Marcella Nursing & Rehabilitation Center, Cinnaminson Nursing Center, Geriatric & Medical Services

Plain-English summary

OSHA cited three related New Jersey nursing facilities for using traditional syringes rather than safety syringes, and cited Marcella for the location of containers used to discard disposable razors. The judge found that OSHA's prior guidance did not give the facilities fair notice that safety syringes were required before a 1999 enforcement directive changed the agency's approach. The judge also found Marcella's placement of sharps containers on medication carts reasonable and rejected OSHA's proposed mobile-container practice. All four remaining citation items were vacated.

Decision snapshot

• Cited standard(s): 29 C.F.R. §§ 1910.1030(d)(2)(i) and 1910.1030(d)(4)(iii)(A)(1)(i)
• Outcome: All remaining bloodborne-pathogen citation items against the three nursing facilities vacated
• Key point: OSHA had not provided fair notice that safety syringes were mandatory under its earlier guidance, and the razor-disposal practice did not violate the cited standard.

Full text (OSHRC public release)

                           United States of America
          OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                      1120 20th Street, N.W., Ninth Floor
                         Washington, DC 20036-3419

SECRETARY OF LABOR, :
:
Complainant, :
:
v. : OSHRC DOCKET NOS. 00-0918,
: 00-0921 & 00-0922
MARCELLA NURSING & :
REHABILITATION CENTER, :
CINNAMINSON NURSING CENTER, :
GERIATRIC & MEDICAL SERVICES, :
:
Respondents. :

Appearances:

            Marc G. Sheris, Esquire                         John R. Merinar, Jr., Esquire
            New York, New York                              David E. Dick, Esquire
            For the Secretary.                              Clarksburg, West Virginia
                                                            For the Respondents.

Before: Chief Judge Irving Sommer

                                 DECISION AND ORDER

    This proceeding is before the Occupational Safety and Health Review Commission (“the

Commission”) pursuant to section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C.
§ 651 et seq. (“the Act”). The Occupational Safety and Health Administration (“OSHA”) conducted
inspections of the three Respondents in this matter (hereafter “Marcella,” “Cinnaminson” and
“Geriatric,” respectively), in late 1999 and early 2000. After the inspections, citations were issued
to Marcella, Cinnaminson and Geriatric. OSHA entered into an informal settlement agreement with
each facility, resulting in the resolution of all of the citation items except for two as to Marcella and
one each as to Cinnaminson and Geriatric.1 The facilities contested the remaining citations items,

    1
    Copies of the subject citations were received in evidence as C-1, C-2 and C-3, and appended

to each citation is a copy of the informal settlement agreement relating to that facility. The settled
(continued...)
 2

which allege violations of OSHA’s blood borne pathogens standard. Specifically, the two remaining
items as to Marcella allege serious violations of 29 C.F.R. 1910.1030(d)(2)(i) and 29 C.F.R.
1910.1030(d)(4)(iii)(A)(1)(i), while the remaining items as to Cinnaminson and Geriatric allege
serious violations of 29 C.F.R. 1910.1030(d)(2)(i). The hearing in this matter was held on January
16 and 17, 2001.2 The parties have submitted post-hearing briefs.
Background
Marcella, Cinnaminson and Geriatric are three nursing homes that are located in the cities
of Burlington, Cinnaminson and Pennsauken, New Jersey, respectively. The parent company of the
homes is Genesis Health Ventures (“Genesis”), which has approximately 30,000 employees and
operates homes in 15 states, in the eastern United States, through its subsidiary Genesis ElderCare.
Genesis sets safety policy for its nursing homes through a safety and loss control department.
On October 4, 1999, Genesis announced publicly its decision to convert from using
traditional syringes to safety syringes in its nursing homes in order to provide employees a safer
work environment. The conversion process involved evaluating safety syringe options, selecting
appropriate equipment, and then purchasing and distributing the new equipment and implementing
its use. The actual conversion from traditional to safety syringes took place from March 6, 2000 until
June 6, 2000, at which time the conversion was complete.
OSHA inspected Cinnaminson from December 10, 1999 through April 21, 2000, Geriatric
from December 22, 1999 through April 21, 2000, and Marcella from March 30 through April 20,
2000. During the inspections, OSHA discovered that employees in all three facilities used traditional
syringes rather than safety syringes to give intramuscular injections. OSHA therefore cited all three
facilities pursuant to 29 C.F.R. 1910.1030(d)(2)(i), which provides as follows:
Engineering and work practice controls shall be used to eliminate or minimize
employee exposure. Where occupational exposure remains after institution of these
controls, personal protective equipment shall also be used.

