BEFORE THE
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
DEPARTMENT OF INDUSTRIAL RELATIONS
STATE OF CALIFORNIA

In the Matter of the Appeal of:

CONARD HOUSE
391 Ellis Street
San Francisco, CA 94102

                                          Employer

  Docket Nos.   95-R1D1-931
                     through 933

 

DECISION AFTER
RECONSIDERATION

The Occupational Safety and Health Appeals Board (Board), acting pursuant to authority vested in it by the California Labor Code and having ordered reconsideration in the above entitled matter on its own motion, makes the following decision after reconsideration.

JURISDICTION

On February 23, 1995, the Division of Occupational Safety and Health (the Division) conducted an inspection at a place of employment maintained by Conard House (Employer) at 391 Ellis Street, San Francisco, California. On March 10, 1995, the Division issued to Employer the following citations:

                                                                    Penalty Originally             Final Penalty

                                                                       Proposed by                       as Amended

Cit/Item    Section          Classification     the Division                    by the Division

1/1                2340.1               General                  $100                                  $100

                     [exposed electrical conductor prong]

1/2                2500.8(a)(1)       General                  $100                                  $ 0

                     [fixed wiring substitute]

1/3                3216(b)              General                 $100                                  $ 100

                    [exit door signs]

1/4                3235(f)               General                 $100                                  $ 0

                    [exit landing signs]

1/5                3362(f)               General                 $100                                  $ 100

                    [rodent control]

1/6                3273(a)               General                $100                                  $ 0

                    [floor obstructions]

1/7                5194(e)(1)(A)       General                $100                                $ 100

                    [hazard communication]

1/8                6151(e)(3)           General                $100                                $ 100

                         [fire extinguishers]

  2                  5194(e)(1)(A)       Serious                 $500                               $ 100

                    [emergency eyewash]

  3                   5193(c)(1)(A)      Serious                 $500                              $ 100

                    [bloodborne pathogen program]

                                                        Total          $1,800                           $ 700

Employer filed a timely appeal from the citations contending that the time allowed to abate the violations and the amounts of the proposed civil penalties were unreasonable.

The Division at hearing moved to amend Citation No. 1 to eliminate the civil penalty for Item 2, based on its determination that multiple citations had issued pertaining to a single hazard. The Division also amended Citation No. 1, Items 4 and 6 to reduce the civil penalties to zero pursuant to section 336(k) because Items 4 and 6 were substantially similar to Item 3. Employer moved, in turn, to withdraw its appeals from Citation Nos. 1 and 2. The Division moved to reduce the classification of Citation Nos. 2 and 3 to general, and to reduce the proposed civil penalties to $100 each. The penalties proposed by the Division were thereby reduced from a total of $1,800 to a total of $700.

Employer reserved the right, without objection from the Division, to argue that the civil penalties, even with the Division’s reductions, would result in financial hardship. Employer moved, also without objection from the Division, to expand the scope of its appeal to contest the existence of the violation in Citation No. 3.

After the hearing, an administrative law judge (ALJ) of the Board issued a decision, on March 1, 1996, finding violations as to Citation Nos. 1 and 2, and granting Employer’s appeal from Citation No. 3. The ALJ found that even the reduced penalties of $600 for Citation Nos. 1 and 2 proposed by the Division at hearing would impose a financial hardship on Employer, and reduced the civil penalties for Citation Nos. 1 and 2 to a total of $300.

On March 25, 1996, the Board on its own motion, ordered reconsideration of the decision regarding both the ALJ’s reduction of the proposed penalties and the granting of the appeal for Citation No. 3. Employer filed an answer on April 18, 1996. The Division filed an answer on April 29, 1996.

EVIDENCE

In making this decision, the Board relies upon its independent review of the entire evidentiary record in this case, including the tape recordings of the hearing. The Board has taken no new evidence. The Board adopts and incorporates by this reference the summary of evidence set forth on pages 4 through 6 of the decision of the ALJ.

Employer is a non-profit corporation operating under a fixed-fee, two-year contract from the Department of Social Services (DSS). Employer maintains a storefront facility that serves clients with mental disabilities, who often are or have been homeless and have drug or alcohol-related problems. Employer’s contract provides compensation to Employer for distributing funds to persons who are not allowed to receive these funds directly. At the time of the hearing, Employer’s only income aside from this contract was a $15,000 block grant that it had procured to pay for the costs of abating the violations. After the citations issued, Employer entered into a lease for new facilities that obviated the abatement requirements and intended to use the $15,000 block grant for tenant improvements at the new site.

Employer did not provide healthcare to its clients. The only service it provided was disbursing funds to its clients. Occasionally clients have had blood on their faces or hands when they arrived at Employer’s office. If a client appeared who was bleeding, employees had been instructed not to administer first aid but to call 911. On one occasion an employee of Employer performing janitorial duties found a hypodermic needle (sharp) in the trash can in a bathroom.

