Practice Tip of the Week | The Law on PPE

By Melinda Mitchell Jones, MSN, JD, RN, Kathleen Kearney, MSN, JD, RN, CNE, and Carrie Edwards, PhD, RN, CA/CP SANE, AFN-BC

There have been many reported incidents of shortages of personal protective equipment around the country. The lack of PPE poses a risk for nurses at the bedside and begs the question: What laws might help nurses obtain the PPE they need to be safe?

Employer Responsibilities

When thinking about worker safety, the Occupational Health and Safety Administration is the first place to start. OSHA provides guidelines to protect workers against COVID-19. OSHA standards state that when contaminated air possesses a risk to employee health the employer should provide respirators to employees and establish a respiratory protection program. Respirators are defined by OSHA as “a devise worn over the nose and mouth to protect the wearer from hazardous materials. Respirators must be certified by [the National Institute for Occupational Safety and Health] for the purpose for which they are used.”

With COVID-19, employers have some flexibility in the respirator standard to include adoption of “engineered solutions, ” such as setting up physical barriers, creating negative pressure zones and installing high-efficiency air filters. Additional environmental adjustments could include minimizing contact between personnel, providing up-to-date PPE training and adopting an emergency communications program.

In addition to OSHA, Centers for Disease Control and Prevention standards also apply.The CDC has modified PPE recommendations since COVID’s arrival by “allowing [health care professionals] to extend use of respirators, facemasks and eye protection, beyond a single patient contact.”(TNA is fighting for nurses who contract COVID-19. Read about HB 396 by Rep. Joe Moody, which would create a presumption that nurses who contracted COVID-19 did so in the scope of their employment.)

Federal Labor Protections

The American with Disabilities Act might provide protections for nurses with health conditions that could make them more susceptible to contracting or becoming severely ill from COVID-19, such as those with chronic lung or heart conditions, those who are immunocompromised or anyone 65 years or older.

The Equal Employment Opportunity Commission indicates that an employee who is receiving a reasonable accommodation prior to COVID-19 may be entitled to additional or altered accommodations if undue hardship — defined by statute as creating a “significant difficulty or expense” — is not created for the employer. EEOC recognizes an accommodation considered reasonable before COVID-19 may posed an undue hardship with the arrival of COVID-19.

The ADA is clear that if an employee does not request an accommodation though, the employer is not required to act. Therefore, nurses with underlying medical conditions that increase their risk for severe illness from COVID-19 should notify their employers and request accommodations. The employer can seek medical documentation about the condition and ask the employee questions to determine what or if an accommodation can be provided, barring undue hardship.

State Safe Harbor Peer Review

In Texas, nursing safe harbor peer review allows nurses to object to an unsafe assignment, or one that would cause them to engage in conduct beyond the nurse’s scope of practice, unprofessional conduct or illegal conduct. Nurses have an ethical and legal duty to protect the patient, and they also have an ethical duty to protect themselves. However, invoking the legal protection of safe harbor due to PPE shortage must happen in terms of protecting the patient’s safety, rather than the nurse’s safety. If safe harbor is invoked in good faith, safe harbor shields the nurse from potential disciplinary action by the licensing board or employer retaliation; although the nurse may still need to take a patient assignment to avoid claims of patient abandonment.

If a nurse cannot immediately complete the paperwork necessary to invoke safe harbor because of urgent patient care needs, the nurse may verbally invoke safe harbor by notifying the appropriate supervisor. The nurse or supervisor must immediately complete a written Safe Harbor Quick Request Form, which must be signed by both the nurse and the nurse's supervisor. Then, before the end of that shift, the nurse must submit a Comprehensive Written Request for Safe Harbor Nursing Peer Review Form with detailed information about the situation.

Within 14 days, a formal peer review must be conducted of the nurse’s invocation of safe harbor to determine whether the assignment or situation was or was not appropriate. Use of the forms developed by the Texas Board of Nursing is not required, but the same information must be provided in whatever written format is used.

It is important to remember that the essential element driving the use of safe harbor is patient safety and quality of care . So, when considering safe harbor protections as a method for securing additional PPE, the nurse will need to articulate how the unavailability of PPE poses a risk to patients, not concerns for personal safety.

Additional Options

Some organizations have stepped forward to supply PPE to health care workers. Mask Match was founded by Nurse Liz Klinger and has delivered over 800,000 masks to over 7,000 recipients in every US state, as well as Puerto Rico, Washington, D.C., and some areas of Canada. Another organization, GetUsPPE, is a coalition of professional and corporate partners that connects donors to organizations and individuals seeking PPE supplies. If employees desire to use donated PPE in the workplace they should first seek approval from their employers.

As infectious diseases can and will continue to emerge globally there is much the health care system, commerce and government agencies must do to be prepared going forward. For the nurses at the front lines having knowledge of laws crafted to protect workers from contagious diseases will ensure the nurse is an informed advocate.

Resources

Legal Protections for Nurses: Safe Harbor Nursing Peer Review
Safe Harbor – A Positive Outlook
Safe Harbor and Resilience - What Nurses Need to Know About COVID-19
Handling COVID-19 Assignments