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Coronavirus: Untangling Employee Safety Regulations and Guidance Webinar

March 18, 2020

Welcome

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Continuing Education

Continuing education will be offered for this program for health care executives and nursing.

Full attendance and completion of the online evaluation and attestation of attendance are required to receive CEs for this webinar. CEs are complimentary and available for the registrant only.

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Program Overview

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Gail Blanchard-SaigerVice President & Counsel, Labor & EmploymentCalifornia Hospital Association

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CHA Coronavirus Response

• We have a team working around the clock to advocate at the federal and state levels, to coordinate with local health officers, and to communicate with all of you so you have the latest information.

• We are posting the latest guidance on our Coronavirus Watch website: https://www.calhospital.org/education-event/coronavirus-watch

• We also are sending this information out via email. If you would like to be added, please email your signature block to Christina Devi at cdevi@calhospital.org and request to be added to our Coronavirus Watch distribution.

• Coming soon - HR page in Coronavirus Watch, with FAQs and template policies

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Faculty

Jeffrey M. TanenbaumSenior CounselNixon Peabody

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Kiyomi BurchillVice President, Policy

California Hospital Association

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COVID-19 OSHLegal Update forHospitals

Untangling Employee Safety Regulations and Guidance

• Updates

• Some brief reminders

• What OSH laws, regulations and guidance govern CA hospitals?

• When they conflict, which take legal priority?

• The interplay between these laws, regulations and guidance

• What legal/compliance changes may be next?

• Hot button issues under the ATD standard

• FAQs

• Answering your questions!

Agenda

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March 11, 2020 – WHO declares COVID-19 Pandemic.A “pandemic” is simply “the worldwide spread of a new disease.”Why did it take this long for WHO to say so?Being labeled a “pandemic” does not necessarily change any legal requirements for employers –but it can.It can change how governments respond.It can change how patients react.It can change how staff responds.

Update: COVID-19 is Now Officially A Pandemic

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• COVID-19 response obligations are rapidly evolving. It is critical that you regularly monitor (daily for now) reputable sources for changes in legal requirements (federal, state and local) and applicable agency guidance.

• Legal issues are complex and interdisciplinary (consult counsel).• Think immediate response and long term –what you do now may set

a precedent for what you do in later outbreaks.

Preliminary Reminders!

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Under ordinary circumstances, Cal/OSHA governs with some DPH input. For COVID-19, the hierarchy of legal control is different:• Emergency Declarations, Directives and Orders from the State and Federal

Government

• CDPH

• Local DPH acting in coordination with CDPH

• Cal/OSHA, especially but not limited to:• The ATD standard 8 CCR 5199

• Respiratory protection and other PPE standards 8 CCR 3380

• The IIPP standard 8 CCR 3203

What Laws, Regs, Guidance Govern COVID-19 OSH Obligations for Hospitals in CA?

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In the context of those laws and regulations, carefully consider guidance from the following:• WHO• CDC• HHS• Homeland Security• DPH

• CDPH

• Local DPH

• Other states

Reminder: guidance is not the same as a law or regulation!

What Laws etc. Govern? cont’d

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Governor Newson declared a State of Emergency on March 4, 2020. In particular, Section 1 of the declaration orders all agencies, including DOSH to engage in activities consistent with CDPH, OES and EMSA:

The Governor’s Emergency Declarations

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On March 15th 2020 Governor Newsom issued Executive Order N-27-20It orders DOSH and CDPH to focus on the most vulnerable individuals and the most serious health and safety issues at licensed facilities.It orders enforcement to focus on the most serious H&SviolationsIt orders the state to allow asymptomatic health care workers to continue to work subject to precautions****What will happen next under this Order?

The Governor’s Emergency Declarations

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• CDC has issued a 14-day quarantine directive for people who have traveled to high risk countries (Level 3 Travel Health Notice).

• President Trump declared a national emergency, allowing the Secretary of Health and Human Services to waive or modify rules governing hospitals and health care providers as well as others relevant to Medicare and Medicaid programs.

Applicable Federal Orders

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COVID-19 is an ATD governed by the ATD standard 8 CCR 5199.

Reminder! It applies not just to hospitals, but to other health care facilities, and certain other services and operations, including:• Hospitals, skilled nursing facilities, clinics, medical offices, outpatient medical facilities, home health care,

long-term health care facilities, hospices, medical outreach services, medical transport and emergency medical services

• Certain laboratories, public health services and police services that are reasonably anticipated to expose employees to an aerosol transmissible disease.

• Correctional facilities, homeless shelters, and drug treatment programs

• Any other locations when Cal/OSHA informs employers in writing that they must comply with the ATDStandard

Reminder: ATD Standard compliance remains critically important

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Assuming you perform “covered work” or are you a covered establishment:Are you a “referring employer,” with somewhat more limited obligations? ORAre you obligated to comply with the full scope of requirements under the standard?

