OSHA, COVID-19, and Dentistry
Smart Training's Vice President of Healthcare, Lee Slaton, is an expert in OSHA dentistry laws. Check out his recent webinar, hosted by the Texas Dental Association. Watch the video below, or keep scrolling for a textual transcription.
COVID-19 Dental Compliance Changes
Texas dentists: Title 22 was extended.
On December 11th, 2020, the Texas State Board of Dental Examiners (TSBDE) unanimously voted to extend the COVID-19 Emergency Rule, or Title 22. The Rule extension will remain in effect until February 21, 2021. Expect Title 22 to be extended again.
One of the main aspects of Title 22 is that dental and healthcare employees are required to wear respirators within 6 feet of aerosol-generating procedures. If you need more information about Texas Title 22, check out our blog post. It covers the Texas requirement of respirators, its connection to the OSHA respiratory protection standard, and gives you the resources we have created since Title 22 went into effect.
If you don't live in Texas, your state has its own compliance laws. Some states have their own OSHA. For example, employers in Oregon should abide by Oregon OSHA. Oregon dental employers comply with Oregon OSHA's Temporary COVID-19 Rule.
Dental compliance looks different in every state. Make sure your practice is monitoring compliance law changes.
CDC Guideline Changes
The Center for Disease Control (CDC) delineated recommendations by rate of transmission. If your dental practice is in a location where COVID-19 community transmission rates are low, your employees don't have to wear respirators. However, if the patient is suspected of having COVID-19, employees should still wear respirators.
Unfortunately, most communities in the United States have moderate or high rates of COVID-19 community transmission. The altered CDC recommendations are unlikely to affect your practice until COVID-19 community transmission rates drop to low.
OSHA Compliance Changes
Regarding OSHA, expect them to change their COVID-19 guidelines to an Emergency Temporary Rule. Monitor your state for compliance changes.
What are the practical implications of this? It's not going to change much. OSHA protects your employees, not your patients. OSHA cares that your employees are coming to a safe workplace and that they're going home safely. OSHA is also worried about employer safety.
OSHA's General Duty Clause says that every employer has an obligation to provide a workplace that is safe. Employers have to get rid of hazards for their employees.
In contrast to the CDC, OSHA delineates personal protective equipment (PPE) based on the health status of the patient, not the rate of the community transmission. If a patient is not suspected to have COVID-19, and the procedure is not aerosol-generating, employees can wear face shields and a mask.
However, all aerosol-generating procedures require a respirator. When we talk about respirators, we're talking about N95 masks or KN95 masks. In Texas, KN95 masks are permitted. But depending on where you live, your local OSHA may not allow KN95 masks. For example, Oregon OSHA doesn't allow KN95 masks in dental practices.
OSHA Fines Increased
Every year on January 1st, OSHA enforcement fines automatically change due to inflation. The fines could increase or decrease. In 2021, OSHA fines increased.
For first-time penalties, OSHA fines increased to $13,653 per violation. This includes serious, other-than-serious, and posting requirement violations.
After you are cited for an OSHA violation, you have time to correct the issue. OSHA will come back and check, and if you haven't solved the issue, you receive fines. This is called "failure to abate." The OSHA failure to abate penalty went up to $13,653 per day beyond abatement. If OSHA cites your practice, make sure you fix the problems during the abatement period.
The penalty for willful or repeated violations went up to $136,532 per violation. Our Compliance Advisers haven't seen it used in dental practices, but they have seen it in other industries.
What causes willful or repeated violations? Let's say OSHA inspected your dental practice, and let's say you didn't have a Hazardous Chemical Inventory List and a sharps container was overflowed. Both of those are serious violations.
Let's say OSHA cited you for that, and then 6 months later, they came back to reinspect your practice. They often come back after a first-time OSHA penalty. If they came back and you still had those same problems, the gloves come off. Now, it's a willful, repeated violation, and you can get fined up to $136,532.
