Division of Labor and Industry


MOSH Instruction 05-1 - Maryland Occupational Safety and Health (MOSH)

TO: All MOSH Personnel
FROM: Cheryl Kammerman, Assistant Commissioner
SUBJECT: Tuberculosis and Respiratory Protection
REFERENCE: MOSH Standard Notice 04-03
EFFECTIVE DATE: December 8, 2004
DATE: February 1, 2005

A.  Purpose:

To maintain consistency with Federal OSHA on citing annual fit testing for Tuberculosis (TB).

B.  Background:

1. On October 17, 1997, OSHA published a Notice of Proposed Rulemaking for Occupational Exposure to TB. On January 8, 1998, OSHA revised its 1971 General Industry Standard for Respiratory Protection. Since the 1997 TB proposal included all of the respiratory protection provisions that OSHA believed would be applicable to respirator use for TB protection, OSHA did not require this use to comply with the 1910.134 during the rulemaking proceedings on the TB proposal. Instead, pending conclusion of the TB rulemaking, OSHA re-designated the old 1910.134 as 1910.139, "Respiratory Protection for M. Tuberculosis."

2. On December 31, 2003, OSHA withdrew the proposed TB standard, as well as the 1910.139 TB respirator standard. Employers requiring respiratory protection for TB were required, after December 31, 2003, to comply with the full requirements of the new 1910.134.

The previous 1910.139 standard required initial fit testing but did not specify the frequency of fit testing. OSHA's 1910.139 policy, with regard to re-fit testing of respirators for protection against TB, said that it should be done on an as needed basis (facial changes, dental changes, weight gain and the presence of facial hair). Annual fit testing was not required for protection against TB. That changed after December 31, 2003. Following that date employers were required to be in full compliance with the new 1910.134 standard. OSHA provided a phase-in period of up to July 1, 2004 for employers to come into compliance with 1910.134's requirements for medical evaluations and annual fit testing. During that time and up until December 22, 2004, OSHA received numerous comments about the lack of the need for annual fit testing regarding respirators used for TB. There were even threats of Congressional action if OSHA maintained the requirement for annual fit testing for TB respirators.

3. Congress passed, and the President signed, the Consolidated Appropriations Act for fiscal year 2005 (October 1, 2004 through September 30, 2005). Included in the Act is an appropriations restriction that provides "that none of the funds appropriated under this paragraph shall be obligated or expended to administer or enforce the provisions of 29 CFR 1910.134(f)(2)....to the extent that such provisions require annual fit testing (after the initial fit testing) of respirators for occupational exposure to tuberculosis." Therefore, during Federal FY 2005, employers may not be inspected or cited for the requirement to do annual fit testing of respirators for occupational exposure to TB. This prohibition applies to all MOSH compliance inspections, including programmed inspections, employee complaints, and imminent danger situations. The appropriations restriction also prohibits referrals for potential violations of the annual fit testing requirements for respirators and occupational exposure to tuberculosis that result from Section 11C investigations. The appropriations restriction, however, does not prohibit OSHA from conducting Section 11C investigations. This restriction applies only to respirators used for TB. It does not apply in situations where respirators are used for protection against other bioaerosols, such as Severe Acute Respiratory Syndrome (SARS).

C.  Action:

1. Until further notice, MOSH compliance field inspectors will not recommend the issuance of citations for the failure to conduct annual fit testing of respirators used for protection against occupational exposure to TB. However, all other sections of 29 CFR 1910.134 remain in effect and may be cited where a TB hazard exists (e.g., selection, medical surveillance, initial fit testing, training, etc.). Citations may be considered for re-fitting (not annual fit testing) if conditions such as facial changes, employee weight gain, respirator model change, presence of facial hair, etc. are evident.

2. Questions regarding this policy should be addressed to Bill Grabau. Current inspections involving this policy should be discussed with your supervisor so that no citations or penalties are issued.

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