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SACRAMENTO, Calif.-While some employers are poised for a court fight to block the nation's first ergonomics standards from taking effect July 3 in California, other companies are not getting worked up over the new rules.
The California Occupational Safety and Health Standards Board regulations cleared a final hurdle on June 3, when the state Office of Administrative Law granted its approval. But the new rules still face a Sept. 5 court hearing in which labor and employers plan to contest their implementation.
Some employers that have made worksite improvements to reduce ergonomic-related injuries believe they already are in compliance with the standards. But other employers that have ergonomic programs are unhappy about potentially having to bolster their existing programs to comply with vague, untested regulations, risk managers said. Still others don't see a need for regulations on ergonomics.
The regulations apply to all employers that have operations within the state. Employers nationwide also are watching the regulations because the federal Occupational Safety and Health Administration is monitoring what happens in California before proceeding with its own ergonomics efforts.
However, the federal agency is stalled on the issue. If OSHA takes anything from California, it probably will wait to see if anything evolves that is palatable to labor and industry, said Lance Ewing, loss control administrator for the School District of Philadelphia and chairman of the Risk & Insurance Management Society Inc.'s Health and Safety Committee.
California's new regulations apply to any job or operation where a repetitive motion injury has occurred in at least two employees performing identical activities. The injuries must be reported within 12 months of each other, and a licensed physician must have "objectively identified and diagnosed" them as musculoskeletal-related.
All federal agencies and companies with nine or fewer employees are exempted. Injuries occurring before July 3, 1997, are excluded.
The regulations require employers whose workers have such injuries to implement a worksite evaluation program and control their occurrence. Although the regulations do not recommend a specific fine for non-compliance, customary penalties of up to $7,000 per violation are apt to apply, while willful acts could bring 10 times the amount, according to Cal-OSHA sources.
Exposures that cause repetitive motion injuries "shall, in a timely manner, be corrected or, if not capable of being corrected, have the exposure minimized to the extent feasible," the regulations state. "The employer shall consider engineering controls, such as workstation redesign, adjustable fixtures or tool redesign, and administrative controls, such as job rotation, work pacing or work breaks."
California courts and even Cal-OSHA enforcement inspectors likely will have latitude in enforcing the regulations, Mr. Ewing said.
Many risk managers at Fortune 500 companies with whom Mr. Ewing has spoken believe their companies are taking steps to address ergonomics. The risk managers are doing so at their facilities nationwide, not just in California, he said.
"They recognize it's a problem and they don't want their employees out on work comp nor do they want to pay disability benefits," Mr. Ewing said. "They are taking a more proactive approach."
Yet even employers that already are purchasing ergonomically designed machines or implementing required rest breaks don't want regulations rammed down their throats, Mr. Ewing added. Employers with existing programs likely will have to modify them, which will raise their costs, he said.
But some employers have enough confidence in their existing efforts that opposition to the Cal-OSHA standards has been muted.
For example, the California Manufacturers Assn. has not opposed the regulations, mainly because of mixed opinions among its members. Some members oppose the new standards, but others think they will be able to comply, said Willie Washington, director of workers compensation for the Sacramento-based association.
"They are already complying with it in many instances," Mr. Washington said. "Some of them think they can pretty much handle it without it being that burdensome."
Diana Jeanne Rich, workers compensation manager for Freedom Communications Inc. in Irvine, Calif., is among those who are not taking umbrage at the regulations. Freedom Communications began tackling ergonomics problems several years ago to address employee productivity.
"Now that we are finally faced with the regulation, it's a regulation that makes sense," she said.
For one thing, there has been enough recognition that repetitive motion injuries are going to happen to anyone working on a computer, so the computer and office equipment now being produced is better designed than in the past, Ms. Rich said.
The medical community also has more experience with recognizing and treating the injuries, which is reducing injury costs and speeding up return to work, Ms. Rich said.
In many cases, manufacturers have moved more quickly than employers with office environments in their attempts to improve worksites, said Pam Simonian, assistant vp-risk control consulting for Sedgwick James of California in Orange.
But there are still plenty of employers that are avoiding the issue rather than dealing with it. Employers that have had ergonomic evaluations or have them in the future but do not take recommended action may be subject to stiffer Cal-OSHA sanctions, she warned.
Among employers that oppose the regulations, the American Trucking Assn. has taken the lead.
The association will file a complaint and briefs this week in Sacramento Superior Court, said Lynda Mounts, vp and deputy chief counsel for the trucking association's litigation center in Alexandria, Va.
The ATA will argue that the regulations violate a state administrative procedure act because the Cal-OSHA Standards Board that created them has not evaluated their cost impact.
"Our concern is the costs are substantial without any real evidence that anything that would be done would actually prevent a repetitive motion injury," Ms. Mounts said. "There is no sound science that actually indicates any causation between activities in the workplace and injury or that there is anything that can be done to remedy any of this."
The ATA also will argue that the regulations violate due process because they are vague, leaving employers uncertain about how to comply with them. The organization has not ruled out seeking an injunction.
"We could, but we haven't done that yet, and we don't know if we will," Ms. Mounts said.
The trucking industry is concerned that the regulations will force costly changes and encourage new claims related to things such as the shifting of gears, the sorting of freight and the loading of trucks, a spokesman for the California Trucking Assn. said.
The Sacramento-based California Labor Federation will also present arguments Sept. 5 before the same judge. The group will argue that the 1993 workers compensation reform law, which mandated the adoption of regulations, did not give OSHA the authority to exempt small employers or require two worksite injuries before being triggered.