Jay Finegan, CHMM
Compliance Services Leader
On April 8th, Dakota Software hosted a Roundtable webinar for our user community of EHS professionals to share their experiences responding to the COVID-19 crisis. During the discussion, attendees asked the panelists a number of questions, many of which were answered live during the webinar. Below are 20 questions that were submitted but not answered live. The information provided below does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available is for general informational purposes only.
1) Are breathing zone restrictions sufficient for production personnel that have to work in close proximity to each other during work day?
In most manufacturing environments, OSHA would likely consider employees who have to work in close proximity to each other as Medium risk. OSHA's stated preference is to follow the well-known hierarchy of controls, using PPE where other options are not practical. For example, Clerks in a grocery store are an example of Medium risk. Consider the possibility of erecting barriers to protect these workers as an alternative to the voluntary use of dust masks and face shields. Health care environments, like hospitals and nursing homes, are more likely to implicate High or Very High risk, and warrant much more protective measures, such as N95 masks.
2) In the beginning they stated wearing a mask would not protect you and should only be worn by emergency personnel. Now studies are coming out that masks protect you and me. My mask protects you from me, and yours from you to me. Even before Covid-19, DR offices would have masks available for people who felt sick. Why do you think there was such pushback on wearing masks for all to help minimize the disease? It seems to me that even if I felt wear and wore even a homemade mask that protects me even a little would have helped overall. Thoughts?
In the beginning, some of the pushback was likely due to the lack of knowledge regarding how the virus was transmitted. We simply did not know enough about it. It's likely that one concern that prevented a blanket recommendation that everyone simply wear a mask is the fear that the masks would provide the public with a false sense of security, that the wearer was protected and could go about their daily business without following the social distancing guidelines. Additionally, for masks to be effective, they must be properly donned, doffed, maintained or replaced. Further complicating the confusion of masks and respirators was the implication that N95-level protection was necessary. But N95-level protection is a negative pressure respirator which requires (under normal conditions) a health evaluation, fit testing, and training to ensure effective use without endangering the wearer. Consequently, some of the pushback may have been intended to help protect people from a false sense of security, or worse, inadvertently putting themselves in a different type of danger.
3) Does short wave or long wave UV light disinfect the masks? How long does the mask need to be exposed to UV light to be disinfected?
While the CDC reports that UV disinfection shows considerable promise, the effectiveness is contingent upon the dose (which combines treatment level with duration of exposure). It's not well-defined. In addition, while UV light shows promise killing viruses, it does have some risks. For example, it may degrade the mask; folds and contours may create shadowed areas of decreased dose (i.e., surviving virus spores); and, in addition to killing virus spores, it can harm living tissues (like skin and eyes) if exposed. For further guidance, see https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/decontamination-reuse-respirators.html
4) Getting back to the hydrogen peroxide vapor for disinfecting masks...What is the wait time after disinfecting the mask this way before you can wear it again?
The CDC reports that disinfection using Hydrogen Peroxide vapor (HPV) shows considerable promise, but the effectiveness is contingent upon the dose (which combines treatment level with duration of exposure). It's not well-defined. That said, several studies with commercially available equipment suggested aeration times ranging from 2 to 5 hours. For further information, see https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/decontamination-reuse-respirators.html
5) How would it be interpreted if all personnel are directed to wear respirators by the CDC or other regulatory body (state/local governments)?
It is unlikely that any regulatory body would paint with a brush as broad as "all personnel". OSHA would likely point out that employers remain obligated to assess the hazards their employees face, which means it is incumbent upon the employer to determine which of the four risk level(s) actually exist, and to implement appropriate protective measures accordingly. PPE recommendations by another agency will not excuse or eliminate the expectation for compliance with OSHA's respiratory requirements unless rules are specifically waived or changed by OSHA.
6) When using cloth mask, do you have to clean it everyday? after use?
Unfortunately, the CDC's guidance regarding how often to clean cloth masks is indeterminate and lawyerly: "They should be routinely washed depending on the frequency of use." (see https://www.cdc.gov/coronavirus/2019-ncov/downloads/DIY-cloth-face-covering-instructions.pdf. Fortunately, other organizations have been willing to fill in the gaps in CDC's response. For example, the California Department of Public Health states that it's "a good idea to wash your cloth face covering frequently, ideally after each use, or at least daily." (see https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Face-Coverings-Guidance.aspx)
7) My organization has implemented the use of surgical masks and some employees have exhibited skin irritations which is expected due to the entrapment of moisture. What steps have your organizations taken to help employees work through those issues and would these instances count as occupational illness?
"HEALTH.COM provides the following guidance from Adeline Kikam, DO, chief resident dermatologist at Corpus Christi Medical Center in Texas: 1) Wash your skin with a gentle cleanser after removing your mask; 2) Apply a moisturizer with skin barrier-boosting ingredients; and 3) Cover irritated skin with a protective ointment before bedtime. (See https://www.health.com/condition/infectious-diseases/coronavirus/face-mask-skin-irritation).
