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PPE Shortage? How to Avoid an OSHA Citation

PPE Shortage? How to Avoid an OSHA Citation
Hendershot Cowart P.C.

Eight months into the COVID-19 crisis, millions of Americans are still adjusting to new routines. For some, this means working remotely from the home. For others, it means taking extra precautions to protect themselves and others from contracting the coronavirus while in the workplace.

A large part of these precautions depends on adequate personal protective equipment (PPE), viewed widely as the most important tool to protect against the spread of COVID-19. This is especially true for essential and high-risk workers, including health care workers on the front lines of the pandemic.

Unfortunately, providers, hospitals, and other employers in the health care space have continued to struggle with a chronic shortage of PPE. While a number of manufacturers have stepped in to meet demand, there are already signs these manufacturers are ramping down production to avoid holding surplus inventory, or to return production lines to their original purpose.

Employers who require PPE to protect their workforce and comply with OSHA standards are at the mercy of the market amid the country’s most significant health crisis in over a century. What can employers do if they cannot get the equipment they need?

To answer these questions, employers should familiarize themselves with OSHA standards, current regulatory enforcement actions, and OSHA’s interim COVID-19 guidance.

Recent OSHA COVID-19 Enforcement Actions

In September, OSHA issued one of its first publicized COVID-19-related fines to a meatpacking plant in South Dakota for failing to protect employees from the coronavirus.

Experts expect an uptick in COVID-19 investigations and citations like this one as OSHA faces criticism for not adequately investigating COVID-19 complaints. Employers should be prepared for greater oversight and possible liability – particularly if they are in the health care, personal care, and residential and group living industries.

A search under the North American Industry Classification System (NAICS sector code 62) – which includes health care, personal care, hospitals, doctors, dentists, and residential living facilities – shows that OSHA issued over 30 COVID-related citations between April 1 and September 28, primarily in response to reports or complaints over worker hospitalizations or deaths. These citations involved a range of violations, including those related to:

  • Respirators
  • Medical evaluations
  • Fit tests
  • Recording and reporting
  • General duty clause for failures to follow guidance, such as social distancing

While employers often informally settle these citations, perhaps for reduced penalties, those citations can cost employers more in the long run by exposing them to willful or repeat citations – especially if they have multiple facilities.

OSHA’s Interim Guidance on PPE Shortages

In response to the PPE shortage, OSHA released Interim Guidance for Businesses and Employers Responding to COVID-19 and Enforcement Guidance for Respiratory Protection in April and May to update employers looking to resume normal or phased business operations, and to advise its own officers on enforcement actions:

OSHA’s interim guidance includes recommendations for employers to:

  • Perform daily health checks
  • Conduct worksite hazard assessments
  • Encourage employees to wear cloth face coverings, if appropriate
  • Implement policies to maintain social distancing
  • Improve ventilation systems

Additionally, OSHA encourages employers to reassess engineering and administrative controls and work practices to identify strategies to decrease their need for N95 respirators in light of shortages, including changes such as:

  • Moving operations outdoors
  • Temporarily suspending certain non-essential operations
  • Using methods to reduce the release of particulates
  • Implementing portable local exhaust systems

The Enforcement Guidance also noted that employers may consider alternative respirators which provide protection equal or greater to that provided by an N95. This may include NIOSH-approved respiratory protection such as:

  • Non-disposable, elastomeric respirators
  • Powered, air-purifying respirators (PAPRs)
  • Other filtering face piece respirators, such as N99, N100, R95, R99, R100, P95, P99, and P100
  • Used N95s or N95s that were NIOSH-approved but have passed the manufacturer’s shelf life

A Proactive Approach to OSHA Compliance

As pressure on OSHA to respond to the pandemic intensifies, good faith efforts to comply with evolving guidance and procure PPE amid persistent shortages may not be enough to protect employers against citations. Employers must take a proactive approach to compliance.

OSHA’s website publishes the latest enforcement memos in its newsroom, as well as OSHA standards and directives that apply to worker exposure to COVID-19. In addition, experienced attorneys like those at Hendershot Cowart P.C. can help health care providers and other employers evaluate their current circumstances and create and implement strategies to monitor regulatory compliance – and proactively prepare for shifting guidelines.

Decades of Experience in Health Care & OSHA Law

Because there is a great deal to address during these difficult times, enlisting the support of experienced attorneys can make all the difference.

At Hendershot Cowart P.C., our legal team has counseled health care providers, hospitals, and businesses across a range of industries in matters involving regulatory compliance and OSHA law. We are available to discuss your needs for proactive compliance plans, citation defense, and other COVID-19-related matters, and how we can serve as your trusted partner in compliance.

Contact us to speak with an attorney.

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