Thoroughgood, Inc., d/b/a Azalea Court

Plain-English summary

Thoroughgood, Inc., doing business as Azalea Court, runs a residential personal care home in downtown Philadelphia that housed about 70 to 80 residents. After a September 1996 inspection, OSHA cited the home for failing to control rodents and insects and for ten separate violations of the bloodborne pathogens standard. The main legal question was whether the bloodborne pathogens standard even applied to a personal care home. Judge Nancy J. Spies held that it did, because the home's personal care assistants, housekeepers, and laundry worker had reasonably anticipated contact with blood and bodily fluids while shaving residents, changing blood-soaked incontinence pads and linens, handling insulin needles, and tending wounds. The judge affirmed the vermin violation and most of the bloodborne pathogen items, including no written exposure control plan, no universal precautions, gloves that often ran out, unlabeled regulated waste and laundry, no hepatitis B vaccinations offered, and no bloodborne pathogen training. She vacated three items where the Secretary's proof fell short. Total penalties came to $15,800.

Decision snapshot

• Cited standard(s): 29 C.F.R. § 1910.141(a)(5); 29 C.F.R. § 1910.1030(c)(1)(i); 29 C.F.R. § 1910.1030(d)(1); 29 C.F.R. § 1910.1030(d)(2)(i); 29 C.F.R. § 1910.1030(d)(3)(i); 29 C.F.R. § 1910.1030(d)(4)(iii)(B)(1)(iii); 29 C.F.R. § 1910.1030(d)(4)(iv)(A)(2); 29 C.F.R. § 1910.1030(d)(4)(iv)(B); 29 C.F.R. § 1910.1030(d)(4)(iv)(C); 29 C.F.R. § 1910.1030(f)(2)(i); 29 C.F.R. § 1910.1030(g)(2)(i).
• Outcome: Mixed. The vermin item and six bloodborne pathogen items were affirmed as serious; three items (engineering and work practice controls, laundry PPE, and off-site laundry shipment) were vacated. Penalties total $15,800.
• Key point: The bloodborne pathogens standard turns on the tasks employees actually perform, not the industry label, so a personal care home whose staff foreseeably contact blood must meet its exposure-control, PPE, vaccination, and training requirements.

Full text (OSHRC public release)

))))))))))))))))))))))))))))))))))))))))))))),
Secretary of Labor, *
Complainant, *
*
v. * OSHRC Docket No. 97-0023
*
Thoroughgood, Inc., d/b/a Azalea Court, *
Respondent. *
)))))))))))))))))))))))))))))))))))))))))))))-

APPEARANCES

                                      Theresa C. Timlin, Esq.          Kenneth L. Oliver, Jr., Esq.
                                      Office of the Solicitor          Obermayer, Rebmann, Maxwell & Hippel, LLP
                                      U. S. Department of Labor        Philadelphia, Pennsylvania
                                      Philadelphia, Pennsylvania                For Respondent
                                               For Complainant

Before: Administrative Law Judge Nancy J. Spies

                                                            DECISION AND ORDER
                 Thoroughgood, Inc., d/b/a Azalea Court (Azalea), contests the November 25, 1996,

serious citation issued to it as a result of the Occupational Safety and Health Administration’s
(OSHA) inspection of its personal care facility on September 19, 1996. The citation alleges that
Azalea violated § 1910.141(a)(5) (item 1) by failing to prevent the entrance or harborage of
rodents and insects. The citation also alleges ten separate violations of the bloodborne pathogens
standard, § 1910.1030, et seq. The alleged violations of this standard are: §§1910.1030(c)(1)(i)
(item 2) failing to establish a written exposure control plan; 1910.1030(d)(1) (item 3a) failing to
practice universal precautions; 1910.1030(d)(2)(i) (item 3b) failing to use work practice and
engineering controls; 1910.1030(d)(3)(i) (item 3c) failing to provide appropriate personal
protective equipment (PPE) for personal care attendants (PCAs); 1910.1030(d)(4)(iii)(B)(1)(iii)
(item 3d) failing to place regulated waste in appropriate containers; 1910.1030(d)(4)(iv)(A)(2)
(item 3e) failing to place contaminated laundry in appropriate containers; 1910.1030(d)(4)(iv)(B)
(item 3f) failing to provide
appropriate PPE to laundry personnel; 1910.1030(d)(4)(iv)(C) (item 3g) failing to place laundry
shipped to an outside facility in appropriate containers; 1910.1030(f)(2)(i) (item 4) failing to make
hepatitis B vaccinations available to employees; and 1910.1030(g)(2)(i) (item 5) failing to provide
a training program for employees exposed to bloodborne pathogens.
Azalea argues that its extermination program complied with the standard and that the
bloodborne pathogen standard was inapplicable to Azalea’s facility. Alternatively, Azalea argues
that the cited sections of the bloodborne pathogen standard were not violated. A hearing was
conducted in this case in Philadelphia, Pennsylvania. For the reasons stated below, the Secretary
prevails on certain of the issues, and Azalea prevails on others.
Facts
Azalea is a residential care home located in downtown Philadelphia, Pennsylvania. Azalea,
a facility called Ivy Ridge, and other personal care homes are owned by one individual, Rosalind
Lavin (Tr. 150-53). Azalea housed approximately 70 or 80 men and women. The majority of the
residents required only “non-personal” care, meaning they could care for most of their own needs,
while 10 or 15 residents needed assistance caring for themselves (Tr. 60, 83, 521). Some
residents had physical or mental disabilities, Alzheimer’s disease, or slight dementia (Tr. 508).
One resident suffered from full-blown AIDS (Tr. 538).
The inspection arose from a “non-formal” complaint filed with the OSHA Philadelphia
Area Office.1 Following Azalea’s “unsatisfactory” response, OSHA assigned industrial hygienist
Judith Posusney to inspect the facility (Tr. 118-19).
The Azalea staff included personal care assistants (PCAs); housekeepers, who were
responsible for the cleanliness of the facility and for changing bed sheets; cooks; dishwashers; and
a laundry worker.

