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Department: On the Horizon

Seeking PPE protection

Is the law on your side?

Jones, Melinda Mitchell MSN, JD, RN; Kearney, Kathleen M. JD, MSN, RN; Edwards, Carrie PhD, RN, AFN-BC, CA/CP SANE

Author Information
doi: 10.1097/01.NME.0000717676.72485.a2
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Celia Marcos rushed into the California hospital room of a patient with COVID-19 who had gone into cardiac arrest. With personal protective equipment (PPE) limited to a surgical mask, she began administering CPR. As a charge nurse on this medical-surgical floor, it wasn't only Celia's duty to intervene, but also her personal mission to save lives. Fourteen days later, Celia lost her life to COVID-19 in the very hospital where she had practiced for 16 years.

Kious Jordan Kelly was a nursing manager in New York City—an epicenter for the COVID-19 outbreak in Spring 2020. Photos were posted on social media showing his fellow hospital workers wearing black trash bags rather than approved PPE. The last text he sent to his sister said, “Can't talk because I choke and can't breathe, I love you. Going back to sleep.” Kious, who also had asthma, died of COVID-19 on March 24, 2020.

There are no firm numbers of nurses, physicians, respiratory therapists, and other healthcare workers who've been infected on the job by COVID-19 in the US. Although the Occupational Health and Safety Administration (OSHA) requires employers to report workplace exposures, the criteria for a reportable exposure are narrow. These criteria include a lab confirmed case, a clear connection to a workplace exposure, the illness has resulted in days away from work or death, and a definite diagnosis has been obtained by a physician or approved provider.

In April 2020, Newsweek reported 200 physicians and nurses had died of COVID-19 worldwide. Reuters News Service reported in May that over 90,000 nurses have been infected with COVID-19. The head of the International Council of Nurses, Howard Catton, believes that number to be an underestimate because not every country has reported infections of nurses. Catton, noting in May that 3.5 million cases of COVID-19 had been reported worldwide, said, “If the average health worker infection rate, about 6% we think, is applied to that, the figure globally could be more than 200,000 health worker infections.” If we apply Catton's projected infection rate of 6% to the 5.9 million cases in the US reported by the CDC as of August 31, 2020, a projected 354,000 US healthcare workers have been infected by the coronavirus.

In the face of a PPE shortage, the CDC has developed modified PPE recommendations, “allowing [healthcare professionals] to extend use of respirators, facemasks, and eye protection beyond a single patient contact.” Many believe that it's the shortage of PPE and relaxed infection control protocols that have led to the spread of the virus to nurses.

This article discusses legal protections that may be available to nurses when seeking greater availability of PPE.

Lessons learned from Ebola

COVID-19 wasn't the first, and likely won't be the last, pandemic to reach the US. The 2014 to 2016 Ebola outbreak exposed gaps in the availability and utilization of PPE by healthcare workers. In 2015, the CDC expanded research and innovation funding grants to address these gaps and facilitate improvements in PPE protocols. Following the aftermath of the Ebola crisis and results of the CDC's research, it became apparent that future efforts to optimize the use of PPE needed to include increased adherence to protocols for PPE use; improved PPE design; and further research into risks, benefits, and best practices.

Before the COVID-19 pandemic, most hospitals averaged a 30-day supply of PPE. Once COVID-19 reached US hospitals, PPE inventory only covered 7 to 12 days, according to the Washington State Hospital Association. The global COVID-19 outbreak exposed a glaring weakness in the supply chain from overseas manufacturers to commercial warehouses and then on to hospital central supply rooms. This commercial disruption in the production and availability of PPE worldwide changed the way nurses protected themselves and their patients and has challenged government entities to identify alternate strategies for protection.

Federal labor protections

OSHA published standards effective Spring 2020 on the availability of PPE to protect workers from COVID-19. These standards “require using gloves, eye and face protection, and respiratory protection when job hazards warrant it.” OSHA standards also state that when contaminated air is a factor, the employer should make respirators available to employees when breathing contaminated air poses a risk to their health and to do this in conjunction with establishing a respiratory protection program. Respirators are defined by OSHA as “a device worn over the nose and mouth to protect the wearer from hazardous materials.”

OSHA has allowed for some flexibility in enforcement of this definition with the onset of COVID-19 to include adoption of engineered solutions, such as installing physical barriers like plexiglass, creating negative-pressure zones, and using high-efficiency air filters. Additionally, administrative adjustments to provide worker protection include minimizing contact between personnel, providing up-to-date PPE training, and adopting an emergency communication program.

Many states have approved separate guidelines from those published by OSHA. These “OSHA-approved state plans” are generally considered more stringent than OSHA's standards. To identify if your state has separate approved plans, go to www.osha.gov/stateplans.

