Small Business Forum Questions: H1N1 Influenza Preparedness

Respirators:
1. Are workers who wear N95 Respirators required to receive fit tests and medical evaluations as they normally would during the flu season or during a pandemic?
  Answer: If an employer requires a worker to wear a respirator to do his/her job, then the worker must be fit tested and medically evaluated prior to its use and periodically thereafter in accord with OSHA's Respiratory Protection Standard. Respirators must be used in the context of a comprehensive respiratory protection program, (see OSHA standard 29 CFR 1910.134 or OSHA's home page) which includes:
  - Selection
  - Medical evaluation
  - Fit testing
  - Proper use
  - Maintenance and care
  - Training
  - Written program
  - Program evaluation
2. Are employers required to have a respiratory protection program?
  Answer: If an employer requires a worker to wear a respirator to do his/her job, then the employer must have a comprehensive, written respiratory protection program that meets the requirements of 29 CFR 1910.134(c). Please see the list in question 1.
3. Are healthcare workers who perform high-risk procedures required to use respiratory protection during the tasks that expose them to greater risk of being infected?
  Answer: The Centers for Disease Control and Prevention (CDC) recommends and OSHA requires the use of a fit-tested N95 disposable respirator or better for healthcare personnel whose job duties require them to be in close contact (within 6 feet or entering into a small enclosed airspace (e.g., average patient room) with confirmed or suspected 2009 H1N1 flu patients and for personnel performing high-risk aerosol-generating procedures on such patients.
  
  Please see OSHA's compliance directive regarding enforcement procedures for high to very high occupational exposure risk to 2009 H1N1 influenza: CPL-02-02-075 - Enforcement Procedures for High to Very High Occupational Exposure Risk to 2009 H1N1 Influenza (PDF^*). OSHA requires employers to provide a fit-tested N95 disposable respirator or better to protect workers performing these types of tasks (i.e., high and very high exposure risk tasks). OSHA also expects that healthcare employers will implement a combination of workplace controls and work practices beyond just the use of respirators.
  
  For additional information, see OSHA's Fact Sheet, Healthcare Workplaces Classified as Very High or High Exposure Risk for Pandemic Influenza and booklet Pandemic Influenza Preparedness and Response Guidance for Healthcare Workers and Healthcare Employers.
4. Will hospitals be cited if they tried to get respirators and they were not available (since most are manufactured outside of the U.S.)?
  Answer: Where respirators are not commercially available, an employer will be considered to be in compliance if the employer can show that a good faith effort has been made to acquire respirators. The employer will also need to implement a hierarchy of controls such as feasible engineering controls, administrative controls, and the use, as appropriate, of other personal protective equipment, such as gloves and facemasks to protect workers while providing close-contact care. Engineering and administrative controls include: (1.) Taking steps to eliminate the hazard when feasible (e.g., postponing elective procedures for persons with suspected or confirmed influenza); (2.) Using engineering controls to eliminate or reduce exposure (e.g., use airborne infection isolation rooms [AIIR] for very high exposure risk procedures); (3.) Using administrative controls (e.g., provide and promote vaccination at no cost to workers); (4.) Using work practices (e.g., promote hand hygiene and cough etiquette); and (5.) Providing and ensuring the use of personal protective equipment, including respiratory protection, and provide proper training to affected workers).
Response to worker complaints:
1. How will OSHA address worker complaints regarding H1N1 Influenza exposure?
  Answer: OSHA will follow the standard procedures for handling complaints and referrals. See OSHA Field Operations Manual (FOM) (OSHA Instruction CPL 02-00-160). Complaint and Referral Processing where it states when it is determined that a complaint meets the criteria for a formal complaint, or a referral is generated from one of the sources identified in the FOM as a Referral agency, an onsite inspection shall be initiated. Where the inspection criteria for formal complaints and referrals are not met, non-formal complaint procedures shall be followed.
  
