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Trump’s Right: OSHA Regulations Allow Hospitals to Clean and Re-Use Some Masks

President Donald Trump ignited a blast furnace of criticism on Saturday by suggesting that — perhaps — medical personnel should clean their protective masks during the Coronavirus/COVID-19 outbreak rather than throw them away.  The president made the comments when asked when more masks would be available.

WATCH the president’s comments in the player above.

Reaction to whether this suggested practice was unwise, unsanitary, or medically dangerous to the provider or the patient was calculatedly loud:

Well, we did check the relevant OSHA regulations which pertain to personal protective equipment, including “respirators.”  They’re here, and as with all federal regulations, they carry the force of law.  They say respirators “shall be provided” if necessary to protect an employee’s health.  As to “cleaning and disinfecting”:

The employer shall provide each respirator user with a respirator that is clean, sanitary, and in good working order. The employer shall ensure that respirators are cleaned and disinfected using the procedures in . . . this section, or procedures recommended by the respirator manufacturer, provided that such procedures are of equivalent effectiveness.

Respirators issued for the exclusive use of an employee shall be cleaned and disinfected as often as necessary to be maintained in a sanitary condition[.]

A “mandatory” cleaning standard contained in that regulation carries an important caveat:  sanitization “procedures . . . must ensure that the respirator is properly cleaned and disinfected in a manner that prevents damage to the respirator and does not cause harm to the user” (emphasis ours).  Therein lies the issue so many medical care providers are worried about.  Some medical masks could be damaged or rendered less effective if cleaned.

The president said “some” masks “don’t lend themselves” to being cleaned, but “many do.”  His comment is an accurate, if off-the-cuff, description of the law.  The core law is that respirators can be cleaned . . . so long as they remain sanitary and are not damaged in the process.  OSHA has issued non-binding Coronavirus-specific guidance documents which highlight the matter:  “All types of PPE must be . . . cleaned[] and stored or disposed of, as applicable, to avoid contamination of self, others, or the environment.”

That is the law and a reasonable guidance of how to apply it.  Yet we found other non-mandatory OSHA guidance documents which make several shocking suggestions about re-using medical gear.  Obviously, the best practice is for medical facilities to stock up a supply of fresh gear, as one OSHA Web site explains (this one analogously pertains to the seasonal flu):

Your pandemic flu plan should be based on a “worst-case” scenario – one in which the virus causes severe illness and death in larger numbers of people. Planning for the worst-case ensures that you will have the right type of equipment and an adequate supply of it on hand to protect workers.

That’s a no-brainer.  However, a more elaborative pandemic document describes what might happen if there’s a shortage of gear and rationing becomes necessary:

Once worn in the presence of an infectious patient, the respirator should be considered potentially contaminated with infectious material, and touching the outside of the device should be avoided. Upon leaving the patient’s room, the disposable respirator should be removed and discarded, followed by proper hand hygiene.

If a sufficient supply of respirators is not available during a pandemic, healthcare facilities may consider reuse as long as the device has not been obviously soiled or damaged (e.g., creased or torn), and it retains its ability to function properly. Data on reuse of respirators for infectious diseases are not available. Reuse may increase the potential for contamination; however, this risk must be balanced against the need to provide respiratory protection for healthcare workers.

That language is filled with ‘shoulds’ and ‘mays,’ not ‘shalls’ or ‘musts.’  This is another “advisory in nature” document, “not a standard or regulation, and it creates no new legal obligations . . . [l]ikewise, it cannot and does not diminish any obligations established by Federal or state statute, rule or standard.”  We discussed the actual law above.  Still, the guidance does provide the groundwork for what many hospitals are doing (examples here, here, and here):

Reuse of a disposable respirator should be limited to a single wearer (i.e., another wearer should not use the respirator). Consider labeling respirators with a user’s name before use to prevent reuse by another individual.

If disposable respirators need to be reused by an individual user after caring for infectious patients, employers should implement a procedure for safe reuse to prevent contamination through contact with infectious materials on the outside of the respirator.

One way to address contamination of the respirator’s exterior surface is to consider wearing a faceshield that does not interfere with the fit or seal over the respirator. Wearers should remove the barrier upon leaving the patient’s room and perform hand hygiene. Face shields should be cleaned and disinfected. After removing the respirator, either hang it in a designated area or place it in a bag. Store the respirator in a manner that prevents its physical and functional integrity from being compromised.

In addition, use care when placing a used respirator on the face to ensure proper fit for respiratory protection and to avoid unnecessary contact with infectious material that may be present on the outside of the mask. Perform hand hygiene after replacing the respirator on the face.

Again, these documents are advisories only, but they do, in a marginally-official sense, suggest that OSHA is open to allowing less-than-perfect situations to go unchecked in a medical crisis.  The CDC is also moving in that direction with its weighing of the effectiveness of expired masks.

[Author’s note:  A CNN piece on this matter narrowly examined FDA and CDC documents but failed to examine the OSHA regulations which intend to protect employees.]

[Image via screen capture from The White House/YouTube.]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University.  He is the anchor and executive producer of Law&Crime Daily on the Law&Crime Network.  The broadcast is a recap of the day's most compelling trials and court proceedings.  He also serves as an editor for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only.  You should not rely on it for legal advice.  Reading this site or interacting with the author via this site does not create an attorney-client relationship.  This website is not a substitute for the advice of an attorney.  Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.