Got N95s? Respiratory Protection Leads OSHA’s Most Commonly Cited Standards Related to COVID-19

By Jason Patterson and Tracey Truesdale - Franczek P.C.

December 9, 2020

At the outset of the pandemic, many employers were unsure of how OSHA would conduct inspections and issue citations regarding COVID-19 related issues.  Early guidance from OSHA indicated that regulatory standards could be adopted specific to COVID-19. Though that hasn’t happened, OSHA has invoked its enforcement powers under the General Duty Clause and existing standards to inspect and cite employers for COVID-19 related hazards in the workplace.  OSHA recently issued guidance along with a one-page summary highlighting the most commonly cited standards during COVID-19 related inspections.  OSHA notes that most COVID-19 inspections are initiated based on employee complaints, referrals from other agencies or the reporting of fatalities.    

WHAT ARE THE MOST COMMONLY CITED STANDARDS?

OSHA has identified the following standards as the most cited during COVID-19 related inspections:

- Respiratory Protection (29 CFR 1910.134)
- Recording and Reporting COVID-19 related Occupational Injuries and Illnesses (29 CFR 1904)
- Personal Protective Equipment (29 CFR 1910.132)
- General Duty Clause of the Occupational Safety and Health Act

MANDATORY N95 USE TRIGGERS OSHA’S RESPIRATORY PROTECTION STANDARD

To date, OSHA’s respiratory protection standard leads the list as the most cited standard in COVID-19 related inspections. This is not surprising, because many employers are unaware that OSHA’s respiratory protection standard may apply to them. For example, OSHA requires all employers to conduct a hazard assessment of their workplace to determine whether Personal Protective Equipment (PPE) is necessary in the workplace. In response to public health face covering mandates and the threat of COVID-19 exposure in the workplace, many employers began requiring employees to wear N95 masks, which OSHA deems to be a form of respirator.  In so doing, these employers triggered OSHA’s respiratory protection standard, which requires employers to provide and implement a full written respiratory protection program when they mandate the use of a respirator.

The bulk of issued citations are related to employers failing to implement certain aspects of the respiratory protection program. OSHA’s one-pager highlights common respiratory protection deficiencies including:

- Failing to provide a medical evaluation to employees who will be required to use a respirator, including N95s.
- Failing to properly perform fit testing for employees wearing respirators, including N95s.
- Failing to maintain an updated written respiratory protection program.
- Ensuring that respirators or other issued PPE is the appropriate type and size.
- Failing to properly train employees on the safe use of respirators.
- Failing to properly store respirators.

CLOTH FACE COVERINGS ARE STILL NOT PPE PER OSHA

Various public health guidance issued at the state and local levels has referenced cloth face coverings as “PPE”.  Until recently, the CDC had shied away from this categorization, and OSHA had categorically declared that cloth face coverings are not PPE.  However, on November 12, the CDC announced that some cloth face coverings may serve not only to protect others but also to protect the wearer from COVID-19 exposure.

In response to the CDC’s determination that cloth face coverings may provide some level of personal protection, OSHA opined on whether they are now considered PPE and therefore regulated under the PPE standard (29 CFR 1910.132), stating that they are not:

Since the CDC has determined that some cloth face coverings may both serve as source control and provide some personal protection to the wearer, will OSHA consider them to be personal protective equipment under 29 CFR 1910.132?

Not at this time. OSHA continues to strongly encourage workers to wear face coverings when they are in close contact with others to reduce the risk of spreading COVID-19, if it is appropriate for the work environment. As the agency has previously noted, employers may determine that cloth face coverings must be worn as a feasible means of abatement in a control plan designed to address hazards from COVID-19. Currently, however, OSHA’s guidance is unchanged; OSHA does not consider cloth face coverings PPE and they are not required under OSHA’s PPE standard (29 CFR 1910.132).

The recent CDC scientific brief shows that some cloth face coverings have the potential to provide personal protective benefits. However, the CDC also noted that additional “research is needed to expand the evidence base for the protective effect of cloth masks and in particular to identify the combinations of materials that maximize both their blocking and filtering effectiveness.” Factors such as design, construction, and fabric selection will have a substantial impact on the overall effectiveness of a face covering for personal protection. At this time, OSHA does not think enough information is available to determine whether a particular cloth face covering provides sufficient protection from the hazard of COVID-19 to be personal protective equipment under OSHA’s standard (29 CFR 1910.132). OSHA has typically considered protective equipment designed and constructed to meet a recognized consensus standard to meet the requirements of its PPE standards. OSHA is aware of ongoing efforts to develop an ASTM standard on the design and performance of barrier face coverings. If a consensus standard is developed, it could provide criteria to identify cloth face coverings that would provide effective personal protection.

Though early guidance from OSHA suggested that the agency would relax its enforcement activities and focus instead on assisting employers with COVID-19 compliance, OSHA’s enforcement activities are alive and well. Employers that have not previously encountered OSHA are receiving hazard abatement letters and requests for information.  These are not casual correspondence but are used by OSHA to conduct inspections remotely.  Franczek is prepared to help clients navigate these interactions and bring their operations into compliance before OSHA comes calling.  Employers with questions about OSHA and workplace safety should contact Tracey Truesdale, Jason Patterson, or the Franczek attorney with whom they regularly work.