Bloodborne pathogen rule and construction workers

May 13, 1994

Jeffrey D. Meddin, CSP, CHCM
Corporate Director of Safety
Zurn Industries, Inc.
[Recipient address omitted]
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

[Requester letter reproduced on OSHA page; omitted here.]