4. WHMIS and the Employer (Continued)

• ISBN: 978-1-4249-6996-8
• Revised: August 2008
• Content last reviewed: June 2009
• PDF Version [ 778 Kb / 96 pages | Download Adobe Reader ]

Material Safety Data Sheets (MSDS)

The Supplier MSDS

What are the duties of the employer regarding MSDSs for controlled products purchased from a supplier?

An employer who buys a controlled product is required to obtain an unexpired MSDS from the supplier on or before the first shipment [section 37(1)(b) of the Act] and [section 17(1) of the regulation].

"Unexpired" means dated within the last 3 years [section 37(5) of the Act].

What should the employer do if he/she is unable to obtain a supplier MSDS?

The employer is allowed to store the controlled product but not to use it until an MSDS is obtained [section 5(1) of the regulation].

The employer should notify the Ministry of Labour in writing, if after making reasonable efforts, he/she is unable to obtain an MSDS on or before the first shipment [section 37(4) of the Act].

What should the employer do when the supplier MSDS has expired?

If the employer has a supplier MSDS that has expired, that is, is more than 3 years old, but the controlled product is still used in the workplace, the employer is obligated to try and obtain a current data sheet from the supplier [section 17(3) of the regulation]. The obligation is on the employer to ensure the currency of the data sheet, because under the federal Controlled Products Regulation, the supplier is not obligated to send an updated or revised data sheet to previous customers.

It is recognized that at times an employer may not be able to obtain an up-to-date supplier material safety data sheet. This may be the case, for example, if the supplier has gone out of business or if the supplier no longer produces the material in question. In such cases, the employer is expected to make reasonable efforts to update the data sheet him/herself. Reasonable efforts mean, for example, consulting the Canadian Centre for Occupational Health and Safety (CCOHS) for assistance. It may be that the CCOHS already has an updated data sheet for that controlled product on file. The employer would only be responsible for adding new hazard information on the ingredients already listed in the expired data sheet [section 17(4) of the regulation].

Can the employer provide workers with an MSDS other than the supplier's MSDS?

Yes. The employer is allowed to provide workers with an MSDS that has a different format than the supplier's MSDS on 2 conditions:

1. that except for trade secret information, the MSDS provided by the employer does not contain less information than the supplier's MSDS; and

2. that the supplier's MSDS is available at the workplace and the data sheet provided by the employer states that fact [section 17(5) of the regulation].

The Employer MSDS

What are the duties of the employer respecting MSDSs for a controlled product produced in the workplace rather than purchased from a supplier?

The employer is required to prepare material safety data sheets for controlled products that are produced in the workplace, rather than purchased from a supplier [section 18(1) of the regulation].

The employer is required to disclose the same information on a workplace data sheet, that the supplier is required to disclose on a supplier data sheet [section 18(3) of the regulation]. In addition, the employer is required to disclose, upon request, the source of any toxicological data used to prepare the MSDS. The parties that can request the employer to disclose the source of toxicological data include an inspector, a worker, a member of the joint health and safety committee, a health and safety representative, or a worker representative [section 25 of the regulation]. The employer can withhold the source of toxicological data if such information is a valid trade secret.

The employer is required to update the workplace data sheet every three years, unless new hazard information becomes available, in which case the data sheet must be updated within 90 days of the new information becoming available [section 18(4) of the regulation].

The employer is not required to prepare a data sheet for a fugitive emission, or for a controlled product that exists only as an intermediate, and is undergoing further reaction within a process or reaction vessel [section 1(2) of the regulation].

Availability of MSDSs

What are the employer's duties respecting availability or distribution of MSDSs at the workplace?

The employer is required to make copies of MSDSs readily available to workers, and to the joint health and safety committee, if any, or to a health and safety representative, if any [sections 38(1)(a) and (b) of the Act].

As a rule, readily available means located close to the workers, and accessible to workers during each shift. It would not be acceptable, for example, to keep data sheets in an office that is remote from the shop floor, or that is locked during the night shift.

Can the employer make MSDSs available on a computer terminal?

Yes. The employer is permitted to make data sheets available to workers by means of a computer terminal, if the employer,

1. takes all reasonable steps to keep the computer terminal in working order;
2. provides a paper copy of the MSDS if requested by an employee; and
3. provides training on how to access computer-stored data sheets, to all workers working with or in proximity to controlled products, and to members of the joint health and safety committee or a health and safety representative [section 38 (5) of the Act].

