OSHA Issues Proposed Rule to Update Its Hazard Communication Standard

Employers have been on the lookout for a temporary emergency standard for COVID-19 from the federal Occupational Safety and Health Administration (OSHA), but what they have thus far received is a proposed rule to update the agency’s Hazard Communication Standard. The proposed rule was published in the Federal Register on February 15, 2021.

Admittedly, the proposed rule is not completely unexpected. OSHA incorporated the United Nations’ Globally Harmonized System of Classification and Labelling of Chemicals (GHS) into the Hazard Communication Standard in 2012 to specify requirements for hazard classification and to standardize label components and information on safety data sheets (SDSs). The agency also previously stated its intent to “maintain alignment” of the Hazard Communication Standard with more recent revisions of the GHS. However, the United Nations updates and revises the GHS every two years; this item has been pending on OSHA’s regulatory agenda since 2014.

The current Hazard Communication Standard is based on the GHS, Revision 3. The new rule would update the standard primarily to align with GHS, Revision 7. The proposed modifications include, among other things, revisions to definitions of terms used in the standard, revised criteria for classification of certain health and physical hazards, revised provisions for updating labels, and new labeling provisions for small containers. Most of the proposed changes to the regulatory text of the standard appear to affect manufacturers, importers, and distributors, but not employers. As such, there appears to be no need for employers to start overhauling their hazard communication training programs just yet.

The key revisions to the standard include:

• the addition of a definition of “combustible dust”;
• the addition of definitions of “bulk shipment,” “gas, liquid, and solid,” “immediate outer package,” “physician or other licensed health care professional (PLHCP),” and “released-for-shipment”;
• the addition of “desensitized explosives” to the definition of “physical hazard”;
• a clarification that chemical manufacturers and importers must evaluate, identify, and categorize those hazards only “under normal conditions of use and foreseeable emergencies.”
• a clarification that hazard classifications must also take into account “any hazards associated with a change in the chemical’s physical form or resulting from a reaction with other chemicals under normal conditions of use”;
• a requirement that labels on shipped containers also include the “date chemical is released for shipment”;
• a provision that “[t]he label for bulk shipments of hazardous chemicals may be on the immediate container or may be transmitted with the shipping papers, bills of lading, or other technological or electronic means so that it is immediately available to workers in printed form on the receiving end of shipment”;
• an allowance that, if a U.S. Department of Transportation pictogram appears on the label for a shipped container, the label need not also include an OSHA Hazard Communication Standard pictogram for the same hazard;
• an allowance that “[c]hemicals that have been released for shipment and are awaiting future distribution need not be relabeled” if a chemical manufacturer or importer “become[s] newly aware of any significant information regarding the hazards of a chemical.” “[H]owever, the chemical manufacturer or importer must provide the updated label for each individual container with each shipment”;
• new labeling requirements for “small containers,” which are generally 100 milliliters (ml) or smaller;
• an allowance that “manufacturers, importers, and employers [may] withhold a chemical’s concentration range as a trade secret.” If a chemical’s exact concentration or concentration range is claimed as a trade secret, however, the SDS must list a “prescriptive concentration range.”

OSHA proposes to implement the new rule over a two-year period. Chemical manufacturers, importers, and distributors of substances would have to “comply with all modified provisions within one year after the effective date.” Chemical manufacturers, importers, and distributors of mixtures would have to “comply … within two years after the effective date.” By then, however, in accordance with OSHA’s stated intentions, there will likely be a new update to remain in alignment with any new GHS revisions.

Public comments on the proposed rule (including requests for a public hearing) are due by April 19, 2021. Comments may be submitted electronically to Docket No. OSHA-2019-0001. If a hearing is requested during the comment period, the location and date of the hearing and other information regarding participation will be announced in the Federal Register.

Ogletree Deakins will continue to monitor this development and will post updates in the firm’s Workplace Safety and Health blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.