OSHA´s Regulatory And Enforcement Update

OSHA has announced that it will begin enforcing new provisions of its Bloodborne Pathogen Standard on July 17, 2001. The changes to the standard resulted from the passage of the Needlestick Safety and Prevention Act which was signed into law on November 6, 2000. This Act was directed primarily at medical facilities. However, at least one provision of the recent changes to the Bloodborne Pathogen Standard applies to a much broader audience.

All employers who are required to maintain an OSHA 200 Log of Injuries and Illnesses are now also required to maintain a "Sharps Injury Log." The requirement for a Sharps Injury Log is far broader in applicability than the other changes to the Bloodborne Pathogen Standard because employers are required to record in the log all "percutaneous injuries [i.e., injuries which break the skin] from contaminated sharps." "Contaminated sharps" refers to "any contaminated object that can penetrate the skin including, but not limited to, . . . broken glass . . . . " Thus, any incident involving a minor cut from a contaminated sharp, such as broken glass, must be recorded in this log. The log must be created and maintained even if there are no sharps injuries.

The information recorded in this new log must be "recorded and maintained in such manner as to protect the confidentiality of the injured employee." In other words, non-identifying information (such as case numbers) must be used, but that information must be ultimately traceable by the employer to records relating to the original incident. At a minimum, the Sharps Injury Log must contain the following information:

• the type and brand of device involved in the incident;
• the department or work area where the exposure occurred; and
• an explanation of how the incident occurred.

Employers should create and begin to maintain this log prior to the July 17, 2001 enforcement date.

On May 14, 2001, OSHA published its Semi-Annual Regulatory Agenda (found at 66 Fed. Reg. 26722). According to the agenda, OSHA intends to initiate steps necessary to revise the Process Safety Standard in November of this year. Work on a new silica exposure limit is also expected to begin this year. Some rulemaking efforts, already well under way as part of the Clinton administration, have been recharacterized as "long term actions" in the regulatory agenda. For example, a proposed regulation to protect health care workers from tuberculosis has now been characterized as a long term action. Similarly, the proposed health and safety program rule, which would have required all employers to have comprehensive safety programs, no longer has any date for future action scheduled. At one time, this had been a top priority of OSHA.

OSHA intends to take other actions by the end of this year, including assigning new protection factors to various types of respirators and a revision to regulations governing walking/working surfaces and personal fall protection systems. This new agenda is not particularly surprising. It was widely expected that the Bush administration would avoid some of the more controversial rulemaking pushed by the preceding administration.

There appears to be some increase in OSHA's use of its multi-employer worksite doctrine in enforcement matters. That doctrine, which is controversial and not entirely approved by the courts, purports to permit OSHA to cite multiple employers for a single hazard. Employers should carefully consider creating a formal policy dealing with outside contractors. This policy should address both actions required to be taken under various standards (for example, the Hazard Communication Standard, the Lockout/Tagout Standard and the Confined Space Standard) as well as general policy issues regarding supervision of outside contractors.

The Ross & Hardies Environmental Health & Safety Group presented a seminar last year on dealing with outside contractors. If you are interested in receiving a copy of the seminar materials, please contact Ross & Hardies partner Jerry Bowman.