Today OSHA announced two new web-based resources designed to help employers eliminate chemical hazards in the workplace. Both the toolkit for identifying less-hazardous substitutes and the annotated exposure limits table are useful informational resources designed to promote voluntary action by conscientious employers and informed demands by workers and their advocates. But OSHA has to deal with both the “high road” and the “low road” employers, so using these new tools in enforcement proceedings is a necessary adjunct to voluntary employer efforts. With some enterprising work by enforcement officials and strong support from the Solicitor of Labor the tools could be the basis for a new wave of enforcement under the OSH Act’s General Duty Clause.
As OSHA freely admits, the Permissible Exposure Limits (PELs) found in current regulations are out-of-date and inadequately protective. Employers may expose workers to chemicals up to those limits without incurring fines for violating the standard, even though the exposures are patently dangerous. Most were adopted in the early 1970s and were based on scientific research from the 1940s through 1960s. In the late 1980s, the agency undertook an effort to set new exposure limits for hundreds of chemicals in one fell swoop, only to be thwarted by a court that wanted more detailed analyses of each individual chemical exposure limit. Since then, OSHA has initiated and finalized just one new PEL – as part of a comprehensive standard for hexavalent chromium exposure – but only after Public Citizen and the Oil, Chemical and Atomic Workers Union petitioned the agency to do so and fought a protracted legal battle to get the rulemaking started and completed. In the meantime, non-governmental organizations have continued to update their own occupational exposure limits (OELs) for chemicals found in the workplace, which many employers implement voluntarily because they know that OSHA’s standards don’t do enough to protect workers.
The broad recognition that workers face significant hazards even when chemical exposures are below OSHA’s PELs presents an interesting question about employers’ duty to protect their workers. Fortunately, Congress foresaw the potential for such a problem and included in the OSH Act a provision known as the General Duty Clause (GDC). Under the GDC, “Each employer shall 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.”
As interpreted by the Occupational Safety and Health Review Commission (OSHRC) and federal courts, OSHA must prove four elements to establish a GDC violation:
1. Employees are exposed to a hazard;
2. The hazard is recognized by the employer or the industry generally;
3. The exposure has caused or is likely to cause death or serious physical injury; and
4. There is a feasible means of abating the hazard.
Elements (1) and (3) are not generally significant hurdles when dealing with toxic chemicals. The difficult points for OSHA to prove are that a chemical hazard is “recognized” and that there are feasible means of abatement. But with the new annotated table of exposure limits, employers are on notice that exposures below OSHA’s PELs and above other organization’s OELs present hazards that are recognized by the occupational health community and the industry generally. And the new substitute-chemical toolbox may provide feasible means of abating those hazards.
GDC cases are not easy matters for OSHA’s enforcement staff or the agency’s lawyers, so we can’t expect to see a flood of new cases in the wake of today’s announcement. However, selective use of this enforcement theory could create a ripple effect that would ensure better protections for the many workers who are exposed to dangerous levels of toxins. To fulfill its mission of preventing occupational illnesses and injuries, OSHA cannot just rely on employers’ voluntary use of these new tools – the tools should be part of the agency’s enforcement scheme.