The COVID-19 pandemic has thrust many long-term care providers, including nursing home, assisted living, and other health care providers, into uncharted waters, forcing them to secure adequate supplies of personal protective equipment to protect staff and residents. For providers that have never required staff to wear face coverings, it may come as a shock to learn that mandatory deployment of N95 or other respirators triggers a host of extensive and costly compliance obligations under Occupational Safety and Health Administration (“OSHA”) respiratory protection regulations. Failure to comply with these regulations can lead to investigation, citations, and even fines.

Unbeknownst to many long-term care providers, OSHA’s definition of “respirator” actually encompasses a variety of face coverings that either filter contaminated ambient air, like the N95 mask, or provide a clean source of air for the user, such as the respirators used in firefighting.  Accordingly, through their efforts to keep staff safe and comply with OSHA and Centers for Disease Control and Prevention (“CDC”) guidance, many long-term care providers have unwittingly exposed themselves to OSHA violations by requiring respirator usage without first taking certain regulatory compliance measures.

Under OSHA’s respiratory protection standard,¹   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

Importantly, OSHA’s RPP standard is not simply a compliance obligation for industrial or manufacturing companies.  Rather, its strictures apply to any employer (including nursing homes, assisted living facilities, and other health care providers) when the use of respirators is required to protect the health of employees.  For long-term care and other health care providers there are less burdensome options available under certain circumstances where the use of respirators is made optional for all or a portion of the provider’s employees who are at low-risk for infection (e.g., not caring for COVID-19 infected residents).

[1] 29 C.F.R. § 1910.134