Finally, the long-delayed OSHA ergonomics rule takes aim at aching backs
Pay protection, 2nd opinion provisions controversial
Health care workers won the promise of long-awaited relief from the hospital industry’s most common debilitating injury as the U.S. Occupational Safety and Health administration (OSHA) issued a standard mandating ergonomics programs.
"This is a great day for health care workers!" exclaimed Bill Borwegen, MPH, occupational health and safety director of the Service Employees International Union in Washington, DC.
But not everyone was jubilant about the final version of the ergonomics standard. Business groups immediately filed suit, asserting that the new rule is legally and scientifically unsound. The American College of Occupational and Environmental Medi-cine (ACOEM) withdrew its support for the OSHA ergonomics standard, saying the final version failed to require a medical diagnosis or a causal assessment by a health care provider trained in the prevention and treatment of musculoskeletal disorders (MSDs).
The standard becomes effective Jan. 16, just days before President Clinton leaves office. Employers must begin implementing the ergonomics rule by educating employees and responding to injuries no later than Oct. 14. Employers will have four years to fully implement controls, such as purchasing mechanical lifts.
After more than 7,000 written comments and 700 witnesses at five public hearings, some occupational health experts expected OSHA to clarify the standard and remove the most controversial element, the work restriction protection, which requires employers to give workers 90% of earnings and 100% of benefits for up to 90 days when they are unable to work due to a work-related MSD.
While some specifics in the final version were welcomed, other changes triggered new concerns. "It appears to create more problems than it solves, mostly administrative problems and states’ rights issues," says Geoff Kelafant, MD, MSPH, FACOEM, medical director of the occupational health department of the Sarah Bush Lincoln Health Center in Mattoon, IL.
"They didn’t make it any simpler, that’s for sure," says Kelafant, who is also vice chairman of the Medical Center Occupational Health Section of the ACOEM in Arlington Heights, IL.
Both the American Association of Occupational Health Nurses and the Association of Occupational Health Professionals in Healthcare (AOHP) had asked OSHA to eliminate the special pay protection for this injury. ACOEM had vigorously argued for a medical basis to be a part of the final standard, noting that symptoms of other illnesses, such as thyroid disorder, could be mistakenly attributed to an MSD.
"This standard is certain to be held up by legal battles for the next several years," said a statement released by ACOEM president Robert L. Goldberg, MD, FACOEM, director of ErgoUC with the Ergonomics Program and assistant clinical professor at the University of California, San Francisco. "Unfortunately, OSHA’s failure to base the standard on a firm medical foundation lends credence to the arguments that will be made in court by those who will try to block this standard from going into effect.
"It is distressing that our nation’s workers will be left without preventive measures to protect them from unnecessary musculoskeletal injuries," he said.
The work restriction protection is necessary to ensure that workers would come forward in the early stages of an MSD, when the conditions are more easily treated, asserts Gary Orr, PE, CPE, an ergonomist with OSHA who was involved in drafting the standard. He notes that a similar provision has been included in other standards and that employers will be able to count sick leave toward this provision.
Overall, the cost of complying with the new standard is far less than the direct and indirect impact of musculoskeletal injuries, according to Borwegen. "This is a proactive approach that has workers come forward before they become permanently crippled. That is simply sound public health policy."
The bottom line, says OSHA, is that implementing an ergonomics program will save employers money. More than 18,000 hospital workers suffered an injury from overexertion due to lifting in 1998, according to the Bureau of Labor Statistics. Each injury prevented will save $27,700 in medical and other costs, OSHA says.
Ergonomics experts hope the OSHA regulation will produce a new mindset toward lifting and repetitive stress and ultimately a safer workplace. Hospital-based ergonomics programs have led to reductions in MSDs of 46% to 83%.1
"With the standard becoming finalized, it will encourage people to take this area of ergonomics much more seriously," says Guy Fragala, PhD, PE, CSP, director of environmental health and safety at the University of Massachusetts Medical Center in Worcester, and a leading ergonomics expert.
OSHA says it tried to make the standard easy to read and practical. The standard offers specifics about what action employers must take when an MSD is reported and in what time frame, while allowing some flexibility in the design of an ergonomics program. The agency even included a Basic Screening Tool to help employers identify risk factors that could lead to MSDs. (See sample copy.)
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Yet how the ergonomics standard will be enforced is not entirely clear. A compliance directive, which guides OSHA inspectors, will be issued in the next few months, Orr says. While nursing homes may be targeted for special inspections as a high-risk industry, hospitals are not in that category, he says. Inspections may come largely based on complaints.
The standard is "performance-based," notes Fragala. "I think OSHA is going to have to recognize when organizations are making good faith efforts to put programs in place and give them flexibility with their programs if they’re trying to meet the overall intent of the standard," he says.
