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30 ELR 10486 | Environmental Law Reporter | copyright © 2000 | All rights reserved OSHA's Proposed Ergonomics Standard: An Exercise in Cost and AmbiguityJerome K. BowmanThe author is a partner with the Chicago law firm of Ross & Hardies. He may be reached at (312) 750-2783 or by e-mail at jerome.bowman@rosshardies.com. In late 1999, the U.S. Occupational Safety and Health Administration (OSHA) proposed an expansive ergonomics standard.1 Its genesis, however, goes back to 1979, when OSHA hired its first ergonomist. Now, more than 20 years later, OSHA is moving forward with a proposed standard that is both extremely far-reaching and, in many ways, unique among health and safety requirements. The proposal, however, suffers from a number of serious deficiencies, including inherent ambiguities within the regulatory language itself. This Dialogue reviews the major elements of the proposed standard, the requirements the standard would place upon employers, and the problem areas associated with the standard as it is currently drafted. OSHA defines ergonomics as the science of fitting jobs to people.2 It is, in other words, a study of how work conditions and processes stress workers and cause injuries such as carpal tunnel syndrome, lower back pain, tendinitis and similar maladies. Two primary questions arise in analyzing any attempt by OSHA to regulate the problem of ergonomics. The first is whether there is adequate scientific support for the regulation itself or, more specifically, for the purported connection between workplace conditions and practices and ergonomic injuries. The second is the extent to which any regulatory agency can comprehensively, reasonably, and understandably regulate the problem of ergonomics. This Dialogue will not address the first question regarding the presence or lack of scientific support for the standard. The question of scientific support has been addressed exhaustably both by OSHA in the preamble to the proposed standard and in comments submitted to OSHA regarding the proposed standard, as well as in a number of published studies.3 Rather, this Dialogue will focus upon how OSHA has chosen to regulate this most difficult problem. OSHA's approach to ergonomics is found in its massive proposed standard. The standard, if it becomes effective, will take up 45 sections of the Code of Federal Regulations.4 It will have a massive impact on employers by requiring many (perhaps most) employers to institute comprehensive, written, and formal ergonomics programs. The massive impact of the standard and its complexities are both suggested to some extent by the preamble OSHA issued at the time it proposed the standard. This preamble takes up over 300 pages of the Federal Register.5 How the Proposed Standard Compares to Other OSHA Standards In some ways, the proposed standard is unique. In other respects, it is entirely consistent with the approach taken by OSHA in recent years. The most obvious unique feature of the proposed standard is the format OSHA chose to use in issuing it. The document is written in a question and answer format. Each section of the proposed standard is headed by a question. The regulatory language then responds to that question and the questions are grouped into major headings. This is the first OSHA standard issued in this format, but undoubtedly not the last. The second way in which the proposal is unique is reflected in OSHA's attempt to build in flexibility and to lessen the burdens associated with the standard for employers. Whether OSHA has succeeded in this quest is a question that is discussed throughout this Dialogue. In other ways, this standard is entirely consistent with what OSHA has offered in recent years. First, as have most recent OSHA standards, the proposal employs performance language.6 A performance standard tells employers to accomplish a certain goal, but it does not set forth specific means the employers must follow to reach that goal. For example, in the proposed ergonomics standard, the standard requires employers to control ergonomics problems. However, the standard leaves the details to the employer. It does not specify, for example, that work surfaces must be raised six inches to alleviate lower back pain. Instead, it requires employers to solve the problem, without specifying the means to do so. OSHA prefers performance standards. It argues that performance language in its standard provides employers with the maximum flexibility for solving problems.7 [30 ELR 10487] The employer, after all, is closest to the problems OSHA is seeking to address and, therefore, is in the best position to address them. On the other hand, inherent in any performance standard is the risk of second-guessing by the agency. If the standard sets a goal for employers and an employer fails to reach that goal, it is tempting for OSHA to simply presume that the fault is the employer's and that the employer is in violation of the standard. A specification standard, by contrast, tells employers specifically what must be done to comply. In dealing with a specification standard, the risk of second-guessing by OSHA is significantly reduced. If an accident occurs, the employer is not responsible if it complied with the specific requirements of the OSHA standard. This certainty is purchased at the price of flexibility. The proposal is also consistent with the most recently promulgated OSHA standards in that it is programmatic. It calls for employers to create, implement, and maintain a formal written program to achieve its goals.8 This is consistent with the Bloodborne Pathogen Standard,9 the Hazard Communication Standard,10 the Confined Spaces Standard,11 and the Lockout/Tagout Standard.12 In order to address this proposed standard in an understandable way, it is best to break the standard into two primary parts. The first part relates to applicability. The second part relates to specific standard requirements. The proposed standard would not automatically apply to all workplaces in the United States. Nor, even when applicable, would the standard apply plantwide. Rather, OSHA would require action by employers relating to specific jobs. In other words, if an ergonomics program is required by the proposed standard, that program may be limited only to those jobs for which, according to the guidelines set forth in the standard, a problem exists.13 On the other hand, despite the fact that the proposed standard appears to be fairly narrowly drawn by limiting its impact to specific jobs, it is indisputable that the proposal would apply to a vast number of jobs.14 In addition, the very word "job" is a defined term in the OSHA proposal, which may dramatically expand the scope of the standard. OSHA defines "job" in the proposal as: The physical work activities or tasks that employees perform. In this standard, the term "job" also includes those jobs involving the same physical work activities and conditions even if the jobs have different titles or classification.15 There appear to be at least three ways to interpret the term. An example will help to describe these three approaches. Suppose Company A employs an hourly employee (Smith) who works on an assembly line driving four rivets into the product the firm is producing. In addition to Smith, four other employees also perform the exact same role for the company on Smith's shift. In addition, the company runs three shifts a day and there are a total of 15 employees (including Smith) performing the exact same function as Smith. Smith's job involves the following ergonomic risk factors: repetitive motion, the absence of pauses or breaks between motions, long or awkward reaches, and sitting for extended periods of time. Smith develops an ergonomics-related injury. Based upon the analysis called for by the proposed standard, it appears that Smith's injuries may be attributable to the ergonomic risk factors associated with his job, as described above. None of the other employees performing Smith's job has suffered from any ergonomic-related injuries. The standard would clearly apply to Smith's "job." The question is, what does this mean? The first possible approach is the most straightforward: Company A would be required to institute an ergonomics program directed specifically to Smith and his job. The program would not extend to any other employees or to any other positions at Company A's facility. This, however, is clearly contrary to the definition of "job" included in the proposed standard. A middle-ground possibility would be to conclude that the standard requires Company A to include within its ergonomics program all 15 employees performing the exact same job as Smith. Any changes made to that position, i.e., any controls that are instituted, would have to be applied to all 15 of these workers. It is not clear, based on the standard as written, or based upon the regulatory explanation of the standard contained in the Federal Register preamble, whether this is the approach OSHA is intending to follow. The most expansive answer would be that Company A must include every job that involves some or all of the same ergonomic risk factors present in Smith's job. If OSHA were to adopt this approach, it would argue that the definition of job is tied to the "physical work activities and conditions" found in the job.16 Indeed, under the standard, the most important criterion in defining a job is the employee's physical work activities and conditions. Musculoskeletal disorder hazards (MSDs) are also defined in terms of a job's physical work activities and conditions, as well as ergonomic risk factors associated with those activities.17 Therefore, when seeking to determine all other positions to lump into the same "job," OSHA is naturally inclined to look at shared MSD hazards—that is, after all, OSHA's focus in the proposed standard. This is a questionable interpretation, and one subject to challenge, but it highlights the elasticity of the standard and the dangers such elasticity could present for employers. Because the ergonomic risk factors that have been identified as being related to Smith's job are general and broadly phrased, the number of jobs in Company A's facility that would include these factors might well be unlimited, or at least limited merely by the number of jobs at the facility. For example, it is easy to imagine an OSHA compliance officer concluding that virtually any job involves some repetitive motion, lack of pauses or breaks between motions, long or awkward reaches, or sitting for too long, even though the two jobs being compared are not otherwise similar at all. It is far from clear whether OSHA will, in practice, take this very expansive approach to the standard. However, although it would certainly be subject to legal challenge, OSHA may conclude that the standard may support such an interpretation because of its inherent ambiguities. If this approach is followed, there will be many problems employers will face in implementing the standard. The issue of the scope of the standard, and the breadth of the definition of "job," reappears throughout this Dialogue's discussion of various aspects of the proposal. The proposed standard covers three job classes: (1) manufacturing jobs; (2) manual handling jobs; and (3) jobs in which employees report covered MSDs, i.e., ergonomic-related injuries. If an employer has an employee working in any job in any of these three categories, that job is covered by the ergonomics standard and the employer is required to have at least a partial ergonomics program, as is explained in more detail later in this Dialogue. Each of the three classes of jobs will now be discussed. If an employer has employees working in "manufacturing jobs" the standard applies to those jobs.18 Manufacturing jobs are: Production jobs in which employees perform the physical work activities of producing a product and in which these activities make up a significant amount of their work time.19 The proposed standard goes on to provide examples of jobs that typically are considered manufacturing jobs. Those examples are: * Assembly line jobs producing products (durable and nondurable), subassemblies, components, and parts * Paced assembly jobs (assembling and disassembling) * Piecework assembly jobs (assembling and disassembling) and other time-critical assembly jobs * Product inspection jobs (e.g., testers, weighers) * Meat, poultry, and fish cutting and packing * Machine operation * Machine loading/unloading * Apparel manufacturing jobs * Food preparation assembly line jobs * Commercial baking jobs * Cabinetmaking * Tire building20 The proposed standard also provides examples of jobs that typically are not manufacturing jobs. Those examples are: * Administrative jobs * Clerical jobs * Supervisory/managerial jobs that do not involve production work * Warehouse jobs in manufacturing facilities * Technical and professional jobs * Analysts and programmers * Sales and marketing * Procurement/purchasing jobs * Customer service jobs * Mail room jobs * Security guards * Cafeteria jobs * Groundskeeping jobs (e.g., gardeners) * Jobs in power plants in manufacturing facilities * Janitorial * Maintenance * Logging jobs * Production of food products (e.g., bakery, candy, and other confectionery products) primarily for direct sale on the premises to household customers21 It is important to note that the examples listed above are meant to provide guidance only. OSHA stresses that each job must be considered on the basis of its actual physical work conditions and work activities.22 Thus, OSHA may argue that, based on specific facts presented in a particular case, one of the jobs listed as typically not a manufacturing job is indeed one for purposes of the standard. If an employer has employees working in manual handling jobs the standard applies to those jobs.23 Manual handling jobs are defined to be: Jobs in which employees perform forceful lifting/lowering, pushing/pulling, or carrying. Manual handling jobs include only those jobs in which forceful manual handling is a core element of an employee's job.24 Again, OSHA provides examples of typical manual handling jobs: * Patient handling jobs (e.g., nurses aides, orderlies, nurse assistants) * Package sorting, handling, and delivering * Hand packing and packaging * Baggage handling (e.g., porters, airline baggage handlers, airline check-in) * Warehouse manual picking and placing * Beverage delivering and handling [30 ELR 10489] * Grocery store bagging * Grocery store stocking * Garbage collecting25 OSHA also provides examples of jobs or job tasks that typically are not manual handling jobs: * Administrative jobs * Clerical jobs * Supervisory/managerial jobs that do not involve manual handling work * Technical and professional jobs * Jobs involving unexpected manual handling * Lifting object or person in emergency situation (e.g., lifting or carrying injured co-worker) * Jobs involving manual handling that is so infrequent it does not occur on any predictable basis (e.g., filling in on a job due to unexpected circumstances, replacing empty water bottle, lifting of box of copier paper) * Jobs involving manual handling that is done only on an infrequent "as needed" basis (e.g., assisting with delivery of large or heavy package, filling in once for an absent employee) * Jobs involving minor manual handling that is incidental to the job (e.g., carrying briefcase to meeting, carrying baggage on work travel)26 Both the provision in the manual handling jobs' definition that forceful manual handling must be a "core element" of the job and the final examples of jobs that typically are not manual handling jobs are meant to protect employers from the need to implement an ergonomics program simply because an employee may occasionally perform certain activities that would otherwise fall within the definition of manual handling. Thus, for example, a lawyer who occasionally carries a trial bag or suitcases through an airport is not performing a "manual handling job" because the forceful lifting is not a core element of the job.27 If anything, the manual handling is "incidental to the job" and is not, therefore, covered by the standard. The third category of jobs covered by the