As the need for face masks in healthcare settings continues to grow because of the Coronavirus epidemic and the resulting severe shortage of N95 filtering facepiece respirators (FFRs), the Occupational Safety and Health Administration (OSHA) has issued two new guidance memorandums on enforcement of its respiratory protection standard in workplaces.
Until April 3, OSHA had not provided any guidance to employers who were not in the healthcare industry regarding their potential OSHA liability if respirators are not available following the recommendations by top federal government officials that businesses donate their supplies of N95 FFRs to healthcare workers.
“Employers should carefully review the OSHA guidance and adjust their respiratory protection practices accordingly,” recommends attorney Bradford T. Hammock of the law firm of Littler Mendelson PC. “In fact, to receive enforcement relief, an employer must have in good faith attempted to obtain N95 respirators. Donating supplies of N95 respirators would be inconsistent with demonstrating good faith to obtain N95 respirators,” he warns. “Thus, if non-healthcare employers choose to donate their N95 FFRs to healthcare workers, they could still be subject to citation.”
The guidance also comes after the Presidential Coronavirus Task Force and the Centers for Disease Control and Prevention (CDC) have urged the general public to wear on a voluntary basis “cloth face coverings in public settings where other social distancing measures are difficult to maintain (e.g., grocery stores and pharmacies), especially in areas of significant community-based transmission” of the Coronavirus.
The CDC recommended the cloth masks as an alternative to the N95 masks, which are in short supply, and are considered to be a higher priority for medical personnel and first responders.
Essential businesses in non-healthcare settings may decide to provide face masks to their employees, but they should review whether they have any special health and safety obligations to these workers, according to attorneys Matthew Thomas Deffebach and Mini Kapoor of the law firm of Haynes and Boone LLP.
Although the CDC recommendation is for voluntary use, an employer could be compelled to require certain employees to wear masks. If employees are considered “medium risk” for COVID-19 exposure because, for example, they have frequent contact with individuals within six feet, then using a mask may be required.
“Wearing a mask could be viewed as a form of administrative control and part of the employer’s obligation to provide a safe workplace,” Deffebach and Kapoor observe. “By contrast, if masks are not required based on the employer’s hazard assessment, the employers should clearly communicate that use is voluntary to avoid potential OSHA obligations.”
For this reason, employers need to carefully consider OSHA obligations when requiring employees to wear masks. Bandannas and other cloth materials that are not designed to be face protection under OSHA’s PPE standard could still be considered a form of administrative control as a safe work practice when used in conjunction with other controls like social distancing.
“Consequently, while it would not be proper to treat such cloth masks as PPE under the OSHA standard, an employer would still have obligations when using them as a form of administrative control to ensure employees use them safely,” Deffebach and Kapoor say.
Because cloth masks could be seen as a form of administrative control, an employer most likely will need to provide general information on safe usage of any required mask. For mandatory use, employers need to emphasize the limitations of cloth and surgical masks so that it is clear to employees that—unlike N-95 respirators—these masks lack a filtration system that prevents particles from entering the lungs.
What OSHA Has to Say
OSHA’s most recent enforcement guidance documents expand the agency’s discretionary enforcement policy regarding N-95 respirators to all industries, including specifically healthcare personnel and workers in other industries who are facing respirator shortages due to the coronavirus pandemic, such as the construction industry.
OSHA outlines specific enforcement discretion allowing for extended use and reuse of respirators, and in some circumstances use of respirators that have “expired” or are older than the manufacturer’s recommended shelf life. OSHA’s guidance is, however, time-limited to the current public health crisis. In addition, employers are expected to continue to manage their respiratory protection programs (RPPs) in accordance with the OSHA respirator standard.
The first OSHA guidance gives employers relief to extend the use of National Institute for Occupational Safety and Health (NIOSH)-approved respirators and to permit the reuse of them. The second memorandum allows employers in certain circumstances to use respirators approved by another country, when NIOSH-approved respirators are not available.
In regard to the extended use and reuse of N95 FFRs with an expired shelf life, employers may use only previously NIOSH-certified expired N95 FFRs. OSHA says employers are expected to “visually inspect, or ensure that workers visually inspect, the N95 FFRs to determine if the structural and functional integrity of the respirator has been compromised. Over time, components such as the straps, nose bridge and nose foam material may degrade, which can affect the quality of the fit and seal.”
As OSHA explains in its second memorandum, it permits the use of FFRs and air-purifying elastomeric respirators that are either certified under certain standards of other countries, or previously certified under the other countries’ standards but are beyond their manufacturer’s recommended shelf life. (The latter option is available only if non-expired equipment certified under other countries’ standards is not available.)
All employers should reassess their engineering controls, work practices and administrative controls to identify any changes they can make to decrease the need for N95 FFRs, OSHA asserts.
OSHA does not explain in the memorandum how this assessment differs from an employer’s previous obligations to implement all feasible engineering and work-practice controls before using respirators, Hammock points out. However, OSHA states that in “some instances, an employer may also consider taking steps to temporarily suspend certain non-essential operations.”
If respiratory protection must be used, employers should consider alternative types of respirators that provide equal or greater protection compared to an N95 FFR. OSHA does not address potential shortages of these respirators during the COVID-19 crisis or the fact that because these other NIOSH-approved respirators also may be appropriate for use in healthcare settings, they are likely to be in short supply.
Cressinda D. Schlag, an attorney with the law firm of Jackson Lewis PC, explains that the OSHA enforcement guidance also provides employers with more than one specific workaround to current respirator supply shortages. Alternatives include:
● Allowing workers to extend use of or reuse N95 FFRs, provided the mask is used by only one worker, is not contaminated or damaged, and maintains structural and functional integrity.
● Allowing employers to use N95 FFRs that have exceeded the manufacturer’s recommended shelf life, including surgical N95s, in some situations where N95s are not readily available.
● To the extent respiratory protection is required and N95 FFRs would normally be used but are unavailable, employers are permitted to consider alternative classes of respirators so long as they provide equal or greater protection to an N95 FFR.
Schlag says employers should be aware that OSHA’s guidance does not eliminate or reduce any obligation to protect employees from a potential respiratory hazard. In the event respirators are not readily available because of supply shortages, OSHA makes clear that it will expect employers to reassess whether other kinds of acceptable controls are available to eliminate or control the exposure.
For example, in dusty environments where an employer would normally control potential respiratory hazards using a dust mask or respirator, the employer may need to use a wet method or portable local exhaust system to control dust exposure if dust masks or respirators are unavailable.
Schlag also reminds employers that OSHA’s guidance does not eliminate or reduce other compliance obligations under the agency’s respiratory protection and corresponding PPE standards, including specifically compliance obligations related to hazard assessments, inspections and training.
“While ultimately, OSHA’s guidance brings the agency’s position on respirators more in line with guidance from the CDC regarding extended use and limited reuse of respirators, employers facing respirator supply shortages, stretched resources and operational restrictions in light of the COVID-19 pandemic will continue to face compliance challenges,” Schlag concludes.
