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KOSHRC Suggests That All Kentucky Employers With More Than Eight Employees Must Develop Bloodborne Pathogen Training Programs

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).

© 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XII, Number 335
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About this Author

Wendy Miller, Ogletree Deakins Law Firm, Nashville, Labor and Employment Litigation Attorney
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Ms. Miller advises, counsels and represents companies and management in a wide range of labor and employment related matters. She actively represents employers before state and federal courts, administrative agencies and in private arbitrations in cases involving claims of discrimination, harassment and retaliation based on sex, race, national origin, age and disability, workers compensation retaliation, wage and hour issues, wrongful discharge, state tort and contract claims, unfair competition, copyright infringement and unfair labor practices. Ms. Miller is...

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William (“Bill”) Rutchow joined the firm in 1988.  After several years in the Greenville, South Carolina office, he moved to the Nashville office in 1995.  He is currently a Shareholder in the Nashville office. Bill currently concentrates his practice in three areas: Workplace Safety and Health, Unfair Competition/Trade Secrets, and Employment Litigation. Bill also has experience in commercial litigation, personal injury litigation, and NLRB proceedings.

Workplace Safety and Health - Bill has extensive experience in crisis management for clients involved in...

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John D. Surma is a shareholder in the Houston, Texas office of Ogletree Deakins. His practice focuses on representing employers in workplace safety and health matters, including preventive advice and counseling, regulatory actions, and investigation.

John counsels and represent clients throughout the United States before a variety of regulatory agencies including OSHA, MSHA, the U.S. Chemical Safety Board, the Nuclear Regulatory Commission, the U.S. Environmental Protection Agency, the Federal Railroad Administration/American Association of...

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Ryan Swink Houston Employment Attorney Ogletree Deakins Nash Smoak & Stewart PC
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Ryan Swink is an associate in the firm’s Houston office, where he advises and represents employers on all matters impacting their employees under federal and state labor and employment laws, including compliance with Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Family and Medical Leave Act (FMLA), and the Fair Labor Standards Act (FLSA). Ryan conducts investigations, handles charges of discrimination, harassment and retaliation, and defends any ensuing litigation in state and federal court.

Prior...

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