Earlier today, the Occupational Safety and Health Administration’s (“OSHA”) Directorate of Enforcement Programs issued a new memorandum and interim guidance (“Enforcement Guidance”) on enforcement of the respiratory protection standard, 29 CFR § 1910.134, and certain other health standards, in light of the severe shortages in respirator availability. Consistent with the agency’s March 14, 2020 enforcement memorandum on temporary enforcement guidance for respirator use in the health care industry, OSHA’s Enforcement Guidance expands the agency’s discretionary enforcement policy to all industries, including specifically healthcare personnel (“HCP”) and workers in other industries who are facing respirator shortages due to the coronavirus (“COVID-19”) pandemic (e.g., construction).
After acknowledging some of the challenges faced by employers from the COVID-19 pandemic, including specifically current supply shortages of disposable N95 filtering facepiece respirators (“FFR”), OSHA’s Enforcement Guidance outlines specific enforcement discretion to allow for extended use and reuse of respirators, and in some circumstances use of respirators that have “expired” or are older than the manufacturer’s recommended shelf life. OSHA’s Enforcement Guidance is, however, “time-limited to the current public health crisis” and employers are expected to “continue to manage their respiratory protection programs (RPPs) in accordance with the OSHA respirator standard.”
In application, OSHA’s Enforcement Guidance provides employers with some specific workarounds to current respirator supply shortages, including:
- Allowing workers to extend use of or reuse N95 FFRs, provided the mask is used by only one worker, is not contaminated or damaged, and maintains structural and functional integrity; and
- Allowing employers to use N95 FFRs that have exceeded the manufacturer’s recommended shelf life, including surgical N95s, in some situations where N95s are not readily available.
Further, to the extent respiratory protection is required and N95 FFRs would normally be used but are unavailable, employers are permitted to consider alternative classes of respirators so long as they provide equal or greater protection to an N95 FFR.
Employers should note, however, that OSHA’s Enforcement Guidance does not eliminate or reduce any obligation to protect employees from a potential respiratory hazard. Consequently, in the event respirators are not readily available because of supply shortages, OSHA’s Enforcement Guidance makes clear that employers will be expected to reassess whether other available controls are available to eliminate or control the exposure. For example, in dusty environments where an employer would normally control potential respiratory hazards using a dust mask or respirator, the employer may need to use a wet method or portable local exhaust system to control dust exposure if dust masks or respirators are unavailable. Further, OSHA’s Enforcement Guidance does not eliminate or reduce other compliance obligations under the respiratory protection and corresponding personal protective equipment standard, including specifically compliance obligations related to hazard assessments, inspections, and training.
While ultimately, OSHA’s Enforcement Guidance brings the agency’s position on respirators more in line with guidance from the Center for Disease Control and Prevention regarding extended use and limited reuse of respirators, employers facing respirator supply shortages, stretched resources, and operational restrictions in light of the COVID-19 pandemic will continue to face compliance challenges. If you have questions regarding how best to address respiratory protection in the current work environment, please reach out to Jackson Lewis’ Coronavirus Task Force at firstname.lastname@example.org.