How Does a NIOSH Health Hazard Evaluation Work?

A NIOSH health hazard evaluation (HHE) is a study of whether a substance or physical agent in a workplace has potentially toxic effects. The program comes from 29 U.S.C. 669(a)(6), and the procedures are in 42 CFR Part 85. NIOSH is a research agency in the Department of Health and Human Services (HHS). The Learn Laws® news item on the HHE information collection covers a recent CDC notice.

Who can ask. A request must be in writing and signed by the employer, or by an authorized representative of employees at the place of employment (42 CFR 85.3). An authorized representative can be an officer of a collective bargaining representative, an employee authorized in writing by two or more coworkers, or one of three or fewer employees at the workplace (42 CFR 85.3-1(e)).

What a request includes. The request lists the requester's contact details, the workplace name and address, the process or type of work involved, and the conditions that prompted the request. It states whether the requester's name may be revealed to the employer and, if known, the substance, trade name, labeling and physical form.

The visit. NIOSH officers with official credentials may enter the workplace to investigate processes, conditions, equipment and records, and to conduct medical examinations and tests of employees that relate directly to the evaluation (42 CFR 85.5), with the consent of those employees (42 CFR 85.7(c)). Investigations take place during regular working hours or at other reasonable times. Before starting, officers present credentials and explain the scope (42 CFR 85.7). If employees made the request, the employer receives a copy, or a summary if the requester asked to stay anonymous. Advance notice may be given, but not when it would weaken the investigation (42 CFR 85.6). On request, the employer provides suitable space, if reasonably available, for private interviews and exams (42 CFR 85.8). NIOSH pays the cost of these medical examinations and tests (42 CFR 85.8).

Imminent danger. If NIOSH finds a reasonable basis for an imminent danger allegation, it immediately advises the employer and affected employees and informs the Department of Labor or the state plan agency (42 CFR 85.10).

Results and posting. At the end, NIOSH identifies each substance or agent, the levels found, and whether they have potentially toxic effects, with the basis for that judgment. Copies go to the employer and the authorized employee representatives. The employer posts the determination for 30 calendar days at or near the affected workplaces, unless it asks NIOSH to mail copies to affected employees and supplies their addresses (42 CFR 85.11).

NIOSH is not OSHA. An HHE is a research and advisory process. NIOSH does not issue citations, though findings may lead an employer to change controls. The FAQ on OSHA's role in DOT workplaces covers enforcement, and the FAQ on compliance training covers training follow-up. The FAQs on NIOSH-approved respirators and on the difference between NIOSH and OSHA cover NIOSH's other roles.