, 30-3867, 30-3086, 30-4465, 30-4607, 30-
1012). These commenters argued that providing the information would be
an unjustified consumption of resources, infrastructure capacity, and
support, adding overhead and cost with no potential benefit. The
General Electric Company (Ex. 30-1071) felt that an employer
proactively identifying ergonomic issues would likely unearth
complaints of MSD signs and symptoms. The American Iron and Steel
Institute (AISI) (Ex. 32-206-1) stated:

    The provisions in proposed Sections 1910.914 and 1910.916
requiring the employer * * * to inform workers of the signs and
symptoms of MSDs and how to report them would create an enormous
potential for abuse of the system. The manner in which OSHA is
expected to enforce those provisions will only exacerbate the
problem (Ex. 32-206-1, pg. 40).

    Other participants also expressed concern that providing employees
with additional information about MSDs will cause workers to
misattribute benign symptoms to serious injury or disease, thereby
heightening symptoms and distress, or otherwise to make false reports
(Exs. 32-241-3-2, 30-3716, 30-3000, 30-4843, Tr.16087, Tr. 10445-6).
Omni Services Incorporated (Ex. 30-4496-35) believes it would be easy
for employees to report almost any ache or pain as work-related and get
paid time off until they feel better.
    The Painting and Decorating Contractors of America (Ex. 30-3716)
voiced concern that the information presented to employees about MSD
signs and symptoms and the importance of reporting them early would not
only require employers to develop expertise in ergonomics-related
injuries, but would encourage employees to classify almost any job-
related ache or pain as an MSD. The Plastics Engineering Company (Ex.
30-2435) stated that the requirements would encourage employees to
report both real and phoney or exaggerated MSDs. The American Road and
Transportation Builders Association (Ex. 30-4676) argued that the
number of work-related MSD claims, and the number determined to be
work-related, would significantly increase. See also Exs. 500-127, 31-
106, 31-344, 32-82-1, 30-3749, 30-3336, 30-3367. The AAOHN (Ex. 30-
2387), however, pointed out that often, after ergonomic training,
employers experience an increase in MSD complaints and should be
prepared for this eventuality. As noted elsewhere in the Preamble,
these are not ``new'' MSDs, but instead the expected earlier reporting
of MSDs that are already occurring.
    OSHA does not find evidence that encouraging early reporting of
MSDs promotes abuse. Evidence discussed in other sections of this
Preamble indicates that programs that encourage early reporting of
MSDs, so that employees

[[Page 68304]]

can enter an MSD management program, actually reduce the time employees
are subject to work restrictions. OSHA also has analogous requirements
in other standards, for example, the Bloodborne Pathogens standard (29
CFR 1910.1030) and several of its chemical exposure standards (Cadmium,
29 CFR 1910.1027; 1,3-Butadiene, 29 CFR 1910.1051; Methylene Chloride,
29 CFR 1910.1052), and has seen no evidence that the provisions are
abused. These provisions simply require that the employer provide basic
information to employees; have a system in place for employees to
report possible injuries, illnesses, and exposures; and evaluate and
respond to these reports. As is discussed more fully in connection with
paragraphs (e) and (f), a report of an MSD does not impose any
obligations on employers unless the employer determines that the MSD is
work related and meets the severity criteria, and the job itself meets
the levels of the Basic Screening Tool in Table 1.
    OSHA also agrees with the comments discussed above urging that all
general industry employees be provided with this information. It
believes the incident trigger in the standard can only be fully
effective if all employees have basic information about MSDs and how
and why to report them promptly. This means that some general industry
employers, who under the proposal would have had no obligations at all
until receiving a report of an MSD, will now have to provide this
information. OSHA emphasizes, however, the minimal nature of the burden
imposed by this paragraph. All of the information, except that on how
to report MSDs and signs and symptoms to a particular employer, is
contained in Appendices A and B to this standard, and will also be
posted on OSHA's website. Employers need only copy or download the
information for distribution to their employees. This responds to a
number of comments asking OSHA to provide materials to assist employers
in providing information to employees (see, e.g., Exs. 30-429, 30-4492,
30-2987, 30-3232, 30-3853, 32-337-1, 32-210-2, 32-461-1, 32-461-1, 30-
3826, 30-4538, 30-3686, 30-2387).
    The requirement that employees be given information on how to
report MSDs and their signs and symptoms is also necessary to ensure
the effectiveness of the standard's exposure trigger. This requirement
is even more basic than that contained in the proposed rule. It does
not require employers to set up any particular reporting system, only
that employees know how to report their MSDs or signs and symptoms.
Particularly for a very small employer, this could be as basic as
telling them to report them to a supervisor or safety official. Larger
employers may use their existing reporting systems (Ex. 30-3826).
Although OSHA intended this option also to be available under the
proposed rule, several commenters interpreted the proposal as requiring
a reporting system specific to MSD signs and symptoms (Exs. 31-78, 30-
240, 30-3723, 30-3765, 32-77-2, Tr. 5340, 30-3853, 32-337-1, 30-716,
30-2215, 500-127). In light of the revised language in the final
standard, these comments are now moot.
    Other commenters, however, urged OSHA to adopt a more elaborate MSD
reporting system. The American Federation of Teachers (Ex. 32-326-1)
urged OSHA to strengthen the reporting requirements by stipulating that
employers document a method for encouraging employees to report.
Morgan, Lewis, and Bockius (Ex. 30-4467) expressed concern that
employers would have no sure way of knowing whether a reporting system
would satisfy an OSHA compliance officer's interpretation of the
standard's requirements. OSHA does not agree that more detail is
necessary in this provision.
    The final standard allows employers extensive flexibility to tailor
reporting systems to the demands of individual workplaces. Variations
among employers (e.g., size, management structure, number and type of
facilities) could lead to some types of reporting systems being more
effective than others for different employers. Some may choose written
reporting systems, while others may feel that an oral system is a
``better fit'' for their particular situation. OSHA demands only that,
whatever approach is used, it must be accessible and carried out in an
orderly way that is recognized and understood by the involved parties.
    A few commenters questioned the requirement to provide employees
with a summary of the standard (see, e.g., Exs. 30-3765, 30-1336, 30-
3782-12, 30-2836, 30-2940, 30-240). The G. Leblanc Corporation (Ex. 30-
4837) stated that, with the exception of this item, the information to
be provided to employees would be very helpful in making the reporting/
response system successful. It also felt that inclusion of the summary
resulted in additional cost and expertise necessary for providing the
information. The Dow Chemical Company (Ex. 30-3765) also commented
that, while it supports telling employees about MSD hazards, signs and
symptoms, the importance of reporting them early, and the mechanics of
how to report them and uses a program that emphasizes the information
envisioned by this provision, it does not support providing a summary
of the requirements of the standard. The Edison Electric Institute (Ex.
32-300-1) also objected to the requirement that supervisors and
employees be trained in the requirements of the standard.
    Some of these commenters (see, e.g., Exs. 30-1336, 30-2836, 30-
2940) voiced concern about not knowing how many pages of information
were sufficient to comply with this requirement, while others (see,
e.g., Ex. 30-3782-12) felt that how to interpret a ``summary of the
standard'' and how to provide this to the employee was left to the
employer's imagination. These concerns are addressed by the inclusion
of nonmandatory Appendix B to the standard.
    On the other hand, several commenters stated that employees should
receive even more information (Exs. 30-4538, 31-242, 32-461-1, 32-210-
2, 32-182-1, 32-111-4, 32-339-1, 500-218, Tr. 3481-82, 500-126, 31-280,
Tr. 4542-43). For example, the AFL-CIO recommended that the hazard
information and training requirements be restructured to move some of
the training requirements up-front and stated:

    Specifically, we recommend that the Hazard Information and
Reporting section require information and awareness initial training
on the following:
    1. Common MSD hazards;
    2. The signs and symptoms of MSDs and the importance of
recognizing and reporting them early;
    3. How to report MSDs, signs and symptoms of MSDs, and MSD
hazards and the prohibition against discouraging employee reports;
    4. An explanation of this standard, including ways for employees
to participate and how to get a copy of the standard;
    5. An explanation of MSD management, including temporary work
restrictions and work restriction protection; and
    6. The principles for controlling common MSD hazards. (Ex. 32-
339-1,hazards. (Ex. 32-
339-1, pgs. 32-33)

    Other commenters suggested that additional topics such as employee
rights to job protection, right to report reporting procedures, symptom
reporting procedures and training be included (see, e.g., Exs. 32-461-
1, 30-4538, 30-3686, 32-198-4, 32-198-4-1, 32-198-4-13)
    OSHA has considered these comments and incorporated some of the
suggestions. Other topics are addressed in the context of ergonomics
program training under paragraph (t). The information requirement in
this

[[Page 68305]]

paragraph (d), however, is intended to provide employees with the
minimum amount of information they need to perform their function under
the standard: recognizing and reporting MSDs and their signs and
symptoms, and doing so as early as possible. Employers are free to
provide additional information (e.g., explaining their particular
ergonomics program), but OSHA does not believe that more detailed
information is necessary before any MSD hazards have been found. As
previously discussed, the Agency has attached an information sheet for
the employer to use in providing the required information.
    Finally, the issue of the posting of this information was also
raised by several commenters (see, e.g., Exs. 31-70, 31-342, 30-240,
30-1726, 30-1104, Tr. 10586). One commenter (Ex. 31-70) stated that the
final standard should require mandatory posting of information for
employees. Similarly, another commenter (Ex. 31-342) commented that
there should be a requirement to either post a notice that employees
should report possible MSDs promptly or inform employees in another
effective manner. The National Association of Orthopaedic Nurses (Ex.
30-1104, Tr. 10586) supported a readily identifiable posting of MSD
signs and symptoms, who to report to, and how to report. In addition,
the University of Wisconsin Extension (Ex. 30-1726) urged OSHA to
develop ``more boilerplate'' on a policy that encourages reporting and
to require that this policy be posted in the workplace. On the other
hand, August Mack Environmental (Ex. 30-240) argued that posting was
redundant, unnecessary and posed a problem due to often limited space
available for postings. It felt that the currently required OSHA poster
already contains information on how to get additional information about
OSHA standards.
    Paragraph (d)(2) of the final standard requires that the
information provided to employees must also be posted in a conspicuous
place. In addition to an employee bulletin board, such places may be
the employee locker room, lunch room, or near the time clock.
Electronic posting is also permissible where all employees have access.
While the Agency realizes that these options are not available in all
facilities, most employers have some area, recognized by employees,
where the employer posts company announcements and information. OSHA
believes the posting requirement is necessary because many employees
may not have immediate access to their original information sheet when
they are beginning to develop an MSD.
    In conclusion, OSHA has considered all of the comments and
testimony received on the proposed provisions requiring employers to
provide hazard information and reporting. It has decided to retain the
requirement that employers covered by the final rule to provide minimal
information to employees before an MSD incident occurs. OSHA believes
the final rule provision is adequate without requiring additional
measures such as surveying employees to identify signs and symptoms of
MSDs.

Paragraph (e)--When Must I Take Further Action?

A. Introduction

    The final rule incorporates a two-stage action trigger. It requires
further action when (1) an employee experiences a work-related MSD
involving either one or more days away from work, one or more days of
limitations on the work activities of the employee, medical treatment
beyond first aid, or 7 days of persistent MSD signs or symptoms (2) in
a job with exposures to risk factors that meet the Basic Screening Tool
in Table 1. Unless both stages of this action trigger are reached, the
standard does not require employers to take any action beyond providing
the information in paragraph (d) to their employees.
    The action trigger in this standard serves a purpose analogous to
that served by action levels in OSHA standards regulating exposures to
air contaminants. Those standards generally require that airborne
levels of the contaminant be kept below a permissible exposure level
(PEL). At a much lower level, however, employers are required to take
actions such as conducting air monitoring and providing training and
medical surveillance to exposed employees, although they do not
actually need to implement controls to reduce exposures to the
regulated substance. Similarly, in this standard, once a job meets the
action trigger, the employer must implement an ergonomics program that
includes job hazard analysis, training, and MSD management (for the
injured employee), although it may not actually be necessary to control
or reduce the MSD hazard.
    This concept is similar to the approach OSHA took in the proposed
rule. In the proposal, an employer was required to take further action
if an OSHA-recordable MSD occurred in a job meeting certain ``screening
criteria,'' i.e., the job involved physical work activities and
conditions that were reasonably likely to result in the MSD, and those
activities were either a ``core element'' of the job or accounted for a
``significant amount'' of the employee's worktime. In manufacturing and
manual handling jobs, an OSHA-recordable MSD was not necessary if an
employee reported persistent symptoms and the employer had knowledge of
problems in the job.
    OSHA received a large number of comments about the proposal's
triggering mechanism. These comments fell into several categories. Many
parties objected that the single MSD incident trigger included in the
proposal was either too sensitive or not protective enough. Others
objected to the use of an OSHA-recordable MSD, often pointing out that
OSHA has proposed to amend its recordkeeping regulation, and that those
amendments could also affect this ergonomic standard. In addition,
commenters complained that the proposed standard's screening criteria
would be extremely difficult to apply in practice, pointing in
particular to the terms ``core element,'' ``substantial part of the
workday,'' and ``reasonably likely to result in the MSD.''
    As explained below, OSHA has made a number of changes in response
to these comments. The triggering mechanism in the final rule has more
precisely defined elements, and OSHA believes it should be much easier
to apply.
    A job meets the action trigger in the final standard based on two
criteria. The first is what has been called the ``single-incident
trigger.'' Under this criterion, an employee working in the job must
have incurred either a work-related MSD severe enough to result in a
work restriction, medical treatment beyond first aid, or MSD signs or
symptoms lasting at least 7 consecutive days after being reported to
the employer. A work restriction is defined in the standard as one or
more days away from work, one or more days of limitations on the work
activities of the employee's current job, or one or more days of
temporary transfer to alternative duty (see paragraph (z)). Under the
final rule, an MSD meeting this description is an ``MSD incident.'' The
employer's first duty, after receiving a report of an MSD or MSD signs
or symptoms, is to determine whether the report constitutes an MSD
incident.
    The second step of the action trigger, which must only be addressed
after an MSD incident occurs, is based on the employee's exposures to
ergonomic risk factors. If the employee is exposed to one or more of
the risk factors described in the Basic Screening Tool in Table 1 for
longer than the time listed for that

[[Page 68306]]

risk factor, then the job meets the screen.

B. MSD Incident Trigger

1. Incident-Based Approach
    The proposed standard also included a single-incident trigger.
Under the proposal, employers of workers engaged in manufacturing and
manual handling would have been required to implement some elements of
an ergonomics program standard soon after the standard took effect,
whether or not MSDs had occurred in their jobs. Once a ``covered MSD''
meeting the screening criteria occurred, those employers would have
been required to adopt a full ergonomics program. Other employers would
not be required to take any action before a ``covered MSD'' meeting the
screening criteria occurred, but once that happened, they also were
required to adopt the full program. In this final rule, OSHA has
clarified that the only action explicitly triggered by an MSD incident
is to apply the Table 1 screen. OSHA finds that the record supports
using an MSD incident for this purpose.
    A number of participants objected to the proposal's incident
trigger on the basis that it was reactive and appeared inconsistent
with OSHA's mission ``to prevent the first injury'' (Ex. 500-218, Tr.
9071, 9156, 12277, 12477). A number of labor organizations favored a
proactive approach because, according to the International Chemical
Workers' Union, ``[w]aiting for a covered MSD or persistent MSD
symptoms to arise, versus evaluation and prevention, is a lose-lose
proposition'' (Ex. 32-198-4, 32-461-1, 500-137; see also Ex. 500-218,
Tr. 12365, 17543). The Farm Workers Justice Fund urged OSHA to adopt a
hazard-based approach because in many workplaces employees experience a
great deal of pressure not to report injuries (Tr. 17515).
    Some employers and representatives of employers also supported a
hazard-based rather than an incident-based rule (Ex. 30-1294, DC67, Tr.
9070-74, 12277, 13633, 10631, 10636). Mark Davidson, of the Oregon Self
Insurance Association, preferred a proactive approach because:

    If the goal is to cut down on the occurrence of MSD complaints,
shouldn't the regulatory effort [focus on] preventing the occurrence
rather than punish it (Tr. 13633).

    Anthony Barsotti, of Hoffman Construction Company, said that an
incident-based approach was ``heading backwards in terms of
prevention'' versus reaction:

    [H]aving the standard be triggered by the injuries seems
inconsistent with where we have been going, both as a safety
profession and as a society in terms of identifying hazards,
developing systems and processes to control them. And then, kind of
when those systems fail and we have an injury, then what are our
back-up systems and our approaches? (Tr. 12277).

See also (Tr. 9115-16).

    OSHA has carefully considered these comments. In response, it has
added a proactive element to the definition of an MSD incident. MSD
signs and symptoms that last for 7 consecutive days since first
reported to the employer are considered MSD incidents under this
standard. Several health care professionals testified that, in most
cases, MSD signs and symptoms are completely reversible when they are
caught at such an early stage (see, e.g., Exs. 37-1; 37-2, pp. 14-15;
37-12, p. 5; 37-16, p. 8; 37-17, p. 4; Tr. 7687-88, 9884, 13397-98,
13410). Thus, OSHA has concluded that its incident-based approach can
prevent employees from experiencing permanent damage or disability,
while at the same time minimizing burdens for employers who have few or
no ergonomics problems (Ex. 16969-70).
    Where employers have provided their employees with appropriate
information to allow the employees to recognize MSDs and MSD signs and
symptoms, and have also instituted good reporting systems, and
employees still are not reporting MSDs, a full ergonomics program may
not be necessary. OSHA agrees with commenters who said that a purely
hazard-based approach, which would require all employers to analyze all
jobs, regardless of whether those jobs have ever caused an MSD, might
result in an inefficient use of resources (Exs. 500-1-329, 500-75, Tr.
3095).
    This is particularly true because the vast majority of employers
will not have an MSD incident reported in their workplace during any
given year (Exs. 30-542, 30-3167, 500-1-128, Tr. 2980, 3073, 3096). One
report prepared for the Small Business Administration's Office of
Advocacy estimated that as many as 75 percent of manufacturers
employing fewer than 11 employees are not likely to experience any MSD
incident for up to six years. (Ex. 30-542). (See also Ex. 500-67; Final
Economic Analysis, chapters II and IV). The testimony of a number of
hearing participants representing small businesses confirmed this (Exs.
30-3167, 500-1-128). They told OSHA that they had never had a report of
an MSD in their workplace (Tr. 2980), did not have MSDs every year, or
had only isolated or few occurrences (Tr. 3073, 3096). Small employers
comprise 75 percent of all private industry establishments (Final
Economic Analysis, Industry Profile, chapter II), and the incident
trigger ensures that most of these employers will have only minimal
obligations under the final rule.
    The record also shows that an incident trigger is a reasonable
proxy for an increased risk of exposure to MSD hazards. For example,
some employers with successful ergonomics or safety and health programs
use reports of MSD symptoms or symptom surveys to identify jobs posing
MSD hazards (Ex. 37-2, Tr. 5503, 5358; Tr. 14707, 14723-26). Dr.
Frederick Gerr, Associate Professor of Environmental and Occupational
Health at the Rollins School of Public Health at Emory University,
testified:

    The use of reported cases of illness, such as MSDs, to trigger
investigation into potentially excessive exposure to known MSD
hazards is a well-established method of protecting others with
similar exposures (Ex. 37-2, p. 15).

Many employers also use MSD reports as a way to prioritize their
control activities (Tr. 10631, 14723, 14746). Sean Cady, of Levis
Strauss & Co., testified:

    If we have repetitive motion injuries or musculoskeletal
disorders on various jobs that occur at the same time how do we
prioritize which jobs we select for job modification, because we
don't have unlimited resources in the company. So what we do is we
review many factors of that job and we qualitatively prioritize
jobs. And we review things like the number of symptoms reported on a
job, possibly the number of injuries, or the severity of injuries on
a job (Tr. 14723-24).

OSHA has made clear throughout this rulemaking that a portion of its
intent is to require more employers to implement the kinds of effective
programs that are already in place in many industries (64 FR 65770).
Incorporating an approach already in wide use is consistent with this
purpose, and will reduce employer burden while increasing compliance
with the standard.
    Other commenters were concerned that OSHA's use of an incident
trigger would doom those preexisting programs that involve what these
participants view as a more proactive method of identifying ergonomic
hazards (Ex. 500-1-452, Tr. 9070-74, 10630-32). But nothing in this
rule prohibits employers from taking action, analyzing jobs or setting
up an ergonomics program before MSD incidents are reported. And the
grandfather clause in paragraph (c) of this standard specifically
allows qualifying employers to continue their preexisting programs.
Based on the record, OSHA expects that many employers who have
established

[[Page 68307]]

ergonomics programs that do not rely on MSD reports to identify MSD
hazards will maintain those programs (Tr. 3130-33, 5539, 9070-74,
10631).

2. One MSD Trigger

    A separate group of rulemaking participants complained that the
single-incident trigger in the proposal was too sensitive (Exs. 30-
2208, 31-324, 500-1-27, 500-1-28, 500-1-45, 500-1-128, 500-52, 500-75,
Tr. 5506-07). For instance, the Association of Independent Corrugated
Converters said that the ``one-incident threshold makes full coverage a
virtual certainty for virtually every sizable employer, and for the
vast majority of small employers'' (Ex. 500-1-128, Tr. 16930-31). The
National Tooling and Machining Association also said that a single MSD
incident was too low a threshold:

    On its own, a single reported MSD might not be statistically
significant to warrant the corrective measures required by the
proposed regulation. NTMA contends that a trigger mechanism of at
least two MSDs should be the minimum threshold for the full program,
especially for small businesses (Ex. 500-2).

Jack Pohlman, of the American Foundryman's Society, added that a report
of one MSD ``is simply not indicative of systematic problems'' (Tr.
5636). Marathon Ashland Petroleum agreed, saying that a single incident
``is not reflective of the true nature of risk that exists in a given
facility'' (Tr. 5540). And the National Paint and Coating Association
complained that a one MSD trigger was biased against large employers
(Ex. 30-4340).
    A number of commenters said that a one MSD trigger also would
unduly burden employers by requiring them to respond to ``every ache
and pain'' an employee reports (Exs. 30-4340, 500-1-18 (``a single
complaint of pain''), 500-1-385, 500-1-386, Tr. 8772 (``perceived minor
problems''), 12256). The National Telecommunications Safety Panel
testified:

    Extremely minor conditions with little or no connection to the
workplace may trigger the standard in many facilities (Tr. 8774).

Several commenters said that the one MSD trigger ignores that ``unique
physical characteristics'' or ``predisposing medical conditions'' of
the worker may be involved (Exs. 30-328, 30-1651, 30-2208, Tr. 5560-
61). James Haney, of Wisconsin Manufacturers & Commerce, said:

    Thus, the most injury- or illness-prone employee becomes the
benchmark for implementing the proposed standard's requirements (Ex.
500-1-27).

    Finally, some commenters argued that imposing a one MSD trigger
would be very costly for employers (Exs. 30-2208, 30-4340, 500-1-26,
Tr. 8772). David Potts of the National Electrical Contractors
Association testified:

    [B]ecause [of] the broad scope of what constitutes an MSD, the
program standard's coverage will be easily activated. As such, an
employer could be required to institute costly job analysis and
corrective actions as a result of a single injury illness to an
overly susceptible employee while all other employees in the same
operation or job location has no discernable adverse reaction.
Considering this hair trigger and that the Agency has only offered
general remediation measures in the proposed rule, small business
will surely face burdensome compliance responsibilities and
stressful decisions including where to best place their limited
resources (Tr. 5645).

    These commenters urged the Agency to adopt a MSD trigger having a
higher threshold. A number of commenters urged OSHA to increase the
trigger to two or more MSDs (Ex. 30-3731-1, 500-2, 601-X-1). Other
commenters said that incidence rates should be used to trigger action
(Exs. 30-3845, 30-3853, 30-4137, 32-77-2, 500-1-128, Tr. 5370, 8842).
Several commenters recommended that the trigger be a ``pattern'' or
``cluster'' of MSDs or MSD reports (Ex. 32-330-1, 500-23-1, 500-92).
Paul Adams, director of ergonomics at Owens-Corning, suggested that
OSHA should adopt a set of alternative triggers from which employers
could choose (Tr. 10630, 10633).
    OSHA believes many of these concerns resulted from a
misunderstanding of the screening criteria in the proposal. However,
the Agency also recognizes the validity of the concerns that those
screening criteria were not clear enough to provide adequate assistance
to employers trying to screen out non-work-related MSDs (Exs. 30-1722,
30-3956, 500-18, Tr. 8847, 16969-70). OSHA has addressed these concerns
through the new definition of ``MSD incident'' in paragraph (e)(1) and
the Basic Screening Tool in Table 1. The result is a single-incident
trigger that is only half of the standard's action trigger and does
not, by itself, require employers to implement a full ergonomics
program or impose other substantial obligations on them.
    A single-MSD trigger is appropriate for this purpose. Most
important, a one MSD trigger is necessary to prevent the occurrence of
serious and disabling MSDs. There is abundant record evidence that
early detection and intervention can halt the progression of most MSDs,
and reduce their severity (Tr. 7687-88, Ex. 32-450-1). On the other
hand, where medical treatment and ergonomic interventions are delayed,
it is more likely that conservative treatment will be less effective or
will not even be an available option, or that the MSD condition will
not be reversible and the employee will be permanently disabled (Ex.
38-285). For example, if carpal tunnel syndrome and other nerve-related
MSDs go untreated long enough, damage to the nerves will be
irreversible (Ex. 37-17, Tr. 13349 (the nerve dies)). If OSHA included
a multiple-incident trigger, the first employee to be injured could
become permanently disabled while waiting for other MSDs to trigger the
employer's obligations to provide MSD management and ergonomic
intervention. This would be particularly likely in small businesses and
in workplaces where relatively few people perform the same job (Ex. 32-
450-1). In addition, not acting on the first MSD may discourage other
employees from reporting their MSD signs and symptoms (Ex. 32-450-1).
    The use of a single MSD trigger is also consistent with employer
practice. Many employers testified that they respond to all employee
reports of injury or illness, including MSDs (Ex. 37-2, Tr. 5358, 5359-
60, 5503, 5539, 14707, 14739, 17312-13). Even employers who recommended
that OSHA adopt a multiple-incident trigger testified that they
themselves conduct investigations of every report of injury, including
MSD signs and symptoms (Tr. 2920, 5503, 5358). For example, James
Lancour, safety and health regulatory consultant with Southern Company
Services, testifying on behalf of Edison Electric Institute, said:

    [We] have a reporting mechanism where signs and symptoms are
reported. Then we have, it's turned over to the industrial hygiene
group to go out and do a job assessment. And, again, depending upon
what they find out it may be something that can be unique to that
particular person or workstation, et cetera, or it may require more
in-depth analysis. So basically depending upon the job they take a
look at what they're trying to determine how simple or complex the
problem might be, and then go through and develop an assessment
protocol based on that operation (Tr. 2920).

When questioned, no employer testified that it was company policy to
wait until a second or third employee gets hurt in a job before
investigating the first injury. This suggests that employers understand
the importance of responding to each report of injury and, in practice,
do not consider it appropriate to ignore individual reports of injury.
    Other evidence in the record also shows that a one MSD trigger
should not

[[Page 68308]]

impose an undue burden on employers. As discussed above, most small
manufacturing establishments do not experience any injuries or
illnesses in any given year (Exs. 30-542, 30-3167, 500-1-128, Tr. 2980,
3073, 3096). In fact, many establishments do not experience any
injuries or illnesses over a considerable period. According to a report
prepared for the Small Business Administration Office of Advocacy, 75
percent of manufacturing establishments with fewer than 11 employees,
50 percent with 11-50 employees, and 25 percent of those with 50-249
employees would experience almost no MSD incidents in any given 6-year
period. (See also Economic Analysis, chapters III and IV.) If this
standard were to adopt a multiple MSD requirement, particularly one
requiring at least two MSDs in the same job during a single year,
injured employees in many establishments might never be provided with
needed medical intervention or protection from additional injuries
because it would take so long for the triggering event to occur.
    The changes in the definition of ``MSD incident,'' and the new
Basic Screening Tool, both discussed below, will also help to address
the concerns of some commenters that significant employer action will
be triggered by the report of ``any ache or pain,'' whether or not it
is work related (Exs. 30-1722, 30-2208, 30-3956, 500-52). P.J.
Edington, executive director of the Center for Office Technology, said:

    OSHA assumes any discomfort on the job is work-related. That
leaves all employers in a continuous and costly cycle of trying to
eliminate all ``signs and symptoms'' of MSDs (Ex. 30-2208).

    But employers have the right under this final rule to make
reasonable determinations that particular MSDs are not work related.
And only MSDs severe enough to require medical treatment or a job
restriction, or signs and symptoms persistent enough to last for seven
consecutive days, have any triggering effect. Moreover, the standard's
Basic Screening Tool establishes specific thresholds for the duration,
magnitude and frequency of exposure to risk factors that a job must
involve in order for an MSD incident in that job to be one that
triggers the standard's program requirements.
    The final rule also takes into account the concerns of commenters
that a single incident trigger ignores the fact that an MSD may be
related to the ``unique physical characteristics'' of the worker (Exs.
30-328, 30-1651, 30-2208, 500-1-27, Tr. 5660-61). For example, where
the employer has reason to believe that only the injured employee is
exposed to awkward postures because he or she is very tall or very
short, the employer can limit the response to that individual
employee's job or workstation. See paragraph (j), below.

3. Definition of ``MSD Incident''

    In this standard, the term ``MSD incident'' means either an MSD
that is work-related and:
     Involves a work restriction, or
     Requires medical treatment beyond first aid, or
     Involves MSD signs or symptoms that are work-related and
persist for 7 or more consecutive days after the employee reports them
to the employer.

    Work restriction is defined to mean one or more days away from
work, one or more days of limitations on the work activities of the
employee's current job or temporary transfer to alternative duty.
Reducing an employee's work requirements in a new job to reduce muscle
soreness from the use of muscle in an unfamiliar way is not considered
a work restriction under this final rule. Also, the day an employee
first reports an MSD is not considered a day away from work or a work
restriction even if the employee is temporarily removed from work to
recover.
    Relationship to Recordkeeping Rule. The proposed rule defined a
``covered MSD'' as an OSHA recordable MSD that occurred in a job in
which the physical work activities and conditions were reasonably
likely to cause or contribute to that type of MSD, and those activities
and conditions were a core element or took up a significant amount of
the employee's worktime. In this final rule OSHA has changed the term
``covered MSD'' to ``MSD incident'' to dispel any implication that any
such MSD immediately triggers a full ergonomics program. Although some
participants found the definition of covered MSD to be ``relatively
clear'' (Exs. 30-3934, 30-4837; 31-173, 31-186, 31-205, 31-229, 31-
347), many more objected that it covered too many MSDs, was too vague,
or was improperly linked to OSHA's recordkeeping rule (Exs. 30-1364,
30-1722, 30-2088, 30-3167, 30-3845, 30-3956, 500-73, 500-104, 32-337-1,
Tr. 4366, 8226, 10000, 12797, 15977). The new definitions of MSD and
Action Trigger in this standard address these concerns.
    OSHA received a great deal of comment on the proposal's use of an
OSHA-recordable MSD, i.e., an MSD required by 29 CFR Part 1904 to be
recorded on the employer's injury/illness log, as a trigger for further
action. Many of these comments pointed out potential problems that
could be caused by linking an employer's obligations under this
standard to obligations and interpretations contained in a separate
rule (Exs. 30-3853, 30-4137, 32-77-2, Tr. 10632). This problem was
highlighted by the facts that OSHA has proposed to amend its
recordkeeping rule, so that it has not been clear at any stage of this
ergonomics rulemaking what the definition of an OSHA-recordable MSD
would be, and that OSHA incorrectly described the recordability of one
class of MSDs in the proposal (Exs. 30-3853, 32-78-1, 32-300-1).
Moreover, according to commenters, linking the definition of MSD
incident to the recordkeeping regulations would give employers a strong
incentive to underreport MSDs or would punish employers who already
have effective early intervention programs (Exs. 30-46, 30-75, 30-137,
30-1294, 30-1902, 30-4137, Tr. 8848, 10630-32).
    OSHA agrees that these concerns, particularly those related to the
ongoing recordkeeping rulemaking, outweigh any potential benefit
employers would gain from being able to use recordability criteria to
determine whether an MSD report triggers further action under this
standard. Therefore, in this final standard, OSHA has dropped any
reference to the recordkeeping rule's recordability criteria. Although
the definition of an MSD incident in this standard uses criteria
similar to those used in determining recordability, each of the
criteria used in this rule is supported by evidence in this rulemaking
record. This has also allowed OSHA to tailor the definition of an MSD
incident so that it more closely corresponds with the purposes of this
standard.
    Definition of ``musculoskeletal disorder.'' For purposes of this
rule, an MSD is a disorder of the soft tissues, specifically of the
muscles, nerves, tendons, ligaments, joints, cartilage, blood vessels
and spinal discs that is not caused by a slip, trip, fall, or motor
vehicle accident. See paragraph (z). This standard covers MSDs
affecting the neck, shoulder, elbow, forearm, wrist, hand, back, knee,
ankle, and foot as well as abdominal hernias. It does not, however,
cover eye disorders, even when associated with jobs involving computer
monitors.
    Although some commenters recommended that the standard address
conditions resulting from slips, trips, and falls (Ex. DC 58, DC 405),
those injuries are not caused by exposure to the risk factors this
standard covers. For the same reason the final rule does not cover
computer-related eyestrain, which

[[Page 68309]]

is caused by factors such as glare from lights and windows, computer
flicker and other monitor resolution problems, and by not blinking or
looking away from the screen (Tr. 16159-66).
    ``Work-related.'' In paragraph (z), ``work-related,'' is defined to
mean that a workplace exposure caused or contributed to an MSD incident
or significantly aggravated a pre-existing MSD. This is a change from
the proposal, which would have considered an MSD work-related if
physical work activities and conditions caused or contributed to an MSD
or aggravated a pre-existing one. Many commenters complained that the
proposed definition of work-related, in essence, established a
presumption of work-relatedness (Exs. 30-1722, 30-3934, 30-3956, DC65,
500-1-28). The Chamber of Commerce said that the rule should not cover
``minimal workplace exposure that merely aggravates non-work
exposures'' (Ex. 30-1722, p. 62). Mike Edmunds, corporate safety
director for Tyson Foods, said:

    Even if upper extremity musculoskeletal pain (e.g., wrist pain)
arises solely as a result of non-work-related activities, it is
virtually impossible for an employer or physician to establish that
subsequent work activities did not in some minor way `aggravate' or
`contribute' in some way to the condition--regardless of the job
(Ex. 30-4137).

To address this concern, a number of commenters recommended
incorporating language from various State workers' compensation
regulations so that an MSD would be considered work-related only where
work was the predominant cause of the injury or was more than 50
percent responsible for the injury (Exs. 30-3934, 32-77-2, Tr. 5507).
Others recommended that OSHA adopt the definition of work-relatedness
from California's ergonomics standard, i.e., that work must be 51
percent responsible for the MSD (Ex. 32-300-1). Several suggested that
the MSD incident not include pre-existing MSDs (Tr. 3097-98).
    OSHA believes that some of these concerns resulted from a
misunderstanding about what ``contribute to'' means. It does not mean
that an MSD is considered to be work-related if work contributes in
some de minimis (e.g., ``1% contribution'' (Ex. 30-3934)) or vague way.
Rather, work contributes to an MSD if a specific physical work activity
or condition can be identified as having contributed in some
discernable way to the onset of the MSD or the signs or symptoms of an
MSD. If nothing specific can be identified as a factor, then work is
not considered to have contributed to the MSD.
    OSHA also has responded to concerns that, once an employee has an
MSD, minor aggravations of the MSD can occur very easily (Tr. 3315). In
the final rule, only ``significant'' aggravation of a pre-existing MSD
is considered to be an MSD incident. ``Significant aggravation'' occurs
only when risk factor exposures in the workplace aggravate a pre-
existing MSD to the extent that it results in an outcome that it would
not otherwise have caused. For example, workplace exposure is
considered to have significantly aggravated an employee's pre-existing
MSD if the MSD would have resolved on its own or with only first aid,
but because of the employee's exposure to identified risk factors in
the workplace, the MSD has progressed to the extent that medical
treatment is now necessary. On the other hand, if an employee
experiences more pain when at work, simply because the employee is
using an injured body part, that extra pain does not constitute
significant aggravation. In addition, workplace exposure aggravates an
MSD only where a specific physical work activity or condition can be
identified as a factor in the progression of the pre-existing MSD.
    Although the employer is ultimately responsible for determining
whether an MSD is work-related, employers may consult with others, such
as HCPs or safety and health personnel at the workplace, in making that
determination. Where an employer uses an HCP to provide assistance in
determining the work-relatedness of an MSD, the HCP must use the
definition of work-related in this final rule and not criteria for
determining work-relatedness under workers' compensation.
    Another frequent objection to the proposed definition was that it
did not establish an adequate severity threshold and, as a result,
would have captured all the ``aches and pains of life'' that employees
experience while performing work activities (Ex. 30-3956, see also Exs.
30-1722, 30-2208, Tr. 9824). The Chamber of Commerce said that MSD was
``so loosely defined as to cover unverified complaints of pain rather
than just objectively verifiable medical conditions'' (Ex. 30-1722, p.
61). The severity criteria in the final rule address this complaint. In
deciding to include within its definition only those MSDs resulting in
a work restriction, in medical treatment beyond first aid, and in MSD
signs or symptoms lasting at least 7 days after being reported to the
employer, OSHA is adopting appropriate medical severity thresholds.
    Work restriction. A work restriction in this context means at least
one full day when the injured employee either must take off the entire
work day for recuperation or medical treatment, or is able to work for
only a portion of the workday or to perform only some job functions,
either regular or alternative tasks, during the recovery period. The
latter category includes job transfer, light duty jobs, and alternative
duty jobs. Employees who cannot work regularly scheduled or mandatory
overtime during the recovery period are also considered to be on work
restriction. Neither the initial day on which the MSD is reported or
occurred, nor any day on which the employee is not scheduled to work,
is counted as a day of work restriction.
    On the other hand, the standard now makes clear that work
restrictions do not include situations where an employer adjusts the
work assignments to deal with the temporary muscle soreness that an
employee may experience as a result of starting a job that requires the
use of muscles in an unfamiliar way (paragraph (z)). The record
indicates that some employers have ``conditioning'' programs, most
often lasting about two weeks, to help employees adjust to this type of
new job assignment (64 FR 65955 (Case Study No. 2), (Exs. 26-1175, 30-
4340, Tr. 9225, 9403, 13589). These programs recognize that it is not
uncommon for employees to experience pain or stiffness when they begin
exercising muscle groups in new or more strenuous ways (Exs. 26-1175,
30-4340). In these situations, pain or soreness may not indicate the
presence of an MSD hazard. In most cases these symptoms resolve as the
employee becomes accustomed to the physical activities of the job (Ex.
26-1175). They do not indicate that a hazard needing to be controlled
may exist. OSHA believes that this clarification will help alleviate
the concerns of some commenters that the single-incident trigger would
not only trigger coverage of passing aches and pains, but could also
trigger WRP obligations for employees who experience symptoms while
they are becoming accustomed to a new job (Ex. 30-4340, Tr. 4316-17).
    Medical conditions that result in work restrictions are widely
recognized as serious (Exs. 26-1039, 37-1, 37-12, 37-28). Repeatedly,
physicians and other HCPs testified that they consider MSDs that rise
to this level to warrant both medical evaluation and intervention and
job interventions (Exs. 37-1, 37-12, 37-28). Accepted standards of
clinical practice, reflected in guidelines published by medical
associations, also recommend intervention at least at this stage (Exs.
37-12, 500-34, 26-1039). For

[[Page 68310]]

example, guidelines on low back disorders (developed by a panel of
private sector clinicians for the Agency for Health Care Policy and
Research that recommend strategies for assessing and treating low back
problems) defined low back problems as ``activity intolerance due to
low back symptoms,'' such as pain (Ex. 26-1039, p. 1).
    The insurance industry also considers conditions that are severe
enough to require work restrictions to constitute medical disability
(Exs. 37-1, 37-6, 37-12, 37-28). These conditions are often compensable
through workers' compensation, and insurance companies consider them to
be serious (Ex. 37-6). According to Stover Snook, former director of
the Ergonomics Laboratories at Liberty Mutual Insurance Company who
conducted ergonomics research at the company for more than 30 years,
the accepted definition of ``low back disability'' in the insurance
industry is ``lost time or restricted duty that results from low back
pain'' (Ex. 37-6, p. 3).
    Medical treatment beyond first aid. The definition of MSD incident
includes MSD signs and symptoms that require medical treatment beyond
first aid. This is a familiar concept that is also used in OSHA's
recordkeeping regulation. It also makes no difference whether an
employee obtains medical treatment from his or her own HCP or one
selected by the employer; or whether the employee obtains medical
treatment before or after reporting the MSD signs or symptoms to the
employer. Physicians and other HCPs testified that MSDs that require
medical treatment such as physical therapy, prescription medication or
surgery are more serious than conditions where resting the injured body
area is enough to allow the injury to heal (Exs. 37-1, 37-12, 37-16,
37-17, 37-28).
    Persistent MSD signs or symptoms. The third type of MSD incident is
MSD signs or symptoms that persist for at least 7 days after being
reported to the employer. ``MSD signs'' are defined in paragraph (z) as
objective physical findings that an employee may be developing an MSD.
MSD signs include deformity, decreased grip strength or range of
motion, and loss of function. Some signs are readily observable, for
instance, loss of function when an employee with carpal tunnel syndrome
cannot hold a powered hand tool because of muscle atrophy in the hand.
Other signs, commenters said, may not be as observable to non-HCPs (Tr.
7677). For this and other reasons, MSD signs are treated in the same
way as MSD symptoms in the final rule. Under the proposed rule, any MSD
sign would have been a ``covered MSD'' because it is a recordable event
under OSHA's recordkeeping rule. This raised concerns for a number of
commenters, who pointed out that some signs, such as redness, may be
mild and transitory, not warranting a full program response (Exs. 30-
3344, 30-3749, 30-4674, 32-211).
    ``MSD symptoms,'' as defined in paragraph (z), are other physical
indications that an employee may be developing an MSD. Symptoms include
pain, numbness, tingling, burning, cramping, and stiffness. The
proposed rule would only have addressed persistent symptoms in
manufacturing and manual handling jobs, and then only if the employer
knew that an MSD hazard existed in the injured employee's job.
    A number of commenters opposed the proposal's inclusion of
persistent symptoms in its trigger mechanism (Exs. 30-623, 30-898, 30-
1722, 30-4777, 30-4821, 32-78, Tr. 10634). Some recommended at least
limiting the types of symptoms included in the definition of an MSD
incident (Ex. 32-78, Tr. 10634). For example, ORC said:

    At a minimum, * * * OSHA must limit coverage to those symptoms
that can be medically verified and that fall somewhere in the
severity range between minor/transient and severe enough to
interfere materially with job performance (Ex. 32-78, p. 17).

    Other commenters, however, agreed with the inclusion of persistent
symptoms in the incident trigger (Ex. 500-218, Tr. 12295), and
virtually all of those urged OSHA to extend this criterion to all jobs,
not just those in manufacturing and manual handling (Exs. 32-198, 500-
218). A number of HCPs were among those supporting, including
persistent signs and symptoms in the MSD incident trigger (Exs. 37-1,
37-12, 37-28, Tr. 7660, 13349). They said that persistent signs and
symptoms should be evaluated because, left untreated, they often
progress into more serious disorders and permanent damage (Tr. 7660,
7884, see also Ex. 32-450-1). One study has shown that employees
experiencing MSD symptoms alone are at approximately 2 to 4 times the
risk of being off work as employees without such symptoms (Ex. 500-71-
27). A number of employers now encourage employees to report signs and
symptoms to prevent such results and related costs (Tr. 5539, 5550,
14707, 14739).
    The record establishes clearly that MSD signs and symptoms that
persist uninterrupted warrant further investigation (Ex. 30-4468, 500-
71-27, 37-12, Tr. 1531, 13382, 1763-65). Sound medical judgment
supports intervening when an employee has experienced at least a week
of MSD signs or symptoms. Dr. Bradley Evanoff, Assistant Professor of
Medicine at Washington University School of Medicine specializing in
research and clinical practice addressing occupational MSDs, testified:

    I think whatever the occupation, whatever the type of work, if
someone has had persistent musculoskeletal symptoms for some period
[of] time, and I think a week is a reasonable period of time, then
they should be evaluated to see if they have a musculoskeletal
disorder (Tr. 1531).

    Dr. Robin Herbert, medical director of the Mount Sinai Center for
Occupational and Environmental Medicine, testified that providing early
intervention for employees whose symptoms persist beyond a few days is
``consistent with accepted medical practice'' (Tr. 1653). In fact,
according to ACOEM, such intervention is ``essential'' (Ex. 30-4468).
Dr. Robert Harrison, who has treated more than 1,000 patients with
work-related MSDs over the past 20 years, and has also conducted
research in the area of work-related MSDs, testified that there is
``broad consensus among the medical profession that effective treatment
and prevention of MSDs relies on early reporting of symptoms. * * *''
(Ex. 37-12). He also summed up why 7 days is an appropriate threshold:

    [S]even days is early enough to catch the symptoms early but is
late enough so that transient symptoms that may last only two or
three days don't come through as a reportable symptom to a health
care provider. I think it's a reasonable line (Tr. 1764).

    The record shows that where signs and symptoms persist beyond a few
days, they are likely to indicate that an MSD has occurred. Dr. Gary
Franklin confirmed that MSDs can develop in a very short period of
time:

    If I was taking the history of the person and getting these
kinds of symptoms of numbness and tingling and burning particularly
at night, it would not matter to me whether it was two days or seven
days or 14 days, if I thought clinically the symptoms were correct.
I have seen patients that developed [carpal tunnel syndrome] in a
day or two (Tr. 13382).

HCPs also testified that employees who have had MSD signs or symptoms
for only a short period of time can already be experiencing physiologic
changes or damage (Ex. 37-16). For instance, Dr. Evanoff testified:

    I think people who have prolonged symptoms, lasting more than a
few days * * * if you want to use the cut off of a week


[[Continued on page 68311]]


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[[Continued from page 68310]]

[[Page 68311]]

or more, I think that that's very likely to represent some
underlying tissue damage. * * * (Tr. 1563).

Peter Boyle, former professor of orthopedic physical therapy, agreed:

    A large amount of force in a short time could create a
pathoanatomic injury causing disruption, and [tissue] failure (Tr.
2797-98).

In addition, persistent signs and symptoms can themselves be severe
enough to interfere significantly with major life activities (Tr.
13356. 13360, 13373). Dr. Connell testified:

    A typical carpal tunnel patient would come in complaining of
numbness and tingling in the distribution of the median nerve.
Typically it occurs initially at night and wakes one out of a sleep
for some reason--4 a.m. seems to be the magic number (Tr. 2817).

    Moreover, the persistence of signs and symptoms can be an
indication that an MSD is worsening, and early detection and
intervention are ``critical to prevention of more serious disorders,''
in the words of Dr. Robert McCunney, president of the American College
of Occupational and Environmental Medicine (ACOEM) (Tr. 7660). Dr. Marc
Connell, an orthopedic surgeon at Georgetown University Hospital,
added: ``I think that's common medical sense that the earlier the
treatment is rendered the less severe will be the MSD'' (Tr. 2833). Dr.
Edward Bernacki, vice-president of ACOEM, said:

    Obviously, the earlier you pick up a problem, the more
reversible it is, so obviously, the encouragement of employees to
come in at the first signs of a problem, so that we could work it
up, and then basically start treating the illness when it is
reversible, in other words, if you have irreversible nerve damage,
that is basically too late. Then, you need surgical intervention.
However, for example, in carpal tunnel early on when the disease is
reversible, mere splinting and restriction of activities are fine,
it takes care of the problem, it disappears (Tr. 7687-88).

(See also Exs. 26-1367, 32-450-1, 37-24, Tr. 1530, 1697-98, 2853, 2833,
7649-50, 7687-88, 7883-84, 9831.)
    In addition to reducing the severity of MSDs, early intervention
has been shown to reduce MSD rates and associated medical costs (Exs.
32-12, 32-339-1-87, 32-399-1-4, 32-450-1 (citing Hales et al. 1993)).
Dr. Bernacki described a study of the effect on 22,000 employees at
Johns Hopkins Hospital and University of an ergonomics program that
stressed early reporting of MSD signs and symptoms (Ex. 32-399-1-4, Tr.
7691-92). The study reported an 80 percent reduction in MSDs after the
program and early intervention were implemented.
    Early intervention also increases the availability and
effectiveness of conservative therapy. Several HCPs told OSHA that,
when MSDs are treated early, symptoms ``have been completely resolved
with a brief period of restricted work activities'' (Ex. 37-12, Tr.
13345-46). Dr. Harrison said:

    Employees often rapidly and completely recover from their MSD
with simple modification of the work process or change of job duties
to minimize or reduce exposure to ergonomic risk factors (Ex. 37-12,
p. 5).

Dr. Franklin added that where employees with carpal tunnel syndrome are
provided with early intervention they should be able to return right
away to modified work and that work restrictions should not be needed
for a prolonged period of time (Tr. 13345-46). Dr. Bernacki testified
that, as a result of the early reporting and intervention program at
Johns Hopkins, there had been only one surgery for work-related carpal
tunnel syndrome during the past 5 years, compared with 26 such
surgeries in the previous three years (Exs. 32-399-1-4, p. 7-8).
    Early intervention also is likely to be more effective in helping
patients recover fully (Exs. 37-12, 38-222, 38-451, 500-71-57). Dr.
Harrison said:

    At an early stage of symptom management, treatment with anti-
inflammatory medications, splints, and rest of the affected body
part often results in complete clinical improvement without any
permanent injury (Ex. 37-12, p. 5).

Dr. Michael Erdil, medical director of the Connecticut Occupational
Health Network, said that both scientific evidence and his own clinical
experience show that conservative therapy is much more likely to be
effective as an early intervention (Ex. 37-16, citing Kruger et al.
(1991) (Ex. 26-910), Gelberman et al. (Ex. 26-916) (1980), Quebec
(1987), Zigenfus et al. (2000) (Ex. 38-285). Zigenfus found that
patients with low back injuries who were provided with medical
treatment earlier (i.e., less than 8 days after injury) required fewer
days away from work and restricted work and had shorter case duration
(Ex. 38-285). Dr. Evanoff explained that the medical literature
consistently shows that:

    [C]onservative management of MSDs is most effective when begun
in early stages of these disorders, and that patients who are
treated only after a prolonged symptomatic period are less likely to
respond favorably than those treated earlier (Ex. 37-1, citing
Dellon (1989), Stern (1990), Rystrom & Eversman (1991)).

    Similarly, Dr. McCunney of ACOEM testified that:

    ACOEM supports the requirement of a mechanism for employees to
report MSD signs and symptoms since early detection is critical * *
* [M]y colleague and I can regale you with all sorts of anecdotes
about people who have waited too long to seek medical treatment, and
then once they come for medical treatment, the treatment is not as
effective as it could have been were they to have come earlier (Tr.
7649-50).

Dr. Harrison discussed the case of one worker who did not receive early
intervention:

    [A] twenty-five year old machine operator recently came into my
office for treatment of severe hand pain and swelling. She had
worked 9 months in a job that required her to use excessive force to
press a lever over 20,000 times per day, using her hands in a pinch
grip with her wrist in an awkward posture. She had developed
symptoms after three months of work, but had not seen a health care
provider after her supervisor told her that she would ``feel
better'' after she ``got used to the job.'' By the time she finally
came to see me, she was unable to drive her car, shake my hand or
open a door. My examination showed marked swelling and redness of
the right wrist, and the pain was so severe she cried [at] my touch
or gentle movement. My diagnosis was chronic, stenosing
tenosynovitis. I had little option but to remove her from work
completely for four weeks to let the hand rest. Unfortunately, she
was unable to return to work in spite of corticosteroid injections,
splints, analgesic medication and physical therapy. She required
surgery to release the tendon, and is now in a prolonged
rehabilitation program.

This case is not unusual. (Ex. 37-12).
    By including persistent signs and symptoms within the standard's
definition of an MSD incident, OSHA assures that early intervention can
occur and that medical outcomes like that described by Dr. Harrison
will not occur.
    For these reasons, a number of HCPs and employers said that they
investigate MSD signs or symptoms as soon as they are reported (Exs.
30-390, 30-398, 500-218, Tr. 5539, 5550, 9906, 13382). Dr. Franklin
stated:

    If I was taking the history from the person and getting these
kinds of symptoms of numbness and tingling and burning particularly
at night, it would not matter to me whether it was two days or seven
days or 14 days, if I thought clinically the symptoms were correct.
I have seen patients that developed [carpal tunnel] in a day or two
(Tr. 13382).

Several employers said that their standard response is to investigate
any report of MSD signs or symptoms (Tr. 5539, 5550, 14715-16). Sean
Cady, of Levi Straus & Co., said:

    Well we believe that symptoms could be precursors to a possible
repetitive motion injury. And therefore if we know about a symptom
early we can evaluate a job for ergonomic risk factors and possibly
modify that job to reduce risk factors prior to the

[[Page 68312]]

possible occurrence of an injury. And also, early reporting of
symptoms is a trigger for our quick response system or quick
response process (Tr. 14715-16).

Some employers provide restricted work when an employee reports MSD
signs or symptoms to let the symptoms resolve quickly without medical
treatment, and to allow the employer to examine the job (Ex. 26-1370).
Other employers said their standard practice is to send any employee
who reports MSD signs or symptoms to an HCP immediately (Tr. 3867).
    These employers told OSHA that their early intervention programs,
particularly restricted work and light duty, have proven to reduce the
severity and costs of MSDs significantly (Ex. 30-4137). Even after the
rule becomes effective, OSHA believes that employers who have seen the
advantage and effectiveness of such intervention programs will continue
to follow them rather than delaying intervention while they wait to see
whether the employee's MSD signs or symptoms persist. However, for
those employers who have not yet implemented early intervention
programs, including the persistent signs and symptoms criterion in the
final rule will help to ensure that employees are provided with
appropriate MSD management and work restrictions while their condition
is still reversible.
    This evidence is part of the reason that OSHA does not agree with
the commenters who argued that signs and symptoms are too subjective
and difficult to verify to be an appropriate trigger for action under
this standard (Exs. 30-1722, 30-3345, 30-4340, 500-1-23, 500-1-117, Tr.
5507). Other evidence establishes that MSD signs are often easily
observable (Tr. 2828). For example, an employee's decreased range of
motion can be identified by the employee's inability to raise his arms
above his shoulders or to bend over to lift an object. Objective
physical findings also include positive results on medical tests such
as nerve conduction velocity tests, CT scans, or x-rays.
    The presence of MSD symptoms can also be confirmed through physical
examination by an HCP (Ex. 37-12, 37-28, Tr. 13404). Dr. Robert
Harrison testified that there are several ways to confirm the presence
of both MSD signs and symptoms, including palpation or movement of the
affected body part during the physical examination (Ex. 37-12). Dr.
Gary Franklin, of the University of Washington School of Public Health
and Community Medicine, testified that symptoms of carpal tunnel
syndrome, for instance, can be verified through absence of reflexes and
nerve conduction tests and even the Katz hand paint diagram (Tr. 13380,
13404). According to Dr. Franklin, the best case definition of carpal
tunnel syndrome is the presence of symptoms plus a positive nerve
conduction test. However, Dr. Franklin also said that in some
circumstances HCPs can reliably determine, based on symptoms alone,
whether a patient has carpal tunnel syndrome: ``one could make a
reasonable determination based on symptoms alone if you thought it was
possible that somebody had carpal tunnel syndrome.'' (Tr. 13384-88).
Dr. Margit Bleecker, Director of the Center for Occupational and
Environmental Neurology at Johns Hopkins University, testified:

    I think as somebody who has worked many years in this area, you
certainly can diagnose carpal tunnel syndrome by the history and the
physical examination. The only time that you absolutely need to have
the EMG is if you're considering surgery (Tr. 16901).

Dr. George Piligian, who is with the Mount Sinai Center for
Occupational and Environmental Medicine and for the past 10 years has
been treating workers with MSDs, added:

    We use principles in medicine, and as you may or may not know,
80 percent of medical diagnoses, all medical diagnoses, not just
work-related ones, are arrived at by history and complaints. Then,
we add to them, the physical diagnosis, and finally, the testing.
This has been the way medicine has gone on for ages, and those who
have written the most respectable textbooks say that, and many
doctors who go right to the objective number, which they worship,
and leave out those 80 percent arrive at the wrong diagnosis, and
thereby give the wrong treatment. So, it is still seeing, listening,
recording, putting it all together that arrives at the medical
diagnosis, and they can be arrived at (Tr. 7851-52).

    OSHA has, however, responded to the comments that certain MSD
signs, such as redness, may be transient or may be a sign of something
other than an MSD (Tr. 5507). As mentioned, in this final rule, MSD
signs are treated the same way as MSD symptoms, so that only those
signs that persist for 7 days after being reported to the employer or
that meet the other severity criteria require further action. The
proposal would have required action whenever an employee reported an
MSD sign because all positive signs must be recorded under OSHA's
recordkeeping rule. OSHA has also eliminated the reference in the
proposal to Finkelstein's, Phalen's and Tinel's tests as examples of
the kinds of positive tests that would constitute MSD signs. The record
shows that these tests are not considered reliable by a growing number
of HCPs and, in any event, have been replaced with other medical tests
such as nerve conduction tests (Ex. 37-2, Tr. 13363, 13375).
    Other differences between the proposed definition of a ``covered
MSD'' and this final standard's definition of an ``MSD incident''
further show OSHA's intent not to address the type of minor and
transient symptoms that can be expected to resolve spontaneously in a
matter of days even without intervention. The final rule, unlike the
proposal, does not include the diagnosis of an MSD in the definition of
MSD incident. As mentioned, the standard also now makes clear that an
MSD is not work-related unless workplace exposures caused or
contributed to it, or were responsible for a significant aggravation of
a preexisting injury. These changes respond to comments that the
proposal could have required a full ergonomics program in situations
where workplace exposures contributed only trivially to the employee's
condition (Exs. 30-1722, 30-3934, 30-3956, 500-73, Tr. 3097-98).
    Clearly, MSDs qualifying as MSD incidents under the definition in
the final rule are the types of conditions that OSHA may act to
prevent. See Occupational Noise Exposure (29 CFR 1910.95, 46 FR 46236),
Occupational Exposure to Formaldehyde (29 CFR 1910.1048, 52 FR 46168,
46234-37), and Section VII (Significance of Risk) of the Preamble. It
is even more clearly within OSHA's authority to require employees to
investigate them further to determine whether they were caused by
hazards that this standard addresses.

Paragraph (f)--How Do I Determine Whether the Employee's Job Meets the
Action Trigger?

    Paragraph (f) tells employers how to determine whether a job where
an MSD incident has occurred meets the standard's two-part Action
Trigger. According to paragraph (f)(1)(i), the first part of the Action
Trigger is a determination that an MSD incident has occurred. Paragraph
(f)(1)(ii) states that the second step is a determination that the
injured employee's job meets the Basic Screening Tool in Table 1 of
this standard. Paragraph (f)(2) explains that if the job does not meet
the Action Trigger, the employer has no further obligations with
respect to that job.
    The second step of the action trigger requires application of the
Basic Screening Tool in Table 1 to the injured employee's job. A job is
screened in, i.e., is determined to meet the levels in the Basic
Screening Tool, if it regularly involves exposure to one or more of the
risk factors in the Basic Screening Tool at levels above those
specified in the tool. Only where the job is screened in

[[Page 68313]]

does the employer have further obligations under the standard.
    The proposed rule also included an exposure screen. The proposed
screen would have ruled out jobs where the ``physical work activities
and conditions'' in the job were not associated with the ``type of MSD
reported,'' or were not ``reasonably likely'' to cause or contribute to
an MSD. It also would have ruled out jobs in which the employee's
exposure to the risk factors was not a ``core'' element of his or her
job, or did not make up a ``significant'' amount of the employee's
workday.
    Thus, the proposed standard contained performance-oriented language
(``core element,'' ``significant amount'' of time) to define the terms
of the screening criteria. In the preamble to the proposal, OSHA also
used performance-oriented language in discussing the meaning of core
element, describing the term as a ``regular and routine exposure.'' On
the whole, most commenters supported the concept of an exposure screen,
but many said that OSHA had not provided enough guidance for them to
understand when a nexus existed between an MSD and a job or what the
exposure severity threshold was for a job. For example, they complained
that the terms were too vague and undefined to answer those questions
(see, e.g., Exs. 30-1722, 30-3032, 30-3853, 30-3956, 30-4340, 30-4837,
31-92, 31-125, 31-223, 31-225, 31-260, 31-307, 30-300, 32-337, DC66,
Tr. 3337, 8849, 8850).
    The following comments are representative:

    The terms ``core element'' and ``significant amount'' are not
clear. While extreme examples can be easily defined, extreme
examples are few and far between in the real world. Most of the
time, examples fall into ``grey'' areas. These terms either need
specific definitions or should be replaced with other terms (Ex. 30-
4837).
    Does [core element] indicate that the employee will be required
to perform a manual handling task some time during his/her shift,
i.e., one 50-lb. Lift throughout an 8-hour work shift, or does it
indicate that some repetition is involved with the manual handling
portion of the task, i.e., lifting 20 10-lb. packages per hour for 8
hours? (Ex. 30-4837).
    How much is significant? 6 hours per 8-hr shift? 4 hours per 8-
hr. shift? 2 hours per 8-hr. shift? Or 22-hr. periods per 8-hr.
shift? (Ex. 30-4837).

The Rohm and Haas Company said:

    [I]t is unclear what OSHA means by the subjective terms used as
shown below. ``* * * significant amount of their worktime * * *'' *
* * [and] ``* * * core element of the employee's job.'' It is
unclear how OSHA would be able to determine consistently the
applicability of the standard in specific situations in the absence
of a criteria to guide decision-making on whether the work time was
significant, the applied force was forceful, or whether the material
handling was a core element of the employee's job. * * * In the
absence of an explanation of what OSHA intends these subjective
terms to mean, it is unclear how to decide whether a particular
activity fits the definitions and therefore whether it is covered by
the standard. (Ex. 31-289)

National Small Business United testified that:

    The employers, especially the smaller employer, * * * needs more
specific guidance in terms of the types of jobs to be looking at and
specifically as the types of activities in those jobs and how much
of what kind of activities is too much for what type of person. (Tr.
2746)

Con Ed stated:

    Throughout the standard, OSHA uses terms that are vague and open
to interpretation such as: reasonably likely, core job element and
other similar terms. These terms require clarification so OSHA and
employers interpret them consistently. (Tr. at 4628)

In addition, ORC added that:

    The proposed trigger simply does not fulfill OSHA's
responsibility to provide adequate guidance with respect to
employer's obligations. * * * OSHA must do a better job of defining
a point at which an employerint at which an employer's obligations are triggered and do a
better job in establishing more objective criteria. (Tr. at 4097)

Similar comments were submitted by EEI (Ex. 32-300-1); Chamber of
Commerce (Ex. 500-188; Tr. at 3044), Color Works (Tr. at 10069),
Indiana Chamber of Commerce (Tr. at 3335), National Roofing Contractors
Association (Tr. at 4905), Food Distributors International (Tr. at
5634-35), and many others.
    Commenters further recommended that the screening criteria should
include specific, exposure-based criteria (Ex. 500-218; Ex. 500-214,
Tr. at 17905-6). In particular, ORC stated that:

    In place of the proposed screening criteria of section 902, OSHA
would set forth flexible, but objective, risk-based criteria * * *
(Ex. 500-214)

ORC added that such criteria are already contained in the record and
that ``a number of models to define at-risk conditions and work
routines are available in the literature and are cited by OSHA in its
preamble.'' (Ex. 32-78-1)
    Similarly, the AFL-CIO stated:

    While we believe the content and intent of OSH's proposed
screening criteria were clear from the text and Preamble of the
proposed rule, the AFL-CIO has several recommendations for ways in
which OSHA can respond to industry's requests for more specific
guidance and definitions. We recommend two possible approaches. The
first is to incorporate a list of risk factors and criteria similar
to the ``caution zone job'' criteria included in the state of
Washington's Ergonomic Standard (WAC 296-62-0515) which serve a
similar purpose as the screening criteria in the federal OSHA
proposal. These ``caution zone job'' criteria provide more specific
definitions of risk factors and the amount of time or frequency that
must be exceeded for these risk factors to be covered by the
standard. (Ex. 500-218)

ORC also expressed qualified support for using the state of
Washington's ``caution zone job'' criteria:

    Although the Washington State proposal itself contains
significant deficiencies, ORC believes its approach to providing
quantified alternative triggers is a rational one that could be
considered by OSHA. (Ex. 32-78-1)

    See also Tr. 9071-74.
    A preliminary exposure-based assessment as a trigger for further
actions is also widely used by participants in the rulemaking who
provided testimony on the specifics of their own ergonomics programs
(see, e.g., Ex. 32-300-1, Tr. at 2920-2927; Tr. at 5302, Tr. at 10802;
Tr. at 14142; Ex. 32-339-1-4, Tr. at 16839; Tr. at 4643-4647; Tr. at
5539-5540, 5566-5567, Tr. at 14801; Tr. at 14715). Many of these
commenters use a checklist format which contained specific descriptions
of risk factors. The Dow Chemical Company, for example, uses a short
checklist printed on a pocket size card that contains descriptions of
specific risk factors along with a duration/timing component (see,
e.g., Tr. 5311-5312, 5359, Ex. 32-77-2-1). NIOSH's Elements of an
Ergonomics Program (Ex. 26-2), also contains checklists that have
specific descriptions of risk factors, some with a duration component.
    A number of other participants also suggested that OSHA adopt
quantitative methods of defining the screen (Ex. 30-46, 30-75, 30-137,
30-293, 30-328, 30-3032, 30-3284, 30-4837, 31-23, 31-27, 31-95, 31-137,
31-187, 31-31-202, 31-301, 31-307, 31-337). Specific suggestions
included defining a core element of manual handling jobs in terms of
frequency rates for lifts (Ex. 31-337), or saying lifting was a core
element of a job that required one lift per hour (Ex. 31-259).
Suggestions for a definition of the term ``significant amount of
worktime'' included 50 percent or more of the employee's worktime,
Southern California Edison (Ex. 31-23), more than 2 hours a day, UNITE
(Ex. 32-198), or routine performance of the same task 4 hours or more
per shift or 2 hours or more

[[Page 68314]]

continuously per shift, Monsanto (Ex. 30-434).
    Some commenters thought that the screen would require them to
conduct a job hazard analysis every time an MSD was reported, just to
know whether the MSD was reasonably likely to have been caused by the
job. Rodney Smith of Freeborn & Peters said:

    Identifying ergonomic risk factors is difficult due to the
vagueness of their definition [in the proposed rule]. But how in the
world does my employer tell whether those risk factors constitute a
hazard, as that term has been defined in the standard. That is, risk
factors reasonably likely to cause or contribute to a covered MSD
(Tr. 8850).

