Our short answer is no, your liability won't increase – Employers are responsible for providing and ensuring workplace specific instructions/procedures are followed. But don’t take our word for it let’s look at what the Occupational Health and Safety Act says in general about responsibilities, what the Ministry of Labour's (MOL) interpretation of the WHMIS regulations is and lastly an example from the courts.
The act describes the responsibilities for Employers, Supervisors and Workers. Here is a brief summary for each:
- Employer - Make sure workers know about hazards and dangers by providing information, instruction and supervision on how to work safely.
- Supervisor - Show workers how to work safely, and make sure they follow the law and workplace health and safety policies and procedures.
- Worker - Follow the law and workplace health and safety policies and procedures.
The Employer is responsible for providing company specific instructions or procedures. In fact, your liability is reduced if those instructions are clear, accessible and followed.
MOL’s Interpretation of WHMIS
In A Guide to the Legislation - Workplace Hazardous Materials Information System (WHMIS), Ontario's Ministry of Labour provides the following interpretation:
“A supplier’s SDS is an important resource for the workplace but it is not intended to provide all of the information needed for the safe use of a product. The way a hazardous product is used, handled or stored, and consequently the hazard to the worker, can vary from plant to plant. The supplier is not expected to anticipate every required protective measure for every workplace to which a product is sold. The employer, through the worker education program, is expected to tailor the supplier’s information to the conditions in the employer’s workplace.”
Clearly the information in the SDSs is not enough. Employers are expected to provide the workplace specific information a worker needs to safely use chemicals.
A Case Study on Liability
A manufacturer of decorative components was fined $50,000 after workers were exposed to formaldehyde gas in the workplace. The court offered the following explanation:
“The Safety Data Sheet (SDS) for the material being used notes that if it is over-heated it will release formaldehyde gas, creating such symptoms as burning and tearing of the eyes, skin sensitization and irritation of the upper respiratory tract. The SDS for the plastic recommends, among other measures, that personal protection be provided to workers involved in processing the plastic and that local exhaust (ventilation) be provided to control employee exposure to dust or process vapors.”
The company pleaded guilty to “failing as an employer to take every precaution reasonable in the circumstance for the protection of a worker - that is, to failing to take the reasonable precaution of providing for local ventilation in the area where the material was being processed - contrary to the Occupational Health and Safety Act.”
Having an SDS available is not enough. Employers are responsible for understanding and acting on the information contained in the SDS to protect workers.
Please feel free to contact us if you have more questions about your liability and/or SDS protocols.