   1
    (...continued)

items were also read into the record. (Tr. 6-7).
2
These three cases were consolidated pursuant to Commission Rule 9, 29 C.F.R. § 2200.9.
 3

   OSHA also discovered that Marcella’s employees were shaving nursing home residents with

disposable razors and that “sharps containers” for disposing of the razors were not located in the
immediate vicinity of residents’ rooms. OSHA consequently cited Marcella pursuant to 29 C.F.R.
1910.1030(d)(4)(iii)(A)(1)(i), which provides as follows:
Contaminated sharps shall be discarded immediately or as soon as feasible in
containers that are: (i) Closable.
The Parties’ Positions as to 29 C.F.R. 1910.1030(d)(2)(i)
The Secretary’s position is that the blood borne pathogens standard, which was issued on
December 6, 1991, has always required use of syringes with safety features. She points out that the
definition of the term “engineering controls” gives as examples both sharps disposal containers and
self-sheathing needles. See 29 C.F.R. 1910.1030(b). She also points out that safety syringes have
been available since the late 1980’s and that both of the directives OSHA has issued with respect
to the standard have addressed the use of such syringes. Finally, she points to the wealth of
information that has been available to the industry in this regard, including OSHA publications and
information provided by manufacturers of safer needle devices. The Secretary concludes that
Respondents had fair notice of the requirement to use safety syringes and that the Genesis plan to
convert to such syringes establishes Respondents’ actual knowledge of the requirement.
Respondents’ position is that they did not violate the standard because its terms do not
require the use of safety syringes and they were doing what the standard requires. Respondents note
that they used sharps containers and universal precautions and that in the three years preceding the
inspections Marcella was the only facility of the three that had had a needle stick incident; further,
Marcella had had only one such incident. Respondents also note that OSHA’s first directive, issued
in 1992, made it plain that while OSHA preferred the use of safety syringes it did not require their
use; that OSHA’s interpretive letters issued after 1992 essentially repeated the language of the first
directive; and that it was not until the second directive of November 5, 1999, that OSHA specifically
required and began to enforce the use of safety syringes. Respondents contend that OSHA’s shift
in policy was an unlawful bypass of the rule-making procedures set forth in the Act. Respondents
further contend that the Needlestick Safety and Prevention Act of 2000, which clearly requires
employers to utilize safety syringes, supports its position that the OSHA standard was unenforceably
vague as to the use of safety syringes.
 4

        Whether Respondents were in violation of 29 C.F.R. 1910.1030(d)(2)(i)
   It is undisputed that at the time of the inspections, the cited facilities did not yet have

syringes with safety devices for giving intramuscular injections. As indicated above, Respondents
contend that they did not have fair notice of OSHA’s change in policy with respect to what the
standard requires and that the standard as applied was unenforceably vague. Commission precedent
is well settled that the cited employer must have “a fair and reasonable warning” of the required
conduct and that “a broad regulation must be interpreted in the light of the conduct to which it is
being applied.” See American Bridge Co., 17 BNA OSHC 1169, 1172 (No. 92-0959, 1995), and
cases cited therein. See also Dravo Corp., 7 BNA OSHC 2095, 2098 (No. 16317, 1980), aff’d 639
F.2d 772 (3d Cir. 1980), and cases cited therein. Whether an employer has had fair notice is
determined not only from the language of the standard itself, but also from the facts of the particular
case. Faultless Div., Bliss & Laughlin Indus., Inc. v. Secretary of Labor, 674 F.2d 1177, 1185 (7th
Cir. 1982). A standard is not vague merely because applying it requires the exercise of judgment.
Dravo Corp., 7 BNA OSHC at 2098. Moreover, a vague standard “may be cured by authoritative
judicial or administrative interpretations which clarify obscurities or resolve ambiguities.” Diebold,
Inc. v. Marshall, 585 F.2d 1327, 1338 (6th Cir. 1978). Ultimately, the issue is “whether the standard
is so indefinite that men of common intelligence must necessarily guess at its meaning and differ
as to its application.” Allis-Chalmers Corp. v. OSHRC, 542 F.2d 27, 30 (7th Cir. 1976).
The cited standard does not specify the engineering controls employers must use to eliminate
or minimize employee exposure, but, as the Secretary notes, the definition of “engineering controls”
provides as examples both sharps disposal containers and self-sheathing needles. OSHA’s first
directive in regard to the blood borne pathogens standard, CPL 2-2.44C, issued in 1992, states in
relevant part as follows:
Engineering Controls and Work Practices - (d)(2). This section requires the
employer to institute engineering and work practice controls as the primary means
of eliminating or minimizing employee exposure. In those circumstances in which
occupational exposure remains after institution of engineering and work practice
controls, employers must provide, and ensure that employees use, personal protective
equipment as additional protection.
INSPECTION GUIDELINES. The compliance officer shall determine through
interviews or observation of work involving the use of needles whether proper
 5

