Multi-Employer and Related Worksites | Bloodborne Pathogens

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.

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.

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.

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.

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 work-site 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.

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.

General Inspection Procedures | Bloodborne Pathogens

The procedures given in the FIRM, Chapter II, should be followed except as modified in the following sections:

Where appropriate, the facility administrator, as well as the directors of infection control, employee (occupational) health, training and education, and environmental services (housekeeping) will be included in the opening conference or interviewed early in the inspection.

The facility’s sharps injury log and any other file of “incident reports” that document the circumstances of exposure incidents in accordance with the provisions in the exposure control plan, and any first aid log of injuries, should be reviewed. The compliance officer should ask for any other additional records that track bloodborne incidents. The compliance officer should review the most recent Part 1904 — Recording and Reporting Occupational Injuries and Illnesses regulations prior to citing recordkeeping violations.

Compliance officers should take necessary precautions to avoid direct contact with blood or OPIM and should not participate in activities that will require them to come into contact with blood or OPIM. The CSHO should avoid direct contact with needles or other sharp instruments potentially contaminated with blood or OPIM. To evaluate such activities, compliance officers normally should establish the existence of hazards and adequacy of work practices through employee interviews and should observe them at a safe distance.

On occasions when entry into potentially hazardous areas is judged necessary, the compliance officer should be properly equipped as required by the facility as well as by his/her own professional judgment, after consultation with the supervisor, who should refer to OSHA’s exposure control plan for further guidance.

Compliance officers should use appropriate caution when entering patient care areas of the facility. When such visits are judged necessary for determining actual conditions in the facility, the privacy of patients must be respected. Photos or videos are normally not necessary and in no event should identifiable photos be taken without the patient’s consent.

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.

Background | Bloodborne Pathogens

In September 1986, OSHA was petitioned by various unions representing healthcare employees to develop an emergency temporary standard to protect employees from occupational exposure to bloodborne diseases. The agency decided to pursue the development of a Section 6(b) standard and published a proposed rule on May 30, 1989.

The agency also concluded that the risk of contracting the hepatitis B virus (HBV) and human immunodeficiency virus (HIV) among members of various occupations within the healthcare sector required an immediate response and therefore issued OSHA Instruction CPL 2-2.44, January 19, 1988. That instruction was superseded by CPL 2-2.44A, August 15, 1988; subsequently, CPL 2-2.44B was issued February 27, 1990.

On December 6, 1991, the agency issued its final regulation on occupational exposure to bloodborne pathogens (29 CFR 1910.1030). Based on a review of the information in the rulemaking record, OSHA determined that employees face a significant health risk as the result of occupational exposure to blood and other potentially infectious materials (OPIM) because they may contain bloodborne pathogens. These pathogens include but are not limited to HBV, which causes hepatitis B; HIV, which causes acquired immunodeficiency syndrome (AIDS); hepatitis C virus; human T-lymphotrophic virus Type 1; and pathogens causing malaria, syphilis, babesiosis, brucellosis, leptospirosis, arboviral infections, relapsing fever, Creutzfeldt-Jakob disease, and viral hemorrhagic fever. The agency further concludes that these hazards can be minimized or eliminated by using a combination of engineering and work practice controls, personal protective clothing and equipment, training, medical surveillance, hepatitis B vaccination, signs and labels, and other provisions. Both the standard and CPL 2-2.44C became effective on March 6, 1992.

On September 9, 1988 OSHA published a Request for Information (RFI) on engineering and work practice controls used to eliminate or minimize the risk of occupational exposure to bloodborne pathogens due to percutaneous injuries from contaminated sharps. The responses indicated that safer medical devices along with training are the most effective means of reducing injury rates. A Summar of the comments received in response to the RFI was published in March 1999. On November 5, 1999 CPL 2-2.44D was issued. It incorporated information from the RFI, past interpretations and several CDC guidelines on vaccination and post-exposure prophylaxis.

On November 6, 2000, the Needlestick Safety and Prevention Act was signed into law (Public Law 106-430). It directed OSHA to revise the Bloodborne Pathogens standard to include new examples in the definition of engineering controls; to require that exposure control plans reflect changes in technology that eliminate or reduce exposure to bloodborne pathogens; to require employers to document annually in the exposure control plans consideration and implementation of safer medical devices; to require employers to solicit input from non-managerial employees responsible for direct patient care in the identification, evaluation, and selection of engineering and work practice controls; to document this input in the exposure control plan; and to require certain employers to establish and maintain a log of percutaneous injuries from contaminated sharps. OSHA published these revisions on January 18, 2001 with an effective date of April 18, 2001.

OSHA’s Bloodborne Pathogens Clarifications

Since the promulgation of the Bloodborne Pathogens standard, OSHA has issued a number of clarifications and interpretations regarding particular aspects of the standard. Summaries of several clarifications follow.

Construction, maritime and agriculture exemptions

Revision 10/02 The Bloodborne Pathogens standard does not apply to the construction, agriculture, marine terminal, and longshoring industries. OSHA has not, however, stated that these industries are free from the hazards of bloodborne pathogens. For industries not covered by the standard, these safety issues are being enforced under the General Duty Clause. While the General Duty Clause is not used to cite for violations of the Bloodborne Pathogens standard, it may be used to cite for failure to provide a workplace free from exposure to bloodborne hazards.

