(1) The department may adopt rules related to preventing musculoskeletal injuries and disorders that provide standards for an industry or risk classification, subject to the limits in this section.

(2)(a) Within a 12-month period, the department may not adopt more than one set of rules related to preventing musculoskeletal injuries and disorders for an industry or risk classification that previously did not have rules related to preventing musculoskeletal injuries and disorders. The rules would apply to an establishment engaged in activities as defined by the industry or risk classification.

(b) Subject to subsection (10) of this section, the department may not adopt emergency rules under chapter 34.05 RCW related to preventing musculoskeletal injuries and disorders for an industry or risk classification that previously did not have rules related to preventing musculoskeletal injuries and disorders.

(3)(a) Rules providing standards may only be adopted for industries or risk classifications where compensable workers’ compensation claims involved musculoskeletal injuries and disorders at a rate greater than two times the overall state workers’ compensation compensable claim rate for musculoskeletal injuries and disorders over a recent five-year period.

(b) When adopting rules by industry subsector at the three-digit level, the department must exclude from regulation North American industry classification system industry group at the four-digit level and industry classification at the five-digit level within the industry subsector that have a musculoskeletal injuries and disorders rate less than two times the overall state workers’ compensation compensable claim rate for musculoskeletal injuries and disorders over a recent five-year period.

(c) When adopting rules by industry group at the four-digit level, the department must exclude from regulation North American industry classification system industry classifications at the five-digit level within the industry group that have a musculoskeletal injuries and disorders rate less than two times the overall state workers’ compensation compensable claim rate for musculoskeletal injuries and disorders over a recent five-year period.

(d) When adopting rules by risk classification at the four-digit level, the department must exclude six-digit risk classifications within the four-digit risk classification if they have a musculoskeletal injuries and disorders rate less than two times the overall state workers’ compensation compensable claim rate for musculoskeletal injuries and disorders over a recent five-year period.

(e) When selecting an industry or risk classification from the list established for potential rule making in RCW 49.17.520(8)(a) [subsection (8)(a) of this section], the department shall consider if the industry is demonstrating a statistical downward trend in the claims rates that is greater than the statewide average.

(4) Within 90 days of the department filing a preproposal statement of inquiry (CR-101) for industry or risk classifications specific rules related to preventing musculoskeletal injuries and disorders, the department must provide a report to the appropriate committees of the legislature. The report must include the criteria the department used to select the industry or rate risk classification that will be subject to the rules and a description of the rule-making procedures under chapter 34.05 RCW which the department will follow for the specific rules.

(5) During rule making, the department must consider including options for an employer to demonstrate alternative control methods where:

(a) The alternative methods are at least as effective as the rule requirements;

(b) Affected employees are trained and monitored for compliance; and

(c) The employer has documented all efforts.

(6) When filing a preproposal statement of inquiry (CR-101) for industry or risk classification specific rules related to preventing musculoskeletal injuries and disorders, the department must include the convening of an advisory committee comprised of equal representatives of employers and workers from the industry or risk classification that will be subject to the rules.

(7) During rule making under this section, the department must solicit input on the effective date to specify in the order of adoption under RCW 34.05.380. The effective date may not be less than 120 days after adoption and no rule may be effective prior to July 1, 2026.

(8) Annually by November, the department must:

(a) Publish a list of industries and risk classifications eligible for rule making under this section. The list must identify low priority industries and risk classifications for whom the statistical trend suggests the industry or risk classification will have a rate lower than two times the state average in the next three years. The list must include compensable claims over the five calendar year period that ended two calendar years before the report is published; and

(b) Conduct a review of the compensable workers’ compensation claims data identified in (a) of this subsection to ensure that the data only reflects injuries or disorders consistent with work-related musculoskeletal injuries or disorders as defined by chapter 112, Laws of 2023, and publish the results of that review.

(c) Each year the department shall identify a list of industries or risk classes most likely to be selected for future rule making and prioritize efforts to provide technical assistance to those employers.

(9) For employee home offices, the director does not have the authority to adopt any new or amended rules dealing with musculoskeletal injuries and disorders, or that deal with the same or similar activities as the rules which were repealed in former RCW 49.17.370 for employee home offices, until and to the extent comparable rules applying to employee home offices are required by congress or the federal occupational safety and health administration.

(10) Limits on rule making in this section do not apply to rules adopted or amended where required by the federal occupational safety and health administration.

(11) For the purposes of this section, “industry” means any classification in the North American industry classification system that defines an industry subsector at the three-digit level, industry group at the four-digit level, and industry at the five-digit level.

(12) The department must provide up to three additional ergonomists to provide consultation to employers in the industries and risk classifications in the list published under subsection (8)(a) of this section. Funding for the additional ergonomists must be paid from the accident and medical aid funds.

Findings—Intent—2023 c 112: “(1) The legislature finds that the absence of the department of labor and industries’ authority to regulate working practices to prevent musculoskeletal injuries and disorders has contributed to excess and avoidable claims and costs across the workers’ compensation system for all employers in Washington, including those employers who maintain safer workplaces without high incidents of musculoskeletal injuries and disorders.

(2) The legislature finds that work-related musculoskeletal injuries and disorders account for at least one-third of all workers’ compensation claims that result in time loss and wage replacement; are more severe than the average nonfatal injury or illness; and are a common cause of long-term disability in Washington state.

(3) The legislature finds that many of Washington state’s critical industries, including health care, are described by the federal bureau of labor statistics as high-risk industries for musculoskeletal injuries. These are also industries that are currently experiencing significant staffing shortages. Further, these injuries lead to high employer costs including absenteeism, decreased productivity, and increased costs for health care, disability, and workers’ compensation, among other costs.

(4) The legislature therefore intends to repeal the prohibition on regulating working practices related to musculoskeletal injuries and disorders, thereby allowing targeted safety efforts to more effectively and efficiently prevent these workplace injuries. By removing this barrier, the legislature will restore the state’s ability to more strategically address important workplace safety issues and reduce costs for all employers and workers.” [ 2023 c 112 § 1.]