From OSHA’s website:

Musculoskeletal disorders (MSDs) affect the muscles, nerves and tendons. Work related MSDs (including those of the neck, upper extremities and low back) are one of the leading causes of lost workday injury and illness. Workers in many different industries and occupations can be exposed to risk factors at work, such as lifting heavy items, bending, reaching overhead, pushing and pulling heavy loads, working in awkward body postures and performing the same or similar tasks repetitively. Exposure to these known risk factors for MSDs increases a worker's risk of injury.

But work-related MSDs can be prevented.  Ergonomics – fitting a job to a person – helps lessen muscle fatigue, increases productivity and reduces the number and severity of work-related MSDs… Work related MSDs are among the most frequently reported causes of lost or restricted work time.  In 2011, the Bureau of Labor Statistics (BLS) reported that industries with the highest MSD rates include health care, transportation and warehousing, retail and wholesale trade and construction. 

Top 15 Occupations with MSDs:

Nursing assistants

Laborers

Janitors and cleaners

Heavy and tractor-trailer truck drivers

Registered nurses

Stock clerks and order fillers

Light truck or delivery services drivers

Maintenance and repair workers

Production workers

Retail salespersons

Maids and housekeeping cleaners

Police and sheriff patrol officers

Firefighters

First-line supervisors of retail sales workers

Assemblers and fabricators

MSDs include a variety of health conditions.  Some, resulting from repeated overuse of a body part, are generally categorized as illnesses.  These include carpal tunnel syndrome, tendinitis, rotator cuff (shoulder) injuries, epicondylitis (an elbow problem), trigger finger, some low back injuries, and muscle strains.  Others are the result of a sudden and immediate event, and are characterized as injuries.  Together, these musculoskeletal conditions account for at least one-third, and perhaps more than half, of workers’ injuries.  They are the most frequently reported and among the most expensive types of injuries in workers’ compensation systems.  And while, with proper treatment, workers can recover from some of these injuries, for some workers they result in lifelong impairments that limit their ability to work.

In 2005, Human Rights Watch issued a report on the meatpacking and poultry processing industries called Blood, Sweat, and Fear: Workers’ Rights in U.S. Meat and Poultry Plants.[1]  The report documented the enormous physical challenges of this work.  Faster, faster, faster is the mantra in these plants, resulting in frequent serious injuries.  With regard to health and safety, the Report concluded: 

• Many workers suffer severe, life-threatening and sometimes life-ending injuries that are predictable and preventable.
• Many workers cannot get the compensation for workplace injuries to which they are entitled.
• Government laws, regulations, policies and enforcement fail to sufficiently protect meat and poultry workers’ health and safety at work and their right to compensation when they are hurt.

And the Report recommended:

On health and safety, new federal and state laws and regulations are needed to reduce line speed in meat and poultry plants to reasonable levels that do not create a constant, foreseeable and preventable risk of injury. Further legislative and regulatory reform should establish new ergonomics standards reducing risk of musculoskeletal injury due to repetitive physical stress. Government health and safety authorities must devise stricter injury reporting requirements and thoroughly audit such reports to end the chronic underreporting of injuries in this industry. Health and safety authorities must also apply stronger enforcement measures, including use of criminal referrals to the Justice Department in cases of willful repeated violations, to enhance safety conditions in the industry.

All of these recommendations make sense.  Few have come about.  In 1999, Nebraska Appleseed issued an earlier report on the meatpacking industry, The Speed Kills You: The Voice of Nebraska’s Meatpacking Workers, raising serious concerns regarding the speed of the lines in the meatpacking industry. (available at https://neappleseed.org/wp-content/uploads/downloads/2013/01/the_speed_kills_you_100410.pdf)

In 2010, The Charlotte Observer did an exposé of the poultry processing industry, finding that House of Raeford Farms was hiding serious injuries (in violation of OSHA reporting requirements) and finding “reasons to fire injured workers.” A supervisor said “her boss didn’t like ‘repeat complainers.’… Workers got the message. ‘You complain and you become unemployed,’” according to another former supervisor. See Kerry Hall, “The Cruelest Cuts,” The Charlotte Observer, June 25, 2010.

The injuries and the reports kept on coming. In 2013, the Southern Poverty Law Center and Alabama Appleseed Center for Law and Justice issued yet another report detailing the persistent and deplorable working conditions in the poultry industry,   Unsafe at These Speeds: Alabama's poultry industry and its disposable workers. This report showed the persistence of the problems described earlier by Human Rights Watch:

Nearly three-quarters of the poultry workers interviewed for this report described suffering some type of significant work-related injury or illness. In spite of many factors that lead to undercounting of injuries in poultry plants, the U.S. Occupational Safety and Health Administration (OSHA) reported an injury rate of 5.9 percent for poultry processing workers in 2010, a rate that is more than 50 percent higher than the 3.8 percent injury rate for all U.S. workers.

Poultry workers often endure debilitating pain in their hands, gnarled fingers, chemical burns, and respiratory problems – tell-tale signs of repetitive motion injuries, such as carpal tunnel syndrome, and other ailments that flourish in these plants.

The processing line that whisks birds through the plant moves at a punishing speed. Over three-quarters of workers said that the speed makes their work more dangerous. It is a predominant factor in the most common type of injuries, called musculoskeletal disorders. But if the line seems to move at a pace designed for machines rather than people, it should come as no surprise. Plant workers, many of whom are immigrants, are often treated as disposable resources by their employers. Threats of deportation and firing are frequently used to keep them silent.

But workers speaking freely outside of work describe what one called a climate of fear within these plants. It’s a world where employees are fired for work-related injuries or even for seeking medical treatment from someone other than the company nurse or doctor. In this report, they describe being discouraged from reporting work-related injuries, enduring constant pain and even being forced to urinate on themselves while facing the wrath of a supervisor by leaving the processing line for a restroom break. …

The pressure continued to mount regarding the poultry industry. On October 27, 2015, Oxfam issued yet another report on the poultry industry, Lives On the Line: The Human Cost of Cheap Chicken :

Each day, millions of chickens are caught, trucked to factories, hung and slaughtered, processed into pieces, and packaged. Most of this work happens on the processing line. The line is the force that keeps up production and that needs to run constantly, hour after hour, day after day. The line positions workers in the same spot every day, and runs thousands of chicken by in a relentless stream. The faster the line can run, the larger the production and the higher the profits.

A worker stays in place on the line, and the line keeps going. If a worker slows down or tries to stop the line, the company often disciplines or lets the worker go, and finds another one less likely to speak out. On the line, workers suffer high rates of illnesses and injuries, earn low pay, and enjoy little or no job security.

The Oxfam report called upon consumers to join the fight:

[C]onsumers have the power to speak out and push for changes.

The moment is right. Consumers are becoming more concerned about the supply chains that bring them their food—“from farm to fork.” Many have already questioned the poultry industry about the treatment of chickens; about the use of antibiotics, and what that means for consumer health; and about general food safety issues. And consumer actions have pushed the industry to change: Tyson, Pilgrim’s, and Perdue recently pledged to phase out the use of antibiotics from their chicken supply chain.

What has been sorely lacking in these efforts is consideration of the workers who bring the chickens to our plates.

The terrible conditions in this industry have still persisted.

---------------------

Health care:

The particular problems in the health care industry have also not gone unnoticed:  health care is now often listed as the most dangerous industry, in terms of frequency of injuries, in the U.S. According to the OSHA's safe patient handling web page :

In 2010, nursing aides, orderlies, and attendants had the highest rates of MSDs. There were 27,020 cases, which equates to an incidence rate (IR) of 249 per 10,000 workers, more than seven times the average for all industries. This compares to the all-worker days-away from work rate of 34 per 10,000 workers. The rate for construction laborers was 85.0, and for laborers and freight, stock and material movers the IR was 154.9, still far lower than that of nursing aides and orderlies. In 2010, the average incidence rate for musculoskeletal disorder (MSD) cases with days away from work increased 4 percent, while the MSD incidence rate for nursing aides, orderlies, and attendants increased 10 percent. …

The consequences of work-related musculoskeletal injuries among nurses are substantial. Along with higher employer costs due to medical expenses, disability compensation, and litigation, nurse injuries also are costly in terms of chronic pain and functional disability, absenteeism, and turnover. As many as 20% of nurses who leave direct patient care positions do so because of risks associated with the work. Direct and indirect costs associated with only back injuries in the healthcare industry are estimated to be $20 billion annually.

In 2015, NPR issued a series of reports on the prevalence of back injuries in hospitals, particularly nursing.  Nurses are required to lift heavy patients and suffer back injuries that make it impossible to continue to work.  Lifting assistance technology is available – but not universally used.  As with meatpacking, there is no existing federal regulation that addresses the problem.

Listen to (or read) these NPR reports -- sadly, they remain current:

A Dangerous Job - February 4, 2015;

The Science  - February 11, 2015;

Mission Hospital  - February 18, 2015;

Veterans' Administration - February 25, 2015.

What follows is a history of the on-going attempts to use legal interventions to curb the frequency of MSDs caused by work.  We return to the problems of the speed of the lines and the lifting of patients at the end of these materials.

-------------------------------------------------

FOOTNOTES

[1] The full report is available online: http://www.hrw.org/reports/2005/usa0105/usa0105.pdf .  In addition to discussing health and safety issues, the report graphically recounts other human rights abuses in these plants, including denial of freedom of association, failure to pay workers’ compensation for injuries, and mistreatment of workers based on immigrant status.

[1] The OSHA website is changed regularly. The information in the text should be compared with current website information whenever possible.

OSHA began issuing citations for ergonomics hazards under the General Duty Clause of the Occupational Safety and Health Act in 1987.  The following two cases explain the OSHRC’s reasoning with regard to the application of the clause in these circumstances. Despite editing, both decisions are extremely lengthy and fact specific. Watch carefully as you read them for the application of the elements of violations of the general duty clause to MSDs. 

Think about this question: Given the analyses in these decisions, how difficult do you think it is for OSHA to present a 5(a)(1) case for health hazards?  

Before: WEISBERG, Chairman; MONTOYA and GUTTMAN, Commissioners.

This case concerns Pepperidge Farm's Downingtown, Pennsylvania plant, where it produced a variety of cookies and other baked goods. The Secretary of Labor issued citations for numerous alleged "egregious willful" violations of the Occupational Safety and Health Act ("the Act"), 29 U.S.C. 651-678. … This case is among the most lengthy and complex to come before the Commission. The Labor Department's Occupational Safety and Health Administration ("OSHA"), began its inspection of the Downingtown plant on June 23, 1988, and it continued in September and October. OSHA issued the citations on December 13, 1988. There were 62 days of hearing before Judge Oringer between June 25, 1990, and October 22, 1991. The hearing generated more than 11,000 pages of transcript and over 400 exhibits, including approximately 60 scientific studies and articles. Judge Oringer's decision which issued on March 23, 1993 was 244 pages. Following a remand to Judge Frye for resolution of the sanctions issue, the Commission issued directions for review in September 1993. The Commission held oral argument in this case on September 20, 1996…. 

In this case, the Commission considers for the first time whether the Secretary may apply section 5(a)(1), the Act's general duty clause, to issues of "ergonomics." That term has been defined as the "science concerned with how to fit a job to a worker's anatomical, physiological, and psychological characteristics in a way that will enhance human efficiency and well-being." The lifting items here involve employees lifting 100-pound bags of sugar, 68-pound blocks of butter, roll stock weighing up to 165 pounds, and cookie tins weighing up to 38 pounds. The repetitive motion items involve employees performing in quick succession assembly line tasks, such as dropping paper cups from a stack with one hand and filling them with baked cookies with the other hand.

We find that the Secretary may utilize section 5(a)(1) to address lifting and repetitive motion hazards. In regard to the lifting tasks, Pepperidge did not seek review of the judge's finding that a hazard exists. Pepperidge did challenge his finding that it had recognized the hazard.

We find that Pepperidge recognized the existence of numerous lifting hazards at the Downingtown plant, based on the memoranda and testimony of its corporate ergonomist, Ms. Jane Teed-Sparling, its own medical records of lifting injuries to employees, and memoranda from its workers' compensation carrier, Liberty Mutual Insurance Company. We reject the arguments that we should not consider that evidence in deciding the question.

The other issues on review regarding lifting are whether the violations were willful, and what penalties are appropriate. We affirm the judge's finding that the violations were willful. Pepperidge was initially warned of injuries from lifting hazards four years before the inspection, and given recommendations on abatement actions to be taken. Despite continued warnings, including identification of alternative solutions, Pepperidge's employees continued to lift weights deemed excessive until after the inspection….

With regard to the alleged repetitive motion injuries, we find that the evidence shows that a substantial number of the alleged injuries, particularly carpal tunnel syndrome, did occur among the workers at Downingtown. This conclusion is supported by the medical records, the testimony of Pepperidge's own medical team regarding the medical records, and the views of outside medical professionals. As to the repetitive motion hazards, we have reviewed the testimony and scientific studies in evidence regarding whether the kinds of repetitive jobs at issue here substantially contribute to the development of carpal tunnel syndrome and other upper extremity musculo-skeletal disorders ("UEMSDs"). We find that such jobs can be a substantial contributing factor in these injuries. This view is supported by the clinical and epidemiological evidence discussed below, and by UEMSD incidence rate comparisons between Pepperidge's biscuit line workers and other populations. It is also supported by Pepperidge's own medical records, which contain reports of clinicians who examined and treated employees and reported a causal connection between the jobs and the development of their UEMSDs.

We find multiple bases for concluding that Pepperidge recognized the hazards at issue. These include memoranda by Pepperidge's corporate ergonomist and the medical records of injured employees, as well as testimony by both Pepperidge's medical director and its chief nurse at the plant. We also find that the hazards were causing serious physical harm up to and including disabling conditions requiring surgical correction and even termination of employment.

