Medical facilities enter gray area on safety

Shortages of mandatory personal protective equipment for health care workers persist as the pandemic rages on, leaving organizations caught between supply-chain issues and complying with shifting guidelines from the U.S. Occupational Safety and Health Administration.

OSHA on Oct. 2 released updated guidance allowing field offices to use their “discretion” when issuing citations for violations related to shortages of respirators — specifically N95 masks that filter most airborne particles — or other supplies. However, experts say it is unlikely that OSHA will give employers a pass on  violations.

“A lot of citations have come out against employers related to respiratory protection … and fit testing,” said Cressinda Schlag, of counsel in the Austin, Texas, office of Jackson Lewis P.C. “It’s really still up to the individual area office and also the inspector to decide if enforcement discretion is appropriate. It’s really unclear what the circumstances would be” for the investigator not to cite for respiratory guidance violations.

The guidance is “now reflecting the reality” of the situation, said Kennell Sambour, Los Angeles-based associate at Littler Mendelson P.C. 

“As much as hospitals are trying to comply with mandatory respirator programs and fit testing, the reality is there is a bottleneck in N95s,” he said. “I think this guidance makes clear to investigators that they can look at other contingency plans that hospitals have made with respect to shortages of N95s. But they had better be able to show that they’re making a good faith effort to comply.”

OSHA guidance requires that fit testing be conducted annually on the use of respirator masks. In hospitals, N95 respirators are among the most-used equipment to protect workers from coronavirus, which is airborne and transmitted via droplets, according to medical experts. 

The most common fit-test method uses an instrument to measure a mask’s effectiveness in protecting against airborne pathogens, but because the test punctures the mask, it cannot be reused. And, because respirator sizing is not standardized, a fit test only covers the specific brand, make and model of respirator used by that employee during the test, according to the U.S. Centers for Disease Control and Prevention. 

On Oct. 9, OSHA announced that it issued citations comprising more than $400,000 in penalties to 25 health care and residential care organizations between Sept. 25 and Oct. 1 for COVID-19 violations, including failure to provide respirator fit tests and proper training on the use of respirators. 

Respiratory protection violations are typically classified as “serious” with fines of up to $13,494 per violation. 

Despite the “discretion” guidance issued in early October, an OSHA spokeswoman said in an email last month that the agency’s standards “remain in place and enforceable, and they will continue to be as workers return to their workplaces.”

The agency is urging medical facilities to prioritize “available fit-testing supplies to protect employees who must use respirators for high-risk procedures,” she said. 

Employers need to know which employees have been fit tested on which equipment, including N95s but also N100s, P100s, N99s and R95s, along with the brands and sizes, and know exactly what they have in stock, said Bill Schwacke, Philadelphia-based health practice leader at Origami Risk LLC.

Hospitals need to understand their supply level and what it may look like in the short term and “nine months from now,” he said. “That’s hard to do given the volatility of the situation and how frequently it’s changing.”

Health care organizations in California are facing “a whole other beast” with the California Division of Occupational Safety and Health “actively going after employers for not having respiratory protection both for COVID exposure and also wildfire exposure right now,” Ms. Schlag said. “Cal/OSHA has not released any guidance or enforcement memorandum indicating that they will exercise discretion.”

From Aug. 25 through the end of September, Cal/OSHA issued 28 COVID-19-related citations to employers, including three to medical centers for fit-test violations and two to medical centers for having workers without respiratory protection. 

California employers that cannot fit test because of availability will need to “demonstrate that it was infeasible or impossible” to comply with cited standards, Ms. Schlag said. 

“Cal/OSHA is taking the position that employers need to have the right controls, including the right PPE, and if PPE is not available, there needs to be engineering or administrative control that either eliminates or reduces potential exposure to the hazard. It does put a real challenge on employers.”

“I would not be surprised if we see more citations issued, whether it’s failure to provide adequate fit testing or whether it’s a failure to provide PPE,” Mr. Sambour said. “I don’t expect to see Cal/OSHA letting up on this.”

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Grocery stores struggle to unpack pandemic safety practices amid fines

The U.S. Occupational Safety and Health Administration continues to zero in on retailers, particularly grocery stores, as they grapple with how to protect their workers and avoid fines, experts say. 

“For most of the industry, across the board among grocery retailers and wholesalers, this is an area under attack right now” when it comes to compliance issues, said Brandon Takahashi, Los Angeles-based partner with Fox Rothschild LLP.

In October, the California Department of Industrial Relations fined five Los Angeles-area grocery stores a total of $104,380 for violations including not updating workplace safety plans and training, failing to timely report COVID-19 deaths, and failing to install barriers between workers and customers. Complaints from workers prompted most of the inspections, according to citation data. 

Federal OSHA has also reported a 30% surge in worker whistleblower complaints this year, with more than 3,000 related to the pandemic. 

Eric Conn, Washington-based founding partner of Conn Maciel Carey LLP, said grocery stores, like health care settings, were forced to change business practices immediately in the pandemic as “they are as essential as it gets” and will continue to see new regulations.

“The industry was one of the first to get creative with engineering controls,” such as building protective barriers between clerks and customers before federal regulators required them, he said. Yet, managing safety continues to be a “big challenge,” he added. 

Grocery stores continue to face issues such as personal protective equipment shortages, which have been experienced in other industries including health care, and resistance from customers to comply with mask mandates, Mr. Conn said. 

“The masks … that’s where we are seeing the surge in whistleblower activity,” he said.