Waldon Health Care Center & ARA Woodlake Nursing Home
Hepatitis B citations vacated
Apply this precedent to your situation
This is citable Commission precedent from 1993, and it may have been appealed since. Ezel checks how it stands today and answers your situation, with citations.
Plain-English summary
ARA Living Centers operated the Waldon Health Care Center in Louisiana and the Woodlake Nursing Home in Texas. OSHA alleged that nurses and nursing assistants faced hepatitis B transmission through contact with blood or other bodily fluids and proposed offering the vaccine to exposed employees before any exposure. The Commission disagreed with the ALJ's conclusion that the nursing-home industry did not recognize the hazard, finding that the risk of hepatitis B transmission was recognized. It nevertheless vacated the general-duty citations because ARA's program offered immune globulin and the vaccine after a needle stick or other qualifying exposure, a treatment shown to be about as effective as pre-exposure vaccination. The Secretary also failed to establish that the significant cost of prophylactic vaccination was economically feasible for these facilities. The Commission therefore affirmed the ALJ's vacatur as modified.
Decision snapshot
- Cited standard(s): 29 U.S.C. § 654(a)(1); 29 C.F.R. §§ 1910.132(a) and 1910.145(f)(8)
- Outcome: Hepatitis B general-duty citations vacated, with no penalties.
- Key point: Under the general duty clause, the Secretary must prove that the proposed abatement will materially reduce the hazard beyond measures the employer already uses.
Full text (OSHRC public release)
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET NW
4TH FLOOR
WASHINGTON. DC 20006 1246
FAX
. cofd (202) 634-4008
. FTS (202) 634-4008
SECRETAJW OF LABOR, ..
Complainant,
v. OSHRC Docket No. 89-2804
WALDON HEALTH CARE CENTER,
Respondent.
SECRETARY OF LABOR,
Complainant,
.
v. .. OSHRC Docket No. 89-3097
A&4 WOODLAKE NURSING HOME,
Respondent.
DECISION
BEFORE: FOULKE, Chairman; WISEMAN and MONTOYA, Commissioners.
BY THE COMMISSION:
ARA Living Centers (“ARA”) operates approximately 230 nursing homes in thirteen
states. On May 10, 1989, OSHA conducted an inspection of ARA’s Waldon Healthcare
Center located in Kenner, Louisiana. A similar inspection of the ARA Woodlake Nursing
Home in Clute, Texas, was conducted on August 16, 1989. As a result of these inspections,
both facilities were issued citations alleging a violation of section 5(a)( 1) of the Occupational
Safety and Health Act, 29 U.S.C. $5 651-678 (“the Act”) on the grounds that nurses and
nursing assistants throughout the facilities were exposed to the hazard of transmission of the
Hepatitis B virus (“HBV”) through possible direct contact with blood or other bodily fluids.
2
The Secretary listed the offering of the HBV vaccine to all such employees, at the
employers’ expense, as a feasible means of abatement.’
The cases were consolidated. A hearing was held before Judge Louis G. LaVecchia,
who vacated the citations on the grounds that, although HBV is a recognized hazard in some
parts of the health care industry, the Secretary failed to establish that the risk of contracting
HBV is a recognized hazard in the nursing home industry. We find that the judge erred in
finding that the hazard of HBV was not recognized by the industry. However, we conclude
that the citations should be vacated because the Secretary failed to establish that the hazard
of HBV transmission at ARA’s facilities would be materially reduced by requiring the HBV
vaccine to be offered to employees before any exposure to HBV.*
I. HEPATITIS B AND ITS
c TRANSMISSION
A. Transmission
Hepatitis means inflammation of the liver. Any infectious or chemical agent that will
cause an inflammation of the liver can produce hepatitis. Viruses that cause hepatitis are
given letters. Hepatitis B, a virus primarily found in blood and bodily fluids, is transmitted
when a susceptible host comes in contact with blood or infectious bodily fluid. The fatality
rate for HBV is less than 1 percent and most patients recover satisfactorily.
HBV can be transmitted in several ways: parenteral (e.g., direct inoculation through
the skin), through mucous membranes (blood contamination of the eye or mouth), sexual,
and perinatal (infected mother to newborn infant).
’ Following the issuance of these citations, the Secretary promulgated, at 29 C.F.R. 6 1910.1030, a new
standard requiring employers to make avallabie the HBV vaccine to all employees who may be exposed to
blood or other infectious bodily flurds. -56Fed. Reg. 64,004 (Dec. 6, 1991). Although, in the future, that new
regulation would supersede the applicability of the general duty clause, International Union, UAW v. General
Dynamics Land Systems Div., 815 F.Zd 1570 (D.C. Cir.), cert. denied, 484 U.S. 976 (1987), this case arose prior
to the effective date of the standard and is properly considered under section 5(a)(l) of the Act.
- Because this case arose under the general duty clause, we must consider whether the Secretary established
the violation by meeting the specific burdens that fall on the Secretary under section S(a)(l). Of specific
concern is whether the Secretary established that provision of the vaccine prior to exposure (ie., on a
prophylactic basis) will significantly reduce the risk of HBV transmission when the employers already make
the vaccine available to employees after exposure.
3Bodily fluids that are proven transmitters of HBV include blood, saliva, vaginal fluid,and semen. Surface antigens for HBV (proteins that stimulate the production of an HBV
antibody) are present in such fluids as tears, sweat, lymphatic fluid, nasal secretions, cervical
secretions, urine, feces, sweat, and pus. Evidence of HBV transmission from these fluids in
the absence of visible blood, however, has not been conclusively established.
Bodily routes of transmission vary in efficiency. The oral exchange of saliva (e.g.,
kissing) is an inefficient medium for transmission. However, there have been instances of
transmission through bites or where someone put a cut finger into the mouth of a carrier
who was choking. HBV also can be transmitted when blood from a carrier enters a break
in the skin. While needle sticks present the most obvious hazard of this type, any contact
with blood from a carrier could present a risk of infection. In one instance, an HBV
outbreak among secretaries in a clinical hospital lab was traced to data processing cards
wrapped around blood samples. The secretaries received paper cuts when handling the
cards and contracted HBV from the dried blood on the cards.
It is unlikely that the virus could be contracted though contact with blood or other
potentially infectious fluids that dried on a material such as bed linen. Dr. Frank Lutz,
director of the New Orleans Health Department, testified that to contract HBV from such
linen, a person would practically have to inject it into his or her body.
The presence of HBV antigens is detectable by any one of several currently available
blood tests. Depending upon the test, antigens can be detected from infections received
20-30 years earlier.
B. Effects of HBV and Its Prevalence in U.S. Nursing HomesThere are two types of responses to HBV. The most frequent response, seen inhealthy adults, is the development of self-limited acute hepatitis and the production of an
antibody which signifies the elimination of the virus from the body and lifetime immunity
against reinfection. Of those who develop acute hepatitis, one-third will show no symptoms,
one-third will develop flu-like symptoms, which are usually not diagnosed as hepatitis, and
one-third will suffer more extreme symptoms including jaundice, dark urine, extreme fatigue,
anorexia, nausea, abdominal or joint pain, a rash and/or fever. In about 20 percent of the
jaundice cases, hospitalization is required. Those suffering from severe symptoms may be
4
unable to work for several weeks or months, even where there is no hospitalization.
Fulminant hepatitis, which is 85 percent fatal, develops in about 1 to 2 percent of reported
acute HBV cases and, overall, in 1 per 1000 HBV infections.
The second type of response is a chronic HBV infection. About 6 to 10 percent of
adults who are infected with the virus cannot clear it from their systems, and become chronic
HBV carriers. Such individuals are at high risk of developing chronic persistent hepatitis (a
mild form of hepatitis), chronic active hepatitis (a progressive debilitating form of hepatitis
that leads eventually to cirrhosis of the liver), cirrhosis of the liver, and primary liver cancer.
Approximately 25 percent of all chronic carriers develop chronic persistent hepatitis while
another 25 percent develop chronic active hepatitis.
Sero-prevalence tests reveal a considerable difference between the races in the
presence of HBV. In general, 3 percent of Whites and 13 percent of Blacks are, or at some
time were, infected by HBV. The prevalence of HBV antigens in the population also
increases with age. From ages 12 to 15 there are very few infections. By ages 65 to 74,
however, 6 to 7 percent of the White population and 40 percent of all Blacks are, or at some
time were, infected.
A study conducted by the Center for Disease Control and Prevention (“CDC”)
regarding surface antigens (Racial Differences in Rates of Hepah*tis B yiral Infection-United
States, 19764980, Morbidity and Mortality Weekly Report, Vol. 38 No.7 (December 1,
1989)), showed that about 0.25 percent of Whites and slightly less than 1 percent of Blacks
are either currently infected or chronic carriers of HBV. The study also showed no increase
with age in the proportion of individuals that are currently infectious. In the United States,
active infections are found primarily among the young, with the majority of cases occurring
in the 20 to 30-year-old age group.
Although the virus has not been seriously studied in United States nursing homes,3
a few studies have been conducted in other countries. A Scandinavian study of a cluster of
HBV cases in a nursing home suggested that transmission had been caused by the sharing
3 One study of an ambulatory geriatric population showed that although 30 percent had evidence of past or
present HBV,only 0.5-l percent of those in the study were surface antigen positive and, therefore, contagious.
This was not a nursing home study, however.
