Section One: Strategies to Reduce Toxic Risks and Assist Injured Workers
When an employer refuses to take reasonable action to protect workers from dangerous chemical exposures, workers have a variety of options for holding the employer accountable, from filing a complaint to market-based campaigns. Often, workers and their advocates will have to employ multiple strategies to achieve their risk-reduction goals. But ultimately, every worker has a right to a safe and healthy workplace free of toxic chemicals that could lead to injury or death.
Exercising Your Right to Know
The nation’s environmental and workplace safety laws ensure that people have a right to know about the chemicals they encounter in their daily lives. Employers should have detailed and accessible information about the chemicals used on a worksite. Critically, they must also provide workers training that informs them about the chemicals they will be working with, the hazards of such chemicals, how to identify those hazards, and precautionary measures taken to protect workers, as well as how workers can protect themselves. Environmental laws are designed with the broader public’s right to know in mind, but databases developed in accordance with those laws may still provide useful information to workers who want to advocate for elimination or better control of chemicals in the workplace. The National Institute for Occupational Safety and Health, part of the U.S. Centers for Disease Control and Prevention, even has a small program designed specifically to investigate hard-to-identify workplace health hazards. It can produce employer-specific risk-reduction recommendations that may not be strictly enforceable but that are hard for an employer to ignore. Section Three, below, provides additional detail about these laws, as well as a list of places to look for more information about chemical hazards.
Working with an Employer to Utilize Safer Alternatives
Whenever possible, when workers have identified dangerous chemicals to which they are exposed, their best solution is to find a way to eliminate the use of the toxic chemical by finding safer alternatives. Workers can use the resources listed in Section Three to identify safer alternatives or processes and then talk with their employer about instituting these alternatives.
If a workplace is unionized, the employer has a duty to bargain in good faith with the union. This means the employer must provide the union with information about workplace hazards, including hazards from toxic chemicals. The employer must also allow the union to perform inspections of the workplace and take samples. If the union seeks improvements to address the hazards, the employer is required to come to the table to negotiate in good faith.
Additionally, collective bargaining agreements (CBAs) may include protections that supplement applicable laws and standards. CBAs may also describe procedures for filing a grievance against the employer for exposure to chemicals or other workplace hazards. Any unionized employee concerned about toxic chemicals in the workplace should consult their collective bargaining agreement and talk with the bargaining unit’s authorized employee representative.
Refusing Hazardous Work
In emergency situations, the Occupational Safety and Health Act (OSH Act) and the National Labor Relations Act (NLRA) provide certain workers protections from retaliation by their employer for refusing to perform hazardous work.
Employees protected by the OSH Act have a right to refuse hazardous work if (1) they have a “reasonable” belief that the working conditions pose a real danger of serious injury or death, (2) where possible, they have brought the dangerous conditions to the employer’s attention, and the employer refused to address them, and (3) there is no time to get the dangerous conditions corrected by calling an OSHA inspector.
The “reasonable” belief standard requires that a reasonable person in the same circumstances as the worker would have reached the same conclusion that performing the assigned task would subject them to serious injury or death and that the danger is so immediate that it could not be remedied by calling an OSHA inspector. This requires more than that the employee had a good-faith belief that the work they were asked to perform was hazardous.
Moreover, it is vital that all elements are satisfied; otherwise, the law provides no protection for refusing to work, and the employer may take adverse action, including firing the employee. Satisfying these elements is difficult and rarely accomplished.
The NLRA also provides certain private sector employees the right to refuse hazardous work. Specifically, the law protects employees from retaliation if two or more employees are acting in concert in refusing to perform work that they in good faith believe to be hazardous. If the workers are members of a labor union, they must be careful that their refusal to work does not violate a “no strike” clause of their collective bargaining contract with the employer.
The NLRA does not apply to all workers — it does not cover independent contractors, supervisors, domestic workers, agricultural workers, railway workers, or federal or state public sector employees (with the exception of U.S. Postal Service workers).
