The Occupational Safety and Health Administration’s (OSHA) bloodborne pathogens standard, 29 C.F.R. § 1910.1030, requires employers having employees with “occupational exposure to blood or other potentially infectious materials” to develop written exposure control plans designed to eliminate or minimize employee exposure.

“Occupational exposure” requires that it be “reasonably anticipated” that an employee will come into contact with “blood or other potentially infectious materials that may result from the performance of [the] employee’s duties.”

Because most employees’ duties do not require such contact, the standard has generally applied only to employees in the healthcare industry or to employees with first-aid responsibilities as an express job duty. Nevertheless, it is not uncommon for the Kentucky Occupational Safety and Health Program (Kentucky OSH) or OSHA to issue bloodborne pathogen citations any time first aid has been rendered and the requirements of the bloodborne pathogen standard have not been met. The Kentucky Occupational Safety and Health Review Commission (KOSHRC) seems to have taken it one step further by implying in a recent decision, Commissioner v. Louisville Water Company, that all employers with eight or more employees must comply with the bloodborne pathogens standard.

Under Kentucky law, all employers with eight or more employees in Kentucky are required to train employees in first aid and make adequate first-aid supplies readily available. Unlike OSHA’s general industry standard on medical services and first aid, 29 C.F.R. § 1910.151, Kentucky law does not contain a potential exception (e.g., “an infirmary, clinic, or hospital in near proximity to the workplace … is used for the treatment of all injured employees”) that might provide a basis for relief from enforcement of an employer’s obligation to train employees in first aid.

Based on the mandatory nature of the first-aid standard, Kentucky OSH has taken the position that a first aid–trained employee has a sufficient likelihood of an “occupational exposure” to bloodborne pathogens such that virtually all Kentucky employers will have to develop bloodborne pathogen exposure control plans and provide additional training to their first aid–trained employees. This is a stark departure from OSHA’s interpretation of the applicability of the bloodborne pathogens standard to the medical services and first aid standard—namely, that a plan and training are required when an employer designates an employee as a first responder. In other words, Kentucky does not recognize a “volunteer” exception to the bloodborne pathogens standard.

The new burdens placed on employers by Louisville Water Company are certainly concerning. It is yet to be seen whether the decision will survive subsequent challenges on multiple potential grounds.

First, in the Kentucky Court of Appeals’ decision, on which the KOSHRC hearing officer relied, the court based its decision on the fact that the employer had designated an employee as a first responder. So, the court’s opinion arguably supports the view that the bloodborne pathogens standard does not apply simply because of first-aid training, but because of an employer’s designation of a first responder. Second, the Kentucky Legislature amended the statute, instructing Kentucky OSH that it would not adopt any standard that was more onerous than the corresponding federal standard. While Kentucky’s first-aid standard predates this change, there may be an argument that the spirit of the new law should extend to Kentucky OSH’s interpretations of federal standards when they are more onerous than OSHA’s interpretations (in this instance, the bloodborne pathogens standard).