Finally, we find that abatement of the hazard here can be required under section 5(a)(1) but that the Secretary has failed to meet her burden of showing that further abatement action was required in light of what had already been undertaken. We conclude that the appropriate response to the hazard at Downingtown was a process that included actions selected from a menu of alternatives. The question of the appropriateness of the abatement here turns on the extent to which Pepperidge implemented the recommendations provided by its corporate ergonomist and the extent to which specific further actions urged by the Secretary were required to be undertaken. We conclude that the Secretary has not shown that the additional steps proposed by the Secretary and not taken by Pepperidge were feasible and that their efficacy in reducing the hazard was so compelling that the failure to have implemented them by the time of the inspection rendered Pepperidge's process inadequate.

THE LIFTING TASKS

In items 3(a) through 3(d) and 3(f) of willful citation 1, the Secretary alleged that Pepperidge Farm committed 21 separate violations of section 5(a)(1) of the Act by requiring 21 employees to perform excessive lifts. Judge Oringer affirmed each item and assessed the Secretary's proposed penalty of $5,000 for each item for a total penalty of $105,000. Four types of lifts were involved. Items 3(a) and 3(b) involved lifting rolls of foil, label, and cardboard stock, weighing 165, 120, and 70 pounds respectively. The stock is used to make bags for Pepperidge's products. Employees lifted the rolls from pallets or skids onto a dolly and then rolled it to a bag forming machine. The six employees performing this task lifted the stock up to six times a shift during each of three shifts. Item 3(c) involved employees lifting 100-pound sugar bags "a few times an hour" from a pallet where they were stacked eight high to the edge of a hopper or pulverizer, cutting the bag open, and dumping in its contents. The Secretary cited Pepperidge for exposing three employees to this hazard. Item 3(d) involved the six employees who lift 68-pound blocks of butter to a height of either 36 or 52 inches and placed them into a mixer. Item 3(f) involved employees lifting metal tins filled with cookies from heights between 13 to 74 inches. The tins weighed between 27 to 38 pounds when filled and 16 pounds when empty. Six employees routinely handled these tins twice in a three minute period, once when full and once when empty.

To establish a violation of section 5(a)(1) of the Act, the Secretary must prove that: (1) a condition or activity in the employer's workplace presented a hazard to employees, (2) the cited employer or the employer's industry recognized the hazard, (3) the hazard was causing or likely to cause death or serious physical harm, and (4) feasible means existed to eliminate or materially reduce the hazard. …

Recognition of the Hazard

Under section 5(a)(1) of the Act, "[a] hazard is deemed 'recognized' when the potential danger of a condition or activity is either actually known to the particular employer or generally known in the industry." St. Joe Minerals v. OSHRC, 647 F.2d 840, 845 (8th Cir.1981), (citing Usery v. Marquette Cement Mfg. Co., 568 F.2d 902, 910 (2d Cir.1977)).

[In a detailed discussion, the Commission found that Pepperidge Farm had been repeatedly informed regarding the hazards associated with lifting and that the company took late or inadequate action in response to concerns expressed by their workers' compensation insurance carrier, Liberty Mutual, the corporate ergonomist from Pepperidge's corporate parent Campbell Soup, and was also on notice as a result of workers’ injuries.]

Pepperidge argues that the bulk of the evidence relied on by the judge cannot be used against a respondent to find recognition. It is true that the Commission and the courts have been reluctant to rely solely on voluntary safety efforts by an employer to find that the employer recognized a hazardous condition. The rationale is that such reliance would "dissuade employers from taking voluntary protective measures beyond those the law requires." [citations omitted] Consequently, the Commission has required other independent evidence of recognition before it will rely on such efforts. Pepperidge invokes this precedent in arguing that the Commission should not rely on the evidence of Teed-Sparling's activities and memorandums as well as those of Liberty Mutual.

While we are troubled and reluctant to rely solely on an employer's voluntary safety efforts where there is no other evidence of a hazard, this case does not present that issue. First, there is evidence that Pepperidge was actually aware of the existence of the four lifting hazards through the injuries suffered by employees performing each of the four lifting tasks…  Second, in contrast to the actions in the cases relied on by Pepperidge … , the evidence we rely on here is more accurately described as memoranda and warnings that went unheeded rather than safety actions or efforts. Third, this record shows substantial recognition of the lifting hazards from multiple sources. Pepperidge received warnings of the cited conditions from its insurance carrier, its ergonomist, and its employees. … Having found that the hazard was recognized, we affirm that part of the judge's decision finding violations of the general duty clause for Pepperidge's failure to free its workplace of lifting hazards. We next consider whether the violations were willful.

Willfulness

… Where, as here, the violation is of the general duty clause, we have held that "the Secretary's burden of proving willfulness is notably more difficult when an employer is charged with a violation of section 5(a)(1) ... there must be evidence apart from that establishing knowledge of the hazard, from which it may be concluded that the employer intentionally disregarded or was indifferent to the safety of its employees." General Dynamics Land Systems Div., 15 BNA OSHC at 1287, 1991-93 CCH OSHD at p. 39,759.

As we found, Pepperidge recognized the existence of lifting hazards at its Downingtown plant. In our view, the same evidence that supports a finding of recognition establishes the first element of the willfulness test – that Pepperidge had a heightened awareness of the lifting hazards at the Downingtown plant. Pepperidge's failure to take corrective action to materially reduce or abate these known lifting hazards demonstrates its intentional disregard or plain indifference to employee safety.

The record demonstrates that beginning in 1984, Pepperidge's corporate management received notice of the presence of lifting hazards. … The series of memoranda from Teed-Sparling and Liberty Mutual detailing the lifting problems did not just tell Pepperidge that a problem existed, the memos also informed Pepperidge how to remove the problem.

Despite receiving this specific information, Pepperidge did not act with dispatch… A finding of willfulness here would not be justified if Pepperidge made a good faith effort to remove these lifting hazards, even though its efforts were not entirely effective or complete. The test of good faith in this regard is an objective one – whether the employer's efforts to comply were reasonable under the circumstances. The record shows that Pepperidge did take some action after it received written memoranda detailing the lifting hazards, but before it abated the hazards after the inspection. … However, these measures fall far short of an objectively reasonable attempt at compliance. Pepperidge employees were still performing the same hazardous tasks at the time of the inspection. Pepperidge's various budgetary and other reasons for not taking the steps recommended to abate the hazards, particularly the time Pepperidge took to abate the hazards, fail to suggest an objectively reasonable good faith effort to comply with the Act….

The Commission has not always been willing to base a willful violation on an employers' failure to follow an outside consultant's advice in determining willfulness. … Here, however, we conclude…that this … evidence can be used to establish willfulness, particularly where the employer's response to safety recommendations may be fairly characterized as dilatory.  

We therefore affirm the judge's finding of willful violations for each of the cited lifting tasks…

ALLEGED WILLFUL VIOLATIONS OF SECTION  5(a)(1) OF THE ACT CONCERNING UPPER EXTREMITY MUSCULO-SKELETAL DISORDERS  (UEMSDs)

This item alleged 175 separate willful violations of section 5(a)(1), in that 175 employees "were required to perform tasks involving repetitive motions in postures resulting in stresses that had caused, were causing or were likely to cause cumulative trauma disorders." The proposed penalties were $5,000 per instance, for a total of $875,000. The employees worked beside conveyor belts in the Biscuit Division of the Downingtown plant. They assembled, packed, and packaged baked cookies.

[The opinion again enumerates the elements of a 5(a)(1) violation]

…[W]e begin with the highly contested issue of whether a hazard exists. To address this issue we review 1) the legal test for the existence of a hazard under section 5(a)(1); 2) the evidence on the existence of the alleged injury here; and 3) evidence regarding the cause of the alleged injuries. We then turn to the three further elements of a section 5(a)(1) violation….

Daniel Habes, an ergonomist for the National Institute for Occupational Safety and Health ("NIOSH") who testified for the Secretary, estimated the number of repetitive motions that employees would make at different positions on the lines, and the average overall number per day. Habes' specific estimates are questioned by Pepperidge. However, they are sufficient to indicate the general order of magnitude of the repetitions.

Overall, Habes calculated, the group of employees who rotated through the 17 positions on line 5 and the two positions on line 3 averaged 20,800 repetitions over a full rotation. …

The kinds of ailments that Pepperidge's employees are alleged to have suffered are commonly referred to by various names including upper extremity musculo-skeletal disorders ("UEMSDs"), cumulative trauma disorders ("CTDs"), or repetitive strain injuries (RSI's). We will use the term UEMSD's because it describes the conditions without suggesting a cause.

A specific UEMSD that allegedly resulted in disability and surgery for numerous Pepperidge employees is carpal tunnel syndrome ("CTS"). As explained by the physicians in this case, CTS consists of a constellation of symptoms including numbness and tingling in fingers, loss of muscle strength in the hand, discomfort in the hand, wrist and arm (even the shoulder and neck in many patients). It is due to compression ("entrapment") of the median nerve, which runs through the carpal tunnel, including the wrist. In most cases it results in abnormal nerve conduction which may be measured by electrodiagnostic tests. Other UEMSDs from which certain Pepperidge employees allegedly suffered were tendinitis (including epicondylitis), tenosynovitis (including DeQuervain's disease), trigger finger, and ganglionic cysts...

[medical description of these conditions omitted]  

Applicability of Section 5(a)(1) to Ergonomic Hazards

At the threshold, respondent and supporting amici argue that the undefined nature of the hazard (assuming it exists) precludes regulation under Section 5(a)(1). In a related vein, they argue that the hazard is so undefined and/or controverted that a finding of violation would defy Constitutional requirements of notice and due process. Finally, they argue that the Secretary's evidence of hazard must be gauged by the "significant risk test" articulated in Kastalon, Inc.

Pepperidge argues that the hazard here cannot be regulated because, as it correctly points out, no one could testify as to when repetitive motion becomes a hazard or precisely how much Pepperidge should have reduced its employees' repetitive motion. While knowledge of the threshold for injury may be essential in some cases, however, the Commission has never held that certainty as to the threshold level for injury is a prerequisite to regulation under the general duty clause.

Pepperidge cites to our decision in Kastalon, which drew on the Supreme Court's decision in Industrial Union Dept. v. American Petroleum Institute, 448 U.S. 607 (1980) ("Benzene") for the proposition that the Secretary must show that a condition poses a significant risk before it can be regulated under section 5(a)(1). …

The evidence of hazard in Kastalon was based on extrapolation from animal tests and concerned "potential" injury. In contrast, this case stems from allegations of actual injury to humans. The inability to quantify a threshold may be of great significance when there is little evidence that the putative hazard may cause injury to humans, where the question is whether it should be presumed that the risk should be controlled to the full extent feasible. It is of less significance where, as here, human injury is allegedly manifest. Thus, where substantial injury is actually occurring, neither precedent nor common sense require that the finding of hazard be foresworn until there is determination of the threshold at which there occurs a substantial risk of injury.

Pepperidge further points out, however, and the Secretary's experts agree, that non-workplace factors may cause or contribute to the illnesses at issue, and that individuals differ in their susceptibility to potential causal factors. However, such characteristics (and the inability to determine threshold of harm) are not unique to putative ergonomic hazards, but inhere in other workplace hazards as well. For example, some or all of these characteristics obtain for many chemical, toxic and other workplace hazards. Thus, to preclude the application of section 5(a)(1) to a hazard with the characteristics cited by Pepperidge would be to preclude the use of Section 5(a)(1) for many occupational ills. To be clear, characteristics such as those identified by Pepperidge may (as discussed later) bear on questions of causation or feasibility of abatement. They do not, however, ipso facto preclude the possibility of regulation under Section 5(a)(1).

Respondent and supporting amici correctly point out that a cornerstone of section 5(a)(1) is the principle that employers should not be penalized for failing to take actions for which they lacked reasonable notice. Thus, they note, citing our precedent, a "broad generic definition of the hazard" is unacceptable because it does not "identify conditions or practices over which the employer can reasonably be expected to exercise control." E.g., Davey Tree Expert Co., 11 BNA OSHC 1898, 1983-84 CCH OSHD ¶  26,852 (No. 77-2350, 1984). Pepperidge also cites Diebold, Inc. v. Marshall,. 585 F.2d 1327 (6th Cir.1978), for the proposition that substantial dispute in the scientific community about whether jobs cause UEMSD's demonstrates that the general duty clause does not provide employers with the notice of ergonomic violations required by the Constitution. We agree with Pepperidge that the ability of an employer to identify a hazard and the state of scientific understanding are relevant to the question of notice. In the discussion that follows these factors play central roles.

1. Existence of a Hazard

The first element of a section 5(a)(1) violation is the existence of a hazard, which turns on two factors, first, actual or potential physical harm, and second, a sufficient causal connection between the harm and the workplace.

The Secretary alleges that the dozens of reported UEMSDs at the Pepperidge Downingtown plant are instances of cumulative trauma disorders, and were caused or abetted by workplace tasks involving repetitive motion. Pepperidge responds by questioning both the existence of the UEMSDs and their cause, arguing that the "totality of the record did not establish that a cognizable causal connection existed between the cited Pepperidge tasks and the alleged instances of UEMSDs." The issues joined by the parties, therefore, include both the existence of injury here and the role of the workplace in causing injury of the kinds alleged….

1. The Existence of Injury: The Evidence of Effect

The Secretary states that in 1986-88, 68 Downingtown employees developed UEMSDs. At hearing, the Secretary sought to show these injuries through the medical records, the testimony of Pepperidge's plant physician (Dr. Snyder), nurse(s) and workers, and the testimony of Dr. Robert Harrison about the medical records….Pepperidge questions the bona fides of the UEMSDs alleged here, stating that "the actual diagnoses in the employees' medical records are unreliable ..."

