Right to know

"Right to know", in the context of United States workplace and community environmental law, is the legal principle that the individual has the right to know the chemicals to which they may be exposed in their daily living. It is embodied in federal law in the United States as well as in local laws in several states. "Right to Know" laws take two forms: Community Right to Know and Workplace Right to Know. Each grants certain rights to those groups.

OSHA and the right to know

Workplace safety and health in the U.S. operates under the framework established by the federal Occupational Safety and Health Act of 1970 (OSH Act). The Occupational Safety and Health Administration (OSHA) within the U.S. Department of Labor is responsible for issuing and enforcing regulations covering workplace safety.

In the early years of OSHA its rules were fairly weak regarding employees’ right to know what types of hazards they were being exposed to on the job. The late 1970s saw the rise of a powerful movement in American workplaces and communities called the Right to Know movement. It began with workers who believed that they had the right to know about the hazards they were exposed to, the harm they might cause, and precautions that could prevent these harmful effects.

It later expanded to community members who lived around facilities that used hazardous chemicals. They demanded information about what was being released into the air they breathed and the water they drank. This movement helped create several laws and regulations that are now commonly referred to as “Employee Right to Know” and “Community Right to Know.”

The major breakthrough in employee right to know came with the issuance of the Hazard Communication standard that became effective in 1985. This OSHA regulation superseded a variety of state right-to-know laws that had been passed in the early 1980s in response to OSHA’s failure to act on this issue. Today Hazard Communication is such an accepted part of our workplace rules that it is hard to believe that the rights and protections it provides did not exist under OSHA twenty years ago. But we should not be too confident that we have solved all of these problems. As an example, mineworkers in the U.S., who are covered by a different safety and health law from OSHA, received protection under Hazard Communication only in 2002.

While problems remain, the amount and quality of information about hazardous materials that exists and is available to the public is remarkable compared to twenty years ago. The Internet has vastly increased public access, and today it sometimes feels that the problem is too much information rather than too little.

Available information

Chemical information is most frequently associated with the right to know but there are many other types of information that are important to workplace safety and health. The following sources of information are those most likely to be found at the workplace or in state or federal agencies with jurisdiction over the workplace:

• Injury and illness records which most employers are required to keep.
• Accident investigation reports.
• Workers’ compensation claim forms and records.
• Material safety data sheets (MSDS) and labels for hazardous chemicals used or present in the workplace.
• Chemical inventories required by federal and state regulations.
• Records of monitoring and measurement of worker exposure to chemicals, noise, radiation, or other hazards.
• Workplace inspection reports, whether done by a safety committee, employer safety and health personnel, OR-OSHA insurance carriers, fire departments, or other outside agencies.
• Job safety analysis, including ergonomic evaluations of jobs or workstations.
• Employee medical records or studies or evaluations based on these records.
• OSHA standards and the background data on which they are based.

Hazard communication

The Hazard Communication Standard is the centerpiece of the workplace right to know movement. This regulation first went into effect in 1985 and has since been expanded to cover almost all workplaces under OSHA jurisdiction. The details of the Hazard Communication standard are rather complicated, but the basic idea behind it is straightforward. It requires chemical manufacturers and employers to communicate information to workers about the hazards of workplace chemicals or products.

All chemical manufacturers and importers must assess the hazards of the chemicals they produce and import and pass this information on to purchasers through labels and material safety data sheets (MSDSs). Employers whose employees may be exposed to hazardous chemicals on the job must provide hazardous chemical information to those employees through the use of MSDSs, properly labeled containers, training, and a written hazard communication program. This standard also requires the employer to maintain a list of all hazardous chemicals used in the workplace. The MSDSs for these chemicals must be kept current and they must be made available and accessible to employees in their work areas.

Chemicals that may pose health risks or those that are physical hazards (such as fire or explosion) are covered. There is no comprehensive list of chemicals that are considered hazardous under these rules, but there are several existing sources that manufacturers and employers may consult. These include:

• Any substance for which OSHA has a standard in force, including any substance listed in the Air Contaminants regulation.
• Substances listed as carcinogens (causing cancer) by the National Toxicology Program (NTP) or the International Agency for Research on Cancer (IARC).
• Substances listed in the Threshold Limit Values for Chemical Substances and Physical Agents, published by the American Conference of Governmental Industrial Hygienists (ACGIH).

Ultimately, it is up to the manufacturer of the chemical to make the determination if the substance is hazardous under this regulation based on review of the scientific literature or through their own testing.

Chemical labeling requirements

Each container that contains a hazardous chemical must be labeled by the manufacturer or distributor before it is sent to downstream users. There is no standard format for labels, but each label must contain at least:

• The identity of the hazardous chemical(s) by common or chemical name.
• Appropriate hazard warnings.
• The name and address of the manufacturer, distributor, or the responsible party.

Your employer is required to inform you of:

• The requirements of the Hazard Communication rules.
• The operations in your work area where hazardous materials are present.
• The location of the written hazard communication program, the list of hazardous chemicals, and the MSDSs of chemicals that you will be exposed to.

In addition, these items must be covered in training:

• Methods to detect the presence of hazardous chemicals.
• Physical and health hazards of the chemicals.
• Protective measures, including work practices, ventilation, personal protective equipment, and emergency procedures.
• How to read and understand labels and MSDSs.
• The hazards of non-routine tasks, such as the cleaning of tanks or other vessels, or breaking into lines containing chemicals.

