As the U.S. economy continues to reopen, many employers are faced with the need to select face protection for their employees. But not all forms of face protection are created equal, adding another potential layer of confusion to employers' safety efforts.
The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) has issued a FAQ regarding face coverings, surgical masks, and respirators.
The FAQ's topics include:
- The differences between cloth face coverings, surgical masks, and respirators;
- The kinds of protection these items do and do not provide;
- Which of these items are "personal protective equipment" under OSHA (and therefore must be provided by the employer at no cost to the employee); and
- Additional OSHA obligations associated with different protective items in the workplace.
For example, if an employer directs an employee to use a respirator (including N95 masks), federal OSHA regulations require proper training, fit testing, availability of appropriate medical evaluations and monitoring, cleaning, and oversight by a knowledgeable staff member. The FAQ further reminds employers that face coverings in some circumstances may create a hazard for employees. In such circumstances, other protective equipment, like respirators or face shields, may provide the needed protection without creating the hazard at issue and, thus, would be more appropriate.
Although the FAQ is helpful in understanding federal OSHA's enforcement of its own standards, it does not analyze the patchwork of state and local guidance and orders regarding when face coverings are and are not required, which are constantly evolving. In addition, while private employers in approximately half of the country's jurisdictions are subject to federal OSHA, the other half of the country is subject to state-specific workplace safety and health regulatory schemes and enforcement agencies. These "state plans" may follow federal OSHA (and often do), but may also have their own requirements.
In determining what face coverings and other protective measures are appropriate, employers must remain up to date on local obligations. DWT's OSHA practitioners stand ready to assist in these and any other COVID-19, OSHA-related matters.
The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.
DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.