Cyberconference: Labor Issues

By Craig Regelbrugge and Tim Bartl
On Nov. 23, 1999, the U.S. Occupational Safety and Health Administration published its far-reaching ergonomics standard in the Federal Register for public comment. It requires covered employers to set up an ergonomics program for any job that involves heavy lifting, pushing or pulling and for any job in which a workplace ergonomics injury is reported to OSHA.

For years, the business community, including nursery and landscape businesses, has awaited and feared OSHA's impending ergonomics rule. Now that the proposal is out, what will it mean for employers in the green industry?

There is no simple answer. The proposal is filled with ambiguity as to who is covered and exactly what they must do to comply. One thing is clear. Many if not most green industry businesses stand to be affected if the rule is finalized as OSHA has proposed it. This article examines how the different industry segments may be affected and what options exist for responding to the proposal.

What is ergonomics?

According to OSHA, ergonomics is the science of fitting jobs to people in order to reduce musculoskeletal disorders (MSDs), which OSHA defines as injuries and disorders of the nerves, tendons, ligaments, joints, cartilage and spinal discs.

Examples include muscle strains from heavy lifting, carpal tunnel syndrome, low-back pain, and similar conditions. OSHA claims that MSDs account for one-third of all workers' compensation costs annually and for one-third of all lost workday injuries.

Yet, the number of MSDs reported between 1992 and 1997, the last year for which data is available, decreased by 21 percent. This decrease likely reflects efforts by employers of all types to improve safety training and workplace practices and to reduce injury risks and workers' compensation claims.

OSHA has relied on questionable science to justify the need for such a sweeping regulation. In 1998, Congress funded a $1-million study by the National Academy of Sciences to determine whether scientific studies have conclusively linked workplace activities to ergonomics injuries. Although that study will not be completed until early 2001, OSHA published the proposed rule in November and intends to finish it by late 2000.

OSHA's ergonomics standard does not apply to an entire workplace. Instead, it is job-based, meaning that an employer must set up a full ergonomics program for a particular job task after an employee doing the job experiences an MSD that is recordable on the OSHA 200 log.

However, the standard as proposed does not apply to all jobs within the nursery and landscape industry because OSHA has exempted agriculture and construction from the proposed rule. Jobs that are "integrally related to" growing operations will usually be considered agriculture, making them exempt from the standard. The same with jobs that are considered construction jobs.

The problem for nursery and landscape businesses will be distinguishing among different jobs performed by the same employees, particularly where an employee performs both growing and retail jobs or where a wholesale nursery operation handles product grown elsewhere.

Practically, many employers will set up an ergonomics program for their entire workplace once a single job is affected.

How will standards apply?

Whether employers in the nursery industry are covered by the ergonomics standard depends on the type of nursery operations involved. The following outlines how the standard may apply:

Wholesale operations

Many wholesale growers distribute only product that has been cultivated on site. Under OSHA regulations, these employers would be considered part of agriculture. An employer engaged in agriculture or any work that is "integrally related to" agriculture will be excluded from the ergonomics regulation.

Growing trees, shrubs and flowers in a wholesale nursery operation would be considered "agricultural operations." Maintaining equipment and facilities used in agricultural operations, planting, pruning, irrigation, and harvesting would be considered "integrally related to agricultural operations." Because these jobs are agricultural, they would be excluded from the ergonomics standard.

Rewholesale operations

Nurseries that acquire their inventory exclusively from other growers, including rewholesale horticultural distribution operations, would not be engaged in operations "integrally related to agriculture." Rather, they would be engaged in wholesale trade operations and would be covered by the standard.

Many jobs in such operations would be considered "manual handling" jobs, and employers automatically would be required to implement the first two elements of an ergonomics program. Operations that grow some of their own product but also buy in and handle product from other nurseries may be forced to analyze the "buying-in" component of the business separately, as it would probably be covered by the standard.

Clerical jobs in a wholesale nursery would probably not be considered integrally related to agricultural operations. So an employer could be required to set up an ergonomics program if a computer operator experienced carpal tunnel syndrome.

Retail operations

Retail nurseries would be covered under the ergonomics standard. Most retail nurseries would also have to implement the first two elements of an ergonomics program for their manual handling jobs, such as lifting bags of soil, peat moss, and plants for customers. Combination retail/growing operations must view each part of the business separately to determine when the OSHA standard applies.

Landscaping activities

The ergonomics standard may apply to the landscaping industry, depending upon the activities involved and how OSHA decides to classify them. OSHA has often attempted to classify some landscaping services, such as construction of hardscape surfaces, providing ornamental rock and any activity involving the grading or moving of soil or rock as construction.

If OSHA considers an employer's landscaping services covered under the construction standards, the employer would not be covered under the ergonomics standard because construction, like agriculture, is excluded from the standard. However, if OSHA determines that an employer's landscaping services are covered under the OSHA standard for general industry, landscaping jobs would be covered by the standard and employers would be required to set up an ergonomics program.

We believe that most landscaping services would be covered by the ergonomics standard as proposed. Although OSHA provides no specifics, the general category for landscaping and horticultural services, which includes architectural services, lawn and garden services and ornamental shrub and tree services, is covered under the ergonomics standard.

Unless or until OSHA provides further clarification, most employers in these industries should consider themselves covered by the standard.

That OSHA is not clear on how it will enforce the standard also illustrates how OSHA attempts to increase its regulatory authority by trying to cover employers under the stricter of the standards that may apply to them. That is, OSHA attempts to cover landscaping services under construction whenever possible because construction standards are more rigorous than agriculture or general industry standards. However, because the construction industry is excluded from the ergonomics standard, OSHA is attempting to cover the industry under general industry standards.

Craig Regelbrugge is American Nursery & Landscape Association senior director of government relations. Tim Bartl is Occupational Safety and Health Administration consultant for ANLA.