984 F.2d 823 (7th Cir. 1993), 91-3865, American Dental Ass'n v. Martin

Docket Nº91-3865, 92-1482.
Citation984 F.2d 823
Party NameAMERICAN DENTAL ASSOCIATION and Home Health Services and Staffing Association, Incorporated, Petitioners, v. Lynn MARTIN, Secretary of Labor, and Occupational Safety and Health Administration, United States Department of Labor, Respondents, and American Federation of State, County and Municipal Employees, AFL-CIO, and Service Employees Internationa
Case DateJanuary 28, 1993
CourtUnited States Courts of Appeals, United States Court of Appeals (7th Circuit)

Page 823

984 F.2d 823 (7th Cir. 1993)

AMERICAN DENTAL ASSOCIATION and Home Health Services and

Staffing Association, Incorporated, Petitioners,

v.

Lynn MARTIN, Secretary of Labor, and Occupational Safety and

Health Administration, United States Department of

Labor, Respondents,

and

American Federation of State, County and Municipal

Employees, AFL-CIO, and Service Employees

International Union, AFL-CIO,

Intervening-Respondents.

Nos. 91-3865, 92-1482.

United States Court of Appeals, Seventh Circuit

January 28, 1993

Argued June 10, 1992.

James C. Pyles, argued, Carmen L. Neuberger, Powers, Pyles & Sutter, Washington, DC, for Home Health Services and Staffing Ass'n, Inc. in No. 92-1482.

Eileen M. McCarthy, Bruce Justh, argued, Dept. of Labor, Appellate Litigation, Donald S. Shire, Sol. Gen., Ann Rosenthal, Dept. of Labor, Office of the Solicitor, Washington, DC, John H. Secaras, Sol. Gen., Dept. of Labor, Chicago, IL, for Lynn Martin in No. 92-1482.

Bruce Justh, Cynthia L. Atwood, Ann Rosenthal, Dept. of Labor, Office of the Solicitor, Ray Darling, Jr., OSHA, Executive Secretary, Washington, DC, for OSHA in No. 92-1482.

W. Scott Railton, argued, Reed, Smith, Shaw & McClay, Donald B. Verrilli, Jr., Bruce J. Ennis, Jr., Jefferson C. Glassie, Jenner & Block, Washington, DC, for American Dental Ass'n in No. 91-3865.

Eileen M. McCarthy, Bruce Justh, argued, Dept. of Labor, Appellate Litigation, Ann Rosenthal, Dept. of Labor, Office of the Solicitor, Washington, DC, John H. Secaras, Sol. Gen., Dept. of Labor, Chicago, IL, for Lynn Martin in No. 91-3865.

Bruce Justh, Ann Rosenthal, Ray Darling, Jr., OSHA, Executive Secretary, Washington, DC, for OSHA in No. 91-3865.

Page 824

Laurence Gold, Washington, DC, Orrin Baird, Carol Golubock, Washington, DC, Marsha S. Berzon, argued, Altshuler, Berzon, Nussbaum, Berzon & Rubin, San Francisco, CA, for Service Employees Intern. Union, AFL-CIO, CLC in No. 91-3865.

Laurence Gold, Mary J. Carlson, Washington, DC, Marsha S. Berzon, Altshuler, Berzon, Nussbaum, Berzon & Rubin, San Francisco, CA, for American Federation of State, County and Municipal Employees, AFL-CIO in No. 91-3865.

Before POSNER, COFFEY, and EASTERBROOK, Circuit Judges.

POSNER, Circuit Judge.

In 1991 the Occupational Safety and Health Administration promulgated a rule on occupational exposure to bloodborne pathogens. 56 Fed.Reg. 64004, 57 Fed.Reg. 29206, 29 C.F.R. § 1910.1030. The rule is designed to protect health care workers from viruses, particularly those causing Hepatitis B and AIDS, that can be transmitted in the blood of patients. Promulgated after a protracted notice-and-comment rulemaking proceeding, the rule and its supporting reasons occupy 178 densely packed pages in the Federal Register. Most employers in the health care industry have accepted the rule, which in essence requires compliance with procedures for health care workers recommended by the Centers for Disease Control (since renamed the Centers for Disease Control and Prevention), the federal agency responsible for the control of contagious diseases. Many of these employers, indeed, had adopted the procedures as soon as the CDC recommended them. Three employer groups, however, challenge the rule--dentists, represented by the American Dental Association, and medical-personnel and home-health employers, both represented by the Home Health Services and Staffing Association. Medical-personnel firms supply health care workers on a temporary basis to hospitals and nursing homes, while home-health firms supply such workers to patients at home.

