Litigation Alert: "OSHA's Launch of Web Resources to "Assist" Companies May Be Part of a Disturbing Trend"

On October 24, 2013, the Occupational Safety & Health Administration (OSHA) issued a press release announcing that it had "launched two new web resources to assist companies with keeping their workers safe." One resource is "a toolkit to identify safer chemicals that can be used in place of more hazardous ones." Another is "the Annotated Permissible Exposure Limits, or annotated PEL tables, which will enable employers to voluntarily adopt newer, more protective workplace exposure limits."

OSHA did not mandate use of these resources. However, certain statements in OSHA’s press release suggest that companies that fail to use them may be at risk in the event of lawsuits, even when exposures do not exceed mandatory limits. OSHA’s press release contains the following statements:

"While many chemicals are suspected of being harmful, OSHA's exposure standards are out-of-date and inadequately protective for the small number of chemicals that are regulated in the workplace."

"Since OSHA's adoption of the majority of its PELs more than 40 years ago, new scientific data, industrial experience and developments in technology clearly indicate that in many instances these mandatory limits are not sufficiently protective of workers' health."

Dr. David Michaels, assistant secretary of labor for occupational safety and health, is quoted in the press release saying "'I advise employers, who want to ensure that their workplaces are safe, to utilize the occupational exposure limits on these annotated tables, since simply complying with OSHA's antiquated PELs will not guarantee that workers will be safe.'"

These OSHA statements and actions come at a time when more state courts seem willing to permit so-called "low-level toxic tort claims." Companies that face such claims can expect plaintiffs, their experts, and their lawyers to use these and similar OSHA statements to rebut defenses based on OSHA compliance. Some "experts" will claim that a company’s failure to use OSHA’s recommended (but not mandatory) "toolkit" resulted in continued use of a more dangerous chemical, when an effective alternative was available. Also, experts will claim that companies should have met the more stringent (but not mandatory) PELs that appear in the annotated PEL tables.

Some have suggested that OSHA’s launch of these "resources to assist companies" is actually a way for OSHA to force down PELs without the delay and difficulty of formal federal rulemaking. The threat of toxic tort suits using these "resources" against companies may force companies to comply with these ostensibly "voluntary" tools.

For a copy of OSHA’s press release, which itself contains links to the "toolkit" and annotated PEL tables, click here.
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