The Occupational Safety & Health Reporter™ provides complete news coverage and documentation of federal and state occupational safety and health programs, standards, legislation, regulations,...
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.
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.”
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).
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 http://op.bna.com/env.nsf/r?Open=jstn-8msr47 .
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)