Whether the irritation was an occupational illness would likely hinge on the usual factors: did the employee's job cause or contribute to the irritation; is the irritation excluded under one of OSHA's 9 exceptions; and whether it is a new or pre-existing illness.
Whether it is recordable or reportable would likely hinge on their respective requirements (e.g., was medical treatment beyond first aid required, was the employee hospitalized). "
8) Suggestions on how to implement procedures on a construction jobsite?
"The general guidelines issued by CDC and other health organizations remain the best guidance available for all industries, including construction. That said, the Associated General Contractors of America, Inc. (https://www.agc.org/coronavirus/covid-19-basics) published the following guidance:
Wash your hands often with soap and water for at least 20 seconds, especially after you have been in a public place, or after blowing your nose, coughing, or sneezing. If soap and water are not readily available, use a hand sanitizer that contains at least 60% alcohol. Cover all surfaces of your hands and rub them together until they feel dry.
Avoid touching your eyes, nose, and mouth with unwashed hands.
Avoid close contact, especially with people who are sick.
Put distance between yourself and other people if COVID-19 is spreading in your community.
Stay home if you are sick, except to get medical care.
Cover your mouth and nose with a tissue when you cough or sneeze, or use the inside of your elbow. Throw used tissues in the trash.
Wear a facemask if you are sick and around other people (e.g., sharing a room or vehicle).
Clean AND disinfect frequently touched surfaces daily. This includes tables, doorknobs, light switches, countertops, handles, desks, phones, keyboards, toilets, faucets, and sinks. If surfaces are dirty, clean them using detergent or soap and water prior to disinfection using an EPA-approved disinfectant."
9) Any contractor rules being implemented?
OSHA uses a variety of factors to determine if the person is in fact an "independent" contractor or an employee. In addition to who actually pays the individual, these factors include aspects like: who directs their work; who provides their tools; whether a formal contract exists; and whether the work is comparable to that performed by actual employees. For an independent contractor, the host employer would likely be required to meet the typical requirements regarding the relationship. For example, the employer must communicate the known hazards in the work area (which likely today includes any known or suspected diagnoses of COVID-19). Note that this duty to warn works both ways. On the flip side, the employer can likely insist that the contractor practice appropriate preventive behaviors (e.g., housekeeping, social distancing), especially if there are shared facilities (e.g., bathrooms or break rooms).
10) What are some of the challenges with planning for the distant future regarding preparation for a similar disruptive reaction to a virus outbreak? Many business would not be able to handle the financial impact of what has taken place so far.
The best way to address such challenges is to develop and maintain a comprehensive continuity plan which addresses all reasonably foreseeable business disruptions, including pandemics. There are many sources of guidance available. One good starting point is FEMA's "Emergency Management Guide for Business and Industry" (FEMA 141 / October 1993) (https://www.fema.gov/media-library/assets/documents/3412).
11) How do you manage the impact of social distancing on workers´ mental health?
The American Psychological Association offers the following guidance regarding protecting mental health in this era of COVID-19 isolation: 1) Limit news consumption to reliable sources to limit feelings of fear and anxiety; 2) Create and follow a daily routine to preserve a sense of order and purpose; 3) Use phone calls, text messages, video chat and social media to stay connected with others and access social support networks; 4) Maintain a healthy lifestyle; 5) Use psychological strategies to manage stress and stay positive (focus on what you can do and accept the things you can't change). While relying on pets for emotional support can also be valuable, the impact of COVID-19 on them remains unclear and carries certain risks to both the person and the animal. See https://www.apa.org/practice/programs/dmhi/research-information/social-distancing.
12) How does a homemade cloth mask prevent someone's cough or sneeze from someone else? What about entering through your eyes even while wearing a N95 mask?
"Humans release tiny droplets of mucus, sputum, and/or saliva whenever we sneeze, cough, or even talk. The cloth mask somewhat contains the release to the wearer; it does not protect the wearer from exposure. Because many infected people are asymptomatic or pre-symptomatic, there is increased risk of infecting others. Consequently, in order to slow the spread of the virus, the CDC recommends the use of a cloth face covering whenever a 6-foot distance cannot be maintained (see https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover.html)."
13) How do you think that Work from home is feasible for the manufacturing/Automobile sector in which the human intervention is mandatory?
Telecommuting is obviously not viable for every job/function. It may not be feasible for all functions within the manufacturing/automobile sector. However, industry has discovered that many current jobs can indeed be performed remotely. Virtually every business has a variety of support functions (e.g., accounting, purchasing, design engineering) which can be done, at least in part, remotely. Many operations functions offer some opportunities for remote work. Current technology allows at least some of human oversight to occur from an off-site location, although other safety considerations may necessitate some degree of on-site presence.
14) Have inspection or audits been conducted to ensure engineering, administrative controls, and PPE protocols are consistently implemented. Do you expect regulators requiring some type of supporting document to show compliance with the current standards/recommendations?