Others also complained that it would be virtually impossible for them
ever to establish that it was not reasonably likely that exposure to
risk factors in a job could cause MSDs, when at least one MSD would
have already occurred (Ex. 30-1722, 30-4137, DC 65). In addition,
several commenters found the crucial terms ``extremely subjective,''
and believed they would be ``open to the individual interpretation of
OSHA inspectors'' (Ex. 30-3032, 31-22, 31-303, 31-307, 32-337).
    In response to those and other comments, OSHA has further clarified
and operationalized the proposed exposure screen, or severity
threshold. Once the employer determines that an MSD incident has
occurred in a job, the employer must screen the job to determine
whether it meets criteria requiring a job hazard analysis to determine
the potential hazard associated with exposure to risk factors. For ease
of use, the criteria are presented in a ``Basic Screening Tool,'' which
is a chart that contains specific descriptions of the risk factors
covered in the final rule along with duration specifications and
illustrations (see Table 1 of the regulatory text). In jobs where an
MSD incident has occurred and employee exposure to risk factors meets
the criteria laid out in the screen, the employer must proceed with the
program requirements in paragraph (g) of the standard.
    Employers with employees who report MSDs in jobs that do not meet
the specific screening criteria are not required to proceed with any of
the remaining requirements of the standard. This could include jobs
that do not involve the risk factors this standard covers or where the
injured employee's work activities do not involve the injured body
area. The screen also allows employers to screen out jobs in which the
employee's work activities do not involve enough exposure to risk
factors to require further action under this standard. In these cases,
the employer need not perform a job hazard analysis, eliminate or
control any MSD hazards, or provide training or MSD management. Where
application of the screening tool results in a job being screened in,
however, employers must implement the ergonomics program described in
paragraph (g).
    The Basic Screening Tool has been designed to minimize employer
burdens in screening jobs. It is similar to a number of screening tools
that are already in use (Exs. 26-1008 (Snook Push/Pull Tables), 32-77-
1-2 and Tr. 5336-37 (Dow Chemical), 502-12 (NIOSH Lifting Equation),
502-35 (GM-UAW checklist)). It is limited to five risk factors and, to
streamline the screening process, the tool applies the same duration
criteria to almost every risk factor/activity.
    The Basic Screening Tool in the final standard serves the same
function as the screen in the proposed rule, but, instead of
performance language, it contains specific definitions of the risk
factors and exposure durations that define a job requiring further
analysis. The definitions used in this chart are consistent with a
number of approaches and screening tools contained in the rulemaking
record, including the state of Washington's Ergonomic Standard's
``caution zone job'' checklist (Ex. 500-41); the checklists contained
in the NIOSH Elements of an Ergonomics Program (Ex. 26-2); the
checklist developed by tripartite committee of employer, employees and
government representatives for use in conducting a preliminary job
analysis under the British Columbia Ergonomics Standard (Ex. OR-388);
and others (Exs. 500-108; 32-77-2-1, 26-2, OR-348-1; 502-67)
    By utilizing language from programs and checklists that have been
used successfully by both employers and employees for many years, OSHA
fully anticipates that employers will have no difficulty in determining
whether a job meets the standard's Action Trigger. Further, as with the
proposed rule, OSHA expects that employers will be able to determine,
quickly and efficiently, if the job activities of any employee
reporting a MSD meet or exceed the criteria of the screen.
    Similar to the concept expressed in the proposed rule, the basic
screening tool in the final standard, when coupled with the occurrence
of an MSD incident in a specific job, represents an exposure-based
``action trigger'', that requires the employer to proceed with some
other provisions of the standard (in particular, job hazard analysis
and MSD management). However, jobs where the employer has determined
that an MSD incident occurred and that meet the screening criteria do
not necessarily require corrective action; the need for corrective
action is based on the results of a more detailed job hazard analysis
(see Summary and Explanation, Job Hazard Analysis section). In this
way, the screening criteria concept is similar to action levels
contained in OSHA's health standards (e.g., Benzene, 29 CFR 190.1028;
Ethylene Oxide, 29 CFR 1910.1047; Formaldehyde, 1910.1048.) In those
standards, as in the final ergonomic program standard, the inclusion of
an action level is used to differentiate between more hazardous and
less hazardous work operations, and to identify those operations where
the employer needs to focus resources.
    The screening criteria in the final standard consist of the five
risk factors that are covered in the final rule: repetition, force,
awkward postures, contact stress, and vibration. Most of the screening
tools submitted to the record contained similar risk factors. For
example, the screening tools submitted by NIOSH (Ex. 32-30-1-45), UFCW
(Ex. IL-228), the AFL-CIO (Ex. 500-71-70), the Worker's Compensation
Board of British Columbia (Ex. 500-142-12), the UAW/General Motors (Ex.
Or 348-1), Dow (Ex. 502-77-2-1), and the Washington State Department of
Labor and Industries (Ex. 502-313-6) included these same five risk
factors as specific risk categories in their screens or included
narrative questions directly related to or incorporating these same
risk factors. In addition, these are the risk factors addressed in the
epidemiological literature on ergonomics and discussed in the Health
Effects section (Section V) of this preamble.
    The proposal also included static postures, whole body vibration,
and cold in the list of risk factors. The evidence discussed in the
Health Effects section of this Preamble has convinced OSHA that these
risk factors should no longer be addressed independently. Static
postures will be covered to some extent by the awkward postures element
of the screen, and employers should be aware that cold temperatures may
aggravate the effects of other risk factors.
    To give further guidance to employers, each risk factor in the
chart is clearly described (i.e., descriptions of specific job or task
activities) and includes specific duration, frequency. and magnitude
components. In the chart, repetition includes a separate description
for keyboarding/mouse use; force is broken down into lifting, pushing/
pulling, and pinching and gripping unsupported objects of specified
weights; awkward postures are defined by specific postures, as well as

[[Page 68315]]

pictures; and vibration includes a description for both high vibration
levels from equipment such as chainsaws, and moderate vibration levels
from equipment such as jigsaws, grinders or sanders.
    In addition, the chart contains a simple grid for employers to use
in relating the body area affected by an MSD incident to a relevant
risk factor. Thus, the grid serves to further simplify this initial
determination by assisting the employer in focusing on only those risk
factors that have a clear nexus with the MSD incident that triggered
the use of the screening tool; this also reflects OSHA's intent in the
proposal. For example, if an MSD of the back or lower extremity is
reported, the employer, when evaluating the risk factor for repetition,
would focus only on job or task activities where the employee is
performing the same motions every few seconds or repeating a cycle of
motions involving the affected body part more than twice per minute for
more than 2 consecutive hours in a workday. The employer would not need
to consider use of a keyboard and/or mouse in steady manner (the shaded
portion of the chart under the risk factor repetition). Similarly, for
a reported MSD affecting the back or lower extremity, the employer,
when evaluating the risk factor for force, would only need to focus on
job or task activities involving lifting or pushing/pulling and not on
work tasks involving pinching or gripping.
    Each job or task activity also includes a duration/frequency limit.
In selecting the duration limit for the risk factors, OSHA based its
decision on balancing the weight of the scientific evidence against the
need for the screening tool to be clear and easy to use. For many items
in the chart, the agency has chosen to use more than 2 hours total per
day as an exposure duration that triggers jobs for job hazard analysis;
this determination is based on an analysis of relevant epidemiological
data contained in the rulemaking record.
    Many studies in the epidemiological literature clearly demonstrate
that the incidence of MSDs increase with increased duration of exposure
to certain risk factors or a combination of risk factors. Table IV--
SCREEN lists studies that included duration, either qualitatively or
quantitatively, as a component of the investigation. These studies
reflect a subset of the many studies identified by the Agency that
demonstrate positive exposure-response relationships between the
intensity and/or duration of exposure to biomechanical risk factors and
the prevalence or incidence of MSDs. The results of these studies show
increases in odds ratios or other risk measures with increases in the
daily or weekly duration of exposure for a number of risk factors such
as repetitive precision movements, awkward postures (e.g., hands above
the shoulders, kneeling, stooping), gripping, lifting, and carrying.
For example, Ekberg et al. (Ex. 26-1238) reported that the risk of MSDs
of the neck and shoulder increased with the hours per day that
repetitive precision movements were performed and that arms were lifted
above the head. Similarly, Kelsey et al. (Ex. 26-709) reported an
increased risk of prolapsed lumbar disc when the frequency of lifting
or carrying loads greater than approximately 25 pounds increased from 0
to more than 25 times per day. Similar dose-response observations were
reported by Latza et al. (Ex. 38-424), Matsui et al. (Ex. 26-309),
Smedley et al. (Ex. 500-41-40) and Tola et al. (Ex. 26-1018).
    OSHA's review of the studies that quantified duration of exposure
indicate that, in general, the MSD risk in exposed groups of workers
increases above that in unexposed groups when the duration of exposure
to certain risk factors or combinations of risk factors comprises about
one-fourth to one-half of the workday or workweek. For example,
Holmstrom et al. (Exs. 26-1231, 26-36) studied workers using awkward
positions such as stooping, kneeling, and raising the hands above the
shoulder and found an increased risk of low back pain (Odds Ratio of
1.4, 1.9, and 1.5 for stooping, kneeling and hands above the shoulder,
respectively) with 1 to 4 hours per day of exposure. Similarly,
Nordstrom et al. (Ex. 26-900) observed that the risk of carpal tunnel
syndrome began to increase among workers whose jobs involved wrist
bending or twisting after exposures of 3.5 hours compared to groups
exposed for less than 3 hours (Odds Ratios of 1.34 with 0.25-1.75 hours
exposure, 1.23 with 2-3 hours exposure, and 2.33 with 3.5-6 hours of
exposure). Similar quantitative observations were reported by deKrom
(Ex. 26-102) for wrist flexion, Baron et al. (Ex. 26-697) for grocery
checking, and Xu et al. (Ex. 500-71-53) for frequent twisting and
bending and for physically hard work (see Table IV--SCREEN). Other
studies reported results using qualitative ordinal scales that indicate
that risks increase, sometimes substantially, with exposure to risk
factors of one-half a day or more. Ekberg et al. (Ex. 26-1238) reported
ORs of 3.8 and 2.4 for neck/shoulder disorders that were associated
with a ``medium'' duration (in hours per day) of repetitive precision
movement or arms lifted, respectively, compared to workers with ``low''
exposure in terms of daily duration. Stetson et al.(Ex. 26-1221) found
an increased prevalence (65%) of hand/wrist symptoms among workers
using a high grip force (> 6 pounds) for more than half of a shift
(defined as ``frequently'' in the study), compared to the prevalence in
workers with ``some'' (40%) or no (41%) exposure. A study by Viikari-
Juntura et al. (Ex. 500-41-50) of trunk twisting reported a non-
statistically significant elevation in risk of neck disorders (OR =
1.3) among workers having ``little'' exposure (in hours per day), and
statistically significant increases in risk among workers with
``moderate'' (OR=1.9) and ``much'' (OR = 2.3) exposure.
    However, there were also studies that showed increased risk of MSDs
associated with exposures of less than 2 hours daily. For example,
Vingard et al. (Ex. 500-41-51) showed an increased risk MSDs of low
back area among workers in jobs involving forward bending for
approximately 1 hour per day (statistically significant for male
workers, but not for female workers). Holmstrom et al. (Ex. 26-36)
found a significantly increased OR (2.4) for severe low back pain with
impairment for less than 1 hour per day of kneeling). DeKrom et al.
(Ex. 26-102) reported a significantly increased OR (1.4) for carpal
tunnel syndrome among workers having 1 to 7 hours per week of wrist
flexion; 1 to 7 hours per week of wrist extension was also associated
with an elevated OR for CTS (1.4), but that result was not
statistically significant. Latza et al. (Ex. 38-24) reported an
increase (not statistically significant) in low-back pain among workers
laying sandstone for less than 2 hours per day compared to unexposed
workers. English et al. (Ex. 26-848) found positive exposure-response
relationships where ORs for carpal tunnel syndrome or hand/wrist
disorders increased by 1.8 and 1.6 per hour worked per day,
respectively, for workers performing tasks involving shoulder rotation
once per minute. These studies, taken as a whole, demonstrate that for
the risk factors listed in the basic screening tool, the risk of MSDs
increased with daily duration of exposure.
    The studies described above and contained in Table IV--SCREEN show
that, where researchers have investigated relationships between MSD
risk and daily duration of exposure, the risk of MSDs has been
consistently elevated in groups of workers exposed for half of the
workshift or more (Exs. 26-1238, 26-697, 26-1221, 38-428, 26-

[[Page 68316]]

1231, 26-36, 26-1018, 500-41-50, 26-102, 26-900, 26-58, 500-71-53). For
exposure durations of one-fourth to one-half of the shift, or durations
described as ``some'' or ``moderate,'' several studies showed
statistically significant increases in MSD risk (e.g., Exs. 26-697, 38-
428, 26-1231, 26-36, 500-41-50, 26-102) and others reported increased
ORs that were not statistically significant (e.g., Exs. 26-1018, 500-
41-50, 26-102, 26-58). For exposures of less than 2 hours daily
duration, results from these studies are more equivocal; some reported
significantly increased ORs (e.g., Exs. 500-41-51, 26-848, 26-102, 26-
36) while several found non-statistically significant increases in ORs
(e.g., Exs. 500-41-50, 26-102, 500-41-51, 26-36, 26-1231, 38-24). Based
on these studies, OSHA finds it reasonable to trigger jobs for job
hazard analysis where employees are exposed to the risk factors
indicated on the screen for more than 2 hours during the work shift.
OSHA believes that a 2-hour duration criterion for the screen will
capture those exposure situations where the epidemiological evidence
indicates that MSD risk is most likely to be elevated (i.e., jobs
involving more than 4 hours per day of exposure) as well as those jobs
involving 2 to 4 hours of exposure during the shift where the evidence
suggests that the risk may already be increased, at least in some
situations. The 2-hour trigger will exclude those jobs where the
evidence has been less consistent in finding an elevated risk of MSDs
(i.e., jobs involving less than 2 hours of exposure). This is
consistent with OSHA's statutory mandate to be protective of workers.
However, because the screen does not necessarily trigger an obligation
to control a job, OSHA also is not imposing unnecessary costs on
employers.
    In using this 2-hour cutpoint, OSHA does not intend to imply that
all workers will experience significant adverse effects after 2 hours
or more of exposure. Rather, OSHA is using this cutpoint in the screen
criteria to give employers guidance about which jobs might involve a
sufficient duration of exposure such that the job warrants closer
examination. In addition to being supported by the scientific
literature, this value is also administratively simple for employers to
use, thus allowing the screening tool to be used quickly and
consistently for a number of different jobs.
    For repetitive motion other than use of a keyboard or mouse, the
screen triggers jobs into the requirements of the standard only if the
exposure occurs for more than 2 consecutive hours in a workday, as
opposed to more than two hours total per day. This reflects OSHA's
belief, based on the health evidence, that 2 hours of repetitive motion
will be less hazardous if spread out over the workday because
musculoskeletal tissue will have an adequate opportunity to recover. By
capturing only those jobs that involve more than 2 consecutive hours of
repetitive motion, the standard will not capture those jobs where
employees change tasks during the day, even if the repetitive motion
occurs for a total of 2 hours over the work shift.
    The screening tool departs from the 2-hour duration criterion for a
few items. These include the following: For use of keyboard and mouse
in a steady manner, the duration is set at 4 hours total per workday;
for lifting, the screen sets weight and frequency criteria; and for use
of tools or equipment that typically have high vibration levels (such
as chainsaws, jack hammers, percussive tools, riveting or chipping
hammers) the duration is set at 30 minutes total per day.
    For use of a keyboard or mouse in a steady manner, OSHA has set the
duration for more than four hours total per day. In this case, OSHA has
chosen more than four hours based on the epidemiological evidence that
demonstrates that, in general, the risk of MSDs for workers performing
keying activities begins to increase after four hours of exposure (see
Table IV--SCREEN). For example, Bernard et al. (Ex. 26-842) studied
workers typing at video display units and reported an increased risk of
hand/wrist MSDs for exposures of 4 four to six hours. Oxenburgh (Ex.
26-1367), observed an increased prevalence of hand, wrist, forearm and/
or elbow MSDs after 4 hours per day at a keyboard. Similarly, Polanyi
et al. (Ex. 38-3) studied keyboard workers and observed that upper
extremity MSDs significantly increased after exposure durations of
approximately four hours per day. Based on this evidence, OSHA has
determined that it is appropriate to deviate from the 2 hour duration
criterion set for other job or task activities, and to set a greater
than four hours total per day for the use of a keyboard or mouse in a
steady manner.
    For using tools or equipment that typically have high vibration
levels (such as chainsaws, jack hammers, percussive tools, riveting or
chipping hammers) OSHA has set the duration at 30 minutes total per
day. This level is based on a time-energy equivalent exposure
determination. For example, the time duration for using tools or
equipment that have moderate vibration levels (such as jig saws,
grinders, or sanders) is set at 2 hours total per day. Vibration level
can be expressed as the amount of energy transmitted by the tool over a
certain period of time (e.g., m/s\2\). OSHA assumes that a moderate
vibration level is approximately 2.5m/s\2\. The duration for moderate
vibration level is more than 2 hours total per day. Assuming that a
high vibration level is approximately 10m/s\2\ (4 times the moderate
vibration), the time-energy equivalent exposure duration level at which
risk is increased for activities involving high vibration levels would
be 30 minutes (i.e., \1/4\ of 2 hours). That is, risks for activities
at four times the vibration level would occur \1/4\ the amount of time.
    For lifting, the chart contains specific weight limits, coupled
with a specific limit on the number of times per day the weight can be
lifted. Weight limits are specified for weights lifted from below the
knee, above the shoulder and at arm's length. The limits specified are
as follows: lifting more than 75 pounds at any one time; more than 55
pounds more than 10 times per day; or more than 25 pounds below the
knees, above the shoulder, or at arms' length more than 25 times per
day. OSHA has based these limits on recommendation found in other
screening tools as well as evidence in the epidemiological literature
that shows increased risk of low back disorders when lifting certain
weights at certain frequencies or postures. For example, Arad and Ryan
(Ex. 500-41-7) and Smedley et al. (Ex. 1249) reported an increase in
risk low back MSDs among healthcare workers lifting one to four
patients per day. Kelsy et al. (Ex. 500-41-73) reported increased risks
of lumbar disorder among workers in jobs requiring lifting more than 25
pounds more than 25 times per day compared to workers who did not lift
these weight. Similar findings were reported by Macfarlane et al.(Ex.
500-41).
    OSHA finds that the weight of evidence clearly demonstrates that
heavy, frequent or awkward lifting increases the risks for MSDs.
Particular studies, such as those described above, provide support for
the specific weight criteria used in OSHA's screening tool for the
final standard. Washington State has used similar data to support its
``caution zone job criteria'' for lifting (Ex. 500-313-6). OSHA
believes that these are reasonable criteria to use for the screening
purposes of this standard and that, in general, these criteria reflect
the evidence in the record.
    The exposure screen also contains an entry for activities involving
pushing and pulling. In a questionnaire survey of insurance company
policyholders,

[[Page 68317]]

Snook et al.(1978) found 9% of low back injuries to be associated with
pushing and 9% to be associated with pulling (Ex. 26-35). NIOSH (1981)
cited evidence that 20% of overexertion incidents involve pushing and
pulling objects (Ex. 26-393). Thus, OSHA finds that it is appropriate
to include pushing and pulling on the screen as a specific exposure
criterion.
    For job activities involving pushing or pulling, the chart
specifies 20 pounds of initial force as the trigger criterion. To
provide a basis for determining appropriate workloads for these
activities, Snook and Ciriello (1991) developed tables of maximum
acceptable forces for pushing and pulling (Ex. 26-1008). Maximum
acceptable forces were expressed in terms of the percentage of the
industrial population capable of performing the task. Data were
presented separately for males or females either pushing or pulling,
and were given for both initial forces (the force required to get an
object in motion) and sustained forces (the force required to keep an
object in motion). Variables included frequency, distance, and height
(vertical distance from floor to hands).
    The tables were developed based on experiments employing a
psychophysical methodology (Ex. 37-6). This approach assumes that
workers are able to determine with some accuracy their highest
acceptable workload. Subjects were given a task with a set frequency,
distance, and height and were allowed to control the amount of force
used. Subjects were instructed to work as hard as they could without
straining themselves or becoming unusually tired, weakened, overheated,
or out of breath.
    Although acute fatigue was the basis of the limitations established
by this series of experiments, the results have been shown to predict
the risk of developing MSDs. Snook et al.(1978) reported that workers
performing manual handling tasks that less than 75% of workers are
capable of performing without overexertion are three times more likely
to suffer from low back injuries than those workers performing manual
handling tasks that more than 75% of workers are capable of performing
(Ex. 26-35).
    Other research has also supported a relationship between
psychophysically derived exposure levels and risk of MSDs. Using an
index derived from the tables developed by Snook and applying it to
6,912 workers in 55 industrial jobs, Herrin et al.(1986) found that the
number of overexertion incidents was related to the psychophysical
stress of the job. The severity of these incidents as measured by lost
or restricted work days was also found to be associated with
psychophysical stress (Ex. 26-961). Additionally, Park and Punnett
found psychophysical ratings of ergonomic stressors to predict the
incidence of in-plant medical visits for MSDs among 1064 workers in two
automobile manufacturing plants (Ex. 38-160).
    Based on the reported association between pushing and pulling and
the development of MSDs, and the evidence of a relationship between
psychophysically derived exposure limits and reported injuries, OSHA
concludes that an exposure criterion based on psychophysically derived
limits will serve as a reasonable basis for determining when a hazard
analysis is necessary for jobs involving pushing and pulling
activities.
    The 20-pound force criterion for pushing and pulling will capture
all jobs that are designed such that less than 75% of workers (male or
female) are capable of performing them without experiencing
overexertion. As explained above, lifting jobs that cannot accommodate
at least 75-percent of the working population's physical capacity have
been associated with a three-fold higher risk of low back disorders.
This suggests that jobs should be subject to more detailed hazard
analysis if an initial screen indicates that a task involving pushing
or pulling is not designed within 75-percent of the working
population's physical capacity.
    While the screening threshold for pushing and pulling forces is
based upon an exposure level that is protective of 75 percent of the
industrial population based on psychophysical measurements relating to
overexertion, this should not be construed as an endorsement by the
Agency of exposure to ergonomic risk factors based on what is
considered to be an acceptable level for any given percentage of the
population. The level chosen in this instance resulted from the fact
that the evidence in the record indicates that an increased risk of
developing MSDs exists among workers who perform pushing or pulling
activities at levels above those found to be acceptable to 75 percent
of the industrial population based on psychophysical measurements
relating to overexertion, not because any particular proportion of the
exposed population was considered to be protected from developing MSDs.
    The 20-pound force criterion for pushing and pulling tasks is
consistent with the OSHA ``safe harbor'' for pushing/pulling, which is
based on the 90th-percentile values for female workers. Using 20 pounds
as screening criteria will help to ensure that employers are not
screening in jobs for which they have already implemented controls
based on the safe harbor value, but instead are screening in those jobs
where risks may begin to occur and for which a job hazard analysis is
appropriate.
    For performing activities that require pinching or gripping
unsupported objects, the chart specifies weights of two pounds or more
per hand for pinching and 10 pounds or more per hand for gripping.
These values are generally supported by studies such as those by Chiang
et al. (Ex. 500-41-25), Stetson (Ex. 500-41-44), English (Ex. 500-41-
30) and Roquelaure et al. (Ex. 500-41-112). These investigators
reported increased risks of carpal tunnel syndrome, thumb disorders,
shoulder disorders, and nerve abnormalities among workers repetitively
pinching objects approximately in the range of two pounds or gripping
objects approximately in the range of 10 pounds. OSHA believes that the
weights specified represent reasonable screening criteria for
identifying conditions likely to cause the type of MSDs reported and
are similar to values recommended in other screening tools. While there
may be more precise ways of measuring force associated with pinching or
gripping, OSHA believes that using the weight of objects handled is
more administratively simple for employers to use and thus will enable
employers to more quickly and consistently evaluate jobs.
    Similarly for contact stress, OSHA has specified a frequency of 10
times per hour when using the hand or knee as a hammer. OSHA believes
that this value is also administratively simple and reasonable to use
for the screening purposes of this standard. Studies have shown
increased risk in MSDs among workers using the hand or knee as a hammer
(e.g., Little and Ferguson, Ex. 26-1144 and Thun, Ex. 26-60). However,
little data is available that quantifies the frequency of exposure at
which increased risks are observed. Washington State chose a value of
10 times per hour for their ``caution zone job'' criteria. OSHA
believes that this is a reasonable value to use for screening purposes
and that it gives the employer guidance in identifying work activities
likely to contribute to the type of MSDs reported.
    In summary, the specific description of risk factors contained in
the screen, coupled with the duration specifications, all have a
sufficient degree of risk to trigger some simple additional
requirements (job hazard analysis, MSD management, training and
evaluation). It should be kept in

[[Page 68318]]

mind however, that these are not intended to imply that a hazard exists
and requires control be instituted. There is substantial evidence in
the record that supports the agency's choice of risk factors and
duration levels. As with ``action levels''' contained in other health
standards, the duration levels were set at levels where the risk begins
to rise and additional, simple steps are necessary.
    The purpose of this screen is to focus on those jobs that are
likely to have caused or contributed to the MSDs that are reported. In
general, activities causing or contributing to such MSDs are more
likely to be ones that make up significant amounts of the employee's
worktime and represent a core element of the employee's job. As such,
these activities are likely to be a foreseeable part of the job that
can be reasonably predicted and thus can be taken into account when
designing an ergonomics program. These are the types of jobs that OSHA
seeks to capture under the final standard so that programs can be put
in place to prevent further MSDs from occurring.
    In order to better enable employers to capture such jobs, OSHA is
setting a minimum frequency for job or task activities that must occur
as a part of the screening tool. OSHA is setting this frequency at one
day per week or more. Obviously, there are numerous values that could
be chosen. However, OSHA believes that this value can reasonably be
used to determine those job or task activities that are core element of
an employee's job, and are foreseeable or reasonably predictable. In
addition, a frequency of once a week or more is likely to capture many
work activities that are an element of an employee's job that occur on
a weekly basis (e.g., deliveries or maintenance activities). To meet
the screen, a job must ``routinely'' involve tasks that meet the
designated criterion at least one day a week. This value will also
provide guidance in that it can be used to rule out job or task
activities that are rare occurrences, that are not predictable, or that
result from unusual work circumstances.
    In conclusion, in response to the comments received on the proposed
standard, OSHA has developed a screening tool that will provide
employers with quantitative guidance for determining work activities
and conditions that are likely to cause or contribute to MSDs and that
are a core element of a job or make up a significant amount of the
employee's worktime. This screening tool includes specific descriptions
of tasks and durations that will enable employers to evaluate jobs,
quickly and consistently, at their worksites. To the extent possible,
these descriptions and durations were developed using to the extent
possible using the best available epidemiological literature as well as
expert opinion from other groups who have developed very similar
screening tools. This screen is intended to be used in conjunction with
the event of an MSD incident to identify work conditions where exposure
risks may exist such that a job analysis must be conducted to determine
whether job controls are quickly and consistently necessary.

Paragraph (g)--What Actions Must I Take if the Employee's Job Meets the
Action Trigger?

    Paragraph (g) of the final rule defines the actions that employers
must take if an employee with an MSD incident is employed in a job that
meets or exceeds the action trigger. The paragraph requires that the
employer must either implement the Quick Fix option in paragraph (o) of
the final rule, or develop and implement an ergonomics program that
includes the following elements:
    (i) Management leadership as specified in paragraph (h) of this
section;
    (ii) Employee participation as specified in paragraph (i) of this
section;
    (iii) MSD management as specified by paragraphs (p), (q), (r), and
(s) of this section;
    (iv) Job hazard analysis as specified by paragraph (j) of this
section;
    (v) Hazard reduction and control measures as specified in
paragraphs (k), (l), and (m) of this section, and evaluations as
specified in paragraph (u) of this section, if the job hazard analysis
determines that the job presents an MSD hazard;
    (vi) Training as specified in paragraph (t) of this section.
    A few commenters suggested that the effectiveness of ergonomics
programs in reducing workplace MSD hazards was not demonstrated for the
proposed rule. For example, the post hearing brief submitted on behalf
of the U.S. Chamber of Commerce stated:

    None of this ``evidence'' * * * begins to support the
proposition that an Ergonomics Program Standard such as the one
contained in the Proposed Rule will reduce at all the incidence of
workplace musculoskeletal complaints. [Ex. 500-188]

In contrast, the use of ergonomics programs as an effective method for
addressing workplace MSD hazards was endorsed by the vast majority of
commenters in the rulemaking record (see, e.g. Exs. 30-3855, 32-185,
500-209, Tr. 4940, Tr. 1491). For example, Mr. McCauseland,
representing the American Meat Institute (AMI), testified during the
rulemaking hearing: So what has happened in the 10 years since the meat
packing guidelines were issued? Well, a number of things. In our
industry, reduced levels of injuries and illnesses have been
approximately one third of all incidents. Nearly one-half of lost time
incidents have been reduced as well. * * * The guidelines have fostered
proactive efforts to eliminate ergonomic risks and hazards in a wide
ranging number of applications [Tr. 4940].
    A complete discussion of the widespread support for the proposition
that ergonomics programs are effective is contained in Chapter III of
the Final Economic Analysis for the final rule. In that chapter, OSHA
discusses the history of successful ergonomics programs and describes
the extensive use of ergonomic programs throughout broad sectors of
industry. In fact, the number, longevity, and extensive use of
ergonomic programs that are similar to those required by OSHA's final
rule clearly validate the Agency's regulatory approach, as well as
demonstrating the inherent feasibility of the standard for covered
employers who establish such programs.
    Many of these programs have most or all of the program elements
required by paragraph (g) of the final rule. The wide use of these
elements in current programs is evidence that employers believe them to
be essential, workable concepts. The program elements contained in the
final rule are summarized and explained in other sections of this
preamble and therefore will be discussed only briefly here in the
context of the overall program requirement.
    Paragraph (g) of the final rule specifies that if an employee's job
exceeds the action trigger, the employer may implement a quick fix
option for that job under paragraph (o). An employer who qualifies for
the quick fix option does not need to establish an ergonomics program,
although he or she must follow all of the quick fix procedures.
However, if the employer cannot or does not implement a quick fix, then
the standard requires an ergonomics program with the following
elements:
     Management leadership,
     Employee participation,
     MSD management,
     Job hazard analysis,
     Hazard reduction and control,
     Training, and
     Evaluation.
    Management leadership is critical to the successful implementation
and operation of ergonomics programs.

[[Page 68319]]

Management leadership provides the focus and direction of the program's
effort as well as the needed resources in terms of both personnel
commitment and funding. The requirements for management leadership are
described in the summary and explanation for paragraph (h).
    Employee participation is equally important. Employees are
essential sources of information about MSDs, risk factors, and MSD
hazards in their work areas. They have valuable insights into effective
control measures that can be used to reduce risk factors inherent in
their jobs. The requirements for employee participation are described
in the summary and explanation for paragraph (i).
    MSD management provides for prompt and appropriate management when
an employee has experienced an MSD incident. MSD management includes
access to a health care professional, work restrictions as needed, work
restriction protection, and evaluation and follow-up of the MSD
incident. MSD management is important largely because it helps ensure
that employees promptly report MSDs and signs and symptoms of MSDs.
This, in turn, ensures that jobs that present MSD hazards will be
included in the ergonomics program. The requirements for MSD management
are described in the summary and explanation for paragraphs (p), (q),
(r) and (s).
    Job hazard analysis provides for the identification of the risk
factors for jobs that meet the action trigger. The job hazard analysis
provides a systematic approach to identifying and addressing the risk
factors in the job. The requirements for job hazard analysis are
described in the summary and explanation for paragraph (j).
    Hazard reduction and control is the heart of the ergonomics
program. Under this program element, employers control the risk factors
in problem jobs identified during the job hazard analysis. The
requirements for hazard reduction and control are described in the
summary and explanation for paragraphs (k), (l), and (m).
    Training provides employees with the information and understanding
that they need to participate effectively in the ergonomics program. In
addition, the training required by the final rule provides the more
detailed information that supervisors, team leaders and other employees
involved in setting up and managing ergonomics programs need to carry
out their program-related responsibilities effectively. The training
requirements are described in the summary and explanation for paragraph
(t).
    Evaluation is the process employers use to ensure that the program
they have established is functioning as intended. Employers are
required to evaluate their programs every three years and at other
times if they have reason to beleive that the program is not
functioning properly. The requirements for program evaluation are found
in paragraph (a).
    In summary, ergonomic programs similar to OSHA's in structure have
been effectively reducing the incidence and/or the severity of MSDs for
at least 10 years throughout the vast majority of general industry
sectors. Model programs that contain OSHA's program elements have been
implemented by a wide range of employers, such as large and small
manufacturing establishments, utilities, and government agencies (see,
e.g., Exs. 32-185, 500-108, 38-50, Tr. 4693, Tr. 5696, Tr. 6310, Tr.
5931, Tr. 7031, Tr. 7068, Tr. 7074, Tr.7918, Tr. 7934, Tr. 7937, Tr.
7963, Tr.7948, Tr. 7999, Tr. 8826, Tr. 14707, Tr. 17350)

Paragraph (h)--Management Leadership

    Paragraph (h) contains the final rule's requirements for management
leadership. It requires that employers assign and communicate
responsibilities for setting up and managing the ergonomics program;
provide the authority, resources, and information necessary to meet
those responsibilities; ensure that existing policies and practices
encourage and do not discourage reporting and participation in the
ergonomics program; and communicate periodically with employees about
the program and their concerns about MSDs.
    Paragraph (h) of the final rule is nearly identical in content to
the proposed management leadership section (Section 1910.912). OSHA has
elected to retain the management leadership requirements as proposed
due to evidence in the record that supports the need for management
commitment in any effective ergonomics program. Minor changes have been
made to clarify the provision regarding the assignment and
communication of responsibilities and to allow for more concise
application of the subelement relating to the encouragement of
reporting and participation.
    OSHA proposed to require management leadership because the
literature on ergonomics programs consistently cites management
commitment as a vital component of an effective program (see, e.g.,
Exs. 2-13, 26-2, 26-5, 26-9, 26-10, 26-13, 26-14, 26-17, 26-18, 26-22,
26-27). The need for management commitment was also supported by a
number of responses to the ANPR (see, e.g., Exs. 3-27, 3-124, 3-173).
    The elements of the proposed and final management leadership
requirements are based on the concept of management leadership
expressed in the literature. OSHA considers the proposed and final
management leadership provisions to be necessary to the exercise of
leadership of the ergonomics program.
    Responses to the proposed management leadership provisions
indicated general support for the concept of management leadership.
Comment on the provisions pertaining to the assignment and
communication of responsibilities; provision of authority, resources,
and information; and periodic communication focused on the
interpretation, rather than the concept, and often criticized the
proposal as vague. Comments regarding policies and practices that
discourage reporting and participation revealed sharply divided opinion
on the merits of the proposed provision.
    The importance of management leadership as a component of an
effective ergonomics program was supported in a number of comments on
the proposed rule (see, e.g., Exs. 30-2387, 30-3745, 30-3765, 32-78-1,
32-85-3, 32-182-1, 32-198-4, 32-339-1, 30-428, 30-3860, 30-4333, Tr.
3479, Tr. 3565, 32-450-1-18-1, Tr. 8004, Tr. 1496, Tr. 9070). David
LeGrande of the Communications Workers of America, for example, when
asked to indicate what characteristics distinguished successful
ergonomics programs from those that fail, explained that the commitment
of management is the primary factor in determining if a program will
succeed (Tr. 9018).
    The inclusion of a distinct requirement for management leadership
in the proposed ergonomics standard, however, was considered by some
parties to be inappropriate (see, e.g., Exs. 32-78-1, 30-2830, 30-3853,
30-3765, 32-368-1, 500-223, 30-3426). Mandating the assignment of
responsibilities and provision of authority, resources, and
information, it was argued, is so vague as to lead to uneven
enforcement by OSHA personnel, according to these commenters (see,
e.g., Exs. 30-74, 30-240, 30-1336, 30-3284, 30-3336, 30-3344, 30-3367,
30-3763, 30-3782, 30-3849, 30-3951, 30-4496, 30-4674, 30-4837, 30-
4247). The Ameren Corporation, for example, stated:

    Whether an employer has committed enough ``resources'', has
``ensured'' that they have encouraged their employees to report or
participate, or is communicating often

[[Page 68320]]

enough are all highly subjective judgement calls which cannot be
consistently made by OSHA (Ex. 30-4247).

Bruno's Supermarkets and others (see, e.g., Exs. 30-2836, 30-2837, 30-
2828, 30-2839, 30-2840, 30-2841, 30-2842, 30-2843, 30-2844, 30-2940)
concurred with this assessment, stating:

    [The proposed standard] requires that employers communicate
``periodically'' with employees about the ergonomics program.
Suppose, for example, that an employer distributes an annual
ergonomics bulletin. How will the employer know whether an OSHA
inspector will expect us to communicate more frequently, such as
once a week or once a month? This section also requires employers to
provide those managing the ergonomics program with ``resources,''
which are vaguely and broadly defined as ``the provisions necessary
to develop, implement, and maintain an effective ergonomics
program,'' including money, etc. We may feel that we have provided
adequate resources necessary for such an effort, but we will have no
way of knowing whether the OSHA inspector will agree. The lack of
objective, attainable standards will leave employers at the whims of
OSHA inspection personnel. (Ex. 30-2836)

The term ``periodically'' was specifically cited by a number of parties
as being unduly subjective and open to interpretation (see, e.g., Exs.
30-1101, 30-1336, 30-3826, 32-337-1, 30-1671, 30-3336, 30-3367, 30-
3782, 30-4674, 30-3512). Some commenters said that determinations about
the delegation of authority and assignment of resources were outside of
OSHA's expertise and created excessive administrative burdens on
employers (see, e.g., Exs. 32-78-1, Tr. 12250). Such mandates were
believed by some to be beyond the Agency's authority (see, e.g., Exs.
30-2914, 30-4335).
    OSHA has decided to retain a requirement for management leadership
in the final rule. Management leadership is widely believed to be one
of the core elements of any effective safety and health (including
ergonomics) program. If no individuals in a given workplace have been
assigned responsibilities for the ergonomics program, it is clearly
unreasonable to expect that a successful program will somehow emerge.
Likewise, if responsibilities are assigned but no authority is granted
and no resources are provided, an ergonomics program is destined to
fail. For example, if an individual is assigned responsibility for
training workers in a problem job, that person needs access to relevant
information about the MSD hazards and controls in the job, sufficient
time to administer the training, and a suitable location for the
training to take place. Communicating periodically with employees about
the program and their concerns about MSDs is similarly essential to
creating an environment where both the employer and employees are fully
aware of issues relating to the ergonomics program. If a regular, two-
way exchange does not take place, it would be impossible for employees
to keep abreast of changes in the ergonomics program, or for the
employer to receive feedback regarding the program. Without full
knowledge, the benefits of the program will be diminished. The
endorsement of management leadership in comments and the incorporation
of this element in successful ergonomics programs supports OSHA's
conviction that management leadership is a critical component of an
ergonomics program.
    Those who expressed the sentiment that the management leadership
requirements of the proposal were vague or burdensome appeared to
believe that OSHA compliance personnel would arbitrarily decide if the
authority, resources, and information provided were satisfactory, or if
the frequency of communication was adequate. OSHA reaffirms its belief,
expressed in the proposal, that employers should retain broad
discretion in deciding who should bear responsibility for the various
components of the ergonomics program, and what authority, resources,
and information are necessary and appropriate to meet the assigned
responsibilities in a given workplace.
    The frequency of communication with employees is also subject to
wide latitude in order to account for the needs of different
workplaces. The term ``periodically'' is used in the standard to
indicate that communication must be performed on a regular basis that
is appropriate for the conditions in the workplace. A rigid schedule,
however, is not specified, in order to provide flexibility to account
for the circumstances found in different workplaces and even at
different times in the same workplace. Additional discussion of this
topic can be found in the section of this preamble devoted to
additional statutory issues (see Section XII of the preamble).
    The general requirements in paragraph (h) of the final rule for the
assignment of responsibilities and provision of authority, resources
and information are designed to complement the more specific
requirements for action found elsewhere in the standard. For instance,
under paragraph (i) of this final rule, employees must receive prompt
responses to reports of MSDs. It is the duty of the employer to assign
the responsibility for providing those responses and to provide the
necessary authority, resources, and information needed to do so. If a
prompt, correct response is given to the employee, then the employer's
assignment of responsibility and provision of authority, resources, and
information will clearly have been satisfactory.
    The final rule does not describe how responsibility is to be
allocated or how individuals will be held accountable for their
responsibilities. This is to allow employers the greatest possible
flexibility in adapting the program to their particular situation. A
concern was registered that the proposed requirement for assigning
responsibility would conflict with a management structure that did not
include supervisors (see, e.g., Ex. 30-3765). OSHA does not intend to
prescribe what program responsibilities are vested in any party. An
employer may choose to designate and empower front line employees with
any responsibility associated with the program, so long as the
authority, resources, and information necessary to meet those
responsibilities are provided.
    The role that contractors, consultants, and other outside parties
may play in an ergonomics program has also been recognized by the
Agency. Although not required by the standard, OSHA is aware that
outside expertise may be beneficial in some instances. Accordingly, the
final rule allows the employer to chose who is designated with regard
to the assignment of responsibility. Ergonomists, safety professionals,
industrial hygienists, and others may be involved in the employer's
program.
    Several commenters suggested that OSHA place requirements on
employees as well as employers in the final rule (see, e.g., Exs. 30-
3765, 30-584, 30-3368). These commenters believe that employees must
take responsibility for their actions. OSHA agrees that active employee
involvement in the ergonomics program is essential to program
effectiveness but does not believe that this principle should be stated
in the standard, for a number of reasons. First, the OSH Act itself, at
Section 5(b), states that ``Each employee shall comply with
occupational safety and health standards and all rules, regulations,
and orders issued pursuant to the OSH Act which are applicable to his
own actions and conduct.'' However, the courts have repeatedly held
that employers are responsible under Section 5(a)(2) of the Act for
ensuring worker protection. For example, the court in Brock v. City Oil
Well Service Co., 795 F. 2d 507, 511 (5th Cir. 1986) held, ``it is the
employer's responsibility to ensure that the

[[Page 68321]]

employees are protected. It may accomplish this objective through
others if it chooses, but the duty to provide the protection remains
the employer's.'' If, for example, an employer has determined that
lifting an 80-pound box poses an MSD hazard to employees, the employer
can establish a policy of requiring employees to use a mechanical lift
to raise such a box and train employees how to do this. The employer
could then hold the employee accountable for adhering to this policy in
the same manner as other policies or rules are enforced.
    In addition to providing authority, resources, and information, the
proposed management leadership section included a requirement to
provide the training necessary to meet assigned responsibilities.
Because training for those responsible for setting up and managing the
program is addressed in paragraph (t) of this final rule, training has
been deleted from this paragraph in order to avoid potential confusion.
    Some commenters expressed the belief that management leadership is
implicit in an effective ergonomics program, and an independent
requirement for management leadership is therefore unwarranted (see,
e.g., Exs. 30-3765, 30-1293). Dow Chemical, for example, while strongly
supporting the need for management leadership in safety and health
activities, expressed the view that it is not appropriate for OSHA to
attempt to regulate and enforce leadership. By establishing and
evaluating the effectiveness of an ergonomics program, Dow argued, the
employer has in effect demonstrated leadership (Ex. 30-3765).
    In a similar vein, some parties argued that the requirements for
management leadership were largely redundant with other sections of the
proposal. They pointed out, for example, that communicating
periodically with employees about the ergonomics program and their
concerns about MSDs was part of the proposed management leadership
provision, while separate, specific requirements for communication with
employees were proposed as part of the provisions pertaining to quick
fix, employee participation, hazard information and reporting, job
hazard analysis and control, training, MSD management, and program
evaluation. This ``duplication,'' it was argued, could subject
employers to being cited twice for a single violation (see, e.g., Exs.
30-3344, 30-4674).
    OSHA believes that there is little, if any, overlap with other
parts of this standard. The management leadership and employee
participation elements of the final rule should be considered the
overall conceptual foundation of an effective ergonomics program and a
vital part of the organizational framework of an effective program. By
fully understanding the importance of management leadership and
employee participation, it is expected that program managers will
determine how best to apply these concepts in a particular workplace
and how the individual subelements will work most efficiently in their
environment. Even where some overlap could be perceived, it is not
OSHA's policy to issue duplicate citations for a single violation.
    The management leadership element also includes requirements unique
to this paragraph, such as the requirement in paragraph (h)(3). That
requirement specifies that the employer must ensure that their policies
and practices encourage and do not discourage reporting or
participation in the program. OSHA believes that applying this
provision in an ergonomics program is a logical component of
management's effort to direct the ergonomics program in a manner that
will be protective of employee health.
    OSHA's proposed requirement for employers to ensure that their
existing policies and practices encourage and do not discourage
reporting and participation in the ergonomics program elicited a
substantial volume of comment. As explained in the preamble of the
proposal, this proposed provision was intended to encourage the early
reporting of MSDs and meaningful employee participation in the
ergonomics program. OSHA believes that employees in all workplaces
should be encouraged by their employers to report injuries, illnesses,
and hazards of all kinds--not just those related to ergonomic issues--
because only full and frank reporting allows employers to identify
hazards and do something about them.
    Particular attention was paid by participants regarding the
requirement that employers ensure that their policies and practices do
not discourage reporting and participation in the program, and the
effect of this provision on existing employer programs, including
safety incentive programs and employee drug testing programs.
    Policies and practices given in the preamble to the proposal as
examples of those that may discourage reporting included:
     Programs that reward or punish employees on the basis of
injury or illness reports by offering incentives or awards based on low
numbers or rates of reported MSDs.
     Policies that require every employee reporting an MSD or
MSD signs and symptoms to submit to a drug or alcohol test.
     Direct or reasonably perceived threats of retaliation,
including firing or suspension, withholding overtime work for anyone
who reports MSD signs or symptoms, (even from jobs that do not involve
exposure to risk factors), prohibiting the use of sick leave for a
work-related injury; and sending every employee who reports MSD signs
and symptoms home without pay.
    Expressed or implied warnings of retaliation for reporting MSDs,
MSD signs and symptoms, or MSD hazards would clearly be considered a
practice that would discourage reporting. If, for example, a supervisor
were to inform employees working the day shift that reporting MSD signs
and symptoms would automatically result in transfer to the night shift,
this action could be reasonably anticipated to suppress reporting. An
example of a situation similar to this was described by the UFCW. The
union explained that employees were reluctant to report injuries in
this situation due to the consequences they would face:

    [The company] had established a special ``C'' shift--the
graveyard shift--for employees suffering from work-related injuries,
many of which were cumulative trauma disorders. The purported
purpose of the C shift crew was to assist injured workers with long
term medical restrictions in returning to regular duty. In fact,
however, a number of employees assigned to the crew were taken off
regular duty jobs which they had been performing successfully with
their restrictions. They were then isolated and segregated on the C
shift and assigned degrading, demeaning, make-work tasks such as
picking up cigarette butts in the parking lot at night with
flashlights or scraping rust off of pipes in the rendering
department (Ex. 32-210-2).

    Some employers have taken this a step further, pursuing policies
that discipline workers for reporting injuries, without considering the
cause of those injuries. When rewards or punishment are linked to the
reporting of MSDs or MSD signs and symptoms, employee reporting
behavior can clearly be influenced. Punishment for reporting in the
form of wage reductions, loss of overtime, reprimands, suspensions, or
other means can be expected to discourage reporting.
    An example of this approach is a system of imposing progressively
more severe penalties when injuries are reported, such as a written
reprimand for the first incident, followed by suspension, and finally
termination (see, e.g., Exs. 32-298-2). Another example is a system
that assigns a point

[[Page 68322]]

value to an incident based on factors such as the cost of the incident
to the employer or whether lost workdays were involved. Progressive
levels of punishment are meted out based upon the number of points that
an employee accumulates (see, e.g., Ex. 500-111-1). Kathy Saumier of
the United Steelworkers described such a program and its results in the
plastics plant where she worked:

    The company had a policy to give out points if an employee
missed work even due to work related injury. After an employee
accumulated seven points, the company reduced the employees' pay by
50 cents per hour. If the employee accumulated 15 points an employee
was then terminated. This system caused many workers to go to work
injured for fear of pay reduction or termination (Tr. 10992).

    The record also included many instances where, intentionally or
inadvertently, employer policies and practices were said to discourage
employees from reporting MSDs (see, e.g., Exs. 2 MSDs (see, e.g., Exs. 20-626, 32-111-4, 32-
198-4-1, 32-198-4-2, 32-210-2, 32-298-2, Tr. 5598, Tr. 6980, Tr. 7715,
Tr. 7729, Tr. 7387, Tr. 7730, Tr. 8041, Tr. 10153, Tr. 10230, Tr.
10763, Tr. 13870, Tr. 14535, Tr. 15131, Tr. 15453, Tr. 16766).
    Incentive programs that offer rewards to employees or groups of
employees based on a low number of reported injuries were also
mentioned as factors inhibiting the reporting of MSDs. Bill Byington of
the IBT described how employees in his workplace were being taken to a
baseball game for completing a month of work without a reported injury;
he was aware, however, that at least one of the members of the group
had sustained an injury and not reported it (Tr. 15453). Sandy Brooks
of the United Steelworkers related her experience with a ``safety
bingo'' program, where employees receive a bingo number each day, and
the employee who wins the bingo game receives cash, weekend trips, and
dinners as prizes. The bingo game ends for all employees, however, when
an OSHA recordable injury is reported. Ms. Brooks was also aware of
workers who did not report injuries because of the incentive program
(Tr. 7703).
    An additional factor in group incentive programs that can serve to
coerce employees to refrain from reporting MSDs is the peer pressure
that can be exerted when group awards are at stake. Joe Enos of the UAW
described the result of an incentive program that offered a microwave
oven to a team of workers if they reduced reported injuries 25% from
the previous year:

    The group had achieved that goal going into November and they
still had a month to go. And one of the workers got hurt. And the
rest of his coworkers told him, ``Hey, you go to medical, there goes
the microwave.'' And this guy realized that his health was more
important than some microwave. But a good many of his coworkers
wouldn't even talk to him for a couple of weeks as a result of that
(Tr. 15453).

Dr. Richard Bunch of the Industrial Safety and Rehabilitation Institute
told of an injury sustained but not reported early, in order to
preserve workers' chances of winning a barbeque pit:

    One company was giving a barbeque pit as a prize if you went so
many months without reporting an injury. And one gentleman had a
back problem and did not report it because the other six members on
his team threatened him with violence. So in that case, he did not
report it, but ended up going to a full blown frank rupture of the
disc (Tr. 11638).

These accounts of individuals support the impression that incentive
programs that tie rewards or punishment to the report of an injury may
result in reductions in reported injuries and illnesses, at least in
part due to lack of reporting rather than an actual reduction in the
number of injuries that occur. Nancy Lessin of the Massachusetts AFL-
CIO espoused this view:

    Workers can not control the conditions which lead to most work-
related injuries and illnesses. They can control whether or not they
report an injury or illness. Safety incentive programs manipulate
the thing workers can control--the reporting of workplace injuries
and illnesses * * * (Ex. 32-298-2).

    The United Steelworkers concurred with that assessment:

    We know better than to believe that worker behavior is the
primary cause of most workplace accidents. We know that exposure to
workplace hazards causes injuries and illness and exposure to
ergonomic hazards causes MSDs. Ergonomic hazards need to be
controlled to eliminate MSDs in the same manner that we address any
workplace hazard. Incentive programs based on injury rates, and
behavior-based safety programs do not correct hazards. In fact,
these programs can make a bad situation worse by diverting attention
from correctable hazards, and promoting the under reporting of
injuries (Ex. 32-111-4).

    Several commenters argued that OSHA had not made a determination
that incentive programs result in the underreporting of MSDs (see,
e.g., Exs. 30-4185, 30-1070, 30-3347, 30-4185). The Synthetic Organic
Chemical Manufacturers Association suggested that OSHA obtain data to
support its position, stating:

    If OSHA believes that employers are not properly reporting
injuries and illnesses, it should address this issue by gathering
the data to substantiate its position. OSHA should not discourage
employers from utilizing all necessary injury/illness prevention
tools. There is no basis for the proposed Ergonomics Standard to
suggest that these effective programs should be subject to further
scrutiny (Ex. 30-3843).

    Sufficient evidence has already been entered in the record,
however, for OSHA to reach the conclusion that MSDs are substantially
underreported (see the discussion of underreporting in the Significance
of Risk section of this preamble as well as the Benefits chapter of the
Final Economic Analysis). Evidence also supports the belief that
employer policies and practices often contribute to this underreporting
by discouraging the reporting of MSDs.
    A review of the literature on safety incentives commissioned by
OSHA and published in 1998 divided incentive programs into two
categories based on the behavior they reward. The review found that the
literature strongly indicates that programs that measure safe work
practices, such as wearing safety glasses for eye protection or using a
seat belt when driving, may increase the frequency of such practices.
The literature review further disclosed that incentive programs that
focus on reductions in the number of injuries and illnesses reported do
not improve safety practices. No scientific studies were found
indicating that such programs had either a positive or a negative
impact (Ex. 502-281).
    Some policies and practices can affect employee participation in
the ergonomics program, as well as employees' incentive to report.
Employees who are punished or discouraged from reporting MSDs or MSD
signs and symptoms, may also feel discouraged from participating in any
meetings or discussions about ergonomic problems in the workplace and
how to address them. If a worker is threatened with retaliation for
pointing out hazards or for participating in a job hazard analysis,
that worker and his or her co-workers are unlikely to take part in this
activity or future activities. Employees are likely to be discouraged
from requesting information to which they may be entitled, such as
training materials or information about this standard, if they fear
retaliation or if obtaining the information is made inconvenient.
Likewise, if employees in a problem job are asked for recommendations
about eliminating or controlling MSD hazards, but are required to
attend a meeting at an unreasonable time in an inconvenient place, or
that may involve loss of pay in order to submit those recommendations,
the likelihood of those employees

[[Page 68323]]

participating in the process would be diminished.
    Some commenters were concerned that a wide variety of employer
policies and practices could have the potential to impact employee
participation and reporting of injuries; even a review of a manager's
or supervisor's performance could be found to constitute a violation of
the standard when performance criteria in that review include the
number of injuries and illnesses recorded by employees under his or her
supervision (Ex. 30-4185).
    OSHA is concerned with the effect of a policy on employees'
participation in the ergonomics program and whether the program or
policy discourages reporting. In some cases, making the number of
injuries and illnesses recorded a part of a manager's performance
review can result in a policy the discourages reporting. Larry Hall of
the United Food and Commercial Workers described such a situation.

    One of the things that happens with the [manager] bonuses is the
worker reports a problem, and the manager immediately tells them how
that is going to affect their bonus. If you are working for me and I
say, ``Gee, that is going to really affect my bonus. So, for the
rest of your life, you get to work nights,'' these people write
their schedules. They control their lives. If you are going to
displease me and take money out of my pocket, I can really do a lot
to you and stay within the union contract. (Tr 14538)

    OSHA finds that the evidence strongly demonstrates that employer
policies and practices that reward non-reporting and punish, threaten,
or otherwise discourage employee reporting of MSD incidents have the
effect, in many instances, of suppressing incident reports. This
conclusion is based on the strong record presented by witnesses and
documentary submissions as well as on the logic that providing
incentives to not report accidents or illnesses is likely to reduce the
number of such reports, but unless the cause of those incidents is
addressed, it is unreasonable to believe that MSD incidents themselves
will be reduced in number. The litany of case reports in the record
where employer policies and practices were said to deter reporting
reinforce this position. The concealment of MSD incidents would in fact
have an effect directly opposed to the purpose of this standard.
Hazards that would otherwise be identified and eliminated or controlled
would remain and continue to threaten employees. MSD incidents that, if
reported, could be limited in severity through rest or treatment would
instead be allowed to progress.
    In contrast to the comments describing the pressures on employees
not to report MSDs, a number of parties were concerned that the
proposed prohibition on policies or practices could inadvertently
eliminate widely accepted, sensible, and successful safety practices.
Many commenters indicated concern that the proposed prohibition on
policies or practices that discourage worker reporting could be
interpreted to eliminate demonstrably successful employee incentive
programs (see, e.g., Exs. 30-3765, 32-368-1, 30-656, 30-1048, 30-1070,
30-1349, 30-1551, 30-1567, 30-1616, 30-1652, 30-1671, 30-1901, 30-2038,
30-2050, 30-2061, 30-2499, 30-2514, 30-2799, 30-2811, 30-2812, 30-2814,
30-2815, 30-2846, 30-2988, 30-2990, 30-3086, 30-3174, 30-3177, 30-3336,
30-3349, 30-3353, 30-3354, 30-3678, 30-3721, 30-3736, 30-3745, 30-3819,
30-3848, 30-3951, 30-4122, 30-4185, 30-4334, 30-4496, 30-4540, 30-4607,
30-4674, 30-4702, 30-4818, 30-4822, 30-4839, 30-4843, 31-310, 32-21-1,
32-82-1, 32-120-1, Tr. 10445, Tr. 11502, Tr. 12857, Tr. 16924, Tr.
17461, Tr. 17483, 30-4340, 500-1-28, 500-1-29, 500-1-42, 500-1-69, 500-
1-70, 500-1-79, 500-1-86, 500-1-95, 500-1-106, 500-1-112, 500-1-113,
500-1-114, 500-1-136, 500-1-147, 500-1-181, 500-1-117, 500-1-119, 500-
1-121, 500-1-124, 500-1-125, 500-1-127, 500-1-135, 500-1-137, 500-1-
152, 500-1-193, 500-1-442, 32-258-2, 30-911, 30-1942, 30-3236, 30-3339,
500-219, 601-x-1710, 601-x-1711, 30-4527, 30-980, 30-2668, 30-4565, 30-
3847, 30-2684, L30-4985, 30-4029, 30-4335, 30-4443, 30-1004, 30-1010,
30-1017, 30-1025, 30-1027, 30-1035, 30-1038, 30-1042, 30-1044, 30-1045,
30-1079, 30-1080, 30-1089, 30-1099, 30-1163, 30-1164, 30-1401, 30-1403,
30-1423, 30-1424, 30-1436, 30-1440, 30-1455, 30-1460, 30-1463, 30-1495,
30-1497, 30-1566, 30-1658, 30-1659, 30-1674, 30-1675, 30-1682, 30-1684,
30-1685, 30-1686, 30-1687, 30-1688, 30-1689, 30-1690, 30-1691, 30-1916,
30-2124, 30-2126, 30-2234, 30-2235, 30-2236, 30-2237, 30-2275, 30-2279,
30-2311, 30-2369, 30-2376, 30-2588, 30-2673, 30-2674, 30-2768, 30-2850,
30-2925, 30-3002, 30-3042, 30-3044, 30-3080, 30-3083, 30-3087, 30-3229,
30-3380, 30-344, 30-346, 30-3822, 30-3985, 30-3988, 30-4037, 30-4059,
30-4507, 30-4770, 30-4841, 30-5044, 30-5106, 30-634, 30-636, 30-638,
30-643, 30-649, 30-871, 30-883, 30-891, 30-903, 30-905, 30-918, 30-978,
30-994, 30-995, 600-x-10, 600-x-11, 600-x-12, 600-x-13, 600-x-45, 600-
x-46, 600-x-5, 600-x-6, 600-x-7, 600-x-9, 601-x-1358, 601-x-1363, 601-
x-1364, 601-x-1365, 601-x-1366, 601-x-1367, 30-1416, 30-1453, 30-1457,
30-1616, 30-1998, 30-1999, 30-2131, 30-2142, 30-2184, 30-2233, 30-2250,
30-2304, 30-2395, 30-2396, 30-2423, 30-2431, 30-2736, 30-2829, 30-2889,
30-2891, 30-2992, 30-3003, 30-3254, 30-3334, 30-3393, 30-3551, 30-3597,
30-3791, 30-3882, 30-3936, 30-3944, 30-3974, 30-3977, 30-3999, 30-4464,
30-4532, 30-4539, 30-4544, 30-4629, 30-4657, 30-4667, 30-4669, 30-4980,
30-5034, 30-5076, 30-5095, 30-5101, L30-4952, L30-4953, L30-5096).
    Caterpillar Inc., for instance, attested to the favorable impact of
incentive programs in that firm:

    Incentive programs have always been an excellent vehicle to
raise awareness, communicate various issues throughout the workplace
and show employer concern about employee safety. While OSHA
considers these programs to be disincentives [to the reporting of
MSDs and MSD signs and symptoms], our experience shows that they
have positive benefits. By increasing awareness and rewarding safe
behaviors through incentive programs, employers have seen a
reduction in all injury categories (Ex. 30-4607).

    Nothing in this final rule would prohibit incentive or award
programs. The obligation that an employer would have, should they chose
to adopt an incentive program, would be to ensure that the incentive
program did not discourage the reporting of MSDs, MSD signs and
symptoms, or MSD hazards, or discourage participation in the ergonomics
program. As explained previously, OSHA's concern is that discouraging
full reporting and participation in the ergonomics program will
diminish the effectiveness of the program.
    Although incentive programs that are successful in promoting
workplace safety can be expected to result in a reduction in the number
of injuries reported, an unsuccessful program that does not improve
workplace safety can also result in fewer reported injuries. When the
yardstick for measuring the success of the program is only the number
of injuries reported, the program can distort the true state of affairs
and preclude early intervention by inducing employees to avoid
reporting their injuries. This problem is particularly critical with
regard to MSD signs and symptoms, where early intervention can be of
great importance. OSHA encourages employers to focus any incentives on
safe work practices, active participation in safety programs, and
identification of hazards in the workplace. By doing so, the root
causes of injuries and illnesses can be addressed, and a safer
workplace can be

[[Page 68324]]

created. The Incentive Federation described the types of activities
that a safety incentive program can target, rather than using the
number or rate of reported injuries as its objective:

    * * * a good safety incentive program often focuses on proactive
behavior. For example, it might encourage employees to make safety
suggestions, attend safety meetings, promote safety awareness,
participate in safety inspections, report safe behavior, report near
misses, and so forth. In addition, self-directed safety teams, where
employees observe each other at work and report good and bad safety
conduct (without necessarily using the names of the specific
employees), encourage safe behavior. Encouraging this type of
employee participation is extremely useful, because employees are
reasonably objective in observing their peers, and they report good
and bad behavior. The conduct observed can then be included in
periodic reports or reviewed in safety meetings to stress safe
behavior. (Ex. 30-1100).

    Drug testing programs, when applied to all workers who report MSDs,
were also said to hinder full reporting of injuries. Chuck Monohan of
the International Brotherhood of Electrical Workers explained that a
fear of false positive results was responsible for non-reporting (Tr.
7378). Other commenters also discussed the chilling effect that drug
testing programs can have on reporting injuries (Tr. 5997, Tr. 13869,
Tr. 17509)
    A large number of commenters expressed concern that the proposed
prohibition on policies or practices that discourage worker reporting
could be interpreted to eliminate widely accepted drug testing policies
(see, e.g., Exs. 30-536, 30-2208, 32-368-1, 30-3765, 30-419, 30-519,
30-1012, 30-1048, 30-1070, 30-1261, 30-1332, 30-1348, 30-1349, 30-1358,
30-1536, 30-1551, 30-1567, 30-1616, 30-1652, 30-1671, 30-1901, 30-2050,
30-2061, 30-2499, 30-2514, 30-2645, 30-2675, 30-2799, 30-2811, 30-2812,
30-2814, 30-2815, 30-2988, 30-2990, 30-3174, 30-3177, 30-3348, 30-3349,
30-3353, 30-3356, 30-3359, 30-3721, 30-3723, 30-3736, 30-3745, 30-3819,
30-3951, 30-4046, 30-4122, 30-4567, 30-4607, 30-4628, 30-4674, 30-4702,
30-4713, 30-4818, 30-4822, 30-4839, 30-4844, 31-282, 31-298, 31-310,
32-335, Tr. 4335, Tr. 4909, Tr. 6112, Tr. 8350, Tr. 9190, Tr. 10444,
Tr. 12857, Tr. 12958, Tr. 15621, Tr. 15644, Tr. 15976, Tr. 17461, Tr.
17483, 30-3725, 30-4340, 30-4146, 500-1-28, 500-1-42, 500-1-69, 500-1-
70, 500-1-79, 500-1-86, 500-1-95, 500-1-106, 500-1-112, 500-1-113, 500-
1-114, 500-1-136, 500-1-140, 500-1-147, 500-1-181, 500-1-185, 500-1-
117, 500-1-119, 500-1-121, 500-1-124, 500-1-125, 500-1-127, 500-1-135,
500-1-137, 500-1-152, 500-1-193, 500-1-411, 500-1-384, 500-1-385, 500-
1-386, 500-1-413, 500-1-423, 500-1-442, 500-16, 500-52, 500-23-1, 32-
258-2, 30-904, 30-911, 30-1942, 30-3236, 30-3339, 500-219, 30-4550,
601-x-1711, 30-1363, 30-4248, 30-4778, 30-2455, 30-4527, 30-2668, 30-
4565, 30-3847, 30-2684, L30-4985, 30-3472, 30-3582, 30-4029, 30-4335,
30-4443, 30-4475, 30-4528, 30-4688, 30-1004, 30-1010, 30-1017, 30-1025,
30-1027, 30-1035, 30-1038, 30-1042, 30-1044, 30-1045, 30-1079, 30-1080,
30-1089, 30-1099, 30-1163, 30-1164, 30-1401, 30-1403, 30-1423, 30-1424,
30-1436, 30-1440, 30-1455, 30-1460, 30-1463, 30-1495, 30-1497, 30-1566,
30-1658, 30-1659, 30-1674, 30-1675, 30-1682, 30-1684, 30-1685, 30-1686,
30-1687, 30-1688, 30-1689, 30-1690, 30-1691, 30-1916, 30-2124, 30-2126,
30-2234, 30-2235, 30-2236, 30-2237, 30-2275, 30-2279, 30-2311, 30-2369,
30-2376, 30-2588, 30-2673, 30-2674, 30-2768, 30-2850, 30-2925, 30-3002,
30-3042, 30-3044, 30-3080, 30-3083, 30-3087, 30-3229, 30-3380, 30-344,
30-346, 30-3822, 30-3985, 30-3988, 30-4037, 30-4059, 30-4507, 30-4770,
30-4841, 30-5044, 30-5106, 30-634, 30-636, 30-638, 30-643, 30-649, 30-
871, 30-883, 30-891, 30-903, 30-905, 30-918, 30-978, 30-994, 30-995,
600-x-10, 600-x-11, 600-x-12, 600-x-13, 600-x-45, 600-x-46, 600-x-5,
600-x-6, 600-x-7, 600-x-9, 601-x-1358, 601-x-1363, 601-x-1364, 601-x-
1365, 601-x-1366, 601-x-1367, 30-2410, 30-2289, 30-3877, 30-2601, 30-
3160, 30-3598, 30-2912, 30-1332, L30-5025, 30-4280, 30-1416, 30-1453,
30-1457, 30-1616, 30-1998, 30-1999, 30-2131, 30-2142, 30-2184, 30-2233,
30-2250, 30-2304, 30-2395, 30-2396, 30-2423, 30-2431, 30-2736, 30-2829,
30-2889, 30-2891, 30-2992, 30-3003, 30-3254, 30-3334, 30-3393, 30-3551,
30-3597, 30-3791, 30-3882, 30-3936, 30-3944, 30-3974, 30-3977, 30-3999,
30-4464, 30-4532, 30-4539, 30-4544, 30-4629, 30-4657, 30-4667, 30-4669,
30-4980, 30-5034, 30-5076, 30-5095, 30-5101, L30-4952, L30-4953, L30-
5096).
    The sentiment that the contribution of drug-testing programs to
workplace safety should not be compromised by the requirements of the
ergonomics standard was expressed by Food Distributors International:

    In the view of FDI and its members, the possibility that some
individuals will feel constrained to avoid reporting workplace
injuries or accidents because of a drug test requirement that might
be triggered is not an overriding concern. These fears largely will
relate only to those whose drug use may be discovered, and their
protection should not be the goal of a major OSHA regulatory scheme.
In addition, any such inhibiting effect is more than outweighed by
the workplace accidents and injuries that are avoided through
maintenance of an effective drug-free workplace program (Ex. 30-
3819)

    OSHA is not aware of any basis for concluding that the development
of MSDs is in any way associated with the use of drugs or alcohol. The
reporting of MSDs or MSD signs and symptoms covered under this rule,
therefore, cannot be considered by itself to provide any justification
for testing. Although subjecting all parties reporting injuries or all
OSHA recordable cases to testing has sometimes been used by employers
as a matter of administrative convenience in identifying individuals
for testing, the lack of a relationship between drug or alcohol use and
the MSDs covered by this rule, along with the detrimental effect on
reporting behavior that testing can have, combine to make this an
inappropriate practice where MSDs are concerned.
    Furthermore, there is no evidence that drug tests discourage
workers from reporting injuries only if they fear that drug use will be
discovered. Adrienne Markowitz of the UFCW described a poultry
processing plant where workers who reported pain in the hands and
wrists were required to be tested for illegal drugs:

    This is a church going and religious community. Most people were
not worried that drugs would be found because they didn't take them.
But they weren't happy with having to suffer the indignities of
having someone watch them urinate, were afraid that inaccurate
testing and laboratory practices [would erroneously indicate illegal
drug use], were concerned that the medications they took would show
up as illegal drugs, and [were] fearful that the company supervisors
would doctor the records. Many, for the reasons I have just stated,
refused to take the test and were fired. And many others just never
reported their illnesses (Tr. 5998).

    This rule does not in any way prevent an employer from conducting
testing if it is required by law, is based on reasonable suspicion, is
part of the job application process, is part of routine fitness-for
duty examination, is done as follow-up after entering an employee
assistance or drug rehabilitation program, or is administered to assist
in post-accident investigation. A blanket policy that requires all
employees reporting MSDs or signs and symptoms of MSDs to submit to
drug or alcohol testing, however, would hinder the effectiveness of the
ergonomics program if such a policy results in underreporting.
    Nor is the fear that a back injury or other MSD may be the result
of an accident caused by drug or alcohol use

[[Page 68325]]

a reason for testing employees for drugs when reporting an MSD or MSD
signs or symptoms. As stated in paragraph (a), this standard does not
address injuries caused by slips, trips, falls, vehicle accidents, or
other similar accidents. The standard addresses injuries that are the
result of exposure to force, repetition, awkward postures, vibration,
and contact stress. Injuries covered by the standard are commonly
associated with prolonged or excessive exposures to these ergonomic
risk factors. There is no reason to believe that drugs or alcohol have
any relevance to the development of these conditions and certainly no
evidence that impairment at the time of reporting has any relevance.
Simply reporting MSD signs and symptoms therefore cannot be viewed as a
legitimate reason to suspect drug or alcohol abuse.
    Some commenters argued that if an ergonomics standard did restrict
drug testing programs, this could conflict with regulatory requirements
of the Department of Transportation or Nuclear Regulatory Commission,
or with policies established through collective bargaining (see, e.g.,
Exs. 30-3853, 30-3765, 30-1070, 30-1332, 30-1671, 30-3284, 30-3359, 32-
335, Tr. 15621, 500-1-28, 30-4527, 30-4029, 30-4475, 30-4248).
Restrictions on drug testing were also said to conflict with
requirements for companies with government contracts (see, e.g., Exs.
601-x-1711, 30-4475).
    Language in the proposal that could affect certain employer drug
testing policies was said to conflict with state workers' compensation
laws, and thus violate Section 4(b)(4) of the Occupational Safety and
Health Act. State workers' compensation laws, it was said, may require
drug testing in certain instances, allow reduced insurance premiums for
those employers with testing programs, or allow impairment to be used
as a defense in contesting compensation claims (see, e.g., Exs. 500-
104, 500-104-1).
    It was argued that restrictions on drug testing programs could
result in liability claims against those employers whose employees
acted in an unsafe manner due to impairment. The New Mexico Self
Insurers Fund stated:

    OSHA may have had the best intentions when writing the preamble,
however if state and local government municipal employers were to
neglect the possibility that alcohol and drug use was a factor in an
injury, whether or not it is an MSD, municipal liability would rise
exponentially. The bottom line is that many local governments would
not be immune from lawsuits where gross negligence is alleged. It
would be easy to show negligence on the part of a local government
that allowed ``waivers'' of its alcohol and drug testing ordinances
for employees in order to permit full and free reporting of MSDs
(Ex. 30-4810).

    OSHA's concern is that testing not be conducted in a manner that
penalizes individuals reporting MSDs or participating in ergonomics
programs. This final rule does not restrict employers' drug or alcohol
testing policies where such policies are authorized by state or federal
law. It should be noted, however, that DOT regulations, which require
post accident testing and testing of safety sensitive employees and
under certain other circumstances, do not require drug testing when
MSDs or any other type of injury or illness is reported.
    Workers compensation and other state and federal laws that require
drug testing following a traffic or other accident, are also not
generally relevant to the application of this standard, because as
explained above, MSDs resulting from accidents, slips, trips and falls
are specifically exempted from this rule.
    A number of employee representatives expressed the opinion that
policies or practices that can discourage worker participation in the
ergonomics program, such as incentive programs and post-injury drug
testing, should be explicitly prohibited in the rule (see, e.g., Exs.
32-339-1, 32-111-4, 32-198-4, 32-210-2, 500-50). Absent such a
prohibition, it was argued, an ergonomics standard triggered by
employee reports of injury would be undermined by employers who would
pressure employees to avoid reporting injuries. These commenters argued
that the case-by-case determination approach described in the preamble
to the proposal would be inadequate to deter practices that discourage
participation and reporting, and a blanket prohibition in the rule
itself is necessary.
    Some parties indicated that they did not find the proposal
sufficiently clear in indicating what policies or practices would be
considered by OSHA to discourage worker participation in the ergonomics
program (see, e.g., Exs. 30-3853, 30-4185, 32-337-1, 30-653, 30-1350,
30-2216, 30-3233, 30-3344, 32-82-1, 30-1101, 500-33). Concern was
expressed that compliance would be dependent upon whether or not
employees feel discouraged, and would thus be determined by the
subjective perceptions of employees (see, e.g., Ex. 30-3853, 30-4247,
500-33, 32-266-1). TXU Business Services, for example, stated:

    Any regulation that has provisions for employees ``not feeling
discouraged'' would be impossible to enforce fairly. For example,
identical employer conduct could be legal in one plant, or part of a
plant, and illegal in another and the employer might never know it
(Ex. 500-1-28).

    In order to provide an objective basis for enforcement of this
provision, OSHA has concluded that a pattern of underreporting must be
evident in the workplace before a determination will be made that any
given employer policy or practice discourages reporting of MSDs or
signs and symptoms of MSDs. If underreporting or discouragement of
employee participation in the ergonomics program is found at a
particular establishment as a result of a records review or employee
interviews, OSHA will evaluate the situation to determine if employer
policies and practices have had the effect of discouraging reporting or
participation in the ergonomics program. OSHA's position is that these
policies and procedures are not per se illegal, but they can clearly
discourage reporting and participation. If an employer has policies or
procedures with this potential, the employer must ensure that these
policies and procedures are not actually discouraging reporting or
participation.
    OSHA expects that employers will have ample opportunity to discover
whether employees are being discouraged through the periodic
communication that will take place under the standard. If policies and
practices are determined to discourage reporting or participation,
employers would need to take action to remedy this situation.
    OSHA considers it important that the employer not only not
discourage, but actively encourage reporting and participation in the
ergonomics program. The Agency believes that this goal can be
accomplished by providing information to employees about the importance
of early reporting in accordance with paragraph (d), along with
effective training on reporting and the ergonomics program in
accordance with paragraph (t) of this final rule.
    Several parties asked whether the proposed prohibition on policies
or practices that discourage reporting would apply to an employer's
decision as to whether or not an employee can work overtime (see, e.g.,
Exs. 32-368-1, 30-2208, 30-3765, 30-1671, 30-2050, 30-2499, 30-3344,
30-3348, 30-3356, 30-4628, 30-4674, 500-1-140). Withholding overtime,
it was argued, may be based on a desire to prevent aggravation of the
potential MSD, and limiting the employer's ability to restrict

[[Page 68326]]

overtime would thus conflict with provisions in the proposed standard
that allow employers to use administrative controls (Ex. 30-1671). The
Association of Independent Corrugated Converters stated:

    While some employers do not choose to impose such restrictions,
it seems unfathomable that involuntary restrictions on some overtime
work would be deemed an inappropriate management step, both before
and after symptoms reported by employees are analyzed by a health
care provider. The essence of some MSDs, at least in OSHA's own
construct of such conditions, is that overuse in the form of
``excessive'' repeated exposure is the source of problems in many
circumstances. It seems oddly inconsistent that on the one hand, the
overall thrust of the ``incremental abatement'' and job re-design
obligation of OSHA's full ergonomics program will focus on avoiding
or reducing exposures, while on the other, an employer's judgement
to limit additional exposure is retaliatory or aimed at discouraging
reporting (Ex. 500-1-140).

    As with incentive programs and drug and alcohol testing policies,
OSHA's concern about withholding overtime is based on the
discriminatory application of this practice to discourage reporting or
participation in the ergonomics program. The Agency realizes that work
restrictions, including limitations on the number of hours worked, are
often necessary to prevent an injured employee's condition from
worsening and to allow damaged tissues to recover. The provision of
work restrictions, however, must be viewed separately from the
reporting of MSDs and MSD signs and symptoms.
    If overtime is withheld as a matter of policy simply because a
report of an MSD has been made, this could have the effect of
discouraging reporting. An example of such a situation would be an
employee who uses a keyboard in a steady manner for eight hours per
day, then works an additional two hours as a receptionist and does not
perform any work involving typing or hand activity during that two
hours. If this employee were to report the signs and symptoms of an MSD
of the wrist, and as a matter of policy was denied the opportunity to
work overtime as a receptionist but continued working eight hours at a
keyboard, the effect would be to discourage reporting and would be
evaluated by OSHA as described above.
    OSHA does not include production incentives in the category of
policies and practices that may discourage reporting or participation
in the program. Mosely and Associates registered concern as to how such
systems would be viewed, and expressed concern that plants may lose
their competitiveness if piece rate compensation systems or production
incentives are abandoned (Ex. 30-4362).
    OSHA recognizes that these systems sometimes cause employees to
expose themselves to MSD hazards in order to achieve higher rates of
compensation. Because piece rate incentives are not directly tied to
reporting or participation in the ergonomics program, however, the
Agency does not view them as potential sources of discouragement to
reporting and participation. With full participation in the ergonomics
program, employees compensated under these systems will be provided
with the protections of the ergonomics standard, including the
information and training that will confer with it the ability to
recognize the potential causes of MSDs and knowledge of the importance
of early intervention.
    Several commenters (see, e.g., Exs. 30-3853, 30-4247) argued that
subjecting an employer to citation for maintaining policies or
practices that discourage worker participation would be contrary to the
intent of Congress. These commenters argued that, by placing a
discrimination provision in Section 11(c) of the OSH Act, Congress had
made clear that anti-discrimination provisions should not be included
in standards. These commenters therefore believe it inappropriate for
OSHA to include a discrimination provision in an ergonomics standard.
    Paragraph (h)(3) of the final rule is intended to prevent employers
not only from discriminating against employees for reporting and
participating in the ergonomics program, but also to prevent employers
from having policies that discourage employees from reporting and
participating, even where no discrimination has taken place. Paragraph
(h)(3) thus has a different scope than section 11(c). In addition,
insofar as paragraph (h)(3) addresses discrimination, it does so as
part of a broader standard that is reasonably necessary and appropriate
to address a serious hazard . Nothing in Section 11(c) indicates that a
standard issued in accordance with Section 6(b) may not include such a
provision. Provides a different enforcement mechanism than section
11(c), and nothing in section 11(c) indicates that it is the exclusive
means of addressing discriminatory policies.

