By Alexis M. Downs and Eric J. Conn
Employers who operate laboratories are suddenly receiving a high level of attention from federal safety and health regulators. Following a string of serious laboratory accidents, the U.S. Chemical Safety and Hazard Investigation Board (the “CSB”) posted an informational video on its website detailing hazards at chemical laboratories, based on a study of 120 explosions, fires, and chemical releases at university and other research laboratories (view the CSB’s Lab Safety Video here). At the same time, federal OSHA just published a 52-page manual entitled “Laboratory Safety Guidance,” outlining “non-mandatory” guidance for lab safety and health, and issued a series of significant enforcement actions against employers involved in laboratory work.
OSHA’s new “Laboratory Safety Guidance” (view a copy here), issued on October 13, 2011, is intended to minimize the risk of injuries or fatalities caused by chemical, biological, and other hazards commonly found in research laboratories employing an estimated 500,000 individuals in the United States. The new guidelines provide laboratories with guidance not specifically addressed by existing OSHA regulations. Existing regulations specific to laboratories, which can be found at 29 CFR 1910.1450, focus on health hazards but do not address physical hazards such as chemical fires and explosions. There are other general industry OSHA regulations that apply in the laboratory setting, but they were not written specifically for laboratory employers. These general regulations include, among others, requirements for personal protective equipment, exposure to radiation, bloodborne pathogens, and air contaminants.
In cases where the regulations at 1910.1450 or other OSHA regulations fail to cover a specific laboratory hazard, however, OSHA can issue citations under its General Duty Clause, which requires employers to provide “employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm . . . .” When issuing General Duty Clause citations, OSHA often cross-references its own guidance documents, or other industry standards authored by trade associations, or other non-regulatory entities as evidence that the employer knew or should have known about a particular hazard described in the guidance, and failed to abate the hazard with a recognized, feasible method also set forth in the guidance. OSHA has been increasingly relying on “non-mandatory” guidance documents together with the General Duty Clause to circumvent the long, arduous, and often controversial Notice & Comment Rulemaking process that precedes adoption of formal, mandatory regulations.
Laboratory employers should expect OSHA to enforce these new “informal guidelines” the same way. As an ominous sign that OSHA intends to ratchet up enforcement in labs, on the same day OSHA published the Laboratory Safety Guidance, the agency also issued another in a recent string of significant citations against laboratory employers. Specifically, OSHA issued a $122,000 penalty to New Brunswick Scientific Co. (see OSHA’s press release here). Accordingly, it is important for laboratory managers to review OSHA’s Laboratory Safety Guidance, including the industry standards authored by other organizations that are referenced in the guidance document, and consider whether their current safety practices comply with existing OSHA standards as well as these new guidelines.