The Hazard Communication standard does not specify how much training a worker must receive. Instead, it defines what the training must cover. Employers must conduct training in a language comprehensible to employees to be in compliance with the standard. It also states that workers must be trained at the time of initial assignment and whenever a new hazard is introduced into their work area. The purpose for this is so that workers can understand the hazards they face and so that they are aware of the protective measures that should be in place. It is very difficult to get a good understanding of chemical hazards and particularly to be able to read MSDSs in the short amount of time that many companies devote to hazard communication training. When OSHA conducts an inspection, the inspector will evaluate the effectiveness of the training by reviewing records of what training was done and by interviewing employees who use chemicals to find out what they understand about the hazards.

Material Safety Data Sheet (MSDS)

MSDSs are often hard to figure out, even for trained safety professionals. There is no standard format for the MSDS under the Hazard Communication standard, although OSHA does require that certain information must be included on each sheet.

Prior to the Hazard Communication standard many MSDSs contained very little information. While this is sometimes a problem, some companies have responded to this by throwing in the kitchen sink when writing MSDSs. In an effort to make sure they are in compliance and to minimize their liability for failing to warn about hazards, they have made it even harder to find and use the information given. In addition, the lack of uniform format means that the same information–for example, health effects or OSHA permissible exposure limits – may be in different sections for different manufacturers’ MSDSs. Information the MSDS must include:

1. Product identity and ingredients by chemical or common name.
2. Physical and chemical characteristics.
3. Physical hazards, such as fire and explosion.
4. Health hazards, including symptoms.
5. Primary routes of entry of the chemical into the body.
6. Legal exposure limits (OSHA and other recommended limits).
7. Whether the chemical can cause cancer.
8. Precautions for safe handling and use.
9. Control measures, including ventilation, personal protective equipment, etc.
10. Emergency and first aid procedures.
11. The date the MSDS was prepared.
12. Name, address, and phone number of the manufacturer.
13. Whether the chemical is listed as a hazardous material by United States Environmental Protection Agency EPA SARA Title III rules EPCRA

(Community Right to Know).

Chemical manufacturers may legally withhold the specific chemical identity of a material from the MSDS and label in the case of bona fide trade secrets. In such cases the following rules apply:

• The MSDS must indicate that trade secret information is being withheld.
• The MSDS must disclose information concerning the properties and effects of the hazardous chemical, even if the actual chemical identity is withheld.
• The trade secret information must be disclosed to a doctor or nurse in a medical emergency.
• In non-emergency cases health professionals can obtain a trade secret chemical identity if they can show they need it for purposes of health protection and if they sign a confidentiality agreement.

There are other sources of information about chemicals used in industry as a result of state and federal laws regarding the Community Right to Know Act. Under the Oregon Community Right to Know Act (ORS 453.307-372) and the federal Superfund Amendments and Reauthorization Act (SARA) Title III, the Office of the State Fire Marshal collects information on hazardous substances and makes it available to emergency responders and to the general public. Among the information which companies must report are:

• Inventories of amounts and types of hazardous substances stored in their facilities.
• Annual inventories of toxic chemicals released during normal operations.
• Emergency notification of accidental releases of certain chemicals listed by the Environmental Protection Agency.

The information can be obtained in the form of an annual report of releases for the state or for specific companies. It is available on request from the Fire Marshal’s Office and is normally free of charge unless unusually large quantities of data are involved.

Exposure records

The Hazard Communication standard requires that chemical information must be transmitted to employees who work with hazardous materials. Employee exposure records can tell if a worker is actually being exposed to a chemical or physical hazard and how much exposure he or she is receiving. OSHA regulations that establish access rights to these records are found in 29 CFR 1910.1020: Access to Medical and Exposure Records. This information is usually the product of some type of monitoring or measurement for:

• Dusts, fumes, or gases in the air.
• Absorption of a chemical into the body, e.g. blood lead levels.
• Noise exposure.
• Radiation exposure.
• Spores, fungi, or other biological contaminants.

Employees and their designated representatives have the right under OR-OSHA regulations to examine or copy exposure records that are in the possession of the employer. This right applies not only to records of an employee’s own exposure to chemical, physical, or biological agents but also to exposure records of other employees whose working conditions are similar to the employee’s. Union representatives have the right to see records for any work areas in which the union represents employees.

In addition to seeing the results, employees and their representatives also have the right to observe the actual measurement of hazardous chemical or noise exposure. Exposure records that are part of an OR-OSHA inspection file are also accessible to employees and union representatives. In fact these files, with the exception of certain confidential information, are open to the public after the inspection has been legally closed out.

Medical record

Many employers keep some type of medical records. These could be medical questionnaires, results of pre-employment physical examinations, results from blood tests or more elaborate records of ongoing diagnosis or treatment (such as all biological monitoring not defined as an employee exposure record). Medical records are considerably more personal than exposure records or accident reports so the rules governing confidentiality and access to them are stricter. Employee medical records do not include a lot of employee medical information because of this extra scrutiny. A good rule of thumb is that if the information is maintained separately from the employer's medical program, it probably will not be accessible.

Examples of separately maintained medical information would be records of voluntary employee assistance programs (alcohol, drug abuse, or personal counseling programs), medical records concerning health insurance claims or records created solely in preparation for litigation.

These records are often kept at the worksite if there is an on-site physician or nurse. They could also be in the files of a physician, clinic, or hospital with whom the employer contracts for medical services.

An employee has access to his or her own medical record (29 CFR 1910.1020). An individual employee may also sign a written release authorizing a designated representative (such as a union representative) to receive access to his or her medical record. The latter might occur in a case where the union or a physician or other researcher working for the union or employer needs medical information on a whole group of workers to document a health problem. Certain confidential information may be deleted from an employee’s record before it is released.

External links

• The United States Environmental Protection Agency maintains a web page discussing "Right to know".
• http://www.epa.gov/epahome/r2k.htm
• National Safety Council
• Spill Reporting Online
• Tier II Chemical Inventory Reporting