Pepperidge argues that "most of the alleged UEMSDs experienced by Pepperidge employees were, at best, sporadic soft tissue syndromes of the types which are common among the general population."  Dr. Hadler [an expert witness for Pepperidge] explained that the term "Cumulative Trauma Disorder" (CTD) has been used to embrace a variety of complaints or ills, and is not a part of medical terminology. Injuries lumped together as CTDs include soft tissue injury (or "tendon disorders"), nerve disorders, and neurovascular ills. Drs. Hadler and Nathan state that soft tissue ills often cannot be diagnosed with certainty and may be no more than normal aches and pains. Thus, in Pepperidge's view, an upsurge in reported ills, as occurred at Downingtown, may not reflect the occurrence of real injury so much as psychosocial suggestion that prompts the reporting of aches and pains that otherwise would be coped with.

Pepperidge argues that the injuries alleged here may be essentially dismissed as questionable reports of soft tissue ills; however, carpal tunnel syndrome (a nerve disorder) was the single most identified injury at Pepperidge, representing almost half of the injured workers at issue. …

In light of the above, we find that the existence of carpal tunnel syndrome among the employees at Downingtown has been established on this record. Moreover, the existence of soft tissue ills at Downingtown is supported by the Downingtown medical records, by the testimony of Drs. Harrison and Snyder, and the testimony of the workers who reported injury. We additionally find the reservations raised by Drs. Hadler and Nathan about the reliability of soft tissue injury diagnoses inadequate to rebut the contemporaneous clinical evidence of injury here. …We therefore conclude that injury, particularly carpal tunnel syndrome, existed among the Downingtown workers. This being the case, the question of the cause(s) of such injury, needs to be addressed.

2. Causation

We turn now to the second prong of the inquiry into the existence of a hazard--the causal connection between the physical harm to employees and the workplace. The record evidence indicates that the majority of UEMSDs have as yet no underlying medical condition clearly associated with them and may be related to a host of factors other than the workplace. These factors include aging, acute trauma (e.g., a blow to the wrist), medical conditions (e.g., diabetes mellitus, gout, rheumatoid arthritis), extracurricular activities (e.g., bowling, gardening, playing a musical instrument), and sex (both gender and factors such as birth control pill use and pregnancy). Thus, to determine whether workplace activities may cause UEMSDs, it is necessary to determine whether workplace activities are associated with UEMSDs, but also to disentangle other potential causes (or "confounders")….

In resolving this dispute, we must recognize the limitations of science, but also recognize, as the Benzene decision and much public health decision making has, that there are illnesses or hazards that need to be addressed even in the face of imperfect understanding.  At the same time, we must recognize that decisions based on imperfect knowledge can compound harm, as well as alleviate it and there must be sufficient clarity in the state of knowledge to provide notice to employers of their obligations under the Act…

[With regard to clinical evidence] Judge Oringer found, and the record shows, that in the course of diagnosing UEMSDs Pepperidge's own medical staff attributed their cause to the tasks at Downingtown. At the hearing Dr. Snyder testified that "there is no question that repetitive motion plays a part in this." … Pepperidge's records reveal many instances where the physicians and nurses who examined and treated the employees attributed their UEMSDs to their biscuit line jobs….

In sum, the medical personnel who treated the injured workers at Downingtown were of the view that the injuries were substantially caused by work tasks….We find that the weight of the clinical opinions here support the proposition that at least some of the UEMSDs were caused by the work. Testimony of three of the four expert clinicians supported the proposition that repetitive motion may cause some of the kinds of injuries at Downingtown. …

Dr… Silverstein …calculated the incidences at Downingtown to be 7.5 per hundred worker years for 1987, and 12.5 per hundred worker years for 1988, resulting in an overall rate of 7 per hundred worker years for the 1986-88 period. Based on this data she calculated that the Pepperidge working women had 28.16 times the incidence of carpal tunnel experienced by the working women in Washington state , and 41.41 times the women in the Mayo Clinic study.

Pepperidge questions the calculations on several grounds…. Pepperidge raises reasonable questions about the calculations. However, the incidence of carpal tunnel injury at Downingtown is substantially in excess of that found in other populations. While Pepperidge points out, and it is undisputed, that many factors other than work may cause carpal tunnel, there is nothing that has been pointed to in the record to indicate that these other factors were present at Downingtown in sufficiently disproportionate measure to explain the high incidence rate at Downingtown.

[With regard to epidemiological evidence]…  Limits are inherent in research on workplace populations. Workforces consist of populations of human beings who differ in many ways, whose jobs may change, and who may leave the workplace altogether. In the case of UEMSD research there is also difficulty in defining and measuring work, agreement that there are a large number of potential factors that may cause UEMSDs, and questions about the efficacy of diagnostic tools.

 … Pepperidge questions the probative value of epidemiology in demonstrating causality. … Pepperidge states that epidemiological evidence that Pepperidge employees experienced a higher incidence of UEMSDs than those in comparable settings "establishes nothing more than an association between the work duties and the injuries. Such an association falls far short of what is required under the Occupational Safety and Health Act ..." …

At the threshold, we reject Pepperidge's argument that epidemiological research may be of no probative value in a case such as this. Pending clear understanding of biological cause, medical and public health practitioners have relied on epidemiological data to understand and prevent ills. …  [a lengthy discussion of additional scientific evidence is omitted here] 

[A note on the Australian experience]  The initial body of data relied on by Dr. Hadler is the "RSI [repetition strain injury] epidemic" that occurred in Australia, during the mid-1980's, as discussed in articles from Australian medical publications, and by Dr. Hadler himself. The epidemic, Dr. Hadler explained, spread to up to 30 percent of the "high tech" workforces in the states of New South Wales and Victoria, and then abated. In retrospect, Dr. Hadler testified, it did so in the absence of pathologically demonstrable ills (often in the seeming absence of effort at competent diagnoses). The epidemic evidently yielded few instances of actual CTS; Dr. Hadler and Pepperidge therefore cite it as evidence that carpal tunnel is not work-related.  Dr. Hadler stated that the epidemic shows that workplace outbreaks of UEMSDs result largely from psychosocial factors. In the Australian case, the possible psychosocial factors included extensive publicity, warnings about arm pain from Australian medical and official sources, labor-management relations, and other elements of the work environment.

Pepperidge Farm argues that the Australia experience "is startlingly similar to the recent American experience with CTD, and the findings reviewed by Dr. Hadler provide tremendous insight into the causation of this phenomenon." However, the Australian experience involved reports of injury that were not verified by medical experts, and did not involve carpal tunnel injury. The facts here show many instances of diagnosed CTS.

Similarly, the psychosocial factors that were identified in Australia do not appear to figure here. Thus, an article by the Australian physician Hocking  reports "neurosis" to be high among those afflicted in one group, and reports the "psychosocial environment in the telephone area was poor." Thus, a further article refers to "the intrusion of irrational beliefs arising out of perennial group hostilities" (unions and management). Pepperidge does not claim the presence of factors such as a high incidence of neurosis or irrational beliefs among its workers, much less poor psychosocial environment….

In summary, we note first that there is evidence of substantial injury here, particularly carpal tunnel syndrome at Downingtown. This evidence includes findings by doctors, nurses and technicians and actions, including many instances of surgery, based on these findings. Further, the testimony of Pepperidge medical personnel and the records relating to the diagnosis and treatment provided by them and outside medical personnel illustrate their views that injuries here were caused by the work at Downingtown.

Additionally, the testimony of the clinicians here supports the proposition that at least some of the UEMSDs were caused by the work…. Significantly, the incidence of carpal tunnel injury at Downingtown is substantially in excess of that found in other populations, including other populations of workers. While Pepperidge points out, and it is undisputed, that many factors other than work may cause carpal tunnel, there is nothing that has been pointed to in the record to indicate that these factors were present at Downingtown in sufficiently disproportionate measure to explain the high incidence at Downingtown.

… We therefore conclude, that the Secretary has established on this record a causal connection between UEMSDs, including CTS, affecting the employees at Downingtown and their work on the biscuit lines. In doing so, we are mindful that many of these injuries may have had more than one causal factor and of the experts who contend that the specific cause of such injuries is, essentially, unknowable or presently unknown. As is the case with many other occupational ills with multiple possible causes, employees are more or less susceptible to injury on the job because of the individual attributes and backgrounds they bring to the workplace. As with these other ills, the Secretary is not thus foreclosed from attempting to eliminate or significantly reduce the hazard by regulating what is shown to be a substantial contributing factor to the worker injuries. We find based on all of the evidence set forth above that the Secretary has made such a showing here.

We further reject the contention that the cause of these injuries is unknown or is not, in part, the jobs at issue. We find particularly persuasive the evidence contributed by the clinicians who actually examined Pepperidge's Downingtown employees and their medical records, and the support provided by the incidence rate comparisons and the key clinical and epidemiological evidence set forth above.

1. Recognition of the Hazards

The evidence of record in this case fully supports a finding that Pepperidge recognized the hazards alleged in this item. … We must determine, however, whether it is appropriate to find recognition if Pepperidge's knowledge of the hazards was obtained, in part, through its own efforts toward achieving a safe workplace.

Turning first to the question of knowledge, we note that there is ample evidence that Pepperidge Farm was aware of both actual injury to employees and its causal connection to the workplace….

Here, as with the lifting items, Pepperidge contends that to find recognition based on its voluntary efforts to improve safety at its workplace is impermissible. However, again, Commission and court precedent is clear that under section 5(a)(1), "precautions taken by an employer can be used to establish recognition [of hazards] in conjunction with other evidence." E.g., Waldon, 16 BNA OSHC at 1061, 1993-95 CCH OSHD ¶  30,021, p. 41,154-55 (emphasis added).

 Again, as with the lifting items, there is independent evidence of recognition. As mentioned, Pepperidge Farm's own medical records show that 68 employees were afflicted with work-related UEMSD's, and its medical personnel specifically indicated that many of those ailments were actually caused by the biscuit line jobs….

In the cases relied on by Pepperidge, the Commission held, in effect, that it would not presume from safety measures taken by an employer that it recognized a hazard under Section 5(a)(1). In contrast, in the instant case, we do not need to rely on any ameliorative efforts Pepperidge undertook pursuant to Teed-Sparling's recommendations. Rather, the evidence in support of recognition consists not of safety measures but of actual and specific knowledge of the hazards imparted to Pepperidge in the normal course of business by its own medical staff, its workers' compensation insurer and by its parent's corporate ergonomist. Hence, we do not believe it would be unjust to rely on this knowledge in finding recognition, nor do we feel it would discourage employers from trying to improve safety in the workplace. …

1. Serious physical harm

Section 5(a)(1) requires the employer to abate only those recognized hazards "that are causing or are likely to cause death or serious physical harm to his employees." We find that at least some of the UEMSDs here constitute "serious physical harm."

The judge found that "the repetitive work contributed to the incapacitation of the employees with UEMSDs up to and including carpal tunnel syndrome which required an operative procedure. Certainly an operative procedure comes within the purview of serious injury." He observed that "an employee who cannot perform his job because of the pain and suffering attendant to certain types of movement that exacerbate the condition, is suffering from injury that renders the employee unemployable whether or not pathologic change is present."

… There are nonserious UEMSDs. However, physical disorders that so adversely affect employees that they are disabled from doing their jobs are serious physical harm in our view--even if the disability is not permanent. Pepperidge's medical records show that about half of the 68 employees at issue became disabled from performing their regular jobs. Many were placed on disability and others were given restricted work. At least 33 employees were diagnosed with CTS, of which 16 underwent carpal tunnel release surgery (10 of them had more than one surgery). Those employees missed several weeks or months of work while recuperating. Employees with trigger finger and ganglion cysts also underwent surgery and lost time from work. All those UEMSDs clearly involved serious physical harm to the employees. In light of all of the above, we conclude that the hazards at issue were likely to cause serious physical harm to employees.

1. Feasibility of Abatement

As discussed, in order to prove a violation of section 5(a)(1), the Secretary also must show that feasible means exist to eliminate or materially reduce the hazards. The required showing was described in National Realty and Constr. Co. v. OSHRC, 489 F.2d 1257 (D.C.Cir.1973):

Though resistant to precise definition, the criterion of preventability draws content from the informed judgment of safety experts. Hazardous conduct is not preventable if it is so idiosyncratic and implausible in motive or means that conscientious experts, familiar with the industry, would not take it into account in prescribing a safety program. Nor is misconduct preventable if its elimination would require methods of hiring, training, monitoring, or sanctioning workers which are either so untested or so expensive that safety experts would substantially concur in thinking the methods unfeasible. All preventable forms and instances of hazardous conduct must, however, be entirely excluded from the workplace.... The record must additionally indicate that demonstrably feasible measures would have materially reduced the likelihood that such misconduct would have occurred. Id. at 1266-67 (footnote omitted).

Though National Realty addressed hazardous employee conduct, the same principles apply to all workplace hazards. This formulation, however, does not require that the abatement method take any particular form, only that it effectively abate the hazard at issue.

Judge Oringer held that the measures the Secretary proposes to abate these hazards would require an "experiment," which he held cannot be required under Section 5(a)(1). …Pepperidge Farm argues that the means of abating the hazard here are so uncertain that they cannot be found to be feasible and likely to materially reduce the hazard. No one, Pepperidge Farm points out, testified as to when repetitive motion becomes a hazard or how much Pepperidge Farm would have had to reduce its employees' repetitive motions in order to alleviate the hazard. … Under these circumstances, Pepperidge Farm declares, "employers are placed in an untenable position."

As we have held above, the Secretary has met her burden of proving that the injuries here at issue were substantially related to the workplace. Moreover, while the cause of these injuries is multifactorial and may involve non-work factors, experts for both Pepperidge and the Secretary agreed that repetition and posture are among the work-related causal factors. As further stated above, we concur with Pepperidge that the Secretary has not established the level at which the hazard commences or to what extent the work-related causal factors must be varied to eliminate the hazard. However, where injury is present and sufficient causation has been shown neither precedent nor common sense require that abatement action be postponed until there is determination of the threshold at which injury occurs, or the level at which safety can be assured.