   engineering controls and work practices, such as immediate disposal of used needles
   into a sharps container, are used.
   -      Most preferable is the use of devices which offer an alternative to
          needles being used to perform the procedure. Examples of such
          devices include stopcocks (on-off switch), needle-protected systems
          or needleless systems which can be used in place of open needles to
          connect intravenous lines. Other devices which are integral to the
          syringe, such as self-sheathing needles, allow both hands to remain
          behind the needle and require very little manipulation to isolate the
          needle safely....
   CITATION GUIDELINES. Section (d)(2) shall be cited for failure to use
   engineering and work practice controls....
   -      Citations shall be issued if engineering or work practice controls are
          not used to eliminate or minimize employee exposure.
   -      While employers do not automatically have to institute the most
          sophisticated engineering controls (e.g., needleless IV connectors,
          self-sheathing needles), it is the employer’s responsibility to evaluate
          the effectiveness of existing controls and to review the feasibility of
          instituting more advanced engineering controls.

See C-4, pp. 14-16.
In 1993, OSHA issued R-17, a standards interpretation and compliance letter setting out the
most frequently asked questions about the standard. On page 9, R-17 provides as follows:
Engineering Controls
Q. What are engineering controls?
A. The term, “Engineering Controls,” refers to controls (e.g., sharps disposal
containers, needleless systems, self-sheathing needles) that isolate or remove the
bloodborne pathogens hazards from the workplace.
Q. What are some examples of safer devices or alternatives that could be used
in lieu of exposed needles?
A. Some examples of such devices or alternatives include stop cocks (on-off switch),
needleless systems, needle-protected systems, and “selfsheathing” needles.
Q. Are employers required to provide these needle devices?
A. The standard requires that engineering and work practice controls be used to
eliminate or minimize employee exposure. While employers do not automatically
have to institute the most sophisticated controls (such as the ones listed in the above
question), it is the employer’s responsibility to evaluate the effectiveness of existing
controls and review the feasibility of instituting more advanced engineering controls.
 6

   In October 1997, OSHA issued C-8, entitled “Safer Needle Devices: Protecting Health Care

