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Virus Masks’ Poor Fit Unlikely to Get Fixed in Court for Workers

April 29, 2020, 10:01 AM

Social media photos and videos showing doctors and nurses making their own personal protective equipment to protect themselves from Covid-19 highlight not just critical shortages but a lesser-known problem: Available equipment doesn’t always fit.

Claims of ill-fitting PPE, particularly made by female workers, will become an important issue for workers who become infected with the coronavirus, which causes Covid-19 disease, and can relate their infection to being provided improperly sized gear.

“I think the fit issue has always been there and is becoming apparent because of social media, and the other problem is that fit testing isn’t happening right now,” Abby Ferri, a workplace safety professional at Merjent, an environmental consulting firm that specializes in the oil and gas, biofuel, and transportation sectors, among others.

As a result of so much prefabricated equipment fitting badly, nearly 50% of nurses have made their own PPE to protect themselves on duty, according to a recent American Nurses Association survey of 32,000 nurses.

The most recent data from the Bureau of Labor Statistics show that women make up more than 88.7% of nurse practitioners within the U.S. workforce. And of the 2,537 Covid-19 related complaints the Occupational Safety and Health Administration received through April 25, 1,397 contained at least one PPE-related term, according to a Department of Labor spokesperson.

Manufacturers Responding

Makers of the N95 facepiece respirator, such as 3M Co., are ramping up production of smaller-sized respirators to meet staggering demand from hospitals, but the devices weren’t initially designed with health-care settings in mind.

“I think people are scared and the use of respiratory protection in health care is unusual,” Nicole McCullough, 3M’s occupational health and safety specialist, said. “Six months ago, hospitals weren’t using this type of PPE except for cases of tuberculosis, which is rare. So, if we think about industry and the respirator population that were using them, there weren’t as many women as there are in health care.”

McCullough added that the company’s wide range of N95 respirators come in multiple sizes and were developed and tested by standards established by the National Institute for Occupational Safety and Health.

Some health-care experts say cost-savings is a big reason why manufacturers don’t have a variety of sizes available for workers. Although several sizes of each type of PPE may be produced, a “one-size-fits-all” mentality prevails, says Marissa Fayer, CEO of HERHealthEQ, a nonprofit focused on reducing female mortality in developing nations by providing access to medical device equipment.

“Supply chains are stretched thin, and often run by men, so multiple sizes aren’t thought of when a price break on a larger volume would allow a hospital system to keep costs down,” Fayer said.

Relaxing the Rules

Safety attorneys say OSHA’s recent guidance documents will largely insulate companies from legitimate worker claims of ill-fitting PPE.

In March, OSHA issued a memorandum relaxing mask-fitting rules and providing temporary guidance to company health and safety officers on enforcing the respiratory protection standard. The safety agency also issued guidance stating it may not cite employers for “good faith” efforts to comply with the rules.

The change was made to accommodate shortages of masks and other PPE. Companies like Ford Motor Co. and General Motors Co. have volunteered to make face masks to address the shortage.

OSHA has issued five guidance documents aimed at expanding the availability of respirators for health-care workers.

Matthew Durham, a management lawyer with Stoel Rives LLP in Utah, says companies may have leeway to avoid liability against claims, as OSHA has issued several guidance documents on good faith compliance.

Athough businesses have a duty to address hazards, to the extent they are aware of them, “There may be hesitancy on OSHA to be aggressive about PPE when everyone is struggling to find PPE,” Durham told Bloomberg Law. “The expectation is that this is a temporary situation.”

Durham added “many claims will stop at workers’ compensation, unless an employer was aware of a serious risk and said ‘I don’t care.’”

Tim O’Connell, a labor and employment attorney at Stoel Rives, says he hasn’t heard of worker claims of ill-fitting PPE. Rather, “The system as a whole is experiencing a recognized shortage,” he said.

O’Connell added that it’s unlikely there will be ill-fitting claims in court. “You have to look at hierarchy of controls for exposure to dangerous conditions and OSHA has recognized the shortage, and whether the employer offered a safe workplace given the situation we’re in.”

Lawsuits on more general PPE availability are coming in. On April 20, the New York State Nurses Association sued Montefiore Medical Center and Westchester Medical Center, seeking an order requiring Montefiore and WMC to give the nurses sufficient PPE such as masks and gowns. The suits says at least eight of its members have died from Covid-19 across the state.

An examination of Bloomberg Law’s database of collective bargaining agreements showed 25 contracts signed in the past 12 months include a “personal protective equipment” provision; however, none addresses size and fit.

“It is very unusual for union contracts to get down to the degree of specificity about trying to prescribe what PPE is appropriate—in my experience most employers don’t want to offer an unsafe workplace,” O’Connell said.

For manufacturers and distributors, production is based on consumer buying behavior, and they may not even realize there’s a problem with PPE fit if complaints aren’t reaching them, Ferri said.

“A company wants to get by as cheap as they can or with the lowest friction,” Ferri said. That may mean “buying a bunch of Medium/Larges and hoping for the best.”

Whatever the reason, Fayer predicts the issue will resonate beyond the pandemic.

“I do anticipate the fallout after this crisis is over,” she Fayer said. “To go into a hazardous job and not have the protection of your workplace is one of the most debilitating and unsupported feelings, and I think women nurses and doctors might think twice about their safety in the future.”

To contact the reporters on this story: Fatima Hussein in Washington at fhussein@bloombergenvironment.com; Ayanna Alexander in Washington at aalexander@bloomberglaw.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com, Martha Mueller Neff at mmuellerneff@bloombergindustry.com, Fawn Johnson at fjohnson@bloomberglaw.com

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