The Cross Contamination between Workers’ Compensation and OSHA: Considerations for Handling Blood-Borne Pathogen Claims in Colorado and Arizona.

Exposure to blood-borne pathogens presents unique risks in the work place. Workers in health care or in-resident home care are, on a daily basis, subject to the potential of disease transmitted by bodily fluids. These diseases range from methicillin-resistant staphylococcus aureus (MRSA), spinal meningitis, tuberculosis, hepatitis, to HIV. Given the Sharps Containerubiquitous daily potential for exposures to workers across the board, including direct patient care workers to maintenance workers to transport personnel, risk managers and adjusters need to understand the overlap with workers compensation and the Occupational Safety and Health Administration’s (“OSHA”) rules. Understanding exposure and needlestick law is critical to containing risks as well as protecting employees from life-altering danger. [1]

 

The OSHA rules pertaining to disease transmitted though bodily fluids are found on the public domain at: https://www.osha.gov/SLTC/bloodbornepathogens/gen_guidance.html. The federal regulations governing OSHA’s rules and role is found at 29 CFR 1910.1030. OSHA laws, since 2002, also conform to the federal Needlestick Safety and Prevention Act (NSPA) of 2000.[2] Congress in large part delegated the enforcement of the NSPA to OSHA. In turn, OSHA rules require employers evaluate controlled safety programs to keep employees safe from potential exposures and to implement engineering controls to effectuate any respective safety plan. The NSPA requires that “Requires certain employers to: (1) review and update exposure control plans to reflect changes in technology that eliminate or reduce such exposure, and document their consideration and implementation of appropriate commercially available and effective safer medical devices for such purpose; (2) maintain a sharps injury log, noting the type and brand of device used, where the injury occurred, and an explanation of the incident (exempting employers who are not required to maintain specified OSHA logs); and (3) seek input on such engineering and work practice controls from the affected health care workers (exempting employers who are not required to establish exposure control plans).”[3]  The federal NSPA and OSHA law do not alter the scope of workers compensation liability insurance coverage or impose additional coverage requirements upon employers. However, OSHA regulations do require the employer of an exposed employee set up an immediate confidential medical evaluation. Under OSHA standards, the evaluation: “This evaluation and follow-up must be: made available at no cost to the worker and at a reasonable time and place; performed by or under the supervision of a licensed physician or other licensed healthcare professional; and provided according to the recommendations of the U.S. Public Health Service (USPHS) current at the time the procedures take place. In addition, laboratory tests must be conducted by an accredited laboratory and also must be at no cost to the worker. A worker who participates in post-exposure evaluation and follow-up may consent to have his or her blood drawn for determination of a baseline infection status but has the option to withhold consent for HIV testing at that time. In this instance, the employer must ensure that the worker’s blood sample is preserved for at least 90 days in case the worker changes his or her mind about HIV testing.”[4] The employee has recourse under OSHA regardless of state workers compensation laws and coverage to have the employer pay for lab tests and blood analysis to determine the presence of blood-borne illnesses.

 

One interesting aspect of the OSHA regulations deals with the employer-employment relationship of a physician using a health care facility under a contract for staff privileges.  Surgeons, for example, may have staff privileges at a hospital to perform surgeries they otherwise could not do in their office. According to OSHA’s interpretation of its own rules, “Under OSHA’s blood-borne pathogens compliance directive (OSHA Instruction CPL 02-02-069 [formerly CPL 2-2.69]) the status of the physician as an employer or employee is important to establish in order to determine the application of OSHA standards. According to the paragraph XI.D. in the directive, physicians “… may be cited if they create or control blood-borne pathogens hazards that expose employees at hospitals or other sites where they have staff privileges in accordance with the multi-employer worksite guidelines of CPL 02-00-124 [formerly CPL 2-0.124], Multi-Employer Citation Policy.”[5] In terms of needlestick or exposure cases in both Colorado and Arizona, an employer/carrier should always assess the corresponding contracts (or independent contractor status) to determine whether a what (or whose) particular workers compensation insurance policy applies in these situations.