Are you going to get fined $136,532 for lack of a Hazardous Chemical Inventory List or an overflowed sharps container? Probably not. Do you want to roll the dice on that? I wouldn't.
OSHA wants everyone to stay safe. That's their goal. The problem is: they see a lot of bad things happen. Remember that in the end, they care. They've seen the same violations in other instances really hurt someone. These OSHA Inspectors are carrying baggage, and they simply care. If the OSHA Inspectors care about something, you should too.
Most Common OSHA Violations
What are the most common OSHA violations we're seeing right now?
Do you see a trend? It's all about respirators!
COVID-19 is spread by aerosols. Respirators protect your employees from aerosols. New variants of COVID-19 are estimated to be more infectious than the original virus by 50% or more. The viral load is higher with these new COVID-19 aerosols.
Addressing Common Misconceptions
A Level III surgical mask with a face shield is not equivalent to an N95 or a KN95 respirator. No ifs, ands, or buts. A respirator is a respirator, masks are not. If you're using Level III masks and face shields near aerosol-generating procedures, you are rolling the dice as to whether or not you catch something. You're also leaving yourself wide open to fines from the TBSDE or OSHA.
Double-masking (wearing a Level III mask on top of a respirator) to conserve supplies of respirators is not NIOSH-approved. NIOSH is the National Institute of Occupational Safety and Health.
What does this mean? Whenever OSHA doesn't have a regulation about a particular item, they will refer to a regulatory body that does. Similarly to how they refer to the CDC recommendations, they refer to NIOSH recommendations. NIOSH especially comes into play with respirators. You can be penalized for not following NIOSH respirator recommendations.
Another reason that double-masking is not approved: your dental practice needs a Respiratory Protection Program because respirators make it harder to breathe. Double-masking makes it that much harder to breathe for your staff.
Here's the correct way to conserve your respirator supply: limited reuse. However, if you're in an area where you can find respirators, be aware:
- It's not as safe to keep reusing respirators due to cross-contamination. If you can get enough respirators to change in between each patient, you should do so.
- If OSHA comes into your practice, and you're reusing respirators, OSHA is going to want to know you made a good faith effort to acquire enough masks to change after each patient. They're probably going to want to see documentation.
If you're still in a position where you need to reuse respirators, limited reuse is a NIOSH-approved way to extend the life of them. However, if you're in a position where you can get enough to change after each patient, buy them. It's safer, and also protects you from OSHA fines.
Here's the approved limited reuse method:
- Obtain enough respirators for each respirator user to have one for each working day.
- For example, one user will wear one respirator for the entire day (for example, on Monday).
- At the end of the day Monday, the user doffs the respirator, places it in a paper sack labeled with their name and day of the week, and stores it.
- Users do the same thing with their respirators each day of the week.
- Next Monday, the respirator users will use their Monday respirator. On Tuesday, they'll use their Tuesday respirators. This way, there are 6 days in between using the respirator, giving the COVID-19 particles time to die.
This process may be repeated up to 5 times before the respirator must be discarded. However, your respirator manufacturer may state otherwise. Read your respirator Instructions for Use (IFU).
Lack of a Respiratory Protection Program
At least one location has been fined over $24,000 for not having a Respiratory Protection Program in place. We expect to see more of these violations as OSHA starts to crack down on noncompliance.
Before COVID-19, dental practices only had to have 3 Written Safety Programs. But because Texas practices are required by the TSBDE to wear respirators, you are also required to have an OSHA Respiratory Protection Program. This is the 4th mandatory OSHA Written Program you need to have.
We went from no dental practices needing a Respiratory Protection Program, and practically overnight, suddenly all dental practices needed a Respiratory Protection Program. OSHA may have cut dental practices some slack before, but at this point, if you try to claim ignorance, OSHA will wonder what land you're from.
Who is required to have a Respiratory Protection Program?
Any entity with employees who are either required or who choose to wear a respirator voluntarily must have a Respiratory Protection Program.
