Wednesday, March 10, 2004

Today's Popcorn Lung Trial Update 3

An industrial hygienist, Jay D. Keough, testified yesterday for the popcorn flavoring maker who is being sued for manufacturing diacetyl which destroyed the lungs of workers who were exposed to it. He maintained that the popcorn plant where Eric Peoples worked (and, by implication, not the flavoring producer) was responsible for warning workers about any hazards associated with the use of butter flavoring.

This is something I never knew:
Keough, who testified for the defense, said regulations issued by the U.S. Occupational Safety and Health Administration require employers to assess hazards in their company and develop plans to control those hazards.
Now that's a new one. Actually, the chemical that allegedly destroyed Peoples' lungs is not covered by any OSHA exposure regulation, nor is there any OSHA regulation that requires employers to control exposure. Although the Hazard Communication Standard requires the employer to inform and train workers about the hazards of chemicals they work with, there is no requirement that the employer actually control exposure to the chemical.

This is the theory, according to OSHA, of what's supposed to happen once the workers have the hazard information:
The HCS (Hazard Communication Standard) provides workers the right-to-know the hazards and identities of the chemicals they are exposed to in the workplace. When workers have this information, they can effectively participate in their employers’ protective programs and take steps to protect themselves. In addition, the standard gives employers the information they need to design and implement an effective protective program for employees potentially exposed to hazardous chemicals. Together these actions will result in a reduction of chemical source illnesses and injuries in American workplaces.
Note that there is no requirement that the employer actually control exposure to the chemical. And although workers have the right to know about the chemicals they are exposed to, they have no right to act on that knowledge or force the employer to act on that knowledge. And the statement that this information "will" result in a reduction of chemical source illnesses is often just wishful thinking.

There is no doubt that workers' right to know about the hazards to which they are exposed can be a powerful tool. But in order to effectively protect themselves, workers also need to know about their rights and feel secure enough to confront their employer if effective control measures are not being taken. And that usually means they need a union -- which these workers did not have.

The only exception would be if OSHA chose to cite under the General Duty Clause which requires employers to maintain a safe and healthful workplace. Complaints can be filed under the General Duty Clause if the hazard is "recognized" and are "causing or are likely to cause death or serious physical harm" to employees. But General Duty Clause citations are not easy to get, and are a far cry from a black-and-white requirement for employers to control exposures to all hazardous chemicals.