In 2003, the United Nations (UN) adopted the Globally Harmonized System of Classification and Labeling of Chemicals (GHS). The GHS includes criteria for the classification of health, physical and environmental hazards, as well as specifying what information should be included on labels of hazardous chemicals as well as safety data sheets. The United States was an active participant in the development of the GHS, and is a member of the UN bodies established to maintain and coordinate implementation of the system.
In accordance with the rule-making process, OSHA published a proposed rulemaking on September 30, 2009 to align OSHA’s Hazard Communication Standard (HCS) with the GHS. By way of background, it was obvious (to OHSA) that prevailing standards relating to communicating incidents relating to hazardous materials needed to be updated to conform to prevailing global communication standards. Consequently, in May 2005, the Agency added to its regulatory agenda consideration of rulemaking with the goal of aligning certain requirements of the national OSHA-designed HCS with the international UN-designed GHS.
The revision to the prevailing rules necessarily triggers a need for employee education and training about the new system and, more specifically, the health, physical and environmental attributes of hazardous chemicals that they may be exposed to under specified conditions. In order to remain in full compliance with OSHA, all employers must train all employees who come within the purview of GHS by no later than December 1, 2013.
HCS defines “employees” broadly to include any “worker who may be exposed to hazardous chemicals under normal operating conditions or in foreseeable emergencies (Italics added). This is broadly interpreted to include part-time personnel as well as contractors, in addition to full-time staff. Essentially, everyone who satisfies the definition of “exposure” under this rule must also abide by it, regardless of actual employment status.
OSHA’s rule also interprets the word “exposure” in the broadest fashion, to include inhalation, ingestion, skin contact or absorption; encompassing every conceivable manner of introduction of a hazardous chemical to an employee. Importantly, OSHA’s rule is not limited to mere contact but, rather, it expressly mentions mere exposure.
Under OSHA’s rule, the word “exposed” arises in two defined conditions: (1) normal working conditions and (2) foreseeable emergencies. These terms are interpreted to include part-time pyrotechnicians, as well as seasonal workers who may come into contact or be exposed to hazardous chemicals, through routine handling, shipping or storage activities. This interpretation is also broad enough to include retail activities, meaning that all retail personnel responsible for unloading, stocking, and handling consumer fireworks must also be trained.
The rule, however, is not without limits. Employees such as office and sales personnel who are only rarely exposed (to hazardous chemicals) appear to fall outside the contemplated scope of the rule. Nevertheless, you can anticipate the evolution and resolution of the true scope of this rule to be fact-intensive and, ultimately, the subject of litigation (i.e., whether or not sufficient facts exist to warrant finding that the employee was not exposed as a normal working condition or, similarly, is not duty-bound to respond to foreseeable emergencies, regarding hazardous chemicals). For these reasons, small business operators who customarily perform a wide range of duties, including handling, storing, shipping and selling fireworks should also be properly trained.
In conclusion, OSHA’s rule contemplates training individuals regarding the hazardous chemicals that one may be exposed to during either normal working conditions or a foreseeable emergency. Accordingly, when in doubt training is recommended, if only because an ounce of prevention is better than an OSHA investigation. The reader can, however, appreciate the irony, and consequences, associated with this governmental regulation to the extent that, here, OSHA’s rules apply only to certain workplace conditions, leaving all others, including the consumer, unaffected and seemingly unprotected (from the OSHA-perceived dangers associated with hazardous chemical components of fireworks). Buyer beware; caveat emptor.
