OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at https://www.osha.gov.

November 16, 1994

Mr. J. R. Toren
General Counsel
Delta Environmental Consultants
3900 Northwoods Drive Suite 2000
Saint Paul, Minnesota 55112

Dear Mr. Toren:

Thank you for your letter of March 10, concerning a request for clarification on medical clearance for respirator wearers in emergency response situations. Please accept my apology for the delay in this response.

You have been informed by your client that it will be difficult if not impossible to ensure that documentation is available to assure that a medical release has been provided for each person required to have respirator fit-testing. As a possible solution to this problem, you are asking whether OSHA allows reliance on a waiver of the medical release given by the individual being fitted.

OSHA considers the blanket use of waivers as not meeting the intent of ensuring workers are physically fit to use respirators. While it is OSHA's long standing policy that an employee can refuse to participate in medical surveillance, the employer must first adequately train the employees on the benefits of medical surveillance and the potential risks to employees who wear respirators. The use of respirators, however brief, may cause anxiety, heat stress, and difficulty breathing.

The Hazardous Waste Operations and Emergency Response Standard (29 CFR 1910.120) has medical surveillance requirements under paragraph (q)(9) for workers who are expected to be part of an organized team to control or stabilize emergency or potential emergency releases of hazardous substances. These requirements specify a baseline physical and ongoing medical surveillance as additionally required in 29 CFR 1910.120(f). The medical exam must include, among other things, a determination of fitness for duty including the ability to wear any required personal protective equipment (PPE) under conditions that may be expected at the work site. The employer must obtain from the examining physician a written opinion that includes any recommended limitations, such as respirator use, upon the employee's assigned work.

The primary responsibility for worker safety and health belongs to the employer, in this case your client. However, your client may be relying on you to ensure the safety and health of their employees with regard to respirator fitting. OSHA strongly encourages contractors and clients to specify in their contractual agreement the manner in which OSHA requirements will be met, in terms of the responsibilities of each party for ensuring worker safety and health.

It appears that your client may be in a better position than your firm to specify the nature of the assigned work tasks and assess their physical qualifications, as well as to consider carefully the fitness of individual employees designated to perform these tasks. Therefore, you may agree upon in your contract that your client is responsible for meeting the medical clearance requirements contained in the Hazardous Waste Operations and Emergency Response Standard, thereby limiting your firm's responsibilities on the matter of medical clearance.

We hope this information is helpful. If you have any further questions, please contact the [Office of Health Enforcement at (202) 693-2190].


Ruth McCully, Director
[Office of Health Enforcement]

[Corrected 1/6/03]