Reminder! Make Your Initial Determination of Your Obligations under 5199

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Referring Employer: Any employer that operates a facility, service, or operation in which there is occupational exposure and which refers airID cases and suspect cases to other facilities. Critically, referring facilities, services, and operations do not provide diagnosis, treatment, transport, housing, isolation, or management to persons requiring AII.Practical Tip: A general acute case hospital can’t be a referring employer.Practical Tip: Public health operations that provide only non-medical transport for referred cases are referring employers, if they meet the criteria above.

FAQ: What is a “Referring Employer”?

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8 CCR 5199(d) Requires A Detailed Written Aerosol Transmissible Diseases Exposure Control Plan8 CCR 5199(e) Requires Detailed Engineering and Work Practice Controls and PPE Obligations8 CCR 5199(f) Contains Special Rules For Laboratories8 CCR 5199(g) Contains Detailed Rules For Respiratory Protection8 CCR 5199(h) Contains Detailed Requirements for Medical Services and Precautionary Removal8 CCR 5199(i) Describes Training Obligations8 CCR 5199(j) Recordkeeping Requirements

Tip: Essential elements of the ATDstandard for avoiding citations

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Work Practice Controls – 8 CCR § 5199(e)(1)BEmployers must implement source control procedures Must also provide information about these source control procedures to individuals entering the facility, being transported by employees, or otherwise in close contact with employeesProblems: Does “close contact” just mean in the workplace?

• How do you provide this information to non-employees?

• Is the requirement to provide information to non-employees even within Cal/OSHA’s jurisdiction?

ATD Standard Hot Button Topics

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Respiratory protection is broadly required but is actually limited to tasks described in 5199(g)(4):

• (A) Enters an AII room or area in use for AII;

• (B) Is present during the performance of procedures or services for an AirID case or suspected case;

• (C) Repairs, replaces, or maintains air systems or equipment that may contain or generate aerosolized pathogens;

• (D) Is working in an area occupied by an AirID case or suspected case, during decontamination procedures after the person has left the area and as required by subsection (e)(5)(D)9;

• (E) Is working in a residence where an AirID case or suspected case is known to be present;

• (F) Is present during the performance of aerosol generating procedures on cadavers that are suspected of, or confirmed as, being infected with aerosol transmissible pathogens;

• (G) Is performing a task for which the Biosafety Plan or Exposure Control Plan requires the use of respirators; or

• (H) Transports an AirID case or suspected case within the facility or in an enclosed vehicle (e.g., van, car, ambulance or helicopter) when the patient is not masked.

ATD Standard Hot Button Topic: Respiratory Protection 8 CCR 5199(g)

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Where respirators are required the employer shall provide a respirator that is at least as effective as an N95 respirator unless one of the more specific requirements applies or the employer’s evaluation of respiratory hazards determines that a more protective respirator is necessary.

Effective September 21, 2010, the employer shall provide a powered air purifying respirator (PAPR) with a high efficiency particulate air (HEPA) filter or a respirator providing equivalent or greater

Respiratory Requirements (cont’d)

protection to employees who perform high hazard procedures on airID cases or suspect cases and to employees who perform high hazard procedures on cadavers potentially infected with ATPs.Practical Tips:— Cal/OSHA has recognized that due to

respirator shortages, some relief from this requirement may be necessary from time to time. See the Cal/OSHA Interim Guidance on Coronavirus and Health Care Facilities (www.dir.ca.gov)

— However no relief has yet been provided from the N95 or more requirement

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Employers must provide medical evaluation to determine employee ability to use a respirator before fit testing or required use. 8 CCR § 5199(g)(5)Fit testing. 8 CCR § 5199(g)(6)* A few exceptions exist---Cal/OSHA’s Interim Enforcement Guidance regarding relief efforts for fit testing and respiratory supply issues. https://www.dir.ca.gov/dosh/Use-of-Respirator-Supplies.html

Respirator Requirements (cont’d)

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• Are there compliant alternatives?• Interim Guidance from Cal/OSHA for protecting health care

workers from exposure: masks still can’t be used instead of an approved respirator such as an N95 mask when respiratory protection required.

• On March 11, 2020, President issued a memorandum vesting Dept. of HHS with authority to “take all appropriate and necessary steps with respect to general use respirators to facilitate their emergency use by healthcare personnel in healthcare facilities and elsewhere…”

Potential Compliant Alternatives To N95s

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- Use engineering controls to limit the no. of employees who would need to use respirators

- Use administrative controls to do the same- Use other respirators- Extend use of N95s, with rules- Reuse of N95s, with rules- Use of expired N95s, with rules

So what is DOSH recommending re N95 shortage?

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• Analysis of potential health hazards.• Respirator must be properly cleaned, stored and maintained.• Manufacturer instructions must be provided.• Appendix D/Appendix G• Limitations• Reasonable accommodation• Labor Relations issues

FAQ: What About Voluntary Use of N95s?

