The Occupational Safety and Health Administration’s (“OSHA’s”) Hazard Communication (“HAZCOM”) standard was the most frequently cited OSHA standard in the hospitality industry last year. The HAZCOM standard has always been a challenge for hospitality employers, but, thanks to a major overhaul, it has become even more troubling.
In 2012, OSHA revised the HAZCOM standard (which had been unchanged since 1994) in order to align it with the Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”)—a United Nations project aimed at providing a common and coherent approach to classifying chemicals and communicating hazard information on labels and safety data sheets (“SDSs”). Before the GHS project, the information required on warning labels and SDSs varied greatly among different countries and even among different agencies within the same country, causing a great deal of confusion for the regulated community. The deadline for compliance with nearly every aspect of the revised HAZCOM standard was December 1, 2015.
The New Inspection Guidelines
OSHA recently released new inspection guidelines for OSHA inspections reflecting the changes in the revised HAZCOM standard. The new guidelines became effective on July 9, 2015.
The Significance of the Written HAZCOM Program
Perhaps the most notable element of the new HAZCOM inspection guidelines is a tremendous focus on the employer’s written HAZCOM program and related HAZCOM documentation. Inspectors are directed to begin HAZCOM inspections with a review of the employer’s written HAZCOM program to determine whether it meets all of the requirements for the revised standard. Specifically, the revised standard requires that the written program contain details about labels and other forms of warnings, SDSs, and training programs. The written program must include a chemical inventory, which includes a product identifier for each chemical known to be present in the workplace that aligns with the SDS and label. The inventory must include all chemicals present (even if the chemicals are stored and not in use). The program must detail the methods that the employer will use to inform employees of the hazards that they may encounter in both routine and non-routine tasks in their work areas.
If contractors are working at the workplace, the written program must include methods to ensure that all other employers working at the same workplace have immediate on-site access to SDSs for each hazardous chemical that they may be exposed to, methods to inform other employers about any necessary precautionary measures to protect employees, and how to inform other employers about the labeling system used.
The written program must be made available to employees, employee representatives, National Institute for Occupational Safety and Health (“NIOSH”) and OSHA representatives upon request, and this fact must be included in the written program. And the guidelines require employers to designate specific individuals responsible for certain tasks required by the standard, including the designation of the person(s) responsible for workplace labeling, obtaining and maintaining the SDSs, and conducting HAZCOM training. Once the employer’s written program has been scrutinized, compliance officers must confirm that the employer’s practices match the written information provided in the program.
HAZCOM Citations for Substances That the Employer May Not Realize Are Hazardous
OSHA has determined that the agency’s own standard providing the permissible exposure limits to certain substances is outdated and fails to protect employees from hazards related to those substances. Rather than updating the standard, OSHA has found a creative way to use the HAZCOM standard to permit compliance officers to issue HAZCOM citations, even when the employer is in compliance with OSHA’s permissible exposure limits.
Compliance officers are to investigate substances found in the workplace and determine whether they should be deemed hazardous (and thus subject to regulation under the HAZCOM standard). These officers will be carefully scrutinizing any substance:
for which OSHA has established permissible exposure limits;
for which the American Conference of Governmental Industrial Hygienists has a Threshold Limit Value in the latest edition of its annual list and documentation for Threshold Limit Values; and
that the National Toxicology Program has found to be a suspect or confirmed carcinogen or that OSHA regulates as a carcinogen.
Some Things Have Remained Unchanged
Although much has changed under the revised HAZCOM standard, some critical elements remain the same. Employers have always been required to provide immediate access to SDSs (previously known as “material safety data sheets” or “MSDSs”) and that requirement is still in place. And frequent, effective training remains a significant priority under the revised standard. Employers must make sure not only that employees have been trained on the hazards related to every hazardous substance in the workplace but also that the training has been provided in such a way that every employee understands it. When new hazardous chemicals are brought into the workplace, additional training must also be provided.
OSHA has always targeted the hospitality industry for HAZCOM enforcement, and there is no indication that this will change under the revised standard. Accordingly, hospitality employers must be particularly vigilant to ensure that they are in compliance with all elements of the revised HAZCOM standard. A few critical actions will go a long way in reducing or possibly eliminating the chance of receiving a HAZCOM citation. Employers should do the following:
Review all of the chemicals that OSHA and the American Conference of Governmental Hygienists have deemed hazardous, and make sure that those substances are included in the chemical inventory in the written HAZCOM program and in compliance with every other HAZCOM requirement.
Critically review the written HAZCOM program from start to finish, ensuring that new requirements have been satisfied and that individuals designated with particular HAZCOM responsibilities fully understand the entire program and are especially knowledgeable about the areas for which they are responsible.
Make certain that employees have ready access to SDSs.
Ensure that employees are trained on the hazards of the substances that they work with, and quiz employees after they have been trained to confirm that they understood the training.
Be mindful of all of the potentially hazardous substances in the workplace, and make certain that those hazards have been effectively conveyed to employees.