Friday, July 27, 2012

Enforcement Procedures for the Occupational Exposure to Bloodborne Pathogens Part 2

    ABSTRACT
    Purpose: This instruction establishes policies and provides clarification to ensure uniform inspection procedures are followed when conducting inspections to enforce the Occupational Exposure to Bloodborne Pathogens Standard.
    Scope: This instruction applies OSHA-wide.
    References: 29 CFR 1910.1030, Occupational Exposure to Bloodborne Pathogens OSHA Instruction CPL 2.103, Field Inspection Reference Manual
    Cancellations: This instruction cancels CPL 2-2.44D
    State Impact: This instruction describes a Federal Program Change for which State adoption is not required (See Paragraph VI).
    Action Offices: National, Regional and Area Offices
    Originating Office: Directorate of Compliance Programs
    Contact: Office of Health Compliance Assistance (202)693-2190
    200 Constitution Avenue, Room N3603
    Washington, DC 20210

     
  1. Recording of Exposure Incidents.
  2. Multi-Employer and Related Worksites
    1. Employment Agencies.
    2. Personnel Services.
    3. Home Health Services
    4. Physicians and Healthcare professionals
    5. Independent Contractors.
  3. Federal Agency Facilities.

  1. Recording of Exposure Incidents. The new recordkeeping rule effective January 1, 2002 requires at 29 CFR 1904.8 that all employers, whether or not they are covered by the bloodborne pathogens standard, record all work-related needlesticks and cuts from sharp objects that are contaminated with another person's blood or OPIM on the 300 Log as an injury. The employee's name must not be entered on the 300 Log. [See the requirements for privacy cases in paragraphs 1904.29(b)(6) through (b)(9).] If the employee is later diagnosed with an infectious bloodborne disease, the identity of the disease must be entered and the classification must be changed to an illness. If an employee is splashed or exposed to blood or OPIM without being cut or punctured, the incident must be recorded on the OSHA 300, if it results in the diagnosis of a bloodborne illness or it meets one or more of the recording criteria of 1904.7.
  2. Multi-Employer and Related Worksites. There are a number of different types of multi-employer worksites. This paragraph addresses a few typical situations but does not address all the circumstances that occur. In addition, this paragraph deals with situations in which employees are sent out to sites that are not multi-employer worksites. Where these guidelines do not address a particular question, see CPL 2-0.124, Multi-Employer Citation Policy.

    1. Employment Agencies. An employment agency refers job applicants to potential employers but does not put these workers on the payroll or otherwise establish an employment relationship with them; thus, the employment agency is not the employer of these workers. These agencies shall not be cited for violations affecting the workers they refer. The company that uses these workers, e.g., a hospital, is the employer of these workers and shall be cited for all violations affecting them.
    2. Personnel Services. Personnel services firms employ medical care staff and service employees who are assigned to work at hospitals and other healthcare facilities that contract with the firm. Typically, the employees are on the payroll of the personnel services firm, but the healthcare facility exercises day-to-day supervision over them. In these circumstances, due to the concerns expressed by the court in American Dental Association v. Martin, 984 F.2d 823, 829-30 (7th Cir. 1993) (dictum about medical personnel services) the personnel services firm should be cited for violations of the bloodborne pathogens standard only in the following categories: (1) hepatitis B vaccinations; (2) post-exposure evaluation and follow-up; (3) recordkeeping under paragraph (h) of the standard; (4) generic training; (5) violations occurring at the healthcare facility about which the personnel services firm actually knew and where the firm failed to take reasonable steps to have the host employer (the employer using the workers, e.g., a hospital) correct the violation (see FIRM multi-employer worksite guidelines); and (6) pervasive serious violations occurring at the healthcare facility about which the personnel service firm could have known with the exercise of reasonable diligence.

      When the host employer exercises day-to-day supervision over the personnel service workers, they are the employees of the host employer, as well as of the personnel service, and thus the host employer must comply with all provisions of the standard with respect to these workers. With respect to Hepatitis B vaccination, post-exposure evaluation and follow-up, recordkeeping, and generic training, the host employer's obligation is to take reasonable measures to assure that the personnel service firm has complied with these provisions.
    3. Home Health Services. The American Dental Association v. Martin decision upheld the bloodborne pathogens standard but restricted its application in the home health services industry. These are companies whose employees provide home health services in private homes. The court held that OSHA had not adequately considered feasibility problems for such employers, where employees work at sites that the employer does not control. As a result, OSHA may not cite those employers for site-dependent provisions of the standard when the hazard is site-specific.

      In implementing this decision, OSHA determined that the employer will not be held responsible for the following site-specific violations: housekeeping requirements, such as the maintenance of a clean and sanitary worksite and the handling and disposal of regulated waste; ensuring the use of personal protective equipment; and ensuring that specific work practices are followed (e.g., handwashing with running water) and ensuring the use of engineering controls.

      The employer will be held responsible for all non-site-specific requirements of the standard, including the non-site specific requirements of the exposure control plan, hepatitis B vaccinations, post exposure evaluation and follow-up, recordkeeping, and the generic training requirements. OSHA will also cite employers for failure to supply appropriate personal protective equipment to employees.
    4. Physicians and Healthcare professionals who have established an independent practice. In applying the provisions of the standard in situations involving physicians, the status of the physician is important. Physicians may be employers or employees. Physicians who are unincorporated sole proprietors or partners in a bona fide partnership are employers for purposes of the OSH Act and may be cited if they employ at least one employee (such as a technician or secretary). Such physician-employers may be cited if they create or control bloodborne pathogens hazards that expose employees at hospitals or other sites where they have staff privileges in accordance with the multi-employer worksite guidelines of CPL 2-0.124, Multi-Employer Citation Policy. Because physicians in these situations are not themselves employees, citations may not be based on the exposure of such physicians to the hazards of bloodborne diseases.

      Physicians may be employed by a hospital or other healthcare facility or may be members of a professional corporation and conduct some of their activities at host employer sites where they have staff privileges. In general, professional corporations are the employers of their physician-members and must comply with the hepatitis B vaccination, post-exposure-evaluation and follow up, recordkeeping, and generic training provisions with respect to these physicians when they work at host employer sites. The host employer is not responsible for these provisions with respect to physicians with staff privileges, but in appropriate circumstances, may be cited under other provisions of the standard in accordance with the multi-employer worksite guidelines of CPL 2-0.124, Multi-Employer Citation Policy. The professional corporation may also be cited under other provisions of the standard for the exposure of its physicians and other workers at a host employer site in accordance with the multi-employer worksite guidelines of CPL 2-0.124, Multi-Employer Citation Policy.
    5. Independent Contractors. These are companies that provide a service, such as radiology or housekeeping, to host employers. They provide supervisory personnel, as well as rank-and-file workers, to carry out the service. These companies and the host employers are responsible for complying with all provisions of the standard in accordance with the multi-employer worksite guidelines of CPL 2-0.124, Multi-Employer Citation Policy.
  3. Federal Agency Facilities. Agencies of the Federal Government are covered by this instruction.