Empowered OSHA targets airborne infectious disease hazards

Record keeping to include tracking of MSDs on 300 log

Expect more regulation. Like a sleeping giant that awakens with a roar, the U.S. Occupational Safety and Health Administration is moving forward with new initiatives, including the first steps toward a possible airborne infectious diseases standard and renewing proposed record-keeping rules on musculoskeletal disorder (MSD) injuries.

In fact, in a web-based address, U.S. Labor Secretary Hilda L. Solis highlighted airborne infectious diseases as one of the top concerns in her new regulatory agenda. "The lack of compliance with everyday infection control procedures has received increased focus because of the 2009 H1N1 pandemic. OSHA is interested in whether current procedures are adequate enough to prevent infections among exposed workers," she said.

"Reducing workers' risk of exposure of health and safety hazards is a priority of my administration," Solis added. OSHA will hire 100 additional inspectors in the fiscal year 2010 budget, she said.

As of mid-December, OSHA had not yet cited any hospitals for failing to use N95 respirators to protect health care workers caring for 2009 H1N1 patients. But OSHA had conducted "several" inspections, Solis reported. "OSHA has moved aggressively to address the hazards of H1N1 pandemic influenza in the workplace," relying on existing standards and the General Duty Clause, said Jordan Barab, then acting head of OSHA, in a separate web-based chat. (OSHA chief David Michaels was confirmed by the U.S. Senate in December.)

OSHA's decision to enforce the recommendation from the Centers for Disease Control and Prevention for health care workers to use N95s when caring for patients with 2009 H1N1 has been contentious, reviving the longstanding divisions between infection control professionals and industrial hygienists on this issue. Infection control practitioners believe surgical masks provide adequate protection and wrote a letter to President Obama asking for a halt to the OSHA enforcement.

Although the National Institute for Occupational Safety and Health (NIOSH) is not a regulatory agency, it also has an ambitious agenda to address health care hazards. In a statement published in the NIOSH online newsletter, enews, NIOSH director John Howard stated, "I do not think we can return to an era when a health care worker's exposure to transmissible diseases such as influenza can be merely considered 'diseases of life' for which a health care worker 'assumes the risk' when he or she offers their labor to a health care employer."

New OSHA initiatives may mean hospitals will provide more resources to employee health professionals, says Sandra Domeracki Prickitt, RN, FNP, COHN-S, executive president of the Association of Occupational Health Professionals in Healthcare and coordinator of Employee Health Services at Marin General Hospital/Novato Community hospitals in California.

The greater emphasis on enforcement under the Obama administration is not a surprise, she says. "I think that's what everyone expected," she says.

Barab, who will remain as deputy assistant secretary for OSHA, helped promulgate the ergonomics standard when he was previously at OSHA from 1998 to 2001, and he previously worked in health and safety with the AFL-CIO and the American Federation of State, County, and Municipal Employees.

"This White House is concerned about worker safety and health," says Bill Borwegen, MPH, health and safety director for the Service Employees International Union (SEIU). "I know it might be a departure from the previous administration, but we think it's a very healthy development and we applaud the leadership of the Obama administration in protecting health care workers."

OSHA said it plans to issue its Request for Information related to airborne infectious diseases in the Federal Register in March. "There is evidence that a lack of adherence to voluntary infection control recommendations has resulted in the transmission of disease to workers. OSHA is seeking information on the extent to which voluntary recommendations are being followed and whether mandatory regulations would be more effective," the agency said (www.dol.gov/regulations/factsheets/osha-fs-airborne.htm).

Specifically, the agency said it will seek information on:

• studies and data describing the nature and scope of occupational exposure and illness from airborne infectious diseases;

• the efficacy of current control measures for reducing occupational exposures;

• components of an effective infection control program;

• information to help decide whether or not to pursue rulemaking.

The California Aerosol Transmissible Diseases standard may provide a template for an OSHA standard. Cal-OSHA was able to achieve support for standard from both the California Hospital Association and labor unions representing health care workers. While it requires fit-tested N95 respirators (or greater protection) for health care workers caring for patients infected with a novel pathogen, it also temporarily allows fit-testing to occur biannually rather than every year. That provision was based on the premise that future research will clarify fit-testing issues and it automatically expires in 2014.

OSHA shifts on MSD tracking rule

Meanwhile, the rulemaking to renew a requirement to track MSDs on the OSHA 300 log represents a reversal of Bush administration policy. The 2001 revised record-keeping rule would have required a separate column for work-related MSDs, but OSHA first delayed enforcement of the provision, then eliminated it.

The problem: How to define MSDs, a point of controversy in the development of the ergonomics standard, which was rescinded by Congress in 2001. "OSHA found that no single definition of 'ergonomic injury' was appropriate for all contexts," the agency said when it suspended the MSD reporting requirement.

This administration doesn't share that hesitation. However, Solis said the possible return of the MSD reporting rule is not a first step toward a new ergonomics standard. (OSHA is prohibited from issuing a standard that is "substantially the same" as the one rescinded by Congress under the Congressional Review Act.)

"MSDs continue to be a major problem for American workers, but at this time, OSHA has no plans for regulatory activity," Solis said in the web chat.

Yet it signals that the Obama administration is willing to take on the issue of ergonomic hazards, says Brad Hammock, Esq., workplace safety compliance practice group leader at Jackson Lewis LLP in the Washington, DC, region office.

"It's a significant development because it reignites the debate about musculoskeletal disorders, how you define them and what you should do about them, how you should classify them and characterize them," he says. "They're not backing down from ergonomics."

In fact, Barab acknowledged that OSHA will explore its options for addressing ergonomics, including industry-specific standards such as a patient handling rule. "[W]e will intensify the process of determining how we are going to address ergonomics," he said.

(Editor's note: Additional information on the OSHA and U.S. Department of Labor regulatory agenda is available at www.dol.gov/regulations.)