§5202. Methylene Chloride.

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(d) Exposure monitoring.

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(3) Periodic monitoring. Where the initial determination shows employee exposures at or above the action level or above the STEL, the employer shall establish an exposure monitoring program for periodic monitoring of employee exposure to MC in accordance with Table 1:

Table 1.--Six Initial Determination Exposure Scenarios
And Their Associated Monitoring Frequencies

Below the action level and at or below the STEL.
  
Below the action level and above the STEL.
   
At or above the action level, at or below the
TWA, and at or below the STEL.
   
At or above the action level, at or below the
TWA, and above the STEL.
   
Above the TWA and at or below the STEL.
  
  
  
  
  
  
  
  

  
Above the TWA and above the STEL.

No 8-hour TWA or STEL monitoring required.
    
No 8-hour TWA monitoring required; monitor STEL exposures every three months.
   
Monitor 8-hour TWA exposures every six months.

    
Monitor 8-hour TWA exposures every six months and monitor STEL exposures every three
months.
  
Monitor 8-hour TWA exposures every three months. In addition, without regard to the last sentence of the note to subsection (d)(3), the following employers must monitor STEL exposures every three months until either the date by which they must achieve the 8-hour TWA PEL under subsection(n) of this section or the date by which they in fact achieve the 8-hour TWA PEL,whichever comes first: employers engaged in polyurethane foam manufacturing; foam fabrication;furniture refinishing; general aviation aircraft stripping; product formulation; use of MC-based adhesives for boat building and repair, recreational vehicle manufacture, van conversion, or upholstery; and use of MC in construction work for restoration and preservation of buildings, painting and paint removal, cabinet making, or floor refinishing or resurfacing.
   
Monitor 8-hour TWA exposures and STEL exposures every three months.

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(j) Medical surveillance.
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(9) Written medical opinions.

(A) For each physical examination required by this section, the employer shall ensure that the physician or other licensed health care professional provides to the employer and to the affected employee a written opinion regarding the results of that examination within 15 days of completion of the evaluation of medical and laboratory findings, but not more than 30 days after the examination. The written medical opinion shall be limited to the following information:
1. The physician's or other licensed health care professional's opinion concerning whether exposure to MC may contribute to or aggravate the employee’s existing cardiac, hepatic, neurologic (including stroke) or dermal disease or whether the employee has any detected other medical condition(s) which that would place the employee's health at increased risk of material impairment from exposure to MC;
2. Any recommended limitations upon the employee's exposure to MC including removal from MC exposure, or upon the employee's use of respirators, protective clothing, or other protective equipment and respirators;

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(10) Medical presumption. For purposes of subsection (j), the physician or other licensed health care professional shall presume, unless medical evidence indicates to the contrary, that a medical condition is unlikely to require medical removal from MC exposure if the employee is not exposed to MC above the 8-hour TWA PEL. If the physician or other licensed health care professional recommends removal for an employee exposed below the 8-hour TWA PEL, the physician or other licensed health care professional shall cite specific medical evidence, sufficient to rebut the presumption that exposure below the 8-hour TWA PEL is unlikely to require removal, to support the recommendation. If such evidence is cited by the physician or other licensed health care professional, the employer must remove the employee. If such evidence is not cited by the physician or other licensed health care professional, the employer is not required to remove the employee.
(11) Medical removal protection (MRP).
(A) Temporary medical removal and return of an employee.
1. Except as provided in subsection (j)(10), when a medical determination recommends removal because the employee’s exposure to MC may contribute to or aggravate the employee’s existing cardiac, hepatic, neurological (including stroke), or skin disease, the employer must provide medical removal protection benefits to the employee and either:
a. Transfer the employee to comparable work where methylene chloride exposure is below the action level; or
b. Remove the employee from MC exposure.
2. If comparable work is not available and the employer is able to demonstrate that removal and the costs of extending MRP benefits to an additional employee, considering feasibility in relation to the size of the employer’s business and the other requirements of this standard, make further reliance on MRP an inappropriate remedy, the employer may retain the additional employee in the existing job until transfer or removal becomes appropriate, provided:
a. The employer ensures that the employee receives additional medical surveillance, including a physical examination at least every 60 days until transfer or removal occurs; and
b. The employer or physician or other licensed health care professional informs the employee of the risk to the employee’s health from continued MC exposure.
3. The employer shall maintain in effect any job-related protective measures or limitations, other than removal, for as long as a medical determination recommends them to be necessary.
(B) End of MRP benefits and return of the employee to former job status.
1. The employer may cease providing MRP benefits at the earliest of the following:
a. Six months;
b. Return of the employee to the employee’s former job status following receipt of a medical determination concluding that the employee’s exposure to MC no longer will aggravate any cardiac, hepatic, neurological (including stroke), or dermal disease;
c. Receipt of a medical determination that the employee can never return to MC exposure.
2. For the purposes of subsection (j), the requirement that an employer return an employee to the employee’s former job status is not intended to expand upon or restrict any rights an employee has or would have had, absent temporary medical removal, to a specific job classification or position under the terms of a collective bargaining agreement.
(12) Medical removal protection benefits.
(A) For purposes of subsection (j), the term medical removal protection benefits means that, for each removal, an employer must maintain for up to six months the earnings, seniority, and other employment rights and benefits of the employee as though the employee had not been removed from MC exposure or transferred to a comparable job.
(B) During the period of time that an employee is removed from exposure to MC, the employer may condition the provision of medical removal protection benefits upon the employee’s participation in follow-up medical surveillance made available pursuant to this section.
(C) If a removed employee files a workers’ compensation claim for an MC-related disability, the employer shall continue the MRP benefits required by this subsection until either the claim is resolved or the 6-month period for payment of MRP benefits has passed, whichever occurs first. To the extent the employee is entitled to indemnity payments for earnings lost during the period of removal, the employer’s obligation to provide medical removal protection benefits to the employee shall be reduced by the amount of such indemnity payments.
(D) The employer’s obligation to provide medical removal protection benefits to a removed employee shall be reduced to the extent that the employee receives compensation for earnings lost during the period of removal from either a publicly or an employer-funded compensation program, or receives income from employment with another employer made possible by virtue of the employee’s removal.
(13) Voluntary removal or restriction of an employee. Where an employer, although not required by this section to do so, removes an employee from exposure to MC or otherwise places any limitation on an employee due to the effects of MC exposure on the employee’s medical condition, the employer shall provide medical removal protection benefits to the employee equal to those required by subsection (j)(12).
(14) Multiple health care professional review mechanism.
(A) If the employer selects the initial physician or licensed health care professional to conduct any medical examination or consultation provided to an employee under subsection (j)(11), the employer shall notify the employee of the right to seek a second medical opinion each time the employer provides the employee with a copy of the written opinion of that physician or other licensed health care professional.
(B) If the employee does not agree with the employer-selected physician or other licensed health care professional, notifies the employer of that fact, and takes steps to make an appointment with a second physician or other licensed health care professional within 15 days of receiving a copy of the written opinion of the initial physician or other licensed health care professional, the employer shall pay for the physician or other licensed health care professional chosen by the employee to perform at least the following:
1. Review any findings, determinations or recommendations of the initial physician or other licensed health care professional; and
2. Conduct such examinations, consultations, and laboratory tests as the physician or other licensed health care professional deems necessary to facilitate this review.
(C) If the findings, determinations or recommendations of the second physician or other licensed health care professional differ from those of the initial physician or other licensed health care professional, then the employer and the employee shall instruct the two health care professionals to resolve the disagreement.
(D) If the two health care professionals are unable to resolve their disagreement within 15 days, then those two health care professionals shall jointly designate a physician or other licensed health care professional who is a specialist in the field at issue. The employer shall pay for the specialist to perform at least the following:
1. Review the findings, determinations and recommendations of the first two physicians or other licensed health care professionals; and
2. Conduct such examinations, consultations, laboratory tests, and discussions with the prior physicians or other licensed health care professionals as the specialist deems necessary to resolve the disagreements of the prior health care professionals.
(E) The written opinion of the specialist shall be the definitive medical determination. The employer shall act consistent with the definitive medical determination, unless the employer and employee agree that the written opinion of one of the other two physicians or other licensed health care professionals shall be the definitive medical determination.
(F) The employer and the employee or authorized employee representative may agree upon the use of any expeditious alternate health care professional determination mechanism in place of the multiple health care professional review mechanism provided by this subsection so long as the alternate mechanism otherwise satisfies the requirements contained in this subsection.

