Fed OSHA’s COVID-19 ETS: What You Need to Know About Face Masks, Respiratory Protection and Other PPE

Today’s topic on the Fed OSHA COVID-19 ETS is face masks, respiratory protection, and other personal protective equipment (“PPE”)…what is required and when.

29 C.F.R. Section 1910.502(f) of the ETS establishes the personal protective equipment (“PPE”), including respiratory protection, requirements that must be implemented at covered facilities.  This summary describes these requirements.

Face Masks

The standard does not mandate that all employees wear N95 or other higher-level respiratory protection at all times.  Rather, it allows employees who work at covered facilities but do not have exposures to suspected or confirmed COVID-19 persons to wear face masks, defined as “surgical, medical procedure, dental, or isolation mask[s] that [are] FDA-cleared, authorized by an FDA EUA, or offered or distributed as described in an FDA enforcement policy.”  Face masks must be worn on all employees indoors or when in a vehicle with another person (for work purposes).  The face masks must be provided at no cost to the employee, and the employer must ensure that employees change their masks at least once per day (or when they are soiled, damaged or for other patient-care related reasons).

Certain exceptions to the requirement to wear face masks are allowed under the ETS, including when employees:

  • Are alone in a room
  • Are eating or drinking (and remain 6 feet from others or are separated by a physical barrier)
  • Have a medical condition, disability or religious beliefs that prevents use
  • Would risk serious injury or death by their use (in other words, where mask use poses a greater hazard)
  • Need to see another’s mouth when communicating (e.g., deaf employees)

In the above situations (except when alone or eating/drinking), the employer must ensure that employees are provided with and use other protection, such as a face shield, if feasible and where it will not pose the same concerns as use of a face mask.  The standard establishes specific requirements for shields, such as the requirement to ensure that they are cleaned at least daily and are not damaged.

Respirators

Whenever an employee has exposure to or will perform an aerosol-generating procedure on a person with suspected or confirmed COVID-19, the ETS reverts to OSHA’s respiratory protection standard, requiring employers to provide and require use of respiratory protection pursuant under 29. C.F.R. Section 1910.134 (with all the attendant requirements of Section 1910.134, such as fit-testing, a written program document, and medical evaluations).

Apparently recognizing that this requirement may spur additional N95 shortages, under the section of the standard related to exposures to persons with suspected or confirmed COVID-19, the ETS builds in the guidance CDC issued last year for situations where the country faces supply shortages of this PPE.  The standard expressly identifies and allows employers to follow the CDC’s “Strategies for Optimizing the Supply of N95 Respirators” guidance, but encourages employers to choose PAPRs or elastomeric respirators rather than N95s to avoid future shortages.  PAPRs and elastomeric respirators also are encouraged over N95s (but not required) for all employees performing aerosol-generating procedures on a patient.

Voluntary Use Respirators

The ETS also establishes a new “mini-respiratory program” that must be followed under voluntary use conditions.  Specifically, under either of these following scenarios, the ETS requires implementation of its new “mini-respiratory program”:

  • employers voluntarily provide N95s or other respirators to employees who are required only to wear face masks under the standard; or
  • employees bring in their own respirators to use in the workplace. (Per the ETS, employers are required to allow employees to bring in and use their own respirators when those employees otherwise would be required simply to where face masks.)

The new mini-respiratory program establishes a higher standard for voluntary use respirators than OSHA’s existing respiratory protection program.  For employees bringing in their own respirator, a specific notice to the employee regarding respirator use is required to be given by the employer to the employee.

For employers who voluntarily provided respirators to employees in lieu of face masks, the employer must ensure that the employee is trained in: how to inspect the respirator; limits and capabilities of the respirator; proper storage and maintenance techniques; how to conduct a proper seal check; and the medical signs and symptoms limiting effectiveness.  Additionally, employers of employees wearing voluntary use respirators must ensure that these employees: perform a seal check before use and correct any problems identified during the seal check; and reuse only their own respirator and only when the respirator is appropriate for reuse (not soiled/damaged, etc.).  Employers are also responsible for ensuring that employees discontinue use of these voluntarily used respirators if the employer is made aware of signs and symptoms indicating a risk with the use of the respirator.  The mini-respiratory program is found at 29 C.F.R. Section 1910.504.

Other PPE

When respirators – as opposed to face masks – are required, additional PPE is also required. Specifically, when employees are exposed to suspected or confirmed COVID-19 persons and/or where an aerosol-generating procedure is performed on a suspected or confirmed COVID-19 person, in addition to respirators regulated under Section 1910.134, employees must be provided with gloves, an isolation gown or protective clothing, and eye protection.

Aerosol-Generating Procedures on COVID-19 Persons

Note that the ETS establishes specific limitations on the performance of aerosol-generating procedures on people who are suspected or COVID-19 patients.  Specifically, the employer must:

  • Limit the number of employees present during the procedure to only those essential for patient care and procedure support;
  • Ensure that the procedure is performed in an existing airborne infection isolation room (AIIR), if available; and
  • Ensure that the surfaces and equipment where the procedure is performed are cleaned and disinfected after it is conducted.

Please contact any of the OSHA attorneys in Conn Maciel Carey’s national OSHA Practice if you need help determining ETS requirements regarding face masks and/or respiratory protection.  Also, check out our articles about other sections of the ETS, including:

Look for another blog soon!

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