Requiring Employees to Wear N95 Masks? Better Have a Respiratory Protection Program or Risk OSHA Citations

Recent enforcement activity by the Occupational Safety and Health Administration (“OSHA”) underscores the risks posed by the deployment of N95 and other respirators by long-term care providers, including nursing homes and assisted living facilities, without having complied with OSHA mandates under its respiratory protection standard.

OSHA announced earlier this month that it had cited the owner of three Ohio nursing homes for violating the respiratory protection standard after seven employees of those homes required hospitalization related to the coronavirus.  Specifically, OSHA cited each home for failing to develop a comprehensive written respiratory protection program and failing to provide medical evaluations to determine employees’ ability to use a respirator, such as an N95 mask, in the workplace.  The agency also issued a Hazard Alert Letter related to the company’s failure to conduct initial fit testing of the respirators and its practice of allowing its employees to use the same N95 mask for up to seven days.  OSHA proposes to assess $40,482 in penalties as a result of the violations.

The citations come despite the company’s efforts toward implementing a respiratory protection program at the facilities.  OSHA noted that despite those efforts, the company had not fully implemented the program.  Further, a high-ranking OSHA official stated that the agency “has and will continue to vigorously enforce the respiratory protection standard,” as well as other OSHA standards applicable to worker health and safety during the coronavirus pandemic.

Under OSHA’s respiratory protection standard, employers who mandate that employees wear respirators – including N95 or similar masks – must establish and implement a written Respiratory Protection Program (“RPP”) that includes the following elements, among others:

• Procedures for selecting respirators
• Medical evaluations of employees required to use respirators to ensure there are no contraindications to wear a respirator, such as asthma or other conditions
• Fit testing procedures to ensure that the respirator creates the proper seal
• Procedures for the proper use of respirators in reasonably foreseeable circumstances
• Procedures and schedules for cleaning, disinfecting, storing, inspecting, repairing, discarding, and otherwise maintaining the respirators
• Training

If you have any questions about any aspect of OSHA’s respiratory protection standard or any other of the many rapid developments related to the coronavirus pandemic, please contact a member of AGG’s Healthcare Law Team.