AIDS is caused by a virus (HIV) that can be transmitted, among other means, by introducing the blood of an infected person into the bloodstream of an uninfected one. If blood of a dental or medical patient who is HIV positive spatters on a health care worker's skin where the skin is cut or abraded, or the worker accidentally sticks himself with a scalpel or hypodermic needle or other medical instrument on which there is fresh blood of an HIV carrier, the worker may become infected--with, so far as anyone knows, invariably fatal results. The AIDS virus is not, however, robust, and is not easily transmitted by the sorts of contact that patients usually have with health care workers. As of 1991, there had been only 24 confirmed cases of U.S. health care workers infected with the AIDS virus by patients since AIDS was first diagnosed in 1981.

Hepatitis B is a far more common disease than AIDS, though less scary, publicized, or stigmatized. The Hepatitis B virus (HBV) produces antibodies that fight the virus but at the same time destroy liver cells in which the virus has lodged. Although most infected persons recover uneventfully, about 1 percent die and about 6 to 10 percent of adult (and a much higher percentage of child) victims of Hepatitis B become carriers. The virus is much more virulent than the AIDS virus, and the introduction of a carrier's blood into another person's bloodstream is a particularly efficient means of transmission. Unlike the AIDS virus, which cannot survive exposure to air, HBV can survive on the surface of a piece of clothing or other material at room temperature for a week and can thus be spread by dirty laundry. Also unlike the AIDS virus, there is a vaccine against HBV, effective in 85 to 97 percent of healthy adults who receive it. Nonetheless, because of the greater virulence of HBV and the fact that many health care workers are not vaccinated, patient-communicated Hepatitis B kills about 200 health workers in the U.S. per year--roughly 100 times the number of such workers infected by patient-communicated HIV.

The precautions against infection of health care workers by the two viruses is similar, except that the vaccine against

Page 825

HBV offers a protection that has no counterpart with regard to HIV, and contaminated laundry poses a danger of spreading HBV that also has no counterpart with regard to HIV. OSHA's rule reflects the public-health philosophy of "universal precautions," which means precautions against the blood of every patient, not just the blood of patients known or believed likely to be carriers of HBV or HIV. The precautions are various. They include engineering controls (such as requirements for the location of sinks), work practice controls (such as standards of care in handling contaminated sharp instruments, such as needles), requirements for personal protective equipment such as gloves, masks, goggles, and gowns, requirements for housekeeping (covering such things as the cleaning of contaminated surfaces and laundry and the disposal of contaminated waste), reporting requirements, and provisions for medical care. The rule requires the employer to offer employees who are at risk of exposure to the blood of patients the Hepatitis B vaccine at the employer's own expense, though it allows the employees to decline to be vaccinated. An employee who is involved in an "exposure incident," such as being stuck with a contaminated needle, must be offered at the employer's expense a confidential blood test for HBV and HIV; that is, only the employee is entitled to the result of the test.

In deciding to impose this extensive array of restrictions on the practice of medicine, nursing, and dentistry, OSHA did not (indeed is not authorized to) compare the benefits with the costs and impose the restrictions on finding that the former exceeded the latter. Instead it asked whether the restrictions would materially reduce a significant workplace risk to human health without imperiling the existence of, or threatening massive dislocation to, the health care industry. For this is the applicable legal standard. Occupational Safety & Health Act, § 6(b)(5), 29 U.S.C. § 655(b)(5); Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 642-45, 655-56, 100 S.Ct. 2844, 2864-65, 2870-71, 65 L.Ed.2d 1010 (1980) (the "benzene" case) (plurality opinion); American Textile Mfrs. Institute, Inc. v. Donovan, 452 U.S. 490, 509-12, 530-36, 101 S.Ct. 2478, 2490-92, 2500-04, 69 L.Ed.2d 185 (1981) (the "cotton dust" case). The agency focused on HBV rather than on HIV because of the minute number of health care workers who have been infected by the latter virus. It estimated that the rule would eliminate between 113 and 129 annual deaths of health care workers from Hepatitis B, and a somewhat higher figure (187 to 197) if deaths of nonworkers infected by health-care workers who (but for the rule) would be carriers are factored in as well. (In making this additional calculation, OSHA expressed an uncharacteristic, but as it seems to us commendable, concern with the indirect effects of its rule. On the other hand it did not consider the reduction in medical care that might result from the rule's effect in making the practice of medicine more costly--more on this shortly.) Most of these deaths would be avoided by the vaccine, but by no means all, because the vaccine is not a hundred percent effective and, more important, because many health care workers refuse to be vaccinated. Hence the other parts of the rule would have a positive effect even on Hepatitis B; and there is no vaccine (or cure) for AIDS.

