September 24, 1992

Ms. Vickie Wells
Occupational Safety and Health
Manager
City and County of
San Francisco
Department of Public Health
101 Grove Street
San Francisco, California 94102

Dear Ms. Wells:

Thank you for your letter of October 16, 1991 requesting a variance for the recording of occupational exposures to hepatitis B and human immunodeficiency virus (HIV). Your letter was forwarded to me by the California Department of Labor. Please excuse the lengthy delay in our response.

The CAL-OSHA requirements for recording occupational injuries and illnesses are substantially identical to the Federal Requirements, in accordance with the Code of Federal Regulations 29 CFR 1952.4. Paragraph (b) of 1952.4 states that "employer petitions for variances or exceptions to State recordkeeping and reporting requirements under an approved plan must be obtained from the Bureau of Labor Statistics (BLS) of the U.S. Department of Labor. Therefore, a State may not grant a variance to recordkeeping and reporting requirements under their own procedures." In 1990, the administrative responsibility for the injury and illness recordkeeping system was transferred from BLS to the Occupational Safety and Health Administration (OSHA). As a result, responsibility for reviewing your variance request lies with the OSHA Office of Statistics.

Your variance request asks for the ability to code personal identifiers on the Cal-OSHA 200 Log and Summary of Occupational Injuries and Illnesses, the OSHA 101 Supplementary Record of Occupational Injuries and Illnesses (California form 5020 is equivalent to the OSHA 101) and the Cal-OSHA form 5021 Doctor's First Report of Occupational Injury or Illness. The purpose of this coding is to maximally protect the workers' privacy.

While OSHA is sensitive to the issue of confidentiality and the effect disclosure can have on employee reporting, at this time we are not willing to grant a variance that will effectively deny employees, OSH compliance staff and researchers complete and accurate injury and illness information. As a result, your request for a variance is denied. Please note that the form 5021 is not required by federal OSHA regulations and is therefore not affected by federal policy, including this variance request. The following information provides guidance concerning the proper recording of bloodborne pathogen exposure incidents in accordance with current OSHA policy.

Recording of bloodborne pathogens exposure incidents

An occupational bloodborne pathogens exposure incident (e.g., needlestick, laceration or splash) shall be classified and evaluated as an injury since it is usually the result of an instantaneous event. It shall be recorded if it meets one or more of the following requirements:

1. The incident results in a loss of consciousness, transfer to another job, or a work restriction, and/or

2. The incident results in medical treatment beyond first aid (e.g., gamma globulin, hepatitis B immune globulin, hepatitis B vaccine, zidovudine, or other prescription medications), and/or

3. The incident results in a diagnosis of seroconversion.

Testing or diagnostic procedures are not considered medical treatment for OSHA recordkeeping purposes. However, the results of such procedures may indicate the presence of a recordable injury or illness. For more discussion about the medical treatment/first aid treatment issue see pages 42-43 of the enclosed Recordkeeping Guidelines for Occupational Injuries and Illnesses.

Each recordable injury is required to be entered into the OSHA records within 6 working days after receiving information that a recordable case has occurred. If the date of the event or exposure is known, the injury shall be recorded with the date of the event or exposure in column B of the 200 log. If there are multiple events or exposures, the injury shall be recorded using the date that the positive seroconversion was diagnosed (the test date).

Confidentiality for the injured employee.

In the case that a seroconversion is known, it shall be recorded on the OSHA 200 log as an injury (e.g., "needlestick, laceration. etc"), not as a seroconversion. This approach allows the employer to record the case and provide necessary information to other employees without revealing the seroconversion status of the affected worker.

At the present time we are drafting a Notice of Proposed Rulemaking (NPRM) to revise the recordkeeping regulations, supplemental instructions and forms. As part of that proposal, we will ask the public to comment on the most effective way to deal with the privacy/right to know issue. The task is to find some method to resolve the conflict between an injured/ill worker's right to privacy and the right of other workers to be informed of hazardous conditions in the workplace. When the NPRM is published in the Federal Register, I hope you will provide us with any insights or comments you might have.

I hope this information is useful to you. If you have any questions or concerns, please contact my staff at (202) 523-1463.

Sincerely,



Stephen A. Newell
Acting Director
Office of Statistics