OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.
July 31, 1990
MEMORANDUM FOR: BRUCE HILLENBRAND, DIRECTOR
FROM: PATRICIA K. CLARK DIRECTOR DESIGNATE DIRECTORATE OF COMPLIANCE PROGRAMS
SUBJECT: South Carolina's Response to OSHA Instruction CPL 2-2.44B, "Enforcement Procedures for Occupational Exposure to HBV and HIV"
This is in response to your memo of July 3 requesting our concurrence with your opinion that, absent a federal standard, the State of South Carolina cannot allocate the cost of the hepatitis B vaccine to the employer.
Under Section 18 of the OSH Act, state plan states are required to promulgate and enforce standards that are "at least as effective" as federal OSHA standards. However, because at the current time, the hepatitis B vaccine requirement is enforced under the General Duty Clause, we concur that we cannot require South Carolina to enforce this requirement. OSHA's position, as found in Section F(3)(d) of the OSHA Instruction, states that "although states are not required to enforce General Duty provisions, they are strongly urged to do so".
At the same time, the Directorate of Compliance Programs feels that it is clear that a state compliance directive which does not require the employer to pay for the hepatitis B vaccine is not as effective as a federal compliance directive which includes that requirement. OSHA Instruction CPL 2-2.44B was revised to include the employer payment requirement as it became clear that employees might not take advantage of the protection afforded by the vaccine for reasons of cost. Just as OSHA requires employers to bear the cost of personal protective equipment necessary to protect the safety and health of employees, under the General Duty Clause of the OSH Act the Agency now requires employers to bear the cost of protecting their employees from the hazards of hepatitis B. Since the vaccine's effectiveness is extremely high, OSHA feels that the benefits of the protection are well worth the cost.
We would also like to register our concern over the fact that the State of South Carolina is apparently also not requiring that employers pay the cost of post-exposure follow-up. Again this federal requirement falls under the General Duty Clause so the same obstacles would appear to hold. However, as a matter of sound health policy, we strongly urge the State of South Carolina to extend this protection to employees in their state.