Many employers in the construction industry, many shipyards, and some employers in other industries are subject to Occupational Safety and Health Administration (“OSHA”) standards covering workplace exposure to hexavalent chromium, a potentially harmful substance. With the March 17, 2010, publication of a new direct final rule amending the existing hexavalent chromium standards, those employers will, barring further agency action, soon have heightened notification requirements with respect to the detected presence of that substance in the workplace.

 Hexavalent chromium is a naturally occurring heavy metal that is often used in paints, in electroplating, and as an anticorrosion element in iron, steel and stainless steel. Workers can be exposed to hexavalent chromium in the manufacturing process of products containing the substance or through the welding or cutting of such products, as often occurs in the construction industry.

 Because workplace exposure to hexavalent chromium can cause lung cancer, asthma, dermatoses, and other health conditions, OSHA issued safety standards in 2006 addressing employee hexavalent chromium exposure. Among other things, those standards required employers to monitor employee exposure to hexavalent chromium in the workplace and to notify affected employees of exposure levels in excess of the permissible exposure level of five micrograms per cubic meter of air. In this respect, the hexavalent chromium standards differed from every other substance-specific OSHA standard with monitoring and notification requirements, all of which require disclosure to affected employees of all exposure determinations, regardless of whether they fall above or below the applicable permissible exposure level.

 In a lawsuit challenging the hexavalent chromium disclosure requirements on the grounds that they were arbitrary, the U.S. Court of Appeals for the Third Circuit ordered OSHA to reconsider those requirements. OSHA did so and on March 16, 2010 published a notice of proposed rulemaking to amend the hexavalent chromium standards to require the disclosure of all exposure determinations to affected employees, regardless of the level of exposure to hexavalent chromium detected, and invited comments on that change. Pending the receipt of comments, OSHA, in an unusual move, published on March 17, 2010, a direct final rule containing the amended disclosure requirement. This direct final rule will go into effect on June 15, 2010, unless OSHA receives any significant adverse comments in response to the notice of proposed rulemaking.

 Practical Implications

Commencing on June 15, 2010, (unless OSHA withdraws the new direct final rule before then), employers who are subject to the hexavalent chromium standards will be required to disclose any exposure determinations from hexavalent chromium monitoring to affected employees, regardless of the exposure level detected. The amendments to the standards will not change the methods by which employers may disclose this information. Thus, employers may satisfy the notification requirement by posting the exposure-determination results in a location in the workplace where the information will be accessible to affected employees or by notifying each affected employee individually in writing. Employers subject to the general industry hexavalent chromium standard must disclose the exposure-determination results within 15 work days, whereas employers subject to the construction industry or shipyard standards must disclose the information within five work days. To comply with the new, broader notification requirements, employers subject to the hexavalent chromium standards should ensure that their monitoring programs are revised as of the effective date of the new requirements to provide for the disclosure of exposure-determination results showing the presence of hexavalent chromium in the workplace in any quantity.