You don't need to provide voluntary respirator users with a fit test. However, you do need to provide required users with a fit test. Respirator fit tests are still required. Temporarily, OSHA has rescinded the annual fit test requirement. Initial fit tests are still required. Initial fit tests must be conducted before the respirator user wears their respirator for the first time.
In terms of medical evaluations, you need to provide all your respirator users (required or mandatory) with one.
N95s are harder to find due to the public purchasing them. What are your thoughts on that?
Go for a KN95. Typically they're less competitive and have more in stock. Anecdotally, they work just as well.
What are the components of the Respiratory Protection Program?
- Program administrator
- Written Respiratory Protection Program
- Training for all employees in the program
- Medical evaluations for all personnel who will be wearing a respirator, no matter whether they’re wearing them on a required or voluntary basis
- Fit tests for all personnel who are required to wear a respirator
What if an employee fails their medical evaluation?
If an employee fails their medical evaluation, they can't wear a respirator. We're talking about safety. If they can't wear a respirator, they can't be within 6 feet of an aerosol-generating procedure. There's no wiggle room here. If your employee fails the medical evaluation, they may have to do non-clinical work until this virus passes over.
If you're allowing your employee to wear a respirator, or if you're allowing them to be within 6 feet of an aerosol generating procedure, you're putting your employee at risk. You're also putting your practice at risk for fines.
What if an employee fails a fit test?
Most employees won't fail a fit test, unless they have facial hair or scars. Sometimes face size can effect it a bit.
We had a client that sent her employee to be fit tested, and the employee failed with 5 different respirators. We told her that she needs to go to a different Occupational Health Clinic to receive a new fit test, because something wasn't right at the one she was going to.
Where can I send my employees to be fit tested?
You've got 3 options.
- You can fit test your employees yourself. You need a Fit Test Kit for that. Most of your dental supply companies will have them. They run anywhere from $150 to $500. You can usually perform 50-60 fit tests before you need to get more bitter or sweet solutions. The fit test kit can save you money.
- Send your employees out to an Occupational Health Clinic. Google "Occupational Health Clinic" and you'll probably have 10 or 15 options. Most of them don't require an appointment. They'll charge you anywhere from $90 to $120 per person for a fit test. Do your medical evaluations before you go in, and tell the Occupational Health Clinic staff that you've already performed the medical evaluations. Otherwise, the Occupational Health Clinic will perform the evaluations and charge you an extra $20 to $30 per person.
- There is a third option, but it's challenging. You can create your own Fit Test Kit. It's not going to be free. OSHA has guidelines as to how to create and conduct fit tests.
How do I know if an N95 is NIOSH-approved? There is confusion around N95 being equivalent to Level III masks.
If a product you're looking at talks about an N95 and a Level III mask in the same sentence, I would run.
When you're looking for N95s, just make sure it's NIOSH-approved.
Counterfeiting is a huge fine for the supplier. To make sure, go to the product's website or the CDC's website, and you'll see a picture of what the respirator or the package looks like. You'll be able to see if the N95 or KN95 is approved from the country it's coming out of.
If you have more questions about this, you are welcome to get in contact with us.
If we switch N95 brands, do we have to redo fit testing?
The short answer: yes. If you switch to a different brand or a different style, you're supposed to redo the respirator fit test.
From a practical standpoint though, off the record, you probably are safe if you have everything else in place.
But I would just try to stay with the original supplier of N95s.
The easiest way to get your Respiratory Protection Program
We've been dealing with Respiratory Protection Programs for over 20 years with our industrial clients. We've boiled the Respiratory Protection Program down to the bare essence, to what was required for dental practices. We created the first Respiratory Protection Program for dental practices in the United States.
Our Program is very simple to administer, so that you are perfectly compliant, keeping your employees safe. We also help you with all your other compliance.
Our programs that feature the OSHA Respiratory Protection Program are Dental Platinum+ and Dental Essentials clients. Request a demonstration to speak with a Smart Training Compliance Adviser.