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Be-leach it or Not: Employers Using Bleach May Unknowingly Violate Michigan Law—and Face Sanctions
By R.J. Cronkhite

personal protective
equipment assessmentMichigan’s Occupational Safety and Health Administration (MIOSHA) requires that every Michigan employer using bleach—and thus exposing employees to bleach—install an industry-grade eye wash station on-site. It doesn’t matter whether you have one employee, or 1,000—if you employ an individual, you must comply with MIOSHA’s rules and regulations, including its bleach regulations.

An employer’s first question may be, “Why is bleach regulated at all?” followed shortly by, “Don’t Michigan’s sanitation laws, such as the Food Law Code, require my business to use bleach? How is this regulation fair?” I address the “why” directly below; the answer to the second question is that Michigan employers are not required to use bleach—in fact, they can use a variety of alternatives to bleach to meet their sanitation obligations. I address these alternatives in more detail later on in this article.

Why does MIOSHA regulate bleach and how can it affect my business?
 
MIOSHA regulates bleach because of its high pH level—between 11.5 and 13.0 pH. Michigan considers bleach’s pH level “injurious” and, accordingly, requires that every Michigan employer using bleach “ensure that suitable facilities for quick drenching or flushing of the eyes and body are provided within the work area for immediate emergency use.”1

For many industries, such as the restaurant industry, the reality is that few, if any, employers comply with this requirement. Many employers simply don’t know—or cannot believe—that ordinary bleach can lead to such trouble. That is, until MIOSHA shows up and cites the hapless employer.

Consider one recent—and unfortunately common—scenario facing a Maddin Hauser client: a disgruntled employee made an anonymous call to MIOSHA complaining about the employee’s work conditions, obligating MIOSHA to investigate. MIOSHA arrived at the employer’s facility to discover that, while the disgruntled employee’s initial complaint was meritless, the employer nonetheless violated Michigan’s employment law by using bleach without the required eye wash facility. MIOSHA hit the employer with a “serious” citation, which contains enhanced civil penalties and long-term consequences for an employer’s work-safety record.2

Worse yet, MIOSHA proceeded to run a fine-tooth comb throughout the employer’s facility to assess compliance with MIOSHA’s rules and regulations. The result? Multiple other “serious” violations, including the employer’s failure to possess a written hazard communication program, as well as the failure to conduct a personal protective equipment assessment. In MIOSHA’s eyes, the bleach’s presence enhanced the severity of these independent violations, leading to more civil penalties and black marks on the employer’s safety record.

The employer quickly enlisted Maddin Hauser, who appealed the citations, successfully reduced the civil penalties, and persuaded MIOSHA to lower the “serious” violations to “other-than-serious” violations on the employer’s safety history.

Action Items: What can my business do now to prevent this and similar problems before they happen?

While this client’s situation could have turned out far worse, it also would have been far better had the employer proactively assessed its compliance status, including MIOSHA-compliance, before citation. Quick action items your company should consider to assess compliance with MIOSHA’s rules and regulations:

  1. Have management walk through your business and review on-site chemicals, along with their Safety Data Sheets (SDSs), to identify whether any chemicals have low (4.0 and below) or high pHs (9.0 and higher). Manufacturers typically provide SDSs for each chemical. SDSs are a treasure-trove of information, and should contain the chemical’s pH level. If the chemical has a low or high pH, your business would be wise to confer with the manufacturer and counsel to determine whether the chemical requires extra precautions, such as an eye wash station and additional personal protective equipment. SDSs also inform the business which personal protective equipment, such as eye goggles, users must wear when handling the chemical.

  2. Conduct, and document, a Personal Protective Equipment (PPE) Assessment. Both MIOSHA and its federal counter-part require employers to conduct PPE assessments, which, if conducted properly, will identify chemicals that pose hazards to the body, typically skin and eyes, and thus require personal protective equipment. MIOSHA posts a sample PPE assessment here.3

  3. Consider retaining a consultant specializing in MIOSHA and work-safety compliance and best practices. You don’t know what you don’t know. Working with a consultant with specific expertise in work-safety compliance is particularly important in high-hazard industries, such as manufacturing plants, because MIOSHA regulates those industries more frequently and more stringently. Maddin Hauser’s team works with a network of highly-skilled work-safety consultants who can help ensure your business is compliant.

  4. Consider replacing your bleach and other injurious chemicals—and avoiding the costs of an eye wash station—with other cleaners and alternatives. Some business may ultimately conclude it is cheaper to replace bleach than bring their worksites to code with bleach on-site.

Doesn’t my business need to use bleach to comply with Michigan’s sanitation laws?

Some Maddin Hauser clients are surprised by MIOSHA’s regulations on bleach, particularly because they are under the mistaken impression that businesses must use bleach to sanitize. Michigan does have sanitation requirements that businesses must follow.

For example, Michigan’s Food Law Act4 and Modified Food Code require businesses to sanitize food-contact surfaces and utensils.5 Businesses may sanitize food-contact surfaces and utensils through heat, hot water immersion, or chemical manual or mechanical operations, including chlorine solutions (e.g., bleach), quaternary ammonium solutions (“quats”), and iodine solutions. Businesses must properly use the chosen methods based on Michigan’s detailed specifications, but the fact remains that a business is free to choose a sanitizing method other than bleach. It is wise to check with the manufacturer and to independently review the chemical’s Safety Data Sheet to ensure that the alternative chemical in fact qualifies as a Michigan-approved sanitizer and does not itself require additional compliance efforts. For instance, some “quat” sanitizers contain pH levels that MIOSHA considers hazardous, requiring the same eye wash station as a bleach. Businesses should confer with counsel and the manufacturer to ensure that a contemplated bleach alternative will satisfy MIOSHA and pass inspection in light of the business’s existing worksite.

Ultimately, businesses will need to decide whether using an approved alternate method makes more sense for that particular business, or whether it is more sensible and cost-effective to keep bleach and ensure that the site complies with Michigan’s regulations, including having a proper eye wash station.
 
If you would like more information about this issue and other MIOSHA-related issues, please contact R.J. Cronkhite at (248) 351-7017 or rcronkhite@maddinhauser.com
 
 
 
 
 
 
 


1MIOSHA Administrative Code Rule 325.47201.
 
2An employer with a checkered safety record faces not only more scrutiny and increased site visits from MIOSHA, but also far greater civil penalties if and when MIOSHA cites the employer.
 
 
4MCL 289.1101 et seq.
 
5See Section 4-701.10 of Michigan’s Modified Food Code.