proposed standard are those involving an MSD.28 This is obviously a different type of classification than the preceding ones. Manufacturing and material handling jobs are defined by the type of work performed in the position. The third category, however, is defined by the presence of a covered MSD suffered by an employee working in any job.29 In other words, if an employee suffers an MSD, that employee's job is covered by the standard regardless of the nature of the job. An MSD is, basically, an ergonomics-related injury. MSDs are defined in the proposed standard to be: Injuries and disorders of the muscles, nerves, tendons, ligaments, joints, cartilage and spinal discs. Exposure to physical work activities and conditions that involve risk factors may cause or contribute to MSDs. MSDs do not include injuries caused by slips, trips, falls, or other similar accidents. Examples of MSDs include: (1) Carpal tunnel syndrome; (2) Rotator cuff syndrome; (3) De Quervain's disease; (4) Trigger finger; (5) Tarsal tunnel syndrome; (6) Sciatica; (7) Epicondylitis; (8) Tendinitis; (9) Raynaud's phenomenon; (10) Carpet layers knee; (11) Herniated spinal disc; (12) Low back pain.30 More is required, however, than that an employee experience an MSD. The MSD must meet certain criteria to be a "covered MSD."31 There are four prerequisites32 an MSD must satisfy in order to be considered a "covered MSD," thereby triggering application of the standard: * The MSD must be reported after the effective date of the proposed standard. Because the standard has not yet been finalized, there is not yet an effective date. * The MSD must be recordable by the employer on its OSHA 200 log. (Or, if the employer is not required to maintain an OSHA 200 log, it must be the type of injury or illness which would be required to be reported on the 200 log if one were being maintained.) This requirement means that the MSD must be work related because only work-related injuries or illnesses are recordable.33 In addition, the MSD must have been diagnosed, resulted in at least one positive physical finding, or result in time off of work or being placed on light duty or being terminated.34 * The MSD must have occurred in a job in which the physical work activities and conditions are reasonably likely to cause or contribute to the type of MSD reported. On the one hand, this does place some limit on what MSDs are considered "covered" for purposes of the standard. On the other hand, OSHA recognizes that an MSD may trigger coverage of the proposed standard even if it was not, in fact, caused by a work-related activity. Rather, the work-related activity need only be the type of activity that could cause or contribute to the type of MSD reported. As a practical matter, as long as risk factors associated with the particular [30 ELR 10490] type of MSD experienced are found in the job, the MSD will be assumed to satisfy this criteria. * The activities and conditions that are found to be reasonably likely to have caused or contributed to the type of MSD reported must be a core element of and/or make up a significant amount of the employee's work time. As with the examples of manual handling jobs, this provision eliminates "outliers," i.e., those jobs that only occasionally or incidentally involve ergonomic risk factors. The effect of the definition of covered MSD is that any MSD that can, in one way or another, be construed to be caused (in whole or in part) by conditions in the specific job will be considered to be a covered MSD unless those conditions are not a core element or do not make up a significant amount of the employee's work time. Therefore, under the proposed standard all manufacturing jobs, all material handling jobs, and every job in which a "covered MSD" is reported must be addressed by a full or partial ergonomics program. Furthermore, it is important to remember the issues regarding the definition of "job."35 If a more expansive definition of that term is adopted by OSHA, then a single MSD reported in a single job may well trigger coverage for many other jobs in the facility that share some or all of the same physical work activities or conditions that are deemed to have contributed to the MSD. Elements of an Ergonomics Program Once the issue of applicability has been addressed, the employer needs to know its obligations. The "bottom line" of the proposal is that an employer with a covered job must implement all or at least part of an ergonomics program. A full ergonomics program consists of six elements: * Management Leadership and Employee Participation * Hazard Information and Reporting * Job Hazard Analysis and Control * Training * MSD Management * Program Evaluation36 Not every employer with a covered job will be required to implement a full ergonomics program. Only a partial program is required for manufacturing or material handling jobs if there has been no covered MSD reported for those jobs.37 In other words, any employer with a manufacturing job or a material handling job is required to implement a partial ergonomics program consisting of the first two elements of a program: (1) Management Leadership and Employee Participation and (2) Hazard Information and Reporting.38 These requirements apply regardless of whether there have ever been any reported MSDs associated with those jobs. Many employers will be required to institute a full ergonomics program, consisting of all six elements set forth in the proposed standard. In particular, any employer with an employee experiencing a "covered MSD" must institute a full program with respect to that employee's job.39 In addition, employers with manufacturing or material handling positions will be required to institute a full program for those jobs, even without the occurrence of a covered MSD, if "persistent MSD symptoms" are reported for those jobs."40 "Persistent MSD symptoms" is a lower threshold than "covered MSD." An actual injury is not necessary, in this instance, to require a full-blown ergonomics program. MSD symptoms,in the proposed standard, are defined to include one or more of the following: * Numbness * Burning * Pain * Tingling * Cramping * Stiffness41 These are very general symptoms and, it is important to note, no specific level of severity is required for the symptoms to trigger the requirements of a full-blown ergonomics program (with respect to manufacturing or material handling jobs).42 However, the symptoms must last for seven consecutive days, i.e., they must be "persistent". In addition, the employer must have knowledge that an MSD hazard exists in the subject job. Further, the symptoms experienced must have occurred in a job in which the physical work activities and conditions are reasonably likely to cause or contribute to the type of MSD signs or symptoms reported. Finally, these activities and conditions must be a core element or make up a significant amount of the employee's work time.43 Employer knowledge with respect to MSD symptoms is an important feature of the proposed standard. OSHA states that employer knowledge will be deemed to exist based on reports and information provided by insurance companies or third-party professionals hired to assist the employer with respect to ergonomics.44 There are two problems with this approach to persistent MSD symptoms. First, although the rest of the standard, as a practical matter, will virtually require employers to use outside consultants to assist them in complying with the standard,45 this provision penalizes employers [30 ELR 10491] for doing so. Second, employer knowledge will be deemed to exist even if the employer disagrees with the findings of the third-party consultant or insurance company. Element One: Management Leadership and Employee Participation The first element of an ergonomics program consists of management leadership and employee participation.46 The management leadership prong basically means that the employer must have more than a "paper program." In OSHA's view, a paper program is a written safety program that, while it may appear to be complete on its face, simply sits on a shelf inactive and is never implemented on