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(a) The Director of Public Health and Welfare or his or her designee shall serve as chair of a Hazardous Chemicals Committee, consisting of seven (7) members, five (5) of whom shall be appointed by the Mayor, subject to confirmation by Council. One (1) member shall be the Fire Chief or his or her designee and one (1) shall be a lawyer specializing in patent and trade secret matters. The remaining four (4) members shall be chosen on the basis of their technical experience and expertise, so as to represent the viewpoints of private employers, employees, the community and the health profession. The Law Department shall act as legal advisor to the Committee. Of the five (5) members first appointed, two (2) shall be appointed for a term of three (3) years, two (2) for a term of two (2) years, one (1) for a term of one (1) year; thereafter all appointees shall be for a term of three (3) years. The Committee shall be appointed and in place within one (1) year of passage of this chapter.
(b) Members of the Hazardous Chemicals Committee shall serve without compensation but shall be reimbursed for expenses incurred in the performance of their duties. The Committee shall rule on all appeals made pursuant to Section 393.17 of this chapter, and shall advise the Fire Chief about the composition of the Master List under Section 393.04.
(Ord. No. 2704-B-83. Passed 3-4-85, eff. 4-13-85)
(a) Any employer may withhold the specific chemical name or other specific chemical identification of a hazardous chemical, if:
(1) The claim that the information withheld is a trade secret can be supported in writing;
(2) Information contained in the material safety data sheet concerning the properties and effects of the hazardous chemical is disclosed;
(3) The label and material safety data sheet indicates that the specific chemical identity is being withheld as a trade secret; and
(4) The specific identity is made available to the Fire Chief and health professionals, in accordance with the applicable provisions of paragraphs (b) and (c) of this section.
(b) The employer shall immediately disclose to the Fire Chief or a treating physician/nurse, upon request, the specific chemical identity of the requested trade secret, without regard to trade secrecy claims and regardless of the existence of a written statement of need or a confidentiality agreement, if:
(1) The Fire Chief determines that an accident has occurred which requires knowledge of specific chemical identities; or
(2) A treating physician or nurse determines that medical emergency exists and the specific chemical identity of a hazardous chemical is necessary for emergency or first aid treatment; or
The employer may require a written request and confidentiality agreement in the form of the standard Confidentiality Agreement contained in Section 393.21 or in accordance with the provisions of division (d) of this section as soon as circumstances permit.
(c) In situations where the employer has made a trade secret claim, the employer shall, upon written request from the Fire Chief or a health professional (i.e., physician, nurse, industrial hygienist, toxicologist, or epidemiologist) providing medical or other occupational health services to exposed employee(s), disclose the specific chemical name of any chemical substance if:
(1) The request is in writing;
(2) The request describes with reasonable detail one (1) or more of the following occupational health needs for the information:
A. To assess or study the hazards or effects of the chemicals to which employees will or have been exposed;
B. To conduct or assess sampling of the workplace atmosphere to determine employee exposure levels;
C. To medically pre-screen employees or provide medical treatment to exposed employees;
D. To assess appropriate personal protective equipment, engineering controls or other protective measures for exposed employees.
(3) The request includes a description of the procedures to be used to maintain the confidentiality of the disclosed information; and
(4) The requesting party and the employer agree in a written confidentiality agreement that the requesting party will not use the trade secret information for any purpose other than the health need(s) asserted and agree not to release the information under any circumstances.
(d) The confidentiality agreement provided by divisions (b) and (c) of this section:
(1) May restrict use of information to health and treatment purposes consistent with the preservation of the trade secret information;
(2) May provide appropriate legal remedies in the event of a breach of the agreement, but not stipulation of a reasonable pre-estimate of likely damages; and
(3) May not include requirements for the posting of a penalty bond.
(e) Nothing in this section is meant to preclude the parties from pursuing noncontractual remedies to the extent permitted by law.
(f) If the employer denies a written request for disclosure of a specific chemical identity in non- emergency or non-accident situations, the denial must:
(1) Be provided to the requesting party and the Fire Chief within ten (10) working days of the request;
(2) Be in writing;
(3) Include evidence to support the claim that the specific chemical identity is a trade secret;
(4) State the specific reason why the request is being denied; and
(5) Explain in detail how alternative information may satisfy the specific medical need without revealing the specific chemical identity.
(g) The requesting party whose request for information is denied under division (f) of this section, may refer the written request and denial to the Hazardous Chemicals Committee for consideration. Both the requesting party and the employer shall be permitted an opportunity to submit evidence supporting their respective positions to the Hazardous Chemicals Committee.
