In a move sure to be viewed by some as a prelude to a new ergonomics rulemaking, OSHA has proposed adding a separate column on the OSHA 300 log for employers to record work-related musculoskeletal disorders (MSDs). (The initial 2001 recordkeeping final rule had included an MSD column, but OSHA later deleted that column before the provision ever became effective.) The rule also proposes the same definition of “MSDs” that OSHA had included in the initial 2001 final rule. 

This is an important and fast-moving rulemaking. Interested stakeholders are encouraged to review the proposal thoroughly and provide comments to the agency. The comment period ends on March 15, 2010; the agency is holding a public meeting on the proposal on March 9, 2010.

Under the proposed rule, employers would be required to “check the box” in a separate column on the OSHA 300 log – an “MSD” column – for injuries and illnesses that fit within the agency’s definition. For purposes of the proposal, the agency defines MSDs as:

[D]isorders of the muscles, nerves, tendons, ligaments, joints, cartilage and spinal discs. MSDs DO NOT include disorders caused by slips, trips, falls, motor vehicle accidents, or other similar accidents. Examples of MSDs include: Carpal tunnel syndrome, Rotator Cuff syndrome, De Quervain’s disease, Trigger finger, Tarsal tunnel syndrome, Sciatica, Epicondylitis, Tendinitis, Raynaud’s phenomenon, Carpet layers knee, Herniated spinal disc, and Low back pain.

OSHA also is proposing to remove existing language from its recordkeeping compliance directive that “minor musculoskeletal discomfort” is not recordable as a restricted work case “if a health care professional determines that the employee is fully able to perform all of his or her routine job functions, and the employer assigns a work restriction for the purpose of preventing a more serious injury.” OSHA is concerned that this language creates confusion among employers about recording MSDs. OSHA’s proposal attempts to clarify that employers must record abnormal conditions resulting in minor musculoskeletal discomfort, regardless of whether the conditions include objective signs of an injury or illness – so long as all of the other criteria for recording are met.

OSHA describes this proposed rule as a non-significant regulatory action involving only two small costs for employers. OSHA believes that:

1.      employers – and specifically a human resources specialist – will be required to spend 5 minutes familiarizing themselves with the rule; and  

2.      employers will need to spend one additional minute than they currently spend in analyzing an injury or illness to determine whether it should be classified as an “MSD” and put into the correct column on the new recordkeeping forms.

OSHA’s action takes the agency back a decade to the end of the Clinton Administration, when OSHA completed its revised recordkeeping rule with a separate MSD column. Of course, many stakeholders will ask if this move signals a return to the other Clinton Administration rulemaking on MSDs: ergonomics. That rule was rescinded by Congress and President Bush under the Congressional Review Act.  OSHA’s leadership has insisted that this rulemaking is totally separate from any ergonomics initiative and should not be interpreted as a first step to a new ergonomics rule. However matters may develop on ergonomics, this rulemaking is important in its own right as it affects – by OSHA’s own count – approximately 1.5 million workplaces around the country.