A unanimous three-member Occupational Safety and Health Review Commission has rejected an important interpretation by the Occupational Safety and Health Administration (OSHA) of its Hazard Communication Standard, 29 C.F.R. § 1910.1200. McDermott Will & Emery’s OSHA, MSHA and Catastrophe Response Group had filed an influential amicus curiae brief on behalf of a coalition of major trade associations disputing OSHA’s interpretation of this standard, which requires that employers provide information about hazardous chemicals to employees. An OSHA compliance directive stated that employers must advise employees of the hazards posed by each chemical in the workplace, which would have been enormously burdensome and costly. Relying heavily on the sources and arguments in McDermott’s amicus brief, the Commission rejected OSHA’s interpretation.
OSHA’s regulation requires that employers "provide employees with effective information and training on hazardous chemicals in their work area." OSHA had issued an interpretation stating that training must be chemical-specific, i.e., that employers must make employees "specifically aware which hazard category … [a chemical] falls within." A coalition of seven major trade associations organized by Art Sapper of McDermott’s OSHA Group submitted a brief observing that OSHA’s interpretation would require that employees be told the name and hazards of every chemical in a workplace. The brief demonstrated that the text and legislative history of the regulation indicated that employers may instead train employees by discussing groups of chemicals arranged in hazard categories (e.g., flammability), without mentioning the name of each chemical. The brief also pointed out that OSHA’s interpretation not only would have imposed an enormous burden on employers (such as chemical plants) who use hundreds or thousands of chemicals but also would have added little to safety: Employees would not have been able to reliably recall the massive amount of information they would have received under OSHA’s interpretation.
The result of the Commission’s decision is that employers may train employees by hazard category—that is, inform employees that the workplace contains chemicals that are in the general categories of, for example, flammable liquids or carcinogens, and state how employees can protect themselves against such hazards. Employers are not required to name and discuss each chemical individually.
The Chamber of Commerce of the United States, the National Association of Manufacturers, the Chemical Manufacturers Association (now the American Chemistry Council), the American Petroleum Institute, Organization Resources Counselors, Inc., the National Association of Chemical Distributors and the Association Connecting Electronics Industries comprised the coalition behind the amicus brief