December 4, 1992

Mr. W. Valentini
President
Federal Compliance and Reporting Service
702 Cortez Street
Salt Lake City, Utah 84103

Dear Mr. Valentini:

This is in further response to your letter of October 14, which was sent to a number of Occupational Safety and Health Administration (OSHA) Regional and Area Offices. Your letters were referred to this office for response.

The Office of Health Compliance Assistance, in this Directorate, is responsible for developing enforcement policy on health issues and for coordinating guidance to both agency field staff and the general public on a variety of health compliance issues, including the Occupational Exposure to Bloodborne Pathogens Standard, 29 CFR 1910.1030. We were therefore concerned to learn that some apparent misinformation may have been provided concerning this important standard.

Following the issuance of this standard, OSHA mounted an unprecedented outreach effort in an attempt to inform the public of the requirements of the standard. This effort included the publication of six booklets detailing the standard's applicability to acute care facilities, emergency responders, dentists, and nursing homes, as well as five fact sheets and the production of a video entitled "As It Should Be Done".

OSHA conducted a two-day train-the-trainer session for its field staff concurrently with the issuance of the standard and has appointed a bloodborne pathogens coordinator in each of its ten regional offices. These coordinators may be contacted for answers to complex inquiries. A list of OSHA publications and the addresses of our regional offices are enclosed for your information.

Lastly, since December 1991, OSHA staff in national, regional, and area offices have been conducting extensive outreach, training and education meetings of the bloodborne pathogens standard with a wide range of groups. Over 1,000 meetings have been held and over 80,000 individuals have participated. This is the largest, most extensive training and education effort in the twenty year history of OSHA.

You requested in your letter that the agency clarify its position with regard to compliance programs offered by private companies to employers. OSHA does not endorse or approve any type of product, including training programs. Staff at the regional or area office level, may, at the discretion of the Regional Administrator or Area Director, offer some assistance in the development of various products. However this in no way constitutes approval or endorsement of the product and the agency's name may not be used to market the product. We are also enclosing a copy of a news release which the agency recently issued concerning training programs.

With regard to the specific scenarios for which you requested an interpretation as to the applicability of the standard, we will address them in the order in which you presented them. Please bear in mind that while OSHA can provide general guidelines, it is the employer's responsibility to determine which particular jobs or groups of specific tasks and procedures constitute occupational exposure at his or her facility.

Scenario 1: "In an industrial facility, with a history of accidents and injuries, where employees, not designated nor trained in first aid, are expected to render first aid to an injured employee. Does this constitute occupational exposure?"

Answer: If an employee is expected, as part of his or her job duties, to render first aid or medical assistance, that employee is covered by the requirements of the standard. Such an expectation would constitute a de facto designation of the employee and OSHA, additionally, would require that such an employee receive the appropriate training. Please refer to the enclosed news release for details on a recent policy decision concerning employees who render first aid as a collateral duty and the pre-exposure hepatitis B vaccine.

Scenario 2: "In an industrial manufacturing facility, with a history of accidents and injuries, where injuries, however small are treated by outside personnel (ambulance personnel, paramedics, EMT's, etc.) but the accident area or the area where first aid was rendered are left to be cleaned up and expected to be cleaned up and decontaminated by company personnel. Does this constitute "occupational exposure"?

Answer: "Occupational exposure" is defined as the reasonable anticipation of contact with blood or other potentially infectious materials as a result of performing one's job duties and is not limited to employees who experience occupational exposure by virtue of the fact that they render certain health care services. An employee whose job includes the cleaning and decontaminating of contaminated areas or surfaces would be considered to have occupational exposure.

Scenario 3: In a typical hotel or motel operations, where housekeepers routinely clean rooms by handling potentially contaminated laundry, cleaning potentially contaminated surfaces, have the reasonable expectation of coming in contact with potentially contaminated sharps such as syringes or broken glass, and have the reasonable expectation to have to clean up blood, vomitus and other potentially infectious materials. Does this constitute "occupational exposure"?

Answer: OSHA does not generally consider housekeeping staff in non-health care facilities to have occupational exposure. However, in keeping with the above mentioned requirement that the employer evaluate each job classification for occupational exposure, employers in the hotel industry would have to take into account all circumstances of potential exposure and determine which, if any, employees may come into contact with blood or OPIM during normal cleaning and handling of laundry. Employees who handle linens soiled with feces, nasal secretions, sputum, sweat, tears, urine, vomitus, or saliva (other than saliva from dental procedures) would not be occupationally exposed during that task as these substances are not included in the standard's definition of "other potentially infectious materials".

