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OSHA HazCom Enforcement
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Let's Get it Right

By Adele L. Abrams, Esq., CMSP

For as long as I can remember, OSHA’s Hazard Communication Standard (29 CFR 1910.1200) has been among OSHA’s most-cited standards. For fiscal year 2014, it ranked number two out of the hundreds of OSHA standards and could be poised to top the hit parade in 2015. Given that the standard has been around since 1986, although it was most recently updated in 2012, one might wonder why employers are still not “getting it right” when it comes to HazCom compliance.

One answer is that this is a very paperwork-intensive standard. The employer must have a written hazard communication program, it must retain (or have immediate electronic access to) Safety Data Sheets for each individual chemical product on site (e.g., if multiple brands of paints are kept in the workplace, a SDS for each brand and color must be retained), a chemical inventory list must be developed and updated every time a new chemical product is brought into the workplace, legible labels must be in place on every chemical product container, and employee training must be documented. If an employer cannot come up with the right document when OSHA requests it, a citation will be issued.

Another reason is that employee training is a key component of the standard and employers either do not properly provide the training and document that training was given, or else employees (when questioned privately by OSHA) are unable to give the proper responses to questions about the hazardous nature of the chemicals that they use or to which they are exposed in the workplace.

In 2012, OSHA updated its HazCom standard to incorporate elements of the Global Harmonization System (GHS), which seeks to bring United States chemical labeling and warning systems into comformity with the rest of the industrialized world. In fact, the U.S. lagged behind in adopting GHS; we were preceded by the European Union, many Asian countries and even some South American nations. When the rule was finally adopted, it required retraining of every OSHA-regulated employee in America by December 1, 2013!

Yet many employers have been slow to come into compliance, or do not provide thorough training in a language that employees can understand, and this contributed to the rise in HazCom citations last year. While labels must be in English, they can also be in other languages that are used in the workplace. If work-related instructions are given to workers in a language other than English, then HazCom training must also be given in the workers’ native tongue. Among the things that employees must be trained on are how to read a Safety Data Sheet (SDS), what each of the newly adopted “pictograms” means in terms of worker health, what first aid and emergency response is required in the event of an incident involving a chemical in the workplace, and what personal protective equipment must be used by the worker when handling or being exposed to the chemical.

Does OSHA use “gotcha” questions when talking about HazCom with employees? It is possible, but more often they will ask “were you trained on what [a specific pictogram] means …what will happen if you misuse the product … what health effects could you suffer from overexposure … what PPE do you need to wear … where do you find the SDS for the product, what should you do if this splashes in your eyes or gets on your skin …” and so on.

When employees have language barriers with the inspector, too often OSHA assumes that they did not get properly trained, and enforcement action follows. Sometimes employees think they are “in trouble” with OSHA for using a product the wrong way and so will deny ever having been trained. In such cases, properly documented training (with backup materials showing what was used for training, such as powerpoints or bilingual handouts) can be critical in avoiding fines that can reach $70,000 per affected worker and which can place an employer into OSHA’s “Severe Violators Enforcement Program” (which triggers additional inspection of the employer’s other worksites).

The HazCom standard is definitely not one that an employer should ignore. In the many citation cases I’ve handled for pallet industry employers, HazCom seems to inevitably be cited. Some employers think (incorrectly): “We just make (or disassemble) pallets and maybe warehouse some goods or load trucks … why would a standard aimed at the chemical industry even apply to us?” This is overly simplistic thinking, because the scope of the HazCom standard is quite broad and covers not only wood dust (which is certainly present in pallet workplaces) but common chemicals like bleach, solvents, paints, lubricants and even cleaning products. Consumer products are exceptions, as long as they are used in the same manner as a non-industrial consumer. This would include products like windshield washer fluid and hand sanitizer, but OSHA sometimes forgets this exception. In a recent case, an employer was cited for not applying HazCom to its portable fire extinguishers! While the judge did find that the fire extinguishers fell within the definition of a “hazard substance,” in the workplace they were used in a manner comparable to a normal consumer, and so the citations were vacated. M.A. Mortenson Company (ALJ Joys 2014).

In one 2015 case, the employer received multiple HazCom-related citations – some marked “serious.” The allegations in this recent case included:

  • Employee training did not include the physical and health hazards of the chemicals in the work area (in this case, bags of natural stone); and,
  • The details of the hazard communication program developed by the employer did not include an explanation of the safety data sheet, including the order of information and how employees could obtain and use the appropriate hazard information (the citation specifically alleged that workers were not trained on the new pictograms and new SDS format).

Based on information contained on the safety data sheets for the chemical at issue (natural stone), OSHA also alleged that appropriate respiratory protection had not been provided, and that employees had not been trained properly on the “voluntary” use of disposable paper dust masks, had not had a medical evaluation to determine their ability to use disposable masks, and had not been “fit tested” to use such dust masks. So it should be clear that employers need to review their chemicals’ SDSs too, in order to determine appropriate exposure limits under OSHA’s air contaminants standard, ensure these limits are not exceeded, and ascertain what PPE should be used by employees who are exposed to the chemical.

For now, training is the only aspect of the revised HazCom GHS standard that OSHA enforces against employers (the older sections, covering written programs, labels and the chemical inventory list have always been required). On February 9, 2015, OSHA issued some enforcement guidance concerning the next trigger date – June 1, 2015 – when chemical manufacturers, importers, distributors and employers must be in compliance with all modified provisions. Under the final rule, by that date manufacturers and importers were to develop GHS-compliant SDSs and labels for chemicals and mixtures. However, OSHA has lagged behind in issuing guidance and in responding to requests for clarification (interpretative letters), so it announced in the guidance that it will “exercise its enforcement discretion” to allow a “reasonable time period” for manufacturers to come into compliance, as long as they have established “reasonable diligence” and “good faith efforts” in updating their SDSs and labels. The guidance also allows manufacturers and distributors who have been diligent an extension to ship products with the old-style labels and SDSs to downstream employers until December 1, 2017. For other manufacturers and distributors, the standard still requires GHS-compliant labels on any products shipped after December 1, 2015.

The guidance also states that once an employer receives a GHS-compliant SDS for a hazardous chemical, it must maintain them and follow the other requirements in the 2012 final rule. While the labeling/SDS extension granted to some upstream manufacturers and distributors is good news for them, it may be bad news for employers who went ahead and did timely training but will now find that the training will not be put to use because the products they purchase do not include the new form SDSs, new labeling systems and new pictograms. As the saying goes when it comes to training, “use it or lose it.”

Employers will need to stay alert for when labels change on the products they commonly use, make sure that as new SDSs are received, they supersede the old ones in your binder, and that the new labels and sheets are reviewed with affected workers (both your own employees and any temporary employees in your workplace who also are exposed to the chemicals). Make sure that this training is documented as well, even if you already documented the initial GHS training done to meet the 2013 deadline. GHS is going to be a moving target for compliance for at least the next few years, but by being diligent, an employer can avoid being a target for OSHA enforcement!

(Article published in PalletCentral Magazine, March-April 2015)

Adele L. Abrams is an attorney and safety professional who represents companies in litigation with OSHA and provides safety training and consultation. The Law Ofice of Adele L. Abrams PC has three offices: Beltsville, MD; Denver, CO; and Charleston, WV.