OSHA READIES DIRECTIVE ON H1N1

As concern deepens in the country over the spread of the H1N1 virus, OSHA is moving with dispatch to issue a compliance directive aimed at ensuring healthcare workers and emergency responders receive necessary and appropriate protections.

The agency said Oct. 14 that the directive would outline uniform procedures when it conducts inspections of workplace deemed to be high to very high risk for occupational exposures to the 2009 H1N1 influenza A virus.

Healthcare employers such as hospitals, nursing homes, personal care facilities and other businesses should prepare for a relatively quick receipt of the directive. Usually when a federal agency takes the step of announcing that a directive is imminent, it means the document likely has been formulated and is undergoing through final internal reviews.

Not a Standard
An OSHA compliance directive is not a legal standard that compels employers to adhere to certain workplace rules, but nonetheless carries considerable weight within the agency. In effect, compliance directives offer guidance to employers on how the agency expects them to tackle a particular workplace issue. OSHA said its H1N1 directive will follow closely interim guidance already released by the Centers for Disease Control and Prevention.

A key component of the directive will be to incorporate the use of Hazard Alert Letters, according to OSHA’s announcement. Hazard Alert Letters will give the agency a greater measure of control to push for additional protections at a workplace where no formal violations of OSHA standards have been found following an inspection.

OSHA uses Hazard Alert Letters as a regular function of its enforcement activity, particularly in ergonomics compliance. The letter will advise the employer to report any controls it may have implemented to address hazards, particularly those recommended by inspectors. Clearly, employers are wise to be proactive in reporting back to OSHA so they do not expose themselves to a General Duty Clause violation, the catchall provision in the Occupational Safety and Health Act that allows the agency to act when there is no specific standard.

Labor Unions Urged Action

In May, shortly after Jordan Barab was named acting OSHA administrator, Peg Seminario, the AFL-CIO safety and health director, wrote to Barab on behalf of several labor union requesting that OSHA "immediately issue a hazard alert and/or compliance directive that makes it clear that exposure to the H1N1 virus in health and emergency response settings poses a recognized hazard to workers and requires protective measures." The unions were concerned that many states and workplaces were not following these CDC guidelines on H1N1, Seminario wrote.

Respiratory protection will be at the core of the directive. In inspecting healthcare facilities, OSHA said employers will need to implement what it call a "hierarchy of controls," including encouraging workers to receive H1N1 vaccinations. Respiratory protection is another one of those controls, and OSHA expects employers to adhere to its respiratory protection standard, which covers protocols such as training and fit testing. CDC guidelines recommend respirator use when healthcare are within 6 feet of H1N1 patients.

Workers' Objections

OSHA and other federal agencies clearly will be challenged with H1N1 enforcement. While few doubt the potential seriousness of the virus, some healthcare workers have objected to having to submit to mandatory seasonal flu and H1N1 vaccinations. And some parents are balking at having their young children vaccinated.

In New York, for instance, healthcare workers are required to be vaccinated against the virus by Nov. 30 or face the potential of losing their jobs. But many are balking, worried that vaccinations may not be safe, and see mandatory vaccination as an invasion of privacy or infringement of religious principles. A judge Oct. 16 issued a temporary injunction halting implementation of the order.

Additionally, a poll released Oct. 8 by the Associated Press reported that more than a third of parents surveyed said they do not want their children vaccinated. The survey cited parents as saying they were about side effects from the new H1N1vaccine, believing it is untested.

More: CDC guidelines on H1N1, AFL-CIO letter, New York State mandatory vaccination requirements