(h) The Hazardous Chemicals Committee shall consider the evidence to determine if:
(1) The employer has supported the claim that the specific chemical identity is a trade secret;
(2) The requesting party has supported the claim that there is medical or occupational health need for the information; and
(3) The requesting party has demonstrated adequate means to protect its confidentiality.
(i) If the Hazardous Chemicals Committee determines that the specific chemical identity requested under division (c) of this section is not a bona fide trade secret, or that the specific chemical identity requested under division (c) of this section is a trade secret but the requesting party has a legitimate need for the information, has executed a written confidentiality agreement, and has shown adequate means to protect the confidentiality of the information, the employer shall provide said chemical identity to the requestingparty within thirty (30) days of the Committee's decision. If the employer appeals the Committee's determination pursuant to subsection (j) of this section, it shall have a right to a stay, as provided in division (e)(3) of Section 3103.20 of these Codified Ordinances.
However, if the Hazardous Chemicals Committee determines that there is no medical or occupational health need for the information or that the execution of a confidentiality agreement would not provide a sufficient protection against the potential harm from the unauthorized disclosure of a trade secret specific chemical identity, the Hazardous Chemicals Committee may deny the request or may delay its final decision until appropriate modifications of the confidentiality agreement are made.
(j) The Hazardous Chemicals Committees' decision under division (i) may be appealed within thirty (30) days by either party to the Board of Building Standards and Building Appeals established pursuant to Charter Section 76-6. The Board’s decision is a final order from which either party may appeal under RC Chapter 2506.
(k) No officer, employee, agent or contractor of any City department, board or commission shall knowingly and intentionally disclose to anyone in any manner, any trade secret information, except as is required to administer or enforce the provisions of this chapter and perform official duties or unless authorized by the employer claiming that the data is trade secret information or a court of law. Any person who knowingly violates this provision shall be subject to discipline for malfeasance in office under the City’s Civil Service rules, and shall be subject to other applicable provisions and penalties under existing law for violations of trade secret protections. This section shall not be construed to eliminate, abridge or detract from any remedies, either at law or in equity, which an employer or other individual may have arising out of any breach of a confidentiality agreement or other legal protection of trade secrets.
(Ord. No. 1233-15. Passed 11-9-15, eff. 11-11-15)
(a) If the Board of Building Standards and Building Appeals determines that the work area hazardous chemical list is not provided as required by Section 393.07(a), or the material safety data sheet is not provided as required by Section 393.08, the employee may, after thirty (30) days notice to the employer, refuse to work with hazardous chemicals until the information is made available.
(b) No employer shall directly or indirectly discharge, discipline, or in any manner discriminate against any employee for the reason or reasons that such person has exercised any right, made any claim or filed any suit pursuant to this chapter or has instituted, or caused to be instituted, any proceedings under this chapter, or has testified, or is about to testify in any proceedings in his or her own behalf or on the behalf of others; nor shall any remuneration, position, seniority or other benefits be lost or denied to any such employee who has exercised any right provided by this chapter.
(c) If any employee or designated representative believes that a violation of this chapter exists or that the employee’s protections, as set forth in Sections 393.07, 393.08, and 393.09, have not been provided, then the employee or designated representative may request an inspection by giving written notice to the Fire Division of such violation. Upon the request of the person giving such notice, his or her identity or that of employees referred to in the notice shall be confidential information and shall not be unnecessarily revealed or published by the Fire Division. No employer shall be charged an additional inspection fee for inspections requested under this section.
(Ord. No. 2704-B-83. Passed 3-4-85, eff. 4-13-85)
If a statute of the State of Ohio is enacted which provides employees and the public the right to know the names of hazardous chemicals, and which states that the state intends to preempt local Right-to-Know Laws to the extent permitted, then this chapter shall automatically be repealed unless the Council of the City of Cleveland expressly determines that all or a portion of this chapter continues to be essential to the health and welfare of its citizens and therefore reenacts all or a portion of the chapter.
(Ord. No. 2704-B-83. Passed 3-4-85, eff. 4-13-85)
Employers employing fifty-one (51) or more employees shall be in compliance within one (1) year of passage of this chapter; employers with fifty (50) or fewer employees shall be in compliance within twenty- four (24) months of passage of this chapter.
(Ord. No. 2704-B-83. Passed 3-4-85, eff. 4-13-85)
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