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OSHA Allows Healthcare Employers to Suspend N95 Annual Fit-Testing During Coronavirus “Outbreak”

On March 14, 2020, the Occupational Safety and Health Administration (OSHA) issued temporary enforcement guidance addressing the fit-testing requirements in the agency’s respiratory protection standard (29 C.F.R. § 1910.134). The guidance applies to healthcare workers using N95 respirators to protect them from the novel coronavirus 2019 (COVID-19). Driving the guidance is the current supply shortage of N95 filtering facepiece respirators, which are destroyed or compromised during the fit-testing process.

OSHA is directing its field offices to exercise enforcement discretion when evaluating a healthcare employer’s compliance efforts with the respiratory protection standard’s annual fit-testing requirement, § 1910.134(f)(2). According to the guidance, the agency is directing inspectors to excuse noncompliance with annual fit testing so long as the healthcare employer is:

  • Making a good-faith effort to comply with 29 C.F.R. § 1910.134

  • Using only respirators certified by the National Institute for Occupational Safety and Health

  • Implementing Centers for Disease Control and Prevention “and OSHA strategies for optimizing the supply of N95 filtering facepiece respirators and prioritizing their use”

  • Performing initial fit tests for each healthcare employee “with the same model, style, and size respirator that the worker will be required to wear for protection against COVID-19”

  • “Inform[ing] workers that the employer is temporarily suspending the annual fit testing of N95 filtering facepiece respirators to preserve and prioritize the supply of respirators for use in situations where they are required to be worn” (emphasis added)

  • “Explain[ing] to workers the importance of performing a user seal check (i.e., a fit check) at each donning to make sure they are getting an adequate seal from their respirator”;

  • “Conduct[ing] a fit test if they observe visual changes in the employee’s physical condition that could affect respirator fit (e.g., facial scarring, dental changes, cosmetic surgery, or obvious changes in body weight) and explain to workers that, if their face shape has changed since their last fit test, they may no longer be getting a good facial seal with the respirator and, thus, are not being adequately protected; and,”

  • “Remind[ing] workers that they should inform their supervisor or their respirator program administrator if the integrity and/or fit of their N95 filtering facepiece respirator is compromised.”

Annual Fit-Testing in the Healthcare Industry

Annual fit testing requires employers to test respirators each year to ensure that they remain effective for employee use. An employee wears the respirator and tests are performed to determine whether it remains effective for that individual employee. OSHA authorizes two kinds of testing: quantitative and qualitative. Quantitative testing destroys N95 respirators. Qualitative testing generally does not, although some experts suggest discarding the respirators used during testing. With the healthcare industry is facing a shortage of N95 respirators, OSHA decided the lesser hazard is to have employers forego annual fit testing rather than exacerbate the supply shortage.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 79

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About this Author

Melissa Bailey, Ogletree Deakins Law Firm, Occupational Safety Litigation Attorney
Shareholder

Melissa Bailey focuses her practice on occupational safety and health issues, and also serves on the Firm's Board of Directors. She litigates OSHA cases before federal and state agencies and courts, and also represents employers during government inspections and investigations. Her practice also includes providing compliance advice and conducting privileged audits on complex workplace safety issues. Melissa represents employers in a wide range of industries, including electric utilities, chemical manufacturing/refining, retail, food processing, construction, and drug...

202-263-0265
John Martin, Ogletree Deakins Law Firm, Employment Law and Energy Litigation Attorney
Shareholder

John Martin focuses his practice on occupational safety and health compliance and litigation. He serves as national OSHA counsel for three publicly-traded companies, and has over 15 years of experience in defending employers in federal court and before the Occupational Safety and Health Review Commission (OSHRC). John has defended clients in 18 states and counsels clients on developing safety programs to eliminate and reduce workplace injuries.

202-263-0267