PPE Requirements Question:

I am a healthcare provider or work in the healthcare setting. Does my employer have to provide Personal Protective Equipment (PPE) while I work with patients with COVID-19?

Answer:

Federal Law and Regulations:

From a federal law standpoint, some OSHA requirements may apply to prevent occupational exposure to COVID-19. Among the most relevant are the following: 

1. (1) OSHA’s Personal Protective Equipment (PPE) standards (in general industry, 29 CFR 1910 Subpart I), which require using gloves, eye and face protection, and respiratory protection.
2. When respirators are necessary to protect workers, employers must implement a comprehensive respiratory protection program in accordance with the Respiratory Protection standard (29 CFR 1910.134).
3. OSHA has issued temporary guidance related to the enforcement of respirator annual fit-testing requirements for healthcare.
4. (2) The General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970, 29 U.S.C. Section 654(a)(1), which requires employers to furnish to each worker “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.” The General Duty Clause likely protects workers against exposure to dangers, such as COVID-19.
5. (3) OSHA’s Bloodborne Pathogens standard (29 CFR 1910.1030) applies to occupational exposure to human blood and other potentially infectious materials that typically do not include respiratory secretions that may transmit COVID-19. However, the provisions of the standard offer a framework that may help control some sources of the virus, including exposures to body fluids (e.g., respiratory secretions) not covered by the standard.
6. (4) OSHA recently released guidelines about what employers can do to keep employees safe from the coronavirus. They do not create new legal requirements for employers, but they do provide a little bit of clarity as to what employees can expect.

COVID-19 Guidance by OSHA:

Based on the OSHA guidance, employers are obligated to provide their workers with PPE needed to keep them safe while performing their jobs. The types of PPE required during a COVID-19 outbreak will be based on the risk of being infected with the coronavirus while working and job tasks that may lead to exposure.

Examples of PPE include: gloves, goggles, face shields, face masks, and respiratory protection, when appropriate. During an outbreak of an infectious disease, such as COVID-19, recommendations for PPE specific to occupations or job tasks may change depending on geographic location, updated risk assessments for workers, and information on PPE effectiveness in preventing the spread of COVID-19. Employers should check the OSHA and CDC websites regularly for updates about recommended PPE. 

All types of PPE must be:

• Selected based upon the hazard to the worker.
• Properly fitted and periodically refitted, as applicable (e.g., respirators). 
• Consistently and properly worn when required. 
• Regularly inspected, maintained, and replaced, as necessary. 
• Properly removed, cleaned, and stored or disposed of, as applicable, to avoid contamination of self, others, or the environment. 

The CDC Guidance:

The CDC has also put out strategies for optimizing the supply of PPE, including eye protection, isolation gowns, facemasks, and N95 respirators. Healthcare facilities are responsible for protecting their healthcare providers from exposure to pathogens, including by providing appropriate PPE. However, major distributors in the United States have reported shortages of PPE, specifically N95 respirators, facemasks, and gowns.  Therefore, the CDC is encouraging healthcare systems to implement strategies to conserve supplies.

The CDC currently recommends that if you are working with patients with confirmed or possible COVID-19 infection, the patient should wear a facemask when being evaluated medically.

Additionally, healthcare personnel should adhere to Standard, Contact, and Airborne Precautions, including the use of eye protection (e.g. goggles or a face shield) when caring for patients with the coronavirus infection. The precautions include the use of PPE, including NIOSH-approved N95 respirators, gowns, gloves, face shields, eye protection, etc.

Despite the potential shortages, employers should be doing whatever they can to protect their employees from harm during this pandemic.

The ADA and the Coronavirus:

Additionally, if you are at high risk for contracting COVID, such as you have a documented disability such as multiple sclerosis, and you are being forced to work with patients that potentially have or are exhibiting symptoms of the virus, it may be a good idea to ask for PPE or an alternative work assignment as an accommodation for your documented disability. 

For example, if you are a nurse practitioner, and you are required to work with patients that have contracted COVID-19, but you have asthma, which apparently puts you a higher risk for contracting the virus, you should consider asking for an accommodation for your disability in writing, to have an assignment with patients that are not putting you at risk, or require that you be given PPE to protect you from contracting the virus. 

At the very least, the employer will have to engage in an interactive process to determine if they can accommodate your disability. 

The Practical Application:

If you feel that you are at high risk for contracting COVID-19 and your employer is not taking steps to protect you from being infected with the deadly virus, such as instituting polices or giving you PPE, you should ensure that you request proper PPE in writing, as the employer has a duty to make sure that you are working in a safe workplace. Contact an employment lawyer immediately if you feel that you are being asked to do something at work that you feel is unsafe. 

Conclusion:

If you or someone you know is a healthcare provider that is concerned that they are not safe in the workplace, such as what was discussed above, contact a lawyer that can help you to formalize a plan to make your work environment safe, as it is your substantive right to be free from danger in the workplace.

Colin McHugh is an experienced plaintiff-side employment attorney and has represented individuals in Washington state, federal, and administrative courts in matters including but not limited to safety complaints, discrimination, whistleblower claims, and more. Mr. McHugh has represented a wide range of healthcare professionals and is familiar with their diverse legal issues.

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