the plant floor.47 The management leadership prong requires management to assure that itsergonomics program is more than a "paper program." Management must set forth each person's responsibility under the program. Management must also provide training and resources to run the program and to fix problems detected through it.48 Management must also make certain that reporting of MSD problems is encouraged and must affirmatively review existing policies to make sure that those policies do not, in fact, tend to discourage reporting.49 This is a backdoor attempt by OSHA to outlaw traditional incentive programs. A traditional incentive program is one in which employees are rewarded in some manner for low injury and illness rates or for the passage of a certain number of days without an accident. OSHA is developing increasing distrust for such programs because it believes they encourage underreporting of injuries and illnesses. Although the proposed standard does not directly address traditional incentive programs, the preamble to the proposed standard does. On the one hand, the preamble states that traditional incentive programs would not be outlawed by the proposed standard. Yet OSHA also notes that if, during an inspection, underreporting is detected (even if unintentional) and a traditional incentive program is in use, the employer will be cited. The citation would, however, be pursuant to the recordkeeping regulation, rather than the ergonomics standard.50 Finally, to comply with the management leadership prong of the first element of an ergonomics program, management must communicate with employees regarding the contents of the program.51 Employee participation is the second prong of the first element of an ergonomics program. Employees must be provided with a way to report MSD signs and symptoms and management must promptly respond to employee reports. Management must also provide employees with access to the standard and information about the employer's ergonomics program. Finally, management must provide employees with ways to be involved in developing, implementing and evaluating each element of the program.52 This last requirement is significant. A review of the proposed standard as a whole makes clear that OSHA intends hourly employees to be full partners with management with respect to the employer's ergonomics program.53 Different employers have adopted disparate management approaches with respect to interactions with hourly employees. Many employers have learned that a collaborative relationship with hourly employees works best for safety and health issues, and perhaps for production issues as well. However, others have reached an opposite conclusion. These employers insist upon maintaining management prerogatives and do not wish (or, perhaps, are unable) to engage in a collaborative partnership with hourly employees. The proposed standard makes this choice for employers, at least with respect to ergonomics. It mandates a collaborative relationship with hourly employees. It is certainly questionable whether the federal government should be making this sort of strategic decision for American companies. Element Two: Hazard Information and Reporting The second element of an ergonomics program is hazard information and reporting. Under this element, management must provide current and new employees with: * Information about common MSD hazards; * The signs and symptoms of MSDs; * The importance of reporting MSD problems early; * How to report MSD signs and symptoms to the employer; and * A summary of the requirements of the OSHA standard.54 In addition, management must identify at least one person to receive and respond to MSD reports and to take action in response to such reports. Management may, if it chooses, select more than one person to fill these roles. Finally, management must promptly respond to reports of MSDs.55 How prompt is "promptly" is not clear, although the preamble emphasizes that "a timely and good faith response is essential."56 Element Three: Job Hazard Analysis and Control The third element of an ergonomics standard is job hazard analysis and control. In many ways, this is the heart of an ergonomics program. Management is required to conduct a job hazard analysis of "problem jobs."57 A problem job is one in which a covered MSD is reported. As part of this analysis, the employer must identify "ergonomic risk factors" in the job. The proposal identifies the following ergonomic risk factors: * Force (i.e., forceful exertions, including dynamic motions) * Repetition * Awkward postures * Static postures [30 ELR 10492] * Vibration * Cold temperatures58 OSHA points out that the presence of multiple risk factors increases the likelihood that MSDs will develop.59 Employers must decide which specific jobs should be analyzed. Again, the question of the proper definition of "job" comes into play. Certainly the specific employee's job for which an MSD has been reported must be analyzed. In addition, the analysis must, at a minimum, include that same job and all employees performing it, even though the other employees have not experienced any MSD signs or symptoms. In the worst case, as was discussed above, OSHA may argue that the analysis will have to include every job that shares the same, or even a few, risk factors with the specific problem job. But such an approach is circular, at least to some extent. In order to determine which jobs share which ergonomic risk factors, the employer will likely be obligated to conduct at some level a job analysis for every job in the facility. Otherwise, it will be impossible to know which other jobs share risk factors. Another issue pertaining to job hazard analysis is expressly addressed in the proposal. OSHA intends to require employers to include a range of employees in the job hazard analysis. The range is supposed to be "representative" of the actual employees holding the problem job.60 (Of course, management is free to include every employee in the problem job classification, if it wishes). If management chooses to include a range of employees, the range must be fairly representative. OSHA cites as examples management including the tallest employee, the shortest employee, the employee with the smallest hands, etc. The preamble even suggests that employees with bifocals be included in the analysis because bifocals may cause an employee to hold his or her head in awkward positions.61 As was mentioned earlier, the proposal would require employee involvement in every aspect of an ergonomics program.62 Specifically, with respect to the third element of a program, the standard requires employee input. Management is supposed to ask employees which tasks of their particular jobs cause problems.63 Such a mandate would, obviously, place a great deal of control in the hands of employees. While the proposal does not specifically state that management must accept the comments of employees as true or accurate, as a practical matter management will disregard those inputs at its own risk. Management must also observe the problem job (however defined).64 In other words, management must actually be on the floor observing the job as part of the job hazard analysis. OSHA suggests that videotaping will suffice.65 Once the job hazard analysis has taken place, management must evaluate the ergonomic risk factors identified. Management should try to conclude whether the specific risk factors identified pose an actual problem and whether they contributed to the reported MSD.66 Although OSHA does not take a position on this issue, for more complex jobs, many employers will be unable to perform the task without retaining outside consultants. The other key portion of this element requires employers to implement necessary controls relating to the ergonomic hazards identified.67 Again, employers are cautioned to seek employee recommendations with respect to appropriate controls. Employers must also identify and assess what can be done to control the hazards. Finally, management must track its progress. In other words, are the implemented controls working? To accomplish this, management must (again) consult with employees.68 Because the proposal would implement a performance standard, OSHA does not specify which specific controls must be followed. It recognizes three primary types of controls: engineering, work practice and administrative. In addition, personal protective equipment is recognized as a limited control.69 An engineering control is a change in the physical workings of the job.70 For example, raising the level of a desk or an assembly line would be an engineering control. Work practice controls are employee centered71—something the employee does to eliminate an ergonomic hazard. Correcting posture and properly handling tools are examples of work practice controls. Administrative controls, in contrast, are employer-centered.72 Job rotation or slowing production speed are examples. OSHA states a preference for engineering controls (when feasible) over work practice or administrative controls,73 and likewise does not encourage the use of personal protective equipment. Indeed, an employer would, under the proposed standard, not be permitted to rely exclusively upon personal protective equipment as a control for an ergonomic hazard. Personal protective equipment may be used only in combination with other controls.74 Also, OSHA does not believe that back belts and braces and wrist splints and braces have been demonstrated to be effective controls. In fact, it contends that these appliances may pose dangers to employees. For these reasons, OSHA states that these specific types of personal protective equipment do not qualify as any type of control for purposes of the standard.75 A question arises with respect to appropriate controls of ergonomic hazards. How does an employer measure success? OSHA suggests three separate measurements. First, if the employer eliminates the MSD hazard from the problem job, the employer has controlled that hazard. Second, if the employer reduces the hazard as much as is feasible and continues to check for new controls, it has complied with the standard. Third, the employer may materially reduce the [30 ELR 10493] hazards so that the reasonably anticipated risk of future MSDs is minimized.76 While these measurements may appear to be clear at first reading, they are not. As a practical matter, the only way to determine whether the employer has succeeded in controlling MSD hazards is to determine that there are no more MSD-related injuries or complaints. OSHA does, however, recognize that some MSD hazards are not capable of being controlled. This feasibility issue is identified in the second measure of success. Yet it is the nature of any claim based on feasibility that new technology may develop a new measure of control. For this reason, an employer that claims to have eliminated an MSD hazard to the extent feasible must regularly ascertain whether new controls have become feasible.77 It will be important for these employers to document their efforts in this regard. The third measure of success is referred to by OSHA as an incremental approach to ergonomic control. An employer is permitted to materially reduce hazards, but not eliminate them. The employer must then check to determine whether MSD problems continue or arise again. If this approach does not work, the employer must institute additional controls and again check for progress. At each step in the process, the employer must institute those controls that are "reasonably anticipated to significantly reduce" the risk of future MSDs.78 The preamble suggests that an employer may need to hire an outside consultant in order to demonstrate that the incremental steps taken were "reasonable." Indeed, an employer without a qualified ergonomist on staff or serving as a retained consultant may well be inviting an OSHA enforcement action by taking advantage of the proposed standard's incremental approach to ergonomics control. There is also a proactive aspect to this element of the proposal. If the employer undertakes changes in the equipment used in problem jobs, it must evaluate the ergonomic impact of those changes prior to their implementation.79 Thus, an employer's ergonomics program will have to be an ever-evolving process. The fourth element of an ergonomics program is training. An employer must train both employees in problem jobs and their supervisors. Employees occupying a problem job classification must be trained when (1) a problem is identified, (2) an employee begins work in the problem job, (3) new hazards are identified, and (4) every three years.80 The training must consist of the following: * How to recognize MSD signs and symptoms; * How to report MSD signs and symptoms, and the importance of early reporting; * MSD hazards in the job and the measures the employer must follow to protect the employee from exposure to the hazards; * Job specific controls implemented in the employee's job; * The ergonomics program and the employee's role in it; and * The requirements of the OSHA standard.81 Management must also train the supervisors of those employees in problem jobs on the same subjects.82 In addition to training employees and supervisors, management must also provide training for the person managing the ergonomics program. This training must take place at the time of assignment, when problems in the program are detected, when significant changes occur, and at least every three years.83 Program management training must include the same subjects on which employees are trained. The training must also include the following: * How to set up and manage an ergonomics program; * How to identify and analyze MSD hazards and measures to eliminate or materially reduce the hazards; and * How to evaluate the effectiveness of ergonomics programs and controls.84 All of the training must take into account language skills, education levels and literacy levels of those being trained. The goal is to assure that the training is understood by the employee, supervisor, or manager.85 OSHA does recognize that some employers hire experienced employees. Accordingly, if the employer can demonstrate that the employee has had prior training that covers all the required training elements, no additional training is necessary.86 As a practical matter, however, it may be difficult for an employer to document the specific elements of prior training. As a result, the better practice may be to automatically retrain all new hires. The fifth element of an ergonomics program is MSD management. This element requires employers to develop methods to address MSDs. Basically, five things are required of employers: * Employers must respond promptly to employees with covered MSDs to prevent the conditions from getting worse; * The employer must promptly determine whether temporary work restrictions or other measures are necessary; * When necessary, the employer must provide employees with prompt access to a health care professional (HCP) for evaluation, management and follow up; * The employer must provide the HCP with the information necessary for conducting the required MSD management; and * The employer must obtain a written opinion [30 ELR 10494] from the HCP and ensure that the employee is promptly provided with it.87 Little guidance is provided by OSHA as to the meaning of the first requirement. OSHA states that management must respond "promptly" to employees with covered MSDs, but neglects to define the term. It appears, based on a reading of the entire proposed standard and its associated preamble, that by "promptly" OSHA means as soon as is possible (a term that itself is hardly objectively defined).88 Similarly, with respect to the second requirement under MSD management—to promptly determine whether temporary work restrictions or other measures are necessary—it is likely that OSHA will take the position that an employer must immediately place an injured employee under temporary work restrictions or take other affirmative measures to protect the employee from the risk of the MSD becoming worse. The issue of HCPs is particularly troubling because a number of complex subsidiary issues arise. For example, and as a threshold matter, HCPs need not be licensed