  If an on-site inspection is initiated, OSHA Inspectors will ensure that healthcare employers implement a hierarchy of controls (e.g., source controls, engineering and administrative controls and personal protective equipment), encourage vaccination, and other work practices recommended by the Centers for Disease Control and Prevention (CDC). Where respirators are required to be used, the OSHA Respiratory Protection standard must be followed. See 29 CFR 1910.134.
2. How will OSHA classify complaints (re: determination of "serious hazard" or a letter response)?
  Answer: OSHA will follow the standard procedure for handling complaints and referrals. The procedure is set forth in OSHA's Field Operations Manual (FOM), Chapter 9, Complaint and Referral Processing and OSHA's compliance directive regarding enforcement procedures for high to very high occupational exposure risk to 2009 H1N1 influenza: CPL-02-02-075 - Enforcement Procedures for High to Very High Occupational Exposure Risk to 2009 H1N1 Influenza (PDF^*). Please see the answer to B-1 above.
Requirements for a Written Plan:
1. CDC emphasizes the importance of employers having a written plan for H1N1. Will there be any requirements imposed for a written plan?
  Answer: Like CDC, OSHA recommends that employers develop a disaster plan that includes pandemic preparedness (see OSHA's guidance document Guidance on Preparing Workplaces for an Influenza Pandemic (PDF^*). OSHA requires employers to conduct a hazard assessment and determine if personal protective equipment (PPE) is necessary. This requirement is identified in 29 CFR 1910.132(d) and must be verified through a written certification as noted in (d)(2). And, where respirators are required, OSHA requires employers to have a written program that covers all of the elements identified in the Respiratory Protection Standard, 29 CFR 1910.134, paragraph (c).
Communications/Response to H1NI:
1. Once a pandemic begins, should employers mandate alternative work schedules or arrangements or promote social distancing?
  Answer: At present, the U.S. Department of Health and Human Services (HHS)/Centers for Disease Control and Prevention (CDC) and OSHA are not recommending that employers mandate the use of alternative work schedules or social distancing for 2009 H1N1 flu. However, both HHS/CDC and OSHA recommend that employers plan how they would use social distancing and scheduling flexibilities in the workplace so that both could be implemented quickly if the severity of the 2009 H1N1 flu increases. The decision about when and to what extent these types of precautions should be used generally will be based on the characteristics of the virus circulating at the time. OSHA's experience with 2009 H1N1 flu has indicated that many employers were not prepared and did not have plans in place to address an influenza pandemic. Because of this, it is important that employers plan now for the worst case - a severe pandemic with high mortality and high absenteeism - and then scale the implementation of the plan during a pandemic according to the specific situation.
2. When communicating with workers, are there restrictions on the type of information that may be shared?
  Answer: The Department of Labor (DOL) developed responses to common workplace questions and posted the information on Flu.gov. The following response is from the Q&As on that website:
  
  "Keep in mind that you may not be familiar with all of your individual employees' personal circumstances and that on occasion, sharing private contact information or other personal information among employees may be objectionable for any number of legitimate reasons. In certain instances, under federal equal employment opportunity law, employers may be liable for workplace harassment.
  
  We strongly encourage you to limit the information collected to only that which is necessary, and limit the individuals with whom the information is shared, unless you have the consent of your employees. The Americans with Disabilities Act (ADA) allows employers to share employees' otherwise confidential medical information in limited circumstances. One of these exceptions allows an employer to disclose an employee's medical information to her supervisor(s) and/or manager(s) where necessary to meet an employee's work restrictions.
  
  In the event of an influenza pandemic, an employer may alert a supervisor of an employee's pandemic illness so that the supervisor can implement necessary work restrictions for public health and safety reasons. (See the U.S. Equal Employment Opportunity Commission's publication, The ADA: A Primer for Small Business, pp. 10-11, for additional information.)
  
  For additional information on privacy issues related to pandemic influenza, see Flu FAQ Results for: sick employee, privacy."
3. May employers mandate that workers stay home if they are known or suspected to have been exposed to H1N1?
  Answer: The Department of Labor (DOL) developed responses to common workplace questions and posted the information on Flu.gov. The following response is from the Q&As on that website:
  
  "It is important to prepare a plan of action specific to your workplace, given that a pandemic influenza outbreak could affect many employees. This plan or policy could permit you to send employees home, but the plan and the employment decisions must comply with the laws prohibiting discrimination in the workplace on the basis of race, sex, age (40 and over), color, religion, national origin, disability, or veteran status. It would also be prudent to notify employees (and if applicable, their bargaining unit representatives) about decisions made under this plan or policy at the earliest feasible time.
  
  Your company policies on sick leave, and any applicable employment contracts or collective bargaining agreements would determine whether you should provide paid leave to employees who are not at work. If the leave qualifies as Family and Medical Leave Act protected leave, the statute allows the employee to elect or the employer to require the substitution of paid sick and paid vacation/personal leave in some circumstances. (See the U.S. Department of Labor, Employment Standards Administration's Wage and Hour Division for additional information or call 1-866-487-9243 if you have any questions.)
  
  Remember when making these decisions to exclude employees from the workplace, you cannot discriminate on the basis of race, sex, age (40 and over), color, religion, national origin, disability, union membership or veteran status. However, you may exclude an employee with a disability from the workplace if you:
  - obtain objective evidence that the employee poses a direct threat (i.e., significant risk of substantial harm); and
  - determine that there is no available reasonable accommodation (that would not pose an undue hardship) to eliminate the direct threat.
  (See the U.S. Equal Employment Opportunity Commission's Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act for additional information.)"
4. Are there any job protections for working parents who may have to stay home if schools close?
  Answer: The Department of Labor (DOL) developed responses to common workplace questions and posted the information on Flu.gov. The following response is from the Q&As on that website:
  
  "Covered employers must abide by the Family and Medical Leave Act (FMLA) as well as any applicable state FMLA laws. An employee who is sick, or whose family members are sick, may be entitled to leave under the FMLA. The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month leave year for specified family and medical reasons which may include the flu where complications arise that create a "serious health condition" as defined by the FMLA.
  