An employer may choose to designate specific employees to perform any tasks and procedures (e.g., handling linens soiled with urine that did contain visible blood) that involve occupational exposure and train other employees to defer such tasks to employees designated to perform them.

For enforcement purposes, if OSHA determines on a case-by-case basis that sufficient evidence exists of reasonably anticipated exposure, the employer will be held responsible for providing the protections of 29 CFR 1910.1030 to the employees with occupational exposure. For example, if it can be reasonably anticipated that an employee in a particular hotel will come into contact with contaminated sharps, that employee must be extended the protections of the standard.

Please note that the definition of "contaminated" applies to dry as well as wet material since, as you correctly stated, the hepatitis B virus remains viable in dried material for up to seven days.

Scenario 4: This applies to every workplace and relates to where the line is drawn between "occupational exposure" and "good samaritan acts". A fact sheet, circulated by OSHA, contains the statement "Good samaritan acts such as assisting a co-worker with a nose bleed would not be considered occupational exposure". My question is: "Would a worker assisting a bleeding co-worker with a work related injury still be considered a good samaritan or does the worker have occupational exposure?"

Answer: "Good Samaritan" acts are not covered under the standard regardless of the particular type of injury involved. The work- relatedness of the injury is not the determining factor; rather coverage is invoked when, as stated above, an employee is expected to render assistance as part of his or her job duties.

We hope this information is responsive to your concerns. We appreciate your bringing your concerns to our attention. Thank you for your interest in worker safety and health.

Sincerely,



Roger A. Clark,
Director
Directorate of Compliance Programs

Enclosures



October 14, 1992

Nickil Nicholas
Area Director
OSHA
Austin Area Office
303 Grant Bldg.
Austin, TX 78701

Dear Ms. Nicholas,

I am the President of Federal Compliance & Reporting Service, a company which specializes in the research, development, production and distribution of regulatory compliance material to affected employers.

Having been involved in OSHA regulations for some time and being responsible for establishing and managing a nationwide distribution network, I am in a position of having information which I feel would be of benefit to the Agency. There are two other reasons for writing this litter: to make certain statements which we wish to be on the record and to ask for the Agency's reply to certain questions which would clarify some ambiguous points and help our company better serve our clients.

Having conducted extensive research relative to the Occupational Exposure to Bloodborne Pathogens Standard, the recently enacted OSHA regulation, and because of our participation in the development and production of a compliance system and being responsible for a market research which entailed thousands of contacts in several groups of employers, we believe we have acquired a good feel about how employers perceive the new law and we hope that some of the information we have might be of help to the Agency. Some of the information we have secured in the field is also disturbing and perplexing.

I am referring to certain actions and positions adopted by OSHA officials in their contacts with employers which we have found surprising. We would like for you to reply and make clear for us OSHA's official position on these matters.

There are several area which I would like to cover. Here are the details.

The owner of a manufacturing company told us that the plant was recently inspected by an OSHA official on matters unrelated to the Bloodborne Pathogens Standard, but the subject of the Blood Law came up and the OSHA official indicated that compliance with the new law was a bureaucratic and costly nightmare. Based on that the company made the decision that it would be easier to close their infirmary, which was operating and staffed by a nurse, than to comply with the law.

We understand that there are always questions of interpretations about what someone is saying, but here, there appears to be a situation where the enactment of a new regulation results in a company actually lowering their health and safety measures and increasing the risks to their employees.

A medical group has created a compliance manual for their 200- plus membership. The individual responsible for creating the program contacted the local OSHA office and visited with an official who looked at the program and stated "It looks fine to me". The board of the medical group choose to interpret that statement as an official endorsement and has represented that the manual has been approved by OSHA. As a result, it can be assumed that over 200 doctors have purchased the program and are of the opinion that they are "in compliance".

It is ironic that the manual produced by the medical group contains significant errors. An employer who uses this manual to achieve compliance will be given instructions inconsistent with the intent and the meaning of the law.

It would be helpful if you would clarify for me the Agency's position in regard to compliance programs offered by private companies to employers. That is, does the Agency give affirmative approval of private compliance programs?

The next problem appears to the be widespread and quite common. It entails OSHA officials convincing employers that they do not have to comply to the law and showing them what is a very questionable loophole. Employers, particularly in the manufacturing sector, are being told that if they avoid giving the designation of first aid provider to workers who in effect are expected to provide first aid in case of an accident or injury, do not have to comply. OSHA officials are advising employers who have employees that perform first aid as collateral duty to the regular job duties to remove from these employees' job classifications the reference to first aid and therefore avoid compliance to the law.

As I have indicated, the above situation is common, in fact, in some states it appears almost rampant. Our research indicated that this is due partly to the word being circulated by the employers of a particular sector that "OSHA says we don't have to comply".