 

Arizona has passed specific legislation pertaining to exposure risks. Section 23-1043.04, A.R.S., specifically deals with MRSA, spinal meningitis, and tuberculous exposures. Mere exposure to a needlestick is not an automatic claim for compensation. The workers must first file a claim with the ICA. The statute then requires, to sustain a claim: (1) The employee’s regular course of employment involves handling of or exposure to methicillin-resistant staphylococcus aureus, spinal meningitis or tuberculosis; (2) Within thirty calendar days after a possible significant exposure that arises out of and in the course of employment, the employee reports in writing to the employer the details of the exposure. The employer shall notify its insurance carrier or claims processor of the report. Failure of the employer to notify the insurance carrier is not a defense to a claim by the employee; (3) For a claim involving methicillin-resistant staphylococcus aureus, the employee must be diagnosed with methicillin-resistant staphylococcus aureus within fifteen days after the employee reports pursuant to paragraph 2 of this subsection. (4) For a claim involving spinal meningitis, the employee is diagnosed with spinal meningitis within two to eighteen days of the possible significant exposure; (5) For a claim involving tuberculosis, the employee is diagnosed with tuberculosis within twelve weeks of the possible significant exposure.

 

What is also of interest for employers is that the respective Arizona statue contains protects the medical information of third parties. In the course of an exposure case, an employer may allege that a sexual partner or perhaps drug use caused the alleged condition. Under A.R.S. 23-1043.04(D) “a person alleged to be a source of a significant exposure shall not be compelled by subpoena or other court order to release confidential information relating to methicillin-resistant staphylococcus aureus, spinal meningitis or tuberculosis either by document or by oral testimony. Evidence of the alleged source’s methicillin-resistant staphylococcus aureus, spinal meningitis or tuberculosis status may be introduced by either party if the alleged source knowingly and willingly consents to the release of that information.” Proving an alternative source of the exposure may be challenging without court intervention.

 

The statutory provisions pertaining to HIV is found in section 23-1043.2, and the provisions pertaining to Hepatitis C is found in 23-1043.3. Each respective section has reporting requirements similar to 23-1043.3, and contain the same provision barring compelled blood tests of third parties. Additionally, an employee may file a notice with the Industrial Commission reporting a significant exposure to blood-borne illness.[6] The worker must also file a separate claim, for which the employer/carrier may then respond by operation of a Notice of Claim Status.

 

Colorado does not have specific statutory provisions concerning blood-borne illness exposures. The Colorado exposure analysis is traditionally done in the general rubric of whether an event caused an injury in the course of employment, and that the injury arose out of employment.[7] It is the claimant’s legal burden to prove a causal nexus with work.[8] In other words, whether a needlestick caused an injury requiring medical treatment to cure or relieve the effects of the respective industrial injury. If you have a needle stick or blood-borne illness exposure issue, please contact an attorney at Lee and Brown of specific guidance on these complex issues.

 

[1] For example, see the story of one health care worker exposed to a needle stick. https://www.nursingworld.org/practice-policy/work-environment/health-safety/safe-needles/safe-needles-law/

[2] https://www.gpo.gov/fdsys/pkg/PLAW-106publ430/html/PLAW-106publ430.htm

[3] https://www.congress.gov/bill/106th-congress/house-bill/5178

[4] https://www.osha.gov/OshDoc/data_BloodborneFacts/bbfact04.pdf

[5] https://www.osha.gov/laws-regs/standardinterpretations/2003-02-20

[6] https://www.azica.gov/claims-significant-work-exposure

[7] C.R.S. section 8-41-301

[8] See. e.g., Manzanares v. Quality Uniform Linen Supply & Liberty Mutual WC #4-268-197 (ICAO 1999)