Worker Education

The employer has a general duty to educate workers who are exposed or likely to be exposed to a controlled product on the job [section 42(1) of the Act].

In addition, the employer is obligated to consult the joint health and safety committee if there is one, or a worker health and safety representative, about the content and delivery of the education program [section 42(2) of the Act].

What information should the employer provide to workers?

If the controlled product is purchased from a supplier, the employer should inform the worker about all hazard information received from the supplier. In general, this means the information provided on supplier labels and data sheets, but it can also include other information such as letters from the supplier in response to inquiries from the employer. The employer should also pass on to workers any other hazard information that the employer is or ought to be aware of [section 6(1) of the regulation].

If the controlled product is produced in the workplace, the employer should inform the workers about all hazard information of which the employer is aware, or ought to be aware [section 6(2) of the regulation].

What does "information the employer ought to be aware of" mean?

For the purpose of interpreting what information the employer "ought to be aware of", the following are considered to be sources of occupational health and safety information that the employer should know about:

• publications and computerized information available from the Canadian Centre for Occupational Health and Safety;
• publications available from industry or trade associations of which the employer is a member and from labour organization(s) representing workers at the workplace; and
• publications from the Ontario Ministry of Labour.

It is not expected that the employer would have to consult all of the above sources, nor is the employer limited to the above.

What specific topics or areas must be covered in a worker education program?

The worker education program must cover the following 6 areas [section 7(1) of the regulation]:

1. labels–the information required, the purpose of the information and the significance of the information;
2. modes of identification when used at the workplace instead of labels;
3. MSDSs–the information required, the purpose of the information and the significance of the information;
4. procedures for the safe use, storage, handling and disposal of a controlled product, including a controlled product in a piping system or vessel;
5. procedures to be followed where fugitive emissions are present; and
6. procedures to be followed in case of an emergency involving a controlled product.

Does the education program have to include instruction on every controlled product in the workplace?

No. Under the WHMIS Regulation, so-called "generic instruction" is permitted. Generic instruction refers to the instruction of workers without reference to specific controlled products or workplaces.

Generic instruction is acceptable in the following cases:

1. instruction in the content required on supplier labels, workplace labels and material safety data sheets;
2. instruction in how WHMIS works;
3. instruction in the hazards of a group of products which have similar properties and for which it is acceptable to use a generic material safety data sheet, provided there is instruction in hazards peculiar to any one product in the group;
4. instruction in work procedures for a group of products if the procedures are basically the same for all the products in the group;
5. instruction in work procedures that apply to a variety of worksites if the work procedures are basically the same at each site; and
6. preliminary stages of instruction in a multi-stage instruction program. For example, a construction industry education program might involve initial generic instruction of workers in trade schools or through programs provided by construction industry health and safety organizations, followed by on-site instruction in specific product hazards and procedures through extended tool-box meetings and the like.

Who needs to be educated?

The law requires that the employer educate "a worker exposed or likely to be exposed" to a controlled product [section 42(1) of the Act]. The phrase "a worker exposed or likely to be exposed" is open to interpretation and may cause problems for the workplace parties and for regulators when determining the actual number of workers to be educated.

The following points are suggested as guidelines when determining who needs to be educated.

1. An "exposed worker" is any worker who stores, handles, uses or disposes of a controlled product, or who supervises another worker performing these activities.
2. A worker "likely to be exposed" is any worker who could be at risk during:
• the storage, handling, use or disposal of a controlled product;
• maintenance operations; or
• emergencies, such as an accidental leak or spill.

The following examples are also offered to help employers determine the scope of their worker education programs.

Examples

1. Bulk quantities of chlorine are piped above ground from the receiving point at a pulp and paper mill to a storage location on site for use as a bleaching agent. Education about the hazards of chlorine will be required for all workers at the plant, at minimum, for the purposes of emergency evacuation.
2. A container of benzene is received at a hospital for transfer to and use in a laboratory. Instruction on the product will be required for the shipper/receiver, the worker who takes the container to the laboratory, lab personnel who handle, store or use the product, workers responsible in event of an emergency with the product and appropriate supervisors.
3. Boxes of welding rods are received at an auto manufacturing plant that employs six hundred workers for use by five welders in an assembly area. No workers other than the welders are likely to be exposed to welding fumes. Instruction will be required only for the five welders and appropriate supervisors (and for first aid personnel if exposure could produce acute ill health effects).
4. In a retail store, education must be provided to those workers who routinely handle large quantities of controlled and consumer products, and who may be exposed as the result of a spill or other accident (e.g., warehouse staff).

