Denaka Partners LP (“Denaka”) manufactures specialized mechanical and industrial rubber products, in small volumes. Typically, Denaka receives a design order and begins the process of mixing and compounding rubber and then uses mills and machines to create a finished product. It employs approximately 35 employees. On Dec. 18, 2020, an employee, S.H., was adjusting a blade depth on a specialized mill when he lost his balance and his shirt sleeve was caught, pulling his left arm in the mill, resulting in an amputation. S.H.’s arm and hand were lodged in the roll of product, which had to be cut away to remove them. As they awaited EMS services, Denaka employees, M.L. and P.R., retrieved trash bags while Denaka’s president, Richard Balka, retrieved bleach and they then used rags and bleach to clean up the accident area. They then disposed of the rags and their gloves, as well as S.H.’s torn clothing. Denaka had previously utilized a third-party, Capital Health, to train some employees on bloodborne pathogens, as well as CPR and first aid, and also used American Heart Association student workbooks as part of their training program. They also trained their employees on first aid and CPR in 2017, and which included the use of PPE, handwashing, and notification procedures following an accident, although the training was not site specific.

Mr. Balka testified during the trial that that they did not have a designated team to actually clean-up blood, and further they had not offered the Hepatitis B vaccination to employees who had completed their bloodborne pathogen training or to their designated first responders prior to this accident (but did so after this accident). They also did not have declination forms (as to the vaccine) on file. Denaka’s Controller Stacey Hepner in emails sent to OSHA during their investigation indicated that their first responders, included Mr. Balka and M.L. and Denaka did not have a written program for bloodborne pathogens, which was further confirmed by Mr. Balka in his testimony. However, Denaka following a 2016 inspection had provided OSHA with a bloodborne pathogens policy containing portions of a National Safety Council workbook as proof of abatement.

Following an investigation by OSHA as to the 2020 accident, multiple citations were issued to Denaka but for the purposes of this article, the citation items pertaining to the Hepatitis B Vaccination and Improper Training are discussed.

Under the relevant OSHA standard, employers are to offer the Hepatitis B vaccine to employees within 10 days of initial assignment, such as after having received required bloodborne pathogen training, and to all employees who have occupational exposure, such as after a workplace incident. Occupational exposure is defined as “reasonably anticipated skin, eye, mucous membrane… with blood or other potentially infectious materials that may result from the performance.”

The Secretary (of Labor) argued that this safety standard applied since Denaka had trained employees as first aid responders, including, M.L., as early as 2017, and that M.L. had responded to and cleaned-up blood following the 2020 accident. Denaka argued that although it had trained some employees in first aid and bloodborne pathogens, it did not have a set of designated first aid responders. However, the court found Denaka’s argument unavailing in light of its work with machines and knives, and given its prior accidents, Denaka could reasonably anticipate that designated first aid responders would respond to an incident and they would have occupational exposure to blood resulting from their first aid and cleanup duties. Designated first aid providers might be exposed to bloodborne pathogens in rendering assistance to an injured co-worker and especially when it is reasonably foreseeable the type of injury that would cause bleeding.

Basically, if it is reasonably anticipated that an employee will come into contact with blood during his or her work duties, this standard applies, and the vaccination must be offered within 10 days following employee training, regardless of an exposure event. Consequently, this citation was properly proven against Denaka.

OSHA also cited Denaka for failing to ensure that each employee with occupational exposure participated in a training program, and for not providing the minimum required elements under the applicable safety standards for employees assigned to conduct cleanup operations after an incident involving blood or other potentially infectious materials. According to OSHA’s safety standards, such training must be provided at no cost to employees during work hours and the employer must ensure employee participation. The training must contain the text of the safety standard, an explanation of the employer’s control plan and where employees can obtain a written copy of same, an explanation of methods to recognize tasks that involve exposure, reporting requirements following an exposure event, vaccine information, and procedures for responding to an exposure incident, including what types of PPE to use and where to find them, etc.

The exposure plan in fact must contain 14 enumerated minimum requirements and training must be offered at least annually. Although Denaka had offered some training, the court found it to be inadequate, and not compliant with the standard, which required an explanation of its exposure control plan and a written control plan that was facility and company specific. Denaka had been previously cited for a violation of the same standard following a 2016 accident, and the court had previously found that the “Mr. Balka knew a bloodborne pathogen policy and training were needed but did not ensure the policy and training were developed and implemented.” Although training was subsequently undertaken, it was still deficient, and this item of the Citation was also proven against the company.

About the author: Costas Cyprus is an associate attorney practicing construction law and commercial litigation with Welby, Brady & Greenblatt, LLP, in White Plains, NY. He can be reached at 914-428-2100 and at [email protected]. The articles in this series do not constitute legal advice and are intended for general guidance only.