TIME TO CONSUME OR RE-LABEL EXISTING WHMIS 1988 CONTROLLED PRODUCT INVENTORY
The final stage in the transition from WHMIS 1988 to WHMIS 2015 is drawing to a close. Consequently, employers in Canada have an obligation to ensure that any “leftover” stock at the workplace is identified under the WHMIS 2015 GHS-based classification and hazard communication protocols.
Note that, while the majority of Canadian jurisdictions require all provisions of WHMIS 2015 to be in place as of December 1, 2018, there are currently two exceptions.
Employers under the Federal jurisdiction have the ability, under the Canada Labour Code, to continue to use stock in the workplace with WHMIS 1988 labels/MSDS until May 31, 2019 (Canadian Occupational Health and Safety Regulation – SOR/2016-141, s. 77(b)).
Also, as of November 9, 2018, Nova Scotia has yet to publish an update to the 1989 WHMIS regulation.
ONTARIO CLARIFIES O.REG. 860- WHMIS 2015 REQUIREMENTS FOR EXISTING WHMIS 1988 STOCK
In an amendment published on e-laws November 2 (to appear in the November 17, 2018 Edition of The Ontario Gazette )- effective December 1 employers must re-label any existing inventory of hazardous product received under WHMIS 1988 regulations.
This amendment affects O.Reg.860 sections 8, 10, and 18. Also a new s. 13 has been added; and the obsolete (transition) s. 25.1 is revoked at Dec.1. Terminology for labels has been modified in recognition that SDS or labels normally provided by the supplier may have to be generated by the employer when WHMIS 2015 versions for products supplied under WHMIS 1988 regulations are not obtainable from the supplier.
WORKPLACE OR SUPPLIER LABELS?
WHMIS 1988 supplier labels on products must be changed to WHMIS 2015 supplier labels as of December 1, 2018. If the employer is unable to obtain updated labels from the supplier, then the employer must generate an equivalent themselves under the revised s. 8 and new s.13(2).
In addition, workplace labels must also be updated in accordance with the provisions in s. 13. This section, in effect, requires the employer to replace a WHMIS 1988 workplace label with a WHMIS 2015-compliant workplace label for inventory labelled at the workplace between August 31, 2018 and November 30, 2018. Presumably this reflects the fact that the information regarding WHMIS 2015 hazards would have been available, during that phase of transition, and would have been included in the hazard communication on the workplace label.
However, s. 13(2) requires that the employer must change WHMIS 1988-based workplace labels, applied to products received before August 31, 2018, with the equivalent to a WHMIS 2015 supplier label.
Products needing labels updated to WHMIS 2015 requirements must also have SDS in the GHS-based format available for consultation by workers. This requirement is reflected in the addition of subsection (1.1) to s. 18; also referenced in an addition to the definition of SDS in subsection 1(1).
As with supplier labels, if the employer is unable to obtain a WHMIS 2015-compliant SDS from the original supplier, then the employer must prepare a compliant version to replace the MSDS.
The employers’ task to comply regarding GHS-based labels and SDS may be a challenge for products where the original supplier is unavailable to provide them; or refuses to share information for the employer to use in complying.
A last resort could require disposal of products for when an employer cannot obtain or generate a WHMIS 2015-compliant label or SDS.