U.S. employers are now in the thick of bringing employees back to physical offices, facilities and plants. Some of the myriad issues they must address are pure HR: how to deal with employee fears, for example, or how to figure out if an employee who is immunocompromised is entitled to telework as a form of disability accommodation. Some of the issues, however, are far more basic but at the least as important: how do we ensure physical safety? Happily, the Occupational Safety and Health Administration (“OSHA”)—initially criticized for failing to provide definitive guidance on maintaining a safe workplace in a COVID world—has issued guidance on the use of “face coverings” (yes, masks) in the workplace. This post summarizes the key takeaways from OSHA’s guidance.
First, OSHA distinguishes between cloth face coverings, surgical masks, and respirators.
Cloth face coverings may be commercially produced or homemade garments, scarves, bandanas, etc. They are worn in public over the nose and mouth to contain the wearer’s potentially infectious respiratory droplets and limit the spread of COVID-19 to others. They will not protect the wearer against airborne transmissible infectious agents due to loose fit and lack of seal or inadequate filtration.
Cloth face coverings are not considered personal protective equipment (PPE). As such, OSHA’s PPE Standards do not require employers to provide cloth face coverings to employees. Still, employers may choose to ensure that cloth face coverings are worn as part of a control plan to address COVID-19. Indeed, OSHA recommends that employers encourage workers to wear face coverings at work. Cloth face coverings are not a substitute for social distancing, and employers must still ensure social distancing measures in the workplace.
Surgical masks are typically cleared by the U.S. Food and Drug Administration (“FDA”) as medical devises (though not all devises that look like surgical masks are actually medical-grade, cleared devises). They are used to protect workers against droplets containing potentially infectious materials and may also be worn to contain the wearer’s respiratory droplets. Surgical masks will not protect the wearer against airborne transmission of respiratory infections that spread by large droplets.
According to OSHA, if surgical masks are being used only as source control (i.e., not to protect workers against droplets containing potentially infectious materials), OSHA’s PPE Standards do not require employers to provide them to workers. However, employers do have a general duty under Section 5(a)(1) of the Occupational Safety and Health Act to furnish their employees employment and a place of employment free from recognized hazards that are causing or likely to cause death or serious physical harm.
Respirators are used to prevent workers from inhaling small particles, including airborne transmissible or aerosolized infectious agents. Respirators must be provided and used in accordance with OSHA’s Respiratory Protection Standard. Respirators must be certified by the National Institute for Occupational Safety and Health (“NIOSH”), need proper filter material (e.g., N95 or better), require proper training, and require a respiratory protection program that is compliant with OSHA’s Respiratory Protection standard. If an employer permits voluntary use of filtering face piece respirators, employees must receive the information contained in Appendix D of OSHA’s Respiratory Protection standard.
As always, please contact a Kelley Drye attorney for guidance on these and other matters when returning your workforce to the workplace.