To amend sections 4167.01, 4167.07, 4167.09, and 4167.11 and to enact section 4167.041 of the Revised Code to require each public employer that employs public health care workers to develop an exposure control plan incorporating the use of needleless systems and sharps with injury protection devices.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Sec. 4167.01. As used in this chapter:

(A) "Public employer" means any of the following:

(1) The state and its instrumentalities;

(2) Any political subdivisions and their instrumentalities, including any county, county hospital, municipal corporation, city, village, township, park district, school district, state institution of higher learning, public or special district, state agency, authority, commission, or board;

(3) Any other branch of public employment not mentioned in division (A)(1) or (2) of this section.

(B) "Public employee" means any individual who engages to furnish services subject to the direction and control of a public employer, including those individuals working for a private employer who has contracted with a public employer and over whom the national labor relations board has declined jurisdiction. "Public employee" does not mean any of the following:

(1) A fire fighter, an emergency medical technician-ambulance, an advanced emergency medical technician-ambulance, a paramedic, or a peace officer employed by a public employer as defined in division (A)(2) of this section, any member of the organized militia ordered to duty by state authority pursuant to Chapter 5923. of the Revised Code, or a fire fighter, an emergency medical technician-ambulance, an advanced emergency medical technician-ambulance, or a paramedic employed by a private employer that is organized as a nonprofit fire company or life squad that contracts with a public employer to provide fire protection or emergency medical services;

(2) Any person employed as a correctional officer in a county or municipal corporation correctional institution, whether the county or municipal corporation solely or in conjunction with each other operates the institution;

(3) Any person who engages to furnish services subject to the direction and control of a public employer but does not receive compensation, either directly or indirectly, for those services;

(4) Any forest officer, park officer, watercraft officer, wildlife officer, or preserve officer.

(C) "Public employee representative" means an employee organization certified by the state employment relations board under section 4117.05 of the Revised Code as the exclusive representative of the public employees in a bargaining unit.

(D) "Employment risk reduction standard" means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe and healthful employment and places of employment.

(E) "Ohio employment risk reduction standard" means any risk reduction standard adopted or issued under this chapter.

(F) "Undue hardship" means any requirement imposed under this chapter or a rule or order issued thereunder that would require a public employer to take an action with significant difficulty or expense when considered in light of all of the following factors:

(1) The nature and cost of the action required under this chapter;

(2) The overall financial resources of the public employer involved in the action;

(3) The number of persons employed by the public employer at the particular location where the action may be required;

(4) The effect on expenses and resources or the impact otherwise of the action required upon the operations of the public employer at the location where the action may be required;

(5) The overall size of the public employer with respect to the number of its public employees;

(6) The number, type, and location of the public employer's operations, including the composition, structure, and functions of the workforce of the public entity;

(7) The geographic separateness, administrative, or fiscal relationship of the public employer's operations to the whole public employer.

(G) "BLOOD BORNE PATHOGEN" MEANS PATHOGENIC MICROORGANISMS THAT CAN CAUSE HIV AND HEPATITIS A, B, AND C AND ANY OTHER PATHOGENIC MICROORGANISMS THAT ARE PRESENT IN HUMAN BLOOD AND CAN CAUSE DISEASE IN HUMANS.

(H) "ENGINEERED SHARPS INJURY PROTECTION" MEANS A PHYSICAL ATTRIBUTE BUILT INTO EITHER:

(1) A NEEDLE DEVICE USED FOR WITHDRAWING BODY FLUIDS, ACCESSING A VEIN OR ARTERY, OR ADMINISTERING MEDICATIONS OR OTHER FLUIDS, WHICH EFFECTIVELY REDUCES THE RISK OF AN EXPOSURE INCIDENT BY A MECHANISM SUCH AS A BARRIER CREATION, BLUNTING, ENCAPSULATION, WITHDRAWAL, RETRACTION, DESTRUCTION, OR OTHER EFFECTIVE MECHANISM;

(2) ANY OTHER TYPE OF NEEDLE DEVICE, OR A NON-NEEDLE SHARP, WHICH EFFECTIVELY REDUCES THE RISK OF AN EXPOSURE INCIDENT.