physicians. OSHA has taken a flexible approach to this issue. Health care professionals include any licensed professionals legally permitted to provide the required MSD management.89 In many states this would include nurses, physical therapists, and other professionals. Unfortunately, however, although the proposed standard provides flexibility on this point, it also fails to provide definite guidance to national employers. The definition of the term may vary considerably from state to state. The proposed standard requires that the employer provide the HCP with certain information, including a description of the injured employee's job and the MSD hazards involved in it.90 This is an interesting requirement because, under the proposed standard, no job analysis will be required until after a covered MSD is reported. However, access to an HCP must be provided "promptly." How can an employer provide an HCP with information about MSD hazards in a job before a job hazard analysis has been performed? OSHA does not address this apparent contradiction. The employer must also provide the HCP with a description of all available work restrictions that are reasonably likely to fit the employee's capabilities during the recovery period.91 In other words, the employer should inform the HCP of light-duty policies and light-duty positions available. Because the proposed standard places tremendous power within the discretion of an HCP, this is an important provision for the protection of employers. Employers should carefully document and clearly communicate to HCPs which restricted duty positions are available. If the HCP recommends something inconsistent with available options, the employer will be in a better position to defend its decision to seek another opinion or to disregard the recommendation of the HCP. The employer must also provide the HCP with a copy of the MSD management section of the OSHA standard and a summary of the requirements of the standard.92 Finally, the employer must afford the HCP opportunities to conduct workplace walkthroughs.93 In other words, the HCP must be afforded the opportunity to inspect the worksite. Obviously, these requirements emphasize the importance of a continuing relationship with an HCP. For large employers, this is probably already accomplished in most instances. Many smaller ones, however, do not have an established relationship with an HCP. The proposed OSHA standard may change this by requiring, as a practical matter, that such a relationship exist. The medical management provision of the proposed standard also requires that the employer obtain a written opinion from the HCP. The HCP's opinion must contain a determination regarding the extent to which the employee's medical condition is related to the MSD hazards in the employee's job.94 Thus, the HCP is provided with a list of risk factors present in the job and is, in effect, asked to opine whether the diagnosed MSD is related to those hazards. This requirement is very important because it ties directly with the issue of work relatedness. Of course, if the MSD is not work related, it is not covered by the standard. The employer must instruct the HCP that any findings, diagnoses, or information not related to workplace exposure to MSD hazards must remain confidential and not be put in a written opinion or communicated to the employer.95 There is a tension between this requirement and the practical need for the HCP to determine work relatedness. How can the HCP explain his or her opinion that the subject MSD is not related to an ergonomic risk factor present in the job without explaining the nexus between the MSD and nonwork risk factors? Further, employers will be deprived of this important information in analyzing the reasonableness of the HCP's opinion. This is a significant deficiency in the proposed standard. To the extent permitted and required by law, the employer must ensure employee privacy and confidentiality regarding medical conditions related to workplace exposure to MSD hazards that are identified during the MSD management process.96 The written opinion from the HCP must also include recommended temporary work restrictions and follow-up.97 The suggested restrictions should be tied to the available light-duty positions communicated by the employer to the HCP. If they do not, the employer will be in a better position to disregard the recommendations of the HCP. It is important to note, however, that the proposed ergonomics standard provides that the employer must comply with all recommendations by the HCP and contains no express exception to this rule.98 The written opinion must also include a statement that the HCP has informed the employee about the results of the evaluation and any medical conditions resulting from exposure to MSD hazards that require further evaluation or treatment. The opinion must simply contain a statement that this has been done; details of the evaluation, especially insofar as they relate to nonwork-related conditions, are not to be included.99 Similarly, the opinion must state that the HCP informed the employee about other physical activities that could aggravate the covered MSD during the recovery period. Again, the opinion must simply state that this information was communicated to the employee.100 This mandate creates yet another conflict within the proposed standard. While the proposal states that employers are only responsible for work-related MSDs, OSHA recognizes, at least by implication, that nonwork-related physical activities could aggravate covered MSDs. Further, the provision requiring that employers maintain wages and benefits during a recovery period is contingent on employee cooperation with MSD management.101 However, how can an employer determine whether an employee has cooperated with MSD management when the employer is not informed about other physical work activities (outside of work) that could aggravate the covered MSD? Two key problems, in addition to those touched upon above, arise out of the HCP requirements of the medical management provision. The first is that OSHA would require employers to comply with work restrictions imposed by the HCP.102 The proposal makes no provision for obtaining second opinions or resolving disputes. Employers should carefully select an HCP to minimize such disputes. In addition, if the HCP issues a recommendation with which the employer simply cannot comply (or believes is nonsensical), a second opinion should be obtained from another HCP. While the standard does not recognize the right of an employer to get a second opinion, much less to rely on it, the employer will be in a far stronger position to defend itself if it relies upon a second opinion rather than simply disregards an HCP's recommendation. Another major problem with the HCP provision is that the proposed standard provides that access to an HCP must be provided when "necessary."103 No other guidance can be found as to when access is "necessary." The preamble to the proposal, however, states that "employers who do not provide work restrictions and/or other measures at the time the MSD is reported will need to send the injured employees to the [HCP]."104 Thus, OSHA suggests that access to an HCP is necessary if immediate work restrictions or other affirmative measures are not provided. However, the preamble offers very little guidance on the subject. Another portion of the medical management provision deals with work restriction protection (WRP). WRP is defined in the proposed standard as follows: Work restriction protection (WRP) means the maintenance of the earnings and other employment rights and benefits of employees who are on temporary work restrictions as though they had not been placed on temporary work restriction. For employees who are on restricted work activity. WRP includes maintaining 100% of the after-tax earnings employees with covered MSDs were receiving at the time they were placed on restricted work activity. For employees who have been removed from the workplace, WRP includes maintaining 90% of the after-tax earnings. Benefits mean 100% of the non-wage-and-salary value