WSR 05-19-087

PROPOSED RULES

DEPARTMENT OF

LABOR AND INDUSTRIES

[ Filed September 20, 2005, 9:42 a.m. ]

     Original Notice.

     Preproposal statement of inquiry was filed as WSR 05-16-098.

     Title of Rule and Other Identifying Information: Cholinesterase monitoring, chapter 296-307 WAC, Part J-1.

     Hearing Location(s): Red Lion Hotel Yakima Center, 607 East Yakima Avenue, East Ballroom, Yakima, WA, on October 26, 2005, at 1:30 p.m. and 6:00 p.m.; and at the Department of Labor and Industries Building, 7273 Linderson Way S.W., Auditorium, Tumwater, WA, on October 28, 2005, at 1:30 p.m.

     Date of Intended Adoption: November 22, 2005.

     Submit Written Comments to: Cindy Ireland, Project Manager, Department of Labor and Industries, P.O. Box 44620, Olympia, WA 98507-4620, e-mail mooc235@lni.wa.gov, phone (360) 902-5522, fax (360) 902-5529, by November 4, 2005.

     Assistance for Persons with Disabilities: Contact Kim Johnson by October 14, 2005, at rhok235@lni.wa.gov.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This rule making is being proposed based on recommendations made by members of the Cholinesterase Scientific Committee and the Cholinesterase Advisory Committee. These proposed changes are to modify the written opinion to address all employee blood tests, to clarify some requirements, and to make some minor housekeeping changes.

• WAC 296-307-14805, currently there is a requirement in RCW 49.17.285 which requires employers to provide handling hours to the medical provider/laboratory, we are adding this language to our rule for clarity.
• WAC 296-307-14815, adding a requirement for the employer to obtain a written opinion from the health care provider for all blood testing and to make the opinion available to the employee. This will provide employees with ready access to test results and health care provider recommendations.
• WAC 296-307-14830, clarifying the medical removal protection requirements, which are confusing to some employers.

AMENDED SECTIONS:

WAC 296-307-14805 Maintain handling records for covered pesticides.

• Delete the reference to the table and add the reference to the applicable WAC section.
• There is a current requirement in RCW 49.17.285 which requires employers to provide handling hours to the medical provider/laboratory; we are adding this for clarity.
WAC 296-307-14810 Implement a medical monitoring program.

• Delete the table and the reference to this table in this section.
• Add two notes to this section for clarity.
WAC 296-307-14815 Identify a physician or licensed health care professional.

• Add a requirement for the employer to obtain a written opinion from the health care provider for all blood testing and to make the opinion available to the employee. This will provide employees with ready access to test results and health care provider recommendations.
• Add a note relating to testing being done by the same laboratory whenever possible.
• Add a note relating to obtaining employee's written consent to obtain blood test results.
• Clarified language.
WAC 296-307-14820 Make cholinesterase testing available.

• Delete the reference to the table and add the reference to the applicable WAC section.
• Add a note relating to a "working baseline."
• Move two notes to WAC 296-307-14810 for better organization.
• Add language relating to the employee receiving a copy of the signed declination statement within five business days after receipt from the LHCP.
• Clarified language.
WAC 296-307-14825 Respond to depressed cholinesterase levels.

• Change the table to "Table 1."
• Add language in the table for clarity.
WAC 296-307-14830 Provide medical removal protection benefits.

• Add a clarifying note relating to benefits being paid while on medical removal.

     Statutory Authority for Adoption: RCW 49.17.010, 49.17.040, 49.17.050, 49.17.060.

     Statute Being Implemented: Chapter 49.17 RCW.

     Rule is not necessitated by federal law, federal or state court decision.

     Name of Proponent: Department of Labor and Industries, governmental.

     Name of Agency Personnel Responsible for Drafting: Tracy Spencer, Tumwater, (360) 902-5530; Implementation and Enforcement: Steve Cant, Tumwater, (360) 902-5495.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. A small business economic impact statement (SBEIS) is required if a proposed rule will impose more than a minor cost on business, RCW 19.85.030 (1)(a). An analysis of these rule amendments reveals that these rules will not impose more than minor costs. In addition to not imposing new costs on businesses, these revisions will make labor and industries rules easier for employers and employees to understand and use, and thus save them time, therefore, an SBEIS is not required (see RCW 34.05.310 (4)(d)).

     A cost-benefit analysis is not required under RCW 34.05.328. There are no costs to assess within these rule amendments. Additionally, the amendments will make the rules easier for employers and employees to understand and use, and thus save them time (see RCW 34.05.328 (5)(b)(iv)).

September 20, 2005

Gary Weeks

Director

OTS-8288.4


AMENDATORY SECTION(Amending WSR 03-24-105, filed 12/3/03, effective 2/1/04)

WAC 296-307-14805   Maintain handling records for covered pesticides.  

     You must:

     • Maintain accurate records of all time that each employee spends handling category I or II organophosphate or N-methyl-carbamate pesticides (this includes employees who do not meet the handling hour thresholds in ((Table 1)) WAC 296-307-14810).

     • Provide a completed CHOLINESTERASE MONITORING HANDLING HOURS REPORT (F413-065-000) to the physician or licensed health care professional (LHCP) for each employee receiving a periodic cholinesterase blood test and make sure the report is submitted to the laboratory with each periodic cholinesterase test.

     • Provide the employee with:

     – A copy of the CHOLINESTERASE MONITORING HANDLING HOURS REPORT upon request.

     – Access to the employee's pesticide handling records.

     • Retain pesticide handling records for seven years.

     • Make sure that pesticide-handling records are readily accessible to employees, their designated representatives, and treating health care professionals.

[Statutory Authority: RCW 49.17.010, 49.17.040, 49.17.050, and 49.17.060. 03-24-105, § 296-307-14805, filed 12/3/03, effective 2/1/04.]


AMENDATORY SECTION(Amending WSR 03-24-105, filed 12/3/03, effective 2/1/04)

WAC 296-307-14810   Implement a medical monitoring program.  

     You must:

     • Implement a medical monitoring program for your employees who handle or will be expected to handle category I or II organophosphate or N-methyl-carbamate pesticides ((according to the schedule in Table 1)) for thirty or more hours in any consecutive thirty-day period.

((Table 1
Implementation Schedule

((Provide medical monitoring for each employee who handles organophosphate or N-methyl-carbamate pesticides for: Beginning
Fifty or more hours in any consecutive thirty-day period February 1, 2004
Thirty or more hours in any consecutive thirty-day period February 1, 2005))

Note: ((• The department will adjust the threshold for medical monitoring of employees under this rule on February 1, 2005, if the data collected during 2004 clearly demonstrates that the threshold should be either lower or higher than thirty hours.)) • You do not need to count time spent mixing and loading using closed systems (as defined in WAC 296-307-13045 (4)(d)) in determining the need for periodic testing. Time using closed systems is still counted for purposes of establishing coverage under this rule and determining the need for obtaining baseline cholinesterase levels. Closed cabs are not "closed systems."
• The first thirty consecutive day period begins on the first day of handling organophosphate or N-methyl-carbamate pesticides after obtaining the baseline cholinesterase test.
• There is nothing in this rule that prohibits employers from providing cholinesterase monitoring to employees who handle organophosphate or N-methyl-carbamate pesticides for fewer ((hours)) than ((specified in Table 1)) thirty hours in any consecutive thirty-day period.

[Statutory Authority: RCW 49.17.010, 49.17.040, 49.17.050, and 49.17.060. 03-24-105, § 296-307-14810, filed 12/3/03, effective 2/1/04.]


AMENDATORY SECTION(Amending WSR 03-24-105, filed 12/3/03, effective 2/1/04)

WAC 296-307-14815   Identify a physician or licensed health care professional.  

     You must:

     • Identify a physician or other licensed health care professional (LHCP) who will:

     – Provide baseline and periodic cholinesterase testing through ((the department of health public health laboratory, or beginning in 2006, through)) any laboratory approved by the department of labor and industries.

     – Interpret tests.

     ((– Provide you with written recommendations and opinions that:

     &sqbul; Identify employees with periodic test results requiring a work practice evaluation.

     &sqbul; Identify employees with periodic test results indicating they must be removed from handling and other exposure to organophosphate and N-methyl-carbamate pesticides.))

     • Obtain the LHCP's written opinion for each employee's blood test and evaluation (including baseline tests) and give a copy of this opinion to the employee within five business days after you receive the opinion.

     • Make sure the written opinion is limited to the following information:

     – The employee's cholinesterase status based on the LHCP's evaluation.

     &sqbul; Identify changes in cholinesterase levels requiring a work practice evaluation for the employee.

     &sqbul; Identify changes in cholinesterase levels requiring the employee to be removed from handling and other exposure to organophosphate and N-methyl-carbamate pesticides.

     ((&sqbul; Provide)) – Guidance on medical monitoring.

     ((&sqbul; Include)) – Any other relevant information concerning an employee's workplace exposure to organophosphate and N-methyl-carbamate pesticides.


Note: All testing for an employee should, whenever possible, be conducted through the same laboratory. This will allow for the most accurate comparison between baseline and periodic tests.

     You must:

     • Instruct the physician or other licensed health care professional (LHCP) to NOT reveal in writing or in any other communication with you((,)) any other personally identifiable medical information((, other than laboratory test results, for any employee)).

     • Make sure the physician or LHCP is familiar with the requirements of this rule (for example, by providing a copy of the rule or by confirming that the provider has attended training on the rule).

     • Post the name, address, and telephone number of the medical provider you have identified at the locations where employees usually start their work day.

     • Make sure ((copies of employee test results and)) written recommendations from the physician or LHCP are maintained for seven years.


Note: You may only obtain the employee's actual test results if the employee provides written consent.

[Statutory Authority: RCW 49.17.010, 49.17.040, 49.17.050, and 49.17.060. 03-24-105, § 296-307-14815, filed 12/3/03, effective 2/1/04.]


AMENDATORY SECTION(Amending WSR 03-24-105, filed 12/3/03, effective 2/1/04)

WAC 296-307-14820   Make cholinesterase testing available.  

     You must:

     • Make medical monitoring available to employees who will meet the exposure thresholds in ((Table 1)) WAC 296-307-14810, at no cost and at a reasonable time and place, as follows:

     – Provide annual baseline red blood cell (RBC) and plasma cholinesterase tests that are taken at least thirty days after the employee last handled organophosphate or N-methyl-carbamate pesticides.

     – Provide periodic RBC and plasma cholinesterase testing:

     &sqbul; Within three days after the end of each thirty-day period where the employee meets the handling levels in ((Table 1)) WAC 296-307-14810; however, testing is not required more often than every thirty days;

     OR

     &sqbul; At least every thirty days for those employees who may meet the handling levels in ((Table 1)) WAC 296-307-14810.

     • Arrange to obtain a "working baseline" as soon as possible for employees who initially decline cholinesterase testing and later choose to participate in testing.

     ((– Follow the recommendations of the physician or LHCP regarding continued employee pesticide handling or removal from handling until a thirty-day exposure free baseline can be established.))

Exemption: You do not need to provide baseline or periodic testing for those employees whose work exposure is limited to handling only N-methyl-carbamate pesticides.
Note: ((• You do not need to count time spent mixing and loading using closed systems (as defined in WAC 296-307-13045 (4)(d)) in determining the need for periodic testing. Time using closed systems is still counted for purposes of establishing coverage under this rule and determining the need for obtaining baseline cholinesterase levels.)) • For employees who have had exposure to organophosphate or N-methyl-carbamate pesticides in the thirty days prior to the test obtain a working baseline. For example, a worker who initially declines cholinesterase testing and later chooses to participate in testing would obtain a "working baseline."
• For new employees, the medical provider may accept previous baselines, if they are obtained according to this rule.
((• The first thirty consecutive day period begins on the first day of handling organophosphate or N-methyl-carbamate pesticides after obtaining the baseline cholinesterase test.))

     You must:

     • Obtain a signed declination statement from the physician or LHCP for each employee((s)) who declines cholinesterase testing.

     – Employees may decline cholinesterase testing only after they receive training about cholinesterase inhibiting pesticides and discuss the risks and benefits of participation with the physician or LHCP.