(I) "PUBLIC HEALTH CARE WORKER" MEANS A PERSON WHO IS EMPLOYED BY A PUBLIC EMPLOYER IN A POSITION WITH POTENTIAL OCCUPATIONAL EXPOSURE TO SHARPS-RELATED INJURIES.

(J) "FRONTLINE HEALTH CARE WORKER" MEANS A PERSON WHO IS EMPLOYED BY A PUBLIC EMPLOYER AND IS RESPONSIBLE FOR DIRECT PATIENT CARE WITH POTENTIAL OCCUPATIONAL EXPOSURE TO SHARPS-RELATED INJURIES.

(K) "NEEDLELESS SYSTEM" MEANS A DEVICE THAT DOES NOT UTILIZE NEEDLES FOR THE FOLLOWING:

(1) WITHDRAWALS OF BODY FLUIDS AFTER INITIAL VENOUS OR ARTERIAL ACCESS IS ESTABLISHED;

(2) ADMINISTRATION OF MEDICATION OR FLUIDS;

(3) ANY OTHER PROCEDURE INVOLVING THE POTENTIAL FOR EXPOSURE TO BLOOD OR OTHER MATERIAL POTENTIALLY CONTAINING BLOOD BORNE PATHOGENS.

(L) "SHARP" MEANS ANY OBJECT USED OR ENCOUNTERED IN A HEALTH CARE SETTING THAT CAN BE REASONABLY ANTICIPATED TO PENETRATE THE SKIN OR ANY PART OF THE BODY AND RESULT IN AN EXPOSURE INCIDENT.

(M) "SHARPS INJURY" MEANS ANY INJURY CAUSED BY A SHARP.

Sec. 4167.041. (A) EACH PUBLIC EMPLOYER THAT EMPLOYS PUBLIC HEALTH CARE WORKERS SHALL DO ALL OF THE FOLLOWING:

(1) ESTABLISH A COMMITTEE TO EVALUATE PRODUCTS THAT REDUCE THE RISK OF SPREADING BLOOD BORNE PATHOGENS, AT LEAST HALF THE MEMBERS OF WHICH ARE FRONTLINE PUBLIC HEALTH CARE WORKERS FROM A VARIETY OF OCCUPATIONAL CLASSIFICATIONS AND DEPARTMENTS, INCLUDING NURSES, NURSE AIDES, TECHNICIANS, PHLEBOTOMISTS, AND PHYSICIANS;

(2) INCLUDE AS ENGINEERING AND WORK PRACTICE CONTROLS NEEDLELESS SYSTEMS AND SHARPS WITH ENGINEERED SHARPS AND INJURY PROTECTION, EXCEPT THAT THE EMPLOYER MAY APPLY FOR A VARIANCE FROM THE REQUIREMENTS OF THIS SECTION UNDER DIVISION (D) OF SECTION 4167.09 OF THE REVISED CODE, FOR EITHER OF THE FOLLOWING REASONS:

(a) NONE OF THESE DEVICES ARE AVAILABLE IN THE MARKETPLACE.

(b) THE EVALUATION COMMITTEE DETERMINES THAT USE OF THESE DEVICES WILL JEOPARDIZE PATIENT OR EMPLOYEE SAFETY WITH REGARD TO A SPECIFIC MEDICAL PROCEDURE.

(3) DEVELOP AND IMPLEMENT A WRITTEN EXPOSURE CONTROL PLAN CONSISTENT WITH THE EMPLOYMENT RISK REDUCTION STANDARD ADOPTED BY THE PUBLIC EMPLOYMENT RISK REDUCTION ADVISORY COMMISSION PURSUANT TO SECTION 4167.07 OF THE REVISED CODE, INCLUDING PROCEDURES FOR BOTH OF THE FOLLOWING:

(a) IDENTIFYING AND SELECTING NEEDLELESS SYSTEMS AND SHARPS WITH ENGINEERED SHARPS INJURY PROTECTION;

(b) UPDATING, AT LEAST ONCE A YEAR, THE EXPOSURE CONTROL PLAN WHEN NECESSARY TO REFLECT PROGRESS IN IMPLEMENTING NEEDLELESS SYSTEMS AND SHARPS WITH ENGINEERED SHARPS INJURY PROTECTION.

