Due to the evolving coronavirus (“COVID-19”) pandemic and emergence of outbreaks across the country, there have been widespread reports of critical shortages of personal protective equipment (“PPE”), such as masks, face shields, and gowns. OSHA previously issued guidance, including an April 3, 2020 memorandum and interim guidance and a March 14, 2020 enforcement memorandum, which alleviated some concerns on enforcement of the respiratory protection standard, 29 CFR § 1910.134, and certain other health standards, resulting from severe shortages in respirator availability. However, while this guidance relaxed some requirements for respirators, including specifically N95s and other filtering facepiece respirators (“FFRs”), OSHA’s guidance regarding annual fit-testing requirements only applied to employers in the health care industry. As a result, employers in other industries, such as construction and manufacturing, continued to face significant compliance hurdles in relation to respirator supplies, training, and required fit-testing.
To address annual fit-testing compliance challenges faced by non-health care industries, OSHA issued a new enforcement memorandum on April 8, 2020 (“Enforcement Guidance”), expanding its prior guidance on fit-testing requirements to cover workers in all industries, not just health care workers. Under this new Enforcement Guidance, OSHA field offices are instructed to “exercise enforcement discretion” with respect to annual fit-testing requirements in cases where “employers have made good-faith efforts to comply” with the respiratory protection standard. Notable, however, is the Enforcement Guidance’s indication that a “good-faith effort” by an employer will require:
- Assessment of engineering controls,
- Consideration of work practices, and
- Potential administrative controls that would decrease the need for use of N95s or other FFRs.
In addition, OSHA’s Enforcement Guidance suggests that an employer may need to “temporarily suspend certain non-essential operations,” and adjust fit-testing procedures to prioritize fit-testing of equipment needed to protect employees working in high-hazard areas. OSHA’s Enforcement Guidance further makes clear that this new guidance, while making considerations for annual fit-testing requirements due to the COVID-19 pandemic, is not alleviating remaining compliance obligations under the respiratory protection standard, including specifically those relating to initial fit testing, maintenance, care, and training.
