July 16, 2008

Ms. Nicole Lepore
National Healthcare Compliance Consultant
6342 Forest Hill Blvd., Suite 205
West Palm Beach, FL 38120

Dear Ms. Lepore:

Thank you for your April 17, 2008 letter to the Occupational Safety and Health Administration (OSHA). Your letter was forwarded to the Directorate of Enforcement Programs (DEP) for a response. This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any question not delineated within your original correspondence. For clarification, your specific question is paraphrased below, followed by OSHA's response.

Background: OSHA's Occupational Exposure to Bloodborne Pathogens standard addresses the requirement for blood testing as part of a post exposure evaluation at 29 CFR 1910.1030(f)(3)(iii)(B). The standard states: "If the employee consents to baseline blood collection, but does not give consent at that time for HIV serologic testing, the sample shall be preserved for at least 90 days. If, within 90 days of the exposure incident, the employee elects to have the baseline sample tested, such testing shall be done as soon as feasible" (boldface added).

Question: It is our experience that laboratories will typically only store a blood sample for 7-30 days. Following a work-related bloodborne pathogens exposure incident, if an employee consents to baseline blood collection, but does not give consent at that time for HIV serologic testing, is it permissible for the employer to have the employee sign a consent verifying their understanding of the lab's procedure of the 30-day storage time frame?

Reply: No, an employer may not have employees sign a consent form waiving the right to have untested baseline blood maintained for the minimum time limitation of 90 days.

According to the preamble to the final rule, the Centers for Disease Control and Prevention (CDC) stated, "the worker should be advised to report and seek medical evaluation for any acute febrile illness that occurs within 12 weeks after the exposure. Such an illness, particularly one characterized by fever, rash, or lymphadenopathy, may be indicative of recent HIV infection." The preamble adds: "CDC has further stated that the first 6-12 weeks are 'when most infected persons are expected to seroconvert' (Ex. 15, MMWR 1989; 38 [No. S-6]:13)." The final rule specifically provides that untested baseline blood samples be preserved for at least 90 days in order to account for the 12 week post-exposure period when an acute retroviral illness may develop and to afford the employee the opportunity to know his/her immediate post-exposure HIV status even if consent for HIV testing was initially withheld. [56 Federal Register 64159 (1991).]

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov. If you have any further questions, please feel free to contact the OSHA Office of Health Enforcement at (202) 693-2190.

Sincerely,



Richard E. Fairfax, Director
Directorate of Enforcement Programs