Choose Site

BLOG POST

Up & Atom

US Nuclear Regulatory Commission (NRC) regulations at 10 CFR 20.1703(c)(5)(iii) and 10 CFR 20.1703(c)(6) require licensees to maintain a respiratory protection program that requires (1) a periodic—often annual—determination by a physician that the user is medically fit to use respiratory protection, and (2) annual “fit testing” to ensure that the licensee’s respiratory protection seals tightly to the licensee’s face.

The Centers for Disease Control and Prevention (CDC) recently issued guidance in response to the coronavirus (COVID-19) pandemic that, among other things, recommends that people avoid close contact with others, noting that recent studies suggest the virus may be spread by people who are infected but asymptomatic.

In an effort to ensure that the NRC respiratory “fit testing” requirements do not result in licensees taking actions contrary to the CDC’s guidance by requiring licensees to come into close contact with the physician or individual performing the fit testing, and recognizing that 10 CFR 20.2301 allows the NRC to grant exemptions from its Part 20 regulations in certain circumstances, the NRC informed industry on April 15 that it is now considering the use of an expedited review process for such requests.

In brief, the NRC is developing criteria that licensees must address when applying for an expedited review of requests for exemption from the above periodicity requirements.

Although the NRC has not finalized these criteria, it anticipates that such exemption requests should include the following for the referenced medical evaluations and fit testing:

Medical Evaluations

  • A statement that the licensee cannot meet the medical evaluation requirements of 10 CFR 20.1703(c)(5)(iii) without workers taking actions that may be contrary to CDC guidance
  • A statement that the licensee will temporarily apply a licensee-specific process to ensure worker safety to manage personnel with overdue medical evaluations
  • An estimate of the number of impacted personnel and the organizational positions, using generic position descriptions, that will be included in the licensee-specific process
  • An estimate of the date and time when the licensee will no longer be able to comply with the regulatory requirements in 10 CFR 20.1703(c)(5)(iii)
  • A statement that, except for physical medical examinations at medical facilities, the licensee has completed, or will complete within the required frequency (plus a 90-day grace period), all applicable respiratory protection program medical evaluation requirements (e.g., medical history questionnaire)
  • A statement that a licensed physician has reviewed the medical history questionnaire prior to the expiration of the current medical evaluation (plus a 90-day grace period) and determines that an extension of the wearer’s physical medical evaluation due date is acceptable such that the wearer remains qualified to use assigned respiratory protection equipment during the extension
  • A statement that impacted employees have been informed of the general risks of wearing respiratory protection (e.g., information similar to that found in Appendix D of 29 CFR 1910.134), the rationale for medical evaluations, and the contents of any approved exemption

During a teleconference with stakeholders on April 15, the NRC clarified that licensees need not take any action to avail themselves of the 90-day grace period referenced above.

Fit Testing

  • A statement that the licensee cannot meet the fit-testing requirements of 10 CFR 20.1703(c)(6) without workers taking actions that may be contrary to CDC guidance
  • A statement that the licensee will temporarily apply a licensee-specific process to ensure worker safety to manage personnel with overdue respiratory protection fit tests
  • An estimate of the number of impacted personnel and the organizational positions, using generic position descriptions, that will be included in the licensee-specific process
  • An estimate of the date and time when the licensee will no longer be able to comply with 10 CFR 20.1703(c)(6)
  • A statement that employees covered by the exemption would receive refresher training on donning their assigned respirators and are informed of the rationale for respiratory fit testing and the contents of any approved exemption

The NRC observed that, in considering such requests for exemption from both the medical evaluation and the fit-testing periodicity requirements, it may impose additional requirements to provide continued reasonable assurance of public health and safety.

Coronavirus COVID-19 Task Force

For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. We also have launched a resource page to help keep you on top of developments as they unfold. If you would like to receive a daily digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts.