Bloodborne Pathogens: Secretary of Labor v. Patterson Drilling Co.

Date: May 01, 1995

This case was decided by an Administrative Law Judge (ALJ) of the Occupational Safety and Health Review Commission (OSHRC). Such decisions do not carry any precedential value. This means that the other judges and the Review Commission do not necessarily have to follow the decision under the judicial rule of stare decisis. However, these cases do give some insight into OSHA's likely approach to interpreting standards, and the persuasiveness of its arguments, and so are instructive for employers looking for compliance guidance.

Five employees were working on a drilling rig when some equipment fell and fatally injured one of the workers. His co-workers physically assisted the injured employee, and helped get the injured worker on board when the helicopter arrived. OSHA subsequently cited the employer, Patterson Drilling Co., for failure to have a written bloodborne pathogens (BBP) program or to train designated first-aid providers as required by the BBP standard, 29 C.F.R. 1910.1030.

OSHA contended that Patterson needed to comply with the standard because it had members of the drilling team trained in first aid. The Compliance Safety and Health Officer (CSHO) asserted that it was reasonably probable that the employees trained to provide first aid would come in contact with blood or bodily fluids. He based this conclusion on the company's 1993 injury log and on the nature of oil field work.

Patterson argued that it was not covered by the standard because it was not reasonably anticipated that its oil field workers would come in contact with BBP as contemplated by the standard. Patterson had drawn this conclusion on the basis of its safety director's interpretation that the standard primarily applied to health care workers, and that oil filed workers do not normally respond to medical emergencies in the course of their duties. He reviewed an OSHA publication, 3130, which discussed exposure precautions for emergency response personnel, but oil field workers were not mentioned in this document.

The ALJ concluded that the standard was in fact directed principally toward protecting workers with routine blood exposure potential: health care, funeral homes, law enforcement, fire and rescue institutions, schools for the mentally retarded, and regulated waste handlers, among others. Although OSHA made clear in the preamble to the final standard that the list of industries discussed was not exclusive, first aid providers were referenced only in the context of the "Good Samaritan" exception.

The "Good Samaritan" exception derives from the principle that the BBP standard applies only when exposure to blood and body fluids is reasonably anticipated and results from the performance of the employee's duties. Thus, if an employee is assigned to respond with first aid treatment in the event of the injury of another employee, and that employee is trained by the employer in first aid duties, the first aid providers would be covered by the standard. However, if the employer simply provides first aid training, but the employees duties do not require him or her to render first aid, exposure is not reasonably anticipated and the standard is not invoked.

Exposure which occurs when an employee, voluntarily (i.e., it is not a requirement of the job) assists a fellow employee falls within the "Good Samaritan" exception to te BBP standard, regardless of whether the employee received first aid training from the employer. OSHA formally adopted this interpretation when it revised its OSHA Compliance Instruction (CPL), Enforcement Procedures for the Occupational Exposure to Bloodborne Pathogens Standard, 29 C.F.R. 1910.1030, on July 1, 1992. An employer has no obligations under the BBP Standard arising out of exposures to employees who perform unanticipated "Good Samaritan" acts, except to offer the full hepatitis B immunization series. Such exposures are not covered by the standard because these actions do not constitute occupational exposure as defined by the standard.

The standard is also now interpreted as requiring that employers make hepatitis B vaccinations available to employees who render first aid only as a collateral duty. Failure to offer the vaccine to these individuals on a pre-exposure basis is considered a technical (de minimis) violation carrying no penalties, provided a number of conditions are met. The primary job assignment of such designated first aid providers must not be the rendering of first aid, and any first aid rendered by such persons must be performed only as collateral duty -- responding solely to injuries resulting from workplace incidents, generally at the location where the incident occurred. The standard does cover designated first aid providers who render assistance on a regular basis, for example, at a first aid station, clinic, dispensary or other location where injured employees routinely go for such assistance. The Good Samaritan exception also does not apply to any health care, emergency, or public safety personnel who are expected to render first aid in the course of their work.

Certain records must be kept in the case of collateral duty first aid providers, and the employer's BBP plan must address these records and associated reporting procedures. As the ALJ noted in the Patterson case, the OSHA policy that humanitarian gestures would not be considered occupational exposure "best serves the purpose of the [OSH] Act." The ALJ then vacated the citations.

This article appeared in Compliance Magazine (May 1995) and it is reprinted with permission of Compliance Magazine. Copyright © 2001 by IHS Publishing Group. All rights reserved.

For further information about this article, please contact David G. Sarvadi at 202-434-4249 or by e-mail at sarvadi@khlaw.com.