5
of rough bath brushes. An Italian study found that the institutionalized elderly have a higher
rate of HBV infection than their noninstitutionalized counterparts. However, the general
population pool of this study had a base HBV infection rate six times that found in the
United States, and fourteen of the residents had been injected with the same needle. Given
these atypical conditions, this study provides little insight into the prevalence of HBV in
United States nursing homes. A study of a Quebec nursing home was conducted to
determine whether employees should be vaccinated against HBV. Even though an HBV
patient had resided in the home for seven years, the disease had not spread to other
residents or employees. The study concluded that homes for the elderly do not have a
propitious environment for the spread of HBV. It recommended that the vaccine not be
given, but that stricter hygienic measures be instituted.
.
Dr. Lutz testified that elderly nursing home residents tend to be among the groups
that carry the lowest risk of infection from HBV. He likened the danger of contracting HBV
in a nursing home to the danger present in child care centers. This assessment was
supported by Dr. Edward Septimus, director of the infectious diseases program at the
Memorial Hospital System in Houston, Texas. According to Dr. Lutz, elderly people tend
to be survivors who have generally been healthy up until their old age. They have not had
a lot of trauma history or blood transfusions prior to the blood supply being tested for HBV.
Furthermore, HBV is largely a behaviorally induced illness spread by activities generally not
engaged in by the elderly. Neither Dr. Lutz nor Dr. Septimus were aware of any incident
where a health care worker contracted HBV from a nursing home resident. Indeed,
Dr. Septimus testified that he was not aware of any evidence that employees of United
States nursing homes are at a greater risk of acquiring HBV than the general population.
II. EFFECTIVENESS OF THE VACCINE
It is the Secretary’s position that, to free its workplaces from the hazard of the HBV
virus, the nursing homes should have offered, free of charge, the HBV vaccine to all
employees who could be exposed to blood or infectious bodily fluids. It is undisputed that
when administered before exposure to the HBV virus, the vaccine is 90 to 95 percent
6
effective in preventing the onset of the disease. The vaccine can also be administered after
exposure occurs.
Dr. Lutz testified that when it is given post-exposure, the vaccine has an effectiveness
rate of about 95 percent. Dr. Lutz was unaware of any failure of the vaccine when it is
started within seven days after exposure to a known needle stick. Dr. Lutz was also unaware
of any study which showed that the vaccine was less effective when administered post-
exposure and testified that, to his knowledge, the only known failure of the vaccine had
occurred when administered before exposure to HBV. Ray Miller, ARA’s loss prevention
manager, testified that the post-exposure effectiveness rate of the vaccine is 90 percent.
Similarly, Dr. Septimus testified that, when given in combination with immune globulin, the
vaccine is over 90 percent effective when administered after exposure to HBV.
However, Dr. Timothy Townshend, who was hired by Smith, Kline, Beecham, a
pharmaceutical manufacturer, to consult on a study to help determine whether. to market
the vaccine, testified that the effectiveness rate of the vaccine when given post-exposure is
50 to 70 percent. Dr. Townshend also testified, however, that the effectiveness of the
vaccine when administered post-exposure, is increased when administered together with
immune globulin.
III. THE NURSING HOMES
A. Population Profiles of Woodlake and Waldon
Waldon and Woodlake are intermediate care facilities that provide custodial and
restorative care, which includes meals and medication.
The mean age of the residents at Woodlake is approximately 83 years old. In 1988,
there were twenty-nine residents between the ages of 51 and 80. The residents are not
pretested for HBV unless they come from a hospital.
Waldon is a 205-bed facility. In 1988 there were 110 residents between the ages of
51 and 80. In 1990, there were 116 in that age group.
B. Potential Employee Exposure to Blood
The degree of care required by the residents varies widely and includes feeding,
dressing, grooming, and providing medication. The Secretary argues that, in the course of
these activities, there are several ways in which a nursing home employee is at risk of
contacting the blood or sanguineous fluids (containing blood) of a nursing home resident.
ARA, on the other hand, stresses that nursing home employees seldom come into contact
with blood. For example, Terri Lynn Williams, director of nurses at Woodlake from May
1987 to May 1990, testified that, at Woodlake, employees were only infrequently exposed
or potentially exposed to blood. Nurse Williams testified that she has never gotten blood
from a resident on her skin and was unaware of any employee who had. Nurse Williams
opined that it was highly unlikely that blood or other bodily fluids containing blood would
get on an employee’s skin, and concluded that, at Woodlake, employee exposure to HBV
was not considered a particular hazard. She testified that the only possible exposures could
occur when giving injections or dressing decubitus ulcers and skin tears.
Lorraine Moriarity, a nurse coordinator for ARA, oversees thirty-eight to forty ARA
nursing homes throughout the Eastern United States. She testified that there was not a
substantial risk of blood exposure from injections, dressing, finger sticks, linen changes, skin
tears, inserting or changing catheters, cleaning or feeding patients, or treating decubitus
ulcers. She agreed there is a possibility of accidental or extraordinary circumstances leading
to exposure to blood, but believed that the odds of such an incident occurring are minimal.
She testified that the risk of exposure to blood among employees at a nursing home was
about the same as that for the public at large. Moriarity stated that nursing home
employees are not exposed to blood on skin more than once a week. She also testified that,
although she has worked in nursing homes for approximately twelve years, she has never
gotten a patient’s blood on her skin.
Moreover, ARA notes that its health care workers take universal precautions when
they are in situations that could potentially expose them to blood or other infectious bodily
fluids. Universal precautions are those precautions against infected blood or other bodily
fluids that are applied when dealing with all patients. These include having the health care
worker (1) use barrier protection (i.e., rubber gloves); (2) wash hands after coming into
contact with blood or other potentially infectious fluids; (3) take precautions to prevent
injuries caused by scalpels, needles and other sharp instruments; (4) minimize need for
mouth-to-mouth resuscitation; (5) avoid direct contact with patients when the health care
8
worker has an exudative lesion or weeping dermatitis; and (6) take special care to
implement these precautions when pregnant.
Compliance officer Ritchie Hofmann testified that, during his inspection of Walden,
he was told by employees that they were exposed to blood when changing linens, when
giving injections, when changing dressings on wounds, and from bites. The only procedure
Hofmann actually witnessed that had the potential for exposure was the changing of soiled
linens. However, the record does not indicate if the linens were soiled with blood. Nor does
it indicate whether Hofmann actually saw anybody contact blood or perform a task that
would entail contact with blood. Based on his insDection notes, Hofmann stated that there
1
is very little direct contact with blood or bodily fluids at Waldon. He also testified that, to
the best of his knowledge, blood splashing does not occur in nursing homes. The compliance
officer observed what appeared to be bloody bandages sealed in a plastic bag, but he did
not see any patients with wounds.
The evidence shows that the potential for blood exposure at these nursing homes
exists during one of several medical procedures and events: the care of skin tears and sores,
injections, bites, and the insertion/withdrawal of catheters and other tubes.
1. Skin Tears and Sores
The skin of geriatric patients is not very pliable and tends to tear easily. Their skin
can tear if they kick a side rail or hit the side of their wheelchair while being transferred
between their bed and wheelchair. These tears may exude some amount of blood,
depending on the depth of the tear and the medical history of the patient, but they usually
involve only minimal bleeding. The bleeding usually stops by the second treatment. Later,
the wound may exude lymphatic fluid that could be sanguineous.
At Woodlake, of the approximately eighty residents, fewer than ten would suffer a
skin tear on any given day. Once a tear occurs, a nurse will get a doctor’s order to treat the
wound. This process takes about five minutes. If the patient is bleeding, a towel or
compress is used to catch the blood. If, for example, a leg has to be placed on the towel,
the nurse’s aid or Licensed Vocational Nurse (“LVN”) picks up the leg and places it on the
towel. Generally, rubber gloves for these employees are not available until a nurse brings
9
the equipment necessary to treat the wound. After initial treatment, employees always wear
gloves when treating or dressing these wounds.
Nurse Williams testified that, to her knowledge, no Woodlake employee has ever
treated a wound (after the initial moment of injury) while not wearing gloves. This
testimony was confirmed by Angie Rios, a licensed vocational nurse at Woodlake.
Shirley Jackson Rogers, a licensed practical nurse at Waldon, testified that there are
times when nurses have to treat stage three to stage four wounds4 at Waldon. When
removed from the wounds, the bandages are usually saturated with some type of drainage,
including blood or pus, depending on the severity of the injury. About 80 percent of the
time, drainage will get on the linens. The linens are changed by nursing assistants who do
not wear gloves. The linens also may be contaminated by stool or urine from the residents,
both of which sometimes contain blood. However, as discussed previously, the evidence
indicates that it is highly improbable that HBV can be transmitted through soiled linens.
Patients may also develop decubitus ulcers or bed sores. In first stage ulcers, the
mildest type, there is usually no bleeding. As the ulcers of any stage begin to heal, however,
a blister can appear that, when broken, produces fluid. There may not be any drainage in
stage one. Drainage is most likely to occur in stage two to stage four ulcers. The fluid is
usually not infected, and it consists of a serous, or light-yellow material, sometimes contain-
ing pus. According to Dr. Lutz, in the absence of visible blood in the fluid, this material is
not considered to be a vehicle for HBV transmission.
At Woodlake, out of a population of eighty, less than 5 percent will have a decubitus
ulcer on any given day. This number includes stage one ulcers which do not involve skin
breaks and are more common than the stage two ulcers (that involve skin breaks). Only
licensed personnel dress these wounds, and they wear gloves while tending the resident.
Generally, such treatment is given only to stage two ulcers.
4 The higher the number, the more serious the wound. Stage one is generally a reddened area or a brush
burn. At stage two, the break has a potential for infection that must be covered and contained. At stages
three to four, skilled medical care is required.
10
2. Injections
Injections given in nursing homes can expose employees to blood under two
circumstances. First, there is the possibility that the area injected will bleed. Generally, this
risk exists only in intramuscular (into the muscle) and intravascular (into the vein) injections.
