Untitled Texas Attorney General Opinion

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6tate of lEexae
DAN MORALES
ATTORNEY
GENERAL July 21, 1993

David R. Smith, M.D. Opinion No. DM-239
Commissioner of Health
Texas Department of Health Re: Whether students are “employees” for the
1100 West 49th Street purposes of the Texas Hazard Communication
Austin, Texas 78756-3 199 Act of the Health and Sat&y Code sections
502.001 - ,016. which require employers to
t%mish “employees” with education, training,
and information regarding hazardous chemicals
at their work places (RQ-382)

Dear Commissioner Smith:

The Texas Department of Health (“TDH”) requested the attorney general’s opinion
concerning whether students at colleges and universities are deemed “employees” for the
purposes of the Texas Haxard Communication Act, Texas Health and Safety Code
sections 502.001 - .016, which require “employers” to tIunish ~employees” with
education, training, and information concerning hazardous chemicals at their workplaces.
We conclude that students are not “employees“ for the purposes of the act.

The Texas Hazard Communication Act requires that a hazardous chemical
manufacturer or distributor must properly label such chemicals and firmish the purchaser
with material safety data sheets which contain information concerning the hazards posed
by the particular chemical and how to safely handle the chemical. Health & Safety Code
$3 502.006 - .007. The act states that employers that utilize hazardous chemicals must,
inter ah: display in their workplaces lists of hazardous chemicals used at the workplace
and make this information available for review by employees; coordinate an emergency
response program with the local fire department; conduct an employee education program;
and provide employees with access to the material safety data sheets concerning the
hazardous chemicals used at the workplace. Id. $§ 502.005, 502.006(c), 502.008,
502.010,502.013(b).

Statutes should be construed pursuant to their common and accepted meaning.
See Govt Code $3311.011(a); Gail v. Service Motors, Inc., 660 S.W.2d 814, 815 (Tex.
1983); Taylor v. Firemen’s &Policemen’s Civil Service Comm’n of Lubbock, 616 S.W.2d
187, 189 (Tex. 1981); Satterfild v. SatterJeld, 448 S.W.2d 456, 459 (Tex. 1969).
Throughout the sixteen sections of the act, the act refers to “employees” and “employers”;
there is no indication from the plain language of the act that “employees” was meant to
refer to students. The act defines “employee” as “a person who may be or may have been
exposed to hazardous chemicals in the person’s workplace under normal operating

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Mr. David R. Smith, M.D. - Page 2 (DM-239)

conditions.” Health & Safety Code 3 502.003(9). TDH contends that “employee” is
intended to mean anyone exposed to haxardous chemicals at their workpiace. However,
we believe that the ads detinition of “employee” was intended as a gloss on or an addition
to the commonly accepted definition of the term, rather than an attempt to supplant the
commonly accepted definition. It is implicit in the legislature’s use of the term “employee”
that the legislature meant to refer to someone engaged in an employment relationship, for
example, one who works for wages or a salary, as opposed to a “student” who is one who
is enrolled for study at an institution of learning for which he does not receive wages or a
salary. See ~EES~TER’~NINTH NEW COLLEGIATEDICTIONARY408, 1170 (1990)
(defining “employee” and “student” respectively); BLACK’SLAW DICnONARY 525 (6th
ed. 1990) (detining “employee”). If the legislature intended the act to apply to “anyone”
or “any person,” as TDH suggests, the legislature would have said so in the act.

Moreover, the act distinguishes between “employees” and “students.” Section
502.004(e)(S) of the act, which excludes certain experimental laboratories from the act’s
cove-rage, states:

This chapter does not apply to . . :

a chemical in a laboratory under the direct supervision or
guidance of a technically qualified individual if:

(A) labels on incoming containers of chemicals are not
removed or defaced;

(ES) material safety data sheets received are maintained and
made accessible to employees and stua%rnr$

(C) the laboratory complies with Section 502.008 and
502.009; and

(D) the laboratory is not used primarily to produce
hazardous chemicals in bulk for commercial purposes.
[Emphasis added.]

The legislature’s use of the terms “employees” and “students” in the same act suggests that
the legislature did not consider the terms synonymous; ifthe terms were synonymous there
would be no point to using separate terms. The term “students” is not defined by the act,
and we assume that the legislature intended this term to be construed according to its
common and accepted meaning.

Furthermore, there is no indication in the act’s legislative history that the use of the
term “employees” was meant to refer to students. See generally House Comm. on Public
Health and Senate Comm. on Public Health and Hum. Res., Big Analyses, H.B. 1112,
69th Leg., (1985). The plain language of the act, as well as the lack of a contrary
indication in the legislative history, compels us to conclude that students are not

p. 1235
Mr. David R. Smith, M.D. - Page 3 (DM-239)

“employees” for the purposes of the act. Therefore the act is not applicable to students in
their capacity as students, except for the requirements of section 502.004(e)(S)(B) which
requims that material safety data sheets must be maintained by the laboratory and made
accasiile to students.

Our conclusion that the act does not apply to students qua students does not imply
that a student who is employed by a university or other school, such as in a work-study
program, is not protected by the act. The act may apply to such an individual at his
workplace. during periods of employment provided the act’s other requirements are met.
See Health & Safety Code 4 502.004. However such an individual would be. protected
pursuant to the act because of his status as an employee, not because of his status as a
registered student.

TDH states that in its view the act was intended to apply to students, and TDH
contends that its interpretation of the act is entitled to deference. Generally, an
administrative agency’s interpretation of an act that it has been charged with enforcing is
entitled to great weight. See Gov’t Code 5 3 11.023(6). However, this rule does not apply
where the administrative interpretation is contrary to the letter of the act, there is no
support for the administrative interpretation in the legislative history, and the
administrative interpretation is not reasonable. See Texas Ash of Long Distance Tel.
Cos. v. Public Util. Comm’n, 798 S.W.2d 875,884 (Tex. App.-Austin 1990, writ denied)
(cokcting cases).

SUMMARY

Students are not “employees” for the purposes of the Texas
Hazard Communication Act, Texas Health and Safety Code sections
502.001 - .016. Therefore, the act is not applicable to students in
their capacity as students, except for the requirements of section
502.004(e)(5)(B) which requires that material safety data sheets must
be maintained by the Laboratory and made accessible to students.

DAN MORALES
Attorney General of Texas

p. 1236
Mr. David R. Smith, M.D. - Page 4 @M-239)

WILL PRYOR
Fii Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADBLEINB B. JOHNSON
Chair, Opinion Committee

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