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OSHA Issues Enforcement Procedures For High to Very High Occupational Exposure Risk to H1N1 Influenza

Written by Edward M. Ranier, NFDA OSHA general counsel
Posted December 1, 2009

The recently issued "OSHA Instruction" directive establishes agency enforcement policies, and provides instructions to inspectors to ensure uniform procedures, when conducting inspections in work sites with a high- to very high-occupational exposure risk to H1N1 by workers whose occupational activities involve contact with patients or contaminated material in a health care or clinical laboratory setting.

It is not a "fact sheet" or a general guidance document for employers or workers or a recommendation.

It applies throughout the Federal OSHA system and instructs State OSHA plans to either adopt identical policies and procedures as are in the OSHA Instruction or adopt policies and procedures that are as effective as those adopted by Federal OSHA in this Instruction.

The definition of health care personnel is "all persons whose occupational activities involve contact with patients or contaminated material in a health care or clinical laboratory setting" and includes personnel that may be engaged in a range of occupations that do not involve direct provision of patient care, such as dietary and housekeeping services in hospitals. Work settings further described as including inpatient/outpatient facilities, home health care settings and institutional settings. Funeral service is not specifically mentioned in this instruction, but it is also not eliminated.

Autopsies, however, are included in the instruction as an aerosol generating procedure requiring engineering controls, administrative controls and protective equipment. In addition, health care workers present during the performance of aerosol generating procedures during autopsies, such as medical examiners, are listed as having a very high exposure risk of occupational exposure to concentrations of suspected or confirmed H1N1 influenza virus. Very high exposure risks, is further defined as involving health care workers who are in close contact, such as working within six feet of suspected or confirmed patients or entering into a small enclosed air space shared with the patient as well as staff transporting suspected of confirmed H1N1 patients.

While medium -or low-exposure risk job tasks are mentioned in the instruction, the document specifically does not apply to those occupational exposures which include employers such as teachers, high-volume retail cashiers and office workers.

The instruction indicates that OSHA inspections will be conducted in work places likely to have high to very high-risk exposure to H1N1 Influenza "where workers' occupational exposure involve close contact with patients or contaminated material". This specifically includes hospitals, emergency medical centers, doctors and dental offices and clinics which "typically" will be the focus of inspection activities. If fatalities from H1N1 flu mount, in addition to autopsy suites and medical examiners facilities, there is little doubt that OSHA will include funeral homes involved in the preparation of the remains of deceased H1N1-infected individuals.

Inspections will be conducted, according to the instruction, on the basis of worker complaints, referrals, which include media referrals, or as part of a fatality or catastrophe investigation. A fatality catastrophe investigation is defined in this instruction as a "death or multiple hospitalization due to reported occupational exposure to pandemic influenza virus."

The inspector, during the course of the inspection, will review the employers' risk assessment to determine the presence of hazards which necessitate the use of personal protective equipment, consider the respiratory hazard evaluation, and request information and the exposure risk assessment.

The inspector is instructed to do an initial determination as to whether the employer has a written pandemic influenza plan, as recommended by the CDC, and verify whether the employer has considered or implemented a hierarchy of controls for worker protection involving engineering controls, administrative controls, and work practices, as well as personal protective equipment, including a respiratory protection program.

Since aerosolization is an issue, it would be essential, as an example, for an inspected funeral director to show that barrier protection is used on any potentially infected, intact remains to prevent aerosolization of air trapped in the lungs of the deceased. The employer would also have to be able to show that all required personal protective equipment is in use to guard against biologic hazards such as those covered under the OSHA Blood Borne Pathogens Standard, 1910.1030.

During an inspection, OSHA inspectors will also review the employee medical and exposure records, that are required to be maintained by the employer under 1910.1020, including any records regarding work related exposure to H1N1, influenza test results and medical evaluations. The inspectors are also required to review the employer's injury and illness records to identify any workers with recorded illness symptoms associated with exposure to patients with suspected or confirmed H1N1 influenza. The employers are specifically responsible for recording cases of H1N1 illness if there is a confirmed case, whether it is work-related, and if it involves one or more other recording criteria such as medical treatment or days away from work. Inspectors will also review the OSHA 300 log entries for confirmed cases of work related H1N1 influenza transmission.

Since funeral service is specifically exempt from maintaining these records, this portion of the OSHA instruction will not apply to funeral service in a funeral home inspection unless the funeral home has been specifically instructed, by mail, to maintain these accident and illness records.

If it is determined that there is a high- to very high-occupational risk exposure, the instruction indicates that citations and penalties could be issued to the employer under the OSHA General Duty Clause; the OSHA Standards regarding reporting occupational illnesses and injuries (which would not apply to funeral service); and Standards including 1910.132 personal protective equipment, 1910.133 eye and face protection, 1910.134 respiratory protection, 1910.141 sanitation, 1910.145 specifications for accident prevention signs and tags, and 1910.1020 access to employer exposure and medical records.

The instruction goes on to state that employers shall be cited under the Respiratory Protection Standard,1910.134, when there is a failure to conduct an initial hazard evaluation to identify potential respiratory hazards of employees who have high or very high occupational exposure risks to H1N1 influenza. If a respirator is necessary, there will be a citation under the specific standard for failure to select and provide appropriate respirators such as a NIOSH certified N95 respirator for airborne transmission of H1N1.

If respiratory protection is required, the instruction indicates that a "complete respiratory program" must be in place in accordance with 1910.134 (c) of the OSHA Respiratory Protection Standard. Employers who fail to conduct an initial annual fit test for employees required to use respirators under a respiratory protection program, because of actual or potential exposure, will also be cited. If an N95 respirator is not available, the instruction indicates that employers must provide and ensure the use of a respirator that is as least as affective as an N95 respirator to workers with high or very high occupational risk exposure covered by the instruction.

The instruction also directs inspectors to specifically review other OSHA standards commonly associated with health care employers such as the Bloodborne Pathogen Standard 1910.1030, the Sanitation Standard for surfaces potentially contaminated with H1N1 influenza virus, 1910.141, and 1910.145 which deals with specifications for accident prevention signs and tags, including warning signs be posted outside of the entrance of isolation or treatment rooms describing the necessary precautions that must be taken such as "respiratory protection must be donned before entering."

As part of the OSHA instruction, OSHA is directed to send notification letters, as part of an outreach effort, to alert employers who may have employees with high to very high occupational exposure risks to H1N1 influenza as a result of job tasks/duties performed in the workplace. Any NFDA member who receives such a letter should treat it as an indication that the members' funeral home is a potential inspection target for an OSHA or State OSHA inspection pursuant to this OSHA Instruction. The letter itself describes the hazard, encloses a fact sheet for health care workplaces classified as high or very high risk, an OSHA fact sheet dealing with respiratory infection control and CDC interim guidance infection control measures for H1N1 influenza in health care settings, which would have the effect of placing the employer on notice of the hazards in the workplace and thereby arguably eliminating a defense to a future general duty violation as well as possibly establishing some of the ground work for a willful violation of a applicable cited standard.

If you have questions about protecting your employees or yourself against H1N1 or about complying with OSHA standards, NFDA members may call NFDA's FREE OSHA Hotline, 800-633-2674, answered by experts from Stericycle. The NFDA Website also has information and links to federal Websites containing the latest news and updates surrounding the spread of H1N1.