By Lee Slaton, Vice President of Healthcare; Smart TrainingCOVID death of dental assistant prompts investigation
Note: This article is based on information obtained from multiple Freedom of Information Act requests detailing an OSHA investigation that ensued from an anonymous complaint received by that agency. The references to the investigator’s actual case notes and the practice owner’s replies are indented and denoted in quotes. The actual complaint received by the agency, which is outlined below, has been edited only for clarity and is also indented and in quotes. Any underlining of items for emphasis is mine.
Although 22 states opted to manage their own OSH programs, all 50 states’ investigations are included in the federal government’s database of OSHA investigations. Over 60% of OSHA investigations are generated by anonymous complaints, according to the latest calculations of inspections reported through the database. Those anonymous complaints can come from a variety of sources—ex or disgruntled employees with an axe to grind, employees with genuine safety concerns, or ex-spouses and ex-partners, to name a few. No matter the seriousness or source of the complaint, OSHA is compelled to open an investigation. This is the story of how an anonymous complaint regarding a serious concern played out.
In mid-2021, a state-run OSH plan received an anonymous complaint regarding a dental practice. The complaint (which has been edited only for clarity) read, in part:
“The doctor had Covid. Had girls work next week without patients. The doctor, however, came in 3 times that week with Covid. Three of the staff got Covid. The first one went to the hospital, then stayed home two weeks. The second one stayed home for two weeks, then went back to work. The third went to the hospital, was put on a ventilator, developed pneumonia, and died.”
The OSH Fatality/Catastrophe Report stated that the “Employee developed symptoms of Covid-19 after a potential work-related exposure to another Covid-19 positive employee. The employee passed away on xxxxxxxx.”
This article isn’t about the validity of the complaint, nor is it about a tragedy that befell a dental healthcare professional while practicing their profession. In over ten years working with dental practices around the country and representing dental practices in hundreds of OSHA investigations, the worst accident, far and away, that I’ve encountered was a clinician who fell and fractured their arm and had to be hospitalized. The point of the article is to show exactly how much havoc can be wrought on a dental practice by the ensuing investigation an anonymous complaint to OSHA can lead to. When delivering more than I can keep track of continuing education seminars, I always point out that a complaint, valid or not, results in what I refer to as letting the OSHA camel’s nose under the tent flap. In other words, once an OSHA investigation commences, all bets are off. Anything an OSHA investigator sees is fair game.
As you continue reading, most of you will hopefully realize the violations OSHA cited the practice for in the following incident weren’t obscure ones cited by an investigator playing gotcha; they were what a football coach would refer to as basic blocking and tackling, to use a sport analogy. Let’s look at the inspector’s narrative and proceed through the bulk of the major (serious) violations. Due to space constraints, I won’t address every violation, but I will attempt to give you a 10,000-ft view. Any way you slice it, the practice ended up with $25,000 worth of violations and a heightened regulatory awareness regarding their practice that will probably follow them for years to come.
The purpose and scope of the investigation was set thusly:
“This unprogrammed inspection was the result of a non-employer reported SAR-CoV-2 related employee hospitalization was forwarded to the xxxxxxxxxxxxx of OSH Compliance on xxxxxx by the xxxxxxxx Board of Dentistry. This report included an anonymous complaint on the xxxxxxx complaint form stating the xxxxxx associated hospitalization of xxxxxxxxxxxx was work-related. This was processed as a complaint and assigned to xxxxxx on xxxxxx This inspection was limited in scope to an investigation of the conditions and circumstances related to the xxxxxxxxx SARS-CoV-2 related hospitalization and consequent xxxxxxxx death of xxxxxxxx. Any additional serious safety and health violation in view of the inspector during the investigation will also be addressed during the course of the inspection.”
The inspector was on site at the dental practice on two occasions. During the initial walkthrough, “upon the discovery of a violation involving 29 CFR 1910.1030 (the Bloodborne Pathogens standard) the inspection was expanded to cover the entirety of that standard.” And there goes that proverbial camel’s nose under the tent flap.
Let’s jump in and review the major violations—starting with the Bloodborne Pathogens standard cited, as this is the standard that most affects dental practices. You’ll see the specific standard in bold and the description of the practice’s violation of that standard immediately below it. To repeat, everything you see in quotes and indented comes directly from the investigator’s notes and the practice owner’s replies.
Major Violations of the Bloodborne Pathogens Standard
29 CFR 1910.30 — Bloodborne Pathogen Standard: Multiple Violations
1910.1030(c)(1)(iii) — Each employer shall ensure that a copy of the Exposure Control Plan is accessible to employees in accordance with 29 CFR 1910.20(e)
“The inspector requested the facility’s Bloodborne Pathogen Program, practice owner stated that it was locked away and no one had access to this document since practice owner was in xxxxx at the time. Practice owner stated that the employees do not have access to the safety programs while practice owner is not in the office as these documents are locked away in practice owner’s personal office. A citation is recommended for this violation.”
1910.1030(c)(1)(iv) — The Exposure Control Plan shall be reviewed and updated at least annually and whenever necessary to reflect new or modified tasks and procedures which affect occupational exposure and to reflect new or revised employee positions with occupational exposure.