The possibility of bleeding is highest for intravascular injections because the needle goes
directly into the vein and could result in blood splattering. The danger of bleeding is
minimal for subcutaneous injections, which use only %-inch needles. Second, exposure to
blood can arise from accidental needle sticks to employees. This danger can be substantially
reduced by not recapping needles and disposing them in a Sharps container, a puncture
resistant container made of very hard plastic.
Nurse Williams testified that at Woodlake most injections are subcutaneous injections
for insulin that use a very small gauge needle. She testified that the danger of exposure to
blood when giving subcutaneous injections was “extremely minimal.” On rare occasions,
however, insulin shots can produce blood. During her time at Woodlake, approximately six
insulin injections were given daily to residents. One individual received vitamin shots, but
that was discontinued. Vitamin shots are given with a one-inch needle. On rare occasions
patients were injected with a “chemical restraint” when they became agitated.
Nurses Rios and Jackson testified that at Woodlake they generally give only insulin
injections. Nurse Rios also stated that, infrequently in the past, she has given injections to
quiet combative residents at Woodlake. Approximately twelve to fifteen injections are given
daily at Waldon.
Both Waldon and Woodlake have taken steps to substantially reduce the hazard of
needle sticks. At both facilities, needles are neither recapped nor bent and are disposed of
in Sharps containers. Nurse Williams testified that she was not aware of any needle sticks
having occurred at Woodlake. Similarly, Nurse Rios testified that she was unaware of any
needle sticks having occurred at Walden.
Other witnesses shed additional light on the history of needle sticks at the facilities.
Ms. Moriarity testified that Waldon employees incurred five needle sticks over the past three
years. That number, she stated, though higher than most A&4 nursing homes, is fairly
small. Ray Miller, ARA’s loss prevention manager, testified that in 1989, out of 916
11
positions surveyed in twenty-two ARA facilities, there were six needle sticks. These positions
represented 1558 nursing home residents.
Moriarity testified about Waldon’s procedure’s regarding needle sticks. All needle
sticks are reported to supervisory personnel and an incident report is filled out. She
explained that when a needle stick occurs, the patient is asked to submit to both HBV and
HIV tests. If the patient or the patient’s physician refuses the tests, the medical director is
called. The employee involved is tested as soon as possible, medicine may be prescribed,
and the employee is counseled and urged to report any kind of a febrile illness that he or
she may experience up to twelve weeks after exposure. According to Moriarity’s records,
none of the patients involved in any needle sticks have tested positive for either HBV or
HIV. However, should a patient test positive for HBV, the physician could prescribe a
combination of immune globulin and the HBV vaccine. As discussed earlier, the evidence
establishes that this treatment is approximately 90 to 95 percent effective in preventing the
onset of HBV.
3. Bites
Research conducted on HBV has disclosed one case in which the transmission of the
HBV virus occurred when an individual stuck his cut finger into the mouth of an HBV-
positive person who was choking. Generally, however, the oral route is considered a very
inefficient route of transmission for the HBV virus.
Both Nurse Williams and Nurse Rios testified that, at Woodlake, they were unaware
of any incident in which a resident bit an employee. On the other hand, Nurse Rogers
testified that she was familiar with five to six incidents where employees were bitten. Some
of these bites drew blood. She pointed out that many residents are confused and disoriented
and bite when they think they are in danger. Nurse Rogers also pointed out that nursing
assistants often remove residents’ dentures. Although the assistants usually wear gloves
when removing dentures, it is not mandatory.
4. Other Medical Procedures
The Secretary argues that employees are potentially exposed to blood while
performing other types of medical procedures, such as glucose tests, catheterization, and
other tubal insertions.
12
Generally, employees at Waldon and Woodlake do not draw blood from the
residents. However, the evidence establishes that employees at Waldon do perform finger
sticks for glucose tests. At Woodlake, glucose tests are contracted out and, therefore, are
not performed by employees.
At Waldon, glucose tests are performed by a licensed nurse. The nurse cleanses the
patient’s finger with an alcohol dab, sticks the finger with a lancet, and squeezes out a spot
of blood. With the other hand, the nurse takes a dip stick and takes up the blood. The
stick is then inserted into a machine that reads the glucose level of the blood. There is no
substantial risk of contact with blood during the procedure.
At Woodlake, with a resident population of eighty, fewer than five residents are
catheterized. Generally, employees are not exposed to blood while inserting or removing
the catheter. Nonetheless, employees wear gloves that come with part the catheterization
kit during the procedure. These gloves are used primarily to maintain a clean environment
for the patient.
There are also residents at Waldon who require nasal-gastric or gastric tubes. These
tubes are essentially feeding tubes that go directly into the stomach. They are used to feed
patients who cannot swallow and to administer certain medications. When these tubes are
removed or slip out, the nurse must reinsert them into the patient. On occasion, blood
and/or serum comes from the tube during the procedure. The number of patients with such
tubes varies with the population at Waldon but generally ranges from one to three. When
inserting or removing these tubes, the nurses wear protective gloves.
Iv. DISCUSSION
TO establish a violation of section S(a)(l), the Secretary must prove that: (1) a
condition or activity in the employer’s workplace presented a hazard to employees, (2) the
cited employer or the employer’s industry recognized the hazard, (3) the hazard was causing
or likely to cause death or serious phvsical
d harm, and (4) feasible means existed to eliminate
or materially reduce the hazard. Kaslalon, Inc., 12 BNA OSHC 1928, 1931, 1986-87 CCH
OSHD li 27,643 p. 35,973 (Nos. 79-3561, 1986) ( consolidated) (“Kastalon”); Pelron Cop., 12
BNA OSHC 1833, 1835, 1986-87 CCH OSHD ll 27,605, p* 35,871 (No. 82-388, 1986).
13
To resolve this case, the Commission must decide whether: (1) given the circumstanc-
es existing at the cited nursing homes, ARA’s employees were exposed to the risk of
contracting HBV from the residents; (2) that hazard was causing or likely to cause death or
serious physical harm; (3) ARA or its industry recognized the risk of employees contracting
HBV; and (4) the Secretary established that offering employees the vaccine before exposure
was a feasible means of materially reducing the hazard of contracting HBV.
A. Eiiitence of a Hazard
Unlike the judge, we find that the Secretary did establish that the hazard of HBV
transmission was present at both Waldon and Woodlake. Although the record indicates that
the current resident populations are among the groups least likely to be HBV positive,
various studies show that between one-quarter and 1 percent of nursing home patients can
be expected to be HBV positive at any given time. Patients who are members of minority
groups have an even higher likelihood of being HBV carriers. Woodlake is an 80.bed
facility. Using infection rates most favorable to the nursing homes, there is a 20 percent
chance that at least one resident at Woodlake is HBV positive. Using the higher carrier
rates, there is an 80 percent chance that an HBV carrier is present in the resident
population.
Although the percentage of potential carriers of HBV in the general population
would be the same as in nursing homes, the risk of transmission of the HBV virus to
employees differs from that of the general population because of their direct exposure to
blood and other bodily fluids. It is this direct exposure to the bodily fluids of nursing home
residents that constitutes the gravamen of the hazard.
Employees dress skin wounds, give injections, and perform glucose tests, as well as
insert and remove both catheters and feeding tubes. Of particular concern is the treatment
of skin wounds that often involves some bleeding. Unlike other events that could lead to
blood contact, skin tears occur unexpectedly and in uncontrolled circumstances. When
initially treating a skin tear, the employees usually do not wear gloves, thereby exposing
themselves to blood contact and possible transmission.
While other procedures such as insulin injections, glucose tests, and the insertion and
extraction of feeding tubes also create the possibility of blood contact, they occur under far
14
more controlled circumstances. However, these procedures can involve varying degrees of
bleeding. The Texas Health Care Association AIDS Advisory Committee, in a report
entitled “The Impact of Implementing Universal Precautions in Long Term Care Facilities,”
characterized patients who receive finger sticks and catheters and those who suffer from skin
tears as “Frequently Bleeding Patients.” The report stated that “[tlhese conditions or treat-
ments expose the employee to a high degree of risk” from AIDS, which is transmitted in a
manner similar to the HBV virus.
Although the evidence establishes that the risk of contacting blood during the various
nursing home procedures is rather low, it is sufficient to raise the level of risk of transmission
above that of the general population and expose employees to the hazard of contracting
HBV from infected residents.
ARA reports that there is no case on record where a nursing home employee has
contracted HBV from a nursing home resident. The absence of a recorded case of HBV
transmission to an employee does not, however, establish that there has never been a case
of HBV transmission from nursing home resident to nursing home employee. As the record
also establishes, the transmission of HBV in nursing homes has not been substantially
studied. Since the goal of the Act is to prevent the first accident, General Hectic Co., 10
BNA OSHC 2034, 2040, 1982 CCH OSHD fl 26,259, p. 33,164 (No. 79-504, 1982), the
absence of any recorded case of HBV transmission from nursing home resident to nursing
home employee is not dispositive. See Secretary of Labor v. Union Oil of Calvomia, 869 F.2d
1039 (7th Cir. 1989).
ARA argues that to prove the existence of a hazard within the meaning of the
general duty clause, the Secretary cannot merely show that there may be some degree of risk
of transmission to employees. Rather, it is argued, he must show, at a minimum, that
employees are exposed to a significant risk of transmission. Kastalon, 12 BNA OSHC at
1932, 1986-87 CCH OSHD at p. 35,974. ARA concludes that because the evidence shows
that the incidence of HBV at its facilities is no greater than that of the general population,
the Secretary failed to show that the employees were exposed to a significant risk of
contracting HBV.
