In early 2001, a far-reaching ergonomics regulation issued by the Occupational Safety and Health Administration (OSHA) was squelched by the U.S. Congress. For the first time, Congress successfully put into practice the rarely-used Congressional Review Act, which gives Congress a 60-day window to reject final regulations issued by federal agencies. In the case of ergonomics, it was a well-deserved rejection as OSHA’s expensive and expansive regulation was promulgated during the 11th hour of the Clinton Administration and was based on dubious science regarding musculoskeletal disorders (MSDs), otherwise known as repetitive-stress injuries.

The erasure of OSHA’s ergonomics rule did not mean the issue would go away, however. OSHA continues to aggressively pursue ergonomics violations using the “General Duty Clause” of the Occupational Health and Safety Act.

According to information found on OSHA’s website, the General Duty Clause describes the employer’s obligation to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” This clause from the OSH Act is utilized to cite serious hazards where no specific OSHA standard exists to address the hazard, as is the case with ergonomic stressors. When OSHA uses the General Duty Clause to cite an employer, OSHA must demonstrate that: (1) the employer failed to keep the workplace free of a hazard to which employees were exposed; (2) the hazard was causing or likely to cause death or serious physical harm; (3) the hazard was recognized; and (4) a feasible means of abatement for that hazard exists.

“The general duty clause has been OSHA’s most effective tool to establishing ergonomics violations,” explained Gil Abramson, an attorney with SFA’s general counsel, Hogan & Hartson, L.L.P. Abramson made the observation during his SNAXPO 2004 presentation entitled “What’s New With OSHA.”

At present, OSHA is inspecting businesses in the poultry processing, retail grocery and nursing home industries. OSHA has indicated that another 16 industries are targeted including wholesale grocery, and two additional industries will be added to the list but have not been selected. “In 2003, OSHA conducted inspections at more than 1,400 of these targeted facilities and issued 12 citations,” noted Abramson. “They will continue to enforce ergonomics on the targeted industries using the general duty clause and there will be steep fines for violations.”

OSHA is using a four-pronged approach to reduce injuries from MSDs: voluntary industry-specific and task-specific guidelines, enforcement, outreach and assistance, and establishing a national advisory committee to identify gaps in research.

Under the outreach and assistance prong, OSHA is offering internet-based training at their website. To date, OSHA has tutorials for baggage handling, beverage delivery, computer workstations, electrical contractors, grocery warehousing, healthcare, poultry processing and sewing.

The agency is also conducting outreach to non-English speaking workers, especially Hispanic workers. “The same courtesy should apply to your businesses,” Abramson counseled. “It’s one thing to have a sound ergonomic policy, but quite another to effectively communicate it.”