Windex, WhiteOut and HAZCOM: How Does OSHA Treat Mom and Pop?

The Occupational Safety and Health Administration (OSHA) in 1983 issued a Hazard Communication Standard (29 CFR 1900.1200), now commonly referred to as HAZCOM, to cover the use of chemicals and hazardous substances by manufacturers. In 1987 the standard was broadened to include all employers, not just manufacturers. The standard thus provides guidelines and procedures both for companies producing chemicals and for businesses using those products, whether in the manufacturing sector or elsewhere.

HAZCOM requires that chemical manufacturers provide Material Safety Data Sheets (MSDS’s) for each product, along with labels on the containers, listing the contents and any dangers associated with them. In turn, a company using these chemicals must make the MSDS’s for the products available to relevant employees and also conduct training for the products’ safe use. Each company must in addition develop a written hazard communication policy that covers MSDS filing and access, clear labeling of product containers, and training on not just use of the products but also on emergency procedures.

So far, this description might conjure images of huge bustling plants with smoke flying every which way, or of office environments where scores of employees hustle back and forth with massive computer banks and photocopy equipment running nonstop. However, HAZCOM extends even to offices of any size that use commercial, even store-bought, products simply to maintain a clean work environment. Not only is OSHA concerned about such small-office hazards, but the U.S. Consumer Product Safety Code (15 U.S.C. 2051 Sec. 2) has found that “an unacceptable number of consumer products which present unreasonable risks of injury are distributed in commerce."

Whether your business manufactures chemicals, works with importers of hazardous materials, or simply maintains a clean office environment through the use of household chemicals, the basic goal of HAZCOM is to ensure that employers and employees know about chemical hazards and how to protect themselves.  This knowledge, in turn, should help to reduce the incidence of chemical illnesses and injuries. Although the risk of exposure varies with every business, the best line of defense against illnesses and injuries and potential fines for noncompliance is a written Hazard Communication Program.

What of those two- or three-person offices where the only things resembling chemicals might be Windex, White-Out and Simple Green? Would the owner/manager have to provide MSDS’s and training and develop a written hazard communication program? Yes and no, but at minimum a written safety-and-emergency program is always a good idea.

Basically, OSHA employs a “consumer use” standard when it comes to everyday chemical products being used in a work environment. If in the course of daily business, the products aren’t used anymore than a consumer would use them at home, then they can be considered exempt from the Hazard Communication Standard. That would probably cover an awful lot of small office situations, but it’s still a fairly grey area open to interpretation.

In the current Labor Department environment, which emphasizes stringent enforcement of all standards and heavier fines for both repeat and first-time violators, it’s probably not a good idea to hide behind grey areas. Dr. David Michaels, the undersecretary who oversees OSHA, has been loudly and proudly proclaiming a new era of enforcement and is seeking to increase the fines the agency can levy through a measure entitled Protecting America’s Workers Act (PAWA). Even if PAWA does not pass Congress, OSHA already has bumped up its fines from the low end to the middle of the allowable spectrum. For instance, if in the past a violator could be fined up to $7,000, normally a fine might be issued at $1,000, if at all. Now that amount has been escalated to as much as $4,000, but so far this harsher penalty seems to be reserved for repeat—and severe—violators.

Also, OSHA is now much more reliant on its General Duty Clause—and much more flexible in interpreting it. Section 5(a)(1) of the 1970 enabling OSH Act, often referred to as the General Duty Clause, requires employers to "furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." Section 5(a)(2) requires employers to "comply with occupational safety and health standards promulgated under this Act.”

In essence, if OSHA inspectors can find no published standard by which to fine or force a company into compliance, they can fall back on the General Duty Clause. Though it’s highly unlikely they would ever declare Windex a hazard “likely to cause death or serious physical harm,” they could ask for your hazard communication policy and/or your emergency action plan. If you lacked one, you could well be fined or at least ordered to produce one for inspection sometime in the near future.

But Federal OSHA is not the only player in the game.

Some states have adopted even stricter standards than those of Federal OSHA. California comes readily to mind. In all, 24 states, Puerto Rico and the Virgin Islands have OSHA-approved State Plans and have adopted their own standards and enforcement policies. For the most part, these states adopt standards that are identical to Federal OSHA. However, some states have embraced different standards or different enforcement policies. You need to check on applicable standards and regulations if you live in one of those states.

In summary, though White-Out and Windex probably aren’t worthy of filing MSDS’s on them, as a business owner or operator, you should realize you have a “general duty” to keep a safe workplace with contingency and emergency plans in place for all eventualities. All it takes is one less-than-gruntled employee or devious competitor to file a complaint with OSHA, and you could find yourself on the visitation list. And remember, the hazard communication standard historically has been the frequently cited OSHA violation.

Employers, Personnel Concepts has just the right product to help you stay abreast of HAZCOM and in full compliance year-round. Get a copy today of our Hazard Communication Standard Kit and protect yourself against fines and adverse actions.

About the author:
Gary McCarty is a researcher and Web Content Manager for Personnel Concepts.

Note: The details in this white paper are provided for informational purposes solely. All answers are general in nature, not legal advice and not warranted or guaranteed. Readers are cautioned not to rely on this information. Because laws change over time and in different jurisdictions, it is imperative that you consult an attorney in your area regarding legal matters and an accountant regarding tax matters.