     – An employee may change his or her mind and elect to participate or decline to continue participation in the program at any time.

     • Make sure the employee receives a copy of the signed declination statement within five business days after receipt from the LHCP.

Note: If employers discourage participation in cholinesterase monitoring, or in any way interfere with an employee's decision to continue with this program, this interference may represent unlawful discrimination under RCW 49.17.160, Discrimination against employee filing, instituting proceedings, or testifying prohibited -- Procedure -- Remedy.

[Statutory Authority: RCW 49.17.010, 49.17.040, 49.17.050, and 49.17.060. 03-24-105, § 296-307-14820, filed 12/3/03, effective 2/1/04.]


AMENDATORY SECTION(Amending WSR 03-24-105, filed 12/3/03, effective 2/1/04)

WAC 296-307-14825   Respond to depressed cholinesterase levels.  

     You must:

     • Respond to an employee's depressed cholinesterase levels by:

     – Taking the actions required in Table ((2)) 1;

     AND

     – Following any additional occupational health recommendations from the physician or LHCP.

Table ((2)) 1
Required Responses to an Employee's Depressed Cholinesterase Levels

When: Action to be taken: Methods:
An employee's RBC or plasma cholinesterase levels fall more than twenty percent below the baseline Evaluate the employee's workplace and work practices to identify and correct potential sources of pesticide exposure Review:
• Personal protective equipment (PPE) and its condition
• Employees' PPE usage
• General sanitation and decontamination practices and availability of decontamination facilities required by WAC 296-307-13050
• Pesticide handling practices
• Pesticide label requirements
An employee's RBC cholinesterase level falls thirty percent or more from the baseline Remove the employee from handling and other work exposures to organophosphate and N-methyl-carbamate pesticides such as thinning and harvesting in recently treated areas
• When available, provide the employee with other duties that do not include handling and other work exposures to organophosphate and N-methyl-carbamate pesticides
OR AND • Provide medical monitoring and cholinesterase testing as recommended by the physician or LHCP
• Provide salary and benefits as if employee was continuing pesticide application activities
An employee's plasma cholinesterase level falls forty percent or more from the baseline Evaluate the employee's work practices to identify and correct potential sources of pesticide exposure
A removed employee's cholinesterase levels return to twenty percent or less below baseline The employee may return to handling class I and II organophosphate and N-methyl-carbamate pesticides Continue periodic cholinesterase monitoring

[Statutory Authority: RCW 49.17.010, 49.17.040, 49.17.050, and 49.17.060. 03-24-105, § 296-307-14825, filed 12/3/03, effective 2/1/04.]


AMENDATORY SECTION(Amending WSR 03-24-105, filed 12/3/03, effective 2/1/04)

WAC 296-307-14830   Provide medical removal protection benefits.  

     You must:

     • Provide medical removal protection benefits for a maximum of three months on each occasion:

     – An employee is temporarily removed from work due to depressed cholinesterase levels;

     OR

     – Assigned to other duties due to depressed cholinesterase levels.

     • Provide medical removal protection benefits that include maintenance of the same pay, seniority and other employment rights and benefits of an employee as though the employee had not been removed from normal exposure to organophosphate or N-methyl-carbamate pesticides or otherwise limited.

Note: Determine the employee's pay using the number of pesticide handling hours and pay rate the employee would have received if they had not been removed from handling organophosphate or N-methyl-carbamate pesticides. Some examples:
• A removed worker is assigned to work eight hours a day but the employer's pesticide handlers are working ten hours a day. The removed worker would be paid for ten hours at the handler's pay rate.
• The farmer pays workers two dollars more per hour when they are handling organophosphate or N-methyl-carbamate pesticides. The removed worker will be paid the additional two dollars per hour when the pesticides are being handled on the farm; however, the worker will be paid at their usual pay rate when the pesticides are not being handled on the farm.

[Statutory Authority: RCW 49.17.010, 49.17.040, 49.17.050, and 49.17.060. 03-24-105, § 296-307-14830, filed 12/3/03, effective 2/1/04.]

© Washington State Code Reviser's Office