Legal Alert

The Great Cover-Up: States Order Workers to Wear Face Coverings

by the Labor and Employment Group
April 17, 2020

Within the last week, Pennsylvania, New Jersey, and New York each have issued orders requiring that employees of businesses still operating onsite—those deemed “essential” or “life sustaining”—wear masks or face coverings while at work. Maryland also issued an order requiring face coverings for all staff in retail businesses and food service establishments. This has prompted many employers to examine their responsibilities under these directives and whether they trigger obligations under the respiratory protection regulations of the Occupational Health and Safety Administration (OSHA).

The short answer to this question is “no.” In pre-COVID-19 guidance, OSHA has been clear that cloth face coverings and simple surgical masks are not “respirators,” and their use does not impose obligations under OSHA’s respirator rules. Moreover, in OSHA’s most recent Interim Enforcement Response Plan for Coronavirus Disease 2019, OSHA stated that “improvised masks” are not considered personal protective equipment in the health care setting.

It is important to identify the items employees are required to use, and are using, to fully answer this inquiry. For example, the Order issued by the Pennsylvania Secretary of Health references only “masks” to be provided by the employer, or obtained or made by employees in accordance with State’s Department of Health guidance and guidance issued by Centers for Disease Control and Prevention (CDC). The New Jersey Governor’s Executive Order requires that employers provide their employees with “cloth face coverings,” although employees may choose to use their own “surgical grade mask(s) or other more protective face covering,” if they already have such items. The New Jersey Order expressly repeats the CDC guidance in defining “cloth face covering” as one which “must fit snuggly but comfortably against the sides of the face, be secured with ties or ear loops, include multiple layers of fabric, allow for breathing without restriction, and be able to be laundered and machine dried without damage or change to shape.” New York references “a mask or cloth face covering.” Maryland requires face coverings, which fully cover the nose and mouth; it need not be a “Medical-Grade mask,” and scarves and bandanas may suffice.

However, some employees have asked for, and employers may be considering, devices that offer greater protection to the wearer than these masks/face coverings. A “step up” in protection will involve the use of a “respirator” as defined by OSHA. Of course, some employees, such as many healthcare workers treating COVID-19 patients must use more extensive, personal protective equipment, such as true respirators, but the states’ orders do not address these situations.

There are many types of respirators such as particulate respirators; air-purifying respirators; powered air-purifying respirators; and self-contained breathing apparatuses (SCBA). Respirators also include “filtering face pieces (dust masks),” a category which includes filtering masks, commonly known as N95s (and similar devices such as N99s and 100s, and R95s, P99s and P100s). The numbers in these names reflect the approximate percentage of airborne particulates filtered out by the device. N95s are perhaps the most common. While they are in short supply and the CDC has urged businesses that do not need to use these devices to donate them to healthcare providers, some employees and business do have them and want to use them as protection against the spread of the coronavirus.

The use of N95s and other respirators, whether voluntary on the part of the employee or mandated by the business, triggers obligations under OSHA’s respiratory protection rules. Employers that require their workers to wear respirators in the workplace must establish and manage a respiratory protection program (RPP). Among other things, an RPP must be worksite specific and include, as applicable: procedures for selecting the respirators chosen; medical evaluations for employees required to use respirators; fit testing for tight-fitting respirators; procedures and schedules for respirator maintenance; employee training; and procedures for regularly evaluating the program. Before selecting a respirator, employers must identify and evaluate the hazards in the workplace and select the one that protects the employees from exposure to the particular, identified hazard.

Employers that allow employees voluntarily to use filtering face piece respirators must determine that the respirator itself will not create a hazard. Employers are not required to have a written RPP for voluntary use of filtering face pieces, but they must provide to each voluntary wearer a copy of the information contained in Appendix D to OSHA’s RPP standard. Appendix D advises employees to take certain precautions to be sure that the respirator itself does not present a hazard.

Thus, while compliance with state Orders for “masks” or “cloth face coverings” will not trigger an RPP obligation, employers that choose to require or allow workers additional respirator protection must comply with heightened respirator-based OSHA protections.

Ballard Spahr’s Labor and Employment Group is closely following state and local COVID-19 legislation and other developments related to COVID-19 as they impact the workforce. If you have questions, please contact any member of the Labor and Employment Group for advice about your situation.

Copyright © 2020 by Ballard Spahr LLP.
(No claim to original U.S. government material.)

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This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.

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