OSHA Guidance Allows Alternatives in Light of N95 Shortage Due to Coronavirus

08 April 2020 Blog
Authors: Scott T. Allen Taylor Eric White Katelynn M. Williams
Published To: Coronavirus Resource Center Labor & Employment Law Perspectives

On April 3, 2020, OSHA issued enforcement guidance that temporarily permits the extended and re-use of respirators as well as other alternatives, and clarifies when respirators, including N95 masks, may continue to be used generally and in the health care setting. Below is an outline and summary of that guidance, as well as other OSHA considerations for Personal Protection Equipment (PPE) and safety measures in light of the COVID-19 pandemic and CDC recommendations regarding the same. 

N95 Respirators

29 C.F.R. § 1910.134(a)(2) states that “[a] respirator shall be provided to each employee when such equipment is necessary to protect the health of such employee” and that “[t]he employer shall provide the respirators which are applicable and suitable for the purpose intended.” However, OSHA recognizes that respirators are often in short supply during pandemics and has suggested that alternative measures or PPE can be utilized under the circumstances. 

To be sure, OSHA still requires, among other things, all employees using N95 masks to be initially fitted for and trained in the proper usage of the same (e.g., perform a user seal check upon each donning). OSHA will also require employers explore and document their efforts to obtain additional N95s or appropriate, OSHA-accepted alternative PPE. In its enforcement guidance, OSHA specifically instructs employers to “reassess their engineering controls, work practices, and administrative controls to identify any changes they can make to decrease the need for N95 respirators.” This means that “[e]mployers should, for example, consider whether it is possible to increase the use of wet methods or portable local exhaust systems or to move operations outdoors[,]” and “[i]n some instances, an employer may also consider taking steps to temporarily suspend certain non-essential operations.”

But OSHA will utilize a “case-by-case basis” in exercising its enforcement discretion during the COVID-19 pandemic. Specifically, OSHA will use its discretion and not issue citations to employers based on extended or re-use of respirators by workers as long as the respirators maintain their structural and functional integrity and are not physically damaged, soiled, or contaminated. And, of course, before re-using a respirator, employees should confirm that it fits properly and perform a “user seal check” to ensure that air does not leak in and out.  Employers should therefore:

  • Train workers so they understand how to put on respirators and discard respirators that are damaged or compromised;

  • Make good faith efforts to obtain alternative respirators that provide equivalent protection before using expired N95 masks;

  • Monitor their supply of N95 masks and prioritize the use of masks in accordance with CDC guidance; and

  • Take other measures to reduce the need for respiratory protection, where possible.

And when the use of expired N95 masks is necessary, OSHA recommends:

  • Using only previously NIOSH-certified N95 masks;

  • Notifying workers that they are using expired masks;

  • Not comingling expired masks with other equipment that is within its shelf life; 

  • Visually inspecting masks to ensure they fit and are not damaged or compromised; and

  • Seeking assistance from the manufacturer or an independent lab for testing prior to use.

For health care employers, expired N95 masks may not be used to perform “surgical procedures on patients infected with, or potentially infected with, SARS-CoV-2” or “for procedures expected to generate aerosols or procedures where respiratory secretions are likely to be poorly controlled (e.g., cardiopulmonary resuscitation, intubation, extubation, bronchoscopy, nebulizer therapy, sputum induction).”  OSHA further advises that health care employers:

  • Prioritize the use of N95 masks by activity type; and

  • Consider whether other types of respirators, which are still within their shelf life and provide equivalent protection, are available before using expired N95 masks.

Some businesses and healthcare systems have even taken to sterilizing N95’s for re-use. 

