As more and more leadership posts are filled in the Obama administration at the US Department of Labor, ergonomics is once again showing up on OSHA’s regulatory agenda. The regulatory agenda issued in December 2009 announced a new rulemaking revisiting the definition of work-related musculoskeletal disorders (WMSDs) and how WMSDs should be recorded on OSHA 300 logs. On January 29, 2010, OSHA published a Proposed Rule on Occupational Injury and Illness Recording and Reporting Requirements that would mandate employers to record work-related musculoskeletal disorders.

The proposed rule would reinstate the musculoskeletal disorders column on OSHA’s injury and illness recordkeeping forms (OSHA 300 Log). OSHA asserts that it only intends to reinstate a requirement that was stricken under the prior administration and such a requirement will help employers and workers track these injuries at individual workplaces. Others see this rulemaking as the first step in OSHA’s effort to collect statistical data to support a second attempt at an ergonomics standard.

Employers may also be subjected to enormous compliance costs associated with the recording of WMSDs. Indeed, proposed section 1904.12(b)(1) broadly defines MSDs as “disorders of the muscles, nerves, tendons, ligaments, joints, cartilage and spinal discs.” If this proposed definition of MSDs is incorporated into the final rule, safety and health professionals who are in charge of recordkeeping obligations for their companies may have to spend a significant amount of time determining whether an employee indeed suffers from this type of “disorder.” It may also be extremely difficult to determine whether the “disorder” actually occurred in the workplace.

In addition to the added burden of recording WMSDs, the proposed rulemaking could also increase the likelihood that health care facilities will have enforcement inspections conducted under the Site-Specific Targeting (SST) program. The SST program compiles an inspection target list of employers based on self-reported injury and illness data from employer’s OSHA 300 logs for programmed inspections of the workplace. If health care facilities are required to record WMSDs on their forms, therefore increasing the rate of injuries and illness, they will be more likely to be on the SST list. Further confirming OSHA’s interest in WMSDs in health care facilities, OSHA added a new sector specifically focusing on nursing homes and personal care facilities (SIC codes 805 and 8361) for the first time in its 2009 SST program.

While OSHA proceeds with its own proposed rulemaking, Congress is also considering bills in both chambers (HR 2381 and S 1788) that would require OSHA to develop a safety standard specifically aimed at preventing WMSDs injuries to all health care workers by requiring all health care employers to purchase, use, and maintain safe lift mechanical devices. The bill would also require all health care employers to implement a safe patient handling and injury prevention plan; establish a data system that tracks and analyzes trends in injuries relating to the bill; maintain a system to document each instance when safe patient handling equipment was not utilized; and training requirements.

Arent Fox is continuing to follow the regulatory and legislative developments with regards to new requirements related to ergonomics in the health care industry and represents stakeholders who have a vested interest in the final outcome. If you would like additional information on any of these developments and the best strategy to ensure your business is represented, please contact:

Mark S. Dreux
dreux.mark@arentfox.com
202.857.6405