Task-based protective equipment in residential disability care

August 28, 1992

The Honorable John A. Boehner
House of Representatives
[Recipient address omitted]
Dear Congressman Boehner:

This is in further response to your letter of July 7, on behalf of your constituent, Ms. Amy Gerowitz, requesting clarification of issues regarding the Occupational Safety and Health Administration (OSHA) regulation, 29 CFR 1910.1030, "Occupational Exposure to Bloodborne Pathogens." Ms. Gerowitz's primary issue of concern is the requirement to provide personal protective equipment to employees performing certain residential services for individuals with developmental disabilities. She has stated that she feels the implementation of these requirements may, or may appear to, discriminate against individuals with developmental disabilities.

The bloodborne pathogens standard is designed to protect the nation's workers, particularly health care workers, from exposure to the Hepatitis B Virus (HBV), the Human Immunodeficiency Virus (HIV), and other bloodborne pathogens. Of the diseases caused by these viruses, Hepatitis B is the most common, with 8,700 cases per year among workers in the health care profession. Hepatitis B infection may result in serious illness, long term disability, and death. The HIV virus causes AIDS, for which there currently is no cure and which eventually results in death. These viruses, as well as other organisms that cause bloodborne diseases, are found in human blood and certain other human body fluids. Therefore, employers have a particular responsibility to ensure that employees do not come into direct contact with blood or other potentially infectious materials while performing their job.

You should note, however, that it is the employer's responsibility to determine which job classifications involve occupational exposure, and that the employer is only required to make the hepatitis B vaccine available and provide the other protections of the standard to those employees having occupational exposure. Occupational exposure is defined as reasonably anticipated exposure to blood or other potentially infectious materials as the result of performing one's job duties.

In an ambulatory residential facility, only certain employees may have jobs which involve occupational exposure, although OSHA expects an employer to take into account all potential circumstances of exposure (such as biting and 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.

With respect to the issue raised in your constituent's letter concerning the use of personal protective equipment, the requirements of 29 CFR 1910.1030 are performance oriented. The standard requires the employer to evaluate the task and the potential contact with blood and other potentially infectious materials. Based on this determination, the employer is to select the "appropriate" personal protective equipment in accordance with paragraph (d)(3)(i) of the standard.

Of the specific examples cited in your constituent's letter, procedures such as flossing and brushing teeth, and suctioning of body fluids would be reasonably anticipated to result in potential exposure to blood or other potentially infectious materials and would, therefore, require the use of some level of personal protective equipment. It is not OSHA's position or expectation, however, that protective equipment would be required for employees assisting patients in eating under normal circumstances.

One of Ms. Gerowitz's attachments in her letter to you is a copy of a June 9 letter addressed to OSHA which delineates the concerns of the National Association of Private Residential Resources (NAPRR) regarding the application of OSHA standards to their members. OSHA's Office of Health Compliance Assistance met with Ms. Joni Fritz, Executive Director of the NAPRR, and Ms. Nancy Meng, Director of Special Projects, on April 16 to discuss the Association's concerns and to explain OSHA's enforcement policy as it relates to the bloodborne pathogens standard, the hazard communication standard, and other OSHA standards which may be applicable. This meeting clarified a number of misunderstandings regarding OSHA compliance, and the representatives of NAPRR informed us that the meeting had been extremely beneficial to them. Furthermore, in order to promote further understanding, OSHA has agreed to provide a speaker on these topics on September 15, for the NAPRR 1992 Governmental Activities Seminar.

We hope this information is responsive to your concerns and the concerns of your constituent. Thank you for your interest in employee safety and health.

Sincerely,
Patricia K. Clark, Director
Directorate of Compliance Programs