August 21, 1992

Ms. Wilma H. Borland
Advisory Board Committee
Oak Grove Health Care Center
Post Office Box 302
Oak Grove, Missouri 84075-8415

Dear Ms. Borland:

This is in further response to your letter of May 3, to Secretary of Labor Lynn Martin, regarding the Occupational Safety and Health Administration (OSHA) regulation 29 CFR 1910.1030, "Occupational Exposure to Bloodborne Pathogens." We regret the delay in responding to you.

Your letter raised several concerns regarding the requirements of the standard for the provision and use of personal protective equipment (PPE) and the associated costs. It is the Occupational Safety and Health Administration's (OSHA) position, and it was supported in the public record during the rulemaking process, that PPE is an important element in an overall program to reduce occupationally acquired bloodborne diseases such as hepatitis B and AIDS. The purpose of PPE is to eliminate or minimize the likelihood that blood or other potentially infectious materials (OPIM) will contact the employee's skin, eye, mucous membranes, or underlying clothing.

It must be noted, however, that the final standard is performance-based and gives the employer considerable flexibility in selecting personal protective equipment, as long as it serves as an effective barrier. An employer must evaluate the task and the type of exposure expected, and based on the determination, select the "appropriate" personal protective equipment in accordance with paragraph (d)(3)(i) of the standard.

With respect to your concerns regarding increased usage of gloves and increased costs associated with compliance, your estimated cost increase may reflect a much higher glove usage rate than is required by the standard. OSHA requires, for example, that disposable gloves be changed as soon as feasible when they are contaminated, torn or punctured. We expect that this has been an established work-practice in most facilities, and should not significantly increase expenses. OSHA does not require that gloves be changed between patients as you have suggested, since this would not directly affect employee safety and health.

The economic impact analysis associated with the promulgation of this rule estimated the average nursing home's annual net compliance costs for ADDITIONAL PPE to be $2,616. This figure is based on information obtained from various sources including government statistical publications, public comment, and testimony during the rulemaking process, and two surveys conducted by the Agency.

In expressing another concern, you stated that government facilities are exempt from these regulations. It is true that under the Occupational Safety and Health Act of 1970, OSHA does not have direct jurisdiction over state, county, or municipal employees. However, 25 states and territories operate their own OSHA-approved job safety and health plans that do cover such employees. While the remaining states' hospitals and institutions have employees who are not covered by an OSHA- approved state plan, these facilities are generally subject to rules of local regulatory agencies that similarly recognize the recommendations of the U.S. Public Health Service, and ensure the health and safety of their employees. Employees of Federal facilities are afforded the protections of OSHA standards under a Presidential Executive Order signed in 1980.

You also expressed your concern regarding penalties for violations of OSHA standards. You stated that it was your understanding that "... if the care center fails to comply with just one of these regulations, they are fined $70,000.00 ...." The $70,000 figure is the maximum penalty possible, levied only for a "willful" violation of serious gravity. The OSHA penalty structure is explained in the enclosed excerpt from the current OSHA Field Operations Manual. With regard to your question, "... where and into whose pocket the $70,000.00 goes?", section 17(1) of the OSH Act states, "Civil penalties owed under this Act shall be paid to the Secretary for deposit into the Treasury of the United States and shall accrue to the United States...."

Finally, you were also concerned about the hepatitis B vaccination requirements of the standard. In your facility, however, only certain employees may have jobs which involve occupational exposure and would require offering the vaccine. OSHA expects an employer to take into account all potential circumstances of exposure that may occur in the course of the performance of each employee's job duties (such as phlebotomy, dressing wounds, or any other contact with skin lesions or other potentially infectious secretions) when determining which, if any, employees in a facility have occupational exposure. Employees who do not have occupational exposure are not covered by the scope of this standard, and are not required to be offered the vaccine.

We hope this information is responsive to your concerns.

Sincerely,



Patricia K. Clark, Director
Directorate of Compliance Programs