Labor & Employment Advisory: December 1 Deadline for Training under OSHA’s Revised Hazard Communication Standard

No later than December 1, 2013, all employers whose employees may be exposed to hazardous chemicals must train their employees on new labeling elements and a new format for Safety Data Sheets (SDSs), contained in OSHA’s revised Hazard Communication Standard (HCS), pursuant to an OSHA rule published in the Federal Register on March 26, 2012. This training requirement is the first of several compliance deadlines the new regulation imposes on employers, as implementation of the revised HCS will occur incrementally. See Alston & Bird Labor & Employment Advisory (April 11, 2012).

Background

OSHA’s revised HCS adopts the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS) and requires the use of new hazardous chemical labeling elements and a standardized format for SDSs.

The revised HCS sets staggered deadlines for compliance as follows:

See 29 C.F.R. § 1910.1200(j). Notwithstanding the 2015 deadlines for the new label and SDS formats, employers must complete employee training regarding these requirements no later than December 1, 2013. OSHA reasons that the new label and SDS formats will be introduced into the workplace prior to the 2015 deadlines, so the “intent of this training is to ensure that when employees begin to see such labels and SDSs in their workplaces, they understand how to use them and access the information effectively.” 77 Fed. Reg. 17574, 17738 (March 26, 2012).

New Label Requirements for 2015

The new elements that the HCS will require on labels include:

• product identifier;
• signal word;
• hazard statement(s);
• pictogram(s);
• precautionary statement(s); and
• name, address and telephone number of the chemical manufacturer, importer or other
  responsible party.

In addition, all of this information must be provided in accordance with Appendix C of the HCS, “Allocation of Label Elements.” See 29 C.F.R. § 1910.1200(f) and Appendix C.

New SDS Requirements for 2015

In addition to the renaming of Material Safety Data Sheets as “Safety Data Sheets,” the new SDSs must include at least the following section numbers and headings, and associated information under each heading, in the order listed:

• identification;
• hazard(s) identification;
• composition/information on ingredients;
• first-aid measures;
• fire-fighting measures;
• accidental release measures;
• handling and storage;
• exposure controls/personal protection;
• physical and chemical properties;
• stability and reactivity;
• toxicological information;
• ecological information;
• disposal considerations;
• transport information;
• regulatory information; and
• other information, including date of preparation or last revision.

See 29 C.F.R. § 1910.1200(g)(2).

Specific Training Requirements

The new HCS provides that “[e]mployers shall train employees regarding the new label elements and safety data sheets format by December 1, 2013.” 29 C.F.R. § 1910.1200(j)(1). OSHA has published a relatively detailed fact sheet outlining what training must be covered—OSHA Fact Sheet, “December 1st, 2013 Training Requirements for the Revised Hazard Communication Standard.” The Fact Sheet indicates that “[t]raining on labels must include information on” the type of information the employee would expect to see on the new labels, including the new required elements, as well as how an employee might use the elements in the workplace. The Fact Sheet further indicates that “[t]raining on the format of the SDS must include information on” the new standardized 16-section format and the type of information found in the various sections, as well as how information on the label is related to the SDS.

Not included in the effective date provision, nor mentioned in OSHA’s Fact Sheet on training, is the new HCS requirement that training include specific information on the “simple asphyxiation, combustible dust, and pyrophoric gas hazards, as well as hazards not otherwise classified” of the chemicals in the work area. See 29 C.F.R. § 1910.1200(h)(3)(ii). OSHA does not make it clear whether these training requirements are specifically required by December 1, 2013. Presumably, the training is required if the newly formatted SDSs and labels include such hazard information.

Other Resources from OSHA

In addition to the Fact Sheet on training requirements, OSHA has published a number of materials on the new HCS, including an OSHA Brief, “Hazard Communication Standard: Labels and Pictograms,” as well as “Hazard Communication Standard QuickCards” on SDSs, labeling and pictograms, in English and Spanish.

Related Issues

Training in Languages Other than English
OSHA has previously taken the position, and restated this position in its new HCS Fact Sheet, that “[i]f employers customarily need to communicate work instructions or other workplace information to employees in a language other than English, they will also need to provide safety and health training to employees in the same manner.” OSHA Fact Sheet, “December 1st, 2013 Training Requirements for the Revised Hazard Communication Standard.” See also OSHA Training Standards Policy Statement (April 28, 2010).

Office Environments
OSHA has previously interpreted the HCS not to cover office workers who encounter hazardous chemicals only in isolated instances. See Standard Interpretation, “Applicability of the HCS to office workers and copy machine operators” (March 31, 1989).

Contingent Workers
OSHA takes the position that temporary agency employers are expected to provide generic hazard training and information concerning categories of chemicals employees may potentially encounter, and host employers are responsible for providing site-specific hazard training. See Standard Interpretation, “Information on temporary workers, particularly those in the electronic assembly industry,” (April 30, 1996) and Standard Interpretation, “Employers’ responsibilities towards temporary employees” (Feb. 3, 1994). Employers should carefully consider how to ensure they are complying with OSHA standards with respect to contingent workers.

Enforcement
OSHA’s HCS is ranked as the third most frequently cited standard in OSHA inspections. An employer’s hazard communication plan is one of the documents OSHA directs its compliance officers to request during all inspections. During any OSHA inspection, employers should expect a careful review by OSHA of how they have met these new HCS training requirements.

This advisory is published by Alston & Bird LLP’s Labor & Employment practice area to provide a summary of significant developments to our clients and friends. It is intended to be informational and does not constitute legal advice regarding any specific situation. This material may also be considered attorney advertising under court rules of certain jurisdictions.