Proposition 65 is filed in most people’s minds under product labels and parking garage signs. It also reaches employers, and the occupational side of it is where California businesses are least prepared, because nothing about it looks like a safety regulation.
Who it applies to
A business with fewer than 10 employees is exempt from the warning requirement. Under 27 CCR section 25102(h), all full-time and part-time employees on the date the exposure occurs are counted. Ten is not a large number. A shop that has grown from six people to eleven has crossed into the statute without anyone noticing, and nothing arrives in the mail to say so.
What an occupational warning is
Occupational exposure warnings sit in Article 6 of Title 27, at section 25606. A business may provide a warning using the safe harbor methods available for consumer or environmental exposures, or it may satisfy the requirement by complying with the applicable hazard communication standard.
That second route is the one that matters, and it is the reason most employers are closer to compliant than they think. Where the specific chemical exposure is covered by the California or the federal hazard communication standard, a business can comply with Proposition 65 by complying with the training and warning requirements of that standard. In California that is 8 CCR section 5194, which already covers almost all non-federal employees in the state.
Where the gap opens
The hazard communication route only closes out the chemicals the hazard communication program actually covers. Three categories routinely fall outside it:
- Process-generated contaminants. Welding fume, silica dust from cutting, lead from torching painted steel, and combustion products are not purchased, so they never appear on a chemical inventory built from purchase orders.
- Listed chemicals present as constituents. A product’s safety data sheet may not call out a listed chemical present below the disclosure thresholds that apply to the data sheet.
- Exposures to non-employees on site. Visitors, delivery drivers and contractors are not covered by an employee training program, and the exposure to them is an environmental exposure with its own warning rules.
A practical sequence
Start from the chemical inventory the hazard communication program already requires and widen it. Add the things the processes create rather than the things the company buys. Compare the widened list against the current Proposition 65 list, which is republished as chemicals are added and is not static. Then, for anything on both lists, decide which route you are taking — hazard communication compliance for the employees, and a separate warning method for anyone on the property who is not an employee.
Write the decision down with a date. The distinguishing feature of Proposition 65 enforcement is that it is largely private, and the question asked is not whether the company meant well. It is what the company knew and what it posted.
The overlap that helps
The work this requires is work a serious health and safety program has already done. A current chemical inventory, a hazard communication program that reflects the processes rather than the purchasing history, training records, and exposure monitoring where it is warranted — that set of documents answers Proposition 65, the hazard communication standard, and most of an industrial hygiene review at the same time. The employers who struggle with Proposition 65 are, with very few exceptions, the employers whose chemical inventory was built once and never revisited.
Michael Karl McNeil — environmental health and safety, industrial hygiene, Cal/OSHA citation defense.