15
ARA’s argument is misplaced. In Kastalorz the employers were charged with a
violation of the general duty clause for exposing their employees to the chemical 4,4‘-
Methylene bis (Zchloroaniline) (“MOCA”) a probable human carcinogen. Although the
record showed that MOCA could cause cancer in humans, the record did not establish the
exposure levels at which the chemical presented a cancer risk. Therefore, the Commission
concluded that the Secretary failed to show that the employees were exposed to a significant
risk of harm within the meaning of section S(a)(l) of the Act.
The essence of the Kastalon holding is that when citing a violation of the general duty
clause, the Secretary must establish that the cited condition actually poses a hazard to
employees. As we pointed out in Kastalon, the general duty clause, while intended to
protect employees from hazards that have yet to be addressed by standards, is not intended
to replace standards as an enforcement mechanism. Therefore, when the Secretary proceeds
under the general duty clause, he must meet the same minimal criterion regarding the nature
of the alleged hazard as he does when promulgating a section 5(a)(2) standard. In IhdustiaZ
Union Dept. v. American Petrol. Inst., 448 U.S. 607, 655 (1980), the so-called “Benzene
Case,” the Secretary had sought to set new limits governing permissible employee exposure
to benzene, a suspected human carcinogen. Proceeding on the assumption that no safe
exposure limits could be established, the Secretary issued a standard reducing the allowable
exposure to benzene to what was considered to be the lowest limit that the industry could
feasibly achieve. The Supreme Court found insufficient evidence that there was a risk of
contracting cancer at levels above these new limits. The Court invalidated the standard on
the grounds that a precondition to the adoption of an OSHA standard was a finding that
workers were exposed to a significant risk of harm.
Contrary to AIM’s argument, to be consistent with the Supreme Court decision in
the “Benzene Case,” there is no requirement that there be a “significant risk” of the hazard
coming to fruition, only that if the hazardous event occurs, it would create a “significant risk”
to employees. See Kelly Sptingjield Tire Co. v. Donovan, 729 F.2d 317,322-25 (5th Cir. 1984).
There is no mathematical test to determine whether employees are exposed to a hazard
under the general duty clause. Rather, the existence of a hazard is established if the
16
hazardous incident can occur under other than a freakish or utterly implausible concurrence
of circumstances. National Realty & Const~. Co. v. OSHRC, 489 F.2d 1257, 1265 n.33.
Under Kasfalon, the Secretary must show that exposure to the blood or bodily fluid
of a person infected with the HBV virus poses a hazard of transmission of the HBV virus?
The evidence in this case amply demonstrates that such exposures pose a hazard of
transmission of HBV. The issue then becomes whether the AIM’s employees were exposed
to this hazard. As discussed earlier, the evidence establishes that, even though the likelihood
of exposure to the virus is low, employees at the nursing homes could contract the HBV
virus from residents under other than freakish or utterly implausible circumstances. We
therefore conclude that the Secretary has established that ARA’s employees were exposed
to the hazard of contracting the HBV virus.
B. Causing or Likzty to Cause Death or Serious Physical Ham
The evidence shows that contracting the HBV virus is likely to cause death or serious
physical harm.4
ARA argues that due to the unlikelihood of employee contact with the blood of the
residents and the prophylactic measures already taken, it is not likely that HBV transmission
would occur, and, therefore., the hazard is not likely to cause death or serious physical harm.
The argument fails because, as the Commission has made clear, the criteria for determining
whether a hazard is “causing or likely to cause death or serious physical harm” is not the
likelihood of an accident or injury, but whether, if an accident occurs, the results are likely
to cause death or serious harm. RL. Sanders Roofing Co., 7 BNA OSHC 1566, 1569, 1979
CCH OSHD ll 23,756, p. 28,805, rev’d on other grounds, 620 F.2d 97 (5th Cir. 1980).
’ In the usual case involving an alleged violation of the general duty clause, the hazardous nature of the
underlying condition is presumed. No one questions whether an explosion, fire, or 20.foot fall can injure
employees, ie., whether these events, if they occur, pose a significant risk of causing death or serious physical
harm. The question in those cases usually involves whether the hazard exists, Le., whether the conditions that
exist in the workplace can lead to the hazardous event.
17
AIM’s claim that 90 to 95 percent of all HBV victims recover fully and that the
disease is fatal only 1 percent of the time is self-defeating! The record establishes that two-
thirds of those people who contract the HBV virus will develop symptoms. Moreover, by
AIM’s own numbers, up to 10 percent of all HBV patients do not fully recover. Individuals
who do not fully recover are at high risk of developing chronic persistent hepatitis (a mild
form of hepatitis), chronic active hepatitis (a progressively debilitating form of hepatitis that
leads eventually to cirrhosis of the liver), cirrhosis of the liver, and primary liver cancer.
Approximately 25 percent of all chronic carriers develop chronic persistent hepatitis while
another 25 percent develop chronic active hepatitis. And, of course, the disease is fatal to
1 percent of all HBV patients. This evidence amply demonstrates that a person who
contracts the HBV virus is likely to suffer death or serious physical harm.
C. Recognition of the Hazard
In vacating the citations, the judge found that although HBV is a recognized hazard
in some areas of the health care industry, it is not a recognized hazard among nursing home
employees. The judge observed that the CDC recommendations for pre-exposure
vaccination stated that the risk of occupational exposure to HBV depends upon the tasks
performed and the frequency of exposure to blood and blood products. Although nursing
homes were not mentioned, the document does provide that vaccination of employees in
child care centers is not indicated. The judge noted that Dr. Lutz testified that child care
centers present about the same risk of exposure to HBV as nursing homes. Although
Dr. Townshend disagreed with the CDC, the judge noted that he acknowledged that he was
not an expert in nursing homes. Therefore, the judge found that the Secretary failed to
meet his burden of proving that HBV is a recognized hazard in the nursing home industry.
We disagree. Existence of the hazard and recognition of the hazard are two separate
elements of a general duty clause violation. The likelihood of nursing home employees
contracting HBV is relevant to whether a hazard existed at the nursing homes, not whether
6 ARA’s argument implies that an injury or illness cannot cause serious physical harm unless the harm is
permanent. We find no basis to support such a position and we do not accept it. For example, an employee
who has suffered broken bones in a fall has incurred serious physical harm even though he or she may recover
with no permanent side effects.
18
the hazard itself was recognized. Throughout this case, the ARA and the judge have
erroneously treated these two separate elements interchangeably. A hazard is “recognized”
within the meaning of the general duty clause if the hazard is known either by the employer
or its industry. Kastalon, 12 BNA OSHC at 1931, 1986-87 CCH OSHD at p. 35,973; Pelron
Corp., 12 BNA OSHC at 1835, 198687 CCH OSHD at p. 35,871. Therefore, the first
question is whether the nursing homes actually recognized that employee contact with the
blood or potentially infectious bodily fluids of the residents created a hazard of transmission
of the HBV virus. In our view, the record is clear that such actual recognition existed.
As the Secretary points out, the ARA Infection Control Manual frequently discusses
measures to prevent the transmission of HBV.’ For example, Chapters V-3 and V-4 discuss
the CDC precautions against HBV and HIV and set forth “[t]he most important precautions
that we should be taking with possible blood-borne pathogens . . . .” The manual also
contains several appendices that clearly indicate recognition of the HBV hazard. Appendix
H reprints the CDC document, Update: Universal Precautions for Prevention of T’hn,smk,sion
of Human Immunodeficiency View, Hepatitis B Vbw, and Other Bloodbome Pathogens in
Health-care Settings, Morbidity and Mortality Weekly Report, Vol. 37, No. 24, (June 24,
1988). Appendix F is the “OSHA Document on Hepatitis B.”
ARA cites Kastalon in support of its contention that measures it may have taken to
prevent HBV transmission cannot be used to establish recognition of the hazard. The
argument is without merit. In Kastalon, the Commission did not hold that precautions could
not be used to establish recognition of a hazard but, rather, that those precautions could not
be used to establish that the hazard posed a significant risk. In rejecting the employers’
argument, the Commission found fault with the premise that an employer would not take
precautions unless the hazard posed a significant risk. In the Commission’s view, an
employer might take precautionary measures out of an abundance of caution. The
’ According to a note in the exhibits file, Exhibit C-6, the ARA Infection Control Manual was being held in
a separate loose leaf notebook, apart from the rest of the exhibits. However, the exhibit is missing from the
record. The Secretary has quoted extensive portions of the manual in his brief. ARA has not alleged that
the Secretary has either misquoted the manual or taken relevant portions out of context. Therefore, we rely
on those portions of the manual quoted by the Secretary.
19
Commission concluded that to base a finding that a hazard exists sole@ on evidence that an
employer has taken certain precautions would dissuade employers from taking voluntary
protective measures beyond those the law requires. 12 BNA OSHC at 1932, 1986-87 CCH
OSHD at p. 35,975.
The issue here, however, is not whether protective measures implemented by the
employer can be used to establish that a hazard posed a significant risk, but rather whether
those measures can be used to establish that the employer actually recognized the hazard.
Commission precedent establishes that precautions taken by an employer can be used to
establish recognition in conjunction with other evidence. Du&n Co. v. Secretary, 750 F.2d
28 (6th Cir. 1984); Tniziry Indur., 15 BNA OSHC 1481, 1485 n.8, 1992 CCH OSHD ll 29,582,
p. 40,035 n.8 (No. 88-2691, 1992); General Dynamics Land Systems Div., Inc., 15 BNA OSHC
1275,1285,1991 CCH OSHD II 29,467, p. 39,757 (No. 83.1293,1991), affd withoutpublished
opinion, No. 91-4052 (6th Cir. Jan. 26, 1993) (consolidated) (safety bulletins issued by
employer underscored
l
actual recognition of hazard). The record contains ample evidence
corroborating AFWs actual recognition of the hazard.
