66 CBJ 451. Walking the Line: Integrating the Requirements of Osha's Bloodborne Pathogen Regulation and the Mandates of the Ada.


Connecticut Bar Journal

Volume 66.

66 CBJ 451.

Walking the Line: Integrating the Requirements of Osha's Bloodborne Pathogen Regulation and the Mandates of the Ada

451Walking the Line: Integrating the Requirements of Osha's Bloodborne Pathogen Regulation and the Mandates of the AdaBy REED D. RUBINSTEIN (fn*) AND ADAM J. RUBINSTEIN (fn**)In December of 1991, the Occupational Safety and Health Administration of the Department of Labor ("OSHA") promulgated a rule designed to eliminate or minimize occupational exposure to hepatitis B virus ("HBV"), human immunodeficiency virus ("HIV") and other bloodborne pathogens. (fn1)In May of 1992, the Connecticut Labor Department's Occupational Safety and Health Division adopted the federal rule.(fn2) OSHA promulgated the bloodborne pathogen rule because it determined that workers in a variety of fields (fn3) face a significant health risk as a result of occupational exposure to blood and other potentially infectious materials. (fn4) OSHA's regulation, which is having a significant economic and administrative impact on employers whose workers could be exposed to bloodborne pathogens, (fn5) is designed to limit this risk.

On July 26, 1992, Title I of the Americans with Disabilities Act ("ADA")(fn6) became effective. ADA (fn7) is designed to prevent discrimination against persons with a defined "disability." (fn8) ADA

452aims to open the workplace to all "disabled" workers, including bloodborne pathogen carriers. (fn9)

The combination of OSHA's bloodborne pathogen regulation requirements and ADA mandates produces a potent brew. Under the law, employers must at once pay to open the workplace to bloodborne pathogen carriers, and pay to protect other workers from those carriers. What follows is an analysis of these new and potentially conflicting mandates.


    OSHA's bloodborne pathogen regulation was promulgated as a response to the accidental infection of health care workers and others with the HIV virus (fn10) and other bloodborne pathogens. (fn11) OSHA determined that over 6,100,000 workers (fn12) employed in health care, (fn13) personnel services, funeral homes, industrial facilities, research laboratories, linen services, medical equipment repair companies, law enforcement agencies, fire and rescue services, correctional facilities, lifesaving, schools, and waste removal concerns" were within the "at risk" cohort. (fn15)

    453Adopting a zero exposure approach to bloodborne pathogens, (fn16) OSHA concluded that an employee's risk of infection (fn17) could be minimized or eliminated through a combination of engineering and work practice controls, personal protective clothing and equipment, training, medical surveillance, hepatitis B virus ("HBV") vaccination, (fn18) signs and labels, and a "universal precaution" approach to infection control. (fn19)

    1. The Regulatory Scheme

      The centerpiece of OSHA's regulatory scheme" is the "Exposure Control Plan" ("ECP"). Each employer having employees subject to "occupational exposure"" must implement an accessible" ECP containing an exposure determination analysis;" and a schedule and method of implementation for

      454methods of compliance, (fn24) communication of hazards to employees, (fn25) recordkeeping, (fn26) and post-exposure evaluation and follow-up. (fn27) The methods of compliance and post-exposure evaluation and follow-up provisions are of particular importance.

      1. Methods of compliance

      Title 29 C.F.R. § 1910.1030(d) lists the engineering and work practice controls that must be implemented as part of the Exposure Control Plan. (fn28) The regulation places a significant burden on employers. Where there is occupational exposure, defined as reasonably anticipated skin, eye, mucus membrane, or parenteral contact with blood or other infectious materials,(fn29) the employer must provide appropriate personal protective equipment ("PPE"). (fn30) The employer bears the burden of ensuring that all employees use PPE, or of proving that an employee temporarily and briefly declined to use PPE when, under rare and extraordinary circumstances, it was the employee's personal judgment that PPE would have prevented the delivery of health care or public safety services. (fn31)

      Even with these precautions the risk of employee infection remains. While the incidence of accidental blood exposure can be reduced through the implementation of work practice

      455controls and user education, (fn32) the risk cannot be eliminated. In surgeries, for example, recent data suggest that percutaneous injuries occur regularly during surgical procedures, no matter how stringent the precautions. (fn33) Similarly, it is unlikely that a teacher or a day-care worker will ever be able to avoid accidental blood exposure on the playground or in the classroom.

