On April 3, 2020, US OSHA issued two Enforcement Guidance memos, which for the first time provide guidance to all industries, including healthcare, regarding how to comply with OSHA rules in the face of N95 shortages. The first document is entitled “Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to Coronavirus Disease 2019 (COVID-19) Pandemic” (N95 Shortage Guidance). The N95 Shortage Guidance informs all employers whose employees are required to use, or permitted to voluntarily use, respiratory protection, the limited circumstances in which an OSHA inspector may, on a “case-by-case basis, exercise enforcement discretion” when an employer deviates from OSHA’s current respiratory protection standards, including OSHA’s principal rules at 29 CFR §1910.134 (the Respiratory Standard). While offering some relief from the threat of an OSHA enforcement action, the N95 Shortage Guidance also serves to reemphasize employers’ continuing obligations under the Respiratory Standard despite the short, often non-existent, supply of respiratory protection equipment.
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