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Employers, regulators look for workarounds amid mask shortage


Potential and actual shortages of personal protective equipment for health care workers has led to modified safety guidelines from regulators and put pressure on employers to find alternative solutions to keep staff and patients safe.

The California Department of Industrial Relations this month issued temporary changes to its guidance that health care workers be provided with certified respirators in light of shortages — a move in line with the U.S. Occupational Safety and Health Administration’s strategy to manage a well-documented mask shortage and its own safety rules.

“It’s an extremely challenging time for employers to be able to balance the immediate demands of helping their clients while at the same time making sure their employees are protected consistent with the OSHA rules,” said Andrew Brought, Kansas City, Missouri-based partner with Spencer Fane LLP, whose practice area includes OSHA and health and safety issues.

Nurses nationwide have made public pleas for better access to N95 masks, which are in line with federal guidelines, pre-fitted for individual users and capable of filtering out 95% of particles. The masks are viewed as standard issue for respiratory protection from a virus that medical experts say is airborne and transmitted via droplets.

Numerous regulatory agencies have acknowledged an N95 mask shortage, including Cal/OSHA and OSHA, and have cleared the way for employers to use alternatives, such as similar masks approved in other countries, and allowing reuse of personal protective equipment. 

An OSHA spokeswoman said the federal guidelines say employers can use alternative face masks — such as less-protective surgical masks — yet “employers must still comply with the provisions of any standards that apply to the types of exposure their workers may face.” If no adequate protection is available, OSHA calls for employers to use other protocols to eliminate the risk of exposure, including “engineering” and “administrative” controls.  

“There are multiple ways OSHA anticipates employers will protect their employees from a risk,” Mr. Brought said, adding that OSHA’s guidelines provide for employers to work around a potential mask shortage by limiting exposure. For example, a patient’s medical chart can be placed farther from the patient, or health care facilities can limit the number of professionals accessing a patient. Installing glass between patients and caregivers is another measure, he said.

“If you can’t get a steady supply of PPE you are going to have to rely on engineering or administrative controls,” he said.

Chantell Foley, a Louisville, Kentucky-based associate with Fisher Phillips LLP, said some of the biggest issues with regards to respiratory masks are ensuring the masks fit properly and training workers how to use them — an issue that caused OSHA to issue a citation to Cincinnati-based OHNH EMP LLC, which operates several nursing homes in Ohio.

That citation, announced July 21, described a “serious violation of two respiratory protection standards: failing to develop a comprehensive written respiratory protection program and failing to provide medical evaluations to determine employees' ability to use a respirator in the workplace.” OSHA also said it issued a Hazard Alert Letter regarding the company’s practice of allowing N95 respirator use for up to seven days and not conducting initial fit testing. Officials with OHNH EMP could not be reached for comment.

This “presents a dilemma in that OSHA acknowledged the nursing facility was attempting to comply but then they said they did not have a respiratory program in place,” Mr. Brought said, adding that the move could cause issues for other health care facilities facing shortages.

The lion’s share of OSHA complaints regarding COVID-19 come from the health care sector. According to OSHA data updated daily since April 20, as of Monday 623 complaints have come from “general medical and surgical hospitals” and 357 from “nursing care facilities,” which are among the top settings. Overall, 2,065 complaints have come from the health care sector, the most of any industry, according to OSHA.

Ms. Foley said health care employers will continue to be mired in the issue. “We can’t get a grasp on this disease, so as COVID-19 continues you are going to have your health care employees exposed and there will be an increasing need for these respirators,” she said.

One area where hospitals can improve their response to the shortage is leveraging technology to help with supply management and training, said Bill Schwacke, Philadelphia-based health care practice leader for technology firm Origami Risk LLC.

“The whole pandemic has put a spotlight on managing and distributing resources,” he said. “Half the battle is making sure the appropriate PPE is available, and the other half is understanding what the organization needs to do to track it.”  

“Health care employers need to do the best they can to source N95 respirators, and in situations where that is not possible find alternative respirators that are authorized or evaluate other engineering or administrative controls that protect patients and employees,” Mr. Brought said. “As we are now getting on the second wave, it wouldn’t surprise me” to see more respirator shortages, he added.

More insurance and workers compensation news on the coronavirus crisis here.