The ARA safety manual, in addition to setting forth precautionary steps to prevent
the spread of HBV, includes sections that plainly show that ARA’s health care centers
recognized the hazard presented by HBV. Again, the CDC document attached to the ARA
manual as Appendix H states, at pages 377-78, that “blood and certain body fluids of all
patients are considered potentially infectious for human immunodeficiency virus, hepatitis
B virus, and other bloodborne pathogens.”
Moreover, testimony clearly indicated that ARKS officials recognized the risk of HBV
transmission from contact with bodilv4 fluids.8 For example, Ms. Moriarity testified that she
recognized that the HBV virus was dangerous and capable of causing serious physical harm.
8 While both officials testified that NU did not recognize a hazard of HBV transmission, this asserted lack
of recognition was based on (1) the lack of any reported cases of HBV transmission to nursing home
employees, (2) the minimal employee exposure to blood, and (3) the implementation of universal precautions
at the nursing homes. These matters, however, do not go to the recognition of the hazard, but to whether the
workplace was free of a recognized hazard.
20
Similarly, there is no question that the health care industry in general, and the nursing
home industry in particular, recognize that contracting the HBV virus can result in death or
serious physical harm. All the witnesses and numerous exhibits admitted by the parties
discussed the hazard posed by HBV. This evidence, while questioning the degree of risk
posed by HBV to nursing home employees, all presumed that HBV was a serious disease
that could be transmitted through contact with an infected person’s blood or certain bodily
fluids. Certainly, there is nothing in the record to indicate that AR& the nursing home
industry, or the health care industry in general would find otherwise.’
D. Feasible Means of Abatement
The final element the Secretary must establish in order to prove a violation of the
general duty clause, is that there was a feasible means of either abating or materially
reducing the hazard. Baroid Division of NL Indus., Inc. v. OSHRC, 660 F.2d 439 (10th Cir.
1981); Cardinal Operating Co., 11 BNA OSHC 1675, 1677, 1983-84 CCH OSHD 1 26,652,
p. 34,086 (No. 80-1500, 1983).
ARA argues that its policy of requiring the use of universal precautions and the avail-
ability of the HBV vaccine for employees exposed to needle sticks eliminated the hazard of
HBV transmission to the extent feasible, and that the Secretary failed to establish that
making the HBV vaccine available on a prophylactic basis would further materially reduce
the hazard.
The Secretary, on the other hand, contends that ARA’s use of universal precautions
to protect its employees from HBV and other bloodborne pathogens reduces, but does not
eliminate, the possibility that HBV could be transmitted from residents to employees.
Requiring that employees be offered the option of receiving the HBV vaccine before
exposure, the Secretary argues, would lower the odds of contracting the HBV virus to the
lowest currently feasible levels.
9 The Secretary argues that the judge erred by basing his finding of a lack of recognition on the state of
knowledge in the nursing home industry. The Secretary contends that the criteria should have been whether
the risk of HBV transmission was recognized by “the health care industry in general”. In view of our finding
that the hazard was recognized by ARA and the nursing home industry we need not address the issue.
21
It is here that the Secretary’s case fails. We find that, on the record before us, the
Secretary failed to establish that offering the pre-exposure vaccination to employees would
materially reduce the likelihood of HBV transmission or that such a vaccination program was
feasible.
ARA requires that its employees use universal precautions when actually or
potentially exposed to blood. Given the lack of anv4 recorded case of HBV transmission
from a nursing home patient to an employee, these measures have apparently been
successful in preventing transmission of the disease.” However, as discussed supra,
employees are subjected to the occasional skin stick from needles. These skin sticks
circumvent the use of universal precautions and expose the employee to the transmission of
such bloodborne pathogens as the HBV virus.
While this evidence might suggest that pre-exposure treatment is appropriate, an
employer may defend against a general duty clause citation by demonstrating that it was
using an abatement method that is as effective as the one suggested by the Secretary. Brown
& Root, Inc., 8 BNA OSHC 2140,2144, 1980 CCH OSHD li 24,853, p. 30,656 (No. 761296,
1980). At Waldon and Woodlake, when an employee suffers a skin prick, the patient is
asked to submit to an HBV test. If the resident or the resident’s physician refuses the test,
or should the resident test positive for HBV, the employee is offered a combination of
immune globulin and the HBV vaccine. The evidence establishes that this treatment is at
least 90 percent effective in preventing the onset of HBV, virtually the same effectiveness
rate as when given prophylactically.
The Secretary contends that such post-exposure vaccination is inferior to prophylactic
vaccination because (1) the employee may not know that he or she suffered a skin prick or
was otherwise exposed to blood, and (2) the employee may not seek post-exposure
vaccination. As to the first scenario, there is no evidence to support a conclusion that an
employee would not be aware of having been accidentally, and most certainly painfully, stuck
lo As noted earlier, however, the absence of any recorded case of HBV transmission from a nursing home
patient to an employee does not establish that such transmission has never occurred. However, since the
burden of establishing feasibility falls on the Secretary, the absence of such evidence does tend to show that
measurescurrently taken by the nursing homes are sucuzssful in preventing the transmission of HBV.
22
with a hypodermic needle. As to the second contention, it is more likely for an employee
who was stuck with a hypodermic needle to accept the offer of the HBV vaccine than it
would be for an employee to submit to vaccination before any hazardous exposure took
place. Moreover, any employee who would refuse the vaccine after receiving a needle stick
would also refuse to submit to the vaccine as a prophylactic measure. In sum, given the
measures that AFW already takes to prevent its employees from contracting HBV, we find
that its abatement method is as effective in materially reducing the hazard of HIJ3V
transmission as the one proposed by the Secretary.
Even if we were to find that pre-exposure vaccination provided material reduction
of the hazard beyond that ,already offered by ARA, the Secretary would still have to show
that it was feasible for the cited nursing homes to provide the vaccine prophylactically.”
Tampa Shipyards, Inc., 15 BNA OSHC 1533, 1535, 1992 CCH OSHD ll 29,617, p. 40,097
(Nos. 86360 & 86-469, 1992). We find that, on this record, the Secretary failed to establish
that it would be economically feasible to require ARA to provide the vaccine to its
employees on a prophylactic basis.
One of the criteria for determining whether a proposed measure of abatement is
feasible is whether the proposed measure is cost prohibitive. General Dynamics, 15 BNA
OSHC at 1287, 1991 CCH OSHD at p. 39,759. Under the general duty clause, an employer
is not required to adopt measures that would threaten its economic viability. National
Realty, 489 F.2d at 1266 n.37.12 One issue to consider when determining whether
..
I1 Because the Commission finds that the Secretary of Labor failed to establish that prophylactic
administration of the HBV vaccine would materially reduce the hazard of HBV transmission beyond that
accomplished by ARA’s vaccine programs, Commissioner Montoya finds it unnecessary to address the issue
of economic feasibility, and therefore abstains from that discussion.
‘* We find National Realty to be part~ularlv relevant to this case. In that case, the court indicated that where
under the general duty clause a method of abatement may be prohibitively expensive for a given employer, the
Secretary could still require that measure to be taken industry-wide by promulgating regulations, subject to
advance industry comment. 489 F.2d at 1266 n.37.
Such is the situation here. On this record, the Secretary has failed to establish the economic feasibility of
requiring the cited employers to provide the vaccine to employees on a prophylactic basis. However, since
issuance of these citations, the Secretary promulgated regulations requiring such prophylacticvaccination after
determining that, for the industry as a whole, the measure was economically feasible. If this matter had arisen
(continued...)
23
abatement is economically feasible is whether the cost of compliance would jeopardize a
company’s long-term profitability and competitiveness. Sun Ship, Inc., 11 BNA OSHC 1028,
1033, 1983-84 CCH OSHD II 26,353, p. 33,421 (No. 16118, 1982). Another factor relevant
to that consideration is whether the employer can pass the costs on to the customer. Waker
Towing Corp., 14 BNA OSHC 2072, at 2077 n.9, 1991 CCH OSHD ll 29,239, p. 39,161 n.9
(No.8791359, 1991).
The record shows that the cost for a single series of the vaccine for one person is
$120 to $125. The only evidence as to the total potential cost of providing the vaccine to
all eligible employees was presented by ARA. When labor, doctors’ fees, employee turnover
and related costs are included, ARA estimates that it would cost $38,533 annually to offer
the vaccine at Woodlake, and $108,339 at Waldon. These figures are not disputed by the
Secretary.
As to whether providing the vaccine to all exposed employees on a prophylactic basis
would jeopardize the homes’ long term profitability and competitiveness, the record is silent
as to the profits or economic condition of the two nursing homes. Although the evidence
establishes that the nursing home industry is a very competitive and highly regulated business
and a large portion of nursing home costs are paid by Medicare, which provides limitations
on what a nursing home can charge, the Secretary has not established that at least part of
these vaccinations costs can be passed on.
Thus, on this record, it is not possible to determine whether the nursing homes
could have absorbed or passed on the significant costs of prophylactic vaccination without
endangering their economic position. Moreover, given that there are no significant benefits
to be gained by requiring that the vaccine be given prophylactically, rather than post-
exposure, the record fails to demonstrate that the substantial cost of providing the vaccine
to all employees who might be exposed to blood was reasonable or practical.
under these standards, the burden would have been on the employers to establish, as an affirmative defense,
that compliance is economically infeasible. Waker 7”wingCorp., 14 BNA OSHC 2072, 2077, 1991 CCH
OSHD ll 29,239, p. 39,161 (No. 87-1359, 1991). See supru note 1.
24
Therefore, on this record, we find that even if we had found the Secretary’s proposed
abatement method provided a material reduction of the hazard beyond that provided by
ARA, the Secretary failed to fulfill his burden of establishing that it was economically
feasible for ARA to have made the HBV vaccine available to their employees on a pre-
exposure basis.
V. ORDER
Accordingly, the judge’s decision, as modified above, vacating the citations for
violations of section 5(a)( 1) of the Act is AFFIRMED.
. Edwin G. Foulke, Jr.
Chairman
Commissioner
Velma Montoya
Commissioner
Dated: April 2, 1993
UNITED STATES OF AMERiCA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
1825 K STREET ~JW
JTH FLOOR
.
SECRETARY OF LABOR, ..
..
, Complainant, ..
.
.
v. l Docket No. 89-2804
.
WALDON HEALTH CARE CENTER, ;
.
Respondent.
.
SECRETARY OF LABOR,
Complainant, ..
.
V. . Docket No. 89-3097
ARA WOODLAKE NURSING HOME, :
Respondent. ..
.. .’
NOTICE OF COMMISSION DECISION
The attached decision bv the ( kwqx~tim;ll S;tt‘etv ;uxl I Lx&h Review Commission was issued on
ADril2. 1993. ANY PEkON ADVERSELY AFkECTED OR AGGRIEVED WHO WISHES TO
OBTAIN REVIEW OF THIS DECISION MUST FILE A NOTICE OF APPEAL WITH THE
APPROPRIATE FEDERAL COC’RT OF APPEALS WITHI;N 60 DAYS OF THE DATE OF THIS
DECISION. See Section 11 of the Occupational Safety 2nd Health Act of 1970, 29 U.S.C. 8 660.
FOR THE CO~MMISSION
April 2, 1993
Date Ray H. Darling, Jr.
Executive Secretarv
Docket Nos. 89-2804 & 89-3097
NOTICE IS GIVEN TO THE FOLLOWING:
Daniel J. Mick, Esq.
Counsel for Regional Trial Litigation
Office of the Solicitor, U.S. DOL
Room S4004
200 Constitution Ave., N.W.
Washington, D.C. 20210
James E. White, Esq.
Regional Solicitor
Office of the Solicitor, U.S. DOL
Suite 501
525 S. Griffin Street
Dallas, TX 75202
Jeffrey C. Londa, Esq.
Steve C. Meisgeier, Esq.
Hutcheson & Grundy
Citicorp Center
1200 Smith Street, Suite 3300
Houston, TX 7700204579
Kathleen M. Kordeleski, Esq.
Service Employees
International Union
1313 L Street, N.W.
Washington, DC 20005
Louis G. LaVecchia
Administrative Law Judge
Occupational Safety and Health
Review Commission
Federal Building, Room 7B 1I
1100 Commerce Street
Dallas, TX 75242-079 1
UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
SECRETARY OF LABOR, l
l
0
l
Complainant, :
0
l
0
v. 0
0
l OSHRC DOCKET NO. 89-2804
WALDON HEALTHCARE CENTER, 0
0
l
0
Respondent. 0
SECRETARY OF LABOR, a
0
0
0
Complainant, :
l
l
l
V. 0
l
0 OSHRC DOCKET NO. 89-3097
ARA WOODLAKE NURSING HOME, a
0
0
l
Respondent. l
0
APPEARANCES: Brian Le Fudenz, Esquire
Anthony Ge Parham, Esquire
Dallas, Texas
For the Complainant. 9
Jeffrey Ce Londa, Esquire
Steve Ce Meisgeier, Esquire
Houston, Texas
For the Respondent.
DECISION AND ORDER
LAVECCHIA, Judge:
This is a proceeding brought before the Occupational Safety
and Health Review Commission ("the Commission'*)pursuant to 5 10 of
the Occupational Safety and Health Act of 1970, 29 UeSeCe 5 651 et
Seq. ("the Act").
-
2
ARA Living Centers (%RA”) operates approximately 230 nursing
homes in 13 States, The Occupational Safety and Health
Administration ("OSHA" ) inspected two ARA facilities, Waldon
HealthCare Center (lWWaldon) I in Kenner, Louisiana, and ARA
Woodlake Nursing Home (UWoodlake'l), in Clute, Texas, on May 10 and
August 16, 1989, respectively. The inspections resulted in the
issuance of one serious and one "other*' citation to each facility.
Woodlake contests item 1 of the serious citation, which alleges a
violation of fi5(a)(l), the general duty clause. Waldon contests
all three items of the serious citation, which allege violations of
5 5(a) (1) and 29 CeFeR. 55 19lOe132(a) and 1910e145(f)(8)e1 The
cases were consolidated and a hearing was held September 24-26,
- The alleged violations are discussed below,
The general duty clause requires each 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, The contested citation items are substantially similar, They
allege that health care workers at Waldon and Woodlake were exposed
to the hazard of being infected with the hepatitis B virus (rrHBVtg)
through possible direct contact with blood or other body fluids,
and that a feasible and useful abatement method for reducing the
hazard is to offer employees HBV vaccinations. The Secretary's
~ - ~
'Since the Nother citations were not contested, they have
become final orders of the Commission by operation of law, as have
the two uncontested items of the serious citation issued to
Woodlake.
3
position, based on OSHA Instruction CPL*s, is that FIBVvaccinations
must be offered without charge to employees at substantial risk of
directly contacting body fluids. See C-7 and C-8, p. 20, and C-9,
P . 15. It is undisputed thatwaldon and Woodlake do not offer such
vaccinations. However, Respondents contend the failure to do so
does not constitute a violation.
The record shows that Waldon is a 2050bed facility employing
approximately 30 nurses and 63 nurse's aides. Woodlake is a 940bed
facility employing approximately 10 nurses and 22 nurse% aides.
The majority of residents at both facilities are female and the
average age is the low to mid-80%. The care provided is largely
custodial, and includes bathing, dressing, grooming, feeding and
giving medication. (Tr0 114; 117-18; 139-42; 156; 260; 268-69;
279; 299; 379-80; 384-87; 394; 409-15; 420-21; 432-33; R-14).
No IVs are given at the facilities, and employees do not draw
blood. Injections are almost exclusively insulin and are given by
nurses; 12-15 are given per day at Waldon; about 6 are given per
day at Woodlake. Only disposable needles are used; they are not
recapped and are disposed of in a sharps container. Woodlake has
had no reported needlesticks in the past three years; Waldon has
had five. When such injury occurs, a report is made and tests for
HBV and human immunodeficiency virus (((HIV")are conducted to check
for possible transmission. There was no evidence an ARA resident
had ever infected an employee with HBV or HIV. (Tr. 114; 118; 1290
32; 143-46; 153; 178; 262; 267; 277; 279-83; 299-300; 305-06; 388;
396-97; 416-18; 435-36; 456; 472-77; 481; C-6; R-14-15).
4
Nurses dress the occasional wounds which occur on residents.
Decubitis ulcers, or pressure sores, require dressings for 2-4
weeks; they generally have no blood and any fluid dries up after a
day or two, Skin tears require dressings for l-2 weeks. The
initial trauma of a tear can produce a small amount of bleeding; it
generally has no blood after the first day, but may secrete some
fluid. The nurse or aide discovering the tear, who may not be
wearing gloves, applies a towel or compress and calls a physician
for instructions. Nurses dress wounds twice a day, and wear gloves
when doing SO.~ An average of 37 dressing changes per day occur
at Walden; an average of 16 per day occur at Woodlake. (Tr. 1180
29; 146-53;. 263-66; 270-76; 287-91; 295-98; 302-11; 397-99; R-14).
Nurs'es at Waldon perform daily finger pricks for glucose
tests; no finger pricks are performed at Woodlake. Residents at
both facilities occasionally require catheters and nasal-gastro
tubes, which can present a possibility of exposure to blood; nurses
use gloves when handling these objects. Residents at both homes
are sometimes assisted in removing dentures. If the resident is
unconscious, gloves are worn: if conscious, gloves may not be worn.
Woodlake has had no biting incidents, but there was some evidence
2Although one nurse employed at Waldon testified she did not
wear gloves unless a doctor instructed her to do so, the testimony
of three other ARA nurses was that the procedure is to wear gloves
when dressing wounds. The testimony of the nurses also indicated
that surgical wounds at the facilities are infrequent, that such
wounds are usually closed and dry, and that if they are not, they
are attended by physicians. (Tr. 155-56; 268; 275; 278-79; 288-89;
309-10).
s
this had occurred at Walden? (Tr0 130: 153-55; 174-78; 260-63;
268-69; 273-77; 286; 291-95; 310-11: 401-08; R-13-14).
ARA has a written infection control program which applies to
employees with resident contact and includes the universal
precautions outlined by the Centers for Disease Control (VDF).
Employees are trained in the program, and copies of it are kept at
facility nurse stations. Nurses and aides are instructed to wear
gloves when visible blood is present. Aides do not wear gloves
when changing bed linen, which can be soiled with blood or wound
drainage: however, ARA nurses described the presence of blood on
linen as infrequent and negligible, and the risk of contact with
blood in general as minimal or unlikely.4 Although ARA residents
do not undergo pre-admission HBV or HIV testing, there was evidence
their medical histories generally indicate a lack of infection.
(Tr0 123; 133-34; 138-39; 143-44; 155; 159; 168; 178-79; 185-92;
266-67; 270; 272; 280-81; 289; 298; 304; 308; 383-84; 388-92; 3980
99 ; 402-04; 426-41; 458-60; C-6; R-6; R-14; R-16).