      2. Employer obligations in the event of employee exposure

      Title 29 C.F.R. § 1910.1030(f)(3) governs the appropriate response when an employee suffers an "exposure incident," defined as a specific eye, mouth, other mucus membrane, nonintact skin, or parenteral contact with blood or other potentially infectious materials that results from the performance of an employee's duties. (fn34) Following a report of an exposure incident, the employer shall "make immediately available" to the employee a confidential medical evaluation and follow-up. (fn35) An employer must provide the employee's "healthcare professional" with a description of the employee's duties, documentation of the exposure route and the circumstances under which the exposure occurred, results of the source individual's blood tests, (fn36) and all other employee medical records, including HBV vaccination history. (fn37) Post-exposure prophylaxis, counseling, and evaluation of reported illnesses must occur as well." (fn38)

    2. The Economic Impact Of OSHA's Regulation

      OSHA's bloodborne pathogen regulation will have significant economic impact for at least two reasons. First, regulation

      456compliance will be enormously expensive. Second, the regulation will set a very high standard of care in tort suits involving the transmission of bloodborne pathogens.

      1. Compliance costs

      OSHA bloodborne pathogen regulation compliance costs are staggering. OSHA estimates the cost at $812.76 million annually. (fn39) Because of the relatively inelastic demand for health care and public safety services, OSHA believes that the costs of compliance will be passed on to consumers or to taxpayers. (fn40)

      2. Tort consequences

      OSHA's regulation will also have substantial tort law impact. OSHA standards have repeatedly been held probative evidence of the appropriate standard of care in a tort suit. (fn41) OSHA regulations are not automatically recognized as objective safety standards or as the standard of industry care. (fn42) In conjunction with expert testimony, however, OSHA regulations can be put into evidence for a jury's consideration.(fn43)

      If OSHA's regulation becomes the commonly accepted standard of care, then an employer's failure to comply with the requirements may trigger negligence liability. Liability for employee infection generally will be channeled through the worker compensation system. The real negligence threat is posed by transmission of a bloodborne pathogen from an employee or contractor to a patient, customer, or patron, (fn44) or to the

      457independent contractor's employee working at a defendant's jobsite.(fn45)

      In assessing the liability threat posed by bloodborne pathogen carriers, it is important to recognize the fact that exposure without proof of infection can be a sufficient basis for a negligence verdict. OSHA requires employers to implement a "universal precaution" approach, which assumes that all blood or other potentially infectious material contains dangerous pathogens. (fn46) OSHA's caution is well-advised. HIV in particular has an extended latency period and a dangerous "window period" during which time the disease cannot be detected, but can be transmitted. (fn47) Therefore, any OSHA-defined exposure incident (fn48) might well support a "fear of infection" tort suit or worker's compensation claim.(fn49)

    3. OSHA's Regulation And State Law

      OSHA's bloodborne pathogen regulation is complemented by Connecticut's AIDS Testing and Medical Information Act (the "Act"). (fn50) Although OSHA's "universal precaution approach" assumes all persons are bloodborne pathogen carriers, most people do not carry bloodborne pathogens, and most occupational exposures involving live exposure sources are not a threat. Yet, without independent confirmation of an exposure source's infectious status, workers subject to occupational

      458exposure must suffer the stress of uncertainty. (fn51) OSHA, however, provides no vehicle for the exposed worker to obtain information about the exposure source.

      The Act, enacted in 1989, (fn52) fills this gap in OSHA's regulatory scheme. The Act allows a worker who suffers a "significant exposure" (fn53) on the job to obtain a court order forcing the source of that exposure to submit to an HIV test. (fn54) Although the worker must carry a heavy burden to obtain a court-ordered test of the person who is the exposure source, (fn55) the Act provides workers with an opportunity to obtain the knowledge necessary to protect themselves and their families.


    1. Statutory Background

      ADA's employment provisions...

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