United States: OSHA Enforcement of Respiratory Protection Standard in Health Services Industry

On January 14, 2004, the Occupational Safety and Health Administration ("OSHA") announced that it would begin enforcement of the respiratory protection standard, 29 C.F.R. § 1910.134, on July 1, 2004, in establishments that are required to provide respirators for protection from potential exposure to tuberculosis ("TB"). OSHA first announced that the respiratory protection standard would be extended to establishments in the health services industry in a final rule published on December 31, 2003. At the same time, OSHA withdrew the standard which had applied to health care facilities since 1998, "Respiratory protection for M. tuberculosis," 29 C.F.R. § 1910.139.

The respiratory protection standard was issued in January 1998, requiring an employer to provide respirators whenever "necessary to protect the health of the employee." The rule was not extended to the health care industry at that time, however, because in late 1997 OSHA had initiated a rulemaking proceeding which dealt with occupational exposure to TB. That 1997 TB proposal contained respiratory protection provisions which would apply to establishments with occupational exposure to TB after the proposal became a final rule. Therefore, when § 1910.134 was revised, OSHA re-codified the "old" § 1910.134 as § 1910.139, intending it to apply to respirator use for protection against TB until the final TB standard was issued.

With the withdrawal of the 1997 TB proposal on December 31, 2003, however, OSHA revoked § 1910.139. OSHA’s decision to apply § 1910.134 to TB protection will impose many new, expensive requirements on establishments in the health care industry which have employees potentially exposed to TB. OSHA has described the affected establishments as "primarily hospitals," but the standard will affect any health services facility that treats patients with active TB where occupational exposure could occur, ranging from nursing homes to substance abuse treatment facilities.

The first new requirement imposed by the respiratory protection standard is updating the facility’s respiratory protection program. The details of such a program are beyond the scope of this Memorandum, but include the following, among several other procedures:

• Procedures for selecting respirators in the workplace;
• Medical evaluations of employees required to use respirators;
• Fit testing procedures for tight-fitting respirators;
• Training of employees in recognizing potential respiratory hazards and in respirator use; and
• Regular evaluation of effectiveness of program.

The medical evaluation is an important new requirement, as the respiratory protection standard imposes a far more detailed evaluation than did the old standard. Very briefly, § 1910.134 sets forth detailed procedures on the required medical evaluation, including a medical questionnaire, a written recommendation from a physician or other licensed health care professional that the employee is able to wear a respirator, as well as follow-up medical examinations under certain conditions.

The requirement that is expected to impose the greatest burden on health care facilities is the "fit testing" of respirators. Before an employee is required to use any respirator with a negative or positive pressure tight-fitting facepiece, the employee must be fit tested with the same make, model, style, and size of the respirator that will be used. Fit tests must be repeated every year, as well. Moreover, additional fit tests must be conducted under many circumstances, such as any change in the employee’s physical condition which could affect a respirator’s fit, ranging from changes in body weight to dental conditions. The fit testing requirements themselves are complicated, and are set forth in a mandatory appendix attached to § 1910.134. They include putting various jars of liquids (such as banana oil) in front of the employee wearing the respirator to determine whether odors can be detected.

The respiratory protection standard imposes other requirements, as well, including training and recordkeeping provisions. These requirements will be expensive, and may require many health care establishments to hire outside contractors such as industrial hygienists in order to comply. Establishments have until July 1, 2004 to reach compliance, when OSHA begins enforcement of the standard in health care facilities.

This article is presented for informational purposes only and is not intended to constitute legal advice.