By Conn Maciel Carey’s COVID-19 Task Force
CHECK OUT AN UPDATE TO THIS ARTICLE POSTED IN MID-JUNE BASED ON NEW FAQs ISSUED BY OSHA.
As concerns about the spread of COVID-19 grow, many employees working in essential businesses have sought to provide or require some form of respirator, face mask, or face covering for employees. Now, the CDC and White House are recommending that everyone wear some form of face covering any time in public to help reduce community spread of COVID-19. So, it is important to be aware of the OSHA guidelines and obligations regarding respirators and face coverings in the workplace. Depending on the type of face mask used, and whether it is required by the employer or permitted for voluntary use, there are certain requirements that employers must follow under OSHA’s respiratory protection standard, 29 C.F.R. 1910.134 and perhaps by other regulatory requirements.
As a starting point, let’s level-set the type of equipment we are talking about. N95 masks, although they are called masks and look like masks, are actually considered by OSHA to be respirators. Of course, anything more substantial than an N95 mask, such as half or full face tight-fitting face pieces with a filtering medium, are also considered by OSHA to be respirators. That type of equipment, whether it is required by the employer or permitted for voluntary use, triggers some requirements of OSHA’s respiratory protection standard that we will discuss below. Simple paper or cloth masks, like dental or non-N95 surgical masks, on the other hand, are not considered to be respirators, and do not trigger any requirements under 1910.134.
OSHA’s respiratory protection standard provides that a respirator shall be provided to each employee when such equipment is necessary to protect the health of such employee; i.e., if there are exposures to chemicals or other hazardous agents above permissible exposure limits. If a respirator is necessary because of exposure levels or simply because an employer mandates employees wear respirators, the employer must establish a written respiratory protection program that includes numerous elements such as fit testing, medical evaluations, procedures for proper use, storage and cleaning, and training.
OSHA’s initial Guidance for COVID-19 in the Workplace described four exposure risk categories (lower, medium, high, and very high) that workplaces and job tasks fall into, and the safety precautions that should be considered for each risk level, including what personal protective equipment (“PPE”) may be appropriate. The majority of workplaces, other than healthcare workers and those with regular close contact with known or suspected COVID-19 patients, fall into the lower or medium risk category. As of today, neither OSHA nor the CDC has issued guidance indicating that N95 respirators, or any other device considered to be a respirator, is required in lower- and medium-risk workplaces to protect employees from exposures to COVID-19.
However, that does not answer the question about what, if any, regulatory requirements there are if employers permit employees to voluntarily use N95s or other negative pressure filtering facepieces. OSHA most succinctly addressed which parts of 1910.134 apply to the voluntary use of N95 masks in a 2009 Interpretation Letter with this statement:
“If respiratory protection is not required and the employer did not advise the employee to use [an N95 dust mask], but the employee requested to use a dust mask, it would be considered voluntary use. Under these conditions, there would be no requirement to develop a written respiratory protection program; however, the employer would be responsible for providing the employee with a copy of Appendix D of 1910.134[, which outlines information for employees using respirators when not required under the standard].”
The voluntary use of N95 masks by employees does not require fit testing and most other elements of a respiratory protection program, but it does also require the employer to assess whether the employee would be harmed by wearing the mask (an assessment that is less rigorous than the medical evaluation required for mandatory use respirators). See also 2018 Interpretation Letter.
While permitting employees to voluntarily use N95 masks may pose some additional, albeit minor, burden, employers should be especially cautious of employees who seek to voluntarily wear respiratory protection more substantial than a surgical mask or N95 mask. For instance, if an employer permits employees to use, even if just on a voluntary basis, a half-face elastomeric tight-fitting respirator or self-contained breathing apparatus, there are additional, much more rigorous regulatory requirements that they need to meet. In particular, an employer would be required to pay for a required medical evaluation for such voluntary use and provide voluntary users with appropriate facilities and time to clean, disinfect, maintain, and store the respirators. To avoid these issues, employers should consider expressly disallowing voluntary use of respirators that are more substantial than the N95.
