The Day After OSHA’s Big GHS Deadline: What’s Changed?

In May of 2012, OSHA officially adopted the Globally Harmonized System (GHS) and set in motion a series of compliance deadlines for chemical manufacturers, distributors and employers who are covered by the Hazard Communication Standard (HazCom). The second and most important of those deadlines, June 1, 2015, was crossed yesterday.

That was the deadline by which hazardous chemicals were supposed to have been categorized using new GHS classification criteria, and the deadline by which safety data sheets and chemical labels were supposed to have been updated to the new GHS format for distribution to the downstream users of those chemicals. While many chemical manufacturers have completed the above tasks, a great many have not. We believe this will continue to cause delays in the flow of updated hazard information throughout the chemical supply chain for months to come.

This delay comes on top of the fact that many employers and end users of chemicals are confused about the deadline. Some employers were under the impression that they were responsible for updating all of the safety data sheets in their library on their own. However, that is the job of the originator of the chemical. Others expected that they would receive all of the updated safety data sheets and labels from their chemical suppliers by (or on) June 1 — when, in reality, upstream suppliers are only required to send the updated safety data sheets and labels in response to one of three events:

1. A new chemical shipment
2. The first chemical shipment after a change has been made
3. Upon request of the downstream user

In other words, downstream users should not expect to receive the updated documents and labels unless they specifically request them, or place a new order that arrives after the deadline.

Compliance Outlook

So what’s changed? If you asked many of the businesses covered by HazCom today, they would probably answer, “Not much.” However, from a compliance perspective, a great deal has changed. Those companies that have not completed the reclassification of their chemicals are now likely out of compliance. Companies that have completed the reclassification but have not updated their safety data sheets are now likely out of compliance as well. And finally, those companies that have reclassified chemicals and updated safety data sheets, but have not updated labels are now likely out of compliance.

I say “likely” because OSHA has said that some chemical manufacturers may be able to make a convincing case that they were unable to comply with the June 1 deadlines for reasons beyond their control. Perhaps they are still waiting on critical information from upstream chemical manufacturers and have made a good faith effort to secure the requisite information to do their own work, but have not been unsuccessful. In such cases, if the company began its efforts in a reasonable timeframe and documented its attempts to secure the needed information, OSHA may provide relief in the form of selective enforcement.

Additionally, an OSHA memorandum dated May 29, 2015 allows chemical manufacturers and importers and distributors who have existing stock that was packaged pre June 1, 2015, under the old HazCom rules, to continue to ship it downstream. They don’t have to actually re-label it before shipping. However, to be in compliance they do need to include with each container an updated label and safety data sheet. Anything packaged after this deadline, of course needs the updated label. Here’s the language used in the memorandum

Manufacturers or importers of hazardous chemicals (including businesses that repackages) that have existing stock packaged (e.g., boxed, palletized, shrink-wrapped, etc.) for shipment  prior to June 1, 2015, that are HCS 1994-compliant labeled, may continue to ship those containers downstream.  In such instances, there is no requirement to re-label packaged for shipment containers with HCS 2012-compliant labels.  The manufacturer or importer must provide HCS 2012-compliant labels and SDSs for each and every individual container shipped, unless the manufacturer or importer can demonstrate that it exercised reasonable diligence and good faith as discussed in this policy.

After June 1, 2015, a manufacturer or importer of hazardous chemicals who packages containers for shipment must label each and every container with a HCS 2012-compliant label prior to shipping.

For all other chemical manufacturers, the race against the clock — to complete the process before OSHA identifies them as an out of compliance chemical supplier — is on. For employers, the start of the great safety data sheet churn is just beginning. Even with delays, end users of chemicals should expect that their entire safety data sheet libraries will be updated with new documents at an unprecedented pace over the next year.

VelocityEHS estimates that only about 30% of documents have been updated in the three years since GHS was adopted in the United States by OSHA, and that the majority of the rest will follow in the next 6-12 months. For those companies with hundreds or even thousands of safety data sheets, especially those still managing their safety data sheets with paper and three ring binder systems and multiple MSDS books in multiple facilities, this may very well be the calm before the storm.

New Employer Responsibilities  

Going forward, employers also have some added responsibility. If you (the employer) receive a shipment after the deadline and you do not receive the updated safety data sheet either before or with the shipment, then OSHA would shift responsibility to you to actively secure it. This includes reaching out to the supplier and requesting it. If you are unable to secure it, and the supplier does not supply you a reasonable timeline for when the document will be ready, then you are expected to look to your local OSHA office for assistance.

In the event that an updated safety data sheet does enter your facility, you are expected to review it and compare it to earlier versions of the document (if you have it) to see if there are any new hazards on which you need to train your employees. Before working with a given chemical, employees need to be trained on the specific chemical hazards to which they are exposed. Similarly, updated chemical classifications may necessitate the need to update workplace labels to ensure that employees are aware of all hazards via the workplace label system.

Additionally, new chemical hazards could also trigger new personal protection equipment (PPEs) needs, new chemical handling processes and job safety analysis.

Finally, if all employees covered by the HazCom Standard have not yet been trained on the updates to the safety data sheet format and the label format, employers should make it a top priority. The deadline for training was December 1, 2013, and it is an ongoing obligation.

Final 2 GHS Deadlines

There are two more deadlines that will hit in the next year to complete OSHA’s transition to GHS. The next deadline is 6 months away, December 1, 2015. That is the date by which distributors are no longer able to send out chemical inventory labeled using the pre-GHS formats. Some distributors, those who do not repackage or relabel the chemicals they sell to downstream users, were given additional time to divest themselves of old inventory.

And again, because some of chemical manufacturers have missed this most recent deadline, it is possible that some distributors will have to push back their compliance timetable to account for delays in the supply chain.  OSHA may be willing to accommodate those distributors who can show they have done their due diligence to secure the updated information in advance of the deadline.

The final GHS deadline is June 1, 2016. This is the date by which OSHA expects employers, and everyone else covered by the HazCom Standard, to be in full compliance with the GHS provisions in HaCom. That includes updating the written HazCom plan as necessary, updating workplace labels as necessary, and training employees on new hazards.

Conclusion

Another deadline is in the books, but much of the work still remains. Now is definitely not the time to slack off on HazCom. OSHA will be actively looking for HazCom violations when they come into your facility, regardless of the reason they’re at your facility — especially since HazCom is already #2 on OSHA’s list of the top 10 cited standards. Now with the GHS transition in full swing, it should be expected that OSHA will dedicate even more resources to the tracking of HazCom violations, and the flow of hazard information throughout the chemical lifecycle.

The best course for employers is to:

• Get trained on GHS
• Stay alert for updated safety data sheets and labels, as well as future changes to the HazCom Standard. OSHA has hinted they could begin working on updating the GHS as early as this year.
• Get help. The marketplace is teaming with electronic solutions that can help you manage everything from updating the safety data sheet library and printing workplace labels, to tracking chemicals at the container level across the enterprise and even handle Tier II reporting.

Reach out to an VelocityEHS compliance expert to learn more about GHS and how VelocityEHS’ solutions can help ease the pain of the transition to GHS.