Paragraph (i)--Employee Participation

    Paragraph (i) sets forth the final rule's provisions regarding
employee participation. It requires that employers ensure that
employees and their representatives, if the employees are represented
by a recognized or certified collective bargaining agent, have ways to
report MSDs, MSD signs and symptoms, and MSD hazards; that employees
receive prompt responses to those reports when they are made; that
access to the standard and to information about MSDs and the ergonomics
program be provided to employees; and that employees have ways to be
involved in the development, implementation, and evaluation of the
ergonomics program.
    The requirements of paragraph (i) closely correspond with the
requirements of the proposed employee participation section. This
reflects OSHA's determination, based on evidence in the record, that
the involvement of employees and their representatives in an ergonomics
program is critical to the effectiveness of the program. It also
reflects the support for the proposed employee participation provisions
expressed by commenters.
    The proposed employee participation requirements were designed to
cover those circumstances where the involvement of workers was
essential to the success of an ergonomics program. The duty to
establish a means of reporting and to provide prompt responses to
reports was included because of the vital importance of an effective
reporting system to the proper function of the injury-based trigger of
the standard. Access to the standard and information about the
ergonomics program was considered by the Agency to be necessary for
employees to participate effectively in the ergonomics program.
Employee input into the development, implementation, and evaluation of
ergonomic programs was considered critical to program success because
of the first-hand knowledge that employees could offer regarding
potential solutions to MSD hazards, the appropriate content and level
of training, and the effectiveness of control measures.
    The proposed provisions for employee participation generated a
considerable volume of comment. Support for the concept of involving
employees in the ergonomics program was widespread among commenters,
and few disagreed with the proposed requirements pertaining to
reporting, providing responses, and furnishing access to the standard
and to information. Comment on these provisions in the context of
employee participation was primarily limited to requests for
clarification about how the provisions would apply in practice.
Substantial differences were expressed, however, concerning the level
of employee involvement appropriately included in a final standard.

[[Page 68327]]

    The importance of employee participation in the successful
implementation of an ergonomics program was stressed in a number of
comments (see, e.g., Exs. 30-276, 30-428, 30-651, 30-3860, 30-4333, 30-
4468, 32-21-1-2, 32-82-1,Tr. 3479, Tr. 6930, Tr. 3565, Tr. 5596-5597,
Tr. 10202, 32-450-1-18-1, Tr. 11182, Tr. 11380, Tr. 12947, Tr. 14479,
Tr. 14902, Tr. 16526, Tr. 12366, 500-29, 500-117-2, 500-177-2, 500-220,
500-215, 601-x-1587, 20-605). Mark Catlin of the Alice Hamilton
Occupational Health Center, for example, stated:

    Our experience has been * * * that when there is true employee
involvement from beginning to end, especially in the development of
solutions, that can be a great benefit in coming up with a program
that works for that specific site that is cost effective and will be
maintained after it is initially set up (Tr. 5597).

    The advantages that the knowledge and skills of employees have lent
to successful ergonomics programs were remarked upon by a number of
commentors (see, e.g., Tr. 4084, Tr. 4697, Tr. 6188, Tr. 7011, Tr.
7111, Tr. 7135, Tr. 7142, Tr. 9489, Tr. 10224, Tr. 10547, Tr. 11076,
Tr. 12366, Tr. 12297, Tr. 13004, Tr. 14248, Tr. 14320, 20-406, Tr.
17623). For instance, Dr. Robert McCunney of the American College of
Occupational and Environmental Medicine stated:

    In my experience as a physician, I have been impressed with the
knowledge that a lot of workers have about their jobs and the
recommendations that can be made to improve it and reduce factors
associated with illness * * * [Tr. 17633].

    One aspect of employee participation included in the proposal was a
means for the employee to inform the employer when MSDs or MSD signs
and symptoms occur. Reporting is essential to allow the employer to
become aware of those job situations where further action is necessary.
For example, if an employee experiences pain and stiffness in the
shoulders and believes this to be the result of workplace factors, the
employer cannot be expected to make changes to the workplace to
mitigate the risk factors unless the employer is aware of the existence
of a problem.
    Belief in the importance of employee reporting of MSDs and their
signs and symptoms was expressed in a number of comments on the
proposed rule (see, e.g., Exs. 30-240, 30-1104, 30-2116, 30-2215, 30-
2387, 30-2809, 30-3686, 30-3765, 32-77-2, 30-3813, 30-3826, 30-3849,
30-3859, 30-4185, 30-4468, 30-4538, 30-4548, 30-4562, 30-4564, 30-4837,
31-78, 31-174, 31-192, 31-227, 31-303, 31-353, 32-82-1, 32-85-3, 32-
461-1, 32-111-4, 32-210-2, 32-339-1, 500-33). For example, Shipman and
Goodwin LLP, on behalf of an unnamed client, stated:

    Requesting that employees report signs and symptoms encourages
the success of any early intervention program (Ex. 30-2215).

    Comments received on this issue are presented in greater detail in
the discussion of paragraph (d), which includes a requirement that
employers provide information to their employees on how to report MSDs
and their signs and symptoms. The ability of employees to report MSDs
and MSD signs and symptoms depends upon their understanding of the
reporting mechanism, and knowledge of what constitutes a possible MSD
or MSD sign or symptom.
    The final rule, at paragraph (h), adds ``MSD hazards'' to the list
of things employers must ensure that employees report. OSHA believes
that trained employees will be able to identify MSD hazards in their
workplace before they cause MSDs, and this will result, in turn, in
steps by proactive employers to protect workers at risk even before
they suffer an MSD incident. The reporting of MSD hazards has therefore
been added to paragraph (i)(2) of the final rule.
    The specific process employers must establish for reporting MSDs,
their signs and symptoms, and MSD hazards is not prescribed in this
final rule. OSHA anticipates that the process will vary from workplace
to workplace, based on the size and nature of the workplace. A large
facility with an on-site health care professional (HCP), for example,
may choose to handle reports through the HCP. Smaller facilities may
elect to have reports made directly to supervisors. The method of
submitting a report is likewise not specified. Employers may chose to
adopt written, electronic, or other systems for receiving reports.
(Note, however, that employers are required by paragraph (v) to keep
records of employee reports, primarily for evaluation purposes.)
    The final rule requires the employer to ensure that employees have
ways ``to promptly report'' their MSDs, signs and symptoms, and
hazards. OSHA received many comments on its use of the word ``prompt''
in the proposed rule (see, e.g., Exs. 30-3826, 30-3853, 30-4467, 30-
3284, 30-3367, 30-4674). These commenters asked OSHA to clarify what
was meant by ``prompt.'' OSHA is using the word to indicate that timely
reporting is required; the effectiveness of the standard and the
employer's program would clearly be compromised if employees did not
report their problems quickly, at a time when preventive action can
still be taken. A rigid time frame, however, is not specified in the
rule, because the Agency recognizes that some flexibility is needed to
account for the circumstances found in different workplaces. In
general, OSHA believes that reports should be received within a few
days in almost all cases, and the Agency expects employers to inform
their employees about the importance of early reporting, as required by
paragraph (d).
    OSHA proposed that employers provide prompt responses to employee
reports of MSD signs and symptoms to encourage reporting and provide
feedback. OSHA's reasons for proposing that employer responses to
reports be made promptly was that timely and good faith responses are
essential to reinforcing the information exchange process. Several
commenters asked for clarification of this proposed provision (see,
e.g., Exs. 30-3344, 30-3367, 30-249, 30-3749). The Society for Human
Resources Management, for example, asked OSHA to specify what it would
consider an adequate response. The Society questioned whether OSHA
would consider acknowledgment of receipt of the report, evaluation of
the report, or action to prevent the condition from worsening as
responses to the report. Others asked whether the response must be in
writing or whether alternative methods of communication (e.g., oral)
would be acceptable (see, e.g., Exs. 30-3344, 30-3367, 30-3826).
    If an employee experiences persistent MSD symptoms and reports that
condition to the employer but receives no response, that employee is
likely to consider the ergonomics program ineffective. Such a loss of
confidence in the program would clearly discourage future reporting and
participation. If the employer communicates the results of evaluations
made based on the report, or informs the employee of any actions that
are being taken as a result, the reporting employee will better
understand the process and will be more likely to participate in the
future. OSHA also recognizes that employers will sometimes inform the
employee that a given report requires no action, e.g., when an MSD
hazard turns out, on closer examination, not to warrant further action.
OSHA continues to believe that prompt responses to reports are an
essential part of the communication that must occur between employers
and employees in a functioning ergonomics program, and final paragraph
(i)(2) reflects this conviction.
    In order to provide flexibility to employers to tailor
communication

[[Page 68328]]

methods to the needs of a particular workplace, the method of providing
a response to employees who report is not specified. Employers may
chose to adopt written, electronic, or other systems for providing
responses, although a record of the response must be maintained, as
required by paragraph (v).
    OSHA proposed to require the employer to grant employees access to
the standard and to include information about the ergonomics program.
OSHA proposed this requirement to ensure that employees understood what
the OSHA standard required and how the employer's program worked. The
program was to include assignment of responsibilities in the ergonomics
program; job hazard analysis results; hazard control plans; records of
the occurrence of MSDs and reports of MSD hazards; ergonomic program
evaluation results; and lists of alternative duty jobs, according to
the preamble to the proposed rule [64 FR65799]. This provision
recognized that information is important to full employee understanding
of and participation in the ergonomics program.
    OSHA was requested by commenters to define more clearly what was
meant by ``access'' to the standard (Ex. 32-337-1). The Dow Chemical
Company, for example (Ex. 30-3765) felt that employers should not be
required to provide employees access to the standard. Dow argued that
employers were required to comply with the provisions of the rule but
should not be additionally burdened by providing access to the
standard. In Dow's view, employees could be confused by receiving
information both on the employer's ergonomics program and the standard.
    The National Coalition on Ergonomics (Ex. 32-368-1) expressed
concern that the employee participation provisions of the proposed
standard would require employers to provide employees with access to
the employer's confidential documents, which might address personnel
issues, financial issues, or safety audits. If this were the case, the
Coalition argued, employees with grudges or those involved in labor
disputes would be able to harass their employer by disclosing or
threatening to disclose proprietary information out of context or in a
fashion that might have an adverse impact on the employer. The
Coalition argued that this would discourage employers from performing
audits with appropriate depth and thoroughness. Concern was also
expressed that employee access might jeopardize medical
confidentiality. (Ex. 500-1-116).
    OSHA does not believe that providing employee access to the
ergonomics standard is an unreasonable burden on employers, nor that
providing the standard will confuse employees. Employee access to OSHA
standards that affect them is a longstanding OSHA practice (see, for
example, OSHA's rule's governing lead exposure, noise exposure, and so
on). Access to the standard can be provided in several forms. A printed
copy of the standard may be made available, or an electronic version
may be provided on CD or via internet access to OSHA's web site if
employees have access to a computer. OSHA believes that the standard
will not be confusing to employees because they will be trained to
understand the ergonomics program in their workplace and their role in
it, in accordance with paragraph (t) of the final rule. OSHA does not
believe that employees will flood their employees with requests to
obtain and review the final standard; instead, the Agency believes that
the standard is likely to be used primarily as a reference to compare
the functioning of their workplace ergonomics program with the
provisions of the standard to assure that the program is functioning
properly and is in compliance.
    Because of the importance OSHA attaches to employee access to the
standard, and the relative ease of providing it, the final rule adds
the term ``ready'' to the original access provision. This means that
whenever an employee requests access to the standard, the employer must
assure that ready access is provided, i.e., that access is provided
within a reasonable time and place.
    Because of the importance OSHA places on employees being able to
easily understand the requirements of the standard, the final rule
requires employers to provide employees with a copy of the summary of
the standard that is required to be made accessible in paragraph (d).
Although the employer is required in paragraph (d) to make this
information available to employees when they start a job, the employee
should receive the summary at the time the program is implemented due
to the fact that the exposures in the employees job have now been shown
to exceed the levels in the Basic Screening Tool and considerable time
may have passed since the employee was informed that he or she had
access to this information. The summary sheet provided in Appendix B
may be used for this purpose.
    The Agency is also not persuaded by arguments that confidential
company information or medical records would be distributed if
employers provide employee access to information about the ergonomics
program. The proposal specifically stated [64 FR 65799], and OSHA
reiterates here, that information of a personal nature such as the
medical records of other employees, is not included in the information
to which employees are required to have access. Records of the
occurrence of MSDs, for example, can be presented in a general form and
do not need to include personal details. General injury and illness
information is already available to employees under the provisions of
29 CFR 1904.7 with regard to the Log and Summary of recordable
occupational injuries and illnesses.
    OSHA also is not convinced by comments suggesting that proprietary
information would be revealed if employees have access to program
information. The information required to be made available, on request,
is general information. For example, although an employee's detailed
process and production plans might be trade secrets, the information
required by this provision relates only to the control of ergonomic
hazards. Technical information regarding machinery or production
methods is clearly not required to be provided. Reports of MSD hazards
and job hazard analysis results are not confidential and are critical
information for employees if they are to participate meaningfully in
the ergonomics program.
    Providing employees with basic information about the common kinds
of MSDs and their signs and symptoms is required by paragraph (d) of
the final rule. The comments pertaining to this paragraph can be found
in the summary and explanation for paragraph (d). OSHA has decided that
information on MSDs and their signs and symptoms is so basic, and so
important to employees, that it must be provided as part of employee
participation as well. The final rule's employee participation
provisions are only triggered when MSD incidents have been reported in
a job that meets the action trigger. This means that the employees
covered by final paragraph (i) are those who work in higher-risk jobs;
these employees clearly need to be informed about MSDs and their signs
and symptoms. Thus paragraph (i)(3) requires employers to inform their
employees with, at a minimum, the information sheet in non-mandatory
Appendix A. OSHA believes that most employers will choose to provide
more detailed and specific information, such as information about the
MSDs and signs and symptoms occurring among employees in jobs in their
establishment.

[[Page 68329]]

    The fourth component of the proposed employee participation section
was a broad requirement that ``ways to be involved in developing,
implementing and evaluating each element of the ergonomics program'' be
provided to employees. This component, as explained in the preamble to
the proposal, was designed to allow employers to take advantage of the
knowledge, skills, and abilities that workers could contribute to the
ergonomics program.
    The United Steelworkers concurred with OSHA's initial assessment
that employee involvement in each element of the ergonomics program was
appropriate. The union stated:

    Workers and their representatives have to be involved in all
aspects of the introduction and implementation of an ergonomics
program in [the] workplace. After all, it is their bodies and lives
that are on the line (Ex. Tr. 11047).

    Vagueness was a concern of some commenters. A number of interested
parties indicated that they did not understand what level of employee
involvement would be required under the proposed standard (see, e.g.,
Exs. 30-3344, 30-3848, 30-4607, 30-4674, 30-4713, Tr. 4372). These
commenters stated that the proposal did not make it clear whether an
employer would have unlawfully limited employee participation if, for
example, employee suggestions for ergonomics improvements were rejected
(see, e.g., Exs. 32-78-1, 30-4467, 30-541, 30-627, 30-652, 30-1355, 30-
1697, 30-1717, 30-4843, 601-x-1710). These participants argued that
employers should not be required to follow the recommendations of
employees or obtain their concurrence on a course of action, and should
retain the authority to make all final decisions about compliance with
the requirements of the standard (see, e.g., Exs. 30-3934, 30-2208).
    Some industry representatives stated that the level of employee
involvement proposed by the requirement that employers involve
employees in developing, implementing and evaluating each element of
the program was excessive (see, e.g., Exs. 32-368-1, 32-78-1, 30-4467,
30-240, 30-276, 30-368, 30-429, 30-434, 30-541, 30-562, 30-652, 30-
1070, 30-1294, 30-1671, 30-2830, 30-2846, 30-2991, 30-3344, 30-3348,
30-3784, 30-3951, 30-4185, 30-4713, 32-21-1, 32-120-1, Tr. 11679, 500-
33, 30-3744). In the view of these commenters, OSHA did not demonstrate
that this level of employee involvement was necessary for an effective
ergonomics program (see, e.g., Exs. 32-78-1, 30-4467, 30-541, 30-627,
30-1355, 30-1545, 30-1697, 30-1717, 30-2830). Employee involvement,
although commonly acknowledged as often beneficial, was not needed in
every situation, and should therefore not be mandated, according to
these commenters. For example, Dr. Kurt Hegmann stated:

    Hazard remediation efforts are frequently enhanced and
accelerated with employee participation since the ones doing the
work 40 hours a week have often thought of the most effective
solution. Yet, requiring employee participation in this and other
aspects of the rule is inappropriate, as these assumptions are not
always true [Ex. 30-4779].

    Employee involvement in supervisory training or the evaluation of
management leadership, for example, were cited as program elements
where employee involvement was not considered necessary (Ex. 32-78-1).
In its comments on employee participation, the American College of
Occupational and Environmental Medicine stated:

     * * * employee participation in the design, modification, and
evaluation of all aspects of an employer's operation is unnecessary.
In most facilities, manufacturing or industrial engineers
effectively perform many aspects of their jobs without employee
participation. OSHA's requirement for employee participation should
be limited to participation on ergonomics teams and participation in
the job-specific problem solving process [Ex. 30-4468].

    Another commenter with a similar view argued that an employer who
is able to eliminate MSD hazards without employee participation should
not be required to consult employees (Ex. 30-4467).
    Several practical problems about how the proposed requirements
would actually work in different situations were also raised. Union
Carbide Corporation indicated that such involvement would be difficult
to implement when the ergonomics program is developed on a corporate
level:

    Large employers such as Union Carbide develop their ergonomic
programs on a corporate basis using professional staff. Of
necessity, they rely on employees to assist in implementing the
program, and employee evaluation of the program is always welcome.
But where programs are developed on a corporate basis, it is
sometimes difficult to involve employees in that development [Ex.
30-3784].

    The Whirlpool Corporation believes that adhering to the
requirements of the standard would hinder the company's ability to
respond to ergonomic hazards when they are first identified. Safety
teams that are trained to quickly identify, assess, and fix a hazard
would be supplanted by the more cumbersome process required by the
standard. Whirlpool believes that the standard requires the employer to
obtain input from people who may have nothing to add to the process,
which would increase the time and expense involved without providing
any assurance that a better solution would be found (Ex. 30-4779).
    Some employers interpreted the proposed requirement that employees
be involved in developing the program to mean that, where a current
ergonomics program already exists, the employer would be required to
develop a new program (Ex. 30-3765). The Edison Electric Institute
stated that it is impossible to consistently include employee
involvement in all elements of the ergonomics program, and therefore
recommended that the final rule allow greater flexibility to employers
and only require that employees ``be provided adequate, regular
opportunities to be involved in developing, implementing and evaluating
appropriate elements of the program'' (Ex. 500-33).
    The Northwest Food Processors Association expressed concern that
engaging employees and their designated representatives in the
ergonomics program could be inappropriate in some cases because the
ergonomic interventions they suggested might result in the elimination
of jobs or otherwise negatively impact employment opportunities. The
association stated that employers should be given flexibility in the
final rule to determine the appropriate approach to such situations
(see, e.g., Tr. 12198).
    Some employers were concerned that employees could disrupt the
program or decline to participate in it. These commenters believe that
employee representatives may attempt to use the standard as a way to
force unnecessary or costly changes for reasons unrelated to safety
(see, e.g., Exs. 30-2208, 30-1294, 30-3348). The Nabisco Company was
concerned that requirements for employee participation could not be met
if employees were unwilling to participate in the program. The company
stated:

    Nabisco strongly supports the concept of employee involvement
and encourages participation of employees at all levels of our
organization. However, this requirement assumes that employees and
their representatives will readily volunteer to participate in a
management program. It has been the experience within some of our
locations that union representatives do not

[[Page 68330]]

always encourage employee participation in management programs [Ex.
30-4201].

    A common concern expressed by employers with unionized employees
was that the requirements of the proposed standard for employee
involvement could serve to disrupt established collective bargaining
relationships (see, e.g., Exs. 30-3853, 30-3765, 32-337-1, 30-323, 30-
345, 30-538, 30-574, 30-1022, 30-1113, 30-1349, 30-1567, 30-1616, 30-
1652, 30-2426, 30-2725, 30-2773, 30-3086, 30-3184, 30-3284, 30-3344,
30-3951, 31-332, 500-1-128, 32-266-1, 30-3841). Many companies and
their unions, according to these commenters, have well-established
contractual mechanisms for addressing employee safety and health
issues. A typical example is a contract provision establishing a joint
labor-management safety committee. According to the views of these
commenters, requiring the employer to engage individual employees in
the ergonomics program would stimulate resentment and conflict by
forcing the employer to circumvent the union. PEPCO, for example,
expressed this view:

    PEPCO, like most utility companies, has a long-established
relationship with a collective-bargaining agent that represents most
of our employees (International Brotherhood of Electrical Workers,
AFL-CIO). PEPCO has well-established contractual mechanisms for
addressing employee safety and health issues. We have joint labor-
management safety committees and include our union in accident
investigations. The proposal would interfere in established
relationships such as these, for in several instances, it would
require the employer to deal with or involve not just the employee
designated representative, but also the individual unionized
employee. This places the employer in the position of having to deal
apart from, or even circumventing, the union in order to avoid the
risk of citation [Ex. 31-332].

    Consolidated Edison Company of New York urged OSHA to address this
issue by indicating that the obligations for employee involvement in
the final rule could be met by affording those rights to the union (Ex.
30-2816). Alan Ferranto of the National Association of Letter Carriers,
however, did not believe that collective bargaining relationships would
be affected by the proposed rule:

    Inevitably, when a proposal of this nature is put forth, there
are those who will argue that collective bargaining will be
affected. As the safety and health officer for a union which
represents almost a quarter million postal employees, I'm here to
say that this proposal will not affect our collective bargaining
agreement with the postal service. In fact, we are satisfied that
the employee involvement envisioned under OSHA's proposed ergonomic
standard will complement the already agreed-upon procedures in place
to address safety and health issues [Tr. 3570].

    A number of labor representatives felt that the proposed
requirement to involve employees and their designated representatives
in developing, evaluating and implementing each element of the
ergonomics program should be modified. Some parties expressed the
opinion that the standard should be revised to add employee
representatives to each provision where rights are granted to
employees. For example, the proposed job hazard analysis provision
would require the employer to ask employees whether performing the job
poses physical difficulties; in the view of these commenters, this
should be changed so that employees and their designated
representatives should be consulted. The unions also suggested that the
proposed control obligation section be revised to add designated
representatives to the requirement to ask employees for control
recommendations (see, e.g., Exs. 32-339-1, 32-182-1, 32-198-4, 32-210-
2, Tr. 3566).
    Another commonly expressed concern of the employer community was
that the proposed provision that employers provide employees ways to be
involved in developing, implementing and evaluating each element of the
ergonomics program would conflict with provisions of the National Labor
Relations Act (NLRA) or with state laws addressing labor relations
(see, e.g., Exs. 30-296, 30-323, 30-328, 30-345, 30-368, 30-377, 30-
397, 30-523, 30-532, 30-536, 30-380, 30-538, 30-540, 30-541, 30-562,
30-574, 30-589, 30-594, 30-598, 30-627, 30-630, 30-632, 30-648, 30-688,
30-1022, 30-1113, 30-1131, 30-1216, 30-1294, 30-1296, 30-1332, 30-1349,
30-1355, 30-1356, 30-1357, 30-1358, 30-1367, 30-1370, 30-1413, 30-1545,
30-1551, 30-1552, 30-1567, 30-1584, 30-1616, 30-1652, 30-1683, 30-1697,
30-1717, 30-1727, 30-1898, 30-1901, 30-2049, 30-2050, 30-2054, 30-2061,
30-2062, 30-2133, 30-2134, 30-2427, 30-2499, 30-2506, 30-2645, 30-2773,
30-2799, 30-2811, 30-2812, 30-2813, 30-2814, 30-2824, 30-2830, 30-2896,
30-2990, 30-3061, 30-3062, 30-3086, 30-3095, 30-3131, 30-3174, 30-3177,
30-3210, 30-3231, 30-3233, 30-3284, 30-3336, 30-3344, 30-3716, 30-3745,
30-3765, 30-3845, 30-3853, 32-337-1, 32-368-1, 30-3349, 30-3353, 30-
3356, 30-3364, 30-3367, 30-3473, 30-3513, 30-3622, 30-3723, 30-3728,
30-3819, 30-3849, 30-4122, 30-4143, 30-4153, 30-4158, 30-4167, 30-4187,
30-4355, 30-4499, 30-4607, 30-4628, 30-4674, 30-4702, 30-4818, 30-4843,
31-266, 31-310, 31-332, 32-211-1, 32-234-2, Tr. 4320, Tr. 4908, Tr.
15537, Tr. 8896-8897, 30-3345, 500-1-27, 500-1-28, 500-1-29, 500-1-42,
500-1-79, 500-1-86, 500-1-106, 500-1-112, 500-1-113, 500-1-114, 500-1-
116, 500-1-181, 500-1-117, 500-1-124, 500-1-125, 500-1-193, 500-1-248,
500-1-249, 500-1-307, 500-1-329, 500-1-331, 500-1-411, 500-1-423, 500-
1-442, 500-177-2, 30-1942, 30-3236, 30-3339, 30-4535, 30-2600, 30-2592,
30-2577, 30-2583, 30-2256, 30-2259, 30-2201, 30-2243, 30-2260, 30-2272,
30-3428, 30-3157, 30-3158, 30-3196, 30-3623, 30-2550, 30-2543, 30-2529,
30-2535, 30-4583, 30-2896, 30-2894, 30-2886, 30-2868, 30-2863, 30-2862,
30-2854, 30-4668, 30-43020-2854, 30-4668, 30-4302, 30-2106, 30-2404, 30-2405, 30-2407, 30-2406,
30-2412, 30-2292, 30-2293, 30-2300, 30-2287, 30-2447, 30-2370, 30-2605,
30-2614, 30-2772, 30-2791, 30-2793, 30-2828, 30-2831, 30-4058, 30-2474,
30-2487, 600-x-34, 600-x-36, 30-4762, 30-2901, 30-5036, 30-4566, 30-
1971, 30-1972, 30-1973, 30-2571, 30-4541, 30-4786, 30-5027, 601-x-1370,
601-x-1698, 601-x-1712, 601-x-1439, 601-x-1440, 601-x-1441, 601-x-1442,
601-x-1444, 601-x-212, 601-x-213, 601-x-1368, 500-1-397, 30-3839, 30-
4247, 30-4486, 601-x-1711, 601-x-1360, 30-3858, 30-3923, 30-4778, 30-
2432, 30-3850, 30-2593, 30-3728, 30-2270, 30-1995, 30-2209, 30-3036,
30-2832, 30-2472, 30-2439, 30-2438, 30-2397, 30-2389, 30-4300, 30-4326,
30-1076, 30-4712, 30-2103, 30-3806, 30-1730, 30-1446, 30-3220, 30-3235,
30-4335, 30-4337, 30-4362, 30-4394, 30-4443, 30-4528, 30-4709, 30-1651,
30-2410, 30-2289, 30-3877, 30-2601, 30-3160, 30-3598, 30-2912, 30-1332,
L30-5025, 30-4280, 30-1416, 30-1453, 30-1457, 30-1616, 30-1998, 30-
1999, 30-2131, 30-2142, 30-2184, 30-2233, 30-2250, 30-2304, 30-2395,
30-2396, 30-2423, 30-2431, 30-2736, 30-2829, 30-2889, 30-2891, 30-2992,
30-3003, 30-3254, 30-3334, 30-3393, 30-3551, 30-3597, 30-3791, 30-3882,
30-3936, 30-3944, 30-3974, 30-3977, 30-3999, 30-4464, 30-4532, 30-4539,
30-4544, 30-4629, 30-4657, 30-4667, 30-4669, 30-4980, 30-5034, 30-5076,
30-5095, 30-5101, L30-4952, L30-4953, L30-5096, 30-3497, 30-1938, 30-
1989, 30-2217, 30-2384, 30-2403, 30-2403, 30-2416, 30-2480, 30-2486,
30-2555, 30-2556, 30-2607, 30-2639, 30-2734, 30-2735, 30-2873, 30-2878,
30-3578, 30-3742, 30-3776, 30-4325, 30-4452, 30-4790, L30-4998). A
discussion of the relationship between the requirements of this final
rule and the NLRA can be found in the Legal Issues section of this
preamble.

[[Page 68331]]

    As has already been discussed, the potential value of employee
contributions to the development, implementation, and evaluation of an
ergonomics program is well-established. The intent of the proposed
requirement that employees have ways to be involved in developing,
implementing, and evaluating each program element was to allow
employers to take advantage of this potential value to construct and
administer the most effective program possible.
    A requirement that employees be involved in the program in no way
abrogates the authority of the employer to manage the workplace or
administer the ergonomics program. Regarding employee suggestions, this
general requirement of the final rule for employee involvement requires
only that employers provide a reasonable opportunity for employees to
be heard, for them to be involved, and for their suggestions to be
fairly considered. An employee recommendation made as part of this
process, in and of itself, does not oblige the employer to take action.
For example, if an employer asks employees in a problem job for
recommendations about eliminating or controlling MSD hazards, the
employer is not compelled to adopt any of the suggestions that the
employees may make. Rather, this is an opportunity for the employer to
draw on the knowledge of these workers in identifying and examining
alternative approaches to addressing hazards. The suggestions of
employees may be used to supplement those of professional staff or
consultants.
    Along with the authority for making decisions, the employer retains
the responsibility for ensuring the effectiveness of the program. If
consultation with employees about the effectiveness of the program
reveals, for example, that training has not been understood, then this
deficiency must be promptly corrected (see paragraph (u) of the final
rule).
    OSHA realizes that the input of employees will not in every
instance prove to be beneficial to the ergonomics program.
Nevertheless, the evidence in the record shows that contributions to
the success of ergonomics programs have consistently been made by
participating employees. The involvement of employees need not be
cumbersome or time-consuming. Brief discussions are often sufficient to
elicit employee input.
    The proposal would have required that employees have ways to be
involved in developing, implementing, and evaluating each element of
the ergonomics program. The final rule requires that employees be
involved in developing, implementing, and evaluating the program;
however, reference to ``each element'' of the program has been deleted.
This change has been made to grant the employer flexibility to adapt
employee involvement to the circumstances in a given workplace. OSHA is
convinced that the proposed level of employee involvement is not
practical or justified in every instance. The Agency never intended for
employee involvement to pervade every aspect of the program. As
explained in the preamble to the proposal, the ``elements'' referred to
were the broad ergonomics program elements (e.g. training, program
evaluation). A requirement for employee participation in each component
of these elements, such as supervisory training, was not envisioned.
OSHA considers, however, that even greater latitude is appropriate in
order to allow the employer to most effectively construct and
administer the ergonomics program. For example, a small employer could
adopt a training presentation developed by a trade association even if
employees in that workplace did not participate in the development of
the presentation. The Agency believes, however, that such circumstances
are the exception rather than the rule, and has retained the
requirement for employee participation in the development,
implementation, and evaluation of the ergonomics program due to the
evidence of the value of worker involvement in each of these stages in
the administration of the program.
    OSHA considers that the development of an ergonomics program is not
an event, but a continuing process. The work environment is rarely
static; work methods and equipment often change over time, and as a
result the physical demands upon workers and associated MSD hazards can
change as well. Likewise, hazard control methods and training
procedures can evolve over time. Changes in the workforce can also
impact the effectiveness of an ergonomics program. The program may
require adjustments to account for these changes. For example, if
ergonomics training is conducted in English in a workplace where the
employees speak and understand English, it may be effective. If that
employer subsequently hires employees who do not understand English, an
adjustment would be necessary to provide the training in a language the
employees understand. Similarly, if new equipment is brought into a
workplace, modifications to the ergonomics program may be necessary to
control MSD hazards related to use of the new equipment or to provide
appropriate training. It is in these types of situations, as well as in
the initial creation of the ergonomics program, where the record
demonstrates that the involvement of employees can prove invaluable.
    In response to those employers who were concerned that the proposed
standard would necessitate discontinuation of successful programs that
did not incorporate employee involvement in their development, OSHA
does not intend for the requirement in the final rule for employee
participation in the development of ergonomics programs to apply
retroactively to programs that have already been established. The
Agency believes that such a requirement would result in an unnecessary
expenditure of resources to duplicate the existing program. Rather,
OSHA believes that the evaluation of the effectiveness of the existing
program will result in the identification and correction of any
deficiencies which may currently exist, and that employee involvement
in the ongoing development of the program will result in continuous
improvement in the program over time. Moreover, OSHA anticipates that
the grandfather clause in paragraph (c) of this final rule will apply
to many existing programs.
    A successful ergonomics program also requires employee involvement
in its implementation. Clearly, hazard controls cannot be effective if
workers do not use them, and MSD management cannot be effective if
injured workers do not report their injuries. A program cannot fulfill
its objectives if it exists only on paper, and is not applied in the
workplace. Ample opportunity is provided to demonstrate employee
involvement in the implementation of the program through compliance
with the specific requirements of the standard. For example, if a job
has been found to be an MSD hazard due to repetition, and the
appropriate control method has been determined to be rotating jobs so
that no single employee spends more than three hours per day in that
job, the employer must ensure that employees carry out the job rotation
in order for it to be effective as a control measure.
    Employee involvement in the evaluation of the ergonomics program is
also needed to assure program effectiveness. For instance, workers in
problem jobs are in the best position to determine if control measures
are successfully controlling MSD hazards, or if new hazards have been
created. Employees are also best able to recognize when training is
inadequate

[[Page 68332]]

or when opportunities for reporting of MSD hazards or MSD signs and
symptoms are unsatisfactory. As with employee involvement in the
implementation of the program, opportunities to demonstrate employee
involvement in the evaluation of the program can be found in the
specific requirements for evaluation found in the standard, such as the
requirement of paragraph (m)(4) for consultation with employees
regarding the effectiveness of controls and the requirement of
(u)(1)(i) for consultation with employees on effectiveness and problems
with the program.
    OSHA does not believe that employee participation in the ergonomics
program under this final rule will result in adverse repercussions on
collective bargaining relationships. The final rule also does not
require employers in any way to circumvent any process that may
currently exist for employer communication with the employee. The rule
does not specify a precise mechanism that must be used for employee
participation. Where a system is already in place, such as a union/
management safety and health committee, nothing in this rule prohibits
an employer from using that system to meet its employee participation
obligations.

Paragraph (j)--What Must I Do To Determine Whether a Job That Meets
That Action Trigger Poses an MSD Hazard to Employees in That Job?

    This paragraph addresses the job hazard analyses employers must
perform to identify those MSD hazards that must be controlled under
this final standard. Paragraph (j)(1) of the final standard requires
employers with jobs that meet the standard's two-part action trigger--
i.e., who have employees who have experienced an MSD incident and who
work in jobs that have risk factors present at levels that meet the
screen in Table W-1--to conduct a job hazard analysis of the job to
determine whether it presents an MSD hazard to employees. (Employers
who qualify for and choose to use the Quick Fix option contained in
paragraph (o) of the standard must follow the procedures of that
paragraph and are not required to conduct the job hazard analysis
specified in this paragraph (j).)
    Paragraph (j)(2) tells employers what steps they must include in a
job hazard analysis, and paragraph (j)(3) lists the methods of job
hazard analysis that are acceptable under the rule, including referring
to a number of tools, included in Appendices D-1 and D-2 of the
standard, that employers can use to conduct their analyses. Paragraph
(j)(4) explains that if the job hazard analysis shows that hazards need
to be reduced, the job is terms a ``problem job'' under this standard.
    The proposal's job hazard analysis provisions listed the steps
required to analyze a job, and contained a list of 20 physical work
activities and conditions associated with particular risk factors. The
proposal did not provide specific guidance on how to determine whether
the risk factors presented an MSD hazard in any particular case.
Several commenters argued that the proposal's approach was vague and
asked for more specific measures for identifying MSD hazards (see,
e.g., Exs. 500-197, 30-2435, 30-973, 30-1274, 30-2426, 30-1350, 30-
2428, 30-2986, 30-3000, 30-3086, 30-3853, 30-326, 30-546, 30-4189).
Others (e.g., Ex. 30-3593) thought that the requirements in the
proposed job hazard analysis section were too specific, and still
others stated that the table oversimplified the complex interactions
between various risk factors in a job and urged OSHA to eliminate the
table of physical work activities from the final rule (see, e.g., Ex.
30-3436). The argument made by several commenters was that the work
activities and risk factors included in the table in the proposal would
be hard for employers to identify in the workplace (see, e.g., Exs.
500-197, p. III-12, 30-3745, 30-2134, 30-2426, 30-2919).
    Although some provisions in final paragraph (j) are essentially the
same as the corresponding sections of the proposed rule, several have
been revised in response to comments that the proposal did not provide
enough information on how employers could determine whether MSD hazards
were present. In particular, the inclusion of the tools in this rule
provides employers with much more assistance in compliance than the job
hazard analysis provisions in the proposal (proposed sections 1910.917
and 1910.918) would have, while preserving a high degree flexibility
for employers who do not choose to use any of the listed tools. In
addition, the final rule has been modified to allow employers
additional flexibility in several aspects of the job hazard analysis
process. The following discussion describes each provision of paragraph
(j) of the final rule and OSHA's responses to the comments received on
the proposed job hazard analysis provisions.

Paragraph (j)(1)

    Paragraph (j)(1) of the final rule states that employers must
conduct a job hazard analysis to determine whether a job that meets the
action trigger presents an MSD hazard to employees in that job. This
requirement is essentially identical to the job hazard analysis
obligation in Section 1910.917 of the proposed rule. Like the proposal,
the final rule does not require the employer to perform a job hazard
analysis for every reported MSD, but only for those that meet screening
criteria. Unlike proposed Section 1910.917, however, Paragraph (j)(1)
also permits an employer to rely on a job hazard analysis that was
conducted previously for the job, provided that the analysis was
performed in accordance with the procedures of this paragraph (j) and
is still relevant to the job (i.e., the job has not been altered in the
meantime in a way likely to change or increase exposure).
    The purpose of job hazard analysis is threefold: (1) To identify
all the ergonomic risk factors that are associated with the job being
analyzed; (2) to measure the duration, frequency and magnitude of
employee exposure to these risk factors; and (3) to evaluate the risk
factors identified, individually and in combination. This analysis
allows employers to determine if the job poses an MSD hazard to
employees, i.e., is a ``problem job,'' as that term is used in the
standard. The results of the job analysis, which identify the extent of
the risk factors present in the job, can later be used as the benchmark
against which to measure the effectiveness of controls.
    The NIOSH publication, Elements of Ergonomics Programs (Ex. 26-2),
describes a job hazard analysis as an examination of the workplace
conditions and individual elements or tasks of a job to identify and
assess the risk factors that are reasonably likely to be causing or
contributing to the reported MSDs. OSHA received many comments
supporting its proposed approach to job hazard analysis (see, e.g., Tr.
5342, Tr. 8978, Exs. 37-1, 37-25, 500-218, 500-137-1-1). OSHA thus
believes that the requirements of paragraph (j) are consistent with the
objectives and steps of job hazard analysis as the process is currently
applied by employers with effective ergonomics programs.
    The quality of the job hazard analysis performed is critical to the
success of the entire ergonomics program, as the United Auto Workers
noted:

    The heart of an ergonomics program is the measurement of risk
factors on jobs. The presence of risk factors demonstrates that a
reported MSD is related to a job or workstation, while their absence
suggests the MSD arose from other causes. Risk factors predict MSDs
will arise in the future, even if none are currently reported. And,
reductions in risk factors indicate that a job has been improved
(Ex. 500-220).


[[Page 68333]]


A job hazard analysis can also rule out jobs that do not need to be
controlled, and can provide employers with the information they need to
prioritize their efforts on the most hazardous jobs or tasks that pose
the most severe problems. Similarly, a job hazard analysis is an
efficient way to help employers focus their resources on the most
likely causes of a problem. For example, after analyzing a job, the
employer may find that the amount of repetition is acceptable if the
force and awkward posture in the job can be controlled sufficiently.
    Despite these benefits, several commenters (see, e.g., Exs. 30-
1393, 30-1275, 30-3061, 30-3062) were concerned that the standard's
requirements for job hazard analysis would be too costly. Typical of
these comments was one from the Navy Federal Credit Union:

    The requirement for employers to perform job hazard analyses is
extremely onerous and costly. It requires every employer to perform
hazard analyses on the same or similar jobs within their industry.
OSHA has already amassed a substantial amount of data on the likely
causes and remedies of MSDs that occur in the workplace. The
ergonomics standard should permit employers to rely on OSHA's
identification of hazards and possible remedies for problem
occupations (Ex. 30-1273).

Other employers, such as August Mack Environmental, Inc., disagreed,
however:

    I do agree that conducting a hazard analysis, if done properly
and very objectively, requires significant resources. However, if
the result were to find that MSD risk factors were not prevalent,
and the need for full implementation of a comprehensive ergonomics
program were eliminated, this [expense] could easily be justified.
This is due to the estimated amount of resources required for the
hazard analysis compared to the resources required to implement a
formalized ergonomics program and maintain it over time (Ex. 30-
240).

Other record evidence also makes clear that the cost of MSDs far
exceeds the costs of controlling MSD hazards (Tr. 7122, Tr. 10225, Tr.
4811).
    Similarly, some commenters also expressed concern that performing
job hazard analysis could be too difficult for small companies (see,
e.g., Exs. 601-x-1, 30-3469, 30-2846). However, OSHA's experience is
that small companies can and do conduct these analyses effectively. For
example, Wood Pro Industries in Cabool, Missouri is a VPP employer with
only 100 employees. Its safety director (David Carroll, who also wears
a number of other hats) began a safety and health program that
identified and controlled ergonomic risk factors several years ago. The
program has resulted in a decrease of almost 40% in workers'
compensation costs (mostly due to reductions in MSD hazards), with
premium costs declining from $103,824 to $61,000, which Mr. Carroll
described as ``not chicken feed for a small company'' (Ex. 502-17).
Based on this record, OSHA agrees with those who commented that an
appropriate job hazard analysis actually limits MSD hazard control
costs, either by determining that no MSD hazard is present or by
identifying risk factors that, in turn, allow the company to focus on
the activities that are associated with the MSD incident.
    The UAW also has experience with small companies that have
implemented ergonomics programs:

    Employers in the many small facilities have voluntarily or
through the collective bargaining process, adopted a common approach
to preventing ergonomic injuries and abating ergonomic risk factors
in the workplace. The program includes all components established in
the proposed standard, except appropriate medical management and
that can be established without hindering the established processes
at the facilities (Ex. 500-220).

Other commenters argued that the proposed approach to job hazard
analysis would require the employer to hire a consultant (see, e.g.,
Exs. 30-3783, 30-2810, 30-3336, 30-715, 30-2834). For example, the
Texas Association of Business and Chamber of Commerce stated:

    Because the proposed standard inadequately defines the alleged
``risk factors'' or ``conditions or activities'' or even to provide
a complete list of the ``conditions or activities'' during which the
``MSD hazards'' allegedly occur, small employers will be forced to
seek assistance--at substantial cost--from those with experience and
knowledge in the ergonomics field. In addition, the proposed
standard does not adequately explain which controls will abate
particular hazards and they will again be forced, and as encouraged
by OSHA, to seek expensive outside help (Ex. 30-2810).

But contrary evidence is also in the record:

    I am not an ergonomist and I do not believe you need an
ergonomist to do a general check on the risk factors of most jobs,
that most workers, especially if you give them a framework for
thinking about and analyzing their own job, can tell you where those
risk factors are present, where they're not present, where they're
present in large quantities versus small quantities. You do not need
to be an ergonomist to do that. Many workers are extremely capable,
if you give them a framework for analyzing their own jobs * * * (Tr.
13764).

A recent study in the record (Ex. 500-71-64) reports that trained
workers were able, in 65 to 85% of cases, to identify the same risk
factors as hired ergonomists and to successfully identify solutions.
    The job hazard analysis required by Paragraph (j) of the final rule
serves a very different function from the Basic Screening Tool in Table
W-1 of the standard. The Basic Screening Tool is a simple hazard
identification tool that can be used to identify jobs with the
potential to expose workers in them to ergonomic risk factors at levels
that may pose an MSD hazard. It cannot take the place of a job hazard
analysis. It can only point to possible problems with the job; it takes
a job hazard analysis to determine whether controls are actually
necessary. A job hazard analysis identifies specific risk factors, or
combinations of risk factors, that need to be controlled.
    Paragraph (j)(1) also allows employers to rely on a previously
conducted analysis of a job if it was performed in accord with the
requirements of this paragraph, and the analysis is still relevant.
This provision responds to concerns expressed by some participants that
employers that the standard would require significant action every time
a new MSD occurred, even if a job hazard analysis that complied with
the standard had already shown that no additional controls are
necessary (e.g., Ex. 30-3956). To take advantage of this provision, the
employer must confirm that the job is still being performed in the same
way, and that the same risk factors are still present. Any changes to
the work methods or equipment may have introduced new MSD hazards, and
a new job hazard analysis would then be required. Additionally, if new
employees are present, the employer must make sure that no new employee
is performing the job in a different way or has physical
characteristics that expose that employee to risk factors not present
for others. For example, a particularly tall or short employee might
need to work in a more awkward position, or reach further than others
in order to perform the same tasks. If that is true, the employer must
analyze the job to identify the risk factors affecting that employee.
    The ``new employee'' situation described above is one of the
scenarios addressed by the Note to paragraph (j). That note allows the
employer to limit the job hazard analysis (and response) to the
employee who reported the MSD incident when the MSD hazard is limited
only to that employee. Evidence in the record points to situations in
which the physical work activities or conditions of a job pose a risk
to only a single employee (see, e.g., Exs. 30-

[[Page 68334]]

4709, p. 6, 500-145, 30-2208). For example, a five-foot tall employee
in a commercial bakery may report a back or shoulder MSD related to
extended reaches involved in sorting rolls. However, other, taller,
employees who have performed the job for several years do not have (and
never have had) difficulty performing the physical work activities of
the job. In this case, the employer could conclude, based on the job
hazard analysis, that the problem is limited to the injured employee.
The employer then may limit the further action required by the standard
(e.g., analysis, control, training, recordkeeping, evaluation) to that
employee's workstation.
    A similar situation could occur where one employee is much taller
than others in the same job. The tall employee reports persistent back
pain that rises to the level of an MSD incident, and the employer
observes that having to bend much further than the other employees to
work at the work surface is likely to have caused the back problem.
Allowing employers to limit the analysis and control to a single
employee if the analysis reveals that the problem is unique to that
employee is consistent with the approach taken by several commenters
who have successful ergonomics programs (see, e.g., Exs. 30-1071, 30-
3755, 30-3745). As one of these commenters reported, ``we have often
modified the job to fit that one individual--however, modification was
not needed for co-workers at similar or identical duty stations'' (Ex.
30-1071).

Paragraph (j)(2)

    Paragraph (j)(2) of the final rule describes the steps the employer
must take in performing the job hazard analysis. Paragraph (j)(2)(i)
states that the employer must talk to the employees who perform the
job, and their representatives, about tasks that may relate to the MSD
incident. Paragraph (j)(2)(ii) requires the employer to observe the
employees performing the job to identify the risk factors and assess
the extent of their exposure (its magnitude, frequency, and duration)
to those risk factors. The employer must include all of the employees
performing the job, or a sample of those with the greatest exposure to
risk factors, in this analysis.
    According to the record (see, e.g., Exs. 26-2, 26-5, 26-1370, 37-1,
37-25) effective job hazard analyses have the following steps or
activities in common:
     Obtaining information about the specific tasks or actions
the job involves;
     Obtaining information about the job and problems in it
from employees who perform the job;
     Observing employees performing the job;
     Identifying specific risk factors in the job; and
     Evaluating those factors (i.e., their duration, frequency
and magnitude) to determine whether they are causing or contributing to
the problem.

    The job hazard analysis requirements of the final rule reflect
these steps. Unless the employer qualifies for and chooses the Quick
Fix Option in paragraph (o), the employer must use the job hazard
analysis process in this paragraph to determine whether the physical
work activities and job conditions pose an MSD hazard to workers in
that job. Jobs that pose an MSD hazard to employees are called
``problem jobs,'' and must be controlled in accordance with paragraphs
(k) through (m) of this final rule.
    When employers perform a comprehensive job hazard analysis, their
goal is to identify those ergonomic risk factors that impose
biomechanical stress on the worker and evaluate magnitude, frequency,
and duration as required by paragraphs (j)(2)(ii) and (j)(3). Once the
risk factors and their magnitude, frequency, and duration have been
determined, the employer is required to assess whether the risk factors
identified pose an MSD hazard to employees. The standard defines an MSD
hazard as the ``presence of risk factors in a job at a level of
magnitude, frequency, and/or duration that is reasonably likely to
cause MSDs that result in work restrictions or medical treatment beyond
first aid.'' Ergonomic risk factors are the elements of MSD hazards,
and they often work synergistically. That is, jobs that have multiple
risk factors pose a greater risk, all things equal, than a single risk
factor.

Paragraph (j)(2)(i)

    Paragraph (j)(2)(i) of the final rule requires employers to talk
with employees and their representatives about the tasks the employees
perform that may relate to MSDs. Much has been written about the value
of employee participation in the identification of risk factors and
controls at the hazard analysis stage (see, e.g., Exs. 3-232, 26-4, 26-
11, 26-15, 26-18, 26-19, 26-21, 26-1370, 26-1420, 32-339-1-42, 38-32).
Studies have shown substantial improvements in health and safety after
participatory ergonomics programs are implements (e.g. Ex. 32-38). A
comment from Johnson & Johnson sums up the opinion of many
participants:

    Hazards cannot be addressed efficiently without an accurate
evaluation of the situation. The line employee is one of the best
sources of this information * * * [those employees are] local
process experts (Ex. 3-232).

The record contains considerable evidence that many employers talk to
employees to get insight into the job requirements that only those who
work at the job can provide (see, e.g., Exs. 30-3755, 30-3748, 500-117,
500-137-1-1, 500-137-6-1, 500-218, 500-220, Tr. 3890, 13808). These
commenters stated that talking with employees is often the best way to
identify the causes of the problem and to identify the most cost-
effective solutions to it (see, e.g., Ex. 26-1370). One stated:

    Employee participation is vital to this element. Job Safety
Analysis (JSA) [another name for job hazard analysis] has been part
of the safety vocabulary for many years. Many employers are working
with the workers to determine the safest way to do a job.
Controlling a hazard can be a productive tool in many ways. Minimize
lost time; reduce training and overtime; and a positive outlook from
the workplace. A worker who is set up to succeed is a productive
worker. A worker who has to jury rig or perform a task that leaves
him or her in discomfort at the end of every shift can not be
productive for a prolonged period of time. (Ex. 500-137)

Discussions with employers who have set up ergonomics programs in
response to corporate settlement agreements with OSHA also confirm the
need for employee input into the job hazard analysis process (Ex. 26-
1420). A number of these employers said that employees need to be
involved in the analysis and control process because ``no one knows the
job better than the person who does it'' (Ex. 26-1420, See also Ex. 3-
164). Other evidence echoed this concept, confirming that employees
often have the best understanding of what it takes to perform each task
in a job, and thus, what parts of the job are the hardest to perform or
pose the greatest difficulties: ``The people that are closest to doing
the work seem to come up with the best solutions.'' Tr. 4697.
    In addition to helping to ensure that the job hazard analysis is
accurate, involving employees can make the job hazard analysis and
control process more efficient, because employees can help employers
pinpoint the causes of problems more quickly. Employees often come up
with some of the most practical, no-cost or cost-effective, solutions
(see, e.g., Ex. 26-Tr. 1370, 2136, 2582, 12297).
    Some participants opposed this provision, however (see, e.g., Exs.
30-3344, 30-74, 30-3557). Several expressed concern that asking

[[Page 68335]]

employees about ergonomic problems would influence the employees'
response, with the result that specious problems would be identified:

    This section is a regulatory ``Field of Dreams.'' Ask it and
they will answer. Sooner or later, for reasons good, bad, or
indifferent, somebody will answer ``yes'' [when asked if the job
presents physical difficulties]. (Ex. 30-74)

Another participant was concerned that employee comments would vary
from employee to employee and thus not be useful (Tr. 8861). Finally,
several commenters argued that the employer and employee should not
discuss the risk factors present in ``normal job activities'' because
doing so might cause employees to feel that there should be no stress
on the job (Exs. 30-3354, 30-3848).
    OSHA continues to believe that employees' views add significant
value to the job hazard analysis process and, in fact, that not asking
employees about their perception of the tasks that may cause MSDs would
be akin to performing a quality survey without involving the customer.
Therefore, the final rule requires the employer to talk with the
employees who perform the task when conducting this step of the job
hazard analysis process.
    OSHA is, moreover, providing enough flexibility in this provision
to accommodate employers' concerns. OSHA is not requiring employers to
use any particular method to talk with employees about the tasks they
perform. Employers may do something as simple as talking with employees
informally while observing the job being performed, or they may choose
to talk with employees as part of a regular staff or production
meeting. Alternatively, employers may have affected employees fill out
a survey form or questionnaire. Many employers have developed effective
tools for gathering important job information from employees who do the
job. For example:

    AMP Inc., a manufacturer of electronic components, with 300
employees, uses a one-page ``Ergonomic Evaluation Form'' that asks
employees to answer simple ``yes/no'' questions about the employee's
ease and comfort when performing certain job tasks. After the
company's ergonomic team (comprised of line employees) reviews the
form, a member of the team interviews the employee. (Ex. 26-5).

    In addition, there are ways to ask questions that respond to the
concerns expressed above. The questions may be posed to minimize bias.
For example, questions like ``Are parts of your job more difficult than
others?'', ``Does your injury hurt more when performing certain
tasks?'', or ``Could you recommend improvements to the job?'' tend to
elicit useful information and do not prejudge the answer (Exs. 32-339-
1-82, 500-121-61). In any event, the employee input is only one aspect
of the job hazard analysis. The employer need not place great weight on
the views of a single employee when those views are inconsistent with
the rest of the information obtained during the analysis.
    The final rule adds the language ``and employee representatives''
to this provision consistent with the practice in the rest of the rule
to include the ``employee representative'' language included in each
provision of the standard where OSHA is requiring such participation.
The proposal took a more general approach to this issue, i.e., it would
have required employers to decide when including employee
representatives was important in ``developing, implementing, and
evaluating the employer's program'' (64 FR 66070).
    A few commenters also stated that the appropriate focus for a job
hazard analysis is the task rather than the job and objected to OSHA's
use, in the proposal, of the word ``job'' in connection with the
component to be analyzed in a job hazard analysis (see, e.g., Exs. 32-
300-1, 30-3755). OSHA agrees, and the language of the final rule uses
``tasks'' instead of ``jobs'' when referring to the units of analysis
in this process.
    Paragraph (j)(2)(ii) requires employers to observe the employees
performing the job to identify the risk factors in the job, and to
evaluate the magnitude, frequency, and duration of exposure to these
risk factors. Job observation allows the employer to see how the
employee does the job and provides information about the workstation
layout, tools, methods, equipment and general environmental conditions
in the workplace. A number of commenters recognized the value of this
step (Ex. 30-3755). This paragraph of the final rule combines
paragraphs (c) and (d) of proposed section 1910.918. Observing the
employees at work is important because it allows employers to see
precisely which tasks may be imposing biomechanical stress on the
worker. Observation is a necessary addition to the discussion required
by paragraph (j)(2)(i) because some things may be overlooked in the
discussion, or employees may not remember to mention certain activities
(particularly those that are short term).
    There are several ways employers may comply with the observation
requirement in paragraph (j)(2)(ii) of the standard, and participants
described how they integrate job observations into their job hazard
analysis (see, e.g., Tr. 8171, Tr. 11133). First, employers may simply
observe employees perform the job tasks; this is often all it takes to
identify the problem. For example, watching a data processor reaching
to use the mouse because the keyboard tray is not long enough to
accommodate it may be all it takes to identify the likely cause of the
employee's shoulder pain. Videotaping the job is another common
practice for observing jobs (see, e.g., Ex. 32-198-4). A number of
employers, especially in situations where the work activities are
complex or the causes of the problem not be easily identifiable, report
that they videotape or photograph the job (see, e.g., Ex. 26-1370; Tr.
3059, 4696, 6979, 7075, 5805, 5540, 10183).
    The value of simply looking at people performing a job was
demonstrated graphically at the hearing. A law firm representing a
number of participants showed several ergonomist witnesses pictures of
two workers seated at computer workstations (Ex. DC 42), and asked the
witnesses to identify the risk factors observable in the photo.
Virtually all of the witnesses (Tr. 1754, Tr. 1756, Tr. 2249, Tr. 2325-
2327, Tr. 5397, Tr. 9045, Tr. 13228, Tr. 13235, Tr. 13307, Tr. 13762)
explained that it would normally be necessary to ask the employees in
the jobs reflected in the photos pertinent facts about the job before
being able to determine with any certainty whether the exposure
represented in the snapshot posed an MSD hazard to the worker:

    Well, again, it would go back to what they were doing. If they
were doing this job for a long period of time (Tr. 928).

    Nonetheless, when pressed to give the best answer possible based on
the limited amount of available evidence, the witnesses reviewing the
photos were surprisingly consistent in their identification of
ergonomic risk factors across witnesses. The table below summarizes the
witnesses' responses to the snapshot.

[[Page 68336]]



----------------------------------------------------------------------------------------------------------------
                                                                 Risk factors--taller
   Risk factors--shorter worker            Identified by                worker               Identified by
----------------------------------------------------------------------------------------------------------------
Contact Stress....................  Armstrong (TR. 928),        Awkward neck posture.  Armstrong (TR. 929),
                                     Alexander (TR. 2249),                              Alexander (TR. 2250),
                                     Fernandez (TR. 5384),                              Fernandez (TR. 5380),
                                     LeGrande (TR. 9047),                               Brossard (TR. 13228),
                                     Brossard (TR. 13221),                              Rich (TR. 9590).
                                     Robbins (TR. 1362).
Static Posture....................  Armstrong (TR. 928),        Static posture.......  Fernandez (TR. 5380),
                                     Fernandez (TR. 5384),                              Rich (TR. (9592).
                                     LeGrande (TR. 4096), Rich
                                     (TR. 9592).
Awkward neck posture..............  Alexander (TR. 2250),       Awkward wrist posture  Rich (TR. 9598).
                                     Fernandez (TR. 5385),
                                     Brossard (TR. 13224).
Awkward back posture..............  LeGrande (TR. 4096),        Awkward back posture.  Brossard (TR. 13227).
                                     Brossard (TR. 13225),
                                     Rich (TR. 9601).
                                                                Awkward knee posture.  Fernandez (TR. 5381),
                                                                                        Brossard (TR. 13226),
                                                                                        Rich (TR. 9596).
                                                                Contact Stress.......  Brossard (TR. 13230).
----------------------------------------------------------------------------------------------------------------

    Although the participants who questioned these experts later
claimed that the exchanges demonstrated ``erratic inconsistency'' in
the identification of MSD hazards among OSHA's own experts (Ex. 500-197
at II-23), OSHA believes they show just the opposite: that it is often
possible to identify risk factors easily even with only limited
knowledge of the employee's activities. If the witnesses had had access
to the extra information they all agreed was necessary, OSHA expects
that there answers would have demonstrated much more uniformity.
``Same Jobs''
    Paragraph (j)(2) of the final rule requires that employers include
in the job hazard analysis (and control process) not only the injured
employee's individual job but also all other jobs in the establishment
that are the ``same'' as that job. ``Same jobs'' are jobs that involve
the same physical work activities and tasks as the job that the injured
employee performs, regardless of their job title or classification.
(See the definition of ``job'' in paragraph (z)). All same jobs in the
establishment must be included in the job hazard analysis and control
process, even if they are performed at different locations or on
different shifts. The standard, however, does not require employers to
apply the job hazard analysis and control process to same jobs in other
establishments.
    The proposed rule contained an analogous provision, which a number
of commenters supported (Exs. 30-4200, 500-215, Tr. 12894). For
example, Suzanne Rodgers, a nationally recognized ergonomist who has
been helping companies to develop effective ergonomics programs for
more than 32 years, wrote in Occupational Medicine:

    The questions asked on site will give a good appreciation of the
overall demands of the job * * * It is important, therefore, to look
at more than one person doing the job, so individual methods can be
assessed and the degree of individual control is known (Ex. 500-121-
61).

    Other commenters, however, objected to including all same jobs in
the analysis (Exs. 30-2208, 30-3765, 500-145). For instance, Larry
Feeler, a physical therapist and president of WorkSTEPS, Inc., said
that including all same jobs would be too burdensome and costly for
employers (Ex. 500-145). And P.J. Edington, of the Center for Office
Technology, was concerned that it would be difficult for some employers
to determine whether employees were performing the ``same job'' and
that OSHA compliance officers might mistakenly classify all office work
jobs as the ``same job'' (Ex. 30-2208; see also Ex. 500-197). Some
commenters urged OSHA to limit the job hazard analysis requirement only
to the injured employee's individual job (see, e.g., Exs. 500-145, 30-
2208), or only to other employees on the same shift (see, e.g., 30-
3765).
    For several reasons, OSHA believes the requirement to analyze other
jobs that are the same as that in which an MSD incident occurred is
necessary to the final rule. At the same time, OSHA acknowledges the
commenters' concerns and has included additional explanation and
examples of ``same jobs'' in this preamble section, as well as
providing flexibility for employers who have a large number of
employees in the same job. The requirement is important because it
helps to make the final rule more proactive and preventive. It ensures
that employees performing the same physical work activities or tasks as
someone who already has been injured are provided with protection
before they too are hurt. As one commenter put it, the first injured
employee may well be a ``harbinger'' of other MSDs among employees in
the same job (Ex. 30-3755).
    Second, it is likely that other employees performing the same job
will need protection since the job has already been shown to involve
exposure levels that are associated with increased risks of injury. As
explained in the discussion of paragraph (f), jobs that meet the Basic
Screening Tool generally pose a risk of MSDs that is three times higher
than jobs that do not. Third, the requirement is necessary to ensure
that employers have complete information about the hazards in the job.
If the job hazard analysis is limited to the injured employee's job,
employers may not get the information necessary to identify the causes
of the problem accurately. Without this information, the control
measures employers implement might not be successful in controlling or
reducing the hazards to the required levels.
    In any event, OSHA believes that the ``same job'' requirement will
not impose undue burdens on employers. As the Note to this paragraph
explains, like the proposal, the requirement does not apply where
employers have reason to believe that an MSD hazard only poses a risk
to the employee who experienced the MSD incident. Commenters generally
supported this limitation (Exs. 30-4540, 30-1353, 500-145). Similarly,
where employers have reason to believe that MSD hazards are present in
only a subset of the same jobs, then employers would be permitted to
limit their response to that group. For example, where it is clear that
the size or width of the grip on a knife poses a hazard only for
employees with small hands (i.e., need for high hand force in order to
hold knife), the employer would be free to limit the analysis to
employees with small hands.
    In addition, in most establishments, relatively few employees
perform the same job. This is especially true for small employers.
However, even where many employees at an establishment perform the same
job (e.g., telephone operators, letter sorters, package sorters,
package delivery, beverage delivery, trash collectors, janitors, hotel
maids),

[[Page 68337]]

the final rule gives employers the option of including only a sample of
those employees in the analysis.
    Some commenters asked OSHA to clarify when jobs are the same (see,
e.g., Ex. 30-3784). Jobs are the same when workers perform the same
physical work activities or same job tasks. Employees perform the same
job when the discrete elements or physical actions they perform are the
same, even if not every aspect of their jobs is identical. For example,
     Employees whose jobs involve picking up packages from one
conveyor and putting them onto another are performing the same job,
even if the packages contain different products, or are placed on
different conveyors.
     Orderlies whose job tasks involve lifting and moving
patients have the same job even though some characteristics of the
patients, room layout and the purpose of the lift or move may vary each
time.
     Garbage collectors who pick up trash cans and recycle
bins, and dump their contents into the garbage truck, have the same job
even though their routes are not identical (e.g., variations in
terrain, traffic, distance from residences).
    On the other hand, just because the workstations, tools and
equipment employees use is the same does not mean that these employees
have the same job. For example:
     Employees who use VDTs do not have the same job where one
employee's job involves steady typing for most of the workday while the
other employee uses the VDT to read and send electronic messages for
only a few hours a day.
     Employees in an automotive assembly plant who use glue
guns or staple guns do not necessarily have the same job if they are
assembling different aspects of the product (installing seats versus
windshields), particularly if they use the tools in different ways,
with different force, and in different positions.
    For purposes of this standard, job titles or classifications do not
determine whether employees are in the same job. Where employees are
performing the same physical work activities or tasks, they are in the
same job even if they have different job titles. Often jobs involving
the same physical work activities may have different job titles if
there are working supervisors, some kinds of seniority systems, or
different work shifts. For example, a ``Fabricator II'' on the third
shift may be performing the same physical work activities as a ``Junior
Fabricator II'' or ``Apprentice Fabricator'' on the first shift.
    At the same time, just because employees have the same job title
does not mean that the employer must include them in the job hazard
analysis if the job tasks are not the same. This is especially true
when employers have general job classifications, such as office worker,
assembly line workers, production staff. ``Office workers'' may be
assigned to tasks as varied as answering phones, operating copy
machines, filing, or typing. If the MSD incident affected an office
worker typing documents, the employer would only need to include in the
job hazard analysis other office workers whose work task is to type
documents. Likewise, ``lineworkers'' or ``production workers'' in a
poultry processing plant may perform very different tasks.
Sample of Employees
    Paragraph (j)(2) also gives employers the option to include in the
job hazard analysis only a sample of the employees in the same job.
Where the employer elects to use a sample of employees, the sample must
include those employees with the greatest exposure to the ``relevant
risk factors'' (i.e., those risk factors that exceed the levels on the
Basic Screening Tool). The proposed rule also included a similar option
and many commenters supported it (see e.g., Exs. 30-3344, 30-3745, 30-
3749).
    OSHA believes that this option should help to reduce burdens for
employers while at the same time ensuring that the analysis of risk
factors exposure in the job is accurately characterized and not
underestimated. Some commenters, including Anheuser-Busch and United
Parcel Service reported that they had dozens to hundreds of employees
in their establishments who perform the same job (Exs. 32-241). This
option also should help establishments employing telephone operators,
customer service representatives, catalog sales representatives, data
processors, trash collectors, warehouse selectors, grocery store
cashiers, meatpackers, poultry processors and others. Including every
employee in these ``same jobs'' in the job hazard analysis may be
unnecessarily resource intensive, especially where the workstation
layouts and tools are identical (Ex. 500-145). Employers may be able to
identify the problem and possible controls after analyzing the jobs of
only a handful of employees.
    This option will also help in situations where jobs are of short
duration or do not have fixed workstations (e.g., visiting nurses, home
health aides, home repairmen, furniture movers, beverage delivery,
package delivery, utility line workers, trash collectors) (Exs. 30-339-
22, 30-3714, 32-234-2-1, 500-73, 500-147-33, Tr. 14300). Changes in job
locations and job conditions may make it very difficult to analyze the
job of each employee. However, analyzing the job for a sample of
employees allows employers to identify the MSD hazards facing all of
the employees.
    OSHA is requiring employers to sample those employees with the
greatest exposure to the relevant risk factors to ensure that exposure
levels in the job are characterized accurately. OSHA has used the
concept of ``representative sampling'' for hazard identification
purposes in several of its standards, such as the asbestos standard (29
CFR 1910.1001), the formaldehyde standard (29 CFR 1910.1048), and the
lockout/tagout standard (29 CFR 1910.147). The principle behind this
concept is that, if the job hazard analysis (or the exposure
monitoring, in the case of chemical exposures) reveals that the
exposures to this group of most highly exposed workers are not at
levels of concern, it is likely that those of other lesser exposed
workers will also not be of concern.
    A few participants disagreed that the representative sampling
option would be useful to reduce burdens for employers:

    OSHA concedes that ``conducting a job hazard analysis that
covers all employees in a problem job may be burdensome'' * * * It
is not possible for an employer to know of and account for the
multitude of physical factors that affect the way its employees
work. A sample selected, for instance, could inadvertently ignore
the employee with the widest fingers, the smallest feet or the most
sensitive hearing, in violation of the proposed rule. OSHA's
``shortcut'' for performing a job analysis is to us insignificant
and illusory--employers will, in practice, have to observe virtually
every employee in the problem job--a task that even OSHA admits can
be burdensome (Ex. 500-197).