… In fact, as the record makes clear, Pepperidge did engage in a process approach to addressing the injuries at the Downingtown plant. Both Pepperidge's actions and the Secretary's requested abatement indicate that such an approach to abatement is appropriate in this instance. In the final analysis, the record shows that the underlying disagreement between the Secretary and Pepperidge Farm is not whether a process is a reasonable response to the ergonomic hazard here, but whether the process engaged in by Pepperidge was adequate given the state of knowledge regarding these hazards at the time of the citation. The record helps to define what the requirements of such an abatement process might be. First, the record shows that there are core components of the process-- accurate record keeping, medical treatment for injured employees, workplace analysis to access the potential hazard and steps to abate it, education and training of workers and management, and further actions, to the extent feasible, to materially reduce the hazard. Second, the record shows that there may be choices among a menu of alternatives for some of these components. Finally, as implied in the concept of process and choice, an abatement process likely involves an incremental approach.

We conclude based on the entire record that here, where actual injury is present and substantial causation has been shown, the Secretary may require Pepperidge to engage in an abatement process, the goal of which is to determine what action or combination of actions will eliminate or materially reduce the hazard.

The question remains, however, what standard of proof the Secretary must meet in order to establish that the abatement process that Pepperidge did engage in was inadequate….   [T]he parties disagree on the extent to which Pepperidge actually implemented particular actions, and the extent to which it was obliged to pursue additional actions that would reduce repetitions. For the reasons stated below, we find that the Secretary failed to meet her burden to demonstrate that: 1) Pepperidge failed to undertake the requisite abatement process; or 2) the specific actions allegedly not undertaken by Pepperidge were feasible and likely to materially reduce the hazard.

Actions Taken By Pepperidge

The Secretary asserts that Pepperidge failed to follow most of the Teed-Sparling recommendations. The Secretary argues that Pepperidge "refused, in the face of consistent warnings from its professional ergonomist ... to take the first step to reduce the rate of CTD's at its plant." … We find that the Secretary's characterization of Pepperidge's response to Teed-Sparling's recommendations is inaccurate. Pepperidge did take actions based on Teed-Sparling's recommendations. Further, Teed-Sparling did recommend some actions to reduce repetition, and Pepperidge took action on these recommendations.

[detailed explication of what Pepperidge Farm did to lessen the hazard omitted here]

… the means of reducing repetition can take a number of forms. Here, they include 1) automation; 2) the rotation of workers among tasks involving greater and lesser repetitions; 3) the reduction of conveyor belt speed or cookie drop rate; 4) work pauses (which reduce the number of repetitions per worker); and 5) the addition of workers to the assembly line (which also reduces the number of repetitions per worker)…. Pepperidge took steps that had the effect of reducing certain repetitions. … Pepperidge made additional attempts to eliminate some forms of repetition through automation and better work methods…Thus, we find that the gravamen of the Secretary's criticism is not Pepperidge's general failure to address repetition but its failure to take specific actions advocated by the NIOSH ergonomists who testified for the Secretary. This requires us to consider under the National Realty test whether the Secretary established that these specific actions were feasible and likely to reduce risk…

The Secretary presented the testimony of NIOSH ergonomists Daniel Habes and Vernon Putz-Anderson to establish that Pepperidge could have taken the following additional actions to abate the hazards: (1) adding workers to each of the lines; (2) introducing micropauses into the conveyors to interrupt the work flow periodically; (3) reducing the line speeds; and (4) rotating employees out of highly repetitive jobs to less repetitive ones…. [W]e conclude that with regard to three of the additional means of abatement which she sought, the Secretary has not established their feasibility at Pepperidge's Downingtown plant. With respect to the addition of employees to the line, the Secretary has arguably met her burden of demonstrating feasibility by showing on occasion the company did add workers. However, under all the circumstances and noting that Pepperidge has followed an incremental process approach, we cannot find that the Secretary has met her burden of showing that this measure would materially reduce the hazard.

On this record, we conclude that the Secretary has failed to establish that the process engaged in by Pepperidge to abate the ergonomics hazards at Downingtown was insufficient. Further, the Secretary has not shown that the additional steps not taken by Pepperidge were feasible and that their efficacy in reducing the hazard was so compelling that the failure to have implemented them by the time of the inspection rendered Pepperidge's process inadequate. Accordingly, we uphold the judge's dismissal of this citation item.

In these cases the Commission addresses for the second time issues relating to ergonomics hazards under 29 U.S.C. §  654(a)(1), section 5(a)(1) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § §  651-678 (1970) ( "the Act"). … In the cases now before us we are asked to consider whether nursing assistants ("NA's") who experience LBP while lifting and moving residents in nursing homes were exposed to a recognized hazard in violation of section 5(a)(1). …

 Beverly Enterprises, Inc. ("Beverly") is a for-profit corporation which, at the time these cases arose, operated over 800 long-term care (nursing home) facilities in the United States. The Secretary conducted an inspection following complaints by employees of unsafe working conditions at five Beverly nursing homes in Pennsylvania…The Secretary then issued citations alleging that Beverly violated section 5(a)(1) at these five facilities because the lifting and transferring tasks performed by its NA's exposed them to the hazard of injuries to the back and upper extremities. …

FACTS

A substantial number of the residents at these nursing homes are unable to stand, support themselves, or move from place to place without the assistance of the NA's. Generally speaking, Beverly recognizes two categories of residents depending upon the level of assistance required – those who can bear some weight but require some degree of assistance in getting around and those who are completely non-weight-bearing. Those who cannot assist at all include "contracted" residents, that is, residents who have nonfunctional limbs drawn up close to the body. There are also some residents who are regarded as combative, that is, resistant to being lifted.

NA's perform a number of tasks involving lifting, moving, or transferring residents including weighing residents, dressing them, helping them to the bathroom, and taking them to get a shower or bath or to the dining room or beauty shop. Depending upon their needs, residents may be lifted or transferred between their bed and wheelchair or other transportation means, between their means of transportation and the commode or shower chair, between the shower chair and the commode, and to and from the scale chair or tub chair. Residents who cannot sit up in a wheelchair are lifted onto and off of a geri-chair, gurney, or lounge chair when they are taken to a shower, the residents' lounge, or back to bed. Totally bedridden residents must periodically be repositioned in the bed and moved in order to be washed, dressed, and have their bed pads changed, which involves some lifting up off the bed… Depending upon the facility and the level of dependency of the residents, the number of residents assigned to each NA varied from a low of 7 to a high of 18, and the number of times each resident would have to be lifted each day varied from 5 to 10. Generally speaking, NA's could be expected to perform approximately 50-55 lifts per day.

A common solo lift method is the "hug" lift. The NA will either carry a light resident as one would carry a baby or, more commonly, will stand either facing or behind the resident, put her legs around the resident, place her arms around the resident under the resident's shoulders or around the waist, and lift and pivot the resident onto the chair or bed…[U]nless the resident is a partial-assist, the NA will bear the full weight of the resident, generally between 100 and 200 pounds, although some residents are much heavier. In a 2-person lift method, one NA will lift the resident's back and underarm area while another NA lifts the resident under the knees, or alternatively both NA's will lift the resident from under the arm on each side… Residents who are bedridden and heavy have to be lifted from bed by three NA's, one lifting the arms, one lifting the feet or legs, and one in the center pulling the sheet or pad under the resident. Incapacitated residents such as stroke victims may also be lifted on a blanket by two to four NA's according to the weight of the resident. One NA recounted an incident in which six or seven NA's lifted a resident who weighed over 300 pounds from bed to a gurney.

None of the facilities had any established procedures for an NA to obtain assistance to perform a 2-person lift other than asking other NA's for help, and it was not mandatory for one NA to assist another. There was consistent testimony by NA's that frequently they performed solo lifts where two NA's were really needed because they were unable to locate another NA, and supervisory nursing personnel were unavailable or unwilling to assist. …Mechanical lifts such as the Hoyer lift were not always readily available…

The parties do not dispute that there are no written industry rules or standards regarding the types of lifting techniques that should be used for residents of different weights or the types of residents who should be lifted by mechanical lifts. NA's were not given any other guidance as to what factors to take into account or how to determine what lifting method was appropriate for any particular resident. Beverly's position is that in accordance with recognized social policies regarding restorative care, no general corporate policy or guidelines are possible because the appropriate method can only be determined on a case-by-case basis through an evaluation of each resident using accepted nursing criteria.

Beverly provided a basic orientation to new employees, covering such subjects as taking residents' vital signs, fire hazards, and how to make beds…[N]ew hires were shown what method to use to lift each resident by other NA's with whom they were assigned to work for initial on-the-job training ranging from a few days to two weeks. However, neither the orientation or initial on-the-job training gave NA's specific instruction in how to determine, or what criteria, such as weight, to take into account in deciding, whether a given resident should be lifted by one NA or two or by a mechanical lift, nor were they shown how to transfer combative or contracted residents... According to some NA's, they were told that if a resident "looked" too heavy, they "felt" they could not do the lift, or they were not "comfortable" lifting a resident without assistance, they should request help, and some NA's denied even having been given this instruction. As several NA's put it, whether to use the hug method or 2-person lift or mechanical lift is a matter of the NA's "judgement" [sic] or "decision."…

Training was also given through the "Lift with Care" program, which Beverly acquired in 1987. "Lift with Care," which addresses prevention of back injuries through application of ergonomic principles, is a training system for health care workers produced by a company named "Visucom." It consists of an instructor guide, employee handouts, videotapes, and practice exercises covering six basic lifts or transfers: turning a resident, moving a resident up in bed, moving up in a chair, ambulation, transferring from bed to chair, and transferring from chair to bed. …The only specific lifting techniques prescribed under the program are that two NA's should turn residents and move them up in bed or in a chair. Under "Lift with Care," other operations, such as moving a resident from bed to chair, may be performed by only one NA "if the patient is able to assist and is not too heavy," but the term "too heavy" is not defined, nor were NA's instructed as to what weights were safe to be lifted by one or two persons. "Lift with Care" also did not include any training with respect to combative residents. The program does not show how to use mechanical lifts because there are so many different types, nor does it describe when mechanical lifts should be used. …

Beverly's supervisors testified generally and consistently that they would customarily observe NA's as they were working and would correct any NA they observed using an improper lifting technique. Blue Ridge and Monroeville have a written progressive disciplinary program, and an improper lift could easily be detected either by the Charge Nurse or nursing supervisor who makes rounds every two hours. Richland Manor was in the process of implementing a disciplinary program which would focus particular attention on situations in which one NA performed a lift that was supposed to be done by two persons. In addition, the NA's providing on-the-job training would keep supervisors informed as to the progress of the new hires, and those who needed further instruction would be sent back to orientation or discharged if they did not show proper transferring and lifting performance. There is some evidence that NA's had received corrective instruction in proper lifting techniques or were reprimanded for failure to lift properly.

… A number of Beverly NA's testified regarding LBP or back strain they experienced while lifting or moving residents. In many instances NA's not only were unable for some period of time to perform their normal daily activities both at work and at home as a result of the LBP they suffered but were forced to take time off from work or were instructed to take a temporary absence from work in order to recover. Absences from work ranged from a few days to several weeks and in a few cases employees were out of work for six months to over a year. This testimony was corroborated by several different types of documentary evidence: workmen's compensation claim forms and related reports; OSHA 200 logs of occupational injuries and illnesses; literally hundreds of "BE-122" forms, which are accident report forms Beverly's supervisors are required to file whenever an employee is injured; and reports showing the amounts paid out for workmen's compensation claims which also contain information as to what the claimant alleged was the basis of the claim. A review of these documents reveals a considerable number of complaints of LBP or lower back strain attributed to lifting or transferring residents. Based on this evidence, the Secretary's compliance officers concluded that there were "numerous" injuries to NA's resulting from lifting, transferring, and moving residents resulting in lost work time

DISCUSSION AND ANALYSIS

Definition of the Recognized Hazard

To establish a violation of section 5(a)(1) of the Act, the Secretary must prove that an activity or condition in the workplace presented a hazard, that the employer or its industry recognized this hazard, that the hazard was likely to cause death or "serious physical harm," and that a feasible and effective means of abatement existed by which the employer could eliminate or materially reduce the hazard. As part of her burden to prove these elements, the Secretary must define the alleged recognized hazard in a manner that gives the employer fair notice of its obligations under the Act by specifying conditions or practices which are within the employer's control.

Existence of the Hazard in Beverly's Facilities

… The Benzene decision dealt with the Secretary's authority to prescribe standards under section 6 of the Act, and there is no indication in the Court's decision as to the applicability of a "significant risk" analysis to recognized hazards alleged under section 5(a)(1). As Judge Frye [the ALJ in this case below] noted, however, the Commission has applied a significant risk analysis to health hazards under section 5(a)(1). In Waldon, the Commission held that the Secretary had the burden to show a "significant risk" that nurses and NA's could contract the Hepatitis B virus through contact with the blood or other body fluids of nursing home residents. In Kastalon, where the employer was cited under section 5(a)(1) for exposing its employees to a carcinogen, the Commission held that the Secretary must prove that employees were exposed to a suspected carcinogen in an amount which presented a significant risk of harm.

