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Federal Register / Vol. 86, No. 116 / Monday, June 21, 2021 / Rules and Regulations
shortages. Consistent with this, the ETS
provides in a note that, where possible, employers are encouraged to select elastomeric respirators or PAPRs instead of filtering facepiece respirators to prevent shortages and supply chain disruption.
Also consistent with this, the ETS
provides in the same note that, when there is a limited supply of filtering facepiece respirators and only when there is a limited supply of filtering facepiece respirators, employers may follow the CDCs Strategies for Optimizing the Supply of N95
Respirators April 9, 2021a. This may include the use of respirators beyond the manufacturer-designated shelf life for healthcare delivery; use of respirators approved under standards used in other countries that are similar to NIOSH-approved N95 respirators;
limited re-use of N95 FFRs; and prioritizing the use of N95 respirators and facemasks by activity type.
However, again, the FDA and CDC are recommending healthcare personnel and facilities transition away from crisis capacity conservation strategies, such as decontaminating or bioburden reducing disposable respirators for reuse, due to the increased domestic supply of new respirators. The FDA and CDC believe there is an increased supply of respirators to transition away from these strategies FDA, April 9, 2021; CDC, April 9, 2021a.
OSHA notes finally that its enforcement of the Respiratory Protection standard has been complicated by the respirator and fittesting supply shortages incurred during the pandemic. In response to these shortages, the agency issued numerous temporary enforcement guidance memoranda allowing its Compliance Safety and Health Officers CSHOs to exercise enforcement discretion when considering issuing citations under the Respiratory Protection standard and/or the equivalent respiratory protection provisions of other health standards during the pandemic OSHA, n.d., Retrieved December 22, 2020. OSHAs temporary enforcement memoranda are aligned with CDCs Strategies for Optimizing the Supply of N95
Respirators, which recommend a variety of conventional, contingency, and crisis capacity control strategies, as mentioned above CDC, April 9, 2021a.
Unfortunately, these memoranda have been widely misinterpreted by employers, resulting in additional confusion about OSHAs respiratory protection requirements during the pandemic. OSHA bases this conclusion on staff expertise and experience, as well as on reporting in news media
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articles Safety + Health, April 9, 2020;
Bailey and Martin, March 19, 2020.
See also Need for the ETS Section IV.B. of the preamble. For example, employers have misinterpreted the temporary enforcement guidance memoranda as offering blanket waivers or exemptions for complying with certain provisions of the Respiratory Protection standard e.g., annual fittesting requirements. In addition, many employers did not understand that these memoranda allow for enforcement discretion by CSHOs only in circumstances where an employer can demonstrate that it made unsuccessful but objectively reasonable efforts to obtain and conserve supplies of FFRs and fit-testing supplies. While the memoranda were intended as guidelines for CSHOs, employer misinterpretation of these memoranda has resulted in fewer protections for workers, particularly in healthcare industries.
OSHA is therefore clarifying that respirators are required for the protection of workers exposed to suspected or confirmed sources of COVID19 in healthcare settings, and in all of those cases the respirators must be used in accordance with the Respiratory Protection standard 29 CFR 1910.134.
OSHA also encourages employers, where possible, to select elastomeric respirators or PAPRs instead of filtering facepiece respirators to prevent shortages and supply chain disruption.
Because the crisis capacity strategy is less protective, the employer should only use crisis capacity strategies for a limited period of time and take immediate steps to purchase and use elastomeric respirators or PAPRs in order to prevent future shortages and further expose their workers to the grave danger of COVID19.
V. Conclusion The best available evidence demonstrates that respirator use is an important means of reducing the likelihood of COVID19 infection of the wearer when used in accordance with 1910.134. Respirators are necessary controls that provide some protection to healthcare workers and healthcare support service workers when exposed to persons with known or suspected COVID19.
Based on the above analysis, the agency concludes that it is necessary to add into the ETS respiratory protection requirements tailored specifically to the COVID19 pandemic. These requirements will assist employers in identifying when respiratory protection is required for healthcare workers and will help address and strengthen worker protection during the pandemic. To this
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end, the ETS takes a prioritization approach to the conservation of respirators by requiring the use of respirators only where airborne transmission is the most likely when employees are exposed to persons with suspected or confirmed COVID19, or in accordance with Standard and Transmission-Based Precautions in healthcare settings.
The increased certainty associated with the respirator requirements in the healthcare section and added flexibility of allowing employers to follow 29 CFR
1910.504 in some limited circumstances will lead to more compliance, and more compliance will lead to improved protection of workers. In addition, a note in the ETS will better inform employers that they can consider selecting from other NIOSH-approved respirator options i.e., elastomeric respirators and PAPRs as alternatives to N95 FFRs for protection against COVID
19, as well as other respiratory infections e.g., tuberculosis, varicella, etc. both during the pandemic and beyond. Knowledge of alternative respiratory protection options for healthcare employers to consider will help them choose appropriate alternative respirators and help mitigate respirator supply shortages.
References Bailey, M. and Martin, J. 2020, March 19.
OSHA allows healthcare employers to suspend N95 annual fit-testing during Coronavirus Outbreak. The National Law Review. https
www.natlawreview.com/article/oshaallows-healthcare-employers-to-suspendn95-annual-fit-testing-during. Bailey and Martin, March 19, 2020.
Centers for Disease Control and Prevention CDC. 2020, March 12. What healthcare personnel should know about caring for patients with confirmed or possible COVID19. https
www.cdc.gov/coronavirus/2019-ncov/
hcp/caring-for-patients-H.pdf. CDC, March 12, 2020.
Centers for Disease Control and Prevention CDC. 2020, May 29. Considerations for preventing spread of COVID19 in assisted living facilities. https
www.cdc.gov/coronavirus/2019-ncov/
hcp/assisted-living.html. CDC, May 29, 2020.
Centers for Disease Control and Prevention CDC. 2020, October 16. Interim guidance for implementing home care of people not requiring hospitalization for COVID19. https www.cdc.gov/
coronavirus/2019-ncov/hcp/guidancehome-care.html. CDC, October 16, 2020.
Centers for Disease Control and Prevention CDC. 2020, December 2. Collection and submission of postmortem specimens from deceased persons with confirmed or suspected COVID19.

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