On April 8, the U.S. Department of Labor’s Occupational Safety and Health Administration expanded temporary guidance provided in a March 14, 2020, memorandum regarding supply shortages of N95s or other filtering facepiece respirators due to the COVID-19 pandemic. This expanded guidance applies to all workplaces covered by OSHA where there is required respirator use. OSHA field offices will exercise enforcement discretion concerning annual fit-testing requirements, as long as employers have made good-faith efforts to comply with the requirements of the Respiratory Protection Standard and followed the steps outlined in the March 14 memorandum, according to a DOL news release.

The news release also states that employers should assess their engineering controls, work practices and administrative controls on an ongoing basis to identify any changes they can make to decrease the need for N95s or other FFRs. When reassessing these controls and practices, employers should, for example, consider whether it is possible to increase the use of wet methods or portable local exhaust systems or to move operations outdoors. In some instances, an employer may also consider taking steps to temporarily suspend certain nonessential operations.

In light of concerns about a shortage of fit-testing kits and test solutions, OSHA encourages employers to prioritize the use of fit-testing equipment to protect employees who must use respirators for high-hazard procedures. In the absence of fit-testing capabilities, if a user’s respirator model is out of stock, employers should consult the manufacturer to see if it recommends a different model that fits similarly to the model used previously by employees. OSHA field offices may exercise additional enforcement discretion when an employer switches to an equivalent-fitting make/model/size/style N95 or other filtering facepiece respirator without first performing an initial quantitative or qualitative fit test. 

In addition to the March 14 memorandum and expanded guidance, OSHA issued two separate guidance documents regarding the enforcement of its respiratory protection standard. More information on these memoranda can be found in an analysis written by ABC general counsel Littler Mendelson P.C.

Employers should carefully review the OSHA guidance and adjust their respiratory protection practices accordingly.

For additional OSHA resources, visit the agency’s coronavirus webpage.

This article is intended for informational purposes only and does not constitute legal advice or opinion.