February 17, 1998

Docket Officer
OSHA Docket Office, Room N-2625
Occupational Safety and Health Administration
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, D.C. 20210

Re: Docket No. H-371 - OSHA’s Proposed Rule on Occupational Exposure to Tuberculosis

Dear Sir or Madam:

The Society of the Plastics Industry, Inc. (SPI) 1 is pleased to provide the following comments regarding the Proposed Rule on Occupational Exposure to Tuberculosis — Docket No. H-37, announced by the Occupational Safety and Health Administration (OSHA) at 62 Federal Register 54160 (October 17, 1997). In particular, SPI seeks to clarify the scope of application of the proposed rule in regard to employees who provide emergency medical services (EMS).

The proposed standard, at Section 1910.1035 (a)(10), would apply to occupational exposures to tuberculosis (TB) that occur "during the provision of emergency medical services." 2 However, the proposed rule does not define "emergency medical services" (EMS), nor elaborate on the types of employers that would be covered under that provision. We believe the Agency appropriately intended to cover professional organizations which, as one of their primary if not sole functions, provide emergency medical services (EMS) to the public at large and, thus, would reasonably be expected come in contact with high-risk populations. Appropriately covered organizations would include fire departments, rescue squads and ambulance services. As drafted, the proposed rule contains no qualifying language that would appropriately clarify the Agency's intent and limit its application to such "professional" EMS providers. Accordingly, as drafted, the provisions in the proposed rule regarding providers of EMS would sweep too broadly, or are at least ambiguous and subject to an overbroad application.

SPI requests that OSHA clarify that the proposed rule's application "during the provision of emergency medical services" would cover employees, such as paramedics and emergency medical technicians, who are primarily employed to respond to emergencies involving the general public, but would not cover employees in the industrial, manufacturing, or plant setting, who, as a collateral duty (e.g., first aid, fire, or emergency response team), may be trained to provide emergency medical care or first aid to co-workers injured on the job. Interpreting the proposed standard to apply to employers that are engaged in the EMS industry, as opposed to every employer with an employee who may respond to workplace medical emergencies, would further the rule’s intended purpose and is supported by OSHA’s preamble to the rule.

A. Application of the Proposed Rule to Employers Engaged in the Emergency Medical Services Industry Accords with the Intent and Purpose of the Proposed Rule.

OSHA states in the preamble that the purpose of the proposed rule is:

to reduce [the risk of exposure to tuberculosis] in health care and other work settings where active TB cases are likely to be encountered by employees. 3

Accordingly, it is clear that the Agency's intent in drafting the proposed standard was not to have it apply to all employers. Rather, it would apply only to the occupational settings expressly set forth in the proposed rule at Section 1910.1035 (a) in paragraphs (1) through (10). The Agency has determined that employees in these designated occupational settings are at risk for contracting TB because they:

(1) are exposed in the course of their work to patients and others with active TB disease;

(2) perform procedures that expose them to airborne concentrations of the tuberculosis bacterium; or

(3) serve client populations where the incidence of active disease is unusually high. 4

This is consistent with the section of the preamble discussing the "Scope" of the proposed rule where OSHA states:

Emergency medical service employees may provide emergency treatment and transportation for individuals with suspected or confirmed tuberculosis. For example, in addition to serving the same high-risk client population as hospitals, emergency medical services are often used to transport individuals who have been identified as having either suspected or confirmed infectious tuberculosis from a facility with inadequate isolation capabilities to another facility better equipped to isolate these individuals. Proximity to the patient and time spent within an ambulance or other emergency vehicle affects the likelihood of occupational exposure as the result of breathing droplet nuclei generated when the patient coughs or speaks. 5

The preamble to the proposed rule implies, but does not make explicit, that the rule is intended to apply to EMS providers that serve the public at large, rather than individuals who may provide medical care to fellow employees during a workplace emergency. For example, the preamble to the proposed rule refers to EMS as one of the "covered industries" under the standard. 6 OSHA also provides examples in the preamble of EMS employees that would be covered by the proposed rule. Such employees "include but are not limited to emergency medical technicians [EMT], paramedics, and in some localities, fire fighters." 7 We believe the intent of this sentence was to identify those employees within a covered industry who would be covered by the standard but not to suggest that all EMTs would be covered. 8 However, we believe this needs to be clarified in the regulatory text because there are individuals on plant first aid and emergency response teams who are trained to the EMT level and certified as EMTs.

Thus, the proposed rule would appear to be intended to apply to employees who work on an emergency rescue squad or on board an ambulance, helicopter or other vehicle that responds to medical emergencies or accidents involving the general public. In accordance with the stated intent and purpose of the proposed rule, employees primarily engaged in providing emergency response services to the public at large would be covered by the rule because, in the course of their jobs, they are likely to encounter high-risk patient populations, may engage in high-risk procedures and may be exposed to cases of confirmed or suspected TB in an enclosed area, such as an emergency vehicle, while transporting patients. Employees that provide EMS to co-workers in the typical industrial or plant setting are not subject to these elevated risks and, thus, should not be covered by the proposed standard.

B. The Proposed Rule Should Not Apply to Employers In Otherwise Non-high Risk Industries Simply Because They Employ Workers Who Respond to Workplace Medical Emergencies.

OSHA stresses that it intends for the proposed rule to target only those occupational settings where there is a "significant risk" of employees incurring TB infection while caring for patients or clients or performing certain procedures. 9 The Agency also makes clear that the proposed rule does not require employers to conduct costly risk assessments to determine whether they would be covered by the rule. In fact, OSHA explicitly declined to impose a risk assessment obligation on all employers when it instead opted to cover only high-risk industries. 10 Accordingly, although an employee providing emergency medical service in response to a workplace emergency or accident could, in theory, be exposed to a co-worker with infectious tuberculosis, the risk of such exposure in the overwhelming majority of workplaces is insignificant and does not justify subjecting virtually all workplaces to the requirements of the proposed rule.

Consistent with §6(b)(5) of the Occupational Safety and Health Act, the proposed rule is intended to and may cover only those occupational settings where exposure to TB is a "significant" occupational risk. Application of the proposed rule to workplaces based solely upon the employment of an individual who, as a collateral job responsibility, responds to and provides aid during medical emergencies involving co-workers at the work site would reach too broadly. It would require every employer who employs a worker that may provide on-the-job EMS to co-workers to implement a program to reduce the potential for employee exposure to infectious tuberculosis. Such a program must include a written exposure control plan, work practices, respiratory protection, medical surveillance, hazard communication and training, and record keeping. These requirements would pose unreasonable costs on such employers when viewed in light of the absence of any demonstrated risk of TB infection in most workplaces.

C. Conclusion

For the above reasons, SPI encourages OSHA to clarify that Section 1910.1035 (a)(10) of the proposed rule covers employers, such as operators of rescue squad services or paramedic response teams, whose employees are primarily employed to provide emergency medical services to members of the general public. Employers that do not fall into the other high-risk occupational settings covered by paragraphs (1) through (9) of the proposed rule — such as hospitals or correctional facilities, among others — should not be subject to the rule simply because they employ an individual that is trained to provide and provides emergency medical services during workplace emergencies.

SPI appreciates the opportunity to submit comments in this matter. If you have any questions or if we can be of further assistance, please contact us.

Respectfully submitted,

Lewis R. Freeman, Jr.
Vice President, Government Affairs

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