Is Cal/OSHA going to update fit testing procedures for respiratory protection equipment to match federal standards?
Yes. On March 21, 2024, the Occupational Safety and Health Standards Board adopted as new Appendix A of Section 5144 quantitative fit testing protocols for inclusion in the Respiratory Protection Standard.
The Board adopted the rulemaking action in keeping with Labor Code Section 142.3, which mandates the Board to adopt regulations at least as effective as federal regulations addressing occupational safety and health issues.
Federal Action
The U.S. Department of Labor, Occupational Safety and Health Administration (Federal OSHA) promulgated regulations addressing additional ambient aerosol condensation nuclei counter (CNC) quantitative fit testing protocols effective on September 26, 2019, as 29 Code of Federal Regulations (CFR), Part 1910, Section 1910.134, Appendix A.
The Cal/OSHA Board is relying on the explanation of the federal regulations as the justification for its rulemaking action. The explanation was published in the Federal Register, Volume 84, No. 187, pages 50739–50756, September 26, 2019.
The Board has adopted a regulation which is the same as the federal regulation except for editorial and format differences.
Added Fit Testing Protocols
Federal OSHA has approved two additional quantitative fit testing protocols for inclusion in Appendix A of the Respiratory Protection Standard. The protocols are:
• the modified ambient aerosol CNC quantitative fit testing protocol for full-facepiece and half mask elastomeric respirators; and
• the modified ambient aerosol CNC quantitative fit testing protocol for filtering facepiece respirators.
The protocols apply to employers in general industry, shipyard employment and the construction industry.
Both protocols are abbreviated variations of the original Federal OSHA-approved ambient aerosol CNC quantitative fit testing protocol (often referred to as the PortaCount® protocol), but differ from the test by the exercise sets, exercise duration and sampling sequence.
These protocols will serve as alternatives to the four existing quantitative fit testing protocols already listed in Appendix A of the Respiratory Protection Standard and will maintain safety and health protections for workers while providing additional flexibility and reducing compliance burdens.
In its explanation about adopting the new Appendix A fit testing protocols, the Cal/OSHA Board noted that California Labor Code Section 142.3(a)(3) exempts the Board from providing a comment period when an adopted regulation is substantially the same as federal standards. The Board still provided a comment period and convened a public hearing specifically to seek input on whether there was any compelling reason for California to deviate from the federal standards.
To see the complete rulemaking file, visit the Cal/OSHA Standards Board page.
The proposed text is available here.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.
