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OSHA Extends Suspension of N95 Annual Fit Testing to All Industries

On April 8, 2020, the Occupational Safety and Health Administration (OSHA) issued an enforcement memorandum titled Expanded Temporary Enforcement Guidance on Respiratory Protection Fit-Testing for N95 Filtering Facepieces in All Industries During the Coronavirus Disease 2019 (COVID-19) Pandemic. The memo takes the guidance issued by the agency on March 14, 2020, which suspended annual fit testing requirements for the healthcare industry, and extended it to “all workplaces covered by OSHA where there is required use of respirators.”

OSHA also noted the current shortage of fit-testing kits and test solutions (e.g., Bitrex™, isoamyl acetate) and encouraged employers “to take necessary steps to prioritize use of fit-testing equipment to protect employees who must use respirators for high-hazard procedures.”

Finally, OSHA noted that “[m]ost respirator manufacturers produce multiple models that use the same basic head form for size/fit,” and have a list of respirators with equivalent fit (known as “crosswalks”).  “Therefore, if a user’s respirator model (e.g., model x) is out of stock,” the memo states, “employers should consult the manufacturer to see if it recommends a different model (e.g., model y or z) that fits similarly to the model (x) used previously by employees.”

Takeaways

The memorandum is a welcome relief for those employers outside the healthcare industry that still have N95s. Since annual fit testing often results in destruction of the respirators tested, OSHA’s guidance will help those employers preserve their limited supply and improve the N95 shortage. Still, some employers had hoped that OSHA might excuse initial fit testing requirements (which also destroys respirators) or provide alternatives for medical evaluation. Many employers rely on healthcare vendors to conduct the medical evaluation required under OSHA’s respiratory protection standard. But many vendors have suspended operations or shifted over to devote all efforts to the pandemic response. OSHA has not given any indication of whether it plans to issue any further guidance addressing these topics.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 101
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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
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