Written and submitted by Brent D. Rector, Attorney

On April 5, OSHA announced its comprehensive plan for reducing muscoskeletal disorders (MSDs) in the workplace. OSHA last year had promised to develop a new strategy for addressing MSD injuries, after Congress repealed the controversial OSHA ergonomics standard issued in the last days of the Clinton administration.

OSHAs new plan has several elements:

• OSHA will develop guidelines for employees, which will be industry-specific and task-specific, targeting high-hazard industries; these guidelines will be voluntary, not part of a formal OSHA standard.

• OSHA will emphasize enforcement, creating ergonomics inspections teams who will use the "general duty clause" to cite employers.

• OSHA will provide assistance and outreach to address workplace MSDs, focusing primarily on small businesses.

• There will be more ergonomics research, by establishing a national advisory committee to provide technical expertise to OSHA on medical science of MSDs.

Specific details for this new OSHA plan are yet to be developed. The announcement did not identify the high-hazard industries on which OSHA intends to develop specific guidelines. These guidelines will not have the force of law like an OSHA standard, since they will not become formal OSHA regulations.

Enforcement will be by using the "general duty clause" in OSH Act, which requires employers to furnish employees with employment free from "recognized hazards" that pose a risk of serious physical harm. Although the new guidelines will not be mandatory, they will undoubtedly be used by OSHA to claim that MSD hazards are "recognized," and that there is a feasible means to abate them.

In the 1990s, OSHA litigated MSD hazards under the "general duty clause" on two cases that reached the OSH Review Commission, one involving the meat packing industry and the other the nursing home industry. These cases will be important in future litigation for citations alleging MSD hazards. They generally hold that the general duty clause can be used to cite hazards from manual lifting and repetitive motion, if OSHA can prove the necessary elements. They focused on whether these hazards are sufficiently defined to be "recognize," and whether there is a feasible means of abatement.

What does this mean for employers? OSHAs announcement promises to "crack down on bad actors." It is likely that enforcement will focus on larger employers with relatively high incidences of MSDs, since this is where OSHA is likely to have the greatest impact.

What does this mean for Michigan employers? A few years ago the Bureau of Safety and Regulation identified MSDs as a target in its Strategic Plan, and this resulted the Occupational Health Division of the BSR creating a special enforcement guide. The OHD directive is focused on employers in specified SIC groups: 201 meatpacking, 346 forging and stamping, 344 fabricated structural metal products, and 805 nursing and personal care. Under this directive, any employer in these SIC codes who is subject to an inspection by OHD whether it is routine programmed inspection or based on a complaint or referral will also be inspected for potential ergonomics hazards.

The OHD directive requires review of three categories of MSD injuries: cumulative stress, lifting operations and manual handling operations. If a significant percentage of employees on a job are experiencing MSDs, then the inspection will be broadened to include these types of hazards. Any jobs that appear to be creating these types of injuries would be evaluated for potential citation under the general duty clause. Sources of information for this during the inspection are from the employers injury and illness logs, employee interviews, etc. Generally, the directive suggests a threshold of 30 percent of the employees on the job for expansion of the inspection to ergonomic hazards. Although OHD has expanded its inspections for employers in these SIC groups, there has not been significant enforcement through citations under the general duty clause.

Whether the new OSHA plan for workplace MSDs will result in more enforcement of ergonomic hazards with citations, either in Michigan or at the federal level, remains to be seen.

Mr. Rector is an attorney with Miller, Johnson, Snell & Cummisky, P.L.C. of Grand Rapids and Kalamazoo, a member of the Safety Council for West Michigan. Mr. Rector represents management in labor and employment matter, including defense of OSHA and MIOSHA citations.

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