OSHA Violations During the COVID-19 Pandemic

By Olivia Wann, JD

Since the start of the coronavirus pandemic through November 19th, the Occupational Safety and Health Administration (OSHA) proposed penalties in the amount of $3,301,932.00.(1) This public document included three dental practices. Many of the citations related to failure to implement a written respiratory protection program, provide a medical evaluation, respirator fit test, and training.

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One of the dental office’s citations included six serious violations and one other-than-serious violation, with proposed penalties of $9,500.(2) COVID-19 brought numerous challenges to dentistry including new federal guidance for dental settings that focused on respiratory protection. According to HR experts, employers can anticipate increased enforcement in year 2021 under the new administration and potentially receive emergency temporary standards to combat COVID-19.

To keep up with the rise of complaints, the hiring of additional inspectors is also anticipated. Since early spring, practices have endured a great deal of stress. Never before have we experienced office closures due to a pandemic, furloughs and layoffs of team members, and then dealing with shortages of personal protective equipment on reopening our practices. Yet despite all these obstacles and situations beyond our control, we are yet obliged to maintain a
safe working environment free from recognized hazards.

The dental practice who incurred OSHA citations was specifically not in compliance to a rather unfamiliar area of compliance for dental offices: The Respiratory Protection Standard, 29 CFR 1910.134. According to OSHA, this office failed to provide medical evaluations and fit testing for employees required to wear N-95 respirators as protection against coronavirus. There was no written program related to respiratory protection in place. OSHA published guidance, COVID-19- Control and Prevention / Dentistry Workers and Employers in May 2020. According to OSHA, employers should assess hazards to which employees may be exposed. Evaluate the risk of exposure and select and implement and ensure that employees use the controls to prevent exposure. (3)

Document your hazard assessment. For example, if you added an engineering control such as HEPA filtration, external suction, plastic barriers or administrative controls such as monitoring employees and patients’ temperatures, document it. OSHA will view this information during a
site visit.

OSHA indicated in its guidance that if you are working on a well patient and you are performing a procedure that does not generate aerosols, appropriate personal protective equipment (PPE) includes work clothing, such as scrubs, lab coat, and/or smock, or a gown, gloves, eye protection (e.g., goggles, face shield), and face mask (e.g., surgical mask).

For procedures that generate aerosols on well patients, OSHA recommends gloves, gown, eye protection (e.g., goggles, face shield) and a NIOSH-certified, disposable N95 filtering facepiece respirator or better. This same level of protection is also recommended when performing procedures on patients with suspected or known COVID-19 regardless if the procedure generates aerosol or not. OSHA indicated that during extended procedures in which aerosols or other splashes/sprays of water, saliva, or other body fluids could cause moisture to collect in/on a filtering facepiece respirator, they recommend using an R95, P95, or better filtering facepiece; elastomeric respirator with an appropriate cartridge; or powered air-purifying respirator (PAPR). Notice that the recommendation was not “less” than a filtering facepiece respirator.

Centers for Disease Control and Prevention (CDC) take a modified approach to the selection of PPE during COVID-19. If you practice in an area with no to minimal COVID-19 transmission, CDC recommends a surgical mask, eye protection (goggles or a face shield that covers the front and sides of the face), a gown or protective clothing, and gloves during procedures likely to generate splashing or spattering of blood or other body fluids. Protective eyewear (e.g., safety glasses, trauma glasses) with gaps between glasses and the face likely do not protect eyes from all splashes and sprays. (4)

In communities with moderate to the substantial transmission of COVID-19, CDC recommends workers to use an N95 respirator or a respirator that offers an equivalent or higher level of protection such as other disposable filtering facepiece respirators, powered air-purifying respirators (PAPRs), or elastomeric respirators during an aerosol-generating procedure. They further emphasized the need for universal eye protection and ensuring there are no gaps. If the employer assesses the workplace and does not require the use of a respirator, then OSHA requires them to provide a copy of Appendix D of OSHA's  Respiratory Protection Standard or the equivalent State OSHA Agency document to the employees. Please note that voluntary use is only permitted when the employer has determined that there is no airborne hazard that would require the use of a respirator. (5)

If filtering facepiece respirators are in use in your dental practice, please review this article carefully. First, download a copy of the standard. 6 Review it carefully and provide training for your team.