    OSHA does not believe that employers will have difficulty
identifying the employees in a job who are most likely to have the
greatest exposure to the risk factors. The specific criteria in the
Basic Screening Tool will be particularly useful in helping employers
identify, for example, those employees who:
     Repeat the same motion for the longest continuous period
during the workshift;
     Lift the heaviest objects or packages or the most objects
per workshift;
     Have the greatest degree of flexion or extension of their
wrists;
     Use vibrating hand tools for the most time during the
workshift; and

[[Page 68338]]

     Make the longest reaches during the workshift.
    In addition, the body location component in the Basic Screening
Tool will help employers identify whether particular physical
capabilities, limitations and characteristics may be relevant in
selecting the sample of employees for the analysis. For example,
employers do not need to consider the width of employees' fingers when
it is kneeling or squatting for more than 2 hours that has triggered
the need for job hazard analysis. And foot size is not relevant when
the risk factors being addressed are vibration, intensive keyboarding,
or high hand force.
    Moreover, once the people responsible for conducting job hazard
analyses have been trained in the hazard identification and job hazard
analysis process, their knowledge of ergonomic risk factors and the
causes of MSDs will help them determine which employee physical
capabilities and limitations may be relevant. They will understand
that, if the relevant risk factor is awkward posture associated with
bending down to monitor a gauge positioned close to the floor, the
employees with the greatest exposure would be those who are taller. And
if the risk factor is awkward posture caused by reaching above the
head, then shorter employees and those with short reaches would be the
most exposed.
Risk Factors
    Paragraph (j)(2)(ii) requires employers to identify the risk
factors present in the job and to evaluate their magnitude, frequency,
and duration. These risk factors include force, repetition, awkward
postures, vibration, and contact stress. Unlike the proposal, the final
rule does not include cold temperature and static postures as
independent risk factors. In addition, contact stress and vibration are
defined somewhat more narrowly than they were in the proposal. 64 FR
65808.
    Force. Force refers to the amount of physical effort that is
required to accomplish a task or motion. Force also refers to the
degree of loading to muscles and other issues as result of applying
force to perform work. Tasks or motions that require the application of
higher force place higher mechanical loads on muscles, tendons,
ligaments, and joints (Ex. 26-2). Tasks involving high forces may cause
muscles to fatigue more quickly. Some commenters were unclear about the
meaning of fatigue in the context of MSDs (see, e.g., Ex. 30-3866). The
common use of fatigue, of course, is as a synonym for ``tired.''
However, ergonomics has its roots in engineering, where fatigue has a
meaning closer to ``breaking point,'' as in metal fatigue. In other
words, fatigue, when used in the context of ergonomics, generally means
that the muscle is no longer able to work and must be allowed to
recover, or that the point of damage or deformation of a tissue has
been reached. Thus, in ergonomics, the term implies more than simply
being tired or uncomfortable. The force required to complete a movement
increases when other risk factors are also involved. For example, more
physical effort may be needed to perform tasks when the speed or
acceleration of motions increases, when vibration is present, or when
the task also requires awkward postures. Hand tools that require use of
pinch grips require more forceful exertions to manipulate the tool than
do those that permit use of power grips.
    Force can be assessed qualitatively or quantitatively. Quantitative
measures include strain gauges, spring scales, and electromyography to
measure muscle activity. A qualitative assessment of force is based on
direct observation of the amount of physical exertion required to
complete a task, and is usually graded on an ordinal scale (i.e., low,
medium, high).
    Repetition. Repetition refers to the frequency with which a task or
series of motions is repeated over and over again with little variation
in movement. When motions are repeated frequently (e.g., every few
seconds) for prolonged periods such as several hours or an entire work
shift, fatigue and strain of the muscle and tendons can occur because
there may be inadequate time for recovery. Repetition often involves
the use of only a few muscles and body parts, which can become
extremely fatigued even though the rest of the body is unaffected.
    Repetitive motions occur frequently in manufacturing operations
where production and assembly processes have been broken down into
small sequential steps, each performed by different workers. Repetition
is also present in many manual handling operations, such as warehouse
operation and baggage handling. Repetition is typically assessed by
direct observation or videotaping or as a percent of task cycle time,
where a cycle is a pattern of motions.
    Awkward postures. Awkward postures are positions of the body (e.g.,
limbs, joints, back) that deviate significantly from the neutral
position \9\ while job tasks are being performed. For example, when a
person's arm is hanging straight down (i.e., perpendicular to the
ground) with the elbow close to the body, the shoulder is in a neutral
position. However, when employees are performing overhead work (e.g.,
installing or repairing equipment, grasping objects from a high shelf)
their shoulders are far from the neutral position. Other examples
include wrists bent while typing, bending over to grasp or lift an
object, twisting the back and torso while moving heavy objects, and
squatting. Awkward postures often are significant contributors to MSDs
because they increase the exertion and the muscle force that is
required to accomplish the task, and compress soft tissues like nerves,
tendons, and blood vessels. As used in the final rule's basic screening
tool, awkward postures may be either static postures held for prolonged
periods of time, or they may occur repetitively.
---------------------------------------------------------------------------

    \9\ Neutral posture is the position of a body joint that
requires the least amount of muscle activity to maintain. For
example, the wrist is neutral in a handshake position, the shoulder
is neutral when the elbow is near the waist, and the back is neutral
when standing up straight.
---------------------------------------------------------------------------

    Awkward posture is the primary ergonomic risk factor to which
employees are exposed when the height of the working surfaces is not
correct. Working in awkward postures increases the amount of force
needed to accomplish an exertion. Awkward postures create conditions
where the transfer of power from the muscles to the skeletal system in
inefficient. To overcome muscle inefficiency, employees must apply more
force both to initiate and complete the motion or exertion. In general,
the more extreme the postures (i.e., the greater the postures deviate
from neutral positions), the more inefficiently the muscles operate
and, in turn, the more force is needed to complete the task. Thus,
awkward postures make forceful exertions even more forceful, from the
standpoint of the muscle, and increase the amount of recovery time that
is needed.
    Awkward postures are assessed in the workplace by observing joint
angles during the performance of jobs tasks. Observed postures can be
compared qualitatively to diagrams of awkward postures, such as is done
in many job analysis tools, or angles can be measured quantitatively
from videotape recordings.
    Contact stress. Contact stress results from activities involving
either repeated or continuous contact between sensitive body tissue and
a hard or sharp object. The basic screening tool in the final rule
includes a particular type of contact stress, which is using the hand
or knee as a hammer (e.g., operating a punch press or using the knee to
stretch carpet during installation). Thus, although

[[Page 68339]]

contact stress is covered in the final rule as a single risk factor, it
is really a combination of force and repetition. Mechanical friction
(i.e., pressure of a hard object on soft tissues and tendons) causes
contact stress, which is increased when tasks require forceful
exertion. The addition of force adds to the friction created by the
repeated or continuous contact between the soft tissues and a hard
object. It also adds to the irritation of tissues and/or to the
pressures on parts of the body, which can further inhibit blood flow
and never conduction.
    Contact stress commonly affects the soft tissue on the fingers,
palms, forearms, thighs, shins and feet. This contact may create
pressure over a small area of the body (e.g., wrist, forearm) that can
inhibit blood flow, tendon and muscle movement and nerve function. The
intensity of exposure to contact stress is usually determined
qualitatively through discussion with the employee and observation of
the job.
    Segmental vibration. Vibration refers to the oscillatory motion of
a physical body. Segmental, or localized vibration, such as vibration
of the hand and arm, occurs when a specific part of the body comes into
contact with vibrating objects such as powered hand tools (e.g., chain
saw, electric drill, chipping hammer) or equipment (e.g., wood planer,
punch press, packaging machine). Although using powered hand tools
(e.g., electric, hydraulic, pneumatic) may help to reduce MSD risk
factors such as force and repetition, the tools can expose employees to
vibration. Vibrating hand tools transmit vibrations to the operator
and, depending on the level of the vibration and duration of exposure,
may contribute to the occurrence of hand-arm vibration syndrome or
Raynaud's phenomenon (i.e., vibration-induced white-finger MSDs) (Ex.
26-2).
    The level of vibration can be the result of bad design, poor
maintenance, or the age of the powered hand tool. For example, even new
powered hand tools can expose employees to excessive vibration if it
they do not include any devices to dampen the vibration or in other
ways shield the operator from it. Using vibrating hand tools can also
contribute to muscle-tendon contractile forces owing to operators
having to use increased grip force to steady tools having high
vibration.
    Vibration from power tools is not easy to measure directly without
the use of sophisticated measuring equipment. However, vibration
frequency rating are available for many recently designed hand tools.
    Exposure to a single ergonomic risk factor may be enough to cause
an MSD incident. For example, a task may require the exertion of so
much physical force that, even though the task does not involve
additional risk factors such as awkward postures or repetition, an MSD
is likely to occur. For example, using the hand or knee as a hammer
(e.g., operating a punch press or using the knee to stretch carpet
during installation) alone may expose the employee to such a degree of
physical stress that the employee has a significant risk of a serious
injury.
    Gea serious
injury.
    Generally, however, ergonomic risk factors act in combination to
create an MSD hazard. Evidence in the Health Effects section (Section
V) shows that jobs that involve exposure to multiple risk factors are
likely to cause MSDs, depending on the duration, frequency and/or
magnitude of exposure. Thus it is important that ergonomic risk factors
be considered in light of their combined effect in causing or
contributing to an MSD. This can only be achieved if the job hazard
analysis and control process includes identification of all the
ergonomic risk factors that may be present in a job. If all of the risk
factors are not identified, employers will not have the information
that is needed to determine the cause of the MSD incident or understand
what risk factors need to be controlled to eliminate or reduce the MSD
hazard in the job.
    Based on its review of the scientific literature available at the
time of the proposal, OSHA also identified prolonged sitting and
standing (a form of static posture) and whole-body vibration as risk
factors for MSDs; in addition, OSHA identified cold temperatures as a
risk factor because it could require workers to increase the force
necessary to perform their jobs (such as having to grip a tool more
tightly) (64 FR 65808). The final rule does not explicitly include
these risk factors. For prolonged standing and sitting, and for cold
temperatures, although there is evidence of an increased risk of MSDs
with exposure, the available evidence did not permit the Agency to
provide sufficient guidance to employers and employees on the levels of
exposures that warrant attention. For whole-body vibration, there was
substantial evidence of a causal association with low back disorders
(e.g., see NIOSH 1997); however, heavy equipment and trucks, the most
common sources of whole-body vibration, are seldom rated for vibration
frequencies and intensities. In addition, measurement of whole-body
vibration levels requires special equipment and training that would be
difficult for most employers to obtain. Therefore, OSHA determined that
it was appropriate not to include whole-body vibration in the final
rule at this time.
    Cold temperatures can, however, increase the effect of other risk
factors. By reducing the dexterity and sensitivity of the hand, cold
temperatures may cause a worker to apply more grip force to hold hand
tools and objects. Also, prolonged contact with cold surfaces (e.g.,
handling cold meat) can impair dexterity and induce numbness. Cold air
blowing from a pneumatic tool, or a draft from the HVAC system, also
can result in localized cold stress on the hands, arms, neck, or
shoulder. Cold also increases the effects of vibration, such as in tree
felling and cutting to length with a chainsaw on a cold day.
    Performing a job hazard analysis includes determining the
magnitude, frequency, and duration of employee exposure to the risk
factors described above. These terms are discussed below.
    Duration. Duration refers to the cumulative time an employee is
exposed to one or more risk factor(s). The duration of exposure has a
substantial effect on the likelihood of both localized tissue fatigue
and general cardiovascular fatigue. (Again, the word ``fatigue'' is
used in the ergonomics sense.) In general, the longer the period of
continuous work (i.e., the longer the task requires sustained muscle
contraction), the longer the recovery or rest time required (Ex. 26-2).
Changing the sequence of activities or the recovery time and pattern of
exposure may mitigate the effects of long duration. Breaks or short
pauses in the work routine help to reduce the effects of prolonged
exposure.
    Frequency. Frequency refers to the number of times the exposure is
repeated within some unit of time, in contrast to duration, which
relates to the cumulative length of exposure. This factor also can be
obtained by observing and counting (either by video tape, in person, or
mechanically) the number of repetitions or the cycle time associated
with each task. The response of muscles and tendons to work is
dependent on the number of times the tissue is required to respond and
the recovery time between these responses. The frequency of an activity
can be measured at the micro level, such as grasps per minute or lifts
per hour. However, there are some tasks, such as lifting a 150-pound
package or pushing a 400-pound beer barrel, where simply knowing that
the activity occurs, say, on one day every week, is sufficient to
establish that an MSD hazard is present.

[[Page 68340]]

    Magnitude is a measure of the strength of the risk factor; for
example: how much force, how deviated the posture, how great the
velocity or acceleration of motion, how much pressure due to
compression. Magnitude can be measured either in absolute terms or
relative to an individual's capabilities. There are many qualitative
and quantitative ways to determine the magnitude of exposure to
ergonomic risk factor(s) (some of these measurement tools are provided
in Appendix D-1). In relatively simple cases, one approach is to ask
employees to classify the force requirements or physical difficulties
posed by the job on a scale of 1 to 5, or on a scale as simple as
``low,'' ``medium,'' and ``high.'' When magnitude is assessed
qualitatively, the employee is making a relative rating, i.e., is
rating the perceived magnitude of the risk factor relative to his or
her own capabilities. Relative ratings can be very useful in
understanding whether the job fits the employees currently doing the
job.
    There are a number of ways to measure the magnitude of exposure
quantitatively (see, e.g., Exs. 500-218, 500-220). For example, the
NIOSH Lifting Equation is widely used to determine recommended weight
limits for safe lifting and carrying (see, e.g., Exs. 26-521). The
Snook Push-Pull Tables are also used by many employers to evaluate and
design pushing, pulling and carrying tasks (see, e.g., Ex. 26-1008).
For work-related upper extremity MSDs the Rapid Upper Limb Assessment
(RULA) evaluation tool is often used to investigate and evaluate jobs
(see, e.g., Ex. 26-1421). These three tools are included in Appendix D-
1, and are discussed at greater length in connection with that
Appendix.

Paragraph (j)(3)

    Paragraph (j)(3) of the final rule requires the employer to use one
of the following methods or tools to conduct the job hazard analysis:
    a. One or more of the hazard identification tools listed in
Appendix D-1 of this section, if the tools are relevant to the risk
factors being addressed; or
    (ii) The occupation-specific hazard identification tool in Appendix
D-2 of this section; or
    III. A job hazard analysis conducted by a professional trained in
ergonomics; or
    (iv) Any other reasonable method that is appropriate to the job and
relevant to the risk factors being addressed.
    The final rule, like the proposal, requires employers to evaluate
the ergonomic risk factors they have identified to determine whether
the employee's exposure to them is the result of an MSD hazard or
hazards in the job. To make this determination, employers must look at
the duration, frequency and magnitude of the ergonomic risk factors in
the job, as required by paragraph (j)(3). This evaluation may allow the
employer to rule out some risk factors that do not pose a significant
risk of injury, as well as to identify risk factors that do rise to the
level of an MSD hazard. Risk factors are sometimes ruled out because
the exposure does not last long enough, is not repeated frequently
enough, or is not intensive enough to pose a risk. On the other hand, a
job that requires significant bending from a neutral posture for most
of the day would be identified as an MSD hazard by the appropriate
hazard identification tool in Appendix D-1, and the job would therefore
be labeled a ``problem job,'' as noted in paragraph (j)(4) of the
standard.
    The approach to hazard identification reflected in paragraph (j)(3)
of the final rule differs from the proposed approach and responds to
comments that objected to the proposed approach (see, e.g., Exs. 32-
300-1, 30-3032). The proposal included a table that listed 20 physical
work activities and job conditions such as ``exerting considerable
physical effort to complete a motion'' and ``using hand and power
tools,'' linked each of these activities to a number of risk factors
likely to be associated with the performance of such activities, and
directed employers to evaluate these risk factors to determine whether
an MSD hazard was present.
    The National Telecommunications Safety Panel was one of many
participants who found the proposed hazard identification approach
unhelpful:

    The members of the Panel strongly believe that the matrix of
``physical work activities and conditions'' and ergonomic risk
factors that may be present * * * provides insufficient guidance to
be included as a mandatory item in a federal rule. (Ex. 30-3745).

A similar comment was that the proposed job analysis approach shifted
the burden of hazard identification from OSHA to the employer (Ex. 30-
4334). Commenting on this point, however, the AFL-CIO stated:

* * * the obligation placed upon employers in the proposed
ergonomics standard, as with other standards, is to eliminate or
reduce an occupational hazard. In the proposed ergonomics standard,
OSHA has defined ``hazard'' not in numerical terms but in
descriptive terms: ``MSD hazards are physical work activities and/or
physical work conditions,'' in which ergonomic risk factors are
present, that are reasonably likely to cause or contribute to a
covered MSD (Ex. 500-218).

    Other commenters argued that the proposed approach to the
identification of risk factors and MSD hazards was vague and that OSHA
should instead provide a permissible exposure limit (PEL) for each risk
factor and each possible combination of risk factors (see, e.g., Exs.
500-197, 30-2435, 30-973, 30-1274, 30-2426, 30-1350, 30-2428, 30-3986,
30-3993, 30-3000, 30-3086). Since some employers have been very
successful in using simple approaches, such as the one proposed, to
identify and control MSD hazards, however, OSHA finds this argument
unpersuasive. Risk factors and MSD hazards are being identified and
addressed in thousands of workplaces every day, and employers and
employees are using a wide variety of approaches to do so.
    OSHA recognizes, however, that although certain of the risk factors
described above are easy to identify and understand, others are not as
apparent or observable. Employers who already have ergonomics programs
and persons who manage ergonomics programs generally have no difficulty
identifying risk factors in the workplace, because they have learned to
look for them (see, e.g., Exs. 30-3755, 500-220, 32-359-1, 32-210-2,
32-198-4, 30-3805, Tr. 11427). Because these individuals have training
and experience, ergonomic risk factors are familiar concepts for them.
Through the process of developing and implementing their ergonomics
programs, these individuals have gained a good working knowledge of the
ergonomic risk factors that are most likely to be present in their
workplaces. For those employers who are just beginning their programs
and have little or no training and experience dealing with ergonomic
risk factors, OSHA has tried in the standard to make the process of
identifying them as straightforward and easy as possible. For this
reason, OSHA has provided employers with many different hazard
identification tools in mandatory Appendix D-1 and mandatory D-2.
    The large number of risk evaluation tools in the record and the
many comments OSHA received on the proposed list of physical activities
and conditions have led the Agency to include in the final rule several
options for hazard identification that employers may choose from. Many
commenters discussed hazard identification tools that are currently
used by employers (see, e.g., Exs. 500-200, 500-218, 30-3813, 30-276).
Thus, the final rule allows a choice of hazard identification

[[Page 68341]]

approaches, including simple checklists, more structured assessment
tools, and reliance on expert consultants.
    The United Automobile Workers (UAW) submitted a number of
checklists that its members use (Exs. 32-185-3-26, 32-185-3-33), and
described several approaches to hazard identification that employers
have used to identify ergonomic risk factors effectively (Ex. 500-220).
These approaches include:
     Development of consistent methods to measure the physical
stresses on the body. Stress is determined by the force exerted on a
body part, the frequency of the motion and the posture of the joint.
The Force-Frequency-Posture paradigm is common to both expert and
checklist approach to ergonomics analysis.
     Development of simplified non-expert approaches to
measurement of risk factors (checklists)
     Formulation of the NIOSH lifting guide and related
biochemical models which take into account the weight of an object,
distance from the body and motion of the body in lifting.
     Validation of symptom surveys and discomfort surveys
(psychophysical measures) as risk factor identification tools
     Validation of the use of risk factor checklists and
symptom surveys by workforce personnel to identify high risk jobs and
propose abatement methods.
    Dr. Don Chaffin, founder of the Center for Ergonomics at the
University of Michigan, testified that the precision of many tools used
to evaluate risk factors is very high (Tr. 8255-8286). Ms. Lisa Brooks,
corporate ergonomist for International Paper, commented that there were
many different analysis tools used throughout the company (Tr. 11427).
    The AFL-CIO also commented on the widespread availability of risk
factor evaluation tools (Ex. 500-218):

    Testimony and evidence in the record demonstrate the job
analysis tools such as the NIOSH Lifting Equation and Snook--
Ciriello Push-Pull Tables are widely utilized by employers, unions,
consultants and others to evaluate exposure to ergonomic risk
factors throughout a wide range of industries and businesses.
Representatives of International Paper (Tr. 11425-26), Owens-Corning
(Tr. 10856), Conti Group Corp. (Tr. 10788), Coca Cola (Tr. 14356)
and Levi Strauss (Tr. 14710) testified that they routinely used
these tools in their ergonomic programs to analyze jobs for
ergonomic risk factors. Representatives from the UAW and UNITE!
testified how these and other tools such as UAW-GM Check Lists were
used by employers and union representatives to evaluate ergonomic
hazards at Ford (Ex. 32-185-3-42; 46, Tr. 5827, 5828), GM (Tr.
5831), Maytag (Tr. 8062), VF Corp. (Tr. 7074), Owens-Corning (Tr.
10858), Levi Strauss (Tr. 14710), Coca Cola (Tr. 14356), PPG
Industries (Tr. 3131).

OSHA has included several of these tools in Appendix D-1.

Paragraph (j)(3)(i)

    Paragraph (j)(3)(i) of the final rule allows the employer to
evaluate ergonomic risk factors using one or more of the hazard
identification tools listed in Appendix D-1 of this section. Appendix
D-1 list eight hazard identification tools: (1) The Job Strain Index
(Ex. 26-883), (2) the NIOSH lifting equation (Ex. 26-572), (3) the UAW-
GM checklist (Ex. 32-185-3-26), (4) the applicable ACGIH threshold
limit values for physical agents (Exs. DC 389, 500-166-1, 502-273), (5)
the Rapid Entire Body Assessment (REBA) (Ex. 500-121-26), (6) the Rapid
Upper Limb Assessment (RULA) (Ex. 26-1421), (7) Appendix B to the final
Washington State ergonomics standard (WAC 296-05174) (Ex. 32-210-2-99),
(8) the Snook Push/Pull Hazard Table (Ex. 26-1008). Tools selected must
be relevant to the risk factors being addressed. This means, for
example, that an employer could not use the NIOSH Lifting Equation,
which is appropriate for employees exposed to certain types of force,
to analyze a job involving repetition and awkward posture.
    A number of participants submitted evaluation tools to the record
(see, e.g., Exs. 26-2, 26-5, 32-77-2-1, 502-67, 26-883, IL-162-Q, 32-
185-3-31, 500-142-12, OR-348-1, 32-185-3-26, 500-121-61, 38-260, IL-
218, IL-228, 32-339-1-82, DC 417-6, 500-121-21, 38-93, 500-121-28, 32-
111-1, 32-198-4-27-1), while others (see, e.g., Exs. 500-220, 500-218,
Tr. 5567) suggested that the final rule include tools, such as the
Snook tables and the OSHA Meatpacking Guidelines (Ex. 30-2387). Still
other participants merely asked the Agency to provide more guidance in
the final rule for companies to identify ergonomics risk factors (see,
e.g., Exs. 30-276, 30-3818, 30-4290, 500-197, 500-218, 30-3864, Tr.
11601, Tr. 9070, Tr. 17419), and many commenters suggested that OSHA
provide non-mandatory checklists (see, e.g., Exs. 30-3765, 30-1671, 30-
3284, 30-2387, 32-300-1, 30-519, 30-4844, 30-3032, 30-3748, 30-3813).
    Based on this evidence, OSHA has decided to allow employers to
demonstrate compliance with paragraph (j)(3) by using one or more of
the tools in Appendix D-1, assuming it is appropriate to the risk
factors being addressed for job hazard analysis purposes. These hazard
identification tools were suggested by several commenters (see, e.g.,
Exs. 30-276, 32-339-1, 500-218, 30-3813, 500-220, 30-3361, 30-2134, 32-
210-2, 32-210-2, Tr. 5567, Tr. 8706, Tr. 10629, Tr. 16487). For
example, Marathon Oil stated:

    Since the proposed rule is job-based (particularly targeted to
problem jobs), OSHA should have reviewed the scientific literature
to identify and publish exposure assessment methods capable of
distinguishing problem jobs from non-problem jobs. In its proposed
rule, OSHA fails to mention existing methods capable of such
prediction (e.g. the Strain Index) or methods that have the
potential for such predictions (e.g. the Revised NIOSH lifting
equation) (Ex. 30-3361).

    OSHA selected the tools in Appendix D-1 for several reasons. They
were developed by professionals who have extensive training and
experience in the identification, analysis and control of MSD hazards.
For instance, the Snook Push/Pull Hazard Table was developed by Dr.
Stover Snook , a certified professional ergonomist with a PhD. in
experimental psychology, who has spent 38 years researching MSDs and 25
years teaching ergonomics at the Harvard University School of Public
Health (Ex. 37-6).
    The eight tools in Appendix D-1 are also well-documented. They are
based on scientific evidence on the relevant risk factors, and most
been published in peer-reviewed scientific journals (e.g., Job Strain
Index, NIOSH Lifting Equation, RULA, REBA, Snook Push/Pull Hazard
Table). To illustrate, the steps in the Job Strain Index by Moore and
Garg were based on the findings and data of a number of peer-reviewed
studies, including the Borg CR-10 scale (Ex. 26-883). The summary and
explanation of Appendix B to the Washington State Ergonomics Standard
includes extensive discussion and tables documenting the scientific
support for each element in that tool (Ex. 32-210-2-99).
    The tools have also been tested, most of them extensively. For
instance, to develop the Rapid Entire Body Assessment (REBA) tool,
three ergonomists/physiotherapists independently coded 144 posture
combinations and then incorporated the sensitizing concepts of load,
coupling and activity scores to produce the final REBA score, with
accompanying action levels (Ex. 500-121-26). Thereafter, two workshops
were held involving 14 occupational safety and health processionals
(including ergonomists, occupational therapists, physiotherapists and
nurses) to code more than 600 additional samples of postures from
several industries (i.e., health care, manufacturing and

[[Page 68342]]

electrical) in order to further refine the REBA scores. There was
between 62 to 85% agreement among the 14 professionals (Ex. 500-121-
26).
    Dr. Snook testified at the hearing about the years of extensive
testing he did to develop the Push/Pull Hazard Table:

    Most of my experiments were psychophysical investigations of
manual handling tasks, viz., lifting, lowering, pushing, pulling,
and carrying. The purpose of these experiments was to collect hard
data for use in evaluating the risk of manual handling tasks, and to
aid in the redesign of these tasks. At the time, psychophysics was
the only method that could yield usable data for task evaluation.
Psychophysics is a very old method that is concerned with the
mathematical relationship between sensation and their physical
stimuli. Psychophysics has been applied to practical problems in
many areas, including the decibel scale of loudness, and ratings of
perceived exertion (RPEs) * * *
    My colleagues and I conducted eleven major manual handling
experiments over a period of 25 years [citations omitted]. Each
experiment lasted two to three years. These experiments were unique
in hat they used realistic manual handling tasks performed by
industrial workers (68 males and 51 females) over long periods of
time (at least 80 hours of testing each subject). Physiological
measurements of oxygen consumption and heart rate were recorded for
comparison with psychophysical measurements. The experimental design
also included 16 to 20 hours of physical conditioning and
psychophysical training. A battery of 41 anthropometric measurements
were recorded for each subject to insure that the sample was
representative of the industrial population. The results of these
experiments were combined and integrated into tables of maximum
acceptable weights and forces for various percentages of the working
population (Ex. 37-6).

    These tools were also designed for use by persons with only minimal
training in hazard identification. For example, Washington State said
that it designed Appendix B particularly for small employers with
limited resources who wanted ``maximum clarity and certainty.''
Washington State Appendix B includes illustrations of the relevant risk
factors and a simple 5-step process for determining whether particular
lifting tasks pose a hazard. The other tools in Appendix D-1 use
similar approaches. For instance, the GM-UAW checklist uses a simple
stars and checks approach to those tasks and activities that may
warrant further investigation or controls.
    Finally, OSHA has selected these eight tools because they all
include specific and well-defined recommended criteria for when
employers need to take action and when no further action would be
necessary. As such, these tools address commenters' arguments that the
standard must provide clear guidance to employers in identifying risk
factors and knowing when they have done enough to control them (see,
e.g., Exs. 30-276, 30-3818, 30-4290, 500-197, 500-218, 30-3864, Tr.
11601, Tr. 9070, Tr. 17419). These tools specifically and clearly
operationalize the table of physical work activities and conditions in
the proposed rule so they answer commenters' repeated questions about
what proposed terms such as ``over and over,'' ``considerable physical
effort,'' ``long reaches'' and ``heavy'' objects mean. For example, the
Job Strain Index (Ex. 26-883) defines ``over and over'' in terms of
efforts per minute (number of exertions/total observation time). The
NIOSH Lifting Equation defines a ``heavy'' object as weighing 51 pounds
or more, and then shows users how to reduce the amount of weight that
can be lifted within the equation's limits on the basis of particular
conditions in the workplace.
    There are tasks for which each of the evaluation techniques in
Appendix D-1 are well suited and tasks where the tool is not
appropriate. The following information explains the limits and
appropriate uses for each tool in Appendix D-1.

Job Strain Index

    The Job Strain Index is designed to identify jobs associated with
MSDs of the hand. It does this by measuring or estimating six task
variables: intensity or exertion, duration of exertion per cycle,
efforts per minute, wrist posture, speed of exertion and duration of
task per day (Ex. 26-883). The Job Strain Index and documentation
supporting it was published in a peer-reviewed scientific journal.
    Area of the body covered by the Job Strain Index: Hand/wrist.
    Risk factors evaluated: Force, awkward postures, repetition (speed
of work).
    Examples of jobs that Job Strain Index is applicable to or well-
designed for: Jobs involving high hand repetition, small parts
assembly, keyboarding, inspecting (assembly line), sorting,
meatpacking, sewing, packaging.

NIOSH Lifting Equation

    The NIOSH Lifting Equation, which is already widely used, was
developed to evaluate manual lifting demands. It provides an empirical
method for computing a weight limit for manual lifting tasks to prevent
or reduce the occurrence of lifting-related low back pain among
workers. Six factors are used to determine the recommended weight for
the specific working conditions: horizontal distance, vertical
distance, travel distance, frequency, twist, coupling. Then the actual
weight is compared with the recommended weight to determine the
``allowable'' lift index. The NIOSH Lifting Equation and documentation
supporting it has been published in a peer-reviewed scientific journal.
    Area of the body addressed by NIOSH Lifting Equation: Lower back.
    Risk factors evaluated: Force (distance, coupling), repetition
(frequency), awkward postures (location of the object, travel distance,
twist).
    Examples of jobs that NIOSH Lifting equation is applicable to or
well-designed for: manual handling tasks involving objects weighing
more than 10 pounds; forceful lifting tasks in production and assembly
work; package sorting, handling, delivery and pickup.

ACGIH TLV Hand/Arm (Segmental) Vibration TLV

    The ACGIH Hand/Arm (Segmental) Vibration TLV describes how to
measure hand tool vibration and provides threshold limit values for
exposure.
    Areas of the body addressed: Hands, Arms/Shoulders.
    Risk factors evaluated: Vibration.
    Examples of jobs that the Hand/Arm (Segmental) Vibration TLV is
applicable to or well-designed for: Jobs involving use of powered and
vibrating hand tools (e.g., grinding, sanding furniture, sawing,
jigsawing, chain saws).

GM-UAW Checklist

    The UAW-GM checklist was developed to evaluate a range of risk
factors in production jobs. The checklist uses checks () and
stars (*) to indicate whether the certain activities and conditions are
present for less than or more than one-third of the production cycle or
workday. The number of checks and stars, in conjunction with the report
of an MSD, is used to determine if the job requires further
investigation or control action.
    Areas of the body addressed: Hand/wrists, Forearms/elbows,
Shoulders, Neck, Back/Trunk, Legs/knees.
    Risk factors evaluated: Force (including manual handling),
Repetition, Awkward Postures (including Static Postures), Vibration,
Contact stress
    Examples of jobs that the GM-UAW checklist is applicable to or
well-designed for: cyclical production and assembly work jobs.

RULA

    The Rapid Upper Limb Assessment (RULA) was developed to evaluate

[[Page 68343]]

ergonomic exposures of the upper body. The range of motion for each
body part (upper arms, lower arms, wrists, neck) is rated based on the
amount of posture deviation. Posture combinations are ranked to reflect
musculoskeletal loading with force, static work and repetition factors.
RULA and documentation supporting it has been published in a peer-
reviewed scientific journal.
    Areas of the body addressed: Wrists, Forearms/elbows, Shoulders,
Neck, Trunk.
    Risk factors evaluated: Awkward posture, force, repetition.
    Examples of jobs that RULA is applicable to or well-designed for:
assembly and production work, janitorial and maintenance, meatpacking,
restaurant, grocery cashier, telephone operator.

REBA

    The Rapid Entire Body Assessment (REBA) is similar to RULA, but it
has been modified to be more useful for the working postures found in
the health care and other service industries. REBA and documentation
supporting it has been published in a peer-reviewed scientific journal.
    Areas of the body addressed: Wrists, Forearms/elbows, Shoulders,
Neck, Legs/knees, Trunk, Back
    Risk factors evaluated: Awkward posture, force (load and coupling),
repetition.
    Examples of jobs that REBA is applicable to or well-designed for:
Patient lifting and transfer, assembly and production work, janitorial
and maintenance work, meatpacking, restaurant work, grocery cashier,
telephone operator.

Washington State Appendix B

    The Washington State Appendix B was developed to determine if jobs
that were in the Washington State ``caution zone'' actually pose an MSD
hazard to employees in them. The checklist shows physical risk factors
and lists duration (from 2 to 6 hours) by body part. If the work
activities or conditions apply, the job poses an MSD hazard.
    Areas of the body: Shoulders, Neck, Back, Trunk, Knees, Forearms,
Wrists, Hands, Elbows.
    Risk factors evaluated: Awkward postures, Force (including manual
lifting and high hand force), Repetition, Contact Stress, Vibration.
    Examples of jobs that Washington State Appendix B is applicable to
or well-designed for: very wide range of jobs including patient lifting
and transfer, assembly and production work, janitorial and maintenance,
meatpacking, restaurant, grocery cashier, telephone operator,
keyboarding, manual handling, meatpacking, jobs involving use of
powered and vibrating hand tools, janitorial, solid waste.

Snook Push/Pull Hazard Table

    The Snook Push/Pull Table is designed to identify whether pushing,
pulling and carrying activities meet or exceed established maximum
acceptable loads or force levels for those activities. It does this by
examining initial and sustained forces of loads, horizontal distance,
vertical distance, frequency and object weights. These measurements are
compared with the tabled values corresponding to the task and
considered acceptable for 75% and 90% of the adult male and female
population. The Snook Push/Pull Table and documentation supporting it
has been published in numerous peer-reviewed scientific journal
articles. In addition, the table was used in developing the NIOSH
Lifting Equation.
    Body areas addressed: Back/Trunk, Legs, Shoulders.
    Risk factors evaluated: Force, repetition, awkward posture.
    Examples of jobs that Snook Push/Pull Hazard Table is applicable to
or well-designed for: manual handling jobs involving pushing or pulling
objects or carrying objects a long distance, and hospital laundry and
janitorial jobs, among others.

Paragraph (j)(3)(ii)

    Paragraph (j)(3)(ii) allows employers to use the video display
terminal (VDT) hazard identification tool in Appendix D-2 of this
section for jobs involving risk factors related to computer use.
Appendix D-2 is a simple checklist to assess the physical activities
and layout of workstations with a VDT. Like the tools in Appendix D-1,
the VDT checklist was added to the final rule to address comments that
the physical activities and conditions listed in the proposal were too
vague to be used for job hazard analysis and control (see, e.g., Exs.
500-197, 30-2435, 30-973, 30-1274, 30-2426, 30-1350, 30-2428, 30-2986,
30-2993, 30-3000, 30-3086, 30-3853, 30-326, 30-546, 30-4189, 30-3845).
    The function of the checklist is to determine if the computer
workstation and layout address the risk factors most commonly found in
VDT jobs. The analyst using this checklist would talk with and observe
the worker(s) while they are at the computer workstation. If a
condition or activity in the job merits the checklist's ``Yes,'' the
analyst would check the ``Yes'' box. If there are no more that two
``No'' answers to the checklist questions, the computer workstation
design, layout or equipment needs no further evaluation or control to
be in compliance with paragraph (j)(3)(ii).
    Intensive computer use accounts for a significant number of MSDs
each year and occupational computer use is growing. MSDs associated
with computer use are reported in a wide range of industries (e.g.,
telecommunication, telephone, banking, insurance, catalog and telephone
sales, customer service, package delivery service, newspaper) and in
businesses of all sizes, including very small establishments. OSHA
believes that its VDT checklist provides these businesses with an easy
and quick way to identify and control hazards in a large number of
jobs.
    OSHA designed this checklist after considering the many examples of
computer workstation checklists in the record (see, e.g., Exs. 26-2,
26-1517, 26-1337, 32-182-1-6, 502-313-3, IL-258, 500-142-10). The
checklist is designed to provide employers with a simple way to
identify the five risk factors this standard covers, as they most
commonly occur in computer work and workstations. All the employer need
do is check whether the risk factor is or is not present in the
employee's working conditions and workstation equipment, and address
those that are present.
    The checklist provides clear and specific guidance in how the
employer can provide or adjust a computer workstation so it will be
comply with the control requirements of this standard. Each checklist
item is written to provide the solution to the problem it identifies.
For example, the checklist items addressing awkward neck postures
actually show how to position the computer monitor to eliminate those
postures (e.g., ``Top line of screen is at or below eye level so
employee is able to read it without bending head or neck down/back,''
``Monitor position is directly in front of employee so employee does
not have to twist head or neck,'' ``No reflected glare (e.g., from
windows, lights) is present which might cause employee to assume an
awkward posture to read screen.'').
    OSHA expects the VDT checklist to provide significant assistance
for employers in industries where MSD hazards associated with computer
use are the major, or even the only, MSD hazards they face. Unlike
other checklists in the record, which include a range of risk factors
such as vision and general environmental conditions, OSHA's checklist
addresses only those

[[Page 68344]]

risk factors this standard covers. Second, the OSHA VDT checklist is
also more flexible than some other checklists in the record because it
is risk factor-based rather than equipment-based. In equipment-based
checklists, employers get a passing score only if they have purchased
and installed particular equipment at each computer workstation. OSHA's
risk factor-based checklist, however, gives employers the flexibility
of deciding how to best control the identified hazards. For example, an
equipment-based checklist asks employers whether they have provided
adjustable height tables and monitor risers. A risk factor-based
checklist, on the other hand, asks employers whether the employees'
heads and necks are in a straight rather than awkward positions (i.e.,
bent down or back), when they look at the monitor screen. If an
employer can achieve this result without purchasing new adjustable
equipment, this will satisfy the standard. A number of participants
said that they have controlled risk factors at VDT workstations without
purchasing new adjustable equipment (see e.g., Tr. 2707).
    OSHA stresses that, like the other tools in Appendix D, its VDT
checklist is only one of a number of methods employers may use to
identify and control MSD hazards related to computer use. Employers are
free to use other checklists in the record or to continue using
whatever method they currently use to identify and evaluate MSD hazards
associated with computer use, provided those methods address the risk
factors this standard covers.

Paragraph (j)(3)(iii)

    Paragraph (j)(3)(iii) allows employers to choose to have a job
hazard analysis conducted by a professional trained in ergonomics. By a
``professional trained in ergonomics,'' OSHA means an ergonomist,
safety professional, industrial hygienist, engineer, or other safety
and health professional who has received training in the principles of
ergonomics and their application in job hazard analysis and control.
Reliance on a trained professional or competent person is a concept
used in many OSHA rules, such as the Asbestos Standard (29 CFR
1910.1001), the Process Safety Management Standard (29 CFR 1910.119),
and the Telecommunications Standard (29 CFR 1910.268).
    A few commenters suggested that the final rule should require
specific qualifications for those individuals permitted by the rule to
perform job hazard analyses (see, e.g., Exs. 30-4674, 32-210-2). OSHA
rejected this idea because the record contains many examples of cases
where employers and employees are doing an effective job of analyzing
their jobs and then controlling them (see, e.g., Exs. 32-377-2-1, 32-
111-1, 32-198-4-27-1). In fact, OSHA believes that in about 85% of
cases, managers, supervisors, and employees can, with some training in
ergonomic principles and job hazard analysis, perform the required
analysis of jobs in their workplace that have met the action trigger.
Thus, OSHA believes that, in most cases, employers will be able to
perform job hazard analyses without expert outside help, and that the
sheer number of employers who have already established effective
ergonomics programs on their own (Ex. 502-17) is testimony to the
ability of companies to initiate a program without hiring a consultant.
The record has many comments (see, e.g., Exs. 502-17, 500-215, Tr.
11427, Tr. 1008, Tr. 13764) reporting that employers and employees are
``going it alone.''
    The hazard identification method permitted by paragraph
(j)(3)(iii), however, is based on the expert judgment of a safety and
health professional trained in ergonomics and its application in the
workplace. This job hazard analysis option, therefore, assumes that the
employer has chosen to seek outside help (unless, of course, the
workplace has such a safety or health professional on staff). Paragraph
(j)(3)(iii) is unlike paragraphs (j)(3)(i) and (ii) in this respect.
OSHA is aware that some employers (see., e.g., Ex. 502-17) currently
rely on outside experts or OSHA's consultation program for job hazard
analyses. For most employers and most jobs, however, OSHA believes that
employers will choose to develop the level of in-house expertise needed
to implement the job hazard and control requirements of the standard.

Paragraph (j)(3)(iv)

    Paragraph (j)(3)(iv) allows the employer the flexibility to use any
other reasonable method of job hazard analysis that is appropriate to
the job and relevant to the risk factors being addressed. This method
could consist of a hazard identification tool of the type in Appendix
D, or of a job hazard analysis methodology developed by the company
itself. Many employers utilize trained workplace ergonomic committees
to perform these job analyses. OSHA has included this job hazard
analysis option in the final rule in recognition of the fact that other
hazard identification tools and methods are effective in identifying
MSD hazards, and that many employers have instituted effective
ergonomic programs that include job hazard analysis methods that do not
rely on ergonomist-consultants or on the tools in Appendix D. OSHA does
not wish to stifle creativity or to foreclose the option to use
existing hazard identification tools or methods that will get the job
done.
    If employers choose to avail themselves of the option in paragraph
(j)(3)(iv), they must be sure that the method of job hazard analysis
they choose is one that is reasonable and appropriate for the risk
factors present, i.e., the risk factors identified in the job by the
Basic Screening Tool. For example, if the job requires the employee to
sit in a chair and assemble cellular phones for 8 hours a day, then the
method must be appropriate for seated work, hand/arm force, and the
motions that are required by the job. A method that only measures
strain to the back would clearly not be a reasonable method of job
hazard analysis for this phone assembly job. Paragraph (j)(3)(iv)
encourages employers to continue to use their own effective analysis
techniques, provided they are appropriate, or to develop a tool that
fits their needs.
    Many participants submitted ergonomic risk factor evaluation tools
that they have used in their workplaces to the record (see, e.g., Exs.
26-2, 26-5, 32-77-2-1, 502-67, 26-883, IL-162-Q, 32-185-3-31, 500-142-
12, OR-348-1, 32-185-3-26, 500-121-61, 38-260, IL-218, IL-228, 32-339-
1-82, DC 417-6, 500-121-21, 38-93, 500-121-28, -3, 32-111-1, 32-198-4-
27-1). For example, the Dow Chemical Company uses a method that
measures posture, repetition, force and duration and takes into
consideration frequency and environmental factors, such as lighting,
for computer workstations (see, e.g., Ex. 32-77-2-1). The Dow Chemical
method provides for scoring of jobs based on the number of words typed
or keystrokes per minute (frequency), the time spent doing the task
(duration), and the amount of force or amount of deviated posture
(magnitude) used by the worker to perform the task (see, e.g., Ex. 32-
77-2-1). The final score on the ``Dow card'' allows the person
performing the job analysis (usually the employee in the job) to
determine if there is a problem.
    The United Steelworkers of America developed a survey as a job
hazard analysis tool for bus drivers. The survey includes qualitative
measurements of reach distances for the steering wheel, floor pedals,
clutch, and door handles, as well as the force required to use work
site tools. Seating support and visibility are also evaluated using the
tool that has been developed to evaluate exposures for bus drivers see,
e.g., Ex. 32-111-1). Levi Strauss uses a checklist with measurements by
body part for posture,

[[Page 68345]]

repetition, duration, force, and allows for other factors, such as the
use of PPE, concrete flooring, kneeling, slippery floors, vibration and
temperature that might be found in apparel industry jobs (see, e.g.,
Ex. 32-198-4-27-1). These methods of analysis are applicable to the
tasks and work environments for which they were developed because they
measure the risk factors that are reasonably expected to be found in
those tasks and jobs in their respective industries.
    In fact, the record contains many examples of employers who are
identifying and controlling ergonomics risk factors on a daily basis.
Dow Chemical sites across the country have been recognized by OSHA and
the Voluntary Protection Program (VPP) for their outstanding safety and
health efforts. Their programs include the analysis of ergonomics risk
factors:

    Dow analyzes tasks utilizing a risk evaluation card. This card
looks at the various ergonomic hazards that may be present in our
workplaces and rates these hazards by a relative risk index or
weighting method. This weighting or indexing approach is consistent
with other risk indices, which OSHA has supported or recommended.
Indexing allows employers like Dow to prioritize its limited safety
and health resources in such a way to get the most ``bang for the
buck'' not only from an economic perspective concerning appropriate
controls, but also from a risk perspective as well. Such an approach
has been successful in our workplaces and has been borne out through
our experience. Dow's recordable rates and incidence of MSDs are
much lower than the general industry experience (Ex. 30-3755).

    Employers are free to select the method or tool that best fits
their own jobs, workplace conditions, and culture. A job hazard
analysis is effective as long as it allows the person who is performing
it to determine whether a job has risk factor(s) that rise to the level
of an MSD hazard or does not pose an MSD hazard. Some employers
reported using simple and fairly informal procedures to identify
hazards in a job (see, e.g., Tr. 17353, 2979). This was especially true
for employers who have only limited or isolated ergonomics problems.
    A job hazard analysis approach used by many employers is the
narrative approach. This method of hazard identification is similar to
job analyses used to identify other potential safety and health hazards
(see, for example, OSHA's Process Safety Management Standard, 29 CFR
1910.119, which allows employers to use this approach). With the
narrative approach, the employer and employee discuss the job
requirements and the relationship (if any) between the tasks and the
reported MSD. Where the problem identified through the narrative
approach is easy to identify and control and the establishment has few
MSDs, the employer may be able to use the Quick Fix option permitted by
paragraph (o). If the Quick Fix method can be used, the employer does
not need to continue with the job hazard analysis, although he or she
must observe all the steps in the Quick Fix process. For more complex
problems and solutions, the employer is required to comply with the
requirements of paragraphs (k), (l), and (m) to control the MSD hazard
identified.
    In other cases, however, the problem may require a more detailed
analysis that could involve breaking the task down into its various
discrete elements or activities and then identifying and evaluating the
extent to which employees are exposed to risk factors in these
activities (see, e.g., Ex. 32-210-2). The quantified risk factors are
then compared to values that have been shown to contribute to the MSD
hazard (see, e.g., Exs. 26-2, 26-1247, 500-121-26, 32-210-2-99, DC-386,
500-121-21).
    A job hazard analysis approach that is intermediate between the
narrative approach and the detailed analysis discussed above is the use
of a checklist. Checklists provide more structure than the narrative
approach, but are less time consuming than a detailed job analysis.
Several commenters suggested that OSHA include checklists in the
standard (see, e.g., Exs. 30-3748, 30-3755, 32-182-1, 30-3826, 30-
3818). OSHA agrees that well-designed checklists, when used as
intended, can provide an effective hazard identification approach for a
range of employers, especially small business owners. There are many
ways in which checklists are useful: identifying physical work
activities and conditions, identifying ergonomic risk factors,
evaluating jobs, prioritizing jobs for further analysis, and providing
a method of evaluating the effectiveness of controls. The American
Physical Therapy Association (APTA) endorsed the usefulness of
checklists as a job hazard analysis option:

    In APTA's review, checklists would be an extremely helpful
resource to small businesses conducting job hazard analyses. (Ex.
30-3748).

    The following example of a job hazard analysis includes a
combination of qualitative and quantitative observations and
measurements (Ex. 38-438):
    Title: Turkey processing--thigh boning.
    Objective: Remove thigh bones from the turkey carcasses.
    Standard: 540 thighs deboned per 8-hour shift, 15 minute a.m.
break, 30 minute lunch, 15 minute p.m. break.
    Workstation: Overhead conveyor, shackles 44 inches above the floor.
    Equipment: Thigh boning knife; wire mesh glove for non-knife hand;
optional rubber gloves for both hands; hard hat; smock; boots.
    Methods: (1) Grasp and position thigh with non-knife hand, (2) Cut
along thigh bone to separate meat from bone 2-3 cuts, (3) Cut remaining
tendinous attachments (bone drops into conveyor as work release meat
and bone.
    Environment: Air-conditioned turkey plant; turkeys at 38 deg.F,
ambient air 45 deg.F.
    Risk Factors:
    1. Forceful exertions--(knife hand) holding knife, cutting thighs,
(non-knife hand) holding thighs for cutting. Force depends on user's
technique, sharpness of the blade, worker's position relative to the
moving turkey. Forces on the cutting hand are greater (up to 38 pounds)
than the hand holding the thigh (up to 19 pounds). Holding hand is
relaxed between cuts, while the knife hand continues to grasp the knife
handle (4 pounds).
    2. Repetition--4,320 cuts per hour, holding thigh 1,080 times per
hour.
    3. Awkward/Static posture--Wrist bent and forearm rotated while
cutting thighs. The wrist is angled due to the straight knife, type of
cut, location and orientation of the turkey.
    Paragraph (j)(4) of the final rule simply states that jobs that
have been determined, through the job hazard analysis process, to pose
an MSD hazard to employees in that job are called ``problem jobs'' for
the purposes of the standard.
    OSHA finds, based on the comments, data, and other evidence on job
hazard analysis in the record, that the job hazard analysis approach
adopted in paragraph (j) of the final rule is widely used by employers
and employees and is highly effective. Further, the hazard
identification tools and methods permitted by this paragraph are
commonly used in workplaces large and small, for workers with fixed and
mobile worksites, and in the analysis of both traditional and ``non-
traditional'' jobs.

Paragraph (k)--What Is My Obligation To Reduce MSD Hazards?

    Paragraph (k) of the final ergonomics standard tells employers how
far they must go in reducing MSD hazards at the workplace. This
paragraph sets the control endpoint that employers must achieve. Final
paragraph (k) presents

[[Page 68346]]

three options. Employers are in compliance with this paragraph when the
controls they have implemented:
     Control the 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,
     Reduce MSD hazards in accordance with or to levels below
those in the hazard identification tools in Appendix D that the
employer used to conduct the job hazard analysis, or
     Reduce MSD hazards to the extent feasible.
    As described in the Risk Assessment and Economic Analysis sections
of this preamble, much evidence in the record demonstrates that
employers with existing programs are able to successfully control the
MSD hazards in problem jobs to a level where an MSD is reasonably
unlikely to occur.
    Paragraph (k) of the final rule does not require employers to
eliminate all MSDs. OSHA recognizes that, in a number of jobs,
workplaces, and physical work activities it may not be possible to
eliminate MSDs. OSHA is also aware that employers who have an effective
ergonomics program may still receive reports of MSDs. The goal of the
final rule is to assure that employers take effective action to control
MSD hazards, and paragraph (k) tells employers how far they must go in
implementing controls.

Paragraph (k)(1)(i)

    An employer is in compliance with paragraph (k)(l)(i) when it
reduces 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. The hazard analysis conducted under
paragraph (j) will have identified the risk factors of concern. To
control the MSD hazard, the employer must reduce the magnitude,
duration, or frequency of the risk factors to the level where they are
reasonably unlikely to cause such MSDs. There are several ways an
employer can achieve this goal.
    First, the employer can reduce ergonomic risk factors below the
levels in the Basic Screening Tool. The final standard recognizes that
risk factors below the levels in the screening tool are not reasonably
likely to cause MSDs, and allows an employer to discontinue his or her
ergonomics program if it has reached those levels.
    Second, the employer can otherwise control the hazards such that
they are reasonably unlikely to cause MSDs. In some cases, the needed
controls may be obvious or readily discoverable by reference to
compliance assistance materials. In other cases, judgment may be
required. In any event, the employer may refer to the method it used
under paragraph (j) to determine whether the job presents a hazard. For
example, the employer may use a professional trained in ergonomics to
conduct the analysis and determine whether job conditions present a
hazard and to recommend measures to control the hazard. The employer
can also make use of its own knowledge and experience gained under its
program.
    The employer may also use hazard identification tools. As described
above in the explanation of paragraph (j), the employer may choose from
a variety of such tools. Appendix D lists a number of specific tools
that provide safe harbors for compliance under paragraph (k)(1)(ii);
however, the employer may also consider other tools that are effective
in identifying hazardous levels of exposure in determining what
controls to implement.
    These examples are not intended to be exhaustive. They are intended
to illustrate means employers may use to ``control MSD hazards.''
    Several points bear noting. First, the obligation is not to reach a
level of absolute safety or to assure that no further MSDs will occur:
it is to reduce the hazard so that work activities are not reasonably
likely to cause MSDs. Second, the hazard reduction is targeted to MSDs
that result in work restrictions (including days away from work) or
medical treatment beyond first aid. These are serious conditions by any
measure. Finally, the standard allows the employer to take up to two
years to implement permanent controls. This extended period should be
sufficient to allow for situations in which installation of effective
controls requires a period of adjustment.

Paragraph (k)(1)(ii)

    The second option is to reduce MSD hazards in accordance with or to
levels below those in the hazard identification tools in Appendix D
that the employer used to conduct the job hazard analysis. This
appendix is intended to give employers specific guidance to help them
determine whether or not they have gone far enough in controlling MSD
hazards. As discussed more fully below, many rulemaking participants
felt that the proposed rule was vague and shifted the burden of
determining how far to control MSD hazards to employers (see, e.g.,
Exs. 30-1722; 30-3956, 35-106; Tr. 4110, 15648-15649) or suggested that
OSHA provide, in the final rule, more guidance on how to make that
determination (see, e.g., Exs. 30-1557, 30-2987, 30-3748, 30-3765, 32-
133, 32-300). OSHA has responded to these comments by allowing
employers the option of controlling MSD hazards to the specific levels
set out in Appendix D.

Paragraph (k)(1)(iii)

    Paragraph (k)(1)(iii) of the final rule states that employers are
in compliance with the endpoint if they have reduced the hazard to the
extent feasible. This paragraph applies when it is not feasible for
employers to reach one of the endpoints in paragraphs (k)(1)(i) and
(ii). It is included because OSHA has no authority to require employers
to do what is not feasible or ``capable of being done.'' American
Textile Mfrs. Institute v. Donovan (Cotton Dust), 452 U.S. 490, 509,
513 n. 31, 540 (1981). A control that will reduce a hazard in a job is
feasible if it is achievable within the limits of current technology
and knowledge and the employer's financial resources. An employer's
inability to afford controls will not establish infeasibility if its
level of compliance lags significantly behind the rest of its industry.
See Section IV-A.6.a(4)(a) and (b) of OSHA's Field Inspection Reference
Manual (CPL 2.103). See also, United Steelworkers v. Marshall, 647 F.2d
1189, 1269 (D.C. Cir. 1980).
    OSHA is also requiring that employers who meet the compliance
endpoint by being at the limits of feasibility, but have not fully
controlled MSD hazards, periodically check to see whether new
technology has been developed and is available. These checks must be
carried out at least once every 3 years. When additional feasible
controls are identified, the final rule requires employers to implement
them until one of the compliance endpoints given in paragraph (k)(1)(i)
or (k)(1)(ii) is reached. Requiring employers to look for and implement
new control methodology ensures that an employer who has not fully
controlled ergonomic hazards is not relying on obsolete control
measures.

What Happens When a New MSD Is Reported After Controls Have Been
Implemented?

    Paragraph (k)(2) of the final rule tells employers what to do if an
employee reports an MSD in a job in which the employer has implemented
MSD hazard controls. If an employee makes such a report, the employer
must check to see if the controls are still in place and are
functioning and being used properly. The employer must also check to
see if any new hazards exist that were not present when the job hazard
analysis was conducted. The employer need not conduct another full job
hazard analysis

[[Page 68347]]

but may undertake a review of the previous job hazard analysis to
determine if it is adequate.
    Sometimes, after ergonomic control measures have been implemented
in a problem job, another employee will experience and report an MSD.
The injury could be a sign that the controls are not functioning
correctly or that new hazards have arisen. For example, an employer
might have, among other things, installed adjustable keyboard trays at
each VDT station and trained employees in their use. If one of the
keyboard trays gets out of adjustment, the operator using that tray
might experience and report tendinitis in his or her wrists. An
employer following paragraph (k)(2) of the final rule would check to
ensure that the keyboard tray is still present and is adjusted
properly.

Note to Paragraph (k)

    A clarifying note at the end of paragraph (k) explains that the
occurrence of an MSD in a problem job is not in itself a violation of
the standard. This note emphasizes that the focus of the final rule's
compliance endpoint is on the control of MSD hazards and not on the
elimination of MSDs from the workplace. OSHA recognizes that, for a
number of jobs, workplaces, and physical work activities, it may not be
possible to eliminate MSDs. OSHA is also aware that employers who have
effective ergonomics programs may still receive reports of MSDs. The
goal of the final rule is to have employers put a good working system
into place so that they can take effective action to control MSD
hazards.

The Proposed Rule

    The proposed rule would have required employers to meet one of
three compliance endpoints:
     Materially reduce MSD hazards in the problem job using the
incremental abatement process;
     Reduce MSD hazards in the problem job to the extent
feasible; or
     Eliminate MSD hazards in the problem job.
    OSHA explained the first endpoint with a definition of ``materially
reduce MSD hazards.'' The definition, which was repeated in a note
following proposed Sec. 1910.921(a), read as follows: ``'Materially
reduce MSD hazards'' means to reduce the duration, frequency and/or
magnitude of exposure to one or more ergonomic risk factors in a way
that is reasonably anticipated to significantly reduce the likelihood
that covered MSDs will occur.''
    The following paragraphs discuss the comments, evidence, and
testimony received on the proposed compliance endpoint and present
OSHA's reasons for accepting or rejecting the rulemaking participants'
suggestions and for including the final rule's compliance endpoint
requirements.
1. Comments That the Proposed Compliance Endpoint Was Vague
    Many of the comments and much of the testimony OSHA received on the
issue of compliance endpoints stated that the language used to set
compliance goals was vague and confusing (see, e.g., Exs. 30-333, 30-
1722, 30-2208, 30-2387, 30-3765, 30-3813, 30-3853,30-3956, 30-4185, 30-
4334, 30-4467, 32-300, 32-337, 440, 500-118, 500-188, 500-197, 500-221;
Tr. 2960, 4109, 14986). In particular, these rulemaking participants
argued that the related terms ``material reduction or elimination of
MSD hazards'' and ``materially reduce the MSD hazards'' were so vague
that employers would not know how far they had to go to control MSD
hazards. For example, ORC said that those terms, together with the
phrase ``reasonably anticipated to significantly reduce the
likelihood'' in the clarifying note following Sec. 1910.921(a), would
prove to be compliance nightmares for employers and enforcement
nightmares for OSHA (Ex 30-3813, 32-78). ORC claimed that the language
in the note would breed unnecessary confusion. Further, Edison Electric
Institute stated that the definition of ``materially reduce MSD
hazards'' uses three terms, ``reasonably,'' ``significantly,'' and
``likelihood,'' that are themselves vague (Ex. 32-300). Several
rulemaking participants believed that this vagueness would lead to
unnecessary litigation (see, e.g., Exs. 30-3813, 30-3956, 30-4185, 30-
3853, 32-337). James Lancour, representing EEI, was concerned that the
vagueness would cause employers difficulty in program and training
development, stating:

    To provide reasonable program development and training one must
clearly define the program endpoints and the steps to achieve these
endpoints. The endpoints must also be objectively measurable to
achieve the desired results. This proposed standard is so vague and
ambiguous that neither the endpoints nor the measurement criteria
are specifically defined.
    How does one develop an ergonomic program, give guidance in
determining compliance and provide general and specific training to
facility program facilitators, managers and supervisors and
employees when the terms of compliance are so poorly defined? [Tr.
2897]

    Some rulemaking participants argued that OSHA left the word
``feasible'' undefined (see, e.g., Exs. 30-3956, 30-4334; Tr. 14986).
For example, United States Senator Kit Bond observed that OSHA ignored
comments from the Small Business Advocacy Review panel about the
vagueness of the word ``feasible'' (Ex. 30-4334). The National
Coalition on Ergonomics (NCE) stated that the lack of a suitable
definition rendered the option to ``implement controls that reduce the
MSD hazards to the extent feasible'' unclear (Ex. 30-3956). The
Coalition said that OSHA had not provided any reliable guidance as to
what ``feasible'' meant from either a technological or an economic
standpoint. The Coalition believed that this left employers with no way
of determining whether a particular hazard control was feasible for
them.
    Paul, Hastings, Janofsky, and Walker LLP also argued that the
proposed standard's attempt at flexibility resulted in a standard using
terminology full of ambiguity (Ex. 30-3231). The law firm believed that
OSHA's enforcement staff would likewise struggle to understand the
rule.
    The National Coalition on Ergonomics (Ex. 30-3956) went further to
suggest that the proposed language was so vague as to be
unconstitutional:

    It is fundamental that ``a statute which either forbids or
requires the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to
its application, violates the first essential of due process of
law.'' Connally v. General Constr. Co.. 269 U.S. 385, 39 (1926).
[Footnote omitted.] Thus, an occupational safety and health standard
must give an employer fair warning of the conduct it prohibits or
requires, and it must provide a reasonably clear standard of
culpability to circumscribe the discretion of the enforcing
authority and its agents. Dravo Corp. v. OSHRC, 613 F.2d 1227, 1232,
7 BNA OSHC 2089 (3d Cir. 1980). [Footnote omitted.]
* * * * *
    The language and terminology used by OSHA in much of the
proposed standard and Preamble is so vague and ambiguous that it
fails to provide employers with adequate notice of what the standard
will require and prohibit and, accordingly, is unconstitutionally
vague. The proposed standard fails to provide employers with
adequate notice as to the conditions, circumstances or activities in
the workplace that cause MSDs and what employers must do to
eliminate MSDs under the standard.
    The following is a partial list of terms which are either vague
and/or undefined and fail to provide employers with notice of the
required performance under the standard--``material reduction or
elimination of MSD hazards * * *'' and ``ergonomic hazard.'' These
terms are so ambiguous as to fail to provide employers * * * notice
of what is required with respect to the fundamental provision of
feasible control measures. [Ex. 30-3956]


[[Page 68348]]


    The AFL-CIO (Ex. 500-218) believed that the proposed standard was
clear and that employers would be able to successfully carry out the
obligations imposed by it. The union countered some of the vagueness
arguments in its post-hearing submission:

    Employers must control exposure to ergonomic risk factors to the
point that covered MSDs are no longer ``reasonably likely to
occur,'' in other words, to eliminate the ``MSD hazard,'' or reduce
it to the extent feasible. * * *
    The record demonstrates that employers will be able to
accomplish this task. Utilizing various tools and other available
guidance, employers have been able to measure and evaluate exposure
to ergonomic risk factors and identify and implement controls to
reduce those exposures. There is plentiful testimony in the record
demonstrating that employers are able to ascertain conditions that
present an ergonomics hazard and to identify and implement measures
to reduce or eliminate the hazard.
* * * * *
    The proposed standard is clear, and with the inclusion of theith the inclusion of the
AFL-CIO's recommendations, will be even clearer, that an employer's
obligation extends only to eliminating hazardous exposures at work.
An employer's obligation to conduct job analysis and institute
controls applies only where there is exposure on the job to an
ergonomic risk factor or risk factors that occurs at a sufficient
level of duration, intensity, or magnitude to present a risk of
MSDs. Under OSHA's proposed screening criteria, an employer is only
required to conduct a job analysis if there are ``physical work
activities and conditions in the job'' that are ``reasonably likely
to cause or contribute to the type of MSD'' being addressed, and
``[t]hese activities and conditions are a core element of the job
and/or make up a significant amount of the employee's worktime.'' *
* * If these screening criteria are not met, the occurrence of an
MSD does not trigger any obligations on the employer's part. And the
proposed standard limits an employer's control obligations to
situations where there is substantial exposure to ergonomic risk
factors on the job. If the employer's job analysis does not show the
existence of a hazard, i.e., exposure to ergonomic risk factors that
are reasonably likely to cause or contribute to a covered MSD, the
employer is under no obligation to institute controls. The standard
clearly limits employers' obligations to situations where there is
significant exposure in the workplace, and limits employers'
obligations to addressing hazardous exposures at work. [Ex. 500-218]

    Dr. Frank Mirer of the UAW also believed the proposed rule was
clear based on General Duty Clause ergonomic settlement language that
was similar to that in the proposal (Tr. 5932).
    OSHA does not agree that the language of the proposed rule was
impermissibly vague. Nevertheless, OSHA has changed the compliance
endpoints to respond to the vagueness comments and provide greater
clarity. OSHA believes that the language of the final rule's three
endpoints gives employers clear and understandable guidance as to what
they must do. Employers who achieve the objective ``safe harbor''
endpoints in Appendix D are assured they are in compliance. This avoids
the problem most frequently raised by commenters: That the proposal did
not give employers objective criteria by which to measure their
compliance obligations. The objective criteria in the Basic Screening
Tool give employers an alternate clear means of assuring they are in
compliance. OSHA has also sought to clarify the general performance
terms like ``MSD hazard'' and ``control MSD hazards'' used in the
standard. OSHA has clarified that an employer may rely on a safe-harbor
hazard identification tool, a professional consultation, or any other
reasonable method to define whether a hazard exists requiring control.
OSHA has also dropped terms, like ``incremental abatement process'' and
``material reduction,'' that commenters asserted were especially
unclear.
    a. Comments that the language used in the proposed standard is so
vague and subjective that it would lead to uneven enforcement. Some
rulemaking participants who claimed the proposed endpoints were vague
were also concerned about the possibility that the alleged vagueness
would lead to uneven enforcement (see, e.g., Exs. 30-333, 30-1274, 30-
3765, 30-3839, 30-3845, 30-4185, 440, 500-188, 500-197; Tr. 3330, 5439,
7211, 17891). They believed that the proposed definition of
``materially reduce'' and the corresponding explanation of that term in
the preamble to the proposal would call for subjective judgments and
would lead to disagreements between employers and OSHA enforcement
staff. For example, The Forum for a Responsible Ergonomics Standard
stated:

    Enforcement of the proposed ergonomics program standard would
require a degree of subjectivity in determining compliance
unprecedented in the Agency's history. This is because of the nature
of the area regulated combined with the vagueness of the proposed
standard's requirements.
    For example, proposed Section 1910.921 (a) provides that
employers are in compliance if they implement controls that
``materially reduce'' MSD hazards in the job * * * OSHA recognizes
that ``a number of MSD hazards are complex and it may not always be
clear what control(s) will achieve a material reduction in the
probability that MSDs will occur.'' * * * In an attempt to clarify
what constitutes compliance with this requirement, OSHA then
proposes that employers will be considered in compliance ``if they
select and implement the controls that a reasonable person would
anticipate would achieve a material reduction in the likelihood of
injury.'' * * * However, the ``reasonable person'' standard is
hardly a bright-line means of determining whether an OSHA inspector
will find an employer in compliance.
    This is only one example of how compliance with the proposed
standard, at best, is dependent on interpretations of vague
standards by OSHA inspection officials--individuals, at least to
date, with little or no training in ergonomics, who inevitably will
establish differing criteria to be applied to employer efforts in
this area. [Footnote omitted.] This approach invites litigation over
the meaning of such vague terms. Indeed, the ``reasonable person''
is a long-standing standard of tort law used by juries to assess the
culpability of an individual; by its nature, it is open to
interpretation.
    Forum members fear that the vagaries of complying with the
proposed standard may be held against them during the OSHA
inspection process. By leaving too much to interpretation and
failing to provide significant guidance, inspectors may be able to
cite facilities despite their good faith efforts to comply. The lack
of compliance guidance potentially is a fundamentally fatal flaw
with OSHA's mandatory proposed standard and must be addressed by
OSHA before a reasonable standard can be promulgated. [Ex. 30-3845]

    The National Association of Manufacturers' post-hearing submission
(Ex. 500-1) contained a letter from Scott Ward of Windings, Inc. Mr.
Ward presented an analogy with how an existing performance standard is
enforced. He described an example of how the existing standard on
personal protective equipment has led to disagreements with OSHA's
compliance staff and a citation:

    [W]e provided gloves and design changes to a material (woven
fiberglass tape) to reduce an irritation--not even a hazard, for
there is no injurious nature to the material--and re-assigned an
employee who suffered the most irritation so as to not aggravate a
skin condition. However, a field inspector cited us for lack of an
effective program even though we had reviewed the material's MSDS,
provided the recommended (not required) personal protection
equipment, accommodated employee's complaints and the inspector's
own testing indicated that the fiberglass dust was well below
exposure level limits. We had begun work on ventilation equipment to
provide extra equipment and this engineer, who doesn't have air
fluid dynamics training, said it wouldn't work. The citation was
reduced but it stood. [Ex. 500-1]

    OSHA received comments and testimony that the training of its field
staff would significantly affect the reasonableness of the Agency's
compliance efforts (see, e.g., Ex. 30-

[[Page 68349]]

1107; Tr. 5439, 7210). William Goldsmith, representing the U.S. Chamber
of Commerce, was particularly concerned that the lack of training of
OSHA field staff would lead to enforcement difficulties:

    And it also bears noting that the companies at least the ones
that I am familiar with involved in these cases had ergonomics
programs. Dayton Tire did. Hudson Foods did. So when one looks at
the past history of what has happened with trying to enforce the
terms and the concepts that are ripe throughout this proposed
standard, you I think get a fair picture of what will happen if the
proposed standard becomes a final rule.
    That is a compliance officer doing the best he or she can will
come into a facility, will probably not be not very well trained
through no fault of his own or indeed the agency's own, but because
resources are limited, be making guesses as to what ergonomics
stressors appear in what jobs and the litigation if that is what it
is, if that is where results will begin. [Tr. 7210]

In their post-hearing submission, the Chamber noted that the American
Society of Safety Engineers (at Tr. 11616) and the AFL-CIO (at Tr.
3498) agreed that training of OSHA's compliance staff would be crucial
to the enforcement of the ergonomics standard (Ex. 500-188). The
Chamber doubted, however, that such training would be successful:

    Thus, it is beyond dispute that additional training is required.
Of course, it is difficult to understand how the Agency will
successfully provide such training since * * * even the individuals
who drafted the Proposed Rule do not know what it means. [Ex. 500-
188]

    Craig Brightup of the National Roofing Contractors' Association,
which was concerned about the impact on small businesses, expressed
similar concerns:

    OSHA's lack of enforcement restraint, coupled with the vagueness
of the ergonomic standard, would be a disaster for small business.
Chairman Talent stated in his comments, and I quote, ``Instead of
developing a standard that gives small businesses guidance and
assistance in implementing physical changes to the workplace that
reduce and eliminate MSDs, OSHA has left it up to employers to
figure out how to prevent or eliminate MSDs. These vast regulatory
crevices into which small businesses will inevitably fall will be
filled by the unfettered discretion of OSHA inspectors as they
determine compliance. (Tr. 3330)

    Edison Electric Institute noted the possibility that compliance
officers would second guess employers' decisions on control measures
(Ex. 32-300). The Center for Office Technology was similarly concerned
that the ``subjective terms `reasonable' and `likelihood' make it
impossible for either the employer or the OSHA inspector to know when
an employer is in compliance [Ex. 30-2208].''
    Some rulemaking participants went further, arguing that the vague
language in the proposal forces employers to make subjective judgements
about whether they have gone far enough to control hazards (see, e.g.,
Exs. 30-3853, 30-3956, 32-337, 500-27; Tr. 6219). The Integrated Waste
Services Association and the National Coalition on Ergonomics (citing
AFL-CIO v. OSHA, 965 F.2d 962 (11th Cir. 1992) at 976) stated that this
is in conflict with the requirements of section 6(b)(5) of the OSH Act
for the Agency to set standards using objective criteria. The Coalition
stated that the Agency cannot expect an employer to decide about
permissible exposure to MSD hazards when OSHA is unwilling or unable to
make that determination.
    Mr. Edward C. Laux of the International Cemetery and Funeral
Association believed that the term ``to the extent feasible'' was
subjective and would present compliance difficulties for employers. Mr.
Laux compared compliance under the proposal's requirement to control
MSD hazards to the extent feasible with the reasonable accommodation
test in Title I of the Americans with Disabilities Act:

[Section 1910.921] provides that businesses must eliminate or
materially reduce musculoskeletal disorder (MSD) hazards in the
workplace ``to the extent feasible.'' This highly subjective
standard presents difficulties of interpretation similar to the
``reasonable accommodation'' test in Title I of the Americans with
Disabilities Act (ADA).
    The ADA ``reasonable accommodation'' test at 42 U.S.C. 102(b)(5)
and at 1630.9 of the U.S. Equal Employment Commission regulations
requires employers to make alterations in the workplace for disabled
workers unless the accommodation would impose ``undue hardship'' on
the covered business. Interpretation of the terms ``reasonable
accommodation'' and ``undue hardship'' must be made on a case-by-
ease and business-by-business basis. As a result, interpreting these
ADA terms has been the subject of administrative appeals and
expensive litigation of which small businesses, in particular, are
ill-equipped to afford.
    The ICFA believes that the ``feasibility'' provision at 1910.921
of the proposed Ergonomics programs will result in similar conflicts
of interpretation that cannot be resolved in a ``one size fits all''
application. Small businesses, which comprise 87 percent of the
cemeteries and funeral homes in the United States, will be
confronted by OSHA inspectors second-guessing their understanding of
this vague provision and imposing fines on these businesses where
they disagree with their judgment.
    At that point, small businesses will be forced to choose between
two highly unattractive alternatives: either to pay expensive
penalties for noncompliance with a vague and subjective standard or
to hire expensive lawyers to appeal and litigate the fines. The
litigious history of similar language in the ADA removes any doubt
that this scenario as applied to the Ergonomics standard is not only
probable but certain. [Ex. 500-27]

    b. Comments that the vagueness of the rule is compounded by the
lack of scientific certainty. Some rulemaking participants argued that
the lack of guidance was compounded by the scientific uncertainty of
whether a given control measure would abate the hazards (see, e.g.,
Exs. 30-294, 30-461, 30-494, 30-1722, 30-2986, 30-3853, 32-337, 500-
197; Tr. 3232, 11375). For example, the U.S. Chamber of Commerce
stated, ``At first glance, the `reasonableness' element of these
definitions seems to provide an employer a certain amount of leeway in
eliminating or reducing the hazards. This, however, is not the case.
Under current scientific principles, nobody knows the point at which
the likelihood of an MSD occurring will be reduced.'' The Chamber
alleged that OSHA's experts admitted as much. The Chamber quoted small
portions of two OSHA expert witnesses in Secretary of Labor v. Hudson
Foods and Secretary of Labor v. Dayton Tire to support this point. The
Chamber suggested that the witnesses could not quantify the reduction
in the rate of MSDs resulting from a given control measure. The Chamber
concluded:

    These statements were made, it bears repeating, by people called
by OSHA in litigated matters to support particular ergonomics
allegations individuals whom, presumably, OSHA believed qualified
enough to sponsor as experts at trial. Yet neither of them could
support the efficacy of their particular recommended abatements in a
particular workplace cited for particular violations of the General
Duty Clause. Nevertheless, somehow OSHA expects employers * * * even
small employers like the overwhelming majority of the Chamber's
members * * * to develop their own effective control measures.
    Although OSHA has shifted to the employer the burden to identify
to what degree a ``risk factor'' must be reduced to prevent an MSD
from occurring, that is a question nobody can answer. Indeed, OSHA
concedes that ``[b]ecause of the multifactoral nature of MSD hazards
it is not always clear whether the selected controls will achieve
the intended reduction in exposure to MSD hazards.'' 64 Fed. Reg. at
65827. Furthermore, in some cases, particular ergonomic controls may
cause more harm than good. 64 Fed. Reg. 65827 ``[m]any employers
evaluate controls within 30 to 60 days after implementation. This
gives employees enough time to get accustomed to the controls and to
see whether the controls

[[Page 68350]]

have introduced other problems into the job.'' (emphasis added).
Because no one, including OSHA, is equipped to identify at what
point an MSD is less likely to occur or to identify which abatement
measures are effective in reducing such likelihood, this requirement
is flawed beyond repair. [Ex. 30-1722]

    The National Coalition on Ergonomics (Ex. 500-197) echoed the
Chamber's point and argued that the rulemaking record demonstrated a
lack of consensus regarding what control measures would be effective in
reducing the rate of MSDs:

    Ergonomics experts likewise admit the impossibility of
predicting with any degree of accuracy the ergonomic modifications
that will successfully reduce musculoskeletal complaints. [Footnote
omitted.] In fact an expert testifying for OSHA in a general duty
clause enforcement action said he would need a ``crystal ball'' to
determine whether a particular abatement measure would eliminate
ergonomic stressors.\10\ [Footnote: Transcript, April 6, 2000, at
7191-92. In March of 1999, an expert ergonomist hired by OSHA in
another matter confessed that there is simply no way to predict in
advance the outcome of a particular abatement measure. He testified
that it is impossible for an employer to know ahead of time whether
a control measure will materially reduce or even reduce at all the
rate of musculoskeletal complaints. Transcript, April 6, 2000, at
7194.] The lack of consensus regarding appropriate ergonomic
interventions among the people who ultimately would be relied on to
implement the proposed rule surfaced repeatedly in the hearings. The
hearings also revealed the highly uneven track record of ergonomic
interventions in the workplace and the consistent inability of
ergonomics professionals to measure the effects of ergonomic
interventions, or to predict when a particular intervention will be
effective in controlling or abating targeted musculoskeletal
complaints. [Ex. 500-197]
---------------------------------------------------------------------------

    \10\ The full text of the transcript cited in the Coalition's
footnote reads as follows:
    ``With respect to all of your proposed abatements, proposed
possible solutions, as you call them, that if every single one were
implemented with respect to every single job, there would still be
ergonomic stressors in every single job?''
    Answer, ``I don't know if there still would be ergonomic
stressors in every single job, but there might be ergonomic
stressors in some jobs, but I can't say that there still would be
ergonomic stressors in every single job. No, sir, I cannot say
that.''
    What would it take for you to say one way or another whether
that would be so?''
    Answer, ``A crystal ball.''
    It is clear from this exchange that the witness was talking
about more than one control measure being applied to more than one
job.
---------------------------------------------------------------------------

