By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
On April 3, 2020, U.S. OSHA issued two Enforcement Guidance memos which, for the first time, provide guidance to all industries, including healthcare, regarding how to comply with OSHA rules in the face of N95 shortages. The first document is entitled “Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to Coronavirus Disease 2019 (COVID-19) Pandemic” (N95 Shortage Guidance). The N95 Shortage Guidance informs all employers whose employees are required to use, or permitted to voluntarily use, respiratory protection, the limited circumstances in which an OSHA inspector may, on a “case-by-case basis, exercise enforcement discretion” when an employer deviates from OSHA’s current respiratory protection standards, including OSHA’s principal rules at 29 CFR §1910.134 (the Respiratory Standard). While offering some relief from the threat of an OSHA enforcement action, the N95 Shortage Guidance also serves to reemphasize employers’ continuing obligations under the Respiratory Standard despite the short, often non-existent, supply of respiratory protection equipment.
Employers’ continuing obligations in the face of shortages include:
- Manage your respiratory protection program (RPP) in accordance with the Respiratory Standard and “pay close attention to shortages of N95s.”
- Identify and evaluate respiratory hazards.
- Develop, implement, and document worksite-specific procedures to address changes in use of N95s and other respiratory protection.
- Revise your written RPP to reflect changes in workplace conditions caused by the N95 shortage and COVID-19.
For the first step completing these obligations, “all employers should reassess their engineering controls, work practices, and administrative controls” to identify how to decrease the need for N95s. OSHA suggests alternatives to use of N95s, e.g., use of wet methods or portable local exhaust systems and moving the task requiring use of respiratory protection outdoors. More cautiously, OSHA states that “[i]n some instances, an employer may also consider taking steps to temporarily suspend certain non-essential operations.” However, OSHA does not require that employers stop performing tasks with respiratory hazards.
Under the N95 Shortage Guidance, if N95 alternatives are not possible and “respiratory protection must be used” OSHA provides a series of decision-making options:
- Use alternative classes of NIOSH-approved respirators if they “provide equal or greater protection” compared to N95s.
- If NIOSH-approved alternatives are not available, or use of these alternatives create additional hazards, then employers may:
- Implement extended use or reuse of N95s, with extended use preferred over reuse; or
- Use NIOSH-approved N95s past the manufacturer’s recommended shelf life, but only if the equipment’s integrity has not been compromised.
OSHA then states further requirements for the use of any of these options, including documenting the use of options in written RPPs and providing additional training to employees on the new procedures. In the health care industry only, OSHA refers employers to the CDC’s guidance on the hierarchy of decisions applicable in case of expired N95s, but states that its N95 Shortage Guidance is not intended to cover COVID-19 “crisis standard of care” scenarios.
In the second guidance document issued on April 3, 2020, entitled “Enforcement Guidance for Use of Respirators Protection Equipment Certified under Standards of other Countries or Jurisdictions” (Respirator Use Guidance), OSHA provides the hierarchy of decision-making that constitutes making a “good-faith effort” to provide appropriate respiratory protection:
- Implement OSHA’s hierarchy of controls to eliminate or substitute out workplace hazards
- Prioritize efforts to acquire and use equipment as follows:
- Foreign-certified, as listed by OSHA, other than by China
- China-certified [without any NIOSH certificate]
- Only use equipment beyond shelf life if in non-compromised condition
- Extended use or reuse in accordance with CDC’s Strategies for Optimizing the Supply of N95 Respirators
- Use homemade masks or other improvised face coverings “only as a last resort”
The Respirator Use Guidance also summarizes other requirements for respiratory protection, including training, documenting changes in procedures and conditions, and equipment inspection.
The two April 3 Enforcement Guidance documents accompany OSHA’s March 14, 2020 enforcement guidance regarding respirator fit-testing for health care employers only, previously discussed by the author here. See Jenner & Block’s “Corporate Environmental Lawyer” blog and Jenner & Block’s COVID-19/Coronavirus Resource Center for frequently updated information for businesses and organizations worldwide.