Kansas Bar Journals
62 J. Kan. Bar Assn. October, 26 (1993).
PREVENTING OCCUPATIONAL EXPOSURE TO BLOODBORNE PATHOGENS THE FINAL OSHA STANDARD
Journal of the Kansas Bar AssociationOctober, 1993PREVENTING OCCUPATIONAL EXPOSURE TO BLOODBORNE PATHOGENS: THE FINAL OSHA STANDARDJeffrey A. Chanay [FNa1]Copyright (c) 1993 by the Kansas Bar Association; Jeffrey A. Chanay
On December 6, 1991, the Occupational Safety and Health Administration (OSHA) issued a final bloodborne pathogens standard [FN1] designed to protect more than 5.6 million healthcare workers and prevent more than 200 deaths and 9,200 bloodborne infections each year. [FN2] Bloodborne pathogens are pathogenic microorganisms in human blood that can cause disease in humans. These pathogens most prominently include the Hepatitis B virus (HBV) and the human immunodeficiency virus (HIV), which causes AIDS. [FN3]
Occupational exposure to bloodborne pathogens may occur in many ways, including parenteral inoculation (needle sticks), cuts, abrasions, and mucous membrane exposure. Healthcare workers employed in certain occupations are assumed to be at risk for bloodborne infections due to their routine exposure to blood and body fluids from potentially infected patients. These high-risk occupations include physicians, pathologists, dentists and dental technicians, phlebotomists, nurses, and
laboratory and blood bank technicians. Other workers who may be exposed to potentially infectious fluids and materials, depending on their work assignments, include housekeeping personnel, laundry workers, nurse aides, paramedics, law enforcement personnel, emergency medical technicians, and firefighters. [FN4] Consequently, employers affected by the OSHA bloodborne pathogens standard include hospitals, nursing homes, physicians' offices, dental offices, funeral homes, personnel services, laboratories, fire and rescue services, law enforcement departments, schools, correctional facilities, and sanitation departments, among others. [FN5]
This article will review and discuss the political and legal background behind the issuance of the final OSHA bloodborne pathogens standard, and the obligation of employers to establish an infection-control program. This article will further highlight the requirements of the final OSHA bloodborne pathogens standard, and will address the enforcement powers and procedures of OSHA concerning the final standard.
In September 1986, various unions representing healthcare workers petitioned OSHA to develop a standard to protect workers from occupational exposure to bloodborne diseases. [FN6] After evaluating the union petitions and studying the issue, OSHA concluded that the risk of contracting Hepatitis B and AIDS within the healthcare system required immediate enforcement prior to the issuance of the final standard. [FN7]
Accordingly, OSHA issued an interim instruction [FN8] to its inspectors concerning inspection procedures and guidelines for use in issuing citations under § 5(a)(1) of the Occupational Safety and Health Act. [FN9] Section 5(a)(1) of the Act, commonly known as the general duty clause, provides that each employer must furnish to its employees a place of employment that is free from recognized hazards that are likely to cause death or serious physical harm. [FN10] Prior to the issuance of the final standard, OSHA issued citations to employers that did not protect employees from occupational exposure to blood or other potentially infectious body fluids under the interim instruction. [FN11]
The legislative history of the Occupational Safety and Health Act makes it clear that the purpose of the general duty clause is to fill any gaps in the protection afforded employees by the standard promulgated under the Act, [FN12] and not to act as a substitute for standard setting pursuant to Section 6 of the Act. [FN13] Accordingly, after public comment and study, OSHA issued the final standard on December 6, 1991.