Training topics include:

• OSHA’s Respiratory Protection Standard
• Respiratory hazards to which employees are potentially exposed during routine and emergency situations
• Limitations and capabilities of respirators
• How to effectively use a respirator in an emergency situation and how to handle a respiratory failure,
• How to inspect, don, doff, use, and dispose of respirators,
• How to perform a user seal check,
• How to maintain respirators,
• Procedures and schedules for cleaning, disinfecting, storing, inspecting, repairing, discarding, and otherwise maintaining respirators,
• Disposal of filtering facepiece respirators, and
• Medical conditions limiting or preventing the effective use of a respirator.

A respirator may place a physiological burden on employees and may risk serious medical consequences. Therefore, OSHA requires a medical evaluation to determine the employees’ ability to use a respirator.

The employer identifies a physician or other licensed health-care professional to perform medical evaluations. You may review the medical questionnaire in Appendix C to Sec. 1910.134: OSHA Respirator Medical Evaluation Questionnaire (Mandatory) at https://www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.134AppC.

Please note the employer must allow employees to complete the questionnaire during normal working hours, or at a time and place that is convenient for the employees. To maintain confidentiality, the employer or management must not review the employee’s answers. Instructions should be provided to the employee on how to deliver or send this questionnaire to the health care professional who will review it. Therefore, if you provide a paper questionnaire for the employee to complete, the document is placed in a sealed envelope and reviewed by the healthcare professional.

Most practices direct employees either to an occupational clinic to handle the medical evaluations or use a confidential online screening tool.

Employees are then fit tested before using a filtering facepiece respirator (initial fit test) and they are retested annually to make certain that the respirator still fits properly. Fit testing is not optional and must be repeated if there is a change in the model or size of the respirator. Without a fit test, there is no basis to determine whether or not the respirator is making an appropriate seal. Fit testing is conducted annually. At this time, OSHA field officers will exercise enforcement discretion regarding annual fit retesting as long as the employer made a good faith effort to comply.

For filtering facepiece respirators, qualitative and quantitative fit-testing methods are both effective at determining whether the respirator fits properly. 7 It is reasonable and cost effective for dentists and/or their safety managers to learn how to perform qualitative fit testing which is a pass/fail method that uses your sense of taste or smell, or your reaction to an irritant in order to detect leakage into the respirator facepiece. There are four qualitative fit test methods accepted by OSHA:

• Isoamyl acetate, which smells like bananas;
• Saccharin, which leaves a sweet taste in your mouth;
• Bitrex, which leaves a bitter taste in your mouth; and
• Irritant smoke, which can cause coughing.
• Fit tests kits can be purchased online.

Let’s not forget more familiar areas of OSHA compliance for dental practices. The dental practice who incurred violations of the Respiratory Protection Standard was also cited for other areas including, bloodborne pathogen exposure control and chemical hazard communication; insufficient bloodborne pathogen training and controls; and inadequate eyewash stations. (8)

Now, more than ever before is a critical time to conduct a careful review of your job safety programs and policies. Allocate the time to update policies, train your team, and implement the changes necessary to close any gaps of compliance. We can achieve confidence in our safety programs through knowledge and preparation.

About Olivia Wann, JD

Olivia was a former office manager and registered dental assistant. She graduated magna cum laude from St. Joseph’s College with a bachelors of science degree in health care management and a doctorate in jurisprudence from the Nashville School of Law. She founded Modern Practice Solutions, LLC over 20 years ago, dedicated to serving the compliance needs of the dental profession. Her consulting firm provides virtual and onsite training, audits, and policy development. [email protected]

Sources

1 https://www.osha.gov/news/newsreleases/national/11272020 accessed on December 8, 2020
2 https://www.osha.gov/news/newsreleases/national/09162020#:~:text=OSHA%20cited%20the%20dental%20pract
ice%20for%20failing%20to%20provide%20medical,and%20chemical%20hazard%20communication%3B%20insuffic
ient, accessed on October 22, 2020
3 https://www.osha.gov/SLTC/covid-19/dentistry.html accessed on October 22, 2020
4 https://www.cdc.gov/coronavirus/2019-ncov/hcp/dental-settings.html accessed on October 22, 2020
5 https://www.osha.gov/video/respiratory_protection/voluntaryuse_transcript.html
6 https://www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.134 accessed on October 22, 2020
7 29 CFR § 1910.134, Appendix A, Fit Testing Procedures.
8 https://www.osha.gov/news/newsreleases/national/09162020#:~:text=OSHA%20cited%20the%20dental%20pract
ice%20for%20failing%20to%20provide%20medical,and%20chemical%20hazard%20communication%3B%20insuffic
ient, accessed on October 22, 2020