OSHA gets an earful at TB hearing, but unions urge agency to hang tough

National debate is joined on TB standard as hearings begin

Infection control professionals and union representatives voiced sharply different opinions on a controversial tuberculosis standard proposed by the Occupational Safety and Health Administration as hearings opened recently in Washington, DC.¹

Citing a host of problems with the proposed rule, the Association for Professionals in Infection Control and Epidemiology urged OSHA to form a scientific advisory panel, comprising experts on TB and health care epidemiology, to thoroughly analyze the proposal's various provisions before a TB standard is finalized.

Because OSHA standards wield the power of enforcement and fines, they should be held to the "highest level of indisputable scientific scrutiny," APIC argued in testimony delivered by Julie Sellers, RN, CIC, at an April 13 hearing at the U.S. Department of Labor. Such rigid mandates should only be issued if there are definitive scientific supporting data, a "sound and balanced" risk/benefit analysis, and evidence that the standard will provide significant additional protective benefit above and beyond what currently exists, Sellers said.

"The OSHA-proposed TB rule meets none of these criteria," said Sellers, chairperson of the APIC governmental affairs committee.

Though OSHA officials have said they will use the hearing and comment process to revise the proposed rule as warranted, APIC is clearly concerned that the agency is merely going through the motions in soliciting comments and testimony.

"In light of our experience with OSHA throughout the development of this draft rule, however, we remain profoundly concerned about the seemingly perfunctory nature of the public comment process," Sellers testified. "Simply going on record with our concerns is not enough - we are requesting that OSHA make every effort to carefully weigh the scientific merits of both sides of this issue, given the current epidemiology of TB in the United States."

However, as this issue of Hospital Infection Control went to press, the APIC governmental affairs committee reported that OSHA may be "open to modifying" some of the controversial provisions in the standard. Those include possible revision of some of the proposed skin-testing requirements, as well as the medical removal protection provisions, according to a legislative update released in San Diego at the 25th annual APIC conference.

A challenge met

Emphasizing APIC's concern about the nosocomial TB outbreaks that occurred in the early 1990s, Sellers testified that the health care system has met the threat by adopting TB control measures such as guidelines by the Centers for Disease Control and Prevention.²

"According to the CDC, the incidence of TB in the U.S. has dropped to the lowest level ever recorded due to the cooperative efforts of our medical and public health communities," she said. "Clearly, the TB 'crisis' that OSHA is attempting to address has passed." (See MMWR Update, p. 91.)

However, health care worker union officials emphasized that similar protests surfaced during the debate over the agency's bloodborne pathogen standard in the 1980s. Yet that standard's requirements for health care worker infection control training and offering hepatitis B virus immunization have substantially improved occupational safety in clinical settings, testified Bill Borwegen, director of the occupational health and safety program of the Service Employees International Union (SEIU) in Washington, DC.

"The OSHA bloodborne pathogens standard has saved hundreds, if not thousands of workers' lives, and is a concrete example of how an OSHA standard in this industry can work," Borwegen testified. "But it is also a textbook case of how large segments of the healthcare industry will not act voluntarily to protect [their] own workers without a legally enforceable OSHA standard."

While conceding that many health care institutions are now in compliance with the 1994 CDC TB guidelines, Borwegen appealed to the conscience of individual ICPs to support a standard that would protect workers in "low road" facilities.

"What responsibility does the infection control community have to workers in workplaces where the employer has yet to even hire an infection control practitioner, and has no desire, nor even an understanding of how, to comply with the CDC guidelines?" he testified. "The re-emergence of TB in the workplace provides a golden opportunity for infection control practitioners to make a major contribution in stemming the tide of this epidemic."

As with the bloodborne pathogens standard, a TB standard could bolster staffing and financial resources for infection control programs, he noted, adding that APIC's opposition does not necessarily represent all ICPs.

"I urge all infection control practitioners to join with us, the representatives of the nation's health care employees, and work together for a strong and effective OSHA TB standard," Borwegen testified. "Without your active commitment to this process, while your institution may be in compliance with the CDC guidelines, we will fail in our larger professional and ethical responsibilities to bring protections to all at-risk employee populations."

On the other hand, APIC presented data compiled from the CDC and the U.S. Census that showed that health care workers actually have a lower incidence of TB than the general population. For example, TB incidence in health care workers was 5.6 cases per 100,000 workers in 1996 and 5.3 cases per 100,000 workers last year, Sellers noted. In contrast, the incidence of TB per 100,000 people in the general population was 8.1 in 1996 and 7.4 in 1997. (See chart, p. 83.)

Likewise, the fatality risk of TB in health care workers also does not appear to meet OSHA's "significant health risk" standard of one death per 1,000 people over a 45-year period, she added. Even a state like New York with higher TB prevalence falls short of the significant health risk level, with only 0.4 TB deaths per 1,000 workers over 45 years, she noted. Moreover, health care workers with TB are more likely to be foreign-born than TB cases in general, suggesting that the risk of TB disease may be associated with exposures outside of the health care setting (i.e., in their countries of origin or from their community contacts) for a substantial proportion of the cases. For example, in 1997, 75% of the health care workers with TB were foreign-born compared to 52% of the total TB cases in the United States, Sellers testified.