On April 16th, 2020, OSHA issued guidance to its Compliance Safety and Health Officers (CSHOs), instructing them to "evaluate whether the employer made good faith efforts to comply with applicable OSHA standards" in real time or as soon as possible afterwards. When such good faith efforts are made, the CSHOs must take them into "strong consideration" when determining whether to cite a violation, but if "the employer cannot demonstrate any efforts to comply," citations should be issued under OSHA's existing enforcement policy. Appropriate documentation has long been vital to demonstrate compliance with standards. Without doubt, some degree of documentation would likely be necessary to demonstrate good faith efforts to comply with standard and recommendations.
15) What type of response plans would be expected for a confirmed positive test by a employee at a site?
Needless to say, the first thing to do is to ensure that the infected employee does not return to the workplace until retesting demonstrates that the employee is no longer infected. As far as the workplace itself, appropriate measures should be taken to clean and disinfect all areas for the facility where that employee may have accessed, worked, or touched. While identifying all the areas to clean/disinfect is likely to be a universal challenge, the actual cleaning/disinfecting will be easier or harder based upon a variety of factors (e.g., did the employee work in an office or on the shop floor). The CDC provides recommended cleaning and disinfection procedures, available here: https://www.cdc.gov/coronavirus/2019-ncov/community/disinfecting-building-facility.html
16) What happens if an employee does not want their temperature taken? Do you just send them home?
"COVID-19 has introduced many unsettled questions of law. Note first that taking one's body temperature is generally considered a medical examination. Because the EEOC has concluded that taking employee temperatures can be job-related, employers are expressly permitted to do so. Consequently, the employer may take any action allowed against any employee who refuses to participate in a required job-related medical examination, including sending them home.
While this perspective offers some guidance, the uncertainty of the times may impose increased burdens on the employer to demonstrate that temperature taking is truly job-related or that other measures, such as social distancing within the workplace or PPE, would be less protective. Further complicating the question is that while the EEOC, following CDC guidance, counsels infected employees to leave the workplace, the EEOC cautions that many infected people do not have a temperature, and that many things other than COVID-19 can cause a person to have a temperature. Any presumption that a person's temperature is indeed related to COVID-19 would likely rely on aspects such as the employer's industry (e.g., healthcare) or the local incidence rate. "
17) Looking forward, thoughts on processes/procedures for "going back to work/office"? Has anyone developed steps to re-populate office buildings/manufacturing sites, etc.?
The AIHA provides guidance for returning after building closures, at: https://aiha-assets.sfo2.digitaloceanspaces.com/AIHA/resources/Public-Resources/RecoveringFromCOVID-19BuildingClosures_GuidanceDocument.FINAL.pdf.
18) How do you track an employee if they come within 6' of another employee, for more than 5 minutes, due to an assigned task?
In November, 2016, long before the current COVID-19 pandemic, Monster.com described five developing trends for tracking employee movement, including: 1) Wearable Fitness Devices (Smart Watches); 2) Wearable Location and Conversation Monitors (Smart Patches); 3) GPS and RFID Portables (particularly popular in the transportation industry); 4) Implantable Devices (like those implanted in cattle or pets); and 5) People Analytics Software. Although there are undoubtedly privacy issues and concerns, devices like these, with appropriate analytical software, could track employee interactions in a pandemic.
19) Osha has changed from recording those who have tested positive to include those who are presumed positive. What do you think would classify as a presumed positive?
OSHA's current guidance is that higher risk industries, like first responders and healthcare, "must continue to make work-relatedness determinations pursuant to 29 CFR § 1904." Employers in these industries may find it particularly challenging to prove that exposure did not occur in the workplace. The rule is largely reversed, however, for lower risk industries, like manufacturing and transportation. For these industries, there must be "objective evidence" that a COVID-19 case may be work-related (e.g., a number of cases among workers who work closely together with no alternative explanation), and this evidence must have been "reasonably available" to the employer. In the end, it remains a "more likely than not" judgment call. (See https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19)
20) Have any of you dealt with the OSHA recordability issue as yet? Specifically, how can you definitively say that the sick worker caught the virus at work when the virus is now pretty much everywhere (gas station pumps, handles on shopping carts, etc.)?
OSHA's current guidance is that higher risk industries, like first responders and healthcare, "must continue to make work-relatedness determinations pursuant to 29 CFR § 1904." Employers in these industries may find it particularly challenging to prove that exposure did not occur in the workplace. The rule is largely reversed, however, for lower risk industries, like manufacturing and transportation. For these industries, there must be "objective evidence" that a COVID-19 case may be work-related (e.g., a number of cases among workers who work closely together with no alternative explanation), and this evidence must have been "reasonably available" to the employer. In the end, it remains a "more likely than not" judgment call. (See https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19).
Don’t miss our next webinar on May 5th at 2:00pm ET where we’ll discusssocial distancing, evolving PPE usage, assessing compliance without traveling, and what the “New Normal” could look like for EHS management. Register Now.
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