Workers.” C-8 discusses the risk of needle stick injuries to health care workers and the fact that most
needle sticks can be prevented by using safer needle devices. However, on page 12, C-8 states:
Q What is OSHA’s position on safer needle devices?
A Section (d)(2)(i) of the Bloodborne Pathogen Standard requires the use of
engineering and work practice controls to eliminate or minimize employee
exposure.
CPL-2.44C states that “Section (d)(2) shall be cited for failure to use
engineering/work practice controls.”
CPL 2-2.44C also states that:
“Most preferable is the use of devices which offer an alternative to needles being
used to perform the procedure. Examples of such devices include stopcocks (on-off
switch), needle-protected systems or needleless systems which can be used in place
of open needles to connect intravenous lines. Other devices which are integral to the
syringe, such as self-sheathing needles, allow both hands to remain behind the needle
and require very little manipulation to isolate the needle safely.” In addition, “While
employers do not automatically have to institute the most sophisticated engineering
controls (e.g., needleless IV connectors, self-sheathing needles), it is the employer’s
responsibility to evaluate the effectiveness of existing controls and to review the
feasibility of instituting more advanced engineering controls.”
OSHA issued two more standards interpretation and compliance letters concerning the blood
borne pathogens standard, one on February 4, 1998 (R-3) and one on October 5, 1998 (R-4). R-3
contains the following paragraph, and R-4 contains a nearly identical paragraph:
OSHA’s Bloodborne Pathogens standard, 29 CFR 1910.1030, has a section that
requires an employer to evaluate medical devices that may eliminate or minimize
employee exposure. In accordance with this section, the employer is not
automatically required to institute the most sophisticated engineering controls, but
it is the employer’s responsibility to evaluate existing controls and to review the
feasibility of instituting more advanced engineering controls. This section of the
standard is performance oriented. That is, OSHA does not mandate what products
must be evaluated or purchased. The standard provides the necessary flexibility for
the employer to choose the most suitable products to fit the needs of their facility.
OSHA requires that employers examine and maintain or replace on a regular
schedule, engineering controls to ensure their effectiveness.
I agree with Respondents that a fair reading of the cited standard together with the 1993
directive and the subsequent interpretive letters leads reasonably to the conclusion that while OSHA
preferred the use of safety syringes, it did not automatically require their use; rather, employers
were to evaluate the effectiveness of existing controls and to review the feasibility of instituting
 7

more advanced controls. I also agree with Respondents that the 1999 directive was a significant
departure from the 1993 directive. The 1999 directive states, in relevant part, as follows:
Engineering Controls and Work Practices - Paragraph (d)(2)(i). This paragraph
requires the employer to institute engineering and work practice controls as the
primary means of eliminating or minimizing employee exposure. It conforms to
OSHA’s traditional adherence to a hierarchy of controls....OSHA has always
required employers to use engineering and work practice controls. Thus the employer
must use engineering and work practice controls that eliminate occupational
exposure or reduce it to the lowest feasible extent. It is OSHA’s view that preventing
exposures requires a comprehensive program, including engineering controls (e.g.,
needleless devices, shielded needle devices, and plastic capillary tubes) and proper
work practices (e.g., no-hands procedures in handling contaminated sharps,
eliminating hand-to-hand instrument passing in the operating room). If engineering
and work practice controls do not eliminate exposure, the use of personal protective
equipment (e.g., eye protection) is required.
The employer must also make changes to its Exposure Control Plan to include these
engineering controls....Safer medical devices are generally of two types: needleless
systems (e.g., needleless IV connectors) and sharps with engineered sharps injury
protection (e.g., self-sheathing needles on syringes). Substitution methods such as
the use of plastic (instead of glass) capillary tubes are also available. Appendix B
(Safety Evaluation Forms) and Appendix C (Web Site Resource List) have been
provided to assist in the evaluation of these devices. OSHA encourages employers
to involve employees in the selection of effective engineering controls to improve
employee acceptance of the newer devices and to improve the quality of the selection
process.
NOTE: Where engineering controls will reduce employee exposure either by
removing, eliminating or isolating the hazard, they must be used. Significant
improvements in technology are most evident in the growing market of safer medical
devices that minimize, control or prevent exposure incidents. OSHA does not
advocate the use of one particular device over another....
OSHA has changed the language of the compliance instruction to clarify the
agency’s position regarding the use of engineering and work practice controls in light
of the increased use and acknowledged feasibility of effective engineering controls,
as discussed in the Record Summary....Further, the preamble to the standard supports
this change in the instruction. It states that the exposure control plan is to be updated
to reflect new technology to control occupational exposure to bloodborne
pathogens....
See C-5, pp. 16-18.
A conclusion that OSHA did not automatically require the use of safety syringes is also
supported by how OSHA enforced the cited standard before and after November 5, 1999, the
 8