    1
      A nonformal complaint is an “[o]ral or unsigned complaint[], or [a] complaint[] by former employees or

non-employees.” OSHA Field Inspection Reference Manual (FIRM) I-(C)(2)(d). Donna Baker, an employee of an
outside program housed at Azalea’s facility, testified that she filed the written complaint with OSHA (Tr. 50). The
FIRM specifies that “[i]f no action has been taken [on the part of the employer], the nonformal complaint shall
normally be activated for inspection.” FIRM, I-(C)(7)(d)(1).

                                          Discussion
    In order to establish a violation of an occupational safety or health standard, the Secretary

must prove:
(a) the applicability of the cited standard, (b) the employer’s
noncompliance with the standard’s terms, (c) employee access to
the violative conditions, and (d) the employer's actual or
constructive knowledge of the violation (i.e., the employer either
knew, or with the exercise of reasonable diligence could have
known, of the violative conditions).
Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994).
Hearsay Testimony
During the course of the hearing, the Secretary attempted to introduce several out-of-
court statements through Posusney. Certain statements attributed to individuals, offered as party-
opponent non-hearsay, were deemed inadmissable under the Federal Rules of Evidence (FRE) and
were excluded. For these and for other excluded statements, the Secretary argues that the
Commission is subject to the Administrative Procedures Act, 5 U.S.C. § 551, et seq., (APA) and
that hearsay evidence should be generally admissible in administrative proceedings. In hearings
before the Commission, however, the Federal Rules of Evidence have been made explicitly
applicable. 29 C.F.R. § 2200.71. Hearsay statements are not generally admissible, but can be
admitted if they fall within the oft-invoked provisions of FRE Rule 801(d)(2)(D) or other
applicable Federal Rules of Evidence. See Regina Construction Company, 15 BNA OSHC 1044,
1047-48 (No. 87-1309, 1991). The Secretary’s proffered statements did not qualify for admission
under the FRE.
Citation 1
Item 1: § 1910.141(a)(5)
The Secretary alleges that Azalea did not prevent the entrance or harborage of rodents and
insects in its facility. The standard provides:
Every enclosed workplace shall be so constructed, equipped, and
maintained, so far as reasonably practicable, as to prevent the
entrance or harborage of rodents, insects, and other vermin. A
continuing and effective extermination program shall be instituted
where their presence is detected.

     Since the 1960s, Azalea’s residential care facility has operated in an older three-story

structure located in the inner city of Philadelphia (Tr. 543). Mice and insects were observed in
the Azalea facility by the employee witnesses, as well as by the contract employee Donna Baker.
Mice were sighted in the back of the facility near the dispensary, in a dining room, and in the
hallway. Roaches were seen in the dining room. The facility was not air-conditioned, and
residents frequently propped open a rear-door near the facility’s dumpster (Tr. 18-19, 42-44, 51,
61). The regular presence of flies was reported.
Azalea contends that the standard does not require a workplace to be “free of rodents,”
but only that there be a “continuing and effective program of extermination” (Azalea brief, pp. 6-
7). The standard requires that the workplace be maintained vermin free “as far as reasonably
practicable.” As Azalea suggests, it may not always be reasonable for such an older facility to be
completely vermin free where food is prepared and where numbers of people live in close
quarters.
As required for personal care facilities, Azalea had a regularly-scheduled vermin control
program. The contract exterminator, SAB Environmental Services, submitted reports of its bi-
monthly inspections to Azalea. Relying on SAB’s reports for an approximate nine-month period
(Exh. C-8), the Secretary argues that Azalea’s vermin control program was ineffective. The
reports repeatedly indicated the presence of “harborage areas,” “openings,” and “rodent
dropping[s].” SAB’s technicians reiterated that Azalea should repair a hole in a “pot sink” and
that “openings and cracks” should be sealed “throughout.”2 Even assuming that some of the
comments refer to different areas of deficiency in the facility (with the exception of the “pot sink”
and sealing cracks “throughout”), the reports document the existence of vermin control problems
which remained uncorrected for long periods, including the period at issue here.
It was reasonably practicable for Azalea to follow SAB’s recommendations on how to
lessen its vermin infestation. Because Azalea repeatedly ignored the recommendations of its own
vermin control contractor, and because vermin were continually observed during the period at
issue, it is

