OSHA infectious disease standard in reg limbo

January 12th, 2015

Growing anti-regulatory pressure in a down economy – to say nothing of presidential politics as an election year looms-- are making it exceeding difficult for the Occupational Safety and Health Administration (OSHA) to advance its controversial proposed infectious disease standard to protect health care workers.

As we previously reported in Hospital Infection Control & Prevention, OSHA is considering a proposed rule that would address airborne, droplet and contact transmission in health care settings. Occupational infections during the SARS epidemic and the H1N1 pandemic spurred the agency interest, though many infection preventionists immediately came out against the idea. The general concern is that flexible and evolving Centers for Disease Control and Prevention guidelines are better designed to address a moving target like infectious diseases than rigid OSHA standards. The issue is reminiscent of OSHA’s previous failed attempt to create a standard to protect health care workers from tuberculosis.

"While the agency learned a great deal from the previously proposed tuberculosis rule, the agency is considering the current infectious disease activity in the larger context of standard and transmission-based precautions rather than on a disease-by-disease basis," OSHA stated.

While the infectious disease proposed rule is in its early stages, OSHA initiatives that were much closer to finalization have also be stalled out by the current economic and political climate. For example, a recordkeeping rule that would add a column to the OSHA 300 log for musculoskeletal disorders (MSDs) seemed on a fast-track in 2010, with implementation scheduled for 2011. However, it became mired in an unusually lengthy review in the Office of Management and Budget, and OSHA withdrew the rule. The agency gathered more comments and was expected to reissue it in time for the rule to become effective in 2012. It remains in limbo.

OSHA administrator David Michaels, MD, MPH, has said that issuing an Injury and Illness Prevention Program standard (I2P2), requiring employers to have a program to address workplace hazards, is his top priority. A draft version was due by June 2011, according to the agency’s regulatory agenda. But again, no sign of I2P2 has emerged.

“I’ve been amazed at the extent to which OSHA’s agenda has been affected,” says Brad Hammock, an attorney with Jackson Lewis in Reston, VA, who specializes in occupational health law and was counsel for safety standards at OSHA from 2005 to 2008.

“There’s never one thing that causes a delay in a regulatory initiative by OSHA. There are things that go on behind the scenes that have nothing to do with politics. It could be something as simple as difficult technical issues with a rule. But I suspect it’s a combination of a lot of things [including politics],” he says.

Republicans have put OSHA in their sights as they criticize “job-killing” regulations. “We’re coming up to an election year. Jobs are the top issue in the upcoming election and a dominant theme has been government creating an atmosphere where jobs can be created. OSHA has been an easy whipping boy, like the EPA [Environmental Protection Agency], for that theme,” says Eric J. Conn, an attorney who heads the OSHA group at Epstein Becker and Green in Washington, DC.