From: Monona Rossol <actsnyc**At_Symbol_Here**>
Subject: Re: [DCHAS-L] Question about lab policy for "medical condition"
Date: Mon, 3 Mar 2014 08:47:15 -0500
Reply-To: DCHAS-L <DCHAS-L**At_Symbol_Here**MED.CORNELL.EDU>
Message-ID: 8D104FE38AE441A-1988-1BA83**At_Symbol_Here**
In-Reply-To <009b01cf36da$dde5a960$99b0fc20$**At_Symbol_Here**>

1.  REASONABLE.  It is what constitutes  "reasonable precautions" where the major issue is.  And usually in court it will be standards of practice that will be used as a yard stick for this.  Those would include the proper ventilation for the process, training specific to the hazard, protective equipment, etc.   Since I deal with the ventilation, I'm most familiar with those standards.  And just because it has always smelled of solvents in organic chemistry does not mean it is OK.  If there is not sufficient ventilation to control those vapors roughly in the range of 1/10th of the TLVs (see ASHRAE 62-2001 or the EPA NAAQSs), you have a standards problem.  Remember that TLVs apply only to healthy adult workers. TLVs are not designed to protect the fetus.  In a school which allows entry of all kinds of people in all kinds of physical conditions, it s necessary to apply the standards applicable to the general public.   This is easy to do, actually, it's just that many schools don't.
2. JOHNSON CONTROLS. I still have not seen any evidence that the Johnson Controls case (which applies to women who wanted access to the higher paying jobs in the lead industry) is also applicable to non-employee, unpaid students.   I'm not at all sure that this is a valid assumption.  The school has an obligation to protect students unlike that of employers.  These young people and their parents are paying for an education.  They did not agree, as all employees do by accepting employment, to waive the right to sue in lieu of workers' compensation.  Students are a different legal entity.
I think the Johnson Controls case is a way for schools to claim they are "powerless" so they don't have to do the hard work of setting policy and enforcing it.
3.  ADA.  In case someone thinks ADA figures in this, this is how it does.  The demands of disabled students to participate requires the school to accommodate them by providing a safe way for them to accomplish the same tasks.  It does not give the school the right to place these students at risk.   The architecture, ventilation, and safety equipment all must be modified if necessary to accomplish this. ADA, in fact, has led to safer schools for everyone.
If you want to accommodate asthmatics, pregnant women, and people with life support systems in their wheel chairs in chemistry, provide better ventilation or use materials that don't warrant high ventilation rates.   Everyone will be safer as a result.
4. ALCOHOL.   As for the alcohol argument, it is a good one.  The alcohol manufactures and owners of bars must post warnings.  The wording of those warnings must be very specific. And there is a point at which a bartender must refuse to serve a customer. 
So at the very least, the school must provide clear warnings about what is known and not known about the potential hazards.  And there is a point at which the school must say "no" to working with certain materials or processes for people with known risks.
Monona Rossol, M.S., M.F.A., Industrial Hygienist
President:  Arts, Crafts & Theater Safety, Inc.
Safety Officer: Local USA829, IATSE
181 Thompson St., #23
New York, NY 10012     212-777-0062

-----Original Message-----
From: Ben Ruekberg <bruekberg**At_Symbol_Here**CHM.URI.EDU>
Sent: Mon, Mar 3, 2014 7:43 am
Subject: Re: [DCHAS-L] Question about lab policy for "medical condition"

