On Tuesday March 9th, I took a road trip to Washington and attended the OSHA Public Meeting to review the Proposed Rules changes put forth in the Federal Register Vol. 75, No. 19.
Brief Summary of Information in the Register:
In the opening paragraph of the document, the rule change is summarized as follows: "OSHA is proposing to...restore a column to the OSHA 300 log...to record work-related musculoskeletal disorders (MSD) ie an MSD column." On page 8 of the Register, OSHA goes on to state their intention to "remove language from the Record Keeping Compliance Directive that says..."minor musculoskeletal discomfort" is not recordable under § 1904.7(b)(4) as a restricted work case if a health care professional determines that the employee is fully able to perform all of his or her routine job functions, and the employer assigns a work restriction for the purpose of preventing a more serious injury.’ (restriction language)
: For the most part, the meeting was attended by Union Leaders (AFL-CIO, Unite Here, ORC Worldwide, UFCW, Communications Workers, etc) and Attorneys. To present at the meeting, attendees were required to submit in advance, a brief on their presentation for review and acceptance. All speakers were affiliated with a Union or sub-section of workers (Construction Trades Department, Nat. Federation of Independent Businesses) with exception of the last speaker, L. Halprin, Attorney.
My goal in attending:
I wanted to hear first hand why OSHA felt it appropriate and imperative to remove the interpretive language that allowed for restrictions to be placed by the employer in an effort to avoid aggravation of minor discomfort.
What I heard:
All speakers affiliated with a Union or Trade group pledged full support to the addition of the MSD column. In general they felt this was necessary to hold employers to higher standards for injury prevention. I heard more than once the phrase "if you don’t count the injuries they will not be prevented". Further most echoed that MSD’s are the result of bad ergonomics....thus should be the leading indicators of a process that needs to change. Overall, the Unions had NO feedback and offered no resistance to the elimination of the "restrictions language."
However, ORC Worldwide, while supporting the MSD column, did not support the elimination of the "restrictions language". They pushed very strong on the importance of giving employers a method for handling minor discomfort and protecting workers from aggravation of symptoms. OSHA’s reply to this was that if the complaint is minor, it is not a recordable case, thus the employer can do "whatever" they like with changing work tasks.
The last scheduled speaker, L. Halprin, through representation of the Nat. Assoc. of Manufacturers, was the lead attorney on the case brought in front of OSHA in 2001 that lead to the inclusion of the interpretive language ALLOWING restrictions for minor musculoskeletal discomfort. He strongly argued that not only should OSHA not eliminate this language, they CAN NOT eliminate the language by simply rolling it into another rule change. This comment drew a lengthy debate as to what was proper and necessary steps for rule changing. He went on to state that while the language is a simple interpretation not a Rule, because cases have been managed by the interpretation for the past 9 years – it in effect IS a Rule
Mr. Halprin, having spoke with me earlier in the day about how we handled minor complaints of discomfort, then referred to me and our programs. He stated that there was a "lady in the audience" that had successful programs that would be significantly limited if this language disappeared.
Mr. Halprin, as well as the representative from the Independent Businesses made a strong pitch that adding the MSD column would add significant burden to record keepers, result in greater confusion on the logs and subsequent under reporting. In addition, they argued that this addition was not necessary in that the cases are already being reported under the "general" column.
OSHA’s Comments: Throughout the day, OSHA commented to several speakers that their goal was to get a better picture of just how serious the MSD injuries were in the workplace. In addition, they are pushing for all employers to have a system for electronic reporting and have plans to rollout an OSHA Electronic Reporting System – this received mixed response from the speakers.
In addition, OSHA indicated on numerous occasions that it was their opinion that employers through interviewing employees would not be able to differentiate between minor discomfort, discomfort and pain; alluding to the fact that regardless of degree of the complaint, they should be recorded. [ K. Harned of Indep. Business responded to this by stating with an aging workforce, discomfort is a common occurrence and it would be (ridiculous) to record these complaints]
OSHA then opened the floor to any other attendees that would like the opportunity to speak.
I introduced that our organization had been working with a wide array of companies in the design and implementation of injury intervention programs. I emphasized that the success of our programs hinged on 3 points:
1. Early reporting of Minor discomfort is essential: We discussed how we distinguish between severity of symptoms and they requested copies of some of the language that we use in working with employees.
2. Intervention through First Aid: I gave a brief overview of how we intervened using First Aid guidelines. I then made an appeal that they relook at including Exercise under First Aid. This thoroughly confused the OSHA panel as they did not remember excluding it. I presented them with the ‘self administered physical therapy language and they "promised" to review it.
3. Application of limitations (restrictions) to protect employees: I gave general examples (no mention of any employer names) on how this worked. They were intrigued and ask a number of questions.
I ended my time with a plea to reconsider the removal of this "restriction language" and to reconsider including Exercise under First Aid.
In talking with most of the meeting attendees, it is the consensus belief that the MSD column will be added, but the "restriction language" will not be removed.
Per their request, I will be writing a summary paper for OSHA on information presented during my address. OSHA further encourages any of our clients to also submit their comments on the proposed rule changes. These comments must be received by OSHA by March 31.
I am happy to talk with anyone having questions regarding the above information.
Sheila Denman, MA, MS, PT
Chief Operating Officer
Advanced Worksite Solutions