“When practice owner provided the Bloodborne Pathogen Program, the inspector asked if the 09/2017 date located on the program was accurate for the date of most recent review of the document. Practice owner stated that it was put in place by a previous employee and that was the most recent review. A citation is recommended for this violation.”
1910.1030(f)(2)(i) — Hepatitis B vaccination shall be made available after the employee has received the training required in paragraph (g)(2)(vii)(I) and within 10 working days of initial assignment to all employees who have occupational exposure unless the employee has previously received the complete hepatitis B vaccination series, antibody testing has revealed that the employee is immune, or the vaccine is contraindicated for medical reasons.
1910.1030(f)(2)(iv) — The employer shall assure that employees who decline to accept hepatitis B vaccination offered by the employer sign the statement in appendix A.
“The inspector inquired to the policy surrounding the facility’s Hepatitis B vaccination. Practice owner stated that practice owner did not believe in asking employees about their medical histories. The inspector explained that the standard requires the employer to provide the vaccination and if an employee declines the series, then a declination form must be signed for documentation purposes. Practiced owner elaborated in a later conversation with inspector that practice owner did not inquire about any type of vaccination status including the Hepatitis B vaccination because “it wasn’t any of practice owner’s business.”
1910.1030(d)(2)(i) — Engineering and work practice controls shall be used to eliminate or minimize employee exposure. Where occupational exposure remains after institution of these controls, personal protective equipment shall also be used.
“The employer did not use work practice controls such as employees touching surfaces with contaminated gloves and then touching that same surface with the ungloved hands without cleaning. Inspector observed both practice owner and another employee touching a computer keyboard with contaminated gloved hands and then touching the same keyboard with ungloved bare hands. The computer keyboards are used every patient both prior to their procedures as well as following the procedures. Inspector observed practice owner exhibiting the same work practice controls as the employees. This was performed over multiple visits the same way.”
1910.1030(d)(2)(v) — Employers shall ensure that employees wash their hands immediately or as soon as feasible after removal of gloves or other personal protective equipment.
“Inspector observed employees removing gloves and not washing their hands prior to completing other tasks. Employees would work on a patient with gloves and touch the keyboard and other surfaces in and around the procedure area and touch these same surfaces with ungloved unwashed hands. Neither practice owner or the employees washed their hands after removing gloves prior to touching the computer keyboard, the work surfaces in the lab, bench counters, procedure tray, tools, doorknobs, and paper documents.”
1910.1030(d)(2)(ix) — Eating, drinking, smoking, applying cosmetics or lip balm, and handling contact lenses are prohibited in work areas where there is a reasonable likelihood of occupational exposure.
“Employees were observed drinking beverages in the work area where aerosol generating procedures are performed. During both onsite visits, inspector observed different employees drinking in the procedure area. Inspector observed employee drinking a beverage in the operatory while in the presence of practice owner during a visit. Inspector learned through interviews that employees often keep beverages on the counter while they’re working. Both of these conditions were in plain sight and appeared to be a common work practice at this facility.”
Additional Standards Violated
29 CFR 1910.30 — Hazard Communication Standard
1910.1200(g)(8) — The employer shall maintain in the workplace copies of the required safety data sheets for each hazardous chemical, and shall ensure that they are readily accessible during each work shift to employees when they are in their work area(s).
“On or about xxxxxx the employer had locked the SDSs in employer’s office while employer was out of the office and the employees could not access them online.
1910.1200 (h)(1) — “Employers shall provide employees with effective information and training on hazardous chemicals in their work area at the time of their initial assignment, and whenever a new chemical hazard the employees have not previously been trained about is introduced into their work area…
“During employee interviews, inspector learned that the employees were not familiar with the hazards associated with the chemicals they use every day. Employees also stated that they did not receive any formal training on the chemicals used when they first were hired by practice owner. It is important to note that practice owner also never evaluated the employees’ knowledge of these chemicals.”
29 CFR 1910.151 — Medical Services and First Aid
1910.151(c) — Where the eyes or body of any person may be exposed to injurious corrosive materials, suitable facilities for quick drenching or flushing of the eyes and body shall be provided within the work area for immediate emergency use.
“On or about xxxxx the employer did not have an emergency eyewash for five (5) employees exposed to phosphoric acid while working in the operatory/procedure area. During a xxxxx conversation with the Practice Owner, xxxx stated that their facility did not have an eyewash station or alternate means of flushing the eyes as prescribed by ANSI, which is incorporated by reference. As the employer does not have an emergency eyewash station, a violation has occurred.”
Closing Thoughts
This investigation and the ensuing violations should serve as a cautionary tale for some and a wake-up call for others. The time to address deficiencies in your safety programs—like the ones detailed above—is not after an accident occurred; or a complaint, no matter how frivolous it seems, is lodged.
Sadly, in many, many practices Smart Training inspects the first time, we see the same violations listed above. Yet, anyone of reasonable intelligence can pull together a good compliance program for their office, given the time. Some choose to focus on ensuring great outcomes for their patients and leave the heavy lifting of regulatory compliance to professionals. Either way, don’t put off what the law requires and good business sense dictates. Let’s stay safe out there!