… In its Benzene decision the Court emphasized that there is no fixed degree of likelihood that the hazard will occur which must be shown in order for the risk to be "significant" and that the level of risk does not have to be established to the point of mathematical predictability. The Court observed that "the requirement that a 'significant' risk be identified is not a mathematical straitjacket" and that the Secretary's obligation was to "make a rational judgment about the relative significance of the risks associated with exposure to a particular carcinogen." 448 U.S. at 655, 656-57 (emphasis added). … Under a significant risk analysis, the Secretary need not establish a direct causal relationship between the working conditions in question and the harm to be prevented. As the Seventh Circuit observed in its decision upholding the Secretary's bloodborne pathogens standard, 29 C.F.R. §  1910.1030, “the idea behind requiring universal precautions for health care workers is to protect those workers in any situation in which there is a nontrivial risk of physical contact with a patient's blood .... OSHA was required neither to quantify the risk to workers' health nor to establish the existence of significant risk to a scientific certainty.” American Dental Assn. v. Martin, 984 F.2d 823, 827 (7th Cir.), cert. denied, 510 U.S. 859 (1993)….

…it is undisputed that there have been numerous complaints by Beverly NA's of LBP experienced during lifting and transferring operations. Beverly's LWDI [Lost Work Day Incidents] was discussed by Dr. Roger C. Jensen, an industrial engineer specializing in ergonomics and safety engineering, who appeared for the Secretary as an expert witness in the field of injury data analysis particularly injuries among nursing personnel including NA's. …His results showed that the difference between the LWDI for NA's and for other employee groups averaged over three years (over 1990-91 for Monroeville and 1991-92 for Blue Ridge) ranged from 7.4 times greater at Richland Manor to 3.4 times greater at Monroeville, and the LWDI for four of the Beverly facilities exceeded the national average for nursing homes by as much as two to three times … He also observed that the national average for nursing homes was more than twice the average rate for all of general industry. He then gave his opinion that in addition to the fact that the nursing home industry has high injury rates as compared with general industry, NA's in particular are subject to the highest injury rates, and of these the most common kind of injuries are back and upper extremity injuries "associated with" lifting and transferring of residents. He based this opinion on injury studies by himself and others and stated that the conclusions reached in these studies were corroborated by Beverly's own LWDI rates.

… The record in these cases includes two documents describing criteria for evaluating lifting tasks issued by the National Institute for Occupational Safety and Health ("NIOSH"). The first of these documents is the initial NIOSH "Work Practices Guide for Manual Lifting" issued in 1981, which sets forth a formula, known as the NIOSH lifting equation, for determining a safe level of lift. The second document is a research paper written by Dr. Garg and others discussing revisions to the NIOSH lifting formula that were made in 1991 by a committee of which Dr. Garg was a member. The NIOSH equations rely on the data compiled by various researchers on the biomechanical, epidemiological, psychophysical and physiological bases for lower back pain and provide a means of analyzing lifting and loading jobs for their level of risk. The 1981 NIOSH equation recommended an action limit ("AL") and a maximum permissible limit ("MPL") of three times the AL. As the researchers who wrote the document explaining the subsequent NIOSH equation stated, loads below the AL were considered to present little risk for most workers; between the AL and MPL there would be an increased risk for some but not all workers, and lifting above the maximum constituted a "significant risk" of LBP for most workers. … While NIOSH recognized the difficulty of quantifying the degree of risk associated with measurements of the lifting index, NIOSH nevertheless found sufficient evidence to indicate that the lifting criteria can reliably predict the risk of LBP. … For its part, Beverly claims there is no basis on which to connect the NIOSH lifting equation with conditions in the health care industry…

[With regard to epidemiological studies] [W]e find that the epidemiologic studies in this record, particularly the prospective studies, establish a sufficient degree of association between lifting and LBP in NA's to support the conclusion that Beverly's lifting practices are hazardous… [We conclude] that lifting is a known and recognized risk factor for LBP and there is a meaningful correlation between lifting and the incidence of LBP...

We find on the scientific evidence presented that manual lifting of residents is a known and recognized risk factor for LBP. Considering also the evidence showing that the frequency and manner in which Beverly's NA's performed their assigned tasks exposed them to compressive forces in excess of limits well-established and accepted in the scientific community, and that Beverly's working conditions resulted in numerous lost-time incidents and prevented Beverly's NA's from performing their usual daily activities, we conclude that the manual lifting of residents was shown on this record to be a hazardous work practice and that Beverly controls the methods used to perform the lifting.

We now turn to the remaining elements of a section 5(a)(1) violation: recognition of the hazard, the potential for serious physical harm, and the existence of feasible abatement measures. …As we have said, Beverly's own internal reporting forms contain numerous instances of reports by employees of back pain while moving residents. Benesh, Beverly's corporate safety and loss control manager, regularly visited Beverly's facilities to discuss workmen's compensation issues and would use these reports during those visits. Zoesch, Beverly's loss control director, who testified that back injuries were the most common of the workmen's compensation claims and that most of those back injury claims occur from resident lifting and transferring or resident care generally, also testified in this regard that Beverly's experience was similar to that of the nursing home industry generally. As part of a settlement with OSHA at a Beverly facility in Connecticut, Beverly hired an ergonomist who studied the injuries reported in that facility and concluded that a primary factor was aggressive or unanticipated movements by residents.

In June 1991 Beverly instituted a "lost time hotline," a program under which each facility was required to report to the corporate office and to the respective regional office by telephone any injury resulting in lost time of one day or more. This report includes a description of the cause of the injury and methods the facility believes could prevent recurrence. The purpose of this program was to increase the awareness of lost time injuries at the corporate level, specifically the vice-presidents of operations. In order to encourage reduction of claims, Beverly periodically distributed lists of the facilities having the greatest workmen's compensation costs. Facility managers were required to work with area managers and regional staff "to establish an action plan to address those high costs."

Zoesch described Beverly's response to the numerous workmen's compensation claims, including training programs such as "Lift with Care," personal protective equipment, and safety incentive and accident prevention programs. … In October 1991, Beverly's Northeast region was directed by Beverly's corporate headquarters to institute a policy under which it would provide and require all NA's to wear a device known as a "ProFlex Back Support." … Beverly also instructed its administrators that their safety programs should include provisions addressing the use of both the back support and a device known as a "gait belt"… The record also shows that Beverly's regional offices performed "Human Resource Audits," the purpose of which was to identify "problem areas" in Beverly facilities. One such audit faulted Blue Ridge for not using gait belts to assist in moving residents and for having an inadequate number of Hoyer lifts. Generally speaking, the evidence presented shows that the Beverly facilities here, as well as Beverly's higher level corporate management, recognized that there was a need for acquiring additional mechanical hoists.

It is well-settled that in order to meet her burden of proof, the Secretary must show that the hazard was recognized either by the individual employer or its industry.  Beverly's position is that the incident reports, OSHA logs, and workmen's compensation documents as well as the precautions it took do not establish awareness on its part that manually lifting non-weight-bearing residents is hazardous because such lifting practices are normal procedures commonly used in the nursing home industry. Beverly observes that the hug method of lifting is specifically taught through the Red Cross program which is a legally mandated training program for NA's. Beverly cites Pelron, 12 BNA OSHC at 1835, 1986-87 CCH OSHD at p. 35,872, as support for the proposition that customary work activities cannot be a "recognized" hazard. Beverly also contends that workmen's compensation records in particular do not show knowledge of "specific hazardous conduct" because compensable claims result from more than just lifts of non-weight-bearing residents and because workmen's compensation costs depend upon factors other than just the nature of the work activity itself, such as the length of disability, the wage rate, and the cost of the medical care involved. Similarly, Beverly argues that the ProFlex belt and "Lift with Care" programs were intended to reduce workmen's compensation costs and therefore do not evince knowledge of a hazard to its employees. As to "Lift with Care," Beverly claims that neither that program nor the NIOSH guidelines state that lifting the weight of a resident is a hazardous practice.

… The fact that Beverly's work practices are typical of those in the industry as a whole does not necessarily establish that Beverly would not understand those practices to be hazardous. … Moreover, as the Commission observed in Pepperidge Farm, warnings by or to company personnel regarding the existence of a hazard are more persuasive on the issue of recognition than purely voluntary safety precautions. The record here shows that Beverly's managers at the highest level of the corporation recognized the hazard posed by its lifting practices and warned Beverly personnel of the lifting hazard. Similar warnings were also conveyed by the manufacturer of the Pro-Flex belt and distributed by Beverly to its employees….The parties agree that the test for determining industry recognition of a hazard is the knowledge or understanding of safety experts familiar with the workplace conditions or the hazard in question.  Beverly claims that Drs. Owen and Jensen fail to meet the threshold requirement of being experts familiar with the industry because neither has sufficient actual experience with nursing homes and that, in any event, their testimony fails to establish that the nursing home industry regards any particular type of lift as hazardous. Beverly does not view the NIOSH lifting equations as evidence of industry recognition because research literature does not demonstrate the standard of knowledge in the relevant industry and because the NIOSH documents are merely advisory. We address these contentions in turn.

The standard for industry recognition is not the knowledge or understanding of experts directly associated with the specific industry in question. So long as the experts who regard the practice or work operation as hazardous are familiar with the conditions in the industry, the Commission does not require that they be employed in that industry…We believe that a preponderance of the evidence supports the conclusion that experts familiar with the nursing home industry perceive lifts such as those performed by Beverly to be hazardous.

We also reject Beverly's criticisms of the NIOSH Lifting Equation as evidence of industry recognition. There is general acceptance in the scientific community of the methodology upon which the NIOSH lifting index is based. Although Beverly challenges the NIOSH document as merely advisory, that alone is not a sufficient basis for concluding that the document does not bear on the issue of industry recognition. Both the Commission and appellate courts have consistently held that voluntary industry codes and guidelines are evidence of industry recognition. The evidence here shows that the experts consider the NIOSH Lifting Index applicable to nursing homes, and Beverly's own "Lift with Care" program recognizes and applies the NIOSH compressive force limits. We therefore deem this evidence relevant to establishing industry recognition of the cited hazard.

Potential for Serious Physical Harm:  Under the language of section 5(a)(1), the Secretary must show that the recognized hazard is one which is "causing" or is "likely to cause" "death or serious physical harm." The parties agree that this language does not require the Secretary to show that an accident is likely but rather that if an accident were to occur, death or serious physical harm would be the likely result. Where an occupational illness can result from exposure to a chemical compound, the Secretary is not required to prove a substantial probability that an exposed employee will contract the disease but only that death or serious harm is likely if the disease does occur. The question before us, therefore, is whether an employee who experiences LBP is likely to suffer serious physical harm. 

The Secretary notes that Beverly's NA's have experienced "debilitating injuries" which have resulted in extensive lost time from work and inability in some cases to perform other normal activities. … Beverly's position is that LBP is not serious physical harm because it is merely a symptom, not an injury, and there is no accompanying tissue damage or medical pathology. Beverly also notes that LBP is a common occurrence outside the work environment and that most instances of LBP are of fairly short duration; only a small percentage of LBP sufferers experience LBP for any appreciable length of time…. 

While the Commission's only other decision involving ergonomics, Pepperidge Farm, addresses the issue of the proof needed to establish serious physical harm, the issue of whether Pepperidge Farm's lifting tasks exposed employees to serious physical harm was not before the Commission as Pepperidge Farm did not contest the judge's ruling below on the existence of a hazard. With respect to injuries resulting from repetitive motion such as upper extremity musculo-skeletal disorders ("UEMSD's"), the Commission concluded that "physical disorders that so adversely affect employees that they are disabled from doing their jobs are serious physical harm ... even if the disability is not permanent." 17 BNA OSHC at 2032, 1995-97 CCH OSHD at p. 44,045 (emphasis added). We also note that in Pepperidge Farm, the Commission found serious physical harm based on the existence of a physically detectable and identifiable injury that can be treated by surgery.

The lead case on the application of the "serious physical harm" criterion to situations in which there is no recognized pathoanatomic damage is GAF Corp., 9 BNA OSHC 1451, 1456-57, 1981 CCH OSHD ¶  25,281, p. 31,246 (No. 77- 1811, 1981), where employees were exposed to excessive levels of airborne compounds of silver. The effects of this over-exposure included argyria, a permanent and irreversible discoloration of the skin resulting from an increase in melanin levels. The judge concluded that because the results of silver exposure are "cosmetic" in nature, they did not rise to the level of serious physical harm. On review, the Commission agreed that the evidence failed to show any "systemic implications to silver exposure" but held that an employee's "permanent disfigurement" was a sufficient basis on which to find a serious violation. …

The facts here show that LBP has a substantial and significant effect on the affected employees' ability to perform their normal activities and effectively disables employees for periods of time which are extensive in some instances. We conclude that in view of the debilitating effect on employees and the potential duration of the disability, LBP is properly considered serious physical harm.

Feasibility

The last remaining element of proof of a violation of section 5(a)(1) is the existence of feasible means of abating or correcting the recognized hazard. The Secretary must specify the proposed abatement measures and demonstrate both that the measures are capable of being put into effect and that they would be effective in materially reducing the incidence of the hazard. The Secretary must also show that her proposed abatement measures are economically feasible. The question of whether technologically and economically feasible means exist by which Beverly could have materially reduced the hazard of unsafe lifting to its NA's raises a number of factual matters about which the parties strongly disagree.

"Feasible" means economically and technologically capable of being done. … The question is whether a precaution is recognized by safety experts as feasible, and not whether the precaution's use has become customary.

Here, the Secretary has proposed the following abatement measures: mechanical assist devices, revised policies and work practices, and training. To a limited extent, some of the measures are already in place at the five facilities, e.g., Hoyer mechanical lifts, the "Lift-With-Care" and "Pro-Flex Back" programs, and some on-the-job training on lifting techniques. The question of whether these abatement measures will eliminate or materially reduce the potential for harm to the back and upper extremities is complicated by numerous evidentiary disputes as to the proper method for lifting certain residents. These include, whether combative residents should be lifted in mechanical hoists, the efficacy of types of mechanical lifts, whether the configuration and location of the beds and the structural design of bathrooms in certain residents' rooms would preclude use of mechanical lifts in those rooms, and whether the extensive use of hoists as the Secretary proposes would conflict with the restorative objective of long-term geriatric care. The resolution of these disputed issues depends on the weight to be assigned to and the inferences to be drawn from conflicting testimony.