  There is currently no federal law covering employees who take off from work to care for healthy children, and employers are not required by federal law to provide leave to employees caring for dependents that have been dismissed from school or child care. However, given the potential for significant illness under some pandemic influenza scenarios, employers should review their leave policies to consider providing increased flexibility to their employees and their families. Remember that federal law mandates that any flexible leave policies must be administered in a manner that does not discriminate against employees because of race, color, sex, national origin, religion, age (40 and over), disability, or veteran status."
Vaccines:
1. What are the quality control requirements in the production of vaccines to ensure that they are safe for patients?
  Answer: The Food and Drug Administration (FDA) establishes and enforces quality assurance procedures for all pharmaceutical manufacturing processes, including the manufacture of vaccines. In addition, new vaccine development requirements specify that the manufacturer demonstrate that the vaccine is able to produce the required immune response (demonstrated by antibody testing) and that its administration is without severe side effects. FDA's quality control efforts are complemented by multiple Centers for Disease Control and Prevention (CDC) programs to ensure that the vaccines are safe. The CDC's Immunization Safety Office (ISO) continuously monitors the benefits and risks of U.S. vaccines. The CDC, with the FDA, administers the Vaccine Adverse Event Reporting System (VAERS). The CDC collaborates with eight managed care organizations to collect vaccination data on more than 5.5 million people annually through the Vaccine Safety Datalink (VSD) Project and works with scientists from 71 countries to develop standardized case definitions and guidelines for vaccine adverse events (through the Brighton Collaboration). The CDC also collaborates with six academic centers to investigate pathophysiologic mechanisms and biologic risks of vaccine adverse events through the Clinical Immunity Safety Assessment (CISA) program. Please refer to the CDC website addressing questions of H1N1 vaccine safety and to the CDC Immunization Safety Office website for more detailed information on vaccine safety programs.
2. What is OSHA's position on employers requiring vaccinations as a precondition for employment?
  Answer: OSHA does not require employers to require vaccination as a precondition for employment.
Infection Control Practices:
1. During a pandemic, should an employer require its workers to adopt infection control practices?
  Answer: OSHA encourages employers to establish and implement policies that promote infection control based on public health best practices. OSHA's guidance for a severe influenza pandemic and its guidance for 2009 H1N1 flu includes basic hygiene precautions that all employers should use to reduce flu transmission in the workplace, including hand washing, cough etiquette, encouraging sick workers to stay home, keeping commonly touched surfaces clean, and vaccine promotion.
Recordkeeping:
1. What instances regarding H1N1 should be recorded on the OSHA 300 log by employers?
  Answer: Employers are responsible for recording cases of 2009 H1N1 illness if all of the following requirements are met: (1) the case is a confirmed case of 2009 H1N1 illness as defined by the Centers for Disease Control and Prevention (CDC); (2) the case is work relatedas defined by 1904.5; and (3) the case involves one or more of the recording criteria set forth in 1904.7 (e.g., medical treatment, days away from work). The work-related exception for the common cold or flu does not apply to these cases. See 29 CFR 1904.5.
Employees Without Sick Leave
1. What is the Federal government doing to aid workers who do not have sick leave? What are the states doing?
  Answer: The U.S. Department of Labor (DOL) and other federal agencies are currently reviewing federal statutes and regulations that may affect employers and employees during the unique circumstance where the U.S. experiences a severe influenza pandemic. Decisions have not yet been made as to whether any changes are needed. Answers to questions such as this one are based on current laws and regulations.
  
  DOL developed responses to common workplace questions and posted the information on Flu.gov. The following response is from the Q&As on that website:
  
  An employee who is sick or whose family members are sick may be entitled to leave under the Family and Medical Leave Act (FMLA) under certain circumstances. The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave in a designated 12-month leave year for specified family and medical reasons which may include the flu where complications arise that create a "serious health condition" as defined by the FMLA. Employees on FMLA leave are entitled to the continuation of group health insurance coverage under the same conditions as coverage would have been provided if the employee had been continuously employed during the leave period.
  
  Workers who are ill with pandemic influenza or have a family member with influenza are urged to stay home to minimize the spread of the pandemic. Employers are encouraged to support these and other community mitigation strategies and should consider flexible leave policies for their employees. (See Community Planning - Flu.gov.)