June 6, 2020

June 05, 2020

Subscribe to Latest Legal News and Analysis

June 04, 2020

Subscribe to Latest Legal News and Analysis

June 03, 2020

Subscribe to Latest Legal News and Analysis

OSHA Relaxes Enforcement to Permit Use of N95s Certified in Certain Countries

After relaxing enforcement on the use of expired N95 respirators and on their extended use and reuse, late on April 3, 2020, the Occupational Safety and Health Administration (OSHA) issued an Enforcement Guidance for Use of Respiratory Protection Equipment Certified under Standards of Other Countries or Jurisdictions During the Coronavirus Disease 2019 (COVID-19) Pandemic. The new guidance supplements, but does not replace, previous guidance.

Acknowledging the current overwhelming demand for N95 filtering facepiece respirators (FFRs) in healthcare and other industries, OSHA’s enforcement guidance permits employers, under certain circumstances, to use “FFRs, air-purifying elastomeric respirators, and compatible filters” that are not approved by the National Institute for Occupational Safety and Health (NIOSH) and were certified in the following jurisdictions: Australia, Brazil, China, the European Union, Japan, South Korea, and Mexico.

When to Rely on Foreign Respirators

According to OSHA, employers, except for certain healthcare providers, as a precursor to the use of foreign respirators employers must:

  1. Maintain their current respiratory protection program, as required by 29 C.F.R. 1910.134.

  2. Reassess the engineering controls, work practices, and administrative controls in their workplaces to identify any changes than may decrease the need for N95 respirators.

Once employers have fulfilled these two requirements, they may “[p]rioritiz[e] efforts to acquire and use equipment in the following order:”

  1. NIOSH-certified N95 respirators.

  2. NIOSH-certified alternatives to the N95 respirator (e.g., N99, N100, P95, P100, and powered air-purifying respirators (PAPR)).

  3. Expired NIOSH-certified N95 respirators, or expired NIOSH-certified alternatives to the N95 respirator, to the extent permitted by OSHA’s April 3 guidance on their use.

  4. Respirators and filters certified under standards of Australia, Brazil, Europe, Japan, South Korea, or Mexico, or “equipment certified in accordance with standards of the People’s Republic of China . . . manufactured by a NIOSH certificate holder.”

  5. “[E]quipment certified in accordance with standards of the People’s Republic of China, the manufacturer of which is not a NIOSH certificate holder.”

  6. Facemasks (e.g., medical masks, procedure masks).

OSHA believes that foreign respirators may provide greater protection to workers than surgical masks or homemade masks. The agency reminds employers to ensure that users perform a seal check every time they use a respirator, to use proper donning/doffing techniques, and to train workers to visually inspect their respirators. OSHA emphasizes that a respirator must be discarded if its structural and functional integrity of any part of it is compromised.

Healthcare Providers

For healthcare providers performing surgical procedures on patients infected with, or potentially infected with COVID-19, or performing “procedures expected to generate aerosols or procedures where respiratory secretions are likely to be poorly controlled (e.g., cardiopulmonary resuscitation, intubation, extubation, bronchoscopy, nebulizer therapy, sputum induction),” OSHA states that respirators from China may not be used unless there is no other alternative.

Why Is China at the Bottom of the List?

In a crucial footnote, OSHA explains that NIOSH has observed that products from China “may not meet the requirements of the standards to which they are certified and may not offer or sustain the protection claimed as typically expected when using NIOSH-approved N95 respirators.”  In other words, a sizable number of respirator products sold from vendors in China are substandard or counterfeit.  NIOSH has an entire web page devoted to helping the public identify counterfeit respirators.

List of Alternative Respirators Certified in Other Countries

OSHA’s guidance includes the following table to show which respirators are approved under standards used in other jurisdictions that are similar to NIOSH-approved N95 respirators. OSHA’s “Table 1” is replicated in its entirety below.

Country

Performance Standard

Acceptable Product Classification

May Be Used in Lieu of NIOSH-Certified Products Classified as

Australia

AS/NZS 1716:2012

P2

N95

P3

N99 or lower

Brazil

ABNT/NBR 13698:2011

PFF2

N95

PFF3

N99 or lower

China (People’s Republic of)

GB 2626-2006

KN/KP95

N95

KN/KP100

N99 or lower

Europe

EN 149-2001

P2

N95

P3

N99 or lower

Japan

JMHLW-2000

DS/DL2

N95

DS/DL3

N99 or lower

Korea (Republic of)

KMOEL-2017-64

Special 1st

N95

Mexico

NOM-116-2009

N95

N95

R95

R95 or lower

P95

P95 or lower

N99

N99 or lower

R99

R99 or lower

P99

P99 or lower

N100

N100 or lower

R100

R100 or lower

P100

P100 or lower

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

TRENDING LEGAL ANALYSIS


About this Author

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
Arthur Sapper, Administrative and Regulatory Attorney, Ogletree Deakins, Law Firm
Of Counsel

Arthur G. Sapper is Senior Counsel in the Washington, D.C. office of Ogletree Deakins, where he practices administrative and regulatory law. Art focuses his practice on all areas of occupational safety and health (OSHA) law and mine safety and health (MSHA) law, including inspections, discrimination investigations, litigation, rulemaking, counseling and lobbying.

Art litigates regularly before the Occupational Safety and Health Review Commission, the Federal Mine Safety and Health Review Commission, the federal appellate courts and various administrative bodies. He is a frequent author for EHS Today magazine.

Art has testified several times before Congress on OSHA issues. He was chosen by EHS TODAY magazine as among “The 50 People Who Most Influenced EHS in 2012-13.” He was also so chosen in 2010 and 2011.

Before joining the Firm, Art held the position of deputy general counsel of the Occupational Safety and Health Review Commission. He is also a former special counsel and

202-263-0270