On September 29, 2020, California Governor Gavin Newsom signed into law Assembly Bill 2537 (AB 2537), the latest in a series of legislative enactments designed to protect employees from COVID-19 exposures in the workplace.  Beginning April 1, 2021, employers in hospital settings will be required to maintain a three-month stockpile of new, un-expired and unused personal protective equipment (PPE).  Employers will also be required to supply PPE and ensure that their employees use the PPE supplied to them. 

Which Employers are Covered by AB 2537?

AB 2537 applies broadly to any person or organization that employs workers providing direct patient care in a general acute care hospital.  In a multi-employer worksite, the employer that controls the facility, typically the operator or owner of the general acute care hospital, must maintain the stockpiles required under AB 2537.  In these settings, contractors whose employees provide caregiving services in these settings are exempt from the stockpiling requirements of AB 2537.  However, AB 2537 imposes the sweeping obligation on all employers in an acute care setting (including contractors) to supply their employees with PPE and ensure that their employees are using them. 

What Types of PPE Must Be Stockpiled?

The law identifies seven specific types of PPE that must be maintained in an amount equal to three months of normal consumption:

1. N95 filtering facepiece respirators.
2. Powered air-purifying respirators with high efficiency particulate air filters.
3. Elastomeric air-purifying respirators and appropriate particulate filters or cartridges.
4. Surgical masks.
5. Isolation gowns.
6. Eye protection.
7. Shoe coverings.

What Types of Recordkeeping Requirements are Imposed by AB 2537?

Upon request, general acute care hospitals must provide to the California Division of Occupational Safety and Health (Cal/OSHA) records of their inventory and written procedures for periodically determining the quantity and types of equipment used in normal consumption.  Licensed general acute care hospitals must also be prepared to report to the Department of Industrial Relations (DIR) and Cal/OSHA, under penalty of perjury, their highest seven-day consecutive daily average consumption of PPE during the 2019 calendar year.

Significant Penalties for Non-Compliance

The consequences for failing to comply with the requirements can be severe.  AB 2537 specifically authorizes Cal/OSHA to enforce violations of the law through the issuance of citations, which may carry monetary penalties of up to $25,000 and could have a multiplier effect depending on the number of citations issued.

AB 2537 does, however, prescribe a narrow exception and potential defense to a citation issued due to an employer’s failure to maintain PPE stockpiles.  Specifically, an employer may be exempt from penalties if it can demonstrate an inability comply with the requirements of the law due to issues beyond its control by showing that the PPE was ordered from the manufacturer or distributor and not fulfilled or has been damaged or stolen.  This exception applies only to the seven types of PPE described above.

Key Takeaways

Since the stockpiling requirements of AB 2537 do not take effect until April 1, 2021, hospitals subject to the new law are strongly encouraged to actively monitor and track their PPE supplies and immediately develop written procedures for doing so.  Monitoring the incoming and outgoing PPE for the next six months will provide the hospital with the data points needed to evaluate the volume of PPE consumed under “three months of normal consumption” by April 1, 2021.  Throughout this evaluation process, hospitals should be documenting their efforts to maintain and procure the necessary PPE needed to maintain the levels required under AB 2537.  The Cal/OSHA inspectors conducting these inspections come April 2021 will be trained to identify employers that are unable to adequately maintain supplies and/or not providing sufficient PPE to their employees. 

Employers are strongly encouraged to consult with an attorney specializing in workplace safety and health for further guidance on the proactive measures that can be taken to ensure compliance with AB 2537.