Unions starting push to expand OSHA TB standard to more settings
Large survey finds TB exposures outside medical settings
As the deadline approaches for the comment period following hearings on the Occupational Safety and Health Administration's (OSHA) proposed TB standard, health services employee unions are putting together data supporting their contention that the standard should be expanded to include protection for employees outside of health facilities.
"We are seeking a major increase in the scope of the standard," says Jim August, health and safety specialist for the American Federation of State County and Municipal Employees (AFSCME). "We want to expand protection to social service workers, probation and parole, mental health, and all congregate living situations that would be long-term care other than the elderly."
At the first of four public hearings on the standard, AFSCME asked for expanded coverage to all workers "in social work, social welfare services, teaching, law enforcement, and legal services," noting that these workers have frequent, unprotected contact with people at high risk for TB. In addition, the union called for coverage of all congregate settings or residential facilities, such as homes for the mentally ill, physically disabled, and AIDS care units.
August described the support for the expansion as "almost a consensus" among those who support the standard. To back up its demand, the union is finalizing the results of a survey response from 170 workplaces that include corrections and social services and which represent more than 100,000 workers. The results will be sent to OSHA as part of the post-hearing comment period during which additional information and data relevant to the proceedings can be introduced. That deadline is Sept. 4.
AFSCME was not ready to make the survey public, but August says the responses indicate that "there are infections in all sectors and that compliance with Centers for Disease Control and Prevention recommendations is pretty pathetic."
In AFSCME's written comments presented at the hearings and obtained by TB Monitor, the union states: "Preliminary data from our survey show that there have been occupational TB infections and/or TB or MDR-TB cases within the past three years in all the facilities reporting. In one instance, there were nine positive PPD conversions among 300 employees within a several-month period. The facility is located in a sparsely populated area of northwest Minnesota and also provides mental health and drug treatment services and long-term care to the elderly."
AFSCME also notes that "the survey and other evidence indicate that social service employees and probation employees serve high-risk populations and are often exposed to TB in offices, homes, and other settings without the benefit of any of the recognized methods of TB infection control." (For testimony from an infected employee, see story, p. 99.)
OSHA's response
How OSHA will respond to the union's demands is unclear. The agency is reviewing public hearing comments and documents totaling more than 5,000 pages. The standard is slated for long-term action, meaning that it will not become a final rule for at least a year, says OSHA spokeswoman Susan Fleming.
Should the agency make a major change in the proposed rule, such as a significant expansion in the scope of coverage, it would likely reopen the rule for additional public hearings, she says, particularly if those persons or institutions impacted by the expansion were not part of the public hearing process.
"If we suddenly found there is a real risk for the construction industry, we would have to reopen the rule for that because construction people clearly wouldn't have commented on that," she explains. "If we decide that nursing homes are safer than we thought and not going to be covered, then we wouldn't reopen hearings because that would be a logical consequence of the information we receive from appropriate people during the rule making."
August says, in his opinion, OSHA could adopt the union's proposal without reopening hearings. The move, however, could face legal challenges, he notes, adding that while the proposed expansion was discussed during the hearings it wasn't part of OSHA's proposed rule, and opponents didn't have the opportunity to weigh in.
"There is no question it could get messy," he says. "I don't know if OSHA will expand the scope of the standard as far as we would like, but there is no question it can't stay where it is."
While OSHA would not comment on its position on the proposed expansion, August argues that the agency would like to expand the scope of the standard as little as possible so it won't invite more opposition. In this case, opposition could be strong because most of the workers would be public-sector employees, who have considerable clout, he adds.
Opposition less adamant, but not backing off
As other organizations submit post-hearing summaries and comments, it appears that outright opposition to the proposed rule has dissipated in favor of a compromised position, observers note. Indeed, it would be highly unlikely that OSHA would rescind its proposed rule and fail to act on it, Fleming says.
August agrees. "The argument has shifted; it's not quite a consensus, but there is no way OSHA won't go ahead unless Congress steps in."
Indeed, after steady pressure from the unions and strong challenges to its assumptions, the American Lung Association (ALA) and its sister organization, the American Thoracic Society, appear to have modified their position, says Bill Borwegen, health and safety director for the Service Employees International Union.
"There has been an amazing amount of dissension among the ranks of the ALA," he says. "The Thoracic Society came out strongly against the standard. And then during rule making, it came out that a lot of their assumptions were off and the ALA has said it was going to support the standard for the most part."
August makes a similar assessment. "Under questioning, their arguments fell to pieces," he says. "After the first hearing they changed their tact to wanting to work with OSHA to develop a better standard as opposed to withdrawing the standard."
At the April hearing in Washington, Edward Nardell, MD, TB control officer for the Massa-chusetts Department of Public Health, stated the agency's position as "our belief that the proposed OSHA TB standard mandates far too much intervention and comes far too late in view of the magnitude of the current TB risk for potentially exposed workers in the United States. OSHA greatly overestimates the risk of TB infection for institutional workers."
ALA has clarified its position, which many construed as opposition to any sort of TB standard, says Melissa Matosian, legislative representative for ALA.
"In light of the various hearings, we feel that consensus still doesn't exist as to the magnitude of risk of TB infection in the workplace," she says. "However, there was some question following the hearing as to whether or not we were opposed to any OSHA standard, and that is not our position. We are not opposed to the idea of a standard. It was simply that we didn't necessarily agree on the risk assessment provided in the proposed rule. However, we are willing to work together with OSHA to try to find the most appropriate solution."
Toward that end, ALA plans to hold a scientific meeting in the fall that will bring together experts in both environmental and occupational health as well as various stakeholders, including the CDC and OSHA. ALA hopes the meeting would enable all sides to reach a level of consensus about who to assess risk for TB in the workplace and appropriate interventions for treatment and control, Matosian says.
"We wanted to see if OSHA would consider some of the information that may come from this scientific meeting," she explains.
Indeed, ALA has written OSHA a letter asking the agency to consider the meeting's proceedings before making final revisions to the proposed rule. The post-hearing deadline for submitting final written comments, summations, and briefs to OSHA is Oct. 5. Matosian says a date and place for the meeting has not been set yet because ALA is waiting to see if OSHA will participate in the meeting.
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