    The Coalition further contended that no consensus exists as to who
is best situated to identify effective ergonomic solutions (Ex. 500-
197). The Coalition noted that some ergonomics professionals testified
that employees are the best persons to identify controls but that
others, including one of OSHA's expert witnesses, occupational health
professionals, and employees themselves, stated that employees did not
have the expertise necessary to identify control measures. NCE
concluded this argument by stating: ``OSHA has put the cart before the
horse in promulgating a rule that requires employers to produce
solutions that reduce ergonomic hazards when no available or reliable
means exist for predicting or measuring the efficacy of ergonomic
interventions.''
    LPA, Inc., also objected to the proposed control endpoints because
ergonomics is not an exact science (Ex. 30-494). LPA noted that the
studies on which NIOSH and OSHA relied did not provide sufficient
information to employers so that they could evaluate jobs, assess
exposure to risk factors, and select controls that will eliminate the
risk factors.
    The Honorable David McIntosh, Chairman of the House Subcommittee on
National Economic Growth, Natural Resources, and Regulatory Affairs,
noted that even OSHA admits that most ergonomic fixes are not 100
percent effective (Ex. 30-542, 30-3010). He wrote:

    A second problem is the lack of end points or clear criteria for
determining when an employer has fulfilled his obligations. OSHA is
an enthusiastic proponent of ergonomic ``solutions.'' But even OSHA
admits that most ergonomic fixes are not 100 percent effective.
[Footnote omitted.] For example, in shoe manufacturing, installing
armrests and footrests, elevation and tilt equipment, better
designed chairs, and pallet levelers to minimize bending while
lifting reduced the ``number of damaging wrist motions in assembly
jobs by one-third,'' reduced ``disc compression forces in clerical
jobs by about 17 percent,'' and reduced ``disc compression forces
during lifting jobs by more than 50 percent.'' [Footnote omitted.]
Such workstation modifications undoubtedly reduce the risk of MSDs.
But, suppose another MSD occurs after the employer has implemented
those changes. What is the employer's obligation? Must he experiment
with more engineering options? Must he slow the pace of work, or
implement a job rotation system? [Footnote: ``The answer appears to
be `yes.' Here is the regulatory language: `[Y]ou must continue this
incremental abatement process if other feasible controls are
available' (1910.922(c)).''] How practical would that be in a small
establishment? What if the only way to eliminate damaging wrist
motions and disc compression forces is to eliminate the jobs that
require wrist flexion and bending while lifting?
    An employer can only guess when his efforts to reduce MSDs are
adequate in OSHA's eyes, because the rule contains no outcome
performance measures or benchmarks. Reducing MSDs by 50 percent or
even 70 percent below current levels is no guarantee that an
employer has done enough. Nor is it clear that reducing MSDs 50-70
percent below national average rates for particular kinds of jobs
assures compliance with the rule. As long as MSDs occur, an employer
remains vulnerable to legal challenge by his employees and OSHA. Yet
eliminating all MSDs is beyond any employer's technical and
financial resources. To say nothing of the fact that ergonomic
``science'' is still in its infancy, many MSDs are caused or
aggravated by activities--sports, yard work, a second job--that may
be completely outside an employer's control. The proposed rule thus
gives OSHA an open-ended pretext to inspect, cite, and prosecute
American companies. [Ex. 30-542]

    Mayville Engineering Company, Inc.(Ex. 30-294) noted that it had
difficulty applying controls to abate ergonomic hazards without having
MSD symptoms surface in previously unaffected employees:

    We had a facility that had 10 identical workstations that
assembled radiator cores. We had 3 individuals, within a month,
report MSDs. The three individuals had worked at these workstations
less [than] 1 year. One of the individuals had only been doing this
job 6 months. The other individuals working at the other 7
workstations had been working on these jobs from 3-10 years each and
had not reported any MSD symptoms. During the hazard evaluation we
questioned the 7 as to any problems they had with the workstations
and they felt that the workstations were fine the way they were.
    We made modifications to all 10 of the workstations based on the
MSDs reported. The other 7 individuals started to report MSD
symptoms with in 3 weeks. How would this be addressed in your
Proposed Standard? [Ex. 30-294]

    The National Coalition on Ergonomics noted that the hearing
transcript included evidence of other similar instances that the
Coalition claimed showed that ergonomic interventions were either
ineffectual or created more problems than they solved (Ex. 500-197). On
this point, NCE cited the experience of an office that handles 9-1-1
calls, a municipal solid waste department, the Social Security
Administration, the Communications Workers of America, and Levi Strauss
and Company. The Coalition also cited a passage from Dr. Emil
Pascarelli's book, Repetitive Strain Injury: A Computer User's Guide:
``All the ergonomic equipment in the world won't prevent RSI unless
people who use computer keyboards learn how to type safely, pace
themselves, and care for their upper bodies.''
    Ms. Lisa Brooks, testifying on behalf of International Paper
Company, stated that the current science of ergonomics did not support
interpreting the proposed standard consistently for a particular job or
task (Tr. 11375). She

[[Page 68351]]

noted specifically that two lifting guides, Liberty Mutual's manual
handling tables and the 1991 NIOSH lifting equation, provide different
levels of acceptable risk. She was concerned that, if an employee's
condition did not improve after applying the more liberal of the two
guides, OSHA would force an employer to use the more conservative even
though both are nationally recognized. Ms. Brooks argued that the
language in the proposal left the employer in doubt:

    Would the determination of the compliance end point change if
the injured employee's condition did not improve?
    The answer to this question depends upon the interpretation of
reasonably likely to occur and significantly reduce the likelihood
for a particular job or task.
    Some could argue that since the injured employee's condition did
not improve, the facility only materially reduced the
musculoskeletal disorder hazards at the facility and that the
facility must continue in the incremental abatement process and
implement additional feasible controls.
    Once in the incremental abatement process, the compliance end
point becomes tied to the recuperation of an individual. [Tr. 11377]

    Ms. Brooks concluded by urging OSHA to postpone the promulgation of
the ergonomics standard until it could be written so that compliance
can be consistently and objectively measured (Tr. 11381).
    c. Comments that OSHA has not provided sufficient guidance for
employers to comply with the proposed standard's compliance endpoint.
Many rulemaking participants were concerned that the proposed standard
and the preamble discussion of the regulatory text provided little
hazard control guidance for employers (Ex 30-1536, 30-1722, 30-3813,
30-3845, 30-3956, 30-4185, 32-300, 35-106, 500-197). Some were
concerned that employers, particularly small ones, would not have the
resources to implement the requirements in the proposed standard or to
make the judgments it calls for (see, e.g., Exs. 30-1536, 30-2834, 30-
3077, 30-3348, 30-3751; Tr. 3330, 8226). These commenters argued that
this would force many employers to hire an expert.
    Some rulemaking participants believed that OSHA should provide
additional guidance for the terms and concepts used in this part of the
standard (see, e.g., Exs. 30-1557, 30-2987, 30-3748, 30-3765, 32-133,
32-300). For example, ORC and Edison Electric Institute urged OSHA to
include a nonmandatory appendix listing risk factors and examples of
acceptable controls (Ex. 32-300). The American Association of
Occupational Health Nurses urged OSHA to provide clarification for
situations in which MSDs are still being reported after all feasible
controls have been implemented (Ex. 30-2387). Dow Chemical Company
suggested that the Agency could put appendix-like material on its Web
site (Ex. 30-3765). Dow also asked for guidance on the type and amount
of improvement that was expected under the incremental abatement
process and on the amount of time that was allowed to pass between
incremental abatement measures. The American Health Care Association
recommended defining ``feasible'' and better explaining the term
``materially reduce'' (Ex. 30-2987). At the hearing, Frank White
described ORC's position as follows:

    How do I know when I've achieved compliance? Now I understand
that OSHA struggles with this issue, but the proposed sections 921
and 922 we believe are off the mark.
    In ORC's opinion, the difficulty of establishing precise
exposure response relationships between the particular health
effects being regulated and a specific workplace risk factors that
allegedly cause those condition does not relieve OSHA of the [basic]
obligation to provide some quantitative guidance to employers on a
point at which significant risk is substantially reduced.
    Only in this way will an employer be able to determine whether
taking action to control particular workplace risk factors is likely
to materially reduce the risk of the specific musculoskeletal
disorder that has occurred. [Tr. 4109]

    The American Industrial Hygiene Association (AIHA) supported the
proposed standard's performance-based compliance endpoint (Ex. 32-133).
However, AIHA also believed that OSHA should provide additional
guidance. The Association stated:

    AIHA supports the fundamental performance-related elements of
the proposed ergonomics standard.
    The requirement to eliminate or materially reduce ergonomic
problems to the extent feasible is a valid performance criterion.
Similarly, the ``incremental abatement process'' is performance-
based and recognizes the complex nature of ergonomic problems.
    Whether a risk-based approach is considered or not, OSHA should
add some appropriate examples of risk assessments so that employers
can utilize appropriate guidelines and have an idea of what
compliance officers will be looking for. OSHA should recommend a
variety of risk assessment approaches and describe how enforcement
of the standard will take place. [Ex. 32-133]

    The Employment Policy Foundation suggested that OSHA include a
detailed table to serve as a guide to compliance and to facilitate
verification of the Agency's cost estimates (Ex. 30-1557). The
Foundation argued that each of the major compliance elements involves
several subsidiary compliance tasks. The Employment Policy Foundation
provided a table of the tasks that it believed the standard required
and recommended that OSHA include one like it in the final rule. The
Foundation's table included not only compliance endpoint-related tasks,
but tasks related to all aspects of the standard.
    d. OSHA's response to these comments. In response to the many
commenters arguing that the proposed compliance endpoints were too
vague and failed to give adequate notice to employers, would lead to
uneven enforcement, OSHA has added objective compliance endpoints to
the final rule. The three acceptable endpoints are: (1) Control of MSD
hazards, (2) reducing MSD hazards in accordance with or to levels below
those in the hazard identification tools in Appendix D that the
employer used to conduct the job hazard analysis, and (3) controlling
hazards to the extent feasible. The Agency has explained each of these
options above.
    The second compliance endpoint, reducing MSD hazards in accordance
with or to levels below those in the hazard identification tools in
Appendix D, provides objective criteria to help employers attain an
endpoint. In Appendix D-2, OSHA is providing a chart outlining
reasonably objective measures of acceptable levels of ergonomic risk
factors for VDT operations. In Appendix D-1, OSHA is referencing
existing tools that employers are currently using to identify and
control ergonomic risk factors. OSHA believes that these tools will
provide employers with a bright line method against which they can
judge whether their compliance efforts meet the final standard's
compliance endpoint.
    The employer also has the option ``to 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.''
OSHA is providing sufficient guidance, in the preamble, appendices to
the standard, and compliance assistance materials, to help employers
understand and follow this compliance endpoint. The employer will have
to use some judgment and will need to be knowledgeable about the
relationship between risk factors and the different types of MSDs when
using this endpoint. Many rulemaking participants presented examples of
measures they have used to adequately control

[[Page 68352]]

ergonomics hazards (see, e.g., Exs. 32-274, 500-6, 500-12, 500-50; Tr.
8557, 8579, 11533, 12564, 14972). They clearly understood what needed
to be done to control the hazards and where to find the tools to
accomplish that goal.
    The extensive scientific basis for OSHA's standard is discussed in
the Health Effects and Risk Assessment sections of this preamble.
However, it is not necessary for an employer to have a complete grasp
of ergonomics science in order to comply with the final rule. Many
witnesses testified that they had little or no difficulty in addressing
jobs successfully (See, e.g., Ex. 32-274; Tr. 11532, 12461, 14708,
14836, 15046), and OSHA has given employers extensive flexibility in
addressing these hazards, together with many tools and models to use.
In addition, many problems and solutions are readily apparent after
observing a job and talking with employee. The availability of
professionally-developed tools and the compliance assistance tools
being provided by the Agency will also help employers select
appropriate control measures to reduce MSD risk factors sufficiently.
These risk reductions will lead to a corresponding reduction in the
incidence and severity of MSDs at the workplace.
    With respect to Mayville Engineering Company's and the National
Coalition on Ergonomics' comments that efforts to control MSD may
create other MSD hazards and lead to more injuries, OSHA notes that it
is possible for certain interventions to increase some risk factors at
the expense of the ones an employer is trying to control. However, it
does not automatically--or normally--follow that decreasing the
duration, frequency, or magnitude of one risk factor will increase
another. If that were the case, ergonomic intervention studies, such as
those depicted in the Risk Assessment section of the preamble, would be
very infrequent, rather than the norm for those employers making a good
faith effort at addressing these hazards. It should also be noted that
in one of the cases cited by the Coalition, the employer saw an overall
decrease in the number of MSDs from the control measures, and further
measures were taken to lower the risk factors causing the new MSDs (Tr.
17822 \11\). In another case, a company representative testified that
the company ``put in place a wide variety of effective controls'' (Tr.
14706).
---------------------------------------------------------------------------

    \11\ With respect to the initial ergonomic interventions taken
at the 9-1-1 center, Mr. James August of the American Federation of
State, County and Municipal Employees testified: ``This intervention
drastically reduced the injuries. It did not create more injuries *
* *. [F]rom the entire work force of very high injury rates,
virtually all of the carpal tunnel and wrist injuries were
eliminated.'' (Tr. 17822)
    With respect to the follow-up on the few new MSDs that
developed, Mr. August stated:
    [T]here were a couple of employees where there were some
shoulder problems that started to surface early on when the
intervention was made * * *. But the same analysis that was done to
identify the original problem was used to quickly remedy the
resulting problem from the intervention.
    So it was not a matter of having to junk the whole system that
was put in and start from scratch. This was a refinement which is
what all of us involved in the field of ergonomics do on a
continuous basis. [Tr. 17823]
---------------------------------------------------------------------------

    Thus, OSHA has concluded that the final rule's endpoint is
scientifically sound and will help reduce the number and severity of
MSDs in the workplace.
    OSHA agrees with commenters, like the National Coalition on
Ergonomics, the AFL-CIO, and the American Society of Safety Engineers
(Tr. 3498, 7210, 11616), who stated that enforcement of the final
ergonomics standard will necessitate extensive training of the Agency's
compliance staff. OSHA compliance officers will need to be educated in
the requirements of the standard, signs and symptoms of MSDs, ergonomic
risk factors, and appropriate control measures, among other things, so
that the Agency can enforce the standard in a uniform and reasonable
manner. Such training, based on the final standard and on the
compliance guidelines contained in this preamble and the appendices to
the final rule, is currently being developed and will be provided
before the compliance deadlines in the standard.
2. Comments on Whether the Proposed Compliance Endpoint Would Illegally
Delegate Rulemaking Responsibility
    a. Comments that the proposed rule would shift the burden of
determining the compliance endpoint to employers. Some rulemaking
participants objected that the vagueness inherent in the proposed
language shifted much of the burden placed by the OSH Act on OSHA to
employers (see, e.g., Exs. 30-1722; 30-3956, 35-106; Tr. 4110, 15648-
15649). The U.S. Chamber of Commerce argued that the proposal left to
employers the determination of the safe exposure level and the
appropriate controls (Ex. 30-1722). Even though it recognized that the
proposed standard properly allowed the employer flexibility, the
Chamber stated that the proposal went too far:

    Under the Proposed Rule, it is up to the employer to do the
Secretary's job of setting a standard that ``most adequately
assures, to the extent feasible, * * * that no employee will suffer
material impairment of health or functional capacity,'' 29 U.S.C.
Sec. 655(b)(5), from exposure to perceived ergonomic hazards. It is
the employer that must determine when an employee is at risk from
hazards that are ``reasonably likely to cause or contribute to
MSD[s].'' Proposed Secs. 1910.917, 1910.944, 64 Fed. Reg. at 65832.
65864. And it is up to the employer to determine any combination''
controls either to eliminate the hazards or to at least reduce them
``to the extent feasible.'' Proposed Secs. 1910.917, 1910.920(a), 64
Fed. Reg. at 65803, 65828. While the Preamble contends that [t]here
are many qualitative and quantitative ways to determine the
magnitude of exposure,'' * * * the Proposed Rule fails to set
objective levels at which an employer would be required to act.
Moreover, the Proposed Rule fails to identify specific measures that
an employer must implement to control these supposed hazards. The
Act requires the Secretary to make these decisions * * * which the
Secretary concedes are impossible to make * * * and not simply to
foist that obligation on the regulated community under threat of
considerable civil penalties and compliance costs. [Ex. 30-1722]

The National Coalition on Ergonomics made a similar point:

    The proposed standard is so vague and ambiguous that arguably,
through its adoption, OSHA will have shifted the burden of
identifying the hazard (which is clearly OSHA's duty) and the
appropriate response to the hazard (which is also clearly OSHA's
duty) to employers. At the same time, the proposed standard fails to
clearly state or place meaningful boundaries on what may be required
by enforcement personnel to such [a] degree that, if adopted, the
standard would represent an unconstitutional delegation of authority
from Congress to OSHA. [Ex. 30-3956]

    OSHA believes that the final standard is sufficiently clear to
inform employers of their obligations, and therefore does not place
impossible burdens on employers. The final rule gives employers
options. Employers may, but are not required, to use the objective
criteria in Appendix D to determine the hazard control level. The rule
also gives employers the flexibility to use alternate performance-based
measures.
    b. Comments that the proposed rule would shift the burden of
determining feasibility and compliance endpoints to OSHA compliance
staff. The American Iron and Steel Institute (AISI) stated that the
proposed standard improperly delegated rulemaking authority to OSHA's
compliance staff (Ex. 500-223). AISI contended that the proposed rule
was equivalent to requiring each employer to issue an unlimited number
of blank checks for ergonomic control measures and allow OSHA to fill
in the amounts. The Institute argued: ``The mere possibility that the
proposed standard is written in such a way as to permit OSHA to adopt *
* * an unreasonable and impermissible

[[Page 68353]]

enforcement strategy, contrary to applicable Constitutional and
statutory requirements, leads to the unavoidable conclusion that the
proposed standard is fatally defective and should be withdrawn. [Ex.
500-223]''
    As noted in the discussion of the previous issue, OSHA has given
employers sufficient guidance so that they can determine, before an
inspection occurs, whether or not they are in compliance with the rule.
In fact, if an employer reduces MSD hazards in accordance with or to
levels below those in the hazard identification tools in Appendix D (or
the more stringent Basic Screening Tool), there is no doubt that an
employer is complying with the final rule's compliance endpoint. OSHA
compliance staff will therefore have no difficulty determining whether
an employer is complying with Appendix D. The remaining endpoints,
controlling MSD hazards and feasibility, give added flexibility to
those employers who believe that they can control MSD hazards by means
other than the endpoints in Appendix D or who cannot feasibly reach
those levels. Consequently, the final rule does not improperly delegate
rulemaking authority to OSHA compliance staff.
3. Comments on Whether the Proposed Compliance Endpoint Would Force
Employers To Go Too Far in Controlling MSD Hazards
    a. Comments that the proposed standard would force employers into a
never-ending circle of hazard control improvements. Some rulemaking
participants were concerned that employers would face a never-ending
circle of hazard control improvements (see, e.g., Exs. 30-1722, 30-
3956; Tr. 3171). For example, the National Coalition on Ergonomics
stated that as long as ergonomic complaints \12\ continued, employers
would need to go further and further in the incremental abatement
process (Ex. 30-3956). In addition, the Coalition asserted that, except
where the employer can show the problem is unique to an individual
employee, the employer would be obligated to implement corrective
action not only for the complaining employee but for every employee
doing the same job or another job involving the same or similar work
activities. The Forum for a Responsible Ergonomics Standard went
further, arguing that this portion of the standard was infeasible:
---------------------------------------------------------------------------

    \12\ As noted elsewhere in this preamble, the Coalition has
mischaracterized the proposal's use of the term ``covered MSD'' as
``complaints.''

    OSHA's proposal is infeasible, however, because it requires an
undefined ``material reduction'' in MSDs, despite the fact that no
technology, work practice, or other type of control exists that will
ensure such reductions. Any mandatory standard must take into
account the fact that numerous controls may be available and,
perhaps, effective to some degree, but that they cannot ensure any
rate of success in reducing MSD injuries or hazard factors.
Employers simply will not be able to guarantee compliance with the
standard, no matter what efforts they make to adhere to OSHA's
---------------------------------------------------------------------------
proposed program. [Ex. 30-3845]

    The American Iron and Steel Institute argued that the standard
would necessitate more and more controls as employees deconditioned by
an increasingly sedentary workplace would have less capacity to
tolerate demanding physical activity (Ex. 30-3951, 32-206).
    Under questioning at the hearing, Mr. Thomas Durbin of PPG
Industries was concerned that an employer following the incremental
abatement process would need to continue to apply control measures even
after all workplace ergonomic stress factors were eliminated as long as
MSDs continue to occur (Tr. 3171).
    These comments are based on the false premise that an employer
would not be finished applying ergonomic control measures until all
MSDs disappear from the workplace. OSHA has drafted the final
ergonomics standard to make it clear that this is not the case. The
goal of the final rule is the reduction in workplace MSD hazards, that
is the reduction in the frequency, magnitude, or duration of the risk
factors causing MSDs in problem jobs. When an employer controls these
risk factors to a level meeting one of the compliance endpoints given
in paragraphs (k)(1)(i) through (k)(1)(iii), the employer does not have
to institute further controls even if MSDs continue to occur.
Consequently, OSHA has concluded that the final compliance endpoints
will not force employers into a never-ending circle of hazard control
improvements.
    b. Comments that the proposed standard forces employers to
experiment with control measures until they find one that works. Some
rulemaking participants objected that the incremental abatement process
would require employers to experiment with hazard control technologies
of uncertain efficacy until the employer cannot afford to implement
additional controls (see, e.g., Exs. 30-296, 30-402, 30-1722, 30-2134,
30-4185; Tr. 4906, 5645). For example, the Chamber (Ex. 30-1722) argued
that OSHA has left to employers what the Agency cannot do itself, that
is, determine what controls will reduce significant risk to employees:

    In sum, it is plain that the Agency is unable to make the
difficult policy choices that Section 6(b)(5) places squarely in its
hands, and that instead OSHA has chosen to defer these choices to
the regulated community. The only justification that the Agency
proffers for this flawed approach is that OSHA simply cannot
determine broad standards that would be appropriate for the wide
variety of covered industries and jobs. However, OSHA has fared no
better in assessing causation and appropriate abatement when dealing
with individual workplaces and specific jobs in enforcement
proceedings. Thus, as noted above, OSHA has lost on one or both of
those grounds in every ergonomics case it has litigated on the
merits * * *. If, as these cases show, OSHA cannot determine what
causes musculoskeletal complaints in a particular job-and how to
abate them properly, there is no reason to think that employers will
fare any better. [Ex. 30-1722]

    The National Coalition on Ergonomics detailed this argument in
their post-hearing submission (Ex. 500-197). The Coalition contended
that ergonomics professionals are unable to articulate effective
solutions to ergonomic problems in other than vague generalities,
leaving employers little choice but to engage in trial and error
experimentation. Because its review of the hearing transcript could not
identify a single witness who was able to identify a particular
ergonomic intervention that is sufficient to satisfy the rule, the
Coalition questioned how well employers would be able to choose
controls that would bring them into compliance.
    In its post-hearing submission, Federal Express (FedEx) gave an
example purporting to show how the company would be forced into
experiments to try to reduce ergonomic risk factors further (Ex. 32-
208). Federal Express noted that the existing workspace for package
handlers is optimized so that a single employee reaches as short a
distance as possible given the design of the conveyors, trucks, and
other equipment. FedEx indicated that redesigning the space to
accommodate a second employee would actually increase the distance
packages are handled. The company argued that trading one risk factor
for another, as such a redesign would cause, would have an
unpredictable effect on the number of MSDs for that job.
    On the other hand, Mr. Sittichoke Huckuntod, testifying on behalf
of Levi Strauss and Company, acknowledged that industrial safety design
is a system of trial and error by its very nature (Tr. 14747). The
Forum for a Responsible Ergonomics Standard noted that addressing MSD
hazards is an iterative process, often requiring significant trial

[[Page 68354]]

and error before improvements are realized (Ex. 30-3845).
    OSHA acknowledges that fully solving ergonomics problems is not
always straightforward. Some employers who have little or no expertise
in ergonomics will indeed need to undergo some trial and error in their
hazard control efforts. As noted by Ms. Sharon Murray, the former
director of Rochester Office of Emergency Communications (a 9-1-1 call
center), employees might not use new equipment intended to reduce risk
factors in the manner anticipated by the employer (Tr. 17819). For
example, when an employer institutes a control measure designed to
reduce awkward wrist postures, it might increase long reaches for some
employees. In Ms. Murray's case, the unanticipated hazard was a
relatively simple problem to resolve (Tr. 17823).
    The Agency does not believe that this trial and error is unique to
ergonomic hazards. As Mr. Huckuntod acknowledged, industrial safety
design is a system of trial and error by its very nature (Tr. 14747). A
new ventilation system, for example, might not work as it is designed
to, and the employer might have to modify it after its initial
installation.
    OSHA has removed the proposal's incremental abatement option and
believes that employers will be able to meet the final rule's
compliance endpoints with a minimum of experimentation. As the AFL-CIO
(Ex. 500-218) noted, ``Several experts, including David Alexander (Tr.
2518, 2716), David Caple (Tr. 2716), and Dennis Mitchell (Tr. 2530),
testified that in 80-85 percent of cases, ergonomic problems can be
solved with one intervention.'' With the compliance assistance tools
provided by the Agency, even small employers should be able to reduce
MSD risk factors to acceptable levels with a minimum of
experimentation. For these reasons, OSHA concludes that the final rule
will not lead to undue experimentation by employers.
    c. Comments that the proposed standard places no limit on how far
an employer must go in controlling MSD hazards. Some rulemaking
participants objected to any compliance endpoint that required an
employer to eliminate MSD hazards from the workplace because such an
endpoint places no limits on how far an employer must go in controlling
MSD hazards (see, e.g., Exs. 30-2208, 30-3765, 30-3956, 30-4185). For
example, Dow Chemical Company noted that there is no such thing as zero
risk and that this approach was inconsistent with OSHA's standards on
toxic chemicals, which set exposure levels that entail some residual
risk to employees (Ex. 30-3765). The National Coalition on Ergonomics
also argued that the open-ended requirement to use all feasible control
methods until the risk of an MSD reaches zero conflicts with well-
established case law to the contrary (Ex. 30-3956). The Center for
Office Technology also believed that OSHA is obligated to set a
threshold above zero risk (Ex. 30-2208). Patrick Tyson of Constangy,
Brooks and Smith asserted that the proposed rule, in essence, defined
an MSD hazard as the existence of even one MSD in a 3-year period (Ex.
30-4185). Mr. Tyson contended that a rate of one OSHA recordable MSD
every 3 years does not constitute a significant risk.
    Some rulemaking participants were concerned that the standard
placed no limits on the controls that an employer would be forced to
implement (see, e.g., Exs. 30-494, 30-2208, 30-3765, 32-211, 32-234;
Tr. 10429, 10950). For example, Dow Chemical Company questioned the
extent to which employers would need to go to avoid citations (Ex. 30-
3765). Dow believed that the proposal would require employers to adopt
the latest technology regardless of cost or how great the reduction in
hazards. Mr. Gregory Watchman of Paul, Hastings, Janofsky and Walker
stated that, if MSD signs and symptoms continue to occur, even on a
sporadic basis, the employer would be forced to implement additional
abatement measures indefinitely (Ex. 32-211). Mr. Watchman reasoned
that the duty to implement additional controls would be triggered very
frequently in most workplaces because of the frequency with which
workers experience short-term discomfort, aches, and pains.
    Mr. George Page, the owner of a small industrial engineering and
ergonomics consulting firm, provided an example of why he thought the
proposal's compliance endpoints went too far (Tr. 10429). He testified
about a client who had instituted a variety of ergonomic initiatives
with good results. Mr. Page was not sure whether the employer would be
in compliance with the proposed rule.
    The American Dental Association provided a theoretical example of
how far the Association would have to go to control MSD hazards at
their headquarters:

    The ADA headquarters is located in a building that was built
more than 35 years ago. The work areas were designed and furnished
before the proliferation of modem computing activities. It would not
be cost-effective, or in some cases even possible, to retrofit them
to satisfy the proposed standard. Thus, the ADA could be required to
substantially rebuild or replace affected work areas, furnishings
and equipment in order to comply. It is difficult at this point to
determine the full scope of the ADA's compliance burden, because the
proposed standard would require the ADA to continue to implement
incremental changes to its work environment until it substantially
reduced or eliminated the incidence of covered MSDs. Because 50% of
the ADA's workforce is engaged in the same or similar work
activities, the Association would be required to implement these
changes for 200 employees simultaneously, even though only one
employee reported a problem.
    The ADA has made--and will continue to make--adjustments to
keyboards, monitors and other peripheral aspects of its work
environment, but for reasons of providing a more comfortable and
efficient workplace for its employees, not because of some highly
speculative benefit. However, there is no assurance that these
simple measures would be sufficient to achieve compliance under the
standard's incremental approach to compliance. [Ex. 32-141]

    Federal Express argued that, because of the unique nature of its
facilities, the company would see no appreciable effect from
incremental changes to its workstations (Ex. 32-208). Federal Express
further argued that only a complete redesign would accomplish anything
more than negligible improvements in the number of workplace MSDs:

    While the proposed ergonomics standard provides for incremental
changes to the work environment until ``covered MSD'' are
significantly reduced, [footnote omitted] the unique nature of the
facilities at and the corporate experience of FedEx is such that
incremental changes would have no appreciable effect upon * * *
reducing ``covered MSD,'' and only a quantum change involving
complete redesign and reconstruction of facilities may potentially
yield measurable results. Even then, it is not clear that the
changes in outcome in which OSHA is interested is the result of
these changes. The reason for the nebulous impact of incremental
change is two-fold. First, the nature of the physical facilities
which FedEx operates is such that space limitations do not allow
further design alterations, added equipment, or additional,
extraneous staffing. Second, FedEx's facilities, operational process
and equipment have all been designed and employed with the
application of ergonomic principles for the purpose of improving
productivity. As a result, incremental changes to the workplace in
the context of FedEx's facilities, which are already at or near the
frontier of automation and technical feasibility will fail to have
an appreciable impact upon the reduction rate of ``covered MSD.''
* * * * *
    To be sure, some incremental changes can be made. FedEx does not
assert an ``all or nothing'' position, wherein absolutely no space
whatsoever remains for incremental changes to be made in the
existing facilities.

[[Page 68355]]

Rather, FedEx asserts that, to effect a material reduction in work-
related ``covered MSD,'' the changes required would be quantum in
nature, so as to necessitate an entirely new facility. The space
limitation upon the existing facility will admit of some, very
limited incremental changes, but those changes would be so limited
by space, so ephemeral in nature, as to be ineffective in reducing
``covered MSD.''
    For example, the design for the existing facilities, while
tailored to the number of employees required to complete a task, is
not precise to the person with regard to every position in the sort
facility or even in the trucks or customer service stations. Rather,
one additional person can, conceivably, be added to the workforce in
some capacity in some facilities, in a manner where he or she will
not detract from the efficiency of FedEx's operations. FedEx
maintains, however, that the increase of one additional individual
is not an administrative or work practice control which will render
a material reduction of any hazard at all. In fact, the effect will
not be noticeable, except on reduced efficiency. Once the workplace
is increased significantly beyond one additional person, however,
the facilities's space limitations operate to reduce both
operational efficiency and workplace safety. [Ex. 32-208]

    Patrick Tyson of Constangy, Brooks and Smith objected to the extent
to which the proposed endpoint would require employers to go to reduce
ergonomic hazards (Ex. 30-4185). He stated:

    Having stated our objections, not to the need to implement
engineering controls, but to the point at which such controls must
be implemented, we also submit that contrary to OSHA's assertion in
the Preamble that the proposed Standard establishes ``control
endpoints'' which define when an employer is in compliance, there
are two inter-related problems with Sec. 1910.921. First, for any
manufacturing jobs in which employees perform repetitive motion
tasks for a significant part of the work day, as a practical matter,
an employer's legal duty will never be satisfied until employees are
no longer performing the manual tasks. We question whether the
Agency should promulgate a Standard with this result, even if
unintended. Secondly, although Sec. 1910.921 is apparently intended
to state that employers can be in compliance short of automating the
job functions, we believe that there is no objective measure of
compliance short of either automating the job task or function or
eliminating it. [Ex. 30-4185]

He contrasted this with the expectation of OSHA enforcement staff that
employers, under their existing general duty clause obligations, must
institute controls that lead to a reduction in the seriousness of MSDs,
not in their numbers. He also contrasted the standard's requirements
with the experience of one of his firm's clients, who had instituted an
ergonomics program and had 6-years' experience with it. This employer
had spent over $19.5 million in capital improvements to reduce lifting
hazards in six facilities and reduced the number of recordable MSD
cases, including back cases, by less than 50 percent over the last 5
years of the program (through 1999). Mr. Tyson was particularly
concerned that the standard would require this employer to institute
further controls.
    Here again, these comments are based on the false premise that an
employer would not be finished applying ergonomic control measures
until all MSDs disappear from the workplace. The final rule's
compliance endpoints do not require employers to go that far in
controlling MSD hazards. In fact, all the compliance endpoints in the
final rule contain discrete stopping points that allow an employer to
stop even if MSDs continue to occur. One of the endpoints, reducing MSD
hazards in accordance with or to levels below those in the hazard
identification tools in Appendix D, provides objective measures against
which an employer can determine whether it has fulfilled its compliance
obligations. When the employer reduces the risk factors below those
levels, he or she is finished instituting control measures. The control
of MSD hazards endpoint, although not as specific, also allows an
employer to stop even if MSDs continue to occur. That endpoint,
paragraph (k)(l)(i), requires reducing the hazard to the level where
MSDs resulting in work restrictions or medical treatment are reasonably
unlikely, not to the level of absolute safety or no MSDs. The endpoint
will not require employers to seek to eliminate all aches and pains or
symptoms of discomfort, as feared by Mr. Watchman. The required hazard
reduction is directed at MSDs that require work restriction or medical
treatment. The last endpoint is reducing MSD hazards to the extent
feasible. When the employer has reached the limits of feasibility, he
or she is in compliance regardless of whether MSDs are continuing to
occur, at least until additional controls become feasible.
    d. Comments that requiring employers to go to the limits of
feasibility is unreasonable. Some rulemaking participants were
concerned that the proposed requirement to control hazards to the
extent feasible would require employers to continually review ergonomic
research for the latest in control technology (see, e.g., Exs. 30-2208,
30-2987, 30-4607, 32-234). For example, the Center for Office
Technology argued that this requirement would be very costly as
employers would be forced to replace office furniture every time a new
desk is offered for sale. Concerned that employers would be forced to
conduct constant reviews of new technology, the American Health Care
Association recommended that OSHA provide technology and program
upgrade information (Ex. 30-2987). The Association believed that the
Agency was in a better position to determine when new and credible
research made new control measures available. Caterpillar, Inc., stated
that once ergonomic complaints cease there would be no need to review
new technology (Ex. 30-4607). Caterpillar recommended that the standard
not require the employer to assess additional controls unless a new MSD
occurs.
    Federal Express argued that, because an employee must handle every
package at some point in the delivery process, complete elimination of
human involvement cannot be achieved in its line of work (Ex. 32-208).
In addition, Federal Express believes that it has reduced manual
handling at its facilities as much as it can and, thus, is already at
the limits of technological feasibility.
    Keller and Heckman, L.L.P. believed that the proposed standard
would require employers to research and develop technology to meet the
proposal's compliance endpoint (Ex. 500-221). The law firm argued that
the approach taken by the proposal was legally indistinguishable from
the research and development requirement that the Third Circuit
invalidated in American Iron & Steel Institute v. OSHA, 577 F.2d 825,
838 (3rd Cir. 1978). In that case, the Court held:

    29 U.S.C. Sec. 665(b)(5) grants authority to the Secretary to
develop and promulgate standards dealing with toxic materials or
harmful agents ``based upon research, demonstrations, experiments,
and such other information as may be appropriate.'' Under the same
statutory provision the Secretary is directed to consider the latest
scientific data in the field. As we have construed the statute, the
Secretary can impose a standard which requires an employer to
implement technology ``looming on today's horizon,'' and is not
limited to issuing a standard solely based upon technology that is
fully developed today. Nevertheless, the statute does not permit the
Secretary to place an affirmative duty on each employer to research
and develop new technology. Moreover, the speculative nature of the
research and development provisions renders any assessment of
feasibility practically impossible. In holding that the Secretary
lacks statutory authorization to promulgate the research and
development provision, we note in passing that we need not reach
petitioners' challenge to the provision as fatally vague.
Accordingly, we hold the research and development provision of the
standard to be invalid and unenforceable.

[[Page 68356]]

[American Iron & Steel Institute v. OSHA, 577 F.2d 825, 838 (3rd
Cir. 1978) as quoted by Ex. 500-221]

    Paul, Hastings, Janofsky, and Walker LLP stated that the preamble
to the proposal indicated that the standard would be technology
forcing:

    The agency's impossibly burdensome definition of technological
feasibility would make compliance * * * virtually impossible. OSHA
asserts that a hazard control methodology is technologically
feasible even if it is not currently available.
    Thus, OSHA could issue citations and civil penalties to a small
employer for failing to implement non-existent equipment that ``can
be developed by improving existing technologies'' or that is ``on
the horizon of technological development.'' 64 FR at 65823. [Ex. 30-
3231]

    The National Solid Wastes Management Association (Ex. 32-234)
argued that OSHA's description of ``technological feasibility'' would
make compliance with the proposed endpoint virtually impossible:

    OSHA asserts that a hazard control methodology is
technologically feasible even if it is not currently available.
Thus, OSHA could issue citations and civil penalties to a small
solid waste ito a small
solid waste industry employer for failing to implement non-existent
equipment that ``can be developed by improving existing
technologies'' or that is ``on the horizon of technological
development.'' 64 FR at 65823. [Ex. 32-234]

    The American Transportation Association argued that OSHA could
conclude that the employer had not gone far enough to control hazards
even in the absence of continued MSDs (Ex. 30-4465). In support of this
argument, the Association stated, ``if MSD symptoms persist, even on an
occasional basis, an employer must continue to implement additional
measures until it has exhausted all feasible controls.''
    LPA, Inc., and others contrasted the types of controls OSHA has
required when it cited employers for failing to abate ergonomic hazards
under the general duty clause with the types of controls the Agency has
stated that it will accept under the proposed rule (see, e.g., Exs. 30-
494, 32-208). LPA argued as follows:

    Once a hazard is identified, an employer must implement
``feasible'' controls to try to eliminate it. A feasible control is
one that is already being used elsewhere in the same job, can be
adapted for the job, or ``is on the horizon of technological
development.'' [Footnote omitted] OSHA insists that the available
controls to fix hazards are usually neither complex nor costly.
Although such controls may be accomplished through physical changes
to the job, changes in work practices, or training in proper work
techniques, [Footnote omitted] the standard expresses a preference
for physically redesigning the job.
    When citing ergonomics hazards under the general duty clause,
however, OSHA has often required substantial physical changes, such
as completely redesigning an assembly line and rebuilding the cab of
a large crane. In many cases, these engineering controls favor
automation and result in lost jobs. [Ex. 30-494]

    The AFL-CIO noted that requiring employers to eliminate ergonomic
hazards or implement controls to the extent feasible was similar to the
approach OSHA uses in many other standards (Ex. 32-339). The union held
that any incremental abatement process included in the final standard
must have as its goal and endpoint the elimination of MSD hazards or
the reduction of MSD hazards to the extent feasible.
    The final rule contains an endpoint that would recognize that an
employer is in compliance when he or she has done all that is feasible
to reduce MSD hazards. This endpoint is statutorily driven. The OSH Act
does not give the Agency the authority to require controls that are not
capable of being done. This endpoint places a technological and
financial limit on how far an employer must go in controlling MSD
hazards.
    As demonstrated by its feasibility analyses described in Chapter 3
of the Economic Analysis OSHA believes that most employers will be able
to reach one of the other two endpoints (control MSD hazards or reduce
MSD hazards in accordance with or to levels below those in the hazard
identification tools in Appendix D) using existing technology at a cost
that is economically feasible. The third endpoint, control MSD hazards
to the extent feasible, is not technology-forcing in the sense feared
by some commenters. As discussed earlier, what is feasible under the
standard is determined by the limits of current technology and
knowledge, not the potential for future technology.
    Furthermore, OSHA believes that many of the comments on the
corresponding compliance endpoint in the proposal were founded on the
impression that the proposed rule would have required employers to
eliminate MSDs from the workplace subject only to the limits of
feasibility (see, e.g., Exs. 30-3231, 30-3347, 30-3750, 30-4465, 32-
211, 32-234). The language of the final rule's compliance endpoint
makes it clear that this is not the case. The feasibility compliance
endpoint in the final rule supplements the other two and ensures that
no employer is required to go beyond the limits of feasibility.
    OSHA has addressed the concerns of the American Health Care
Association that employers would be forced to continually review new
technology (Ex. 30-2987). Paragraph (k)(1)(iii) of the final rule
requires employers to assess whether additional feasible controls are
available every 3 years. This provision limits the frequency with which
an employer would need to review technology, and the assessment could
easily be done as part of the overall program evaluation. The Agency
will be providing information on available control technology on its
Web site and updating this information periodically. Employers should,
however, check other sources of information to ensure that they have
not overlooked new hazard controls that are appropriate for the MSD
hazards in their workplaces.
    The final compliance endpoint does not require employers to perform
research and development to extend the limits of technological
feasibility. As explained above, MSD control technology is feasible if
the control method is available or adaptable to the employer's specific
circumstances. Employers are not required to perform research on MSD
control methodology or develop new technology to abate the MSD hazards
in their workplaces.
    e. Comments that the proposed rule would force employers to
automate jobs out of existence. Some rulemaking participants argued
that the ergonomics standard will lead to the elimination of jobs (see,
e.g., Exs. 30-1616, 30-3845, 30-3956, 30-4185; Tr. 5701). These
commenters asserted that employers would act to reduce MSD hazards in
the workplace by automating jobs out of existence, shifting jobs
overseas, or converting full-time jobs to part-time to reduce exposure
(see, e.g., Exs. 30-3845, 30-3956). Several rulemaking participants
were concerned about the feasibility of automating certain jobs (see,
e.g., Exs. 30-2208; Tr. 18033). For example, the Center for Office
Technology stated:

    To eliminate the hazard one must automate the work environment
thus eliminating any exposure. Those are not OSHA's words but those
are the examples OSHA gives (Fed. Reg. Page 65832). And in the case
of the office, OSHA suggests that the only way an employer of office
workers has eliminated the hazard is to use a voice-activated
computer to eliminate highly repetitive motions. Here is where
OSHA's definition of feasible falls apart for the office industry.
Is it feasible to have voice recognition for computer input when for
many applications, given the state of the technology, it is neither
effective nor an adequate or available solution? Voice activation
technology has come a long way, however, this technology is not at a
point which it can be used for all

[[Page 68357]]

applications. To use a technology that is still evolving and has
limited effectiveness in some applications as an endpoint leaves
employers in a never ending cycle with no true solutions. [Ex. 30-
2208]

    OSHA does not believe that this ergonomics standard will result in
the elimination of a significant number of jobs through automation or
in the conversion of full-time jobs to part-time. Employers use
automation to promote efficiency and increase productivity, and
reduction of MSD hazards is often a byproduct. The specific concern
expressed by the Center for Office Technology is unfounded. OSHA
referred to a voice--activated computer as an example of a control that
would eliminate a repetitive motion hazard but did not mean to imply
that all computer input would henceforth need to be done using voice-
activation software. Appendix D makes clear that is not the case.
    Automation for the sole purpose of reducing MSD hazards is
typically unnecessary. Testimony by the United Auto Workers indicated
that, in one of their programs covering about 4400 employees and
involving over 1000 processes, only one problem job was fixed by
automation (Tr. 14797). In addition, Mr. David Alexander (Tr. 2564),
one of OSHA's expert witnesses with extensive experience in ergonomics,
testified that most ergonomic solutions were low cost:

    In my work, I found that about half of the projects cost less
than $500 and can be done on a standard work order without the need
for detailed justification. Perhaps that is why we do not hear about
many of these low-cost solutions. Only a third of the projects need
to cost more than $1,000. In other words, an ergonomics project is
likely to cost, two times out of three, less than $1,000 and usually
can fit within most budgets. [Tr. 2564]

These control methods do not approach the cost of automation.
Consequently, simple economics will keep most employers from automating
jobs simply to control ergonomic hazards. Mr. Alexander also stated
that for a single set of risk factors as many as five to ten different
solutions can be developed and employers should not be forced to
convert full-time jobs to part-time. If reduction of exposure time is a
control an employer selects, rotating employees among different jobs
would normally be a cost-effective alternative to the use of part-time
workers to replace full-time employees.
4. Comments on Whether the Proposed Compliance Endpoint of Eliminating
MSD Hazards Is Illusory Because MSDs Cannot Be Eliminated
    Some rulemaking participants criticized the final means of
compliance, ``eliminating MSD hazards'' (see, e.g., Exs. 30-323, 30-
1107, 30-1722, 30-3845; Tr. 8328). For example, the US Chamber of
Commerce stated that activities that the Agency characterizes as MSD
hazards are ``universal activities of life, both in and out of the
workplace, that can never be completely eliminated.'' The Chamber also
noted that certain risk factors may pose MSD hazards to some employees
but not to others due to their unique susceptibilities and prior
medical history. Thus, the Chamber concluded, ``Without knowing how an
innumerable list of confounding factors might coalesce to cause an MSD
in a given individual, neither OSHA nor an employer can ever say
whether a significant risk of harm exists and, short of eliminating the
job altogether, it will be impossible to say when all possible
ergonomic ``risks'' have been eliminated. [Ex. 30-1722]'' Other
rulemaking participants made similar arguments (see, e.g., Exs. 30-297,
30-323, 30-2208, 30-3765, 30-3845, 30-3934, 30-4185; Tr. 2960, 5342).
These commenters said that nonwork-related factors also cause MSDs and
that some MSDs will continue to occur even after employers control all
work-related hazards. For example, the Forum for a Responsible
Ergonomics Standard stated that employers cannot control the
predisposition of their employees to contract MSDs (Ex. 30-3845). The
Forum asserted that women are susceptible to carpal tunnel syndrome for
a variety of reasons, including because they have smaller wrists and
greater fluid retention. Similarly, Metz Baking Company stated: ``* * *
OSHA's proposal essentially forces companies into the pursuit of
continuous efforts to reconfigure their workplaces and methods of
operation down to a level that is without physical stressors for the
most vulnerable of its employees [Ex. 30-323].'' Some rulemaking
participants noted that the standard did not hold employees accountable
for their own behavior on and off the job (see, e.g., Exs. 30-3355, 30-
3723; Tr. 8328). For example, Mr. Perry Ozburn, the chairman of the
International Warehouse Logistics Association, recounted a case in
which his company had to pay benefits to an employee who Mr. Ozburn
believed was injured off the job (Tr. 8328).
    Mike Redman of the National Soft Drink Association argued the fact
that employees in certain jobs will experience MSDs despite the best
efforts of their employers (Tr. 2960). He reasoned that, because the
probability of an MSD occurring in such jobs is always 100 percent, the
employer will not be able to materially reduce the likelihood that an
injury will occur.
    Once again, the premise of these comments is that the proposed
standard would have required employers to eliminate MSDs from the
workplace. As noted earlier, the final rule's compliance endpoints stop
short of this and provide clearly defined goals. OSHA realizes that
employers cannot prevent all MSDs. In addition, the final rule, like
the proposal before it, includes a note that the occurrence of an MSD
is not, in and of itself, a violation of the hazard control endpoint.
5. Comments on Whether Some MSD Hazards Are Beyond the Employer's
Control
    Some rulemaking participants, particularly those representing the
ambulance service, solid waste, and moving and storage industries, were
concerned that employees were exposed to ergonomic hazards that were
out of the employer's control (see, e.g., Ex. 30-3686, 30-3845; Tr.
8140, 14957, 18030). For example, Mr. Ron Thackery, representing the
American Ambulance Association, testified that not only were the
lifting hazards faced by ambulance crews beyond the control of
employers but that there were no feasible control measures that his
industry could use to meet the compliance endpoint required by the
proposed standard (Tr. 15017).
    The final rule's compliance endpoint recognizes that some aspects
of an employer's hazard control efforts may be limited by the
availability of feasible controls. To the extent that the MSD hazards
an employee faces are completely out of the employer's control, the
final rule does not require the employer to control them. (For an
analysis of the comments on the feasibility of controls in various
jobs, see the discussion of technological feasibility in the Economic
Analysis section later in the preamble.) For example, for paramedics
responding to an automobile accident, the employer would have no
control over the weight of the accident victims or their positions at
the accident scene. These factors are highly variable and cannot be
controlled by the employer. However, there are certain administrative
and engineering controls that are available and, to the extent they can
be used, the employer is required to implement them. For

[[Page 68358]]

example, work rules (with associated training) can assure that
employees minimize the risk involved in moving accident victims.
    When work rules are used as an administrative control of MSD
hazards, the employer is obligated to institute an adequate work rule,
train employees in it, take steps to find violations, and enforce the
rule uniformly. If the employer has done those things and an employee
violates that rule without the employer's knowledge, then the employer
will not be cited for that violation (see section III.C.8.c(1) of
OSHA's Field Inspection Reference Manual, CPL 2.103.). The courts and
OSHA Review Commission do recognize a defense of unpreventable employee
misconduct. See, e.g., D.A. Collins Constr. Co. v. Secretary of Labor,
117 F.3d 691 (2nd Cir. 1997). Thus, the fears expressed by Guilford
Mills (Ex. 30-2990) and the Oregon Dental Association (Ex. 32-233) that
employers would be held responsible for unpreventable violations of
work rules by their employees is unfounded.
7. Whether the Proposed Incremental Abatement Process Endpoint is
Appropriate
    The proposed incremental abatement process (Sec. 1910.922) would
have allowed employers to test solutions in a problem job, so long as
they would result in some hazard reduction and wait and see whether an
additional MSD occurred before trying out further controls.
    This proposed provision drew substantial comment on both sides.
Many commenters objected to it as written because they believed it
would permit employers to delay implementing controls that were needed
to protect workers. The AFL-CIO recommended changing the provision to
avoid this problem.

    The AFL-CIO believes that any incremental abatement process
included in the final standard must have as its goal and endpoint
the elimination of MSD hazards or the reduction of MSD hazards to
the extent feasible. Employers can eliminate or reduce these hazards
incrementally, focusing first on the high duration, high frequency
and high intensity risk factors identified in the job analysis.
Employee reports of MSDs or symptoms can and should be used to help
set priorities for action and to help determine which jobs need
further attention, but they should not be the endpoint for when and
whether an employer has instituted sufficient controls.
    The final standard must also set a compliance deadline for
implementing all feasible controls through the incremental abatement
process. OSHA should make clear that the same compliance deadlines
for permanent controls (i.e., within three years during the startup
period and within one year thereafter) apply, regardless of the
abatement process an employer chooses to utilize. [Ex. 32-339]

    The International Brotherhood of Teamsters stated that the
incremental abatement of hazards would be acceptable within a framework
of continuous ergonomic improvement that incorporated symptom
surveillance, reaction to ergonomic complaints, active risk factor
analysis, and continuing training (Ex. 500-207). The IBT also believed,
however, that the final ergonomics standard must specify time frames
and deadlines for the incremental abatement process.
    Other rulemaking participants were also concerned about the lack of
a time limit between incremental control steps (see, e.g., Exs. 32-111,
32-210). The United Steelworkers of America suggested that OSHA provide
additional guidance to assist employers in determining how long they
may wait for an injured employee's condition to improve before
implementing additional control measures (Ex. 32-111). The United Food
and Commercial Workers International Union also recommended that the
incremental abatement process have the same endpoint as the other two
compliance options (Ex. 32-210).
    On the other hand, the Integrated Waste Services Association urged
the Agency to allow for flexibility in this regard, stating:

    The timing of the incremental abatement process will require it
to be very specific to the situation. Consequently, standardized
measures of timeliness would be ineffective and impractical. The
employer should be permitted to gauge its own unique time frame for
each and every WMSD. [Ex. 32-337]

    In its post-hearing submission (Ex. 500-218), the AFL-CIO
criticized the provision as allowing an employer to implement minimal
controls for a problem job until a new injury occurs. According to the
AFL-CIO, ``[r]equiring employers only to `significantly reduce the
likelihood that covered MSDs will occur,' and then allowing them to
avoid further intervention until another injury occurs is an
unacceptable, unprotective compliance endpoint that is totally at odds
with the language and purpose of the Act.'' The United Auto Workers
expressed similar concerns. ``The plain meaning of `incremental
abatement' is that all feasible controls will not be implemented in the
first instance. Instead, the employer is permitted to implement some
but not all feasible controls, and then wait for a second employee to
be injured before going the rest of the way.'' (Ex. 32-185).
    Other rulemaking participants supported the proposed incremental
abatement process (see, e.g., Exs. 30-434, 32-450; Tr. 14854). For
example, Ms. Barbara Fritz testified that she used an incremental
process of applying a control measure and seeing if it works in her
efforts to abate ergonomic hazards (Tr. 14854). Monsanto Company
stated:

    We agree that using an ``incremental abatement process'' is a
valid method of dealing with physical stresses. In some instances
you implement a potential solution to a problem and find that once
in place additional improvements are either necessary or possible.
It is also possible that from a budgeting standpoint you may not be
able to implement the full-scale solution until you can obtain the
necessary capital, so you implement partial solutions until capital
is available. [Ex. 30-434]

    NIOSH (Ex. 32-450) also supported the incremental abatement process
in the proposed standard:

    We agree that control of MSD hazards can be appropriately
achieved through the use of the incremental hazard abatement process
proposed in Section 1910.922, allowing employers to implement
controls in increments in order to understand which solutions work
among all potentially necessary controls, and to implement only
those controls that are necessary. We believe that it is essential
and standard practice in many existing ergonomic programs for the
routine reassessment of jobs in which initial control measures fail
to reduce the severity or occurrence of MSDs. This reassessment
should trigger implementation of additional feasible control
measures. This process also allows employers to select the best
solutions to eliminate or materially reduce the MSD hazard most
efficiently, and to periodically check for new controls capable of
further material reduction of the hazard. [Ex. 32-450]

Having considered the views expressed by the commenters, OSHA concludes
that it is not necessary to include a separate provision in the
standard on incremental abatement as the time frames for implementing
controls allow employers to follow an incremental abatement process
without a separate provision to that effect. The proposed incremental
abatement provision recognized that the most cost-effective approach to
reducing or eliminating MSD hazards is at times an incremental one.
Employers may try some basic, inexpensive controls and see how well
they work in reducing hazardous exposures before determining whether
additional controls are needed. The proposed incremental abatement
process was intended to make clear that employers are permitted to
follow such an approach. OSHA has concluded, however, that it is not
necessary to include a separate provision about

[[Page 68359]]

incremental abatement in the standard. The standard allows employers up
to 2 years (4 years initially) to control problem jobs, and these time
frames are sufficiently long to enable those employers who wish to do
so to follow an incremental abatement approach. A separate provision on
incremental abatement would therefore be redundant.
    Elimination of the incremental abatement provision also
accommodates the concern expressed by the AFL-CIO and UAW that the
provision allowed employers to implement minimal controls and wait
until additional MSDs occur before completing abatement. Under the
final standard, once an employer has identified a problem job, it must
now attain one of the compliance endpoints for all employees in that
job within the time frame set out by the standard. Thus, while the
final standard allows incremental abatement within its time frames,
once a problem job has been identified that the employer must control,
the employer's abatement obligation does not depend on the occurrence
of additional MSDs.
7. Whether the Final Ergonomics Standard Should Allow Employers to
Prioritize the Control of MSD Hazards
    Some rulemaking participants were concerned that the proposed
compliance endpoints limited the ability to prioritize the control of
MSD hazards (see, e.g., Ex. 30-3813; Tr. 3135, 14722). For example, PPG
Industries believed that the incremental abatement process outlined in
the proposal limited the employer's ability to prioritize hazards (Tr.
3135).
    Sean Cady, representing Levi Straus and Company, testified that the
proposal did not provide sufficient guidance for the employer to
prioritize jobs for the analysis and control of hazards:

    Well I would say first that we're here today to talk about our
ergonomic program and what we've learned over the last 10 years of
having a formal program in place. But one of the concerns that comes
to mind is the proposal doesn't seem to provide enough guidance on
how an employer should prioritize jobs for things like hazard
analysis and job modification and control if more than one job is
triggered at the same time. [Tr. 14722]

    The United Auto Workers believed that it is important to prioritize
jobs and hazards for control (Ex. 32-185; Tr. 8102-8104). The UAW
suggested that the employer could use tools such as the NIOSH Lifting
Equation, Snook and Ciriello Push-Pull tables, and various checklists,
to identify which job elements and risk factors are most important (Ex.
32-185). The union recommended that employers be required to abate all
risk factors classified as high priority but be allowed to abate other
MSD hazards at a later time. The UAW argued that this was the proper
way for employers to materially reduce risk factors under the
incremental abatement process.
    In its post-hearing submission, the AFL-CIO recognized that some
employers may have difficulty in meeting the proposed rule's compliance
endpoints by the deadlines contained in the proposal (Ex. 200-218). To
remedy this problem, the AFL-CIO suggested that the final ergonomics
standard allow employers an additional year to meet the compliance
endpoint if the employer:
    (1) Has conducted the job hazard analysis required by the standard,
    (2) Has identified MSD hazards,
    (3) Has consulted with employees and their designated
representatives, and
    (4) Has developed an action plan for eliminating MSD hazards.
According to the union, the action plan should prioritize the control
of MSD hazards and provide for measurable reductions in exposure to
those hazards, and the employer should be required to implement
controls in accordance with the action plan and evaluate whether the
controls have reduced exposures.
    The AFL-CIO reasoned that its recommendation, which was consistent
with other OSHA standards, would provide employers with sufficient time
to eliminate MSD hazards without unnecessarily exposing employees to
injury:

    The concept of an action plan or compliance program to set forth
the process and means by which an employer will achieve compliance
is an established practice under OSHA standards. The majority of
OSHA's health standards, including standards on lead (1910.1025),
cadmium (1910.1027), arsenic (1910.1018), and methylene dianaline
(MDA) (1910.1050) contain a requirement for the establishment and
implementation of a written compliance program.
    Similarly, a number of OSHA standards have recognized that in
some industries or some establishments it may not be possible to
achieve the control endpoint by the compliance date established for
other industries and employers. In these cases, OSHA has on occasion
included provisions to extend the compliance date for the
implementation of controls.
    Under the arsenic standard, employers who were unable to achieve
compliance with the PEL through engineering controls and work
practices by the compliance date of December 1, 1979, were required
to include in their compliance plan an analysis of the effectiveness
of controls, and were required to install engineering controls, and
institute work practice controls on the quickest schedule feasible
[1910.1018(g)(2)(ii)(F)].
    The AFL-CIO believes that the provision of a one year extension
in the abatement date accompanied by the development and
implementation of an action plan is an appropriate means to address
more complex hazards and is consistent with the practice under other
standards. We recommend that such a provision be included in the
final standard. [Ex. 500-218]

    OSHA acknowledges that some employers will have difficulty
controlling MSD hazards in all problem jobs within the deadlines that
would have been imposed by the proposed standard--permanent controls
would have had to be in place within 3 years after the effective date
initially and, if the initial compliance deadline has passed before an
MSD occurs, within 1 year of the incident. To alleviate this problem,
the final ergonomics standard gives employers an additional year to
implement permanent controls--permanent controls must be in place
within 4 years after the effective date initially and, if the initial
compliance deadline has passed before an MSD occurs, within 2 years
after the employer determines that the job meets the Action Trigger.
(These deadlines and the reasoning behind them are explained in more
detail in the summary and explanation for paragraph (x), later in this
section of the preamble.)
    OSHA is not, however, providing a prioritization requirement in the
final rule. With the extended deadlines for the implementation of
permanent controls, employers will have sufficient time to install all
controls necessary to meet the final rule's compliance endpoint.
    Employers are free to prioritize the installation of permanent
controls within the compliance deadline for MSD problem jobs. There are
many ways of assigning priorities to jobs. Priorities can be assigned
on the basis of risk, severity, cost, or other reasons. As long as all
required permanent controls are in place by the compliance deadline,
the Agency does not believe it is necessary or appropriate for the
standard to specify a prioritization schedule. Consequently, the final
rule contains no requirements on prioritization.

Paragraph (l)--What Kinds of Controls Must I Use to Reduce MSD Hazards?

    Paragraph (l) of the final rule requires the employer to use
feasible engineering, work practice, or administrative controls, or any
combination of them, to reduce MSD hazards in problem jobs. The
standard also allows employers to use personal

[[Page 68360]]

protective equipment (PPE) to supplement these controls but stipulates
that PPE may not be used alone unless other controls are not feasible.
In addition, the standard requires any PPE that is provided to be
furnished to employees at no cost.
    This paragraph of the standard is almost identical to the parallel
proposed provision, with one exception. A footnote to this paragraph in
the proposal would have prohibited the use of back belts/braces and
wrist braces/splints as PPE; this footnote has been deleted from this
paragraph of the final rule. As explained below, OSHA believes that
evidence in the record suggests that back belts, in some limited
applications, may help to reduce MSD hazards. However, back belts, like
other PPE, may not be used alone if other controls are feasible. Wrist
splints, wrist braces, and back braces, which are post-injury devices
used to speed rehabilitation, are not considered PPE for the purposes
of this standard.

Paragraph (l)(i)--Feasible Controls

    Paragraph (l)(i) of the final standard mandates the use of feasible
controls (engineering, work practice, and administrative controls) or
any combination of them to control or reduce MSD hazards in problems
jobs. This paragraph also states that engineering controls, where
feasible, are the preferred method of control. This paragraph of the
final rule is essentially unchanged from the proposal. OSHA is allowing
employers this flexibility in the choice of controls because the
Agency's experience and information in the rulemaking record indicates
that these control approaches have been effective in contributing to
reductions in the number and severity of workplace MSDs. In addition,
OSHA believes that the broad range of jobs to which the standard will
apply, and the great variation in workplace conditions covered, make
compliance flexibility essential.
    The final standard defines engineering controls as controls that
physically change the job in a way that controls or reduces MSD
hazards. Examples of engineering controls that are used to address
ergonomic hazards are workstation modifications, changes to the tools
or equipment used to do the job, facility redesigns, altering
production processes, and/or changing or modifying the materials used.
Engineering controls range from very simple to complex: from putting
blocks under a desk to raise the work surface for a taller-than-average
worker to providing a lumbar support pillow or rolled-up towel to a
video display unit (VDU) operator, to redesigning an entire facility to
enhance productivity, reduce product defects, and reduce workplace
MSDs.
    When choosing an engineering control to address a particular
ergonomic problem, employers often have many choices, depending on how
much they wish to spend, how permanent a solution they seek, how
extensive a production process change they need, and employee
acceptance and preference (see the discussion of control approaches in
the summary and explanation for paragraph (m)). For example, as MacLeod
(Ex. 26-1425) points out, an employer whose VDU operators are
experiencing neck and shoulder problems has many options available,
including the following:
     Raising the height of the monitor by putting it on phone
books, building a monitor stand, buying an adjustable monitor stand,
buying an adjustable wall-mounted monitor stand, or buying an
adjustable desk-mounted monitor stand;
     Putting the desk on blocks; or
     Providing an adjustable-height desk or workstation.
    Work practice controls involve changes in the way an employee does
the job. They are defined by the standard as changes in the way an
employee performs the physical work activities of a job that reduce
exposure to MSD hazards. Work practice controls involve procedures and
methods for safe work. Examples of work practices that reduce the
potential for exposure to ergonomic risk factors are the use of neutral
positions or postures to perform tasks (keeping wrists straight,
lifting close to the body), use of two-person lifts when mechanical
lifts are not available, and the observance of micro-breaks as
necessary to minimize muscle fatigue. In the context of ergonomic
programs, work practice controls are essential, both because they
reduce ergonomic stressors in their own right and because they are
critical if engineering controls are to work effectively. For example,
workers need to be trained to use a power grip rather than a trigger
grip if a new tool is to be successful, and they need to know how to
adjust an ergonomically designed chair properly if it is to
substantially reduce the risk of neck disorders, shoulder tendinitis,
or another type of MSD. Work practices, like learning to vary job
activities during the day (e.g., moving from filing to sorting mail to
using the computer and back again) can often reduce the magnitude and
duration of exposure to the relevant risk factor sufficiently to make
MSDs unlikely. To be effective, the culture at the workplace and
supervisory support and reinforcement are necessary to ensure that safe
work practices are routinely observed.
    Administrative controls are work practices and policies implemented
by the employer that are designed to reduce the magnitude, duration,
and/or frequency of employee exposure to risk factors by changing the
way work is assigned or scheduled. Examples of administrative controls
that are used in the ergonomics context are employee rotation, job
enlargement, and employer-initiated changes in the pace of work.
    Administrative controls have been effective in addressing MSD
hazards in a number of cases. For example, one case study cited in the
Benefits chapter (Chapter IV of the Final Economic Analysis) describes
a lift team approach that has been effective in reducing work-related
back injuries among nursing personnel in a long-term care facility for
the elderly (Ex. 26-1091). The table of ergonomic program and
intervention case studies in Section VI shows dozens of examples of the
successful use of administrative controls, either alone or in
combination with other controls.
    However, administrative controls must be used carefully if they are
to provide effective protection to employees. A well-known ergonomics
book, MacLeod's ``The Ergonomic Edge,'' cautions:

    * * * job rotation is only beneficial if the tasks involve
different muscle-tendon groups or if the workers are rotated to a
rest cycle * * *. Furthermore, job rotation alone does not change
the risk factors present in a facility. Although job rotation may
have beneficial effects, engineering changes should remain the goal
of the ergonomics program (Ex. 26-1425).

    OSHA agrees, and paragraph (l)(1) notes, that engineering controls
are the preferred method of controlling MSD hazards in cases where
these controls are feasible. In contrast to administrative and work
practice controls or personal protective equipment (PPE), which
traditionally have occupied lower tiers of the hierarchy, engineering
controls fix the problem once and for all.
    Many commenters agreed that engineering controls are generally
superior to other controls, i.e., administrative controls, work
practices, or personal protective equipment (see, e.g., Exs. 26-1487,
26-1428, 26-1424, 26-2; 26-1426, 26-1425, 26-1408; and 26-3). For
example, a recent ergonomics text states:

    Ergonomic hazards can be effectively eliminated by introducing
engineering

[[Continued on page 68361]]


[[pp. 68361-68410]] Ergonomics Program

[[Continued from page 68310]]

[[Page 68361]]

controls and applying ergonomic principles when developing
workstations, tools, or jobs * * * only engineering controls
eliminate the workplace hazards. Other strategies [work practices,
administrative controls] only minimize the risk of injury (Ex. 26-
1408).

    However, a number of commenters mistakenly understood OSHA's
statement in the proposal about the preferred status of engineering
controls. These commenters understood this statement to mean that
administrative or work practice controls could not be used in lieu of
engineering controls. This was not OSHA's intent, nor is the inclusion
of this statement in the final rule to be interpreted that way. In the
final rule, as in the proposal, OSHA is permitting any combination of
controls (except PPE) to be used to control MSDs, either alone or in
combination. OSHA agrees, as these parties (see, e.g., Exs. 30-3344,
30-4628) argued, that in many cases, the use of administrative or work
practice controls alone may eliminate the hazard and thus obviate the
need for more expensive engineering controls. For example, the Milliken
Company stated:

    The authorization in [proposed] section 1910.920(a) for
employers to use any combination of engineering, administrative, and
work practice controls is effectively rendered meaningless with the
statement that follows, which specifies that engineering controls
are the preferred method for eliminating or materially reducing MSD
hazards. This provides too much latitude for OSHA area directors to
issue citations when an employer has used administrative and work
practice controls rather than engineering controls (Ex. 30-3344).

Other commenters who misinterpreted the proposed statement about the
preference for engineering controls were concerned that this preference
could greatly increase the costs of compliance if OSHA enforced this
provision. For example, the Rubber Manufacturers Association emphasized
that `` * * * the hierarchy placing engineering controls over other
alternatives * * * restricts employers' discretion to choose less
expensive, non-engineered alternatives'' (Ex. 500-95). Other groups,
such as Pharmteck (Ex. 30-4122) and Southern States Cooperative Inc.
(Ex. 30-394), argued that `` * * * a vast percentage of workplace
injuries result not from exposure that might be limited through
engineering solutions, but from problematic employee behavior and
safety related decisions.'' Issues of feasibility were pointed to by
several commenters (see, e.g., Exs. 30-3368, 30-4264) such as the
National Soft Drink Association, which stated:

    Although the employer is allowed to use any combination of
controls, OSHA makes clear that engineering controls are preferred,
where feasible. Lacking any definition or guidance of the term
``feasible'' complicates understanding or complying with OSHA's
intent in this regard. Such ambiguity will undoubtedly lead to
disagreements between employers and OSHA compliance personnel (Ex.
30-3368).

    In response, OSHA notes that the hierarchy of controls has been an
established industrial hygiene practice since the 1950s and has been a
longstanding OSHA policy, as evidenced by many of the Agency's
standards (e.g., asbestos, Sec. 1910.1001; benzene, Sec. 1910.1047;
cadmium, Sec. 1910.1027; and methylene chloride, Sec. 1910.1052). As
was stated in the proposal, ergonomists endorse the hierarchy of
controls because they believe that control technologies should be
selected based on their reliability and efficacy in controlling or
reducing the workplace hazard (exposure to risk factors) giving rise to
the MSD. OSHA does not agree that ``problematic employee behavior'' is
the cause of occupational injuries and illnesses, nor that feasibility
will be a concern with this standard, in large part because the
standard allows such flexibility in control approach and requires only
that employers implement feasible controls.
    Many groups (see, e.g., Exs. 32-21-1-2-19, 20-69, 20-22, 30-4538,
30-3683) commenting on the proposal strongly supported the hierarchy of
controls. For example, the American Association of Safety Engineers
stated:

    We agree that engineering controls should be the first option in
alleviating WMSDs. While this type of approach could be the most
expensive from the short-term perspective, our experience is that
engineering controls are the most efficient/effective approach in
the long-term (Ex. 32-21-1-2-19).

OSHA agrees that the use of engineering controls is the most effective
way of controlling the MSD hazards. However, as discussed above, this
standard permits employers to use any combination of controls, except
PPE alone, to address MSD hazards in their workplace.

Paragraph (l)(2)--Personal Protective Equipment

    Paragraph (l)(2) of the final standard permits employers to use
personal protective equipment (PPE) to supplement engineering, work
practice, and administrative controls. However, personal protective
equipment may not be used alone, i.e., as the sole means of employee
protection, unless no other controls are feasible. In addition, any PPE
that is provided must be made available to employees at no cost.
    PPE is equipment that is worn by the employee and reduces exposure
to risk factors and MSD hazards in the job. Examples are palm pads and
knee pads to reduce contact stress, vibration-attenuation gloves, and
gloves worn to protect against cold temperatures.
    The hierarchy of controls, which, as discussed above, is widely
endorsed by ergonomists, occupational safety and health specialists,
and health care professionals, accords last place to PPE because:
     Its efficacy in practice depends on human behavior (the
manager's, supervisor's and worker's),
     Studies have shown that the effectiveness of PPE is highly
variable and inconsistent from one worker to the next,
     The protection provided cannot be measured reliably,
     PPE must be maintained and replaced frequently to maintain
its effectiveness,
     It is burdensome for employees to wear, because it
decreases mobility and is often uncomfortable,
     It may pose hazards of its own (e.g., the use of
vibration-reduction gloves may also force workers to increase their
grip strength).
    One author (Ex. 26-1408) notes that: `` * * * in most cases, the
use of PPE focuses attention upon worker responses and not the causes
of ergonomic hazards.* * * PPE does not eliminate ergonomic hazards * *
* [and] must be considered as the last line of defense against
ergonomic hazard exposure.'' Thus, although the final standard permits
PPE to be used as a supplemental control, it cannot be relied on as a
permanent solution to MSD hazards unless other feasible controls are
unavailable.
    In the proposal, OSHA included a note to the proposed section on
the hierarchy of controls that stated that back belts/braces and wrist
braces/splints were not to be considered PPE for purposes of the
standard. This note was added to alert employers to the fact that back
belts and wrist braces, which are widely used in U.S. workplaces, were
not to be considered a control to reduce ergonomic hazards under the
proposed standard. OSHA pointed out that these devices were being
marketed as equipment that could prevent MSDs, although the evidence to
support these claims was inconclusive.
    A number of commenters and studies in the record (see, e.g., 32-30-
1-15, 32-30-1-6, 32-30-1-7, 32-30-1-29, 32-30-1-14) suggest that OSHA
should allow the use of back belts as PPE on the grounds that these
devices have been shown to reduce workplace injuries. For

[[Page 68362]]

example, Mr. Jeffrey Whitaker commented that:

    As safety professionals we realize that back supports alone are
not a solution and we apply the hierarchy of controls in our work
with our customers on a daily basis. We recommend engineering and
work practice controls be used whenever possible but we all know of
hundreds of workers' whose jobs will never or cannot be changed.
These workers need at least a modicum of support when doing their
jobs. Back supports are used in these situations to provide a basic
line of defense for vulnerable workers (Ex. 30-2724).

Commenters from Chase Ergonomics were of the same opinion:

    Back supports should be recognized as an acceptable component of
an overall back safety program under the hierarchy of controls. As
with any PPE, back supports are not the first intervention option.
In many jobs, however, neither engineering controls nor work
practice or administrative controls are feasible or practicable. In
these circumstances, OSHA's PPE standard allows employers to provide
workers with protective equipment that is appropriate for the
hazards present * * * OSHA should clarify that employers may use
back supports as a supplement to their overall back injury
prevention program (Ex. 30-3857).

