Workplace Safety and Health News Alert

OSHA Updates Industry Guidance and Enforcement Discretion Regarding N95 Mask Use

April 3, 2020

On April 3, 2020, OSHA issued updated guidance on the use of N95 masks as a result of shortages of these masks for Health Care Providers and other industry across the country. This guidance is meant as a supplement to N95 fit test guidance issued on March 14, 2020. The updated guidance provides overarching guidance for all industries that commonly use N95 masks as well as specified guidance for Health Care Providers (“HCP”).

Guidance for all industries:

N95 Respirators may be reused under specific conditions. The respirator must be reused only by one employee. The respirator must not be damaged or worn in such a way that the seal of the respirator is impacted. The filtration cartridge must not be damaged, soiled or contaminated. Employers must provide updated plans and training to all employees to understand the conditions to look for in identifying damage or other conditions that would require replacement. If employers show a good faith effort to procure N95 respirators but are unable to, they may use respirators which have exceeded the manufacturer’s suggested shelf life (expired) under certain conditions. Workers must be made aware that the equipment is expired, the equipment must be visually inspected by employer and employee prior to use, and current and expired products should not be co-mingled. 

For Medical Providers

Employers of HCPs are prohibited from using expired N95 respirators in any situation that would likely expose workers to aerosolized coronavirus particles and should prioritize workers based on likely exposures. All appropriate and current masks should be used prior to the use of expired masks, and expired masks should only be used in areas where direct exposure to coronavirus contamination is low. 

Mitigation

The enforcement of this guidance is still based on the discretion of the inspector and will be managed on a case by case basis. However, employer actions that will be considered mitigating factors reducing the likelihood of citation are:

• The employer has made a good faith effort to obtain other alternative filtering face-piece respirators, reusable elastomeric respirators, or PAPRs appropriate to protect workers;
• The employer has monitored their supply of N95s and prioritized their use according to CDC guidance (www.cdc.gov/coronavirus/2019-ncov/release-stockpiled-N95.html; www.cdc.gov/coronavirus/2019-ncov/hcp/respirators-strategy/index.html);
• Surgical masks and eye protection (e.g., face shields, goggles) were provided as an interim measure to protect against splashes and large droplets (note: surgical masks are not respirators and do not provide protection against aerosol-generating procedures); and
• Other feasible measures, such as using partitions, restricting access, cohorting patients (healthcare), or using other engineering controls, work practices, or administrative controls that reduce the need for respiratory protection, were implemented to protect employees.

Jackson Kelly has a dedicated team of Employment and Health and Safety attorneys who are staying current on the rapid developments resulting from the COVID-19 response. Please direct any questions to the firm.