     2
      The direction to seal the hole under the “pot sink” is found in the sanitation reports dated February 9 and

23, May 10, June 28, September 13, and October 11 and 21, 1996, and to “seal all cracks and holes throughout”
appears in the February 23, March 8, April 26, May 24, June 28, August 23, September 13, and October 25
reports.

concluded that Azalea neither prevented the harborage of vermin nor instituted an effective
vermin control program. Azalea violated the terms of the standard.
Vermin and insects were in areas accessed by employees. Even if the vermin sightings
were not reported to management, Azalea had constructive knowledge of the deficiencies in its
vermin control efforts through SAB’s reports. Also, it could have observed the vermin had it
inspected its premises (Tr. 356).
Dr. Angela Presson, a medical officer with the Office of Occupational Medicine,
Department of Labor, provided compelling expert testimony on the health hazards vermin present
to humans. Rodents, insects, and their excreta carry disease and infectious parasites, such as
tapeworms and echinococcus, salmonella, and shingles, although the potential illnesses depend
upon factors specific to the site. Mice seen out in the open and near food sources are usually
unafraid of humans. These are typically the most dominant and aggressive of the species and can
be expected to bite or scratch humans (Tr. 399, 421-23, 426-427, 473-75).
A violation is serious if there is a substantial probability that death or serious physical
harm could result. It is not necessary that there is a substantial probability that the employees
would become infected after coming into direct contact with the vermin or their excreta. It is only
necessary to prove that the contact is possible and that death or serious physical harm could
result. The likelihood of infection is an important factor in assessing the gravity of the violation
for penalty purposes, rather than for determining whether the violation is serious. See, e.g.,
Bethlehem Steel Corp. v. OSHRC, 607 F.2d 1069 (3rd Cir. 1979). Death is not probable, but
serious illnesses from exposure to vermin-carried viruses and bacteria can occur (Tr. 421-427).
The violation is affirmed as a low-gravity serious violation.
The Commission must give “due consideration” to the size of the employer’s business, the
gravity of the violation, the employer’s good faith, and history of past violations in determining an
appropriate penalty. J.A. Jones Constr. Co., 15 BNA OSHC 2201, 2213-14 (No. 87-2059,
1993). These factors are not accorded equal weight. The gravity of the violation is the primary
element in the penalty assessment. Trinity Indus., 15 BNA OSHC 1481, 1483 (No. 88-691,
1992). The Secretary properly allowed a 40 percent credit because of the small size of the facility
and a 10 percent credit because Azalea had no past history of OSHA violations (Tr. 148, 212,
214-15).

Since Azalea made little or no effort to correct its harborage problems, no credit is afforded for
good faith. Twenty-seven employees were potentially exposed (Tr. 156). Considering these
factors and the low gravity of the violation, a penalty of $800 is assessed.
Bloodborne Pathogen Standard Is Applicable
Items 2a through 4 relate to specific provisions of the bloodborne pathogen standard,
29 C.F.R. § 1910.1030, et seq. Azalea argues that the standard is inapplicable.
The bloodborne pathogen standard “applies to all occupational exposure to blood or other
potentially infectious materials” under § 1910.1030(b). “Occupational exposure” is “reasonably
anticipated skin, eye, mucous membrane, or parenteral3 contact with blood or other potentially
infectious materials that may result from the performance of an employee’s duties.” “Blood” is
defined as “human blood, human blood components, and products made from human blood,”
while “other potentially infectious materials” are defined as:
(1) The following human body fluids: semen, vaginal secretions,
cerebrospinal fluid, synovial fluid, pleural fluid, pericardial fluid,
peritoneal fluid, amniotic fluid, saliva in dental procedures, any
body fluid that is visibly contaminated with blood, and all body
fluids in situations where it is difficult or impossible to differentiate
between body fluids . . . .
Azalea argues that the standard is meant to apply only to “healthcare workers,
undertakers, healthcare laboratories, or other places where there is regular exposure to liquid
blood,” not to Azalea’s personal care facility (Azalea brief, p. 4). Azalea mistakenly focuses on
particular industries where exposures are expected. The standard, in contrast, is concerned with
the specific tasks which result in exposures, regardless of the industry. American Dental Ass’n v.
Martin, 984 F.2d 823 (7th Cir. 1993). The standard applies to an employer where employees are
exposed to blood or other potentially infectious bodily materials, and the exposures are reasonably
anticipated.”4