However, other organizations and commenters cautioned against the use
of back belts as PPE. For example, in a 1994 report reviewing the
available scientific literature on the use of back belts, NIOSH
expressed concern that wearing a belt may alter workers' perceptions of
their capacity to lift heavy workloads (i.e., belt wearing may foster
an increased sense of security, which may not be warranted or
substantiated) (Ex. 15-16). NIOSH does not recommend the use of back
belts as PPE, and neither do a number of professional societies (Exs.
15-15, 15-17, 15-33, and 500-41-99).
    However, in response to comments submitted to the record regarding
back belts, OSHA has reviewed the available scientific literature
addressing the efficacy of back belts in reducing MSDs. OSHA has
conducted an extensive review of the evidence in the record on the
effectiveness of back belts in industrial use. The evidence is mixed.
Several studies (see, e.g., Exs. 32-30-1-21, 32-30-1-22, 32-30-1-2, 32-
30-1-8, 33-30-1-16, 32-31-1-23) of back belt use showed negative
results. For example, a 1996 study by Rafacz and McGill (Ex. 32-30-1-
21) that investigated the effectiveness of back belts in 20 healthy
male subjects found that belt wearing increased diastolic blood
pressure during every task performed by the study subjects. The authors
concluded that ``wearing an abdominal belt may put undue strain on the
cardiovascular system and * * * that screening for cardiovascular
compromise should be conducted before occupational belt-wearing.''
Another study (Alexander et al. 1995) that evaluated belt use in
nursing, dietary, and environmental services workers found no
significant differences in the number of self-reported back injuries.
The authors concluded that ``This finding supports research [showing]
that universal prescription of back belts did not decrease the number
of back injuries and that there [is] no support for uninjured workers
wearing back belts to reduce risk of injury.'' (Ex. 32-30-1-2).
    A number of back belt studies in the literature report inconclusive
results (see, e.g., Exs. 32-30-1-22, 32-30-1-8, 32-30-1-24, 32-30-1-
12). For example, a study by Kraus et al.1996 (Ex. 32-30-1-12) reported
a lower acute back injury rate among belt users than non-users, but
cautioned that a number of confounders, such as the inability to
evaluate injury status, job lifting intensity, or length of employment
``may be important confounders or effect modifiers that delimit the
potential effect of back supports.''
    However, a number of recent studies (see, e.g., Exs. 32-30-1-25,
32-30-1-6, 32-30-1-7, 32-30-1-14, 32-30-1-19) contain limited evidence
that back belt use can, in certain circumstances, provide some
protection to workers. For example, a 1998 study evaluated trunk
stiffening during flexion and lateral bending and concluded that
``increased spine stability may provide greater protection against
injury following unexpected or sudden loading'' (Ex. 32-30-1-6). A 1995
review of the literature on back belt effectiveness (Ex. 32-30-1-7)
concluded: ``Based on our assessment of the * * * studies reviewed in
this paper, a major finding is that back supports designed solely for
specific purposes could be biomechanically, physiologically, and
psychophysically effective in relieving the loads on the lumbar spine
for employees engaged in many industrial operations.'' A study by one
of OSHA's expert witnesses, Dr. Stephen Lavender (Ex. 32-30-1-14) that
evaluated the effect of lifting belts, foot movement, and lift
asymmetry on trunk motions, concluded that the lateral bending and
twisting motions of the torso are controlled with belt use.
    OSHA's review of the voluminous record on the back belt issue shows
that back belts may have protective effects in certain industrial
settings, such as sudden unexpected loading of the spine (Ex. 32-30-1-
14). OSHA is aware that several of these studies had small sample sizes
(e.g., 10 subjects) (Ex. 32-30-1-6), lacked control groups, and were of
short duration. Nevertheless, the Agency is persuaded that the evidence
for the effectiveness of back belts, although limited, exceeds that
available for other types of equipment that workers wear that is
classified as PPE (e.g., palms pads, knee pads). OSHA has therefore
decided not to prohibit the classification of back belts as PPE for the
purposes of this standard. Accordingly, the note to that effect
contained in the proposal does not appear in the final rule. Permitting
back belts to be used as PPE means that employers will be required to
provide them to their workers, if they choose to do so, at no cost to
employees. Further, as with any PPE, back belts used in this manner are
subject to OSHA's standard for PPE (29 CFR 1910.132).
    OSHA does not believe that the record in this rulemaking does not
support permitting other devices, such as back braces and wrist braces
or splints, which are generally prescribed as part of a treatment
regimen, to be considered PPE. These devices are generally prescribed
for individuals who have already been injured, and are not intended to
be used in the prevention of injuries. In some cases, they may even
exacerbate an existing MSD hazard. As explained by the AIHA, wrist
splints and braces may present serious problems:

    Wrist splints or braces used to keep the wrist straight during
work are not recommended, unless prescribed by a physician for
rehabilitation. * * * using a splint to achieve the same end may
cause more harm than good since the work orientation may require
workers to bend their wrists. If workers are wearing wrist splints,
they may have to use more force to work against the brace. This is
not only inefficient, it may actually increase the pressure in the
carpal tunnel area, causing more damage to the hand and wrist.''
(Ex. 26-1424).

Because these devices are used for treatment after an injury has
occurred and because they are not intended to reduce exposure, OSHA
finds that it would be inappropriate to consider back braces or wrist
braces/splints as PPE under the final standard.

Paragraph (m)--What Steps Must I Take to Reduce MSD Hazards?

    Paragraph (m) of the final rule establishes the steps employers
must follow to reduce the MSD hazards in their jobs. The employer's
obligation to control these hazards is established in paragraph (k);
this paragraph (m) sets out the procedures to be followed and the
timelines to be met to achieve the necessary hazard reduction.
    The procedures in paragraph (m) are similar to those in proposed
Sec. 1910.919,

[[Page 68363]]

although they have been revised in the final rule to reflect the Action
Trigger and to state what employers must do if the controls they have
implemented are not effectively reducing MSD hazards. The steps
specified in paragraph (m) are widely recognized as basic procedures in
effective control selection and problem-solving. For example, the NIOSH
publication, Elements of Ergonomic Programs, describes a similar
process (Ex. 26-2). Paragraph (m) also sets the deadlines for the
implementation of initial and permanent controls to reduce MSD hazards.
OSHA received very few comments on the proposed control steps
provision.
    The corresponding provision in the proposal also contained a
requirement that employers identify and evaluate MSD hazards when they
changed, designed, or purchased equipment or processes in problem jobs.
The final rule contains no similar requirement.
    OSHA does not believe that a separate provision is necessary,
because the final rule includes a ``feedback'' loop between paragraph
(m)(4) of the rule and paragraphs (m)(1) and (m)(2). OSHA received only
one comment on this proposed provision (Ex. 32-300-1). This commenter
asked whether OSHA intended this provision to be similar to the
management of change provision in the Process Safety Management
standard (29 CFR 1910.119). Since this proposed provision has not been
carried forward in the final rule, the issue raised by this commenter
is moot.

Paragraph (m)(1)--Ask Employees

    This paragraph requires employers who have determined that they
have a problem job to ask the employees in the problem job, and
employee representatives, to recommend measures to reduce the MSD
hazard in the job. This provision is essentially unchanged from the
proposal, except that employee representatives are mentioned
specifically in the regulatory text, which reflects OSHA's decision to
add this language to provisions of the regulatory text where the
involvement of employee representatives is particularly important.
Several commenters (see, e.g., Exs. 32-339-1, 32-182-1) urged OSHA to
include employee representatives in this step of the hazard
identification and control process because of the contribution they
could make. OSHA agrees and has revised the text accordingly.
    Asking employees and their representatives for recommendations of
controls that will reduce MSD hazards is an effective and efficient way
of solving ergonomic problems. Many commenters (see, e.g., Exs. 3-112,
3-164, 30-3765, 30-3748, 500-137, 500-220) reported that the employees
who are doing the job are usually the best source of information on the
tasks causing the hazard and ways of solving the problem. For example,
the American Health Care Association stated:

    Employers and employees who work in the industry are in the best
possible position to identify risk factors in their workplace and to
develop prevention methods that concentrate on the significant
problems unique to their particular industry's environment (Ex. 3-
112).

In many problem jobs, employees and their representatives will be able
to pinpoint the problem quickly and to suggest easily adopted controls.
In many cases, the solution will become obvious at the job hazard
analysis stage; many problems also can be addressed with simple, off-
the-shelf controls. Examples are:
     Eliminating awkward postures (such as bending when leaning
across the workstation to reach a tool) by putting blocks under a work
bench to raise the work surface height.
     Eliminating awkward postures of the neck and reducing
stress on the back by putting packages of copy paper under a VDT
monitor to raise it or taking the VDT off the CPU to lower it.
     Reducing awkward postures of the neck by moving the light
source or removing the light bulbs that were causing glare on the VDT
monitor screen.
     Reducing force by cleaning thread from the wheels of a
cart that has been hard to push. (Many of these controls would qualify
for the Quick Fix option (see paragraph (o).)
    Some commenters (see, e.g., Tr. 63354, 9038, 12647), however, were
concerned that consulting with employees and their representatives
could lead to disagreements about the controls selected. OSHA's
experience, and comments to the record (see, e.g., Exs. 3-112, 26-5,
30-3765, 30-3748, 500-137, 500-220, 500-218), do not suggest that this
is a problem. Instead, these commenters point to the value of employee
input. OSHA expects, however, that employers will use their management
experience and judgment to resolve any disagreement that may arise. As
is the case for all OSHA standards, the employer is clearly responsible
for selecting controls and evaluating their effectiveness.
    Another commenter (Ex. 32-300-1) argued against involving employees
in the problem-solving and control identification process on the
grounds that doing so might disappoint the employees if their
suggestions were not taken. OSHA's experience suggests just the
opposite, i.e., that nothing disappoints employees more than not being
part of a process that affects their working conditions so directly.
Some employers also report that they bring their in-house resources
(ergonomics committee members, safety and health professionals,
ergonomists) into the process at this stage (see, e.g., Exs. 26-1370,
502-17).

Paragraph (m)(2)--Initial Controls

    This provision requires employers to identify and implement initial
controls (referred to as ``interim'' controls in the proposal) to
reduce MSD hazards within 90 days of the time the employer determines
that the job is a problem job. Because the final rule allows employers
to choose from engineering controls, administrative controls, work
practice controls, and--as a supplement to these controls--personal
protective equipment, OSHA believes that employers will be able to meet
this timetable, which is essential to the protection of employees in
problem jobs. OSHA anticipates that many employers, particularly those
whose jobs can be controlled with off-the-shelf controls, will simply
implement permanent controls within 90 days and be done with it.
Others, however, will develop a plan and timetable for permanent
control implementation and may need the full 4 years (2 years after the
standard has been in effect for some time) to reach the control levels
specified in paragraphs (k)(1) or (k)(2) of the final rule.
    For these employers, the implementation of initial controls will
generally mean a greater reliance on administrative controls, work
practices, and, in those situations where personal protective equipment
is effective, on PPE, in the period between the 90-day deadline in
paragraph (m)(2) and the permanent control compliance deadline in
paragraph (m)(3). OSHA recognizes that initial controls may not, in all
cases, reach the control levels required by paragraph (k)(1) or (k)(2)
for permanent controls; nevertheless, employers are required to make
good faith efforts to address problem jobs promptly to protect the
employees in them.
    OSHA expects employers to implement initial controls that will
substantially reduce employee exposure to the risk factors that are
contributing to the MSD hazard. For example, employers might provide
employees required to manually carry loads from one point to another
with a cart or a hand dolly as an initial control, or they might reduce
the weight of the object

[[Page 68364]]

being carried while waiting to install a permanent conveyor system. In
other cases, an employer might decide to implement a system of employee
rotation while waiting to install new power tools throughout the plant.
Other examples of controls employers often implement initially and then
replace with more permanent controls later are the provision of tools
with longer handles when excessive reaching is involved, anti-fatigue
mats and sit-stand stools when excessive standing is the problem, and
vibration-reduction gloves while waiting for new power tools with lower
vibration levels to be installed. By substantial reduction, OSHA means
that the initial controls must reduce the MSD hazard materially by
decreasing the magnitude, frequency or duration of the employee's
exposure to the relevant risk factors. Examples of controls that would
not meet the employer's obligations under paragraph (m)(2) would be
decreasing the weight of a package that is manually lifted from 90 to
85 pounds (because both weights substantially exceed the weight an
employee should lift alone) or rotating employees into a second job
that has the same risk factors (because this would not reduce the
magnitude or duration of exposure).
    The purpose of paragraph (m)(2) is to ensure that the employer
takes steps quickly (i.e., no more than 90 days after the job is
identified as a problem job) to reduce the exposures of at-risk
employees (i.e., those in jobs that have identified MSD hazards).
Waiting until permanent controls are installed, which may take as long
as 4 years, would leave these employees unprotected and increase the
likelihood that another MSD incident will occur. The concept of initial
controls (interim controls) is a well-established principle of worker
safety and health protection and is incorporated in many OSHA
standards, as one commenter noted (Ex. 26-1370).

Paragraph (m)(3)--Permanent Controls

    This paragraph requires employers to identify and implement
permanent controls that will achieve the hazard reductions required by
paragraphs (k)(1) and (k)(2) of the standard. This provision is
essentially unchanged from the proposal, except that it has been
revised to reflect the final rule's objective compliance endpoints and
the function of the action trigger.
    There are many ways employers can identify permanent controls in
addition to asking employees and their representatives for control
ideas. These include:
     Asking other establishments in the company how they have
solved a similar problem; many companies with OSHA corporate-wide
settlements have found this approach useful (see, e.g., Ex. 32-185-3).
     Asking the industry trade associations for suggestions
(the food retail industry, for example, worked as a group to reduce
package weights (Tr. 4948).
     Attending ergonomics conferences and trade shows.
     Talking to the company's insurance agent about solutions
that have worked for other companies.
     Reviewing equipment catalogs (one commenter reported using
this approach to identify mechanical alternatives to drum handling (Tr.
6981)).
    Several commenters stated that employers are best positioned to
choose their own sources of control information and ideas (see, e.g.,
Exs. 30-434, 30-240, 30-133, 30-3122, 30-3284, 32-300-1), and OSHA
agrees, except that employees in the problem job and their
representatives must also be involved in the process, as required by
paragraph (m)(1).
    Employers have many control strategies to choose from when
identifying permanent controls. The controls selected may be any one,
or any combination of, engineering, work practice, or administrative
controls. These controls may be supplemented by PPE, but PPE may not be
used alone unless other feasible controls are not available (see
paragraph (l) of the standard). Among the factors employers consider
when selecting controls are:
     Which control achieves the greatest reduction in employee
exposure to the MSD hazard
     Which is likely to be accepted and used by employees
     Which takes the least amount of time to implement
     Which achieves a substantial reduction in exposure at the
lowest cost.
    These criteria are included as examples only; the standard does not
require employers to use these criteria because OSHA recognizes that
employers will choose those factors to consider that are most
appropriate to their workplace. The following chart lists many controls
that may be appropriate to reduce employee exposure to the risk factors
that are responsible for MSD hazards, depending on the circumstances of
a particular workplace. This list is illustrative only; it is not
exhaustive but is provided merely to show that there are often many
different control approaches that will reduce the magnitude, duration,
or frequency of risk factor exposure.

------------------------------------------------------------------------
Ergonomic risk factors that may be
              present                       Examples of controls
------------------------------------------------------------------------
Force (Exertions).................  Use powered tools
                                    Change pinch to power grip
                                    Use longer handle
                                    Use appropriate size handle
                                    Use powered lift assist
                                    Counterbalance the weight
                                    Use lift tables
                                    Reduce the weight of the object
                                    Ensure that the center of gravity of
                                     the tool is over the hand
       is over the hand
                                    Use a fixture, clamp or jig
                                    Provide periodic tool or equipment
                                     maintenance
------------------------------------------------------------------------
Force (Manual Handling)...........  Lighten the load
                                    Use lift assist
                                    Use lift table
                                    Place package in larger containers
                                     that are then mechanically handled
                                    Use two-person lift team
                                    Rely on gravity to move the object
                                    Reduce friction when objects must be
                                     pushed or pulled
                                    Reposition object closer to the
                                     employee
                                    Provide pallet or table that can be
                                     rotated

[[Page 68365]]


                                    Provide space so that the employee
                                     can move closer to the object
                                    Reduce the size of the object
                                    Slide the object closer before
                                     lifting
                                    Place objects to be lifted above
                                     floor level
                                    Use adjustable height tables
Force (Manual Handling)...........  Store heavy objects at waist height
                                    Put handles on the object
                                    Modify the process to eliminate or
                                     reduce moves over a significant
                                     distance
                                    Convey the object (e.g., conveyor,
                                     ball casters, air)
                                    Use fork lifts, hand dollies, or
                                     carts
                                    Use appropriate wheels on carts (and
                                     maintain the wheels)
                                    Provide handles for pushing, pulling
                                     or carrying
                                    Arrange workstation so that work is
                                     done in front of the worker
                                    Use conveyors, chutes, slides, or
                                     turntables to change direction of
                                     the object
                                    Provide belt with handholds to
                                     assist in moving patients
                                    Provide gloves that assist in
                                     holding slippery objects
                                    Redesign the handling job to avoid
                                     movement over poor surfaces
                                    Use surface treated with anti-slip
                                     material or anti-skid strips
                                    Provide footwear that improves
                                     friction
------------------------------------------------------------------------
Awkward posture...................  Provide workstation adjustability
                                    Raise/lower the worker's position
                                    Raise/lower the workstation
                                    Provide better mechanical advantage,
                                     such as with a longer handle
                                    Design task for smooth movements
                                    Redesign the flow of the workplace
                                     layout
                                    Reposition object to allow for a
                                     neutral posture
                                    Train workers to use less stressful
                                     postures
                                    Provide better access to machinery
                                    Rotate pallet or work surface
                                    Allow short breaks
                                    Position work in front of the worker
                                    Use a tool to extend the reach
                                    Provide lumbar support for a seated
                                     worker
                                    Provide workstation adjustability
                                    Provide tool holders
                                    Provide a strap on the tool handle
                                     to allow the hand to relax while
                                     maintaining control
                                    Provide sit/stand workstations
                                    Rotate workers to jobs that do not
                                     involve the same posture
                                    Provide anti-fatigue mats
                                    Provide foot rests
------------------------------------------------------------------------
Repetition........................  Use power tools
                                    Distribute the work so that less
                                     time is spent at repetitious tasks
------------------------------------------------------------------------
Contact stress....................  Attach a well-designed handle to the
                                     tool
                                    Wrap or coat the handle with
                                     cushioning and non-slip material
                                    Provide a handle that does not press
                                     into the palm
                                    Wear knee pads or palm pads
                                    Use a soft mallet for hand hammering
Vibration.........................  Use low vibration tools
                                    Isolate source of vibration from the
                                     worker
                                    Maintain tools regularly
------------------------------------------------------------------------

    The final rule allows employers coming into compliance with the
standard initially to take up to 4 years, if necessary, to implement
permanent controls; this period is reduced to 2 years for employers who
identify problem jobs more than 2 years after the standard's effective
date. Several commenters (see, e.g., Exs. 32-339-1, 32-185-3, 32-210-2,
30-3815, 32-368-1) were concerned with the proposed compliance
deadlines for the implementation of controls. The final rule has
extended the permanent control deadline to 4 years from the standard's
effective date; this phase-in drops to 2 years after the standard has
been in effect for 2 years. For OSHA's responses to the record on
compliance deadlines, see the Summary and Explanation for paragraph
(x). OSHA believes that these control implementation deadlines will
provide smaller employers, and employers with more complex control
requirements, the time they need to plan for, obtain, and implement
permanent controls.

Paragraph (m)(4)--Track Progress

    Paragraph (m)(4) of the final rule requires employers to make sure
that the controls they have identified and implemented are reducing MSD
hazards and have not unintentionally created new MSD hazards. This
paragraph has been revised from the proposal to include additional
steps employers must take if they discover that their controls are not
achieving the levels required or have introduced new MSD hazards. The
proposal, in contrast, simply required employers to track their
progress but did not specify what they

[[Page 68366]]

were to do if their controls were not working as planned.
    OSHA believes that this paragraph is essential, for several
reasons. First, unless employers follow up on their control efforts,
they will not know whether they are protecting their employees and are
in compliance with paragraphs (k)(1) or (k)(2) of the rule. Second, in
establishments with many problem jobs and a job prioritization plan in
place, ascertaining the effectiveness of controls is important to
ensuring that the employer's abatement strategy is an effective one.
Third, control effectiveness is the basis of any effective program, and
thus plays a critical role in evaluating the elements of the program.
For example, an evaluation of work practice controls is an excellent
way of determining whether training in these controls has been
effective.
    This step of the control monitoring process requires employers to
consult with employees in the problem job and their representatives to
ensure that the controls have been effective in reducing the physical
difficulties employees associated with the job. The standard does not
require employers to use quantitative or qualitative measures to
evaluate control effectiveness, but many employers use such methods.
Examples of before-and-after approaches used over a longer (i.e., 6-
month) period include:
     Reductions in severity (measured as fewer days away from
work)
     Reductions in the number of symptoms reported in a
symptoms survey
     Reductions in workers' compensation costs
     Reductions in MSD incidence rates.
    Methods used in shorter-term evaluations, i.e., those conducted
within 30 days, include talking with employees and their
representatives and symptoms surveys. NIOSH (Ex. 26-2) recommends that
employers wait at least 2 to 4 weeks after control implementation to
assess the effectiveness of controls, because this period of time is
often enough to allow employees to tell whether the situation has
improved.
    OSHA believes that the process of hazard identification, control
selection, and control evaluation has been greatly facilitated by the
fact that the final rule identifies objective criteria against which
employers can measure the extent of the risk factors present and the
effectiveness of their efforts to control or reduce the hazard.
Employers are not required to use the hazard identification tools
referenced in Appendix D-1 or provided in Appendix D-2, but they are
free to do so. OSHA believes that employers will generally find that
the greater certainty that results from the appropriate use of these
tools enhances their ability to protect their employees and increase
the employer's confidence that the standard's control endpoints are
being met.

Paragraph (o)--May I Use a Quick Fix Instead of Setting up a Full
Program?

    Paragraph (o) of the final rule sets out alternative provisions
that employers may follow in lieu of setting up a full ergonomics
program. These alternative provisions are referred to as the Quick Fix
approach. The Quick Fix option allows employers to control an MSD
hazard quickly and more informally without, for example, conducting a
complete job hazard analysis, setting up a training program or a
periodic program evaluation process.
    OSHA has included a Quick Fix option in this standard to provide
compliance flexibility for those employers who have:
     Only a few isolated MSD hazards (that is, they have had
one prior MSD incident in any job in which an MSD incident is reported
after the effective date and only 2 prior MSD incidents in the
workplace during the 18 months before the new MSD incident is
reported), and
     MSD hazards that can be identified easily and addressed
quickly (that is, they can fix the job within 90 days after the MSD
incident is determined to meet the Action Trigger).
    OSHA believes that the Quick Fix option is an efficient mechanism
for providing ergonomic protection for employees, while at the same
time reducing regulatory burdens for those employers who have only a
few isolated problems.
    The proposed rule also included a Quick Fix provision, which a
number of commenters supported (e.g., Exs. 30-3813, 30-3436, 32-210-1,
30-294, OR 326, 500-218, Tr. 2134, 13642). For example, one commenter
stated, ``I think that the Quick Fix is an outstanding idea that will
reduce the burden of this standard for many companies'' (Ex. 30-3436).
Portland General Electric Company agreed:

    We believe that the Quick Fix option is extremely valuable. We
operate on a system of early reporting and effective individual case
management, to the benefit of both the employee and the company (Ex.
OR 326).

Some employers said that they had implemented types of Quick Fix
approaches in their workplaces (see, e.g., Exs. OR 326, Tr. 14715-16).
    A number of commenters maintained that the Quick Fix would not be
helpful or would not work. For instance, Integrated Waste Services
Association said: ``While the ``quick fix'' idea sounds reasonable,
quickly `fixing a problem job' is unrealistic and illusory'' (Ex. 30-
3853). Some of these commenters said the Quick Fix approach would not
reduce regulatory burdens for employers (see, e.g., Exs. 30-3853, 30-
2988, 30-3815). And the National Association of Manufacturers (Ex. 30-
3815) said that the Quick Fix ``is next to meaningless for an
establishment of any size.''
    Other commenters were more optimistic about the Quick Fix concept,
but said that changes were needed to make it more useful for employers.
Kaiser Permanente, for instance, supported the Quick Fix idea as a
``practical and cost effective idea'' in principle, but argued that the
proposed provision was too limited and too vague to be workable (Ex.
30-3934). Others said the proposed Quick Fix offered an
``inappropriately narrow opportunity'' and urged OSHA to allow more
abatement time and allow more than one Quick Fix in any one job (Ex.
30-2988, 500-145). Some commenters, however, argued that allowing more
than one Quick Fix in a job was not protective enough (see, e.g., Ex.
30-2825, 32-182-1). In addition, AFSCME opposed extending the Quick Fix
option this way because it would be ``encouraging a piecemeal and
disjointed approach to ergonomics'' (Ex. 32-182-1).
    On the other hand, some commenters were concerned that the proposed
Quick Fix was not adequately targeted to those workplaces where such an
approach would be appropriate. The AFL-CIO said:

    In our view, the quick fix provisions proposed by OSHA are more
properly suited to those workplaces where the number of jobs with
MSD hazards is limited and where there are few MSDs. In those
situations, focused efforts to identify and correct hazards quickly
may be the best solutions, and a full ergonomics program may not be
needed (Ex. 32-339-1).

    The AFL-CIO and others also identified specific high hazard
workplaces in which the Quick Fix would not be appropriate, such as
nursing homes, warehouses, automotive assembly plants, and meatpacking
and poultry processing plants (Exs. 32-339-1).
    OSHA has made a number of changes to the Quick Fix provision in
this final standard to address these concerns. These changes include:
     Focusing the Quick Fix more carefully on those employers
with limited MSD problems by specifying that it applies where there
have been

[[Page 68367]]

only 2 prior MSDs in the workplace in the past 18 months,
     Providing clearer criteria for hazard identification and
control (i.e., the Basic Screening Tool) and compliance ``endpoint''
(i.e., the levels in Appendix D),
     Ensuring that employees receive training in using the
implemented controls so that the Quick Fix is more likely to be
successful, and
     Simplifying the criteria for determining whether a Quick
Fix has been successful or has failed.

Paragraph (o)(1)

    Paragraph (o)(1) defines which employers may avail themselves of
the Quick Fix approach instead of implementing a complete ergonomics
program. Employers may use the Quick Fix approach if, within the last
18 months:
     No more than 1 prior MSD incident has occurred in the job
in which another MSD incident is reported, and
     There have been no more than 2 prior MSD incidents in the
workplace as a whole.
    This represents a change from the proposed rule, which would have
allowed employers to use Quick Fix option in every job in the
workplace, but only for the first MSD incident in that job.
    OSHA believes that the changes in the final rule provide more
compliance flexibility, and thus will allow more employers to take
advantage of the Quick Fix option. First, changing the Quick Fix
provision to allow employers to use it 2 times in the same job makes
the option available for more jobs. Allowing 2 Quick Fixes in one job
recognizes, as Kaiser Permanente pointed out, that the occurrence of a
second MSD in the same job may not necessarily mean that a previous
control measure has not worked, but rather that a different combination
of risk factors may be present (Ex. 30-3934):

    [T]he conclusion in the proposed rule that the ``Quick Fix does
not work'' if another MSD is reported in the same job within 36
months * * * wrongly assumes that the same fix should work for the
same physical work activities and conditions. The fix that works for
one employee's condition may not work for another because of that
employee's physical characteristics or non-work related contributing
factors. A second or third MSD in the same job does not mean the
initial quick fix did not work, and employers should have the option
to apply a quick fix to newly reported MSDs (Ex. 30-3934; see also
Exs. 30-2088, 500-215).

    Second, not restricting the 2 MSD incidents to ones caused by
different risk factors, as the proposed rule would have done, will also
make the Quick Fix option available to more jobs. Eliminating this
restriction on the second MSD incident also addresses commenters'
concerns that this provision was not clear enough to be workable (see,
e.g., Exs. 30-1349, 30-358, 30-595, 30-538, 30-323, 30-1022, 30-1551,
30-3745, 30-3723).
    Third, halving the Quick Fix time frame to 18 months should make
the Quick Fix option available to more employers because MSDs that
occurred several years ago would not disqualify employers from using
the Quick Fix option. In addition, it makes the Quick Fix option more
attractive, as Kaiser Permanente noted:

    [F]or large employers, tracking MSDs to determine whether
another covered MSD is reported in the same job within 36 months
would be cumbersome (Ex. 30-3934).
Organization Resources Counselors, Inc. (ORC), agreed:
    The proposed requirement that the employer establish a full
ergonomics program if another similar MSD occurs in the job within
36 months is too rigid because the occurrence of MSDs is so closely
related to individual worker characteristics. If the employer
determines that additional feasible controls will eliminate the
significant risk from that job for that worker, another quick fix
should be permitted (Ex. 30-3812).

    OSHA estimates that these changes should allow a large percentage
of jobs, as high as 25 percent of all jobs meeting the Action Trigger,
to be controlled using a Quick Fix. (See Chapter V of the Final
Economic Analysis).
    At the same time, limiting the Quick Fix option to employers who
have only 2 MSDs in their workplace during the prior year and a half
also helps to target more precisely the provision to those workplaces
that have only isolated MSD problems. OSHA agrees with commenters that
where only a few MSDs are occurring, employers may be able to address
the problems effectively in an informal way, but that the occurrence of
several MSDs in a workplace in just over a year ``may be indicative of
a bigger problem'' that requires a more systematic approach to
adequately address (Ex. 32-210-2).
    Although OSHA believes that targeting the Quick Fix to workplaces
with few isolated MSD hazards will likely make the option most useful
to small businesses, larger employers may also find the Quick Fix a
useful mechanism. For example, large employers who have ergonomics
programs in some jobs would be free to use the Quick Fix option if an
MSD hazard were identified in another job.

Paragraph (o)(2)

    Paragraph (o)(2) of the final rule sets up the process that
employers using the Quick Fix option must follow. Employers must use
this process to fix the injured employee's job and all ``same jobs'' in
the establishment. Although this process is informal and flexible, it
nonetheless includes those basic steps that employers who have Quick
Fix or ``quick response'' processes use (Ex. 32-198-4-27-1). This
process includes:
     Providing prompt MSD management to the injured employee
(paragraph (o)(2)(i));
     Talking with employees to identify those tasks they
associate with the MSD incident (paragraph (o)(2)(ii));
     Observing employees performing the job to identify the
risk factors likely to have caused the MSD incident (paragraph
(o)(2)(iii));
     Asking employees for their ideas for reducing exposure to
the MSD hazards (paragraph (o)(2)(iv));
     Implementing measures within 90 days to control or reduce
the MSD hazards (paragraph (o)(2)(v));
     Training employees in using the controls implemented
(paragraph (o)(2)(vi)); and
     Keeping records of the Quick Fix (paragraph (o)(2)(vii)).
    These provisions of the final rule are similar to steps in the
proposed Quick Fix, although they have been revised in some respects to
respond to comments received.
Same Jobs
    Also similar to the proposed rule, those employers who qualify for
and select the Quick Fix option must fix not only the injured
employee's job but also all other ``same jobs'' in the establishment.
This requirement applies both to employers using the Quick Fix and to
those who must implement ergonomics programs. Several commenters
objected to requiring employers to apply the Quick Fix beyond the
injured employee's individual job (see, e.g., Exs. 30-2208, 30-2725,
30-3745, Tr. 9183). Some said having to fix all same jobs was not
necessary and would impose excessive cost. For example, the Center for
Office Technology (Ex. 30-2208) stated:

    The Quick Fix section is worded so that if one office worker is
experiencing discomfort and his workstation is changed--the example
given is purchasing an adjustable workstation for a VDT operator--
all the ``same job'' employees at that worksite would also have to
get an adjustable workstation when in fact no other employees may
need them.

    OSHA believes this requirement is necessary because it helps to
ensure that

[[Page 68368]]

other employees performing the same physical work activities and
exposed to the same MSD hazards are provided with protection before
they too get hurt. In this sense, the ``same job'' requirement helps to
make the final rule more proactive and preventive. OSHA believes that
controlling other same jobs will also be cost-effective for employers
because it is only a matter of time, in jobs meeting the Action
Trigger, until another MSD incident occurs.
    For several reasons, OSHA does not believe that the ``same job''
requirement will impose an undue burden on employers. First, OSHA
believes that the number of ``same jobs'' in the establishments likely
to use the Quick Fix option will be small, because OSHA believes that
many qualifying employers will generally be small businesses. Second,
the final rule allow employers to limit the Quick Fix to the injured
employee's job where the employer has reason to believe that the risk
factors in the job only pose a problem to the injured employee. (See
note to paragraph (j).) Thus, if the case referred to by COT (Ex. 30-
2208) meets the requirements described in the note to paragraph (j),
the employer would only be required to fix that employee's job. This
provision was included in the proposed rule, and a number of commenters
supported it, saying that such an exception was needed because the
individual characteristics of one worker may require controls that
don't work for or are not needed by other workers (see, e.g., Exs. 30-
3745, 30-358).
    Finally, even where there are ``same jobs'' that also must be Quick
Fixed, OSHA does not believe that the Quick Fix process will be
burdensome for employers. The Quick Fix process is very informal and
thus provides employers with great flexibility in complying with each
step in the Quick Fix process. In addition, the final rule allows
employers to include a sample of employees, rather than all employees
in the same jobs, in the hazard identification and solution
consultation process. OSHA agrees with commenters that allowing
employers to rely on a sample of the employees who are likely to have
the greatest risk factor exposure in the job should help reduce burdens
for large employers and for employers with many employees in the same
job (Ex. 30-2208).
1. Provide MSD Management
    Like employers who must implement an ergonomics program, employers
who select the Quick Fix option must provide the injured employee with
prompt MSD management after they have determined that an MSD incident
has occurred and the job meets the Action Trigger. This includes
providing the injured employee with access to an HCP and work
restrictions during the recovery period, if necessary. Where work
restrictions are needed, employers who select the Quick Fix option also
must provide the work restriction protection (WRP) that this standard
requires. (For further discussion of MSD management requirements, see
summary and explanation for paragraphs (p), (q), (r), and (s) below.)
2. Talk With Employees
    Paragraph (o)(2)(ii) requires that, as part of the process of
identifying the MSD hazards, employers using the Quick Fix option must
at least to talk with the employees in the job (and their
representatives). The purpose of this consultation is to ensure that
employers ask those who know the most about the job-those that perform
it-for their help in identifying the physical work activities and job
conditions that they believe are mostly likely to be associated with
the MSD incident. OSHA believes that including this step in the Quick
Fix process will help employers more quickly and fully identify the
problem so they will have the chance to fix the problem within the
Quick Fix deadline.
    Many commenters agreed with the importance of including employees
in the hazard identification process (see, e.g., Exs. 500-200, 500-215,
30-1100, Tr. 3565). The record consistently shows that employers with
effective ergonomics programs consult with their employees because
employees know what tasks are contributing to their MSD signs and
symptoms and because they often have the best and least expensive ideas
for solutions (Exs. 30-1100, 500-200, 500-215, Tr. 14903, Tr. 3062).
Talking to other employees who perform the same job as the injured
employee also provides employers with an opportunity to identify the
problems with the job more fully, and this, in turn, will help ensure
that the right solutions will be found to address the problem.
3. Observe the Job
    Paragraph (o)(2)(iii) specifies that employers must observe
employees performing the job to identify the MSD hazards that caused
the MSD incident. This step helps to ensure that nothing has been
overlooked in the discussion with employees. In addition, as several
commenters have pointed out, often problems in jobs become readily
apparent as soon as the person responding to the report has an
opportunity to watch employees performing the job (Exs. 30-3436, 26-2,
Tr. 1038).
    To provide employers with maximum flexibility in complying with
this step, paragraph (o)(2)(iii) allows employers to select the method
of job observation that works best for the conditions in their
workplace. For example, employers may simply watch employees perform
the job; videotape the job; or use a simple checklist, such as the VDT
checklist in Appendix D-2 or checklists similar to the one developed by
the Dow Chemical Company (Ex. 32-77-2-1 ). In addition, employers are
free to determine in what order they want to conduct the steps of the
Quick Fix process. Some commenters said that they observe the job first
as a way to better focus their discussions with employees.
4. Ask Employees for Solutions
    Paragraph (o)(2)(iv) specifies that employers using the Quick Fix
option must ask employees in the problem job for their ideas to fix the
job. OSHA has included this step in the Quick Fix process because time
and again employers have said that their employees often come up with
the best and least expensive solutions to problems (Tr. 8725, 1160,
9508). For example, PPG stated that:

    We [management] do not have to look over their shoulders to make
sure that they are implementing every--dotting every I. And it is a
successful program. Essentially, the workers run it (Tr. 3062).

    This step also was included in the proposed Quick Fix. Some
commenters asked OSHA to clarify whether employers were obligated to
implement the recommendations that employees make (Ex. 30-595). The
requirement that employers ask employees for their recommendations does
not limit them to implementing only those solutions recommended by
employees. OSHA expects employers to use their judgment when responding
to employee suggestions and to select controls that will achieve the
reduction in MSD hazards mandated by the rule. OSHA notes that the
records shows that employee suggestions for ergonomic improvements are
often both practical and effective.
5. Implement Controls Within 90 Days
    Paragraph (o)(2)(v) of the final rule requires employers, within 90
days, to implement measures that either:
     Control the MSD hazards (i.e., reduce hazards to the
extent that they are no longer reasonably likely to cause MSDs
requiring days away, work restrictions or medical treatment), or

[[Page 68369]]

     Reduce the hazards to the levels indicated in the
appropriate hazard identification tool in Appendix D.
    Employers must put controls into place within 90 days of the time
the employer determines that the job meets the Action Trigger.
Employers are free to use any combination of engineering, work practice
or administrative controls to fix the job. As part of the Quick Fix,
employers must also train employees how to use the controls that have
been implemented.

Implement Controls

    The proposal would have allowed employers to use the Quick Fix
option only where they could ``eliminate MSD hazards,'' which was
defined as controlling physical work activities and conditions to the
extent that an MSD was not reasonably likely to occur, which was a
higher level of control than for employers who were implementing full
ergonomics programs. Several commenters opposed the proposed Quick Fix
control endpoint, generally saying that it was either too vague to be
workable or impossible to attain (see, e.g., Exs. 30-4290, 30-3812, 30-
2208, Tr. 2998, 8394, 9182). The comment of ORC was typical of this
opposition:

    One fundamental change that must be made to this provision is
the revision of the proposed requirement to eliminate MSD hazards;
the formulation is problematic and may be legally impermissible. It
is well established that employers may only be required to take
technologically and economically feasible abatement measures. The
second problem is that employers cannot be required to establish a
risk-free environment, so that to the extent that the terms
``eliminate MSD hazards and eliminate employee exposure'' suggest
that an employer must go beyond reducing the significant risk of
harm in a particular instance, these terms must be revised and
clarified (Ex. 30-3812).

    OSHA believes that the changes in this provision address the
commenters' concerns. The final rule's Action Trigger helps to ensure
that employers will only have to take action in higher-risk jobs. As
mentioned in the summary and explanation for paragraph (f), jobs that
meet the Action Trigger (i.e., exceed the exposure levels in the Basic
Screening Tool) are ones that generally pose a risk of MSDs that is
three times higher than those that do not. Second, the control
endpoints employers must meet under the Quick Fix option do not require
the elimination of all risk. For example, employers will be considered
in compliance with the Quick Fix control requirement if they reduce
exposure levels to below those in Appendix B of Washington State's
ergonomics rule. The acceptable exposure levels in the Appendix B are
almost twice as high as those in the Basic Screening Tool. Thus, the
standard does not require employers to achieve a ``risk-free
environment.'' Third, the Quick Fix now contains more specific criteria
for identifying and controlling hazards so that employers more clearly
understand when a hazard is present and when they have done enough to
fix the job. Thus, the final rule is not requiring employers to take
``technologically or economically'' infeasible abatement measures.

90-day Control Time Line

    The final rule continues the proposed 90-day time line for
implementing Quick Fix controls, but now specifies that the time begins
to run only after the employer has determined that the job in which the
MSD incident occurred meets the Action Trigger. Comments on the
proposed 90-day time line were mixed. Some commenters testified that
many MSD hazards can be controlled quickly (see, e.g., Exs. 30-3813,
30-3436, 32-210-2, 30-294, Tr. 13642, Tr. 2134), while others said that
controls, especially engineering controls, could not be implemented in
90 days (see, e.g., Exs. 30-3815, 30-240, 31-307, Tr. 4628, 30-3853,
30-1091, 30-1048). As a result, some commenters requested that OSHA
provide extended abatement time for employers who could not implement
Quick Fix within the allotted time frame (Ex. 30-3853).
    For several reasons, OSHA believes that the Quick Fix deadline
should not be extended. First, OSHA believes that extending the
deadline negates the principle underlying the Quick Fix concept.
Second, OSHA believes that controls that take longer than 90 days to
implement indicate that the problem may be more complex than originally
anticipated, and therefore, may more appropriately be addressed in the
context of a comprehensive ergonomics program.
    Third, OSHA does not believe that extending the 90-day Quick Fix
deadline is necessary, because the record shows that there are many
controls that can be implemented quickly to control or reduce MSD
hazards. Many of these are obvious and low-cost fixes that can be made
to workstations (e.g., raising or lowering work surface or chair,
placing equipment directly in front of an employee to eliminate
extended reaches or awkward postures, providing a platform or box to
stand on as a way to eliminate overhead reaching, putting reams of copy
paper under a monitor as a way to eliminate awkward neck postures),
tools or equipment (e.g., servicing of powered hand tools, changing the
way bags move on a conveyor), and work schedules (e.g., rest breaks,
job rotation, job enlargement) (see, e.g., Tr. 2147, 6510). One
participant discussed the effectiveness of these types of Quick Fix
adjustments in office environments:

    If you're looking, say, at the office environment, the quick fix
situation is very often the one that's there in any case, because
you're looking at people who need improvements to their posture and
so on and so forth. And very often, the whole work environment is
already there to be adjusted. It just needs a quick-fix, which in
this case is often training and showing people how they should be
adjusting their workstation for their particular tasks. So very
often, in the office environment, the quick fix is the only way to
do it. (Tr. 2707)

    The record also includes information on a wide variety of
inexpensive ``off-the-shelf'' controls and technology that can be put
into place quickly. Some of these measures include telephone headsets;
foot rests; ``anti-fatigue'' mats or other cushioned surfaces; monitor
risers; wider grips for hand tools; knife sharpeners; and carts and
other mechanical devices to assist with lifting, pushing, pulling and
carrying tasks (Tr. 3946). According to David Alexander, a certified
professional ergonomist and president of Auburn Engineers, one reason
why ``off-the-shelf'' controls can be implemented so quickly and
inexpensively is that they do not require ``custom engineering'' (Ex.
37-12). In addition, Mr. Alexander said that many of these controls can
be easily identified and purchased by looking at equipment catalogs,
calling regular vendors, contacting trade associations, and even
searching the Internet (Ex. 37-7). For example, he said that the Job
Accommodation Network, a free service offered by the President's
Commission on Employment of People with Disabilities, has ``a huge
database of specific solutions to accommodation problems,'' many of
which are also solutions to ergonomics problems, that are available to
anyone who calls the network's toll-free number (Ex. 37-12). In
addition, many other examples of quick and inexpensive fixes are in the
cost chapter (Chapter V) of the final economic analysis.
    Finally, the fact that employers are free to Quick Fix hazards
using any combination of engineering, work practice and administrative
controls also supports the 90-day time line. Administrative controls,
in particular, should not take long to implement. And employers would
be free to Quick Fix jobs with administrative controls initially and
later substitute engineering controls when they become available.

[[Page 68370]]

    In addition to requests for more time to Quick Fix jobs, at least
one commenter urged OSHA to delay the start of the 90-day Quick Fix
deadline until after the MSD incident has been confirmed by the
employer's HCP and perhaps even an ``independent'' HCP, the employee's
medical history has been evaluated, and diagnostic measures have been
conducted (Ex. 30-3853). Paragraph (e) already allows employers to
consult with an HCP in determining whether an MSD incident has
occurred. In addition, after that determination is made, employers have
another 7 days in which to determine whether exposure levels in the job
exceed the levels in the Basic Screening Tool before the 90-day control
time begins to run. Nonetheless, OSHA believes that, in the
overwhelming number of cases, employers rather than HCP's will make the
determination about the work-relatedness and seriousness of the
reported MSD, as they have done for years in the context of the
recordkeeping rule. Therefore, OSHA does not believe that initiation of
the control implementation deadline needs to be delayed.
    Finally, one commenter asked OSHA to clarify whether the Quick Fix
option could be used in jobs that do not last for 90 days (Tr. 12179).
OSHA is not clear whether the commenter was referring to (1) the same
short duration job that is repeated (e.g., seasonal work, temp agency
work assignments) or (2) one-time job of short duration (e.g., special
project). OSHA realizes that where an MSD occurs toward the end of a
short duration job that there may be some limits on what measures the
employer may be able to take, that is, the employer may not have enough
time to fully implement either a Quick Fix or an ergonomics program.
Nonetheless, the employer must still implement those measures, such as
interim controls, that are feasible to implement during the remaining
time. (See summary and explanation for paragraph (m) for discussion of
the term ``interim controls.'') In addition, where the short duration
job is repeated on some regular or foreseeable cycle, such as seasonal
fish processing, each cycle is, in essence, a serial ``same job.'' As
such, in order for employers to use the Quick Fix option in these
situations, they will be required to have controls in place before the
next job cycle begins.

Control Training

    As part of the requirement to fix jobs, paragraph (o)(2)(v) also
requires employers to train employees in jobs that are Quick Fixed so
that they know how to use the controls that have been implemented. OSHA
added this provision after commenters pointed out that Quick Fix
controls may not be successful, and therefore employees may not be
protected from MSD hazards, if they do not know how to use those
controls correctly (see, e.g., Exs. 32-339-1, Tr. 6985). In fact, a
number of employees who testified at the hearings reported that,
although they had been provided with ergonomically appropriate controls
(e.g., adjustable chairs), they had never been taught how to properly
use or adjust the controls (see, e.g., Tr. 8461).
6. Check Success of the Controls
    Paragraph (o)(2)(vi) requires employers, within 30 days after
implementing Quick Fix controls, to review the job to determine whether
the measures implemented have controlled the hazards or reduced them to
the levels in Appendix D. An analogous provision also was included in
the proposed rule. A number of commenters complained that a 30-day time
line for checking the success of the Quick Fix controls was too short
(see, e.g., Exs. 31-307, 30-240, 30-3815, 30-3853, 30-2988, 30-3934,
Tr. 4628). For example, Kaiser Permanente said:

    If a person has serious MSD symptoms, the symptoms may not
subside in this short time. Kaiser Permanente recommends that OSHA
modify the proposed Quick Fix deadline for elimination of the MSD
hazard to 120 days from the date of implementation of the hazard
controls.

    Likewise, the Tennessee Valley Authority expressed concerns that 30
days might not be long enough to evaluate control effectiveness (Ex.
31-307).

    For several reasons, OSHA believes that 30 days provides employers
with sufficient time to check up on whether the controls have been
successful. In its Elements of Ergonomics Programs, NIOSH said that
evaluations of control effectiveness should be made within 2 to 4 weeks
of control implementation. NIOSH's concern was not that 30 days was too
short a period of time for conducting post-implementation followup, but
rather with checking up on controls too quickly:

    Because some changes to work methods (and the use of different
muscle groups) may actually make employees feel sore or tired for a
few days, followup should occur no sooner than 1 to 2 weeks after
implementation, and a month is preferable. Recognizing this fact may
help avoid discarding an otherwise good solution (Ex. 26-2).

    At the same time, if controls are not working and the employer is
allowed to wait for an extended period of time before checking up on
the job, the injured employee's condition may worsen. Retaining the 30-
day followup helps to ensure that employers initiate further and more
comprehensive action to prevent the employee from suffering permanent
damage or disability. In any event, OSHA believes that the availability
of various tools and checklists as well as the final standard's more
clearly-defined control endpoints will make the control evaluation
process easier and quicker.
7. Keep Records of the Quick Fix
    Paragraph (o)(2)(vi) specifies that employers must keep records of
their Quick Fixes for 3 years, or until replaced with updated records.
Paragraph (v), however, limits the recordkeeping requirement to
employers with 11 or more employees. This provision was included in the
proposed rule. While some commenters agreed that such records were
necessary (Ex. 30-710), several commenters opposed this requirement
(see, e.g., Exs. 601-X-1, 30-3755, 30-1019, 30-294, 30-3745, Tr. 2983,
Tr. 5758). Some said the recordkeeping requirement would be burdensome,
especially for small businesses. The Office of Advocacy of the Small
Business Administration (Ex. 601-x-1) submitted the following comment:

    The Quick Fix option also limits the one small business
exemption which exists within the ergonomics program standard
proposal. This option states that an employer must keep records of
the Quick Fix controls they implement, when they are implemented and
the results of any evaluations. [The Office of Advocacy of the SBA]
strongly recommends that the language within this option be
clarified to indicate that employers with less than ten employees do
not need to keep records for any provision in the standard. Without
this clarification, the option is not a real one for small business
and will have the [effect] of mandating compliance with the total
rule for employers with less than ten employees.

    Paragraph (v) of the final rule does not require employers with
fewer than 11 employees to keep records, including Quick Fix records.
    Other commenters said that the recordkeeping requirement added
unnecessary complexity to the Quick Fix option. For example, Dow
Chemical Company (Ex. 30-3755) stated:

    The use of this provision should be such that it encourages its
use in order to take advantage of the fact that it exempts an
employer out of the full rigors of the ergonomic program rule. To
insist on, for example, recordkeeping of the quick fix controls will
be a disincentive to its use and thus may defeat its purpose. To
require that such documentation be retained for three

[[Page 68371]]

years is absurd. [Dow] * * * suggests 45 days or until the ``quick
fix'' is implemented and results validated.

    OSHA believes that records are necessary where employers substitute
one-time action for a comprehensive approach to controlling MSD
hazards. First, the Quick Fix option does not include the ``checks and
balances'' of a comprehensive program (i.e., management leadership,
employee training, and program evaluation). Second, employers who use
this option will need these records to demonstrate that the Quick Fix
process has been successful in controlling the hazards. In addition,
employers themselves need records to be able to demonstrate that they
continue to qualify for using the Quick Fix option. Finally, OSHA
believes that keeping the Quick Fix records for just 3 years will not
pose a burden for employers, especially since these employers will not
have to put resources into keeping the other records that employers who
have full ergonomics programs must maintain.

Paragraphs (o)(3) and (o)(4)

    The last two provisions of the Quick Fix process provide that
employers are not required to take additional action as long as the job
hazards remain controlled or exposures do not exceed the levels in
Appendix D. As long as these control levels are maintained, employers
need only provide training in the use of the controls to new employees
who are assigned to Quick Fixed jobs. If, however, hazards cannot be
reduced to those levels within the Quick Fix time frame, or be
maintained at those levels, employers must implement an ergonomics
program in that job, i.e., if more than one MSD incident has already
occurred in the job. However, if this is the first Quick Fix in that
job, the employer would be free to repeat the Quick Fix to see if a
second effort might be more successful.
    The proposed rule, on the other hand, would have adopted a ``wait
and see'' approach, requiring employers to implement a full ergonomics
program if it turned out that the controls did not eliminate the
hazards with the deadline or if another MSD occurred in the job
sometime during the following 36 months. The proposed rule would have
provided one exception to moving onto a full ergonomics program in
those cases where the second MSD incident in the job was caused by
different risk factors.
    Several participants commented on this proposed provision (see,
e.g., Exs. 30-3813, 30-3815, 30-710, 30-1107, 30-494, 30-4540, Tr.
14985). Most commenters (see, e.g., Exs. 30-3813, 30-3815) argued that
the 36-month ``wait and see'' period was too long. OSHA has responded
by reducing the ``wait and see'' period to 18 months. This means that
employers continue to qualify to use the Quick Fix option if no more
than 2 MSD incidents have occurred in the past 18 months. MSD incidents
that occurred more than 18 months previously would not be considered in
determining whether the employer could continue to use the Quick Fix
option in that workplace.

MSD Management and Work Restriction Protection

    Paragraphs (p), (q), (r), and (s) of the final rule set forth the
final rule's requirements for MSD management and work restriction
protection (WRP). These provisions require employers to set up a
process to manage MSD incidents when they occur. OSHA's final rule
requires that employers make MSD management available promptly to
workers in jobs that meet the action trigger whenever an MSD incident
occurs; provide this MSD management at no cost to the employee; provide
temporary work restrictions and ``work restriction protection'', and
provide a mechanism for multiple health care professional (HCP) review
when health care providers disagree about the proper course of action
the employer should take. The discussion of these sections is divided
into two parts; the first section discusses MSD management, and the
second, worker restriction protection and multiple HCP review.

MSD Management

    Under the final rule, employers would be required to make MSD
management available promptly whenever an MSD incident occurs; provide
this MSD management at no cost to the employee; and evaluate, manage,
and follow-up on the MSD incident. Specifically, employers are required
by the final rule to:
     promptly provide effective MSD management at no cost to
the employee,
     provide employees with access to a health care provider
(HCP),
     provide work restrictions the employer or the HCP find
necessary,
     provide the HCP with information about MSD management and
the employee's job,
     obtain a written opinion from the HCP about the MSD,
     provide the employee with the HCP's opinion, and
     evaluate, manage and follow-up on the MSD incident.
    The final rule's MSD management provisions are quite similar to the
provisions in the proposed rule. The final rule differs from the
proposed rule section in the following ways:
     MSD management is provided under different circumstances
(only when a worker has an MSD incident and the job rises above the
action trigger),
     MSD management is no longer described as being for the
purpose of ``to prevent their (the employee's) condition from getting
worse'',
     the employer is not required to determine the need for
work restrictions or other actions before consultation with a health
care provider,
     the employer must provide slightly different information
to the health care provider,
     the health care provider is not afforded a right to walk
through the employers workplace,
     minor editorial changes to the numbering, language and
sequence of the requirements to simplify the sections and reduce
duplication, and
     changes to the work restriction protection (WRP)
requirements reducing WRP payments from 6 months to 3 months, and
allowing the use of sick leave during the WRP period.
    These changes reflect OSHA's review and analysis of the many
comments and other evidence in the record pertaining to MSD management,
which are discussed below. OSHA also asked for input on several
specific issues in Section XIV of the proposal, Issues on Which OSHA
Seeks Comment. The comments provided in response to those questions are
included in the discussion of the relevant issues below.

Is MSD Management Needed?

    OSHA received many comments on the proposed MSD management section.
Many commenters generally supported the inclusion of MSD management
provisions in the standard (see, e.g., Exs. 30-626, 30-651, 30-2387,
30-3033, 30-3034, 30-3035, 30-3258, 30-3259, 30-3686, 30-3813, 30-3826,
30-4538, 30-3934, 30-4159, 30-4468, 30-4536, 30-4538, 30-4547, 30-4549,
30-4562, 30-4627, 30-4776, 30-4777, 30-4800, 31-23, 31-31, 31-43, 31-
71, 31-92, 31-105, 31-113, 31-150, 31-156, 31-160, 31-161, 31-163, 31-
186, 31-229, 31-243, 31-259, 31-301, 31-309, 31-342, 31-345, 31-347,
32-182-1, 32-210-2, 32-339-1, 32-85-3, 32-111-4, 32-133-1, 32-450-1,
30-4468, DC 75, 30-1104, L-30-4860, 37-12, 37-28).
    Several commenters stated that MSD management is an essential
component of an ergonomics program. For example, Lieutenant Colonel
Mary Lopez, of the Department of Defense, reported at the hearing that
healthcare management (i.e., MSD management) is a critical

[[Page 68372]]

element in any ergonomics program (Tr. 3221, Ex. 30-3826-14, 500-218).
The 3M Company stated that ``The need for effective MSD management is
universally accepted'' (Ex. 30-3185). Dr. Robert Harrison stated that
``The medical and scientific literature and my own clinical experience
confirm that MSD management is an essential part of an ergonomics
program'' (Ex. 37-12).
    Evidence in the record shows that many companies, through early
intervention and the effective management of MSDs, have achieved
substantial reductions in the number and severity of MSDs, which have
in turn, translated into less lost-work time, fewer lost-workdays,
lower costs per case, and fewer workers' compensation claims (see,
e.g., Exs. 3-56; 3-59; 3-73; 3-95; 3-113; 3-118; 3-147; 3-175; 3-217;
26-23, 26-24, 26-25, 26-26, 30-3185, 500-20-3, 500-71-84, Tr. 14357,
Tr. 14721, Tr. 17431). Representative of these comments, Dr. Colin
Baigel of the Bristol Myers Squibb Company reported at the hearing that
``[o]ne of our keys is early medical intervention with any sorts [of]
symptoms or signs of physical illness'' (Tr. 10516). He commented
further that, in his company's program, they see and evaluate employees
early, modify the workplace, and institute aggressive conservative
treatment if necessary (Tr. 10516).
    North Carolina State University discussed the consequences of not
providing prompt MSD management, stating that ``I know of employees who
were ordered by a non-medical supervisor to get back to work after an
injury--in each case the lack of immediate medical care exacerbated
their conditions'' (Ex. 31-163)
    Several commenters recommended that OSHA strengthen the provisions
of this section to achieve early detection and a more proactive
approach to MSD management (see, e.g., Exs. 30-626, 30-2387, 30-4583,
32-182-1, 32-339-1, L-30-4860, 500-71-86, 500-218). Many suggested that
MSD management should be triggered when an employee reports the signs
and/or symptoms of MSDs (see, e.g., Exs. 30-3686, 30-4538, 32-111-4,
32-182-1, 32-339-1, 32-210-2, 32-461-1, 32-85-3, L-30-4860). For
example, the American Public Health Association stated that MSD
management should be required for all MSDs reported to the employer
including symptoms of MSDs (Ex. 30-626). The AFL-CIO (Ex. 32-339-1)
argued that, as proposed, the MSD management provided by the proposed
standard would not achieve the goal of early detection and urged OSHA
to rely on employee reports of persistent signs and symptoms to trigger
MSD management for all jobs, rather than relying on covered MSDs to
trigger action in some jobs, as the proposal did. Others recommended
using an even more proactive, risk-based approach to trigger MSD
management, instead of waiting for an employee report of an MSD (see,
e.g., Exs. 30-626, 30-2387, 30-3686).
    Several commenters supported the proposed MSD management provisions
with reservations/concerns (Ex. 30-3185, 30-3188, 30-4777). For
example, the American Occupational Therapy Association urged OSHA to
``[p]rovide guidance about the difference between treatment of a
disorder and the management of early symptoms'' (Ex. 30-4777).
    Other commenters opposed the approach to MSD management taken in
the proposal (see, e.g., Exs. 30-276, 30-400, 30-1090, 30-1294, 30-
1350, 30-1357, 30-1370, 30-1722, 30-1727, 30-1989, 30-2037, 30-2208,
30-2216, 30-2435, 30-3032, 30-3167, 30-3200, 30-3284, 30-3344, 30-3368,
30-3392, 30-3677, 30-3765, 30-3845, 30-3853, 30-3867, 30-3956, 30-4040,
3-4046, 30-4185, 30-4470, 30-4499, 30-4564, 30-4567, 30-4837, 30-4839,
30-4843, 31-27, 31-77, 31-78, 31-79, 31-125, 31-135, 31-172, 31-180,
31-202, 31-220, 31-225, 31-227, 31-245, 31-246, 31-247, 31-248, 31-252,
31-253, 31-265, 31-280, 31-283, 31-286, 31-307, 31-319, 31-321, 31-337,
32-120-1, 32-300-1, 500-1-127, 500-177-2, 500-208). In a representative
comment, PPG industries recommended that OSHA

    Remove these sections completely. These are very onerous
requirements and the cost estimates of OSHA for these issues do not
begin to approximate the real costs to industry to comply with these
provisions. Further, they do nothing to achieve improved ergonomics
in the workplace (Ex. 500-177-2).

    Some of these commenters objected to the proposed MSD management
section because it included provisions protecting the wages and
benefits of injured workers (see, e.g., Exs. 30-240, 30-3813, 30-3765,
30-3845, 601-x-1). These comments are discussed in detail below in
conjunction with the comments received on the proposed rule's
provisions on work restriction protection. Other commenters objected
for the following reasons:
     The proposed provisions exceed OSHA's legal authority
(see, e.g., Exs. 30-710, 30-1350, 30-3956, 30-1722, 30-2208, 30-3765,
30-3845, 30-3956, 30-4499, 31-319, 32-241-4);
     The proposed provisions are unnecessary (Exs. 30-3677, 30-
3765, 30-4185, 500-177-2); employers already have systems in place for
medical management of all injuries (Exs. 30-3677, 30-3765, 30-4185, 31-
79, 31-321, 500-177-2);
     Medical management is addressed in other OSHA standards
(1910.151 Medical services and first aid.) (Exs. 30-3765);
     The proposed provisions add burden on employers (see,
e.g., Exs. 30-1294, 30-3765, 30-4040, 30-4499, 30-4564, 500-177-2), the
cost for medical assessment of illnesses is too high (see, e.g., 30-
1026, 30-1302, 30-0295, 30-1362, 30-0070, 30-0262, 30-0586, 30-0280,
30-3760), and the proposed requirements are too prescriptive (Ex. 30-
400, 30-1294, 500-177-2);
     The proposed provisions are unclear about what the
employer is supposed to do (Ex. 30-3344), fails to tell an employer
when to provide access to an HCP (Ex. 32-120-1), or uses vague terms
(see, e.g., Exs. 30-2987, 30-3364, 30-3677);
     The proposed provisions conflict with workers'
compensation laws (see, e.g., Exs. 30-300-1, 30-710, 30-1350, 30-1722,
30-2435, 30-2987, 30-3284, 30-3745, 30-3765, 30-3845, 30-4026, 30-4564,
30-3677, 30-4499, 31-172, 31-180, 31-220, 31-252, 32-206-1);
     The proposed provisions create a preferential system for
MSDs and enforces the notion that ergonomics injuries are more
important than other injuries (see, e.g., Exs. 30-1294, 30-3765, 30-
4470, 30-4843, 31-280, 500-177);
     The proposed provisions would interfere with existing
collective bargaining agreements (see, e.g., Exs. 30-3284, 30-3765, 32-
266-1);
     The proposed provisions would address a problem that was,
in the opinion of these commenters, largely or exclusively non-
occupational in origin (see, e.g., Exs. 30-240, 32-241-4, 30-3167, 30-
3956, 30-3956, 30-4046, 30-4713, 32-241-4); and
     The proposed provisions change the traditional
relationship between doctors, patients and employers (Exs. 30-4470) or
inappropriately inject the employer into the employee-patient
relationship (Ex. 30-4567).
    In a representative comment, the Dow Chemical Company (Ex. 30-3765)
stated that (1) a management system for work-related injuries already
exists through workers' compensation laws, (2) the proposal may
conflict with some collective bargaining agreements, and (3) a special
work restriction protection is not warranted for MSDs because of their
multifactorial nature. The Anheuser-Busch Companies, Inc. and United
Parcel Service, Inc. added ``[t]he proposed rule is doomed to fail as a
result of its exclusive focus on

[[Page 68373]]

workplace activity'' i.e., on the work-related rather than non-
occupational causes of MSDs (Ex. 32-241-4, p. 182).
    The proposed rule would have required employers to provide injured
employees with prompt access to an HCP, when necessary, for evaluation,
management and follow-up. OSHA has reconsidered the issue, and now
believe that any MSD incident is serious enough to warrant MSD
management.
    Several commenters recommended that OSHA require an employer to
refer an employee with complaints or signs or symptoms of an MSD to a
HCP for evaluation, management, and follow-up immediately, rather than
``when necessary,'' as proposed (Exs. 30-651, 30-3826, 30-3686, 30-
2387, 30-4468, 32-339-1, 32-111-4, 32-182-1, 30-4538, 32-210-2, 32-461-
1, 32-85-3, 32-210-2, 32-450-1). For example, the United Food and
Commercial Workers (UFCW) argued that having every worker assessed
initially by an HCP would resolve many issues raised by the proposal,
such as ``when to refer the employee to the HCP,'' ``follow-up,'' and
``deciding appropriate work restrictions'' (Ex. 32-210-2). The American
Association of Occupational Health Nurses (AAOHN) (Ex. 30-2387)
commented that ``[e]mployers should automatically be required to refer
employees with MSD complaints to health care professionals for
evaluation and determination about physical capabilities and work
restrictions. Most employers are not qualified to make this
determination.'' The AAOHN also stated that ``[d]ecisions related to
signs and symptoms of MSD[s] and placement of temporary work
restrictions should be made by a health care professional'' (Ex. 30-
2387). Some commenters stated that the phrase ``when necessary'' was
unclear, confusing, and vague (Exs. 30-2987, 30-3782, 30-3826, 30-
3845). Other commenters, however, agreed with the ``when necessary''
language, on the grounds that it gave the employer the flexibility to
decide when an employee needs to be referred to an HCP (see, e.g., Exs.
30-3813, 30-4467, 32-300-1).
    OSHA has deleted the ``when necessary'' language from the final
rule. The final rule only applies to specific injuries (those with
restrictions, medical treatment, or persistent signs and symptoms) and
OSHA finds that these injuries should always be followed by medical
management, including access to an HCP. This change clarifies the final
rule and assures prompt medical management for employees who need it.
    Several commenters recommended alternative approaches to MSD
management. The Pinnacle West Capital Group suggested OSHA simply leave
MSD management to the employers discretion (Ex. 30-3032). PPG
Industries suggested that OSHA only require an employer to have in
place a system that focuses on early intervention (Ex. 30-1294).
Ashland Distribution Co recommended OSHA:

    [d]elete [the] last sentence of 1910.919 and [the] remainder of
MSD management, and add ``You must make MSD management available
promptly whenever a covered MSD occurs. You must provide MSD
management at no cost to employees. A health care professional
should be involved in MSD management when necessary'' (Ex. 30-4628)
(see also Ex. 31-337).

    In the final rule, OSHA has decided to carry forward the MSD
management provisions of the proposed rule with only minor
modifications. The MSD management provisions of the final rule
emphasize the prevention of impairment and disability through prompt
evaluation and management of MSD incidents, evaluation by a health care
provider, provision of needed work restrictions, and appropriate
follow-up. The provisions are included because successful ergonomics
programs include MSD management, OSHA has had successful experience
with including MSD management as part of an ergonomics program
agreement with employers, and OSHA therefore believes that MSD
management is essential to the proper functioning of an ergonomics
program.
    The MSD management provisions of the final rule are based on the
many successful ergonomics programs that include policies for the
medical management of MSDs, and the final rule contains provisions
similar to those in such programs (see, e.g., Exs. 26-2, 32-450-1). The
MSD management provisions of the final standard are thus built on the
processes that employers with effective ergonomics programs are using
to help employees who have work-related MSDs.
    MSD management is recognized by employers, HCPs, and occupational
safety and health professionals as an essential element of an effective
ergonomics program (see, e.g., Exs. 26-1, 26-5, 26-1264, 32-450-1, 30-
4468, 37-12, 37-28). Among employers who have told OSHA that they have
an ergonomics program, most reported that their programs include MSD
management as a key element (see, e.g., Exs. 3-56; 3-59; 3-73; 3-95; 3-
113; 3-118; 3-147; 3-175; 3-217; and Exs. 26-23 through 26-26, 500-71-
84). This approach is also supported by the scientific literature
concerning ergonomics as evidenced by the comments of Robin Herbert, MD
(Ex. 37-28):

    The MSD [proposed] management provisions are consistent with
approaches enumerated in a number of medical textbooks and peer-
reviewed papers * * *. The MSD management section recommendations
would be likely to diminish the severity of, and, consequently, the
disability and suffering associated with, MSDs.

    The final rule's MSD management provisions are also based on OSHA's
experience with ergonomics over the last 15 years. For example, MSD
management provisions were included in OSHA's 1990 Ergonomics Program
Management Guidelines for Meatpacking Plants (Ex. 26-3). In addition,
MSD management provisions have been included in all of OSHA's corporate
settlement agreements addressing MSD hazards. In a 1999 workshop to
discus 1999 workshop to
discuss the experience of companies with corporate wide settlement
agreements, the companies who were involved stated that ``[q]uality
healthcare is a must'' for an ergonomics program, and ``[g]ood medical
management allows early reports and reduces surgeries'' (Ex. 26-1420).
Further, to become a member of OSHA's Voluntary Protection Program,
employers are required to include ``Occupational Heath Care Program''
provisions in their safety and health programs that address MSDs and
their management, along with other health hazards.
    There are many reasons why MSD management is essential to the
success of an ergonomics program. As mentioned above, MSD management
emphasizes the prompt and effective evaluation and management of MSD
incidents, with appropriate follow-up for the injured employee. When
MSD incidents are managed effectively, they are more likely to be
reversible, to resolve quickly, and not to result in disability or
permanent damage. MSD management also helps to reduce the overall
number of MSDs in a given establishment because it alerts employers to
MSD hazards in their jobs so that they can take action before
additional problems occur. An MSD management process that encourages
early reporting and evaluation of that first MSD helps to ensure that
the analysis and control of the job is accomplished before a second
employee on that job develops an MSD. MSD management thus reduces MSDs
through prevention. In addition, MSD management helps to prevent future
problems through the development and communication of information about
the occurrence of MSDs to employees.

[[Page 68374]]

Finally, where engineering, design and procurement personnel are
alerted to the occurrence of MSDs, they can help to implement the best
kinds of ergonomic controls: those that engineer out MSD hazards in the
design and purchase phases and thus prevent MSD incidents from
occurring.
    The final rule does not require the employer to provide MSD
management for all MSDs, but only requires MSD management for MSD
incidents that occur to a worker in a job that exceeds the action
trigger. This helps to assure that MSD management is only required for
work-related MSDs, and that non-occupational MSD cases are excluded.
The final rule does not require the employer to take any action for
non-work-related MSD cases. The only obligation may be to determine the
work-relatedness of an MSD report from an employee to make sure that
the MSD is non-occupational, but no other action is required.
    Requiring MSD management only for MSD incidents, as defined by the
final rule, also makes sure that the MSD is a more serious case, and
that MSD management, as well as the other elements of an ergonomics
program, are not being required for cases that involve only minor pain
or soreness but are being provided for disorders that need treatment
and cases with persistent signs or symptoms. Requiring MSD management
under these circumstances also makes sense because all of the program
elements are initiated with the same implementing mechanism; requiring
MSD management without the other elements of an ergonomics program
would be inconsistent and ineffective.
    The final rule requires MSD management for all MSD incidents when
the worker's job exceeds the action trigger. OSHA has eliminated the
phrase ``when necessary'' so the MSD management provisions apply to all
MSD incidents. If an MSD has resulted in days away from work,
restricted work, or medical treatment, and the employee's job exceed
the action trigger, there is no further reason for delay. MSD
management is clearly needed for these MSDs, and the final rule
requires it. The final rule does not mandate MSD management for MSDs
that do not rise to that level. For other incidents, the employer will
have to make a decision about what MSD management actions are
appropriate, but the final rule does not require them.
    OSHA also believes that the final rule strikes the necessary
balance between being too prescriptive and too vague. The provisions of
OSHA's standard 29 CFR 1910.151 Medical services and first aid merely
require the employer to ``ensure the ready availability of medical
personnel for advice and consultation on matters of plant health'' and
do not provide sufficient guidance for the effective management of MSD
incidents. Likewise, simply leaving MSD management to the discretion of
the employer, or including a simple reference to provide MSD management
``when necessary'' would not provide enough guidance for employers,
health care professionals, or workers. At the same time, the final
rule's provisions requiring employers to provide access to a health
care professional, provide work restrictions, and generally evaluate,
manage and follow-up on an MSD incident provide the flexibility needed
for the variety of MSD cases that employers will encounter. An employee
who has suffered a severe back injury from lifting a heavy object and
is experiencing agonizing pain and an inability to function may need
immediate treatment in an emergency room, while a worker who is
experiencing a gradual worsening of pain in the wrists may require
prompt (but not immediate) treatment by a specialist.
    OSHA finds that the arguments that the rule changes the traditional
relationship between doctors, patients and employers (Exs. 30-4470) or
inappropriately injects the employer into the employee-doctor
relationship (Ex. 30-4567) are without merit. Employers have, for many
years, experienced a relationship with the medical community in regards
to employees work and non-work related injuries and illnesses.
Employees commonly obtain written notification from a physician to
explain time off of work for personal illness. Employers frequently
consult with a health care provider when an employee is injured or
becomes ill at work, to determine appropriate time off, restrictions or
medical treatment, and the requirements of the final rule are not much
different. Employers also consult with health care professionals when
they contest workers' compensation claims, during tort litigation, or
when implementing reasonable accommodations for disabled persons as
required by the Americans with Disabilities Act (ADA).
    Finally, OSHA believes these requirements are needed to make sure
that employees get the medical attention they need. As the Thermoquest
Corporation stated:

    [i]f there are no clear guidelines, many employers may not allow
an employee to seek medical help for various reasons. Also to leave
it up to the employee when to see a physician allow for employee
abuses. The difficulty lies in getting the injured employee the
treatment they need in a timely manner (Ex. 31-301).

    OSHA's responses to the comments that the MSD management provisions
exceed OSHA's legal authority, affect workers' compensation, or impact
collective bargaining agreements are addressed in the section of this
preamble dealing with worker removal protection.

