Client Alert

Should Employers Require Employees to Wear Facemasks?

20 Apr 2020

UPDATED on 19 May 2020: OSHA CLARIFIES RULES ON CLOTH FACE COVERINGS

As employers begin implementing return to work strategies, many are wondering whether they should permit or require individuals to wear facemasks at work. It may be surprising to many companies, but the Occupational Safety and Health Administration (“OSHA”) has published detailed standards and guidance relating to employees wearing personal protective equipment (“PPE”), which can include simple facemasks. OSHA has also published guidance on dealing with COVID and guidance for employees in the workplace. Moreover, there are big differences between whether an employer mandates employees to wear facemasks and whether employees do so voluntarily.

Q: What does OSHA consider to be a mask or a respirator, and does this cover simple cloth or surgical masks?

A: OSHA breaks down masks into two categories for which it has issued regulations:

1) Respirators: A respirator is a device that protects employees from inhaling particles or other dangerous substances. Usually, they are fitted closely to the user’s face and do not allow air to flow between the sides of the mask and the user’s face. The whole idea is that the air should only flow through the mask and thus filter the air. Masks such as N95 masks are considered respirators. Respirators are subject to the OSHA Respiratory Protection Standard, which requires respirators when “necessary to protect the health” of an employee, as well as OSHA PPE Standard.

2) PPE: A loose-fitting mask that is not intended to filter air, such as a surgical mask, is not considered a respirator because it does not filter the air. (see https://www.osha.gov/laws-regs/standardinterpretations/2017-12-20) Surgical masks are, however, still subject to the OSHA PPE Standard, which requires proper protection if necessary to prevent a job‑related injury or impairment.

But there is a third category of mask – cloth face coverings like bandanas and other homemade cloth coverings that are not regulated by OSHA:

3) Homemade and Improvised Masks: As more and more government and business entities now require face coverings in public and business settings, many individuals are making their own face coverings or masks. Like a surgical mask, a homemade or improvised face covering is also loose‑fitting over the mouth and nose and is not intended to filter air. Recent OSHA guidance, however, notes that improvised masks are not PPE. (CDC guidance and certain Cal/OSHA guidance also note the same). As such, they should not be subject to OSHA’s Respirator Protection Standard or PPE Standard.

Knowing which type of mask employees are permitted or required to wear may have a significant impact on what the employer is obligated to do because the rules for respirators are much more rigorous than for PPEs. And of course, there are no OSHA rules for the improvised cloth face coverings. Notably, however, recent OSHA enforcement guidance from March 14, 2020, and April 3, 2020, has significantly relaxed enforcement criteria for the use of respirators. OSHA Area Offices are encouraged to use discretion in enforcing fit testing requirements for N95 respirators, the use of non-N95 respirators, and the reuse of respirators.

Q: Is there a difference if an employer requires employees to wear loose‑fitting face masks or merely permits employees to wear loose-fitting face masks?

A: Yes – there are significant differences between requiring employees to wear masks and permitting employees to wear masks (even if the employer provides the masks to the employees).

Under the OSHA PPE Standard, which applies to all PPE (including surgical masks), if an employer requires employees to wear PPE, the employer must perform a hazard assessment, consider other alternative options to protect employees, such as installing a barrier between workers or workers and customers, identify and provide appropriate PPE for employees, train employees in the use and care of PPE, clean and replace PPE as needed, and create a plan that is periodically reviewed.

However, if the employer allows the employees to voluntarily wear surgical masks, none of these rules apply. Even if the employer pays for the masks and provides them to employees, it can still be a voluntary program. The employer should tell the employees, preferably in writing, that the masks are not required and that wearing one is voluntary.

OSHA has not provided explicit guidance regarding requirements — if any — for the use of homemade or improvised face coverings, except to reference the CDC guidelines. OSHA has noted, however, that these cloth face coverings are not PPE. As such, employers should not be subject to OSHA’s PPE Standard or Respiratory Protection Standard. Still, the CDC recommends (and many jurisdictions also suggest or require) that individuals use cloth face coverings to combat community spread of the virus, particularly in public areas with a chance of person-to-person contact.

Q: Is there a difference if an employer requires employees to wear respirators like an N95 mask or merely permits employees to wear respirators like an N95 mask?

A: Yes. If the mask is considered a respirator and the employer requires employees to wear a mask, the obligations under the OSHA rules are much more detailed and stringent, including that the employer must provide a medical exam, make sure that the mask fits properly, and provide training to employees. Though, again, interim OSHA guidance encourages some degree of flexibility in the enforcement of respirator fit testing and use during the current pandemic.

If the employer permits employees to voluntarily wear a respirator, then the employer must comply only with the Voluntary Use Requirements under the Respiratory Protection Standard. That means that the employer should: (1) determine whether there is a hazardous condition that requires wearing a mask; (2) determine that the employee is not creating a new or different hazard by wearing a mask in the workplace (e.g., the mask can’t get caught in a moving part or machinery or otherwise obscure the employee’s vision and thus create its own hazard); (3) make sure that any masks that are used are clean and in good repair; and (4) provide written information to employees about wearing masks that has been drafted as required by Appendix D to 1910.134.

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