California Has a Rule to Protect Workers Against Pandemics. Here’s How It’s (Not) Working

KQED Science News

A nation-leading workplace safety rule specifically designed to combat the risks of an airborne virus should have been protecting hundreds of thousands of California workers from COVID-19. The Aerosol Transmissible Diseases Standard took effect 12 years ago — and it anticipated a pandemic. But one year into the pandemic, workers say enforcement is mixed, and problems continue. Regulators at Cal/OSHA have issued more citations on this rule in the last five months than they did in the previous five years.

Hundreds of Thousands of Workers

This rule applies to hospitals and nursing homes, to home health workers and coroners, to jails and ambulance companies: any place where an airborne disease would be expected to appear to catch, hold and spread widely. Employers must have annual training and written plans for exposure. They have to identify activities at work that are high hazard and figure out ways to minimize the risk. They have to have respiratory protection equipment, not just N95s, but sometimes powered air-purifying respirator hoods, called PAPR hoods.

Employees are entitled to medical services like vaccinations and evaluations after someone’s been exposed. And if they get sent home for getting sick on the job, they’re entitled to sick pay.

To be clear, the state of California is one of 14 states that has also passed comprehensive workplace safety standards that apply more broadly to workplaces; they’re called “emergency temporary” standards, even though they’re in effect until 2023 at least. Those separate standards are in litigation, challenged by various trade groups and employers.

A Response to Tuberculosis and Pandemics

One of the reasons the state wanted to make this rule is because there were tuberculosis outbreaks related to unhoused people in the late 1980s and early ’90s. To this day, homeless populations remain at higher risk for aerosol transmissible disease, including drug-resistant tuberculosis.

Since the turn of the century, there have been at least four significant pandemic or epidemic outbreaks. In 2003, SARS spread rapidly from continent to continent, and killed about 10% of the people it infected. In 2009, H1N1, or swine flu, became the first global flu pandemic in forty years.

That’s when California’s Aerosol Transmissible Diseases rule took effect. The Ebola outbreak from 2014-16 then tested the rule, as cases in Southern California threatened quarantine and testing.

A Nation-Leading Rule

After the AIDS crisis in the 1980s, California passed a rule to protect against bloodborne pathogens; the idea was to minimize workers’ exposure to droplets of blood. This protection came to be seen as so essential that the federal government made a rule of its own.

When the state, employers, and workers’ advocates finished negotiating the rule to protect against airborne disease, and it took effect in 2009, the parties involved thought it was going to be nation-leading, according to Mark Catlin, an industrial hygienist and workplace safety expert who has since retired.

But, Catlin says, the state of California lacked the resources to see the rule through completely.

“At some point, the state was going to come up with publications and guidance on it, and those got put aside because there wasn’t staff time to work on it,” he said. “And then there’s been a lot of other staffing issues and problems and budget issues within California over the last number of years.”

Unlike the CDC, which declared COVID-19 to be an airborne virus in October 2020, Cal/OSHA called the coronavirus airborne for the purpose of regulation months earlier, in February. But it wasn’t until May, after the first surge of the coronavirus had ebbed and the second surge was coming, that Cal/OSHA issued guidance about how to deal with COVID-19 as an airborne virus in the workplace.

The first citations for violating that guidance just got released last fall.

Violations Are Now Common

From late in August 2020 to the beginning of February, Cal/OSHA has issued 42 citations with violations of this rule, some for tens of thousands of dollars. That represents a third of the COVID-related citations regulators have issued so far.

Historically, the state has enforced this rule infrequently, writing up just 31 citations in five years. Two-thirds of the violations came from complaints that somebody made specifically, meaning that a complaint prompted the investigation and a state response.

According to Cal/OSHA itself, it can take up to six months to investigate and issue a citation. So what we know about how employers have been protecting workers from exposure to the virus is lagging. But what we do know is that the state has emphasized education rather than punishment for violations during the pandemic.

Workers Say the Rule Hasn’t Meant Much

California identified the coronavirus as airborne before the federal government did — but that doesn’t mean employers necessarily followed suit.

Workers don’t always know about this standard. Some say they haven’t been trained at all, or that their training was minimal.

“In the beginning of the pandemic, they kept insisting we don’t wear masks because it might scare the patients, which I thought was really odd,” said Johnna Porter, a nurse at a hospital in West Hills, in Los Angeles County. “Then they kept telling us, no, no, it’s droplet.”

Porter says, in the years before the pandemic, she did receive a brief training on aerosol transmissible disease. But she says for months, the hospital didn’t have enough protective gear. And she says her employer, HCA, requires nurses to seek approval to obtain tests, or, now that it’s available, the vaccine.

She says she doesn’t trust that her employers are thinking about how to minimize exposure to COVID-19 in the riskiest circumstances. Or even at the nurses’ stations.

“They set it up for the cafeteria in a heartbeat to make sure the food doesn’t get contaminated. And every grocery store has plexiglass now for the cashiers,” Porter said. “But they can’t do it in a hospital? It’s just so mind-blowing.”

State government’s largest union, SEIU 1000, represents some workers at correctional facilities — not the sworn peace officers, but, for example, people who clean the jails. The union filed a statewide grievance last summer about safety on the job, focused on exactly this rule.

SEIU’s Daniel Lunas, says that at first, “the union was very patient and waiting” to see how the state would respond to the pandemic. Then several jails and facilities had horrendous outbreaks.
Now, he says, the state’s still lagging on enforcement and it’s affecting how many people are at work.

“So that’s still a problem: the fact that we believe there are still people that are showing up to work, who then should not be there because they may have been exposed or maybe already have the virus,” Luna said.

So far, the state is basically letting its citations speak for themselves. Cal/OSHA declined written requests for interviews over months. The state’s guidance about how to protect workers is organized by industry, not by rule, and it has been updated several times since the pandemic began.

It’s worth pointing out that employers can — and usually do — appeal citations, and that appeals often lower the fines initially proposed.

The COVID-19 Pandemic Tests the Rule

Having protective gear on hand matters early in a pandemic. In the early days, when pretty much every hospital and health-related workplace had PPE shortages, employers basically said, what can we do? It’s impossible to do everything.

“Oh, you know what? That’s BS,” said Angela Dahlgren, a retired nurse who advocated for the passage of the rule. “I’m trying to be nice. Of course, we can prepare for it.”

Nothing requires employers to stockpile PPE. But Dahlgren says employers can think about how to prioritize gear for risky situations, or minimize the number of people at risk in the first place.

The point of the rule, she says, is planning ahead, and investing in being ready over time.

“You can’t go out and educate everybody overnight. That doesn’t work,” Dahlgren said. “You actually have to have all these regulations and policies in place and follow them.”

How California follows this unique standard now is likely to influence the discussion about COVID-19 workplace safety at the federal level — which is, with the Biden administration, a newly active one.