Who Provides MSD Management Services?

    The preamble to the proposed rule explained that the proposed
ergonomics rule would have permitted ``persons in the workplace and/or
HCPs'' to provide injured employees with evaluation, management, and
follow-up in connection with the MSD management process (64 FR 65838).
The regulatory text required that an employer provide access to a
health care professional for evaluation, management and follow-up
``when necessary'' (64 FR 66073).
    Many commenters (see, e.g., Exs. 30-3826, 30-2387, 32-450-1, 32-
210-2, 30-2806, 30-4468) argued that the inclusion of individuals
without medical training and experience in the MSD management process
was inappropriate. For example, the American Association of
Occupational Health Nurses (AAOHN) strongly disagreed with the
proposal's use of the phrase ``or other safety and health professionals
as appropriate'' in the MSD management process on the grounds that
assessing, providing prompt management/treatment to, and following-up
individuals with medical problems are clearly activities within the
scope of health care professionals' professional licenses but are not
included in the scope of practice of other safety and health
professionals. The AAOHN stated that ``[i]t is imperative that the
standard not enable non-licensed individuals to make health assessments
and provide health care services without a professional license'' (Ex.
30-2387).
    The National Institute for Occupational Safety and Health (NIOSH)
noted that, although the institute supports ``[e]mployers' efforts to
train employees in the early signs and symptoms of MSDs and to seek HCP
evaluation when appropriate,'' it ``recommend[s] that the standard
preclude non-HCPs and non-licensed HCPs from conducting medical
evaluations.'' In addition, NIOSH noted that, the institute
``[s]upports OSHA's proposal that permits the MSD management programs
to be administered by a variety of licensed HCPs as defined (in the
proposal's

[[Page 68375]]

definition section). However, [it] recommend[s] that the clinical
aspects of the program (medical evaluations of symptomatic workers) be
performed by licensed HCPs under the supervision of HCPs licensed for
independent practice (including physicians, and nurse practitioners and
physicians' assistants in those states where they are so licensed)''
(Ex. 32-450-1). Other commenters (see, e.g., Exs. 30-3826, 32-210-2,
30-4468, 30-2806) agreed that evaluating an employee's complaint of an
MSD or assessing the physical capabilities of the employee to return to
work or his or her need to rest the injured part may require expertise
that an employer or other safety and health professional does not have.
    The American College of Occupational and Environmental Medicine
(ACOEM) noted that ``[i]f MSD signs are to be included as part of the
triggering event, the employee must be examined by a physician with
training in medical diagnosis'' (Ex. 30-4468). The ACOEM expressed
concern that ``flexibility'' in allowing non-HCPs to evaluate employee
reports of signs and symptoms ``[w]ould result in employers--who are
not likely qualified--making assessments or diagnoses. * * * Therefore,
ACOEM recommends that the determination of a recordable MSD be made by
a qualified occupational healthcare professional'' (Ex. 30-4468).
    The United Food and Commercial Workers (UFCW) agreed that HCPs,
rather than others, should conduct MSD management, arguing that the
OSHA proposal failed to require that an HCP make the initial assessment
of the worker's condition, a crucial element of MSD management in the
union's view. UFCW stated that ``[a]ll successful programs that we have
experience with have this core element'' (Ex. 32-210-2). The UFCW
emphasized this point by stating that, in corporate wide settlement
agreements (CWSAs) between companies and OSHA, ``OSHA and the industry
recognized that lay persons were not capable of assessing symptomatic
employees'' (Ex. 32-210-2). Arguing along similar lines, the American
Association of Orthopaedic Surgeons (AAOS) commented that ``[i]t is
inappropriate to ask the employee and employer to diagnose the
employee's problem and determine if it is or is not related to work and
deserving of further attention from the employer'' (Ex. 30-2806). In
her testimony, Mary Foley, President of the American Nurses Association
(ANA), strongly encouraged:

    OSHA to require that employers place the responsibility for
evaluating MSDs with the licensed healthcare providers. Evaluating
signs and symptoms and determining whether an injury has occurred is
the responsibility and within the scope of practice of licensed
health care providers. The supervisor and worker relationship is not
a relationship that should involve or appropriately involves
diagnosing physical injuries. If the employer erroneously decides
that a covered MSD has not occurred, continuing to perform the
hazardous job would result in a delay in evaluation and treatment,
and could intensify the injury or seriously compromise the recovery,
permitting managers and supervisors to assume these activities,
place the employer and/or manager at risk of litigation for
practicing medicine without a license or for denying medical
attention to an injured person (DC 5/8/2000, Tr. 15884).

    The final rule requires the employer to provide MSD management to
employees who have suffered an MSD incident, if they are employed in a
job that rises to the level of the action trigger, including prompt
access to an HCP. OSHA agrees with these commenters that non HCPs
should not provide medical services appropriately reserved to a health
care professional. The final rule does not allow a non-HCP to provide
medical services, and it was never OSHA's intent in the proposal to
allow a non-HCP to provide medical services that are only appropriate
to an HCP. Oftentimes, an HCP will have been involved in the MSD case
well before the final rule requires MSD management, while the employer
is determining the work-relatedness of the MSD case, and because the
MSD incident, by definition, must involve days away from work,
restricted work, medical treatment, or persistent signs/symptoms before
it is covered by the MSD management provisions.
    However, there are circumstances where an employer may provide a
worker with work restrictions before consultation with an HCP. In some
cases, the restrictions may be obvious. For example, if an employee
injures his or her back, limiting the lifting the employee is required
to perform is a logical action to take. In other instances, the
employer may have had experience with similar MSD cases in the past,
and the types of restrictions that are needed are familiar to the
employer. In the situation where the employer knows what restrictions
may be necessary, the final rule requires the employer to provide such
restrictions. Providing restrictions even before consultation with an
HCP can provide relief to the employee, reduce the severity of the
case, and begin the healing processes at an earlier stage.

The Definition of Health Care Professional

    The final rule and the proposal define health care professionals as
``physicians or other licensed health care professionals whose legally
permitted scope of practice (e.g. license, registration, or
certification) allows them to independently provide or be delegated the
responsibility to provide some or all of the MSD management
requirements of this standard.''
    Several commenters supported the proposed definition of ``HCP''
(see, e.g., Exs. 3-73, 30-519, 30-2387, 30-2807, 30-3745, 30-3748, 30-
3813, 30-4567, 30-4844, 32-85-3, IL-182). For example, the Rural/Metro
Corporation (Ex. 30-519) stated that the definition of HCP in the
proposal was appropriate because OSHA should not attempt to decide
scopes of practice for HCPs. The AAOHN (Ex. 30-2387) stressed that a
``[k]nowledgeable health care professional, practicing within their
legal scope of practice, establishes procedures, or consults with the
employer in the establishment of procedures, to determine what is to be
done when an employee reports a MSD or persistent MSD symptoms.'' In
her testimony for the AAOHN, Sandy Winzeler stated:

    It is appropriate for OSHA to recognize the roles that different
health and safety disciplines play in health and safety programs. *
* * Each discipline has a unique contribution to make to the
program; in this case, the prevention and management of MSDs. It is
only through such collaboration that we are successful. However, it
is inappropriate for OSHA to include language in a standard that
would restrict the practice of any health care professional. As you
are aware, health care professionals are regulated by the States.
The current language used in the proposal defers to State law in
determining whether the individual can fulfill the requirements
under their licensed scope of practice, and AAOHN supports this.
Over half of the States permit nurse practitioners to practice
independently without any requirement for physician supervision or
collaboration. This includes the ability to make independent medical
diagnosis. Registered nurses often work in collaborative
arrangements with physicians especially in the occupational health
setting. It is impractical to expect that a physician will be on
site and available to evaluate every employee, and in fact, it is
usually the occupational health nurse that is on the front line, at
the work site, working with employees every day. OSHA should
recognize the important role that nurses play and by no means should
limit our ability to fully practice within our legally defined scope
[DC 3/29/2000, Tr. 5588-5590].

    The American Physical Therapy Association (APTA ) also expressed
support for ``OSHA's recognition of

[[Page 68376]]

licensed nonphysician providers'' and noted that ``[o]ther Federal
programs, such as Medicare, defer to the states to determine licensure
and scope of practice of the providers that participate in the
program'' [30-3748].
    Other commenters urged OSHA not to limit employers' choice of HCPs
to specialists, who are often not available in reasonable proximity,
which would delay prompt evaluation, management, and follow-up and make
it much more costly (Ex. 3-73, 36-1370, 30-3745, IL-182). For example,
the American Feed Industry Association, whose members have facilities
in rural areas, expressed concern that the medical profession in a
rural area may not have the expertise to deal with work-related MSDs,
and pointed out that compliance could be a problem if the standard
stipulated that the HCP have a specific background (Ex. 3-73, 30-3745,
IL-182).
    Other commenters opposed the proposed definition (see, e.g., Exs.
30-494, 30-991, 30-2208, 30-3004, 30-2208, 30-2676, 30-4468, 30-4699,
30-3749, 30-3783, 30-3781, 30-3937, 30-4025, 30-4467, 30-4538, 30-4843,
32-22-1, 32-339-1, 32-111-4, 32-182-1, 32-210-2, 32-300-1, 32-461-1).
Many of these commenters held the opinion that the definition was too
broad (see, e.g., Exs. 30-991, 30-2208, 30-3004, 30-2208, 30-4468, 30-
4699, 30-3749, 30-3783, 30-3781, 30-3937, 30-4025, 30-4467, 30-4538,
30-4843, 32-22, 32-339-1, 32-111-4, 32-182-1, 32-210-2, 32-300-1, 32-
461-1). The comments of the Combe Inc. company are representative:
``[b]y allowing persons who do not even have a medical degree to
diagnose and treat these disorders, the proposed standard creates an
environment where the potential for misdiagnosis and improper treatment
efforts is dramatically increased'' [Exhibit 30-3004]. The Center for
Office Technology pointed out that because the definition is so broad,
it could include occupations such as emergency medical technicians or
licensed vocational nurses who would not be the appropriate
professionals to make decisions with respect to MSDs [Ex. 30-2208]. The
New Mexico Workers' Compensation Administration argued that a massage
therapist could render an opinion on MSDs (Ex. 32-22).
    A number of commenters recommended OSHA limit HCPs to physicians,
nurse practitioners, or physician's assistants (see, e.g., Exs. 32-339-
1, 32-111-4, 32-182-1, 30-4538, 32-210-2, 30-4468, 30-4699, 32-450-1,
30-2806, 32-300-1). Others advised that HCPs be limited only to
physicians [Exhibit 30-351, 30-3749, 30-3344]. Several commenters
acknowledged OSHA's attempt to reduce the cost of the standard, but
noted that fact finders rely heavily upon treating physician's opinions
when litigating causation issues under the various worker's
compensation laws (Exs. 30-3749, 30-3344, 30-4674).
    Other commenters argued that the ergonomics rule should require
HCPs to have specific training (see, e.g., Exs. 30-626, 30-3032, 30-
4467, 30-4538, 32-339-1, 30-4468, 30-2806, 30-3934, 30-3745, 30-3937,
32-300-1). For example, the law firm of Morgan, Lewis and Bockius
argued that HCP's not specifically trained in musculoskeletal disorders
would not be able to make accurate diagnoses and that HCPs without MSD
specific training ``[m]ight actually irritate conditions or prescribe
incorrect treatments, or impose unwarranted obligations on employers'
(Ex. 30-4467). The International Association of Drilling Contractors
(Ex. 30-2676) commented that ``According to a recent medical
publication, 82% of medical school graduates failed a valid
musculoskeletal competency examination. (The Journal of Bone and Joint
Surgery, Vol. 80-1, No. 10, October 1998, pp. 1421-1427)'' to argue
that ``This startling statistic makes one question how a general
physician may properly diagnose a MSD'' and the ``[i]nclusion of other
fields under its [OSHA's] definition of HCP is all the more
unacceptable''. However, the International Association of Drilling
Contractors did not submit a copy of the article into the rulemaking
docket, so OSHA is not able to fully evaluate the journal article. It
appears to be a competency examination for a specialized medical field,
and it is unclear that the examination uses the same definition of
musculoskeletal disorder as OSHA's rule, so OSHA does not believe that
the article provides evidence contrary to the final rule's definition
of HCP.
    Several commenters encouraged OSHA to define the specific
competencies an HCP should acquire to be qualified to screen, diagnose
and manage MSD cases (see, e.g., Exs. 30-2806, 32-182-1, 32-300-1). For
example, the American Association of Orthopaedic Surgeons (Ex. 30-2806)
found OSHA's proposed definition to be incomplete, and suggested the
ergonomics rule include a requirement to use HCPs who are ``[h]ighly
trained and qualified'' and who are ``[k]nowledgeable in the assessment
and treatment of MSDs'' to ensure appropriate evaluation, management
and follow-up of workers' MSDs.
    The American College of Occupational and Environmental Medicine
(ACOEM) recommended the definition of health care professional be
changed to ``occupational physicians or other licensed occupational
health care professionals'', focusing on the HCP's training and
competencies in occupational medicine. ACOEM recognized the important
role of non-physicians such as nurses, physician's assistants, and
other health care providers, but argued that the healthcare provider
must be able to perform four basic functions to perform the duties of
an HCP required by the proposed ergonomics standard:
    (1) Make independent diagnoses (which is usually limited to
physicians, except in those states where nurse practitioners and
physician assistants are licensed for independent practice);
    (2) Conduct an appropriate physical exam,
    (3) Order appropriate treatment, and
    (4) Be able to relate musculoskeletal findings to work activities
(which requires an understanding of basic epidemiology).
    ACOEM further argued that OSHA's definition was questionable
because other federal agencies have refused to adopt OSHA's definition
of a ``licensed health care professional'' used in other standards.
AECOM cites as examples, a NIOSH policy statement on respirator use, as
well as the Department of Energy (DOE) rule on Beryllium. AECOM also
cited the variability of state health care licensing laws as a reason
for restricting the definition, and that state scope of practice laws
were ``never intended to be the mechanism to protect a worker from a
toxic, carcinogenic, or biological exposure in the workplace'' [Exhibit
30: 4699].
    The National Institute for Occupational Safety and Health (NIOSH)

    [s]upports OSHA's proposal that permits MSD management programs
to be administered by a variety of licenced HCPs * * * However, we
recommend that the clinical aspects of the program (medical
evaluations of symptomatic workers) be performed by licensed HCPs
under the supervision of HCPs licensed for independent practice
(including physicians, and nurse practitioners and physician's
assistants in those states where they are so licensed) (Exhibit 32-
450-1).

    In the final rule, OSHA has carried forward the definition from the
proposed rule:

    Physicians or other licensed health care professionals whose
legally permitted scope of practice (e.g. license, registration or
certification) allows them to independently provide or be delegated
the responsibility to provide some or all of the MSD management
requirements of this standard.


[[Page 68377]]


    The final rule's definition of HCP is desirable for several
reasons. Perhaps most important is that the HCP definition provides
employers with the flexibility needed to assure that injured employees
receive ``prompt and effective'' MSD management. Specialists and
occupational physicians are not always readily available, and the rule
allows the employer to consult health care professionals with these
qualifications when needed, but does not require the employer to seek
them out for each and every case. In some rural locations, access to
specialized HCP's may be limited, and even in more urban settings, it
may take significant time to get an appointment for an employee to see
a specialist. If the employee can see a physician in general practice
promptly, this may be the better option. Likewise, if an employer has
an occupational health nurse, the nurse can provide services
immediately and avoid delay.
    Each MSD case also requires its own level of occupational health
services. In some cases, a registered nurse or physician's assistant
may be able to recommend restrictions and conservative treatment and
resolve the problem. In other cases, the services of a physician or a
medical specialist may be needed to treat the employee. The final rule
does not restrict the employer's option to obtain more specialized
services, and it is a common practice for HCPs to refer cases needing
more specialized care to more qualified HCPs. OSHA sees no reason why
this system will not continue to function as well as it has in the
past.
    The HCP definition is consistent with many of OSHA's health
standards. In its most recent health standards (e.g., respiratory
protection, methylene chloride, proposed tuberculosis rule) the Agency
has relied on a broad definition of HCP, to allow HCPs to carry out any
of the regulatory requirements specified in a given standard, provided
that the medical function performed is within their scope of practice,
licensure, or certification. OSHA has not noted any significant
problems with the definition in employers implementation of these
standards, the definition appears to be working as intended, and OSHA's
broad definition of HCP published in the respiratory protection
standard has been upheld in the courts (American Iron and Steel
Institute v. OSHA, 182 F.3d 1261 (11th Cir. 1999)). In addition,
consistency from standard to standard is a desirable feature that makes
it easier for employers and workers to understand and follow the
standards.
    The definition also relies on the licensing requirements imposed by
the states. As stated in the proposal (FR 65842), OSHA believes that
issues of HCP qualifications and scope of practice are properly
addressed by State law and professional organizations. The states have
been regulating medical practice for quite some time, and appear to be
doing so effectively, so there is no reason to interfere with the
licensing procedures the states have implemented. Relying on the state
requirements will assure that unqualified or inappropriate individuals
do not provide medical services beyond their training and
qualifications, and the state licensing boards can continue to handle
cases where improper treatment is provided or improper actions are
taken.
    The final standard does not contain diagnostic or treatment
protocols. OSHA believes this is an area for the health care
professions to recommend. Also, because standards of care change over
time, it is the responsibility of the treating health care professional
to select treatments in accordance with current acceptable standards of
practice. NIOSH supports OSHA's ``[d]ecision not to include particular
diagnostic tests, treatment protocols, and clinical case definitions in
the MSD management section, or anywhere else in the ergonomic standard.
Standards of care change over time, evolving with new research,
technological innovations, and new therapies. To allow workers to be
provided with current, state-of-the-art clinical care, OSHA is correct
to leave diagnostic and therapeutic decisions to HCPs and their
professional organizations'' [Ex. 32-450-1].

Who Selects the Health Care Professional

    Some commenters raised the question of whether the employer or the
employee get to choose the health care professional providing services.
The American Apparel Manufacturing Association remarked

    OSHA has also failed to address the issue of choosing doctors.
In some states, patients have the right to choose their own
physicians. In other states, employers choose the doctors. Does the
employer choose the HCP under the proposed federal rule, or could
employees choose a doctor who will diagnose an MSD without real
cause and expose companies to possible fraudulent actions? Does the
proposed law supercede state laws in those states where the patient
may choose? (Ex. 30-4470)

    Several commenters recommended that OSHA specify in the standard
that the employer has the right to choose the physician (see, e.g. Exs.
30-3188, 30-3284, 30-4301, 30-4467, 30-4564, 30-4607, 32-300-1, 32-337-
1) In a representative comment, Southern California Edison argued that:

    Since the employer is required to follow the HCP's advice, the
employer must be able to trust the diagnosis. However, not all
healthcare providers are qualified by training or experience to
evaluate, treat and provide restrictions for musculoskeletal
disorders. If the employee is permitted to select the healthcare
provider, as they are allowed by some states' workers' compensation
laws, they may not select the provider that will have the time or
experience to work with the company in determining appropriate
restrictions (Ex. 30-3284).

    Another group of commenters recommended the opposite, that the
employee should be allowed to select the physician (see, e.g. Exs. 30-
3033, 30-3034, 30-3035, 30-3258, 30-3259, 30-4159, 30-4536, 30-4547,
30-4549, 30-4562, 30-4627, 30-4776, 30-4800, 31-242). A form letter
submitted by a number of individual employees made several arguments,
including ``[t]he HCP must be one of the employee's choosing, not the
employer's (or insurance company's) choosing. Otherwise, a biased
opinion may result, and the employee's condition can easily worsen'';
that general practitioners ``are often the HCPs that are chosen by the
employer or insurance company to diagnose work-related injuries under
the Workers' comp system. It is common to underestimate the seriousness
and long term consequences of MSD injuries, and consequently, not
enough temporary work restrictions are recommended''; and ``HCPs chosen
by someone other than the employee may be biased in favor of the
employer or insurance company in order to obtain future referrals''
(Ex. 30-3332).
    The comments from both employers and employees show a large measure
of distrust for health care professionals selected by either. It is for
this reason that the final rule includes provisions for multiple HCP
review. It is OSHA's view that, when the employer provides access to an
HCP under the final rule, the employer has the right to select the HCP.
However, the employee has a right to a second opinion if he or she
disagrees with the employer selected HCP, under the provisions of
paragraph (s). A more detailed discussion of HCP selection is contained
in the discussion of multiple HCP review.

``Prompt'' MSD Management

    The proposal would have required employers to respond promptly to
the reports of employees with MSDs, and the final rule includes similar
language. Whenever an employee reports an MSD,

[[Page 68378]]

the key is to take action quickly to help ensure that the MSD does not
worsen. Many commenters agreed that early reporting and prompt response
were the key to resolving MSD problems quickly and without permanent
damage or disability [Exs. 30-4468, 32-78-1, 32-85-3, Tr., p 10516).
For example, the American College of Occupational and Environmental
Medicine (ACOEM) remarked that ``[e]mployers should ensure that injured
employees are provided with `prompt access to health care professionals
or other safety and health professionals as appropriate.' The early
reporting and intervention process is important to the effectiveness of
a medical management program'' (Ex. 30-4468). Other commenters argued
that the first response to any report of MSD should be evaluation by a
health care professional (Exs. 30-651, 30-3826, 30-3686, 30-2387, 30-
3748, 30-4468, 32-339-1, 32-111-4, 32-182-1, 30-4538, 32-210-2, 32-461-
1, 32-85-3, 32-210-2, 32-450-1).
    Some commenters stated that ``promptly'' was vague and ill defined,
questioning what the term ``promptly'' meant in the provision directing
employers to respond to employee reports (see, e.g. Exs. 30-115, 30-
2208, 30-33336, 30-3354, 30-3845, 30-3848, 30-4540). Bruce Cunha RN MS
COHN-S (Ex. 31-303) stated that ``Five days should be adequate time to
start the management process. If it is enough time to arrange a visit
with a health care professional is questionable. Since OSHA allows the
employer to choose the health care provider, it should be expected that
it may take longer than 5 days to get an appointment.''
    The final rule requires the employer to provide ``prompt'' MSD
management. The term ``prompt,'' as used in this paragraph, means as
soon as possible or within a reasonable period of time, consistent with
the apparent severity of the MSD or with other conditions (e.g.,
accessibility of medical care). OSHA believes, as the proposal
discussed, that employers will almost always be able to provide MSD
management within a one to five day window (64 FR 65840). Action within
this interval will generally prevent the employee's condition from
becoming more severe.
    In the final rule, OSHA has provided clear guidance that prompt is
one week. Paragraph (x), Table 2. Compliance Time Frames states that
MSD management must be initiated within 7 calendar days after the
employer determines that a job where an employee experiences an MSD
incident meets the action trigger. OSHA finds that one week is more
than enough time to initiate MSD management, select an HCP, and set an
appointment for the employee to see an HCP.
    In some workplaces, an occupational health nurse is available to
take reports of MSDs, and in this case MSD management begins
immediately, so promptness is not an issue. In most cases, however,
employers will not have an on-site HCP, since smaller workplaces make
up the overwhelming majority of all workplaces. In such cases, OSHA is
aware that it may take a few days to arrange an appointment with an
HCP. There are circumstances, however, where immediate evaluation by an
HCP is warranted. For example, an employee experiencing severe shoulder
pain with numbness down her arm, an inability to sleep due to pain, and
decreased range of motion of the arm and shoulder should immediately be
referred to an HCP.
    Prompt MSD management helps limit further exposure to the MSD
hazard or hazards associated with the employee's job helps to ensure
that the employee's condition does not worsen while the employer
analyzes the problem job and makes workplace changes to correct the
hazard.

Providing MSD Management at no Cost to Employees

    Both the proposed rule and the final rule require the employer to
provide MSD management at ``no cost to employees.'' The requirement to
provide MSD management at no cost drew little comment. Some commenters
supported the no cost clause (see, e.g., Exs 30-4536, 30-4547, 30-4549,
30-4562, 32-78-1). Vicorp Restaurants asked OSHA if the employer is
required to pay even if the report is ultimately determined to be
frivolous, exaggerated, or fraudulent (Ex. 30-3200). Other commenters
argued that the cost for medical assessment of illnesses is too high
(see, e.g., 30-1026, 30-1302, 30-0295, 30-1362, 30-0070, 30-0262, 30-
0586, 30-0280, 30-3760). A few commenters suggested that OSHA clarify
that ``at no cost'' doesn't include loss from production based pay and
bonuses (Ex 30-3354, 30-3848, 30-4530, 30-4799).
    As OSHA explained in the preamble (64 FR 65841) the term ``at no
cost to employees'' includes making MSD management available at a
reasonable time and place for employees (i.e. during working hours) and
that the term no cost is interpreted in the same way as OSHA's other
health standards. If an employee's MSD report is found to be
fraudulent, then the employer is not required to pay for MSD
management. A fraudulent claim would be one that is found to be non-
work-related, and MSD management is only required for work-related MSD
incidents. These wages would not include production bonuses or other
premium payments, but for workers who are paid on a piecemeal basis,
the employer must assure that the employee would not lose pay by
visiting an HCP. This can easily be accomplished by paying the worker
the average piecemeal rate he or she had been earning.
    OSHA recognizes that MSD management imposes costs on employers, and
these costs are reflected in the economic analyses for the final rule.
However, if employees were made to absorb the costs of MSD management,
they would be less likely to report MSDs to their employer, which would
have a detrimental effect on the overall functioning of the rule.

Follow-up

    The final rule, as did the proposal, requires that the employee
receive appropriate follow-up during the recovery period. Follow-up is
defined as the process or protocol the employer, safety and health
professional, or HCP uses to check up on the condition of employees
with covered MSDs when they are given temporary work restrictions or
removed from work to recover.
    OSHA received very little comment specific to follow-up. The
Southern California Edison company stated that the proposed rule:

    [p]laces the responsibility on the employer to ensure that the
employee goes to the HCP initially and as required thereafter. This
assumes a cooperative employee. The final standard should make clear
that an employer could not be cited because an employee refuses to
see the HCP (Ex. 30-3284).

    OSHA has included the requirement for follow-up in the final rule.
Follow-up of injured employees is essential to ensure that MSDs are
resolving. Follow-up generally means additional visits to the HCP to
see if the employee is getting better or is getting worse. This process
helps to ensure that injured employees do not ``slip through the
cracks,'' for example, by being left in alternative duty jobs long
after they have recovered, or by being given work restrictions but
failing to follow up to see whether the restrictions helped. If follow-
up is not provided, neither the employer nor the HCP will know whether
an employee's MSD symptoms are abating or becoming worse. Where follow-
up is not provided or the healing process is not properly monitored,
injured employees may never be able to return to their jobs.
    The employer need not be fearful of citation if the only reason
follow-up is not completed is because the employee refuses to see an
HCP. The employer is

[[Page 68379]]

required to provide access to an HCP, but is not required to force an
employee who does not wish to see the HCP to do so.

Medical Treatment

    During the course of reviewing the comments to the proposed
ergonomics standard, OSHA has noticed that some commenters believed
that the proposed rule would require the employer to provide medical
treatment as part of its MSD management provisions (see, e.g., Exs 30-
564, 30-1251, 30-2425, 31-353). Roy Gibson (Ex. 30-2526) remarked that
``Once employees are aware that medical treatment is an option open to
them, they will request treatment.'' Allfirst Bank (Ex. 30-1251) asked
``How can we assure `effective' treatment?''
    OSHA wants to make it clear that the final rule does not require
the employer to provide medical treatment to injured employees. While
specific medical treatment may be appropriate, such as medicines,
physical therapy, chiropractic care, or even surgery, the final rule
does not require the employer to provide such services. The rule
requires the employer to provide access to an HCP, provide needed
restrictions, provide information to HCP's and employees, and provide
WRP, but the standard does not address the medical treatment afforded
employees. Therefore, if an injured employee needs medical treatment,
the employer is not required to pay for them.

Temporary Work Restrictions

    The final rule, like the proposal, requires the employer to provide
temporary work restrictions, where necessary, to employees with MSDs.
Work restrictions include any limitation placed on the manner in which
an injured employee performs a job during the recovery period, up to
and including complete removal from work.
    Many commenters supported the requirement of providing temporary
work restrictions, when necessary (see, e.g., Exs. 30-3686, 30-3813,
32-339-1, 32-111-4, 32-185-3-1, 32-182-1, 30-4538, 31-353, 32-461-1,
32-198-4, 32-450-1, 37-12). NIOSH described the role of work
restrictions as the first line of defense in addressing MSDs (Ex. 32-
450-1) and that ``[c]ompanies should be able to continue the practice
of placing symptomatic workers in temporary positions until a prompt
evaluation by an HCP can be performed * * * '' (Ex. 32-450-1). Dr.
Robert Harrison stated that:

    Data from several studies suggest that job modification is
significantly associated with improvement in clinical outcome. These
studies have been summarized in a critical appraisal of the
effectiveness of modified work programs (Krause 1998). This
comprehensive review found that modified work programs facilitate
return to work for temporarily and permanently disable workers.
Employees with access to modified work return to work after a
disabling injury about twice as often as employees without access to
any form of modified duty . . . The findings from these studies
conclusively show that early intervention and case management,
including modified/restricted duty, will help prevent prolonged
disability (Ex. 37-12).

    However, some commenters argued against restrictions and
recommended deleting the work restriction and work restriction
protection provisions from the final rule (see, e.g., Exs. 30-1294, 30-
3765, 30-3813, 30-3956, 30-3845, 32-300-1). For example, the Edison
Electric Institute argued that providing work restrictions

    [m]ay conflict with existing collective bargaining agreements
and current or future company philosophies on accommodating
employees on restricted duty when there is no work available which
they can perform under the indicated restrictions. This is
especially true given the current climate of mergers, divestitures
and competition in the electric utility industry (Ex. 32-300-1).

    Other commenters asked what an employer is to do if there is no
alternative work at the establishment (Exs. 30-2208, 30-3826) or no
productive work (Ex. 30-240) available for the employee with the MSD.
The Department of Defense stated that it may not be possible to provide
work within an employee's work restrictions at some federal agencies
(Ex. 30-3826).
    A number of commenters stated that it was inappropriate for an
employer to determine if an employee needs work restrictions before the
employee is seen by a HCP (see, e.g., Exs. 30-3033, 30-3034, 30-3035,
30-3185, 30-3188, 30-3258, 30-3259, 30-3284, 30-3765, 30-4046, 30-4159,
30-4536, 30-4547, 30-4549, 30-4562, 30-4607, 30-4647, 30-4713, 30-4776,
30-4800, 32-300-1, 500-163). For example, IBP Inc. argued that ``[a]s a
rule, [they] are unable to determine an appropriate work restriction
until the medical evaluation is completed. As a result, it is
impossible to advise the HCP of available work restrictions'' (Ex. 30-
4046). The Edison Electric Institute (EEI) argued that:

    An HCP is better qualified to make an initial determination of
an employee's physical limitations (i.e., lift no more than 10
pounds, do not stand for more than 4 hours, etc.). The employer then
is best qualified to determine appropriate work restrictions taking
into account the physical limitations described by the HCP. OSHA
provides no valid reason to complicate the process by having the HCP
make the choice of work restrictions.
    EEI recommends that Sec. 1910.931(b) be deleted. Additionally,
the phrase ``temporary work restrictions'' should be replaced with
``physical limitations'' in Sec. 1910.932(b). This would then
require only that the HCP provide a written recommendation of
physical limitations. Additionally, the wording of Sec. 1910.933(a)
should be changed to reflect that the employer must take the HCP's
physical limitations information and select the proper temporary
work restriction that best addresses the limitations (Ex.32-300-1).

The Organization Resource Counselors suggested that there may be
circumstances where the HCP makes errors and recommends inappropriate
restrictions, suggesting OSHA add the phrase ``[e]xcept when you
determine those recommendations to be clearly erroneous based on review
of the written opinion by a physician or other HCP with specific
training and experience in diagnosing and managing MSDs'' (Ex. 30-
3813).

    The United Mine Workers of America (UMWA) commented that complete
removal from the workplace ``is an unacceptable response to the
problem'' and that by including this in the definition of work
restriction OSHA ``[h]as tacitly authorized the termination of
employees who suffer from MSDs.'' The UMA goes on to recommend that all
such language be deleted from the standard (Ex. 500-71-86).
    However, under the final rule, the employer must provide
restrictions deemed to be necessary by either the employer or the
health care professional. Both the employer and the employee whose work
has been restricted need to understand (1) what jobs or tasks the
employee can perform during the recovery period, (2) whether the
employee is permitted to perform these jobs or tasks for the entire
workshift, and/or (3) whether the employee needs to be removed from
work entirely in order to recuperate. Employees for whom restrictions
have been assigned must be properly matched with those jobs that
involve work activities that will accommodate the requirements of the
restriction and thus facilitate healing of the injured tissue.
    If an HCP recommends restricted work, employers must follow such
restrictions. Thus, in those instances where the employer refers the
employee to an HCP, the employer has to follow the temporary work
restriction recommendations, if any, included in the HCP's opinion. If
the employer receives a restricted work recommendation they believe to
be inappropriate, the employer may refer

[[Page 68380]]

the employee to an HCP with specialized training for further
evaluation, but until the employer receives a new recommendation for
restrictions, the employer must follow the recommendation of the first
HCP. The provision of work restrictions to injured employees is a vital
component of MSD management. Work restrictions provide necessary time
for the injured tissues to recover. They are often considered one of
the most effective means of resolving MSDs, especially if restrictions
are provided at the earliest possible stage. If work restrictions are
not provided, it may not be possible for the employee to recover, and
permanent damage or disability may result.
    For work restrictions to be effective, employers must ensure that
they fit the functional needs of the injured employee. For example,
work restrictions are only effective if they reduce or eliminate the
employee's exposure to the workplace risk factors that caused or
contributed to the MSD, or significantly aggravated a pre-existing MSD.
To find the right fit, employers may need to examine potential
alternative duty jobs to ensure that the employee will still be able to
rest the affected area while performing the temporary job. Identifying
appropriate work restrictions may require the collaboration of
different persons such as HCPs, safety and health personnel, persons
involved in managing the ergonomics program, and the injured employee.
    The final rule's use of the term ``work restrictions'' includes
both restrictions that keep the employee at work, such as half-days or
job modifications, as well as full days away from work. This is in
contrast to OSHA's recordkeeping rule, which defines restricted work
separately from days away from work. Several of the commenters failed
to recognize this important definitional aspect of the proposal.
Because days away from work are included, the employer is not required
to invent restricted duty assignments that keep the employee at work.
If the employer does not have restricted work available, restricted
work conflicts with collective bargaining agreements, or the employer
simply wishes to do so, the employer may use days away from work to
meet the requirement to provide restricted work. Of course, if the
employee is sent home, he or she must provide WRP benefits as required
by paragraph (r) of the final rule.
    Although some covered MSDs could be at such an advanced stage that
days away from work are the appropriate treatment, such removal is
usually the recommendation of last resort. A recent study (Ex. 600-)
suggests that removal from the workplace is assigned by HCPs in only
about three percent of all MSD cases. Where appropriate, work
restrictions that allow the employee to continue working (e.g., in an
alternative job, or by modifying certain tasks in the employee's job to
enable the employee to remain in that job) are preferable during the
recovery period. These types of restrictions allow employees to remain
within the work environment. Studies indicate that the longer employees
are off work, the less likely they are to return (Exs. 26-685, 26-919,
26-923, 26-924). A case study of a nursing home's early return to work
program ``saved approximately $1 million in financial losses and
improved injured workers' morale'' (Ex. 502-486).
    If employers provide the HCP with accurate and detailed information
about the employees job and, at a minimum, informs the HCP that the
employer is willing to accept the employer back into the workplace with
job restrictions, it is more likely that the HCP will recommend
restricted activity at work rather than complete removal. Employers
need to communicate with HCPs and supervisors to coordinate the
provision of work restrictions.
    Under this provision, employers are not required to provide the
employee with the alternative job or work restrictions simply because
the employee requests them. Therefore, if an HCP recommends that the
employee not perform lifting tasks or not engage in repetitive motions
during the recovery period, the employer is free to provide any form of
work restriction that effectuates that work restriction recommendation.
For example, if the recommended work restriction requires fewer
repetitive motions, the employer can move the employee to an
alternative duty job as a way of achieving this restriction. Or the
employer might reduce the number of repetitions expected to be
performed in the employee's current job in a number of ways: by
reducing the amount of time the employee performs repetitive motions,
by reducing the speed at which the employee performs the tasks, or by
eliminating certain repetitive tasks during recovery. In the case of
lifting jobs, the work restriction can be as simple as limiting the
types or weights of objects the employee must move or lift.
    The OSH Act prohibits employers from terminating an employee for
reporting an MSD (or any injury or illness). OSHA does not condone the
inappropriate termination of any employee for reporting an MSD (or any
other injury or illness). ``Complete removal from the workplace''
simply denotes the provision of time completely off of work (days away
from work) to allow the employee to recuperate from the MSD. Of course,
some employees may become completely disabled and have to terminate
employment. OSHA believes that these cases are fairly infrequent, and
the ergonomics programs required by final rule should make them even
more so.

Written Opinion From the HCP

    The final rule, as did the proposal, requires the employer to
obtain a written opinion from the HCP and provide a copy to the
employee. This paragraph also instructs the employer that he or she
must inform the HCP that the written opinion is not to contain any
medical information not related to workplace exposure to risk factors,
and that the HCP may not communicate such information to the employer,
except when authorized by state or federal law. Paragraph (q) discussed
below, then instructs the employer as to the specific items the written
opinion must contain.
    This section of the proposal received very little comment. A few
commenters supported the written opinion requirement (Ex. 30-3813, 30-
3686). The American Nurses Association supported the proposed
requirement for a written opinion, remarking that ``The PLHCP should
inform the employee and the employer, in writing, of the results of the
evaluation, temporary work restrictions and medical conditions
resulting from exposure to ergonomic hazards'' (Ex. 30-3686).
    Other commenters objected to the requirement for an employer to
obtain a written opinion (see, e.g., Exs. 30-1070, 30-3231, 30-3336,
30-3347, 30-3392, 30-3765, 30-4185, 30-4470, 30-4496, 31-353). Several
commenters objected to the burden of obtaining a written opinion from
the HCP (see, e.g., Exs. 30-3336, 30-4185, 30-4470, 30-4496). Tyson's
foods believed that the requirement would be particularly onerous
because

    [t]he proposed MSD management provisions also contemplate
separate opinions for each MSD case. Under OSHA's injury and illness
recordkeeping requirements, the identical condition may result in
numerous OSHA recordable cases * * * requiring a separate written
opinion for each case has the very real potential to create a
mountain of paperwork for the same condition which may repeat itself
throughout the year. (Ex. 30-4185).

    Other commenters argued that the employer should not be required to
tell the HCP what to provide (see, e.g., Exs

[[Page 68381]]

30-1070, 30-2350, 30-4470, 30-4674, 32-234-2) and believed that if the
HCP's opinion is incomplete, the employer should not be cited or
otherwise be held accountable (see, e.g., Exs 30-1070, 30-4470, 30-
4674). The American Apparel Manufacturing Association asked ``If the
HCP's written opinion fails to include all elements stated in
[proposed] Sec. 1910.932, should the HCP or the employer choosing that
HCP be held responsible?'' (Ex. 30-4470). The Uniform and Textile
Services Association added ``[e]mployers retain the responsibility for
the opinions content but not the control over it. Employers will have
no choice but to pay whatever fees HCPs impose to prepare reports * *
*'' (Ex. 30-3336).
    Other commenters stated that HCPs are reluctant to provide written
opinions, and that HCPs are too busy to provide written documentation
(see, e.g., Exs 30-2350, 30-3231, 32-234-2). On the other hand, Tyson's
Food remarked that the written opinion is not necessary because HCP's
already keep written medical records and provide employees with access
under the OSHA Standard 1910.1020 Access to medical records (Ex. 30-
4185). Tyson's Food (Ex 30-4185) and Johnson & Johnson (Ex. 30-3347)
provided identical comments expressing concern about which HCP needs to
provide an opinion, remarking that:

    [f]or any given MSD complaint, there may be a nurse, in-plant
physician, physical therapist, chiropractor, outside specialist
physician, and outside physician selected by the employee, who are
all involved in the treatment of a case * * * It is not clear who
``the'' [emphasis in original] HCP is when there are multiple HCPs
involved in a case.

    OSHA has carried forward the provisions that require the employer
to obtain a written report from the HCP and provide a copy to the
employee. A written report is needed so it is clear to all parties what
needs to be done to resolve the employee's MSD. This opinion must be
written because oral communication is more susceptible of
misinterpretation. Employers must keep a record, and the easiest way to
do this is if the opinion is in writing. OSHA recognizes that the
requirement adds burden to the final rule, but believes that the need
for the requirement outweighs the minimal burden imposed. OSHA does not
find the argument that HCP's will be uncooperative or charge excessive
fees to be persuasive. The employer has the right to select the HCP,
and if the HCP is uncooperative or charges excessive fees, the employer
is free to choose another HCP.
    The written opinion must explain what actions the HCP recommends to
resolve an MSD. These recommendations may include temporary work
restrictions or the work the employee may do during the recovery period
as well as the follow-up necessary to ensure that the MSD resolves. It
is important that the HCP's opinion be provided in writing to the
employer or the person(s) at the workplace who are responsible for
carrying out the MSD management requirements of the standard. Employers
need to know about the employee's medical condition to ensure that the
restricted work activity they provide satisfies the HCP's
recommendations, and whether the employee requires time away from work.
The HCP's written opinion is especially important for the on-site
person who is responsible for follow-up. That person needs to
understand the HCP's plan for follow-up to make sure that the plan is
implemented effectively. The information is also needed by the safety
and health personnel who will be making workplace corrections. As the
Organization Resource Counselors stated:

    OSHA seems to assume that an HCP will always be designated by
the employer to take a key role in finding and fixing MSD hazards.
In fact, in most cases, other professionals will be designated by
the employer to assume this role. Therefore, they must be provided
with meaningful information regarding the employee's capacity to
perform various tasks (Ex. 30-3813).

    As to the need to obtain a separate HCP opinion for each recordable
MSD, the final rule does not use a recordable MSD as a trigger and the
point is no longer valid. An HCP opinion is required only when an MSD
incident occurs that exceed the action trigger. Likewise, it is not
necessary for each and every HCP that is involved with the case to
provide a written opinion. A written opinion from the primary treating
HCP is needed to provide the employer with the basic information
required by paragraph (q) of the final rule. If the initial is an
occupational health nurse, and the case is referred immediately to a
physician, there is no need for the occupational health nurse to
provide a written opinion, the opinion of the physician will be
adequate. Likewise, it makes no sense for a physical therapist or some
other HCP who is strictly providing treatment to provide a written
opinion. However, if the employer sends the employee to a specialist, a
written opinion to the employer would be useful to see if the more
specialized knowledge of the specialist HCP changes the need for
restrictions, results in a different diagnosis, etc.
    This paragraph also requires an employer to ensure that the
employee promptly receives a copy of the opinion sent to the HCP.
Several commenters opposed this provision (Exs. 30-3765, 30-4185, 30-
4567), arguing that 29 CFR Part 1910.1020 gives better access to
medical info (Exs. 30-4185), that oral communication between HCP and
employee is adequate (Exs. 30-4185, 30-4567), that the employer should
not be accountable for communications between the HCP and the employee,
(Exs. 30-3765, 30-4567), and that similar problems in the bloodborne
pathogens standard cause problems (Ex. 30-4567). In a representative
comment, the American Ambulance Association stated that:

    A similar provision exists in the Bloodborne Pathogen standard
and has been the cause for numerous violations by OSHA inspectors.
This proposal will produce the same consequence. Note that during an
examination and treatment by a healthcare professional, the employee
and healthcare professional are present, while the employer is not.
It is appropriate to assume that the healthcare provider
communicates with the employee, just as healthcare professionals
ordinarily communicate with patients.
    To interject the employer into the communications is ludicrous.
To further require the physician to produce a written document, that
is not produced in the ordinary course of business, and to require
the employer to obtain that document and furnish it to the employee
is a process fraught with error. If OSHA's intent is to assure that
employees receive a written document from a healthcare provider,
then OSHA should require the healthcare provider to produce the
document and hand it to the employee (Ex. 30-4567).

    It appears that these commenters did not realize that the only
requirement put upon the employer is to simply provide a copy of the
written opinion the employer receives to the employee. A separate
written report for the employee is not required. OSHA continues to
believe that a copy of the written report is essential if the employee
is to participate in his or her own protection. It is particularly
important for the employee to be knowledgeable about what work
restrictions, if any, he or she has been assigned and for how long they
will apply. Therefore, OSHA has included the requirement in the final
rule.

Confidentiality for Non-Workplace Information

    Paragraph (p)(5) requires employers to instruct the HCP that any
findings, diagnoses, or information unrelated to workplace exposure to
risk factors must not be included in the written opinion or
communicated to the employer,

[[Page 68382]]

except when authorized by state or federal law. The proposed rule
contained a similar provision. This requirement is intended to
encourage employees to disclose to the HCP all information about their
health, and their activities both on and off the job, that could have a
bearing on the MSD.
    Full disclosure by employees will assist HCPs in evaluating the
causal role of occupational risk factors and in determining the nature
and duration of appropriate work restrictions. HCP's need this
information to recommend work restrictions and follow-up that fit the
employee's capabilities. This information will also enable the HCP to
inform employees about activities, including non-work activities, that
could aggravate the MSD and delay or prevent recovery. It is important
for employees to know about any changes they can make to their on-and-
off the job activities that will reduce their exposure to MSD hazards
so that they may participate effectively in the recovery process. An
example of an activity that sometimes must be postponed is a
recreational activity that could place stress on the injured area of
the body during the recovery period.
    Employees will be reluctant voluntarily to disclose information
about their health or outside activities if confidentiality is not
maintained. MSDs may be associated with a variety of conditions,
including hypertension, diabetes, kidney disorders and pregnancy, as
well as the use of certain prescription drugs. See Ex. 30-3004 at p. 5;
Ex. 30-3167. However, many employees would not want this health
information revealed to their employers. The privacy protection
accorded medical records under state and federal laws reflects general
agreement that disclosure of information about a person's health status
could result in embarrassment, stigmatization and discrimination in the
workplace and elsewhere. See Doe v. City of New York, 15 F.3d 264, 267
(2d Cir. 1994) (``Extension of the right to confidentiality to personal
medical information recognizes that there are few matters that are
quite so personal as the status of one's health, and few matters the
dissemination of which one would prefer to maintain greater control
over.'') Similarly, information about employees' private off-the-job
activities could be embarrassing and harmful if disclosed. Therefore,
OSHA believes that it is important to preserve the confidentiality of
personal information revealed by employees to the HCP that is not
related to workplace exposure to MSD risk factors.
    OSHA explained the need for this kind of privacy protection in the
proposed rule, as follows:

    The confidentiality provision is necessary to ensure that
employees will be willing to provide complete information about
their medical condition and medical history. Employees will not
divulge this type of personal information if they fear that
employers will see it or use it to the employee's disadvantage. For
example, employees may fear that their employment status could be
jeopardized if employers know that they have certain kinds of
medical conditions, which may be completely unrelated to work or
exposure to MSD hazards, or if they are taking certain kinds of
medication (e.g., seizure medication, an anti depressant). In this
sense, the ergonomics rule is * * * intended to be consistentntended to be consistent with
the confidentiality requirements of the Americans with Disabilities
Act. 64 Fed. Reg. 65844.

    OSHA recognizes that information subject to protection under the
final rule may, in some circumstances, be disclosable under state or
other federal law. For example, many state laws authorize the
disclosure of medical information to employers in connection with
workers' compensation claims. The agency does not intend the final
rule's confidentiality requirement to conflict with state or federal
law authorizing disclosure, and has included language to that effect in
paragraph (p)(5).
    The AFL-CIO supported the confidentiality requirement, noting that
it is consistent with similar provisions in other OSHA standards and
with guidelines in the American College of Occupational and
Environmental Medicine (ACOEM) Code of Ethical Conduct (Ex. 500-218,
p.117). Other comments were also supportive (See, e.g. Exs. 30-3686,
32-185-3-1). However, a substantial number of commenters were critical
of the provision. These parties argued that prohibiting HCPs from
disclosing information about the contribution of non-occupational risk
factors will make it impossible for employers; (i) to determine whether
a reported MSD is work-related, (ii) to comply with the final rule's
requirements to monitor the condition of an employee with a work
restriction to determine whether the MSD is resolving, and to institute
effective hazard control measures for the problem job, and (iii) to
evaluate a claim for workers' compensation benefits arising from the
MSD. These arguments, and OSHA's responses, are discussed below.
1. Confidentiality and Work-Relatedness Determinations
    A number of commenters argued that the confidentiality requirement
would seriously hamper the employer in making determinations required
by this final rule, and by the Recordkeeping rule in 29 C.F.R. Part
1904, about whether reported MSDs are work-related (see, e.g. Exs. 30-
3004, 30-3061, 30-3086, 30-3167, 30-3177, 30-3231, 30-4334, 30-4564,
30-4674, 30-4713, 30-4843, 30-4844). Combe Inc. argued that:

    The unreasonable restraints the Proposed Standard places on the
employer's ability to obtain information to meaningfully evaluate
the work-relatedness of an employee's MSD claim further creates an
environment of uncertainty and will force the employer into possibly
unnecessary or deficient decision-making. Section 1910.932(a) of the
Proposed Standard expressly provides that the HCP must be instructed
`that any findings, diagnoses or information not related to
workplace exposure to MSD hazards must remain confidential and must
not be put in the written opinion or communicated to the employer.'
Thus, if Combe were to receive a single carpal tunnel syndrome
complaint from an employee on one of its assembly lines * * * It
would be barred from learning whether this employee has any of the
non-occupational risk factors the scientific literature associates
with the development of carpal tunnel syndrome * * * . Because the
Proposed Standard would prohibit Combe from learning this essential
non-occupational risk factor information or even from learning if
the HCP inquired about this critical data or evaluated it properly,
Combe would be unable to determine if the new claim is, in fact, the
result of non-occupational factors or a deficiency in its heretofore
successful ergonomic interventions (Ex. 30-3004, pp. 5-6).

    In a similar vein, the Chamber of Commerce argued:

    [T]he fact that employers cannot receive any information related
to non-work factors necessarily means that they will conclude that
an employee complaint is work-related. After all, if employers are
deprived of information about possible non work-related causes, what
is left for them to consider? Regardless of the real cause of the
muscluloskeletal complaint, in many cases employers will be forced
to conclude that the injury is [work-related] because there will
be--and because there can be--no evidence of exposures outside the
workplace (Ex. 30-1722, p. 78).

    These commenters correctly point out that employers must sometimes
consider non-occupational factors, including pre-existing medical
conditions, in deciding whether events or exposures at work ``caused or
contributed'' to an MSD. See definition of the term Work-related in
paragraph (z). However, they misunderstand the MSD management provision
in arguing that the confidentiality requirement will deprive employers
of information necessary to make work-relatedness determinations. The
MSD Management

[[Page 68383]]

provisions in paragraph (p), including the confidentiality requirement,
apply when an employee has experienced an MSD Incident in a job that
meets the Action Trigger. ``MSD Incident'' is defined to include only
work-related MSDs meeting certain criteria. See paragraph (z).
Therefore, the employer must decide that an MSD is work-related before
it is required to implement the MSD Management requirements in
paragraph (p).
    Moreover, OSHA believes that it will rarely be necessary to delve
into employees' private lives to make this determination. In most
cases, employers will be able to decide if work is a contributing
causal factor based on the type of injury and the nature of the
employees' work activities. The final rule will facilitate this process
because it includes a Basic Screening Tool that allows employers to
determine whether risk factors are present in the job at levels of
concern. In these cases, confidentiality protection is necessary to
assure full disclosure to HCPs.
2. Confidentiality and the Employer's Duty To Follow-Up on the
Employee's Recovery and To Control MSD Hazards
    Some parties argued that the confidentiality requirement is
fundamentally inconsistent with the duty imposed on the employer to
check up on the progress of an employee with a work restriction to see
that the injury is resolving, and to control the MSD hazards in problem
jobs. The comment submitted by Layflat Products, Inc. is
representative:

    OSHA cannot have it both ways. * * * Employers should not be
forced to undertake workplace accommodations designed, at least in
part, to enable the employee to continue to work without aggravating
an MSD, or to provide an opportunity to recover, while at the same
time effectively barring employers from having any effective means
to prevent an employee from continuing to engage in conduct outside
of work which the treating HCP has concluded and advised the
employee will aggravate or prolong the MSD and, thereby, nullify the
remedial efforts which the proposed standard would mandate the
employer to take. * * * The preamble to the proposed rule also at
least suggests that the employee's progress in recovery may have
some bearing on the determination whether a proper ``job fix'' has
been accomplished (Ex. 30-3061).

    The NSBU voiced concern that ``numerous [health] conditions make
contributions to musculoskeletal complaints. * * * In addition a vast
number of outside activities engaged in by employees may contribute
equally or much more substantially to such complaints. Yet employers--
who would be required to march their workplaces along the path of
incremental abatement at great cost and disruption--are not allowed to
even contemplate the potential role of such individual pursuits,
activities or conditions'' (Ex. 30-3167). (See also Exs. 30-1722, 30-
3211, 30-3231, 32-337-1)
    OSHA acknowledges that the confidentiality requirement is a
compromise. At the same time, OSHA believes that confidentiality is
essential to ensure employees' willingness to disclose personal health
and other private information to HCPs, who, in many cases, make the
initial recommendation about work restrictions. In OSHA's view,
assuring that HCPs have access to information necessary to fulfill
their central role in the MSD Management process is of overriding
importance.
    OSHA also believes that maintaining confidentiality in the personal
information employees provide to HCPs will not seriously disadvantage
employers. The purpose of work restriction requirements is to ensure
that the injured employee's exposure to workplace risk factors is
reduced or eliminated during the recovery period. The employer must
know of the specific activities or motions to be restricted and what
jobs, if any, satisfy these restrictions. Once the employee has been
placed in a job that rests the affected area, or is removed from work
entirely to recover, the employer's compliance obligation is satisfied,
even if the employee's recovery is complicated by non-occupational
factors. Thus, the confidentiality requirement should not hamper the
employer's ability to comply with MSD Management requirements.
    It is true that employers have a financial interest in ensuring
that employees do not engage in non-work activities that could prolong
the period for which WRP benefits must be paid. However, the final rule
contains mechanisms to shield employers from the costs of prolonged
WRP. The rule provides a procedure for HCPs to inform employees about
medical conditions associated with exposures to risk factors, and any
non-work activities that could impede their recovery. This information,
conveyed directly by the HCP, will go far toward encouraging employees
to seek appropriate treatment, and to refrain from potentially harmful
outside activities during recovery. The rule also reduces the maximum
duration of WRP benefits from six months, as proposed, to ninety
calendar days.
    OSHA has also addressed the concerns of some commenters that the
confidentiality requirement could undermine employer's efforts to
control MSD hazards. Under the proposed rule, employers could have been
required to institute control measures incrementally when MSDs occurred
in problem jobs. Commenters correctly pointed out that if the success
of ergonomic interventions is to be measured by the occurrence of MSDs
in problem jobs, employer knowledge about non-occupational factors
associated with those MSDs assumes greater significance.
    However, the final rule establishes different and more definite
criteria for reducing MSD hazards. As explained in the preamble
discussion of paragraph (k), the final rule sets out concrete steps
that employers may take to reduce MSD hazards to acceptable levels.
When employers take these steps, the occurrence of an MSD in the job
does not require further action as long as the controls are still in
place and functioning and no new hazards have arisen. OSHA believes
that these changes, reflected in paragraph (k), address the concerns
raised about the effect of the confidentiality requirement on the
employer's hazard control obligation. For these reasons, OSHA concludes
that preserving the confidentiality of information unrelated to
occupational exposure to risk factors is necessary to effectuate the
purposes of the standard and will not work an undue hardship on
employers.
3. Confidentiality and Workers' Compensation
    Finally, some commenters argued that the restrictions imposed upon
HCPs' disclosure of information could preclude employers from
evaluating workers' compensation claims arising from MSDs (see, e.g.,
Ex. 30-4564, 31-324, 31-338). However, the final rule makes clear that
the confidentiality requirement does not apply when disclosure is
authorized by state or federal law. Thus, in a case involving a claim
for workers' compensation benefits, the HCP is subject to the ordinary
processes and procedures established by the state for obtaining
relevant information. Nothing in the final rule is intended to conflict
with, or hamper the operation of, state workers compensation systems.

Providing Information to the HCP

    The final rule, like the proposed rule, requires the employer to
provide information about the job and workplace conditions to the HCP
conducting the assessment. The employer must provide the HCP with a
description of the employee's job and information about the MSD hazards
in

[[Page 68384]]

the job and a copy of the ergonomics standard. These requirements to
provide information to the HCP are slightly different than the proposed
rule. The final rule does not carry forward the proposed requirements
to provide a summary of the standard to the HCP, the requirement to
provide workplace walkthroughs to the HCP, or the requirement to
provide a description of available work restrictions.
    Many commenters supported the proposed provisions pertaining to the
information that must be provided to the HCP about the workplace (see,
e.g., Exs. 30-710, 30-3826, 30-3686, 30-4540), whereas others stated
that some or all of the provisions in this paragraph should be deleted
(see, e.g., Exs. 30-3765, 30-3813, 32-300-1, 30-652). For example, the
Dow Chemical Company suggested that OSHA delete this entire section,
because (1) developing job descriptions would be burdensome, (2)
gathering the information would create a time delay in getting an
employee to an HCP, and (3) this information would not impact the
quality of the care the injured employee receives (Ex. 30-3765).
    Some commenters thought the requirement to provide information to
the HCP was redundant with other requirements in the proposal or other
existing OSHA regulations (see, e.g., Exs. 30-3813). Others stated that
creating and providing this material places a burden on employers (see,
e.g., Exs. 30-2725, 30-4567, 30-4607).

Information About the Employees Job and the MSD Hazards Within the Job

    Both the final rule and the proposal require the employer to
provide the HCP with a description of the employee's job and
information about the MSD hazards in the job. This provision received
very little specific comment. The only specific objection, made by
several commenters, was that detailed job descriptions are not
available (see, e.g., Exs. 30-2725, 30-3392, 30-3765).
    Paragraph (p)(3)(i) of the final rule requires employers to provide
a description of the employee's job and information about the hazards
in it. This information is needed to assist HCPs in providing both
accurate assessment and effective management of MSDs. Without such
information the HCP may not be able to make an accurate evaluation
about the causes of the MSD or may not be able to prescribe appropriate
restricted work activity. OSHA believes that providing HCPs with
information about the results of any job hazard analysis that has been
done in that job ensures that the HCP has the most complete and
relevant information for evaluating and managing the recovery of the
injured employee. Many stakeholders have told OSHA that they already
provide this type of information to the treating HCP in order to
familiarize the provider with the employee's job and associated
workplace risk factors and ultimately to facilitate resolution of the
MSD (Exs. 26-23 through 26-26).
    If the HCP is already on site, he or she is likely to be familiar
with the jobs in the workplace, the MSD hazards identified in the
hazard determination of the employee's job, and what jobs or temporary
alternative duty may be available. However, HCPs who are not routinely
on site generally do not have this workplace-specific information and
employers must provide it in these cases. It is essential that HCPs
charged with the responsibility for MSD management know or be provided
with this information if they are to successfully manage the cases of
the injured workers. Because employers will have tested the injured
employees job against the job hazard screen in paragraph (f), the
employer will already have some idea of the hazards in the employee's
job, and it should not be difficult to pass this information on to the
HCP.
    While some companies routinely keep detailed written job
descriptions, other companies (especially small firms) may not have
detailed written job descriptions immediately available. It is not
vital that the employer provide the HCP with an enormously detailed
description of the employee's job. A general description of the
employee's job duties that contains enough detail to help the HCP
perform an appropriate evaluation and develop an informed opinion of
the case will suffice.
    OSHA recognizes that this requirement places burdens on employers.
However, the Agency believes these burdens are more than outweighed by
the benefits that accrue from providing the HCP with information about
the employees jobs and the MSD hazards in that job. As a recent journal
article stated ``To make appropriate recommendations about return to
work, the health care provider should know the physical demand
characteristics of the job the worker is expected to perform'' (Ex.
502-284). Of course, the costs associated with this requirement have
been included in the economic analyses for the final rule.

Copy of the Standard and a Summary of the Standard

    The proposed rule would have required the employer to provide a
copy of the ergonomics standard, as well as a summary of the standard,
to the health care professional. The final rule simply requires the
employer to provide a copy of the standard. Several commenters objected
to the proposed requirements (Exs. 30-3765, 30-4567), arguing that they
are not needed for diagnosis or treatment (Ex. 30-3765), are burdensome
(Ex. 30-4567). The American Ambulance Association asked what would
suffice for a summary of the standard (Ex. 30-4567). A few commenters
suggested that OSHA create a non-mandatory appendix containing the
required summary of the Standard (Ex. 30-3284, 30-3686, 31-307).
Several commenters suggested deleting the requirement for a summary
(Ex. 30-2216, 30-3813, 30-3922). For example, the Organization Resource
Counselors argued that ``[t]he standard should be sufficiently
straightforward [so] that the HCP can understand it without needing a
special `summary' of the standard'' (Ex. 30-3813). The A.O. Smith
Corporation suggested that, as an alternative, OSHA could offer
training to medical providers and certify them for this practice area
(Ex. 30-2989).
    OSHA has included the requirement to provide a copy of the standard
to the HCP in order to assure that HCPs know how quickly employers must
provide employees with access to the HCP and that employers must
analyze any job in which an MSD incident is reported. Further, the HCP
needs to be informed about the information they are to provide in the
written report required by paragraph (q) of the final rule. OSHA has
not included the proposed requirement to provide a summary of the
standard to the HCP, finding that the summary is a redundant
requirement that is not needed, since the standard itself is reasonably
short and is easily read.

Descriptions of Available Restrictions

    The proposed rule would have required employers to provide
information on work restrictions that were available during the
recovery period and that were reasonably likely to fit the employee's
capabilities during the recovery period. OSHA believed that providing
this information to HCP would help facilitate the appropriate matching
of the employee's physical capabilities and limitations with a job that
would allow an employee to adequately rest the injured area while still
remaining productive in other capacities. Employers with ergonomics
programs have discovered that the more detailed information and
communication provided to the HCP about available alternative duty
jobs, the better the HCP understands the causes

[[Page 68385]]

of the problem and knows what work capabilities remain. As a result,
these employers have found that the HCP is more likely to recommend
restricted work activity rather than removal from work during the
recovery period. In addition, it is more likely that HCPs are able to
recommend much shorter removal periods when removal is combined with
restricted work activity as a means of facilitating recovery.
    A number of commenters argued that the employer cannot determine
the need for restricted work, before an evaluation by a health care
professional. (Exs. 30-1091, 30-1671, 30-3033, 30-3034, 30-3035, 30-
3185, 30-3188, 30-3258, 30-3259, 30-3284, 30-3392, 30-3765, 30-3813,
30-4159, 30-4536, 30-4547, 30-4549, 30-4562, 30-4607, 30-4647, 30-4713,
30-4776, 30-4800, 32-300-1) In a representative comment, the Southern
California Edison company remarked that:

    First, this calls for the employer to somehow anticipate the
HCP's diagnoses and evaluation of physical limitations before the
employer has even seen the HCP. Second, an HCP is better qualified
to make an initial assessment of an employee's physical limitations
(i.e., lift no more than 10 pounds, do not stand for more than 4
hours, etc.). The employer then is best qualified to determine
appropriate work restrictions taking into account the physical
limitations described by the HCP (Ex. 30-3284).

    OSHA agrees with these commenters that, for at least some MSD
incidents, it is difficult to provide information about appropriate
restrictions to the HCP, and that the HCP is in a better position to
tell the employer what restrictions or physical restrictions must be
implemented while the employee is recuperating from an MSD injury.
Therefore, this provision has not been included in the final rule.
However, the employer is required to implement any restrictions he or
she finds necessary, and OSHA believes that there are some
circumstances where the employer can implement restrictions before
consultation with an HCP. The employer will also benefit from good
communications with the HCP about what types of restricted work may be
available, and should try to work cooperatively with the HCP to
determine appropriate work.

Walkthrough Rights for the Health Care Professional

    The proposed rule included a provision that would have required the
employer to allow the health care professional to visit the
establishment and walk through the establishment if the HCP wished to
do so (64 FR 66073). OSHA's intent was to provide HCPs with
opportunities to look at the problem job and the available alternative
duty jobs. This would have allowed the HCP to become familiar with the
physical work activities the injured employee performs, and allow that
the HCP to see if available alternative duty jobs would allow the
employee to rest the injured area during the recovery period. OSHA did
not intend to require employers to provide HCPs walkthroughs throughout
the entire facility, and expected that workplace walkthroughs could be
either informal or formal. Several commenters supported the HCP
walkthrough provisions (see, e.g., Exs. 3-52, 3-107, 30-4301, 31-242).
The Washington Federation of State Employees Local 1488--AFSCME also
recommended that the employer should be required to pay for the HCP's
time and travel expenses for a walkthrough (Ex. 31-242). The Dow
Chemical Company said that it was not opposed to the proposed
provision, and that DOW encourages HCPs to visit their worksites (Exs.
30-3765). Southern California Edison stated that they also did not
object to the proposed requirement, but recommended that OSHA specify
that the employer is under no obligation to pay the HCP for the
walkthrough (Ex. 30-3284).
    A few commenters opposed the proposed walkthrough rights
requirement (Ex. 30-3348, 30-3749, 30-4713, 30-5674). Freeborn and
Peters argued that the walkthrough rights are not needed (Ex. 30-4713).
The Society for Human Resources Management stated that the proposed
requirement:

    [w]ould be particularly burdensome for smaller employers who
rarely have the kind of a relationship with an HCP that such a
walkthrough would be practical. If OSHA chooses to maintain such a
requirement, its application should be limited to larger employers
and only for those HCPs whom the employer expects to use regularly *
* * (Ex. 30-3749).

    The Puerto Rico Manufacturing Association remarked that the
proposed provision ``[n]eeds to be narrowed, because it is disruptive
to many operations * * * '' and asked ``[w]hat if every employee with a
sign or symptom wanted his own HCP to assess his job?'' (Ex. 30-3348).
    OSHA has decided not to include an HCP walkthrough right in the
final rule. While HCP walkthroughs have significant advantages in
helping the HCP determine appropriate restrictions for injured workers,
they are not absolutely necessary and could result in added burden to
employers. As OSHA acknowledged in the proposal, there are other ways
HCPs can acquire more in-depth information about the employee's job and
the MSD hazards in it. For example, employers can provide HCPs with the
results of the job hazard analysis, photographs of the job, or
videotapes of the job being performed.

Paragraph (q). What Information Must the HCP's Opinion Contain?

    Paragraph (q) describes the types of information that should be
included in the HCP's written opinion. This information includes: (1)
the HCP's assessment of the employee's medical condition as related to
MSD hazards in the employee's job; (2) any recommended work
restrictions, including, if necessary, removal from work to allow for
recovery, and any follow-up needed; (3) a statement that the HCP has
informed the employee of the results of the evaluation, the process to
be followed to effect recovery, and any medical conditions associated
with exposures to risk factors; and (4) a statement that the HCP has
informed the employee about work-related or other activities that could
impede recovery from the injury.
    These four elements to be addressed in the HCP's opinion were
included in the proposal, and OSHA received no significant comment
requiring discussion in the final rule. OSHA notes that ``work
restrictions'' are defined in paragraph (z) of the final rule as
limitations on the employee's exposure to risk factors present in the
job giving rise to the MSD incident, and may include limitations on
work activities in the current job, transfer to an alternative duty
job, or complete removal from work to permit recovery. OSHA reiterates
here the point made in the proposal about the importance of specific
work restriction recommendations. 64 Fed. Reg. 65,845. The HCP should
describe in as much detail as possible the nature and duration of work
restrictions so that employers will have maximum flexibility to ensure
that employees can remain productive while resting the affected area.

Paragraph (r) What Must I do if Temporary Work Restrictions or Removal
>From Work are Needed?

    Paragraph (r) describes the actions required when an MSD incident
has occurred in a job with risk factors that exceed the action level,
and the employer or HCP determines that temporary work restrictions or
removal from work are needed.
    Paragraph (r)(1) first makes clear that the employer must either
determine the work restriction or removal himself or herself, or comply
with the recommendations of an HCP, either by

[[Page 68386]]

temporarily placing the injured employee in an appropriate alternative
or ``light duty'' job, or, if necessary, by temporarily removing the
employee from work.
    Paragraphs (r) (2) and (3) require the employer to maintain the
injured employee's wages and benefits when work restrictions are
necessary.

Work Restriction Protection (WRP)

A. Necessity for WRP

    ``Work restriction protection'' or ``WRP'' refers to the
requirements in paragraphs (r)(2) and (3) for maintaining an injured
employee's employment rights, wages and benefits when temporary work
restrictions are necessary. As explained in the proposed rule, 64 FR
65848-65852, and in the discussion below, WRP requirements are designed
to encourage employees to report MSDs and their signs and symptoms as
early as possible, and to participate actively in MSD management. Early
reporting of MSDs by employees will contribute to the success of the
final rule in several important ways. First, unlike other OSHA
standards, the rule does not require employers to monitor their
workplaces for hazards, but rather to evaluate employee reports of MSD
signs or symptoms to determine whether further action is necessary.
Employee reports must be evaluated to determine whether an MSD incident
has occurred in a job with risk factors exceeding the standard's action
level. If the job has risk factors that exceed the action level, the
employer must implement several elements of an ergonomics program,
including job hazard analysis, and must provide necessary work
restrictions (including work removal, if necessary) and MSD management.
    This approach depends upon employees' willingness voluntarily to
report when they first experience signs or symptoms at work. As the
agency noted in the proposed rule, ``[i]f employees are not willing to
come forward and report MSDs, serious MSD hazards in that job will go
uncontrolled, thus potentially placing every employee in that job at
increased risk of harm.'' 64 FR 65861. Early reporting permits
employers to identify problem jobs and institute corrective measures
before other employees in those jobs become injured. Thus, timely
reporting by employees is central to the final rule's hazard
identification and control mechanisms.
    Early reporting is also crucial in maximizing the standard's
benefits for injured employees and in minimizing costs to employers and
employees. The record establishes that MSD treatment is more likely to
be successful if provided early, before the disorder has become
debilitating (see e.g., Exs. 3-56; 3-59; 3-179; 3-184. See also
Testimony of Dr. Evanoff (Tr. 1530-31; 1628); Dr. Herbert (Tr. 1698-
99); Dr. Connell (Tr. 2833); Dr. McCunney (Tr. 7649-50); Dr. Bernacki
(Tr. 7687); Dr. Piligian (Tr. 7883-5); Dr. Frank (Tr. 1388); Dr.
Cherniak (Tr. 1234-5). Early detection and intervention also reduces
the severity of MSDs and the level of treatment required to address
them (see e.g., Exs. 3-23; 3-33; 3-50; 3-56; 3-59; 3-121; 3-124; 3-151;
3-162; 3-179; 3-184) and reduces the number of days employees must
spend on restricted duty or away from work entirely (see Ranney 1993,
Ex. 26-913; Day 1987, Ex. 26-914; Oxenburgh 1984, Ex. 26-1367).
Consequently, the early reporting of MSDs substantially reduces both
the physical and economic toll of these disorders.
    The participants in the rulemaking had conflicting views on
whether, and to what extent, WRP is needed to ensure early reporting of
MSDs. After a careful review of the literature, testimony and comments
on this issue, OSHA finds persuasive evidence that, without WRP,
employees will be reluctant to report MSDs and their signs and symptoms
at an early stage. In the preamble to the proposed rule, OSHA discussed
a variety of studies in the scientific literature indicating that MSDs
are underreported in federal and state occupational injury and illness
statistics. These studies show that a substantial percentage of work-
related MSDs are not recorded on the OSHA log of occupational injuries
and illnesses, and are therefore excluded from the Bureau of Labor
Statistics (BLS) data (see e.g., Exs. 26-28; 26-1258; 26-920; 26-922;
26-1259; 26-1261; 26-1260). They also demonstrate that large numbers of
workers with medically confirmed MSDs do not file claims for workers'
compensation benefits (see e.g., Exs. 26-1258; 26-1212; 26-920). See
also 64 FR 65851-52; 65980-83 and Table VII-2. Based on this and other
evidence, OSHA preliminarily estimated that at least half of all work-
related MSDs are not reflected in the BLS statistics. 64 FR 65981.
    Researchers, physicians, and workers themselves supported OSHA's
finding that MSDs are underreported at the federal and state levels.
NIOSH agreed that there is a substantial likelihood that the actual
number of MSDs exceeds the BLS estimates, and that this is due in part
to underreporting of the true number of work-related health problems on
the OSHA 200 logs (Ex. 32-450-1). Other commenters highlighted the
growing literature in the workers' compensation field, including recent
studies confirming that only a small percentage of workers with back,
upper extremity and other MSDs file claims for benefits (see e.g., Ex.
37-14, p. 9 [Emily Spieler, citing, e.g., Morse 2000]; Ex. 500-203 [Dr.
Michael Erdil, citing, e.g., Rosenman 2000]; Ex. 32-339-1, Ex. 500-218;
Tr. 2399-2301 [Dr. Boden]).
    Physicians and researchers testified that the findings in the
literature were consistent with their experiences (Tr. 839-40 [Dr.
Armstrong]; Tr. 1021 [Dr. Punnett]; Tr. 1115 [Dr. Erdil]; Tr. 1886-87
[Dr. Owen]; Tr. 2399-2401 [Dr. Boden]). Dr. Michael Erdil stated that
``my clinical experience as an occupational physician treating
thousands of patients with MSDs is consistent with these studies'
finding that employees often do not report MSDs they believe to be
caused by work.'' Tr. 1115. Emily Spieler, an author and lecturer on
workers' compensation issues, and a former Commissioner of the West
Virginia Workers' Compensation Fund, wrote that

[t]he findings regarding under-filing are consistent with my own
observations regarding workers' claims filing behaviors. Many
workers with compensable injuries do not file claims for benefits.
Both my own experience and current literature suggest that under
filing far exceeds overreporting in workers compensation systems.
There are serious implications regarding the prevention and
compensation of MSDs that flow from this.