But as noted, OSHA generally encourages that all employers reassess their respiratory protection programs to identify changes that can decrease the need for N95 respirators given the nationwide shortage. OSHA’s enforcement guidance expressly allows employers “to consider use of alternative classes of respirators that provide equal or greater protection compared to an N95 FFR, such as NIOSH-approved, non-disposable, elastomeric respirators or powered, air purifying respirators (PAPRs).” OSHA also states that “[o]ther filtering face piece respirators, such as N99, N100, R95, R99, R100, P95, P99, and P100, are also permissible alternatives for those who are unable to obtain N95 FFRs.” Thus, if the usage and protections are comparable and if they are “NIOSH-approved,” OSHA appears to take the position that they may be accepted under its interim enforcement rule. A list of NIOSH-approved PPE alternatives can be found on the CDC’s webpage here. Employers should also consult with manufacturer’s specifications, instructions, or testing information when making these sorts of comparative assessments and ultimate decisions on which alternative PPE to use. 

The FDA has also issued enforcement policies to address shortages of N95 masks and other personal protective equipment.  

General Considerations Regarding Worker Safety in Light of CDC Recommendations

In addition to the above guidance for employees required to wear N95s in their normal job duties, what about other workers who may not otherwise be required to do so? Are there considerations applicable to them as well under OSHA guidance? 

As the CDC recognizes, “the virus can spread between people interacting in close proximity—for example, speaking, coughing, or sneezing—even if those people are not exhibiting symptoms.” (emphasis added). For that reason, last Friday, April 3, the CDC began recommending that everyone wear appropriate face coverings to help stop the spread of the illness. So how does that interplay with OSHA’s guidance? It depends on the level of risk associated with the particular employees. 

OSHA recommends monitoring CDC recommendations and guidelines for measures to protect “lower exposure risk” workers, as it relates specifically to hazards associated with workplace exposure to COVID-19. OSHA defines “lower exposure risk” workers as those with job duties that “do not require contact with people known to be, or suspected of being, infected.” Workers in this category are those with minimal, if any, occupational contact with the public or other coworkers. OSHA generally does not recommend additional PPE (such as N95s or face coverings, unless otherwise required), or additional engineering controls (e.g., plastic sneeze guards) or administrative controls (e.g., limiting customer access), even in the COVID-19 pandemic. But, since the CDC is recommending face coverings now, it is probable that OSHA would encourage and approve of the use of the same for all employees. 

OSHA generally requires more robust PPE requirements and safety measures for “medium exposure risk” employees (e.g., those in in schools, high-population density work environments, and some high-volume retail settings), “high exposure risk” employees (e.g., workers in healthcare delivery, healthcare support, medical transport, and mortuary workers), and “very high exposure risk” employees (e.g., “healthcare and morgue workers performing aerosol-generating procedures on or collecting/handling specimens from potentially infectious patients or bodies”). In that regard, OSHA recognizes though (at least for medium exposure risks) that “[i]n the event of a shortage of masks, a reuseable face shield that can be decontaminated may be an acceptable method of protecting against droplet transmission.” (emphasis added). Subject to the level of risk at issue, employers should also consider, document, and implement appropriate and effective engineering and administrative controls, where feasible. These controls include, depending on risk level, installing “physical barriers” (e.g., plastic sneeze guards), limiting customer access, implementing strategies to minimize face-to-face contact (e.g., teleworking), using isolation rooms, posting appropriate signage, conducting appropriate training, and/or even providing appropriate psychological and behavioral support to deal with stress. 

Retaliation Reminder

Notwithstanding OSHA’s latest guidance, employers should remain mindful that all employees have a right to a safe workplace—including (if not especially) during the COVID-19 pandemic.  To that end, on April 8, 2020, OSHA issued a “reminder” that it is illegal to retaliate against workers for reporting unsafe and unhealthful working conditions.  Compliance with all safety protocols and/or OSHA guidance on acceptable alternatives and assessments of risk levels during the pandemic could avoid such reports from the outset, and will, at the least, best position employers should OSHA come calling in response to an employee concern. 

We will continue to keep you apprised of relevant developments. Check Foley's Coronavirus Resource Center for insights and resources to support your business during this challenging time.To receive this content directly in your inbox, click here and submit the form.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services