Citation of Ergonomic Hazards Under the "General Duty Clause" - An Update

ABSTRACT

In 2005 a summary of "General Duty Clause" citations issued for ergonomic hazards was published (Purswell & Purswell, 2005). That summary showed that the primary area of ergonomics citation activity under the "General Duty Clause" (paragraph (5)(a)(1) of the OSHAct of 1970) by OSHA to that point had been concentrated in nursing homes, peaking in 2002 and 2003. The OSHA citation activity since that time has shifted and only one ergonomics-related citation has been issued to nursing homes in the last six years. OSHA citation of ergonomics hazards under the "General Duty Clause" has been most active in Puerto Rico (a "state plan" jurisidiction). The table below summarizes the citations issued. It includes one duplicate (305829970 and 305829988 ). The list below also contains a citation related to the operation of cranes (310754726) which appears to have been misclassified as an ergonomic hazard. Finally, the list contains a citation which was subsequently deleted (311186357). The patterns in the remaining citations are discussed.

1. INTRODUCTION

Musculoskeletal disorders (MSDs) continue to be a significant source of lost time injuries and a major driver of Workers' Compensation costs. In 2007, MSDs accounted for 29 percent of all workplace injuries requiring time away from work, down from 30 percent in 2006. In terms of actual number of musculoskeletal injury cases, there was a decline of 21,770 cases or 6 percent (Bureau of Labor Statistics, 2008). It therefore appears that the US is making progress in reducing the total number as well as the rates of ergonomic injuries, but musculoskeletal injuries still comprise a large proportion of losttime injuries.

2. CITATION OF ERGONOMIC HAZARDS UNDER THE "GENERAL DUTY" CLAUSE

In order to carry out its Congressional mandate to protect workers, the federal Occupational Safety and Health Administration has been citing companies with employees exposed to ergonomic hazards under the "General Duty" clause since the 1990's. The "General Duty" clause of the 1970 OSHAct reads as follows:

"Each employer shall 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;"

Most OSHA citations of employers are based on the violation of a specific OSHA regulation as contained in 29 CFR 1910 and 1926. However, the issue of a regulation to address ergonomics hazards has been the subject of much controversy and the standard which was promulgated by OSHA in 2000 was subsequently stayed from enforcement by Congress. In addition to nullifying the Ergonomics Program Standard, the Act prohibits Federal agencies from subsequently promulgating any new regulations which are substantially similar to the previous rule (Congressional Review Act, Public Law PL 104-121, 1996).

In reality, the name "ergonomics standard" was a misnomer. The standard which OSHA produced was primarily directed to the prevention of cumulative trauma with much controversy concerning the relationship between certain repetitive work tasks and the resulting injury to the worker. Other ergonomics hazards were not addressed by the standard. Thus, OSHA can only address such injuries with the "General Duty Clause", rather than with the specific standard which was stayed in enforcement by Congress.

In 1997, the Occupational Safety and Health Review Commission (OSHRC) specifically ruled that OSHA could cite employers under the General Duty clause for ergonomic hazards (OSHRC, 2011) and has upheld several contested citations of ergonomics hazards. In reviewing the citations issued by OSHA for ergonomics hazards, the OSHRC has applied the same criteria it applies to reviewing other citations issued for violations of the General Duty Clause.

However, as we noted shortly after the recission of the Ergonomics Program Rule (Purswell & Purswell, 2001), OSHA retained the ability to issue citations of ergonomics hazards under the General Duty clause and suggested that OSHA might consider simply continuing its previous policy on ergonomics hazards. OSHA did in fact renew its policy of citing ergonomic hazards under the General Duty clause. It also published a series of non-binding guidelines on good practices with respect to ergonomics for several industries. (OSHA, 2011)

In order to have a citation of a hazard under the General Duty clause upheld, OSHA must show the following four things (OSHRC, 2011a):

1. A condition or activity in the employer's workplace presents a hazard to employees,
2. The cited employer or the employer's industry recognizes the hazard,
3. The hazard is causing or likely to cause death or serious physical harm, and
4. Feasible means exist to eliminate or materially reduce the hazard.

3. RECENT CITATION ACTIVITY OF ERGONOMIC HAZARDS

Since the last summary of OSHA's citation of ergonomics hazards under the General Duty clause the pattern of citations has shifted. As Table 1 below shows, citation activity has been most intense in Puerto Rico and the type of work being performed is most commonly computer related work.

4. THE FUTURE OF ERGONOMICS CITATION ACTIVITY

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