effective date of the new directive. Mark Santoleri, the senior manager of safety and loss control for
Genesis, testified at the hearing that he had utilized OSHA’s data base to research the citation
history of 29 C.F.R. 1910.1030(d)(2)(i) both nationally and in Region II, where Respondents are
located; his findings are summarized in R-6, which was received in evidence without any objection
on the Secretary’s part. (Tr. 210). R-6 shows that from March 6, 1992, until November 4, 1999, in
Region II, OSHA inspected 465 nursing homes and issued 266 citations pursuant to the blood borne
pathogens standard; only one citation was for a violation of 29 C.F.R. 1910.1030(d)(2)(i), and
Santoleri testified that with the assistance of counsel he had learned that that citation was for the
failure of a nursing home in Lake Placid, New York to have a sharps container in its laundry. (Tr.
211-12). R-6 further shows that during that same period, OSHA inspected 4,807 nursing homes
nationwide and issued 2,783 citations pursuant to the blood borne pathogens standard. Only nine
were for violations of 29 C.F.R. 1910.1030(d)(2)(i), and Santoleri testified that he had been able to
verify that the latest five citations, which were issued in 1998 and 1999, all involved sharps
containers. (Tr. 213-14). Santoleri said that before November 5, 1999, to his knowledge, only one
citation had been issued to a nursing home nationwide under the subject standard for not using
“safety sharps.” He also said that that citation was later deleted in an informal conference. (Tr. 214).
In contrast to the above, R-6 shows that from November 5, 1999, until January 18, 2001,
OSHA inspected 184 nursing homes in Region II and issued 144 citations pursuant to the blood
borne pathogens standard; 20 of these were for violations of 1910.1030(d)(2)(i), and Santoleri
assumed that all 20 were for failure to have safety sharps as the new directive instructed OSHA
compliance officers to cite violations involving sharps containers under 1910.1030(d)(4)(iii)(A). (Tr.
212-13). See also C-5, p. 20. R-6 also shows that for this same period, OSHA inspected 1,543
nursing homes nationwide and issued 944 citations pursuant to the blood borne pathogens standard;
105 of these were for violations of 1910.1030(d)(2)(i), and Santoleri again assumed that all 105 were
for failure to have safety sharps.3 (Tr. 215-16).

   3
     Santoleri said that from 1992, when the standard went into effect, until November 1999,

when the new directive was issued, OSHA had conducted 67 inspections of Genesis nursing homes
and had issued no citations for not using safety syringes. He also said that from November 1999
until June 2000, OSHA had conducted 45 inspections of Genesis nursing homes and had issued five
(continued...)
 9

    In addition to the foregoing, the OSHA personnel who conducted the inspections in this case

both testified they had not previously issued citations for failure to use safety syringes. Laura Spina,
the OSHA industrial hygienist (“IH”) who inspected Marcella, testified that Marcella was the first
nursing home she had cited in this regard. She said she had been unaware of the safety syringe
requirement until February 2000, when she was trained in the new directive, and that although she
had inspected two other nursing homes in December 1999 she did not know at that time to look for
safety syringe violations.4 She also said that during her training she was told that the failure to have
safety syringes would be cited without exception. (Tr. 31-35). Timothy Louden, the OSHA IH who
inspected Cinnaminson and Geriatric, testified that Cinnaminson was the first nursing home where
he had asked about whether safety syringes were used. He said that although he was trained in the
new directive in February 2000, his supervisor discussed it with him in December before his visit
to Cinnaminson. He also said that while he had inspected two other nursing homes previously, one
in late November 1999, the safety syringe issue was not something he had looked into.5 (Tr. 67-70).
As noted above, Respondents contend that the Needlestick Safety and Prevention Act, Pub.
L. No. 106-430, 114 Stat. 1901 (2000) (“the NSPA”), supports its position that the cited standard
was unenforceably vague as to the use of safety syringes. The NSPA, which was signed into law on
November 6, 2000, required OSHA to make various revisions to the blood borne pathogens
standard. One of these was to modify the definition of “engineering controls” to include as examples
“safer medical devices, such as sharps with engineered sharps injury protections and needleless
systems.” See 66 Fed. Reg. 5319 (2001). In its Final Rule making the required revisions, OSHA