Docket No. 95-R1D1-931

Citation No. 1, General

Items 1, 3, 5, 7, and 8

Docket No. 95-R1D1-932

Citation No. 2, General

ISSUE

Was there sufficient evidence of financial hardship to support the ALJ’s reduction of the civil penalties from $600 to $300?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

There Was Insufficient Evidence of Financial Hardship to Support the ALJ’s Reduction of the Civil Penalties from $600 to $300.

The Division argues that the evidence was insufficient to establish that the civil penalties as reduced by the Division at the hearing would result in any legally recognizable hardship to Employer. The Division provided the maximum penalty reductions allowed under the Director’s regulations at the hearing when it reduced the total civil penalties it had proposed for all citations from $1,800 to $700 (336(k)). Employer argues that even the reduced penalties would result in severe financial hardship.

Seth Katzman, Director of Employer’s Hotel and Community Services Program, testified that Employer’s contract with the Department of Social Services provided a fixed reimbursement for two years and did not provide cost of living increases. Katzman also testified that Employer was in the process of securing a $15,000 block grant for use in abating the violations, but Employer’s move to a new location would obviate any need to abate the violations. Katzman testified that any reductions in the proposed penalties would be used to fund tenant improvements at the new facility.

The Division argues that Employer presented insufficient evidence to establish that the reduced penalties proposed by the Division at hearing would cause Employer financial hardship.

The purpose of civil penalties provided for in the Occupational Safety and Health Act of 1973 (the Act, Labor Code 6300 et seq.) is not to exact retribution but to achieve safe and healthful working conditions for all of California’s working men and women. (Tzeng Long USA, Inc., OSHAB 91-300, Decision After Reconsideration (April 30, 1992).) In Tzeng Long, the Board declined to reduce civil penalties on financial hardship grounds. The employer in Tzeng Long presented evidence that the size of the work force at the facility where the violation occurred had been reduced, and that the facility would eventually close. While in Tzeng Long the employer’s business had been declining, it continued to operate its other facility, and there was no evidence that the penalties were so severe that they could force the employer out of business. The Board declined to reduce the penalties because of the lack of evidence that the penalties themselves would force the employer out of business.

In this case, Employer did not provide any documentary evidence to support its conclusionary statement that "payment of the penalties would reduce the funds available to clients." The Board has not recognized that organizations like Employer, simply by virtue of their non-profit social service status, are entitled to reductions in civil penalties. At the hearing, the Division reduced the civil penalties it had proposed for Citation Nos. 1 and 2 from $1,300 to $600. Civil penalties in the relatively modest amount of $600 were unlikely to cause a financial hardship. A more specific showing that the civil penalties would disrupt the organization’s programs would be required to establish a financial hardship entitling the non-profit organization to a further reduction of civil penalties.

The Board therefore finds that Employer did not prove financial hardship sufficient to warrant an additional $300 reduction in civil penalties. The civil penalties proposed by the Division are consistent with the purposes of the Act and appropriate to encourage Employer to maintain safe and healthful working conditions for its employees.

Docket No. 95-R1D1-933

Citation No. 3

General

Did the evidence establish that Employer’s employees are occupationally exposed to bloodborne pathogens, thereby triggering the requirement that Employer provide an exposure control plan under section 5193(c)(1)(A)?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERATION

The Evidence Did Not Establish that Employer’s Employees Are Occupationally Exposed to Bloodborne Pathogens, Thus, Employer Was Not Required to Provide an Exposure Control Plan under Section 5193(c)(1)(A).

Section 5193(c)(1)(A) provides:

Each employer having an employee(s) with occupational exposure as defined by subsection (b) of this section shall establish a written Exposure Control Plan which is designed to eliminate or minimize employee exposure and which is also consistent with Section 3203.

"Occupational exposure" is defined in section 5193(b) as:

[R]easonably anticipated skin, eye, mucous membrane, or parenteral contact with blood or other potentially infectious materials [OPIM] that may result from the performance of an employee’s duties.

An occupational exposure plan requires that the employer determine which employees are occupationally exposed and in which specific tasks they are occupationally exposed. The employer must determine and apply any of the following provisions of section 5193 it determines to be appropriate: methods of compliance (5193(d)); rules for HIV, HBV, HCV research laboratories (5193(e)); hepatitis B vaccination and post-exposure follow-up (5193(f)); communication of the hazard to employees and 30-year recordkeeping (5193(h)).

The parties stipulated that there is a limited potential for employee exposure to bodily fluids and/or sharps that may be contaminated. Division Industrial Hygienist Woody Hill testified that based on his experience as an industrial hygienist and his training at medical facilities, it was his opinion that Employer was required by section 5193(c)(1)(A) to develop a written exposure control program. Hill also testified that since Employer primarily handles money at the site, employees only have a collateral duty to render first aid, unless they are instructed otherwise.

Employer argued that its employees do not have even a collateral duty to render first aid. It has instructed its employees not to administer first aid but to call 911 if a client needs emergency medical assistance.

