In the last few days, considering the shortage of N95 filtering facepiece respirators (FFRs) that has resulted from the COVID-19 outbreak, the Occupational Safety and Health Administration (OSHA) issued two enforcement guidance memorandums related to the use of respirators by healthcare and non-healthcare employers.  The guidance is directed to employers whose employees are required to use or are permitted voluntary use of respiratory protection in accordance with OSHA’s Respiratory Protection standard and certain other health standards.  Both memoranda are discussed in more depth below, but in short, the first memorandum gives employers relief to extend the use of National Institute for Occupational Safety and Health (NIOSH)-approved N95 respirators and to permit the reuse of them.  The second memorandum generally discusses the circumstances in which the use of respirators certified under certain standards of other countries or jurisdictions may be permissible.

Memorandum Number One:

OSHA begins its first memorandum by generally advising employers whose employees are required or permitted to use respiratory protection to (1) continue to administer their respiratory protection programs in accordance with applicable OSHA standards; (2) reassess administrative and engineering controls and work practices to identify changes that can be made to decrease the need for N95 respirators (e.g., moving operations outside or temporarily suspending certain non-essential operations); and (3) consider the use of alternative respirators that provide equal or greater protection than the N95 respirators in situations where respiratory protection must be used.

The memorandum also provides the following guidance for employers with respect to workplaces where employees are using N95 respirators:

All employers may either extend the use of or reuse N95 respirators where the use of an alternative respirator is not available or when the use of an alternative respirator creates additional safety or health hazards.  However, for the extended use or reuse of N95 respirators to be permissible, the following conditions must be met:

• The respirator must maintain its structural and functional integrity;
• The filter material cannot be physically damaged, soiled, or contaminated; and
• An employer’s respiratory protection program must address any circumstances where a respirator is contaminated and not available for extended use/reuse.

All employers may use expired N95 respirators where non-expired N95 respirators are not available and a good faith effort has been made to acquire N95 respirators or use alternative options. However, for the use of expired N95 respirators to be permissible, the following conditions must be met:

• The expired N95 respirator must be NIOSH-certified; and
• The expired N95 respirator may not be stored with non-expired personal protective equipment.

With respect to the use of expired N95 respirators, the memorandum also suggests that all employers:

• Conduct a visual inspection of expired N95 respirators to confirm whether the structural/functional integrity of the respirator has been compromised; and
• Seek assistance from a respirator manufacturer or independent lab regarding the testing of their own cache of stored respirators.

For healthcare employers, personnel may not use expired N95 respirators when performing surgical procedures on patients infected with, or potentially infected with COVID-19, or when present during procedures expected to produce aerosols or secretions that are likely to be poorly controlled.

In sum, in order to avoid citation by OSHA, an employer without a supply of non-expired N95 respirators must:

• Make a good-faith effort to obtain other alternative FFRs, reusable elastomeric respirators, or powered, air-purifying respirators (PAPRs);
• Monitor its supply of N95 respirators and prioritize their use according to CDC guidance;
• Provide surgical masks and eye protection as an interim measure to protect against splashes and large droplets; and
• Implement other feasible measures, such as using partitions or using other engineering or administrative controls, to reduce the need for respiratory protection.

To read the memorandum in full, simply click on the following link or copy and paste it into your web browser: https://www.osha.gov/memos/2020-04-03/enforcement-guidance-respiratory-protection-and-n95-shortage-due-coronavirus

Memorandum Number Two:

The second memorandum provides the following guidance to employers where N95 respirators (both non-expired and expired) are unavailable and employees wish to use respirators and/or filters in accordance with standards of other countries or jurisdictions.

Employers must first attempt to eliminate or substitute out workplace hazards and implement controls and safe work practices to prevent exposure to respiratory hazards. Then, all employers must prioritize the acquisition and use of equipment in the following order:

• NIOSH-certified equipment;
• Equipment certified in accordance with standards of other countries or jurisdictions except for the People’s Republic of China (unless equipment certified in accordance with standards of the People’s Republic of China is manufactured by a NIOSH certificate holder);
• Equipment certified in accordance with standards of the People’s Republic of China where the manufacturer is not a NIOSH certificate holder, and finally,
• Facemasks (e.g., medical masks, procedure masks).

For healthcare employers, personnel performing either surgical procedures on patients infected with (or potentially infected with COVID-19) or present during procedures expected to produce aerosols or secretions that are likely to be poorly controlled are only permitted to use respirators certified exclusively in accordance with standards of the People’s Republic of China and manufactured by companies that are not NIOSH approval holders when the only feasible alternative is a facemask or improvised nose/mouth cover.

Healthcare employers may reserve NIOSH or foreign certified N95 respirators or better respirators for this healthcare personnel but must be able to provide reasonable justification for the reservation of such respirators, particularly in situations where employees perform other tasks are provided with alternate equipment.

Finally, similar to the first memorandum, the second memorandum states that employers can avoid a citation from OSHA by: implementing other feasible measures (e.g., using partitions) to protect employees; making a good faith effort to obtain alternative, appropriate respirators (including expired N95 respirators); providing surgical masks and eye protection as an interim measure to protect against splashes and large droplets; and in healthcare, monitoring its supply of N95 respirators and prioritize their use according to CDC guidance.

To read the memorandum in full, simply click on the following link or copy and paste it into your web browser: https://www.osha.gov/memos/2020-04-03/enforcement-guidance-use-respiratory-protection-equipment-certified-under

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Because legal developments pertaining to COVID-19 are constantly evolving, we recommend that our clients call the Kullman Firm attorney(s) with whom they work for the most current guidance on these matters.