    3
     (...continued)

citations for not using safety syringes; of these, three were the subject citations, and the other two,
issued by a Pennsylvania OSHA area office, were deleted in an informal conference. (Tr. 208-10).
4
IH Spina indicated that before her training, she had not even been aware that there were
syringes with safety features. (Tr. 34).
5
The nursing home Louden inspected in November 1999 was also a Genesis facility. (Tr. 67).
 10

itself noted that this particular change “clarifies that safer medical devices are considered to be
engineering controls under the standard.”6 Id. OSHA further noted, on the very same page, that:
The expanded definitions reflect the intent of Congress to have OSHA amend the
BBP standard to clarify
*** the direction already provided by OSHA in its Compliance
Directive; namely, that employers who have employees with
occupational exposure to bloodborne pathogens must consider and,
where appropriate, use effective engineering controls, including safer
medical devices, in order to reduce the risk of injury from needle
sticks and from other sharp medical instruments *** (Ex. 5-3).
Thus, the revised definitions do not reflect any new requirements being placed on
employers with regard to protecting workers from sharps injuries, but are meant only
to clarify the original standard, and to reflect the development of new safer medical
devices since that time.
In my view, it is significant that OSHA used the word “clarify” three times in two successive
paragraphs to explain the revision to the term “engineering controls.” I also consider it significant
that the two OSHA officials the Secretary presented in support of her position both agreed the NSPA
was the first federal law specifically requiring employers to use safer medical devices. (Tr. 114-15;
142). These witnesses also indicated that safety syringes have been available since the late 1980’s,
that the intent has always been that employers would use both safety syringes and sharps disposal
containers, and that a sharps container, although an engineering control, does not prevent a needle
stick injury during the actual injection.7 (Tr. 91; 97; 112; 121-22; 126-28; 133-34). It is clear that
sharps containers do not protect against needle sticks during the actual giving of injections.
However, the issue here is not what OSHA intended or the fact that Respondents knew of the
existence of safety syringes, but, rather, what OSHA actually said in the standard, directives and
interpretive letters and whether Respondents had fair notice of what was required. Based on the
evidence of record and the circumstances of this case, I conclude that Respondents did not have fair

   6
   The requirements set out in the Final Rule, published in the Federal Register on January 18,

2001, went into effect on April 18, 2001. 66 Fed. Reg. 5318 (2001).
7
One witness said the “expectation” has always been that safety syringes are to be used,
while the other stated that use of such syringes has always been “required.” (Tr. 112; 126-28; 133-
34).
 11

notice that they were required to use safety syringes. I also conclude that the 1999 directive and
OSHA’s ensuing enforcement of the standard were an abrupt departure from the agency’s prior
policy such that Respondents were not in violation of the standard. This conclusion is bolstered by
the cases cited by Respondents, in which Commission decisions upholding the citations were
reversed because, according to the Circuit Courts, the employers had not had fair notice of the
required conduct. F.A. Grey, Inc. v. OSHRC, 785 F.2d (1st Cir. 1986); Kropp Forge Co. v. Secretary
of Labor, 657 F.2d 119 (7th Cir. 1981); Bethlehem Steel Corp. v. OSHRC, 573 F.2d 157 (3d Cir.
1978); Hoffman Constr. Co. v. OSHRC, 546 F.2d 281 (9th Cir. 1976); Langer Roofing & Sheet
Metal, Inc. v. Secretary of Labor, 524 F.2d 1337 (7th Cir. 1975); Cape & Vineyard Div. of New
Bedford Gas & Edison Light Co. v. OSHRC, 512 F.2d 1148 (1st Cir. 1975).
My conclusion that Respondents did not violate the cited standard is further bolstered by the
actions Genesis took with respect to the issue of employee exposure to blood borne pathogens and
the results of those actions. Pursuant to the testimony of the IH’s who conducted the inspections,
Marcella was the only facility of the three that had had a needle stick incident in the prior three
years, and Marcella had had only one such incident. (Tr. 37; 72). The IH’s also testified that all three
facilities were using sharps containers to dispose of used sharps and that they were also using
universal precautions such as “red bagging” waste materials. Both IH’s indicated that they were
generally impressed with the facilities. (Tr. 35-36; 71-72).
In addition, Mark Santoleri testified about the steps Genesis took to convert to safety
syringes. C-6, his memo to management recommending the transition, was dated July 9, 1999.8 He
then made a presentation to the company’s safety committee, and he later made presentations to
small groups of clinical senior management, which formed teams to oversee the selection and
evaluation of products. Vendors were chosen and products were selected for evaluation, and, at this
point, Genesis issued R-16, the press release of October 4, 1999, announcing its decision. The next
step was evaluation and selection, which the teams performed by “piloting” products in their
regions. At the end of this phase in December 1999, Genesis contacted the selected vendors and
developed a plan to ensure the timely distribution of the products in its 340 operations. Santoleri

