By Conn Maciel Carey’s COVID-19 Task Force

As COVID Spring transitions to COVID Summer, wearing some form of face covering has become the new norm, especially in workplaces all across the country.  Many employers operating essential businesses, as well as non-essential business that have begun to reopen, have sought to provide or require some form of respirator, face mask, or face covering for employees.  Given OSHA’s particular emphasis on respiratory protection throughout the pandemic and for the foreseeable future, it is important for employers 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 mandated by the employer or merely 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  other regulations.  Last week, OSHA issued a series of Frequently Asked Questions (FAQs) about face coverings to help employers navigate obligations amidst the COVID-19 pandemic.

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.  Use of that type of equipment in the workplace, whether it is required by the employer or permitted for voluntary use, triggers numerous duties under OSHA’s respiratory protection standard that we will discuss below.  On the other hand, simple paper or cloth masks, like dental or surgical masks, are not considered to be respirators, and do not trigger any requirements under 1910.134.

Let’s start this discussion with the more ubiquitous face coverings that are NOT considered to be respirators, and also are not considered to be personal protective equipment (PPE).

Paper or Cloth Face Masks

Setting aside respirators for the moment, if your workplace is permitting or even requiring use of some form of a loose-fitting paper or cloth 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 is considered to be a respirator, AND none of those is even considered to be a form of 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 important safety value in the workplace, but they are more akin to a safety control (like a sneeze guard) than they are to PPE.  There has been some confusion about surgical masks, which are considered PPE in certain circumstances (for example, when used in an operating room to protect the wearer from splashes of blood), OSHA’s new COVID-19 FAQs confirm that even surgical masks, if they are being used only as source control—not to protect workers against splashes and sprays containing potentially infectious materials—OSHA’s PPE standards do not apply to them, which means employers cannot be cited under OSHA’s PPE standard for not supplying them to workers, for not paying for them, for not providing training about their use, storage, cleaning, etc.

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.  OSHA explains in its FAQs that the use of a face covering may now be a recognized, feasible, expected infection control measure that employers should be adopting to avoid liability under the General Duty Clause:

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, including safe work practices like social distancing. Choosing to ensure use of surgical masks for source control may constitute a feasible means of abatement as part of a control plan designed to address hazards from SARS-CoV-2, the virus that causes COVID-19.” 

If masks as a control measure are required under the General Duty Clause, 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.

Respirator Masks

OSHA’s respiratory protection standard provides that a respirator shall be provided to each employee when such equipment is necessary to protect the employee’s health; e.g., when 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 to 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 recommended for lower- and medium-risk workplaces to protect employees from exposures to COVID-19.  Rather, OSHA’s FAQs indicate that employees are only “encouraged” to wear cloth face coverings at work, such as a cloth mask (i.e. not an N95 filtering facepiece or a half- or full-face respirator), and employers “have the discretion to determine whether to allow employees to wear cloth face coverings in the workplace based on the specific circumstances presented at the work site.”

However, that does not answer the question whether employers should require use of face coverings, or what regulatory requirements apply if an employer permits 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:

“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 burden, albeit minor, 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 the employer needs 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.

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 addressing the worldwide 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:

1. extended use and reuse of respirators;
2. use of respirators that are beyond their manufacturer’s recommended shelf life; and
3. use of certain types of respirators that have historically been prohibited in the U.S.

The first memorandum of OSHA’s three COVID-19 respirator policy documents, 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 neither NIOSH-certified alternatives or alternatives that were NIOSH-certified except for having exceeded their manufacturer’s shelf life are available for use in accordance with the first memorandum, employers may then 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 employers may use during the pandemic because N95s are unavailable:

Country	Mask	May be used in lieu of
Australia	P2	N95
	P3	N99 or lower
Brazil	PFF1	N95
	PFF3	N99 or lower
China	KN/KP95	N95
	KN/KP100	N99 or lower
Europe	P2	N95
	P3	N99 or lower
Japan	DS/DL2	N95
	DS/DL3	N99 or lower
Korea	Special 1st	N95
Mexico	N95	N95
	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:

1. 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;
2. 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 exceptthe 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).

3. 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.
4. 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.
5. 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.

Conclusion

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 what ultimately becomes considered “reasonable” for employers in your industry, as well as what states and local authorities mandate.  In those states with orders from the department of health or governor’s orders about face masks for all members of the public (which would include your employees) or for all employees of businesses permitted to operate where perfect social distancing cannot be achieved (which is likely most all employees, as well), employers must require face coverings, and even though it is not required that the employer pay for and supply them, the best way to ensure consistent usage is to do just that.

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.  Indeed, OSHA’s recent FAQs about Face Coverings sends a strong signal about OSHA’s expectations that masks will be used in the workplace in most circumstances.  Accordingly, we think we are already at the point where it likely would be a violation of OSHA’s General Duty Clause to not require their use, except when social distancing can be assured.  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.

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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.