Since the COVID-19 pandemic started, employers have struggled to understand the Occupational Safety and Health Administration’s (OSHA) position on cloth face coverings and surgical masks, specifically whether the agency requires or recommends their use and whether they constitute personal protective equipment (PPE).
Although the issues may seem trivial, employers want to know what their compliance obligations are. In June, the agency issued frequently asked questions (FAQs) and responses about the equipment. Some, but not all, questions were answered.
Cloth Face Masks
OSHA doesn’t consider cloth face coverings (whether homemade or commercially produced) to be PPE. They don’t protect employees from airborne infectious agents because of their loose fit and lack of seal or adequate filtration.
Therefore, employers that require employees to wear them don’t have to comply with 29 CFR 1910.132. If an employer recommends or requires surgical masks or respirators to be worn, cloth face coverings aren’t an adequate substitute. They may be disposable or reusable with proper washing.
Are you required to provide cloth face coverings to employees? According to OSHA’s new guidance, the answer is no. But the answer also states you may choose to require cloth face coverings as part of a control plan designed to reduce COVID-19’s hazards.
In fact, OSHA goes on to recommend you encourage employees to wear cloth face coverings at work as a means of source control—that is, to prevent an infected person from inadvertently spreading the coronavirus.
So, you have the discretion to allow employees to wear the coverings. The guidance notes wearing them may sometimes create a hazard, such as when an employee wears a mask that contains the virus or has some workplace chemical on it.
Even if employees wear cloth face coverings, the guidance states you should still enforce social-distancing requirements.
Surgical Masks
One of the FAQ responses seems to give employers some control in determining the purpose for which they may require surgical masks to be worn. It initially states the surgical masks “are” used to protect workers against splashes and sprays (i.e., droplets) containing potentially infectious materials.
Guidance from the U.S. Centers for Disease Control and Prevention (CDC) indicates one way of transmitting the virus is from respiratory droplets produced when an infected person coughs, sneezes, or talks. Although the OSHA guidance doesn’t reference the CDC guidance and isn’t clear, OSHA is likely referring to the same kinds of droplets in its guidance.
In that capacity, OSHA says surgical masks are considered PPE. In a footnote, however, the agency notes if the masks are used only for source control and not to protect workers from splashes and sprays, they are not considered PPE. The footnote then states the Occupational Safety and Health Act’s (OSH Act) General Duty Clause requires employers to provide workplaces free of recognized hazards likely to result in death or serious harm, and choosing to ensure the use of surgical masks may be considered a feasible means of source control under the clause.
In a nutshell, even though OSHA’s guidance states up front that surgical masks are PPE when used to protect the wearer from splashes and sprays, the footnote indicates it’s up to the employer to determine the purpose of their use:
- If the surgical masks are used to protect the wearer, they are PPE.
- If an employer determines they’re used only to protect others from being infected by the wearer, they are not PPE but rather an administrative source control.
Because of loose fit and lack of a seal or adequate filtration, surgical masks won’t protect the wearer from airborne transmissible infectious agents, according to the guidance.
Filtering Facepiece Respirators
Respirators are used to protect workers from inhaling small particles, including airborne transmissible or aerosolized infectious agents. When respirators are necessary to protect a worker, the employer must comply with 29 CFR 1910.134, the respiratory protection standard, according to the guidance.
When the employer provides filtering facepiece respirators but their use is voluntary, employees must be given the information found in Appendix D of the respiratory protection standard. There are no other compliance obligations, such as a medical evaluation.
Julie E. O’Keefe is an attorney with Armstrong Teasdale LLP in St. Louis. You can reach her at jokeefe@atllp.com.