"APIC is resolute in its belief, based on the reasons we have outlined, that this standard will have little or no added benefits in minimizing the risk of health care worker acquisition of TB in the health care setting," Sellers concluded. "Furthermore, it has been proven that the rate of TB in this country is at an all-time low. Clearly, there is not a 'significant health risk under existing conditions' as the OSHA Act requires."

Compliance increasing in hospitals

Indeed, TB is in decline, and surveys conducted jointly by the CDC and the American Hospital Association indicate significant progress over the past five years in implementing key control measures, testified Gina Pugliese, RN, MS, CIC, an infection control consultant who testified on behalf of the AHA.

"The majority of hospitals have instituted essential TB control measures, including follow-up testing after exposures and respiratory protection programs utilizing the N95 respirator," she said. "Thus, to the extent OSHA's proposed standards are consistent with the CDC guidelines, we are confident that a majority of hospitals can comply without significant added burden. Hospitals are very concerned, however, with those of OSHA's proposed requirements that go beyond the CDC guidelines."

The various OSHA provisions for TB skin testing in particular "would place an additional and unnecessary burden on hospitals that already comply with the CDC guidelines or on hospitals with few or no cases of TB," she testified. (See related story, p. 85.)

The aforementioned CDC/AHA surveys compared hospital TB control measures in 1992 and 1996. Though the surveys show significant overall improvements in adopting essential TB control measures such as negative-pressure isolation rooms, there are still some hospitals that are not testing all appropriate health care workers and some that are poorly documenting skin tests results, according to findings reported by the CDC recently at the International Conference of Emerging Infectious Diseases. For example, all the 103 hospitals responding in the 1996 survey reported they had TB skin-testing programs, but only 30 (29%) could provide test data for the period 1992 to 1996. Likewise, nurses and respiratory therapists were being tested, but problems remained in TB-testing all attending physicians, students, and house staff, the CDC reported.³

In addition, the increasing proportion of foreign-born TB cases in the U.S. underscores that the threat has not subsided, added Jordan Barab, assistant director for safety and health for the Washington, DC-based American Federation of State, County and Municipal Employees. For example, in 1986, a total of 4,925 (22%) TB cases in the United States occurred in people born in high-TB-prevalence areas such as Asia, Africa, and Latin America. In 1996, the proportion of foreign-born cases accounted for 36% (7,704) of the national total, he reminded.

"The disease does not respect borders - locally, nationally, or internationally," Barab said. "The TB problem is far from over. Evidence of declining TB cases in the last four years may indicate a recovery from the resurgence of the disease that occurred from 1985-1992. The national trend, however, masks areas of ongoing concern, specifically, sporadic outbreaks of drug-resistant disease, high-incidence 'pockets of infection' such as among those co-infected with HIV, poverty, homelessness, swelling prison populations, drug abuse, and the occurrence and influx of disease among the foreign-born."

Barab also strongly supported the controversial OSHA provision for "medical removal protection," saying it encourages employees to be tested for TB. On the other hand, Sellers cited APIC's objections to the medical protection provision, noting that OSHA's proposal requires employers to provide, for up to 18 months, full salary and benefits to employees with suspected or confirmed TB regardless of whether infection is proved to be work-related.

"We question OSHA's authority to supersede state workers' compensation programs," Sellers said. "This requirement would be financially burdensome to health care facilities, regardless of their size. . . . Although the illness may be totally unrelated to occupational exposure, the employer would still have to absorb the inordinate costs associated with meeting this requirement."

However, Barab testified that the union strongly objects to employers' attempts to determine whether TB in workers is acquired occupationally or in the community.

"It is extremely difficult, if not impossible, to definitively determine whether or not an exposure is work-related, and our experience is that employers will generally err on the side of blaming an outside exposure so as to avoid record keeping and workers' compensation reports," he said. "If employers are allowed to not count conversions that they have decided are not occupationally related, any kind of useful workplace surveillance will be rendered invalid."

References

1. Department of Labor. Occupational Safety and Health Administration. Occupational exposure to tuberculosis; proposed rule. 62 Fed Reg 54,160-54,307 (Oct. 17, 1997).

2. Centers for Disease Control and Prevention. Guidelines for preventing the transmission of Mycobacterium tuberculosis in health care facilities, 1994. MMWR 1994; 43:(No. RR-13)1-133.

3. Manangan LP, Simonds DN, Pugliese G, et al. Status of tuberculosis infection control programs at U.S. hospitals, 1989-1996 [Abstract p. 71]. Presented at the International Conference on Emerging Infectious Diseases. Atlanta: March 8-11, 1998.