- For All Industries Except Construction
If you work exclusively within the construction industry and believe that this section does not apply to you, disregard this section and move directly to "B", below, at your own risk.
For everyone else, Title 8 CCR section 5193 applies to all occupational exposure to blood or other potentially infectious materials (OPIM). "Occupational exposure", is defined as "reasonably anticipated skin, eye, mucous membrane, or parenteral contact with blood or other potentially infectious materials that may result from the performance of an employee's duties".
The Division (Cal/OSHA Enforcement) breaks the application of this regulation into three groups:
- Category One Facilities and Operations;
- Category Two Facilities and Operations; and
- Other: Facilities and Operations presenting ANY risk of cut, abrasion or puncture.
Category One
Let's start with the easy answer. If you are in the healthcare industry or otherwise provide medical, dental or public safety functions, it is reasonable to anticipate employee contact with blood or OPIM and this regulation applies to you. For a complete list of what the Division calls "Category One" facilities and operations, see the Division's Frequently Asked Questions About the Bloodborne Pathogens Standard publication and scroll down to frequently asked question 4.
Category Two
Remember, the regulation applies to all occupational exposure. Application of this regulation does not depend only upon the nature of the facility where work is being conducted, i.e. the hospitals. And, that brings us to what the Divisional calls Category Two facilities and operations. These involve activity-specific occupational exposures. Category Two includes, simply put, those other situations that involve reasonably anticipated contacts with blood or OPIM.
The Division's examples of Category Two facilities and operations include housekeeping services at lodging facilities or sanitation services where it is reasonable to anticipate that an employee may come in contact with discarded needles or other contaminated waste, emergency response teams responsible for providing first aid. The key here is that exposure is reasonably anticipated and, if so, section 5193 applies.
A recent example of what the Division considers a reasonably anticipated exposure is the use of tagging guns in the garment or retail clothing industry. In a Summer, 2009 inspection of Wal-Mart, the Division found the store in violation of section 5193 as related to its employee use of shared tagging guns. This resulted in three general and two serious citations as well as a citation for failure to provide hand protection. The citations have been appealed.
Reasonable Anticipation
Is contact with blood or OPIM reasonably anticipated in your work? The fact that the Division's Policy and Procedures Manual does not provide its inspectors with any direction as to what constitutes "reasonable anticipation" may indicate its recognition of the fact that: It depends. Yes, this is one of those famous "I will know it when I see it" situations. Take the Division's example of the lodging facility housekeepers. Does a conclusion regarding potential exposure depend on the location of the facility? An evaluation of the clientele? A history of finding needles in the bed sheets?
Our conclusion about what contact should be reasonably anticipated may differ from yours. And, your conclusions will differ from those of the Cal/OSHA inspector. So, what is the answer to this age old compliance dilemma? Evaluation. Our advice: Evaluate your work sites and practices for potential bloodborne pathogen exposures. And, re-evaluate your work sites and work practices for potential exposures when any change in circumstance may lead you to suspect an exposure.
Here are some (and certainly not all) of the questions that may be addressed during your evaluation:
- Does employees' regular activities bring them into contact with any objects that may contain blood or OPIM (needles, rags, bandages etc.)?
- Are employees working in an environment where they may come into contact with such objects (recycling facility, laundry etc)?
- Are employees required to respond to medical emergencies?
- Are employees trained to respond to medical emergencies?
- Do employees work with a client or customer base that includes characteristics that would make it reasonable to anticipate employee exposure to blood or OPIM?
- Do employees share any tool or object that may cause cuts or puncture wounds?
- Has an employee been exposed to blood or OPIM since your last evaluation? What were the circumstances of the exposure?
Category Three - Any Risk of Cut, Abrasion or Puncture
Now, we have covered the health care industry (Category One) and all of those "other" reasonably anticipated situations (Category Two). That should be the end of the discussion, right? Wrong.
More disturbing than Cal/OSHA's failure to assist its inspectors in defining "reasonable anticipation" is its apparent direction to issue citations in cases with "less than reasonably anticipated occupational exposure" (see DOSH P&PM C-14(B)(5)).
In situations where the risk to employees of contact with blood or OPIM can not be reasonably anticipated, the Division directs inspectors to turn to Title 8 CCR 3203 (the Injury and Illness Prevention Program (IIPP) regulation) and evaluate the employers IIPP for effective prevention of exposure incidents. READ: If you can not cite the employer for violation of the BBP regulation go direction to 3203 and do not pass go.
We recognize that an employer has an obligation, under section 3203, to evaluate and identify the hazards associated with possible exposure to hazards (including bloodborne pathogens), adopt procedures and rules to protect employees against the hazards identified and to train employees to follow the established rules and practices. That the Division believes these requirements apply to hazards that can not be reasonably anticipated makes our heads feel like they are going to explode. 2
- The Construction Exception
It is pretty clear that section 5193 specifically provides that it does not apply to the construction industry. It is less clear that those giving the Division its enforcement tips read that part of the regulation.
The Division's Frequently Asked Questions About the Bloodborne Pathogens Standard publication (question 5), specifically lists plumbers required to work on plumbing or sewage systems in hospitals as being covered by section 5193. Following this reasoning, the Division's application of the regulation may cover other construction activities in or involving hospitals. The Division's, um, shall we call it "interpretation" of the construction exception has not been addressed by the Occupational Safety and Health Appeals Board.
However the exception is interpreted, it is not true that the construction industry may ignore the hazards presented by the potential exposure of employees to bloodborne pathogens. If you don't believe it, see Category Three, above.