Ultimately, with new guidance from the CDC and the White House suggesting we all should wear some type of mask or face covering when in public, employers should be prepared to address these issues as they arise. If employees are able to obtain and voluntarily use N95 masks, employers must provide each such employee a copy of Appendix D in 29 C.F.R. 1910.134. To avoid any confusion about managers and supervisors identifying employees wearing N95 masks and to mitigate enforcement risk, it would be prudent to make an announcement to employees about the voluntary use of N95 masks (that you will permit it), post a copy of Appendix D in the workplace, and document your efforts to provide employees the information in Appendix D.
Staying on the subject of respirators (as opposed to face coverings and non-respirator masks), OSHA recently issued three new interim enforcement guidance documents about enforcement of its Respiratory Protection standard, each of which was aimed at managing a national supply shortage of disposable N95 filtering facepiece respirators. Since N95s are traditionally used once and then discarded, the guidance documents provide CSHOs enforcement discretion to permit the extended use and reuse of respirators, use of respirators that are beyond their manufacturer’s recommended shelf life, as well as use of certain types of respirators that have historically been prohibited in the U.S.
The first memorandum explains that, in the event of extended use or reuse of N95s, the employee is permitted to use it as long as the N95 maintains its structural and functional integrity, and it is not physically damaged, soiled, or contaminated. The guidance indicates that employers should train employees to understand that if the structural and functional integrity of any part of the N95 is compromised, it should be discarded. In the event that an expired N95 is used, the guidance states that employers should themselves visually inspect or ensure that employees visually inspect the N95 to determine if the structural and functional integrity of the mask and its components (straps, nose, bridge, and nose foam material), as they may degrade over time.
The second memorandum clarifies that if respiratory protection must be used, and either acceptable NIOSH-certified alternatives or alternatives that were NIOSH-certified except for having exceeded their manufacturer’s shelf life are not available for use in accordance with the first memorandum, employers may consider using respirators and filters certified under standards of other countries or jurisdictions. Specifically, the guidance provides a list of alternative respirators that have been approved under standards in other countries or jurisdictions that may be used where N95s are unavailable, including the following:
|Country||Mask||May be used in lieu of|
|P3||N99 or lower|
|PFF3||N99 or lower|
|KN/KP100||N99 or lower|
|P3||N99 or lower|
|DS/DL3||N99 or lower|
|R95||R95 or lower|
|P95||P95 or lower|
|N99||N99 or lower|
|R99||R99 or lower|
|P95||P99 or lower|
|N100||R100 or lower|
|R100||R95 or lower|
|P100||R95 or lower|
The guidance also reiterates employer obligations to prioritize the hierarchy of controls to eliminate or substitute the most appropriate respiratory protection and to train employees on how to appropriate inspect, use, and maintain respiratory protection that may be used in the workplace. Employers are directed to ensure employees use the most appropriate respiratory protection available for the hazard against which workers need to be protected in the following order:
- Implementing the hierarchy of controls in an effort first to eliminate or substitute out workplace hazards, then using engineering controls, administrative controls, and safe work practices to prevent worker exposures to respiratory hazards;
- Prioritizing efforts to acquire and use equipment in the following order:
- NOISH-certified equipment; then
- Equipment certified in accordance with standards of other countries or jurisdictions except the People’s Republic of China, unless equipment certified in accordance with standards of the People’s Republic of China is manufactured by a NIOSH certificate holder; then
- Equipment certified in accordance with standards of the People’s Republic of China, the manufacturer of which is not a NIOSH certificate holder; then
- Facemasks (e.g., medical masks, procedure masks).
- Prioritizing efforts to acquire and use equipment that has not exceeded its manufacturer’s recommended shelf before allowing workers to use equipment that is beyond its manufacturer’s recommended shelf life.
- Prioritizing efforts to use equipment that has not exceeded its intended service life (e.g., disposable FFRs used for the first time) before implementing protocols for extended use or reuse of equipment.
- Using homemade masks or improvised mouth and nose covers only, as a last resort (i.e., when no respirators or facemasks are available).