If employees are covered by the NLRA and they refuse to perform hazardous work, the employer is prohibited from retaliating against them. If an employer does retaliate, the employees can file an unfair labor practice charge against the employer within 180 days of the retaliatory action pursuant to Section 8(a)(3) of the statute.
Reporting an Emergency
In the case of an emergency — a hazard that poses an immediate threat to human health or the environment — the best course of action is to call 9-1-1, and then report the hazard to the appropriate agency.
Workplace emergencies, including fatalities or life-threatening conditions, should be reported to OSHA immediately.
OSHA Emergency Hotline: 1-800-321-OSHA
EPA National Response Center: 1-800-424-8802
Poison Control Center: 1-800-222-1222
Environmental emergencies, such as oil and chemical spills, radiological and biological discharges, and accidental release of pollutants, should be reported to EPA’s National Response Center. If someone may have ingested a poisonous substance, the Poison Control Center should also be contacted immediately.
After contacting local authorities and the appropriate agency or agencies, it may be a good idea to follow up by submitting a complaint or tip in writing to OSHA and EPA, and any relevant state agencies.
Filing a Complaint with OSHA
Workers and qualified worker representatives may file a complaint with federal OSHA (or the state agency counterpart) to report workplace hazards or violations of workplace standards and to request an inspection. For example, workers might consider filing a complaint with OSHA to report violations of the Hazard Communication standard, exposure to a chemical above the permissible exposure level set by OSHA, or failure by an employer to provide personal protective equipment.
Filing a complaint alerts OSHA that workers at a particular worksite have concerns about their health and safety and that an inspection may reveal violations or otherwise hazardous conditions that need to be corrected.
When OSHA receives a formal complaint, the agency will conduct an inspection. If OSHA finds violations during an inspection, the agency will issue a citation against the employer requiring certain actions to abate the violations and often imposing a monetary penalty. Additionally, the mere presence of OSHA can put employers on notice that employees expect safe and healthy working conditions and that they will report hazards to authorities if the employer does not address them.
Still, it is important to consider carefully whether to file a complaint in each particular case. If you are not reasonably certain that there is an ongoing violation of an OSH regulation or standard in the workplace, it is possible that OSHA will not find any violations during its inspection, which may lead an employer to point to the inspection as reason not to address or communicate about employee concerns.
Employees considering whether to file a complaint with OSHA should consult with a worker representative or attorney before doing so to ensure they fully understand what is required and what risks are involved, as well as how to avoid those potential risks.
For example, submitting a complaint signed by two or more workers may provide some protection under the National Labor Relations Act (NLRA), whereas the NLRA does not apply when only one worker files the complaint. Similarly, when the hazard or violation may fall under the jurisdiction of an agency other than OSHA, filing the complaint with that agency may provide better protections and remedies in the event the employer unlawfully retaliates.
Some of the most common questions and answers about filing an OSHA complaint are discussed below.
Who May File a Complaint?
Any employee or a qualified employee representative may file a complaint with OSHA. Qualified employee representatives include the employee’s attorney, an authorized representative of a collective bargaining unit, or a bona fide representative acting at the employee’s request, such as a spouse, health care provider, social worker, or a nonprofit group, among others.
Additionally, any member of the public may submit a tip to OSHA with information about a safety or health hazard in the workplace. Of course, given OSHA’s severe resource constraints, the agency is unlikely to follow up on a tip from a member of the public with any rigor unless the condition appears to be especially hazardous.
Can an Employer Retaliate?
It is illegal for an employer to retaliate against any employee who files a complaint with OSHA, but workers should keep in mind that retaliation can still occur. Although a worker who experiences retaliation may have remedies under the law, prevailing in a case against an employer for retaliation is extremely difficult because of the challenge in proving the employer took an action against an employee because of their complaint to OSHA.
As a preventive measure, the complaint should clearly state that the complainant’s information is to remain confidential and not be shared with the employer. While OSHA is supposed to keep workers’ information confidential upon their request, the information contained in the complaint might be sufficient for an employer to determine who filed it even when no name is provided, or even when it is filed by a qualified employee representative on behalf of a worker.