    8
     Although C-6 refers primarily to safety syringes, Santoleri testified that the conversion

actually included all “sharps.” (Tr. 216)
 12

identified R-7 through R-15 as the various documents Genesis generated during the conversion. He
said that the transition cost about $265,000, that it was completed by June 6, 2000, and that Genesis
was the first long-term care company to make the transition to safety syringes.9 He also said that the
decision to make the transition was based on a conclusion that “it was time” to do so.10 (Tr. 216-21;
224-26).
On the basis of the evidence of record, and for all of the reasons set out above, Respondents
were not in violation of the cited standard. The alleged violations of 29 C.F.R. 1910.1030(d)(2)(i)
are accordingly VACATED.
Whether Marcella was in violation of 29 C.F.R. 1910.1030(d)(4)(iii)(A)(1)(i)
As indicated supra, the basis of this item was OSHA’s determination that the disposable
plastic razors Marcella employees used to shave residents were not disposed of in sharps containers
“immediately or as soon as feasible.” Pursuant to the record, Marcella is a two-floor facility with
a nurses’ station at a central point on each floor. Although the licensed professional nurses
(“LPN’s”) sometimes shave the residents, the certified nursing assistants (“CNA’s”) usually do this
work, generally in the residents’ rooms but occasionally in the shower rooms on the floors. Sharps
disposal containers are located on the “med carts” the LPN’s utilize for dispensing medications, and
the med carts, when not in use on the floors, are at the nurses’ stations. Thus, the med carts might
not always be near the areas where the residents are shaved, and employees at times might have to
walk some distance to dispose of the used razors. (Tr. 13-15; 165-69; 177; 244).
IH Spina testified she learned employees walked a minimum of 10 to 15 feet and a maximum
of 120 feet to dispose of used razors at the nurses’ stations; she also learned residents are sometimes

    9
     Santoleri stated that the cited facilities already had safety lancets and needleless IV systems

in place at the time of the inspections. (Tr. 216). In addition, his statement that Genesis was the first
long-term health care facility to convert to safety syringes is supported by one of the above-noted
OSHA officials, who agreed that of the health care facility inspections she was aware of, safety
syringes were not being used. (Tr. 132).
10
Santoleri agreed that the decision was influenced by the fact that several states in which
Genesis operated had proposed legislation requiring the use of safety syringes in health care
facilities and the fact that New Jersey had already passed such a law. (Tr. 236-38).
 13

nicked during shaving, which can result in blood on a razor.11 Spina said an employee carrying a
used razor could be cut on the way to a sharps disposal container. She explained that an employee
could be distracted or could run into another employee or a resident while carrying a razor. She
further explained that some residents in nursing homes can be combative, which could also cause
an employee to be cut by a used razor. Spina opined that carrying a razor even 1 foot outside of a
resident’s room was a hazard and a violation of the standard, that the hazard could be abated by
employees taking mobile sharps containers with them into the residents’ rooms, and that a sharps
container could also be put in the shower room of each floor. Spina conceded that she had never
heard of an employee being cut by a razor in the manner she described. (Tr. 15-25; 38).
Jo Bohony, Marcella’s director of nursing, testified that in her opinion, mobile sharps
containers were a very bad solution. She explained that taking anything from one room to another
created an infection control problem and that employees would have to be trained to clean the
mobile containers between rooms.12 She further explained that monitoring the mobile sharps
containers would be another issue, since sharps containers have to be emptied when full, and the
facility would also have to keep track of where all the mobile containers were so that demented
residents or visitors such as children could not get into them. Bohony believed that the facility’s
practice of having the sharps containers on the med carts was much better because the LPN’s
monitored them for overfilling and always knew where they were. Bohony identified R-1 as the type
of razor used at Marcella. She said that employees were instructed to replace the plastic guards on
used razors before leaving residents’ rooms and to immediately take the razors to a sharps container;
she also said that to her knowledge, employees followed those instructions. Bohony was aware of
the provision in the standard prohibiting the recapping of contaminated sharps. (Tr. 167-71; 176-77).
Mark Santoleri testified that he agreed with Bohony’s statements about cross-contamination
and tampering if mobile sharps containers were used. He further testified that his biggest concern

