On September 16th OSHA released a statement that they had cited a Massachusetts based dental practice for an inadequate respiratory protection program related to the current coronavirus pandemic and other shortcomings. In total, OSHA cited six serious and one other-than-serious violations for a penalty of $9,500. The dental office has since corrected the violations and paid the fine in full.
Specifically, the COVID related violations were failing to provide a medical evaluation and fit testing for employees required to wear N-95 respirators and the absence of written policy for respiratory protection. The practice was also cited for deficient bloodborne pathogen exposure control and hazard communication policies, bloodborne pathogen training and controls and inadequate eye wash stations.
“OSHA's goal is to ensure abatement of hazards. With this settlement and hazard abatement, the goal has been met,” said OSHA Office Director Anthony Covello. “OSHA will continue to field and respond to complaints and take steps needed to address unsafe workplaces.”
You can read the full OSHA release at the link below.
So what does this mean? Well, like always it seems to center on the employer's intent. Were they trying to provide a safe work place? When you have a multitude of violations it's much easier to chalk it up to cutting corners rather then an oversight.
The policy violations are a no-brainer, you have an obligation to have written policies for OSHA standards relating to hazards found in a healthcare or dental practice. The Bloodborne Pathogen Standard and Hazard Communication Standards have been in place for years and require employers to provide policies, employee training, safety data sheets (SDS) and labeling. Although there isn't a standard specifically for coronavirus, there is the General Duty Clause that requires an employer to provide a safe workplace regardless if there is a standard or not.
Although OSHA can and does perform on-site inspections, most practices are made aware of a compliant when they receive phone or fax investigation. This process allows inspectors to expedite allegations of an unsafe workplace. Employers must respond within 5 days of initial contact and write a response that identifies the problems found and lists the corrective action taken or planned. Most of the time this includes submitting policies, training records, photos and other supporting documents. OSHA generally doesn't conduct an on-site inspection if the response is adequate.
The medical evaluation and fit-testing requirements for employees required to wear an N-95 respirator are a little more convoluted. Prior to coronavirus, very few facilities required the use of a N-95 respirator. Primarily these were used in medical facilities that treat TB patients or used by dental professionals working in a high risk environment like a correctional facility or some assisted living facilities. Respiratory protection requirements also vary greatly from industry to industry. Some respiratory PPE can be very labor intensive and thus, the requirement for a medical evaluation to determine of the person is fit enough to wear it for a prolonger duration. Think full face respirators with cartridges, like those used in a painting booths or other occupations that employees are exposed to chemical vapors.
Fit testing serves an important role in a respiratory protecting program. If you have an ill-fitting mask with gaps, the air is more likely to be pulled through the path of least resistance and not filtered correctly. The problem with fit testing now is simply the lack of supplies on a couple of different fronts. OSHA wants employees wearing NIOSH approved N-95 respirators. That technically rules out any non NIOSH approved N-95 respirators and all KN95 respirators (Chinese version and what we currently wear in the field). If you were lucky enough to source a supply of approved N-95's, the next step would to have the employee try different manufacturers and different sizes to determine the best fitting mask. After selecting a good fit, the actual test could begin. This usually involves a diluted check solution to determine if the employee can taste the bitter or sweet smell, and then the actual test where they don their N-95, the test hood and use the test solution to determine of they can detect the solution with their mask on. And this brings up one of the final issues, the inability to find a vendor with a kit or test solutions in stock. The companies we have tried contacting told us they might resume fit-testing early next year. Test fitting makes sense when you have a variety or masks to try on and the supplies to test them.
So what can we do? I would try to demonstrate a commitment to protecting my employees. If you don't have policies in place. We have a comprehensive COVID policy that's included with our 2020 OSHA Compliance System for Healthcare or Dentistry, but there are other options out there that allows you to list the safeguards you have in place protecting your employees. At the very minimum your employees should be using a combination of a face shield and a mask. If you can, limit aerosol-generating procedures. If you have to perform an aerosol-generating procedure employees should be required to wear an N-95, KN-95 or other well-fitting mask. Even if I didn't have the ability to perform an actual OSHA approved test fitting, I would document some sort of evaluation and process to ensure the best fit possible. We've seen facilities incorporate custom 3D printed mask frames that employees wear over masks to make the fit even more custom. Think outside the box if you have to.
Finally, OSHA had released a statement back in April that explained they understood the shortages businesses would face during the pandemic and have discretion in enforcement during this period of uncertainty.
See the OSHA press release here:
We see most practices implementing most of the same safeguards recommended by the CDC. It's important that your policies reflect any safeguards you've instituted and employee training has been documented. Stress to employees your commitment to providing a safe workplace and to communicate any unsafe conditions or safety concerns to their Safety and Health Officer.