Similar difficulties are presented by the evidence of the economic feasibility of the proposed abatements. For example, the Secretary's expert, Mark Perry, an accountant admitted as an expert with respect to the accounting practices in nursing homes including the subject of reimbursement to nursing homes by Medicare and Medicaid, testified to the costs of abatement based on the Secretary's proposals that Beverly purchase a specified number of mechanical lifts and transfer belts and implement a program for their use. In rebuttal to the Secretary's case, Beverly and its expert, Michael Maher, a partner in the accounting firm of Coopers & Lybrand who was admitted as an expert in the field of health care financing, prepared two projections of the cost to Beverly to comply with the Secretary's abatement proposals. These experts dispute items as basic as the cost of equipment, supplies, training, additional NA hours required, and structural alterations. These cases should be remanded to allow both parties to clarify the conflicting testimonial and documentary evidence on feasibility, to enable a judge to make initial findings of fact on the record, and if warranted, to permit the parties to supplement the record with relevant evidence.

Once these factual disputes are resolved by the judge on remand, the issue of Beverly's ability to afford the costs of the abatements must be decided. In cases involving the general duty clause, the Commission has generally held that an abatement method is not economically feasible if it "would clearly threaten the economic viability of the employer." National Realty, 489 F.2d at 1266 n.37. The Secretary asserts that Beverly can adopt and absorb the costs of the proposed abatement measures with "no threat to either its economic viability or the company's long-term profitability and industry competitiveness." Waldon, 16 BNA OSHC at 1063, 1993 CCH OSHD at p. 41,156.

… Judge Frye dismissed the citations against Beverly on the basis that the Secretary did not show the existence of a hazard. As a result, the judge did not make findings of fact and conclusions of law with respect to the other elements of a section 5(a)(1) violation. The Commission majority has reversed the one finding the judge did make and found that the hazard of LBP did exist at Beverly's workplaces; it has also found the hazard was recognized and that it was causing or likely to cause serious physical harm. However, in order to decide the issue of whether a feasible means of abatement existed to eliminate or materially reduce the hazard, the record may need to be supplemented  in order that a more accurate and credible determination of the costs of compliance at the five facilities and of Beverly's financial condition may be made. In light of the not insubstantial but inconclusive evidence in the record, this issue is remanded for initial consideration by a judge.

In July 1991, before these OSHRC decisions were issued in 1997 and 2000, more than thirty labor organizations petitioned OSHA for an Emergency Temporary Standard to address ergonomic hazards. The petition was denied in 1992, but OSHA committed to moving forward with an ergonomics standard – similar to the promise to regulate Cr(VI), discussed later in these materials.  An Advance Notice of Proposed Rulemaking was issued in August 1992 [57 Fed. Reg. 34192 (1992)], and in 1995 OSHA circulated an initial draft of a proposed standard to stakeholders.  This was occurring during the same period that the citations against Pepperidge Farm and Beverly Enterprises were being litigated.  Industry opposition to rule-making grew, and over the subsequent few years Congress attached a rider to OSHA’s appropriations bill that prohibited OSHA from spending any funds on developing an ergonomics standard.  The last of these riders expired in September 1998, and ergonomics immediately became the top priority for the agency. 

The agency aggressively pursued the development of a broad ergonomics standard at this point, convened a panel to comply with its SBREFA requirements, and issued a NPRM on November 23, 1999. 

OSHA estimated that 1.8 million workers annually had MSDs related to work design factors and that the standard would prevent 460,000 of these injuries.  On the costs and benefits: OSHA predicted a cost reduction for employers of $9 billion a year, and a cost of the standard at $4.5 billion.  But one industry group argued that implementation of the standards would in fact cost as much as $99 billion a year.

On November 14, 2000, in the waning days of the Clinton Administration, OSHA issued a final rule.  65 Fed. Reg. 68262-01 et seq. (2000).  The standard required employers to reduce the incidence of musculoskeletal disorders (MSDs) that result from lifting, assembly, and other cumulative or repetitive stresses. The standard specifically provided for a “Work Restriction Protection” (WRP).  This WRP gave injured workers specific protections, allowing for work limitations in a current job or in a job to which the worker transferred, as well as for temporary transfers to another job (with wage retention).  It also provided for some wage retention for workers who were unable to work (outside of workers’ compensation). 

The rulemaking process before the standard was issued was long and laborious.  Industry organized against any regulatory intervention. Attacks were made on the underlying science, on the economics, and on the WRP, a particularly contentious issue.  Some of the WRP legal attacks focused on the following provision in the OSHAct, 29 U.S.C.A. §653(4):

Nothing in this chapter shall be construed to supersede or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.

A massive amount of evidence was introduced at the lengthy public hearings and during the comment period.  The final rule itself was 24 pages long and retained the WRP and extensive requirements for hazard removal.  The federal register notice ran for over 600 pages, containing lengthy discussion, response to comments, and justification.  OSHA’s chronology leading up to  the development of the standard is set out below and can be found at 65 Fed. Reg.  68262-01. 

On January 8, 2001, eight and a half years after the rulemaking had been initiated, the ergonomics rule went into effect.  Twelve days later, President Bush was sworn into office.  On March 6 – within the 60 day window allowed for Congressional review of agency rulemaking under the Congressional Review Act – the Senate by a vote of 56-44 passed a resolution repealing the regulation. The House followed the next day, and, on March 20, 2001, President Bush signed the repeal.  Since the CRA prohibits agencies from promulgating standards that are substantially similar to the one that has been repealed, 5 U.S.C.A. § 801(b)(2), this put an end to OSHA’s attempts to issue a standard regulating these hazards. 

OSHA subsequently issued ergonomics guidelines, which constitute advice rather than mandatory regulations, for nursing homes, poultry processing, and retail groceries.  New policy proposed by the Office of Management and Budget would require that these kinds of guidelines be issued for notice and public comment.  This would have further restricted the ability of OSHA to issue guidelines like this. But on March 9, 2015, the U.S. Supreme Court ruled in a non-OSHA case that agency interpretive guidance is not subject to the notice and public comment requirements of the Administrative Procedures Act.  Perez v. Mortgage Bankers Ass'n, 575 U.S. 92 (2015)

The current OSHA approach to ergonomics can be found on the OSHA website: https://www.osha.gov/ergonomics. Take a look at this, and think about how adequate this information is.  NIOSH also has considerable information posted on its website: https://www.cdc.gov/niosh/ergonomics/index.html

Is this information adequate to provide protections to workers?

The Oxfam Report, described above provides a good summary of Why Doesn't OSHA Do More to Protect Poultry Workers?  

March 1979 –  OSHA hires its first ergonomist.

Early 1980s - OSHA begins discussing ergonomic interventions with labor, trade associations and professional organizations. OSHA issues citations to Hanes Knitwear and Samsonite for ergonomic hazards.

August 1983 - The OSHA Training Institute offers its first course in ergonomics.

February 1986 - OSHA publishes “Working Safely with Video Display Terminals,” its first publication concerning ergonomics as it applies to the use of computer technology

May 1986 - OSHA begins a pilot program to reduce back injuries through review of injury records during inspections and recommendations for job redesign using NIOSH's Work Practices Guide for Manual Lifting.

October 1986 - The Agency publishes a Request for Information on approaches to reduce back injuries resulting from manual lifting. (57 FR 34192)

November 1988 - OSHA/Iowa Beef Processors reach first corporate-wide settlement to reduce ergonomic hazards at 8 IBP locations nationwide.

July 1990 - OSHA/UAW/Ford corporate-wide settlement agreement commits Ford to reduce ergonomic hazards in 96 percent of its plants through a model ergonomics program.

August 1990 - The Agency publishes “Ergonomics Program Management Guidelines for Meatpacking Plants.”

Fall 1990 - OSHA creates the Office of Ergonomics Support and hires more ergonomists.

November 1990 - OSHA/UAW/GM sign agreement bringing ergonomics programs to 138 GM plants employing more than 300,000 workers. Throughout the early 90s, OSHA signed 13 more corporate-wide settlement agreements to bring ergonomics programs to nearly half a million more workers.

July 1991 - OSHA publishes “Ergonomics: The Study of Work,” as part of a nationwide education and outreach program to raise awareness about ways to reduce musculoskeletal disorders.

July 1991 - More than 30 labor organizations petition Secretary of Labor to issue an Emergency Temporary Standard on ergonomics.

January 1992 - OSHA begins a special emphasis inspection program on ergonomic hazards in the meatpacking industry.

April 1992 - Secretary of Labor denies petition for an Emergency Temporary Standard but commits to moving forward with section 6 (b) rulemaking.

August 1992 - OSHA publishes an Advance Notice of Proposed Rulemaking on ergonomics.

1993 - OSHA conducts a major survey of general industry and construction employers to obtain information on the extent of ergonomics programs in industry and other issues.

March 1995 - OSHA begins a series of meetings with stakeholders to discuss approaches to a draft ergonomics standard.

January 1997 - OSHA/NIOSH conference on successful ergonomic programs held in Chicago.

April 1997 - OSHA introduces the ergonomics web page on the Internet.

February 1998 - OSHA begins a series of national stakeholder meetings about the draft ergonomics standard under development.

March 1998 - OSHA releases a video entitled “Ergonomic Programs That Work.”

February 1, 1999 - OSHA begins small business (Small Business Regulatory Enforcement Fairness Act (SBREFA) review of its draft ergonomics rule, and makes draft regulatory text available to the public.

March 1999 - OSHA/NIOSH/Institute of Industrial Engineers hold Applied Ergonomics Conference in Houston

April 30, 1999 - OSHA's Assistant Secretary receives the SBREFA report on the draft ergonomics program proposal, and the Agency begins to address the concerns raised in that report.

November 23, 1999 - OSHA publishes its proposed ergonomics program standard.

March 2000 - OSHA/NIOSH/Institute of Industrial Engineers hold Applied Ergonomics Conference in Los Angeles

March-May 2000 - OSHA holds 9 weeks of public hearings and receives 18,337 pages of testimony from 714 witnesses.

November 23, 1999 through August 10, 2000 - OSHA receives nearly 11,000 comments and briefs consisting of nearly 50,000 pages collectively, into the docket of the ergonomics rulemaking.

October 27, 2000 - The Occupational Safety and Health Review Commission finds that manual lifting of nursing home patients is a known and recognized risk factor for lower back pain.

As you can see from the above chronology, corporate wide agreements involving ergonomics had been developed with Iowa Beef Processors in 1988 and Ford in 1990, prior to the issuance of the final (and now long defunct) rule.  There were others, including a settlement with GMC in 1990.  The GMC agreement, for example, included five elements: (1) establishment of an Ergonomics Committee or similar entity that was required to meet regularly; (2) job analysis (to determine presence of hazardous work); (3) hazard control (including engineering as well as administrative interventions); (4) employee training; and (5)  medical management. 

Despite the killing of the standard, OSHA has continued to press ahead with use of the general duty clause to address serious ergonomic risks. You have already seen some general duty citations and thought about the litigation that surrounds them.   

You will recall that at the time that Congress killed the standard, the Beverly Enterprises case was still pending – OSHRC had sent the case back for further evidence on the feasibility of abatement, including the costs of mechanical lifts and revised work practices.  In February 2002, OSHA announced that it had signed a corporate-wide agreement, putting an end to a ten year fight over ergonomic injuries involving Beverly Enterprises, the nation's largest nursing home chain.  Under the settlement agreement, Beverly agreed to withdraw its challenge to pending citations; OSHA dropped the fines it had proposed; and Beverly agreed to purchase mechanical lifting equipment at all of its 240 nursing homes nationwide and to train workers in the use of that equipment.  The settlement preempted the adjudicated OSHRC decision as to whether lifting devices are a "feasible" means of abating a "recognized" hazard.  It also foreshadowed potential effective use of the general duty clause to address ergonomic hazards.

More recently, OSHA has inspected a number of Amazon warehouses ("fulfillment centers"), found extensive injuries, and cited the company using the general duty clause. This is OSHA's largest multi-state enforcement effort involving ergonomics to day. 

Question:  How effective can the use of the general duty clause can be in correcting industry-wide hazardous practices?

In order to track what the hazards are at work – and then, hopefully, do something about them -- employers are required to report injuries and illnesses in their workplaces on forms called OSHA 300 logs.  As part of this, they must categorize the injury or illness.  The current categories are injury, skin disorder, respiratory condition, poisoning, hearing loss and “other illness.”  Sprain and strain injuries to muscles, joints, and connective tissues are classified as injuries when they result from a slip, trip, fall or other similar accidents.  Musculoskeletal disorders (MSDs), which are often the result of repetitive overuse of a part of the body, fall within this “all other illnesses” category.

OSHA has repeatedly tried to have a separate category for MSDs. When the Clinton administration designed new OSHA 300 Logs, there was a separate column to report MSDs on the form. During the Bush Administration, OSHA eliminated the column for recording MSDs, despite opposition from the labor and scientific communities.  In 2010, OSHA proposed a revision of its recordkeeping regulation to restore the column on the reporting form to better identify work-related musculoskeletal disorders (MSDs).[1] In 2011, OSHA withdrew the proposal from OMB consideration.  When a revised recordkeeping rule was issued (effective January 2015), the MSD column had not been restored. While the OSHA 301 forms require detailed information regarding any injury that results in time away from work, these forms are more difficult to search for the basic data.  

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[1] See  https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=FEDERAL_REGISTER&p_id=21314

States with approved state plans are able to move ahead with standard setting in areas in which OSHA has been stymied.  The Congressional Review Act has no effect on the rights of states – it only affects federal rules. 