Unlike other regulations that seek to eliminate hazards before an employee is injured, OSHA is requiring employers to set up an MSD management program after an employee has a work-related MSD. (Employers can use a screening tool to determine if the injury is job-related.)
Within seven days of an "action trigger," the employer must begin MSD management, including job hazard analysis within 60 calendar days and initial controls within 90 calendar days. Three years later, employers must evaluate the ergonomics program that stemmed from the "action trigger."
The proposed standard highlighted manufacturing and manual handling, including patient handling, as high-risk jobs. The final standard removes the distinction and applies equally to all jobs. That means educational materials must be provided to all employees, not just those in jobs which have a higher rate of MSDs, Orr says.
"People had told us during the hearings it was somewhat confusing [to focus on only certain workers]," he says. "How would employees know what to report unless they’re given some information about MSDs? The best thing to do was to have all employees covered."
Orr suggests that education about MSDs could be presented on flyers included with paychecks or as the topic of educational sessions.
Hospitals may find assistance from vendors of ergonomics equipment that are offering educational and programmatic support, says Fragala. In fact, at least one vendor has guaranteed that its ergonomic equipment will reduce injuries by at least 50%.
OSHA offers flexibility, grandfather clause
OSHA had encouraged employers to start an ergonomics program before the standard was completed. And in its final version, the agency rewarded hospitals and other employers who had followed that advice.
A "grandfather" clause delays the implementation of MSD management, including work restriction protection, for employers with an existing ergonomics program. However, the existing program must contain essential elements, such as employee involvement in the program development and implementation and periodic program evaluation. "An employer who has policies or procedures that discourage employees 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," the standard states.
At the University of Massachusetts Medical Center, the new rule infused energy into a multidisciplinary committee that had been reviewing the hospital’s ergonomics program. "[The committee members] felt their work was important, but now that the standard has been finalized it’s validated that," says Fragala.
OSHA also expanded its "quick fix" option, allowing employers in some cases to remove the hazard that led to the MSD without establishing a full-blown MSD management program. Employers can use the "quick fix" if there is not more than
one MSD incident in a job and not more than two MSDs in the facility within 18 months. (The proposed standard allowed a quick fix only if no more than one MSD occurred within 36
months.)
But that good news may be overshadowed by some additions to the standard. Employees are allowed to seek an opinion about temporary work restrictions or work removal from a health care professional of his or her choice. If that health care professional disagrees with the employer-selected health care professional, the employer may select a third health care professional to resolve the differences.
That new provision caught some people by surprise. "It’s going to be extremely difficult to manage these MSDs in any effective way with this kind of requirement," says MaryAnn Gruden, MSN, CRNP, NP-C, COHN-S/CM, AOHP executive president and employee health nurse practitioner at Sewickley (PA) Valley Hospital. While Gruden was pleased to see changes that responded to some issues raised by AOHP, she says she would have questioned the second-opinion clause if given the opportunity.
"When we issued the proposal, there was no conflict resolution [between different medical opinions]," responds Orr. "All the times we have used medical removal protection [also known as work restriction protection], we have also used multiple physician review. Ideally, the two doctors would talk to one another, they would come to some resolution, and you wouldn’t have to see another doctor."
Kelafant worries that this scenario could be unwieldy as physicians confer on MSD cases.
A bigger issue overshadows questions about how the ergonomics standard will be enforced. Will it stand up to strong political forces?
OSHA first began working on an ergonomics standard in 1990, during the Bush administration. In 1995, after a draft version was released, Cong-ress attached a rider to an appropriations bill that prohibited OSHA from issuing a final ergonomics standard before Sept. 30, 1998. A much different proposed standard was released in November 1999. In the fall of 2000, the ergonomics standard was responsible for a budget impasse as the House and Senate voted to again bar OSHA from issuing the standard and Clinton promised to veto the spending bill unless the provision was removed. The dispute was delayed until after the presidential election.
Congress has a chance to formally weigh in on the ergonomics rule. After the standard was printed in the Federal Register on Nov. 14, OSHA sent a copy to the speaker of the House and the president of the Senate, in compliance with federal law. Congress can review regulations, debate them, and even vote to rescind them, Orr says. President Clinton would likely veto any effort to scuttle the regulation. Congress has yet to take such action against a regulation, he says. "No regulation has ever gone through this process."
Even if the regulation stands, a Republican administration could block its enforcement. "Right now the emphasis is on the workers," says Bill Wright, OSHA spokesman. "If the politics come into it, we’ll have to take it as it comes. As it stands now, the rule will be issued with an effective date and we’ll see what happens."
Reference
1. Fragala G, Santamaria D. Heavy Duties? On-the-job back injuries are a bigger — and costlier — pain than you think. Health Facilities Management 1997:22-27.
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