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Federal Register / Vol. 86, No. 116 / Monday, June 21, 2021 / Rules and Regulations human remains during the COVID19
pandemic in Collection and Submission of Postmortem Specimens from Deceased Persons with Confirmed or Suspected COVID19 CDC, December 2, 2020. In this guidance, the CDC
recommends respirators while conducting autopsies on decedents in all cases due to the likelihood of aerosol generation during the performance of autopsies CDC, December 2, 2020. The WHO has also issued guidelines for COVID19 infection control for aerosolgenerating procedures during autopsies.
For example, WHO recommends respirators for procedures such as the use of power saws WHO, September 4, 2020.
As supported by the above evidence and guidance from authoritative bodies, OSHA has concluded that healthcare employees have a heightened risk of COVID19 infection when working with patients with known or suspected COVID19. Accordingly, in any healthcare setting where employees are exposed to patients with known or suspected COVID19, whether or not AGPs are performed, employers are required to provide N95s or higher-level respirators and follow all requirements under 29 CFR 1910.134, including medical evaluations and fit testing.

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III. Applicability of the Respiratory Protection Standard to COVID19
OSHAs Respiratory Protection standard 29 CFR 1910.134 has general requirements for respiratory protection for workers exposed to respiratory hazards, including the COVID19 virus.
In the context of the pandemic, the agency has applied the Respiratory Protection standard to situations in healthcare settings where workers are exposed to suspected or confirmed sources of COVID19. OSHAs Respiratory Protection standard has been in effect since 1998 and the purpose of those controls have been established for decades 63 FR 1152, January 8, 1998. The standard contains requirements for the administration of a respiratory protection program, with worksite-specific procedures, respirator selection, employee training, fit testing, medical evaluation, respirator use, respirator cleaning, maintenance, and repair, among other requirements. It is important to note that the standard applies to biological hazards 63 FR
1180, January 8, 1998. Accordingly, the agency will continue to apply the Respiratory Protection standard to work tasks and situations in healthcare as covered by 29 CFR 1910.502.

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IV. Respirator Provisions Tailored to the COVID19 Pandemic Will Clarify Employer Responsibilities Notwithstanding the applicability of the Respiratory Protection standard, as OSHA will explain in this discussion, it is imperative that the ETS contain additional provisions related to the employers discretion to select respirators beyond what is required by 29 CFR 1910.134. These additional requirements are necessary in order to appropriately protect workers in healthcare industries. In the Need for the ETS Section IV.B. of the preamble, OSHA has addressed why existing standards in general are inadequate to address the COVID19 hazard. In this discussion the agency focuses more specifically on how clarifications regarding respirator need and use will help address COVID19 hazards.
Many employers are confused as to when respiratory protection is required for protection against COVID19, leaving many unprotected healthcare workers at high risk of becoming infected with COVID19. This confusion has been exacerbated by two factors. First, many employers that need to provide respirators to protect their workers from COVID19 have never needed to provide respirators to their workers in the past e.g., many employers in the home health care or nursing home sector, or have not had to routinely provide respirators to certain workers in their facilities to protect them against infectious disease hazards e.g., the housekeeping or facilities maintenance staff in some medical facilities. Second, there have been respirator and fit testing supply shortages and a widespread misinterpretation by employers of OSHAs temporary enforcement memoranda on respiratory protection.
One issue of great concern to the agency is a misunderstanding by employers about crisis capacity strategies, which were initially suggested by the CDC as a means to optimize supplies of disposable N95 FFRs in healthcare settings when the alternative would be no respiratory protection at all. Many workers report that their employers have employed crisis capacity strategies as the de facto daily practice, even when additional respirators were available for use. To address these issues, the ETS contains clear mandates on when respiratory protection is required for protection against COVID
19 and contains a note encouraging employers to use elastomeric respirators or PAPRs instead of filtering facepiece respirators to prevent shortages and supply chain disruption.

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To address initial N95 FFR shortages, the CDC began to create and issue a series of strategies to optimize supplies of disposable N95 FFRs in healthcare settings when there is limited supply CDC, April 9, 2021a. The strategies are based on the three general strata that have been used to describe surge capacity to prioritize measures to conserve N95 FFR supplies along the continuum of care Hick et al., June 1, 2009. Contingency measures temporary measures during expected N95 shortages, and then crisis capacity measures emergency strategies during known shortages that are not commensurate with U.S. standards of care, augment conventional capacity measures and are meant to be considered and implemented sequentially. However, as the supply of respirators for healthcare personnel has increased, the CDC and FDA have encouraged employers to transition away from the most extreme measures of respirator conservation, crisis and contingency capacity strategies, to conventional use FDA, April 9, 2021;
CDC, April 9, 2021a. The use of crisis capacity strategies is likely to increase the risk of COVID19 exposure when compared to conventional and contingency capacity strategies.
The CDCs conventional capacity strategies for optimizing the supply of N95 FFRs, which the CDC recommends be incorporated into everyday practices, include a variety of measures, such as training on use and indications for the use of respirators, just-in-time fit testing, limiting respirators during training, qualitative fit testing, and the use of alternatives to FFRs. CDCs conventional capacity strategy recommendation is to use NIOSHapproved alternatives to N95 FFRs where feasible. These include other classes of disposable FFRs, reusable elastomeric half-mask and full facepiece air-purifying respirators, and reusable powered air-purifying respirators PAPRs. All of these alternatives provide equivalent or higher-level protection than N95 FFRs when properly worn. To assist employers in this effort, NIOSH maintains a searchable, online Certified Equipment List identifying all NIOSH-approved respirators NIOSH, n.d., retrieved on January 11, 2021. Since they are reusable, elastomeric respirators and PAPRs have the added advantage of being able to be disinfected, cleaned, and reused according to manufacturers instructions. As such, they can be used by workers after the COVID19
pandemic and during future pandemics that may again create N95 FFR

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