In the wake of severe respirator supply shortages, Cal/OSHA issues new guidance for health care facilities



March 31, 2020

OSHA Alert

Author(s): Maritza Martin, Jeffrey M. Tanenbaum, Benjamin J. Kim

On March 28, 2020, Cal/OSHA issued new interim guidance on COVID-19 for health care facilities facing severe respirator supply shortages. This new guidance is a substantial improvement over Cal/OSHA’s former position.

Summary of the terms of the new guidance

The new guidance focuses on the Aerosol Transmissible Diseases (ATD) standard (8 CCR Section 5199), and the issues presented by the severe global shortage of respirators, among other personal protective equipment (PPE).

Of critical importance, Cal/OSHA has reversed its prior position and now authorizes health care facilities to use surgical masks for lower hazard COVID-19 cases when respirator supplies are insufficient for surges, anticipated surges, or when efforts to optimize the efficient use of respirators do not resolve the respirator shortage. Doing so helps health care facilities best protect health care worker safety and health by prioritizing respirators so they are available for use during more hazardous activities. Before the interim guidance was issued, Cal/OSHA was forcing employers to choose between prioritizing scarce respirators or facing willful citations from Cal/OSHA.

The guidance states that employers must ensure employees are protected by NIOSH-certified powered air-purifying respirators (PAPRs) during high hazard tasks and aerosol generating procedures. N95 respirators may be used when PAPRs are unavailable due to a surge.

If an employer is using surgical masks instead of respirators, the employer must certify that:

  • Full compliance with the ATD Standard would exhaust respirator supplies needed to address the surge or anticipated surge, despite reasonable efforts to obtain additional respirators and maximize existing respirator supplies as described below; and
  • The employer complies with all requirements in the Centers for Disease Control and Prevention (CDC) guidelines: Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings.

The interim guidance states that although it may not be possible to provide respirators in accordance with Cal/OSHA standards during severe shortages, all other provisions of the ATD standard remain in full effect.

The interim guidance also provides other strategies and guidance for conserving existing respirator supplies including the following:

  • Using non-disposable respirators instead of filtering facepiece respirators.
  • Using filtering facepiece respirators for extended periods.
  • Developing policies for employees to reuse a filtering facepiece respirator.
  • Using industrial filtering facepiece respirators in health care.
  • Using filtering facepiece respirators after their expiration date.
  • Using facepiece respirators certified to a foreign standard.
  • Allowing employee to wear their own PPE if it complies with Cal/OSHA requirements.

Issues and concerns with the new guidance

Although the new interim guidance is a substantial improvement, it still raises significant legal concerns, contains ambiguity, and presents traps for unwary health care facilities:

  • Although the guidance states that N95 respirators may be used when PAPRs are unavailable due to a surge, it provides no definition for the term “unavailable.”
  • Employers should consult with counsel before drafting the required certification. The certification is not required by the ATD standard or CDC guidance and a poorly drafted certification may subject an employer to willful Cal/OSHA citations, serious and willful workers’ compensation claims, additional civil liability from third-party claims, and even criminal charges should any willful violations lead to death or serious injuries or illnesses.
  • Cal/OSHA has imposed several potentially problematic restrictions on the use of surgical masks. Restriction 3 requires that employers ensure “surgical masks are not used for high hazard (aerosol-generating) procedures or nasopharyngeal and oropharyngeal swabs specimens.” The ATD standard does not define such swab specimens as a high hazard procedure. 8 CCR 5199(b). Further, the CDC guidelines, which hospitals are required to follow by direction of the California Department of Public Health (CDPH), specifically permit surgical masks to be used for such swab samples when a respirator is not available.
  • Restriction 6 states that the CDC guidance is in effect until respirator stockpiles can be restored. We do not know if that is actually correct. Further, this restriction states that employees and their representatives must be told that these changes regarding the use of surgical masks are per CDC guidance. That is actually only partially true and health care providers should consult with counsel about how to accurately provide this information.
  • Guidance regarding Restriction 7 requires complying with the ATD standard once respirator supply chains are restored. On the face of it, this may simply seem obvious. However, it implicitly continues a Cal/OSHA interpretation that the ATD standard does not permit health care facilities to utilize droplet precautions without the new guidance. We believe this interpretation by Cal/OSHA is erroneous based on the ATD standard, so this issue will likely continue to arise once supply chains are restored based on the express language of Appendix A to the ATD standard.
  • Lastly Cal/OSHA suggests that 8 CCR 3380 requires employers to permit employees to wear their own provided PPE. This may well be a good practice in some situations (and may well be appropriate to meet reasonable accommodation obligations). However, it goes beyond what is actually required by 8 CCR 3380 and will trigger a number of other respiratory protection requirements. Employers should discuss this with counsel.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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