January 26, 1993

Ms. Mary Beth Thakar
Customer Service Representative
Lee Health Services Lee Hospital
320 Main Street
Johnstown, Pennsylvania 15901

Dear Ms. Thakar:

This is in further response to your letter of July 20, addressed to Linda Anku, Regional Administrator in the Occupational Safety and Health Administration (OSHA) Philadelphia Regional Office. You wrote regarding the applicability of 29 CFR 1910.1030, the Occupational Exposure to Bloodborne Pathogens standard and the General Duty Clause of the OSHAct, to the construction industry. You specifically inquired about the provision of the hepatitis B vaccine to employees in the construction industry who have occupational exposure to blood or other potentially infectious materials. Your letter was referred to our office, and we apologize for the delay in this response.

In addressing the OSHA Advisory Committee of Construction Safety and Health on May 19, Dorothy L. Strunk, Acting Assistant Secretary, informed the committee that a policy decision had been made that the bloodborne pathogens standard does not apply to the construction industry.

While the standard does not apply to construction work, as defined 29 CFR 1910.12(b), it does apply to employees performing maintenance activities which involve making or keeping a structure, fixture, or foundation in proper condition in a routine, scheduled, or anticipated fashion and who experience occupational exposure to blood or other potentially infectious materials while performing their job.

While trades such as plumbers, pipefitters and others who, at times, may be engaged in maintenance activities are not generally considered to have occupational exposure as defined by the standard unless they are working in health care facilities, it is the employer's responsibility to determine which job classification or specific tasks and procedures involve occupational exposure. If OSHA determines, on a case-by-case basis, that sufficient evidence of reasonably anticipated exposure exists among employees performing maintenance work, the employer will be held responsible for providing the protections of 29 CFR 1910.1030 to those employees with occupational exposure.

Those employees engaged in construction activities who are occupationally exposed to the hazard of bloodborne pathogens (such as those workers designated as responsible for providing first aid or medical assistance) are afforded protection under several construction standards as well as the General Duty Clause.

[29 CFR 1926.21(b)(2)] requires that the employer instruct each employee in the recognition and avoidance of unsafe conditions and in the regulations applicable to his or her work environment in order to control or eliminate any hazards or other exposure to illness or injury. Under this provision, the employer is required to train designated first aid providers in the hazards of bloodborne pathogens.

29 CFR 1926.25 requires that containers be provided for the collection and separation of waste. This includes containers for sharps and other regulated waste which may be generated from rendering medical assistance.

29 CFR 1926.28 requires the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where there is a need to use such equipment to reduce the hazards to employees. This includes the need to use gloves, gowns, masks, eye protectors, and/or resuscitation equipment when appropriate for rendering first aid or other medical assistance.

Lastly, Section 5(a)(1) of the OSHAct, which requires employers to furnish a workplace which is free from recognized hazards which may cause or are likely to cause death or serious physical harm, may be applied where appropriate to the construction industry. General duty clause citations must, of course, meet the requirements outlined in the Field Operations Manual, Chapter IV, and will be issued where there is a serious and recognized hazard which cannot be abated by implementing an abatement method required by the above standards. It is under the General Duty Clause that OSHA may require, where appropriate, the provision of the hepatitis B vaccine to those employees who have occupational exposure.

We hope this information is responsive to your concerns, and we thank you for your interest in worker safety and health.

Sincerely,


Roger A. Clark, Director
[Directorate of Enforcement Programs]

[Corrected 4/30/2004]

July 20, 1992

OSHA
Linda Anku
Regional Administrator
Gateway Building
3535 Market Street
Philadelphia, PA 19104

Dear Ms. Anku,

As an occupational health services provider, our clients rely on us for up-to-date information about government regulations. Recently, a client informed us that the construction industry may be exempt from compliance with the Bloodborne Pathogen Law.

Please clarify these issues in writing:

Is the construction industry exempt from the Bloodborne Pathogen Law?

If exempt, would you then suggest that employers in the construction industry need not offer the hepatitis vaccination series to their "occupational exposed" employees -- not even to those who are their employer's designated first aid responders?

Under what circumstances would the industry be required to comply with the bloodborne pathogen law -- especially in regard to offering the hepatitis vaccination series? How would the "General Duty Clause" affect the construction industry's exemption?

The information you send will be used to help our clients determine what they will have to do to comply with OSHA's new law. Your cooperation is appreciated. If you have any questions, please call me at 814/533-0181.

Sincerely,


Mary Beth Thakar
Customer Service Representative