In response to the current shortage of N95 respirators, OSHA has released guidance regarding the enforcement of its respiratory protection standard. On March 24, ABC, as a member of the Construction Industry Safety Coalition Steering Committee, wrote to the U.S. Department of Labor’s Occupational Safety and Health Administration regarding recordkeeping and respirator enforcement during the COVID-19 outbreak. OSHA has issued two separate memoranda that need to be read together to fully understand the agency’s position.
According to an analysis written by ABC general counsel Littler Mendelson P.C., “The memoranda concern different, but related, issues facing employers with respect to the respirator shortage. While they do not address many of the issues facing employers regarding respirator shortages and do not discuss the implications of employers’ donating their stockpiles of respirators to healthcare workers, the memoranda give employers limited relief from OSHA’s respiratory protection standard as a result of the outbreak. The memoranda apply to all industries and are “time-limited to the current public health crisis.”
First Memorandum: U.S. Department of Labor Issues Guidance for Respiratory Protection During N95 Shortage Due to Covid-19 Pandemic gives employers relief to extend the use of National Institute for Occupational Safety and Health-approved respirators and to permit the reuse of them.
Second Memorandum: U.S. Department of Labor Issues Guidance for Respirators Certified Under Other Countries’ Standards During Covid-19 Pandemic allows employers in certain circumstances to use respirators approved by another country, where NIOSH-approved respirators are not available.
The analysis further states, “While OSHA’s guidance provides some flexibility for employers, it does not address all employer concerns with respect to supply shortages. For example, it requires employers to reassess engineering or work-practice controls, even though by policy—employers will have already implemented all engineering and work-practice controls before using respiratory protection. It also provides non-healthcare employers no relief if they donate N95 FFRs to healthcare workers, as that situation is not addressed in either memorandum. In fact, to receive enforcement relief, an employer must have in good faith attempted to obtain N95 respirators.” In other words, if you need to use N95s to do the work, you have to in good faith try to get current NIOSH-approved N95s, before using other respirators.
Employers should carefully review the OSHA guidance and adjust their respiratory protection practices accordingly.
For additional OSHA resources, visit the agency’s coronavirus webpage.
This article is intended for informational purposes only and does not constitute legal advice or opinion.