     3
      Parenteral is defined as “piercing mucous membranes or the skin barrier through such events as needle

sticks, human bites, cuts, and abrasions” § 1910.1030(b).

     4
       Even assuming arguendo that it is necessary to show that the potentially infectious contact caused

exposure to skin, eye, mucous membrane, or parenteral contact, Azalea’s workers contacting, for example, blood
soaked incontinence pads or used insulin needles, were physically exposed in a manner which satisfies this
requirement. The condition of the employees’ dermis is not controlling. Azalea argues that “contact” (referenced
in a non-existent section of the standard) cannot be considered contact with “intact skin.” Possibly Azalea refers to
(continued...)

     As the Secretary contends, three categories of Azalea’s employees perform tasks where

exposures are reasonably anticipated: the PCAs, the housekeepers, and the laundry worker (and
those who fill in for these positions).
(1) PCAs: Azalea’s PCAs bathe, shave, and dress residents. They change soiled bed
linens when housekeeping is not on duty (Tr. 55, 164). Since at least two residents were pre-
menopausal and required assistance during their menstrual cycle, PCAs changed incontinence
pads soaked with blood, as well as blood-soaked sheets (Tr. 84-86, 96).5 Employees were
exposed to blood while shaving male residents. Because of mental or physical disabilities, some
residents were difficult to shave; and cuts did occur (Tr. 71-72). Despite contrary assertions by
Azalea Resident Services Coordinator Lilian Black, PCAs changed residents’bandages and
bandaged cuts (Tr. 71, 95). One resident received care for a gangrenous leg and his open sore
which oozed blood and bodily fluids (Tr. 183). Employees also described caring for a resident
who frequently fell and cut himself, causing a significant amount of bleeding. Although the time
in which this particular resident lived at Azalea was questioned, employees did regularly attend to
bleeding wounds that were not considered severe enough to merit the care of a doctor or
registered nurse (Tr. 61, 65, 92). Three residents at the facility required insulin injections, and at
least one resident was not always able to self-inject insulin (Tr. 516-17). Azalea’s PCAs
dispensed syringes for self-injection, then disposed of the contaminated needles, or injected
residents who were unable to do this for themselves (Tr. 522).
Azalea counters that first aid duties were not assigned to its employees. Resident Services
Coordinator Black testified that Azalea does not have a registered nurse on staff, and that if a
wound required bandaging, the resident would be sent to the hospital or a doctor would be called
(Tr. 509-10). The record does not bear this out. Further, Azalea required PCAs to be trained in
first aid,

     4
         (...continued)

the definition of an “exposure incident,” which is irrelevant to a determination of occupational exposure.
5
The Secretary argued that the PCAs were also exposed when changing incontinence pads soiled with
feces and blood. Under OSHA’s policy, feces and urine are considered potentially infectious only when they are
visibly contaminated with blood. § 1910.1030(b). The Secretary did not prove that the employees had contact with
feces visibly contaminated with blood.

cardiopulmonary resuscitation, and the Heimlich Maneuver. According to Black, this training was
provided solely because the state required it (Tr. 528). See Pennsylvania Code Title 55, Section
2620.73(d). Azalea’s suggestion that its employees waited by an injured resident for the arrival of
an ambulance or doctor was unconvincing in light of other testimony. The failure to act would
seemingly defeat the spirit of the Pennsylvania law.
(2) Housekeepers: Azalea’s housekeepers cleaned rooms, disposed of waste, and removed
and bagged soiled bed linen. The housekeepers were exposed to bloodborne pathogens when the
linen was soiled with the residents’menstrual and other blood and bodily fluids from sores or
wounds (Tr. 510-511).
(3) Laundry worker: Azalea sent its soiled bed linen to a commercial laundry, but the
laundry worker washed towels and personal items, such as nightclothes, onsite. The laundry
worker sorted soiled garments before washing them.6 On rare occasions, the laundry worker was
asked to wash bloody bandages (Tr. 169, 171-172, 262, 328).
Exposure was “reasonably anticipated” and predictable as each of the three classifications
of employees performed their required duties. PCA Felicia Ennis estimated that during her
employment at Azalea, on average, her uniform came in contact with blood or other bodily fluids
three time a week (Tr. 70-71). The bloodborne pathogen standard is applicable to Azalea’s
facility.
Item 2: § 1910.1030(c)(1)(i)
The Secretary alleges that Azalea did not establish a written exposure control plan in
violation of § 1910.1030(c)(1)(i). The standard provides:
Each employer having an employee(s) with occupational exposure
as defined by paragraph (b) of this section shall establish a written
Exposure Control Plan designed to eliminate or minimize employee
exposure.
The purpose of the standard is to eliminate or reduce occupational exposure to
bloodborne pathogens. As discussed, exposure at Azalea was “reasonably anticipated” for its
PCAs, housekeepers, and laundry personnel. Azalea should have examined its procedures to
determine

