Fighting COVID-19 without OSHA or PPE
In last week, several Louisiana news outlets reported anonymous stories of courageous healthcare workers striving to meet the needs of COVID-19 patients without certain personal protective equipment. The public, despite understanding of the extreme circumstances caused by the pandemic, seems mystified as to the “how” and “why.”
Aside from the highly publicized shortage of nitrile gloves, masks (N95, respirator, dust), shoe covers, and disposable smocks and gowns, there is another potential reason for the alarming stories: PPE was not traditionally required in state and local hospitals. Unlike 28 other states, including California, New Jersey, New York, Illinois, and Washington, Louisiana does not have its own, Occupational Safety and Health Administration (OSHA)-approved, state Safety and Health plan. Rather, Louisiana is under federal OSHA jurisdiction, which covers most private sector workers within the state. However, state and local government workers are not covered by the federal OSHA regulations.
In short, state and local government health care workers are not protected by the federal regulations that are designed to prevent exposures to chemical or biological hazards. While OSHA has not passed regulations specific to the fight against coronavirus, it has regulations intended to prevent the spread of infectious diseases in the workplace.
For example, 20 C.F.R §1910.132(a) requires the following:
Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, … encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.
And, 20 C.F.R §1910.134(a)(2) requires employers to provide respirators to its employees when circumstances necessitate it, which a March 14, 2020 OSHA memorandum expressly included “healthcare personnel providing direct care of these [COVID-19] patients.”
The Louisiana Department Health (LDH), which now has a dedicated web portal for Coronavirus, issues guidance to all licensed health care facilities and professionals within its jurisdiction. LDH does not mandate and enforce employer obligations regarding workplace hazards. However, that does not mean that LDH is idle.
Taking several cues from Washington state (which does have an OSHA-approved state health plan), LDH issued “Crisis Standards of Care Considerations” for its licensees, with current recommended actions and planning tools for the fortnight. On March 21, 2020, LDH issued Notice #2020-COVID19-ALL-007, requiring the postponement of all non-essential medical and surgical procedures for 30 days, to be determine within the physician’s discretion. The purpose of the Notice was to conserve personal protective equipment (PPE), hospital staffing, and bed capacity for the COVID-19 emergency. As for behavior health care providers, LDH issued a March 19, 2020 memorandum urging mental health service providers working with Wraparound and Magellan Healthcare of Louisiana to conduct meetings and visits via telephone or videoconferencing.
Whether the absence of an OSHA-approved state health and safety plan in Louisiana contributed to the lack of PPE in state and local hospitals is unknown. Still, the only way to remedy the issue is to donate any personal supplies of such materials to healthcare professionals or hospitals. You may be surprised to see what is in your garage.