(4) ENSURE THAT ALL PUBLIC HEALTH CARE WORKERS ARE TRAINED IN THE USE OF ENGINEERING AND WORK PRACTICE CONTROLS BEFORE UNDERTAKING ANY TASK WITH POTENTIAL OCCUPATIONAL EXPOSURE TO SHARPS-RELATED INJURIES.

(B) THE PRODUCT EVALUATION COMMITTEE SHALL ADVISE THE EMPLOYER ON THE IMPLEMENTATION OF THE REQUIREMENTS OF THIS SECTION. PRIOR TO COMMENCEMENT OF ANY PRODUCT EVALUATION, MEMBERS OF THE COMMITTEE SHALL BE TRAINED IN THE PROPER METHOD OF UTILIZING PRODUCT EVALUATION CRITERIA.

Sec. 4167.07. (A) The public employment risk reduction advisory commission shall adopt rules that establish employment risk reduction standards. Except as provided in division (B) of this section, in adopting these rules, the commission shall do both ALL of the following:

(1) By no later than July 1, 1994, adopt as a rule and an Ohio employment risk reduction standard every federal occupational safety and health standard then adopted by the United States secretary of labor pursuant to the "Occupational Safety and Health Act of 1970," 84 Stat. 1590, 29 U.S.C.A. 651, as amended;

(2) By no later than one hundred twenty days after the United States secretary of labor adopts, modifies, or revokes any federal occupational safety and health standard, by rule do one of the following:

(a) Adopt the federal occupational safety and health standard as a rule and an Ohio employment risk reduction standard;

(b) Amend the existing rule and Ohio employment risk reduction standard to conform to the modification of the federal occupational safety and health standard;

(c) Rescind the existing rule and Ohio employment risk reduction standard that corresponds to the federal occupational safety and health standard the United States secretary of labor revoked.

(3) BY NO LATER THAN ONE HUNDRED EIGHTY DAYS AFTER THE EFFECTIVE DATE OF THIS AMENDMENT, BY RULE DO ALL OF THE FOLLOWING:

(a) PRESCRIBE AND, WHEN APPROPRIATE, UPDATE ADDITIONAL CONTROL PROCEDURES TO PREVENT SHARPS INJURIES AND INCIDENTS OF EXPOSURE TO BLOOD OR OTHER MATERIAL POTENTIALLY CONTAINING BLOOD BORNE PATHOGENS INCLUDING THE FOLLOWING:

(i) TRAINING AND EDUCATIONAL REQUIREMENTS;

(ii) INCREASED USE OF VACCINATIONS;

(iii) STRATEGIC PLACEMENT OF SHARPS CONTAINERS AS CLOSE TO THE WORK AREA AS PRACTICAL;

(iv) INCREASED USE OF PERSONAL PROTECTIVE EQUIPMENT.

(b) COMPILE AND MAINTAIN A LIST OF NEEDLELESS SYSTEMS AND SHARPS WITH ENGINEERED SHARPS INJURY PROTECTION, WHICH SHALL BE AVAILABLE TO ASSIST PUBLIC EMPLOYERS IN COMPLYING WITH SECTION 4167.041 OF THE REVISED CODE. THE LIST MAY BE DEVELOPED FROM EXISTING SOURCES OF INFORMATION, INCLUDING THE FEDERAL FOOD AND DRUG ADMINISTRATION, THE FEDERAL CENTERS FOR DISEASE CONTROL, THE NATIONAL INSTITUTE OF OCCUPATIONAL SAFETY AND HEALTH, AND THE UNITED STATES DEPARTMENT OF VETERANS AFFAIRS.