Ex. 37-14, p. 10.
    Workers have given a variety of reasons for not reporting MSDs to
their employers or failing to seek workers' compensation benefits for
these disorders (see 64 FR 65849-50; 65980-81). Many workers expressed
the fear that if they report a work-related injury, they will lose
their job or be transferred to an alternative job at reduced pay and
benefits, or suffer other forms of job discrimination (see Exs. 3-121;
3-151; 3-183; 3-184; 3-186). Employees voiced these concerns repeatedly
during the hearing (see Tr. 3602 [Corey Thompson]; Tr. 5820 [Dave
[S]aksewski]; Tr. 5832 [Scott Bean]; Tr. 6022 [Dennis Norton]; Tr.
5901-02 [Victor Henderson]; Tr. 7733-34 [Sandy Brooks]; Tr. 7736-37
[Jeanette Di Florio]; Tr. 7545-46 [Penny Siedner]; Tr. 7998 [Al Close];
Tr. 8013 [Bob Zielonka]; Tr. 9561 [Robert Wabol]; Tr. 10,720-21
[Richard Sorokas]; Tr. 12,530 [Buzz Vsetecka]). Dave [S]aksewski
recounted his experience at an automobile assembly plant:


[[Page 68387]]


    As I was new in the facility, I received many less than
desirable jobs. On many of the assembly jobs my hands or arms ached
at the end of the shift or my back was so sore from lifting that I
could not do the things on weekends that I would have enjoyed doing
and I had normally done in the past. Things like fishing or playing
ball went on the back burner until I felt like I could do them
without further hurting myself.
    I never reported any of these problems to the medical department
because as a probationary employee you just did not complain about
anything, even if I was a union member. * * * The end result of a
complaint from me would have been no overtime, maybe a job
restriction, or a disputed compensation claim that I had injured
myself at home working in the garden.
    I can tell you from personal experience that people do not
report MSDs until they get bad enough where they can no longer
tolerate the job.

Tr. 5822-23. Autoworker Al Close agreed, stating ``employees are still
reluctant to report early symptoms of injury. This is due to
intimidation by middle management and by the fact that they will get
work restrictions or be sent home with the loss of pay.'' Tr. 7998.
Employee representatives from a broad spectrum of industries echoed
these sentiments (see e.g., Ex. 32-182-1 [AFSCME]; Ex. 32-185-3 [UAW];
Exs. 32-339-1; 500-218 [AFL-CIO]; 32-198-4 [UNITE]).
    Employers, physicians, and others acknowledged that concerns about
economic loss and retaliation influenced employees' decisions not to
report their MSDs or to seek treatment or compensation for them. Peter
Meyer, Human Resource Director for Sequins International testified:

    It is true that workers in most situations don't report pain and
work-related injuries, especially when they are concerned about
their jobs. They are continually concerned about the hours that they
are going to work so it makes sense that workers wouldn't report
something that they might think jeopardizes their jobs.

Tr. 17350. Dr. George Piligian testified that the most common reason
given by employees for delaying treatment for MSDs was the fear of
losing income. He stated, ``[t]his was the biggest obstacle, especially
in those that were not high-paying sectors of the work force.
Therefore, wage replacement, especially when you first have symptoms,
is vital. People will not come forth.'' (Tr. 7822-3). See also Tr. 1115
(Dr. Erdil); Tr. 1724 (Dr. Robin Herbert).
    This evidence demonstrating that economic concerns are a powerful
motivating factor in workers' behavior affecting their health is
consistent with that adduced in previous OSHA rulemakings. For example,
OSHA commented on the evidence that lead-exposed workers would be
reluctant to participate in medical surveillance program, as follows:

    Much of the evidence in the lead proceeding documents the extent
to which worker participation is adversely affected by the fear that
adverse employment consequences will result from participation in
medical surveillance programs. This problem was emphasized by the
testimony of many workers and worker representatives. * * * Evidence
concerning the issue of worker fear impeding participation, however,
was not confined simply to testimony from worker representatives. A
wide variety of experts verified the existence of this problem, as
did several industry representatives. The evidence suggests that
economic disincentives to worker participation are currently a
problem in the lead industry.

43 FR 54442.
    OSHA believes that the two patterns of employee behavior discussed
above--the failure to report work related MSDs to employers, and the
failure to claim workers' compensation benefits for these disorders--
underscore the need for WRP in the final rule. OSHA's recordkeeping
regulations in Part 1904 already require employers to inform employees
of the need to report injuries and illnesses promptly, and to have a
clear procedure for reporting. Moreover, section 11(c) of the OSH Act
protects employees who report their injuries from acts of
discrimination or retaliation by employers. In view of the evidence
that these provisions do not eliminate underreporting on the OSHA logs,
it is unreasonable to believe that similar requirements and protections
in the final rule, standing alone, will be sufficient. Indeed, without
wage protection, the standard's MSD management provisions, including
mandatory work restrictions or work removal when recommended by an HCP,
will likely increase the pressure on employees not to inform their
employers of work-related MSDs, and thereby exacerbate an already
serious problem.
    The evidence on employees' dissatisfaction with workers'
compensation benefits, and avoidance of workers' compensation systems,
is also relevant. There was substantial testimony that employees view
the workers' compensation system as ineffective and cumbersome to use
(see e.g., Ex. 500-218 ). Emily Spieler summarized these problems as
follows:

    There are several tiers of problems with the adequacy of
compensation, for both compensatory and deterrent effects. First,
many people do not file claims that, if filed, might be compensable.
Second, in some states, many claims involving work-related MSDs may
not be compensable, even if filed. Third, payment in apparently
compensable claims for MSDs, and in particular for repetitive
stress-related MSDs, may not be paid due to controversion, or may be
delayed, or may be settled for compensation below the statutory
amounts.
    The result is twofold. First, workers may be discouraged from
filing workers' compensation claims or from otherwise alerting their
employers to developing MSDs. Second, workers compensation fails to
provide employers with adequate incentives for the prevention of
disabling MSDs.

Ex. 37-14, p. 10. This evidence demonstrates that the potential
availability of workers' compensation benefits alone is insufficient to
ensure full and timely reporting of MSDs and their signs and symptoms,
and further underscores the need for a requirement protecting
employees' wages and benefits during periods when work restrictions are
necessary.
    In contrast, OSHA was not convinced by those commenters who argued
that the record does not demonstrate the need for WRP. The evidence and
argument presented by these commenters was not as concrete or specific.
They maintained principally that: (i) OSHA's own audits conducted in
1996 and 1997, and statements made by some OSHA officials and experts,
demonstrate that employer logs are accurate; (ii) there is no need for
WRP because most MSDs require little or no time away from work; and
(iii) OSHA itself concluded that WRP will not rectify underreporting.
These arguments are discussed below.
    In 1998 and 1999, OSHA performed audits of employers' injury and
illness records. The 1998 audit examined a sample group of employers'
1996 records, while the 1999 audit examined records for 1997 (see Ex.
500-168, Appendices A and B). A number of commenters argued that the
results of these audits undermined OSHA's finding of widespread
underreporting of MSDs on employers' logs (see e.g., Exs. 500-168; 30-
3347; 32-78-1; Ex. 30-1722; Ex. 30-3956). The AISI's comment is
representative:

    OSHA went to extensive lengths to perform a statistically
significant audit of the accuracy of OSHA 200 recordkeeping. The
results of the official OSHA audits of OSHA 200 logs for 1996 and
1997 are compelling. OSHA found that, at the 95% threshold of
accuracy, the percentage of establishments with accurate records
[for total recordable cases (TR) and for lost workday cases (LW)]
was [for 1996, 87.96% TR and 86.57% LW; for 1997, 91.93% TR and
89.69% LW] * * *. Based on * * * review of the studies cited by OSHA
[in the proposal], it is clear that they do not support OSHA's
allegation of a substantial and widespread underreporting of
occupational injuries and illnesses. Rather than looking back to
limited reviews of

[[Page 68388]]

``ancient history,'' OSHA is required to look at the best available
evidence, which is the 1996 and 1997 audit reports. They demonstrate
an extremely high level of accuracy in OSHA 200 recordkeeping from
samples determined to be representative * * *.

Ex. 500-168, pp. 9-10, 21. The ORC also pointed to OSHA's audits:

    [t]he [audit] process is centered around comprehensively
checking both occupational and nonoccupational injury and illness
records to identify misreporting and under reporting. Employee
interviews are also used when the compliance staff deems them
necessary. The results from the audits provide the only
statistically reliable insights available into the quality of the
OSHA data and the accuracy of employee reporting and employer
recording practices.

Ex. 32-78-1 at 27. ORC noted that most of the studies cited by OSHA
examine data that is more than a decade old and that may not reflect
improvements due to the Agency's stepped-up recordkeeping enforcement
efforts and recent guidance on the proper recording of cumulative
trauma disorders (Ex. 32-78-1, p. 26). ORC and others also noted that
Agency officials, including Assistant Secretary Charles Jeffress, have
expressed confidence in the accuracy of BLS statistics (see e.g., Exs.
32-78-1, p. 27; 30-1722, p. 75-76; 30-3347).
    OSHA's recent recordkeeping audits were designed to measure whether
employer records accurately reflect injuries and illnesses that
employees reported to them. Therefore, the auditors examined
occupational records to identify the work-related injuries and
illnesses that may have occurred to employees, including, where
available, medical records, workers' compensation records, insurance
records, payroll records, company safety incident reports, first-aid
logs, and light duty rosters (Ex. 500-168-1, Appx. Analysis of Audits
on 1996 Employer Injury and Illness Recordkeeping, Audit Protocol at 6,
(v)). The audit protocol did not require the auditors to examine non-
workplace records to determine whether employees within the sample
group had suffered work-related MSDs which were not reported because
the employees did not seek treatment from the employer or the
employers' health insurance, file a worker's compensation claim, take
leave, or otherwise enter the employer's records. Id. By contrast, a
number of studies in the record examine non-workplace records and other
sources in determining that MSDs are not accurately reflected in the
OSHA logs. For example, in performing health hazard evaluations (HHEs)
at several establishments, NIOSH found that a high proportion of MSDs
reflected in the records of employees' private health care providers,
in confidential interviews, and in standardized questionnaires and
surveys were not included in the employers' logs. NIOSH reported that:

    These HHEs compared the OSHA 200 logs with work-related MSDs
ascertained via the following mechanisms: (1) confidential medical
interviews; (2) review of employee medical records of private health
care providers; (3) health surveys utilizing standardized MSD
symptom questionnaires; (4) health surveys defining cases as those
with work-related symptoms and positive physical findings conducted
by physicians performing physical examinations targeted to the
musculoskeletal systems. We have no reason to believe that these
HHEs are not representative of the likely widespread under-reporting
of work-related MSDs.

Ex. 32-450-1. Moreover, several of the studies discussed in the
proposed rule examine data sources that appear to be different from
those considered in OSHA's audits (see e.g., Exs. 26-28; 26-1261; 26-
1259; 26-1250).
    For these reasons, OSHA believes that the recent audits do not
undercut the findings in the literature that widespread underreporting
exists. The logs are a reasonably accurate reflection of those injuries
and illnesses actually reported by employees at work.\13\ OSHA believes
that many recordable MSDs are omitted from OSHA logs and other
workplace records because employees do not inform their supervisors, do
not file a claim for workers' compensation, or do not seek treatment
from the employer's medical staff or health insurance provider. This is
apparent not only from the studies examining the logs, but also from
the evidence on employee reporting behavior in the workers'
compensation field, and the direct testimony of many workers themselves
during the hearing. Considering the record as a whole, OSHA finds that
there is reliable, persuasive evidence that MSDs are currently
underreported in the OSHA injury and illness records.
---------------------------------------------------------------------------

    \13\ The audits show that approximately 10% or more of injuries
and illnesses reported by employees are not recorded in the logs.
---------------------------------------------------------------------------

    Employer representatives also argued that OSHA's estimate in the
proposed rule that ``most MSDs do not result in any days away from
work'' (64 FR 65853) undermines the need for WRP (Exs. 32-211-1; 30-
1722). The Chamber of Commerce argued that ``[b]oth * * * propositions
cannot be true: either large numbers of employees are refraining from
reporting lost-time injuries to avoid significant financial losses,
thus requiring WRP, or few such losses are occurring--which means that
[the] WRP provision is unnecessary.'' (Ex. 30-1722, p. 77.).
    OSHA does not believe that the two propositions cited by the
Chamber are inconsistent. As discussed above, a significant factor
motivating employees not to report MSDs is the fear that they will be
placed in a restricted duty job with reduced pay and benefits, and that
they may also lose seniority or ``bidding'' rights. Thus, employees'
concern about being out of work altogether is not the only, or
necessarily the predominant, factor to be considered in evaluating the
need for WRP. Moreover, there is no fundamental tension between OSHA's
conclusion that workers' fear of economic loss is a significant
contributing factor to the high level of underreporting observed in the
literature, and its estimate that most MSDs will not result in time
away from work. As discussed further in the Significance of Risk and
the Benefits chapter of the Final Economic Analysis supporting this
rule, a significant proportion of all MSDs (approximately one-third)
will result in some lost work time, and certain types of MSDs, such as
carpal tunnel syndrome, require nearly a month to recover sufficiently
to return to work (median length of time away is 25 days). Therefore,
the prospect of losing work due to an MSD is a tangible one, and serves
as a powerful stimulus to employees. Indeed, the record evinces strong
and deeply held beliefs by many employees across industry sectors that
reporting MSDs and their signs and symptoms will result in loss of pay
and benefits, or other adverse employment action. Accordingly, concrete
wage and benefit protections are necessary to counter employees'
concerns about reporting MSDs.
    Some commenters argued that there is no justification for requiring
WRP in light of OSHA's preliminary conclusion that WRP would not
increase the MSD reporting rate (see e.g., Exs. 32-211-1, p. 9; 32-234-
2, p. 27). In the Preliminary Economic Analysis of the proposed rule,
OSHA explained that it was then unable to quantify the incentive
effects of WRP on employee reporting of MSDs, and therefore had no
basis to estimate the costs and benefits attributable to increased
numbers of MSDs reported (64 FR 66001). However, the agency
``welcome[d] data and comments on the extent of MSD under reporting,
possible increases in the reporting of MSDs that may occur after
employers implement an ergonomics program, and on the incentive effects
of the proposed standard on employee reporting of MSDs.'' Id.

[[Page 68389]]

    As explained in the Final Economic Analysis, OSHA has identified
several studies from the economics literature permitting the Agency to
develop a methodology that enables it to estimate the impact of WRP on
MSD reporting rates. Because wage and benefits protection requirements
will likely substantially increase the number of employees who will
report MSDs and their signs and symptoms, WRP is a reasonably necessary
and appropriate component of the final rule.

B. Legal Authority for WRP

1. The OSH Act and Past OSHA Practice Require That OSHA Include WRP In
This Standard
    It is now well established that OSHA's authority to promulgate
occupational safety and health standards ``reasonably necessary or
appropriate to provide safe or healthful employment and places of
employment,'' 29 U.S.C. Sec. 652(8), encompasses the authority, in
appropriate cases, to include WRP provisions in those standards.
Section 6(b)(7) provides that a standard should, ``[w]here appropriate
* * * prescribe suitable * * * control * * * procedures'' to prevent
hazards. 29 U.S.C. Sec. 655(b)(7), and Section 8(g)(2) of the OSH Act
provides that ``[t]he Secretary * * * shall * * * prescribe such rules
and regulations as he may deem necessary to carry out his
responsibilities'' under the statute. 29 U.S.C. Sec. 657(g)(2). These
provisions give OSHA broad authority to require employers to implement
practices, such as WRP, that are reasonably necessary or appropriate to
achieve OSHA's statutory mission--providing safe or healthful
employment and places of employment. See 64 FR 65848-53 (Nov. 23,
1999).
    Relying on both this statutory language and the OSH Act's
legislative history, the D.C. Circuit affirmed a WRP provision in
OSHA's 1978 lead standard requiring employers to maintain an employee's
earnings and other rights and benefits during a work removal period of
up to 18 months. United Steelworkers of America v. Marshall (Lead), 647
F.2d 1189, 1230 (D.C. Cir. 1980), cert. denied, 453 U.S. 913 (1981).
[Note: In the lead standard, the provision at issue was termed medical
removal protection (MRP).] The court held that (1) the OSH Act gives
OSHA broad authority to include WRP where necessary or appropriate to
protect the health of workers, and (2) OSHA's inclusion of WRP in the
lead standard was supported by the rulemaking record. Id. at 1228-40.
The court held that ``OSHA's statutory mandate is, as a general matter,
broad enough to include [WRP].'' Id. at 1230. The court also found that
OSHA had met its burden of demonstrating that WRP was reasonably
necessary and appropriate by providing evidence that employees would
resist cooperating with the medical surveillance program in the lead
standard absent assurances that they would have economic protection in
the event of a medical removal. Id. at 1237.
    OSHA has followed a consistent practice of including WRP provisions
in standards when the rulemaking records show that the provision is
useful or necessary to achieve the purposes of the standard. OSHA has
included similar WRP provisions in numerous other standards. See e.g.,
29 CFR 1910.1025 (Lead); 29 CFR 1910.1027 (Cadmium); 29 CFR 1910.1028
(Benzene); 29 CFR 1910.1050 (Methylenedianiline); 29 CFR 1910.1052
(Methylene Chloride). OSHA's inclusion of WRP in those standards was
based upon findings that absent some wage protection employees would
not participate in the medical surveillance provisions of the
standards. See e.g., Lead preamble, 43 FR 5440 (Nov. 21, 1978).
    In 1987, OSHA omitted a WRP provision from its formaldehyde
standard on the bases that the ``nonspecificity of signs and symptoms
[made] an accurate diagnosis of formaldehyde-induced irritation
difficult,'' the symptoms of formaldehyde exposure often quickly
resolved, and some employees would never be able to return to a work
environment that contained any formaldehyde. 52 FR 46168, 46282 (Dec.
4, 1987). On review, however, the D.C. Circuit held that these
justifications, which it characterized as ``feeble'' or ``vague and
obscure,'' were inadequate to justify OSHA's ``swerve'' from past
practice. See International Union v. Pendergrass (Formaldehyde), 878
F.2d 389, 400 (D.C. Cir. 1989). The court remanded the issue for OSHA's
further consideration. OSHA eventually included a WRP provision in the
standard:

    On reconsideration, the Agency has concluded that [WRP]
provisions can contribute to the success of the medical surveillance
programs prescribed in the formaldehyde standard. Unlike some other
substance-specific standards, the formaldehyde standard does not
provide for periodic medical examination for employees exposed at or
above the action level. Instead, medical surveillance is
accomplished in the final rule through the completion of annual
medical questionnaires, coupled with affected employees' reports of
signs and symptoms and medical examinations where necessary. This
alternative depends on a high degree of employee participation and
cooperation to determine if employee health is being impaired by
formaldehyde exposure. OSHA believes these new [WRP] provisions will
encourage employee participation in the standard's medical
surveillance program and avoid the problems associated with
nonspecificity and quick resolution of signs and symptoms that
originally concerned the agency. 57 FR 22290, 22293 (May 27, 1992).

    Formaldehyde makes clear that OSHA may not decline to include WRP
in standards absent specific findings justifying such a ``swerve'' from
past practice. The rulemaking record here does not support such a
``swerve'; to the contrary, it shows that WRP could serve functions
strikingly similar to those it serves in the formaldehyde standard.
Substantial evidence shows that MSDs are currently underreported and
that a significant reason for this underreporting is employees' fear
that they will lose income, or even their jobs. In order to encourage
employees to report MSDs, report them at an early stage, and
participate in MSD management, OSHA must include WRP in this standard.
    Despite the legal principles described above, however, a number of
rulemaking participants argued that OSHA does not have authority to
include WRP in this standard. Their reasons ranged from factors
specific to this rule to more general assertions that OSHA never has
authority to require WRP, and that the cases holding to the contrary
were wrongly decided. OSHA responds to these comments below.
    Some commenters stated that OSHA does not have authority to include
WRP (or even provisions for work restrictions) in this standard because
there are no ``objective'' triggers for removal. See e.g., Ex. 500-188,
p. 87. These commenters contended that in every other standard where
OSHA has included a WRP provision, OSHA established (1) an
``objective'' exposure level for removal, and (2) ``objective'' medical
criteria for removal. In this standard, they argued, employers will be
forced to remove employees from work based solely on reports of
``subjective symptoms.'' Ex. 30-4467, pp. 17-18.
    This argument is based on erroneous conceptions of the WRP
provisions in both OSHA's earlier standards and this one. First, other
standards frequently require removal based upon a physician
determination that removal is appropriate, even without ``objective''
triggers. In the lead standard, for example, an employee can be removed
from work when ``a final medical determination results in a medical
finding * * * that the employee has a detected medical condition which

[[Page 68390]]

places the employee at increased risk of material impairment to health
from exposure to lead.'' 29 CFR 1910.1025(k)(1)(ii). This determination
does not have to be based on objective tests; rather, it can be based
upon a physician's independent judgment. In the Cadmium standard, an
employee can be removed based upon ``signs or symptoms of cadmium-
related dysfunction or disease, or any other reason deemed medically
sufficient by [a] physician.'' 29 CFR 1910.1027(11)(i)(A); see also
Methylenedianiline 29 CFR 1910.1050(9)(i)(B)(1) (removal shall occur
``on each occasion that there is a final medical determination or
opinion that the employee has a detected medical condition which places
the employee at increased risk of material impairment to health from
exposure to MDA'').
    Second, this standard does not require employers to provide WRP to
employees based solely on employee reports of ``subjective'' symptoms.
The employer makes the determination of whether an employee's report
qualifies as an MSD incident under this standard. See Paragraph (e).
Employers can seek assistance in making these determinations by
referring employees to a health care professional. In the end, however,
it is the employer's decision. Moreover, this final standard includes
an Action Trigger in paragraph (f). If an employee who has suffered an
MSD incident is not exposed on his or her job to risk factors at levels
that exceed those on the screening tool in Table 1, the employer has no
WRP obligations. See Paragraph (f).
    In any event, neither the OSH Act nor any of the court decisions
interpreting OSHA's authority suggest that OSHA's WRP authority is
limited to protecting workers only against conditions that are easy to
diagnose. On the contrary, the OSH Act gives OSHA broad authority to
include provisions in standards that are reasonably necessary and
appropriate to effectuate its statutory mandate. OSHA has found, based
upon substantial evidence in the rulemaking record, that WRP is
necessary to the effectiveness of this standard. This finding is not
affected by the presence (or absence) of ``objective'' baseline tests
for certain MSDs or the presence (or absence) of ``objective'' or
baseline levels for removal.
    Some commenters argued that OSHA does not have authority to include
WRP in this standard because employees are exposed to some of the
hazards at issue outside of the workplace. See e.g., Ex. 500-197, p.
III-76. But while it is true that OSHA may only regulate ``conditions
that exist in the workplace,'' Industrial Union Dep't, AFL-CIO v.
American Petroleum Institute et al.(Benzene), 448 U.S. 607, 642 (1980),
OSHA is not precluded from regulating such conditions just because they
may also exist outside the workplace. Forging Industry Assn. v.
Secretary of Labor (Noise), 773 F.2d 1436, 1442 (4th Cir. 1985). OSHA's
Occupational Noise standard, for example, establishes certain
requirements that must be met to prevent or reduce the incidence of
hearing impairment, a condition that can also be caused by exposure to
excessive noise levels outside of work. And OSHA has previously
required WRP where employees are also exposed to the hazard at issue
outside of the workplace. For example, employees may be exposed to
lead, cadmium, methylene chloride, and formaldehyde in varying degrees
outside of work. In this case, OSHA has properly exercised its
authority to regulate ergonomic hazards in the workplace. The OSH Act
thus does not prevent OSHA from including WRP in this standard merely
because employees may be exposed to some ergonomic risk factors outside
of work.
    OSHA also does not agree that it may not include a WRP provision in
a standard that is not promulgated pursuant to section 6(b)(5) of the
OSH Act. Ex. 500-223, pp. 81-82. OSHA's authority to include WRP in
this standard derives from numerous provisions of the OSH Act,
including sections 3(8), 6(b)(7), and 8(g)(2). These provisions give
OSHA broad authority to implement measures reasonably necessary or
appropriate to effectuate its statutory goal. OSHA's authority to
include WRP is not granted by section 6(b)(5) of the OSH Act or limited
to standards promulgated pursuant to section 6(b)(5). Section 6(b)(5)
applies to toxic materials and harmful physical agents and requires
OSHA to ``set the standard which most adequately assures, to the extent
feasible * * * that no employee will suffer material impairment of
health or functional capacity even if such employee has regular
exposure to the hazard * * * for the period of his working life.'' 29
U.S.C. 655(b)(5).
    To be sure, OSHA has previously required WRP only in section
6(b)(5) standards. But the reason for that inclusion was record
evidence that absent some wage protection employees would not
participate in the medical surveillance or medical management programs
of those standards. Non-section 6(b)(5) standards, on the other hand,
do not include medical surveillance provisions. OSHA has thus found it
unnecessary to include WRP in those standards. OSHA's past practice
does not indicate that WRP can only be included in section 6(b)(5)
standards; rather, it demonstrates that WRP can only be included in
standards based upon findings that it is reasonably necessary or
appropriate. OSHA has made those findings here.
    Some commenters argued that Congress' establishment of the National
Commission on State Workmen's Compensation Laws (National Commission)
in the OSH Act to examine the effectiveness of state workers'
compensation systems suggests that Congress did not want to
``federalize'' workers' compensation through a provision such as WRP.
Ex. 30-3811, pp. 15-16. But Congress established the National
Commission to provide an ``objective evaluation of State work[ers']
compensation laws in order to determine if such laws provide an
adequate, prompt, and equitable system of compensation for injury or
death arising out of or in the course of employment.'' See 29 U.S.C.
676. In Lead, the D.C. Circuit examined whether Congress's
establishment of the National Commission demonstrated a legislative
hostility to WRP. The court held that it did not. Lead, 647 F.2d at
1235 n.70. Of particular importance to the court was that WRP did not
``federalize'' workers' compensation, rather it left the state workers'
compensation scheme wholly intact as a legal matter. Id. Thus, even if
Congress evinced a hostility to the ``federalization'' of workers'
compensation through the OSH Act, the WRP provision at issue did not
effect such ``federalization.'' Id.
    Similarly and as explained in more detail below, WRP in this
standard will not affect or supersede workers' compensation systems;
nor will WRP have a great practical effect on workers' compensation.
WRP is not designed to ``compensate'' workers who suffer from MSDs, to
provide them with medical treatment for their work-related injuries or
illnesses, or to determine the extent of their disability, all
functions reserved to workers' compensation; WRP is designed to
encourage employees to report MSDs early and participate in MSD
Management. In that sense, WRP serves as an administrative control,
working to prevent injuries from becoming disabling and compensable.
    NCE et al.also claimed to find additional evidence that Congress
did not intend OSHA to have authority to require WRP in Congress'
refusal to include the ``Daniels Amendment'' in the OSH Act. Ex. 500-
197, pp. III-73-

[[Page 68391]]

80. The Daniels Amendment would have required the Secretary of Health,
Education, and Welfare to publish an annual list ``of all known or
potentially toxic substances and the concentrations at which such
toxicity is known to occur,'' and to determine whether the levels of
toxic substances present in individual workplent in individual workplaces posed a hazard to
employees. It then would have prohibited employers from requiring
employees to work in areas that had been determined to be hazardous
without certain listed protections, ``unless such exposed employee may
absent himself from such risk or harm for the period necessary to avoid
such danger without loss of regular compensation for such period.'' See
Lead, 647 F.2d at 1233.
    In the first place, it is difficult to read significant
congressional intent not to grant regulatory authority into the failure
of the Congress to enact a provision in the Agency's enabling Act. See
U.S. Ex. Rel. Stinson v. Prudential Insurance, 944 F.2d 1149, 1157 (3d.
Cir. 1991); see generally 2A Sutherland Statutory Construction
Sec. 48.18. This is especially true when the provision is not identical
to the regulation requirement at issue. And the Daniels Amendment has
little in common with OSHA's WRP provisions. It would have provided the
grounds for removal from work based upon informal action by the
Secretary of Health, Education, and Welfare. WRP, however, results from
OSHA rulemaking involving notice and comment procedures. See Lead, 647
F.2d at 1233. Further, WRP depends in large measure on a health care
professional's determination that removal is appropriate, and the
standard also contains a dispute resolution procedure to address
disagreements among health care professionals. See Paragraph (s). More
important, the Daniels Amendment would have allowed an employee to make
an individual judgment that the grounds for removal applied; employees
could thus effectively remove themselves from the workplace. Lead, 647
F.2d at 1233. Under WRP, however, removal occurs when certain criteria
are met, and may even occur against an employee's will. See Paragraphs
(e), (f), and (r). Because of these differences, the D.C. Circuit held
in Lead that the Daniels Amendment ``would probably invite controversy
and abuse in a way that [WRP] would not, so the reasons for which
Congress rejected the [Daniels Amendment] may well not apply to
[WRP].'' Lead, 647 F.2d at 1233-34.
    Even so, NCE et al.argued that the Lead decision was incorrect
because it misinterpreted a 1980 Supreme Court decision, Whirlpool
Corp. v. Marshall, 445 U.S. 1 (1980). Ex. 500-197. OSHA is not
convinced by this argument. The D.C. Circuit did not rely on the
Whirlpool decision in holding that the Daniels Amendment violated
congressional intent. Rather, the D.C. Circuit examined independently
the language and history of the Daniels Amendment in reaching its
conclusions. See Lead, 647 F.2d 1233-34 n.69. Although the court
discussed Whirlpool, which it found consistent with its interpretation
of the Daniels Amendment, its analysis did not rely on the Whirlpool
decision. Id. Furthermore, the D.C. Circuit did not misread Whirlpool
by noting the context of the Supreme Court's holding--that the Daniels
Amendment would have allowed employees to unilaterally leave work at
full pay under certain circumstances. Id.
    Commenters also argued that WRP is barred by the Executive Order on
Federalism (Executive Order), specifically sections 2(i) and 3(b). Ex.
30-3811, pp. 16-18. Section 2(i) of the Executive Order states that
``[t]he national government should be deferential to the States when
taking action that affects the policymaking discretion of the States
and should act only with the greatest caution where State or local
governments have identified uncertainties regarding the constitutional
or statutory authority of the national government.'' Section 3(b)
provides that ``[n]ational action limiting policymaking discretion of
the States shall be taken only where there is constitutional and
statutory authority for the action and the national activity is
appropriate in light of the presence of a problem of national
significance. Where there are significant uncertainties as to whether
national action is authorized or appropriate, agencies shall consult
with appropriate State and local officials to determine whether Federal
objectives can be attained by other means.'' 64 FR 43255 (Aug. 10,
1999). The Executive Order sets forth fundamental federalism
principles, federalism policymaking criteria, and provides for
consultation by federal agencies with state or local governments when
policies are being formulated which potentially affects them. [Note:
Section XIII of this preamble describes the Executive Order in more
detail and discusses OSHA's interactions with State and local
governments in the development of this rule. It also contains a
certification by the Assistant Secretary that OSHA has complied with
the applicable requirements of the Executive Order.]
    WRP is not ``barred'' by the Executive Order. First, there is no
``uncertainty'' with respect to OSHA's authority to include WRP in this
standard. As explained above, the OSH Act gives OSHA broad authority to
include WRP where necessary or appropriate to effectuate its statutory
mandate. Indeed, the rulemaking record requires OSHA to include WRP in
this standard. Second, OSHA has found that ``national action'' is
necessary to deal with the significant risk of MSDs in the workplace.
As shown in great detail in the Risk Assessment and Significance of
Risk sections, the problem of MSDs is national in scope. See Sections
VI and VII below. Under these circumstances, a national standard to
prevent MSDs is appropriate under the OSH Act and entirely consistent
with the federalism policies set forth in the Executive Order.
    Third and finally, OSHA consulted with stakeholders, including
representatives from State and local governments, on WRP (and the
standard in general). Numerous representatives from State and local
governments testified at the hearing. See e.g., 502-476 (Testimony of
The Honorable Eliot Spitzer, New York State Attorney General; Testimony
of National League of Cities). These same commenters and many others
also submitted written comments on the proposed rule, including
comments on WRP. See Section XIII for a larger discussion of the
participation of State and local governments in the rulemaking
proceedings. OSHA considered these comments in developing the final
standard. OSHA also specifically sought comment from the public
(including State and local governments) on whether the objectives of
WRP could be attained by other non-regulatory means. 64 FR 65858 (Nov.
23, 1999). OSHA considered the various alternatives suggested; OSHA
ultimately concluded, however, that those alternatives would be unable
to accomplish the objectives of WRP (see Chapter VIII, Non-Regulatory
Alternatives, of the Final Economic Analysis).
    Finally, representatives of the insurance industry also argued that
the McCarran-Ferguson Act prevents OSHA from including WRP in this
standard. Ex. 30-3811, pp. 38-39. The McCarran-Ferguson Act states, in
pertinent part: ``No Act of Congress shall be construed to invalidate,
impair, or supersede any law enacted by any State for the purpose of
regulating the business of insurance, or which imposes a fee or tax
upon such business, unless such Act specifically relates to the
business of insurance.'' 15 U.S.C. Sec. 1012(b). Congress passed the
McCarran-Ferguson Act in reaction to

[[Page 68392]]

the Supreme Court's decision in United States v. South-Eastern
Underwriters Assn. (South-Eastern), 322 U.S. 533 (1944). In South-
Eastern, the Supreme Court held that ``insurance transactions were
subject to federal regulation under the Commerce Clause, and that the
antitrust laws, in particular, were applicable to them.'' SEC v.
National Securities, Inc., 393 U.S. 453, 457 (1969). The McCarran-
Ferguson Act was an attempt to ``turn back the clock [to the time
before the Supreme Court decision], to assure that the activities of
insurance companies in dealing with their policyholders would remain
subject to state regulation.'' Id. at 458-59.
    The McCarran-Ferguson Act does not prevent OSHA from acting
pursuant to its own authority under the OSH Act. OSHA derives its
authority to issue standards from the OSH Act; OSHA is authorized to
implement standards ``reasonably necessary or appropriate'' to
accomplish its statutory goal. As explained in detail above, OSHA is
operating well within its statutory authority by including WRP in this
standard. The McCarran-Ferguson Act has no bearing on that authority.
See Women in City Government United et al. v. City of New York, 515 F.
Supp. 295, 303 (S.D.N.Y. 1981) (The McCarran-Ferguson Act was not
intended to be applied ``indiscriminately to subsequent federal
legislation * * * solely because legislation fails specifically to
state that it is applicable in circumstances where insurance interests
are implicated.'').
    And, as explained more fully below in the discussion of section
4(b)(4) of the OSH Act, WRP will not invalidate, impair, or supersede
any workers' compensation law or system. The operation of workers'
compensation laws will remain unchanged after the standard is
promulgated. WRP also will not supersede workers' compensation systems
by encouraging or discouraging claims in those systems. The McCarran
Ferguson Act does not prevent OSHA from issuing WRP.
2. Section 4(b)(4) Does Not Prohibit OSHA From Including WRP and Other
Provisions in This Standard.
    (a). Section 4(b)(4) does not prohibit OSHA from including WRP in
this standard.
The most persistent criticism of WRP is that Section 4(b)(4) of the OSH
Act forbids OSHA from imposing any type of wage continuation
requirement. Section 4(b)(4) provides:

    ``Nothing in this Act shall be construed to supersede or in any
manner affect any workmen's compensation law or to enlarge or
diminish or affect in any other manner the common law or statutory
rights, duties, or liabilities of employers and employees under any
law with respect to injuries, diseases, or death of employees
arising out of, or in the course of, employment.'' 29 U.S.C.
653(b)(4).

    In the preamble to the proposed rule, OSHA explained in detail how
the proposed WRP provision did not violate section 4(b)(4) of the OSH
Act. Section 4(b)(4) of the OSH Act was intended to bar ``workers from
asserting a private cause of action against employers under OSHA
standards,'' and to prevent any party in an employee's claim under a
workers' compensation law or other State law from asserting that an
OSHA regulation or the OSH Act itself preempts any element of State
law. Lead, 647 F.2d at 1235-36. In short, section 4(b)(4) prohibits
OSHA from legally preempting state workers' compensation law. Id. Thus,
even if WRP were to have a ``great practical effect'' on state workers'
compensation systems, it would not violate section 4(b)(4) so long as
it left the state scheme ``wholly intact as a legal matter.'' Id. at
1236 (emphasis in original).
    The rulemaking record confirms that WRP in this standard will not
change the legal scheme of state workers' compensation systems.
Professor Emily Spieler, who is one of the nation's leading scholars on
state workers' compensation systems and their interaction with other
federal and state laws, submitted written comments and testified at
great length on the effects of WRP on state workers' compensation
systems. As noted above, Professor Spieler served as the Commissioner
of the West Virginia Workers' Compensation Fund, responsible for
setting insurance premium rates, premium collection from employers,
initial claims review, and adjudication. She has lectured extensively
on employment law and public health issues, and has authored and/or co-
authored numerous articles on workers' compensation, see Ex. 37-14,
Curriculum Vitae of Emily A. Spieler, including:
     Spieler E. Is Workers' Compensation the Only Legal Remedy
for Workers Who Are Injured at Work? In Occupational Health:
Recognition and Prevention of Work-Related Disease and Injury (4th ed.
(Lippincott, Williams & Wilkins, Levy BS, Wegman, DW, eds., 2000).
     Spieler E. Dispute Resolution in Workers' Compensation
Managed Care. Report prepared for Robert Wood Johnson funded project, A
Guide to Evaluating the Effectiveness of Managed Care Programs in
Workers' Compensation.
     Spieler E. Perpetuating Risk? Workers' Compensation and
the Persistence of Occupational Injuries, 31 Houston Law Rev. 119-264
(1994).
     Spieler E. Injured Workers, Workers' Compensation, and
Work, 95 W.Va. Law Rev. 333-467 (1992-93).
    Professor Spieler stated that WRP would not alter or affect the
legal scheme of state workers' compensation systems; nor would it
``supersede'' those systems. Specifically, she stated:

    (1) WRP would in no way change the eligibility criteria for
obtaining workers' compensation benefits in the state workers'
compensation systems. In fact, she noted that the eligibility
criteria for WRP and the eligibility criteria for state workers'
compensation were substantially different.
    (2) WRP would in no way change the filing requirements for state
workers' compensation claims. Thus, an employee report of an MSD
under the standard would not constitute the filing of a workers'
compensation claim. Every state has its own procedures for filing
workers' compensation claims; these would remain unchanged by WRP.
    (3) WRP would in no way change the benefit payments paid through
workers' compensation systems. Workers' compensation benefits are
set by state statute; WRP would not affect the payment of those
benefits.
    (4) WRP would in no way change the review and adjudication
process governing workers' compensation claims. ``Because of the no-
fault principle of the workers' compensation program[], the level of
hazard in the workplace and the general treatment of the injured
worker is irrelevant to workers' compensation proceedings. In fact,
OSHA rules have largely remained outside of workers' compensation
discussions and proof. The existence of an ergonomics standard will
not change that.''
    (5) WRP would not cause an increase in workers' compensation
premiums or change the calculation of workers' compensation premium
rates.

Id. at 15-18; Ex. 500-140, pp. 1-2.
    In summary, Professor Spieler stated that ``the proposed ergonomics
standard [including WRP would] not interfere with, undermine, or
federalize workers' compensation systems or illegally or
inappropriately undermine the exclusivity doctrine.'' Id. at 18. See
also Ex. 500-26 (Lynn Marie-Crider).
    The Attorney General of New York State, Eliot Spitzer, echoed these
same points with respect to the New York State workers' compensation
system. General Spitzer stated that WRP would leave New York's workers'
compensation system ``wholly intact as a legal matter.'' Ex. DC 75, p.
3. Specifically, WRP would not affect workers' compensation eligibility
criteria in New York. Id. at 5. Neither would employers in New York
State be effectively admitting liability under the state system by
making certain

[[Page 68393]]

determinations required by the standard, ``such as whether an employee
has a covered MSD, whether that employee should be referred to a
healthcare provider, or whether a WRP payment should be made.'' Id. at
6. General Spitzer also stated that WRP would not affect state workers'
compensation laws by obstructing the states' return-to-work objectives.
On the contrary, he stated that ``by encouraging early diagnosis and
treatment of covered injuries * * * WRP would promote, not obstruct,
rehabilitation and early return to work.'' Id. at 9. Finally, General
Spitzer stated that WRP would not interfere with the exclusivity
doctrine of workers' compensation: ``In my view there is no
interference with these provisions because WRP is not providing
remedies for injuries. Instead, by reducing the financial risks
associated with reporting injuries, the income maintenance provisions
of WRP would promote early reporting and treatment of the covered
injuries and prompt adjustments in workplace conditions for similarly
situated workers.'' Id. at 9-10. In making these observations, General
Spitzer noted that similar WRP provisions in other OSHA standards have
not interfered with the functioning of the New York State workers'
compensation system. See Tr. 3385-3407.
    Eighteen Attorneys General submitted post-hearing letters agreeing
with the testimony of General Spitzer that WRP would leave state
workers' compensation schemes wholly intact as a legal matter and not
``affect'' or ``supersede'' state systems in violation of section
4(b)(4). See Ex. 500-48.
    There is also no record evidence to support the assertion that WRP
will have a significant practical effect on state workers' compensation
systems. Injured workers will still have numerous incentives to file
for workers' compensation. First, neither WRP nor other provisions of
the standard require employers to pay for or provide medical treatment.
If a worker is injured on the job and requires medical treatment, that
worker will need to file for workers' compensation. As noted by
Professor Spieler, and consistent with the injury data described in
Section VII, a large proportion of MSD claims in workers' compensation
systems are for medical benefits only. Ex. 37-14, p. 16. Those
individuals who are seeking only medical treatment through workers'
compensation will not be affected by WRP. Second, WRP only requires
employers to maintain 90% of a removed employee's gross earnings and
benefits for up to 90 days. See Paragraph (r)(3). If a worker requires
benefits for longer than that period of time, the worker will need to
file for workers' compensation. Currently, 80% of workers' compensation
indemnity benefits are for permanent disability. Id. Ex. 37-14, p. 16.
Many of the workers receiving permanent disability benefits would not
be eligible for WRP.
    At the same time, OSHA does not expect that the number of workers'
compensation claims will rise dramatically with WRP. As Professor
Spieler stated in her written comments, ``the existence of the WRP
provision is very unlikely to discourage--or encourage--the filing of
workers' compensation claims.'' Id. This has been confirmed by earlier
WRP provisions in other health standards where there has been no
dramatic observable increase or decrease in the short run in the number
of workers' compensation claims filed for conditions covered by WRP and
state workers' compensation systems. See generally id. at 18; Ex. 500-
218, p. 128.
    For all of these reasons, WRP does not violate section 4(b)(4) of
the OSH Act. Some commenters argued the opposite, however. Some argued
that the language of section 4(b)(4) is unambiguous on its face: it
precludes ``any interference [with State workers' compensation
systems], whether of a legal, economic, public policy, practical or
other kind.'' Ex. 30-3811, p. 14. These representatives also argued
that the Lead decision was incorrectly decided; courts today, they
argued, would interpret section 4(b)(4) differently. Id.; see also Ex.
32-22-1, pp. 34-35; Ex. 30-4467, p. 17. In addition, some commenters
argued that numerous factual differences exist between WRP in this
standard and WRP in the lead standard that make OSHA's reliance on the
Lead decision misplaced. See Ex. 500-223, pp. 81-82; Ex. 30-4467, pp.
17-22. One important difference, according to these commenters, was
that few employees under the lead standard would be eligible for both
workers' compensation and WRP, whereas many employees under this
standard will be eligible for both workers' compensation and WRP. See
Ex. 500-223, pp. 84-85.
    OSHA does not believe that section 4(b)(4) can be interpreted to
prohibit OSHA from having any impact, either directly or indirectly, on
state workers' compensation systems. Such an interpretation would
prevent OSHA from enacting any occupational safety and health standard,
for, as the court noted in Lead, ``any health standard that reduces the
number of workers who become disabled will of course `affect' and even
`supersede' worker's compensation by ensuring that those workers never
seek or obtain work[ers'] compensation benefits.'' Lead, 647 F.2d at
1235. Congress obviously did not intend section 4(b)(4) to so limit
OSHA's standard-setting authority. Instead, section 4(b)(4) is intended
to prevent OSHA from affecting or superseding any state workers'
compensation law; as the court noted in Lead, it is intended to ``bar[]
workers from asserting a private cause of action against employers
under OSHA standards,'' and to prevent a worker or employer from
asserting in a state proceeding ``that any OSHA regulation or the OSH
Act itself preempts any element of state law.'' Id. at 1236. OSHA has
shown that WRP does neither.
    Furthermore, there are not ``numerous'' factual differences between
WRP in the lead standard and WRP in this standard. In fact, as
explained above, there are a substantial number of similarities. To be
sure, there may be a greater number of workers who qualify for WRP and
state workers' compensation benefits under this standard than under the
lead standard. Like the lead standard, however, these numbers will
decline after the standard is in place. OSHA predicts that by
encouraging early reporting, employees will report signs and symptoms
of MSDs before they become disabling and compensable under state
workers' compensation systems. Thus, the only ``effect'' of WRP will be
that fewer employees will become disabled under state workers'
compensation systems. As the court correctly noted in Lead, this is
precisely the effect OSHA standards are intended to have. Lead, 647
F.2d at 1235.
    Several commenters argued that WRP improperly ``supersedes'' the
exclusive remedy provisions of state workers' compensation laws,
essentially giving employees additional ``litigation rights'' before
the Occupational Safety and Health Review Commission and the federal
courts. Ex. 30-3811, pp. 19-22; see also Ex. 32-22-1, pp. 11-12.
    Workers' compensation systems were initially designed to provide
the sole remedy for injuries and illnesses covered by the systems. Of
primary importance was that employees would no longer be permitted to
assert a negligence claim against employers for injuries arising out of
and in the course of employment. Ex. 37-14, p. 12 (Spieler). ``Notably,
workers' compensation continues to bar alternative tort-based legal
actions against employers that involve negligently caused physical
injuries arising out of and in the course of employment.'' Id. This has
been termed the ``exclusivity'' doctrine.

[[Page 68394]]

    As explained by Professor Spieler, however, a number of federal and
state laws have expanded the rights of injured workers.

    ``[A] wide variety of legal rights have developed since workers'
compensation laws were initially passed. These include federal
employment-based laws (such as OSHA, the Americans with Disabilities
Act, the Family Medical Leave Act) that provide additional rights to
people with work-related health conditions; state employment-based
laws (such as anti-retaliation rights under the public policy
exception to the at-will employment doctrine and disability
discrimination laws); state common law torts that provide remedies
for employer actions other than the specific negligence that caused
the injury (such as fraud); and, in a growing minority of states,
some expansion of the definition of intentional actions that remove
injuries from the state exclusivity provisions. All of these legal
developments represent an expansion of workers' rights when they are
injured at work. Id.

Thus, while the ``exclusivity'' doctrine still exists in workers'
compensation, it exists within the broader framework of other Federal
and State rights granted workers by Congress and state legislatures.
These rights have not been held to violate or contradict in any way the
exclusivity doctrine of state workers' compensation systems; ``[t]hey
do not change the exclusive nature of workers' compensation for the
specific purpose of shielding employers from common law tort actions
based on negligence.'' Id.
    Neither does WRP. WRP provides employees some wage protection in
order to encourage them to report signs and symptoms of MSDs early.
``WRP does not create any common law tort remedy for [an] occupational
injury.'' Ex. 500-140, p. 2 (Spieler). WRP does not give employees any
additional procedural or substantive legal rights; WRP places a
requirement on employers to provide some wage protection to employees
when they are placed on temporary work restrictions. WRP does not give
employees a right to file a cause of action against an employer for WRP
benefits; WRP does not give an employee the right to file a cause of
action against an employer for failure to pay WRP. To be sure, the OSH
Act confers some procedural rights upon employees and/or their
designated representatives to participate in OSHA enforcement
proceedings; however, these rights were given employees by Congress and
are very limited. Indeed, employees may only question the Secretary of
Labor's exercise of prosecutorial discretion in an enforcement case
before the Occupational Safety and Health Review Commission on the
issue of abatement dates in a citation. 29 U.S.C. 659. WRP does not
violate the exclusivity doctrine of state workers' compensation
systems.
    WRP also does not conflict with, or frustrate the return-to-work
policies of state workers' compensation systems. Ex. 30-3811, pp. 22-
24; Ex. 32-22-1, pp. 16-18. Most state workers' compensation systems
provide temporary total disability (TTD) benefits to injured workers in
the amount of 66 2/3rds of their average weekly wage. These payments
are not taxed. Dr. Leslie Boden testified at the informal public
hearing that OSHA's proposed WRP provision was approximately equal to
the amount of TTD benefits provided in state workers' compensation
systems. See Ex. DC-47. The vast majority of workers who receive WRP
because they are removed entirely from work, therefore, will receive
approximately the same amount of money with WRP as they would under
most state workers' compensation systems. Because WRP and TTD benefits
are approximately equal, WRP is no more repugnant to the ``return-to-
work'' philosophy than are state workers' compensation systems.
    Even so, many injured workers currently receive supplemental
payments above and beyond workers' compensation. Some states
specifically authorize such a practice. According to Lynn-Marie Crider,
a former member of the Oregon Workers' Compensation Board and an expert
in workers' compensation:

    ``[T]here is nothing in any workers' compensation system with
which I am familiar that forbids workers from receiving greater wage
replacement payments than are provided for by the workers'
compensation system. Workers may receive supplementary payments from
the employer by tapping sick leave benefits, under a disability
insurance plan, and so forth. These additional payments are
specifically authorized by Oregon law. ORS 656.118. So, at least in
this state, it would be impossible to argue * * * that any
additional payments that a worker might receive under the WRP
provisions of the proposed rule violate an expectation that a worker
will receive no more than the maximum benefit amount established for
temporary disability compensation.'' Ex. 500-26, p. 4.

OSHA is unaware of any commenter who has argued that these supplemental
benefits are repugnant to the ``return-to-work'' philosophy of workers'
compensation.
    Furthermore, current data indicates that 82% of workers with MSDs
are returned productively to work by HCPs and only 3% are removed
entirely from the workplace. See Ex. 500-118. By encouraging employees
to report signs or symptoms of MSDs early, OSHA believes that even
fewer workers will need to be removed entirely from work. In this
respect, this standard (including WRP) actually promotes the ``return-
to-work'' philosophy.
    Finally, the record does not show that ``return-to-work'' is a
basic philosophy of workers' compensation. While many representatives
of the insurance industry aggressively argued that it is, Professor
Spieler had a contrary observation:

    ``[I]t is important to note that it is simply incorrect to say
that `return-to-work' is one of the `foundational concepts of
workers' compensation law.' Until the last 25 years, there was
absolutely no evidence that return-to-work was a basic component of
the workers' compensation world. Workers who collected benefits
under the workers' compensation systems had no right to return to
work; employers had no obligation to return them to work; and in
many cases workers who collected benefits were simply terminated
from employment. Recent judicial and legislative developments,
combined with an expanded understanding that aggressive return-to-
work efforts can increase productivity and decrease workers'
compensation costs, has led to a change in the way that this issue
is discussed in workers' compensation circles.'' Ex. 500-140, p. 3
(internal citations omitted).

    Commenters also argued that WRP ``supersedes'' state workers'
compensation systems by eliminating injury requirements and lessening
causation requirements. See Ex. 30-3811, pp. 24-28; Ex. 32-22-1, pp.
12-13.
    WRP will not directly change, alter, affect, or eliminate the
injury requirements or causation requirements of any state workers'
compensation law. States will continue to operate their systems in the
manner they deem appropriate. WRP will also not indirectly coerce
states to change or alter their injury and causation requirements. As
stated by Professor Spieler, ``[t]here is no logic to the claim that
WRP would force complete revision of state workers' compensation laws.
Workers' compensation [will] continue to process claims exactly as they
have always done.'' Ex. 500-140, p. 3. Furthermore, the fact that WRP
imposes (or does not impose) certain requirements on employers that are
different from workers' compensation in certain ways does not mean that
WRP ``supersedes'' such systems. In the words of Professor Spieler,
these differences ``underscore the fact that WRP leaves workers'
compensation unaffected.'' Id.
    For the same reasons, OSHA also disagrees with those commenters who
argued that WRP would ``supersede'' state standards in workers'
compensation for determining the

[[Page 68395]]

amount of compensation. See Ex. 30-3811, p. 29-33. WRP will not change,
alter, or eliminate those state standards. The mere fact that WRP has a
``different'' benefit level and does not contain maximum or minimum
levels does not mean that it ``supersedes'' or ``affects'' state
workers' compensation systems; as explained above, it means just the
opposite.
    Some commenters argued that WRP would drastically increase the
number of state workers' compensation claims, thus ``affecting'' state
systems in violation of section 4(b)(4). See e.g., Tr. 9786 (Nelson).
Other commenters, however, argued just the opposite: because WRP
provides ``greater benefits'' to injured workers, workers will not file
workers' compensation claims, thus ``affecting'' state workers'
compensation in violation of section 4(b)(4). See e.g., Ex. 30-4467,
pp. 19-20.
    OSHA has addressed this issue in great detail above. OSHA does not
believe that claims for workers' compensation will increase
dramatically after the standard is promulgated; past experience with
other standards that include WRP supports this. See Ex. DC-75, p. 11.
On the other hand, OSHA does not believe that injured or disabled
workers will stop filing valid workers' compensation claims. See id. at
11-12. In order to receive medical benefits or benefits after 90 days,
employees will need to file for workers' compensation. As stated by
Professor Spieler, ``the existence of the WRP provision is very
unlikely to discourage--or encourage--the filing of workers'
compensation claims.'' Ex. 37-14, p. 16.
    Some commenters argued that WRP ``affects'' or ``supersedes'' state
workers' compensation systems by providing for double recovery for
injured workers. See e.g., Ex. 32-22-1, p. 19-20. These commenters
specifically argued that state systems do not permit the attachment of
state workers' compensation payments; thus employers would have no
mechanism for retrieving from employees payments made pursuant to WRP.
Id.
    As explained more fully below, WRP does not provide for double
recovery for injured workers. WRP includes a provision which allows
employers to reduce their WRP payments when an employee receives
payments from workers' compensation. It is immaterial in this respect
whether states permit or prohibit attachment of workers' compensation
payments. WRP does not speak to the issue of attachment of these
payments. Rather, WRP permits employers to reduce their WRP payments by
the amount received by the employee from other sources. This prevents
an employee from receiving ``double recovery.'' See also Discussion of
offset provision below.
    Some commenters argued that WRP violates section 4(b)(4) because it
creates a conflict of interest between employers and insurance
carriers. See e.g., Tr. 6472-73 (McGowen).
    OSHA is not convinced that WRP will create a conflict of interest
between insurance companies and employers. Both employers and their
insurance carriers have a common interest: reducing injuries and
illnesses at work. Reducing the incidence of MSDs will reduce WRP
payments as well as workers' compensation costs. OSHA believes that
both employers and insurance carriers currently share this goal and
will continue to share this goal after the standard is promulgated.
    Even if the standard did introduce some conflict between insurance
carriers and employers with respect to any particular workers'
compensation claim, however, OSHA does not believe this violates
section 4(b)(4). Once again, section 4(b)(4) prohibits OSHA from
preempting, in whole or in part, the legal scheme of state workers'
compensation systems; any potential conflict of interest does not
directly or indirectly affect the legal scheme of any state system.
    Two commenters suggested WRP violates section 4(b)(4) because it
will (1) Result in ``blatant forum shopping by employees and their
representatives,'' (2) serve as ``res judicata'' or ``collateral
estoppel'' in a later state workers'' compensation proceeding, (3)
create incentives for state administrators to encourage employees to
``file'' for WRP and not file a state workers'' compensation claim, and
(4) create disincentives for states to cover MSDs. See Exs. 32-300-1,
pp. 12-13; 30-3853, pp. 27-28.
    First, OSHA does not understand how WRP, a uniform federal
requirement, would encourage ``blatant forum shopping'' by employees.
As shown, state requirements for filing of workers' compensation claims
will remain unchanged after the standard is promulgated. WRP would not
give employees any additional rights to file for workers' compensation
claims in other forums or allow employees to choose in which forums to
file workers' compensation claims.
    Second, WRP will not serve as ``res judicata'' or ``collateral
estoppel,'' or otherwise be improperly used in any state workers''
compensation proceeding. The Attorney General of New York State
addressed this issue in his testimony at the informal public hearing:

    ``[E]mployers would not effectively admit liability under state
workers' compensation laws by making certain determinations required
by the WRP such as whether an employee has a covered MSD, whether
that employee should be referred to a health care provider, or
whether a WRP payment should be made. None of these determinations
would constitute an admission of liability under New York's Workers'
Compensation scheme.'' Ex. DC75, pp. 6-7; see also Ex. 37-14, p. 16.

    Indeed, Professor Spieler stated in her written testimony that in
the past OSHA rules ``have largely remained outside of workers'
compensation discussions and proof.'' Ex. 37-14, p. 16. This, of
course, makes sense given that the no-fault principle of workers'
compensation makes ``the level of the hazard in the workplace and the
general treatment of the injured worker'' irrelevant to the state
proceeding. Id.
    Third, OSHA does not anticipate that inclusion of WRP in the
standard will provide an incentive for state administrators to
encourage workers to ``file'' for WRP instead of for workers'
compensation benefits. It is important to reiterate that workers do not
file for WRP, as they do under state workers' compensation systems.
Employers (and in certain circumstances HCPs) make the determination of
whether work restrictions are necessary and thus whether WRP is
appropriate; this determination is not made through an employee
``filing.'' State administrators thus could not encourage workers to
file for WRP. Furthermore, employees have an independent incentive to
file for workers' compensation, an incentive unaffected by the actions
of state administrators--WRP does not pay for medical treatment, or for
any benefits after 90 days. And finally, these commenters did not
explain how state administrators could actually encourage individual
workers to file for WRP. While it is true that in most state systems
workers' compensation administrators become involved at certain stages
of claims proceedings, the determination of whether to initiate a
workers' compensation claim is typically made at the plant level, where
the injury occurred.
    Fourth, WRP will not discourage--or encourage for that matter--
states from covering MSDs. As Professor Spieler stated, ``[t]here is no
logic to the claim that WRP would force complete revision of state
workers' compensation laws.'' Ex. 500-140, p.3. The decision by a
particular state system as to whether a certain injury or illness
should be covered is a decision made appropriately by state
legislatures after consideration of a number of factors.

[[Page 68396]]

Inclusion of WRP in this standard will not independently affect this
decisionmaking process.
    Some commenters argued that the standard violates section 4(b)(4)
by denying employees and employers due process in making a claim for
WRP under the standard. See e.g., Ex. 32-22-1, pp. 14-16.
    Once again, employees do not make a ``claim'' for WRP under this
standard. In this respect, WRP is fundamentally different from workers'
compensation. Under this standard, employers make the determination as
to whether work restrictions are appropriate; if they are, employers
must provide WRP. If an employer is cited for failing to provide WRP,
the OSH Act provides an opportunity for the employer to contest the
citation. Employers are thus not denied due process with respect to
WRP.
    That said, OSHA has included a dispute resolution mechanism in the
final standard that was not included in the proposed rule in order to
address concerns raised both by employer and employee groups. See
Paragraph (s). Many commenters from both labor and industry asked OSHA
to include some dispute resolution mechanism in the standard so that
employers and employees could more efficiently handle disputes related
to work restrictions. See e.g., Exs. 500-218, p. 124; 32-300-1, p. 30;
Tr. 7654. OSHA has responded to these comments and included such a
mechanism in the final standard. See Discussion below. OSHA notes,
however, that it is not aware of any employee group that alleged that
the proposed standard violated constitutional due process by failing to
have a dispute resolution mechanism in the proposed standard for
appealing various employer determinations.
    Some commenters argued that the standard violates section 4(b)(4)
because it does not permit employers to stop paying WRP if it is
determined that a worker is engaging in practices that delay or prevent
his/her recovery. See e.g., Ex. 32-22-1, p. 26.
    OSHA believes that these commenters misunderstood the proposed
rule; OSHA has attempted in this rule to clarify the discussion of MSD
Management with respect to employer obligations to provide WRP. This
standard expressly provides that employers may condition the payment of
WRP on employee participation in MSD management. This includes the
evaluation and follow-up of employees. Thus, an employer may stop WRP
payments if an employee is not participating in the evaluation and
follow-up provided for by MSD Management. See Paragraph (r)(4).
    Commenters argued in general that because WRP is different from
state workers' compensation systems (i.e., different standards,
different burdens of proof, different compensation rates, different
dates, the presence of a waiting period, etc.), it creates a parallel
benefits scheme in violation of section 4(b)(4). See Ex. 32-22-1, pp.
12-18; Tr. 6466 (McGowen).
    As OSHA explained above, the fact that differences exist between
WRP and state workers' compensation systems demonstrates that WRP does
not violate section 4(b)(4). WRP is a federal requirement separate from
the requirements and procedures of state workers' compensation systems.
It is not intended to replace workers' compensation. It is designed
instead to accomplish very different purposes. Workers' compensation is
designed to compensate workers after an injury has occurred. WRP is
designed to encourage employees to report signs or symptoms of MSDs
early, before they become severe and disabling, and to cooperate with
the standard's MSD management provisions. As such, it is not surprising
that WRP and state workers' compensation systems have different
schemes, etc. The fact that WRP operates differently from state
workers' compensation systems does not mean that it ``supersedes'' or
in any manner ``affects'' workers' compensation. In the words of
Professor Emily Spieler:

    ``All of the differences * * * between WRP and workers'
compensation underscore the fact that WRP leaves workers'
compensation unaffected. This includes the different process of
selection of the evaluating health care provider (HCP); the
different role of the HCP; the different enforcement mechanisms; the
different standards for evaluation of whether the MSD is covered;
the differences in burdens of proof; and any differences in payment
levels. The very fact that there will be inconsistent outcomes * * *
suggests that WRP will not affect state workers' compensation
programs.'' Ex. 500-140, p. 3.

See also Ex. 500-26, pp. 3-4.
    One commenter, Robert Aurbach, General Counsel of the New Mexico
Workers' Compensation Administration, in his capacity as a private
citizen argued that WRP violates the second clause of section 4(b)(4)
by (1) Providing different requirements for HCP choice, (2) eliminating
waiting periods, (3) shifting the burden of proof, (4) requiring
employers to ``fix'' problem jobs, (5) requiring payment for medical
care, (6) creating conflicts of interest between employer and insurance
carriers, (7) creating additional administrative burdens, and (8)
being, in general, overbroad. Ex. 32-22-1, pp. 27-31.
    OSHA has addressed some of Mr. Aurbach's specific points above. WRP
and other provisions of the standard do not require employers to pay
for medical care, do not create conflicts of interest between employers
and insurance carriers, and do not affect state workers' compensation
waiting periods or burdens of proof. OSHA also does not believe that
this standard is overbroad--OSHA has carefully tailored this standard
to address exposure to ergonomic risk factors at levels shown to cause
a significant risk of MSDs.
    OSHA admits that the standard will place certain requirements upon
employers to ``fix'' problem jobs, and keep some records of their
ergonomics programs. Imposing these requirements on employers, however,
does not violate section 4(b)(4). Virtually every OSHA standard
includes some new requirements or places some administrative burdens on
employers. This is not surprising given that the scheme of the statute,
manifest in both the express language and the legislative history * * *
[permits] OSHA to charge to employers the cost of any new means it
devises to protect workers.'' Lead, 647 F.2d at 1230-31. For example,
OSHA has required employers to install local exhaust ventilation in
numerous health standards, produce and keep medical surveillance
records of employees, provide hazard information to employees, etc.
These requirements have never been held to violate section 4(b)(4).
Indeed, if Mr. Aurbach's interpretation of the second clause of section
4(b)(4) were accurate, section 4(b)(4) would prevent OSHA from issuing
any occupational safety and health standard. Under Mr. Aurbach's
interpretation of the second clause of section 4(b)(4), if OSHA places
any burdens (such as administrative burdens or the requirement to
eliminate hazards in dangerous jobs) on employers not already required
either by statute or the common law, section 4(b)(4) is violated. This
interpretation is not plausible.
    Contrary to Mr. Aurbach's assertion, the second clause of section
4(b)(4) must be read in conjunction with the first clause discussed in
detail above. Section 4(b)(4) as a whole prevents OSHA from displacing
or preempting the legal scheme of state workers' compensation. WRP will
do no such thing. Section 4(b)(4) cannot be read to prevent OSHA from
issuing safety and health standards.
    (b). Section 4(b)(4) does not prohibit OSHA from including certain
other provisions in this standard, as some commenters argued.

[[Page 68397]]

    Several commenters argued that the confidentiality provision
(Paragraph (p)(2)) of the standard ``supersedes'' state workers'
compensation systems because such systems permit the employer to obtain
any information from an HCP related to a workers' compensation claim.
See e.g., Ex. 32-22-1, pp. 25-26.
    OSHA admits that the confidentiality provision in the proposal was
not clear. OSHA has changed the language in the final rule to clarify
it. As explained in more detail above, if a state workers' compensation
system requires or even allows employers to obtain information related
to a workers' compensation claim, the MSD management provisions would
not prevent that information from being passed from the HCP to the
employer in any manner. OSHA thus does not ``supersede'' or ``affect''
the different mechanisms provided by the states for the employer to
obtain information from an HCP about a workers' compensation claim.
    Commenters also argued that the standard ``supersedes'' state
workers' compensation systems because (1) it allows the employer to
select the initial HCP (whereas in numerous states the employee can
select the initial HCP) and (2) it permits certain HCPs to participate
in MSD management, even though those HCPs would not be qualified under
state law to examine state workers' compensation claimants. See e.g.,
Ex. 30-3811, pp. 34-37; Ex. 32-22-1, pp. 20-26.
    This standard does not require employers to select the initial HCP.
As explained above, this standard requires employers to make an HCP
available to injured employees. Employers may choose to satisfy this
requirement by operating within the selection practices of their state
workers' compensation systems. (In fact, OSHA anticipates that most
employers will do this.) Thus, if a state permits an employee to choose
the initial HCP, that practice could continue under this standard.
    Furthermore, the fact that OSHA is permitting certain HCPs to
participate in MSD management who may not be permitted to examine
workers' compensation claimants under state workers' compensation
systems does not violate section 4(b)(4). OSHA has determined, based
upon the rulemaking record, that certain ``HCPs,'' operating within
their scope of practice, can perform certain functions under MSD
Management. This is an appropriate exercise of OSHA's authority and one
that OSHA has exercised in other standards. See 29 CFR 1910.1052(b)
(Methylene Chloride). OSHA is not changing the state requirements for
practice of HCPs under workers' compensation laws. Those requirements
remain the same.
    Commenters argued in general that the standard ``supersedes'' state
workers' compensation systems because it establishes separate
requirements for the provision of medical care with different cost
structures, treatment guidelines, and regulatory burdens. See e.g., Ex.
30-3811, pp. 34-38.
    This standard does not require the employer to pay for or provide
medical care and/or treatment. MSD management only requires employers
to make an HCP available for evaluation and follow-up. The standard
does not establish any cost structures or treatment guidelines, etc.
Indeed, OSHA has expressly declined to include such requirements in the
standard. See Discussion of MSD management above.
    Finally, many commenters argued that WRP (and other provisions of
the standard) improperly (1) creates a ``most-favored injury'' by
providing compensation for MSDs at a higher rate than for other
occupational injuries and illnesses, and (2) treats employers and
employees in different states with different compensation systems
differently. See e.g., Tr. 6435-36 (Ewing); 6457 (Situkiendorf).
    WRP does not result in workers with MSDs being compensated at a
higher level than workers with other injuries and illnesses. As stated
above, WRP payments are approximately equal to the amount of TTD
payments received by workers through workers' compensation for all
occupational injuries and illnesses. The standard also includes an
offset provision that prevents an employee from receiving both WRP and
workers' compensation. See Discussion of offset provision below. OSHA
is thus not creating a separate class of injured workers and paying
them at a higher rate than injured workers receive under workers'
compensation.
    OSHA has acted pursuant to its statutory authority to issue this
standard to reduce the significant risk of employees developing MSDs
from workplace exposure to ergonomic risk factors. The rulemaking
record requires that OSHA include WRP to effectuate the purposes of
this standard. WRP is designed to encourage employees to report MSDs
early and to participate in MSD Management; it is not designed to, nor
will it, compensate injured workers at a higher level than injured
workers receive under state workers' compensation. Simply because OSHA
has singled out certain injuries and illnesses for regulation, but not
others, does not mean that OSHA has acted improperly. OSHA's inclusion
of WRP in other standards has never been ruled ``improper'' because it
somehow created a ``most-favored injury.''
    Furthermore, OSHA disputes that by creating a uniform federal
requirement it is treating employers and employees differently in the
various states. On the contrary, WRP applies equally to employers and
employees in general industry. If, for example, two workers from
different states must be removed from work due to the same MSD, they
both will receive at least 90% of their gross earnings and benefits for
up to 90 days. WRP creates no inequality.
    To be sure, inequity currently exists in state workers'
compensation systems. But as Professor Spieler stated in her written
comments on the proposed rule, WRP will not introduce, solve, or affect
that inequity:

    ``One final and important point: Some have argued that the
proposed standard introduces inequity or inequality into the
treatment of workers with occupationally-related MSDs. * * * But the
proposed standard does not introduce inequity or inequality into the
programs that provide protection for the affected workers. Serious
inequities exist already. Currently, eligibility criteria for MSDs
and payment levels in workers' compensation programs vary wildly
from one state jurisdiction to another. So do protections under
state-mandated temporary disability programs and under state
disability rights laws. Some workers will receive medical treatment,
permanent disability benefits, vocational training, and job
placement; others, with equivalent MSDs will not. Irrespective of
the promulgation of the proposed standard, these inequities will
persist. They will persist precisely because state workers'
compensation programs will be unaffected by the promulgation of the
standard.'' Ex. 37-14, p. 19.
3. Section 4(b)(1) Does Not Prevent OSHA From Applying WRP to Federal
Employees.
    The United States Postal Service, as well as certain federal
agencies, argued that section 4(b)(1) of the OSH Act prevents OSHA from
applying WRP to federal employees because the Federal Employees
Compensation Act (FECA) occupies the field with respect to compensation
for work-related injuries. Ex. 35-106-1, pp. 14-21.
    FECA provides compensation to federal employees injured while in
the performance of their duties. 5 U.S.C. 8102. For totally disabled
individuals, FECA pays 66 2/3% of their monthly pay. 5 U.S.C. 8105(a).
In this respect, FECA is similar to state workers' compensation
systems. FECA also has certain maximum and minimum levels for
compensation, as well as a three day waiting period. Unlike various
state systems, however, FECA contains a

[[Page 68398]]

continuation of pay mechanism (COP) for employees who suffer traumatic
injuries. Under COP, employees may receive a continuation of their pay
``without a break in time'' for up to 45 days. 5 U.S.C. 8118.
Furthermore, the FECA provides that ``[a]n employee may use annual or
sick leave to his credit at the time the disability begins.'' 5 U.S.C.
8118(c). Like state workers' compensation systems, FECA was enacted to
provide federal employees with a quicker and more certain recovery for
work-related injuries.
    FECA does not preempt OSHA under section 4(b)(1) of the OSH Act
from applying WRP to federal employees. Section 4(b)(1) of the OSH Act
provides, in pertinent part:

    Nothing in this Act shall apply to working conditions of
employees with respect to which other Federal agencies * * *
exercise statutory authority to prescribe or enforce standards or
regulations affecting occupational safety or health. 29 U.S.C.
653(b)(1).

    Section 4(b)(1) ousts OSHA from jurisdiction over working
conditions over which another agency has exercised statutory authority.
At the time the OSH Act was passed various federal agencies had
statutory authority to prescribe and enforce standards and regulations
affecting occupational safety and health. To avoid duplication of
effort, Congress included section 4(b)(1) in the OSH Act. Thus, section
4(b)(1)'s broad purpose is to avoid duplicative regulatory burdens
without impairing the OSH Act's primary goal of ``assur[ing] so far as
possible every working man and woman in the Nation safe and healthful
working conditions.'' 29 U.S.C. 651(2)(b).
    In order for an agency's action to preempt OSHA under section
4(b)(1), the agency must formally ``exercise'' its statutory authority
to regulate ``particular working conditions,'' or express its view that
no action should occur. See e.g., Baltimore & Ohio R.R. v. OSHRC, 548
F.2d 1052, 1053-55 (D.C. Cir. 1976); Southern Pacific Transp. Co. v.
Usery, 539 F.2d 386, 390-92 (5th Cir. 1976), cert. denied, 434 U.S. 874
(1977). While courts differ slightly in their interpretation of what
constitutes ``working conditions'' for purposes of section 4(b)(1), all
approaches are based on the Supreme Court's definition of that term as
limited to an employee's ``surroundings'' and the `` `hazards'''
incident to his work.'' Southern Pacific Transp., 539 F.2d at 390
(quoting a