For nurses with health conditions that make them more susceptible to contracting or becoming severely ill from COVID-19, requesting accommodations through the Americans with Disabilities Act (ADA) may provide statutory protection. According to the CDC, those at high risk for severe illness from COVID-19 include anyone with chronic lung disease, moderate-to-severe asthma, a serious heart condition, severe obesity, diabetes, chronic kidney disease, liver disease, and/or an immunocompromising condition, as well as those undergoing dialysis or anyone age 65 and older.

A request for reasonable accommodations under the ADA may “offer protection to an individual whose disability puts [them] at greater risk from COVID-19 and who, therefore, requests such actions to eliminate possible exposure.” The Equal Employment Opportunity Commission (EEOC) has also indicated that an “employee who was already receiving a reasonable accommodation prior to the COVID-19 pandemic may be entitled to an additional or altered accommodation, absent undue hardship [on the employer].” Undue hardship is defined by the statute as creating a “significant difficulty or expense” for the employer, and it's possible that “an accommodation that would not have posed an undue hardship prior to the pandemic may pose one now.”

With that said, healthcare employers will be hard-pressed to argue that providing adequate PPE for clinical nurses, especially those caring for patients with COVID-19, creates an undue hardship. But nurses must keep in mind that “if the employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action.” Therefore, nurses with underlying medical conditions that may put them at higher risk for severe illness from COVID-19 must notify their employers they have “a medical condition that necessitates a change to meet a medical need.” The employer may then “ask questions or seek medical documentation to help decide if the individual has a disability and if there is a reasonable accommodation, barring undue hardship, that can be provided.”

Before speaking with an employer to seek ADA accommodations, it may be helpful for the nurse to discuss any underlying medical conditions and the likelihood of increased risk of illness with his or her primary care provider.

Safe harbor laws

In Texas and New Mexico, nursing safe harbor peer review laws were enacted before the COVID-19 pandemic. Safe harbor provisions allow nurses to object in good faith to unsafe assignments while continuing to provide nursing care to patients without risking potential disciplinary action by the licensing board, an accusation of patient abandonment, or employer retaliation. If nurses practicing in Texas and New Mexico are asked to practice without adequate PPE, they may be able to seek protection through safe harbor peer review. In these two states, safe harbor is available when a licensed nurse is asked to accept an unsafe assignment, engage in conduct beyond the nurse's scope of practice, engage in unprofessional conduct, or engage in illegal conduct.

In Texas, if a nurse can't immediately complete the paperwork necessary to invoke safe harbor because of urgent patient care needs, then he or she may verbally invoke safe harbor by notifying the appropriate supervisor. The nurse or nurse's supervisor must then immediately complete a written Safe Harbor Quick Request Form, which must be signed by both the nurse and the nurse's supervisor. Before the end of the shift, the nurse must submit a Comprehensive Written Request for Safe Harbor Nursing Peer Review Form with detailed information about the situation. Following the submission of the paperwork, a formal peer review must be conducted within 14 days of the nurse's invocation of safe harbor to determine whether the assignment or situation was inappropriate. Use of the forms developed by the Texas Board of Nursing isn't required, but the same information must be provided in whatever written format is used.

In New Mexico, although the nurse and nurse's supervisor must document the details of the situation leading to the nurse invoking safe harbor, and the facility must review the situation, there's no form to complete or formal peer review process.

The essential core driving the use of safe harbor is patient safety and quality of care. If considering safe harbor protections as a method for securing additional PPE, the nurse will need to be able to articulate how the unavailability of PPE poses a risk to patients. Protecting a nurse from disciplinary action or retaliation is secondary.

Future preparedness

The first known COVID-19 patient in the US was admitted to Providence Regional Medical Center Everett in Washington State on January 20, 2020. Since then, the impact of the pandemic has resulted in an excess of 182,622 deaths in the US as of the end of August 2020. There are nonprofit organizations emerging to help supply PPE to healthcare workers. Mask Match, founded by nurse Liz Klinger, matches mask donors to those requesting masks. The organization has delivered over 800,000 masks to an excess of 7,000 recipients in every state in the US, as well as Puerto Rico and Washington, D.C., and some areas of Canada. Another group, GetUsPPE.org, is a coalition of professional and corporate partners seeking to connect donors who have PPE with organizations and individuals seeking PPE supplies.

Nurses providing care to patients with COVID-19 or any infectious disease should expect their employers to provide appropriate PPE for employees. As infectious diseases can and will continue to emerge globally, there's much that the healthcare system, commerce, and government agencies must do to be prepared going forward. For nurses at the front lines, having knowledge of laws crafted to protect workers will ensure that they're informed advocates for PPE at the planning table.

on the web

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CDC:www.cdc.gov/coronavirus/2019-ncov

EEOC:www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

New Mexico Safe Harbor:https://legiscan.com/NM/text/SB82/2019

OSHA:www.osha.gov/SLTC/covid-19/standards.html

Texas Safe Harbor:www.bon.texas.gov/forms_safe_harbor.asp

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