The third piece of respiratory protection guidance expanded OSHA’s fit-testing guidance for N95 masks that had been previously issued only to healthcare industry employers to all employers in an April, 8, 2020 Enforcement Memorandum. Compliance Officers have enforcement discretion concerning the annual fit-testing requirements, as long as employers have made good-faith efforts to comply with the requirements of the Respiratory Protection standard and to follow the steps outlined in the March 14, 2020 Enforcement Memorandum. That guidance specifically instructs employers to:
- Use only NIOSH-certified respirators;
- Implement CDC and OSHA strategies for optimizing the supply of N95 filtering facepiece respirators and prioritizing their use;
- Perform initial fit tests for each employee with the same model, style, and size respirator that the worker will be required to wear for protection against COVID-19 (initial fit testing is essential to determine if the respirator properly fits the worker and is capable of providing the expected level of protection);
- Inform workers that the employer is temporarily suspending the annual fit testing of N95 filtering facepiece respirators to preserve and prioritize the supply of respirators for use in situations where they are required to be worn;
- Explain to workers the importance of performing a user seal check (i.e., a fit check) at each donning to make sure they are getting an adequate seal from their respirator, in accordance with the procedures outlined in 29 CFR § 1910.134, Appendix B-1, User Seal Check Procedures. See also, OSHA tutorial videos (English, Spanish).
- Conduct a fit test if they observe visual changes in the employee’s physical condition that could affect respirator fit (e.g., facial scarring, dental changes, cosmetic surgery, or obvious changes in body weight) and explain to workers that, if their face shape has changed since their last fit test, they may no longer be getting a good facial seal with the respirator and, thus, are not being adequately protected; and,
- Remind workers that they should inform their supervisor or their respirator program administrator if the integrity and/or fit of their N95 filtering facepiece respirator is compromised.
Employers are further directed to assess their engineering controls, work practices, and administrative controls on an ongoing basis to identify any changes they can make to decrease the need for N95s or other FFRs. When reassessing these types of controls and practices, employers should, for example, consider whether it is possible to increase the use of wet methods or portable local exhaust systems or to move operations outdoors. In some instances, an employer may also consider taking steps to temporarily suspend certain non-essential operations.
Finally, if quantitative or qualitative fit-testing capabilities cannot be performed, as required under mandatory Appendix A to 29 CFR § 1910.134, employers are instructed to consult with the manufacturer to see if it recommends a different model that fits similarly to the model traditionally used by employees.
Now setting aside respirators, if your workplace is permitting or even requiring use of some form of a loose-fitting paper or cloth mask (like a non-N95 surgical or dental mask), or even a generic face covering like a bandana or one of the DIY masks that CDC has been promoting for general use by the public, none of those are considered to be a respirator, AND none of those are even considered to be PPE. As a general rule, these loose fitting masks (i.e., there is no seal around the mouth and nose) do not provide a reliable level of protection for the wearer of the mask from inhaling airborne particles. They are intended really to protect others around the wearer from secretions by the wearer of the mask. In principle, my mask protects you, and your mask protects me, so they do add safety value in the workplace, but they are a safety control (like a sneeze guard), not PPE.
With an understanding that these loose fitting face coverings are not respirators or PPE, there are no requirements in a specific OSHA standard that apply. So, even if your workplace has a mandatory policy for use of face coverings, there is no requirement to fit test or even a requirement for the employer to supply them or pay for them. It would be akin to a requirement that employees wear a long sleeve shirt to work, or wear close-toed shoes. The employer can require it without paying for it or supplying.
But beyond specific OSHA standards, there is the General Duty Clause. And if we are not there yet, we will soon be at a place where ensuring the use of a face covering is a recognized, feasible, expected infection control measure that employers should be adopting to avoid liability under the General Duty Clause. When we are at that point, then employers would be required to provide/supply/pay for them and ensure they are being used. It is also worth noting here that some state and local governments are already requiring cloth face coverings to be worn in public and by employees who interact with the public. In such situations, and depending on the state or local law, then employers are likely already required to provide them and/or pay for them.
In summary, what is clear is that respirators (i.e., N95 masks) are generally NOT required to be provided by employers, except in those high risk exposure industries like health care and emergency response. But what is required regarding face coverings of some kind (e.g., loose-fitting dental/surgical masks or any generic cloth covering, like a bandana) depends on the jurisdiction of the workplace and what ultimately becomes considered “reasonable” for employers in your industry. That is because some states and local authorities are mandating face coverings either for all members of the public (which would include your employees) or for all employees of essential businesses where perfect social distancing cannot be achieved (which is likely most all employees, as well). So in those locations, employers must require, provide, and pay for the face coverings. But even in jurisdictions that are not mandating face coverings by order of a governor or health department, the recommendations from CDC, OSHA, and others are reaching a level of broad consensus about the use of face coverings in public. Accordingly, we are also reaching a point where it would likely be a violation of OSHA’s General Duty Clause to not require their use. Therefore, from a practical standpoint, we recommend that employers provide and pay for face coverings, and also consider permitting employees to wear their own face coverings, masks, and even voluntary use respirator masks, if they have their own.