(B) The commission may decline to adopt any federal occupational safety and health standard as a rule and an Ohio employment risk reduction standard or to modify or rescind any existing rule and Ohio employment risk reduction standard to conform to any federal occupational safety and health standard modified or revoked by the United States secretary of labor or may adopt as a rule and an Ohio employment risk reduction standard any occupational safety and health standard that is not covered under the federal law or that differs from one adopted or modified by the United States secretary of labor, if the commission determines that existing rules and Ohio employment risk reduction standards provide protection at least as effective as that which would be provided by the existing, new, or modified federal occupational safety and health standard or if it determines that local conditions warrant a different standard from that of the existing federal occupational safety and health standard or from standards the United States secretary of labor adopts, modifies, or revokes.

(C) In adopting, modifying, or rescinding any rule or Ohio employment risk reduction standard dealing with toxic materials or harmful physical agents, the commission shall do all of the following:

(1) Set the employment risk reduction standard to most adequately assure, to the extent technologically feasible and on the basis of the best available evidence, that no public employee will suffer material impairment of health or functional capacity as a result of the hazards dealt with by the rule or Ohio employment risk reduction standard for the period of the public employee's working life;

(2) Base the development of these rules and Ohio employment risk reduction standards on research, demonstrations, experiments, and other information as is appropriate and upon the technological feasibility of the rule and standard, using the latest available scientific data in the field and the experience gained in the workplace under this chapter and other health and safety laws, to establish the highest degree of safety and health for the public employee;

(3) Whenever practicable, express the rule and Ohio employment risk reduction standard in terms of objective criteria and of the performance desired;

(4) Prescribe the use of labels or other appropriate forms of warning as are necessary to ensure that public employees are apprised of all hazards to which they are exposed, relevant symptoms and appropriate emergency treatment, and proper conditions and precautions of safe use or exposure where appropriate;

(5) Prescribe suitable protective equipment and control procedures to be used in connection with the hazards;

(6) Provide for measuring or monitoring public employee exposure in a manner necessary for the protection of the public employees;

(7) Where appropriate, prescribe the type and frequency of medical examinations or other tests the public employer shall make available, at the cost of the public employer, to the public employees exposed to the hazards in order to determine any adverse effect from the exposure.

(D) In determining the priority for adopting rules and Ohio employment risk reduction standards under this section, the commission shall give due regard to the urgency of need and recommendations of the department of health regarding that need for mandatory employment risk reduction standards for particular trades, crafts, occupations, services, and workplaces.

(E)(1) Except for rules adopted under division (A) of this section, the commission shall adopt all rules under this section in accordance with Chapter 119. of the Revised Code, provided that notwithstanding that chapter, the commission may delay the effective date of any rule or Ohio employment risk reduction standard for the period the commission determines necessary to ensure that affected public employers and public employees will be informed of the adoption, modification, or rescission of the rule and Ohio employment risk reduction standard and have the opportunity to familiarize themselves with the specific requirements of the rule and standard. In no case, however, shall the commission delay the effective date of a rule adopted pursuant to Chapter 119. of the Revised Code in excess of ninety days beyond the otherwise required effective date.

(2) In regard to the rules for which the commission does not have to comply with Chapter 119. of the Revised Code, the commission shall file two certified copies of the rules and Ohio employment risk reduction standards adopted with the secretary of state and the director of the legislative service commission.

Sec. 4167.09. (A) Any public employer affected by a proposed rule or Ohio employment risk reduction standard or any provision thereof proposed under section 4167.07 or 4167.08 of the Revised Code may apply to the administrator of the bureau of employment services for an order granting a temporary variance from the standard or provision thereof. The application for the order and any extension thereof shall contain a reasonable application fee, as determined by the public employment risk reduction advisory commission, and all of the following information:

(1) A specification of the Ohio public employment risk reduction standard or portion thereof from which the public employer seeks the temporary variance;

(2) A representation by the public employer, supported by representations from qualified persons having firsthand knowledge of the facts represented, that the public employer is unable to comply with the Ohio employment risk reduction standard or portion thereof and a detailed statement of the reasons therefor;

(3) A statement of the steps that the public employer has taken and will take, with dates specified, to protect employees against the hazard covered by the standard;