The record further shows the residents and care at Waldon and
Woodlake are typical of the industry, and that nursing homes do not
have the invasive procedures offered in hospitals, such as surgery,
3A nurse employed by Walden for 12 years testified she was
aware of 5-6 such instances, and had known of such instances
drawing blood. Ritchie Hofmann, the OSHA industrial hygienist who
inspected Waldon, testified an employee told him about a resident
biting an employee. (Tr 0 195-96; 203-08; 246-48; 257: 269).
4Ritchie Hofmann himself testified employees at Waldon had
very little direct contact with blood or body fluids. (Tr. 235).
6
IVS and blood drawing, which would create a greater potential for
exposure to blood, and, consequently, HBV. HBV has decreased among
health care workers since the use of uriiversal precautions, which
prohibit needle recapping and require the use of gloves or other
protections when visible blood is present. Of the HBV cases that
occur in the U.S., 1% are fatal and 90095% recover satisfactorily;
the majority of infected adults have no symptoms. Infection occurs
primarily in young adults, and studies indicate a low incidence
among the elderly of positivity for the HBV surface antigen
required to be infectious. (Tr. 30; 36-37; 49-60; 86-90; 160-64;
334-35; 342; 346; 352; 358-59; 374-75; 385-88; 394-95; 444; 448;
510-11; 519; 530-36; 545-46; C-2-3; R-1; R-4; R-11 [pgs. 13-19, 260
27 , 31-32; 35-36, 55-583).
Finally, the record shows that in May, 1989, OSHA issued a
proposed rule in regard to occupational exposure to bloodborne
pathogens. The rule, which is not yet finalized, would require
employers to offer HBV vaccinations to employees exposed to blood
or other potentially infectious materials on an average of one or
more times per month. During the notice and comments period the
American Health Care Association (%HCAIt)I which represents the
nursing home industry, submitted reports and testimony of industry
representatives in support of its opposition to the proposed rule;
the thrust of these submissions is that HBV is not a recognized
hazard in the industry and that providing the vaccination would be
economically infeasible. ARA is a member of AHCA and participated
in this process. (Tr. 314-21; 475-76; 478; 483-97: R-8, p. 23,127;
7
R-11 [pgs. 6; 19-24; Exh. l-23; R-20-22).
The foregoing summarizes the essentially undisputed evidence
of record. The testimony of three physicians knowledgeable in
infectious diseases was also presented. Because it is particularly
illuminating in regard to the issues in this case, a brief summary
of the relevant testimony of each physician follows.
Timothy Townsend, M.D., is board certified in pediatrics. He
is an associate professor of pediatrics and epidemiology, and the
senior director for medical affairs at Johns Hopkins. He was
previously the hospital epidemiologist at Johns Hopkins; in that
position, he directed the infection control program. He has done
HBV research and has been a consultant to CDC in regard to HBV.
(Tr. 6-13; 17; 20; 23-24; C-1-3).
Dr. Townsend testified that vaccination is the primary means
of preventing HBV transmission, and that on his recommendation,
Johns Hopkins vaccinates employees who have contact with blood or
other infectious fluids more than once per week. He said it is
contact with these fluids which creates a risk, and that employees
with infrequent contact are no more likely to be HBV-infectious
than healthy adults. He agreed generally with CDC% vaccination
recommendations, except in regard to child care centers. He said
he was more conservative than CDC in this regard, and indicated he
would support vaccinations in child care centers. Townsend does
not consider himself an expert in nursing homes, but views them as
part of the health care industry. (Tr. 25-29; 35-40; 44-45; 73-75;
77-80; 85; 106; R-l-3).
8
Dr. Townsend further testified that HBV in nursing homes was
not well studied, and that he knew of only two reports indicating
transmission in that setting. C-4 shows transmission occurred in
a Swedish home from sharing bath brushes, and C-5 shows it occurred
in three Italian homes from using nondisposable needles and shaving
materials. Dr. Townsend noted HBV prevalence in Italy is probably
somewhat higher than in the U.S. He knew of no studies regarding
the need for HBV vaccinations in nursing homes other than R-5, a
Canadian study concluding they were not needed. He was aware of no
cases of nursing home residents infecting employees, or of any U.S.
studies in that regard. (Tr. 29-34; 52: 64-65; 91-97).
Frank Lutz, Jr., M.D., is the director of the New Orleans
Health Department and is board certified in internal medicine. He
has been a nursing home medical director, and visits homes on a
regular basis in connection with his private practice. He is also
a board member of a group which advocates the interests of nursing
home residents. He deals with HBV in his position, and is
knowledgeable in HBV literature. (Tr. 330-33; 376-77; R-12).
Dr. Lutz testified he knew of no U.S. cases in which a nursing
home resident had transmitted HBV to an employee. R-5 was the only
North American study he was aware of dealing with HBV in nursing
homes; it concluded HBV was not a problem, even though a resident
of seven years was found to be infectious, because no transmission
had occurred\ Dr. Lutz said that C-4 and C-5 are not significant
in regard to U.S. nursing homes; C-4 is dated, Italy has a higher
prevalence of HBV, and disposable needles and shaving materials are
9
used in U.S. nursing homes. (Tr. 333-34; 341-46: 349-51).
Dr 0 Lutz further testified that although HBV is a recognized
hazard in certain portions of the health care industry, it is not
recognized as a hazard for nursing home employees; if it were, it
would be reported. He offered his opinion that nursing homes are
a separate industry because the exposure to blood and body fluids
is much less than in hospitals. He said it would be difficult to
find a population less at risk of being HBV-infectious than nursing
home residents, as they are primarily elderly people who have been
healthy most of their lives. He agreed with CDC% vaccination
recommendations, and said the risk of exposure to HBV in child care
centers is.about the same as that in nursing homes. (Tr. 334-37;
341-43; 354-56; 365; 367; 370-72; R-3).
Edward Septimus, M.D., is board certified in internal medicine
and infectious diseases. He is the academic chief of infectious
diseases and director of the infectious disease program at the
Memorial Hospital System of Houston, which consists of a teaching
hospital and two community hospitals. He has conducted HBV
research and has consulted with nursing homes regarding infection
control. (Tr. 506-13; R-27; R-29).
Dr l Septimus testified that risk of transmission depends on
both the person contacted and the frequency of blood contact. He
does not consider the typical nursing home resident population a
high-risk group. He noted that a ward nurse at an acute hospital
who does not give IVs or draw blood would have about the same
exposure to blood as that of a nursing home nurse. He considers
10
such exposure infrequent, and said that studies have shown that
health care workers with infrequent blood contact have no greater
risk in regard to HBV than the general population. He prepared R-
28, in which he concluded that health care employees with frequent
blood contact should be vaccinated; he said CDC agrees with this
view. He also evaluated the proposed standard in connection with
his position; his opinion, which was conveyed to OSHA, was that the
standard was excessive and would provide no additional benefit to
employees. Dr. Septimus noted that Memorial vaccinates nurses in
units such as hematology, where exposure is greater, but does not
vaccinate the average floor nurse. (Tr. 514-17; 521; 528-29; 531~
32 ; 540-41; 545-46; 549-53; R-30-31).
Dr. Septimus was unaware of any case in which a nursing home
resident had transmitted HBV to an employee. R-5 was the only
North American study he knew of which had analyzed the need for HBV
vaccinations. He considered C-4 and C-5 generally. inapplicable
because there are no shared personal items or nondisposable needles
used in U.S. nursing homes, but noted that C-4 supported his
impression of the risk of HBV in nursing homes: it showed that
while transmission had occurred among residents, none had occurred
among employees. (Tr 0 536-38; 546).
To prove a violation of 5 5(a)(l), the Secretary must show
that (1) a condition or activity in the workplace presented a
hazard, (2) the employer or the employer's industry recognized the
hazard, (3) the hazard was likely to cause death or serious
physical harm, and (4) feasible means existed to eliminate or
-
11
materially reduce the hazard. pelron Co-, 12 BNA OSHC 1833, 1986
CCH OSHD 9 27,605 (No. 82-388, 1986); d,
Unite 12
BNA OSHC 1692, 1986 CCH OSHD 3 27,517 (No. 794998, 1986).
In this case, the most significant of the above requirements
is (2). It is clear from the record that HBV is a recognized
hazard in some areas of the health care industry. However, it is
equally clear that the risk of exposure to HBV varies considerably
among health care employees, depending on the frequency of exposure
to blood and the population served. Respondents contend that HBV
is not a recogni zed hazard
L in the nursing home industry because of
the services it provides and the population it serves.
The record shows that while nurses and aides at Waldon and
Woodlake have some exposure to blood, the exposure is infrequent
and minimized by the use of gloves and the prohibiting of needle
recapping. The record also shows that nursing home residents are
considered a low-risk group for HBV. However, even more
significant is the fact that there have been no reported cases in
which a nursing home resident has transmitted HBV to an employee.
That no transmission has occurred demonstrates that HBV is not a
recognized hazard for nursing home employees.
This conclusion is not inconsistent with R-3, which sets out
CDC% recommendations for preexposure vaccination. R-3 states, at
page 14, that the risk of occupational exposure to HBV depends upon
tasks performed and the frequency of exposure to blood and blood
products.. It does not mention nursing homes, but does provide, at
page 16, that vaccination of contacts of carriers in child care is
12 ..
not indicated.* According to Dr. Lutz, child care centers have
about the same risk of exposure to HBV as nursing homes. Dr.
Townsend did not agree with CDC in this regard; however, he
acknowledged his position is more conservative than that of CDC.