Because of this, the employers are changing their records to eliminate job classifications which entail occupational exposure such as first aid providers. As a result, in these workplaces, the beneficial effect of the law has been nullified.

I have been puzzled by the question of why so many OSHA officials would do something so damaging to the workers as to effect their health and safety by denying the protection and advantages of an exposure control plan, the information, training and all the other elements of an excellent law like the Bloodborne Pathogens Standard.

The actions of these officials are also potentially disastrous to the companies who employ the workers by magnifying the insurance and liability risks of these companies. I understand that the mandate of the Agency is to administer and enforce the law and its primary responsibility is to the worker, however, some form of concern should be shown to the employers, whom, following the advise of these OSHA officials, decide that the law doesn't apply to them and follow a course of action which can have devastating effects on their business.

I am sure you are aware that laws such as these are used by insurance companies to avoid paying claims. Insurance policies contain clauses which can invalidate coverage if the insured fails to "comply with all applicable laws".

The existence of this type of law also greatly increases the employer's risks of employee liability and tort liability to third parties, as in the case of an employee becoming infected and passing on the infection to his/her family members. In such a case, the employer breach of a mandatory health and safety standard, can be the proximate cause of the third party infection, which is a reasonably foreseeable event. The existence of the law can be used as a basis for legal action and therefore transform a complaint into a serious problem.

I believe that these OSHA officials dispense this type of advise without intending to hurt the people they are advising, however, I believe that everyone's best interest would be served if these officials understood and remembered that the frame of mind of a typical employer, upon hearing that a new law has been passed that might effects his/her business, is one of frustration because they identify such news with more government control, more costs, more trouble and other factors which can adversely affect productivity. The employer, understandably, is looking for any good reason not to have to comply.

When an OSHA official tells him/her that he feels the law doesn't apply, the official is looked upon and regarded as a knowledgeable, authoritative representative of the government. The OSHA official is also saying what the employer wants to hear. This gives the employer a false sense of security as he/she decides there is no need to worry about this law, even though, in the end it could be a very costly decision.

We have related the above because we hope that knowing what takes places in the field might be of help to the Agency. Next, I would like to you to provide an OSHA official opinion on several gray areas in regards to the law:

Scenario one: In an industrial manufacturing facility, with a history of accidents and injuries, where employees, not designated nor trained in first aid, are expected to render first aid to an injured employee. Does this constitute "occupational exposure"?

Scenario two: In an industrial manufacturing facility, with a history of accidents and injuries, where injuries however small are treated by outside personnel (ambulance personnel, paramedics, EMT's, etc.) but the accident area or the area where first aid was rendered are left to be cleaned up and expected to be cleaned up and decontaminated by company personnel. Does this constitute "occupational exposure"?

Scenario three: In a typical hotel or motel operation, where housekeepers routinely clean rooms by handling potentially contaminated laundry, cleaning potentially contaminated surfaces, have the reasonable expectation of coming in contact with potentially contaminated sharps such as syringes or broken glass, and have the reasonable expectation to have to clean up blood, vomitus and other potentially infectious materials. Does this constitute "occupational exposure"?

Note: We have heard some opinions that in the above case it does not. the explanation was that the HIV virus dies quickly after leaving an infected body and therefore it is reasonable that there will be at least a 30 minute time lapse between potential contamination and the time the housekeeper would begin to clean up the room, therefore eliminating the potential for cross-infection. However, it has been proven that the HBV virus (hepatitis) can survive in a dry stain for as long as one week and still be infectious. HBV does not get the press that HIV does, but it is a very serious disease and many infection control specialists consider it the most serious health threat today.

Scenario four: This applies to every workplace and relates to where the line is drawn between "occupational exposure" and "good samaritan acts". A fact sheet, circulated by OSHA, contains the statement "Good samaritan acts such as assisting a co-worker with a nose bleed would not be considered occupational exposure". My question is: "Would a worker assisting a bleeding co-worker with a work related injury still be considered a good samaritan or does the worker have occupational exposure?"

I would appreciate receiving from you a clarification on the above gray areas.

Federal Compliance & Reporting Service is part of the Hawk Group of Companies which has served business and industry for over 30 years. We have a serious commitment to help employers comply to federal regulations.

Our Bloodborne Pathogens Compliance System was in R&D for over 12 months. During this period we consulted and collaborated with specialists in the field of regulatory compliance, law, infection control, medical, technical, engineering, industrial hygiene, etc. The result, we believe, is one of the most comprehensive, effective and user friendly compliance system available. We are very proud of our product and would welcome the opportunity to present it to you for your review.

Sincerely,



E. "Val" Valentini,
President
Federal Compliance & Reporting Service