California, as one example, has a standard governing ergonomics – a much simpler standard than was proposed at the federal level:

§5110. Repetitive Motion Injuries.(a) Scope and application. This section shall apply to a job, process, or operation where a repetitive motion injury (RMI) has occurred to more than one employee under the following conditions:

(1) Work related causation. The repetitive motion injuries (RMIs) were predominantly caused (i.e. 50% or more) by a repetitive job, process, or operation;

(2) Relationship between RMIs at the workplace. The employees incurring the RMIs were performing a job, process, or operation of identical work activity. Identical work activity means that the employees were performing the same repetitive motion task, such as but not limited to word processing, assembly, or loading;

(3) Medical requirements. The RMIs were musculoskeletal injuries that a licensed physician objectively identified and diagnosed; and

(4) Time requirements. The RMIs were reported by the employees to the employer in the last 12 months but not before July 3, 1997.

(b) Program designated to minimize RMIs. Every employer subject to this section shall establish and implement a program designed to minimize RMIs. The program shall include a worksite evaluation, control of exposures which have caused RMIs and training of employees.

(1) Worksite evaluation. Each job, process, or operation of identical work activity covered by this section or a representative number of such jobs, processes, or operations of identical work activities shall be evaluated for exposures which have caused RMIs.

(2) Control of exposures which have caused RMIs. Any exposures that caused RMIs shall, in a timely manner, be corrected or if not capable of being corrected have the exposures minimized to the extent feasible. The employer shall consider engineering controls, such as work station redesign, adjustable fixtures or tool redesign, and administrative controls, such as job rotation, work pacing or work breaks.

(3) Training. Employees shall be provided training that includes an explanation of:

(A) The employer's program;

(B) The exposures which have been associated with RMIs;

(C) The symptoms and consequences of injuries caused by repetitive motion;

(D) The importance of reporting symptoms and injuries to the employer; and

(E) Methods used by the employer to minimize RMIs.

(c) Satisfaction of an employer's obligation. Measures implemented by an employer under subsection (b)(1), (b)(2), or (b)(3) shall satisfy the employer's obligation under that respective subsection, unless it is shown that a measure known to but not taken by the employer is substantially certain to cause a greater reduction in such injuries and that this alternative measure would not impose additional unreasonable costs.

Cal. Code Regs. tit. 8, § 5110.  (The next section of the California code applies specifically to the health care industry. Cal. Code Regs. tit. 8, § 5120. Health Care Worker Back and Musculoskeletal Injury Prevention.)

The state of Washington also promulgated an ergonomics standard.  It was ultimately repealed in a state-wide voter referendum on an business-backed initiative.  An article in EHSToday described the referendum:

The price tag of the campaign was steep, estimated at $1.5 million but worth it, said supporters. In the weeks before the November 2003 election, television ads and yard signs urged passage of Initiative 841 to repeal Washington's ergonomics standard, scheduled for enforcement in 2005.

The opposition to Initiative 841, mostly labor unions and the state government, was outspent 3 to 1. In fact, state officials are prohibited by law from engaging in a political campaign, so employees of Washington's Department of Labor and Industries (L&I) could not speak out for the ergonomic standard or against Initiative 841 in an official capacity.

Despite low voter turnout, or perhaps because of it, Initiative 841 passed. Mike Wynn, CPE, a vice president at Humantech, a workplace ergonomics consulting firm that does business in Washington, says he was surprised. "The protections for individuals are such that I thought workers would support it."

David Groves, spokesperson for the Washington State Labor Council AFL-CIO, agrees, noting, "The standard contained a lot of concessions to business; survived three years of legislative attempts to repeal, delay and eviscerate it; and survived a court challenge. It is counterintuitive for voters workers to repeal a workplace safety rule, so we thought [Initiative 841] faced an uphill battle. Obviously, we were wrong."

Ultimately, says Groves, voters believed ads claiming the standard was a "job-killer."

Sandy Smith, Ergonomics: What's Next for the State of Washington? http://ehstoday.com/health/ergonomics/ehs_imp_36850

More recently, without a standard in place, the state of Washington moved somewhat aggressively to use the state equivalent of the general duty clause in situations involving ergonomic injuries -- for example, issuing serious citations against Amazon for ergonomics hazards in three warehouses. In July 2024, after a lengthy trial, the ALJ ruled against the state. Appeals of the case are expected. See Lauren Rosenblatt, "Amazon scores another vistory in WA warehouse safety trial," The Seattle Times, Oct. 17, 2024 (available at https://www.seattletimes.com/business/amazon/amazon-scores-another-victory-in-wa-warehouse-safety-trial) 

Meanwhile, as of this writing (December 2024) federal OSHA had continued to pursue general duty ergonomics cases against Amazon warehouses and similar enterprises around the country. It is not clear what direction these actions will take under the incoming Trump Administration. 

The poultry industry

The problems described in the 2013 Report of the Southern Poverty Law Center (SPLC) and the 2015 Oxfam Report regarding the poultry industry have not been solved.  The SPLC Report noted that “OSHA … has no set of mandatory guidelines tailored to protect poultry processing workers.”   So it was with considerable dismay that worker advocates discovered that  the  U.S. Department of Agriculture was considering a proposal to increase the maximum  allowed line speed from 140 birds per minute to 175 per minute, apparently in order to provide some incentive for other changes that would (according to them) improve food safety.  The USDA ultimately (mostly) backed down – the speed of the chicken lines was not increased, but neither was it decreased; the final USDA rule allows a slight increase in the turkey lines, from 51 to 55 birds per minute. 

You can read about it here (among other places).

On Aug. 1, 2014 the U.S. Department of Agriculture and OSHA mailed a joint letter to all poultry plants regarding their responsibility to prevent work-related musculoskeletal disorders.  And OSHA issued extensive guidance to the poultry industry regarding how to address ergonomic risks.  See OSHA, Prevention of Musculoskeletal Injuries in Poultry Processing.

In the meantime, NIOSH issued reports on poultry processing. See Jessica Ramsay & Kristin Musolin, "High Prevalence of Carpal Tunnel Syndrome among Poultry Workers," April 6, 2015 available at https://blogs.cdc.gov/niosh-science-blog/2015/04/06/poultry-workers-cts. 

The fight over the problem in the poultry processing industry continued. In September 2013, a large number of worker advocacy and community organizations filed a petition requesting that OSHA and USDA:

[I]ssue a mandatory occupational safety and health standard regulating work speeds on production lines in meatpacking and poultry industries and to ensure that worker safety is protected in any rulemaking related to line and work speeds in these industries. The standard requested herein would reduce the speed of the processing line to minimize the severe and systemic risks faced by workers in the meatpacking and poultry industries, particularly the prevalence of serious and crippling musculoskeletal disorders (“MSDs”). USDA is requested to incorporate these protections as part of any rulemaking it undertakes that will affect line and work speeds in these industries. 

The groups renewed their request in December 2014.  By letter dated February 25, 2015, OSHA denied the petition, acknowledging the seriousness of the problem, committing to the use of general duty clause citations, but citing its limited resources for the development of new standards. 

On October 26, 2015, OSHA announced a new Regional Emphasis Program on Poultry Processing. This REP noted the high incidence of carpal tunnel and other MSDs in the industry, as well as the prevalence of underreporting of injuries; all inspections will include both safety and health components. 

OSHA also issued several citations for serious violations in poultry processing plants in which they have cited the companies because of MSD risks.  The inspection of Wayne Farms was instigated by a complaint from the Southern Poverty Law Center. The Wayne Farm citation indicated that:

The employer exposed employees in the deboning area to the hazard of developing musculoskeletal disorders (MSDs) while performing prolonger repetive, forceful tasks, often in awkward postures for extended periods.  Job tasks include … load cone, cut shoulder, cut wing, saw wings, pull skin, pull breast, tender pulling, final breast and bone scan.

Recommended abatement action included analysis of the worksite, medical management of employee injuries, training and education, and a wide range of hazard prevention and control activities. The proposed penalty is $7000. The company, Wayne Farms, contested the citation.

According to one blog, Wayne Farms, the company cited here:

[I]s the sixth largest vertically integrated poultry producer in the United States. Its corporate office, based in Oakwood, Georgia, and its Jack plant have a combined estimated 1,115 employees. The company employs approximately 9,800 additional workers in its nine integrated complexes, comprised of nine hatcheries, eight feed mills, nine slaughter processing plants and two further processing plants. Wayne Farms' plants are located in Albertville, Alabama; Decatur, Alabama; Dothan, Alabama; Enterprise, Alabama; Union Springs, Alabama; Danville, Arkansas; Laurel, Mississippi; Dobson, North Carolina; and Pendergrass, Georgia.

Another citation involved a Allen Harim Foods' plant, where OSHA cited the company for exposing employees on the deboning line to MSD hazards. The agency determined that workers performed prolonged, repetitive and forceful tasks without controls in place to prevent injuries.

In a third poultry processing case, OSHA recommended fines of $861,000 against Case Farms Processing and added Case to the Severe Violator Enforcement Program.  The Case Farms citation, issued in August 2015, found extensive and persistence hazards.  In this case, a 17-year-old worker, employed by cleaning subcontractor Cal-Clean, had his left leg amputated from the knee down and a 24-year-old Case Farms employee lost two fingertips. Both workers were fired after the incidents.  OSHA cited Case Farms for two willful, 10 repeated, and four serious safety violations. The agency also penalized Cal-Clean's owner, Callaghan and Callaghan with $179,700 in fines on Sept. 28, for two willful, five serious and three other-than-serious safety violations. Both companies were cited for exposing workers to amputation, fall, electrical and other serious hazards.

The Pilgrim Pride citation – which is included earlier in these materials – is another example.

Most of these citations were settled and there are therefore no reported decisions.  

To add insult to injury, a 2015 ProPublica report, Tyson Foods Secret Recipe for Carving Up Workers' Comp, exposed the industry’s successful attempts to cut back on the availability of compensation for injured workers, focusing on a particular set of events in Iowa.

In 2014, The United States Department of Agriculture (USDA), through its Food Safety and Inspection Service (FSIS), adopted the “New Poultry Inspection System” (NPIS). After considering medical evidence that faster line speeds harm workers by increasing their risk of injury, FSIS retained a line-speed limit of 140 birds per minute (bpm), rejecting a proposal to increase the maximum line speed to 175 bpm.  In 2018, FSIS changed course. After considering an industry request to lift all line-speed restrictions in NPIS plants, FSIS implemented a waiver program through which individual plants could apply for a waiver of the 2014 rule to allow the plant to operate at 175 bpm. FSIS has since granted waivers to several NPIS facilities.

In July 2020, Public Citizen filed a federal lawsuit against USDA on behalf of United Food and Commercial Workers (UFCW), the union that represents workers in ten of the affected plants. The suit alleged that USDA violated the Administrative Procedure Act (APA) by adopting its waiver program without undertaking notice-and-comment rulemaking procedures, by failing to consider adequately the impact of worker safety or the agency’s prior views on the connection between line speeds and worker safety, and by improperly attempting to justify its waiver program as a way to experiment with new technologies. USDA filed a motion to dismiss the lawsuit, arguing that UFCW lacked standing for failure to allege that the line speed increases would harm workers and that worker safety claims fell outside the zone of interests of the statutory scheme. On January 31, 2022, without having ruled on the dismissal motion, the court granted USDA’s motion to have the matter remanded “so that it can reconsider the waiver program given the 'Time-Limited Trials’ it has implemented for swine slaughtering establishments in a similar context. The trials allow eligible swine slaughtering establishments to operate faster line speeds – but also require those establishments to implement worker safety measures agreed to by workers’ representatives and measure the effect of the faster line speed on workers.” United Food and Commercial Workers Union, Local No. 227 et al., v. U.S. Dep’t of Agriculture and National Chicken Council, 2022 WL 278449 (D.C. Cir. 2022). The order required that USDA to provide status reports 90 and 150 days from the date of the order; if the work was not completed within six months, the case would move forward to summary judgement consideration. As of August 2025, there is no further report of this case.

In spring 2020, the first Trump Administration again proposed an increase in line speed in the poultry industry. This policy change would allow chicken companies to routinely speed up their slaughter lines by 25 percent, from an existing rate of 140 birds to 175 birds per minute. The following statement accompanied the proposal, “The proposed amendments would allow certain young chicken establishments to slaughter birds more efficiently while continuing to ensure food safety and effective online carcass inspection.” Note that this proposal did not address any health and safety concerns of workers – it is focused entirely on issues of efficiency and food safety.

This fight is far from over. See the National Employment Project’s June 2020 report, USDA allows poultry plants to raise line speeds, exacerbating risk of COVID-19 outbreaks and injury . According to this report,

In April 2020, 15 large poultry plants requested and received approval from USDA to increase their line speeds, permitting them to kill and process more birds per minute than legally allowed under current USDA regulations. These approvals, knowns as line speed waivers because they waive the requirements of current regulations to limit line speeds, were given to plants owned by Tyson Foods, Wayne Farms, Mountaire Farms, and George’s Processing.

These waivers were granted under the cover of darkness, with no notice to the public and no request for public comment. The plants will now be allowed to speed up their slaughter and production lines by 25 percent, from the legally allowable rate of 140 birds per minutes to a new limit of 175 birds per minute.

As of August 2025, OSHA has continued to post the information and guidance that was available in 2024: https://www.osha.gov/poultry-processing and new inspection guidance issued in 2024, Inspection Guidance for Animal Slaughtering and Processing Establishments | OSHA.gov | Occupational Safety and Health Administration

On March 17, 2025, however, USDA issued the following press release:

(Washington, D.C., March 17, 2025) — U.S. Secretary of Agriculture Brooke Rollins today announced new actions to reduce burdens on the U.S. pork and poultry industries, allowing for greater efficiency while maintaining food safety standards. The directive instructs the Food Safety and Inspection Service (FSIS) to eliminate outdated administrative requirements that have slowed production and added unnecessary costs for American producers.

