What Healthcare Workers Need to Know About Their Right to PPE in the Workplace
Given the rapid and intense escalation of the COVID-19 pandemic, employers and employees are faced with new problems, risks, and hazards in the workplace. Far too many of our devoted healthcare providers are dealing with the frightening consequences of the widespread shortages of personal protective equipment (“PPE”). Individual health workers may be particularly impacted by the current crisis and it can be challenging in this chaotic climate to identify and understand the legal protections that may apply to your situation.
Jeselskis Brinkerhoff and Joseph, LLC has prepared the following summary overview of Occupational Safety and Health Administration (“OSHA”) standards and employer requirements that may be relevant to you, as front line healthcare workers, including what steps you can take if you feel you need to report a health or safety concern in the workplace, or if you have been retaliated against for raising health or safety concerns to your employer.
Unfortunately, there are currently no OSHA standards specific to COVID-19. However, some of the existing OSHA requirements are applicable in the current situations that you, as healthcare workers, may be facing in your workplaces, including:
1. As you know, PPE is equipment worn to minimize employees’ exposure to hazards that cause workplace injuries or illnesses. These injuries or illnesses may result from contact with, among other things, physical or workplace hazards. OSHA’s current PPE standards (29 C.F.R. § 1910 Subpart I), require the use of gloves, eye and face protection, and respiratory protection. Specifically, “Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.” See 29 C.F.R. § 1910 Subpart I.
2. If respirators are required to protect employees, the employers must adhere to the Respiratory Protection Standard (29 C.F.R. § 1910.134) and must implement a comprehensive respiratory protection program when employees must wear respirators to protect against workplace hazards.
To comply with OSHA’s Respirator Protection Program, employers must:
Identify and evaluate hazards;
Develop a written program;
Properly select respirators;
Evaluate respirator use;
Correct respirator use problems;
Conduct medical evaluations and fit testing;
Provide maintenance, storage, and cleaning of respirators;
Provide training; and
Provide access to records and documents related to the employers Respirator Protection Program.
There are two main respiratory hazards that require respirators in the healthcare settling: airborne infectious agents and gaseous chemical exposures. Airborne infectious agents include any airborne transferable diseases, like COVID-19.
Surgical masks are not the same as respirators for purposes of the Respirator Protection Program. Respirators are personal protective equipment designed to reduce exposure to airborne contaminants such as COVID-19.
3. In response to COVID-19, OSHA has issued temporary guidance related to the enforcement of respirator annual fit-testing requirements for healthcare (https://www.osha.gov/memos/2020-03-14/temporary-enforcement-guidance-healthcare-respiratory-protection-annual-fit).
This guidance was released by OSHA on March 14, 2020 relaxing the annual fit-testing requirements to conserve the limited supply of N95 facepieces. However, healthcare employers remain obligated to meet established requirements such as ensuring workers use appropriate NIOSH-certified respirators and performing initial fit- testing.
The full OSHA guidance is available at the following link: https://www.osha.gov/memos/2020-03-14/temporary-enforcement-guidance-healthcare-respiratory-protection-annual-fit.
4. The General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act of 1970 (“OSH”), 29 U.S.C. § 654(a)(1), requires employers to furnish each worker with “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
OSHA Complaints and Investigations
Under federal law, you are entitled to a safe workplace and your employer is required to provide you with a workplace free of known health and safety hazards.
Through OSHA, you can file health and safety complaints if you are concerned that your working conditions are either unsafe or unhealthful. Doing so will trigger an investigation into your working conditions.
You also have the right to the following:
The right to be trained in a language that you can understand;
Work on or with machines and equipment that is safe;
Be provided with safety gear, such as gloves and masks;
Request an OSHA inspection;
To speak to the OSHA investigator assigned to your complaint;
Report an injury or illness;
Have copies of your medical records;
See copies of the workplace injury and illness log;
Review the records of the work-related injuries and illnesses; and
Obtain copies of test results done to find hazards in the workplace.
You have the right to speak up and report concerns to your employer regarding health or safety without fear of retaliation. You can also file a whistleblower complaint (as explained in greater detail below) if your employer fired, demoted, transferred, or otherwise retaliated against you for exercising your rights to a safe workplace under the law.
Complaint Procedures and Requirements
Safety and Health Hazards Complaints:
1. You can complete the online form found at the following link: https://www.osha.gov/pls/osha7/eComplaintForm.html; or
2. You can complete the complaint form or letter and then faxing, mailing or emailing it to your local OSHA office. If you are drafting your own letter, please include information regarding the type of business, a description of the hazard, the location of the hazard, whether you have brought the condition to the attention of your employer or a government agency, if you are a current employee, former employee, member of the federal safety and health committee, a representative of employees, or some other related party. You can find the contact information for your local OSHA office here: https://www.osha.gov/contactus/bystate. Please make sure that you include your name, the establishment name (i.e. your employer), your mailing address, the employer’s address, your email address, and your telephone or fax number.
1. Complete the online form found at the following link: https://www.osha.gov/whistleblower/WBComplaint.html; or
2. Fax, Mail, or Email: print a copy of your completed online whistleblower complaint form or draft a letter describing your complaint and the events surrounding your complaint and send it to your local OSHA office which can be found here: https://www.osha.gov/contactus/bystate. Please make sure that you include your name, mailing address, email address, and telephone or fax number so that the OSHA office can contact you directly for follow up.
Whistleblower Complaints must be filed within thirty (30) days of the alleged retaliation.
Important Reminders and Other Information
Safety and Health Hazards Complaints cannot be anonymous; however, you can indicate to OSHA whether you are comfortable with your name being revealed to your employer. If you are not comfortable with your name being revealed to your employer, you will still need to include your personal contact information with your complaint so that the OSHA staff can communicate with you regarding your complaint.
We understand that these processes can be difficult to navigate and medical providers’ time is precious – however, it is important that our healthcare workers understand and utilize the laws enacted to protect them and the communities they serve. While Safety and Health Hazards and/or Whistleblower Complaints can be completed on your own, Jeselskis Brinkerhoff and Joseph, LLC or any other trusted legal provider can assist to guide you through the process to ensure that your interests are being protected and unsafe working conditions are properly documented and addressed.
Because the situation is quickly evolving, it is likely further guidance will be provided, state and federal laws will change, and workers’ rights will continue to be impacted. We hope this information will help some of our valued healthcare providers understand and utilize the legal protections that state and federal law may provide.
Please contact us if you have any questions or concerns.
OSHA has responded to the COVID-19 outbreak with a new webpage dedicated to, among other things, hazard recognition, medical information, standards, control and prevention, and workers’ rights. The webpage is available here: https://www.osha.gov/SLTC/covid-19/.
You can call your local OSHA office at https://www.osha.gov/contactus/bystate or 800-321-6742 with questions about the complaint process or a specific complaint.
There are also twenty-eight OSHA-approved State Plans, operating state-wide occupational safety and health programs. The list of states that have been approved and links to their respective Safety and Health Standards and Regulations can be found at https://www.osha.gov/stateplans/statestandards.