American Dental Ass'n v. Martin, AFL-CIO

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore POSNER, COFFEY, and EASTERBROOK; POSNER; COFFEY
Citation984 F.2d 823
Parties, 15 O.S.H. Cas. (BNA) 2097, 1993 O.S.H.D. (CCH) P 29,933 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,, and Service Employees International Union,, Intervening-Respondents.
Decision Date28 January 1993
Docket NumberAFL-CI,AFL-CIO,92-1482,Nos. 91-3865,I

Page 823

984 F.2d 823
61 USLW 2459, 15 O.S.H. Cas. (BNA) 2097,
1993 O.S.H.D. (CCH) P 29,933
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.
Argued June 10, 1992.
Decided Jan. 28, 1993.

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 Revolution:...

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21 practice notes
  • Part III
    • United States
    • Federal Register November 15, 2007
    • November 15, 2007
    ...reduces its output, and in this way shifts a part of the cost to its consumers and a part to its suppliers,'' (ADA v. Secretary of Labor, 984 F.2d 823, 829 (7th Cir. Specifically, if demand is completely inelastic (i.e., price elasticity is 0), then the impact of compliance costs that amoun......
  • Part II
    • United States
    • Federal Register February 28, 2006
    • February 28, 2006
    ...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 accordance with micro-economic theory. In the long run, firms can only remain in business if their p......
  • Separate Parts In This Issue Part III Labor Department, Occupational Safety and Health Administration,
    • United States
    • Federal Register November 15, 2007
    • November 15, 2007
    ...reduces its output, and in this way shifts a part of the cost to its consumers and a part to its suppliers,'' (ADA v. Secretary of Labor, 984 F.2d 823, 829 (7th Cir. Specifically, if demand is completely inelastic (i.e., price elasticity is 0), then the impact of compliance costs that amoun......
  • Mass. Bldg. Trades Council v. United States Dep't of Labor, Occupational Safety & Health Admin. (In re MCP No. 165, Occupational Safety & Health Admin.), 21-7000
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 17, 2021
    ...were brought against the standard, no party challenged OSHA's authority to regulate bloodborne pathogens. See Am. Dental Ass'n v. Martin, 984 F.2d 823, 826 (7th Cir. 1993). Removing any basis for doubt that OSHA is authorized to regulate infectious diseases, Congress expressly included fund......
  • Request a trial to view additional results
15 cases
  • Mass. Bldg. Trades Council v. United States Dep't of Labor, Occupational Safety & Health Admin. (In re MCP No. 165, Occupational Safety & Health Admin.), 21-7000
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 17, 2021
    ...were brought against the standard, no party challenged OSHA's authority to regulate bloodborne pathogens. See Am. Dental Ass'n v. Martin, 984 F.2d 823, 826 (7th Cir. 1993). Removing any basis for doubt that OSHA is authorized to regulate infectious diseases, Congress expressly included fund......
  • U.S. v. Wilson, No. 95-1871
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 21, 1996
    ...of the local criminal law be left to state and local authorities whenever and wherever possible. 12 Cf. American Dental Ass'n v. Martin, 984 F.2d 823, 848 (7th Cir.1993), cert. denied --- U.S. ----, 114 S.Ct. 172, 126 L.Ed.2d 132 (1993) (Coffey, J., concurring in part, dissenting in part) (......
  • Burnham v. Karl and Gelb, P.C., No. 17022
    • United States
    • Appellate Court of Connecticut
    • September 15, 1998
    ...if the allegations set forth in the complaint are true, the conduct is violative of public policy. In American Dental Assn. v. Martin, 984 F.2d 823, 824 (7th Cir.1993), in upholding the regulation Page 818 on bloodborne pathogens, the Seventh Circuit stated: "In 1991 the Occupational Safety......
  • Indep. Turtle Farmers Of La. Inc v. U.S.A, Civil Action No. 1:07-cv-00856.
    • United States
    • U.S. District Court — Western District of Louisiana
    • March 30, 2010
    ...of proof prescribed by the APA. Moreover, the Seventh Circuit's opinion in American Dental Ass'n v. Martin does not alter that conclusion. 984 F.2d 823 (7th Cir.1993). One member of the circuit panel in Martin opined that “the holding of Corrosion Proof Fittings offers guidance as to how al......
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