On July 20, 2015, the Occupational Safety and Health Administration (OSHA) provided instruction and inspection procedures to its compliance officers to ensure consistent enforcement of the revised hazard communication standard (HCS). OSHA’s instruction outlines the revisions to the new HCS, such as the revised classification of chemicals, the standardization of label elements for containers of hazardous chemicals, and the required format and content of safety data sheets (SDSs). It also explains how the revised HCS is to be enforced during its phase-in period and after the new standard is fully implemented on June 1, 2016.
OSHA’s instruction provides a blueprint for compliance officers to follow when evaluating and citing companies for compliance with the new HCS. It discusses common (and not-so-common) mistakes companies make and offers guidance to compliance officers for issuing citations. Companies should review OSHA’s instruction closely to ensure that they comply with the new HCS.
New HCS History
OSHA revised the HCS in March 2012 to align with the United Nations Globally Harmonized System of Classification and Labelling of Chemicals. The goal of the new HCS was to improve the quality, consistency, and clarity of chemical hazard information that workers receive. Under the new HCS, employers were required to train workers on the new label elements and safety data sheets by December 1, 2013. Chemical manufacturers, importers, and distributors were required to comply with the revised safety data sheet requirement by June 1, 2015. Manufacturers and importers were required to comply with the new label provision by June 1, 2015. Distributors have until December 1, 2015 to comply with the label provision, as long as they are not relabeling materials or creating new safety data sheets, in which case they must comply by the June 1, 2015 deadline. On June 1, 2015, OSHA issued enforcement guidance advising that manufacturers or importers may continue to use safety data sheets and label forms that satisfied the requirements of the prior HCS for a limited time, provided they can demonstrate that they have exercised reasonable diligence and good faith to obtain compliant safety data sheets from their upstream suppliers.
Key Points in OSHA’s Instruction
OSHA’s instruction is divided into several sections:
- General Inspection Guidance – Provides general inspection guidance and citation guidelines for compliance officers. The section also offers specific examples of issues that are considered violative and non-violative of the new HCS.
- Scope and Application – Provides detailed information on the scope of the new HCS, including a discussion of various hazards (some that are not readily known) covered by the new HCS, exemptions, normal conditions of use and foreseeable emergencies, and combustible dust.
- Definitions – Provides further clarification and guidance on the definitions in the new HCS, including “articles,” “combustible dust,” “consumer products,” and “hazards not otherwise classified.”
- Hazard Classification – Outlines the considerable process involved in determining whether a company has complied with hazard classification under the new HCS. This section is the most complicated. It discusses the classification process manufacturers and importers are required to use and how compliance officers should determine compliance and issue citations. The section advises that “[t]he adequacy of a company’s hazard classification should be assessed by examining the outcome of that classification, i.e., the accuracy and adequacy of the information on labels and SDSs and, if available, by reviewing the manufacturer’s or importer’s hazard classification procedures and calculations.” Compliance officers are instructed that if they have questions about hazard classification, they should contact the OSHA Regional Hazard Communication Coordinator who may then contact the Directorate of Standards and Guidance or the Salt Lake Technical Center for technical guidance. The section stresses that chemical manufacturers and importers must provide detailed information and their rationale for how the classification was determined.
- Written Hazard Communication Program – Describes what is required for an acceptable written hazard communication program and related guidance to compliance officers for issuing citations. This is an area commonly cited by OSHA; companies should review this section, the examples included, and the citation guidelines to ensure compliance. The section also discusses hazard communication programs in the multi-employer context, which is another area of emphasis by OSHA.
- Labels and Other Forms of Warnings – Discusses the new labeling requirements that are substantially different under the new HCS. Although compliance officers will be able to tell if companies have complied with the requirements by visual examination, the section offers a detailed description of labeling requirements under various circumstances. The section also advises compliance officers what to look for when evaluating labels.
- Safety Data Sheets – Outlines the information required on safety data sheets and requirements for the layout of those forms. The section offers a strong reminder of the responsibilities of manufacturers, importers, distributors, and employers with respect to SDS forms. It also provides detailed guidance on the required content for safety data sheets and advises compliance officers how to evaluate whether companies have provided incomplete and inaccurate forms.
- Employee Information and Training – Addresses hazard communication training, especially training of temporary employees, which is another area of emphasis by OSHA. The section provides guidance on how to conduct employee interviews and recommends questions for compliance officers to ask to confirm that employees have been properly trained.
Although the instruction has been written primarily for OSHA compliance officers, it is packed with valuable information that companies should review thoroughly to ensure that they are in full compliance with the new HCS. It is critical for companies to review the instruction and speak with counsel where necessary before OSHA visits in order to avoid citations and potentially hefty penalties.