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04/05/2022
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| Standard Number: | 1910.134; 1910.134(d)(1); 1910.502; 1910.502(f)(2)(i); 1910.502(f)(3)(i); 1910.504; 1910.504(d)(2)(ii) |
December 16, 2021
Ms. Amrith Kaur Aakre
Legal Director
The Sikh Coalition
50 Broad Street, Suite 504
New York, NY 10004
Dear Ms. Kaur Aakre,
Thank you for taking the time to meet with Occupational Safety and Health Administration (OSHA) staff on September 20, 2021, to discuss OSHA’s Respiratory Protection Standard, 29 CFR 1910.134, and how it relates to workers who maintain facial hair for religious or medical reasons. OSHA also received your November 9, 2021 follow-up letter raising questions related to some of the concerns you identified during that meeting. Generally, you asked OSHA to clarify whether loose-fitting powered air-purifying respirators (PAPRs) are a permissible alternative to N95 respirators where respiratory protection is required to protect workers from exposure to SARS-CoV-2, the virus that causes COVID-19. Additionally, you asked OSHA to clarify the interplay between the Respiratory Protection Standard and other laws that may require an employer to provide an alternative to the N95 respirator as a reasonable accommodation to employees who maintain facial hair for religious reasons.
In an August 5, 2011 letter of interpretation, OSHA explained that the Respiratory Protection Standard permits the use of loose-fitting PAPRs by workers with facial hair in the majority of situations where respirators are required. See https://www.osha.gov/laws-regs/standardinterpretations/2011-08-05. In the context of exposure to people with suspected or confirmed COVID-19, the Respiratory Protection Standard permits employers to provide employees with various types of NIOSH-certified respirators, including filtering facepiece respirators (e.g., an N95) and loose-fitting PAPRs. 1 However, as you note, various anti-discrimination laws may require an employer who chooses to provide one type of respirator (e.g., N95s) to provide an alternative (e.g., a loose-fitting PAPR) as a reasonable accommodation to employees who maintain facial hair because of a disability or sincerely held religious beliefs, practices, or observances. 2 Because both N95s and loose-fitting PAPRs are appropriately protective respirators for employees exposed to SARS-CoV-2, there is no conflict between the Respiratory Protection Standard and those other laws. Therefore, an employer may provide a loose-fitting PAPR as a reasonable accommodation and comply with the Respiratory Protection Standard. 3
You also asked OSHA to clarify an employer’s obligations under the Respiratory Protection Standard when an employer provides an alternative respirator to employees who maintain facial hair for religious reasons. Initially, OSHA notes that its letters of interpretation are in response to fact-specific circumstances and therefore OSHA is unable to respond to broad general requests to clarify the requirements of an OSHA standard. However, OSHA can provide clarification with respect to two specific points of confusion you identified regarding the requirements of the Respiratory Protection Standard as they relate to employers providing alternative respirators. You explain that some employers believe that if they provide an alternative respirator (e.g., a PAPR instead of an N95) to one employee, they must: (1) offer the alternative respirator to all employees; and (2) train all employees on use of the alternative respirator. As a result, these employers are unwilling to provide alternative respirators to any employees because they view the accompanying requirements as overly burdensome.
As explained above, other laws may require employers to provide alternative respirators as a reasonable accommodation to employees who maintain facial hair because of a disability or sincerely held religious beliefs, practices, or observances. Additionally, employers can voluntarily provide an alternative respirator to employees who maintain facial hair as long as the respirator provided is appropriately protective. In either case, the Respiratory Protection Standard does not require the employer to offer alternative respirators to all of its employees in cases where a limited number request an accommodation. The Respiratory Protection Standard also does not require the employer to train its entire workforce in the proper use of the alternative respirator. However, the employer must ensure each employee it permits to use the alternative respirator, whether required or voluntary, is included in the Respiratory Protection Program and is following its applicable components, such as training in the proper use of that respirator, including putting on and removing it, any limitations on its use, medical evaluation, and its maintenance. 4 Finally, regardless of the type of respirator(s) provided, employers must comply with all other applicable provisions of 29 CFR 1910.134.
Sincerely,
Kimberly A. Stille, Acting Director
Directorate of Enforcement Programs
[1] OSHA’s COVID-19 Healthcare Emergency Temporary Standard (ETS), 29 CFR 1910.502, also requires employers to provide respirators in certain circumstances. Like the Respiratory Protection Standard, the COVID-19 Healthcare ETS permits employers to provide various types of NIOSH-certified respirators, including loose-fitting PAPRs.
[2] For more information about evaluating requests for these types of reasonable accommodations for disability or sincerely held religious belief, employers should consult the Equal Employment Opportunity Commission's (EEOC) regulations, guidance, and technical assistance including at: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. Additional EEOC materials that may be helpful include the EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act ( https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada) and the EEOC’s Compliance Manual section on Religious Discrimination (https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination).
[3] Some employers may choose to require employees to wear surgical masks under loose-fitting PAPRs. The Respiratory Protection Standard neither requires nor prohibits this practice.
[4] For more information regarding compliance with the Respiratory Protection Standard, see OSHA’s Small Entity Compliance Guide for the Respiratory Protection Standard (2011), which is available at: https://www.osha.gov/sites/default/files/publications/3384small-entity-for-respiratory-protection-standard-rev.pdf. Pages 13-16 of that document contain additional information about what must be included in an employer’s Respiratory Protection Program.
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