Respectfully, I think that I made it clear that the institution takes all reasonable precautions (and implied that it has stipulated that there would be things beyond its control and hazards as yet undiscovered).  I also pointed out that the case can be pursued by the relatives on behalf of the victim before said victim reaches majority, by which time the statute of limitations may apply.  I would reemphasize the notion that the absence of other risky behavior (pumping gasoline) might need to be documented by the plaintiff, and even if it were that the mother (despite all this warning) chose to take a laboratory when her unborn child was vulnerable rather than waiting until the child would be out of danger.  Further, the institution should have documented that a physician (informed as to the materials to which the student might be exposed) was consulted by the student.
If all of this is not enough to shield the institution from liability, what more could they do (remembering that the law compels it to accede to the student=E2=80™s choice)?
Referring to the post to which you have replied, I will ask again: have manufacturers of alcoholic beverages been held accountable by victims of fetal alcohol syndrome?  I do not know what precedent this might set and have not seen bottles of such beverages recently enough to know if there are warning labels on them.
Thank you,
From: DCHAS-L Discussion List [mailto:dchas-l**At_Symbol_Here**MED.CORNELL.EDU] On Behalf Of Peter Zavon
Sent: Saturday, March 01, 2014 10:28 AM
Subject: Re: [DCHAS-L] Question about lab policy for "medical condition"
And my point is that in the real world, a written acknowledgement that they have been warned of hazards does not get you much of anywhere.  Even if the written assumption of responsibility by the student is found to be valid (and, as noted by others, that is far from a certainty), it is NOT going to bind any offspring who claim to have been adversely impacted by resulting exposures.  However, said offspring will probably have to wait to attain their majority before taking your institution to court. Wouldn't it be better to remove as much as possible the actual circumstances (facts on the ground) that might lead there two decades later?
Peter Zavon, CIH
Penfield, NY

From: DCHAS-L Discussion List [mailto:dchas-l**At_Symbol_Here**MED..CORNELL.EDU] On Behalf Of Ben Ruekberg
Sent: Friday, February 28, 2014 9:05 AM
Subject: Re: [DCHAS-L] Question about lab policy for "medical condition"
What I suggested was that the person (and everyone else deemed appropriate, all duly warned) sign a statement that the person acknowledges the warnings and takes full responsibility for the consequences of that person's decision. 
I am not a legal expert, but when someone
(1) voluntarily engages in potentially hazardous behavior
(2) despite clear warnings of those potential hazards (and that some hazards are beyond the control of the institution)
(3) and has the ability to engage in those behaviors when they would no longer be hazardous,
why should the institution
(4) legally obligated to abide by that person's choice
(and assuming that the institution has taken all reasonable precautions) be held responsible?  One might add, "as if the institution were the only source of exposure to mutagens or teratogens."  Do gas pumps post warnings to pregnant women against exposure to gasoline?  I fail to see why the institution, that has endeavored (more than others) to responsibly counsel its students, be held accountable for the exposure (of many possible exposures) answerable for the child's problem.
Are there cases of sufferers of fetal alcohol syndrome (or their representatives) successfully suing the manufacturers of the alcoholic beverages the mother consumed?  (I don't know.)  
Clearly, the health and welfare of the student and child must be the primary concern of the school.  All I am saying is  that you can lead a horse to water, but after that your responsibilities must be considered limited.
Thank you,
From: DCHAS-L Discussion List [mailto:dchas-l**At_Symbol_Here**MED..CORNELL.EDU] On Behalf Of Peter Zavon
Sent: Thursday, February 27, 2014 11:23 PM
Subject: Re: [DCHAS-L] Question about lab policy for "medical condition"
Basically, you are suggesting that the student ( and guardians) be asked to sign a document indemnifying and holding the school harmless should the child take them to court for (for example) inadequate safety instruction some 25 years in the future.  Hardly seems workable to me.
Peter Zavon, CIH
Penfield, NY

