May 13, 1994

Jeffrey D. Meddin, CSP, CHCM
Corporate Director of Safety
Zurn Industries, Inc.
405 N. Reo Street
Suite 110
Tampa, Florida 33609

Dear Jeff:

This is in response to your letter of July 30, 1992 to Patricia K. Clark, former Director, Directorate of Compliance Programs, in which you requested clarification of the Occupational Safety and Health Administration (OSHA) regulation 29 CFR 1910.1030, "Occupational Exposure to Bloodborne Pathogens." Specifically, you requested an interpretation of the construction industry's exemption from coverage under this rule. We apologize for the delay in this response.

The bloodborne pathogens standard does not apply to the construction industry. This policy decision was based on a concern that the construction industry was not explicitly afforded notice and, in fact, did not participate in the rulemaking process.

While the bloodborne pathogens standard does not apply to construction work, as defined in 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, if they experience occupational exposure to blood or other potentially infectious materials.

OSHA expects the construction employer performing such functions listed above to take the following precautions as required by the referenced standards:

Section 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. This section also confirms your understanding that "cleaning people should be trained in disinfecting/decontamination procedures."

Section 29 CFR 1926.25 requires that containers be provided for the collection and separation of waste. This includes containers for sharps and other hazardous waste which may be generated from rendering medical assistance. However, the discarded band-aids and gauze mentioned in your letter would not be considered hazardous waste as long as they are not saturated to the point of releasing blood or other potentially infectious material.

Section 5(a)(1) of the OSH Act, 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 industries not covered by the bloodborne pathogens standard. Section 5(a)(1) citations must, of course, meet the requirements outlined in the Field Operations Manual, Chapter IV, and will only be issued where there is a serious and recognized hazard which cannot be abated by implementing an abatement method required by the above standards.

You asked if OSHA would enforce the bloodborne standard if "the construction site has a first aid station set up to provide routine medical services and/or has a first aider or emergency medical technician (EMT) whose job description includes their providing medical aid for the site." If the site has what amounts to an on-site clinic staffed by one or more first aiders, EMT's, nurses, etc. whose duties do not also include construction work, those employees would be considered health care workers, not construction workers, and would be covered under the standard. If your first aiders or EMT's are construction workers, performing first aid only as collateral duty, they would not be covered by the standard.

Your understanding that if a person "renders first Aid/CPR as a good samaritan while on the job, he or she would then fall under the standard" is incorrect. While OSHA would encourage an employer to offer follow-up procedures to an employee who experiences an exposure incident as the result of performing a good samaritan act, the bloodborne standard excludes employees who perform unanticipated good samaritan acts from coverage since such an act does not constitute "occupational exposure."

You also asked if the exposed individual has the "right to force" the source individual to be tested for HIV and HBV. The answer is no; this is true for all industries whether or not they are covered by the bloodborne standard.

Your concern about Washington State's requirement that all supervisors be trained in industrial first aid should be addressed to WISHA directly as their state plan standards may vary from federal standards. You may contact WISHA at the following address:

Washington Department of Labor and Industries
General Administration Building
Post Office Box 44001
Olympia, Washington 98504-4001

Telephone: (206) 956-4213

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

Sincerely,



H. Berrien Zettler, Deputy Director
Directorate of Compliance Programs




July 30, 1992

U.S. Department of Labor
Occupational Safety and Health Administration
Directorate of Compliance Programs
200 Constitution Avenue
Room N3468
Washington, DC 20210

Attn: Ms. Patricia K. Clark, Director

Re: Bloodborn Pathogens - ACCOSH Meeting 7/28/92

Dear Pat:

The following was the questions that I raised at the ACCOSH meeting after your presentation based upon many questions that were asked of me by field personnel. Though I know the Agency's position on Bloodborn Pathogens, I believe some written "official" position that can be used as reference would eliminate the speculation and misinformation in the field. In any event, the following are the questions I raised.

From my travels and conversations, there appears to be much confusion regarding the Bloodborn Pathogen Standard and the "Construction Exemption" that was reported in the national reporters (BNA, CCH, etc.) after the May ACCOSH meeting.

As I am told, the exemption covers the entire construction industry except, perhaps, for maintenance workers who may be considered construction workers. It is my understanding from talking to several Area offices that this is not the case. OSHA is simply not enforcing this standard unless they receive a complaint or find that the construction site has a first aid station set up to provide routine medical services and/or has a first aider or EMT whose job description includes their providing medical aid for the site.

Likewise, it is my understanding that every first aid kit should be provided with a one way valve CPR mask and examination gloves (universal prcautions) in the event the kit is used. Also, to prevent contamination, cleaning people should be trained in disinfecting (decontamination) procedures and a program set up to dispose of medical waste (i.e. used band aids, gauze, etc.)

Some of these situations make sense and, in my humble opinion, should rightly apply to the construction industry, but how far do you take this ... to the first aid kit in the pickup truck of a 2 man crew? How about the band aids in the workman's lunch pail and trash can where he disposes of the old one (if he/she doesn't throw it on the ground) when it gets dirty on the job? What about WISHA's (Washington State) requirement that "all supervisors be trained in industrial first aid?"

I know that the intent of the Standard was to NOT inhibit site personnel from being trained in emergency first aid or having employers de emphasize this need, (except if engaged in specific tasks that mandate this training [i.e. confined space, etc.]) for fear of repercussions from the Agency. Likewise, I don't believe the intent was to prevent trained workers from rendering first aid or CPR in an emergency. But what do you do after the emergency is over?

It is my understanding that IF such a person renders First Aid/CPR as a good samaritan while on the job, they would then fall under the Standard. They would have to be educated and given the option of receiving HBV vaccinations at their employer's expense. Likewise, if they caught something, they would be covered under workmans' compensation.

This also brings up the issue of whether they have the "right" to force the injured individual to be tested for HIV/HBV virus so that ,they can make an informed decision of whether to get vaccinated. I guess either way they would have a "mental stress" related claim in California based on the "fear of the unknown."

As you can see, there are many questions that need to be visited on this subject ... especially in the construction industry. Hopefully I am not the only one who has raised this question and you can consolidate these questions in one written interpretation.

Thank you for your assistance in this matter.

Sincerely,



Jeffrey D. Meddin, CSP, CHCM
Corporate Director of Safety