Once again, a shocking number of employers across the country have failed to comply with longstanding safety law intended to keep workers safe from bodily injuries caused by workplace chemicals with continued violations of 29 CFR §1910.1200. This regulation mandates the Hazard Communication Standard (“HCS Regulation”).
In 2021, the HCS Regulation ranked as the fourth (4th) most violated safety regulation in the United States. This year, it ranked second (2nd).
It was surpassed only by the general fall protection regulation as the most cited violation in the latest annual Top Ten List of Safety Violations published by the Occupational Safety and Health Administration (“OSHA”). Read, “OSHA Reveals Top 10 Safety Violations for Fiscal Year 2022 at NSC Safety Congress & Expo,” published by the National Safety Council in its news release dated September 20, 2022.
Obviously, things are getting more dangerous for industrial workers, and others, who are required to do their jobs on worksites where hazardous materials are present.
No federal safety regulation except for fall protection is ignored at the peril of worker safety as often in this country as the law designed to keep people on the job safe from dangerous chemicals.
What is the Hazard Communication Standard (HCS)?
The HCS places a legal duty upon employers to protect workers and those on their job site from serious harm or death from interaction with dangerous chemicals. The employer has to do special things as stated in the law.
It is not industry specific. The HCS Regulation applies to a wide variety of industries, from the largest factory or manufacturing plant, to health care facilities, restaurant chains, cleaning crews and industrial repair companies, and even landscaping enterprises. Where there is any kind of known toxin on the site, or any form of hazardous chemical, then this safety regulation must be followed.
The HCS has been revised and amended several times over the years. The current version dovetails with the Globally Harmonized System of Classification and Labeling of Chemicals (GHS). It establishes (1) standards for every business to follow that either manufactures or supplies chemicals, as well as (2) protocols for employers to follow when harmful chemicals are on their worksite (stored, handled, used) where they can potentially harm workers.
As OSHA explains, its purpose is “… to provide a common and coherent approach to classifying chemicals and communicating hazard information on labels and safety data sheets.”
HCS Requirements for Employers
The HCS Regulation tries to keep workers safe by first making sure that any chemical on the worksite is properly labelled with detailed information regarding its particular dangers, risks, and best practices for safety. Chemical manufacturers and importers must follow this law. Labels and “Safety Data Sheets” (“SDS”) must be provided on each product for employers and employees to read.
Any employer with dangerous chemicals on the worksite must check out their entire product inventory to comply with the HCS Regulation. All hazardous chemicals at the workplace must be (1) labelled; (2) correctly labelled; and (3) come with SDS. All workers must be trained in the specific risks of these on-site chemicals and how to handle, store, or use them safety.
OSHA explains that the HCS, as amended, now provides the following, as well:
- Hazard classification: Provides specific criteria for classification of health and physical hazards, as well as classification of mixtures.
- Labels: Chemical manufacturers and importers will be required to provide a label that includes a harmonized signal word, pictogram, and hazard statement for each hazard class and category. Precautionary statements must also be provided.
- Safety Data Sheets: Will now have a specified 16-section format.
- Information and training: Employers are required to train workers on the new labels elements and safety data sheets format to facilitate recognition and understanding.
Employer Breach of Duty for Dangerous Chemicals in the Workplace
Sadly, all too often there are employers here in Illinois and Indiana, as well as the rest of the nation, who either fail to follow the latest version of the HCS or ignore its requirements altogether. For more on chemical injuries, read Chemical Accidents: Burns, Inhalation, or Neurological Work Injuries on the Job in Indiana or Illinois.
The HCS Regulation means much more than making a list of chemical products being used at the workplace and sticking it in a binder somewhere. The HCS Regulation defines the employer’s legal duty of care to include an in-depth understanding of these hazardous materials and the harm they can cause, both as (1) hazardous products on the site as well as (2) any dangerous ingredients contained within any other product that is present on the jobsite.
Safety Data Sheets on the Worksite
Of importance, SDS must be easily accessed by workers on the job. The SDS is designed to help prevent accidents involving hazardous chemicals as well as providing workers with instructions on emergency measures to take in the event of an injury or accident.
