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Earlier this month, the Occupational Safety and Health Administration (“OSHA”) released answers to Frequently Asked Questions regarding cloth face coverings during the COVID-19 pandemic, excerpts from which are reprinted below. OSHA takes the position that masks are not Personal Protective Equipment (“PPE”), but still recommends their use. Although employers are not required to provide masks under OSHA, an employer’s failure to require that employees and customers wear masks could contribute to an OSHA or Workers’ Compensation claim. Lastly, OSHA’s decision that employers do not have to provide masks does not tell a complete story. Employers that require that employees wear masks at work could face claims under other laws- such as the Fair Labor Standard Act (“FLSA”), if they fail to provide the masks to their employees.

The following are some of the questions and answers addressed in OSHA’s recently issued guidance:

Q: Are employers required to provide cloth face coverings to workers?

A: Cloth face coverings are not considered personal protective equipment (PPE) and are not intended to be used when workers need PPE for protection against exposure to occupational hazards. As such, OSHA’s PPE standards do not require employers to provide them.

• The General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act, requires each employer to furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm. Control measures may include a combination of engineering and administrative controls, safe work practices like social distancing, and PPE.
• However, employers may choose to ensure that cloth face coverings are worn as a feasible means of abatement in a control plan designed to address hazards from SARS-CoV-2, the virus that causes COVID-19. Employers may choose to use cloth face coverings as a means of source control, such as because of transmission risk that cannot be controlled through engineering or administrative controls, including social distancing.

Q: 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?

A: OSHA generally recommends that employers encourage workers to wear face coverings at work. Face coverings are intended to prevent wearers who have Coronavirus Disease 2019 (COVID-19) without knowing it (i.e., those who are asymptomatic or pre-symptomatic) from spreading potentially infectious respiratory droplets to others. This is known as source control.

Consistent with the Centers for Disease Control and Prevention (CDC) recommendation for all people to wear cloth face coverings when in public and around other people, wearing cloth face coverings, if appropriate for the work environment and job tasks, conserves other types of personal protective equipment (PPE), such as surgical masks, for healthcare settings where such equipment is needed most.

Employers 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. For some workers, employers may determine that wearing cloth face coverings presents or exacerbates a hazard. For example, cloth face coverings could become contaminated with chemicals used in the work environment, causing workers to inhale the chemicals that collect on the face covering. Over the duration of a work shift, cloth face coverings might also become damp (from workers breathing) or collect infectious material from the work environment (e.g., droplets of other peoples’ infectious respiratory secretions). Workers may also need to use PPE that is incompatible with the use of a cloth face covering (e.g., an N95 filtering facepiece respirator).

Where cloth face coverings are not appropriate in the work environment or during certain job tasks (e.g., because they could become contaminated or exacerbate heat illness), employers can provide PPE, such as face shields and/or surgical masks, instead of encouraging workers to wear cloth face coverings. Like cloth face coverings, surgical masks and face shields can help contain the wearer’s potentially infectious respiratory droplets and can help limit spread of COVID-19 to others.

Note that cloth face coverings are not considered PPE and cannot be used in place of respirators when respirators are otherwise required.

Learn more about cloth face coverings on the CDC website.
Employers should consider evaluating their accessible communication policies and procedures to factor in potentially providing masks with clear windows to facilitate interaction between employees and members of the public who need to lip-read to communicate.

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

A: Yes. Cloth face coverings are not a substitute for social distancing measures.

The answers to FAQs also discuss the differences between cloth face coverings, surgical masks and respirators, how to keep cloth face coverings clean and whether surgical masks or cloths face coverings are acceptable respiratory protection in the construction industry.

This guidance is just that—guidance. OSHA has not created any new legal obligations by way of this publication. Some states have issued more stringent guidelines/regulations and employers should ensure compliance.

Please contact us if you have any questions regarding OSHA’s updated guidance or would like to discuss this topic further.

The contents of this Alert are for informational purposes only, and do not constitute legal advice. If you have any questions about this Alert, please contact the Shulman Rogers attorney with whom you regularly work or a member of the Shulman Rogers Employment and Labor Law Group.