Solicitor Says Hazard Communication Rule Does Not Preempt Failure-to-Warn Lawsuits

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By David Schwartz

The Occupational Safety and Health Administration's hazard communication standard generally does not preempt state tort suits alleging a failure to warn of dangerous conditions, the U.S. Department of Labor announced in an Oct. 18 interpretation letter.

The seven-page letter from Solicitor of Labor M. Patricia Smith addresses a question posed by Steven H. Wodka, a plaintiffs' attorney based in Little Silver, N.J. At issue was the 29 C.F.R. 1200, Hazard Communication standard, specifically the preemption provision in 29 C.F.R. 1200(a)(2),

Saying that the standard “is not a model of clarity,” Wodka told BNA Oct. 19 that he wrote to the Labor Department because defendants who were being challenged by his clients were filing motions arguing that OSHA preempted state tort claims.

State Judges Ruled for Employers

These motions, he said, stemmed from the 2006 decision in the Appellate Division of the Superior Court of New Jersey in Bass v. Air Products, 2006 WL 1419375. In that case, former employees of a paint maker sued the company on the grounds that they had become ill from exposure to harmful chemicals on the job. They alleged state tort law claims on the grounds that the employer had failed to warn them of the chemicals' danger.

Ruling against the former employees, the state judge wrote that OSHA's hazard communication standard was an attempt to set up a comprehensive regulatory scheme and therefore preempted any state laws regarding the contents of hazard warnings accompanying dangerous chemicals.

In her interpretation letter, the solicitor of labor addressed the Bass decision as well as a similar ruling in Minnesota state court: “It is the Department of Labor's position that the latter cases were decided incorrectly, and that section 1910.1200(a)(2) does not preempt a failure-to-warn state tort claim.”

One Passage Addresses Tort Laws

The solicitor noted that Section 4(b)(4) of the OSH Act states that nothing in the Act is intended to “enlarge or diminish or affect in any other manner the common law or statutory rights, duties or liabilities of employers and employees under any law with respect to injuries, diseases, or death arising out of, or in the course of, employment.”

This passage, she added, is the act's only reference to state tort laws.

She explained that the extent of OSHA's ability to preempt only reached “positive enactments of laws and regulations” by the state that conflict with OSHA's hazard communication requirements. OSHA rules do not preempt “duties and remedies recognized only by tort law,” Smith wrote.

The solicitor noted that the legislative history of the standard showed that it was enacted to ease “the burden on interstate commerce arising from the recent proliferation of state and local legislative enactments that contain differing and conflicting hazard reporting requirements” (emphasis by the solicitor).

No Conflict With Typical Tort Action

She added that the Labor Department does not see a direct conflict between the requirements of the hazard communication standard and a typical state tort action.

As the U.S. District Court for the Northern District of Ohio explained in its 2005 decision, In re Welding Fume Prods. Liab. Litig., 364 F.Supp.2d 669, 21 OSHC 1253, cited in the letter, the standard requires that an employer give a warning that is “adequate.” It does not explain how that warning is to be given or what kind of warning qualifies as “adequate.” Those determinations may best be resolved in state tort actions.

The solicitor noted further that there are cases in which state tort suits could be preempted, as when a state law interprets a specific requirement or prohibition of the standard differently than the standard does. And, she added in a footnote, “a definitive determination of conflict can only be made based on the particulars of each case.”

“This letter makes the question clear,” said Wodka, “and I'm already going to move for reconsideration of one of my cases based on this letter.”

By David Schwartz

The text of the solicitor of labor's letter is available at .