The Other Second Wave: Are You Prepared for Enhanced Enforcement of Your Respiratory Protection Program?

Respiratory Protection Requirements

In this post, health and safety expert Sean Baldry, CRSP, breaks down recent COVID-19 and respiratory protection OSHA enforcement updates and shares how EHS software solutions can help organizations maintain compliance with federal respiratory protection requirements and reduce risk to workers.

When COVID-19 infections were nearing their peak in many states this past spring, many worker advocacy groups were calling upon the U.S. Occupational Safety and Health Administration (OSHA) to issue a temporary national COVID-19 standard. This standard, the advocacy groups argued, would help to ensure that businesses across the country followed a consistent, evidence-based approach to protect employees from infection as they returned to work. Companies that failed to follow these requirements would face regulatory penalties, and hopefully, change their behavior for the better.

Many business associations and chambers of commerce, on the other hand, opposed additional regulation, arguing that existing federal and state health and safety standards were adequate enough to protect workers from COVID-19 risks. Any additional regulation was viewed as unnecessary and overly restrictive at a time when businesses required flexibility to adjust, and survive, in this “new normal”.

RELATED: Virginia’s New COVID-19 Standard: A Harbinger of Things to Come?

In the end, OSHA declined to issue a national COVID-19 standard, reiterating their view of the adequacy of existing laws to govern workplace safety. And then something interesting happened: OSHA issued an interim enforcement response plan, designed to explain how the agency would approach enforcement of these existing health & safety standards during the crisis. And that’s when the agency announced a significant shift – that an employer’s “good faith attempt” to control risk would be considered by inspectors when determining compliance and/or citations, whether or not the employer was complying with the standards in the first place. Essentially, “trying” to be compliant was good enough.

As part of this new enforcement directive, OSHA also relaxed certain requirements and provisions related to existing health and safety standards. In response to known shortages in respiratory protection, the agency scaled back enforcement of key requirements of the federal Respiratory Protection Standard (29 CFR 1910.134), including rules pertaining to respirator fit-testing and the extended use and reuse of N95 respirators beyond their recommended shelf life.

RELATED: Spotting the Fakes: How to Protect Your Workers from Counterfeit Respirators

Worker advocacy groups decried the policy changes as a “get-out-of-jail-free card” for businesses who failed to take reasonable steps to protect their employees from COVID-19. And recent statistics reveal some truth in those concerns.  Despite a reported 30% increase in OSHA whistleblower complaints in the first half of 2020 compared to the same period in 2019, OSHA had only issued citations against two employers in the first 6 months of the pandemic. In fact, media reports reveal that nearly 50% of whistleblower complaints were closed without even an investigation.

Well, that appears to be changing. In early October, OSHA announced that the agency has recently cited 37 workplaces with close to $500,000 in fines for violations pertaining to standards that, if implemented, would reduce the risk of worker exposure to coronavirus. Interestingly, many of those citations and their corresponding fines were issued against employers for failing to meet requirements from OSHA’s Respiratory Protection Standard. 

Consider the following:

  • A health care facility in New Jersey was fined $28,000 for failing to provide respirator fit testing, medical evaluations and training to staff required to wear respirators when treating patients exhibiting symptoms of COVID-19
  • Three Ohio-based workplaces were cited for penalties totaling over $40,000 for failing to adhere to federal respiratory protection requirements, including performing adequate respirator fit testing
  • An employer in Tallahassee, Florida was fined $36,000 for failing to provide a written respiratory protection standard, as well as on-the-job training for workers required to wear respirators

It’s been reported that OSHA has opened nearly 10,000 inspections into alleged COVID-19 workplace complaints, with many experts anticipating a significant rise in citations in the months ahead. 

Respiratory Protection isn’t a New Problem. Here’s Why:

The truth is, despite receiving increased attention due to COVID-19, the challenges we’re seeing with employer compliance to the Respiratory Protection Standard is nothing new. In fact, respiratory protection has remained on OSHA’s Top 10 list of most frequently issued citations for the past 6 years. But why are employers consistently struggling to meet these respiratory protection requirements? A review of the data shows that the majority of penalties arise from three main factors:

  • Lack of a written respiratory protection program
  • Lack of completed medical evaluations
  • Lack of completed respirator fit-testing

Let’s quickly explore these three issues, and review how investing in a digital solution like EHS software can help your organization more effectively maintain compliance with federal respiratory protection requirements, reduce the risk to worker health, and lower organizational exposure to the significant associated financial penalties.

Create a Written Respiratory Protection Program

You may roll their eyes at this one, but ensuring your business has a comprehensive, written respiratory protection program isn’t simply a needless paperwork exercise. This written program acts as your organization’s “recipe book”, outlining through detailed procedures how it will ensure workers are adequately protected from respiratory hazards arising in your workplace.

Yet many businesses either simply overlook the importance of these written procedures, or prepare them initially without thinking about how they will operationalize these requirements later on – how they will turn these requirements into tangible compliance activities that help to ensure mandatory steps are being followed consistently. Without taking the additional step of translating those ideas into compliance actions, the value of your written program is never truly realized.

