On July 7, 2021, the US Occupational Safety and Health Administration issues an Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) regarding enforcement discretion for periodic respiratory protection equipment shortages and associated constraints (i.e., fit-testing supplies and provision of related services) during the COVID-19 pandemic.
“In light of these recent pronouncements from CDC and FDA, circumstances precipitating the issuance of OSHA’s respiratory protection enforcement discretion memoranda no longer exist. Therefore, where respirator supplies and services are readily available, OSHA will cease to exercise enforcement discretion for temporary noncompliance with the Respiratory Protection standard based on employers’ claims of supply shortages due to the COVID-19 pandemic. Similarly, the agency will no longer exercise enforcement discretion of requirements in other health standards. As such, OSHA is rescinding its previous temporary enforcement discretion memoranda. It should be noted that the ETS discourages, but allows reuse of FFRs in covered healthcare-associated industries only when facing shortages of FFRs under certain conditions and for limited periods of time. OSHA will address such case-specific situations using the appropriate provisions in 29 CFR § 1910.502 and/or 29 CFR § 1910.504.”
“The following summarizes OSHA’s updated enforcement strategy for reducing the risk of workplace transmissions of SARS-CoV-2:
- OSHA will continue to implement the U.S. Department of Labor’s (DOL) COVID-19 Workplace Safety Plan to reduce the risk of COVID-19 transmission to OSHA CSHOs during inspections,4 and recommend following current COVID-19 guidelines from the CDC.
- OSHA will continue using the revised NEP for COVID-19, DIR 2021-03 (CPL 03), to prioritize COVID-19-related inspections involving deaths or multiple hospitalizations due to occupational exposures to SARS-CoV-2, to conduct follow-up inspections, and to target high hazard industries. In addition, the NEP focuses on ensuring that workers are protected from retaliation.
- Enforcement of protections for healthcare and healthcare support service workers in settings where people with COVID-19 are expected to be present are covered under the ETS, 29 CFR § 1910.502 and 29 CFR § 1910.504. Inspection instructions for entities covered by the ETS are outlined in DIR 2021-02 (CPL-02), issued on June 28, 2021.
- This Updated Interim Enforcement Response Plan outlines inspection procedures to enable CSHOs to identify exposures to COVID-19-related hazards in non-healthcare settings, and to ensure that appropriate control measures are implemented. Worker protections in non-healthcare industries will be focused on employees who are unvaccinated or not fully vaccinated, including whether such employees are working indoors or outdoors.
- This memo instructs CSHOs on addressing violations of OSHA standards (other than the ETS) and the General Duty Clause in workplaces not covered by the COVID-19 ETS.
- When conducting inspections, the following apply:
- OSHA will perform onsite COVID-19 inspections, in most cases.
- OSHA will, when appropriate, use phone and video conferencing, in lieu of face-to-face employee interviews, to reduce potential exposures to CSHOs. In instances where it is necessary and safe to do so, in-person interviews will be conducted.
- OSHA will minimize in-person meetings with employers if necessary and encourage employers to provide documents and other data electronically or by mail to CSHOs.
- Area Directors (AD) shall ensure that CSHOs are prepared and equipped with the appropriate precautions and personal protective equipment (PPE) when performing on-site inspections related to COVID-19 and throughout the pandemic.
- To the extent possible, all inspections will be conducted in a manner to achieve expeditious issuance of COVID-19-related citations and abatement.
- In cases where on-site inspections cannot safely be performed (e.g., if the only available CSHO has reported a medical contraindication), the AD may approve remote-only inspections.
- Inspections conducted entirely remotely will be documented and coded as N-10-COVID-19 REMOTE in the OSHA Information System (OIS).
See: Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19) OSHA) July 7, 2021.
Related blog posts: OSHA and the COVID-19 Emergency Temporary Standard [ETS]
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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters). For over 4 decades the Law Offices of Jon L Gelman 1.973.696.7900 jon@gelmans.com has been representing injured workers and their families who have suffered occupational accidents and illnesses.
Jon L. Gelman | Attorney at Law
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Recommended Citation: Jon L. Gelman, Annual respirator fit-testing again required by OSHA Workers' Compensation Blog (Jul. 15, 2021), https://workers-compensation.blogspot.com/2021/07/annual-respirator-fit-testing-again.html
