OSHA has issued guidance on personal protective equipment (“PPE”) and respiratory protection use in nursing home and long term care facilities (collectively “LTCFs”) to protect against COVID-19. In its recently issued guidance, OSHA sets forth additional detail about the strategies it believes LTCFs should consider when protecting employees from COVID-19. As a preliminary reminder, although a guidance document issued by OSHA, this guidance document has not undergone the rigorous rulemaking process required for a regulation under the Administrative Procedures Act, and merely serves as guidance for the pertinent industry.
In the latest issued LTCF guidance OSHA follows its usual hazard assessment and hierarchy of control framework provided in the PPE Standard (29 C.F.R. § 1910.134), stating that LTCFs should first conduct a risk assessment to identify which workers are at risk of exposure to any airborne hazards, which includes (per OSHA’s definition) COVID-19, as a result of their job duties. After a thorough risk assessment is completed, the LTCF must determine how to protect employees from the identified hazards pursuant to OSHA’s long-established hierarchy of controls. The LTCF must engage in engineering controls (e.g. ventilation) to reduce the hazard wherever possible. Next, the LTCF must apply administrative controls (i.e. hand hygiene, physical distancing, and cleaning and disinfection protocols). As a third step of hazard prevention, LTCFs should determine appropriate PPE and make sure it is available to each employee who needs it.
OSHA suggests that respiratory protection, such as an N-95 respirator, may be appropriate for any individual who provides patient care while working within six feet of individuals who are a suspected or confirmed positive for COVID-19. This includes while performing tasks such as bathing, dressing, and toileting, in addition to clinical care. However, for each of the examples mentioned, it is unlikely that the employer could be using a form of source control, such as requiring the patient to wear a mask, or be behind a protective barrier. As a result, respirators may not be needed in these situations when other engineering or administrative controls are being used effectively. This is further complimented by the fact that guidance from the Centers for Disease Control and Prevention (“CDC”) requires only surgical masks for direct care of patients with confirmed or suspected COVID-19, unless the care provided involves aerosol generating procedures or surgeries with risk of transmission through infectious material splashes or sprays. Any LTCF engaging in a hazard assessment should document its decision-making, following the best and most up-to-date infectious disease guidelines, industry best practices, and recommendations from the CDC, and guidance from state and local health departments.
Note that whenever an LTCF does conduct a hazard assessment and determines that filtering facepiece respirators (such as N-95s) are necessary PPE, OSHA’s respiratory protection standard (29 C.F.R. § 1910.134, the “RPP”) will apply. OSHA’s RPP regulations require a lengthy written job hazard analysis and task hazard analysis for use of respirators; a lengthy written respirator program with detailed, individualized procedures for each separate location, job, or task (depending on what the hazard analyses require); the selection of a Program Administrator, who has specific duties; medical evaluations; initial-use and then annual fit-testing; lengthy storage, cleaning, and mask-replacement procedures; and other detailed requirements.
OSHA’s guidance further details various “source control” measures, in categories recommended as follows:
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Cloth face coverings – to be worn by patients and visitors but not by healthcare providers if protection against exposure to splashes and sprays, or respiratory protection against airborne hazards is needed. All patients and visitors should be offered a surgical mask, face mask, or cloth face covering by the LTCF if they do not provide their own, and if supplies allow.
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Facemasks – these include KN95 respirators with ear loops instead of head straps, as well as other masks that do not provide fluid resistance.
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FDA-cleared or authorized surgical masks – these masks, authorized for emergency use by the FDA, are regulated by OSHA under the PPE standard (at 29 CFR 1910.132) or the Bloodborne Pathogens standard (29 CFR 1910.1030). OSHA prefers that healthcare providers use these rather than face masks or cloth face coverings, as they provide source control and protection for the wearer against splashes and sprays. As they are loose-fitting and do not provide a seal for the user, these masks are not effective at protecting against potential airborne hazards.
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Respirators (including FDA-cleared or authorized surgical N95 FFRs), which must be subject to fit-testing, medical evaluations, employee training, specific cleaning and storage procedures, and all of the other myriad requirements under OSHA’s RPP standard at 29 C.F.R. § 1910.134. OSHA also refers employers to the CDC guidelines for extending the use of N95s as necessary during the shortages presented by the pandemic, and cautions against accidental purchase of counterfeit N95s. N95 FFRs remain in short supply, as are most alternative respirators, including P100s and N99s, reusable rubber respirators, and powered air purifying respirators (“PAPRs”).
OSHA reminds employers that employees wearing N95s must be sure that any additional required PPE, such as eye or face protection, will fit with the N95 so that all pieces can safely be worn together.
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