THE NEED FOR A BLOODBORNE PATHOGENS STANDARD
AIDS was first recognized in the United States in 1981. By July 1991, the Centers for Disease Control (CDC) had received reports of nearly 187,000 cases of AIDS, resulting in more than 118,000 deaths. [FN14] Presently it is estimated that between one million and 1.5 million people are carriers of the virus that causes AIDS, but many have no symptoms of the illness. [FN15] Experts report that only 11 years after it was first recognized in the United States, there was a cumulative total of 365,000 AIDS cases in the U.S., resulting in more than 263,000 deaths. [FN16]
Recent data confirms the seriousness of the disease as a public health concern. According to the Centers for Disease Control, 47,095 cases of AIDS were recorded in the United States in 1992, an increase of 3.5 percent over 1991 figures. [FN17] By July 31, 1993, however, the CDC had recorded a cumulative total of 67,732 cases of AIDS for the first seven months of 1993. [FN18] Although this dramatic increase is due, primarily, to a new definition of AIDS that
went into effect on January 1, 1993, [FN19] the actual increase in new AIDS cases appears to be 21 percent. [FN20] There have been 244 new cases of AIDS recorded in Kansas in the first seven months of 1993. [FN21] According to the CDC, there are 11.9 AIDS cases per 100,000 population in Kansas, ranking Kansas 36th among the 50 states. [FN22]
The human immunodeficiency virus (HIV) is a virus that attacks the immune system, leaving the infected person vulnerable to a wide range of clinical disorders. [FN23] HIV infected individuals frequently experience a prodromal syndrome known as AIDS-related complex. [FN24] Research has documented that an altered immunoregulatory state precedes the development of AIDS. Many persons with AIDS have experienced a prodromal illness of varying duration, characterized by fever, generalized lymphadenopathy, malaise, weight loss, oral thrush, and diarrhea. [FN25] A diagnosis of AIDS is based upon a clinical finding of opportunistic infection, Kaposi's sarcoma, central nervous system non-Hodgkin's lymphoma, or severe wasting-conditions suggestive of a defect in cell-mediated immunity. [FN26]
Workplace transmission of AIDS is rare. Various studies suggest a seroconversion rate of between 0.35 percent and 0.48 percent, representing the percentage of actual seroconversions to the total number of workplace exposures to HIV-contaminated blood or body fluids (3.5-4.8 per 1,000). [FN27] As of December 1991, there were 30 known healthcare workers who were infected with HIV through occupational exposure to blood or other potentially infectious materials. [FN28] According to the most recent CDC figures, there have been 32 documented cases of healthcare workers who acquired HIV through occupational exposure and 69 possible, undocumented cases. [FN29] Of the 32 documented cases, 30 were exposed to infected blood and 27 were infected through needle sticks or other sharps. [FN30] The actual number of workplace infections is probably greater because not all healthcare workers are evaluated for HIV infection. [FN31]
There is no known cure for AIDS, and workplace transmission can only be prevented by engineering controls, personal protective equipment and workplace controls.
The risk of infection with the Hepatitis B virus, however, is much greater. According to CDC surveys, an estimated 300,000 new Hepatitis B infections occur each year in the U.S., and nearly 10 percent of those infected become long-term carriers. [FN32] Of the 300,000 persons infected, almost one-fourth become acutely ill or jaundiced, about 15,000 are hospitalized, and several thousand die from acute and chronic disease. [FN33] OSHA estimates that direct workplace exposures to healthcare workers produce 8,700 Hepatitis B infections each year in the United States, causing 2,100 cases of clinical acute hepatitis, from 400 to 440 hospitalizations, and approximately 200 deaths. [FN34]
Hepatitis B virus (HBV) is the major infectious bloodborne occupational hazard to healthcare workers. Hepatitis means inflammation of the liver. Hepatitis B, once known as serum hepatitis, may take various clinical courses, running from mild fatigue to death. [FN35] With acute Hepatitis B, the icteric (jaundice) phase of the disease usually lasts from two-to-six weeks and disappears over a variable period. About one-third of all infected persons develop a severe clinical course often causing hospitalization, absence from work, and extreme fatigue. Fulminant
hepatitis, which is about 85 percent fatal, develops in about one-to-two percent of reported acute Hepatitis B cases, or about one in 1000 infections. [FN36]
Approximately six-to-ten percent of HBV infected persons cannot clear the virus from their bodies and become chronic carriers. [FN37] Chronic HBV carriers are at high risk of developing chronic persistent hepatitis, chronic active hepatitis, cirrhosis of the liver, and primary liver cancer. Twenty-five percent of all chronic carriers develop chronic active hepatitis, a progressive, debilitating disease that often leads to cirrhosis of the liver within five-to-ten years. [FN38] Chronic HBV causes 10 percent of the 25,000 to 30,000 cirrhosis deaths in the United States each year. [FN39]
HBV may be transmitted parenterally, through mucous membranes, through sexual contact, and perinatally. [FN40] The most efficient mode of transmission is through needle sticks and punctures. [FN41]