Workers should be made aware of the location of SDS on the jobsite as well as the SDS’s ability not only to instruct on safety measures but how to help someone who suffers injury from a dangerous chemical while on the job.
Under the HCS Regulation, OSHA explains that all Safety Data Sheets must provide the following, in a uniform format for easy readability, for every dangerous chemical on the worksite:
- Section 1: Identification includes product identifier; manufacturer or distributor name, address, phone number; emergency phone number; recommended use; restrictions on use.
- Section 2: Hazard(s) identification includes all hazards regarding the chemical; required label elements.
- Section 3: Composition/information on ingredients includes information on chemical ingredients; trade secret claims.
- Section 4: First-aid measures includes important symptoms/effects, acute, delayed; required treatment.
- Section 5: Fire-fighting measures lists suitable extinguishing techniques, equipment; chemical hazards from fire.
- Section 6: Accidental release measures lists emergency procedures; protective equipment; proper methods of containment and cleanup.
- Section 7: Handling and storage lists precautions for safe handling and storage, including incompatibilities.
- Section 8: Exposure controls/personal protection lists OSHA’s Permissible Exposure Limits (PELs); ACGIH Threshold Limit Values (TLVs); and any other exposure limit used or recommended by the chemical manufacturer, importer, or employer preparing the SDS where available as well as appropriate engineering controls; personal protective equipment (PPE).
- Section 9: Physical and chemical properties lists the chemical’s characteristics.
- Section 10: Stability and reactivity lists chemical stability and possibility of hazardous reactions.
- Section 11: Toxicological information includes routes of exposure; related symptoms, acute and chronic effects; numerical measures of toxicity.
- Section 12: Ecological information*
- Section 13: Disposal considerations*
- Section 14: Transport information*
- Section 15: Regulatory information*
- Section 16: Other information, includes the date of preparation or last revision.
As one safety article explains, a simple cleaning product named “Super 8” may contain a dangerous chemical (e.g., sodium hypochlorite) that can cause catastrophic bodily injury or death. Read, “Lessons Learned: Improving HazCom and Avoiding the Dangers of Incompatible Chemicals,” written by Phil Molé and published in Velocity EHS on November 19, 2019.
Accordingly, the duty of care imposed by the HCS Regulation is a huge responsibility for employers and obviously involves more time and effort than many companies may be willing to undertake, given the huge number of reported violations.
Claims for Justice After a Chemical Accident or Injury on the Industrial Worksite
Whether it is a construction worker injured from exposure to lead during welding or to silica while working with concrete, or a steel mill worker suffering catastrophic or fatal injuries from the arsenic or hexavalent chromium used in production, both state and federal laws are available to that injured worker and their loved ones which may provide avenues for justice. See, Silica Dust Poisons Millions of U.S. Workers Each Year On the Job in Mills, Construction Sites, Railroads, Foundries, Shipyards, Etc. and Indiana Remains Top Steel Producer in the Nation: The Deadly Dangers of Steel Production.
Chemicals can kill or permanently harm within seconds, or over an extended period of time. Employers, as well as manufacturers, suppliers, and other third parties have established legal duties to keep workers safe from these known dangers on the job site. If a worker is harmed, then not only may workers’ compensation provide relief, but there may be claims for negligence, defective products, and other claims to be advanced against third parties based upon the criteria of the HCS Regulation.
For more, read:
- Workers’ Compensation and Third-Party Claims for On-the-Job Accidents
- Workplace Safety and OSHA Regulations in Indiana and Illinois
- Premises Liability and Workplace Accidents: Third Party Injury Claims
- Multiple Employers on the Construction Site: Who Is Liable For Construction Worker Accidents?
- How Great is the Danger of Workers Dying in Fatal Work Accidents in 2022?
- Workplace Housekeeping and Serious Accidents on the Job: Duty of Care.
It is infuriating that year after year, the same federal safety violations continue to be ignored or disrespected by employers in this country, at the risk of severe or deadly harm to their workers. Please be careful out there!
