Ask the expert: Who does OSHA fine for not using safety needles, the worker or employer

By: December 30th, 2011 Email This Post Print This Post

Q: If an employee refuses to use available safety devices, such as safety needles and sharps, who would pay the fine if an OSHA inspector cites such a situation? The employee or the employer?

A: The employer is responsible and bears the burden of any citations or fines. OSHA only has the power to fine the employer, not the employee.

OSHA would expect the employer to modify the safety education program and training to achieve compliance among staff. Documented progressive disciplinary actions could mitigate the issuance of a citation or the severity of a fine.

Last year the average initial OSHA fine to medical practices for not providing or ensuring the use of safety devices was $1,306, according to Medical Environment Update.

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By suzanne reilly,RDH on December 30th, 2011 at 11:11 am

please define safety needles and safety devices.

By PPE Question on December 30th, 2011 at 11:32 am

I had once heard OSHA can fine an employee for not wearing PPE in a hospital setting in something like a decontam area, is that untrue based on the above? Thanks

By David LaHoda on December 30th, 2011 at 11:32 am

The definition in the OSHA Bloodborne Pathogen standard is comprehensive enough for the general term of safety needle or device:

“Sharps with engineered sharps injury protections means a nonneedle sharp or a needle device used for withdrawing body fluids, accessing a vein or artery, or administering medications or other fluids, with a built-in safety feature or mechanism that effectively reduces the risk of an exposure incident.”

By David LaHoda on December 30th, 2011 at 11:43 am

The OSH Act, which established OSHA 40 years ago, does not give the agency the ability to fine individual employees. I have found no instance where a employee has been levied a fine by OSHA.

By Lisa Moschkau on January 3rd, 2012 at 8:46 am

What about a non-employee working at the facility (i.e. a surgeon who is credentialed and given privileges to work at our facility but who is not an employee)? Who will be fined for their non-compliance: the facility or their employer?

OH YES- “modifying training and education “work soooooooo well with some people. As a manager, you need to take compliance serously enough to document noncompliance and remove employees who repeadedly violate procedures. Where it gets sticky is with licensed independent practitioners who are credentialled but not actually an employee. I find that all too often the committee is willing to overlook these individuals and allow them to do what they will- at least until the institution is fined. Even then, if they can make the area manager in the area the scapegoat it continues to be overlooked. Not fair- but then, that is life to some extent anyhow.

To: David LaHoda

Please expand upon the topic of safety needles re: prefilled vaccine syringes with attached needles supplied by certain pharmaceutical companies.

Thank you.

By David LaHoda on January 3rd, 2012 at 10:47 am

Both your facility and the employer of the surgeon could be fined depending on the circumstances according to OSHA’s Enforcement Procedures for the Occupational Exposure to Bloodborne Pathogens:

“Physicians may be employers or employees. Physicians who are unincorporated sole proprietors or partners in a bona fide partnership are employers for purposes of the OSH Act and may be cited if they employ at least one employee (such as a technician or secretary). Such physician-employers may be cited if they create or control bloodborne pathogens hazards that expose employees at hospitals or other sites where they have staff privileges in accordance with the multi-employer worksite guidelines of CPL 2-0.124, Multi-Employer Citation Policy. Because physicians in these situations are not themselves employees, citations may not be based on the exposure of such physicians to the hazards of bloodborne diseases.

Physicians may be employed by a hospital or other healthcare facility or may be members of a professional corporation and conduct some of their activities at host employer sites where they have staff privileges. In general, professional corporations are the employers of their physician-members and must comply with the hepatitis B vaccination, post-exposure-evaluation and follow up, recordkeeping, and generic training provisions with respect to these physicians when they work at host employer sites. The host employer is not responsible for these provisions with respect to physicians with staff privileges, but in appropriate circumstances, may be cited under other provisions of the standard in accordance with the multi-employer worksite guidelines of CPL 2-0.124, Multi-Employer Citation Policy. The professional corporation may also be cited under other provisions of the standard for the exposure of its physicians and other workers at a host employer site in accordance with the multi-employer worksite guidelines of CPL 2-0.124, Multi-Employer Citation Policy.”

In short, if a surgeon is creating a hazard for your employees by not following OSHA standards, you have a duty to protect your employees.

By David LaHoda on January 3rd, 2012 at 11:10 am

Manufacturer-supplied pre-filled syringes without safety needles do not exempt employers from compliance with the Bloodborne Pathogens standard as a 2007 OSHA letter of interpretation,“Requirements for safety-engineered sharps for stockpiled pandemic influenza vaccines and pre-filled syringes,” makes clear:

“…where safety-engineered equipment, such as add-on safety devices, is commercially available, employers are expected to implement their use to prevent needlestick incidents. Furthermore, we are unaware of any technical reasons that would prevent the use of safety-engineered needles for pre-filled syringes at this time.”

This became an actual concern late in 2008 when Novartis supplied pre-filled flu vaccines without safety needles. You can read about it at “Lack of flu-shot safety device poses problem for worker.

By Bruce Cunha on January 3rd, 2012 at 3:01 pm

Under Section 5 Duties of the OSHA Act. letter b. States.

“(b) Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct.”

Unfortunately, OSHA never enforces this part of the regulation. There is no provision in the act to do this.

Documenation and disciplinary actions are the only things left if education does not convince the employee to use safety devices.

The BBP standard does give an out to using PPE. But it is not easy.

Use. The employer shall ensure that the employee uses appropriate personal protective equipment unless the employer shows that the employee temporarily and briefly declined to use personal protective equipment when, under rare and extraordinary circumstances, it was the employee’s professional judgment that in the specific instance its use would have prevented the delivery of health care or public safety services or would have posed an increased hazard to the safety of the worker or co-worker. When the employee makes this judgement, the circumstances shall be investigated and documented in order to determine whether changes can be instituted to prevent such occurrences in the future

By Carol Hutchinson on January 13th, 2012 at 10:22 am

Question regarding a clinic with tenants who lease space from the practice but are not employees. The tenants are responsible for their employees compliance with OSHA standards. The practice furnishes sharps containers (but not the needles or other sharps) and allows the tenants to dispose of their sharps containers and other biohazard waste in the practice’s biohazard boxes which are removed from the premises on schedule by a leading waste management organization. My question is…..if the tenants put needles with no safety device or uncapped needles into their sharps containers and we dispose of them, could OSHA fine us? If we indentify the individual containers as having come from the tenants would we be responsible? If a patient brings a sharps container with capped needles or no safety devices and asks us to dispose of them can we identify them to indicate that these were not used by an employee of the practice?

By sandra d alcauter on May 7th, 2021 at 10:08 pm

At the united states post office isnt it the reposability of management or superviser to take in the needle from the red containers to be dispose of not the custodians.


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