        6
       The Secretary believed that the laundry worker also shook out and counted the bed linen before it was

sent to the commercial laundry. The exposure to blood arguably may have been greater if this occurred. However,
the record does not support that bags of soiled bed linen were opened before being sent to the outside laundry.

where, how, and to whom exposures could occur. This is the important first step of exposure
control, and its assessment should have been reduced to writing. Having been asked for Azalea’s
exposure control plan, Administrator Peg Bucci gave Posusney a document entitled “Instructions
to All Employees Re: AIDS” (Exh. C-6; Tr. 154, 176-77). The document sets out in its “Ivy
Ridge Personal Care Policy” that HIV and AIDS residents have the same rights as other residents
and that their records were to remain confidential. The document in no way constitutes a plan
“designed to eliminate or minimize employee exposure” to bloodborne pathogens. Azalea offered
no other bloodborne pathogen-related document. The violation is affirmed. Failure to devise
methods and procedures to control exposures limits the employees’ability to protect themselves
from contagion with HIV or HBV, both grave diseases (Tr. 404 - 406). The violation is affirmed
as serious.
The gravity of the violation is high. Twenty employees would have been covered by the
plan had Azalea complied with the standard. Contrary to the FIRM IV- (C)(2)(i)(2), Posusney
did not recommend a 40 percent penalty credit in recognition of Azalea’s small size (Tr. 224).
She mistakenly believed that no credit for size was appropriate for a high gravity violation.
Considering this and other penalty factors discussed for item 1, a penalty of $3,500 is assessed.
Item 3a: § 1910.1030(d)(1)
The Secretary alleges that Azalea failed to observe universal precautions in violation of
§ 1910.1030(d)(1). The standard provides:
Universal precautions shall be observed to prevent contact with
blood or other potentially infectious materials. Under circumstances
in which differentiation between body fluid types is difficult or
impossible, all body fluids shall be considered potentially infectious
materials.
Section 1910.1030(b) defines “universal precautions” as “an approach to the control of
infection . . . [where potentially infections substances] are treated as if known to be infectious.”
Because blood from “source individuals” cannot reliably be identified or segregated, precautions
are taken with all blood and infectious fluids. Azalea contends that the Secretary provided no real
proof that it failed to follow universal precautions. Azalea notes that its employees were afforded
latex gloves and sharps containers. Although gloves and sharps containers are components of the
practice of universal precautions, it is not all the standard requires. This section of the bloodborne
pathogens

standard requires an “approach” or “a standard of care” to possible contagion (Tr. 434). The
specifics of what the “approach” requires are set out in subsequent sections of the standard.
However, having this standard of care is a separate requirement for employers with exposure to
bloodborne pathogens.
The Secretary primarily relies on Bucci’s admission to Posusney that the facility had not
enacted universal precautions (Tr. 180-81). In addition, the Secretary points out that Azalea’s
employees did not have PPE consistently available, were not provided with hepatitis B
vaccinations, were not trained in avoiding exposure, and were not even familiar with the term
bloodborne pathogens (Tr. 487). It is determined that Azalea did not observe universal
precautions and that Bucci and others in management were aware of that fact. Failure to practice
universal precautions lessens the chance of avoiding contagion with a grave, infectious disease.
The violation is affirmed as serious.
Item 3b: § 1910.1030(d)(2)(i)
The Secretary alleges that Azalea did not employ engineering or work practice controls to
minimize occupational exposure to bloodborne pathogens in violation of § 1910.1030(d)(2)(i).
The standard provides:
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.

   “Engineering controls” are defined as “controls (e.g., sharps disposal containers,

self-sheathing needles) that isolate or remove the bloodborne pathogens hazard from the
workplace,” while “work practice controls” are defined as “controls that reduce the likelihood of
exposure by altering the manner in which a task is performed (e.g., prohibiting recapping of
needles by a two-handed technique).” Section 1910.1030(b). When an employer has occupational
exposure to bloodborne pathogens, it must first attempt to eliminate or lessen the exposure
through engineering and work practice controls before relying on PPE. Azalea had some
engineering and work practice controls in place, such as sharps disposal containers and latex
gloves, although the parties dispute whether gloves were always available.

