Frequently Asked Question on PPE

QUESTION: There is a shortage of N95 respirators/equivalent in my area. If I follow the CDC Guidance for Dental Settings and provide a level 3 mask and a face shield to staff members who perform aerosol-generating procedures (AGP’s) on well-patients, am I compliant with OSHA?

Short Answer: OSHA’s Guidance for Dentistry Workers and Employers is not a mandatory standard. Further, dental practices adhering to current CDC Guidelines are unlikely to be targeted for investigation by OSHA. Dentists in the 22 states with an OSHA approved state run workplace health and safety plan should check with those agencies to determine if they have more stringent guidance.

However, dentists have raised concern and questions regarding OSHA’s Dentistry Workers and Employer Guidance, issued May 1, 2020. This document defines “performing aerosol generating procedures on well patients,” as high risk. Moreover, it states that in these circumstances appropriate personal protective equipment (PPE) includes “NIOSH-certified, disposable N95 filtering face piece respirator or better.”

The OSHA guidance acknowledges the N95 shortage problem by linking back to its April 3rd enforcement guidance related to PPE. OSHA relies on the last paragraph of that document to support its claim that current enforcement discretion is in accordance with CDC’s guidance.

Specifically:

OSHA will, on a case-by-case basis, exercise enforcement discretion when considering issuing citations under 29 CFR § 1910.134(d) and/or the equivalent respiratory protection provisions of other health standards in cases where:

The employer has made a good faith effort to obtain other alternative filtering facepiece respirators, reusable elastomeric respirators, or PAPRs appropriate to protect workers;
The employer has monitored their supply of N95s and prioritized their use according to CDC guidance (www.cdc.gov/coronavirus/2019-ncov/release-stockpiled-N95.html; www.cdc.gov/coronavirus/2019-ncov/hcp/respirators-strategy/index.html);
Surgical masks and eye protection (e.g., face shields, goggles) were provided as an interim measure to protect against splashes and large droplets (note: surgical masks are not respirators and do not provide protection against aerosol-generating procedures); and
Other feasible measures, such as using partitions, restricting access, cohorting patients (healthcare), or using other engineering controls, work practices, or administrative controls that reduce the need for respiratory protection, were implemented to protect employees.

The enforcement guidance, directed to OSHA inspectors, provides “enforcement flexibilities for specific provisions of certain standards and requirements to address these challenges and help ensure the continued protection of worker safety and health.” It also provides direct links to the CDC Guidance webpage.

The Academy of General Dentistry (AGD) recommends the following steps if there is a shortage of N95 respirators in your area.

Document ongoing, good-faith efforts to obtain N95 masks;
Monitor supply and prioritize use;
Utilize administrative, environmental and engineering controls to mitigate risk and protect the workplace and employees;
Review CDC Guidance for Dental Settings document with staff. This document suggests the following when performing AGP’s on well patients: “consider the use of an N95 respirator or a respirator that offers a higher level of protection… If a respirator is not available for an aerosol-generating procedure, use both a surgical mask and a full-face shield.”
Document your review of the CDC Guidance for Dental Settings with staff. Consider formalizing the process by having staff sign a memorandum acknowledging the conversation.

It is critical that dentists regularly monitor community spread through local public health agencies. This provides an epidemiological rational for determining appropriate level of PPE selection based on your specific patient population and its current risk.

If a dental team member performing AGP’s is not comfortable unless they are supplied with an N95 respirator, that raises a different set of legal issues that need to be addressed.

Discussion: Under the general duty clause of the Occupational Safety and Health Act of 1970 (OSH Act), employers have a legal duty to protect employees from known risks and to comply with specific workplace standards including a respiratory protection requirement. Severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) that causes the disease COVID-19 is now a known risk. Ultimately, it is the employer who is responsible. The best way to mitigate personal liability is to have good communications with your team.

OSHA has limited resources and prioritizes investigations and inspections. OSHA’s “primary goal is correcting hazards and maintaining compliance rather than issuing citations or collecting penalties.” Generally, OSHA prioritizes complaints as follows:

Top priority: imminent danger- a situation where workers face an immediate risk of death or serious physical harm.
Second priority: fatality or catastrophe- an accident that requires hospitalization of three or more workers.
Third priority: employee complaints and referrals.

OSHA notes that good faith efforts by employers to comply with worker safety regulations during the COVID-19 pandemic should be taken into strong consideration. During the COVID-19 pandemic, OSHA has prioritized COVID-19-related workplace complaints in hospital settings. OSHA has received over 6000 COVID-19 related complaints, an overwhelming number. The limited number of OSHA inspections has focused on hospitals, and the only COVID-related citation OSHA issued was to a hospital for a reporting violation.

OHSA publishes daily cumulative summaries of COVID-19 complaints and their status. As of June 17, OSHA has received over 18,000 complaints between Federal and State Programs. Complaints are evaluated and investigated if determined to be valid after contacting the employer.

COVID-19 poses challenges for dental offices, but dentistry has a strong record of leading in infection control. Dentists manage blood borne and other contagious respiratory infectious diseases effectively with adherence to recommended standard precautions. The best way to mitigate risk is to maintain good communication with your team and document your infection control protocols.

Again, dentists in the 22 states with an OSHA approved state run workplace health and safety plan should check with those agencies to determine if they have more stringent guidance.

None of the aforementioned should be construed as legal advice. To reiterate, the employer is ultimately responsible for work conditions. Employers should consult with a licensed attorney in their jurisdiction to discuss legal implications of dental practice.