He also acknowledged he is not an expert in nursing homes. In any
case, he did not testify that nursing home employees should be
vaccinated. His testimony, in fact, taken together with that of
Dr. Lutz and Dr. Septimus, supports a conclusion that vaccinations
are not indicated for nursing homes.
Based on the foregoing, it is clear the Secretary has not met
her burden of proving HBV to be a recognized hazard in the nursing
home industry. She has also failed to prove the first and third
requirements of a $j 5(a) (1) violation, to wit, that the cited
activity or condition presented a hazard that was likely to cause
death or serious physical harm. Because the Secretary has failed
to show three of the four requirements necessary to establish a
general duty clause violation, the fourth requirement need not be
discussed. The citations are vacated.
29 C.F.R. § 1910.132(al
The subject citation alleges as follows:
Protective equipment was not used when necessary whenever
hazards capable of causing injury and impairment were
encountered: The employer did not ensure the use of
protective gloves for nursing assistants removing soiled
'This provision suggests vaccination might be indicated if
special circumstances exist, such as biting or severe skin disease.
While residents in the facilities have occasional wounds, nurses
use gloves when dressing them. Moreover, even though biting has
apparently occurred at Waldon, the evidence suggests such incidents
are very infrequent (5-6 incidents in 12 years).
-
13
linen from beds; thus exposing employee(s) to the hazard
of being infected by HBV/HIV through possible direct
contact with blood or other body fluids.
The foregoing discussion shows that nurse's aides at Waldon do
not use gloves when changing linen, which can be soiled with blood
and wound drainage. Although it also indicates that this activity
would be unlikely to result in infection, the evidence relating to
this specific citation item is set out below.
Dr l Townsend testified that HBV and HIV are both transmitted
through direct contact with blood or other infectious body fluids.
He said that transmission occurs most efficiently through injection
or contact with breaks in the skin, and that it can occur when
employees with cuts or scrapes on their hands handle bed linen or
bandages soiled with blood or wound drainage without gloves. He
noted that HBV can survive in the environment for up to two weeks.
(Tr. 25-29; 41-42; 107).
Dr a Lutz testified that HBV and HIV are not transmitted by
contact with bed linen. He knew of no cases in which this had
occurred, and pointed out that laundry workers and hotel maids are
not at an increased risk for infection. He said a live virus must
penetrate skin for transmission to occur. He did not believe it
was possible for this to happen through handling virus-tainted
linen, even if it contacted an open wound. He noted that the
capacity of a bloodborne virus to infect decreases markedly with
drying and the passage of time. (Tr. 356-58; 368-370; 374).
Dr. Septimus testified that he knew of no cases in which HBV
or HIV had been transmitted from laundry or linens, and that he did
c’*
-
14
not consider handling linen a high-risk activity in regard to
either virus. (Tr. 529-30).
The record demonstrates a difference of opinion between the
Secretary's witness and Respondent's witnesses. The opinions of
Dr . Lutz and Dr. Septimus, however, are more consistent with CDC
universal precaution recommendations. R-1 states, at page B-9, as
follows:
Although soiled linen has been identified as a source of
large numbers of certain pathogenic microorganisms, the
risk of actual disease transmission is negligible.
Rather than rigid procedures and specifications, hygienic
and common-sense storage and processing of clean and
soiled linen are recommended. Soiled linen should be
handled as little as possible and with minimum agitation
to prevent gross microbial contamination of the air and
of persons handling the linen. All soiled linen should
be bagged at the location where it was used; it should
not be sorted or rinsed in patient-care areas. Linen
soiled with blood or body fluids should be placed and
transported in bags that prevent leakage.
Significantly, the foregoing does not specify the use of
gloves when handling laundry. Moreover, it states that the risk of
disease transmission from soiled linen is negligible. It is
concluded, therefore, based on the record in this particular case,
that the Secretary has not met her burden of proving that the
handling of soiled linen at Walden represented a hazard. This
conclusion is supported by the testimony of Dr. Lutz and Dr.
Septimus, which indicated that there have been no cases in which
transmission has been linked to this activity. It is also
supported by the 5 5 (a) (1) discussion, supra. Accordingly, this
citation item is vacated.
. . -
. 1.m. . . 4 l
:
.* _ .L
Ritchie Hofmann, the OSHA industrial hygienist who inspected
Walden, testified he observed a clear brown bag in a disposal can
in a hallway that contained used gauze and dressings. Joanne
Trader, Walden's supervisor of nursing, told him the bag contained
blood-tainted waste. The same type of bag was used throughout the
facility, and the bags were not marked in any way. Hofmann's
concern was that aides or other employees disposing of the bags
could contact the contents and be exposed to bloodborne diseases
such as HBV and HIV. (Tr. 183-84; 192-94: 197; 230-34).
Shirley Rogers has been a licensed practical nurse at Walden
for 12 years. She testified that used dressings are disposed'of in
plastic trash bags which are double-bagged and disposed of in a
trash receptacle. The bags are not identified in any way, and the
same type of bag is used throughout the facility. She indicated
that dressings identified as infectious waste are disposed of in a
red bag, but was aware of no special location or separate disposal
provisions for such waste. (Tr. 256-57; 272-73; 277-78).
Lorraine Moriarity is the eastern area nurse coordinator for
ARA. She testified that she wrote most of ARA*s infection control
manual, which is required by federal and state regulations. She
said the definition of infectious waste varies in different states,
but that it is generally considered to be anything with body fluids
on it. She described ARA's infectious waste disposal policy; waste
is double-bagged, and usually red-bagged, and put into a special
container provided by a company which disposes of the waste. She
.
said Walden's procedure is to Idouble-bag waste and lock it away in
a special room. (Tr. 379-80; 384; 388-90; 392-93: 436-38; C-6).
Although the testimony of Rogers and Moriarity regarding waste
disposal is somewhat equivocal, C-6, ARAts infection control
manual, sheds some light on this matter. Its definition of
infectious waste, at page I-3, is essentially the same as that
given by Moriarity. However, a review of C-6 shows that red bags
are specified only for waste in isolation cases, in which an
infection or contagious disease is confirmed or suspected. See
pgs. 111-S; 11145; V-7-8; V-13. Consequently, it is found as fact
that Walden's general practice is to dispose of used dressings in
unmarked brown plastic bags, which, on the admission of Walden's
supervisor of nursing, can contain blood.
The citation was issued because Hofmann believed employees who
disposed of Walden's waste bags could have contacted dressings
contaminated with HBV or HIV. Respondent contends there was no
violation because the record does not demonstrate a hazard of HBV
or HIV infection.
The subject standard provides, in pertinent part, that:
Biological hazard tags shall be used to identify the
actual or potential presence of a biological hazard and
to identify . containers
l me that contain or are
l
contaminated with hazardous biological agents.
It is clear Waldon did not use tags or other means to indicate
the presence of potentially infectious waste. However, in the
preceding discussion it was found that the Secretary failed to show
that the handling of soiled linen represented a hazard of HBV or
HIV infection. That finding was based in part on the opinions of
Dr . Lutz and Dr. Septimus. Their opinions, set out sugrg, were
supported by R-1, CDC% universal precaution recommendations. It
appears to this judge that the risk of infection from contact with
blood-soiled linen would be essentially the same as that from
contact with waste such as blood-soiled dressings. This conclusion
is supported by R-l, which states, at page B-10, that:
There is no epidemiologic evidence to suggest that most
hospital waste is any more infective than residential
waste. Moreover, there is no epidemiologic evidence that
hospital waste has caused disease in the community as a
result of improper disposal. Therefore, identifying
wastes for which special precautions are indicated is
largely a matter of judgment about the relative risk of
disease transmission. The most practical approach to the
management of infective waste is to identify those wastes
with the potential for causing infection during handling
and disposal and for which some special precautions
appear prudent. Hospital wastes for which special
precautions appear prudent include microbiology
laboratory waste, pathology waste, and blood specimens or
blood products. While any item that has had contact with
blood, 'exudates, or secretions may be potentially
infective, it is not usually considered practical or
necessary to treat all such waste as infective.
On the basis of the foregoing, it would seem that CDC does not
consider hospital wastes, other than those for which it recommends
special precautions, significant in regard to disease transmission.
The standard, at 1910.145(f)(2), defines biological hazards as
infectious agents which present a risk of death, injury or illness.
It is clear that HBV and HIV are biological hazards within the
meaning of the standard under circumstances which represent a
realistic possibility of infection. However, it is equally clear
that based on the record in this particular case, the Secretary has
not met her burden of proving that contact with soiled dressings at
Waldon represented a hazard. This citation item is vacated.
-
18
1 l Respondents, Walden HealthCare Center and ARA Woodlake
Nursing Home, are engaged in business affecting commerce and have
employees w.ithin the meaning of 5 3(5) of the Act. The Commission
has jurisdiction of the parties and of the subject matter of the
proceedings.
20 On May 10, 1989, Waldon HealthCare Center was not in
violation of 5 5(a)(l) of the Act.
30 On May 10, 1989, Waldon HealthCare Center was not in
violation of 29 C.F.R. 55 1910.132(a) and 1910,145(f)(8).
4 l On August 16, 1989, ARA Woodlake Nursing Home was not in
violation of 5 5 (a)(1) of the Act.
Order
On the basis of the foregoing Findings of Fact and Conclusions
of Law, it is ORDERED that:
10 Items 1, 2 and 3 of serious citation number 1, issued to
Waldon HealthCare Center, are VACATED.
20 Item 1 of serious citation number 1, issued to ARA
Woodlake Nursing Home, is VACATED.
Administrative Law Judge
DATE= JUL 3 I jggj
Get today's answer for your situation
You just read Commission precedent from 1993. Ezel checks whether it still stands, including any court review since, and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the authority it relies on.