A majority of representatives on a small business panel convened by OSHA to hear their views on a potential OSHA infectious diseases rule questioned the need for such a rule, but said that if OSHA proposes a regulation for health care and related workers, it should consider risk on a sector-by-sector basis and tailor the rule accordingly.

“Most SERs [small entity representatives] questioned the need for a rule, especially given current regulations, guidelines, and oversight related to accreditations and certifications,” said a report to OSHA from the Small Business Advocacy Review Panel. The Review Panel, which met over four days in November, was formed under a congressional mandate requiring OSHA to solicit the views of small businesses whenever the regulatory authority considers a new rule that is likely to affect a large number of them significantly.

While the agency has not released an infectious disease proposal, it did issue a request for information in May 2010 and, in addition to taking views from the panel, has held a series of stakeholder meetings. The agency says employees in health care and other high-risk environments face infectious disease hazards, including tuberculosis, chickenpox, shingles, measles, as well as emerging threats such as pandemic influenza and Ebola.

As a result, the agency is considering whether a standard is needed to ensure employers establish a comprehensive infection control program to protect employees from infectious disease exposures. OSHA already administers a blood borne pathogens (BBP) rule, but maintains the BBP rule does not address infectious agents transmitted through the air, by contact, or through droplets.

Industries that may be co vered by an infectious disease standard include health care, emergency response, correctional facilities, homeless shelters, drug treatment programs, laboratories which handle materials with pathogenic potential, pathologists, coroners' offices, medical examiners, and funeral homes.

According to the Centers for Disease Control and Prevention (CDC), almost 1.7 million healthcare-associated infections lead to approximately 99,000 patient deaths and $20 billion in additional health care cost s in the U.S. each year. OSHA says a rule can protect both workers and patients.

A key recommendation of the Panel was for OSHA to defer proceeding with a proposed rule until it has assessed available data on risk and the need for the rule for each potentially covered task and work setting. Panelists representing specialized ambulatory care facilities that do not treat patients for infectious diseases, commercial laundries, medical waste handlers, and funeral homes pointed out that, for them, the BBP standard was sufficient. For some industries, panelists suggested, merely tweakingthe BBP standard would be enough. On a related note, they suggested that OSHA consider differentiating between facilities where health care workers routinely provide direct patient care to persons with infectious diseases and facilities where they do not.

In addition, panelists called on OSHA to review carefully existing regulations and guidance on infection control in determining the need for a rule, including guidance from the CDC and conditions of participation for Medicare and Medicaid. Employers who follow relevant existing guidance, they suggested, would be considered in compliance. 

Small business representatives further urged OSHA to consider equally effective non-regulatory alternatives, such as providing compliance assistance and guidance materials. A regulation solely focused on training should be considered, they said.

Concerned about a possible medical removal protection (MRP) provision, panelists recommended that OSHA study the business impact of an MRP provision, as in the event of a large-scale outbreak or pandemic. Some stated that an MRP mandate should apply only where workers do not have access to other forms of coverage, such as sick leave, health insurance, disability insurance, or workers' compensation. The Panel also said OSHA should define how the agency would expect employers to determine whether a worker's illness was acquired through a workplace exposure. 

The agency has set no timetable for issuing a proposed rule beyond completion of the Panel's report.