This article first appeared in the July 2004 NYCOSH Safety Rep

When interns and residents at Montefiore Medical Center in the Bronx realized that they were not being adequately protected from exposure to bloodborne pathogens such as viral hepatitis and HIV they adopted what turned out to be a very successful tactic to get their employer to comply with OSHA regulations. The same tactic has been used successfully by workers at other healthcare institutions, as well.

As a result of a campaign waged by unions to require employers to provide adequate workplace protections, Congress amended the OSHA bloodborne pathogens standard (BPS) in 2001. The revised standard requires a healthcare employer to directly involve employees in identifying and specifying the policies and procedures that the employer will use to comply with the standard. As a result, employees have unusual ability to monitor the employer’s compliance efforts, and note any deficiencies.

The tactic used by the Montefiore interns and residents (who are not in a union) and by other groups of healthcare workers, both unionized and not, was to conduct a detailed examination of every policy, procedure and piece of equipment that comes under the purview of the BPS, and note every deficiency with great specificity – in what room and under what circumstances were needles that didn’t conform to the requirements of the BPS being used? Had the employer conducted and documented the reviews of equipment and procedures mandated by the BPS? If not, in what specific ways had the employer failed?

Once the interns and residents had done the review, they listed all the requirements of the BPS, and under each requirement they itemized the compliance failures they had observed, including room numbers and brand and model names of non-compliant equipment. They forwarded that list to OSHA as the basis of a complaint that their employer was not obeying the BPS.

When OSHA inspectors arrived at the hospital, a great deal of the legwork of an inspection had already been done by the interns and residents. If their complaint listed a non-compliant catheter needle being used in OR-3, all the inspectors needed to do was to go to OR-3 and confirm the presence of the non-compliant equipment. In addition to checking all the specifics of the complaint, the inspectors looked elsewhere for violations, and found more than a dozen of them. The inspection resulted in 26 citations for the use of devices that did not meet the BPS criteria, as well as 20 other BPS violations, resulting in a $9,000 fine.

“OSHA's action was remarkable, not because we felt [Montefiore] was bad, but because it was typical,” said Steve Cha, the head of the committee of residents that initiated the OSHA complaint. “In terms of implementing safety, Montefiore has certainly made progress. It is probably pretty typical of many large teaching hospitals in that respect – it’s done a fairly good job with safety. But I think the message here is that ‘pretty good’ is not enough,” he said.

With the help of healthcare unions and hospital workers, federal OSHA offices are issuing record numbers of citations for violations of the agency’s bloodborne pathogens standard (BPS). Partly in response to almost 100 complaints from hospital unions and employees, OSHA compliance officers found BPS violations in more than 23 percent of the hospitals they inspected during the 12 months ending September 30, 2003.

As a result, OSHA cited hospitals more frequently for violations of BPS than violations of any other OSHA standard during that period. The fines resulting from those citations cost the hospitals more than $97,000, which represents more than 22 percent of all the OSHA fines levied on hospitals.

The BPS requires hospitals and other institutions where exposure to blood is likely to occur to use equipment that is designed to limit as much as possible the likelihood of employee exposure to blood. In the case of needles and other sharp devices that could be contaminated with blood, for example, an employer/employee committee is required to evaluate all the devices on the market that can be used for a particular task and choose a design that provides employees with the greatest protection from being stuck or cut. The BPS also requires employers to document the reason for the choice, based on safety, of one device over others.

The BPS violations that unions and workers are filing complaints about, and that OSHA inspectors are citing, are not for unsafe acts, which would need to occur in the presence of an OSHA inspector to result in a citation. Instead, the violations concern ongoing conditions, such as a hospital’s use of a needle or other device that is less safe than other designs on the market.

The national upsurge in BPS citations can be traced back to the BPS amendments that were part of the Needlestick Safety and Prevention Act passed by Congress in 2001, which required OSHA to revise the BPS in specific ways. Prior to the amendments and the revised standard, BPS did not require employers to use the safest available technology, which made it difficult for OSHA to cite an employer for putting workers at risk by choosing a needle or other device with an inferior design.

After 2001, the burden was on the employer to show that any sharp equipment that might be contaminated with blood was chosen on the basis of its safety qualities. In addition, the BPS requires employers to consult with an employee committee about the choice of BPS-related equipment. If employees and unions are familiar with equipment that is inherently safer than that chosen by the employer, they can call the employer’s attention to the safer equipment. If the employer cannot explain why the employees’ choice is not the safest, but rejects their advice, the employees are in a position to file an OSHA complaint that is very likely to result in a citation.

Using detailed complaints to promote increased enforcement of BPS is a life-or-death issue for healthcare workers. Before the BPS was strengthened in 2001, every year in the U.S. healthcare workers received at least 600,000 needlesticks and other injuries with the potential of exposure to contaminated blood, causing more than 100 fatal cases of hepatitis, according to the National Institute for Occupational Safety and Health. The U.S. Centers for Disease Control reports that more than 50 U.S. healthcare workers are known to have contracted HIV from needlesticks. According to the Occupational Safety and Health Administration, using safer equipment and safer practices could reduce the number of needlestick injuries by more than 80 percent.