On June 10, 2020, the Occupational Health and Safety Administration (OSHA) issued guidance to help employers navigate workplace face coverings. In its FAQs on Cloth Face Coverings, the agency provides answers to employers’ frequently asked questions, including the differences among cloth face coverings, surgical masks, filtering face piece respirators/personal protective equipment (PPE), and the various standards that apply. OSHA makes it clear that cloth face coverings are not considered PPE and will not protect the wearer from airborne transmissible infectious agents. OSHA stated, however, that the FAQs do not carry the force of regulations.
A day later, on June 11, the D.C. Circuit Court of Appeals tossed a lawsuit brought by the AFL-CIO seeking to compel OSHA to issue an emergency temporary standard regulating workplace measures to prevent employee exposure to COVID-19. The court found that OSHA’s decision not to engage in rulemaking was reasonable.
FAQs on Cloth Face Coverings
The FAQs address two of the most pertinent questions for businesses: whether employers are required to provide cloth face coverings for their workers, and whether workers should wear cloth face coverings while at work. The FAQs state: “OSHA generally recommends that employers encourage workers to wear face coverings at work.” OSHA, however, is not requiring face coverings. In addition, OSHA noted that its PPE standards do not require employers to provide cloth face coverings.
According to OSHA, employers have the discretion to determine whether to allow employees to wear cloth face coverings in the workplace based on the specific circumstances present at the work site. OSHA recognizes that some circumstances may make the use of cloth face coverings hazardous, such as workers on long shifts where the cloth face covering becomes damp from breathing, or the covering collects infectious material from the work environment. Where cloth face coverings are not appropriate in the work environment or during certain job tasks, OSHA advises employers to provide PPE, such as face shields and/or surgical masks, instead of encouraging workers to wear cloth face coverings. OSHA also advises that face coverings are not a substitute for social distancing.
Employers should be aware, however, that some state and local public orders mandate the use of face coverings when at work and further that employers must provide them.
The FAQs mention the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act, that requires employers to provide a workplace free of known health and safety hazards and comply with certain safety standards, rules, and regulations, which may vary depending on the employer’s industry and nature of operations. Under the Act, employers are required to implement appropriate controls, such as engineering and administrative controls, safe work practices, and PPE.
OSHA directs employers to establish and implement a written respiratory protection program with worksite-specific procedures for the workplace where filtering face-piece respirators are necessary to protect the health of the employee. Employers who allow employees to voluntarily use filtering face-piece respirators are not required to have a written respiratory protection program, but must provide to each voluntary wearer a copy of the information contained in Appendix D to OSHA’s Respiratory Protection standard (29 CFR 1910.134). Appendix D advises employees to take certain precautions to be sure that the respirator itself does not present a hazard.
OSHA ends the current FAQs with a note that the guidance contained in the publication is not a standard or a regulation and does not create new legal obligations for employers under the OSH Act. The recommendations in the guidance are advisory and informational in nature, and intended to assist employers to provide a safe and healthful workplace.
OSHA Rulemaking
As the COVID-19 pandemic continues, OSHA has yet to issue a standard or regulation to address infectious diseases. OSHA acknowledges that COVID-19 is a respiratory disease that spreads through the respiratory droplets of an infected person, but does not provide any rule to prevent exposure to the disease in the workplace.
In May 2020, the AFL-CIO filed suit to compel OSHA to issue an emergency temporary standard to address the virus. On June 11, 2020, the federal appellate court in the District of Columbia rejected the challenge. The AFL-CIO had asserted that OSHA should require employers take specific steps to protect workers during the COVID-19 pandemic or face penalties. OSHA asserted in its brief to the court that the agency’s existing rules already require employers to take precautions to address the virus, such as social distancing, the use of PPE and quarantining people with symptoms. According to the court: “In light of the unprecedented nature of the COVID-19 pandemic, as well as the regulatory tools that the OSHA has at its disposal to ensure that employers are maintaining hazard-free work environments, ... OSHA reasonably determined that an [emergency temporary standard] is not necessary at this time.”
Ballard Spahr’s Labor and Employment Group is closely following OSHA developments, as well as state and local COVID-19 orders and legislation, as they impact the workforce. If you have questions, please contact any member of the Labor and Employment Group for advice about your situation.
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