Unions, health care groups square off over OSHA’s proposed TB standard

Battle for final rule: ‘Horror’ stories vs. science

As a loose coalition of health care organizations pull together resources and opposition toward the Occupational Health and Safety Administration’s (OSHA) proposed TB standard, labor unions are calling on members to gather evidence that the scope of the standard is justified and, indeed, may need to be expanded.

Public comment on the proposed standard, which was slated to end Dec. 16, has been extended to Feb. 17. The 60-day extension was granted after six health care organizations requested more time to respond. The groups were: American Medical Association, American Hospital Association, Association for Professionals in Infection Control and Epidemiology (APIC), American Society for Microbiology, Society of Health Care Epidemiology of America (SHEA), and National Health Care for the Homeless Council.

"We understand that this is a very complex issue, with far-reaching implications," said OSHA’s Assistant Secretary Charles Jeffress. "We’ve said all along that we seek broad public participation in this process."

Reactions to the standard still coming in

Since OSHA published its proposed rule Oct. 17, more than 70 groups or individuals have written comments on the standard. Most groups are still pouring over the lengthy document and seeking reactions from their constituents and advisory committees. And while different constituents have differing concerns about the standard, there appears to be a growing coalition of health care groups attempting to reach a consensus on how to respond to the standard. Five of the six organizations seeking the extension, for example, made their request under the same letterhead, according to OSHA officials.

"The health care industry is lining up, not necessarily to kill this thing, but they are talking about what their positions will be," says James August, occupational and health safety specialist for the American Federation of State, County, and Municipal Employees (AFSCME) in Washington, DC.

Michael Tapper, MD, chief of infectious disease and hospital epidemiology at Lenox Hill Hospital in New York City and point man for SHEA’s comments, tells TB Monitor that "a lot of people are disturbed by different aspects of the standard or by the presence of the standard at all. There are a lot of questions about the assumptions in the [standard’s] preamble, which justified why OSHA is writing the standard."

Some of those assumptions, he says, are based on data that are now nearly four years old — a period during which TB rates have declined to levels seen before the TB epidemic emerged in the mid 1980s. As a result, OSHA’s assessment exaggerates the rates of TB infection, the length of progression to disease, the risk of multidrug-resistant strains, and the morbidity and mortality of TB infections in health care workers, he adds.

"There has been a real dramatic drop off in the number of patients hospitalized with TB," Tapper notes. "No one can say there is no risk to TB workers — there always has and always will be. But I think the risk is obviously much less simply based on the fact that there are fewer TB patients out there."

Had the OSHA proposed rule not extended its reach beyond the 1994 TB control guidelines issued by the Centers for Disease Control and Prevention, health care providers would not be so upset, Tapper explains. Not only is there no scientific basis for deviating from the CDC guidelines, but as a practical issue, having two sets of documents will cause confusion, he adds.

"To the extent they can be harmonized and OSHA can seek to enforce CDC guidelines, I think it will be easier on most institutions," he adds.

Proposal not going far enough

AFSCME, however, would like to see the reach of the OSHA guidelines expanded even farther so that they also cover mental health, social services, and long-term care for the non-elderly. "Our big problem with the standard as proposed is it doesn’t cover enough workers," August tells TB Monitor. "Any congregant living situation has higher TB than other places, and they just blow them off and there doesn’t seem to be any scientific basis for that."

Even if the CDC guidelines are adequate in protecting health care workers, the fact that they are not enforceable is reason enough for the standard, August argues. [The OSHA proposed standards "are not that much different from the CDC, but the problem is that the CDC guidelines are not enforced and not enforceable," he says. "I don’t care if 90% are doing a good job. If they are, then this regulation won’t be burdensome because they are already doing virtually what is needed to be done according to this regulation."

In an effort to prove that CDC guidelines are not enforced, AFSCME is surveying its members, looking for witnesses and data to present during public hearings that will be held in Washington, New York, Chicago, and Los Angeles. According to a letter from the union’s director of research and collective bargaining services sent out over the Internet, evidence it seeks includes "data, anecdotes, or witnesses showing that employers are not complying with proper TB precautions; stories or data about working conditions and TB infections in social service workplaces, schools, law enforcement, homeless shelters and legal services; and any ‘horror’ stories by witnesses telling of job-related TB infections and the effect it had on their lives and the lives of their family members."

As with the legislative process, the OSHA rule-making process is expected to bring compromises from both groups. And while the public hearing process is necessary, the unions, which petitioned OSHA more than five years ago, are frustrated that it will be at least another year before the rule is finalized.

"It takes lots of patience," August says. "The bloodborne pathogen was on the fast track, and that took six years."

OSHA officials defend the rationale behind the proposed rule but acknowledge that changes can be made if evidence supporting them is compelling and strong. Two proposals that have garnered the strongest complaint have been the requirement for annual respirator fit-testing and the need for employers to skin-test workers 30 days after they leave the job.

A glance at the comments already posted on the Federal Register docket indicates that the post-employment testing is not being embraced, says August. "One common thing was that employers are complaining how in the world they will do follow-up testing after someone has left employment," he says.

Another contentious area where OSHA varies from the CDC is in the frequency of skin-testing. OSHA proposes retesting every six months for many employees with occupational exposure, compared with the CDC’s recommendation for annual retesting of employees in low-risk categories and every six to 12 months for those in intermediate-risk categories.

OSHA skin-testing frequencies do vary from CDC recommendations but are not totally different, says Amanda Edens, OSHA project officer for the TB standard. While the CDC advises retesting at three-month intervals for some high-risk workers, OSHA has no such provision, she notes. The proposal requires six-month retesting for some workers with higher exposure potential, and "some people don’t necessarily agree with that, but that’s the whole reason for having the rulemaking. We’ll listen to what they say, and if it’s a really convincing argument, we could change it," she adds.

The provision for annual fit-testing has generated some of the loudest complaints from health care workers. Many infection control experts argue that the new N95 respirators are too malleable to make fit-testing reliable. APIC, for one, favors fit-checking instead of annual fit-testing whenever an N95 is worn.

Indeed, infection control coordinators, such as Kris Tarro, RN, who is in charge of employee health training at Athens (GA) Regional Medical Center have heard colleagues claim they would rather face OSHA fines than try to comply with the annual fit-testing rule. Tarro has been providing fit-testing for new employees and has trained trainers to ask employees during their annual physical if they have undergone any changes, such as weight loss, that would require additional fit-testing. Fit-testing each employee once a year, however, "is going to be almost impossible," she says. "The way our hospital is set up, we don’t have just one floor for TB patients, so we would have to train basically all employees throughout the hospital."

Edens explains that fit-testing is an important aspect of a respiratory protection program and that respirators that rely on a face seal must be fit-tested. Nonetheless, she says OSHA is open to receiving hard data showing that fit-checking would be a more reliable way of ensuring a respirator seals a face than fit-testing.