OSHA doesn’t have an ergonomics standard. And yet, you can still be cited for not protecting workers from ergonomics hazards. The catch: OSHA must show that the ergonomic hazard it’s citing you for is a “recognized” hazard. If you understand what “recognized” means, you may be able to get the citation overturned; better yet, you’ll be in a better position to ensure you don’t get ergonomic citations in the first place.
The General Duty Clause & OSHA Enforcement
OSHA standards require employers to take measures to control specific hazards or operations such as electricity and confined space work. But the people who wrote the OSHA laws recognized that they couldn’t foresee and create a standard for every hazard in the workplace.
So they added a section to the law requiring employers to protect against other foreseeable hazards not covered by a specific OSHA standard. This backstop is called the “General Duty” clause, or Sec. 5(a)(1) of the Occupational Safety and Health Act. Specifically, the clause says employers must keep the workplace “free from recognized hazards that are causing or are likely to death or serious physical harm to employees” (emphasis added).
What Makes a Hazard ‘Recognized’?
Exactly what makes a hazard “recognized”—and thus subject to citation under the GDC?
Over the years, OSHA has issued interpretation letters indicating specific hazards that may be “recognized,” including most notably ergonomic risks. (Other “recognized” hazards include heat and cold stress, and workplace violence.)
But the best source of guidance on what OSHA deems “recognized” is the so called OSHA Field Operations Manual (FOM), i.e., the internal set of instructions that OSHA uses to tell OSHA inspectors how to conduct inspections, determine violations and set fines.
On March 26, 2009, a few weeks after President Obama took office, OSHA revised the FOM for the first time since 1994. One of the most important revisions is what it says about “recognized” hazards under the GDC.
What the FOM Says
As before, the FOM tells inspectors to follow a case-by-case approach to determine if a particular hazard is recognized. But it also clarifies the criteria for inspectors to use to make that evaluation.
Basic Rule: Recognized is an objective, not a subjective standard. In other words, the FOM tells inspectors that in deciding if a hazard is recognized, they should look not simply at what the particular employer actually recognized but what a reasonable employer in that situation should have recognized.
That sounds like legal mumbo-jumbo. But the practical significance is that a hazard might be recognized even if you don’t recognize it. Accordingly, the FOM instructs inspectors to look at 3 sources for evidence that a hazard is recognized:
Category 1: Employer Recognition
“Evidence of employer recognition,” according to the FOM, “may consist of written or oral statements made by the employer or other management or supervisory personnel during or before the OSHA inspection.”
The FOM also tells inspectors to check for references to the hazard in company memos, work rules, operations manuals, standard operating procedures and collective bargaining agreements. The bottom line: If you specifically identify and address a hazard, you recognize it and must eliminate it even if it’s not covered by a specific OSHA standard.
Other evidence of employer recognition listed in the FOM:
Category 2: Industry Recognition
An employer is also considered aware of any hazards recognized by its industry (but not hazards recognized by other industries to which the employer doesn’t belong). The FOM instructs OSHA Area Directors and Regional Administrators to consult on which industries recognize which hazards. In other words, the determination of what hazards are recognized by a particular industry isn’t supposed to be made on an ad hoc basis by inspectors in the field.
The FOM also lists places to look for indications that an industry recognizes a hazard, including:
Category 3: Common Sense
A hazard that an employer or its industry doesn’t actually recognize can still be deemed “recognized” under Sec. 5(a)(1) of the Occupational Safety and Health Act if it’s “so obvious that any reasonable person would have recognized it.” At first blush, this sounds alarming. What’s to stop an OSHA inspector from concluding that anything and everything is a common sense hazard? Luckily, the FOM includes a restriction to curb abuse. Inspectors should resort to common sense recognition, the FOM cautions, only in “flagrant or obvious cases.” Phheeeww!
The general duty to guard against recognized hazards has always been the fly in the ointment of OSHA compliance because it means that you can still be liable even if you do everything the OSHA standards require. The good news is that the new FOM defines the scope of the general duty with unprecedented clarity. The bad news is that the clarification extends the scope of recognized hazard about as far as it can reasonably go.
Here are some of the things in SafetySmart Compliance you can use to help comply with OSHA ergonomic requirements: