Responses to “Revisiting Ethics and Confidentiality”

The January 2019 Synergist included an article by Jeff Throckmorton and Mark Katchen that presented two fictional ethical dilemmas in which industrial hygienists must choose between protecting their employer and protecting employees. Summaries of the two dilemmas appear below, followed by responses from Synergist readers. The Joint Industrial Hygiene Associations Member Ethical Principles are available on AIHA's website (PDF).

SCENARIO 1 SUMMARY Having received a complaint from a union president concerning health and safety violations at a local refinery, OSHA inspectors arrive to conduct a “wall-to-wall” inspection. Mary, a CIH and manager of environmental health and safety at the refinery, has been assigned to escort the inspectors through the plant. She notes that the complaint does not mention overexposures during the top-loading of various fuel products. Mary has documented many instances of overexposure during loading and has been trying to get management to authorize the installation of local exhaust ventilation. Management is reluctant to install LEV because of concerns about cost and has suggested employees wear respirators “for now.” Should Mary show the OSHA inspection team the top-loading area even though it was not included in the complaint? What ethical issues should she consider? What is her primary ethical responsibility? RESPONSES TO SCENARIO 1 No, Mary should not engage OSHA to force management to take care of issues that she should be able to get resolved within the company. Mary should make sure the ventilation is installed, but she shouldn’t use OSHA to get it done. A digital Synergist reader This scenario illuminates the fact that the ABIH Code of Ethics [PDF] doesn’t include a clearly stated affirmative duty to report dangerous conditions to regulators, nor indeed any affirmative duty to protect workers beyond following health and safety procedures per paragraph II.C.1. Paragraph II.A.4 presents a duty to “maintain and respect the confidentiality of sensitive information obtained in the course of professional activities unless: the information is reasonably understood to pertain to unlawful activity; a court or governmental agency lawfully directs the release of the information; the client or the employer expressly authorizes the release of specific information; or, the failure to release such information would likely result in death or serious physical harm to employees and/or the public.” If Mary considers the lack of engineering controls during top-loading to be a condition likely to result in serious harm, she could interpret this paragraph to justify reporting the overexposures to OSHA. However, her employer could argue that she was not necessarily obligated under the ABIH Code of Ethics to break confidentiality, even if employees were being overexposed. The Joint Industrial Hygiene Associations Member Ethical Principles go beyond the ABIH Code of Ethics concerning a duty to report violations, but this duty is weakly worded. Paragraph II.C.2 reads: “In order to satisfy organizational policies and legal requirements concerning public health and safety, members should … [i]nform appropriate management representatives and/or governmental bodies of violations of legal and regulatory requirements when obligated or otherwise clearly appropriate.” The qualifier “when obligated or otherwise clearly appropriate” is too ambiguous to be helpful to Mary. Thus, both ethical guidelines reinforce the reality that an industrial hygienist’s ability to protect workers is severely constrained by what the employer is willing to authorize or do. Mary’s only protection as a potential whistleblower comes not from the professional organizations with which she is affiliated, but from federal whistleblower protection rules. She may rightly believe that her primary ethical responsibility should be to protect the workers, but her profession doesn’t stand behind her in that very natural assumption.  I must also note that the scenario doesn’t stipulate that respirators and/or administrative controls could not adequately reduce exposures. Preventing continued serious overexposure is a good reason to blow the whistle on the employer, but simply enforcing the hierarchy of controls is not. Margaret Phillips

“Mary should not engage OSHA to force management to take care of issues that she should be able to get resolved within the company.” 
Editor’s note: The scenarios described in this article are fictitious and are intended to highlight ethical issues in the practice of industrial hygiene. Any resemblance to real people or organizations is coincidental.

Mary should not take the OSHA inspectors to the top-loading area. Her responsibility is to take the inspectors where they have requested to go and not throw in other areas. She could then use the fact that the concerns were brought up by the union and that OSHA became involved to get the company to address the other issues. Now that OSHA has inspected the site, the company may be more agreeable to fixing the other issues as well.
Shane Owen
Mary’s primary ethical responsibility is to look out for workers’ safety and health. The top-loading area is of concern to Mary. She proposes a local exhaust ventilation, but the management suggests to go “for now” with respirators only. Respirators are not her first choice, but they can protect workers if used and maintained properly. So, the workers should be fine “for now.” Mary also has an ethical obligation to her employer. Before reaching out to OSHA, she should try to find a long-term solution with her management. If Mary has indications that respirators are (sometimes) insufficient to protect the workers, she should document that and alarm her employer in clear words (for example, “We are in violation of...”). Mary should become a whistleblower only if workers are at unacceptable risk and the employer refused to take any steps to rectify this. Michael Riediker Management has given Mary a means to control employee exposure in the short term—respirators. It would be unethical for Mary to try to use the possibility of an OSHA citation to get a ventilation system that her employer has been “reluctant” to install (it was not totally ruled out by the company). Rex Hunter I will assume the employer-supplied respirators are adequate to protect the employees involved in top-loading. Respirators are an appropriate interim exposure control pending engineering controls. Given how corporate America operates, and given Mary likely needs the income/benefits from the job, I would recommend not voluntarily disclosing the information unless directly asked by the compliance officer. Instead, Mary might use the blowback from the OSHA investigation to revisit the situation with her management and advocate for better control options for the top-loading process. Peter Erndwein There is no doubt that Mary should show the OSHA inspection team the top-loading area. The intent of the team is to do a wall-to-wall inspection, not just an inspection of the areas mentioned in the complaint. Her not taking the inspection team to the area would be unlawful given the intent of the inspection.  In addition, Mary knows that work in this area leads to overexposure, and management will not fix it. Knowingly overexposing employees is unlawful on the part of management. Mary is within the bounds of the AIHA/ACGIH member principles’ confidentiality clause, which allows for information to be shared when it “is reasonably understood to pertain to unlawful activity” and also when “the failure to release such information would likely result in ... serious physical harm to employees.” Thus, I think that not only should Mary show the inspectors the area, but that it is in fact her duty to do so. A digital Synergist reader SCENARIO 2 SUMMARY The management at P.E.L. Manufacturing has approved limited ventilation upgrades for Line A, which, although it runs only seasonally for partial shifts, is essential to the company’s survival. The newly hired IH, Jack, has documented exposures on Line A that marginally exceed OSHA’s permissible exposure limit. The chemical in question is slightly irritating to the eyes, but the nature of the work precludes the use of respirators. Feeling pressure from management to “not do much more” until the upgrades are in place, Jack decides to drop the issue temporarily. Six months later, after the ventilation improvements are complete, Jack resamples and finds only limited reductions in exposure levels, with occasional excessive exposures. He presents his findings to management, but they tell him that the company has no more money to deal with this issue.  Does Jack refer the matter to OSHA? Was he right to let the issue lie for six months? What are his long-term options? RESPONSES TO SCENARIO 2 I will assume the chemical in question is essentially a mucous membrane irritant with no chronic health impacts. I would encourage Jack to consider creative, low-cost solutions. Perhaps the damper setting on the building HVAC system could be adjusted to exhaust more air, thus reducing chemical build-up inside the building. Perhaps low-cost pedestal fans could be deployed near the operators’ stations to direct fugitive emissions to existing local exhaust hoods (“push-pull”). I would also suggest investigating what is causing the exposure spikes and implementing a respiratory protection program during such periods. 
Peter Erndwein Jack should make management aware that they are knowingly violating the General Duty Clause. He should not have waited six months. He should notify Corporate legal of his concerns. If no action is taken, then he should notify OSHA. After all, the confidentiality agreement should not supersede his responsibility to protect workers. Philip Fontenelle