   11
     IH Spina spoke to Susan Stow, Marcella’s administrator, to Jo Bohony, the director of

nursing, and to an employee who job included shaving the residents. Spina said that this latter
employee told her that she once had to walk 30 feet to dispose of a used razor. Spina also said that
the 120-foot distance, which was the distance from one of the nurses’ stations to the room farthest
away, was measured by the director of maintenance. (Tr. 14-17).
12
As an example, Bohony said linens cannot be taken from one room to another. (Tr. 168).
 14

about this citation item was that it would be a massive transition for the company if all Genesis
facilities were required to use mobile sharps containers. Santoleri said that one other Genesis
facility, located in Pennsylvania, had been cited in this regard, and that that citation, issued in 1999
or 2000, was deleted in an informal settlement. He also said he had done a hazard assessment of an
employee walking 30 feet to dispose of a used razor and that, in his opinion, he did not feel the
situation was a danger to employees or residents. Santoleri noted that in his entire professional
career, he had never heard of an employee being injured while carrying a razor to a sharps container.
(Tr. 231-34; 243).
In view of the evidence of record, I conclude that Marcella was not in violation of 29 C.F.R.
1910.1030(d)(4)(iii)(A)(1)(i), the cited standard. First, I found patently unreasonable IH Spina’s
opinion that carrying a used razor even 1 foot outside of a resident’s room was a violation, and she
and Santoleri both testified that they had never heard of an employee being injured in this manner.
Second, Bohony’s concerns about mobile sharps containers were persuasive and supported by the
testimony of Santoleri, and I agree with her opinion that Marcella’s practice of having the containers
on the med carts is the sounder one. Third, I also found persuasive Santoleri’s testimony about his
assessment of the hazard of carrying a used razor 30 feet to dispose of it, and his concerns about
Genesis having to institute the use of mobile sharps containers in all its facilities were well founded.
In support of her position that Marcella violated the standard, the Secretary notes Bohony’s
testimony that employees were instructed to replace the guards on used razors before leaving the
residents’ rooms and her agreement that 29 C.F.R. 1910.1030(d)(2)(vii)(A) prohibits the recapping
of contaminated sharps. (Tr. 170-71; 176). The Secretary also notes the testimony of an OSHA
official who stated that putting a guard back on a used razor was recapping a sharp and a violation
of the standard. (Tr. 161-63). It would appear that replacing a guard on a used razor would in fact
violate the terms of 29 C.F.R. 1910.1030(d)(2)(vii)(A). However, as Marcella points out, the facility
was not cited in this regard, but, rather, with respect to disposing of used razors in sharps containers.
Moreover, the OSHA official herself agreed that keeping track of sharps containers was important
so as to avoid the hazards of overfilling and tampering. (Tr. 158-59). Regardless, for the reasons set
out above, I conclude Marcella did not violate the cited standard. This item is therefore VACATED.
Conclusions of Law
 15

   1. Respondents, Marcella, Cinnaminson and Geriatric, are engaged in a business affecting

commerce and have employees within the meaning of section 3(5) of the Act. The Commission has
jurisdiction of the parties and of the subject matter of the proceeding.
1. Respondents Marcella, Cinnaminson and Geriatric were not in violation of 29 C.F.R.
1910.1030(d)(2)(i).
3. Respondent Marcella was not in violation of 29 C.F.R. 1910.1030(d)(4)(iii)(A)(1)(i).
Order
On the basis of the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:
1. In Docket No. 00-0918 (Marcella), Items 1 and 2 of Serious Citation 1 are VACATED.
2. In Docket No. 00-0921 (Cinnaminson), Item 2 of Serious Citation 1 is VACATED.
3. In Docket No. 00-0922 (Geriatric), Item 2 of Serious Citation 1 is VACATED.

                                                                  /s/
                                                   Irving Sommer
                                                   Chief Judge

Date: 17 May 2001