A call for workplace vigilance: emerging trends in the management of environmental hazards in the workplace.

Imagine that this headline from a local newspaper reported the following about your Company: "XYZ Company Creates Fund to Pay Employees For Chemical Exposure After Protracted Legal Battle."

Such an article did recently report on personal injury cases in which an aerospace corporation and its suppliers had been sued for in excess of 1.5 billion dollars for claimed environmental and occupational safety and health matters. The company was assessed substantial fines by OSHA and agreed to an undisclosed cash settlement to establish a fund for payment to over six hundred of its employees.

This company's resolution of employee claims is only a chapter in a longer book; manufacturing solvents resulted in ground water contamination for which the company agreed to pay the EPA $60 million in clean-up costs.

Cases asserting environmental hazards in the workplace are grabbing headline attention as the media emphasizes the real or projected harm in terms of money and human suffering and, sometimes, the devastating effect the financial liabilities will have on the survival of a business. The public's interest may be riveted because cases of this type combine the politically and socially sensitive issue of environmental protection with the empathy the public feels for other people's harm in circumstances that members of the public realize could happen to them. One of the attractions to plaintiffs' attorneys is the larger personal injury recoveries available from a jury if a microscopic assessment of a company's environment -- at times assisted by the investigative efforts of an appropriate regulatory agency -- discloses facts which permit circumventing the exclusivity and financial recoveries of the workers' compensation system which normally apply when an employee seeks recovery for a workplace injury.

This type of headline could be about any business which fails to scrutinize itself as thoroughly as regulators or hostile attorneys might do after the fact. Each business should proactively assess its regulatory compliance to both environmental and occupational safely and health requirements in order to ensure that hazardous exposures are prevented and, failing that, remedied immediately.

Few businesses are immune from the advisability of vigilance since, even in relatively "clean" work environments, workplace hazards may be created by employees -- such as through tobacco smoke -- or by surrounding environmental conditions which intrude into the workplace -- such as radon gas emitted from the ground. Becoming proactive takes more than a lone ranger environmental or employee safety and health officer. A team whose divergent but relevant skills are coordinated is necessary to recognize the concealed, subtle and complex hazards or harms and the proper methods for their elimination. With the stakes so high, it is imperative that a multidisciplinary preventative effort be embraced now in order to protect the company from becoming the subject of tomorrow's adverse publicity and litigation.

The team approach acknowledges that the issues and concerns which impact the work place environment are too big for one person to recognize, know, analyze and effectively control. Accordingly, a team should include an array of company representatives which combines the relevant and practical technical, managerial and legal knowledge implicated by environmental and employee health and safety regulation. Obviously, the "team" will vary from workplace to workplace depending upon specific issues and needs.

The first step in the team approach is team building. Obviously personnel such as the environmental and occupational safety and health officer(s), the injury and illness prevention program ("IPP") coordinator, other medical, industrial hygiene and safety representatives should be included. In addition, the team approach should incorporate representatives from the company's personnel, labor-management, operations, maintenance, engineering and design departments as well as outside consultants and environmental, occupational safety and health and employment counsel. The business should not overlook its least recognized but sometimes most effective experts -- its employees and managerial personnel. These individuals may lack technical training and degrees but may possess anecdotal information pertaining to unexplained symptoms that may sound an alarm years before reason for concern might otherwise appear.

The team or the team coordinator should undertake an assessment of the workplace and its contiguous environment and their potential hazards. These efforts should be renewed when changed work practices, processes, or supplies could impact on exposures to hazardous substances. Some of these functions overlap with regulatory requirements. For example, a California employer must establish an IPP and appoint an IPP coordinator. The IPP coordinator must, in part, effectively conduct hazard assessments, monitor injuries and illnesses, solicit and respond to complaints concerning workplace safety and health issues, conduct training and investigate injuries and illnesses.

The IPP coordinator has at his or her disposal a wide range of valuable information which can be used effectively by the team to identify hazards. Furthermore, each business is supposed to receive from chemical manufacturers a material safety data sheet ("MSDS") describing the hazards associated with each of the hazardous chemicals in the workplace. This information, as well as the "safe handling" information contained within the MSDS, provides the business with an invaluable database which must be appropriately reviewed and effectively applied by the team.

The team should also review the company's OSHA Form 200 Logs (which record workplace injuries and illnesses) to determine if any clusters of illnesses or injuries exist which are of an uncertain cause. In this regard, sometimes general or relatively benign symptoms can actually be the first indication that there is a serious problem developing as a result of a previously unknown hazardous workplace exposure. A business should equip the team with this and all other potentially relevant information which may reveal an environmental hazard or harm by creating a centralized information repository.

Another important team role is contributing to plans for the design of new facilities or alterations to the current work space and for the introduction of or changes to current processes. Architects and designers, and inventors of manufacturing and other processes may not be as attuned to relevant workplace safety and health and environmental issues as the company's own team.

Even in a service industry workplace which regards itself as immune from some of these environmental problems, this team approach, though perhaps with a more limited group, should be useful in recognizing and solving potential problems. Two simple examples illustrate this point. First, disputes between co-workers over smoking often escalate, and if not effectively resolved may prompt workers' compensation and civil litigation claims contending handicap discrimination and various torts. The common employer solution of segregating smokers is thwarted if that second-hand smoke is transmitted to the company's non-smokers through the ventilating system. The use of trained engineers and consultants can solve these problems before they escalate.

Second, an airline discovered the value of this team approach, but only after wasting resources because it had failed at the outset to take advantage of relevant information which one of its own managers had generated. Midway through construction of one of its terminals, the airline's attention was finally directed to that neglected data by an injured check-in employee. The airline convened as a team its managers of health and safety, labor-management, engineering, construction and design. For the first time, the OSHA Form 200 Logs were reviewed by that team which recognized a formerly overlooked pattern of injuries and how to ameliorate the cause by changing the check-in desk's design where luggage is received.

The most important benefit from the team approach is the identification of a problem before it develops or festers. Accordingly, if a workplace hazard is identified as contributing to employee illness, the business should redouble its efforts not only to prevent injury to its workers but also to access whether the cause might also affect the community at large and thereby avoid magnifying the harm and the extent of its liability. This type of vigilance reduces the chances of becoming a newspaper headline.

Mr. Quesnel is a partner in the Litigation Department and Mr. Drapkin is a partner in the Labor & Employment Law Department of Mitchell Silberberg & Knupp and they both participate in the firm's multi-disciplinary Environmental Law Practice Group.

Mr. Quesnel holds a law degree from and was later a professor at UCLA School of Law and is a member of various Environmental Law sections of the ABA, California Bar and Los Angeles County Bar Associations.

Mr. Drapkin holds a law degree and a Masters Degree in Public Health from the University of California, Berkeley where he taught classes on occupational safety and health law. Mr. Drapkin represents employers in a broad spectrum of industries in matters involving all aspects of labor and employment and occupational safety and health law.

Both Mr. Drapkin and Mr. Quesnel have written numerous articles and have lectured extensively to business groups on these subjects.