ACHRNEWS

Legal Liability for Ergonomics and Add-On Equipment

September 21, 2009
Richard D. Alaniz

The best of intentions can often lead to the worst of results - this is true in many aspects of life, but it can be particularly true in the workplace. Employers may take steps to improve the well-being and productivity of their employees, only to have such initiatives backfire and lead to injuries, workers’ compensation claims, and lawsuits.

Technology can be a particularly problematic issue, especially when it comes to the areas of ergonomic issues and add-on (or aftermarket) equipment. If used incorrectly, these types of equipment can lead to sprains, strains, or even more serious injuries, which could put companies in violation of the law. According to the Occupational Safety and Health Act of 1970, employers must provide a workspace “free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.”

When investing in add-on equipment or considering purchases that could impact ergonomic comfort, employers should carefully research products to ensure they have the right tools for the right job; they must carefully maintain all of their equipment; they need to educate employees about how to properly use the equipment and report any problems or failures; and they are required to track any injuries.

ERGONOMIC CONCERNS

Over the years, employers and employees have become more aware of the importance of good ergonomics in the workplace, and ergonomics have generally improved in a variety of industries. But while the numbers are down slightly, ergonomic injuries still remain high and they can affect employees in many different jobs.

The U.S. Bureau of Labor Statistics tracks the rate of ergonomic injuries, or so-called musculoskeletal disorders (MSDs). The bureau defines MSDs as those “affecting the connective tissues of the body such as muscles, nerves, tendons, joints, cartilage, or spinal discs.” The overall rate of MSDs among those employed in the private sector has actually declined, according to the most recent statistics. In 2007, MSDs accounted for 29 percent of all workplace injuries requiring time away from work, compared to 30 percent of total days-away-from-work cases in 2006.

ADD-ON AND AFTERMARKET EQUIPMENT LIABILITY

In manufacturing, trucking, and other industries, “add-on” equipment is extremely common. When used correctly, such equipment can lessen the risk of injuries and save employees a great deal of time. But add-ons can be prone to malfunctioning or can be used incorrectly by employees, which can lead to downtime or injuries.

In one 2007 case, Jack in the Box v. Skiles, a driver for a chain of restaurants went to make a delivery when the liftgate on his truck malfunctioned. A liftgate is a platform that raises and lowers items from the ground to the back of a truck and, according to company policy, he was supposed to wait for a maintenance person to make repairs to the liftgate before unloading his delivery. Instead, the driver used a ladder to climb over the back of the truck, seriously injuring both his knees in the process. He sued the company for negligence, but the Texas Supreme Court ultimately dismissed his claim, finding that the dangers in using a ladder to climb over a liftgate should have been obvious.

In order to minimize the dangers of poor ergonomics and add-on equipment, employers need to identify potential risks and take steps to eliminate them. Such actions will keep them in regulatory compliance by improving workplace safety, increase employee productivity, and help to reduce the chances of a lawsuit filed by employees injured on the job. These steps include:

Step 1: Take an Inventory of the Equipment in Use
Equipment use can vary widely within a company - at a manufacturing facility, the employees on the production line will be using very different types of equipment and have very different workspaces than those in the billing department. The different types of jobs and equipment can present different risks for injury.

Employers and managers need to know what equipment is being used in each department and office. Once an inventory is taken, the equipment can be analyzed to determine if it is appropriate, well-maintained, and even necessary. Companies should consider developing guidelines for the types of equipment - while it may cost more to upgrade to a computer with a brighter screen, a higher-quality screen could reduce the chances of neck or eye strain, helping to ensure that employees can work more comfortably and productively.

Step 2: Make Sure Employees Are Using the Right Equipment for the Right Job
Efficiency is important, but so is safety. A contractor may not want to use a set of pliers rather than making a trip to the truck for the right wrench. This is not a good idea.

Step 3: Ensure that Employees Are Not Modifying Equipment
Employees, particularly those that are handy or tech-savvy, may decide to “improve” their equipment or workspace on their own. This can increase the risk of injuries, which can leave employers open to liability claims. Or, it could lead to mechanical failures, which can be very expensive. There is a reason, after all, that many different types of equipment come with a warning that reads something like this: “Any modification or unintended use of this product shall immediately void all manufacturer’s warranties, and any modification to, or unintended use of, this product shall release manufacturer from any liability for injuries to persons or property that may result.”

Step 4: Educate Employees and Managers to Recognize and Report Problems
Under Occupational Safety and Health Administration (OSHA) regulations, private-sector employers are required to “maintain accurate records of, and to make periodic reports on, work-related deaths, injuries, and illnesses.” Currently, these records include the OSHA 300 logs for “Recording Work-Related Injuries and Illnesses.” As part of these logs, employers must record work-related injuries and illnesses that result in death, loss of consciousness, days away from work, restricted work activity or job transfer, or medical treatment beyond first aid. Employees and managers need to be educated about how to recognize and report any types of injuries they receive on the job.

And employers should be prepared for a record-keeping crackdown. There have been grumblings from Congress that workplace injuries are being under-reported, which may have led to an excessively rosy picture of workplace safety in recent years. As part of The Omnibus Appropriations Act of 2009, OSHA’s funding has been boosted by $27 million from 2008. As part of that increase, the U.S. Department of Labor has been instructed to “begin rebuilding OSHA’s enforcement capacity and to increase the pace of standard setting. An important component of this mission is to enhance enforcement and oversight of injury and illness recordkeeping to ensure complete and accurate recording and reporting by employers.”

The act instructs OSHA to direct $1 million for a “recordkeeping enforcement initiative on injury and illness reporting, addressing the apparent lack of completeness of the OSHA Log of Work-related Injuries and Illnesses.”

Employers shouldn’t just fill out the OSHA 300 Logs and send them on their way - instead, they should analyze the information to see if there are particular areas where employees are being injured, and how they can minimize or head off further injuries. If a department has recently purchased new office chairs, and more people are now complaining about sore backs and stiff necks, it’s time to reconsider office furniture.

Step 5: Know the Laws
OSHA governs worker safety. Some states have their own ergonomic regulations, which may differ from the federal rules. Employers need to understand all the relevant laws that apply to each of their worksites and respond to those laws appropriately. This may best be managed through a joint effort by human resources staff, in-house counsel (if applicable), and law firm attorneys.

The right equipment and technology can boost employee productivity and make jobs easier to do. The wrong equipment - or the right equipment used incorrectly - can cause injuries, strains, and lead to time off of work and potential lawsuits. Employers must ensure that they provide appropriate and well-maintained equipment. In the long run, such equipment will more than pay for itself in healthy and satisfied employees.

Publication date: 09/21/2009