Ask the expert: Source patient testing after a needlestick is the law for employers, not an option

Yes, I can imagine your situation. The enforcement reference cited above goes on to say:

If legally-required consent is not obtained, the employer must establish this. This fact should be documented in writing, unless there is other clear evidence that consent could not be obtained. The compliance officer should ensure that the employer’s plan includes this provision.

For those jurisdictions that do not require consent of the individual, available blood may be used for testing rather than redrawing a specimen. The term “if available” applies to blood samples that have already been drawn from the source individual. OSHA does not require redrawing of blood specifically for HBV and HIV testing without the consent of the source individual.

The tricky thing is that while the federal OSHA requirement to attempt to obtain consent for source patient blood sampling covers multiple states, the state themselves have their unique consent rules.

In your situation it would be very important to be absolutely clear what your state consent rules are, when you can use available blood for testing rather than drawing a specimen, and in what cases you can resort to “anyone legally authorized to give consent on his/her behalf.”

I suggest the legal counsel for your facility as the first place to start.

OSHA definition of an exposure under the bloodborne pathogens is:

“Exposure Incident means a specific eye, mouth, other mucous membrane, non-intact skin, or parenteral contact with blood or other potentially infectious materials that results from the performance of an employee’s duties.”

You might want to consult an infectious disease expert to determine the likelihood of infectious substances from a nebulizer.

There is nothing in the federal OSHA bloodborne pathogens standard that addresses the use of fictitious names, but there is clear cut language requiring the employer to inform the exposed employee of the “identification of the source individual,” according to section 1910.1030(f)(3)(ii) of the standard.

One of the basic precepts of OSH Act of 1970, which granted the authority to create OSHA, is that employees have a right to know about and to receive protection from hazards in the workplace. The use of fictitious names for source patients places a barrier to that right to know and puts you on track for a serious, and possibly willful, violation, in my opinion.

Employers have the responsibility, however, under section (f)(3)(ii)(C) of the standard to advise the employee to maintain confidentiality according to applicable laws and regulations concerning disclosure of the identity and infectious status of the source individual.

If it is HIPAA that you worried about violating, see the post “Ask the Expert—OSHA vs. HIPAA.” It gives the HIPAA citation for disclosing information that is required by law, which includes OSHA standards.

I am trying to ensure that source patients are drawn as quickly as possible after an employee exposure. Are we allowed to have patients sign consent upon admission that in the event of an exposure they agree for testing?