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- DOSH says no. And if you do, you will risk citations- But is DOSH right?- 8 CCR 5199 Appendix A mandates the use of droplet

precautions when recommended by “public health guidelines”

- WHO, CDC, and virtually every state DPH except CDPH(so far) is recommending various forms of droplet precautions

- Discuss with your OSH legal counsel!

FAQ: Can We Implement Droplet Precautions?

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-5199(h) contains onerous precautionary removal requirements, raising concerns about staff availability-However, there are at least some limitations on the ATDprecautionary removal requirements-The impact of the Governor’s Order- Stay tuned: HHS action

Hot Button ATD Standard Topic: Precautionary Removal/Work Restrictions

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• Provide regular clear and helpful, factual, guidance ( and include info re protecting families)

• Eliminate non-essential business travel• Minimize in-person meetings and gatherings• Adopt a stay home policy for those who are sick (with any

communicable illness)• Encourage self-quarantines (when appropriate) • Increase disinfecting efforts for common work areas• Provide sanitizers/disinfectants for personal work areas (if possible)

(at no cost or through reimbursement)

FAQ: How do I manage COVID-19 fear and panic among employees and others

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-Establish clear descriptions of who is providing essential service-Healthcare workers-OthersStay alert to changes in such orders/guidance!

FAQ: How do we manage local stay home orders/guidance?

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• Cal/OSHA requires employers to pay for all PPE. • What about PPE voluntarily worn? • What about expense reimbursement for employees working

from home? CA’s Cochran v. Schwan’s case (228 Cal. App.4th

1137 (2014)

FAQ: COVID-19 Employee Expense Reimbursement

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Pre-screening employees/visitors raises issues:

• Fever only one symptom

• May not be effective because fever may develop several days after someone is already carrying the virus

• CDC/ DPH guidance

• Be aware of privacy and discrimination laws

• The EEOC has stated that such screenings would be a medical exam under the Americans with Disabilities Act - 2009 EEOC guidance-Pandemic Preparedness In The Workplace And The Americans With Disabilities Act

FAQ: What About Temperature Screenings?

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• NEW! CDC guidance released for Santa Clara County (California), New Rochelle, NY (Westchester County), and Seattle-King, Pierce, and Snohomish Countries (Washington)

• Recommending “regular health checks on arrival each day (e.g., temperature and respiratory symptom screening) of staff and visitors entering buildings”

Temperature Screenings (con’t)

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• Most employers are limiting non-essential domestic and international travel.

• Check CDC and state department travel advisories• Employers should generally not prevent employees from

traveling to affected areas for personal reasons.• Employers can request that employees let them know if they

have been to high-risk areas and can ask them to stay away and self-quarantine as a result of such travel.

FAQ : Should We Implement Travel Restrictions?

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Are we required to pay employee when we require employees to stay at home?• Employers can generally require employees to use their

vacation time/PTO for such absences (subject to the provisions of an employers’ current vacation time and PTO policies and other applicable state laws which restrict this ability)

• Employers can opt to pay employees, but should make sure the policy is consistently applied

• Impact of CBAs • Stay tuned -law may be changing

FAQ: Wage and Hour Issues

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-No-As a general rule, there are no emergency exceptions from any labor/employment law-But relief can be granted by emergency declaration/order

FAQ: Is Cal/OSHA required to provide relief from the ATDstandard during a public health emergency?

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So far, very little.See Cal/OSHA’s Interim Guidance for Protecting Health Care Workers from Exposure to Coronavirus Disease (COVID-19) https://www.dir.ca.gov/dosh/Coronavirus-info.html

and Cal/OSHA’s Interim Guidance on Coronavirus for Health Care Facilities: Efficient Use of Respirator Supplieshttps://www.dir.ca.gov/dosh/Use-of-Respirator-Supplies.html

FAQ: Will DOSH provide relief from the ATDstandard during this public health emergency?

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Jeff Tanenbaumjtanenbaum@nixonpeabody.com415-984-8450Rachel L. Connrconn@nixonpeabody.com415-984-8216Maritza Martinmmartin@nixonpeabody.com415-984-8350

Contact Information

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CHA Staff Contact Information

Gail Blanchard-Saiger Kiyomi Burchill(916) 552-7620 (916) 552-7575 gblanchard@calhospital.org kburchill@calhospital.org

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Questions

Online questions:Type your question in the Q & A box, press enter

Phone questions:To ask a question, press *1

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On-Demand Learning

Recording of last weeks’ webinar “Novel Coronavirus: Lessons from the Front Lines can be accessed by visiting www.calhospital.org/demand-learning

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Thank You and Evaluation

Thank you for participating in today’s webinar. An online evaluation will be sent to you shortly.

For education questions, contact: Robyn Thomason at (916) 552-7514 or rthomason@calhospital.org

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