Handle Trade Secrets in PSM: Element 14 Compliance Checklist
Handle Trade Secrets in PSM: Element 14 Compliance Checklist
Author: Fidelis Associates | Published: 2026-03-03 | Last Updated: 2026-03-03
Meta Description: Checklist for OSHA 1910.119(p) Trade Secrets — verify employee access to process safety information regardless of trade secret claims and confidentiality agreement compliance.
OSHA Reference
Under OSHA's Process Safety Management standard 29 CFR 1910.119(p), employers must make all information necessary to comply with PSM available to employees and their designated representatives without regard to possible trade secret status. The employer may require confidentiality agreements to prevent disclosure of trade secret information, but such agreements shall not prevent the employee from performing their duties. Nothing in the standard precludes the employer from asserting trade secret claims — however, trade secret claims cannot be used to restrict access to information needed for PSM compliance.
Fidelis Insight
Trade Secrets is the shortest PSM element and the least frequently cited in isolation, but its implications affect multiple other elements. The principle is straightforward: no trade secret claim can prevent employees, their representatives, PHA team members, incident investigators, or emergency responders from accessing the process safety information they need to do their jobs safely.
In practice, this element becomes relevant when facilities handle proprietary chemicals, proprietary processes, or patented equipment designs. The tension between protecting intellectual property and ensuring safety information access is real — but the standard is clear: safety access takes priority. Confidentiality agreements are permitted, but they cannot functionally restrict access to information needed for PSM compliance.
Where this element most often creates problems is indirectly — through the Employee Participation, Training, and Contractor elements. When overly broad trade secret claims restrict what information operators, maintenance personnel, or PHA teams can access, those elements are undermined. A PHA team that cannot see complete process chemistry data, or an operator who doesn't know the full hazard profile of the chemicals they handle, cannot fulfill their safety responsibilities.
Common Gaps We See
- ⚠ Overly broad trade secret claims restrict access to information needed for safe operations
- ⚠ Confidentiality agreements written in ways that discourage information requests
- ⚠ PHA team members unable to access complete process chemistry or design data
- ⚠ Contractor employees denied access to hazard information needed for their work
- ⚠ No clear process for employees to request access to trade-secret-protected PSI
- ⚠ Emergency responders lack access to chemical hazard data due to trade secret restrictions
Best Practices Checklist
Employee Access
- [ ] All process safety information available to employees regardless of trade secret claims
- [ ] Employees and their representatives can access PHA results and process safety data
- [ ] Clear process exists for employees to request access to PSI
- [ ] Access is practical and timely — not bureaucratically delayed
Confidentiality Agreements
- [ ] Confidentiality agreements, if used, do not restrict access to PSM-required information
- [ ] Agreements do not discourage employees from requesting information
- [ ] Agreements comply with 29 CFR 1910.119(p) requirements
- [ ] Agreements reviewed periodically for compliance with PSM access requirements
PHA, Investigation & Response Access
- [ ] PHA team members have access to all necessary process safety information
- [ ] Incident investigation team members can access all relevant data without restriction
- [ ] Emergency responders have access to chemical hazard data and process information
- [ ] Contractor employees have access to hazard information needed for their work
Program Management
- [ ] Trade secret claims reviewed to ensure they don't restrict PSM compliance activities
- [ ] No trade secret claim prevents employees from understanding hazards of their process
- [ ] Information access policies documented and communicated
Scoring Tip
- 11–14 checks = Strong information access program
- 6–10 checks = Needs improvement
- 0–5 checks = Immediate action required
Practical Use
Use this checklist to verify that trade secret protections are not inadvertently restricting access to safety-critical information. Review confidentiality agreements to ensure they comply with 1910.119(p). Survey PHA team leaders, incident investigators, and emergency coordinators to confirm they can access all necessary process safety information without unreasonable delays or barriers.
Key Takeaways
- Trade secret claims cannot restrict access to information needed for PSM compliance — this is non-negotiable.
- Confidentiality agreements are permitted but must not functionally prevent employees from performing their duties.
- This element affects Employee Participation, Training, PHA, and Contractor elements — restrictions here cascade.
- Emergency responders must have access to chemical hazard data regardless of trade secret claims.
- Review confidentiality agreements and access policies periodically to ensure compliance.
Assess Your Program
Use this checklist as a starting point, then benchmark your program with a FidelisCheck PSM assessment.
Related Resources
- What is Process Safety Management? A Complete Guide
- The 14 Elements of PSM: A Practitioner's Breakdown
- OSHA 1910.119 PSM Compliance Checklist
- PSM Element 1: Employee Participation Checklist
- PSM Element 13: Compliance Audits Checklist
Frequently Asked Questions
Can an employer use trade secret claims to restrict employee access to process safety information? No. Under 29 CFR 1910.119(p), employers must make all information necessary to comply with the PSM standard available to employees and their designated representatives without regard to possible trade secret status. This is a non-negotiable regulatory requirement. An employer may assert trade secret claims over proprietary information, but those claims cannot be used to restrict access to information that employees, PHA teams, incident investigators, or emergency responders need to fulfill their PSM-related duties. The standard is clear: safety access takes priority over intellectual property protection.
Can employers require confidentiality agreements for PSM information access? Yes, but with limits. OSHA 1910.119(p) explicitly permits employers to require employees and their representatives to sign confidentiality agreements as a condition of accessing trade-secret-protected process safety information. However, those agreements must not prevent employees from performing their duties under the PSM standard. Agreements that are written so broadly that they discourage employees from requesting information, or that impose unreasonable barriers to access, do not comply with the standard. Confidentiality agreements should be reviewed periodically to ensure they protect legitimate trade secrets without functionally restricting PSM access.
Who has the right to access trade-secret-protected process safety information? Under the PSM standard, access rights extend to employees operating the covered process, their designated representatives, PHA team members, incident investigation team members, compliance auditors, and emergency responders. Contract employees whose work involves the covered process also have access rights. The practical test is whether the person needs the information to fulfill a responsibility under any of the 14 PSM elements. If they do, trade secret claims cannot block access — though a confidentiality agreement may be required.
Fidelis Associates provides PSM compliance consulting and assessment services through FidelisCore and FidelisGap. Our team brings 40+ years of combined experience across major operators including Chevron, Valero, and Shell.
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