   According to Posusney, Azalea did not institute the engineering control of using red bio-

hazard bags for regulated waste and did not use the work practice controls of requiring employees
to wear impervious gowns to change bandages. Nor, allegedly, did employees always wash their
hands after removing their gloves or when contacting other blood or bodily fluids (Tr. 237, 240-
41). However, there is no proof that employees failed to wash their hands when necessary. For
the rest, these are the same asserted facts, requiring the same abatement, which the Secretary
relies on to support violations of other sections, discussed below, which more specifically apply to
the alleged conditions. See Flint Engineering & Constr. Co., 15 BNA OSHC 2052, 2056-57
(No. 90-2873, 1992). The facts asserted do not sufficiently support the alleged violation. Item
3b is vacated.
Item 3c: § 1910.1030(d)(3)(i)
The Secretary alleges that Azalea did not provide employees with personal protective
equipment impervious to contaminants in violation of § 1910.1030(d)(3)(i). The standard
provides:
When there is occupational exposure, the employer shall provide, at
no cost to the employee, appropriate personal protective equipment
such as, but not limited to, gloves, gowns, laboratory coats, face
shields or masks and eye protection, and mouthpieces, resuscitation
bags, pocket masks, or other ventilation devices. Personal
protective equipment will be considered “appropriate” only if it
does not permit blood or other potentially infectious materials to
pass through to or reach the employee’s work clothes, street
clothes, undergarments, skin, eyes, mouth, or other mucous
membranes under normal conditions of use and for the duration of
time which the protective equipment will be used.

   If engineering and work practice controls do not eliminate exposure, employees must

utilize PPE. Azalea’s employees generally wore gloves while caring for the personal needs of
residents. However, PCA Ennis, among others, testified that Azalea ran out of gloves “a lot,”
usually on a monthly basis. Even without gloves, she continued to perform her duties, including
shaving residents and changing incontinence pads soiled with menstrual blood. She simply “tried
her best” not to get anything on her hands (Tr. 97-98). Former employee Droxine Sample,
employed at the facility during the time of the inspection, also testified that the facility would run
out of gloves (Tr. 122-23, 131-32, 145-46). As discussed, Azalea could reasonably anticipate
that its PCAs would be exposed to blood and other bodily fluids on a regular and recurring basis.

It knew that PPE was required but that gloves were not always available. Its management was
attempting to control what it considered the employees’overuse of gloves. Also, when gloves
were not available, Ennis noted the fact in the log book (Tr. 98, 131-32).
The types of PPE needed for specific tasks should be determined by the employer, after it
realistically assessed the facts (Tr. 247). The standard does not require that all the types of PPE
included in the standard be provided to employees. The record establishes that, at a minimum,
Azalea was required to provide protective gloves. Since Azalea did not consistently provide PPE
in the form of gloves to its employees during the applicable period, the violation is affirmed.
Exposure to blood can result in contracting grave diseases of HIV or HBV. The violation is
affirmed as serious.
Item 3d: § 1910.1030(d)(4)(iii)(B)(1)(iii)
The Secretary alleges that regulated waste (other than sharps) was not placed in
appropriate containers in violation of § 1910.1030(d)(4)(iii)(B)(1)(iii). The standard provides:
Regulated waste shall be placed in containers which are: . . . labeled
or color-coded in accordance with paragraph (g)(1)(i) this standard.
Regulated waste is defined as:
liquid or semi-liquid blood or other potentially infectious materials;
contaminated items that would release blood or other potentially
infectious materials in a liquid or semi-liquid state if compressed;
items that are caked with dried blood or other potentially infectious
materials and are capable of releasing these materials during
handling . . . .
Incontinence pads from menstruating residents, bandages, and dressing from the residents’
sores or wounds, which the PCAs treated at the facility, constituted regulated waste. The PCAs
explained that all waste, including regulated waste, was disposed of by placing it in unmarked,
green plastic bags (Tr. 129, 524). Many employers comply with the requirement for disposal of
regulated waste by using readily-available red bio-hazard plastic bags. During her inspection,
Posusney did not observe these or any other identifiable containers for regulated waste. Bucci
told her that after a recent contact with a state agency Azalea had the red bags. Resident Services
Coordinator Black explained that red bags were available at the time of the inspection, but they
were kept in a drawer in her office, in case they were needed. In Black’s opinion, the red bags
were needed if someone whose medical history was unknown to her was badly hurt and bleeding
(Tr. 154, 253, 557-58). Even if Azalea had the red bags at the facility, employees were not aware