How EHS Software Can Help Manage Your Written Respiratory Protection Program

By leveraging an EHS software solution, organizations have access to document control features that will help manage these written programs with greater ease, ensuring respiratory protection procedures are regularly reviewed and updated to reflect current operating conditions, enabling revision control through archiving, and even linking document control and communication tools to ensure applicable workplace parties are kept informed when policies or procedures change. Plus, many software software solutions offer tools to help organizations “deconstruct” written procedures, translating them into tangible, meaningful actions and objectives that can be assigned and monitored in real-time, ensuring protocols designed to protect your workers from respiratory hazards are in place and effective.

Conduct Medical Evaluations for Employees

According to the World Health Organization (WHO), respiratory disease (even when excluding COVID-19) is the leading cause of death worldwide. Roughly 335 million people globally suffer from asthma, and another 65 million people are afflicted with chronic obstructive pulmonary disease (COPD). At least 2 billion people are exposed to indoor pollutants, smoke, or other occupational respiratory hazards each day.

Knowing whether a worker suffers from a respiratory condition is particularly relevant if we later require that worker to wear a respirator on the job. It’s for this reason that employees required to wear a respirator must undergo a medical evaluation in advance to ensure that the respirator will not unreasonably endanger their health, considering the physiological burden created by its use as well as any potentially underlying health conditions.

For many employers, organizing these medical evaluations can itself be an arduous task. Beyond the need to secure a licensed health care professional to conduct the evaluations and coordinate the exam schedule, employers are faced with the need to communicate relevant information to front-line leaders to support the proper selection and fitting of respirators without compromising any worker’s medical confidentiality. Reliance on manual, paper-based processes to do so opens your organization up to inefficiency, errors, and the potential of unlawful health data disclosures.

How EHS Software Can Streamline Employee Medical Evaluations

Many solutions used to coordinate respirator selection, training and fit-testing processes are now integrated seamlessly with advanced occupational health platforms that can be leveraged to manage associated medical evaluations. With a unified platform to manage all aspects of your respiratory protection program, you can integrate processes to automatically schedule medical evaluations based on relevant workplace changes (i.e. new respirator hazard or change in position), ensuring exams are never missed – reducing the risk of legal non-compliance and lowering the changes to harmful exposures. Plus, data encryption and permission-based user roles within these solutions ensures that private health information is always protected and data breaches that can often occur with uncontrolled paper records are avoided.

Respirator Fit Testing Challenges

If I were to guess why employers may be failing to complete respirator fit testing during the COVID-19 pandemic, I would focus on two possibilities:

  1. A shortage of respirators in the marketplace is forcing employers to change their product inventories frequently.  Consequently, workers may find themselves using respirators for which they weren’t previously fit-tested.
  2. A shortage of available workers, due to furloughs and/or sick leaves, is forcing employers to distribute their workforce in different ways. As a result, workers may now be assigned to new roles that require the use of a respirator, without having undergone the requisite fit-test in advance.

These conditions are not outside the realm of possibility considering the current COVID-19 health crisis. Yet organizations that fail to proactively determine the downstream effects caused by shuffling their workforce or changing supplies risk missing respirator fit testing that exposes them to significant financial penalties.

How EHS Software Optimizes Respirator Fit Testing

By leveraging Similar Exposure Group (SEG) functionality available in many occupational health and industrial hygiene software platforms, you can effortlessly associate fit-testing requirements to a particular role, task or area of the workplace. In the event that workforce shortages force business leaders to shuffle staff and assign employees to new roles or environments that may require respirator use, the solution would immediately recognize your employee’s new role, automatically enrolling them into the applicable SEG and its associated health surveillance activities including respirator fit-testing.

Once enrolled in the SEG, your employee and their supervisor would receive automated email or text alerts informing them that respirator testing is required, and its scheduled date. In that respect, your organization can more effectively manage the impact of constant change on compliance levels.

Similarly, solutions that offer asset management features enable business to associate equipment changes to other workflows across the enterprise. A change in respirator product inventory would trigger automatic rescheduling of fit-tests for individuals who had been previously approved to wear a respirator removed from stock.

It’s these simple, yet powerful integrations available within leading EHS software solutions that can provide immediate, tangible benefits to your organization, and ensure changes made to keep the business running in the midst of the pandemic won’t come back to bite you afterward.

Breathe Easier

With many countries globally entering the second wave of the virus, it’s clear that respiratory protection will remain of critical importance in the months ahead, especially for organizations where social distancing and physical barriers isn’t always possible. But bear in mind that any grace provided by regulators in the past for non-compliance is no guarantee that they will be as understanding of compliance gaps in the future.

By augmenting your existing respiratory protection program with an EHS software solution, you’ll be better equipped to anticipate, identify, and mitigate changes that could expose your workers to infection risks, and reduce the chances of an inspector knocking on your door to investigate an anonymous complaint coming from somewhere inside your building.

Learn More about Respiratory Protection Programs

To learn more about what you should consider when developing an effective and sustainable respiratory protection program, check out this webinar that walks through the essential elements to include and common mistakes to avoid:

Respiratory Protection Programs: Develop One That Works