Ask the expert: Using the Emergency Use Act to wriggle out of fit-testing

By: August 27th, 2009 Email This Post Print This Post

Q: Since it is impossible for us to fit test the 200-plus providers in our clinics in time for the upcoming flu pandemic, could we supply them with N95 respirators and do away with the fit testing under the FDA’s Emergency Use Act?

A: It seems like your concern is more about finessing a regulation than in providing your employees with the best protection from influenza H1N1.

Granted that the CDC is still mulling over whether to recommend N95 respirators or just surgical masks for worker respiratory protection, but if your providers are coming down with swine flu in great numbers, you have more to worry about than possible OSHA violations.

In any event, use of N95 respirators under the Emergency Use Act does not eliminate the need to fit test workers, according to the U.S. government’s Flu Web site.

I appreciate the scope of your dilemma, however, I don’t think the time constraint excuse will wash with OSHA, since the possibility of fit-testing healthcare workers for respirators for protection from pandemic influenza has been on the radar screen of safety officers for some time now. OSHA originally issued Pandemic Influenza Preparedness and Response Guidance for Healthcare Workers and Healthcare Employers in 2007, in which it urged employers to plan in advance on how to protect their workers, including the use of respirators in accordance with the respiratory protection standard.

During the influenza H1N1 spring outbreak, California issued a notice about going ahead with respirator use even in the absence of having a respiratory protection plan (See “In California, act first on swine flu; train later”). You could hope that the Feds would do the same thing in a severe outbreak, but I’m not advising my readers to count on it.

You might want to consider adopting a “just-in-time”  fit testing concept. This train-the-trainer approach was featured in the July issue of Medical Environment Update.

But fit-testing may be only part of your problem. An OSHA compliant respiratory protection plan has other mandatory elements such as medical evaluations, training, etc. (See “Ask the expert: What must a respiratory protection plan include?”).


By Kathy Peets on August 28th, 2009 at 1:23 pm

Please clarify if OSHA permits health care providers to allow an employee to use the N-95 prior to fit testing if the employee requests it and signs a waiver?

By David LaHoda on August 31st, 2009 at 1:34 pm

OSHA and employee waivers do not mix. An interpretation letter on having employees sign waivers for not using eye protection says: “Employers have duties under the OSH Act from which they cannot be released by having their employees sign waivers.” If OSHA prohibits waivers for eye PPE, you can bet they are going to be consistent in prohibiting employee waivers for respirators and fit testing.

In situations, however, where a worker is not required to wear respirator but wants to wear on a voluntary basis, the employer in not required to fit test but must provide the employee with Appendix D of the respiratory protection standard, Information for Employees Using Respirators When not Required Under Standard.


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