First aid providers and the hepatitis B vaccination requirement

First aid providers fall in a category of worker that is protected by the Bloodborne Pathogens standard because of the possibility of occupational exposure to blood or other potentially infectious material. However, most first aid providers have completely unrelated job duties and have very little actual likelihood of occupational exposure.

For those first aid providers where the risk of occupational exposure is extremely low, OSHA has issued an official exemption from the pre-exposure hepatitis B vaccination requirement. Such employees only need to be offered the HBV vaccine in post-exposure situations.

All other requirements of the standard still apply to workers exempted from the HBV vaccination requirements. Their employers are subject to the same written program, recordkeeping, training, and other requirements of the Bloodborne Pathogens standard. See page 29 for the news release regarding this exemption.

Feminine hygiene products handling practices

In response to an industry inquiry regarding feminine hygiene product waste, OSHA issued a letter clarifying the intent of the standard. The information in the letter could prove useful to every workplace, since all female restrooms generate feminine hygiene waste handling and disposal issues. This interpretation provides a strong incentive to organize an effective sanitary program to deal with the feminine hygiene product disposal practices, change them if possible to avoid potential exposure situations, and cover any workers potentially exposed to bloodborne pathogens. See page 30 for the interpretative letter.

Occupational Safety and Health Administration News Release

Monday, July 6, 1992

FIRST AID PROVIDERS MAY RECEIVE HEPATITIS B VACCINE UPON EXPOSURE, OSHA SAYS

The U.S. Labor Department’s Occupational Safety and Health Administration (OSHA) today announced it will allow employers to offer hepatitis B vaccinations to certain employees after they’ve given first aid rather than offering pre-exposure vaccinations.

Based on the low risk of exposure for these first aid providers, OSHA believes that post-exposure prophylaxis, including hepatitis B vaccination within 24 hours of possible exposure, both minimizes the risk to employees and lessens demands on limited supplies of the vaccine.

OSHA is revising the inspection directive issued under its bloodborne pathogens standard. OSHA will consider it a de minimis violation—a technical violation carrying no penalties—if employees who administer first aid as a collateral duty to their routine work assignment are not offered the hepatitis B vaccination until they give aid involving blood or other potentially infectious materials. In these circumstances, no citations will be issued.

All other requirements of the standard apply to employers with employees who are designated to render first aid on the job.

The de minimis classification for failure to offer hepatitis B vaccination in advance of exposure would NOT apply to personnel who provide first aid at a first aid station, clinic or dispensary or the health care, emergency response or public safety personnel expected to render first aid in the course of their work.

Exceptions would be limited to persons who render first aid only as a collateral duty, responding solely to injuries resulting from workplace incidents, generally at the location where the incident occurred. To merit the de minimis classification, the following conditions also must be met:

• Reporting procedures must be in place under the exposure control plan to ensure that all first aid incidents involving exposure are reported to the employer before the end of the work shift during which the incident occurs.

• Reports of first aid incidents must include the names of all first aid providers and a description of the circumstances of the accident, including date and time as well as a determination of whether an exposure incident, as defined in the standard, has occured.

• Exposure reports must be included on a list of such first aid incidents that is readily available to all employees and provided to OSHA upon request.

• First aid providers must receive training under the bloodborne pathogens standard that covers the specifics of the reporting procedures.

• All first aid providers who render assistance in any situation involving the presence of blood or other potentially infection materials, regardless of whether or not a specific exposure incident occurs, must be offered the full immunization series—as soon as possible, but in no event later than 24 hours. If an exposure incident as defined in the standard has taken place, other post-exposure follow-up procedures must be initiated immediately, per the requirements of the standard.

  The new policy is effective immediately.

June 1, 1992

Ms. Susan H. Blackburn
Industrial Hygienist
Martin Marietta Energy Systems, Inc.
Post Office Box 2003
Oak Ridge, Tennessee 37831

Dear Ms. Blackburn:

This is in response to your letter of April 30, in which you requested a clarification on the Occupational Safety and Health Administration (OSHA) regulation 29 CFR 1910.1030, “Occupational Exposure to Bloodborne Pathogens”. You wrote regarding the coverage of feminine hygiene products as regulated waste.

29 CFR 1910.1030 defines regulated waste as liquid or semi-liquid blood or other potentially infectious material (OPIM); items contaminated with blood or OPIM and which would release these substances in a liquid or semi-liquid state if compressed; items that are caked with dried blood or OPIM are capable of releasing these materials during handling; contaminated sharps; and pathological and microbiological wastes containing blood or OPIM.

OSHA does not generally consider discarded feminine hygiene products, used to absorb menstrual flow, to fall within the definition of regulated waste. The intended function of products such as sanitary napkins is to absorb and contain blood; the absorbent material of which they are composed would, under most circumstances, prevent the release of liquid or semi-liquid blood or the flaking off of dried blood.

OSHA expects these products to be discarded into waste containers which are lined in such a way as to prevent contact with the contents. Please note, however, that it is the employer’s responsibility to determine which job classifications or specific tasks and procedures involve occupational exposure. For example, the employer must determine whether employees can come into contact with blood during the normal handling of such products from initial pick-up through disposal in the outgoing trash. 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.

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

Patricia K. Clark, Director
Directorate of Compliance Programs