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.
January 22, 1991
The Honorable Dave Durenberger
United States Senate
Washington, D.C. 20510
Dear Senator Durenberger:
Thank you for your letter of August 9, addressed to former Secretary of Labor Elizabeth Dole. You wrote on behalf of your constituents, Care Providers of Minnesota, the Commissioner of the State of Minnesota Department of Human Services, and State Senator Don Samuelson. They contacted you to express their concern over the Occupational Safety and Health Administration (OSHA) requirement that employers offer the hepatitis B vaccine free of charge to employees of nursing homes whose jobs involve the risk of exposure to blood or other potentially infectious materials. I understand that our Office of Intra-Governmental Affairs spoke with your staff recently to apologize for the inadvertent misplacement of your letter and resulting delay in our response.
On May 30, 1989, OSHA published a proposed rule on occupational exposure to bloodborne pathogens. The agency believed such a regulation was necessary to prevent the transmission of the hepatitis B virus (HBV) and the human immunodeficiency virus (HIV) to employees whose work involves contact with blood or other potentially infectious body fluids. The public record on OSHA's proposed regulation is one of the largest in the agency's history. Over 4000 pages of testimony resulted from public hearings that were held in five cities and over 3000 written comments were received, including a number of comments and testimony from representatives of the nursing home industry. All comments are taken into consideration and the final regulation will be based on the public record as well as a regulatory analysis of the economic feasibility of the various requirements.
Until a final standard addressing occupational exposure to bloodborne pathogens is promulgated, OSHA is enforcing a number of current standards which are applicable to the hazards of bloodborne disease. In addition to several general industry standards, we are enforcing the general duty clause, section 5(a)(1) of the Occupational Safety and Health Act of 1970 (OSH Act), which requires an employer to "furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." These standards are summarized in OSHA Instruction CPL 2-2.44B, "Enforcement Procedures for Occupational Exposure to Hepatitis B Virus and Human Immunodeficiency Virus."
OSHA has traditionally required that employers bear the cost of protecting their employees against hazards encountered in the workplace. It is the agency's interpretation of section 5(a)(1) that the hepatitis B vaccine is a feasible method of preventing contraction of the disease. Since OSHA's intent is to remove, as much as possible, obstacles to the employee's acceptance of the vaccine, OSHA requires that the cost of the vaccine be borne by the employer.
Furthermore, OSHA requirements are based on the infection control concept of Universal Precautions. This control practice requires that all human blood and certain human body fluids be treated as if known to be infectious for HIV and/or HBV, regardless of the perceived "low risk" of a patient or patient population.
Regarding the categories of employees who should be offered the vaccine, OSHA requires that it be offered to all employees whose job involves the risk of exposure to blood or other potentially infectious materials, regardless of the facility's infection control policies and procedures. At the same time, please bear in mind that section 18 of the OSH Act permits States to assume responsibility for their own occupational safety and health programs under State plans which are approved and monitored by Federal OSHA. Twenty-five (25) States and territories are operating under such plans and are responsible for the enforcement of safety and health standards as well as the investigation of workplace conditions in these states. Minnesota is one of the States operating under such a plan. Although all plan States are required to adopt standards that are at least as effective as the Federal standards, Minnesota's current enforcement of OSHA Instruction CPL 2-2.44B may differ somewhat from Federal enforcement. Therefore, if you wish to pursue this matter further with the State of Minnesota, you may contact:
Ken Peterson, Commissioner Minnesota Department of Labor and Industry 443 Lafayette Road St. Paul, Minnesota 55155 Telephone: (612) 296-2342
We hope this information is helpful to you and your constituents and, again, apologize for the unfortunate delay in this response. Please feel free to contact us again if we can be of further assistance.
Gerard F. Scannell