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(n) Dates.
(1) Effective date. This section became effective on November 2, 1997.

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(2) Start-up dates.
(A) Initial monitoring required by subsection (d)(2) shall be completed according to the following schedule:
1. For employers with fewer than 20 employees, within 300 days after the effective date of this section.
2. For polyurethane foam manufacturers with 20 to 99 employees, within 210 days after the effective date of this section.
3. For all other employers, within 120 days after the effective date of this section.
(B) Engineering controls required under subsection (f)(1) shall be implemented according to the following schedule:
1. For employers with fewer than 20 employees, within three (3) years after the effective date of this section.
4. For employers with 150 or more employees engaged in foam fabrication; for employers with 50 or more employees engaged in furniture refinishing, general aviation aircraft stripping, and product fabrication; for employers with 50 or more employees using MC-based adhesives in boat building and repair, recreational vehicle manufacture, van conversion, and upholstering; and for employers with 50 or more employees using MC in construction work for restoration and preservation of buildings, painting and paint removal, cabinet making and/or floor refinishing and resurfacing, within two (2) years after the effective date of this section.
3. For all other employers, within one (1) year after the effective date of this section.
(B). Employers identified in subsections (n)(2)(A)2., 3., and 4. shall comply with the following requirements by the dates indicated:
1. Use of respiratory protection whenever an employee’s exposure to MC exceeds or can reasonably be expected to exceed the 8-hour TWA PEL, in accordance with subsections (c)(1), (e)(3), (f)(1), and (g)(1), by the applicable dates set out in subsections (n)(2)(A)2., 3., and 4. for the installation of engineering controls.
2. Use of respiratory protection whenever an employee’s exposure to MC exceeds or can reasonably be expected to exceed the STEL in accordance with subsections (e)(3), (f)(1), and (g)(1), by the applicable dates indicated in subsection (n)(2)(C). 3. Implementation of work practices (such as leak and spill detection, cleanup, and enclosure of containers) required by subsection (f)(1), by the applicable dates indicated in subsection (n)(2)(C).
4. Notification of corrective action under subsection (d)(5)(B) of this section, by no later than ninety (90) days before the compliance date applicable to such corrective action.
(C). Unless otherwise specified in subsection (n), Aall other requirements of this section shall be complied with.according to the following schedule:
1. For employers with fewer than 20 employees, within one (1) year after the effective date of this section.
2. For polyurethane foam manufacturers with 20 to 99 employees, within 270 days after the effective date of this section.
3. For all other employers, within 180 days after the effective date of this section.

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Note: Authority cited: Sections 142.3, 9020, 9030 and 9040, Labor Code. Reference: Sections 142.3, 9004(d), 9009, 9020, 9031 and 9040, Labor Code.