What Employers Need To Know About Face Masks And Coverings
Following the Centers for Disease Control and Prevention’s (CDC) recommendations, and some state and local requirements, the wearing of face masks and face coverings has become prevalent. The intent is to prevent the person wearing the face mask or covering from spreading the COVID-19 virus to others and to keep their hands away from their face.
But questions about face masks and coverings in the workplace abound. Can an employer require employee to wear a face mask or covering? If so, does the employer need to provide and pay for the mask or covering? And is the mask or covering a “respirator” such that the employer needs to comply with the Occupational Health and Safety Administration’s (OSHA) respiratory protection requirements? What if an employee cannot wear a face mask or covering due to a respiratory disability? What if the employee has a religious objection?
OSHA requires that employees who are exposed to respiratory hazards while working must wear appropriate respiratory protection, provided and paid for by their employer. An “N95” is the respirator most commonly used in health care and many other industries. It is a “filtering facepiece” respirator that looks like somewhat like a dust mask, except it has two straps instead of one and has more filtering ability. More advanced respirators do not rely upon a filtering facepiece. They include powered air-purifying respirators, self-contained breathing apparatuses (SCBAs), and canister-type respirators. Whenever employees must wear a respirator (an N95 or other), then OSHA requires their employer to follow OSHA’s comprehensive Respiratory Protection Program (RPP) requirements, which involve things such as medically evaluating employees to determine whether they can safely wear the respirator, fit-testing the respirator, training on proper use and care of the respirator, and maintaining a written Respiratory Protection Program.
Fortunately, most employees are not exposed (either frequently or for significant duration) to respiratory hazards at work that necessitate their use of a respirator. But even if they do never need respiratory protection, they can be required to wear a face mask or face covering while working. Moreover, while most employers will provide and pay for face masks or coverings for their employees, federal law does not prohibit those employers from requiring the employees to provide and pay for their own face mask or covering.
For years, OSHA has taken the position that that face masks and coverings are not “respirators” because they do not provide adequate respiratory protection to employees exposed to respiratory hazards. Additionally, OSHA recently stated in its “Guidance on Preparing Workplaces for COVID-19” that “a face mask (also called a surgical mask, procedure mask, or other similar terms) on a patient or other sick person should not be confused with PPE [Personal Protective Equipment] for a worker; the mask acts to contain potentially infectious respiratory secretions at the source (i.e., the person’s nose and mouth).” Stated differently, a face mask or covering is not PPE because it protects others and not the employee.
Because OSHA considers a face mask or covering neither a respirator nor PPE, an employer requiring the use of a mask or covering is neither obligated to comply with OSHA’s Respiratory Protection Standard (29 CFR § 1910.134 and 29 CFR § 1926.103) nor follow OSHA’s general PPE rule (29 CFR § 1910.132(h) and 29 CFR § 1926.95(d)) requiring them to provide and pay for their employees’ PPE. Note, however, that some states (including New York, New Jersey and Michigan) have taken the opposite position and make it the employer’s responsibility to provide and pay for face masks and coverings.
Employers should be cognizant that some employees with a disability may be medically unable to wear face masks or coverings, or may need to resort to a loose face covering or face shield that does not restrict air flow. In its recent COVID-19 Guidance, the Equal Employment Opportunity Commission (EEOC) noted that when an employee with a disability needs an accommodation related to PPE (e.g., no face mask, a modified face mask, a face shield, or a face mask for interpreters) or an employee needs a religious accommodation (such as a modified covering due to religious attire), then the employer should “discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer’s business under the ADA or Title VII.”
What if an employee has access to a respirator and wants to wear it instead of a face mask or covering? This may be a likely scenario as some employees want the added benefit of not being exposed to the COVID-19 virus from others. Should the employer allow it? No, unless the employer is prepared to comply with OSHA’s Respiratory Protection Program requirements. If an employee chooses voluntarily to use a “filtering facepiece” respirator (such as an N95), then the employer will need to provide the employee with a copy of the information contained in Appendix D to OSHA’s Respiratory Protection Program standard. Appendix D provides information to employees on how to be certain the respirator itself does not present a hazard (e.g.,read and follow the manufacturer’s instructions on proper use, maintenance, and care for the respirator; warnings on the capabilities and limitations of the respirator; and keeping track of the respirator so it is not mistakenly used by someone else). If the employee uses any other type of respirator, then the employer must establish and implement those elements of a written respiratory protection program necessary to ensure that any employee using a respirator voluntarily is medically able to use that respirator, and that the respirator is cleaned, stored, and maintained so that its use does not present a health hazard to the user.
As previously noted, some states and localities have different rules concerning face masks and face coverings. Employers should therefore be certain to understand these different – and evolving – rules in order to remain compliant.