On July 20, 2015, OSHA published a long awaited Directive on the revised Hazard Communication Standard (“HCS”), Inspection Procedures for the Hazard Communication Standard (HCS 2012), CPL 02-02-079. The Directive is intended to provide inspection and enforcement guidance to compliance officers regarding the final Hazard Communication Standard published in March 2012. However, the Directive also serves as a valuable tool to employers implementing the requirements on the revised Hazard Communication Standard. The 124-page Directive provides guidance in the areas of Hazard Classification, Labels, Safety Data Sheets (“SDSs”) and Employee Training.
The revisions to the Hazard Communication standard in 2012 were based on the Globally Harmonized System of Classification and Labelling of Chemicals (GHS Revision 3, 2009). The Directive cautions employers who may wish to comply with GHS Revision 4 or future versions because according to OSHA those revisions may have major differences with the standard and therefore may not be as stringent as the current requirements. If an employer relies on GHS Revision 4 or future versions and there are major differences resulting in a less stringent application of the current requirements, OSHA has instructed compliance officers to issue citations.
The Hazard Communication standard “applies to any chemical which is known to be present in the workplace in such a manner that employees may be exposed under normal conditions of use or in a foreseeable emergency.” 29 C.F.R. § 1910.1200(b)(2) (emphasis added). In the Directive OSHA addresses how the scope of the standard applies to multi-employer worksites. Specifically, OSHA states, “if an employer is aware that his/her employees are exposed to chemicals brought onto a multi-employer worksite by other employer(s) or if service personnel are exposed to natural gas during furnace repair” then the standard applies and an employer whose employees are exposed to such chemicals known to be present must include information about the hazards of those chemicals in the hazard communication program.
The Directive instructs compliance officer to ensure that an employer’s written hazard communication program addresses “method(s) to provide the other employers on-site access to SDSs for each hazardous chemical the other employer(s)’ employees may be exposed.” Additionally, the written program must include how employers will inform other employers about any precautionary measure to protect employees and how employers will inform other employers about the labeling system used.
One area that provides employers needed guidance is the interplay between labeling under the HCS and other federal agencies, specifically the Department of Transportation (“DOT”). In the Directive OSHA considers the DOT diamond-shaped placards that contain hazard symbols to be pictograms and therefore in compliance with the requirements of the standard.
According to DOT, the HCS pictograms are not in conflict with a DOT label. Therefore, “OSHA will allow labels to contain both DOT pictograms (labels as they are referred to by DOT) and the HCS pictograms for the same hazard.” In the future, OSHA will revise Appendix C, C.2.3.3 to reflect this change in policy.
According to OSHA, manufacturers, importers or distributors who must comply with both DOT and HCS requirements have two options: (1) use only the DOT label for the hazard (which OSHA will consider to be compliant for a pictogram) or (2) use both the DOT label and the HCS pictogram for the hazard. However, for hazards that do not require a DOT label, there must be a HCS pictogram to be compliant with the hazard communication standard requirements.
Under the Hazard Communication standard, employers are required to train their employees on the hazardous chemicals in the workplace, labeling, SDSs, and measures that employees can take to protect themselves when using hazardous chemicals, such as personal protective equipment. While the standard does not dictate how or in what fashion employers must provide this training, according to the new Directive, “use of computer-based training by itself would not be sufficient to meet the intent of the standard’s various training requirements. Employees must have the opportunity to ask questions and receive responses in a timely manner.” Therefore, employers relying solely on computer-based training should consider adding a component of training that would allow employees time to ask questions.
Additionally, the Directive advises compliance officers that “[i]f employees do not speak English and are given work instructions in a foreign language, the training must be provided in that language.” Based on this enforcement guidance, employers can anticipate that compliance officers will begin to question how employees are trained and whether such training is provided in a language understood by employees. If an employer trains employees solely in English then it may ultimately have to prove to OSHA that the employees understood the training.
The new Directive also covers guidance on OSHA’s enforcement initiative for temporary workers and instructs compliance officers to review contracts between staffing agencies and host employers “to determine if they set out the training responsibilities of both parties.” While employers are not required to revise their contracts to contain such information, during an inspection OSHA will try to determine if such responsibilities have been clearly communicated between a host employer and a staffing agency.
OSHA expects that staffing agencies will provide general training on the HCS requirements and that host employers will provide the site-specific training on the chemicals and hazards at the worksite where temporary employees will work and will supply the appropriate personal protective equipment. While these are the agency’s expectations, staffing agencies and host employers are free to make alternative arrangements so long as temporary employees are provided equivalent HCS training as the host employer’s employees.
General Duty Clause – Chemicals with no Permissible Exposure Limit (“PEL”)
The Directive instructs compliance officers to consider using the requirements of HCS, specifically the SDSs, to support a general duty clause, or 5(a)(1) violation for chemicals with no OSHA PEL.
According to OSHA, “[e]mployers should consider the information in the SDS along with their knowledge of actual conditions in their workplaces to determine whether they must take additional steps to protect employees.”
The Directive suggests that compliance officers consider the information contained in a SDS and determine whether employers have taken appropriate steps, including engineering controls, personal protective equipment, and personal protective clothing to protect employees for overexposures.
The extensive Directive covers each aspect of the standard’s requirements and provides compliance officers with a road map for citations where employers are found to be in violation of the requirements. A copy of the Directive can be found online.