From: DCHAS-L Discussion List [mailto:dchas-l**At_Symbol_Here**MED..CORNELL.EDU] On Behalf Of Ben Ruekberg
Sent: Thursday, February 27, 2014 10:04 AM
Subject: Re: [DCHAS-L] Question about lab policy for "medical condition"
Not wishing to get into an argument on the subject of waivers, let me emphasize that I suggested that the mother-to-be (also) sign a statement assuming full responsibility/liability for the possible results of any exposure.  Presumably, this would be co-signed by a parent or guardian if the person is underage and father-to-be, if necessary (and known).  This would be different from "signing away her/his child's rights."  If a parent-to-be chooses to exercise their right to engage in potentially dangerous activities after due warning and when such activities could be postponed to a less dangerous time, it would seem fair that they should assume responsibility for the any consequences of their choice.
This is not intended, in any way, to preclude some of the excellent suggestions made in this discussion.
Thank you,
From: DCHAS-L Discussion List [mailto:dchas-l**At_Symbol_Here**MED..CORNELL.EDU] On Behalf Of Wright, Mike
Sent: Thursday, February 27, 2014 9:30 AM
Subject: Re: [DCHAS-L] Question about lab policy for "medical condition"
We=E2=80™ve had a lot of experience with this issue, although in an employment context, not in academic laboratories. I would strongly advise against such waivers. First, they would not stand up in court, especially with respect to birth defects, where the mother (or father - it takes both) can=E2=80™t sign away her/his child's rights.
Also, consider the PR implications, especially if the press links it with the Sheri Sangji tragedy. The only answer is to make the lab as safe as possible by:
=B7         Rigorously assessing every operation, experiment and chemical and taking appropriate action;
=B7         Ensuring that every student and lab worker is well trained in safety and in the hazards of all the chemicals they might encounter. In fact, the very first chemistry class for any student should be a comprehensive class in chemical safety;
=B7         Ensuring that everyone has access to the best protective clothing and equipment;
=B7         Ensuring that every student and lab worker has access to good medical advice regarding any individual characteristics that might put them at risk. It's not enough to suggest that they consult with their own physician, who may have relatively little training in toxicology. There should be an occupational or environmental medicine specialist on hand who they can talk to confidentially.
It=E2=80™s been a long time since I was a student, but the labs I worked in =E2=80" even in public health school - were a long way from this standard.
Michael J.. Wright
Director of Health, Safety and Environment
United Steelworkers
412-562-2580 office
412-370-0105 cell
See us on the web at
From: DCHAS-L Discussion List [mailto:dchas-l**At_Symbol_Here**MED..CORNELL.EDU] On Behalf Of Ben Ruekberg
Sent: Thursday, February 27, 2014 6:51 AM
Subject: Re: [DCHAS-L] Question about lab policy for "medical condition"
I have a suggestion, which I must state is not popular: have the person in question, particularly a pregnant person, sign a waiver that not merely promises that they will not sue in case of misadventure (such as birth defects), but that they accept full responsibility for any consequences of chemical exposure, with the understanding that not all hazards may be currently known and that some responses to exposure can be idiosyncratic.  (The listed LD-50 for glucose may not apply to a person with diabetes.)  The reason for this (again particularly in the case of birth defects) is that any relatives other than the victim (for want of a better word) can sue on the victim's behalf.
This is not to preclude previous consultation with a physician, which I would suggest should be documented, but the list of teratogens is growing and SDS=E2=80™s (if they are like MSDS's, as valuable as they are) are not always going to be up-to-date, will contain boilerplate and cannot cover all synergistic effects of exposure to a combination of substances.  Consultation with a (qualified) physician would seem a requirement for informed consent, in which I am a strong believer.  Nor should it preclude lab safety training, which should also be documented.
Thank you,
From: DCHAS-L Discussion List [mailto:dchas-l**At_Symbol_Here**MED..CORNELL.EDU] On Behalf Of David C. Finster
Sent: Wednesday, February 26, 2014 9:20 PM
Subject: [DCHAS-L] Question about lab policy for "medical condition"
CHAS folks,
I recently got an email from a colleague asking:
"Our department is looking for model policies for students with medical conditions which might limit their participation in the laboratory (such as asthma, pregnancy, allergies, etc.). We=E2=80™re getting a suggestion from "on high" to have a caveat emptor policy where we just refer students to the SDS's and tell them that they have to make their own decisions in consultation with their physician.
Do you know of any models we might look at for review, consideration, and/or adoption?"
David C. Finster
Professor, Department of Chemistry
University Chemical Hygiene Officer
Wittenberg University


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