* * * * * * * *
We will continue to monitor OSHA’s guidance on how its regulations apply to the Coronavirus pandemic, and we will provide additional updates on these evolving issues. In the meantime, for additional resources on issues related to COVID-19, please visit Conn Maciel Carey’s COVID-19 Resource Page for an extensive index of frequently asked questions with our answers about HR, employment law, and OSHA regulatory related developments and guidance, as well as COVID-19 recordkeeping and reporting flow charts. Likewise, subscribe to our Employer Defense Report blog and OSHA Defense Report blog for regular updates about the Labor and Employment Law or OSHA implications of COVID-19 in the workplace. Conn Maciel Carey’s COVID-19 Task Force is monitoring federal, state, and local developments closely and is continuously updating these blogs and the FAQ page with the latest news and resources for employers.
14 thoughts on “COVID-19 OSHA FAQs about Respirators, Face Masks, and Face Coverings”
Response: Non-voluntary use of a filtering facepiece (dust mask/disposable paper type dust respirator)
requires that the employer establish and implement a written respiratory protection program with worksitespecific procedures. The respiratory protection program must include the medical evaluation of employees.
Why are you going against your own standards now?
Mask made of cloth & medical masks don’t stops the COVID virus of 0.125.
You’re just doing a disservice to my health & the public. Shame on you!
It’s true that cloth and paper face coverings are not extremely effective to protect the wearer of the mask, but that’s not why OSHA and CDC are recommending the masks. They are extremely effective at protecting everyone else around the wearer from respiratory droplets of the wearer. So your mask may not do enough to protect yourself… but my mask protects you, and your mask protects me. It’s called “source control.” And since N95 masks need to be reserved for healthcare professionals, this is the best that can be done. Anyone who buries her head in the sand and ignores the recommendations of the scientists is putting everyone’s health at risk. Shame on them.
What about contact? Someone wearing any face covering over time will touch or adjust it and may even instinctively cover their mouth if they cough or sneeze. There likely are droplets caught in the covering even with normal respiration. It then goes to hands and fingers and to anything that person touches for someone else to touch and pass on or be infected by. I think random face coverings give false security to people who should just do what they do in cold and flu seasons.
I’m more interested in what the scientists think. And there is consensus that it makes an enormous difference in controlling the spread of the virus. But really, we don’t have to guess or speculate. We can just look at the way different countries have handled the pandemic. Like little control experiments. Countries that mandated masks and social distancing have essentially eliminated the virus. Countries that let non-scientist blowhards set policy are seeing record highs in cases and deaths months after we all should have figured it out.
Shouldn’t OSHA be concerned with employees that are forced to wear mask? This could exacerbate underlying health issues, or even healthy workers, due to over inhalation of carbon dioxide. Does OSHA really think forced masking is healthy for any worker? Seems you are shirking your responsibility to some “consensus” that masking shields others.
Healthcare professionals have worn masks at work throughout the day for decades. It’s called infection control. Now the risk of exposure to infectious diseases is not limited to just the healthcare setting, so everyone needs to use the same protection.
This notion that wearing a loose-fitting, non-respirator face covering is harmful is the height of misinformation and conspiracy theory nonsense. Take off the tinfoil hat and put on a mask.
I suggest you watch these videos. OSHA’s own guidelines for normal atmosphere are 20.95, almost 21 ppm. Below 19.5 ppm, oxygen deprivation (hypoxia) begins to occur and is a direct threat to life and/or health. Just a kleenex over your nose and mouth will decrease your oxygen level between 5 & 20%, depending on your health condition. I have a friend whose doctor told her he did not become a surgeon because he couldn’t handle wearing a mask. Sounds to me like you’re the one wearing the tinfoil hat, sir. https://video.search.yahoo.com/search/video?fr=mcafee&p=osha+standards+for+oxygenation#id=1&vid=4a3540dbf1b90bf22185084d692ea06a&action=view
I suggest you stop spreading misinformation, and certainly should stop attributing it to OSHA, and instead read what OSHA has actually said specifically about this issue just this month: https://www.osha.gov/SLTC/covid-19/covid-19-faq.html#cloth-face-coverings
Does wearing a medical/surgical mask or cloth face covering cause unsafe oxygen levels or harmful carbon dioxide levels to the wearer?