that they should use them to dispose of the regulated waste which it routinely generated. In fact,
Angela Bridges, who held the same position as Black, did not know that Azalea had the red bags
at the facility (Tr. 590). Bio-hazard containers or red bags should have been used for all regulated
waste, not only those which prompted Black’s concern. Failure to properly identify regulated
waste may lead to contagion through contact with blood or infectious bodily fluids. The violation
is affirmed as serious.
Item 3e: § 1910.1030(d)(4)(iv)(A)(2)
The Secretary alleges that contaminated laundry was not placed or transported in
appropriate containers in violation of § 1910.1030(d)(4)(iv)(A)(2). The standard provides:
Contaminated laundry shall be placed and transported in bags or
containers labeled or color-coded . . . . When a facility utilizes
Universal Precautions in the handling of all soiled laundry,
alternative labeling or color-coding is sufficient if it permits all
employees to recognize the containers as requiring compliance with
Universal Precautions.
As with regulated waste, contaminated laundry must be identifiable so that employees
know it requires special handling. Azalea laundered towels and the residents’personal clothing at
the facility, but sent its soiled bed linen to a commercial laundry (Tr. 255, 262). At times, the bed
linen and the personal clothing were contaminated with blood and bodily fluids (Tr. 92-97).
Laundry contaminated with blood and bodily fluids should have been placed in bags or identified
containers.
Resident Services Coordinator Black testified to Azalea’s procedure for handling laundry.
Neither her description nor that of the interviewed or testifying employees included any special
handling for contaminated laundry. The housekeepers (and the PCAs if the housekeepers were
not available) gathered the soiled items off the beds and from the rooms and placed them in the
same type of unmarked green bags used for all waste (Tr. 534-525). Failure to place items
contaminated with blood into recognizable containers or bags violated the standard. Because
bloodborne pathogens can be passed to employees either in the liquid, semi-liquid, or dried blood
states, as would commonly be found in laundry, the violation is affirmed as serious.

                            Item 3f: § 1910.1030(d)(4)(iv)(B)

    The Secretary alleges that employees who had contact with contaminated laundry were

not provided with appropriate personal protective equipment in violation of §
1910.1030(d)(4)(iv)(B). The standard provides:
The employer shall ensure that employees who have contact with
contaminated laundry wear protective gloves and other appropriate
personal protective equipment.
Contaminated laundry is defined as “laundry which has been soiled with blood or other potentially
infectious materials or may contain sharps.” 1910.1030(b).
Resident Services Coordinator Black testified that as the linens were removed from the
beds, the soiled laundry was counted and placed into bags. A piece of paper with the count was
placed on the bag, and the laundry was taken to the basement. There were separate bins for bed
linens, which would be sent to the outside laundry, and for the residents’personal clothing and
towels. The latter were laundered on the premises (Tr. 524-25). Laundry employee Rona
Holmes explained to Posusney that she always used impervious gloves when sorting or touching
the laundry. Unlike the PCAs and housekeepers, Holmes did not describe running out of gloves.
In Posusney’s opinion, Holmes should have worn impervious protective clothing on her arms and
over her lap, in addition to her gloves (Tr. 250-51). Posusney’s concern that Holmes shook out
bed linens was not substantiated. The Secretary did not establish the type of gross contamination
which required additional protective clothing, beyond what was afforded by gloves. Item 3f is
vacated.
Item 3g: § 1910.1030(d)(iv)(C)
The Secretary alleges that contaminated laundry, which was not in appropriate containers,
was shipped to a facility that did not utilize universal precautions in violation of
§ 1910.1030(d)(iv)(C). The standard provides:
When a facility ships contaminated laundry off-site to a second
facility which does not utilize Universal Precautions in the handling
of all laundry, the facility generating the contaminated laundry must
place such laundry in bags or containers which are labeled or
color-coded in accordance with paragraph (g)(1)(i).
Azalea shipped a portion of its laundry to an outside, “second” laundry. Some of the
laundry was contaminated with blood or bodily fluids. At the hearing, Azalea argued, and the
undersigned agreed, that the Secretary must show that the second facility did not utilize universal
precautions in order to sustain a violation (Tr. 499-501). Upon the Secretary’s failure to present

admissible evidence on the issue, Azalea’s motion to dismiss this item was granted (Tr. 505).
Reconsideration of the action does not yield a different disposition. For the reasons previously
stated, Item 3g is vacated.
Penalty for Items 3a, 3c, 3d, and 3e
The gravity of the violation is high, even for the laundry worker, who may not have had
contact with the blood or infectious fluids for many hours after initially deposited. As Dr. Presson
responded when asked if sheets or towels soiled with blood could cause contagion (Tr. 412):
A. Hepatitis B has been shown to survive and still be active after at
least 7 days on a dry surface, and it is believed to live much longer
than that in moist environments. Also, HIV has been found up to
18 hours and later in a person after that person has died. So, yes.

