Marking the federal government’s first move from a “recommendation” to a “requirement” posture in dealing with H1N1, the Occupational Safety and Health Administration (OSHA) has announced that it will issue a compliance directive to enforce the Centers for Disease Control and Prevention’s Interim Guidance on Infection Control Measures for 2009 H1N1 Influenza in Healthcare Settings, Including Protection of Healthcare Personnel.

The OSHA Directive will prescribe uniform procedures governing OSHA inspections of healthcare institutions for occupational exposure to H1N1 flu.  Covered healthcare settings include acute care hospitals, nursing homes, skilled nursing facilities, physicians’ offices, urgent care centers, outpatient clinics, and home healthcare agencies.  OSHA will conduct inspections based upon employee complaints.

While it is unclear how much of the CDC Guidance will be incorporated into OSHA’s Directive and what level of compliance will be required, healthcare employers should make reasonable efforts to ensure their policies, procedures, forms, and postings conform with the CDC’s recommendations, including:

  • Hierarchy of Controls:  The CDC recommends that healthcare facilities use a “hierarchy of controls” to prevent H1N1 exposure and transmission including, in descending order of preference:  (1) elimination of potential exposures, such as minimizing outpatient visits for patients with mild influenza-like symptoms, and denying access to visitors with suspected or confirmed influenza; (2) engineering controls, including partitions for triage areas and other public spaces; (3) administrative controls, including providing vaccinations for employees, ensuring that ill employees stay home, and enforcing respiratory hygiene and cough etiquette; and (4) personal protective equipment (PPE), such as gloves and respirators.
  • N95 Respirators/Facemasks:  The CDC recommends use of respiratory protection “at least as protective as a fit-tested disposable N95 respirator for healthcare personnel who are in close contact with patients with suspected or confirmed 2009 H1N1 influenza.”  Close contact is defined as working within six feet of an infected patient.  Acknowledging that some facilities face a supply shortage of this equipment, the CDC advises that “special care … be taken to ensure that respirators are available for situations where respiratory protection is most important, such as performance of aerosol-generating procedures on patients with suspected or confirmed 2009 H1N1 influenza or provision of care to patients with other infections for which respiratory protection is strongly indicated (e.g., tuberculosis).”  This may require prioritizing resources.  The CDC recommends that facemasks be chosen over no protection.

For its part, OSHA suggests that if employers make a good faith effort to obtain N95 respirators, but are unable to do so for supply reasons, they will not be cited, so long as they are taking other appropriate protective measures.  What level of compliance OSHA will require with respect to these other recommended protective measures — such as screening for respiratory illnesses — is not clear at this time.

Beyond efforts to implement policies and procedures that comply with the CDC Guidance, healthcare employers must consider how the recommendations interact with their legal obligations under federal and state disability, leave, privacy and other laws.  The Equal Employment Opportunity Commission, for example, has published technical guidance detailing employers’ obligations under the Americans with Disabilities Act with respect to H1N1.

Mei Fung So prepared this blog post.