After a worker has completed the education program, is any follow-up required?

Yes. The employer is expected to try and ensure that the worker has understood the training material, and is able to put into practice, on the job, what he/she has learned. It is left to the individual employer to devise the means to ascertain that a worker has been properly trained. For example, the employer may ask the worker to take some form of written or oral test, or to participate in a practical demonstration [section 7(3) of the regulation].

In the regulation, the phrase "so far as is reasonably practicable", has been included with respect to the above employer duty. It has been included in recognition of the fact that there will be cases when the employer will have difficulty ascertaining what workers have learned, because of language or literacy problems in the workforce.

After the education program has been developed, is any follow-up of the program required?

Yes. The employer must review the education program at least once a year, or more often if:

• conditions at the workplace change; or
• new information on a controlled product becomes available.

The review must take place in consultation with the joint health and safety committee, if any, or the worker health and safety representative, if any. There are a variety of means of demonstrating that reviews have been conducted as required by law; for example, through the minutes of a health and safety committee meeting.

The requirement for a review of the education program does not necessarily mean the retraining of workers. The review is meant to identify whether updating of the education program and retraining of workers are necessary.

An example of a case where retraining of workers is not necessary is as follows:

An updated material safety data sheet received at the workplace provides new hazard information. Management and the health and safety committee conclude that existing control procedures provide adequate protection against the newly identified hazard. After a review of the education program, it is decided that the new information can be adequately communicated by posting a copy of the revised data sheet on the staff notice board and making announcements at tool-box meetings.

Is the employer required to pay workers for time spent in worker education programs?

This issue is not restricted to WHMIS, nor is it directly addressed in any of the WHMIS legislation. It is the Ministry of Labour's position that time spent at training sessions should be considered work time, and that therefore workers should be paid at the regular or premium rate in accordance with their collective agreement, if any, or the Employment Standards Act.

Exemptions

Are there any exemptions from Ontario's WHMIS legislation?

Yes. The application of Ontario's WHMIS Regulation is related to the exemptions in the federal WHMIS legislation.

1. Complete Exemption Ontario's WHMIS legislation does not apply to a controlled product that is [section 4(3) of the regulation]:
   1. wood or a product made of wood;
   2. tobacco or a product made of tobacco;
   3. a manufactured article; or
   4. being transported or handled pursuant to the requirements of the Transportation of Dangerous Goods Act.
2. Partial Exemption The WHMIS Regulation has limited application to a controlled product that is [section 4(2) of the regulation]:
   1. an explosive within the meaning of the Explosives Act;
   2. a cosmetic, device, drug or food within the meaning of the Food and Drugs Act;
   3. a control product within the meaning of the Pest Control Products Act;
   4. a prescribed substance within the meaning of the Nuclear Energy Act; or
   5. a material that is packaged as a consumer product and in quantities normally used by the consuming public.

   The employer is not required to obtain a supplier label or any material safety data sheet if any of the above are used in the workplace.

   The employer is required to ensure that the above are labelled with a label that meets the requirements of a workplace label. In most cases, the existing label on the product will meet these requirements. The employer is also required to provide worker training respecting these products. In many cases, the training will be limited to ensuring that workers understand the information on the existing product label.

3. Hazardous Waste The WHMIS Regulation has limited application to hazardous waste. Where hazardous waste is generated in the workplace, and stored on site before disposal, the employer is expected to identify all containers of hazardous waste, and to train any workers who may be exposed to the hazardous waste, regarding its safe storage and handling [section 4(4) of the regulation].

   Any means of container identification would be considered acceptable, as long as it is understood by the workers. Examples include:

   • colour coding of hazardous waste containers (in combination with education to ensure that workers will recognize the meaning of the colour);
   • a warning sign with the words, "Caution–Hazardous Waste"; and
   • a warning sign with a picture that conveys the appropriate message.

   The employer is not required to provide a workplace label or a material safety data sheet for containers of hazardous waste.

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