   The Secretary grouped items 3a through 3g for penalty purposes, noting that all were

directed at specific methods of compliance with the standard (Tr. 244). Four of the seven
grouped items have been affirmed. The same penalty factors previously discussed apply here.
The bloodborne pathogens can cause serious, life-threatening diseases. A penalty of $5, 000 is
assessed.

                               Item 4: § 1910.1030(f)(2)(i)
   The Secretary alleges that hepatitis B vaccinations were not made available to employees

as required by § 1910.1030(f)(2)(i). The standard provides:
Hepatitis B vaccination shall be made available after the employee
has received the training required in paragraph (g)(2)(vii)(I) and
within 10 working days of initial assignment to all employees who
have occupational exposure . . . .

   Hepatitis B vaccinations are “made available” when an employer informs employees where

they can receive the vaccination free of charge. Dione Williams, M.D., 17 BNA OSHC 1815,
1816 (No. 95-1007, 1996) (ALJ). PCA supervisor Andrew Coach told Posusney that he had not
received a hepatitis B vaccine, and Bucci told Posusney that the vaccinations were not offered to
employees (Tr. 163-64, 173-74, 274). It is concluded that Azalea did not make the vaccinations
available. Hepatitis B infection through exposure to bloodborne pathogens is not uncommon.
Exposed persons may become carriers of the diseases or the disease may become acute, with
death being the likely result (Tr. 404). The violation is affirmed as serious. Considering the

factors previously discussed, and the fact that as many as 20 PCAs, housekeepers, and laundry
employees should have been offered the vaccine’s protection, a penalty of $3,500 is assessed.
Item 5: § 1910.1030(g)(2)(i)
The Secretary alleges that Azalea did not ensure that employees exposed to bloodborne
pathogens participated in a related training program in violation of § 1910.1030(g)(2)(i). The
standard provides:
Employers shall ensure that all employees with occupational
exposure participate in a training program which must be provided
at no cost to the employee and during working hours.

   Azalea required its employees to participate in CPR, first aid, and Heimlich Maneuver

training. It somewhat weakly claims that it had scheduled bloodborne pathogen training for the
month after Posusney began the inspection (Exh. C-10; Tr. 276). Resident Services Coordinator
Black asserted that such training was provided, and that she recalls attending this training in 1995
and 1996. Angela Bridges, formerly the resident services coordinator and supervisor, believed
off-site training in bloodborne pathogens was provided to supervisors like herself. She was not
aware whether any others were trained (Tr. 595-596). The supposition that other employees did
not receive the same training is borne out by employee testimony and admissions. PCA Ennis
testified that Azalea had not provided her with training on how to protect herself from bloodborne
infections (Tr. 80-81). During the inspection, Coach and Holmes stated that they had not been
trained in the hazards of exposure to bloodborne pathogens. Both had been longer-term
employees who should have received training at the time of their initial employment. §
1910.1030(g)(2)(ii). Peg Bucci admitted to Posusney that Azalea did not offer a training
program in bloodborne pathogens (Tr. 163, 169, 173).
The penalty factors discussed, as well as the high gravity of failing to train 20 employees
on how to minimize the risks of occupational exposure to bloodborne pathogens, have been
considered. Also considered was the fact that at least supervisors were trained. A penalty of
$3,000 is assessed.

                  FINDINGS OF FACT AND CONCLUSIONS OF LAW

   The foregoing decision constitutes the findings of fact and conclusions of law in

accordance with Rule 52(a), Fed.R.Civ.P.
ORDER
Based on the foregoing decision, it is ORDERED:
Item Standard Disposition Penalty
1 § 1910.141(a)(5) Affirmed $800
2 § 1910.1030(c)(1)(i) Affirmed $3,500
3a § 1910.1030(d)(1) Affirmed $5,000 (grouped
3a,3c,3d,3e)
3b § 1910.1030(d)(2)(i) Vacated --
3c § 1910.1030(d)(3)(i) Affirmed --
3d § 1910.1030(d)(4)(iii)(B)(1)(iii) Affirmed --
3e § 1910.1030(d)(4)(iv)(A)(2) Affirmed --
3f § 1910.1030(d)(4)(iv)(B) Vacated --
3g § 1910.1030(d)(iv)(C) Vacated --
4 § 1910.1030(f)(2)(i) Affirmed $3,500
5 § 1910.1030(g)(2)(i) Affirmed $3,000

                                         NANCY J. SPIES
                                         Judge

Date: February 11, 1999