The presence of “hazardous” materials in your workplace can trigger a wide variety of environmental health and safety requirements and hazardous waste regulations. The Occupational Safety and Health Administration (OSHA) and state worker protection agencies issue standards to protect workers during occupational handling and storage. The US Environmental Protection Agency (EPA) and state environmental agencies issue requirements governing the management of hazardous wastes, and emissions to a variety of environmental media (air, water and land).
But what happens when the workers themselves become contaminated? Some OSHA standards address predictable routine exposures by requiring employers to provide personal protective equipment (PPE) that covers workers’ clothes and/or changing and shower areas for use at the end of each shift (e.g., HAZWOPER Standard provisions at cleanup sites). When an OSHA standard requires such sanitation facilities, they are subject to general requirements under OSHA’s Sanitation Standard. For accidental exposures, several standards require employers to provide drench showers and/or eye wash stations (e.g., Dipping and Coating Standard). If these requirements were implemented perfectly, no employee would carry any contamination out of his or her workplace.
Despite these theoretical safeguards, however, there’s a long history of workers who go home “dirty” and end up exposing their families to hazardous materials, including asbestos, heavy metals and lead. These are referred to as take-home toxins. These can result in dangerous levels—especially in children whose growing bodies and faster metabolisms make them especially susceptible, and may also be more likely to exacerbate problems through hand-to-mouth transfers.
These situations have led to a steady trickle of “toxic tort” lawsuits by workers’ families. In order to win, these plaintiffs must prove several separate elements in order to recover damages:
• Duty of care. Employers clearly owe their employees a duty of care, with the scope of that duty at least informed by OSHA’s worker protection standards. But what about the employees’ (offsite) family members?
• Breach of that duty. Was the employer negligent and/or unreasonable to allow employees to go home “dirty”?
• Foreseeability. Was it foreseeable that the employer’s actions imposed the risk of harm for the materials involved, the extent of exposures, the family members exposed and the time frames during which exposures occurred? Over time, medical and public health professionals have increasingly discovered that ever-lower levels of exposure can be harmful. Cases can be read together to reflect this since harms that weren’t foreseeable with knowledge in the 1960s might have been foreseeable in the 1990s and are foreseeable in the 2010s.
• Actual harm. Assuming that the plaintiff is suffering from a disease that might be caused by take-home toxins, but might also be caused by other exposures, is it reasonable for a jury to find the employer responsible in a substantial enough degree to impose liability?
Courts around the country have been split in these cases, over each of these elements. For example, in March of this year the Illinois Supreme Court affirmed a state appellate court decision allowing a plaintiff to argue that it was foreseeable way back in 1958-1964 that an employee’s wife might contract Mesothelioma from Asbestos on her husband’s dirty work clothes (Simpkins v. CSX Transportation Inc., 2012 IL 110662 (3/22/12)).
But even if you’re in a state that hasn’t found employers liable, you would be well-advised to take steps to ensure that employees go home “clean” of potentially toxic contaminants, not “dirty.” Doing so better protects the employee from the risk of harm from his or her own occupational exposure, and better protects the employee’s family from potential secondary exposures.
The following checklist can help you start to consider whether your organization’s activities pose a potential chemical threat to your coworkers’ families.
Implementation Checklist
• Does your organization use chemicals in its activities (manufacturing, construction, facilities management, etc.)?
• Have these chemicals been assessed for their potential to harm exposed individuals, including workers?
- Has information on Material Safety Data Sheets (MSDSs) or Safety Data Sheets (SDSs) been reviewed, to identify potential hazards and protective measures?
• Are any of these activities subject to worker protection standards administered by the Occupational Safety and Health Administration (OSHA) or other federal or state occupational safety and health agencies?
- Hazard Communication Standard governing requiring basic protective and informational activities?
- Air Contaminants Standard governing potential ambient exposures in workplace air?
- Regulated Carcinogen Standard, and other standards, governing exposures to chemicals that may cause cancer or other serious illnesses?
- Standards governing exposure to materials that potentially cause immediate physical harm (flammables, reactives, etc.)?
- Standards governing specified activities where hazardous chemicals are used (Dipping and Coating Operations Standard, Ionizing Radiation Standard, etc.)?
- Others?
• Do routine operations include work practices, administrative controls, and/or engineering controls designed to prevent worker exposures (many OSHA standards require such controls, other standards and general industrial hygiene principles encourage them)?
• Does your workplace implement hygiene measures responsive to the potential for routine and non-routine exposures?
- Personal protective equipment (PPE), uniforms, etc., intended to prevent exposures including contamination of employees’ street clothes?
- Changing rooms and/or showers where employees can don/remove workplace PPE and uniforms, clean themselves at the end of their shifts and dress in their street clothes?
- Drench showers, eye washes, other emergency equipment and post-incident hygiene and medical gear to respond to non-routine exposures?
• Has your organization ever taken samples of employees’ clothing or skin at the end of shifts, to determine if any take-home toxin contamination may be underway?
Where Can I Go For More Information?
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National Institute for Occupational Safety and Health (NIOSH)
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OSHA (review specific requirements and information relating to specific standards)
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. He was involved in developing 16 existing products, including The Complete Guide to Environmental Law, Federal Toxics Program Commentary and Greenhouse Gas Auditing of Supply Chains.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: tei@ix.netcom.com.