No. Medical masks, including surgical masks, are routinely worn by healthcare workers throughout the day as part of their personal protective equipment (PPE) ensembles and do not compromise their oxygen levels or cause carbon dioxide buildup. They are designed to be breathed through and can protect against respiratory droplets, which are typically much larger than tiny carbon dioxide particles. Consequently, most carbon dioxide particles will either go through the mask or escape along the mask’s loose-fitting perimeter. Some carbon dioxide might collect between the mask and the wearer’s face, but not at unsafe levels.
Like medical masks, cloth face coverings are loose-fitting with no seal and are designed to be breathed through. In addition, workers may easily remove their medical masks or cloth face coverings periodically (and when not in close proximity with others) to eliminate any negligible build-up of carbon dioxide that might occur. Cloth face coverings and medical masks can help prevent the spread of potentially infectious respiratory droplets from the wearer to their co-workers, including when the wearer has COVID-19 and does not know it.
Some people have mistakenly claimed that OSHA standards (e.g., the Respiratory Protection standard, 29 CFR 1910.134; the Permit-Required Confined Space standard 29 CFR 1910.146; and the Air Contaminants standard, 29 CFR 1910.1000) apply to the issue of oxygen or carbon dioxide levels resulting from the use of medical masks or cloth face coverings in work settings with normal ambient air (e.g. healthcare settings, offices, retail settings, construction). These standards do not apply to the wearing of medical masks or cloth face coverings in work settings with normal ambient air). These standards would only apply to work settings where there are known or suspected sources of chemicals (e.g., manufacturing facilities) or workers are required to enter a potentially dangerous location (e.g., a large tank or vessel).
I have a physical job and sweat a lot while I work. My employer has made masks mandatory, even though we have no interaction with the public, the problem is after 30 min or so I can’t breathe. I feel like I am being waterboarded or something. Due to the sweat soaking into the mask. I have tried several different types of cloth and paper masks, all with the same results. I was really hoping OSHA had something here to help me. I don’t want to quit my job, but guess it’s my only option.
Have you tried rotating through multiple masks during the day? Most cloth face coverings now can be effectively laundered and re-used. So if you obtain 5 or 6 different masks for use during the day, you can swap to a dry one every hour or so, and then clean them all regularly.
FYI, this blog is not OSHA’s. We are a private law firm that specializes in OSHA regulatory and legal support for the regulated community.
So you are an attorney not a medical or OSHA exoert. You are just the kegal firm they hide behind. Got it. Thanks for your honesty
I am an attorney, not a medical professional. But I am, by any measure, an OSHA expert. I’ve practiced exclusively in the field of workplace safety and health law for 20 years and founded a law firm that specializes in OSHA law.
But to be clear, I am certainly not a law firm that OSHA hides behind. I have no affiliation with OSHA the agency, other than they are my adverse party in litigation when I help employers contest OSHA citations, and I interact with the agency all the time while participating in rulemakings on behalf of employers and trade groups, pursuing letters of interpretation, and seeking compliance assistance to help employers understand and comply with the law.
During this pandemic, I have worked 18 hours a day reviewing every bit of guidance from OSHA, CDC, state OSH Plans, state and local health departments, and governors’ orders all across the country. I have read countless scientific studies in credible, peer-review journals to stay on top of the science. I have participated in public meetings (and some private meetings) with regulators and infectious disease specialists. I have participated in rulemakings and policymaking processes with OSHA, state OSH Plans, and some health departments. I have helped employers develop and implement dozens of written COVID-19 exposure control and response plans across numerous industries, provided COVID-19 training to countless employers and trade groups, and helped employers respond to hundreds of employee complaints through OSHA and state OSH Plans about employers’ COVID-19 measures in the workplace. Now we are participating in numerous enforcement inspections by OSHA about COVID-19 infection control measures.
So, yes, I am an attorney, AND an OSHA expert. And I have kept extremely close tabs on what the real scientific community has been saying and learning about the pandemic, because it’s my job to do so.
[…] COVID-19 OSHA FAQs about Respirators, Face Masks, and Face Coverings […]