On September 29, 2020, California Governor Gavin Newsom enacted Assembly Bill (AB) 2537, one of the latest in a series of pieces of legislation designed to protect employees from exposure to COVID-19 on work place.
Section 6403.3 of the California Labor Code came into effect on January 1, 2021 and came into effect on July 26, 2021. Section 6403.3 implements AB 2537, which requires public and private employers in hospitals to have a stock of three months of personal protective equipment (PPE) based on normal consumption on April 1, 2021.
The California Division of Occupational Safety and Health (Cal / OSHA) has passed emergency regulations to define the term “normal consumption.” The regulations specify the following:
(b) As used in section 6403.3 of the Labor Code, normal consumption refers to the average amount of equipment specified below, for each category, type and size of equipment, used by employees during the previous two-year period:
N95 filtering respiratory masks.
Motorized air purifying respirators with high efficiency particulate filters.
Elastomeric air-purifying respirators and appropriate particulate filters or cartridges.
Below is a summary of the key provisions included in the new law and corresponding Cal / OSHA regulations.
Section 6403.3 applies to both public and private employers of workers in a general acute care hospital. Under the new law, these employers must “provide [PPE] to employees who provide direct patient care or provide services that directly support personal care in a general acute care hospital. In addition to providing PPE, employers must “ensure that employees use the [PPE] provided to them.
Individual protection equipment
Section 6403.3 defines PPE as “the equipment and devices necessary to comply with Sections 3380 and 5199 of Title 8 of the California Code of Regulations, provided that these requirements are at least as protective as these sections read May 4. 2020. “
Cal / OSHA regulations define “normal consumption” and provide details on how it should be calculated. The regulations state that covered employers must calculate normal consumption as follows:
(1) For each year beginning April 1, the quantity of each category, type and size of specified equipment consumed by employees of the establishment during the preceding two calendar years, January through December, shall be added and then divided by 8.
(2) In calculating the average consumption over the two-year period, the amount used to represent the consumption of the second year is capped at 200% of the consumption of the first year. The capped quantity is used as that year’s consumption level for normal consumption calculations for subsequent years.
Under the regulations, employers “may determine for each class, type and size of equipment by any of the following methods”:
The total quantity received in the facility from all sources for use by employees;
The total quantity ordered by the establishment from all sources for the use of employees;
The average monthly inventory;
The amount delivered to employees by all distribution methods, including separately billable and non-separately billable items.
The regulation also provides the following example of how to calculate normal consumption.
Note: For example, three months of normal consumption for the year beginning April 1, 2021 and ending March 31, 2022, would be based on the total amount of each category, type and size of the specified equipment consumed during the January period. From 1, 2019 to December 31, 2020, divided by 8. Suppose the consumption of a particular category and type of equipment, in an average size, is as follows:
2019 is 1000 coins
2020 is 3000 coins
2021 is 1600 coins
The quantity used to calculate normal consumption for 2020 will be capped at 2,000 coins (1,000 multiplied by 2). The quantity calculated for three months of normal consumption for the year starting on April 1, 2021 will therefore be 3000 (1000 plus 2000) / 8 = 375 pieces. The calculation for three months of normal consumption for the year starting April 1, 2022 will be (2000 plus 1600) / 8 or 450 pieces.
Documentation and penalties
Section 6403.3 provides that employers must “establish and implement effective written procedures for periodically determining the amount and types of equipment used in its normal consumption”. The law also requires employers to provide inventories of their inventory and copies of their written procedures to Cal / OSHA upon request. Employers who do not maintain an appropriate supply of PPE may be subject to civil penalties of up to $ 25,000 for each violation, “unless [Cal/OSHA] determines that the employer[s] was unable to meet the requirement due to issues beyond their control.
Aerosol-transmissible disease exposure control plans
Title 8 of the California Code of Regulations, section 5199 (d), provides that an employer with facilities, services or operations identified as having an increased risk of transmission of aerosol transmissible diseases (ATMs) must “establish , implement and maintain an effective and written ATD exposure control plan… which is specific to the workplace or operations, and which contains all the elements of paragraph (d) (2). The regulations also specify the following:
Employers of employees designated to provide services under peak conditions and employers of employees designated to provide services to individuals who have been contaminated as a result of a release of a biological agent… must include procedures for those activities in the plan. The plan should include work practices, decontamination facilities and [PPE] and respiratory protection for such events. Procedures should understand how the airways and [PPE] will be stored, viewed or purchased [emphasis added], and how the facility or operation will interact with the local and regional emergency plan.
© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, PC, All rights reserved.Revue nationale de droit, volume XI, number 218