What Are Key Features to Include in a Complaint?
A formal complaint that will trigger an OSHA inspection should be submitted in writing and as soon as possible after the hazard is observed, and it should provide specific details about the hazardous condition. However, OSHA will limit the scope of its inspections to the issues complained about, so workers may want to keep the complaint broad enough so that the inspection is not too narrow to catch the suspected violations.
Some questions to attempt to answer in a written complaint:
What is the employer’s name and mailing address?
Who manages the worksite and how can OSHA reach them?
What is the location of the worksite?
What is the specific hazard observed? If a chemical hazard, what chemicals are involved?
What day and time was the hazard last observed?
Does the hazard only occur at a specific time of day, on a specific shift, on certain days or weeks, etc.?
Has anyone become ill or been injured due to this hazard? If so, what was the injury or illness that resulted?
Has the hazard been reported to management? If so, what actions, if any, did management take to address the hazard?
What specifically would you like OSHA to do in response to the complaint? Would you like OSHA to conduct an inspection?
Are you filing the complaint as a current employee, a former employee, or as a representative of a current employee?
Should OSHA keep your name and contact information confidential?
How Do I Submit a Complaint?
Complaints may be submitted in person, by fax, by mail, or through the agency’s online complaint system (see box at right).
If submitting online, the complaint will be directed to the appropriate office. If faxing, mailing, or submitting in person, when the worksite identified in the complaint is located in a federal OSHA state, the complaint should be submitted to the nearest OSHA regional or area office. In states that operate their own OSH program under a state plan, submit via fax, mail, or in person to the state OSH agency. For a list of OSHA state offices, visit https://www.osha.gov/html/RAmap.html.
What Happens After Filing the Complaint?
When OSHA conducts an inspection in response to a worker complaint, the inspector often limits the scope of the inspection to the specific hazard(s) described in the complaint.
No matter the type or scope of the inspection, the OSH Act provides employees three important rights:
The right to have a representative present during the inspection.
The right to talk privately with the inspector.
The right to take part in meetings with the inspector, both before and after the inspection is conducted.
The ins and outs of OSHA’s legal process are complex and beyond the scope of this guide. An excellent place to begin is with the Occupational Safety & Health Law Project’s report, Keep the Job Safe and Healthy: A Workers Toolkit to Understanding OSHA’s Legal Process, available at www.oshlaw.org/resources.
In 2015, workers employed by a janitorial services company in Austin, Texas, began to experience adverse health effects, including skin rashes, headaches, burning eyes, and throat and nose irritation, when using cleaning products provided by the company. They were unaware of the chemicals in the cleaning products, did not receive proper training on the chemicals, lacked eye protection, and were provided with gloves that tore easily, resulting in direct exposure to the cleaning products. At one site, a worker who was suffering from nose bleeds ... Read more..
Submitting a Tip to EPA
While most hazards inside the workplace should be reported to OSHA, some may be more appropriate to report to EPA, or to both agencies. For example, a chemical leak inside a workplace should be reported to OSHA, and in many instances, should also be reported to EPA, especially if the chemical presents a risk to public health or the environment outside the workplace. Similarly, a violation of EPA’s risk management standards pertaining to toxic chemicals may be reported to OSHA, EPA, or both agencies. When in doubt, we recommend notifying both agencies of the hazard.
When submitting a non-emergency tip to EPA headquarters, the best approach is to report the concern using EPA’s online “Report an Environmental Violation” web form, at right. Tips may also be submitted by telephone by calling the EPA regional office for the relevant state. Whether the tip is submitted online or by telephone, it is good practice to specify what action EPA is being asked to take in response to the tip, such as conducting an inspection.
Submitting a tip to EPA benefits the agency by assisting with compliance and enforcement efforts, especially since the agency’s enforcement resources are limited and spread thin. When environmental laws and regulations are well enforced, it not only helps protect public health and the environment, it also helps level the playing field for businesses that follow the law. Additionally, tips can help EPA identify the environmental concerns of most significance to certain communities.
