OSHA Extends Suspension of N95 Annual Fit Testing to All Industries

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

On April 8, 2020, the Occupational Safety and Health Administration (OSHA) issued an enforcement memorandum titled Expanded Temporary Enforcement Guidance on Respiratory Protection Fit-Testing for N95 Filtering Facepieces in All Industries During the Coronavirus Disease 2019 (COVID-19) Pandemic. The memo takes the guidance issued by the agency on March 14, 2020, which suspended annual fit testing requirements for the healthcare industry, and extended it to “all workplaces covered by OSHA where there is required use of respirators.”

OSHA also noted the current shortage of fit-testing kits and test solutions (e.g., Bitrex™, isoamyl acetate) and encouraged employers “to take necessary steps to prioritize use of fit-testing equipment to protect employees who must use respirators for high-hazard procedures.”

Finally, OSHA noted that “[m]ost respirator manufacturers produce multiple models that use the same basic head form for size/fit,” and have a list of respirators with equivalent fit (known as “crosswalks”).  “Therefore, if a user’s respirator model (e.g., model x) is out of stock,” the memo states, “employers should consult the manufacturer to see if it recommends a different model (e.g., model y or z) that fits similarly to the model (x) used previously by employees.”

Takeaways

The memorandum is a welcome relief for those employers outside the healthcare industry that still have N95s. Since annual fit testing often results in destruction of the respirators tested, OSHA’s guidance will help those employers preserve their limited supply and improve the N95 shortage. Still, some employers had hoped that OSHA might excuse initial fit testing requirements (which also destroys respirators) or provide alternatives for medical evaluation. Many employers rely on healthcare vendors to conduct the medical evaluation required under OSHA’s respiratory protection standard. But many vendors have suspended operations or shifted over to devote all efforts to the pandemic response. OSHA has not given any indication of whether it plans to issue any further guidance addressing these topics.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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