OSHA Speaks: Face Coverings, Masks and Respirators – Oh My!

By Fiona W. Ong - Shawe Rosenthal LLP

June 10, 2020

Over the course of the COVID-19 pandemic, there has been a great deal of discussion – and confusion – about the use of masks and face coverings and respirators. Are they personal protective equipment (PPE)? Who should use them? Who must use them? Should employers provide them? Must employers provide them? Which one should employers provide? Should employers provide training on their use? Must employers providing training? And on and on…

Well, OSHA has now provided Frequently Asked Questions to try to provide some clarity on this multitude of questions. We summarize the key points of each FAQ below:

What are the key differences between cloth face coverings, surgical masks, and respirators?

According to OSHA, cloth face coverings are used to contain potentially infectious respiratory droplets (from talking, sneezing and coughing). They do not protect the wearer from infection, are not considered PPE, and are not an adequate substitute for PPE (where PPE is required). They may be homemade or commercially manufactured, and may be disposable or reusable (after washing/cleaning).

Surgical masks are commercially manufactured and disposable after a single use.  They are typically FDA-cleared as a medical device. They can be used to contain respiratory droplets to prevent the spread of COVID-19. They cannot prevent infection from airborne transmissible infectious agents, but can protect workers against potentially infectious splashes and sprays. If employers determine that they should be used for this protective reason, they are considered PPE, which means that employers must provide and pay for the surgical masks. OSHA notes, however, that the use of surgical masks may be a means of source control to prevent the spread of COVID-19 in the context of an employer’s responsibility to provide a safe workplace under OSHA’s General Duty Clause. If the masks are used solely for this preventive purpose, and not the protective reason, they are not PPE and the employer has no obligation to provide or pay for them.

Respirators are certified by the National Institute of Occupational Safety and Health to prevent the inhalation of airborne transmissible infectious agents (and other small particles). These include the notoriously elusive N95 masks (which OSHA and the CDC have requested to be reserved for the use of healthcare providers). If respirators are required for a particular job, they are subject to OSHA’s respiratory protection standard, which requires a respiratory protection program including proper training, fit testing, availability of appropriate medical evaluations and monitoring, cleaning, and oversight by a knowledgeable staff member. If respirators are not required, but an employee wishes to use one, an employer can permit the employee to do so, but must provide the employee with the information contained in Appendix D of OSHA’s Respiratory Protection standard. Because of the COVID-19 pandemic, OSHA is temporarily exercising its enforcement discretion with regard to many of the standard’s requirements, including fit testing, extended use or reuse, recommended shelf life, foreign supplies, and decontamination.

Are employers required to provide cloth face coverings to workers?

Because they are not PPE, OSHA says that employers are not required to provide them.

As a practical matter, however, if the employer mandates the use of face coverings in the workplace, it may be wise or even necessary to do so. Some states (including Illinois, California, Massachusetts, Montana, Pennsylvania, New York, Iowa, and the District of Columbia) require employers to reimburse employees for necessary business expenses – which would include mandatory face coverings. Beyond that, for purposes of ensuring compliance, demonstrating a commitment to workplace safety, and supporting employee morale, employers who are mandating – or even encouraging – the use of face coverings should certainly consider providing them.

Should workers wear a cloth face covering while at work, in accordance with the Centers for Disease Control and Prevention recommendation for all people to do so when in public?

Although OSHA “recommends that employers encourage workers to wear face coverings at work,” it also acknowledges that “[e]mployers have the discretion to determine whether to allow employees to wear cloth face coverings in the workplace based on the specific circumstances present at the work site.” Thus, face coverings could pose a hazard (by becoming contaminated with chemicals or infectious secretions), interfere with breathing (by becoming damp), or be incompatible with required PPE (like an N95 respirator). Employers may provide PPE such as face shields or surgical masks when face coverings are not appropriate for particular tasks or work environments.

If workers wear cloth face coverings, do employers still need to ensure social distancing measures in the workplace?

Yes. (‘Nuff said.)

If I wear a reusable cloth face covering, how should I keep it clean?

OSHA refers us to the CDC guidance on the care of these items.

Are surgical masks or cloth face coverings acceptable respiratory protection in the construction industry, when respirators would be needed but are not available because of the COVID-19 pandemic?

Although the question is targeted at the construction industry, the general principles should apply across all industries – with the exception of healthcare – in situations where respirators are required. And the simple answer is “No.”

OSHA goes on to elaborate that employers should use a “hierarchy of controls” that (1) first seeks to eliminate or substitute out workplace hazards, (2) then uses engineering controls (e.g. ventilation, wet methods), (3) then administrative controls (e.g. written procedures, modification of task duration), and (4) safe work practices – all before turning to PPE like respirators. If respirators are required, as noted above, in the context of the pandemic, OSHA is exercising enforcement discretion with regard to respirator use (e.g. extended use or reuse, recommended shelf life, foreign suppliers).

OSHA specifically notes that it set forth crisis strategies for healthcare that allowed for the use of cloth face coverings and surgical masks where respirators were simply not available. These strategies do not apply in any other industry. Rather, if respirators are required but not available, OSHA states that “the task should be delayed until feasible control measures are available to prevent exposures or reduce them to acceptable [OSHA-permissible] levels.”