If EPA inspectors find a worker exposed to hazardous chemicals, the agency refers the case to OSHA, according to a Memorandum of Understanding (MOU) the agencies signed in 1990. The MOU establishes a tracking system for referrals of violations and allegations exchanged by the two agencies. The agencies have also agreed to share information about complaints, inspections, violations, penalties, and other enforcement actions pertaining to the scope of the MOU. Additionally, the MOU indicates agreement by the two agencies to provide training to the other agency’s personnel that covers relevant laws and regulations, compliance requirements, referral procedures, and joint enforcement and inspection initiatives.
In addition to submitting the tip to EPA officials, workers or representatives should consider alerting the state’s environmental agency or health department, as well as local city or county agencies, as appropriate. Contact information for local agencies can be found in the Index of Health and Environmental Agencies of U.S. States and Territories, which is available online at www.epa.gov/home/health-and-environmental-agencies-us-states-and-territories.
Under the federal OSH Act and state OSH programs, workers do not have an option to file a lawsuit against an employer to enforce the law, even if federal OSHA or the state agency fails to do so. However, the right of members of the public to enforce the law by filing “citizen suits” is a common feature in our nation’s federal environmental laws. These citizen suit provisions essentially deputize members of the public, including workers and their representatives, to help enforce the law.
Citizen suit provisions typically authorize lawsuits against an establishment for violating the statute, such as releasing hazardous pollutants into the air or discharging wastes into the water. Depending on the statute, the suit may seek to recover civil penalties for the violation or may seek an injunction compelling the violator to abate the violation. When the statute provides for the recovery of civil penalties, the party filing the citizen suit can leverage the civil penalties to their advantage in negotiating for improvements in the workplace, as occurred in the Giant Cement case example below. Environmental statutes also authorize citizen suits against EPA for failing to perform nondiscretionary duties required by law; this second type of citizen suit is more common in the context of rulemaking than enforcement because most enforcement decisions are considered by courts to be discretionary.
The following discussion summarizes the basic components of citizen suits and provides a few examples of how workers exposed to toxic chemicals may utilize these suits against their employers. These cases are complex and are not always the best approach to resolving a concern; thus, workers interested in citizen suits should consult with an attorney or worker representative before proceeding. If workers succeed on a citizen suit, the employer would likely be required to pay the attorney’s fees.
Before filing a citizen suit alleging violations by an employer or establishment for occupational exposures, it is worth considering whether first to seek recourse by filing a complaint with OSHA or a tip with EPA. In some instances, filing a complaint or tip may work to remedy the problem without ever filing a lawsuit.
Basic Components of Citizen Suits
Typically, citizen suit provisions extend to any person the power to file a lawsuit against any other person or entity that violates the law. The right to file suit often becomes available only after the person who intends to file the suit has provided a “notice of intent to sue” to the relevant enforcement agency and the party alleged to be in violation, specifying the alleged violations. Such a notice typically requires a waiting period, which gives the alleged violator an opportunity to correct the problem and gives the agency an opportunity to “diligently enforce” the statute. If the agency has already begun its own enforcement action against the violator, the party filing the suit may not be able to proceed with their case. If the agency does not begin its own enforcement action and the violator does not correct the problem, workers should be aware that there might be a statute of limitations for filing the suit in court.
In 2006, the United Steelworkers sent “notices of intent to sue” to Giant Cement Holding, Inc., and two of its subsidiaries, Giant Cement Company and Giant Resource Recovery, due to environmental reporting violations discovered at the company’s co-located cement plant and hazardous waste storage facility in Harleyville, South Carolina. One such “citizen suit” involved the company’s cement plant, where hazardous-waste-derived fuel was used to fire a cement kiln. While the practice is permissible under the law, the workers inside the plant had no information about what toxins the hazardous waste contained or how to address exposures. To address that, workers first went to the company to ask for information about the hazards presented by the fuel. This concern was particularly heightened after a hose failed and a worker was drenched with the hazardous-waste-derived fuel. The company refused ... Read more...
Although citizen suits can be complex, simply sending the notice of intent to sue may be enough to get the attention of the violator without ever having to file the suit. Companies faced with a potential citizen suit may urge the relevant agency to initiate an enforcement action and resolve the allegations to forestall the citizen suit. Such a step would likely be based on the calculation that the agency might settle the case on terms more favorable to the company than might result from the private lawsuit. For this reason, in such cases, the individuals who intend to file the citizen suit should monitor the agency’s enforcement action to ensure it addresses the violations adequately. Nonetheless, this guarantees some action is taken against the violator without the party filing the suit having to spend years involved in complex litigation. In other words, simply filing a notice of intent to sue may prompt action by the establishment and the agency without the citizen ever having to step foot in the courtroom. For examples of notices of intent to sue filed with EPA, visit www.epa.gov/noi.
Because each law has its own specific requirements, workers (and their representatives) should consult the particular statute before filing suit. In addition, for workers, one of the biggest challenges with citizen suits is dealing with retaliation. Anti-retaliation provisions in state and federal whistleblower laws are inconsistent and rarely give workers sufficient protection.
Filing for Workers’ Compensation
When a worker suffers a work-related injury or illness, workers’ compensation insurance may assist with paying medical expenses and replacing lost income. Workers’ compensation may also provide benefits to the surviving relatives of a worker killed on the job.
State workers’ compensation laws cover most workers, though the coverage varies by state. For example, Texas does not require employers to provide workers’ compensation coverage, and some states may exempt small employers. Federal workers must look to federal law for coverage.
When workers’ compensation insurance provides coverage, it serves as the exclusive remedy available to workers and their families. This means that an injured or ill worker, or the family of a deceased worker, may not file a lawsuit against an employer for medical costs, lost income, pain and suffering, or punitive damages. However, in some instances, it may be possible to file a lawsuit against an employer for intentional torts (i.e., intended acts committed by an employer that cause harm to another), which some states allow as an exception to the general prohibition on tort suits.
Unfortunately, workers’ compensation often fails to compensate injured or ill workers adequately. According to a 2015 OSHA report, employers regularly evade their responsibility for worker health and safety, and state workers' compensation systems fail to provide injured workers the full benefits promised in exchange for giving up their right to file suit against their employers. OSHA cites figures in the report that indicate “[w]orkers’ compensation payments cover only a small fraction (about 21 percent) of lost wages and medical costs of work injuries and illnesses; workers, their families, and their private health insurance pay for nearly 63 percent of these costs, with taxpayers shouldering the remaining 16 percent.”
Additional resources are also available from the Workers’ Comp Hub, www.workerscomphub.org, a joint project of the National Council for Occupational Safety and Health (National COSH) and the National Economic & Social Rights Initiative (NESRI). The site offers access to a regularly updated newsletter, as well as advocacy tools for proposing progressive state-level reforms.
Filing a Toxic Tort Suit
A worker who is injured or made ill from chemical exposure in the course of his or her employment may be able to bring a civil tort lawsuit to recover damages for personal injury. Workers who believe they may have a legal claim for personal injury should contact an attorney as soon as possible to discuss the matter. In a toxic tort case, the plaintiff will have the burden of proving their injury or illness was caused by exposure to a toxic substance. To help the attorney put forward the strongest case possible, workers should keep all information they have about their exposure.
As noted above, workers’ compensation is typically the exclusive remedy available from an employer, although a lawsuit may be valid as an exception to a state’s workers’ compensation law in certain circumstances where an employer committed an intentional tort or failed to secure workers’ compensation insurance as required by law.
Workers may also have a valid claim against an individual or company other than the employer (i.e., a third party) responsible for causing harm.
For example, workers injured or made ill from a toxic chemical in a product may have a valid legal claim against the product manufacturer or distributors. They may have a claim based on a product defect or failure to warn. In a failure-to-warn case dealing with occupational exposures, the plaintiff is alleging that the product was defective because it lacked a warning of potential harm, the defendant breached a duty of care owed to the injured person(s), and the defect or lack of warning caused the injury or disease. If workers think they have been injured or sickened because of a product they used or encountered on the job, they should consult an attorney.
In certain circumstances, workers may also be able to file a lawsuit against the owner of the worksite for “premises liability.” A premises owner may be liable to a third party’s workers on its premises due to the owner’s own negligence, or may be “vicariously liable” for the negligence of another party (e.g., a company contracted to perform work at the site). Asserting vicarious liability is challenging because the premises owner must have retained control over the work performed or approved of the unsafe working conditions. On the other hand, a premises owner owes a duty of care to all people on its premises and is directly liable for harm caused by a breach of that duty.
In December 2008, the largest coal ash spill in U.S. history took place when a dike broke at the Tennessee Valley Authority’s (TVA) Kingston fossil fuel plant. More than a billion gallons of coal fly ash and water spilled out, flooding nearby homes and contaminating the Emory River and surrounding waterbodies. The TVA contracted a firm, Jacobs Engineering, to handle the cleanup. The company, in turn, hired hundreds of workers to perform cleanup operations.... Read more...
Contacting Local Prosecutors
Workers who suffer harm because of occupational exposure to toxic chemicals may wish to contact a local prosecutor to press for criminal charges against the employer. A local prosecutor has authority to bring criminal cases under the general criminal laws of the state, regardless of whether the employer violated a specific regulation. Some potential criminal charges that could apply to employers’ actions or inactions that cause workers to be harmed by exposure to toxic substances on the job could include manslaughter, criminally negligent homicide, endangerment, assault, battery, or reckless conduct.
Beyond addressing toxic chemicals in a specific workplace by raising concerns, submitting complaints, or filing lawsuits, workers can help improve chemical safety for consumers, families, and the environment by engaging in advocacy initiatives. Reaching out to others affected by a similar problem, including neighboring communities surrounding a particular worksite, helps bridge shared interests and build a united front to address the harmful consequences and cumulative impact of toxic chemical exposure.
In October 2017, Drew Wynne was working at the production facility of his startup coffee company, Rip Tide Coffee, in North Charleston, South Carolina. Wynne wanted to remove old paint from a floor at the establishment, so he went to a local Lowe’s store and bought paint stripper. Tragically, Wynne was killed while working on the floor due to inhalation of the toxic methylene chloride vapors emitted from the paint stripper.
When Wynne’s family learned that methylene chloride had taken loved ones from at least 50 other families, they decided to advocate for change. The Wynne family joined with advocacy organizations ... Read more...
Connecting with union representatives, worker centers, nonprofit groups, and community organizers is the best first step toward becoming an effective advocate on these issues. Such groups are likely aware of political issues, pending legislation or regulations, circulating petitions, ongoing or prospective lawsuits and class actions, surveys, market-based campaigns, or legislative initiatives in which workers can participate or contribute. They can also help to connect workers to the leading activists, attorneys, unions, or other organizations working on a particular matter, assist with finding training opportunities and materials, or help to remedy workplace-specific issues.
 Memorandum of Understanding between the U.S. Department of Labor, Occupational Safety and Health Administration, and the U.S. Environmental Protection Agency, Office of Enforcement (Nov. 23, 1990), https://www.osha.gov/laws-regs/mou/1990-11-23.
 California’s Private Attorneys General Act (PAGA), Cal. Labor Code §2699, allows for citizen suits relating to occupational health and safety violations in limited circumstances. See, e.g., Kevin R. Allen, What You Should Know about the Private Attorneys General Act in 2017, Contra Costa Lawyer Online (July 1,
 See 28 U.S.C. § 2462 (2018) (providing a five year statute of limitations for civil enforcement actions seeking civil penalties brought in federal court). However, citizen suits seeking injunctive relief for ongoing violations are not subject to the same statute of limitations.