Comments due March 30, 2010

On January 29, OSHA issued its proposal that will require employers to document musculoskeletal disorders (MSD) as part of their injury and illness reporting requirements.  The MSD column will be added to the OSHA 300 Log maintained under the Occupational Injury and Illness Recording and Reporting regulations (otherwise known as OSHA's recordkeeping regulations).  On March 9, representatives from small business advocacy organizations presented testimony to a panel of OSHA experts that the proposed rule will prove extremely costly for small business and will be a de-facto national ergonomics standard.   

Analysis for SBCRR Subscribers

Some of the same concerns small business stakeholders had with the ergonomics regulation proposed by OSHA Administrator Charles Jeffress in 1999 may be relevant to OSHA's current recordkeeping proposal.  When submitting comments, small business stakeholders should insist that OSHA clarify that only "work-related" MSDs be reported.  OSHA must clearly define "MSD" so employers are not held responsible for injuries sustained by their employees playing sports and engaging in other activities during weekends and after-hours. 

OSHA estimates that it will take employers less than 5 minutes to familiarize themselves with the proposed MSD reporting procedures.  Additionally, OSHA estimates that it will take 1 minute to enter the information on the OSHA 300 Log.  

OSHA certified that its recordkeeping rule will not adversely impact small firms to the extent that OSHA would have to consult with small businesses and SBA's Office of Advocacy under a system prescribed by the Regulatory Flexibility Act.  Small business groups question OSHA's insistence that its proposal "will not change existing requirements… ."  Instead, they fear that listing MSDs will require employers to determine the work-relatedness of injuries not easily associated with specific work conditions.  Small business is wary of how "work related" will be defined in OSHA's proposal and how listing MSDs could be a pre-cursor to the enforcement of a nation-wide ergonomics standard. 

Small business stakeholders should insist that OSHA withdraw its proposal, convene a Small Business Advocacy Review Panel, and then re-propose a rule that benefits from pre-proposal small entity participation as required by the Small Business Regulatory Enforcement Fairness Act. 

Key Documents 

• Occupational Health & Safety (OHS) web-posting on the extension of OSHA's comment period:  click here
• OSHA's proposed rule (federal register notice in *pdf): click here
• News article on OSHA's proposed rule: click here
• NAM's "ShopFloor " blog speculating that OSHA's proposed recordkeeping rule is the harbinger of a new ergonomics regulation:  click here
• Small Business Regulatory Enforcement Fairness Act (see Section 244 for OSHA's requirements for convening a small business advocacy review panel): click here