employees were receiving at the time they were placed on restricted work activity or were removed from the workplace. Benefits include seniority, insurance programs, retirement benefits and savings plans.105 The WRP must be maintained until the earlier of the employee's return to work (or a determination that the employee is able to return to work), controls are implemented so that the problem job poses no risk during the recovery period, or six months have passed.106 This provision will, if promulgated, undoubtedly be subject to legal challenge. Although many arguments might be raised, a few are especially significant. First, state law already provides employee protection for lost income due to work-related injuries.107 Workers' compensation statutes throughout the country address the precise issue OSHA attempts to address in its proposed ergonomics standard. Although OSHA argues that the WRP provisions are not inconsistent with state law because the employer is permitted to credit workers' compensation payments to-ward WRP requirements, it is clear WRP provisions are, in fact, inconsistent in that they often exceed state workers' compensation requirements.108 Second, it is difficult to conceive how the WRP provisions are even related to safety and health. OSHA argues that the WRP provisions are necessary to assure the safety and health of employees in order to minimize the risk that employees fail to report WRPs in a timely manner. Apparently, the argument goes, employees will be reluctant to report MSDs for fear of losing income.109 However, this argument ignores the existing workers' compensation provisions that already protectemployees. Given the fact that this protection is already in place, how are the WRP provisions related to health and safety? Element Six: Program Evaluation The sixth and final element of an ergonomics program is program evaluation. The employer is required to evaluate its program periodically (such as when significant changes occur and in any event every three years).110 To evaluate the program the employer must consult with employees in problem jobs to assess the employees' views on the effectiveness of the program and to identify any significant deficiencies in the program.111 Again, this provision of the proposed standard places tremendous power within the hands of employees. The employer must also evaluate the elements of its program to ensure that they are functioning properly.112 As a practical matter, the best way to assure that [30 ELR 10496] the program is operating effectively is to determine whether MSDs are still occurring. Indeed, the standard requires employers to ensure their programs are eliminating or materially reducing MSD hazards.113 Finally, the employer must "promptly" correct any deficiencies that are identified during the process of program evaluation.114 Continuation of Employer's Program Employers with manufacturing or material handling jobs are required to maintain the first two elements of an ergonomics program for as long as those jobs are occupied.115 In addition, all employers must maintain any MSD controls which have been implemented and maintain any training associated with those controls.116 If MSD hazards are eliminated or materially reduced and no covered MSD is reported for three years, all other aspects of the ergonomics program may be discontinued.117 For nonmanufacturing and nonmaterial handling jobs, if no covered MSDs are reported for three years, the employer must maintain only the implemented controls and associated training.118 The standard requires employers to maintain certain records for certain time periods.119 For example, employee reports of MSDs and employer responses to those reports must be maintained for at least three years.120 In addition, job hazard analyses, hazard control records, Quick Fix control records and ergonomic program evaluations must be maintained for three years or until replaced by updated records, whichever occurs first.121 Finally, MSD management records must be maintained during the duration of the injured employee's employment plus three years.122 In addition to these required recordkeeping requirements, employers should keep other records that will support the employer in the event it is challenged by OSHA. An example of such records would be proof of required training and the contents of that training. OSHA does not expect employers to comply with all aspects of the proposed standard immediately. OSHA has provided the following deadlines for compliance. The first set of deadlines123 are triggered by the (not yet known) effective date of the standard:
In an attempt to provide flexibility and to lessen the burden on employers, the proposed standard offers an "out" from some of its requirements. OSHA calls the less-stringent program the "Quick Fix." By implementing a Quick Fix to eliminate an MSD hazard, an employer avoids the need to implement a full ergonomics program.125 (Of course, employers with manufacturing or material handling jobs must still implement the first two elements of an ergonomics program). The elements of a Quick Fix are as follows: * The employer must promptly make available the MSD management element of a full ergonomics program. * The employer must consultwith employees in the problem job about the physical work activities or conditions of the job which the employee associates with reported difficulties. The employer must also observe the employee performing the job to identify whether any risk factors are present and ask for recommendations about eliminating MSD hazards. * The employer must institute Quick Fix controls within 90 days after the covered MSD is identified. Within the next 30 days the employer must check [30 ELR 10497] the job to determine whether the controls have eliminated the hazard. * The employer must maintain a written record of the Quick Fix controls. * The employer must provide the hazard information required by the standard to employees in the problem job within the 90-day Quick Fix period.126 The proposal states that if the employer can demonstrate that the MSD hazard addressed by the Quick Fix merely poses a risk to the employee with the covered MSD, it may limit the Quick Fix to that individual employee's job.127 This is an exception to the possible broader readings of the definition of "job." An example of when this exception would be applied is when the injured employee is physically unusual, such as unusually tall or short.128 It is likely, however, that OSHA will be reluctant to accept an employer determination that identified ergonomic risk hazards pose a risk only to one employee. An employer wishing to rely upon such a finding would do well to have a medical professional or an ergonomist support that conclusion in writing. As is probably apparent, a Quick Fix involves quite a bit of effort on an employer's part. The required medical management is one of the six elements of a full ergonomics program. The remaining requirements of a Quick Fix closely mimic many aspects of a full ergonomics program. For example, a Quick Fix requires a job hazard analysis and control, which is element three of a full ergonomics program. It also requires employers to provide employees with certain required information, an obligation that dovetails with portions of elements one and three of an ergonomics standard. Nevertheless, a Quick Fix solution does lessen an employer's administrative burden somewhat. Although the standard is not clear on this point, it appears that other than maintaining any Quick Fix controls and any associated training, the employer will not need to maintain other ergonomic program elements once the problem is fixed. In order for an employer to take advantage of the Quick Fix option, the Quick Fix must eliminate the MSD hazard. This means it must eliminate employee exposure to identified risk factors or so reduce exposure that a covered MSD is no longer likely to occur.129 An employer's determination that a Quick Fix has eliminated an MSD hazard or sufficiently reduced exposure to it will be quickly second-guessed by OSHA. In practice, it is likely that the only way a Quick Fix will be acceptable to OSHA is if there are no further reports of MSDs. A Quick Fix may not work in every instance. If the Quick Fix does not eliminate the MSD hazard within 120 days or if another covered MSD is reported in the "job" within three years, the employer must establish a full ergonomics program.130 Again, the problem associated with the broad definition of "job" shows up here. If "job" covers many other tasks found in the facility, few Quick Fixes may ultimately prove successful. However, if a second covered MSD occurs but results from different physical work activities and conditions, the employer may use the Quick Fix process a second time.131 OSHA states that an employer may not use a Quick Fix a third or more times.132 However, it is not at all clear why the Quick Fix should not be available to employers if subsequent MSDs (after the second MSD) result from completely different physical work activities and conditions. It will take actual workplace experience with the Quick Fix procedure to fully assess its utility. Certainly, the option will lessen the compliance burden for some employers, particularly small ones without manufacturing or material handling jobs. As for others, it is questionable whether Quick Fix will save significant time or money. First, although less burdensome, the Quick Fix requirements are close to those of a full program. Second, one other MSD report within three years involving the same job or a job characterized by the same physical work activities and conditions triggers full program requirements. In larger operations, at least, this may be a difficult test to pass. Third, employers with manufacturing or material handling jobs must still maintain the first two elements of an ergonomics program. The proposed ergonomics standard is extremely broad and would impose numerous new and expensive burdens upon employers. It will, if promulgated in anything like its present form, undoubtedly be subject to numerous attacks. This Dialogue has summarized the major elements of that standard so that employers and their counsel will understand the proposal and the obligations that would be applicable. It has also identified several ambiguities in the proposal standard so that employers and their counsel may be prepared to address these issues in advance, prior to an enforcement action by OSHA. 1. Ergonomics Program, 64 Fed. Reg. 65768 (to be codified at 29 C.F.R. § 1910.900 et seq.) (proposed Nov. 23, 1999). The proposal and preamble span 310 pages in the Federal Register. The extended comment period ended March 2, 2000. See http://www.osha.gov/media/oshnews/jan00/national-20000127.html. 2. 29 C.F.R. § 1910.945 (to be codified); 64 Fed. Reg. at 66075. This Dialogue will cite to the proposed codification of the standard, which is printed in its entirety at 64 Fed. Reg. 66067 et seq. 3. See, e.g., 64 Fed. Reg. at 65769, 65945. 4. 29 C.F.R. §§ 1910.900-.945 (to be codified). 5. 64 Fed. Reg. at 65768-66078. 6. See, e.g., 29 C.F.R. § 1910.146 (permit required confined spaces); § 1910.147 (lockout/tagout); § 1910.1200 (hazard communications). 7. See, e.g., 64 Fed. Reg. at 65804 ("The proposed rule does not require that employers use a particular method for identifying and analyzing MSD hazards. Employers are free to select the method or process that best fits the conditions of their workplace. . . ."). 8. 29 C.F.R. § 1910.905 (to be codified). 9. Id. § 1910.1030. 10. Id. § 1910.1200. 11. Id. § 1910.146. 12. Id. § 1910.147. 13. Id. § 1910.903. 14. The proposed standard applies to all "manufacturing jobs," "material handling jobs," and jobs in which a covered musculoskeletal disorder (MSD) is reported. Id. § 1910.901. 15. Id. § 1910.945. 16. Id. 17. Id. Indeed, in the proposed standard's preamble, OSHA seems to equate physical work activities and conditions with MSD hazards, by referring to other employees "exposed to the same physical work activities and conditions and thus the same MSD hazards." 64 Fed. Reg. at 65803. 18. 29 C.F.R. § 1910.901(a) (to be codified). 19. Id. § 1910.945. 20. Id. 21. Id. 22. Id. 23. Id. § 1910.901(b). 24. Id. § 1910.945. 25. Id. 26. Id. 27. This is close to the example listed by OSHA excluding jobs involving minor manual handling, i.e. "(e.g., carrying briefcase to meeting, carrying baggage on work travel)." 28. Id. § 1910.901(c). 29. Id. 30. Id. § 1910.945. 31. See id. § 1910.901(c). 32. Id. §§ 1910.901(c), .945. 33. 29 C.F.R. pt. 1904 (requiring recording of occupational injury and illnesses). See also U.S. DEP'T OF LABOR, RECORDKEEPING GUIDELINES FOR OCCUPATIONAL INJURIES AND ILLNESSES 32 (Sept. 1986) (regarding "establishing work relationship"). 34. 64 Fed. Reg. at 65783. 35. See supra note 15 and accompanying text. 36. 29 C.F.R. § 1910.905(a)-(f) (to be codified). 37. Id. § 1910.906. 38. Id. 39. Id. §§ 1910.906, .907 (to be codified). 40. Id. § 1910.906(b)(2). 41. Id. § 1910.945. 42. 64 Fed. Reg. at 65783. 43. 29 C.F.R. § 1910.906(b)(2) (to be codified). 44. 64 Fed. Reg. at 65790. 45. Many employers will not have the necessary expertise to perform a job hazard analysis or select appropriate ergonomic controls. Furthermore, OSHA's provision (29 C.F.R. § 1910.921, to be codified) permitting employers to discharge their duties by "materially reducing" MSD hazards is defined to include an element of reasonableness. To materially reduce MSD hazards means to do so in a way that is "reasonably anticipated" to significantly reduce exposures. Id. § 1910.945. OSHA explains that utilization of a "qualified ergonomist" will satisfy the requirement. As the only "safe harbor" offered by OSHA, this provision will, as a practical matter, force employers to hire outside consultants. 46. 29 C.F.R. §§ 1910.911-.913 (proposed). 47. See, e.g., Precast Services, Inc., 17 O.S.H. Cas. (BNA) 144 (Rev. Comm. 1995); OSHA Region 2 News Release No. NY224 (press release) (available at http://www.osha.gov). 48. 29 C.F.R. § 1910.912 (to be codified). 49. Id. § 1910.912(c). 50. 64 Fed. Reg. at 65798. 51. 29 C.F.R. § 1910.912(d) (to be codified). 52. Id. § 1910.913. 53. See id. § 1910.913(d). 54. Id. § 1910.915. 55. Id. § 1910.916. 56. 64 Fed. Reg. at 65799. 57. 29 C.F.R. §§ 1910.917-.922 (to be codified). 58. Id. § 1910.945. 59. Id. 60. Id. § 1910.918(a). 61. 64 Fed. Reg. at 65805. 62. 29 C.F.R. § 1910.913(d) (to be codified). 63. Id. § 1910.918(b). 64. Id. § 1910.918(c). 65. 64 Fed. Reg. at 65807. 66. 29 C.F.R. § 1910.918(d) (to be codified). 67. Id. § 1910.919. 68. Id. 69. Id. § 1910.920. 70. Id. § 1910.945. 71. Id. 72. Id. 73. Id. § 1910.920(a). 74. Id. § 1910.920(b). 75. See id. § 1910.920 (and accompanying explanatory note); 64 Fed. Reg. at 65829-30. 76. Id. § 1910.921. 77. Id. § 1910.921(b). 78. Id. § 1910.921. 79. Id. § 1910.919(d). 80. Id. § 1910.927. 81. Id. § 1910.925. 82. Id. § 1910.924. 83. Id. § 1910.927. 84. Id. § 1910.925. 85. Id. § 1910.926; 64 Fed. Reg. at 65835. 86. Id. § 1910.928. 87. Id. § 1910.930. 88. 64 Fed. Reg. at 65840-41. 89. 29 C.F.R. § 1910.945 (to be codified). 90. Id. § 1910.931. 91. Id. 92. Id. 93. Id. 94. Id. § 1910.932. 95. Id. 96. Id. 97. Id. 98. Id. § 1910.933(a). 99. Id. § 1910.932. 100. Id. 101. Id. § 1910.933(c). 102. Id. § 1910.933(a). 103. Id. § 1910.933(a) (proposed). 104. 64 Fed. Reg. at 65842 (emphasis added). 105. 29 C.F.R. § 1910.945 (to be codified) (emphasis added). 106. Id. § 1910.934 (proposed). 107. Indeed, OSHA recognizes the applicability of workers' compensation statutes at id. § 1910.935. 108. See ARTHUR LARSON & LEX K. LARSON, LARSON'S WORKERS' COMPENSATION LAW, vol. 10, app. B (tables) (1999). 109. 64 Fed. Reg. at 65846-47. 110. 29 C.F.R. § 1910.936 (to be codified). 111. Id. § 1910.937(a). 112. Id. § 1910.937(b). 113. Id. § 1910.937(c). 114. Id. § 1910.938. 115. Id. § 1910.944. 116. Id. 117. Id. 118. Id. 119. Id. § 1910.940. 120. Id. 121. Id. 122. Id. 123. Id. § 1910.942. 124. Id. 125. Id. § 1910.909. 126. Id. 127. Id. 128. 64 Fed. Reg. at 65792. 129. 29 C.F.R. §§ 1910.909, .945. 130. Id. § 1919.910. 131. Id. 132. Id.; 64 Fed. Reg. at 65793. 30 ELR 10486 | Environmental Law Reporter | copyright © 2000 | All rights reserved |