OSHA's evaluation of the effects of the rule, relying as it does on the undoubted expertise of the Centers for Disease Control, cannot seriously be faulted, at least by judges. Hence we cannot say that the rule, viewed as a whole, flunks the test of material reduction of a significant risk to workplace health. As for the impact on the health care industry, OSHA estimated the total cost of compliance with the rule at $813 million a year, clearly not enough to break the multi-hundred-billion-dollar healthcare industry. The rule's implicit valuation of a life is high--about $4 million--but not so astronomical, certainly by regulatory standards, Cass R. Sunstein, After the Rights...

To continue reading

Request your trial
15 practice notes
  • COVID-19 Vaccination and Testing; Emergency Temporary Standard
    • United States
    • Occupational Safety And Health Administration
    • Invalid date
    ...727 F.2d at 422 (judicial review of these legislative determinations requires deference to the agency); cf. Am. Dental Ass'n v. Martin, 984 F.2d 823, 831 (7th Cir. 1993) (``the duty of a reviewing court of generalist judges is merely to patrol the boundary of reasonableness''). These determ......
  • Hazard Communication
    • United States
    • Federal Register March 26, 2012
    • March 26, 2012
    ...OSHA's decision not to conduct individual significant risk analyses for various affected industries); American Dental Ass'n v. Martin, 984 F.2d 823, 827 (7th Cir. 1993) (OSHA is not required to evaluate risk ``workplace by workplace''); Associated Builders and Contractors, Inc. v. Brock, 86......
  • Occupational Exposure to Respirable Crystalline Silica
    • United States
    • Federal Register September 12, 2013
    • September 12, 2013
    ...the cost to its consumers and a part to its suppliers,'' in the words of the court in American Dental Association v. Secretary of Labor (984 F.2d 823, 829 (7th Cir. The court's summary is in accord with microeconomic theory. In the long run, firms can remain in business only if their profit......
  • Occupational Exposure to Respirable Crystalline Silica
    • United States
    • Federal Register March 25, 2016
    • March 25, 2016
    ...the cost to its consumers and a part to its suppliers,'' in the words of the court in American Dental Association v. Secretary of Labor (984 F.2d 823, 829 (7th Cir. The court's summary is in accord with microeconomic theory. In the long run, firms can remain in business only if their profit......
  • Request a trial to view additional results
6 books & journal articles
  • Regulatory reform: the new Lochnerism?
    • United States
    • Environmental Law Vol. 36 Nbr. 3, June 2006
    • June 22, 2006
    ...health losses sufficient to offset the health gains" from cleaning the air as "unquestionably true"); see also Am. Dental Ass'n v. Martin, 984 F.2d 823, 826 (7th Cir. 1993) (costs of rule for medical establishment will raise costs and reduce demand for medical services, which may kill peopl......
  • Aging and Caring in the Home: Regulating Paid Domesticity in the Twenty-First Century
    • United States
    • Iowa Law Review Nbr. 92-5, July 2007
    • July 1, 2007
    ...at http://www.cbs.state.or.us/external/ osha/pdf/pubs/2261.pdf. [230] 29 C.F.R. ß 1910.1030. [231] Am. Dental Ass'n v. Sec'y of Labor, 984 F.2d 823, 825 (7th Cir. 1993), cert. denied, 510 U.S. 859 (1993). [232] Id. at 824. The other two groups were dentists and medical personnel. [233] Id. ......
  • Drugs' Other Side-Effects
    • United States
    • Iowa Law Review Nbr. 105-1, November 2019
    • November 1, 2019
    ...they faced lead exposure, than if they were allowed to work those jobs), rev’d, 499 U.S. 187 (1991). 174. See Am. Dental Ass’n v. Martin, 984 F.2d 823, 826 (7th Cir. 1993) (arguing that because OSHA failed to take into account the increased costs to consumers from workplace health precautio......
  • Cost-benefit default principles.
    • United States
    • Michigan Law Review Vol. 99 Nbr. 7, June 2001
    • June 1, 2001
    ...Ass'n, 121 S. Ct. 903, 921 (2001) (Breyer, J., concurring in part and concurring in the judgment). (5.) Am. Dental Ass'n v. Martin, 984 F.2d 823, 827 (7th Cir. (6.) See Robert W. Hahn, The Economics of Airline Safety and Security, 20 HARV. J.L. & PUB. POL'Y 791, at 793 (1997). (7.) Gran......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT