May 24, 2007
On April 2, 2007, the Occupational Safety and Health Administration issued a new Ergonomic Hazard Alert Follow-Up Policy as a directive to regional and area offices. This is OSHA’s newest attempt in a 20-year effort to regulate ergonomic hazards in the American workplace.
Beginning in 2002, OSHA began issuing employers Ergonomic Hazard Alert Letters. Under its new policy, OSHA intends to contact employers that previously received an EHAL on or after April 1, 2002, “to determine whether hazards and deficiencies identified in the letter have been addressed.” The policy provides that OSHA will make initial contact with employers through telephone calls and/or faxes. During the initial contact, personnel will explain that OSHA is following up on the original inspection and seeking “to determine what specific measures were taken by the employer in response to the EHAL.” Following the initial contact, OSHA will fax to the employer a copy of the previously sent EHAL and a letter requesting:
- The employer’s response regarding abatement measures implemented;
- Copies of the employer’s post-inspection Log of Work-Related Injuries and Illnesses (i.e., the OSHA 300 Log); and
- The estimated number of full-time employees or work hours for the “exposed employees for the time period corresponding to the injury and illness reports.”
Additionally, the employer will be asked about any other ergonomic control measures that it has implemented, whether or not they were recommended by the EHAL.
The employer will be given 20 working days from the initial contact to provide its response. Thereafter, OSHA will evaluate the response and assign it to one of the following four response categories: “No response,” “Inadequate response,” “On-the-right-track response,” and “Successful response.” If there is no response or if OSHA determines that the response received is inadequate, there will be further contact with the employer. The policy states that if OSHA is not satisfied, “an inspection shall be scheduled to determine if the ergonomic hazards are being addressed.”
Employers should identify all facilities that have received an EHAL since April 2002 and prepare a strategy for responding to follow up contact by OSHA. They should be aware that responses under this follow-up policy may implicate important legal rights. For example, an employer’s written response should not admit that the EHAL identified an actual ergonomic hazard at the workplace because OSHA will likely use such a statement as an admission that specific action was required. Both written and oral communications with OSHA should be carefully considered.
Morgan Lewis’s OSHA attorneys have represented employers in several of the seminal OSH Act cases raising ergonomic issues. They have defended employers on ergonomic issues under the Americans with Disabilities Act, in products liability litigation and in workers’ compensation proceedings. They have trained employers and safety, health and medical professionals, as well as other attorneys, on the underlying issues associated with ergonomics, employee ergonomic claims prevention programs and how effectively to defend against ergonomic claims that may arise in any number of different legal forums.
We encourage employers to review these materials and to contact a member of our firm’s OSHA Practice with any questions:
Nina G. Stillman
Thomas Benjamin Huggett
Dennis J. Morikawa
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