“America leads the world in pork and poultry production, and we are committed to ensuring our producers remain competitive on a global scale without being held back by unnecessary bureaucracy,” said Secretary Rollins. “Under President Trump’s leadership, we are cutting unnecessary red tape, empowering businesses to operate more efficiently, and strengthening American agriculture –all while upholding the highest food safety standards.”

Under the new policy, FSIS will extend waivers allowing pork and poultry facilities to maintain higher line speeds, ensuring they can meet demand without excessive government interference. Rulemaking to formalize these speed increases will begin immediately. Additionally, FSIS will no longer require plants to submit redundant worker safety data, as extensive research has confirmed no direct link between processing speeds and workplace injuries. These reforms will strengthen U.S. food production, reduce costs for producers, and support a more resilient supply chain.

 As of August 2025, no proposed rule has surfaced.

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Questions regarding the poultry industry:

1. Based on what you have read so far, do you think SPLC should consider suing the Department of Labor to force issuance (or a timetable for issuance) of a new standard to govern risks in the poultry industry? Does it matter which federal administration is in place? Come back to this question after you read about the issuance of the Hexavalent Chromium.

What are the other options?

2. What exactly is the current line speed regulation for poultry processing? Is it adequately safe for workers? How do you think the two agencies -- USDA and OSHA -- should balance the questions of consumer access to inexpensive poultry against the safety of workers doing risky work?

3. If you want to know more about this industry, read Human Rights Watch's Report, Blood, Sweat & Fear, available at https://www.hrw.org/sites/default/files/reports/usa0105.pdf. 

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Health care

With regard to health care, OSHA embarked on an outreach campaign specifically to protect health care workers from hazards that cause MSDs.   As part of the campaign, OSHA provided 2500 employers, unions and associations in the health care industry with information about methods used to control hazards, such as lifting excessive weight during patient transfers and handling. OSHA is also providing information about how employers can include a zero-lift program, which minimizes direct patient lifting by using specialized lifting equipment and transfer tools.  As you can see from the OSHA website , considerable effort has been put into providing as much information as possible to workers and employers in this industry.  Although OSHA discontinued its National Emphasis program on nursing homes in April 2015, it continued to use the general duty clause to address ergonomic injuries in health care, hospitality, meat and poultry processing and other industries where these injuries are common. 

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Warehouses

Meanwhile, there has also been increasing concern regarding risks, particularly ergonomic risks, in the huge warehouses that provide the backbone to the on-time delivery of goods. For background on this, read Primed for Pain, about Amazon's "epidemic" of injuries (https://thesoc.org/amazon-primed-for-pain) and the Washington Post article released on the same day as this report (June 1, 2021) and available at https://www.washingtonpost.com/technology/2021/06/01/amazon-osha-injury-rate/. As of 2024, as noted in the prior section, OSHA has begun to issue citations against Amazon, and Washington State has aggressively (though as yet unsuccessfully) pursued the same company regarding widespread risks. And at the very close of 2024, the U.S. Senate Committee on Health, Education, Labor, and Pensions issued a scathing report that will undoubtedly fuel further discussion regarding these issues. See The Injury-Productivity Trade-off HELP Committee Report

You will recall that OSHA promulgated hundreds of interim standards early in the 1970s.  These standards were specifically authorized under the statute and were intended to be temporary – essentially to give the agency a jump start in regulating workplace hazards. 

Since AFL-CIO v. OSHA (the Air Contaminants Case) was decided in 1992, there has been no successful attempt to revise these standards as a group. [If you have not yet read this case, read it now.] A few of the PELs have been withdrawn, as no longer needed. As the science has developed, more protective levels of protection have been recommended as consensus standards by both governmental and non-governmental scientific groups. To some extent, employers have followed these recommendations, without any action from OSHA. Nevertheless, some workers remain inadequately protected. And this problem of set-in-stone health standards that do not reflect current knowledge is a huge embarrassment to our regulatory regime.

OSHA specifically addresses these issues on its website:

OSHA recognizes that many of its permissible exposure limits (PELs) are outdated and inadequate for ensuring protection of worker health. Most of OSHA’s PELs were issued shortly after adoption of the Occupational Safety and Health (OSH) Act in 1970, and have not been updated since that time. Section 6(a) of the OSH Act granted the Agency the authority to adopt existing Federal standards or national consensus standards as enforceable OSHA standards. Most of the PELs contained in the Z-Tables of 29 CFR 1910.1000 were adopted from the Walsh-Healy Public Contracts Act as existing Federal standards for general industry. These in turn had been adopted from the 1968 Threshold Limit Values (TLVs) of the American Conference of Governmental Industrial Hygienists (ACGIH). Some consensus standards from the American Standards Association were also adopted at that time, following the 6(a) procedures. Comparable PELs were adopted for shipyards (29 CFR 1915.1000) and construction (29 CFR 1926.55).

Since 1970, OSHA promulgated complete 6(b) standards including new PELs for 16 agents, and standards without PELs for 13 carcinogens.

Industrial experience, new developments in technology, and scientific data clearly indicate that in many instances these adopted limits are not sufficiently protective of worker health. This has been demonstrated by the reduction in allowable exposure limits recommended by many technical, professional, industrial, and government organizations, both inside and outside the United States. Many large industrial organizations have felt obligated to supplement the existing OSHA PELs with their own internal corporate guidelines. OSHA’s Hazard Communication standard (1910. 1200 Appendix D) requires that safety data sheets list not only the relevant OSHA PEL but also the ACGIH TLV and any other exposure limit used or recommended by the chemical manufacturer, importer, or employer preparing the safety data sheet.

To provide employers, workers, and other interested parties with a list of alternate occupational exposure limits that may serve to better protect workers, OSHA has annotated the existing Z-Tables with other selected occupational exposure limits.  OSHA has chosen to present a side-by-side table with the Cal/OSHA PELs, the NIOSH Recommended Exposure Limits (RELs) and the ACGIH TLVs. [See https://www.osha.gov/dsg/annotated-pels/tablez-1.html]…OSHA’s mandatory PELs in the Z-Tables remain in effect. However, OSHA recommends that employers consider using the alternative occupational exposure limits because the Agency believes that exposures above some of these alternative occupational exposure limits may be hazardous to workers, even when the exposure levels are in compliance with the relevant PELs.

Notably, under its OSHA State Plan, the California Division of Occupational Safety and Health (Cal/OSHA) has established an extensive list of updated PELs (Cal/OSHA AC-1 Table) that are enforced in workplaces under its jurisdiction.  Both NIOSH and ACGIH have recommended new PELs, but these have no force of law.

In addition to the posting discussed above, OSHA went public in its quest for help in addressing the problem.  As the agency noted:

Although OSHA has attempted to update its PELs, the agency has not been successful, except for the promulgation of a few substance-specific health standard rulemakings (e.g., benzene, cadmium, lead and asbestos). However, a broad consensus exists among public health experts and practitioners, chemical manufacturers, and labor and employer groups that OSHA's PELs are woefully outdated and insufficiently protective of worker health. OSHA is seeking information about streamlining the current rulemaking process

The website inquires:

How can OSHA use developments in science and technology to improve and streamline the risk assessment and feasibility analyses?

A good question, as you have seen in the work we have done in this course.  With regard more specifically to the problem of the old PELs, OSHA published a Request for Information (RFI) in the Federal Register, 79 Fed. Reg. 61383-61438 (Friday, Oct. 10, 2014).

Here are excerpts from the RFI notice :

[It] details the role of past court decisions on the Agency's current approach to chemical management for the purpose of informing stakeholders of the legal framework in which the Agency must operate. It then describes possible modifications of existing processes, along with potential new sources of data and alternative approaches the Agency may consider. The Agency is particularly interested in information about how it may take advantage of newer approaches, given its legal requirements. This RFI is concerned primarily with chemicals that cause adverse health effects from long-term occupational exposure…

By all estimates, the number of chemicals found in workplaces today far exceeds the number which OSHA regulates, and is growing rapidly. There is no single source recording all chemicals available in commerce. Through its Chemical Data Reporting Rule, EPA collects information on chemicals manufactured or imported at a single site at 25,000 pounds or greater; currently this number exceeds 7,674 chemicals (U.S. EPA, 2013a; Ex. #1)

The American Chemistry Council estimates that approximately 8,300 chemicals (or about 10 percent of the 87,000 chemicals in the TSCA inventory) are actually in commerce in significant amounts (Hogue, 2007; Ex. #2). By contrast the European Chemicals Agency database contains 10,203 unique substances (as of 9/12/2013) (ECHA, 2013; Ex. #3). Of these, OSHA has occupational exposure limits for only about 470 substances. Most of these are listed as simple limits and appear in tables (referred to as "Z-tables") in 29 CFR 1910.1000, Air Contaminants, Subpart Z, Toxic and Hazardous Substances; Ex. #4. Approximately 30 have been adopted by OSHA as a part of a comprehensive standard, and include a number of additional requirements such as regulated areas, air sampling, medical monitoring, and training.  However, with few exceptions, OSHA's permissible exposure limits, (PELs), which specify the amount of a particular chemical substance allowed in workplace air, have not been updated since they were established in 1971 under expedited procedures available in the short period after the OSH Act's adoption (see 29 CFR 1910.1000; Ex. #4, 1915.1000; Ex. #5, and 1926.55; Ex. #6). Yet, in many instances, scientific evidence has accumulated suggesting that the current limits are not sufficiently protective. Although OSHA has attempted to update its PELs, the Agency has not been successful, except through the promulgation of a relatively few substance-specific health standard rulemakings (e.g., benzene, cadmium, lead, and asbestos).

The most significant effort to update the PELs occurred in 1989 when OSHA tried to update many of its outdated PELs and to create new PELs for other substances in a single rulemaking covering general industry PELs. … While the Agency presented analyses of the risks associated with these chemicals, as well as the analyses of the economic and technological feasibility of the proposed limits for these chemicals, these analyses were not as detailed as those OSHA would have prepared for individual rulemakings. The final rule was challenged by both industry and labor groups. The 1989 PEL update was vacated by the Eleventh Circuit Court of Appeals …

Despite these challenges, health professionals and labor and industry groups have continued to support addressing PELs which may be outdated and or inconsistent with the best available current science. The 1989 Air Contaminants rulemaking effort was supported by the American Industrial Hygiene Association (AIHA), the American Conference of Governmental Industrial Hygienists (ACGIH), and the American Public Health Association (APHA), among many other professional organizations and associations representing both industry and labor. In an October 2012 survey, members of the AIHA identified updating OSHA PELs as their number one policy priority. The U.S. Chamber of Commerce, in a letter dated April 8, 2011 to then Deputy Secretary of Labor, Seth Harris, also supported updating OSHA's PELs.

… The purpose of this RFI is for OSHA to solicit information as to the best approach(es) for the Agency to help employers and employees devise and implement risk management strategies to reduce or eliminate chemical exposures in the 21st century workplace environment. This is likely to involve a multi-faceted plan that may include changing or improving OSHA policies and procedures regarding the derivation and implementation of PELs, as well as pursuing new strategies to improve chemical management in the workplace. The Agency is publishing this notice to inform the public of its consideration of these issues, as well as solicit public input that can be used to inform further deliberations, and the determination of an appropriate approach.

There have been no further developments regarding this problem.

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Question:

Given what you now know, what strategies would you suggest to OSHA to address the problem of the antiquated PELs?

A silica standard was finally issued by OSHA in 2015.  You can find information about it  here and a history of the attempts to regulate it here. After issuing the proposed standard, OSHA received over 2,000 comments, amounting to about 34,000 pages of material, and held 14 days of public hearings, during which more than 200 stakeholders representing more than 70 organizations presented testimony. Hearing transcripts contain over 4,400 pages of testimony.  The comment period was closed in 2014.  The total estimated cost of the new standard is quite large.

Remember the complexity of the standard setting process for rules with significant economic impact – this was the process that the silica rule went through. The standard was challenged and upheld by the DC Court of Appeals in December 2017. North America's Building Trades Unions v. Occupational Safety & Health Administration, 878 F.3d 271 (C.A.D.C., 2017). The court did, however, accept the unions’ arguments regarding OSHA’s failure to include medical removal protection for workers suffering from silica disease in the rule:

Because OSHA acknowledges the health benefit of removal and has not given an adequate reason for rejecting some period of MRP for employees whose doctors recommend permanent removal, we remand to the agency for reconsideration or further explanation…. We hold that OSHA was arbitrary and capricious in declining to require MRP for some period when a medical professional recommends permanent removal, when a medical professional recommends temporary removal to alleviate COPD symptoms, and when a medical professional recommends temporary removal pending a specialist's determination.

878 F.3d at 308-309.

As of August 2025, addressing the need for medical removal was still on OSHA’s regulatory agenda.

MSHA issued its silica rule in  April 2024. A challenge to that rule is pending in the 8th Circuit Court of Appeals. As of March 2025, it was not clear whether the government will defend this rule, or whether other parties will attain intervenor status to mount a defense of the rule. 

The second PEL that OSHA tackled is for beryllium, a substance that can cause devastating lung disease. OSHA issued a proposed rule in August 2015 for beryllium,; the comment period closed in November 2015; the final rule was issued in early January 2017 and became effective that March. A new proposed rule, amending some aspects of this rule, was published (12/11/2018), and the comment period closed in 2019. According to the OSHA press release:

The proposal satisfies a settlement agreement with stakeholders that had concerns about some of the provisions in the 2017 beryllium final rule. The proposed rule would affect approximately 50,500 workers employed in general industry, and is estimated to yield minor net cost savings to employers. OSHA expects the proposed changes would provide employees with equivalent safety and health protections to the current standard. 

The rule is now in effect.

Check out OSHA’s current regulatory agenda that is part of the US DOL unified agenda: OSHA Regulatory Agenda.

Click through and notice what activities are in each category.

Which do you think are significant?

What do you think will happen during the next few years?  

What do you think OSHA should prioritize in its rulemaking in the coming period?