The ALJ found that occupational exposure was not established. The ALJ concluded that the limited employee exposure established by the parties’ stipulation was insufficient to support a finding of occupational exposure. The only evidence apart from the stipulation in support of occupational exposure was the statement of Employer’s program director that clients on occasion came into the office with blood on their faces or hands, and that on one occasion, an employee found a hypodermic needle in the bathroom trash receptacle. Because Employer had instructed its employees not to render first aid but to call 911, the fact that clients occasionally appeared with blood on their faces or hands did not compel the conclusion that Employer would reasonably anticipate that its employees would come in direct contact with blood or OPIM. The ALJ found that Employer’s employees were no more exposed to blood or OPIM than were employees at a grocery store in the same neighborhood.

The ALJ also found that the evidence failed to establish occupational exposure to sharps. The parties’ stipulation was only that any needles found "may" be contaminated. There was no evidence that blood or OPIM were present in or on the needle found in the bathroom. The ALJ further found the evidence insufficient to establish the employee’s duties included cleaning feces or blood in the bathroom, since the only evidence regarding the employee’s duties were that he "did the things [Employer] asked him to do." The ALJ therefore found that the single instance when one of Employer’s employees found a hypodermic needle in a trash receptacle in the bathroom insufficient to establish that it could be reasonably anticipated that the employee would be exposed to blood or OPIM.

The Division asserts that the ALJ’s findings are not supported by substantial evidence. The Division’s arguments, however, address the legal standards to be applied rather than the sufficiency of the evidence.

The Division bases its arguments entirely on the Secretary of Labor’s statement of reasons in the Federal Register (56 Fed.Reg. 64004 (Dec. 6, 1991)) for adopting the federal bloodborne pathogen regulation (29 C.F.R. 2910.1030).

The Secretary recognized that the possibility of "Good Samaritan" acts by employees is not, by itself, a sufficient basis for finding occupational exposure. (Id., at 64101.) The possibility of any exposure to blood, particularly in emergency or first aid situations, was not to be the basis for a finding of occupational exposure. The statement of reasons identifies a list of occupational groups as being occupationally exposed, the largest group being employees in the health care industry. Hospital housekeeping employees were included because they "often encounter carelessly discarded contaminated sharps," (Id., at 64091, emphasis added.) as do hospital laundry workers (Ibid.). Drug treatment center employees were included because their duties included first aid and phlebotomy. (Ibid.) Other occupational groups are identified as having occupational exposure. These include employees whose primary duties are not health care but who have been designated by their employers as responsible for providing first aid, and employees whose primary duties are the handling of waste contaminated with large quantities of blood. Social service facilities like Employer’s are not included in the list.

The Division argues that there is a greater likelihood that a bleeding client will appear at Employer’s facility than bleeding customers will appear at a grocery store in the same neighborhood. The Board finds that the Division’s suggestion that Employer’s clients are bleeding more often than customers at a grocery store in the same neighborhood is based on speculation. Rather, the real thrust of the Division’s argument for finding occupational exposure based on the record is that, because of the population which Employer serves, it is more likely that Employer’s clients will be carriers of bloodborne pathogens than the customers at a grocery store in the same area.

The Secretary’s statement found occupational exposure based solely on the population served by an employer’s workforce to be an unreliable indicator of occupational exposure of those employees (Id., at 64088). The probability of direct contact with blood or bodily fluids containing blood was recognized as the dominant factor in determining the existence of occupational exposure. (Id., at 64088-64089.)

The Secretary stated that "reasonably anticipated skin, eye, mucous membrane, or parenteral contact with blood or OPIM that may result from the performance of the employee’s duties" is the basis of occupational exposure. (Id., at 64089, emphasis added.) The reference to employee’s duties requiring or risking contact with blood show that it is not merely the presence of blood but duties bringing employees into contact with it that are the essence of occupational exposure.

The Board finds that the Secretary’s comments, even if they were binding on the Appeals Board, do not support the Division’s position.

The Division points out that Employer has no instructions in place for cleaning blood or for handling garbage. The Division concludes its argument by stating that the Board should focus on what Employer could accomplish through its illness and injury prevention program. The ALJ found that the risks shown by this record did not require an occupational exposure plan but could be addressed by Employer’s illness and injury prevention plan.

The Board agrees. The obligation to establish and maintain an illness and injury prevention plan applies to all employers, pursuant to section 3203. The Division did not issue a citation for a violation of section 3203. Section 3203 requires each employer to identify the hazards their employees are exposed to, to adopt procedures and rules to protect the employees against the hazards identified, and to train their employees to follow those rules and practices.

The Board therefore concludes that the ALJ correctly set aside Citation No. 3, based on the absence of evidence of a reasonably foreseeable exposure of Employer’s employees to blood or OPIM.

DECISION AFTER RECONSIDERATION

The decision of the ALJ is reinstated and affirmed, except that civil penalties totaling $600 are assessed. Employer’s appeal from Citation No. 3 is granted.

JAMES P. GAZDECKI, Chairman
BILL DUPLISSEA, Member
OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD
SIGNED AND DATED AT SACRAMENTO, CALIFORNIA – July 27, 1999