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California Issues Respirator Substitute Guide in Virus Shortage

March 31, 2020, 5:57 PM

California health-care providers now have guidance from the state’s worker safety agency on how to comply with state mandates to protect employees from the novel coronavirus while dealing with N95 respirator shortages.

The new guidance acknowledges employers may have to give workers fewer protective surgical masks when there aren’t enough respirators. “Surgical masks can only be used for lower hazard tasks involving patient contact,” California Division of Occupational Safety and Health said.

Cal/OSHA released the guidance Monday. The state’s worker safety program is unique because unlike federal OSHA and other states, a Cal/OSHA standard requires health-care providers to have procedures for protecting workers from airborne diseases.

When an employer issues surgical masks instead of N95 respirators, the employer must certify that full compliance with the state’s aerosol transmissible diseases standard would exhaust respirator supplies needed to address surges and that “reasonable efforts” were made to obtain additional respirators and maximize existing respirator supplies.

Don’t Forget Training

Employers also are obligated to train employees on additional precautions to use when respirators aren’t available and under what circumstances surgical masks aren’t an appropriate substitute.

For high-hazard medical procedures where breathable contagions are likely to be created, the guidance said N95 respirators may be used if the preferred powered air-purifying respirators (PAPR) aren’t available.

The state also said employers should allow workers to wear their own personal protection equipment if the employer can’t provide the gear, the employee’s equipment meets Cal/OSHA requirements, and is “well maintained.”

Punishing a worker for bringing PPE to work could subject the employer to claims of retaliation and investigations by the state labor department, Cal/OSHA warned.

California in 2009 established the aerosol transmissible diseases standard for health-care work sites to control the spread of diseases passed on by air, such as through coughing and sneezing.

During the Obama administration, federal OSHA considered a similar rule, but progress was slow and in 2017 the Trump administration downgraded the proposal to OSHA’s long-term project list (RIN:1218-AC46).

Since concerns about the coronavirus were raised in January, Democratic lawmakers have pushed for OSHA to issue an emergency version of the rule, but the agency has declined.

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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