(4) A statement of when the public employer expects to be able to comply fully with the Ohio employment risk reduction standard and what steps he THE PUBLIC EMPLOYER has taken and will take, with dates specified, to come into full compliance with the standard;

(5) A certification that the public employer has informed his THE PUBLIC EMPLOYER'S public employees of the application by giving a copy of the application to the public employee representative, if any, and by posting a statement giving a summary of the application and specifying where a copy of the application may be examined at the place or places where notices to public employees are normally posted, and by any other appropriate means of public employee notification. The public employer must also inform his THE PUBLIC EMPLOYER'S public employees of their rights to a hearing under section 4167.15 of the Revised Code. The certification also shall contain a description of how public employees have been informed of the application and of their rights to a hearing.

(B) The administrator shall issue an order providing for a temporary variance if the public employer files an application that meets the requirements of division (A) of this section and establishes that all of the following pertaining to the public employer are true:

(1) He THE PUBLIC EMPLOYER is unable to comply with the Ohio employment risk reduction standard or a provision thereof by its effective date because of the unavailability of professional or technical personnel or of materials and equipment needed to come into compliance with the Ohio employment risk reduction standard or provision thereof or because necessary construction or alteration of facilities cannot be completed by the effective date of the standard.

(2) He THE PUBLIC EMPLOYER is taking all available steps to safeguard his THE PUBLIC EMPLOYER'S public employees against the hazards covered by the Ohio employment risk reduction standard.

(3) He THE PUBLIC EMPLOYER has an effective program for coming into compliance with the Ohio employment risk reduction standard as quickly as practicable.

(4) The granting of the variance will not create an imminent danger of death or serious physical harm to public employees.

(C)(1) If the administrator issues an order providing for a temporary variance under division (B) of this section, the administrator shall prescribe the practices, means, methods, operations, and processes that the public employer must adopt and use while the order is in effect and state in detail the public employer's program for coming into compliance with the Ohio employment risk reduction standard. The administrator may issue the order only after providing notice to affected public employees and their public employee representative, if any, and an opportunity for a hearing pursuant to section 4167.15 of the Revised Code, provided that the administrator may issue one interim order granting a temporary order to be effective until a decision on a hearing is made. Except as provided in division (C)(2) of this section, no temporary variance may be in effect for longer than the period needed by the public employer to achieve compliance with the Ohio employment risk reduction standard or one year, whichever is shorter.

(2) The administrator may renew an order issued under division (C) of this section up to two times provided that the requirements of divisions (A), (B), and (C)(1) of this section and section 4167.15 of the Revised Code are met and the public employer files an application for renewal with the administrator at least ninety days prior to the expiration date of the order.

(D) Any public employer affected by DIVISION (A)(2) OF SECTION 4167.041 of the Revised Code OR an Ohio employment risk reduction standard or any provision thereof proposed, adopted, or otherwise issued under section 4167.07 or 4167.09 of the Revised Code may apply to the administrator for an order granting a variance from the REQUIREMENT OR standard or portion thereof. The administrator shall provide affected public employees and their public employee representative, if any, notice of the application and shall provide an opportunity for a hearing pursuant to section 4167.15 of the Revised Code. The administrator shall issue the order granting the variance if the public employer files an application that meets the requirements of division (B) of this section, and after an opportunity for a hearing pursuant to section 4167.15 of the Revised Code, and if the public employer establishes to the satisfaction of the administrator that the conditions, practices, means, methods, operations, or processes used or proposed to be used by him THE PUBLIC EMPLOYER will provide employment and places of employment to his THE PUBLIC EMPLOYER'S public employees that are as safe and healthful as those that would prevail if he THE PUBLIC EMPLOYER complied with DIVISION (A)(2) OF SECTION 4167.041 of the Revised Code OR the Ohio employment risk reduction standard. The administrator shall prescribe in the order granting the variance the conditions the public employer must maintain, and the practices, means, methods, operations, and processes he THE PUBLIC EMPLOYER must adopt and utilize in lieu of DIVISION (A)(2) OF SECTION 4167.041 of the Revised Code OR the Ohio employment risk reduction standard which would otherwise apply. The administrator may modify or revoke the order upon application of the public employer, public employee, or public employee representative, or upon his THE ADMINISTRATOR'S own motion in the manner prescribed for the issuance of an order under this division at any time during six months after the date of issuance of the order.

