The issue of responsibility for training comes up frequently because third parties frequently enter the picture. For example, the hazmat employer may contract an outside firm to provide training to employees. Or the hazmat employer may retain subcontracted employees. Would the training company or the subcontracting company be liable if the training was found to be inadequate? In both cases, the answer in no. While the hazmat regulations offer flexibility on who can provide the training, the responsibility for how that training complies with the training requirements rests entirely with the hazmat employer.
More Tricky Training Requirements
Here are some additional points about hazmat employee training, which are sometimes overlooked:
- Training is defined as “a systematic program (i.e., consistent approach, testing, and documentation) that ensures that a hazmat employee has knowledge of hazardous materials and the hazardous materials regulations (HMR), and can perform assigned hazmat functions properly.” The regs are flexible here; training and testing may be accomplished in a variety of ways, including performance, written, verbal, or a combination of the three. Therefore, training and testing in the form of discussions between an experienced hazmat employee and a new employee would qualify under the regulations. But bear in mind that the employer must certify that training and testing were conducted to meet the requirements; and, again, if the employee is found to be improperly trained, it is the employer, not the outside trainer, who bears responsibility.
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- The definition a hazmat employee includes each and every person who performs any function subject to the federal hazardous materials regulations (HMR). Therefore, for example, an office secretary who types the required hazmat description on a shipping paper, at the direction of another, is a hazmat employee who must be trained.
- There is a limited exception to the requirement that all hazmat employees must be properly trained. Specifically, a new hazmat employee or an employee who changes job functions may perform hazmat functions before completing training provided the performance is under the “direct supervision of a properly trained and knowledgeable hazmat employee.” (emphasis added)
- In addition, the untrained new or relocated hazmat employee must complete training within 90 days after employment or change in job function. In other words, after the 90-day grace period, a retroactive violation may be triggered if the training has not been completed.
- Training must comprise both general awareness or familiarization with what hazmats are, security awareness training, and “function-specific” training. Facilities that are required to have a security plan must also train employees on the content of the security plan. Sending the employee who enters hazmat information for shipping papers to a training course that focuses exclusively on the proper packaging of chemicals shipped by vessel would not be function-specific training and may be grounds for the government citing a violation of section 172.704(a)(2).
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- The hazmat employer must certify that the hazmat employee has been both trained and tested. The employee need not “pass” the test. However, an employee may only be certified if that employee can successfully perform the hazmat duties to which he/she is assigned.
- The training requirements apply to hazmat employees in hazmat-bearing foreign flag vessels when in dry dock or in navigable waters of the United States.
- A shipmaster is a hazmat employee, not a hazmat employer; the operator of the vessel is the hazmat employer.
- Hazardous materials endorsement training that must be completed by employees to obtain commercial driver’s licenses (CDL) can satisfy the HMR training requirements provided the hazmat employer determines the applicability of the CDL to the specific hazmat functions of the employee and provides training for functions not covered by the endorsement.
In tomorrow’s Advisor, we give you a hazmat training checklist you can use to make sure you are in compliance with DOT’s hazmat training regs.