By Dan Deacon and Eric J. Conn

On September 26, 2019, OSHA issued a new Final Rule providing employers with new options for fit testing protocols to comply with OSHA respiratory protection requirements designed to protect workers from airborne contaminants.  More specifically, the new Rule, entitled “Additional Ambient Aerosol CNC Quantitative Fit Testing Protocols: Respiratory Protection Standard,” establish two additional methodologies for respiratory fit testing:

1. a modified ambient aerosol condensation nuclei counter (CNC) quantitative fit testing protocol for full-facepiece and half-mask elastomeric respirators; and
2. a modified ambient aerosol CNC quantitative fit testing protocol for filtering facepiece respirators.

The rule became effective September 26, 2019.

Both new protocols are abbreviated variations of the original OSHA-approved ambient aerosol CNC quantitative fit testing protocol (often referred to as the PortaCount protocol), and differ from the test by the exercise sets, exercise duration, and sampling sequence. The protocols serve as alternatives to the four existing quantitative fit testing protocols already listed in the Mandatory Appendix A of OSHA’s Respiratory Protection Standard:

1. generated aerosol;
2. ambient aerosol condensation nuclei counter (CNC);
3. controlled negative pressure (CNP); and
4. controlled negative pressure REDON.

The intent of the Rule is to provide employers with two new options to comply with the Respiratory Protection Standard’s fit test requirements for circumstances where any employee is required to use a negative or positive pressure tight-fitting facepiece respiratory because of workplace conditions.

In a September 25, 2019 press release, OSHA made clear that “the new rule does not require employers in general industries, shipyard employment, and construction to update or replace their current fit testing methods, and does not impose additional costs.”

Indeed, the Trump Administration has classified the new fit test rule as a “Deregulatory Action” pursuant to President Trump’s Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs”), which President Trump signed days after taking office — January 30, 2017. This Executive Order instructed agencies to identify two regulations to eliminate for each new regulation that is promulgated.  Agencies were directed to ensure that the total incremental costs of new and repealed regulations do no exceed $0 unless required by law or by advice from OMB.  The practical effect of that EO, as we have learned over the past two years, is simply to ease the regulatory burden on employers – in some fashion.

With the arrival of newly appointed Secretary of Labor Eugene Scalia, it will be interesting to monitor what additional deregulatory actions at OSHA may be on the horizon.  Secretary Scalia is considered a pro-business advocate and has a long history in private practice opposing government regulation in the workplace.

*               *               *               *               *               *               *               *

For more information about OSHA’s Respiratory Protection Requirements, check out a copy of the slides or the recording from Conn Maciel Carey’s October 22, 2019 webinar regarding “Everything You Need to Know about OSHA’s Health and Chemical Exposure Standards.” That webinar helped employers understand and comply with the requirements of OSHA’s occupational health standards, provided useful guidance and tips on the types and frequency of air monitoring or other chemical sampling that may be required at your facilities, and the programs (such as respiratory protection) to implement if you do experience exposure levels above the minimum regulatory thresholds (or other industry consensus thresholds).