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OSHA Issues New Enforcement Guidance to Address the N95 Shortage During the Coronavirus Pandemic

Following up on its recent temporary enforcement guidance permitting suspension of N95 annual fit-testing for healthcare employers, on April 3, 2020, the Occupational Safety and Health Administration (OSHA) issued an interim Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to the Coronavirus Disease 2019 (COVID-19) Pandemic. The new guidance supplements, but does not replace, the previous guidance. The guidance takes effect immediately and remains in effect until further notice.

The enforcement guidance addresses the N95 mask shortage in the United States by relaxing the ability to extend the use of, and reuse, N95 respirators. In addition, except for certain healthcare providers referenced below, the enforcement guidance condones the use of expired N95 respirators under certain circumstances during the COVID-19 pandemic. Specifically, the enforcement guidance provides:

  • “[T]he same worker is permitted to extend use of or reuse the respirator, as long as the respirator maintains its structural and functional integrity and the filter material is not physically damaged, soiled, or contaminated (e.g., with blood, oil, paint).” Note: In the healthcare setting, the U.S. Centers for Disease Control and Prevention (CDC) has issued specific guidance on the decontamination and reuse of filtering facepiece respirators.

  • “Extended use is preferred over reuse due to contact transmission risk associated with donning/doffing during reuse.” Note: “Extended use” and “reuse” are concepts primarily deployed in healthcare settings, such as in accordance with specific guidance for the extended use of N95 respirators from the CDC.

  • OSHA recommends that users perform a seal check each time they don a respirator and discontinue use of the respirator if the seal check is not successful.

  • OSHA advises employers to train workers to discard respirators if their structural or functional integrity is compromised.

  • “[A]n appropriate sequence for donning/doffing procedures should be used . . . and training needs to address appropriate donning/doffing procedures.”

  • Where N95 respirators are not available and after making a good faith effort to acquire in-date respirators or use other alternatives, OSHA advises employers (other than healthcare employers mentioned below) to use expired N95 respirators. Employers should notify workers that the respirators are expired.

  • “Employers may use only previously NIOSH-certified expired N95” respirators.

  • For healthcare employers, OSHA states that expired N95 respirators “generally must not be used” for providers performing surgical procedures on “patients infected with, or potentially infected with” COVID-19 or “procedures expected to generate aerosols or procedures where respiratory secretions are likely to be poorly controlled.”

OSHA indicates it permits these measures as a last resort, and OSHA encourages employers to “reassess their engineering controls, work practices, and administrative controls to identify any changes they can make to decrease the need for N95 respirators.” The agency also urges employers to consider using alternative classes of filtering facepiece respirators, such as N99, N100, R95, R99, R100, P95, P99, and P100 masks. OSHA indicates it otherwise expects employers to comply with all other provisions of its respiratory protection standard, including fit testing and medical evaluation requirements.

Key Takeaways

The enforcement guidance provides some relief for employers with workers where respirators are required, or are being permitted by the employer, about the hot-button issues of extended use and reuse of N95 respirators and expired N95 respirators. But other questions remain. For instance, many employers are asking the agency to relax or suspend fit testing requirements, which often require fit-tested respirators to be disposed after testing. Other employers are requesting OSHA to suspend medical evaluation requirements, as the healthcare industry is currently overwhelmed responding to the COVID-19 pandemic. The enforcement guidance does not address those pressing issues. We anticipate, however, that OSHA may issue additional guidance on these topics in the near future.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

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Michael Oliver Eckard Employment Attorney Ogletree Deakins
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Michael Oliver Eckard is a shareholder in the Charleston and Atlanta offices and has been an employment lawyer at Ogletree his entire legal career. Michael represents companies in labor, employment, restrictive covenant, and wage and hour matters in the health care, manufacturing, chemicals, hospitality, transportation and logistics, and retail industries, among others. He regularly advises companies on human resources and labor policy issues. Michael represents his clients in many types of employment litigation matters, including wrongful termination claims, sexual harassment claims,...

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Dean Kelley, Ogletree Deakins Law Firm, Labor and Employment Attorney
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Exclusively representing employers in matters relating to OSHA and other health and safety laws; the full range of state and federal employment laws including relating to discrimination, retaliation, hostile work environment harassment, interference and wrongful discharge claims under state and federal laws; wage and hour compliance and litigation defense; independent contractor relationships and agreements; employment contracts; restrictive covenants including non-compete, confidentiality, non-solicitation and invention assignment agreements.

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John Martin, Ogletree Deakins Law Firm, Employment Law and Energy Litigation Attorney
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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.

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