New PPE requirements for some CA health care employers

Happy new year!

California is ringing in 2021 with some new requirements related to personal protective equipment for certain health care employers.

Due to shortages during the early days of the COVID-19 pandemic, two new bills were approved in September to help prevent a reoccurrence. These laws require covered health care employers to maintain stockpiles of certain supplies and to implement procedures relating to those supplies. The ultimate goal of the PPE laws is to ensure and provide a “safe and healthful” place of employment for health care and essential workers. 

Some of these changes will go into effect tomorrow, while others will go into effect later, as described below. 

PPE inventory and reporting for acute care hospitals (AB 2537)

Assembly Bill No. 2537 adds Section 6403.3 to the Labor Code and expands the existing responsibility of general acute care hospitals (as defined in Section 1250 of the Health and Safety Code) to provide a “safe and healthful” place of employment for its employees by requiring them to

  • Supply PPE to employees who provide or support direct care or services to patients, and ensure they properly use it.
  • Maintain a three-month inventory of certain equipment starting April 1, 2021 (think N95 filtering facepiece respirators, other air-purifying respirators, and other protective gear).
  • Maintain a three-month inventory of the required equipment for any other employer that provides health care services within the acute care hospital facility.
  • Establish and implement effective written procedures for determining the quantity and types of equipment normally used.

Covered providers must also provide an inventory of their stockpile and procedures to the Division of Occupational Safety and Health upon request.  And, if requested, they must be prepared to report to the Department of Industrial Relations, under penalty of perjury, by January 15, 2021, their highest seven-day consecutive daily average consumption of PPE during the 2019 calendar year.  (If the employer is a state hospital, it must provide the inventory to the DOSH).  

Unless there are supply chain limitations beyond the employer’s control, failure to comply with Section 6403.3 may result in a civil penalty of up to $25,000 for each violation.

Although the inventory and reporting requirements take effect a little later, AB 2537 will go into effect starting tomorrow.

But wait, there’s more (SB 275) 

Senate Bill No. 275 adds Section 6403.1 to the Labor Code and Section 131021 to the Health and Safety Code. Both directly and indirectly impose future PPE obligations upon general acute care hospitals, health facilities, and medical practices that are integrated into a health system or health facility (as defined under Section 1250 of the Health and Safety Code). These provisions, which take effect tomorrow, do not apply to independent medical practices. 

State to develop PPE stockpile regulations - Health and Safety Code Section 131021

Effective tomorrow, the State Department of Public Health and the Office of Emergency Services are required to establish regulations regarding the state’s “PPE Stockpile,” and more specifically its “procurement, management, and distribution of PPE” for “all health care workers and essential workers” “during a 90-day pandemic or other health emergency.” 

Section 131021 also establishes the “Personal Protective Equipment Advisory Committee,” which will make recommendations to assist in developing the above guidelines. Although there is no immediate call to action for health care employers under this provision, it is worth watching because it will affect the development of future guidelines. 

PPE inventory and reporting for health care employers - Labor Code Section 6403.1 

Section 6403.1 generally mandates that health care employers maintain an inventory of new, unused, not previously worn, and unexpired PPE in the event of a Governor-declared state of emergency, local emergency, pandemic, or other health emergency. Failure to maintain the required inventory may result in the assessment of a civil penalty of up to $25,000 for each violation. 

Once the PPE Inventory regulations are established, covered health care employers are required to maintain an inventory of PPE sufficient for 45 days of patient surge consumption, effective the later of January 1, 2023, or one year after the adoption of specified regulations. The State Department of Public Health will set the amount and types of PPE that must be maintained.

Moreover, if requested, the covered health care employer must provide its PPE inventory to the Division of Occupational Safety and Health. Failure to do so may also lead to an assessment of a civil penalty of up to $25,000 for each violation. However, this provision does not apply where a health care employer provides services in a facility or setting owned by another health care employer. In that event, the "owner" is responsible for maintaining the appropriate PPE inventory.

Health care employers with 25 or fewer employees may apply for a waiver for some or all of the PPE inventory requirements by contacting the Department of Industrial Relations. Exceptions may also apply to the assessment of the civil penalty. For example, exceptions could apply if supply chain limitations are infeasible or prevent a health care employer from satisfying its PPE inventory obligations, or if the PPE inventory dips below mandatory levels due to a Governor-declared state of emergency, local emergency, pandemic, or other health emergency. 

Next steps for covered California health care employers

Because civil penalties for noncompliance are significant, covered health care employers should update or establish policies and procedures governing PPE for health care workers and essential workers. These should cover, among other things, the proper use of PPE, PPE inventory and storage, restocking, distribution, accessibility, and inventory for health care employers working within another health care employer’s facility. Covered employers should periodically determine the quantity and types of PPE or equipment normally used, and assess their PPE supply chain shortages and limitations. Finally, covered employers should be prepared to respond promptly (and under oath) to requests for PPE inventory and practices from federal, state, or local agencies.

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