Sec. 4167.11. (A) In order to further the purposes of this chapter, the administrator of the bureau of employment services shall develop and maintain, for public employers and public employees, an effective program of collection, compilation, and analysis of employment risk reduction statistics.

(B) To implement and maintain division (A) of this section, the public employment risk reduction advisory commission shall adopt rules in accordance with Chapter 119. of the Revised Code that extend to all of the following:

(1) Requiring each public employer to make, keep, and preserve, and make available to the administrator, reports and records regarding the public employer's activities, as determined by the rule that are necessary or appropriate for the enforcement of this chapter or for developing information regarding the causes and prevention of occupational accidents and illnesses. The rule shall prescribe which of these reports and records shall or may be furnished to public employees and public employee representatives.

(2) Requiring every public employer, through posting of notices or other appropriate means, to keep their public employees informed of public employees' rights and obligations under this chapter, including the provisions of applicable Ohio employment risk reduction standards;

(3) Requiring public employers to maintain accurate records of public employee exposure to potentially toxic materials, carcinogenic materials, and harmful physical agents that are required to be monitored or measured under rules adopted under the guidelines of division (C) of section 4167.07 of the Revised Code. The rule shall provide public employees or public employee representatives an opportunity to observe the monitoring or measuring, and to have access on request to the records thereof, and may provide public employees or public employee representatives an opportunity to participate in and to undertake their own monitoring or measuring. The rules also shall permit each current or former public employee to have access to the records that indicate their own exposure to toxic materials, carcinogenic materials, or harmful agents.

(4) REQUIRING PUBLIC EMPLOYERS SUBJECT TO SECTION 4167.041 OF THE REVISED CODE TO MAINTAIN ACCURATE RECORDS OF PUBLIC HEALTH CARE WORKER SHARPS INJURIES AND INCIDENTS OF EXPOSURE TO BLOOD OR OTHER MATERIAL POTENTIALLY CONTAINING BLOOD BORNE PATHOGENS. THE RULES SHALL REQUIRE THE RECORDS TO CONTAIN THE FOLLOWING INFORMATION:

(a) THE DATE AND TIME OF THE INJURY OR INCIDENT;

(b) THE TYPE AND BRAND OF SHARP INVOLVED;

(c) A DESCRIPTION OF THE INJURY OR INCIDENT INCLUDING ALL OF THE FOLLOWING:

(i) THE JOB CLASSIFICATION OF EACH EMPLOYEE INVOLVED;

(ii) THE DEPARTMENT OR WORK AREA WHERE THE INJURY OR INCIDENT OCCURRED;

(iii) THE PROCEDURE THAT THE EMPLOYEE WAS PERFORMING AT THE TIME OF THE INJURY OR INCIDENT;

(iv) HOW THE INJURY OR INCIDENT OCCURRED;

(v) THE BODY PART INVOLVED;

(vi) IF A SHARP THAT HAD ENGINEERED SHARPS INJURY PROTECTION WAS INVOLVED IN AN INJURY, WHETHER THE INJURY OCCURRED BEFORE, DURING, OR AFTER ACTIVATION OF THE PROTECTIVE MECHANISM;

(vii) IF A SHARP THAT DID NOT HAVE ENGINEERED SHARPS INJURY PROTECTION WAS INVOLVED IN AN INJURY, AN ASSESSMENT OF WHETHER AND HOW SUCH A MECHANISM COULD HAVE PREVENTED THE INJURY, AND THE BASIS FOR THE ASSESSMENT.

(C) The administrator shall obtain any information under division (B) of this section with a minimum burden upon the public employer and shall, to the maximum extent feasible, reduce unnecessary duplication of efforts in obtaining the information.